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September 15, 1996
Hand Deliver
The Honorable Charles R. Richey
United States District Judge
U.S. District Court, District of Columbia
U.S. Courthouse
3rd & Constitution Ave., N.W.
Washington, D.C. 20001
RE: U.S. v. The Thomson Corporation
and West Publishing Company, No. 96-1415
Dear Judge Richey:
After preparing my client's motion to participate as an amicus curiae in opposition to entry of the proposed final judgment in U.S. v. The Thomson Corporation and West Publishing Company, No. 96-1415, it has come to HyperLaw's attention that Clark Boardman Callaghan is the publisher of a book authored by Your Honor -- Richey, Charles R., Manual on Employment Discrimination and Civil Rights Actions in the Federal Courts. See attachment 1 attachment 2 Previously this book was published by Kluwer Law Book Publishers, Inc. and then by Michie. The parties may not have informed you that the present publisher, Clark Boardman Callaghan, is a part of The Thomson Corporation, and that accordingly Your Honor appears to have a business relationship with one of the parties.
If after Clark Boardman Callaghan became the publisher, Your Honor has continued to participate in the publication of the book in any manner, there still is a relationship between Your Honor and West-Thomson. Even if Your Honor no longer participates directly, West-Thomson continues to profit from sales proceeds and benefits from the prestige of publishing a book authored by Your Honor. In any event, there would be a concern about the appearance of a conflict
We wish to raise this immediately because we are aware of other instances in which disclosures of business and other relationships between West as a party and a judge have surfaced only after a ruling--creating embarrassment to the judge and the federal judiciary. See "U.S. Justices Took Trips from West Publishing and related stories in a Minneapolis Star Tribune Series, March 5-7, 1995, http://www.startribune.com/stonline/html/westpub/index.html. Attachment 3 is an excerpt from that series referring to such a situation in State of Texas v. West Publishing Company, 882 F.2d 171 (5th Cir. 1989) which involved West copyright claims to state code codifications. (The proposed consent decree and license agreement in the instant case ignore the issue of control over such state statutory material.)
In Matthew Bender & Company and HyperLaw, Inc. v. West Publishing Company, 94 Civ. 0589 (JSM) (S.D.N.Y) which is presently pending in the Southern District of New York, the initial judge recused herself. See Memorandum and Order dated March 16, 1996, 1995 U.S. Dist. LEXIS 3280.
The 1988 Kluwer version of Your Honor's book states: This work has been developed in conjunction with programs sponsored by the Federal Judicial Centers' Division of Continuing Education and Training.
See attachment 4, Front Matter from 1988 Revised Edition. Apparently, the book was subsequently published by Michie. Thereafter, the book was published by Clark Boardman Callaghan. We understand that the book was last updated in September, 1995, showing Your Honor as the author. Clark Boardman was purchased by the Thomson Corporation in 1979 and the present incarnation of Clark Board Callaghan was created in 1989.
According to Kendall Svengalis in The Legal Information Buyer's Guide, p. 526-527:
Since 1991, the company [Clark Boardman Callaghan] has also significantly raised prices, both for the base titles and their supplements. ... The one major change has been the increasing transformation of former casebound treatise of Lawyer's Cooperative into the loose-leaf binder format, often with non-cumulative supplements. This trend has made it more difficult to skip supplements and buy in again at a later time.
Although the West-Thomson public relations effort surrounding the merger attempted to downplay West's extensive publication of secondary sources, West publishes at least three competing products -- Lewis, Litigating Civil Rights and Employment Discrimination Case. Player, Employment Discrimination Law, Practitioner Treatise Series, Rothstein, Employment Law. See http:// www.westpub.com/Practice/gen2empl.htm#litcivlew. In addition to your book, Thomson companies publish a number of related titles including Eglit, Age Discrimination; CBC, Employment Coordinator; Smolla, Federal Civil Rights Acts; Steinglass, Section 1983 Litigation in State Courts; and Kushner, Government Discrimination: Equal Protection Law and Litigation. http:// See http://www.cbclegal.com/catalog/employ/employ.htm, attachment 2 hereto. (My client does not believe that the Antitrust Division even attempted to determine market shares and competition by subject matter product line.)
Moreover, according to a statement submitted by Mr. Svengalis, who is the State Law Librarian of Rhode Island and was a consultant to DOJ during the merger review:
Divestiture of the fifty-one titles which comprise the major portion of this tentative agreement will have no appreciable or measurable impact upon the competitiveness of the legal publishing industry as a whole. At least thirty-five of the fifty-one titles are of little significance in the broader marketplace. Many of these titles are small, state specific titles with only local appeal. In fact, the presence of these thirty-five titles in the list leads one to suspect they are Thomson- West cast-offs, jettisoned to make the list and its impact appears larger than in really is.
See Exhibit A to Exhibit 6 to Lexis-Nexis motion. A better argument could be made for the "divestiture" of Your Honor's book than these thirty-five books.
The new West-Thomson entity is in a clearly unique position to publish CD-ROM versions of each of these employment and civil rights titles, linked to the full text of the opinions cited therein. A large percentage of the cited opinions are from the United States District Courts. Only West-Thomson could use the internal citations to its opinions on CD-ROM, providing West with an enormous advantage in the practitioner market. West- Thomson also has instant access to the archives of electronic versions of the court opinions and could add the full text of opinions with internal pagination to CD- ROMs at no incremental cost.
Indeed, Clark Boardman Callaghan does have a CD-ROM entitled Employment Discrimination Power Link CD-ROM. The Clark Boardman Callaghan product description states that its CD-ROM contains "a complete electronic library of primary source material." Other publishers seeking to publish an employment law CD-ROM will first need to obtain the opinion files from court archives, which may be costly if not impossible because of the condition of court archives. They would then have to convert the files to electronic versions. Even then, they would have files that do not contain the corrections provided by judges directly to West (using West's Plate Correction or similar forms) most of which are not filed in court files. For example, if a publisher wanted to create a competing CD- ROM containing the full text of all opinions in citable form, it would incur extraordinary costs just to collect the opinions. Under the proposed citation license, the publisher would then need to pay a license fee that would be the same whether 100 or 1000 copies were sold. No small publisher could even consider such a proposition.
We would argue that no publisher which wished to create such a CD-ROM, other than West-Thomson could afford to independently obtain all of the opinions cited in Manual on Employment Discrimination and Civil Rights Actions in the Federal Courts from court files, locate all corrections made by the courts, convert these to electronic form, insert the West star pagination, and pay West a citation tax under the license agreement.
We note that other than West-Thomson, only Lexis-Nexis (and through them Matthew Bender) has access to these corrected court opinions. Moreover, it is possible that pursuant to the 1988 secret agreements even Lexis cannot use the West internal citation on CD-ROMs. [We note references in the exhibits attached to the Lexis-Nexis motion, to these 1 988 secret agreements--as well as to a new March 1996 secret agreement which was apparently executed just after the merger announcement, perhaps so that Lexis-Nexis would not publicly oppose the merger. See Letter Dated August 30, 1996 from Michael S. Harris, General Counsel, The Thomson Corporation to Louis J. Andreozzi, General Counsel, Lexis-Nexis, Exhibit D to Exhibit 3, Declaration in Support of Lexis-Nexis Opposition.] If it is true, as rumored, that the 1988 secret agreements did not permit use of the internal citations on CD-ROMs--even a Lexis subsidiary such as Michie could not publish a CD-ROM with the West internal pagination. Indeed, were your book still being published by Michie, its future development and evolution as a CD- ROM product would be substantially limited.
Thus, the publication and marketing of your book by West- Thomson touches on many of the issues raised in this matter by HyperLaw, by the others who seek to be amicus curiae, and by Lexis-Nexis.
Because it appears that West, Thomson and the Department of Justice (which supposedly analyzed the products of these companies) have not brought this matter to the attention of the Court, HyperLaw, Inc. now does so.
Respectfully submitted,
_________________________________
Lorence L. Kessler
Counsel for HyperLaw, Inc.
cc: Alan D. Sugarman, Esq.
Carl J. Hartmann, Esq.
Paul J. Ruskin, Esq.
Attach.
By U.S. Mail to:
Gary E. Reback, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Craig W. Conrath, Esq.
U.S. Department of Justice
Antitrust Division
Merger Task Force
1401 H Street N.W.
Washington, D.C. 20005
Wayne D. Collins, Esq.
Attorney for The Thomson Corporation
Shearman & Sterling
Citicorp Center
New York, New York 10022
James E. Schatz, Esq.
Attorney for Defendant West Publishing Company
Schatz Paquin Lockridge Grindal & Holstein P.L.L.P.
Suite 2200
100 Washington Avenue So.
Minneapolis, MN 55401
Steven D. Houck, Esq.
Chief Antitrust Bureau
Attorney General of New York
120 Broadway, Suite 2601
New York, NY 10271
State of Washington
Tina E. Kondo, Esq.
Assistant Attorney General
900 Fourth Avenue
Suite 2000
Seattle, WA 98164
Kathleen E. Foote
Deputy Attorney General
Attorney General of the State of California
1300 I Street
Sacramento, CA 95814
Aaron S. Bayer
Deputy Attorney General
Attorney General of the State of Connecticut
110 Sherman Street
Hartford, Connecticut 06105
Christine H. Rosso
Chief, Antitrust Bureau
Attorney General of the State of Illinois
100 Randolph St.
12th Floor
Chicago, IL 60601
George K. Weber
Assistant Attorney General
Commonwealth of Massachusetts
Chief, Consumer Protection and Antitrust Division
Public Protection Bureau
One Ashburton Place
Boston, MA 02109
Kevin J. O'Connor
Assistant Attorney General
Attorney General of the State of Wisconsin
123 West Washington Ave.
Madison, Wisconsin 53717