09/03/96 HyperLaw, Inc.®

HyperLaw Motion To File Amicus Curiae in DOJ v. West-Thomson, September 12, 1996

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Docket No: 96-1415


PLEASE TAKE NOTICE that HyperLaw, Inc, moves to 
participate as amicus curiae in opposition to entry of 
the proposed final judgment pursuant to the Antitrust 
Procedures & Penalties Act, 15 U.S.C § 16(f)(3).

1.	HyperLaw, Inc. is a publisher of CD-ROMs of 
federal appellate opinions.  HyperLaw was founded in 
1991 and is located in New York, New York.  HyperLaw 
also provides formatted federal court opinions to 
Lawyers Cooperative Publishing Company ("LCP") pursuant 
to several contracts.

2.	HyperLaw is  a Plaintiff-Intervenor in an action 
against West Publishing Company presently pending in 
the Southern District of New York, Martin, J., seeking 
a declaratory judgment which would permit HyperLaw to 
copy the text of court opinions and pagination 
published in West Publishing Company case law 
reporters. [See opinion of Martin, J., Matthew Bender 
and HyperLaw v. West, 94 Civ. 0589, U.S.D.C. S.D.N.Y., 
August 2, 1996, granting intervention of HyperLaw, Inc. 
attached hereto as Exhibit 1].  HyperLaw is a publisher 
which has been threatened by West as found by Judge 

3.	HyperLaw has submitted four letters to the 
Department of Justice in opposition to the proposed 
consent decree: two letters dated June 26, 1996, a 
letter dated June 28, 1996, and a letter dated 
September 3, 1996.  In addition, HyperLaw met twice 
with Justice Department officials during its merger 
review.  Subsequent to HyperLaw's June 28, 1996 letter, 
HyperLaw held a two hour telephone conversation with 
five Justice Department attorneys.  HyperLaw desires 
among other things to file a response to the comments 
of the Justice Department which are due on September 
23, 1996, and is mindful of the recent decision of this 
Court that emphasized its preference to waiting for 
these comments.  

4.	Obviously, the Department's final position cannot 
be known until it files its comments, and potential 
intevenors and amicus curiae need to have an 
opportunity to respond subsequent to the September 23, 
1996 filings.  We also note that Thomson has already 
acquired West, the consolidation of the two companies 
is under way, and joint marketing has already 

5.	If LCP is not divested by West-Thomson, LCP will 
have no need to continue to purchase data from 
HyperLaw.  HyperLaw is in the position of thousands of 
providers of legal information, including authors of 
legal texts such as judges, professors, and private 
practitioners, who are being ushered in by the 
Department of Justice to a new world with the market 
for publication and dissemination of their works being 
dominated by a single publisher.  Some whose works are 
published by West or Thomson may even find their works 
"orphaned" and now in the hands of a disinterested 
publisher–West, Thomson, or the acquirer of divested 

6.	Absent a meaningful license agreement and a 
meaningful entity divestiture, HyperLaw believes it 
would be in the public interest for there to be no 
Consent Decree and for the Department of Justice to 
withdraw its Complaint.  This would free the Department 
of Justice to seek meaningful relief in the future when 
the devastating anticompetitive impact of this merger 
becomes to obvious to ignore and will deny West-Thomson 
the ability to misrepresent an illusory license 
agreement so as to further solidify its monopoly.

7.	HyperLaw has reviewed the letter by Lexis Nexis 
dated August 29, 1996 and is aware of the papers 
submitted by Lexis Nexis in opposition to entry of the 
proposed final judgment.  HyperLaw believes that a 
legal information marketplace completely dominated by 
one company establishes a hostile competitive 
environment. The combination of the two largest 
competitors and a damaging blow to the third largest is 
not in the public interest.

8.	It was for that reason that HyperLaw met with 
Department of Justice officials in 1993 and objected to 
a sole source contract that the Department of Justice 
was proposing to enter into with West as the sole 
provider of on-line legal research for the Department.  
The Department had so prepared its request for proposal 
for the contract as to require the vendor to provide 
comprehensive databases.  The contract request was 
slanted in favor of West.   Lexis-Nexis was the only 
other vendor able to bid on the contract.  Lexis Nexis 
was only able to be in the running because of its 
access to databases provided by Thomson companies to 
Lexis Nexis.  The Department could not provide a 
justification as to why a sole source contract was 
required, and why both Westlaw and Lexis-Nexis could 
not be made available to Department attorneys.  
Similarly, the Administrative Office of United States 
Courts has issued for the federal courts a sole source 
contract for Westlaw.  Thus, West holds the franchise 
as the gateway to provide on-line research to 
Department of Justice and the federal courts.

9.	If Lexis-Nexis is permitted to intervene, for the 
first time since 1988, West and Lexis-Nexis will be 
before an open court and an opportunity will be 
provided for these parties to explain and justify why 
their 1988 settlement and license agreements are bound 
in secrecy.  Those license agreements covered not only 
the license by West of citations to court opinions but 
also applied to the license of text of court opinions, 
the license of the text of statutory information, and 
the license of citations to statutory information.  See 
Entry No. VI-27, Docket Sheet Excerpt, West v. Mead, 4-
85-931, District of Minnesota, attached hereto as 
Exhibit 2.  This is a proper issue to raise in the 
present context, especially because all of the parties 
have made public, and conflicting, references to these 
secret agreements.

10.	All of the parties to this proceeding, including 
the Department of Justice, West, Thomson, and now Lexis 
Nexis, have commented openly about these agreements 
that were sealed in 1988 at the request and for the 
convenience of West and Lexis-Nexis, without any 
specific ruling by the court.  In an article in the 
September, 1996 issue of the American Lawyer (attached 
hereto as Exhibit 3), which includes the posed 
photographs of Department of Justice attorneys, and 
West and Thomson attorneys, the following statements 
were made on page 81:

"LEXIS's license is based on a similar kind of 
formula–it's based on characters–and their license 
fee now is huge," says Fullerton.

"Likewise, West's chief lawyers on the deal, James 
Schatz –to whom Shearman and Stearlng deferred on 
the pagination issues–says the new form agreement 
is "not analogous at all" to the Lexis agreement 
with West–"[it is] different in almost every way."

References to the West-Lexis agreements by Lexis Nexis 
CEO Ira Siegel are also contained in the article.  
Similarly, Lexis Nexis in Paragraph 7 of its letter to 
the Department of Justice dated August 29, 1996  makes 
references to the content of the agreement.  These 
agreements are the keystone to eight years of anti-
competitive activities in this industry, and, no one, 
certainly this court, can fully appreciate the context 
of the merger of West and Thomson without access to 
these agreements, as well as the agreements between 
Thomson and Lexis-Nexis, which resulted in Thomson 
absenting itself as an on-line database competitor of 
West and Lexis-Nexis.

11.	Because these agreements are significant 
agreements for each of these companies, it is apparent 
that all of the large publisher competitors  who were 
serious bidders on the acquisitions of West in 1996 and 
of Lexis Nexis several years ago would have had access 
to these secret agreements.  Similarly, former 
executives of those companies now with other legal 
publishers are similarly aware of the content of these 
agreements:  an example is Kathryn Downing who is not 
President of Matthew Bender & Company and when she was 
with Lexis-Nexis in 1988, negotiated the agreement on 
behalf of Lexis-Nexis.  Accordingly, were these 
agreements to be made public, there could be no 
competitive harm, and the public would benefit greatly.

12.	We believe that open review of these agreements 
would show how the License Agreement being falsely 
promoted as an "open" agreement is so severely crippled 
in its failure to deal with statutory information and 
importantly access to text of court opinions.

13.	With respect to the failure of the proposed 
License Agreement to cover text, HyperLaw will not 
repeat the statements made in its comment letters.  
However, HyperLaw emphasizes that this is not an issue 
of concern to Lexis-Nexis which has its own archive of 
court opinions as well as its own license agreement 
from West.  Similarly, Matthew Bender has recently 
entered into its own joint venture with Lexis-Nexis and 
for that reason does not have the same critical 
concerns about the court opinion text.

14.	HyperLaw is also concerned that counsel for West-
Thomson will make representations and statements to the 
Court as to how the License Agreement will be 
interpreted, and that the court will rely on those 
representations.  However, representations and 
statements made by West's counsel, have been completely 
repudiated by West and Thomson, when it is in their 
interests.  Indeed, only several weeks ago, West and 
Thomson repudiated representations made by West's 
counsel Brady Williamson on March 21, 1995, to the 
Wisconsin Supreme Court that first page citations were 
in the "public domain", as shown in a transcript 
prepared by West and submitted by Mr. Williamson to 
that court. West and Thomson on page 5 of a brief filed 
August 19, 1996 in Matthew Bender and HyperLaw v. West 
repudiated the statements.  West Publishing Company's 
Memorandum of Law In Opposition to Plaintiff Matthew 
Bender & Company's Motion for Summary Judgment.  West-
Thomson described the statements of counsel as "certain 
unsworn statements allegedly made on occasions outside 
the litigation".  Moreover, Thomson has completely 
repudiated statements it made to Congress in 1992 
concerning the copyright of page citations, when 
Thomson claimed that West was a monopoly.  See Prepared 
Statement of Kathryn M. Downing, President and Chief 
Operating Officer of Thomson Electronic Publishing, p. 
81, Hearing, Subcommittee on Intellectual Property and 
Judicial Administration of the Committee on the 
Judiciary, House of Representatives, 102nd Congress, 
H.R. 4426, Exclusion of Copyright Protection for 
Certain Legal Compilations, May 14, 1992.  Thus, one 
can easily anticipate that West-Thomson counsel will 
make grandiose representations to this court –which 
will then be ignored, and, if not ignored, cleverly 
abused to construe all ambiguity to West-Thomson's 
favor.  Our letters establish that the Department of 
Justice is unable to commit the necessary resources to 
identify, if not address, these ambiguities as well as 
the adverse provisions in the License Agreement.

15.	HyperLaw believes that the Proposed Final Judgment 
is not in the public interest, as required by the 
Antitrust Procedures & Penalties Act, 15 U.S.C. § 
16(e).  It does not remedy the abuses described in the 
complaint, does not provide adequate enforcement, and 
is ambiguous.  This is completely documented in our 

16.	HyperLaw requests participation as amicus curiae.  
See 15 U.S.C. § 16(f)(3).  HyperLaw has knowledge of 
the issues raised in this matter, and a special 
interest in its outcome.  The Court may allow non-party 
participation as amicus curiae within its sole 
discretion.  Ellsworth Associates, Inc. v. United 
States, 917 F.Supp. 841, 846 (D.D.C. 1996), dismissed, 
926 F.Supp. 207 (D.D.C. 1996); Clark v. Sandusky, 205 
F.2d 915, 917 (7th Cir. 1953).  Where the information 
offered is "timely and useful." a court may generally 
grant leave to appear as amicus curiae.  Ellsworth, 917 
F. Supp. at 846; Waste Management v. City of New York, 
162 F.R.D. 34, 36 (M.D.Pa. 1995), aff'd, 782 F.2d 1033 
(3d Cir.), cert denied 476 U.S. 1141 (1986).  Although 
HyperLaw believes it to be in the public interest to 
allow the intervention of Lexis-Nexis, HyperLaw has 
certain positions that differ from the interests of 

Dated:  September 12, 1996

Respectfully Submitted:


Lorence L. Kessler (D.C. Bar # 
Counsel for HyperLaw, Inc.
Suite 400
1825 I Street, N.W.
Washington, D.C.  20006

Of counsel:
Alan D. Sugarman. Esq.


I hereby certify that on September 12, 1996 I 
caused copies of the MOTION OF HYPERLAW, INC. TO 
PROPOSED FINAL JUDGMENT to be served by pre-paid, first 
class U. S. Mail:
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

Attorney General of New York
Steven D. Houck, Esq.
Chief Antitrust Bureau
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

Attorney General of the State of California
Kathleen E. Foote
Deputy Attorney General
1300 I Street
Sacramento, CA  95814

Attorney General of the State of Connecticut
Aaron S. Bayer
Deputy Attorney General
110 Sherman Street
Hartford, Connecticut 06105

Attorney General of the State of Illinois
Christine H. Rosso
Chief, Antitrust Bureau
100 Randolph St.
12th Floor
Chicago, IL  60601

Commonwealth of Massachusetts
George K. Weber
Assistant Attorney General
Chief, Consumer Protection and Antitrust Division
Public Protection Bureau
One Ashburton Place
Boston, MA  02109

Attorney General of the State of Wisconsin
Kevin J. O'Connor
Assistant Attorney General
123 West Washington Ave.
Madison, Wisconsin 53717

Alan D. Sugarman, Esq.
September 12, 1996