"Back to DOJ Antitrust Review of Thomson/West Merger Page"
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
1401 H Street, NW )
Suite 4000 )
Washington, DC 20530 )
(202) 307-5779 ) Civil No. 96-1415 (PLF)
STATE OF CALIFORNIA, )
STATE OF CONNECTICUT, )
STATE OF ILLINOIS, )
COMMONWEALTH OF MASSACHUSETTS, )
STATE OF NEW YORK, )
STATE OF WASHINGTON, and )
STATE OF WISCONSIN )
)
Plaintiffs, )
vs. )
)
THE THOMSON CORPORATION, and )
WEST PUBLISHING COMPANY )
)
Defendants. )
)
PLAINTIFFS' REPLY TO HYPERLAW, INC.'S
AMICUS CURIAE BRIEF
On October 16, 1996, HyperLaw, Inc. filed its brief as amicus curiae in this proceeding. In its brief ("Hyp."), HyperLaw makes requests and a recommendation to the Court for several actions at this time. For the reasons stated below, Plaintiffs oppose HyperLaw's requests and recommendation, and instead recommend that the Final Judgment be entered.
A. HyperLaw's Characterization of the Posture of this Case is Inaccurate
HyperLaw contends that the defendants have consummated their merger, consolidated and closed facilities, and terminated products; that the defendants are now only prejudiced by delay in their efforts to discontinue other operations and products and to increase prices. Hyp. at 1. HyperLaw grossly misstates the facts and is trying to introduce irrelevancies into this proceeding. In truth, the transaction has been only partially completed because there have been no divestitures and the defendants still have obligations to the divestiture products.
Under the decree, defendants are required to preserve the divestiture assets.[1]/1 They must take all steps necessary to ensure such products are maintained as independent, ongoing, economically viable lines of business. Defendants must also keep all marketing and pricing information and decision-making separate and apart from all other Thomson and West products. Defendants must take all reasonable steps to maintain and increase sales of divestiture products. The defendants are certainly prohibited from discontinuing any divestiture products, and in fact none have been discontinued. Moreover, the defendants must maintain the editorial, sales and marketing employees associated with these products, so that the eventual acquirer may make offers of employment to them. Defendants are certainly prohibited from terminating any employees covered in §VIII of the decree, and Plaintiffs believe none have been terminated.
To the extent any consolidation or closing of facilities has occurred, defendants have done so for parts of their business unrelated to this merger challenge. For example, Plaintiffs are aware that a printing plant in Rochester, New York, has been scheduled to close, with the activities to be transferred to Minnesota. Consolidation of printing has nothing to do with any anticipated competitive effects of this merger, rather, such consolidation may represent future production cost efficiencies passed on to consumers.
To the extent defendants have discontinued any products, such products are not covered under the proposed decree and were not subject to this merger challenge. For example, Plaintiffs are aware that West recently discontinued its Illinois Administrative Code in print. This product is not a subject of this merger challenge as it represents no potential competitive problem resulting from ownership by Thomson. West's Illinois Administrative Code is an un-enhanced statutory print publication, with several competitors, including the state itself, and easy entry. The Plaintiffs also understand that this product lost money for West over the past several years.
The posture of this case is not like that of any other non-merger consent decree submitted for Tunney Act approval, as claimed by HyperLaw. There are still important actions that need to be taken to resolve the fate of the divestiture products, which suffer by delay. Speedy transfer of the divestiture products into the hands of new owners will facilitate customer and employee confidence and therefore help preserve the products as viable competitors in the marketplace.
HyperLaw states that the Court is required to do three things; assure compliance with the Tunney Act, determine whether the decree provides adequate relief to "that" charged in the Complaint, and to determine whether the decree is in the public interest. Hyp. at 2. As a general proposition, the Plaintiffs agree with these three requirements, except to elaborate on the second — that the Court should determine whether the decree provides adequate relief to the competitive harm arising from the merger, as alleged in the Complaint. Plaintiffs disagree with HyperLaw's conclusion that these three elements cannot already be met to the Court's satisfaction.
HyperLaw then outlines three primary options for the Court at this juncture. The first is to refuse to approve the consent decree. HyperLaw's second option for the Court is to require substantive changes or a level of clarity absent from the proposed decree. As a general proposition, Plaintiffs agree that this is an option for the Court. We disagree that the decree needs any substantive changes or further clarification to be found in the public interest. HyperLaw's example, asking whether the License Agreement permits copying of text of West opinions has been asked and answered fully. Simply, the license permits anyone to obtain a star pagination license on the terms in the license; the license does not purport to grant, nor is it intended to be, a text or text-copying license.
Concerning pure clarifications, the Plaintiffs have no objection to including them in the decree if the Court determines any are necessary. In fact, several have been made, such as the clause recognizing no prohibition on cross-cites to Retained Products and the word "sublicensable" being included in the description of the license associated with the divested copy of the historical Auto-Cite database. Plaintiffs simply ask that the Court make its requirements concerning clarifications known quickly so that any clarifications can be made without delay.
HyperLaw's third option for the Court is to delay approving the decree until the government meets its Tunney Act requirements. Plaintiffs agree that no Court should enter a federal antitrust consent decree until it is satisfied with Tunney Act compliance. However, Plaintiffs believe that the letter and spirit of the Tunney Act have been complied with in this case, and the only remaining Tunney Act requirement before entry of the Final Judgment is the Court's public interest determination.
B. HyperLaw's Characterization of the Department's Positions Is Inaccurate[2]/2
Under HyperLaw's third option (Hyp. at 3), there is a mischaracterization of the License Agreement and a discussion of "DOJ" positions on it. Contrary to HyperLaw's assertion, Plaintiffs do not take the position that the license provides licensees only with the right to star paginate blank pages. Plaintiffs know that licensees expect to star paginate case opinions, and they will not be prohibited from doing so if they obtain a license under the License Agreement. We recognize that in some instances, text of old opinions is available only from West case reports, and that the License Agreement does not grant a license for them. However, these unavailable old opinions are not needed for successful entry in any of the markets alleged in the Complaint. For those entrants for which the star pagination license has its intended effect, the text of opinions is available.
HyperLaw claims "DOJ" maintains the star pagination license does not relate to the Complaint, and it was something that the government could have never obtained in litigation. Hyp. at 3. On the contrary, Plaintiffs believe the star pagination license directly addresses entry in the markets alleged in the Complaint, most notably in the three markets for enhanced primary case law (California, Washington, and Wisconsin), and also for some of the secondary materials that contain case law and analysis, particularly potential entry in the CD-ROM format in these markets. See Plaintiffs' Response to Public Comments, §D.8. Plaintiffs also hope that the mandatory star pagination license facilitates entry into other markets as well. Plaintiffs' position is that this relief could legally be obtained in litigation, but would be unlikely to be ordered because it goes beyond normal divestiture and is therefore unusual.
B. HyperLaw's Requests to the Court Should Be Denied
1. Federal Register Publication
HyperLaw would have the Court delay entry of the Final Judgment until requirements of the Tunney Act are met. Contrary to HyperLaw's assertions, the Department has complied fully with the requirements of the Tunney Act. HyperLaw misunderstands the timing requirements of the Act. First, it requires the United States to file and publish its proposed consent decree "at least 60 days prior to the effective date of such judgment." 15 U.S.C. § 16(b) (emphasis added). This was done on July 5, 1996. Second, written comments concerning the proposed decree, as well as the United States' response to those comments, must be published in the Federal Register within the same period, i.e., within the period of at least 60 days between the filing of the consent decree and the entry of final judgment. See id. As the United States explained to the Court at the September 30, 1996 hearing, at that time publication in the Federal Register of the public comments and the Plaintiffs' response was pending at the Federal Register, which was sent all the materials on the morning of September 24, and therefore would be completed soon. Plaintiffs expressly conditioned their motion for entry of the decree on the United States' anticipated certification that publication had in fact been made. As the Court is now informed, Federal Register publication was made on Friday, October 11. See 61 Fed. Reg. 53386.
2. Disclosure of Documents
Second, HyperLaw would have the Court delay entry of the Final Judgment until some documents are disclosed publicly by the Plaintiffs. Contrary to HyperLaw's assertions, the United States is under no Tunney Act obligation to disclose any additional documents in this matter, as there were no determinative documents within the meaning of the Tunney Act in this case.
The United States' long-standing interpretation of the relevant portion of the Tunney Act, 15 U.S.C. § 16(b), is that it requires disclosure only of documents or other materials that individually had a significant impact on the United States' formulation of relief. HyperLaw interprets the statute to require disclosure of documents that have relevance to the allegations of the Complaint, to the predicted effects of the proposed decree, to the decision to proceed by consent decree rather than by litigation, or to the shaping of the particular proposed Final Judgment. This interpretation is at odds with the statutory language, the policies of the Tunney Act, and its legislative history, all of which show that the statutory provision refers to documents that individually had a significant impact on the United States' formulation of relief.
The statute provides: "Copies of such proposal [i.e., the proposed final judgment] and any other materials and documents which the United States considered determinative in formulating such proposal, shall also be made available" 15 U.S.C. § 16(b) (emphasis added). On its face, the statute refers only to the formulation of the relief proposal, not to the decision to file suit on particular claims or other issues beyond the scope of the relief.
The statute specifies required disclosure is limited to "determinative" documents, a term Congress would not have chosen to describe all documents of relevance. Webster's Third New International Dictionary provides, as the first-listed definition of this adjective, "having power or tendency to determine," and offers as synonymous cross-references "limiting, shaping, directing, conclusive." Webster's Third New International Dictionary 616 (1981). This understanding of the term is consistent with its use in other legal contexts.[3] /3
Moreover, the statute calls for disclosure only if the "United States considered" the documents determinative to the formulation of relief. The statute does not require disclosure of documents on the basis of the significance that HyperLaw or anyone else might attribute to them, if the United States did not consider them determinative in formulating its proposed relief. Moreover, the statutory language shows clearly that Congress did not expect that there would be determinative documents in every case. The statute refers to "any other materials and documents," not "the other" documents, which would be the more natural term if Congress assumed that there would always be such documents.
Congress had in mind only a small number of documents of particularized significance, and not materials of the kind requested by HyperLaw. In fact, the specific documents requested by HyperLaw were not considered determinative by the United States in this matter. It is simply incongruous to assume that the eight plaintiffs in this matter found the 1988 West/Lexis Agreement or the 1996 Thomson/Lexis Agreement to be determinative in formulating the proposed relief. These documents merely reflect but two relatively minor pieces of the legal publishing industry landscape in which the merger was proposed.
HyperLaw's expansive interpretation of the requirement that the United States disclose documents makes little sense in light of the limited purpose of a Tunney Act proceeding. For, under the Tunney Act, the court's role does not include inquiry into the United States' exercise of prosecutorial discretion in deciding whether to allege particular violations. United States v. Microsoft Corp., 56 F.3d 1448, 1459 (D.C. Cir. 1995). Nor does it include inquiry into the strength of the United States' case as to the violations alleged. To the contrary, the United States' judgments in a Tunney Act proceeding are entitled to deference precisely because a consent decree is likely to reflect any underlying weaknesses in the United States' case. Id. at 1461. Thus, the district court in Microsoft exceeded its authority by requiring production of information concerning "the conclusions reached by the Government" with respect to the particular practices investigated, and the areas addressed in settlement discussions, including "what, if any areas were bargained away and the reasons for their non-inclusion in the decree." Id. at 1455. There is no reason to assume that Congress intended to require the United States to disclose as determinative documents a broad range of materials relating to issues that are not properly before the court in a Tunney Act proceeding.
The legislative history of the Tunney Act also supports the United States' interpretation.[4]/4 Congress enacted the Tunney Act in response to consent decrees entered in 1971 in three cases involving the International Telephone and Telegraph Corporation ("ITT"). These cases challenged three ITT acquisitions, including that of the Hartford Fire Insurance Company ("Hartford"). The consent decrees permitted ITT to retain Hartford. Subsequent congressional hearings revealed that the head of the Antitrust Division had employed Richard J. Ramsden, a financial consultant, to prepare a report analyzing the economic consequences of ITT's possible divestiture of Hartford. Ramsden concluded that requiring ITT to divest Hartford would have adverse consequences on ITT and the stock market generally. Based in part on the Ramsden Report, the Department concluded that the need for divestiture of Hartford was outweighed by the projected adverse effects on the economy. The Ramsden Report, which falls squarely within the United States' understanding of the statutory term, is a specific example of a determinative document that Congress had in mind. During the Senate debate on the determinative documents provision, Senator Tunney expressly stated: "I am thinking here of the so-called Ramsden memorandum which was important in the ITT case." 119 Cong. Rec. S13934 (daily ed., July 18, 1973).
Had Congress intended to reach more broadly, broader language was readily at hand. Congress had before it Senator Bayh's S. 1088, a bill generally similar to Senator Tunney's bill, but which provided for the filing of "copies of the proposed consent judgment or decree or other settlement and such other documents as the court deems necessary to permit meaningful comment by members of the public on the proposed settlement." S. 1088, 93rd Cong., 1st Sess. § 2(a)(1)(B) (1973). This language would have given the court discretion to require disclosure of a broader range of materials relating to the adequacy of the proposed decree than the formulation Congress chose, limiting disclosure to documents or materials that the United States considered determinative.[6]/5
The Department of Justice expressed concern that the determinative documents provision could be read to require extremely sweeping disclosure, chilling discussions within the Antitrust Division and impeding access to information from outside the Department. E.g., Cong. Rec. S13930 (letter from Assistant Attorney General Kauper to Senator Javits). /6 Senator Javits introduced two amendments, ultimately not incorporated in the statute, designed to meet the Department's concerns. In accepting these amendments, Senator Tunney indicated that they "merely reaffirm[ed] existing law" and were consistent with the Committee's intent. Cong. Rec. S13934 (statement of Senator Tunney)./7
The decision cited by HyperLaw in United States v. Central Contracting Co., 537 F. Supp. 571 (E.D. Va. 1982), cannot be read as broadly as HyperLaw suggests. Although the statute requires only disclosure of the documents the United States considered determinative in formulating the decree, the Central Contracting court required disclosure of "[t]he materials and documents that substantially contribute to the determination [by the United States] to proceed by consent decree." 537 F. Supp. at 577, quoting United States v. Central Contracting Co., 531 F. Supp. 133 (E.D. Va. 1982). The court also was of the view, unsupported by statutory text or legislative history, that documents individually not determinative can, in the aggregate, be determinative of "the way in which the United States elects to proceed in a given situation." 531 F. Supp. at 134. It did not explain why this interpretation would not require disclosure of every relevant document, despite the expressed intent of Congress to limit disclosure to "determinative" documents.
Nearly 150 antitrust consent decrees have been filed since Central Contracting. The United States filed "determinative" documents or materials in about 20 of these cases. Despite ample opportunities, no court has followed Central Contracting in insisting that the United States produce determinative documents when the United States said they do not exist. In one such case involving a merger, the District Court for the District of Columbia denied a third party's motion for an order compelling discovery of claimed "determinative" documents. United States v. LTV Corp., 1984-2 Trade Cas. (CCH) ¶ 66,133 at 66,335 & n.3 (D.D.C.), appeal dismissed, 746 F.2d 51 (D.C. Cir. 1984).[7]/8
The prospect of having the Department's investigatory files routinely turned over to private litigants would surely deter defendants from entering into negotiated settlements with the United States. Thus, such a requirement would "as a practical matter [eliminate the consent decree] as an antitrust enforcement tool, despite Congress' directive that it be preserved." United States v. American Telephone and Telegraph Co., 552 F. Supp. 131, 151 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983). Moreover, to the extent that the United States' files contained information concerning possible violations that the United States had decided not to pursue at that time, the persons or entities subject to investigation could suffer substantial prejudice. And, in revealing confidential information about the United States' conduct of the investigation and its exercise of prosecutorial discretion, the disclosure requirement would raise serious issues concerning the proper roles of the Executive and the Judiciary - precisely the same issues that informed the D.C. Circuit's interpretation of the proper scope of the Tunney Act inquiry.
In light of these policy considerations, it is not surprising that no court since the Tunney Act was enacted has actually required the United States to disclose its investigatory files to private plaintiffs as a condition of approving the decree.[8]/9 HyperLaw has offered no reason to conclude that such an extraordinary requirement should be imposed here.
Further, HyperLaw contends that the parties have made modifications to the proposed consent judgment after the initial publication, and that these should be subject to a new 60-day comment period. The only substantive changes made to the consent decree are 1) a lowering of the pagination license fee; 2) the elimination of the prohibition on licensees challenging West's star pagination copyright claim; and 3) the addition of language relating to the assignment of the Auto-Cite License Agreement. These changes can only benefit the public compared to the decree as originally filed and therefore do not require any additional comment. The Plaintiffs also clarified certain provisions of the consent decree in its Response to Public Comments and response to the Court, but these clarifications do not represent changes requiring additional public comment.
3. The Court Does Not Need Additional Information To Make a Public Interest Determination
HyperLaw asks the Court to find an answer to the question of why the License Agreement is part of the relief presented to the Court for its review and approval. Hyp. at 4. Plaintiffs believe this question has been answered, and we disagree with HyperLaw's description of the negotiation process. Although the investigatory staff has spent countless hours with Mr. Sugarman during this matter, no representative of HyperLaw was present during the consent decree negotiations. At no time did the Plaintiffs insist on additional divestiture of "companies and products" (as alleged by HyperLaw) and condition letting them go on establishment of a star pagination license. In any event, the negotiating process is irrelevant in this Tunney Act proceeding, where the Court is simply charged with looking at the results of the process — to identify an adequate nexus between the harm alleged in the Complaint to result from the merger and the proposed relief.[9]/10
HyperLaw states that the "consequence of the merger is to extend the West-Lexis copyright pool to the other major publisher Thomson to the exclusion of other publishers." Hyp. at 6. Plaintiffs examined whether there was any possibility of challenging all or part of the merger based on an illegal pooling of intellectual property, and determined there was no chance of success for such suit under the facts. Simply, Plaintiffs concluded that Thomson does not represent actual or potential competition for any alleged West-Lexis copyright pool. This decision should not be second-guessed by the Court. As for firms other than Thomson/West and Lexis, they are in no worse position competitively than before the merger. They may be faced with improved integrated products from Thomson/West, but that result is pro-competitive and pro-consumer. The purpose of the antitrust laws is, after all, to protect and promote competition, not competitors.
HyperLaw asks the Court to require the government to respond specifically to the criticisms of the consent decree made in the public comments. Hyp. at 7. Plaintiffs believe every criticism, even those that fall well outside of any relevancy in a Tunney Act proceeding, have been addressed with specificity. HyperLaw's example in support of this request is that the government has not responded to its objection to the government "relying upon documents not filed in this Court and not made available to the public in construing the License Agreement." Id. In fact, the Plaintiffs have responded to this objection. Plaintiffs assert it is unnecessary, impractical, and probably illegal to provide our investigatory files to the public.[10]/11 In addition, in critical areas where appropriate, the Plaintiffs have agreed to clarify the Final Judgement itself.
HyperLaw also claims the government has not responded to its comment that Thomson/West will use the consent decree to say that the star pagination royalty rate is "approved as commercially reasonable," and claims that the government has provided no documents demonstrating the reasonableness of the rate. Hyp. at 8. Plaintiffs have responded directly to HyperLaw's comment. See Plaintiffs Response to Public Comments at §D. Nothing in the consent decree attempts to define the "commercial reasonableness" of the rates. The proposed license is a mandatory one only in the sense that Thomson/West must grant it to anyone that asks for it. Parties are free to seek better terms from Thomson, and by definition any different terms agreed to must be better for the licensee than the terms in Exhibit B. Before the decree, West would not grant star pagination licenses to anyone, in fact, there were only two in existence, to Lexis-Nexis/Reed-Elsevier and Butterworth. With the decree however, competing and potentially competing firms have an additional option available. Plaintiffs in this matter have sought simply to evaluate whether the rates are sufficiently low to reduce barriers to entry into markets alleged in the Complaint. We assert that they are low enough.
C. HyperLaw's Alleged Consequences in Conclusion Are Incorrect
HyperLaw first concludes by repeating its claim that the merger expands a "patent pool" and that the government does not understand the significance of this fact. Hyp. at 8-9. Plaintiffs repeat that there was insufficient evidence on which to bring a count based on pooling of intellectual property, and that debate about it is therefore beyond the scope of this Tunney Act proceeding.
HyperLaw claims that "insufficiencies in the License Agreement would be demonstrated were the Government to make available to the Court the 1988 settlement agreements between West and Lexis." Hyp. at 9. HyperLaw has actively sought to obtain that 1988 West/Lexis settlement for years, for its own reasons. HyperLaw cannot even speculate with any logical specificity what it expects to find in that settlement that would in any way impact the Court's public interest determination in this matter. There is no possible impact it could have. HyperLaw may believe it is in the public interest to have the 1988 settlement public, but it is quite a different thing to claim that this Court needs to make the settlement public in order to make a public interest determination in this merger matter. Plaintiffs have no objection to providing the 1988 West-Lexis settlement to the Court under seal if the Court has any desire to see it. Frankly, however, such provision would be a waste of the Court's time and only serve to delay resolution of this proceeding.
HyperLaw claims in purely conclusory terms that the government narrowly interprets the Complaint, and that this goes well beyond Microsoft. Hyp. at 10. The plain language of the Complaint is public. Plaintiffs have not re-interpreted the Complaint at any stage in this proceeding.
HyperLaw claims that the Complaint has a res judicata/collateral estoppel effect on the government and will forestall future antitrust enforcement activity. Hyp. at 11. Plaintiffs disagree. As stated in the Plaintiffs' Response to Public Comments in several sections, the Complaint and Final Judgment have no effect on future antitrust enforcement activity or on any legal activity against Thomson/West in any other forum. Specific language is included in the pleadings in this case to isolate the defendants from any future use of existence of the star pagination license to support West's pagination claim. PFJ at 2-3. The United States already has pursued the public interest in seeing West's pagination claim removed by submitting two amicus briefs this summer, in other forums, advocating such removal. There is no bar in this consent decree on any Plaintiff from investigating or suing Thomson on any issue except for the merger itself, and no bar on anyone suing Thomson for any reason in any forum.
Finally, HyperLaw claims that this may be the last opportunity to prevent an already anticompetitive industry from becoming virtually closed, "given the enormous political power amassed by this merger providing Thomson-West with unprecedented influence at every level and in every branch of government." Hyp. at 11. At footnote 1, HyperLaw also expresses its belief that the Department of Justice has a conflict of interest in this matter that "goes back many years," and that keeps it from acting in the public interest. Plaintiffs find any implication by HyperLaw that Thomson/West enjoys any unfair advantage or special favor with any law enforcement agency, especially the eight government Plaintiffs in this matter, to be highly insulting. Plaintiffs challenge HyperLaw to either demonstrate an example of the exercise or attempted exercise, by Thomson or West, of undue, unfair, or political influence with the Plaintiffs, or to retract these statements immediately.
HyperLaw has filed its amicus brief. For the reasons stated above, the requests and recommendation of HyperLaw contained therein should be rejected by the Court.
Dated: October 23, 1996 Respectfully submitted,
__________________________
JAMES FOSTER
__________________________
MINAKSI BHATT (DC Bar #434448)
__________________________
SUSAN WITTENBERG
Attorneys
U.S. Department of Justice
Antitrust Division
1401 H Street, N.W., Suite 4000
Washington, D.C. 20530
Tel: 202/514-8362
FOR PLAINTIFF
STATE OF CALIFORNIA:
___________________________
Kathleen E. Foote
Deputy Attorney General
50 Fremont Street, Suite 300
San Francisco, CA 94105
(415) 356-6320
FOR PLAINTIFF
STATE OF CONNECTICUT:
_____________________________
Aaron S. Bayer
FOR PLAINTIFF
STATE OF ILLINOIS:
_____________________________
Christine H. Rosso
FOR PLAINTIFF
COMMONWEALTH OF MASSACHUSETTS:
______________________________
George K. Weber
FOR PLAINTIFF
STATE OF NEW YORK:
______________________________
Stephen D. Houck
FOR PLAINTIFF
STATE OF WASHINGTON:
______________________________
Tina E. Kondo
FOR PLAINTIFF
STATE OF WISCONSIN:
______________________________
Kevin J. O'Connor
CERTIFICATE OF SERVICE
On October 3, 1996, I caused a copy of this Opposition to HyperLaw's Amicus Brief to be served by facsimile upon each of the parties in this action and to Lexis/Reed-Elsevier and HyperLaw, Inc.
________________________
JAMES K. FOSTER
_______________________________
[1] Paragraph VIII. The defendants have agreed to abide by the proposed consent decree until such time as it is entered by the Court.
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[2] Once again, HyperLaw insists on completely ignoring the seven state plaintiffs, other than in the "ET AL" reference in the caption. The states have shared in the investigation and settlement of this merger and in recommendations to the Court to find the decree in the public interest.
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[3] For example, an Ohio court held that a trial court did not have to give proposed interrogatories to a jury because they related to matters of an evidentiary, rather than a determinative, nature. Ziegler v. Wendel Poultry Service, Inc., 615 N.E.2d 1022, 1028 (Ohio 1993). This is consistent with an earlier decision defining "determinative issues" in a special verdict form as the ultimate issues which, when decided, will definitively settle the controversy between the parties. Miller v. McAllister, 160 N.E.2d 231, 237 (Ohio 1959). An Iowa court said a "determinative factor" behind a decision is "a reason which tips the scales decisively one way or the other." Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1990). And where Maine law provides for certification by a federal court of questions of law "determinative of the cause," "[t]o be determinative, a state law question must be susceptible of an answer which, in one alternative, will produce a final disposition of the federal cause." Gagne v. Carl Bauer Schraubenfabrick, GmbH, 595 F. Supp. 1081, 1088 (D. Me. 1984).
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[4] Little in the legislative history directly addresses the meaning of the determinative document provision. The provision was not in S. 782 as introduced, but was added as an amendment to the bill by the Senate Judiciary Committee. Only one statement in a committee report bears on the substantive standard for "determinative." See S. Rep. No. 298, 93rd Cong., 1st Sess. 7-8 (1973) ("Also, provision is made for a more complete description of the proposed consent judgment and other materials and documents the Department of Justice considered significant in formulating the proposed consent decree."). The Report substitutes "significant" for "determinative," which is consistent with the United States' interpretation and, otherwise, does little but track the statutory language.
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[5] One witness during the Tunney Act hearings specifically urged that "as a condition precedent to . . . the entry of a consent decree in a civil case . . ., the Department of Justice be required to file and make a matter of public record a detailed statement of the evidentiary facts on which the complaint . . . was predicated." The Antitrust Procedures and Penalties Act: Hearings on S. 782 and S. 1088 Before the Subcomm. on Antitrust and Monopolies of the Senate Comm. on the Judiciary 57, 93rd Cong., 1st Sess. (1973) (prepared statement of Maxwell M. Blecher). Congress, however, did not follow that recommendation.
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[6] The Department's concern that the provision could be read improperly was well founded, as HyperLaw's request illustrates.
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[7] The amendments, which the Senate adopted, incorporated references to the Freedom of Information Act. The House Committee deleted these references, explaining that it intended to ensure that "Freedom of Information Act case law . . . was not disturbed." H.R. Rep. No. 1463, 93rd Cong., 2d Sess. 11 (1974). The Committee noted that the Freedom of Information Act "does not purport to deal with the need of the courts or of the Congress for information." Id.
The legislative history of the Tunney Act suggests that a court may conclude in particular cases that it is appropriate to "condition approval of the consent decree on the Antitrust Division's making available information and evidence obtained by the government to potential, private plaintiffs which will assist in the prosecution of their claims. S. Rep. No. 298, 93rd Cong., 1st Sess. 6-7 (1973); accord H.R. Rep. No. 1463, 93rd Cong., 2nd Sess. 8 (1974). But had Congress thought courts should routinely condition their approval in this way, it could have simply required that the United States make its evidentiary files public. Congress imposed no such requirement.
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[8] In LTV, after the United States said there were no determinative documents, Wheeling-Pittsburgh Steel Corporation, a competitor of the merging companies, moved for discovery of "determinative" documents as part of its challenge to the sufficiency of the proposed consent decree. Judge Pratt denied the motion and entered the decree. Wheeling-Pittsburgh did not appeal that denial. 746 F.2d at 52.
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[9] In two pre-Tunney Act cases, courts ordered the United States to impound evidence to make it available to private plaintiffs. In both, evidence would become available to private plaintiffs only through appropriate processes in private litigation. In United States v. Automobile Manufacturers Assn., 307 F. Supp. 617 (C.D. Cal. 1969), aff'd sub nom. New York v. United States, 397 U.S. 248 (1970), treble-damage plaintiffs opposed entry of an antitrust consent decree and sought to force the United States to try the case to a judgment they could use collaterally. The Court rejected the plaintiffs' motion, but ordered the United States to impound evidentiary materials and make them available to plaintiffs "by subpoena or other appropriate means, where good cause therefor can be shown." 307 F. Supp. at 620.
In this District, the Court ruled similarly in U.S. v. National Bank and Trust Co. of Central Pa, 319 F. Supp. 930 (D.D.C. 1970), where a motion to intervene was denied because movant was protecting only private interest, not public interest. Nevertheless, the Court ordered documents impounded in the hands of the Justice Department "subject to appropriate orders or subpoenas arising from the private litigation." Id. at 933 (emphasis added).
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[10] HyperLaw alleges that the government refuses to share the most basic information as to divestitures, including the HHI of both divested and non-divested products. HHI figures for the nine primary law divestiture products are included in the Complaint. HHI, or sales, figures for other products are not necessary for the Court to make a public interest determination. HyperLaw also repeats its notion that the merger enhances West's claims in citation and text of opinions and in the development of secondary law products. Hyp. at 5. In order for there to be any merit in these assertions, it would have to be proved that Thomson was an actual or potential competitor to West in these areas, as reflected in actual markets. As stated before, Plaintiffs determined there was insufficient evidence to bring a successful potential competition case in any market or a successful actual competition case in additional markets; it is inappropriate for the Court to second-guess that decision.
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[11] Plaintiffs of course are willing to provide the Court with whatever it needs to make a public interest determination.
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