Las Vegas Sun, Inc. v. Adelson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-2287

LAS VEGAS SUN, INC.,

Plaintiff-Appellee,

D.C. No.

2:19-cv-01667-

v.

ART-MDC

SHELDON ADELSON; PATRICK

DUMONT; NEWS+MEDIA

OPINION

CAPITAL GROUP, LLC; LAS

VEGAS REVIEW-JOURNAL, INC.;

INTERFACE OPERATIONS, LLC

d/b/a ADFAM,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Nevada

Anne R. Traum, District Judge, Presiding

Argued and Submitted December 5, 2024

San Francisco, California

Filed August 4, 2025

Before: Daniel P. Collins, Lawrence VanDyke, and

Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Collins

2 LAS VEGAS SUN, INC. V. ADELSON

SUMMARY *

Newspaper Preservation Act

The panel reversed the district court’s order denying

Defendants’ motion to dissolve a stipulated injunction

requiring Defendants, the current owners of the Las Vegas

Review-Journal and affiliated persons, to continue to

perform under a 2005 joint operating arrangement (JOA)

between them and the owner of the Las Vegas Sun; and

remanded for further proceedings.

The 2005 JOA amended a 1989 JOA entered into by the

owner of the Sun and the previous owners of the Review-

Journal pursuant to the Newspaper Preservation Act (NPA),

which seeks to preserve otherwise failing newspapers by

granting them an exemption from the antitrust laws allowing

them, with the Attorney General’s prior written consent, to

combine publishing operations with another newspaper

while preserving the independence of the respective

newspapers’ editorial and reportorial staffs. In the absence

of such advance approval, the NPA generally provides that

such JOAs are “unlawful.”

When the current owners of the Review-Journal sought

in 2019 to terminate the 2005 JOA on state-law grounds, the

owner of the Sun (LVSI) brought this suit alleging that

Defendants’ efforts to terminate the 2005 JOA violated

antitrust laws.

Although the parties initially stipulated to an order

requiring them to continue to perform under the 2005 JOA

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LAS VEGAS SUN, INC. V. ADELSON 3

pending this litigation, Defendants later moved to dissolve

the injunctive order on the ground that the 2005 JOA was

unlawful and unenforceable because it had not been

approved by the Attorney General. The district court denied

Defendants’ motion to dissolve the injunction, concluding

that the Attorney General’s approval was not required by the

NPA.

The panel concluded that it has jurisdiction to review the

district court’s order denying Defendants’ motion to dissolve

the stipulated preliminary injunction, rejecting LVSI’s

arguments that (1) the appeal is not authorized under 28

U.S.C. § 1292(a)(1) (covering interlocutory orders refusing

to dissolve or modify injunctions); and (2) Defendants are

not “aggrieved” by the order and thus lack standing.

Turning to the merits, the panel rejected the reading

adopted by the district court that the lack of Attorney

General approval merely meant that the parties lacked any

antitrust exemption under the NPA but did not invalidate the

JOA or render it unenforceable. The panel wrote that the

language of § 4(b) of the NPA is clear and unequivocal. It

declares an unapproved agreement to be unlawful to enter

and unenforceable.

Under the plain language of § 4(b), the 2005 JOA would

be unlawful and unenforceable if it counts as (1) “a joint

operating arrangement,” (2) “not already in effect.”

The panel observed that the phrase “joint operating

arrangement” and “joint newspaper operating arrangement”

are used interchangeably in the NPA and must be given the

same meaning. Because the 2005 JOA meets all the

requirements of a “joint newspaper operating arrangement”

set forth in § 3(2) of the NPA, the panel concluded that it is

4 LAS VEGAS SUN, INC. V. ADELSON

a “joint operating arrangement” within the meaning of

§ 4(b).

The panel also concluded that the 2005 JOA was “not

already in effect.” In doing so, the panel rejected the district

court’s holding that, by limiting its applicability to JOAs

“not already in effect,” § 4(b) reaches only new JOAs and

does not apply to amended JOAs. Section 4(b)’s exclusion

of JOAs “already in effect” is unmistakably a reference to

JOAs that predate the enactment of the NPA. A JOA

adopted before the NPA is one that is “already in effect,” and

a JOA entered into after the NPA, even if it amends a prior

JOA, is one that is “not already in effect.”

The panel therefore concluded that the 2005 JOA is

covered by § 4(b) and required the prior written consent of

the Attorney General. Because it did not receive that prior

written consent, the 2005 JOA is unlawful and

unenforceable. The district court thus erred in reaching a

contrary conclusion and in denying on that basis Defendants’

motion to dissolve the stipulated preliminary injunction.

COUNSEL

E. Leif Reid (argued), Nicole S. Scott, Lucy C. Crow, and

Kristen L. Martini, Lewis Roca Rothgerber Christie LLP,

Las Vegas, Nevada; James J. Pisanelli, Todd L. Bice, and

Jordan T. Smith, Pisanelli Bice PLLC, Las Vegas, Nevada;

Joseph M. Alioto Sr., Alioto Law Firm, San Francisco,

California; for Plaintiff-Appellee.

Ian H. Gershengorn (argued) and Illyana A. Green, Jenner &

Block LLP, Washington, D.C.; David R. Singer, and Amy

LAS VEGAS SUN, INC. V. ADELSON 5

M. Gallegos, Jenner & Block LLP, Los Angeles, California;

Gabriel K. Gillett, Jenner & Block LLP, Chicago, Illinois; J.

Randall Jones, Mona Kaveh, and Michael J. Gayan, Kemp

Jones LLP, Las Vegas, Nevada; Richard L. Stone, Los

Angeles, California; for Defendants-Appellants.

OPINION

COLLINS, Circuit Judge:

In 1990, the U.S. Attorney General approved a 1989 joint

operating arrangement (“JOA”) between the owners of the

Las Vegas Review-Journal and the Las Vegas Sun, pursuant

to the Newspaper Preservation Act (“NPA” or “the Act”). 15

U.S.C. § 1801 et seq. The NPA seeks to preserve otherwise

failing newspapers by granting them an exemption from the

antitrust laws allowing them, with the Attorney General’s

“prior written consent,” to combine publishing operations

with another newspaper while preserving the independence

of the respective newspapers’ “editorial [and] reportorial

staffs.” Id. §§ 1802(2), 1803(b). In the absence of such

advance approval, however, the NPA generally provides that

such JOAs are “unlawful.” Id. § 1803(b).

In 2005, the parties to the 1989 JOA submitted an

amended JOA to the U.S. Department of Justice, but they

neither sought nor obtained written approval from the

Attorney General. When the new owners of the Las Vegas

Review-Journal later sought in 2019 to terminate the 2005

JOA on state-law grounds, the owner of the Las Vegas Sun

brought this suit against those owners and several affiliated

persons, alleging that Defendants’ efforts to terminate the

2005 JOA violated the antitrust laws. Although the parties

6 LAS VEGAS SUN, INC. V. ADELSON

initially stipulated to an order requiring them to continue to

perform under the 2005 JOA pending the litigation,

Defendants later moved to dissolve that injunctive order on

the ground that the 2005 JOA was unlawful and

unenforceable because it had not been approved by the

Attorney General under the NPA. The district court denied

Defendants’ motion to dissolve the injunction, concluding

that the Attorney General’s approval was not required by the

NPA. Defendants have timely appealed that order pursuant

to 28 U.S.C. § 1292(a)(1). We reverse.

I

We begin by providing a brief overview of the relevant

statutory background, which provides important context for

the ensuing discussion of the factual and procedural history

of this case.

A

In Citizen Publishing Co. v. United States, 394 U.S. 131

(1969), the Supreme Court affirmed a decree invalidating,

under §§ 1 and 2 of the Sherman Act and § 7 of the Clayton

Act, a JOA between two Tucson, Arizona newspapers, as

well as the subsequent merger of the two newspaper

companies. Id. at 134–35. The Tucson JOA was one of

nearly two dozen such arrangements throughout the United

States. Committee for an Indep. P-I v. Hearst Corp., 704

F.2d 467, 473 (9th Cir. 1983). The Tucson JOA, like those

in other jurisdictions, was ostensibly an effort to maintain

editorial diversity by allowing an otherwise failing

newspaper to preserve its “own news and editorial

department,” while “end[ing] any business or commercial

competition between the two papers.” Citizen Publ’g, 394

U.S. at 133–34. But the Supreme Court held that, in the

Government’s enforcement action against the Tucson JOA,

LAS VEGAS SUN, INC. V. ADELSON 7

the district court correctly concluded that the defendants had

failed to satisfy the requirements of the so-called “‘failing

company’ defense—a judicially created doctrine.” Id. at

136. Specifically, the Court agreed that there was no

showing that the assertedly failing newspaper was “then on

the verge of going out of business” or that, if that newspaper

was to be sold, its cross-town rival was “the only available

purchaser.” Id. at 137–38 (citation omitted).

Congress promptly responded to Citizen Publishing by

enacting the NPA, see Pub. L. No. 91-353, 84 Stat. 466

(1970), which has been classified as Chapter 43 of the

unenacted Title 15 of the United States Code. See 15 U.S.C.

§ 1801 et seq. The declared policy of the Act is to

“maintain[] a newspaper press” that is “editorially and

reportorially independent and competitive in all parts of the

United States” by “preserv[ing] the publication of

newspapers” in any area “where a joint operating

arrangement has been heretofore entered into because of

economic distress or is hereafter effected in accordance with

the provisions” of the NPA. Id. § 1801. The Act seeks to

accomplish this goal by creating a limited express exemption

from the antitrust laws for certain existing and future

newspaper JOAs.

Specifically, § 4(a) of the Act generally exempts then-

existing newspaper JOAs from certain antitrust laws—

including the provisions at issue in Citizen Publishing—if,

at the time the JOA “was first entered into, . . . not more than

one of the newspaper publications involved in the

performance of such arrangement was likely to remain or

become a financially sound publication.” 15 U.S.C.

§ 1803(a). This requirement to show only that the weaker

newspaper was likely to remain financially unsound was

intended to be a less stringent standard than Citizen

8 LAS VEGAS SUN, INC. V. ADELSON

Publishing, which we have described as essentially requiring

a showing that “the financially troubled newspaper [was] on

its deathbed.” Committee for an Indep. P-I, 704 F.2d at 474.

For JOAs entered into after the Act’s passage, § 4(b) of

the Act grants a comparable antitrust exemption, if the

parties obtain “the prior written consent of the Attorney

General of the United States.” 15 U.S.C. § 1803(b). That

consent may be granted, under the Act, if the Attorney

General determines (1) that the weaker newspaper is a

“failing newspaper,” i.e., that it “is in probable danger of

financial failure,” id. § 1802(5); see also id. § 1803(b); and

(2) “that approval of such arrangement would effectuate the

policy and purpose” of the NPA, id. § 1803(b). Although

this, too, was intended to be a less stringent standard than

Citizen Publishing, we have held that it is nonetheless

stricter than the “financially sound standard” applicable to

then-existing JOAs under § 4(a). Committee for an Indep.

P-I, 704 F.2d at 477; see also id. at 480 (holding that the

“probable danger” standard requires a showing that, if

“analyzed as a free-standing entity,” the “failing newspaper”

would probably “be closed and an editorial voice lost”).

Section 4(b) states, however, that, in the absence of the

Attorney General’s “prior written consent,” it “shall be

unlawful for any person to enter into, perform, or enforce a

joint operating arrangement, not already in effect.” 15

U.S.C. § 1803(b).

With respect to pre-NPA JOAs that are amended or

renewed after the enactment of the NPA, the statute provides

that the “terms” of any such renewed or amended JOA “must

be filed with the Department of Justice” and that no such

amendment may “add a newspaper publication or newspaper

publications to such arrangement.” 15 U.S.C. § 1803(a).

LAS VEGAS SUN, INC. V. ADELSON 9

Several years after the NPA’s passage, the U.S.

Department of Justice (“DOJ”) promulgated regulations

implementing the Act, and those regulations remain in effect

today in substantially unchanged form. See 28 C.F.R. § 48.1

et seq. Even though the statute explicitly states that it “shall

be unlawful” to enter into or enforce a post-NPA JOA

“except with the prior written consent of the Attorney

General,” 15 U.S.C. § 1803(b), the DOJ’s regulations took

the position that post-NPA JOAs were not required by the

Act to obtain the prior approval of the Attorney General, see

28 C.F.R. § 48.1. Rather, the regulations opine that the NPA

merely “provide[s] a method for newspapers to obtain the

benefit of a limited exemption from the antitrust laws if they

desire to do so.” Id. The regulations adopting that

construction were upheld, by a divided vote, in Newspaper

Guild v. Levi, 539 F.2d 755, 755–56 (D.C. Cir. 1976).

B

In June 1990, Attorney General Dick Thornburgh

approved a 1989 JOA between the owner of the Las Vegas

Review-Journal (then Donrey of Nevada, Inc. (“Donrey”))

and the owner of the Las Vegas Sun (i.e., Las Vegas Sun, Inc.

(“LVSI”)). In his written opinion explaining his approval,

Attorney General Thornburgh briefly sketched the history of

the two papers. The newspaper now known as the Las Vegas

Review-Journal began publication in 1909 and “was the only

daily newspaper serving the area” until the Las Vegas Sun

was introduced in 1950. Both papers continued publication

for many years, but by the late 1980s, the Sun was in

substantial financial trouble. The Sun had “lost money every

year since 1981”; its advertising revenues had declined

“every year since 1982, without exception”; and it had total

debts of $11 million. In addition, the Sun’s circulation had

dropped “considerably.” Attorney General Thornburgh

10 LAS VEGAS SUN, INC. V. ADELSON

concluded that “the Sun’s losses are, in all likelihood,

irreversible,” and that the Sun therefore had “been shown to

be a ‘failing newspaper’ within the meaning of the NPA.”

Attorney General Thornburgh also found that approval

of the terms of the proposed JOA “would effectuate the

policy and purpose” of the NPA. 15 U.S.C. § 1803(b).

Under the JOA, the “business operations of the two

newspapers” would be combined, “while preserving the

newspapers’ editorial and reportorial independence.” The

Review-Journal’s owner (i.e., Donrey) would “take

responsibility for the management, printing, and other

commercial functions of the newspapers,” with the Review-

Journal publishing a morning edition, the Sun publishing an

afternoon edition, and both papers publishing a “joint edition

on Saturdays, Sundays, and holidays.” The parties agreed

that 90% of the “profits from operations” would be allocated

to the Review-Journal and 10% to the Sun. After reviewing

these and other details of the JOA, Attorney General

Thornburgh concluded that “there appears to be no feasible

alternative to the JOA that would preserve the Sun in

operation” and that, by allowing the Sun’s independent

editorial voice to survive, “the JOA would serve the statutory

goal of maintaining an independent and competitive

newspaper press.”

Over the years, various disputes emerged over the proper

application of the JOA, and the owners of the newspapers

(who were then, respectively, “DR Partners,” as successor to

Donrey, and LVSI) ultimately sought to resolve these

disputes by negotiating and executing an “Amended and

Restated” JOA on June 10, 2005. Under the terms of the

2005 JOA, the Sun would cease publication as an afternoon

paper and would instead be distributed as a six-to-ten-page

freestanding insert to the Review-Journal. The prior JOA’s

LAS VEGAS SUN, INC. V. ADELSON 11

profit-sharing split was replaced by a more complex formula

based on earnings before interest, taxes, depreciation, and

amortization (“EBITDA”). LVSI was entitled to request an

annual audit of the relevant EBITDA calculations, and in the

event of a dispute, the issue would be resolved by arbitration.

DR Partners and LVSI did not seek the Attorney

General’s approval of the amended JOA. Instead, in June

2005, they delivered the amended JOA to the DOJ, together

with a cover letter stating that the JOA was being submitted

under “28 CFR § 48.16,” which is the regulation that applies

to amendment of pre-NPA JOAs. See 28 C.F.R. § 48.16

(providing for the filing of JOAs amending “the terms of an

existing arrangement”); id. § 48.2(d) (defining “existing

arrangement” to mean “any joint newspaper operating

arrangement entered into before July 24, 1970”); see also 15

U.S.C. § 1803(a).

The DOJ promptly initiated an investigation into the

2005 JOA, sending a civil investigative demand to DR

Partners in August 2005. The DOJ ultimately sent a letter to

the parties in April 2008 stating that it was closing its

investigation without having taken any action. According to

the letter, the DOJ’s decision “was not based on a conclusion

that the 2005 amendments to the parties’ Joint Operating

Agreement are protected by the antitrust immunity afforded

by the Newspaper Preservation Act” and that the 2005 JOA

therefore “remains subject to antitrust scrutiny.”

C

Over the ensuing years, disputes continued to arise

among the parties to the 2005 JOA, leading to various

lawsuits and arbitration proceedings. One such suit was

brought in 2018 by LVSI in Nevada state court against the

current owner of the Review-Journal, the Las Vegas Review-

12 LAS VEGAS SUN, INC. V. ADELSON

Journal, Inc. (“LVRJI”) and its parent company,

News+Media Capital Group, LLC (“NMCG”). In August

2019, LVRJI and NMCG sought and obtained leave in that

case to file an amended answer in which they asserted

breach-of-contract counterclaims against LVSI and also

sought a declaration that they could terminate the 2005 JOA

for the alleged breach.

In response to this counterclaim, LVSI filed this action

in federal court against LVRJI, NMCG, and two of the

officers and owners of NMCG, Sheldon Adelson and his

son-in-law Patrick Dumont. 1 LVSI alleged, inter alia, that

LVRJI’s efforts to terminate the 2005 JOA amounted to an

attempt to monopolize the Las Vegas newspaper market in

violation of § 2 of the Sherman Act, 15 U.S.C. § 2. A few

days later, LVSI informed Defendants that it was planning to

seek a preliminary injunction against the termination of the

2005 JOA, and it asked whether Defendants would be

willing to avoid the need for such a motion by instead

agreeing to a joint stipulation to maintain the status quo. The

parties ultimately agreed to do so, while simultaneously

preserving their respective rights and arguments. Under the

terms of the stipulation and proposed order, LVRJI agreed to

“continue to perform under the 2005 JOA,” and Defendants

agreed to “refrain from taking any non-judicial steps to

terminate the 2005 JOA until after the entry of final

judgment by a court of competent jurisdiction permitting

such termination.” The district court entered the stipulated

order on October 9, 2019.

1

The complaint was later amended to add, as an additional defendant,

Interface Operations, LLC, which was alleged to be an Adelson-family-

controlled entity through which the family members controlled the

affairs of LVRJI. The respective defendants who were parties to the

action at any given time are collectively referred to as “Defendants.”

LAS VEGAS SUN, INC. V. ADELSON 13

At some point prior to the filing of LVSI’s federal

lawsuit, Defendants became aware of the DOJ’s April 2008

letter indicating that the DOJ did not consider the 2005 JOA

to be protected by the special immunity granted by the NPA.

In late October 2019, LVRJI and NMCG moved to dismiss

LVSI’s federal complaint on the grounds, inter alia, that the

2005 JOA never received the requisite approval; that it was

therefore unlawful under the NPA; and that LVSI’s claims

that it would be an antitrust violation to abrogate that

agreement necessarily failed as a result. In its order partially

denying the motion to dismiss, the district court declined to

resolve this issue. Noting that the complaint specifically

alleged that the DOJ had “permitted” the 2005 JOA, the

court viewed the motion to dismiss as an improper effort to

go outside the pleadings to dispute this factual allegation.

After several years of discovery, the parties filed cross-

motions for summary judgment in May 2023. In particular,

both sides sought summary judgment with respect to

Defendants’ assertion that the 2005 JOA was unlawful under

the NPA and unenforceable. Defendants filed a further

motion arguing that, for the same reason, the stipulated

preliminary injunction requiring them to continue to perform

under the 2005 JOA should be dissolved.

In March 2024, the district court granted summary

judgment to LVSI on the issue of the enforceability of the

2005 JOA, concluding that the agreement was not invalid

merely because it had not been approved by the Attorney

General. On that same ground, the court also denied

Defendants’ motion to dissolve the stipulated preliminary

injunction.

14 LAS VEGAS SUN, INC. V. ADELSON

II

Defendants appealed the denial of their motion to

dissolve the stipulated preliminary injunction, asserting that

the appeal was authorized under 28 U.S.C. § 1292(a)(1).

LVSI disputes that contention, and alternatively asserts that

Defendants lack standing to take the appeal. We conclude

that we have jurisdiction over Defendants’ appeal.

Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to

review, inter alia, “[i]nterlocutory orders . . . refusing to

dissolve or modify injunctions.” Here, there can be no doubt

that the October 2019 stipulated order was an injunction: on

its face, the order was entered by agreement of the parties

“[i]n lieu of litigating” LVSI’s anticipated “motion for

preliminary injunction,” and the order provisionally granted

the exact relief that that motion would have sought, namely,

an order “to prevent the termination of the 2005 JOA and to

maintain the status quo through the pendency of this

dispute.” The order, however, explicitly clarified that

Defendants could take judicial steps to terminate the 2005

JOA and that, in all events, both sides reserved their

respective “rights [and] arguments” notwithstanding the

stipulation agreeing to the order.

After Defendants’ initial effort to raise the enforceability

of the 2005 JOA at the pleading stage was rebuffed by the

district court on the ground that it contradicted the

complaint’s allegations, Defendants subsequently re-raised

the issue after substantial discovery was completed. They

did so, inter alia, by filing a motion explicitly requesting that

the October 2019 stipulated preliminary injunction be

dissolved on the ground that, in light of the relevant facts,

the 2005 JOA was unlawful and unenforceable. The district

court then expressly denied Defendants’ “motion to dissolve

LAS VEGAS SUN, INC. V. ADELSON 15

preliminary injunction” in March 2024 on the sole ground

that, based on the undisputed facts, the 2005 JOA was

enforceable.

Because the district court’s March 2024 order explicitly

denied an express request to dissolve an injunctive order,

Defendants’ appeal of that denial “falls squarely within the

language of section 1292(a)(1),” and we therefore have

jurisdiction over this appeal without the need for any further

showing. Natural Res. Def. Council v. County of Los

Angeles, 840 F.3d 1098, 1101 (9th Cir. 2016) (citation

omitted). Consequently, LVSI is wrong in contending that

our jurisdiction here depends upon the sort of further

showing that is required when an order sought to be appealed

under § 1292(a)(1) does not explicitly deny an injunction but

“only has the practical effect of denying an injunction.” Id.

(emphasis added) (simplified). In the latter circumstance,

the appellant must make the further showing that the order

will “have serious, perhaps irreparable consequences” that

can only be redressed by an immediate appeal. Negrete v.

Allianz Life Ins. Co., 523 F.3d 1091, 1097 (9th Cir. 2008)

(citing Carson v. American Brands, Inc., 450 U.S. 79, 83–84

(1981)). But our caselaw has squarely held “that Carson’s

‘requirement of irreparable injury’ does not apply to ‘appeals

from the direct denial of a request for an injunction,’” but

only to non-injunctive orders that are claimed to have the

“‘practical effect’ of denying an injunction.” Natural Res.

Def. Council, 840 F.3d at 1101 (emphasis added) (citations

omitted); see also Paige v. State of California, 102 F.3d

1035, 1038 (9th Cir. 1996) (holding that, where a party has

appealed “from the specific grant of a request for an

injunction,” “Carson is simply irrelevant, and we have

jurisdiction over the [party’s] appeal under § 1292 even

though the [party] has not alleged irreparable harm”); Shee

16 LAS VEGAS SUN, INC. V. ADELSON

Atika v. Sealaska Corp., 39 F.3d 247, 249 (9th Cir. 1994)

(holding that Carson does not apply “to appeals from orders

specifically denying injunctions”); United States v. Phillip

Morris USA Inc., 840 F.3d 844, 849 (D.C. Cir. 2016)

(holding that § 1292(a) jurisdiction exists, without any

showing of irreparable harm under Carson, “where the

district court order ‘clearly grants or denies a specific request

for injunctive relief,’ such as a request to dissolve an

injunction” (emphasis added) (citation omitted)).

LVSI alternatively contends that, even if there is

statutory jurisdiction under § 1292(a)(1), Defendants lack

standing to appeal the March 2024 order because they have

not been “aggrieved” by it. This argument is somewhat

difficult to fathom, because Defendants are self-evidently

aggrieved by an order that, they contend, unlawfully

compels them to maintain a relationship with the Sun that

they no longer want. See, e.g., ACF Indus. Inc. v. California

State Bd. of Equalization, 42 F.3d 1286, 1288–89 (9th Cir.

1994) (exercising jurisdiction over a defendant’s appeal

from an order denying a motion to modify a stipulated

preliminary injunction). So far as we can discern from

LVSI’s brief, the argument that Defendants have not been

aggrieved is merely a repackaging of LVSI’s contention that

Defendants are not suffering any irreparable injury from the

court’s order. We reject this effort to evade our above-

described precedent holding that irreparable injury need not

be shown when, as here, an explicit request to dissolve an

injunction is denied.

Accordingly, we conclude that we have jurisdiction to

review the district court’s order denying Defendants’ motion

to dissolve the stipulated preliminary injunction.

LAS VEGAS SUN, INC. V. ADELSON 17

III

In declining to dissolve its injunction requiring

Defendants to continue carrying out the 2005 JOA, the

district court relied solely on the ground that the JOA did not

violate the NPA and that Defendants were wrong in

contending otherwise. We turn, then, to whether the JOA

was lawful and enforceable under the NPA, which is a legal

question that we review de novo. See United States v.

Hughes, 113 F.4th 1158, 1161 (9th Cir. 2024). 2

In challenging the 2005 JOA, Defendants rely on § 4(b)

of the NPA, which provides, in relevant part, that “[i]t shall

be unlawful for any person to enter into, perform, or enforce

a joint operating arrangement, not already in effect, except

with the prior written consent of the Attorney General of the

United States.” 15 U.S.C. § 1803(b). Here it is both

2

LVSI argues that we should not reach this issue but should instead

affirm on the alternative ground that Defendants failed to show “a

significant change in facts or law” that would “warrant[] revision or

dissolution of the injunction.” Sharp v. Weston, 233 F.3d 1166, 1170 (9th

Cir. 2000). We reject this contention. As we have explained, the

stipulated preliminary injunction here expressly reserved the parties’

respective “rights [and] arguments” concerning the validity of the 2005

JOA, and it also explicitly recognized Defendants’ right to seek judicial

termination of the JOA. Accordingly, this is not a situation in which the

existing injunctive order was based on a judicial resolution of a disputed

issue, thereby requiring the party seeking dissolution to make a threshold

showing that this already-resolved issue should be revisited. On the

contrary, the stipulated order here effectively deferred resolution of the

JOA’s validity until a later date. After Defendants’ first attempt to raise

that issue at the pleading stage was rejected by the district court, both

sides then reasonably waited until after the completion of discovery to

seek a ruling on that unresolved issue. Under these circumstances,

Defendants were not required to make any further showing of a change

in the facts or the law before requesting that the district court dissolve

the injunction based on a resolution of this deferred issue.

18 LAS VEGAS SUN, INC. V. ADELSON

undisputed and indisputable that the Attorney General did

not provide “prior written consent” approving the 2005 JOA.

Accordingly, if the 2005 JOA counts as “[1] a joint operating

arrangement, [2] not already in effect,” then, under the plain

language of § 4(b), “[i]t shall be unlawful” for the parties “to

enter into, perform, or enforce” that JOA. Id. We therefore

must consider whether the 2005 JOA meets the two above-

noted criteria necessary to trigger § 4(b)’s operative rule that

the specified agreements are “unlawful.” Before doing so,

however, we first address a threshold issue concerning the

scope of that rule.

A

The district court held (and LVSI agrees) that, even

assuming arguendo that the 2005 JOA counted as a “joint

operating arrangement, not already in effect,” that agreement

still “would be enforceable without the Attorney General’s

signature.” The lack of Attorney General approval, the

district court concluded, merely meant that the parties lacked

any antitrust exemption under the NPA and were therefore

“expose[d] . . . to antitrust liability,” but it did “not invalidate

the JOA or render [it] unlawful or unenforceable.” The

district court noted that this reading of § 4(b) was upheld in

1976 by a divided panel of the D.C. Circuit in Newspaper

Guild, which rejected a challenge to the DOJ’s 1974

implementing regulations expressly adopting that view. 539

F.2d at 760–61; see also News Weekly Sys., Inc. v.

Chattanooga News-Free Press, 1993 WL 47197, at *2 (6th

Cir. 1993) (adopting Newspaper Guild’s interpretation of

§ 4(b) without conducting any independent analysis). We

reject this reading as squarely foreclosed by the plain

language of the statute.

LAS VEGAS SUN, INC. V. ADELSON 19

As always, “[s]tatutory construction must begin with the

language employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses the

legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 175 (2009) (citation omitted). Here, as noted, the

relevant language of § 4(b) states that “[i]t shall be unlawful

for any person to enter into, perform, or enforce a joint

operating arrangement, not already in effect, except with the

prior written consent of the Attorney General of the United

States.” 15 U.S.C. § 1803(b) (emphasis added).

Accordingly, when an agreement is covered by § 4(b) (i.e.,

it is a “joint operating arrangement, not already in effect”),

and it lacks the “prior written consent of the Attorney

General,” the result expressly decreed by the statute is that it

is “unlawful” to “enter into, perform, or enforce” that

agreement. Id. (emphasis added). This language is clear and

unequivocal: § 4(b) declares such an unapproved agreement

to be unlawful to enter into and unenforceable.

This plain-language reading is further confirmed by

comparing the wording of § 4(b) with that of § 4(a). As

noted earlier, § 4(a) addresses JOAs “entered into prior to

the effective date of this Act,” Pub. L. No. 91-353, § 4(a), 84

Stat. at 467, while § 4(b) generally addresses post-NPA

JOAs. See supra at 7–8; see also infra section III(B)(2). In

sharp contrast to § 4(b), the language of § 4(a) notably

avoids declaring anything to be “unlawful.” Instead, § 4(a)

states that “[i]t shall not be unlawful under any antitrust law

for any person to perform, enforce, renew, or amend” any

pre-NPA JOA if, at the time the JOA “was first entered into,”

the weaker newspaper was likely to remain financially

unsound. 15 U.S.C. § 1803(a) (emphasis added). Congress

could easily have used the same verbal formulation in § 4(b)

and declared that “it shall not be unlawful under any antitrust

20 LAS VEGAS SUN, INC. V. ADELSON

law” to “enter into, perform, or enforce” a JOA that has

received the “prior written consent of the Attorney General.”

Had Congress done so, that would have produced the reading

adopted by the district court: under that phrasing, which

simply declares that approved JOAs are “not . . . unlawful

under any antitrust law,” the lack of such prior approval

would simply mean that this exemption from the antitrust

laws would not apply. But Congress did not replicate in

§ 4(b) the phrasing used in § 4(a). Instead, Congress

affirmatively declared that it “shall be unlawful” to “enter

into, perform, or enforce” a post-NPA JOA without prior

approval. Id. § 1803(b). Moreover, the language of § 4(b)

does not make that unlawfulness depend upon the

applicability of any pre-existing antitrust law, but instead

declares such unapproved agreements to be unlawful

simpliciter. 3 The district court’s reading of § 4(b)

3

We note, however, that, when the Attorney General grants prior

approval to a JOA under § 4(b), the result is not merely an exemption

from § 4(b)’s prohibition, but also an exemption from the relevant

“antitrust law[s]” described in the NPA. Because § 4(b) declares post-

NPA JOAs to be “unlawful” “except” when the Attorney General has

granted prior written approval under the new standards set forth in the

NPA, the scope of the unlawfulness that is thereby removed by the

Attorney General’s approval must be understood as also extending to the

antitrust laws that have been effectively displaced by the NPA’s

standards. (It would make no sense to read § 4(b) as requiring the

Attorney General to grant approval based on standards that explicitly

differ from those otherwise applicable under Citizen Publishing only to

then subject such approved agreements to Citizen Publishing.)

Accordingly, the scope of the exemption granted by Attorney General

approval under § 4(b) should be read in pari materia with the scope of

the exemption granted under § 4(a) and therefore must be understood as

likewise extending to the “antitrust law[s]” described in § 3(1) of the Act.

See 15 U.S.C. § 1802(1) (defining “antitrust law,” for purposes of the

NPA, as meaning specified antitrust statutes “and such statutes and any

other Acts in pari materia” to those specified antitrust statutes); see also

LAS VEGAS SUN, INC. V. ADELSON 21

improperly fails to give any effect to these striking

differences in language between the two provisions. See

Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” (alteration

in original) (citation omitted)).

Indeed, neither the district court nor the panel majority

in Newspaper Guild were able to point to any statutory

language that would support their view that the effect of

§ 4(b) is not to require the prior approval of the Attorney

General but merely to deny the antitrust exemption that

would follow from obtaining that approval. On the contrary,

the D.C. Circuit majority candidly conceded that “[a] rigidly

literal reading of section 4(b) undeniably provides support”

for the view—adopted by the district court in Newspaper

Guild—that “all joint newspaper operating arrangements not

in effect on July 24, 1970, must obtain the Attorney

General’s consent before they may be put into effect.” 539

F.2d at 757 (quoting Newspaper Guild v. Saxbe, 381 F. Supp.

48, 53 (D.D.C. 1974)). But the majority rejected “rigid

reliance upon the literal text of the statute” in favor of

“delving more deeply into the congressional purpose” as

reflected in the NPA’s “[l]egislative history.” Id. at 761.

After extensively reviewing that legislative history, as

reflected in the various committee reports and floor

statements, the majority held that the plain-language reading

of § 4(b) was, in its view, “at odds with the ‘object and

Hawaii Newspaper Agency v. Bronster, 103 F.3d 742, 745 (9th Cir. 1996)

(stating that approval from the Attorney General under § 4(b) yields the

“same immunity” as under § 4(a)). Notably, such “other Acts in pari

materia” would include the prohibition in § 4(b) of the NPA itself.

22 LAS VEGAS SUN, INC. V. ADELSON

policy’ of the Congress.” Id. (citation omitted). Newspaper

Guild’s wholesale disregard of the statutory text is a “relic

from a ‘bygone era of statutory construction’” that

“inappropriately resort[ed] to legislative history” in lieu of

“the statute’s text and structure,” and its “casual disregard of

the rules of statutory interpretation” is flatly contrary to

current Supreme Court authority. Food Mktg. Inst. v. Argus

Leader Media, 588 U.S. 427, 436–37 (2019) (citation

omitted); see also Newspaper Guild, 539 F.2d at 761 (Tamm,

J., dissenting) (explaining that the majority’s reading of

§ 4(b) reflected a “patent disregard of the plain and

unambiguous language of [the] statute”). Where, as here, “a

careful examination of the ordinary meaning and structure of

the law itself . . . yields a clear answer, judges must stop,”

and they should not use legislative history “to ‘muddy’ the

meaning of ‘clear statutory language.’” Food Mktg., 588

U.S. at 436 (citation omitted).

LVSI also notes that the view of § 4(b) endorsed in

Newspaper Guild has been enshrined in the DOJ’s

implementing regulations since 1974. But after Loper

Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), we no

longer give deference to “‘permissible’ agency

interpretations of the statutes those agencies administer,” id.

at 378. Thus, even assuming arguendo that the DOJ’s

construction of § 4(b) would have been given controlling

deference under Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), but cf.

Newspaper Guild, 539 F.2d at 761 (Tamm, J., dissenting)

(arguing that, “[a]though great deference is due an

interpretation of a statute by the agency or department

charged with its enforcement,” the DOJ regulation’s reading

of § 4(b) was contrary to the “plain and unambiguous

language” of the NPA), that no longer matters, because

LAS VEGAS SUN, INC. V. ADELSON 23

“Chevron [has been] overruled.” Loper Bright, 603 U.S. at

412. We instead “must exercise [our] independent

judgment” as to the meaning of the NPA, id., and for the

reasons we have explained, we conclude that the reading of

§ 4(b) reflected in the DOJ regulations and endorsed in

Newspaper Guild is directly contrary to the statutory

language and must be rejected. 4

B

It follows from what we have said thus far that, if the

2005 JOA counts as “[1] a joint operating arrangement,

[2] not already in effect,” then, under the plain language of

§ 4(b), that JOA would be unlawful and unenforceable. We

next address whether those two respective requirements

have been met.

1

As LVSI notes, the phrase “joint operating arrangement”

in § 4(b) does not exactly align with the wording of the

phrase that is expressly defined in NPA § 3(2), namely, “joint

newspaper operating arrangement.” 15 U.S.C. § 1802(2)

4

Newspaper Guild also expressed the concern that, under a literal

reading of § 4(b), “a joint operating agreement between two healthy,

non-competitive newspapers” would be unlawful without the Attorney

General’s approval, but that approval could not be given under § 4(b)

because neither would qualify as a “failing newspaper.” 539 F.2d at 759

(emphasis added). This concern is misplaced. The NPA’s expressly

declared purpose is “to preserve the publication of newspapers in any

city, community, or metropolitan area” where JOAs already exist or are

“hereafter effected” under the NPA. 15 U.S.C. § 1801 (emphasis added).

Moreover, the immunity granted by § 4(b) is an immunity from specific

antitrust laws, which presumes, of course, that the relevant newspapers

both operate in the same relevant market. Accordingly, it seems clear, in

context, that the JOAs covered by § 4(b) are only those involving

otherwise competing newspapers.

24 LAS VEGAS SUN, INC. V. ADELSON

(emphasis added). But an examination of the statute as a

whole confirms that the two phrases are used

interchangeably throughout and that the use of one versus

the other in any given instance is of no significance. The

phrase “joint newspaper operating arrangement” is used

exactly five times in the text of the statute (including in the

definitional section in § 3(2)), while the phrase “joint

operating arrangement” appears four times, and a third

phrase—“joint operating agreement”—appears once. See

id. §§ 1801, 1802(2), 1803(a)–(c), 1804(a)–(b). Notably,

there are two sections in which both of the relevant phrases

are used, and in each of these sections, the two phrases self-

evidently mean the same thing. Thus, for example, § 4(a)

establishes a general rule that certain pre-NPA “joint

newspaper operating arrangement[s]” are exempt from

specified antitrust laws, while § 4(a)’s proviso to that rule

imposes certain additional requirements that apply to any

amendment to a “joint operating arrangement.” Id.

§ 1803(a) (emphasis added). Likewise, § 5(a) provides that,

if any pre-NPA “joint operating arrangement” is the subject

of a “final judgment” holding it “unlawful under any

antitrust law” in “any action brought by the United States,”

“any party to such final judgment may reinstitute said joint

newspaper operating arrangement to the extent permissible”

under § 4(a). Id. § 1804(a) (emphasis added). Given that

there is no discernible rhyme or reason as to which phrase is

used in any given instance, and there are two instances that

affirmatively confirm that the phrases are interchangeable,

we conclude that the two phrases must be given the same

meaning.

Consequently, we apply § 3(2)’s definition of a “joint

newspaper operating arrangement” in determining whether

the 2005 JOA counts as a “joint operating arrangement” for

LAS VEGAS SUN, INC. V. ADELSON 25

purposes of § 4(b). Section 3(2)’s definition, in its entirety,

is as follows:

The term “joint newspaper operating

arrangement” means any contract,

agreement, joint venture (whether or not

incorporated), or other arrangement entered

into by two or more newspaper owners for the

publication of two or more newspaper

publications, pursuant to which joint or

common production facilities are established

or operated and joint or unified action is taken

or agreed to be taken with respect to any one

or more of the following: printing; time,

method, and field of publication; allocation

of production facilities; distribution;

advertising solicitation; circulation

solicitation; business department;

establishment of advertising rates;

establishment of circulation rates and

revenue distribution: Provided, That there is

no merger, combination, or amalgamation of

editorial or reportorial staffs, and that

editorial policies be independently

determined.

15 U.S.C. § 1802(2).

Here, the 2005 JOA is plainly a “contract, agreement, . . .

or other arrangement,” and it was indisputably “entered into

by two or more newspaper owners for the publication of two

or more newspaper publications.” Id. LVSI contends,

however, that the 2005 JOA does not meet the further

statutory requirement that the agreement be one “pursuant to

26 LAS VEGAS SUN, INC. V. ADELSON

which [1] joint or common production facilities are

established or operated and [2] joint or unified action is

taken or agreed to be taken with respect to” certain

enumerated publishing activities. Id. (emphasis added).

LVSI does not contest that the second subclause is satisfied

here, given that the 2005 JOA, on its face, establishes new

terms for taking “joint or unified action” with respect to

several of the enumerated publishing activities. However,

according to LVSI, the first subclause is not met: the 2005

JOA “cannot be the agreement ‘pursuant to which joint or

common production facilities are established or operated,’ as

that was already done in the original JOA.” But even

assuming arguendo that it was the original JOA, and not the

2005 JOA, that “established” the “joint or common

production facilities,” it nonetheless remains true that, after

the 2005 JOA, those facilities are thereafter “operated”

“pursuant” to that amended agreement. 15 U.S.C. § 1802(2)

(emphasis added). And because the relevant clause requires

only that the facilities be “established or operated” pursuant

to the agreement, id. (emphasis added), that clause’s

requirement is satisfied here. See United States v. Woods,

571 U.S. 31, 45–46 (2013) (noting that the “ordinary use” of

“the conjunction ‘or’” is “almost always disjunctive” and

signifies that the “items are alternatives”).

Moreover, the parties do not dispute that § 3(2)’s proviso

is satisfied here. Under the 2005 JOA, “there is no merger,

combination, or amalgamation of editorial or reportorial

staffs,” and the “editorial policies” of the two papers are

“independently determined.” 15 U.S.C. § 1802(2). The

2005 JOA expressly states that each newspaper will maintain

its own “staff of news and editorial employees,” and it

contains additional provisions preserving “the news and

editorial independence and autonomy” of both papers.

LAS VEGAS SUN, INC. V. ADELSON 27

Because the 2005 JOA meets all of the elements of the

definition of a “joint newspaper operating arrangement” in

§ 3(2), we conclude that it is a “joint operating arrangement”

within the meaning of § 4(b).

2

We next consider whether the 2005 JOA counts as a joint

operating arrangement that is “not already in effect.” 15

U.S.C. § 1803(b).

The district court held that, by limiting its applicability

to JOAs “not already in effect,” § 4(b) reaches “[o]nly new

JOAs” and does not apply to amended JOAs. We reject this

reading as contrary to the statutory language. As we have

already indicated, § 4(b)’s exclusion of JOAs “already in

effect” is unmistakably a reference to JOAs that predate the

enactment of the NPA: a JOA adopted before the NPA is one

that is “already in effect,” and a JOA entered into after the

NPA, even if it amends a prior JOA, is one that is “not

already in effect.” That conclusion is reinforced by § 4(a),

which expressly grants a limited antitrust exemption to JOAs

“entered into prior to the effective date” of the NPA, which

was July 24, 1970. Pub. L. No. 91-353, § 4(a), 84 Stat. at

467; see also 15 U.S.C. § 1803(a). By expressly excluding

JOAs “already in effect” from its otherwise flat prohibition

on performing or enforcing any JOA without the Attorney

General’s consent, § 4(b) thus avoids a conflict with § 4(a)’s

special rules for pre-NPA JOAs. 15 U.S.C. § 1803(b).

Likewise, by including a special rule for amendments of pre-

NPA JOAs, § 4(a) confirms that they are not governed by

§ 4(b). See RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639, 645 (2012) (applying the canon that “a

more limited, specific authorization” may be construed as an

exception to a more “general authorization” in the same

28 LAS VEGAS SUN, INC. V. ADELSON

statute). And, unlike § 4(a), § 4(b) has no analogous express

carve-out for amended JOAs.

Furthermore, the district court’s narrow construction of

§ 4(b) would seemingly create an odd gap in the statute in

which amendments to post-NPA JOAs—no matter how

significant—would not be subject to any limitations or

requirements at all. The district court sought to fill this gap

by engrafting onto post-NPA JOA amendments certain

provisions of § 4(a) that govern pre-NPA JOA amendments.

Specifically, the district court held that all amended JOAs—

whether they are amendments of pre-NPA JOAs or of post-

NPA JOAs—are covered by a proviso concerning

amendments that is contained in § 4(a). The full text of

§ 4(a), including this proviso, is as follows:

It shall not be unlawful under any antitrust

law for any person to perform, enforce,

renew, or amend any joint newspaper

operating arrangement entered into prior to

the effective date of this Act [i.e., July 24,

1970], if at the time at which such

arrangement was first entered into, regardless

of ownership or affiliations, not more than

one of the newspaper publications involved

in the performance of such arrangement was

likely to remain or become a financially

sound publication: Provided, That the terms

of a renewal or amendment to a joint

operating arrangement must be filed with the

Department of Justice and that the

amendment does not add a newspaper

LAS VEGAS SUN, INC. V. ADELSON 29

publication or newspaper publications to

such arrangement.

Pub. L. No. 91-353, § 4(a), 84 Stat. at 467, 15 U.S.C.

§ 1803(a). Although the language of the proviso, read in

isolation, could be construed as reaching any amendment to

any JOA, including a post-NPA JOA, there are several

textual reasons why that reading must be rejected.

As an initial matter, it is a well-established canon of

construction that “a proviso usually is construed to apply to

the provision or clause immediately preceding it.”

Pacificorp. v. Bonneville Power Admin., 856 F.2d 94, 97 (9th

Cir. 1988) (quoting 2A SUTHERLAND ON STATUTES AND

STATUTORY CONSTRUCTION § 47.33, at p.245 (4th ed.

1984)); see also ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS at 154

(2012) (stating that, under the “proviso canon,” a “proviso

conditions the principal matter that it qualifies—almost

always the matter immediately preceding”). Under this

canon, the proviso in § 4(a) should be construed as applying

only to the matter that precedes it, namely, § 4(a)’s rules

about pre-NPA JOAs. Section 4(b) contains no comparable

proviso limiting its sweep, and nothing in the language or

placement of § 4(a)’s proviso suggests that it applies to

§ 4(b).

Moreover, there are additional textual clues that further

confirm that § 4(a)’s proviso applies only to the pre-NPA

JOAs covered by § 4(a) and not to the post-NPA JOAs

covered by § 4(b). In particular, there are two notable

relevant differences in the language used in § 4(a) and

§ 4(b). First, as we have already noted, § 4(b) is phrased as

a prohibition that declares unapproved post-NPA JOAs to

“be unlawful,” while § 4(a) is not similarly worded: § 4(a)

30 LAS VEGAS SUN, INC. V. ADELSON

instead says that “[i]t shall not be unlawful under any

antitrust law” to take certain specified actions concerning

pre-NPA JOAs. 15 U.S.C. § 1803(a)–(b) (emphasis added);

see also supra at 19–21. Second, as we have also noted,

§ 4(a) expressly addresses amendments, whereas § 4(b) does

not. Compare 15 U.S.C. § 1803(a) (stating that “[i]t shall

not be unlawful under any antitrust law for any person to

perform, enforce, renew, or amend” any pre-NPA JOA

(emphasis added)), with id. § 1803(b) (stating that “[i]t shall

be unlawful for any person to enter into, perform, or enforce”

a post-NPA JOA without the Attorney General’s approval).

Taken in context, these two differences in language between

§ 4(a) and § 4(b) are clearly interrelated, and they confirm

that § 4(a)’s proviso should be construed as applying only to

§ 4(a).

As we have explained, § 4(b)’s flat prohibition on any

post-NPA JOA without Attorney General approval is broad

enough to include, by its plain terms, both brand-new post-

NPA JOAs and amended post-NPA JOAs. Because § 4(b)’s

language is already broad enough to cover amendments, it is

understandable that § 4(b) makes no specific reference to

amended JOAs. By contrast, § 4(a)’s use of authorizing

language, rather than prohibitory language, would not reach

amended pre-NPA JOAs unless they are specifically

mentioned. That is, if § 4(a) merely used the same relevant

verbs as § 4(b)—namely, “perform” and “enforce”—§ 4(a)

would not cover amendments: if § 4(a) had only provided

that “[i]t shall not be unlawful” to “perform” or “enforce” a

“joint newspaper operating arrangement entered into prior to

July 24, 1970,” § 4(a)’s antitrust-exemption rule would

apply only to unamended JOAs. It is therefore unsurprising

that § 4(a) adds an explicit affirmative antitrust exemption

for “renew[ing] or amend[ing]” pre-NPA JOAs, which

LAS VEGAS SUN, INC. V. ADELSON 31

Congress then expressly conditioned by adding a proviso

limiting the types of “renewal[s] or amendment[s]” that are

allowed and imposing a reporting requirement concerning

such renewals or amendments. The district court overlooked

these carefully nuanced and interrelated differences in

language between § 4(a) and § 4(b) by instead taking the

language of § 4(a)’s proviso out of context and treating it as

a freestanding, across-the-board rule that applies equally to

both § 4(a) and § 4(b). 5

LVSI alternatively argues that § 4(b) cannot reasonably

be read to apply to amendments to post-NPA JOAs, because

amendments inherently cannot satisfy § 4(b)’s approval

requirements. Section 4(b) states that, in order to approve a

post-NPA JOA, the Attorney General must “determine

[1] that not more than one of the newspaper publications

involved in the arrangement is a publication other than a

failing newspaper, and [2] that approval of such arrangement

would effectuate the policy and purpose” of the NPA. 15

U.S.C. § 1803(b). LVSI contends that, once an initial JOA

is approved, the first of these two requirements can never be

satisfied, because the previously troubled newspaper will

5

We do not rely, however, on Defendants’ argument that the scope of

§ 4(a) is confirmed by the temporally limited heading assigned to that

section when it was classified as § 1803(a) of Title 15 of the United

States Code. See 15 U.S.C. § 1803(a) (adding the following heading to

§ 1803(a): “Joint operating arrangements entered into prior to July 24,

1970”). Title 15 has never been enacted as positive law, and so the

headings added to it “are merely editorial additions made by [the]

congressional office” that “by statute has the task of assembling the

United States Code, ‘including those titles which are not yet enacted into

positive law.’” United States v. Ehmer, 87 F.4th 1073, 1112 (9th Cir.

2023) (quoting 2 U.S.C. § 285b(3)). As such, these headings “are

entitled to no weight.” Id.

32 LAS VEGAS SUN, INC. V. ADELSON

then no longer be a “failing newspaper.” This argument is

meritless.

The NPA states that, in addressing whether the weaker

newspaper is a “failing newspaper,” the Attorney General

must determine whether that newspaper “is in probable

danger of financial failure” “regardless of its ownership or

affiliations.” 15 U.S.C. § 1802(5) (emphasis added). As we

have held, the latter clause “means simply that the ailing

newspaper should be analyzed as a free-standing entity, as if

it were not owned by a corporate parent.” Committee for an

Indep. P-I, 704 F.2d at 480 (emphasis added). Thus, in the

case of an amended JOA, the question for the Attorney

General would be whether, apart from the JOA, the weaker

newspaper “is in probable danger of financial failure” if

considered as a freestanding entity. 15 U.S.C. § 1802(5). If

nothing has changed to suggest that the weaker paper could

now survive as a freestanding entity, then this requirement

will easily be met and the question will be simply whether

the amended JOA “would effectuate the policy and purpose”

of the NPA. Id. § 1803(b). Contrary to what LVSI contends,

the statutory standard is thus readily applicable in the context

of amended JOAs. 6

The district court alternatively suggested that an

amended post-NPA JOA would count as a JOA “not already

in effect” only if the amended JOA constituted a “novation”

of the prior JOA under the applicable state law. The district

court held that this rule did not apply here, however, because

6

LVSI also asserts that the review process for JOAs under the relevant

regulations is too cumbersome to be applied to amended JOAs. Even

assuming that this were true, it would not be an argument for ignoring

the plain text of the statute; it would instead be an argument for revising

the regulatory procedures to better conform to the text. Cf. Loper Bright,

603 U.S. at 412.

LAS VEGAS SUN, INC. V. ADELSON 33

the 2005 JOA did not amount to a novation under Nevada

law. We need not address the parties’ dispute over the latter

point, because we conclude that the 2005 JOA is covered by

§ 4(b) even if it is not a novation. Nothing in the text of the

NPA supports engrafting a “novation” limitation onto § 4(b),

and we lack the authority “to add words to the law to produce

what is thought to be a desirable result.” EEOC v.

Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015).

By its terms, § 4(b) applies to all post-NPA JOAs, including

amended post-NPA JOAs. 7

We therefore conclude that, because the 2005 JOA is a

“joint newspaper operating arrangement” as described in

§ 3(2) and was “not already in effect” when the NPA was

enacted, it is covered by § 4(b) and required the “prior

written consent of the Attorney General.” 15 U.S.C.

§ 1803(b).

IV

For the foregoing reasons, we conclude that, because it

did not receive the required “prior written consent of the

Attorney General,” the 2005 JOA is unlawful and

unenforceable. 15 U.S.C. § 1803(b). The district court erred

in reaching a contrary conclusion and in denying on that

7

LVSI contends that, in Mahaffey v. Detroit Newspaper Agency, 1998

WL 739902 (6th Cir. 1998), the Sixth Circuit adopted its view that

amendments of post-NPA JOAs are not covered by § 4(b)’s approval

requirement. That is wrong. In Mahaffey, the Sixth Circuit rejected the

view that the “failure to seek and obtain approval” of the amended post-

NPA JOA in that case “stripped even the original joint operating

agreement of antitrust immunity.” Id. at *2 (emphasis added). As to

whether the parties to the JOA in Mahaffey had immunity for

“implementation of any unapproved amendment,” the Sixth Circuit

expressly declined to decide that issue, because it concluded that the

private plaintiffs lacked standing to assert the antitrust claims that were

based on those amendments. Id.

34 LAS VEGAS SUN, INC. V. ADELSON

basis Defendants’ motion to dissolve the stipulated

preliminary injunction. We therefore reverse the district

court’s order denying that motion, and we remand for further

proceedings consistent with this opinion.

REVERSED AND REMANDED.