Opposition Brief — Las Vegas Sun, Inc., Petitioner v. Sheldon Adelson, et al.

No. 25-697

IN THE

Supreme Court of the United States

_________

LAS VEGAS SUN, INC.,

Petitioner,

v.

SHELDON ADELSON, ET AL.,

Respondents.

_________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

_________

BRIEF IN OPPOSITION

___________

DAVID R. SINGER

AMY M. GALLEGOS

JENNER & BLOCK LLP

515 S. Flower St, Ste. 3300

Los Angeles, CA 90071

GABRIEL GILLETT

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

RICHARD L. STONE

850 Devon Avenue

Los Angeles, CA 90024

MICHAEL J. GAYAN

Claggett & Sykes Law Firm

4101 Meadows Lane, Ste. 100

Las Vegas, NV 89107

IAN HEATH GERSHENGORN

Counsel of Record

JONATHAN J. MARSHALL

JENNER & BLOCK LLP

1099 New York Avenue, NW,

Suite 900

Washington, DC 20001

(202) 639-6000

igershengorn@jenner.com

J. RANDALL JONES

MONA KAVEH

KEMP JONES LLP

3800 Howard Hughes

Parkway, 17th Floor

Las Vegas, NV 89169

i

QUESTIONS PRESENTED

Petitioner’s Question Presented (Pet. i) conflates two

questions and omits two others.

The questions come to this Court in an appeal that

deals with the Newspaper Preservation Act (NPA),

Pub. L. No. 91-353, 84 Stat. 466 (1970) (codified at 15

U.S.C. §§ 1801-1804). The NPA governs “joint newspaper operating arrangements” or “joint operating arrangements” (JOAs), which are agreements that allow

two or more competing print newspapers to consolidate

operations and coordinate business activities to try to

reduce the chance one or more of them will go out of business. The NPA defines a JOA as “any contract, agreement, . . . or other arrangement” among newspapers

“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” an enumerated list of production, marketing,

and distribution activities. 15 U.S.C. § 1802(2).

For JOAs formed after the NPA’s enactment in 1970,

the NPA requires prior written consent from the U.S.

Attorney General. Section 4(b) of the NPA states that

“[i]t shall be unlawful for any person to enter into, perform, or enforce a [post-1970 JOA] . . . except with the

[Attorney General’s] prior written consent.” 15 U.S.C.

§ 1803(b).

This case concerns a JOA between owners of newspapers in the Las Vegas market. The JOA was entered

into in 2005 between petitioner (the entity that publishes

the Las Vegas Sun) and an entity that previously published the Las Vegas Review-Journal, which now is

ii

published by an entity related to some of the respondents. It is undisputed that the Attorney General did not

provide written consent (or any approval at all) for the

2005 JOA, though the Attorney General did provide consent for a 1989 JOA under which the newspapers previously operated. This JOA is currently the last JOA in

existence, and no newspapers have formed a JOA in a

new market in more than 35 years.

The questions presented are:

1. Whether the mandate in Section 4(b) of the NPA

stating that “[i]t shall be unlawful” to “enter into, perform, or enforce” a post-1970 JOA without Attorney

General approval (15 U.S.C. § 1803(b)) means that a

post-1970 JOA that did not receive Attorney General approval is unlawful.

2. Whether the parties’ unapproved 2005 JOA

would be completely excluded from the substantive restrictions of the NPA in the event it is declared to be an

amendment to a 1989 JOA between the parties’ that had

been approved by the Attorney General.

3. In the event agreements that are amendments to

prior JOAs that received Attorney General approval are

exempt from the substantive restrictions of the NPA,

whether the 2005 JOA—which substantially changed

the competitive consequences of the parties’ arrangement—was a mere amendment rather than a new agreement.

4. Whether, as the Ninth Circuit correctly concluded, there is appellate jurisdiction over this appeal.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Respondents

are Las Vegas Review-Journal, Inc., News+Media Capital Group, LLC, Estate of Sheldon Adelson, Patrick

Dumont, and Interface Operations, LLC d/b/a Adfam.

Las Vegas Review-Journal, Inc., is a nongovernmental, privately held corporate party. Las Vegas ReviewJournal, Inc. is a wholly owned subsidiary of News+Media Capital Group, LLC. No publicly held corporation

owns more than 10% of Las Vegas Review-Journal,

Inc.’s stock. News+Media Capital Group, LLC is a

wholly owned subsidiary of Orchid Flower LLC. No

publicly held corporation owns more than 10% of

News+Media Capital Group, LLC’s stock. Interface Operations, LLC d/b/a Adfam is a nongovernmental, privately held corporate party. No publicly held

corporation owns more than 10% of Interface Operations, LLC d/b/a Adfam’s stock.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................... i

CORPORATE DISCLOSURE STATEMENT ........... iii

TABLE OF AUTHORITIES ......................................... vi

INTRODUCTION ............................................................. 1

STATEMENT OF THE CASE ....................................... 6

A.

Legal Background ............................................ 6

B.

Factual Background ......................................... 9

C.

Procedural History......................................... 12

REASONS FOR DENYING THE PETITION ......... 17

I.

II.

There Is No Split of Authority That

Warrants This Court’s Review ............................. 19

A.

The

Question

Presented

Is

Unimportant Because the Newspaper

Preservation Act Is Moribund...................... 19

B.

There Is No Meaningful Split ....................... 21

The Decision Below Is Correct.............................. 26

A.

Section 4(b) of the Newspaper

Preservation Act Provides That

Unapproved JOAs Are “Unlawful.” ............ 26

B.

The 2005 JOA Is Governed by Section

4(b) of the Newspaper Preservation

Act..................................................................... 29

III. The Posture of the Appeal Makes This Case

a Poor Vehicle .......................................................... 34

CONCLUSION ................................................................ 35

v

TABLE OF AUTHORITIES

CASES

Bostock v. Clayton County, 590 U.S. 644

(2020) ........................................................................ 23

Carson v. American Brands, Inc., 450 U.S.

79 (1981) ............................................................. 14, 35

Citizen Publishing Co. v. United States, 394

U.S. 131 (1969) ........................................................... 6

Food Marketing Institute v. Argus Leader

Media, 588 U.S. 427 (2019) .................................... 23

Henson v. Santander Consumer USA, Inc.,

582 U.S. 79 (2017) .................................................... 27

Lawson v. FMR LLC, 571 U.S. 429 (2014) ................ 32

Loper Bright Enterprises v. Raimondo, 603

U.S. 369 (2024) ......................................................... 24

Mahaffey v. Detroit Newspaper Agency, 166

F.3d 1214 (Table), 1998 WL 739902 (6th

Cir. 1998) .............................................................. 3, 25

Michigan Citizens for an Independent

Press v. Thornburgh, 868 F.2d 1285

(D.C. Cir.), aff’d by an equally divided

Court, 493 U.S. 38 (1989) ................................... 6, 19

News Weekly Systems, Inc. v. Chattanooga

News-Free Press, 986 F.2d 1422 (Table),

1993 WL 47197 (6th Cir. 1993) .............................. 24

Newspaper Guild v. Levi, 539 F.2d 755 (D.C.

Cir. 1976) .......................................... 2, 6, 8, 17, 22, 23

vi

Rosenthal Collins Group, LLC v. Trading

Technologies International, Inc., No. 05cv-4088, 2005 WL 3557947 (N.D. Ill. Dec.

26, 2005) .................................................................... 25

State Farm Fire & Casualty Co. v. United

States ex rel. Rigsby, 580 U.S. 26 (2016) ............. 23

STATUTES

2 U.S.C. § 285b(3).......................................................... 33

15 U.S.C. § 1802(2) ........................................ 4, 16, 29, 30

15 U.S.C. § 1803(a) .................................... 7, 8, 27, 31, 32

15 U.S.C. § 1803(b)............................... 3, 4, 5, 12, 13, 16,

18, 26, 27, 30 ,32

28 U.S.C. § 1292(a)(1) ................................................... 34

Newspaper Preservation Act, Pub. L. No.

91-353, 84 Stat. 466 (1970) (codified at 15

U.S.C. §§ 1801-1804) ................................................. 1

§ 3(2), 84 Stat. 466 .................................................. 6, 7

§ 3(5), 84 Stat. 466 ...................................................... 8

§ 4, 84 Stat. 467 ......................................................... 33

§ 4(a), 84 Stat. 467 ............................................ 7, 8, 31

§ 4(b), 84 Stat. 467 ............................................ 7, 8, 31

OTHER AUTHORITIES

6th Cir. R. 32.1(b).................................................... 24, 25

28 C.F.R. § 48.1 ......................................................... 8, 21

28 C.F.R. § 48.2 ............................................................... 8

28 C.F.R. § 48.2(d) ........................................................ 10

vii

28 C.F.R. § 48.16 ........................................................... 10

Andrew Backover, York’s 2 Dailies Target

Different Audiences, Denver Newspaper Bus. (July 23, 2000), https://extras.denverpost.com/business/joa0723a.

htm ............................................................................ 20

David Eggert & Dustin Walsh, Bound

Together for 36 Years, Detroit’s 2 Daily

Newspapers Go Their Separate Ways,

Crain’s Detroit Bus. (Dec. 26, 2025),

https://www.crainsdetroit.com/mediamarketing/detroit-news-free-presssplit-joint-operating-agreement-ends ............19-20

Las Vegas Sun, https://lasvegassun.com

(last visited Jan. 12, 2026) ...................................... 21

Newspaper Preservation Act Regulations,

39 Fed. Reg. 7 (Jan. 2, 1974) .................................... 8

Neal Rubin, Detroit Free Press, Detroit

News to End Joint Operating Agreement at End of 2025, Detroit Free Press

(updated June 16, 2025), https://www.

freep.com/story/news/local/michigan/20

25/06/16/detroit-free-press-news-joint-o

perating-agreement/84226824007 ........................ 20

Joe Strupp, Papers Swapped in York, Pa.,

Editor & Publisher (May 5, 2004),

https://www.editorandpublisher.com/

stories/papers-swapped-in-york-pa,

107800 ....................................................................... 20

viii

Dustin Walsh, Can Detroit’s 2 Daily Newspapers Survive Independently?, Crain’s

Detroit

Bus.

(June

17,

2025),

https://www.crainsdetroit.com/media/

can-detroit-news-and-detroit-free-press

-survive-independently .......................................... 19

1

INTRODUCTION

In the more than fifty-five-year history of the Newspaper Preservation Act (NPA), Pub. L. No. 91-353, 84

Stat. 466 (1970) (codified at 15 U.S.C. §§ 1801-1804), the

issues petitioner claims are implicated by the petition

have in petitioner’s own telling generated only one published appellate opinion (and only three appellate opinions in total) prior to this case. That number will stay

where it is: as of the beginning of 2026, this is the last

surviving JOA in the nation. In fact, no newspapers

have formed a JOA in a new market in over 35 years. As

Petitioner Las Vegas Sun, Inc. (the Sun), acknowledges,

“JOAs are an endangered species.” Pet. 27. That reality

means that were this Court to grant review, its ruling

would have significance in no cases, present or future,

other than this one.

None of this is surprising in light of the digital revolution in media since the NPA’s passage. Long before

the dawn of the internet, Congress enacted the NPA to

govern arrangements between competing newspapers

that seek to combine print and back-office operations in

order to save the one of them that is a failing newspaper.

The statute calls these arrangements “joint newspaper

operating arrangements” or “joint operating arrangements,” and they are typically (and herein) referred to

as “JOAs.” Under certain circumstances, the NPA provides antitrust immunity to the newspapers that enter

into these agreements.

Today, decades later, readers have access to a vast

trove of news sources and a diversity of views and viewpoints, including (for those in Las Vegas and elsewhere)

the digital product the Sun produces, which includes the

2

contents of the Sun print section, and, as the Sun touts,

much more. The Sun’s digital operations and their contribution to the marketplace of ideas are not part of this

litigation.

Even putting aside that this case arises under a statute at the very end of its useful life, this case is a poor

candidate for the Court’s review. First, although the Sun

purports to present a single question, see Pet. i, that

framing amalgamates two distinct questions, which

were briefed and resolved separately below. The first

question is whether, when Congress wrote in Section

4(b) of the NPA that “it shall be unlawful” to “enter into,

perform, or enforce” a JOA without the written consent

of the Attorney General, the NPA means an unapproved

JOA is, as the statute says, unlawful, or whether instead

such a JOA merely lacks antitrust immunity and thus

might be lawful. The second question is whether the

characterization of a JOA as “amended” exempts it from

Section 4(b)’s preapproval requirement and the consequences of non-approval. The Sun’s petition blurs these

clear lines.

Second, whether jumbled into a single question or

taken separately on their own terms, there is no meaningful split of authority. For one thing, the petition identifies just one published decision in conflict with the

decision below (and it is only even arguably in conflict

with regard to the first question): Newspaper Guild v.

Levi, 539 F.2d 755 (D.C. Cir. 1976), which upheld an

agency construction of the NPA that the Ninth Circuit

here rejected. But tension between the two decisions is

no cause for this Court’s concern. As the Ninth Circuit

observed, Newspaper Guild was decided in an era of

3

statutory interpretation when (1) clear statutory text often was put aside as courts wandered through legislative

history to assess perceived congressional purpose, and

(2) courts generally deferred to agencies’ constructions

of statutes. That is not how statutory interpretation

works anymore. There is no need for this Court to grant

certiorari to confirm what all Circuits (exemplified by

the Ninth Circuit below) now understand: text is paramount in statutory-interpretation disputes.

As to the second question, which relates to the application of the NPA to amendments of JOAs, there is no

conflict at all. The only prior case the petition identifies

discussing amended JOAs is the Sixth Circuit’s unpublished decision in Mahaffey v. Detroit Newspaper

Agency, 166 F.3d 1214 (Table), 1998 WL 739902 (6th Cir.

1998). But, as the Ninth Circuit correctly observed, Mahaffey resolved a question not presented here. Pet. App.

33a n.7. There simply is no split.

Third, with no practical importance to these issues

and no meaningful split, the petition principally presents

a request for error correction. However, the Ninth Circuit’s unanimous opinion correctly resolved both issues

raised by the petition by straightforwardly applying the

NPA’s clear text. Notably, the petition offers no serious

argument to the contrary.

With respect to the first issue, the text could not be

clearer. Section 4(b) of the NPA governs JOAs not already in effect when the NPA became law on July 24,

1970. See 15 U.S.C. § 1803(b). That provision affords antitrust immunity to such JOAs if the Attorney General

provides “prior written consent.” Ibid. Without this

preapproval, Section 4(b) declares that “[i]t shall be

4

unlawful for any person to enter into, perform, or enforce” such a JOA. Ibid. This text supports just one

meaning: when Congress wrote that a JOA without Attorney General preapproval “shall be unlawful,” Congress meant that a JOA without Attorney General

preapproval “shall be unlawful.”

The Sun argues that the phrase “shall be unlawful”

actually means “may be lawful.” The Sun has no textual

theory to support that position. In fact, the Sun criticizes the decision below for relying too much on the

NPA’s text and not enough on “legislative history and

other indicators.” Pet. 23. Though Newspaper Guild,

the Sun’s preferred case analyzing this issue, relied principally on legislative history, that approach is no longer

consistent with this Court’s precedent. The Ninth Circuit got it right.

The second issue implicated by the petition is equally

clear. The parties here received written consent for a

JOA in 1989, but later entered into a new JOA in 2005,

which terminated the preexisting JOA and overhauled

its terms, all without the Attorney General’s consent.

The Sun contends that the 2005 JOA—and, indeed,

every amended post-1970 JOA—is entirely outside the

statutory scheme that requires Attorney General consent. However, again, as the Ninth Circuit correctly

concluded, the NPA’s text refutes that position. An

amended agreement is still a “contract, agreement, . . .

or other arrangement” and, thus, covered by the statutory definition of a JOA. 15 U.S.C. § 1802(2). The text

of Section 4(b) makes no special rule for amended JOAs;

if an arrangement meets the statutory definition, then it

is “unlawful” absent Attorney General consent,

5

regardless of whether the parties previously had a JOA.

Id. § 1803(b). This clear text makes perfect sense. Under the Sun’s atextual reading, parties to an approved

agreement could simply “amend” it in a way that radically changed the agreement’s impact on competition

without any Attorney General review at all.

Fourth, this case is a particularly inappropriate one

in which to address how the NPA applies to “amendments,” because the 2005 JOA is plainly a new agreement, not a mere amendment. The 2005 JOA expressly

terminated the 1989 agreement, and it substantially rewrote the arrangement in ways that materially change

its competitive implications, including merging the subscriber bases of the two newspapers and agreeing not to

compete in particular geographic areas.

Finally, the case arrives at this Court in an awkward

posture. The Review-Journal appealed the denial of its

motion to dissolve a stipulated-to injunction. In the

court of appeals, the Sun argued that appellate jurisdiction is lacking because (1) the district court’s order denying the Review-Journal’s motion is not appealable and

(2) the Review-Journal lacks standing to appeal. Although the Ninth Circuit correctly rejected these arguments and the petition does not mention them, they are

jurisdictional and unwaivable. Granting review at this

interlocutory stage would thus embroil the Court in

these threshold jurisdictional disputes, making this a

poor vehicle for addressing the other questions presented.

The petition should be denied.

6

STATEMENT OF THE CASE

A.

Legal Background

1. The first newspaper joint operating arrangement

was formed in 1933 in Albuquerque, New Mexico. Mich.

Citizens for an Indep. Press v. Thornburgh, 868 F.2d

1285, 1287 (D.C. Cir.), aff’d by an equally divided Court,

493 U.S. 38 (1989). As of 1966, there were 22 JOAs in

effect nationwide. Ibid. By that time, however, the Department of Justice (DOJ) was investigating these arrangements for violating federal antitrust law. Ibid. In

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

(1969), this Court upheld a verdict finding that the Tucson, Arizona, agreement violated the Sherman and Clayton Acts. Id. at 133-136. Concern about what that ruling

portended for other joint operating arrangements led to

the enactment of the NPA in 1970. See Newspaper Guild

v. Levi, 539 F.2d at 763 (Tamm, J., dissenting).

2. The NPA defines “joint newspaper operating arrangement” (as well as the synonymous term “joint operating arrangement,” see Pet. App. 23a-24a) to mean

any “contract, agreement, joint venture . . . , or other arrangement entered into by two or more newspaper owners.” NPA, § 3(2), 84 Stat. at 466 (codified at 15 U.S.C.

§ 1802(2)). An arrangement is a JOA subject to the NPA

if it satisfies two main criteria. First, the arrangement

must be one under which “joint or common production

facilities are established or operated.” Ibid. Second,

“joint or unified action [must be] taken or agreed to be

taken” with respect to at least one enumerated activity

7

relating to printing, marketing, circulation, and back-office operations. Ibid.1

The NPA then creates two separate rules, one for

JOAs already in existence at the time of the statute’s enactment and one for those arising later.2 For pre-1970

JOAs, the NPA declares, “[i]t shall not be unlawful under any antitrust law” to “perform, enforce, renew, or

amend” any JOA “entered into prior to the effective date

of th[e] Act,” so long as the JOA satisfied certain conditions when it was “first entered into,” § 4(a), 84 Stat. at

467 (codified at 15 U.S.C. § 1803(a)) (including that no

more than one of the newspapers involved was

“[un]likely to remain or become a financially sound publication”). Section 4(a) also requires that the terms of

renewals of or amendments to pre-1970 JOAs be filed

with DOJ and that any amendments not add new newspapers to the arrangement. Ibid.

The NPA’s rule for post-1970 JOAs is more stringent. Section 4(b) of the NPA provides, “[i]t shall be unlawful for any person to enter into, perform, or enforce a

joint operating arrangement, … except with the prior

1 A proviso to the definition of JOA requires that arrangements

maintain separateness of the newspapers’ editorial and reportorial

staffs and independence of their editorial policies. NPA § 3(2), 84

Stat. at 466.

2 For simplicity, this brief refers to JOAs “entered into prior to the

effective date of [the NPA],” § 4(a), 84 Stat. at 467, as “pre-1970

JOAs,” and those “not already in effect” at the time of the NPA’s

enactment, § 4(b), 84 Stat. at 467, as “post-1970 JOAs.” The precise

cutoff date is July 24, 1970. See 15 U.S.C. § 1803(a). It is undisputed

that the parties here had no JOA before 1989. See Pet. 10-11; Pet.

App. 6a-7a.

8

written consent of the Attorney General.” NPA § 4(b),

84 Stat. at 467 (codified at 15 U.S.C. § 1803(b)). Before

providing that preapproval, the Attorney General must

determine that either all or all but one of the newspapers

involved are “failing,” and that the approval would effectuate the NPA’s enacted policy and purpose. Ibid.3

3. In 1970s-era regulations implementing the NPA,

DOJ took the position that the NPA “does not require

that all [JOAs] obtain the prior written consent of the

Attorney General.” 28 C.F.R. § 48.1; see Newspaper

Preservation Act Regulations, 39 Fed. Reg. 7, 7 (Jan. 2,

1974); accord 15 U.S.C. § 1803(a). Instead, DOJ interpreted the NPA to “provide a method for newspapers to

obtain the benefit of a limited exemption from the antitrust laws if they desire to do so.” 28 C.F.R. § 48.2. Most

relevant here, DOJ interpreted Section 4(b) of the NPA

to provide that if newspapers entered into post-1970

JOAs without preapproval, those arrangements would

“remain fully subject to the antitrust laws,” but would

not necessarily be unlawful. 28 C.F.R. § 48.1. In Newspaper Guild, a sharply divided D.C. Circuit panel held

that this regulation was consistent with the NPA. 539

F.2d at 758-61. Judge Tamm dissented, accusing the majority of ignoring “the choice Congress actually made,”

id. at 761 (Tamm, J., dissenting), as reflected in the “language of the Act,” id. at 762 (Tamm, J., dissenting). See

id. at 761-67 (Tamm, J., dissenting). Apart from the

3 The NPA defines “failing newspaper” as one “in probable danger

of financial failure,” § 3(5), 84 Stat. at 466, a more dire prognosis

than Section 4(a)’s requirement that the newspaper be unlikely to

stay “financially sound,” § 4(a), 84 Stat. at 467.

9

decision below, there has been no other published Circuit opinion interpreting this aspect of the regulations.

B.

Factual Background

1. By 1989, the Sun was on the verge of financial collapse. Pet. App. 7a. That year, in an effort to save the

Sun’s failing paper, the Review-Journal agreed to enter

into a JOA with the Sun. Id. at 6a-7a. Pursuant to Section 4(b) of the NPA, the 1989 JOA was approved by Attorney General Thornburgh. Id. at 6a-8a.

Under the 1989 JOA, the Sun and the Review-Journal pooled their profits, and the Review-Journal supported the Sun by providing direct cash payments and

by handling all back-office operations, Pet. 10; Pet. App.

7a, 37a, but the two newspapers maintained distinct circulation. In particular, the Review-Journal’s ownership

took responsibility for advertising, printing, and managing the joint operations for the newspapers. Pet. 10; Pet.

App. 7a. The Review-Journal was published as a morning paper; the Sun was published as an afternoon paper;

and the two had separate subscriber bases. Id.

2. In 2005, to resolve the growing number of disputes that had arisen under the 1989 JOA and in light of

changed newspaper industry economics, the parties executed a new JOA that substantially changed the competitive impact of the deal. Pet. App. 8a. Under the 2005

JOA, the two newspapers would no longer compete for

subscribers. Rather, the Sun would cease to be circulated as a standalone newspaper and instead the Review-Journal agreed to distribute it as a 6-to-10-page

insert within the Review-Journal newspaper. Ibid. The

parties also newly agreed, among other things, not to

10

publish any additional daily newspapers in Southern Nevada. 3 C.A. ER 487. Although the parties labeled the

2005 JOA an “amended and restated agreement,” the

2005 JOA expressly terminated the 1989 JOA and released the parties from any obligations and claims arising from their prior agreement. Id. at 487-88.

The 2005 JOA also overhauled the financial arrangement between the ownership groups. For instance, under the 1989 JOA, the Sun received a fixed percentage

of profits; under the 2005 arrangement, the Sun receives

an annual payment based on a complex formula. Pet.

App. 7a-8a. The 2005 JOA also added the Review-Journal’s affiliate newspapers to the profit-sharing pool. 3

C.A. ER 482, 498-501. In addition, while the 1989 JOA

allocated funds for news and editorial expenses, the 2005

JOA states that each newspaper bears its own editorial

costs and establishes its own budget. Id. at 479; see 4

C.A. ER 677-79.

The parties did not obtain the Attorney General’s

prior written consent before entering into the 2005

JOA.4 Instead, the parties submitted the agreement to

DOJ pursuant to the regulation (28 C.F.R. § 48.16) that

governs filing the terms of renewals or amendments of

pre-1970 JOAs under NPA Section 4(a). Pet. App. 8a9a.5 DOJ investigated the 2005 JOA for several years

4 Respondents did not yet have any involvement with the Review-

Journal and had no involvement in forming the 2005 JOA.

5 Section 48.16 governs the “renewal of or an amendment to the

terms of an existing arrangement.” 28 C.F.R. § 48.16. The applicable regulations define “existing arrangement” to mean a JOA “entered into before July 24, 1970,” id. § 48.2(d). Therefore, the parties’

1989 JOA was not an “existing arrangement” under the regulations.

11

but ultimately took no action. Id. at 9a. In its 2008 noaction letter, DOJ declined to give Attorney General

consent to the arrangement, instead informing the parties that the Antitrust Division had “closed its investigation,” but its decision “was not based on a conclusion that

the 2005 amendments to the parties’ [JOA] are protected

by the antitrust immunity afforded by the [NPA].” 3

C.A. ER 427; see Pet. App. 9a. The letter stated that the

parties’ conduct pursuant to the 2005 JOA “remain[ed]

subject to antitrust scrutiny.” 3 C.A. ER 427; see Pet.

App. 9a.

3. In 2015, the Review-Journal underwent two ownership changes, ultimately being purchased by an entity

related to members of the Adelson family, who are longtime residents of Las Vegas (the entity is one of the respondents, here). 3 C.A. ER 410. By that point, the

relationship between the two newspaper companies had

soured, leading to contentious arbitrations and statecourt litigation related to accounting for profit sharing

and other issues. Pet. App. 9a.

In 2019, the Review-Journal obtained leave from the

Nevada state court to assert counterclaims against the

Sun for the Sun’s material breaches of the 2005 JOA,

which could be grounds for terminating the agreement.

Ibid.

In response, the Sun (which had initiated the statecourt action) filed this suit in federal court, seeking to

stop the Review-Journal from pursuing its state-court

counterclaim to terminate the 2005 JOA. Pet. App. 9a10a.

12

C.

Procedural History

1. In this federal suit, the Sun argued that the Review-Journal’s actions not only breached the contract,

but also violated federal antitrust law. Pet. App. 9a-10a.

The Sun sought an injunction that would, inter alia, prohibit the Review-Journal from taking steps to terminate

the 2005 JOA. Pet. App. 10a. The Review-Journal stipulated to the entry of a preliminary injunction that

would “maintain the status quo” while also preserving

the parties’ respective rights and arguments. D. Ct.

Doc. 13, ¶ 7 (Oct. 9, 2019) (Stipulation); see Pet. App. 10a.

In October 2019, the district court entered an order under which the Review-Journal would “‘continue to perform under the 2005 JOA,’ and . . . 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.’”

Pet. App. 10a (quoting Stipulation ¶ 7).

Because the complaint alleged that DOJ had “permitted” the 2005 JOA under the NPA, the district court allowed the case to go to discovery without resolving

whether the 2005 JOA was unlawful. See Pet. App. 11a.

2. In the years that followed, no evidence was produced showing that the Attorney General had provided

“prior written consent,” 15 U.S.C. § 1803(b), to the 2005

JOA, and it is now undisputed that, contrary to the allegations the Sun made, the Attorney General did not do

so, see Pet. 12. In June 2023, the Review-Journal moved

for dissolution of the stipulated preliminary injunction

on the ground that, given the lack of preapproval, Section 4(b) of the NPA made performance or enforcement

of the 2005 JOA “unlawful.” Pet. App. 11a. The Review-

13

Journal also sought summary judgment on the same issue.

The district court granted summary judgment to the

Sun on this issue and denied the Review-Journal’s motion to dissolve the injunction. Pet. App. 52a-60a. The

court interpreted Section 4(b) of the NPA to govern only

the initial JOA between two parties, but not amended

JOAs. In the district court’s view, amended post-1970

JOAs are JOAs “already in effect” (the phrase used in

Section 4(b) to refer to pre-1970 JOAs) and thus do not

require prior written consent. 15 U.S.C. § 1803(b); see

Pet. App. 55a-56a. Instead, the court concluded that

amendments to all JOAs—whether the JOA to be

amended was entered into before or after the NPA’s enactment—are governed by Section 4(a)’s more lenient

notice requirement. Pet. App. at 56a. In addition, the

district court deemed the 2005 JOA to be an amended

JOA (subject, under the district court’s pronouncement,

to Section 4(a)), rather than a new JOA (which even under the district court’s rationale would be subject to Section 4(b)). Id. at 57a-60a.

The district court went yet further: it held that, even

if the 2005 JOA were a new JOA, it would not be unlawful, despite the plain language of the NPA. See Pet. App.

60a. As the district court saw it, “unlawful” does not

mean “unlawful.” According to the district court, even

if Section 4(b) governed, the “absence of the Attorney

General’s signature may expose the parties to antitrust

liability but does not invalidate the JOA or render i[t]

unlawful or unenforceable.” Ibid.

3. The Review-Journal appealed to the Ninth Circuit, challenging all three of the district court’s

14

conclusions. The Review-Journal explained that (1) the

district court was wrong that Section 4(b) merely offers

antitrust immunity but does not provide that unapproved JOAs are unlawful, C.A. Appellants’ Br. at 53-57;

(2) Section 4(b)’s consent requirement applies to all post1970 arrangements meeting the statutory definition of a

JOA, regardless of whether they are “new” or

“amended,” id. at 34-48; and (3) in any event, the 2005

JOA was a new JOA and not a mere amendment, id. at

49-52.

In its response, the Sun pressed two objections to appellate jurisdiction. First, it argued that the Ninth Circuit lacked appellate jurisdiction to review the district

court’s order under Carson v. American Brands, Inc.,

450 U.S. 79 (1981), because (in the Sun’s view) the Review-Journal had failed to demonstrate irreparable

harm. C.A. Appellee’s Br. 24-29. Second, the Sun argued that the Review-Journal lacked standing to appeal

the denial of its motion because it was insufficiently aggrieved by the district court’s order. Id. at 29-30.6

As to the merits, the Sun made three arguments relevant to this petition. First, the Sun agreed with the

district court that the failure to obtain Attorney General

consent did not render the 2005 JOA unlawful, notwithstanding Congress’s use of the term “unlawful.” See

C.A. Appellee’s Br. 51-56. Second, the Sun maintained

that agreements to amend post-1970 JOAs were not

6 The Sun additionally argued that the district court lacked author-

ity to modify the injunction because of insufficient change in the circumstances. C.A. Appellee’s Br. 30-33. The court of appeals

rejected that argument, Pet. App. 15a n.2, and the Sun does not pursue it here. It is thus waived.

15

subject to Attorney General review at all. Id. at 36-47.

Third, the Sun argued the 2005 Agreement was a mere

amendment, rather than a new agreement. Id. at 48-50.

4. The Ninth Circuit unanimously reversed. Pet.

App. 1a-34a.

a. The Ninth Circuit first concluded it had appellate

jurisdiction to review the district court’s order. Pet.

App. 12a-15a. The court explained that the denial of the

Review-Journal’s motion to dissolve the preliminary injunction “‘f[ell] squarely within the language of [28

U.S.C. §] 1292(a)(1),’” and the court “therefore ha[d] jurisdiction over the[] appeal without the need for any further showing.” Pet. App. 13a (quoting Nat. Res. Def.

Council v. County of Los Angeles, 840 F.3d 1098, 1101

(9th Cir. 2016)). Under Ninth Circuit precedent, the

court noted, the need to show irreparable harm under

Carson applies “only to non-injunctive orders that are

claimed to have the practical effect of denying an injunction.” Id. at 13a-14a (internal quotation marks omitted).

The Ninth Circuit likewise concluded that its precedent

foreclosed the Sun’s argument that the Review-Journal

lacked appellate standing. Id. at 14a-15a.

b. On the merits, the court of appeals first held that

if Section 4(b) governed, then the 2005 JOA was necessarily unlawful. Pet. App. 16a-22a. The court acknowledged that the D.C. Circuit’s divided decision in

Newspaper Guild a half-century earlier had upheld a

regulation providing that failure to obtain Attorney

General consent “merely meant that the parties lacked

any antitrust exemption under the NPA” but did not

render the JOA unlawful. Id. at 17a (citing 539 F.2d at

760-761). However, the Ninth Circuit “reject[ed] this

16

reading as squarely foreclosed by the plain language of

the statute.” Ibid.; see id. at 17a-21a.

The court of appeals further held that the 2005 JOA

was governed by Section 4(b) of the NPA. Pet. App. 22a33a. As the court explained, that would be the case “if

the 2005 JOA counts as ‘[1] a joint operating arrangement, [2] not already in effect.’” Id. at 16a (alterations in

original); see id. at 22a.

The court examined the NPA’s definition of a “joint

operating arrangement” and found that the 2005 JOA

qualified, rejecting the Sun’s argument that the parties’

“common production facilities” were both “established”

and “operated” under the 1989 JOA, not the 2005 JOA.

15 U.S.C. § 1802(2); see Pet. App. 24a-25a.7 The court

further held that Section 4(b)’s reference to JOAs “not

already in effect” referred to JOAs not in effect as of the

enactment of the NPA, a conclusion it deemed “unmistakabl[e]” under the statutory text. Pet. App. at 26a; see

id. at 26a-33a. Thus, because the 2005 JOA postdated

the NPA’s enactment, it was subject to Section 4(b)’s

preapproval requirement. Id. at 33a.8

Having determined that (1) the 2005 JOA was governed by Section 4(b) and (2) the parties had not

7 The court of appeals explained that although the NPA defines the

term “joint newspaper operating arrangement,” 15 U.S.C. § 1802(2)

(emphasis added), whereas Section 4(b) uses the term “joint operating arrangement” simpliciter, id. § 1803(b), statutory context

makes clear that the two terms are synonymous. Pet. App. 23a-24a.

The Sun does not contest that conclusion here.

8 The Ninth Circuit thus did not decide whether the 2005 JOA was

a new agreement or an amended agreement. See Pet. App. 32a-33a.

17

obtained the Attorney General’s consent, the Ninth Circuit concluded that “the 2005 JOA is unlawful and unenforceable.” Pet. App. 33a. On that basis, the court held

that the preliminary injunction should have been dissolved. Id. at 33a-34a.

5. The court of appeals denied rehearing, with no

judge requesting a vote of the full court. Pet. App. 102a103a.

REASONS FOR DENYING THE PETITION

The Sun purports to identify an important split of authority warranting this Court’s review. However, review is not warranted here.

For starters, the question presented has no legal consequence outside of this litigation. The 2005 JOA is the

last remaining JOA in the United States, and no JOA has

been formed in a new market since 1990. That is no surprise, as the digital revolution in the decades since Congress enacted the NPA has rendered mergers of local

print newspapers largely irrelevant and entirely unnecessary for news publishers like the Sun to maintain their

voice. Questions about the proper construction of the

NPA are therefore unlikely ever to arise again.

As for the Sun’s purported circuit split, there is nothing worthy of this Court’s attention. The only precedential opinion addressing (half of) the question the Sun

presents is Newspaper Guild v. Levi, 539 F.2d 755 (D.C.

Cir. 1976). Newspaper Guild is a 50-year-old ruling reflecting “wholesale disregard of the statutory text[, an

approach that] is a ‘relic from a bygone era of statutory

construction’ that . . . is flatly contrary to current Supreme Court authority,” Pet. App. 20a-21a (quoting

18

Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427,

436-37 (2019) (citation omitted)), and which arose in an

era in which agency deference, not plain text, ruled the

day, see id. at 21a-22a. As for the question whether Section 4(b) applies to “amendments,” there is no circuit

split at all; moreover, that portion of the question presented is irrelevant, because the 2005 JOA is not an

amendment, but is instead a new agreement.

The Ninth Circuit’s decision is also correct. The

NPA declares unequivocally that post-1970 JOAs “shall

be unlawful” unless the Attorney General provides prior

written consent. 15 U.S.C. § 1803(b). And the 2005 JOA

plainly falls within that rule of illegality, as it satisfies

the NPA’s definition of a JOA. The Sun offers no coherent response to these straightforward textual arguments.

Nor is this case a clean vehicle for resolving the question presented. The Sun argued in the Ninth Circuit that

the court lacked jurisdiction and that the Review-Journal lacks standing to pursue this interlocutory appeal.

Although the Ninth Circuit properly rejected the Sun’s

arguments, they remain a part of the case this Court

would be unable to overlook.

This Court should deny review.

19

I.

THERE IS NO SPLIT OF AUTHORITY THAT

WARRANTS THIS COURT’S REVIEW.

A.

The Question Presented Is Unimportant

Because the Newspaper Preservation Act

Is Moribund.

This case concerns newspaper JOAs, which the Sun

acknowledges (Pet. 27) are an “endangered species.”

That is an understatement. In truth, JOAs are all but

extinct.

1. When Congress enacted the NPA in 1970 on the

heels of this Court’s decision in Citizen Publishing,

there were at least 22 JOAs operating. See Mich. Citizens, 868 F.2d at 1287. In addition, of course, print media

was far more important in that pre-internet era. Today,

JOAs are a thing of the past: when the Ninth Circuit issued the decision below, the JOA at issue here was one

of just two remaining nationwide. The other involved an

arrangement between Detroit newspapers. See id. at

1288-89.9

Now, even that lone other JOA is gone. Since the

Sun filed its petition, the Detroit JOA has dissolved,

leaving this Las Vegas JOA the only JOA remaining in

the entire United States.10 Of course, the NPA remains

9 See also Dustin Walsh, Can Detroit’s 2 Daily Newspapers Survive

Independently?, Crain’s Detroit Bus. (June 17, 2025), https://www.

crainsdetroit.com/media/can-detroit-news-and-detroit-free-presssurvive-independently.

10 See David Eggert & Dustin Walsh, Bound Together for 36 Years,

Detroit’s 2 Daily Newspapers Go Their Separate Ways, Crain’s Detroit Bus. (Dec. 26, 2025), https://www.crainsdetroit.com/media-

20

on the books, but no JOA has been formed in a new market since the York, Pennsylvania JOA in 1990.11 A ruling

in this case would impact no one other than the parties

to this case. And, no future disputes are likely to arise

under the statute, rendering any tension between the

D.C. Circuit and the Ninth Circuit irrelevant.

2. The Sun makes two arguments for why this NPA

dispute deserves this Court’s attention even though the

NPA applies only to this JOA. Neither is sound.

First, the Sun warns (Pet. 27-28) that if it is no longer

able to continue its print publication, Nevadans will lose

access to “competing editorial viewpoints that are critical to an informed democracy.” Pet. 27. No one questions the importance of access to multiple viewpoints,

but removing a short insert from the Review-Journal

print publication will not deprive anyone of meaningful

access to news and opinion. Regardless of the outcome

of this case, the Sun will persist as an online publication;

nothing in the record suggests that the Sun’s website is

marketing/detroit-news-free-press-split-joint-operating-agreeme

nt-ends; Neal Rubin, Detroit Free Press, Detroit News to End Joint

Operating Agreement at End of 2025, Detroit Free Press (updated

June 16, 2025), https://www.freep.com/story/news/local/michigan

/2025/06/16/detroit-free-press-news-joint-operating-agreement/84

226824007.

11 See Andrew Backover, York’s 2 Dailies Target Different Audi-

ences, Denver Newspaper Bus. (July 23, 2000), https://extras.denverpost.com/business/joa0723a.htm; Joe Strupp, Papers Swapped

in York, Pa., Editor & Publisher (May 5, 2004), https://www.editorandpublisher.com/stories/papers-swapped-in-york-pa,107800.

21

in danger.12 Additionally, of course, Nevadans will still

have access—via television, radio, internet, apps,

streaming and even print—to countless sources of news

and opinion from a vast array of sources other than the

parties here.13

The Sun further claims (Pet. 28-29) the decision below warrants review because it “generically invalidated

an unknown number of the DOJ NPA regulations,” leaving the newspaper industry to “guess[] which regulations still apply and which do not.” Pet. 28. That is wrong

The Ninth Circuit did not purport to vacate any regulations (DOJ was not even a party), and it disagreed with

DOJ’s reasoning only as to 28 C.F.R. § 48.1, the regulation upheld in Newspaper Guild. More to the point, even

if an unknown number of NPA regulations were invalidated, that would be of no practical significance since

these regulations, like the statute they implement, are

largely a dead letter.

B.

There Is No Meaningful Split.

The Sun suggests (Pet. 19-22) the decision below resolved the question the Sun presents differently from

three prior cases—the D.C. Circuit’s decision in Newspaper Guild and two unpublished decisions of the Sixth

Circuit. In reality, none of these cases addressed the

12 See Las Vegas Sun, https://lasvegassun.com (last visited Jan. 12,

2026).

13 The Sun complains (Pet. 14) it “sacrificed its own publishing ca-

pability” in reliance on a relationship with the Review-Journal. In

reality, the Sun would have folded without the Review-Journal’s

agreeing to take on the time, effort, and cost of carrying it, so the

Sun cannot be heard to complain of reliance interests.

22

composite question the petition presents (Pet. i). Two of

the cases (Newspaper Guild and News Weekly) addressed whether JOAs governed by Section 4(b) of the

NPA are unlawful if they do not receive written consent

from the Attorney General, without discussing amended

JOAs at all. The third (Mahaffey) decided a question related to amendments distinct from the question presented here. Any conflict on these issues, whether the

questions are correctly analyzed separately or awkwardly considered in a bundle, is unworthy of this

Court’s review.

1. a. In Newspaper Guild, the D.C. Circuit upheld

a DOJ regulation providing that post-1970 JOAs without

Attorney General preapproval are not unlawful. 539

F.2d at 758-61. The Sun notes (Pet. 19-20) that the decision below departed from Newspaper Guild. However,

the Ninth Circuit’s disagreement with Newspaper Guild

does not warrant this Court’s attention. While Newspaper Guild upheld DOJ’s construction of the NPA, see 539

F.2d at 755-56, the D.C. Circuit’s approach in doing so a

half-century ago is entirely out of step with current law.

Rather than engage with Section 4(b)’s text, the

Newspaper Guild majority’s analysis focused on drafting history, committee reports, and floor statements.

See 539 F.2d at 757-60. The majority believed itself free

to disregard what a “rigidly literal reading of [the text]

undeniably provides,” id. at 757, because the majority

was “unable to locate statements [in the legislative history],” id. at 760, confirming what the text said. Despite

that plain text, the D.C. Circuit rejected the notion that

the NPA made unlawful certain JOAs that might have

been lawful prior to the enactment of the NPA, because

23

the majority “found no evidence in the record or, . . . in

any public debate indicating” Congress desired that result. Id. at 760.

Newspaper Guild’s approach to statutory interpretation is a “relic” of that time. Food Mktg. Inst. v. Argus

Leader Media, 588 U.S. 427, 436-37 (2019). As the Newspaper Guild dissent noted, the majority “rejected a plain

meaning rule which forbids consideration of legislative

history when the language of the statute is clear and unambiguous.” 539 F.2d at 762 n.1 (Tamm, J., dissenting).

That is not how statutory interpretation works today.

See, e.g., Bostock v. Clayton County, 590 U.S. 644, 674

(2020) (“legislative history can never defeat unambiguous statutory text . ..”); State Farm Fire & Cas. Co. v.

United States ex rel. Rigsby, 580 U.S. 26, 36-37 (2016)

(“because the meaning of the [statutory] text and structure is ‘plain and unambiguous, we need not . . . consider

the legislative history’” (quoting Whitfield v. United

States, 543 U.S. 209, 215 (2005))).

Similarly, Newspaper Guild arose when courts deferred to agency statutory constructions, and the question of deference played an important role in the D.C.

Circuit’s decision-making. See 539 F.2d at 761-62

(Tamm, J., dissenting). Such deference, too, is of a bygone era. Pet. App. 21a-22a (citing Loper Bright Enters.

v. Raimondo, 603 U.S. 369 (2024)).

Given Newspaper Guild’s focus on legislative history—and its express disregard for the NPA’s text—it

is inconceivable that any other Circuit would find its

analysis persuasive. Today, consistent with this Court’s

directions, all federal courts are forbidden to look beyond unambiguous statutory text.

Additionally,

24

deference to agency interpretations is no more. See

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 391-92

(2024).

Given this Court’s clear commands in the years since

Newspaper Guild, it is highly questionable whether

even the D.C. Circuit itself would follow Newspaper

Guild today, particularly now that the Ninth Circuit has

rejected the 1976 panel majority’s analysis. To the extent Newspaper Guild is precedent, it hangs by the

slightest of threads. That sort of “conflict” does not

merit review.

b. The Sun also claims (Pet. 21) that the decision below conflicts with News Weekly Systems, Inc. v. Chattanooga News-Free Press, 986 F.2d 1422 (Table), 1993 WL

47197 (6th Cir. 1993). News Weekly offers no help for

petitioner. For starters, as an unpublished decision,

News Weekly is not precedent even within the Sixth Circuit, see 6th Cir. R. 32.1(b); indeed, it had never been

cited in any judicial decision before this case. The decision also contains no independent analysis of the NPA; it

simply notes the holding of Newspaper Guild and accepts it, observing that the appellant had made no effort

to explain why the D.C. Circuit was wrong. News

Weekly, 1993 WL 47197, at *2 (citing Newspaper Guild,

539 F.2d at 760). News Weekly thus adds nothing to

Newspaper Guild.

2. The Ninth Circuit held that if an arrangement

meets the NPA’s definition of a JOA, then it is subject to

Section 4(b) regardless of whether it is an “amendment.”

Pet. App. 22a-33a. The Sun argues (Pet. 21-22) that this

conclusion conflicts with the Sixth Circuit’s unpublished

decision in Mahaffey. It does not.

25

Preliminarily, like News Weekly, Mahaffey is unpublished and thus not precedential. See 6th Cir. R.

32.1(b). Indeed, aside from the decisions in this case,

Mahaffey has been cited only once by any court—and

that was twenty years ago, by an out-of-circuit district

court, for a proposition unrelated to the NPA. See

Rosenthal Collins Grp., LLC v. Trading Techs. Int’l,

Inc., No. 05-cv-4088, 2005 WL 3557947, at *5 (N.D. Ill.

Dec. 26, 2005).

On the merits, the Sun is wrong that Mahaffey is inconsistent with the decision below. See Pet. App. 33a n.7

(distinguishing Mahaffey). Mahaffey involved the nowdefunct Detroit JOA. 1998 WL 739902, at *1. The newspapers had obtained the Attorney General’s consent for

their initial, post-1970 JOA. However, their JOA “did

not address the contingency of a strike” that might make

it impossible to issue two separate newspapers each

weekday, ibid., so the parties later appended a new provision to their JOA, under which a joint publication was

authorized in the event of a strike. Ibid.

The appellants in Mahaffey argued that the newspapers’ “failure to seek and obtain approval of the amendment stripped even the original [JOA] of antitrust

immunity.” 1998 WL 739902, at *2. The panel rejected

that argument, since it “s[aw] no reason to suppose that

Congress intended previously-approved agreements to

be stripped of all protection if amended by the addition

of provisions.” Ibid. That was Mahaffey’s sole holding:

merely adding a new provision (without Attorney General consent) to a previously approved JOA did not expunge the approval of the JOA’s extant provisions.

26

The question Mahaffey resolved is not presented

here. This case involves newspapers that terminated

and replaced their prior agreement with a new JOA containing materially different provisions without obtaining

approval. See pp. 9-11, supra. Whereas in Mahaffey, the

bulk of the contracting parties’ joint operations were undertaken pursuant to the initial, approved JOA, here the

critical operations (and virtually all operations at issue

in the litigation) take place pursuant to the provisions of

the new, unapproved 2005 JOA.

Indeed, with respect to the implications of operating

pursuant to unapproved amendments—the issue here—

Mahaffey “expressly declined to decide that issue,” Pet.

App. 33a n.7, because the appellants lacked standing to

challenge it, id. (citing 1998 WL 739902, at *2). Thus, the

decision below and the unpublished Mahaffey decision

resolved different issues relating to amended JOAs, and

the decisions thus do not conflict.

II.

THE DECISION BELOW IS CORRECT.

With no meaningful split of authority and no realistic

chance its question presented will ever recur, the Sun’s

pitch for this Court’s review devolves into a plea for pure

error correction. The Ninth Circuit, however, properly

resolved the issues presented. Notably, the Sun offers

no meaningful argument to the contrary.

A.

Section 4(b) of the Newspaper Preservation

Act Provides That Unapproved JOAs Are

“Unlawful.”

The Ninth Circuit held that a post-1970 JOA that

does not receive the Attorney General’s “prior written

consent” is “unlawful.” 15 U.S.C. § 1803(b); see Pet. App.

27

15a-22a. The court rejected the Sun’s contrary interpretation of Section 4(b) of the NPA that an unapproved

post-1970 JOA may be lawful as “squarely foreclosed by

the plain language of the statute.” Pet. App. 17a. The

court’s conclusion was correct.

1. As the court of appeals observed, the language of

Section 4(b) is “clear and unequivocal.” Pet. App. 18a.

That language plainly states, “[i]t shall be unlawful . . .

to enter into, perform, or enforce” a post-1970 JOA “except with the prior written consent of the Attorney General.” 15 U.S.C. § 1803(b). If there is no prior written

consent, then the arrangement is simply “unlawful.”

As the court of appeals further noted, this conclusion

is buttressed by the differences in language between

Section 4(b) and Section 4(a), which governs JOAs already in force at the time of the NPA’s enactment. See

Pet. App. 18a-20a. Section 4(a) states, “[i]t shall not be

unlawful under any antitrust law for any person to perform, enforce, renew, or amend” pre-1970 JOAs meeting

certain criteria. 15 U.S.C. § 1803(a) (emphasis added).

Had Congress chosen to repeat the Section 4(a) language in Section 4(b), that language would govern post1970 JOAs just as the Sun proposes: the Attorney General’s preapproval would afford antitrust immunity, and

“the lack of such prior approval would simply mean that

this exemption from the antitrust laws would not apply.”

Pet. App. 18a. Congress’s choice to use distinct language

in Section 4(b) must be respected. See Henson v. Santander Consumer USA, Inc., 582 U.S. 79, 85-86(2017).

2. For its part, the Sun musters no textual argument

to support its position that the phrase “[i]t shall be unlawful” does not mean “it shall be unlawful,” but rather

28

means “it does not have immunity from antitrust laws,

but may or may not be unlawful.” Instead of providing

textual analysis, the Sun criticizes (Pet. 22-24) the Ninth

Circuit for not “consider[ing] legislative history and

other indicators.” Pet. 23.

The Sun fails to justify that anachronistic interpretive maneuver here. It notes (Pet. 22-23) the Ninth Circuit’s recognition that the NPA uses the terms “joint

operating arrangement” and “joint newspaper operating

arrangement” interchangeably, see Pet. App. 23a-24a,

suggesting this imprecise drafting justifies a wide-ranging foray into legislative history. But the Ninth Circuit

found no ambiguity in the statute resulting from this imprecision. Pet. App. 23a-24a. More importantly, the

Ninth Circuit likewise found no ambiguity in the operative language of Section 4(b). Id. at 17a-22a. Imprecision in one part of statute is not license for jettisoning

the entirety of the statute’s text.

The Ninth Circuit correctly rejected the legislativehistory-focused analysis applied in Newspaper Guild.

Pet. App. 20a-21a. As the Ninth Circuit explained, the

D.C. Circuit’s approach reflected a “wholesale disregard

of the statutory text” and a “‘casual disregard of the

rules of statutory interpretation,’” making Newspaper

Guild 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.’” Ibid.

(alteration in original) (quoting Food Mktg., 588 U.S. at

436-37 (citation omitted)). With text as the proper

29

lodestar, the resolution to this issue is not debatable—

and the Sun does not seriously debate it.14

B.

The 2005 JOA Is Governed by Section 4(b)

of the Newspaper Preservation Act.

1. As the court of appeals explained, the question in

this case is whether “the 2005 JOA counts as ‘[1] a joint

operating agreement, [2] not already in effect.’” Pet.

App. 16a (alterations in original) (quoting 15 U.S.C.

§ 1803(b)). If it does, then Section 4(b) applies. See Pet.

App. 16a, 22a.

The 2005 JOA easily meets the NPA’s definition of a

JOA. As the Ninth Circuit noted, it “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.’” Pet. App. 25a (alteration in original)

(quoting 15 U.S.C. § 1802(2)). It is equally clear that

“joint or common production facilities are established or

operated” pursuant to the 2005 JOA. 15 U.S.C. § 1802(2)

(emphasis added). For the past two decades, all of the

newspapers’ joint “operat[ions]” have been undertaken

pursuant to new provisions that the Attorney General

never approved—including their change from selling

separate newspapers with separate subscriber bases to

selling a joint print product with a single set of subscribers. See Pet. App. 25a; pp. 9-10, supra. Finally, under

14 Curiously, while the Sun asserts (Pet. 23) that “legislative his-

tory and other indicators” should have been consulted, it fails to explain why consulting them would compel a different result. Thus,

even if this Court were to grant review, it is unclear what arguments the Sun would make or whether they are properly preserved.

30

the 2005 JOA, “joint or unified action is taken or agreed

to be taken with respect to” at least one of the items in

the JOA definition’s enumerated list: “printing; time,

method, and field of publication; allocation of production

facilities; distribution; [etc.]” 15 U.S.C. § 1802(2). In

fact, under the 2005 JOA, the parties agreed to joint or

unified action for each item in that enumerated list (pursuant to terms different from those in the 1989 JOA).

The 2005 JOA is thus a joint operating arrangement.

It is true that, before 2005, the parties operated pursuant to a 1989 agreement that also met the statutory

definition of a JOA, but that is irrelevant. Neither the

NPA’s definition of JOA nor Section 4(b) makes any distinction between arrangements involving parties that

previously had a JOA and those involving parties that

did not. The only question is whether the parties seek to

“enter into, perform, or enforce” an arrangement that

meets the statutory definition of a JOA. 15 U.S.C.

§ 1803(b).

2. The Sun argues (Pet. 24-26) that the NPA as a

whole and Section 4(b) in particular have nothing to say

about amendments to post-1970 JOAs, neither affording

them immunity nor condemning them as unlawful. The

Sun principally grounds that view in Section 4(b)’s reference to JOAs “not already in effect,” a phrase the Sun

asserts refers to JOAs between parties that had not previously been parties to another JOA. No court of appeals

has ever adopted this view, and the view is plainly mistaken.

a. The NPA’s text and structure make clear that

Section 4(a) governs pre-1970 JOAs and Section 4(b)

governs post-1970 JOAs. Start with the text. The term

31

“already in effect” is, as the Ninth Circuit said, “unmistakably,” Pet. App. 26a, a reference to JOAs formed

prior to 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.’” Ibid.

The NPA leaves no doubt on that score. Section 4(a)

states that it “shall not be unlawful” to take certain actions related to JOAs “entered into prior to the effective

date of th[e] Act.” NPA, § 4(a), 84 Stat. at 467. Using

parallel form, Section 4(b) states that it “shall be unlawful” to take similar actions related to JOAs “not already

in effect” without Attorney General consent. § 4(b), 84

Stat. at 467. It is thus apparent that Section 4(b)’s temporal focus is similarly on the NPA’s effective date, thus

covering all JOAs not covered by Section 4(a).

Moreover, the Sun’s preferred scheme, in which

amended post-1970 JOAs are ignored by the NPA altogether, is at war with the NPA’s structure. As Section

4(a)’s proviso makes clear, Congress knew that JOAs

could be renewed or amended. Even under Section

4(a)’s more lenient regime for pre-1970 JOAs, Congress

still required the terms of amendments to be filed with

DOJ. See 15 U.S.C. § 1803(a). It would make no sense,

then, under the stricter regime governing post-1970

JOAs, for Congress to have intended for amendments to

those JOAs to be entirely unregulated, permitted to go

into effect without being subject to Section 4(b)’s ban on

unapproved JOAs and without even a requirement (like

the one in Section 4(a)) to inform DOJ that the previously approved terms have been jettisoned. Congress

32

could not have intended for its post-1970 regime to be so

easily circumvented.15

b. The Sun’s lone other “textual” argument (Pet. 25)

to support its interpretation of the phrase “not already

in effect” relates to the captions of Section 4(a) and Section 4(b). The Sun observes that Section 4(a)’s caption

“says that it applies to JOAs ‘entered into prior to July

24, 1970,’” whereas Section 4(b)’s caption “says that it

applies to ‘future joint operating arrangements,’ i.e., after July 24, 1970.” Ibid. (first quoting 15 U.S.C.

§ 1803(a); and then quoting id. § 1803(b)). Thus, in the

Sun’s view, Section 4(b) is already limited by its caption

to post-1970 JOAs, so when the text of Section 4(b) refers

to JOAs “not already in effect,” that must be a further

limitation to new post-1970 JOAs.

This convoluted argument fails for two reasons.

First, even where captions are relevant, they merely

characterize the text of a provision generally rather than

add independent substance. See Lawson v. FMR LLC,

571 U.S. 429, 446-47 (2014). So, to the extent Section

4(b)’s caption is relevant, it supports the Review-Journal’s position: Section 4(b)’s reference to JOAs “not already in effect” means “future [i.e., post-1970] joint

operating arrangements,” just as the caption states. 15

U.S.C. § 1803(b).

15 Recognizing that Congress could not have intended that result,

the district court held that all amendments to existing JOAs,

whether post-1970 JOAs or pre-1970 JOAs, are governed by Section

4(a). See 15 U.S.C. § 1803(a); Pet. App. 56a-58a. The Ninth Circuit

properly rejected that holding. See Pet. App. 26a-30a. The Sun did

not defend the district court’s position in the Ninth Circuit and does

not defend it here.

33

Regardless, the captions are not relevant because

they are not part of the NPA as enacted. In the Statutes

at Large, Section 4 in its entirety is simply captioned

“antitrust exemption.” § 4, 84 Stat. at 467. The captions

for Sections 4(a) and (b) “are merely editorial additions”

made by the compilers of the U.S. Code when codifying

Title 15, which have not been “enacted into positive law.”

Pet. App. 31a n.5 (quotation marks omitted); see 2 U.S.C.

§ 285b(3).16

c. Citing “public policy” concerns, the Sun suggests

(Pet. 26) it would be strange if Congress required parties

seeking to amend their JOAs to repeat the cumbersome

Attorney General approval process. Of course, any purported administrative burden is no basis to avoid the

NPA’s clear text. But there is also no reason that the

approval process for amended JOAs must be particularly cumbersome. DOJ could easily promulgate regulations allowing for a streamlined process, allowing the

Attorney General to quickly readopt determinations she

(or her predecessors) have already made while focusing

the Section 4(b) inquiry on the changes to the JOA that

are likely to raise new antitrust concerns.

d. Even if the Sun’s interpretation of Section 4(b)

were to be accepted, the Sun still would not prevail, because the 2005 JOA is not a mere amendment to the 1989

JOA, but is instead an entirely new agreement (and thus

16 Below, the Review-Journal made an argument based on the cap-

tion of Section 4(b)’s subsections as codified in the U.S. Code; the

Ninth Circuit rejected that argument, noting that the captions in

Title 15 are not law. Pet. App. 30a n.5. To repeat, though, if the

captions were relevant, they would support the Review-Journal’s

position.

34

would have been an agreement “not already in effect”

even under the Sun’s definition).

As explained above, the 2005 JOA terminated the

1989 JOA and replaced many of the material aspects of

the prior arrangement, including several of great importance to any antitrust assessment. See pp. 9-11, supra. To the extent the parties continue to “perform . . .

or enforce” a JOA today, they are performing and enforcing the 2005 JOA; indeed, the 1989 JOA was terminated. The 2005 JOA is in every meaningful sense a

“new” JOA.

III. THE POSTURE OF THE APPEAL MAKES

THIS CASE A POOR VEHICLE.

Cementing the overwhelming case against further

review, this case is a poor vehicle due to questions of appellate jurisdiction arising from the interlocutory nature

of the appeal.

The Review-Journal appealed the denial of its motion

to dissolve a stipulated preliminary injunction. Pet.

App. 12a. In response to an order of the court of appeals,

the Sun argued that the court lacked appellate jurisdiction over the case, asserting the district court’s order

was not appealable under 28 U.S.C. § 1292(a)(1) and that

the Review-Journal lacked appellate standing. Pet.

App. 12a.

Though the Sun does not address the jurisdictional

issues in its petition, and though the Ninth Circuit correctly resolved those issues in the Review-Journal’s favor, the issues go to this Court’s jurisdiction and are not

waivable. Accordingly, if this Court grants certiorari, it

will be forced to confront these threshold jurisdictional

35

concerns. These issues occupied a significant portion of

the parties’ briefing in the Ninth Circuit, and the Ninth

Circuit expended energy examining the applicability of

this Court’s decision in Carson v. American Brands, 450

U.S. 79 (1981). See Pet. App. 12a-15a. This Court would

not escape the same fate were it to grant review now,

before final judgment.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DAVID R. SINGER

AMY M. GALLEGOS

JENNER & BLOCK LLP

515 S. Flower Street,

Suite 3300

Los Angeles, CA 90071

GABRIEL GILLETT

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

RICHARD L. STONE

850 Devon Avenue

Los Angeles, CA 90024

MICHAEL J. GAYAN

Claggett & Sykes Law Firm

4101 Meadows Lane, Ste. 100

Las Vegas, NV 89107

IAN HEATH GERSHENGORN

Counsel of Record

JONATHAN J. MARSHALL

JENNER & BLOCK LLP

1099 New York Avenue, NW,

Suite 900

Washington, DC 20001

(202) 639-6000

igershengorn@jenner.com

J. RANDALL JONES

MONA KAVEH

KEMP JONES LLP

3800 Howard Hughes

Parkway, 17th Floor

Las Vegas, NV 89169