03/28/96 HyperLaw, Inc.®
After a two week trial in 1988 of the page numbering copyright case, West and Mead entered into a confidential settlement agreement which settled this action as well.
It is not known to what extent Mead had releasef all claims made in this complaint: if it did, that may explain partly why Lexis (Mead's successor) has not today publicly opposed the acquisition of West by Thomson.
This complaint also describes Mead's claims that the United States Deparment of Justice was involved in practices with West which injured Mead.
The Complaint may be found at HyperLaw's Web Site:
______________________________: UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
MEAD DATA CENTRAL, INC. :
9333 Springboro Pike :
Miamisburg, Ohio 45342 :
WEST PUBLISHING COMPANY, : COMPLAINT
50 West Kellogg Blvd. :
St. Paul, Minnesota 55102 :
Plaintiff Mead Data Central, Inc. ('MDC'), by its attorneys, for its complaint against Defendant~ West Publishing Company ("West"), complains and alleges as follows:
1. This complaint is filed and this action instituted under Sections 4 and 15 of the clayton Act (15 U.S.C. SS 14 and 26) to recover damages for injuries to plaintiff's business and property by reason of the violations by west of Sections 1 and 2 of the Sherman Act (15 U.S.C. SS 1, 2), and to enjoin west from continuing to commit such violations in the future. The action also arises under the antitrust, unfair competition and common laws of the several states, the Lanham Act, 15 U.S.C. SS 1051 et seq., and the Declaratory Judgment Act, 28 U.S.C. SS 2201 and 2202. Jurisdiction of this Court is proper under 15 U.S.C. SS 15 and 26, 28 U.S.C. SS 1331, 1332 and 1337, and the doctrine of pendent jurisdiction. The amount in controversy exceeds $10,000.00, exclusive of interest and costs.
2. The business and acts of West described herein are conducted in, and affect commerce between and among, the various states of the United States and between the United States and foreign nations and their territories. The unlawful acts of West alleged hereinafter have restrained interstate trade and commerce.
3. West is authorized to do business in the State of Ohio and transacts business and is found within the Southern District of Ohio, Western Division (Dayton). Some of the claims which are the subject of this complaint arose in or had effects within the State of Ohio and the Southern District of Ohio, Western Division (Dayton). West is subject to the jurisdiction of this Court because the case invokes a federal question. Venue is proper in this district pursuant to 15 u.S.C. S 22 and 28 U.S.C. SS 1391 and S.D. Ohio R.2.1.2.
4. Plaintiff MDC is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Miamisburg, Ohio. MDC's businesses include a computer-assisted legal research and reporting service, commonly known as LEXIS, which makes available to subscribers opinions of the federal and state courts and statutes of the United states and the 50 states. LEXIS subscribers are located in all 50 states and the District of Columbia, and include private law firms, law schools, federal, state and local government agencies, as well as the united States courts.
5. West is a corporation organized and existing under the laws of the State of Minnesota, with its principal place of business in St. Paul, Minnesota. West's businesses include the printing, reporting, publishing and distribution of state and federal court opinions and statutes, and legal research materials, in all fifty states and the District of Columbia. Since 1975, West has also offered a computer-assisted legal research and reporting system, commonly known as WESTLAW. West is the dominant publisher of federal and state judicial opinions and statutes in the United states.
6. MDC seeks a declaratory judgment, injunctive relief and treble damages for West's wrongful and willful acts which have resulted in the acquisition and maintenance of a wrongful monopoly, the exclusion of competition and denial of access to an "essential facility." Through a series of anticompetitive acts, including, without limitation, refusals to deal, exclusive contracts, acquisitions, improper copyright claims, and predatory practices, West has willfully acquired and sought to maintain a monopoly and exclude competition in the publication of the core source of judicial opinions of the lower federal courts and state courts and state statutes relied upon by attorneys for the practice of law and by others interested in the laws of the United States and the individual states. Over the years, west became the sole published source for the materials of the lower federal courts, most of the state courts and many state statutes. West has sought to prevent access to these published judicial opinions by potential and actual competitors, even though those materials are the work of government officials and are in the public domain. In the last fifteen years, West's unlawful acts have been directed primarily at MDC, whose LEXIS service represents the first significant competitive source of such core legal materials that West has faced, on a nationwide basis, in this century. Having obtained its monopoly position, West has aggressively misused its monopoly power to gain competitive advantages and suppress competition and technological and other innovations in the marketplace.
7. MDC introduced its LEXIS service in 1973. Since that time West has employed its monopoly power in a continuous, multi-pronged campaign to suppress and eliminate competition from MDC. West has sought to deny MDC timely and complete access to public domain materials, including judicial opinions and status, by such means as refusals to deal, false and fraudulent Copyright claims or other claims of exclusive rights, exclusive contracts, and preferential and restrictive arrangements with federal and government entities. West has used its monopoly profits to subsidize its introduction of a computer-assisted research system ("WESTLAW") and has engaged in a campaign of predatory actions, including aggressively discounted pricing to actual and potential LEXIS customers. These and other anticompetitive acts have injured MDC in its business and property and limited its ability to compete with West, injured competition, and improperly limited access to the law of this land. MDC is entitled to money damages for its past injuries, a declaration that West's control of the published opinions of the lower federal Courts and state courts and state statutes constitutes an "essential facility" to which all competitors should have access, and to an injunction prohibiting West from further maintenance and use of its monopoly and monopoly power and other anticompetitive acts. The legal profession and the public will never receive the benefits of full and fair competition unless MDC and others are granted the full and equal access to the core legal materials now dominated and controlled by West.
AND DOMINANT MARKET POSITION
8. Prior to 1880, there were numerous independent reporters of opinions of the lower federal courts, as well as numerous additional reporters of state judicial opinions and statutes.
9. West began publishing and reporting opinions of the lower federal courts in its Federal Reporter in 1880. By 1890, West was publishing and reporting opinions of state courts nationwide, and with each state and region, in "regional reporters" in its so-called National Reporter System. West thereafter systematically increased the number and completeness of the opinions and courts included in its various federal, regional and State reporters. West also commenced publishing the statutes of various states and has systematically increased the number of states for which it publishes statutes.
10. Commencing at a time presently unknown to plaintiff, and continuing to the present, West embarked upon a plan to monopolize and dominate the business of reporting the lower federal court and state court opinions, state statutes and related legal research materials. West has systematically suppressed competition by acquiring competitors. Those acquisitions include, but are not limited to, the publications of Benjamin Abbott or his successors in interest, Edward Thompson Company, Vernon Law Book Company, American Law Book Company, Boston Law Book Company, Burdette Smith Company, Soney & Sage Company, Washington Law Book Company and Foundation Press, Inc. Over time, virtually all private reporters of opinions, other than West, have left that business.
11. West has consolidated its monopoly power and position by means of various restrictive and anticompetitive practices, including without limitation, refusals to deal; exclusive contracts, agreements and arrangements with federal and state courts and agencies, state legislatures and national and state legal accreditation authorities and other associations; manipulation of copyright claims, and suppression of competition in a secondary market for legal materials.
12. At the time of the introduction of LEXIS in 1973, and continuing to the present, West has held a monopoly or attempted to obtain a monopoly position nationwide and in the individual states in numerous lines of interstate commerce, including the following relevant markets and sub-markets:
a. Published reports of judicial opinions and statutes, including:
(i) Reports of the opinions of the United States Courts of Appeals.
(ii) Reports of the opinions of the United States District Courts.
(iii) Reports of the opinions of state courts where West is the official reporter or the sole source of opinions.
(iv) Annotated texts of statutes of the states of Arizona, Connecticut, Illinois, Iowa, Louisiana, Maine, Minnesota, Missouri, New Jersey, Oklahoma, Pennsylvania, Texas, Washington and Wisconsin.
b. Legal research materials and aids for finding federal and state court opinions. West is the sole publisher of comprehensive legal digests of federal and skate court opinions, publishes one of two legal encyclopedias, and publishes numerous compilations and analyses of federal and state statutes, legal treatises and a majority of legal casebooks in the united States. These publications, together with the other publications referred to in this paragraph and their integration with West's "key numbers" and "headnotes" provide the only or dominant comprehensive source of legal research materials and aids for finding Judicial opinions and statutes.
c. Computer-assisted legal research and reporting system.
d. The foregoing constitute the relevant products over which West has achieved and continues to maintain a monopoly or has attempted to monopolize or is attempting to monopolize.
13. Both before and since the introduction of LEXIS, West has aggressively sought and obtained cooperation of, and preferential treatment from, the federal courts of appeals and district courts in the collection and editing of judicial opinions and citation and references to, and use of, West's published reports of judicial opinions. In furtherance thereof, among other things:
a. West has sought and obtained exclusive contracts with United States Courts of Appeals under which West would or did receive copies of judicial opinions before they were filed, added its headnotes and key numbers to those opinions and thereafter returned printed opinions to the court for filing and distribution.
b. West has encouraged and persuaded federal Judges to accept West's reporters as the preferred and definitive source of published opinions of the lower federal courts, and thus to forward decisions for publication promptly to West and to cooperate with and assist west in the editing and other preparation of those opinions for publication in West's reporters. Many judges provide West exclusively with any revisions or corrections made to opinions by the court.
14. West has acquired rival publishers of state statutes, and has encouraged states to permit West to be the official or exclusive publisher of state statutes and opinions of some or all state courts. At present, West is the sole published source of court of court opinions in at least one state court in each of thirty-two states. Each of West's regional reporters includes at least one state for which West is the sole source of that state's published judicial opinions.
15. West alters the text of judicial decisions it publishes by making technical and other changes in the text and inserting citations to its own reporters. West thereby encourages reference and citation to, and use of, its publication of judicial opinions and induces the Bar to rely upon West's reports of judicial opinions as the definitive version of the decisions for purposes of citation in court filings and other references.
15. West's monopoly power and dominant market position has further been obtained, maintained and enhanced in part through use and misuse of copyright claims. West claims a copyright on the entirety oŁ its reports of federal court opinions, state court opinions and state statutes, even though such opinions and statutes are the work of government officials and are in the public domain and not subject to copyright protection. West thereby has sought to insulate itself from competition by refusing access to competitors and potential competitors of such published judicial opinions and statutes. West has also sought to impede competitors and potential competitors from seeking to provide an alternative comprehensive source of such judicial opinions and statutes by means of the threat of being confronted with protracted copyright litigation or the inordinately expensive, time consuming and fruitless effort of seeking to obtain the Judicial opinions and statutes from sources other than west's publications.
17. In a further effort to enhance and maintain its monopoly power and market domination, West also adds to judicial opinions in its published law reports a comprehensive network of headnotes and "key numbers" in which it also claims copyright protection. By virtue of the combination of this legal research and analysis material with West's monopoly of the publication and claimed copyright of a comprehensive source of federal and state court decisions, and digests of such decisions, west further encouraged and compelled reliance upon its publications of judicial opinions and statutes. West also acquired and maintained a monopoly or dominant market position over a legal research system for efficiently locating legal source material and precedents concerning most specific points of law.
As a result of the foregoing:
a. West's publications increasingly have become the definitive or accepted versions of federal and state court opinions, the sole source of many older judicial
opinions that increasingly become difficult, impossible or economically impractical to obtain from other sources, and the sole source of certain state statutes.
b. Possession of, or access to, West's published law reports and digests, and state statute reports, became a practical necessity for most lawyers, court personnel, law school educators, law students and others involved in law-related work and legal research.
c. A general purpose law library has not been considered minimally adequate without providing the entire "West system" of federal law reports, one or more West reporters of state court opinions and West's digests.
d. Significant barriers to entry were created for anyone who considered seeking to enter into competition with West to provide a comprehensive source of federal and state court opinions and statutes.
19. West has acted to deny equal access to judicial opinions and statutes. West has sought preferential and exclusive access to such judicial opinions and statutes for itself, and has sought to prevent equal access to such judicial opinions and statutes to all competitors and potential competitors which would increase the availability of such essential legal materials to the legal profession and others interested in the law of this land. Obtaining copies of such judicial opinions and statutes from sources other than West is economically infeasible and not practical.
20. Commencing in 1969, MDC sought to apply data communications and computer technology to the process of legal research and text retrieval, developing technology to store, search and retrieve judicial opinions and statutes. In early 1973, LEXIS was introduced commercially. At the date of its introduction, the LEXIS database contained the full text of a limited number of judicial opinions from the federal courts end a few state courts. However, MDC has continuously added judicial opinions to the LEXIS database for progressively earlier periods and for other jurisdictions. MDC also continuously added new judicial opinions on an on-going basis, as well as current statutes, regulations and rulings.
21. MDC developed a network and procedure for collecting new judicial opinions and governmental regulations, rulings and legislation. MDC expended and continues to expend millions of dollars in collecting and converting such materials into machine-readable form for inclusion in the LEXIS database.
22. MDC also developed a marketing and distribution system and expended and continues to expend millions of dollars to promote and sell the LEXIS service to private law firms, law schools, federal, state and local governmental agencies and courts and diverse other potential customers for that service.
23. MDC, through its LEXIS system, thus introduced and continues to provide actual and potential direct competition to West for retrieval of judicial opinions of the federal and state courts and federal and state statutes by judges, legislators, lawyers, and others interested in the laws of the United States and individual states.
24. In response to the introduction of the LEXIS service, West embarked upon a multifaceted and on-going campaign to utilize its monopoly power to gain a competitive advantage, to foreclose or destroy the competitive threat posed by LEXIS and/or to delay and prevent the cost-efficient expansion of the LEXIS service in an effort to impair its competitive position and effectiveness. West has and continues to engage in restrictive and anticompetitive practices designed to protect, entrench and extend its monopoly position and market dominance.
25. West has maintained and intensified the restrictive and anticompetitive practices that predated the introduction of LEXIS and that have been previously described. Among other things, West has engaged in the following practices and acts;
a. West promptly sought new or extended exclusive contracts with united States Courts of Appeals to print the opinions of the courts. West obtained and maintained until recently such contracts with the Fifth, Ninth and Eleventh Circuits and the District of Columbia Circuit. Those contracts enabled West to obtain, print and publish opinions of those courts prior to their availability to MDC or prior to the time MDC could reasonably add such opinions to the LEXIS database. The contracts also reduced West's expense in collecting, editing and publishing the opinions and provided a government subsidy of a portion of West's costs.
b. West sought and entered into certain exclusive contracts with agencies of the United States, Department of the Air Force and Department of Justice to develop and expand computer-assisted legal research services. West employed its monopoly position and copyright claims as to its published law reports, digests and statutes as inducements and consideration for those contracts and to extract various exclusive rights to the computer tapes and other materials developed under those contracts. The contracts also provided West with vehicles for obtaining Government funds and assistance in developing and marketing a full-text computer-assisted legal research and text retrieval system should West decide to market such a system. Those contracts included the following:
(i) a "FLITE License Agreement" entered into in 1974 with the Department of the Air Force; and
(ii) a "JURIS License Agreement' entered into on or about May 5, 1975 with the Department of Justice and extended and expanded by an agreement dated February 13, 1976.
c. West sought to and did dissuade employees of the federal and state courts and government agencies and private companies engaged in commerce in legal research, retrieval and reporting materials from cooperating with MDC. At the same time, West persuaded many of those same officials, agencies and companies to continue to cooperate with and even provide preferential assistance to West.
d. West engaged and continues to engage in the dissemination of false sad misleading advertising and disparagement of LEXIS, including false and misleading comparisons as to the timeliness, accuracy, completeness and capabilities of LEXIS and WESTLAW, the computer-assisted legal research, retrieval and reporting service that West eventually introduced in response to LEXIS.
26. Since West began marketing WESTLAW, West has systematically used MDC's trade secrets and copied MDC's user interface design and system and used its monopoly profits and competitive advantages obtained from its monopoly position and its exclusive contracts with the courts and other government entities, among other things, to subsidize and facilitate the development and introduction of WESTLAW. The introduction of WESTLAW was in furtherance of West's on-going scheme to preserve, entrench and expand its monopoly and market dominance in the relevant markets previously described.
27. Following the introduction of WESTLAW, West also implemented and continues to employ additional anti-competitive and unlawful practices to destroy or impair MDC's ability to compete and to expand sales and use of WESTLAW.
a. West provided special pricing and otherconcessions to significant actual or potential users of LEXIS on the condition that WESTLAW is used exclusively or primarily and that the use of LEXIS is terminated or substantially reduced.
b. West provided price and other concessions to actual or potential users of LEXIS which are below West's costs or predatory, and West otherwise has engaged in aggressive, widespread and discriminatory discounting in connection with the marketing of WESTLAW.
c. As a result of those and other anticompetitive practices of West alleged herein, MDC has lost sales and revenues from the use of LEXIS. MDC's growth and competitive position has thereby been injured.
d. West has subsidized the foregoing and other anticompetitive practices from monopoly profits obtained by virtue of its monopoly power and market domination.
28. As a result of its monopoly power and anticompetitive acts heretofore described, West has and continues to receive on a more complete and timely basis judicial decisions from numerous federal and state courts and individual judges.
a. WESTLAW thereby is afforded competitive advantages in making those decisions available to customers faster and in more complete data base for that court or judge.
b. WESTLAW further enhances its competitive advantage as a result of the foregoing by emphasizing the purported timeliness and completeness of WESTLAW in its advertising and sales presentations. Yet, to the extent such claims are accurate as to a particular court or Judge, West's anticompetitive acts and monopoly position provide such an advantage to WESTLAW.
29. The aforesaid unlawful acts of west in restraint of trade and to monopolize, attempt to monopolize and other unfair acts of competition have had the following effects, among others:
a. MDC and others have been unlawfully deprived of free and open competition in the relevant markets and sub-markets alleged in paragraph 12 of the complaint;
b. Competition in the relevant markets and sub-markets alleged in paragraph 12 of the complaint has been unlawfully restrained and injured;
c. MDC and others have been unlawfully denied access to the federal and state court opinions and state statutes controlled by West;
d. The public interest has been harmed by west's unlawful efforts to control access to the federal and state court opinions and state statutes published by West;
e. The public has been deprived of free and open competition in the purchases of the relevant products alleged in paragraph 12 of the complaint.
30. MDC has suffered significant damages as a direct and proximate result of West's unlawful conduct alleged herein.
a. MDC incurred substantial additional expense in creating the libraries of retrospective state and federal court opinions for its LEXIS service.
b. MDC has incurred and continues to incur additional expense in obtaining current opinions from the courts due to West's anticompetitive acts.
c. MDC has lost sales and profits due to its inability to use West's "corrected" version of the opinions of the state and federal courts in the database of its LEXIS system.
d. MDC has lost sales and profits due to its inability to use the Section numbers and titles of statutes for the states where West has monopolized the market for access to the text of state statutes.
e. MDC has lost sales and profits in all of the relevant markets and sub-markets as a result of West's predatory practices and pricing.
f. LEXIS has incurred significant costs in attempting to counter the false and misleading advertising and statements made by West concerning MDC's LEXIS service.
31. Paragraphs 1 through 30 of this Complaint are incorporated herein by reference as if fully set forth herein.
32. Defendant West, in violation of Section 2 of the Sherman Act, 15 U.S.C. SS 2, has monopolized and continues to monopolize. or has attempted to monopolize the nationwide and state markets and sub-markets described in paragraph 12 of the Complaint, by controlling and refusing access to the published lower federal court and state court opinions, which constitute an "essential facility." It is economically impractical to duplicate West's collection of the lower federal court and state court opinions and state statutes. West has an obligation to make available to competitors and potential competitors on nondiscriminatory and reasonable terms its collection of the lower federal court and state court opinions and statutes. West's refusal to provide such access to such judicial opinions and statutes has been a severe handicap on the ability of MDC and others to compete with West. West's refusal to deal with MDC on a reasonable basis in providing access to the published lower federal court and state court opinions and statutes in the West reporter system violates Section 2 of the Sherman Act.
33. Paragraphs 1 through 30 and paragraph 32 of this Complaint are incorporated herein by reference as if fully set forth herein.
34. Defendant West, in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. SS 1 and 2, has entered into contracts in restraint of trade, and has monopolized and continues to monopolize the nationwide and state markets and sub-markets described in paragraph 12. of this Complaint.
35. Paragraphs 1 through 30 and paragraph 32 of this Complaint are incorporated herein by reference as if fully set forth herein.
36. Defendant West, in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. SS 1 and 2, has attempted to monopolize and continues to attempt to monopolize the nationwide and state markets and sub-markets described in paragraph 12 of this Complaint.
37. Paragraphs 1 through 30 and paragraph 32 of this Complaint are incorporated herein by reference as if fully set forth herein.
38. Defendant West, in violation of the antitrust, unfair competition and common laws of the states of the United States, has entered into contracts in restrain: of trade and has monopolized and attempted to monopolize the nationwide and state markets and sub-markets described in paragraph 12 of this Complaint.
39. Paragraphs 1 through 30 of this Complaint are incorporated herein by reference as if fully set forth herein.
40. Defendant West, in violation of the Lanham Act, 15 U.S.C. 1125 has falsely disparaged and described LEXIS service of plaintiff, and has falsely described the attributes of its own service, WESTLAW, both in absolute terms and in comparison to LEXIS.
WHEREFORE, plaintiff respectfully requests that the Court enter final judgment against defendant West:
1. Declaring that West's collection of published lower federal court end state court opinions and constitute an "essential facility" which must be made available to competitors and potential competitors on non-discriminatory and reasonable terms and that West's refusal to provide access to such judicial opinions and statutes is in violation of Section 2 of the Sherman Act.
2. Permanently enjoining West from refusing to allow MDC to have equal access to West's published opinions of the lower federal courts and state courts and state statutes;
3. Declaring that West has entered into contracts in restraint of trade and attempted to monopolize the relevant markets and sub-markets in violation of sections 1 and 2 of the Sherman Act;
4. Declaring that the opinions of the lower federal courts and state courts, as altered by West in conjunction with the courts, are not subject to copyright, and that West's alleged copyright claim in such judicial opinions are therefore invalid;
5. Declaring that the statutes of the states, including titles and sections numbers, are not subject to copyright, and that West's alleged copyright claims are therefore invalid;
6. Awarding plaintiff actual and treble damages pursuant to Section 4 of the Clayton Act, 15 U.S.C. SS 1 in an amount yet to be determined;
7. Awarding plaintiff its reasonable costs and expenses, including attorneys' fees, incurred in prosecuting this action, pursuant to Section 4 of the Clayton Act, 15 U.S.C. SS 15; and
8. Awarding plaintiff such other and further relief at law or in equity as this Court may deem just and proper. JURY DEMAND
Plaintiff hereby demands a trial by jury of all issues triable of right by a jury in the Complaint set forth above.
Dated: August 18, 1987
Alan M. Wiseman
Howrey & Simon
1730 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Armistead W. Gilliam, Jr.,
SMITH & SCHNACKE
2000 Courthouse Plaza, N.W.
10 West Second Street
Dayton, Ohio 45402
Trial Attorney for Plaintiff Mead Data Central, Inc.
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