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Volume 1 December, 2004 THE A ntitrust P A ntitrust P ractitioner ractitioner NOTE FROM THE CHAIR IN THIS ISSUE FROM THE EDITOR N Developments in Standards for W W elcome to the inaugural issue elcome to the fi rst issue of Summary

  1. Volume 1 December, 2004 THE A ntitrust P A ntitrust P ractitioner ractitioner NOTE FROM THE CHAIR IN THIS ISSUE FROM THE EDITOR N Developments in Standards for W W elcome to the inaugural issue elcome to the fi rst issue of Summary Judgment in Oligopoly of Antitrust Practitioner . This the Antitrust Practitioner , Price-Fixing Cases . . . . . . . . . . . . . . . 2 is our fi rst issue to be distribut- the new incarnation of the N Empagran: A Post Script . . . . . . . . . . 6 ed electronically, and I hope you enjoy the newsletter of the Civil Practice and Pro- convenience and our new, “web-friendly” cedure Committee of the ABA Section N The Confl ict in the Circuits Over look. As Bill Page describes in his note, of Antitrust Law. The present format of Personal Jurisdiction and Venue in Antitrust Cases . . . . . . . . . . . . . . . . . 8 this marks an exciting new chapter for the the newsletter was chosen to allow the Civil Practice & Procedure Committee editors and authors the greatest fl exibility N Antitrust TeleSeminar Series: Newsletter. Substantively, we will use the in addressing current issues in antitrust The Oracle/PeopleSoft Decision . . . . . 11 newsletter to discuss in some depth a few practice, with a particular focus on the issues of importance to practicing antitrust pretrial stage. We hope the membership lawyers. We hope you will fi nd this a help- of the Committee will fi nd the newsletter ful tool in your daily practice. Our focus useful, and will participate in its future in this issue on personal jurisdiction, extra- development by suggesting topics and territorial jurisdiction, proving conspiracy contributing articles and other items. in a circumstantial case, and the implica- In this issue, we offer three articles and tions of the Oracle trial sets the bar at a a report on a recent teleseminar discus- very high level for Bill, the editorial board sion. In the fi rst, Edwin Fountain and and the authors. Once you have read the Alicia Hogges-Thomas analyze the Third articles in this issue, I am sure you will Circuit’s recent Flat Glass decision, which share my confi dence in the future success addresses the standard for summary of this undertaking. Congratulations to all judgment in price-fi xing cases that rest of them for their hard work and excellent on circumstantial evidence. The authors and thought-provoking material. compare the Third Circuit’s approach The Committee has a new leadership with the approaches of the Seventh Cir- team this year. Our job is to make this cuit in High Fructose Corn Syrup and the committee responsive to your needs and to Eleventh Circuit in Williamson Oil . make it easy for you to become involved. Our two other articles consider issues We are always looking for membership that affect of the jurisdictional reach of participation in our publications and the antitrust laws. Edward Cavanagh programs and, frankly, membership is analyzes the important issues left open by much more rewarding if you actively the Supreme Court’s recent decision in participate and develop a network of Empagran , which held that the Foreign antitrust lawyers around the country. So, T rade Antitrust Improvements Act bars if you have an idea for an article (even if “subject matter jurisdiction” over the you want to suggest someone else as the claims of foreign plaintiffs that allege author), drop Bill Page an email. And, conduct that harms both U.S. and for- if you are interested in working on ALD eign customers, where “the adverse for- projects, let Doug Ross know. For those eign effect is independent of any adverse Continued on page 10 Continued on page 10

  2. Developments in Standards for Summary Judgment in Oligopoly Price-Fixing Cases: A Comparison of Flat Glass with High Fructose and Williamson Oil by Edwin L. Fountain and Alicia I. Hogges-Thomas 1 I n the absence of an admission or broke no new ground. Nevertheless, the with respect to the fl at glass conspiracy, other direct evidence of conspiracy, court’s analyses of two separate conspira- but affi rmed with respect to the alleged a Section 1 plaintiff “must present cies involving separate products, granting conspiracy regarding automotive evidence from which the existence of such summary judgment to the defendants as to replacement glass. 2 The an agreement can be inferred.” one alleged conspiracy but denying it as to The Third Circuit read Matsushita to problem with relying on indirect means of the other, offer an illuminating application say that “the acceptable inferences which proof, however, is that such circumstantial of traditional standards, and a useful basis can be drawn from circumstantial evidence evidence “is by its nature ambiguous, and for comparison with recent decisions of vary with the plausibility of the plaintiffs’ the Seventh Circuit in High Fructose Corn necessarily requires the drawing of one theory and the dangers associated with 9 The court referred to its or more inferences in order to substanti- Syrup and the Eleventh Circuit in William- such inferences.” 3 The ate claims of illegal conspiracy.” son Oil ( In re Cigarette Price-Fixing ). prior decision in Petruzzi’s IGA v. Darling- 10 a case involving allegations Supreme Court held in Matsushita Electric In Flat Glass , the plaintiffs alleged Delaware , Industrial Co. v. Zenith Radio Corp. that conspiracies to fi x the prices of fl at glass of a customer allocation scheme. In that “mistaken inferences” in antitrust conspir- and automotive replacement glass. The case, the Third Circuit held that the theory acy cases “are especially costly, because they fi ve defendants who manufactured fl at of conspiracy made “perfect economic chill the very conduct the antitrust laws are glass — PPG Industries, Libbey-Owens- sense,” so “more liberal inferences from 4 designed to protect.” Ford Company (LOF), AFG Industries, the evidence should be permitted than in 5 In In re Flat Glass Antitrust Litigation , Guardian Industries and Ford Motor Matsushita because the attendant dangers the Third Circuit addressed the issue Company — accounted for 90% of from drawing inferences recognized in 11 of what inferences are permissible from the fl at glass sold in the United States, Matsushita are not present.” circumstantial evidence, or what it called making the industry a classic oligopoly. The Third Circuit thus appears to “the recurring question of what quantity The automotive replacement glass contemplate a sliding scale of standards for and quality of evidence suffi ces to cre- industry was similarly dominated by summary judgment, in which the strength ate a genuine issue of material fact” as to eight manufacturers, including four of of the inferences from the evidence re- 6 the existence of a Section 1 conspiracy. the fi ve major fl at glass producers. The quired to create a jury issue of conspiracy Quoting its own prior discussions of allegations against the fl at glass producers will vary inversely with the plausibility Matsushita , the court stated that “the ac- were straightforward, resting on the fact 12 The Seventh of the plaintiff’s theory. ceptable inferences which can be drawn that on several occasions the defendants Circuit made a similar pronouncement in from circumstantial evidence vary with the raised their list prices in the same amounts In re High Fructose Corn Syrup Antitrust plausibility of the plaintiffs’ theory and the at about the same times. The claim Litigation , where Judge Posner wrote that 7 dangers associated with such inferences.” against the automotive replacement “[m]ore evidence is required the less plau- This characterization of “varying” infer- glass producers was more complex, and 13 In sible the charge of collusive conduct.” ences suggests a sliding-scale approach to focused on a catalogue published by an fact, Matsushita arguably drew a more rigid summary judgment, such that the more independent company which provided a distinction between plausible and implau- plausible the alleged conspiracy, the more recommended price for installers to charge sible theories, and focused not so much on willing the court should be to permit infer- car owners for each type of automotive the degree of plausibility of the plaintiffs’ ences in the plaintiff’s favor. Although glass product; the defendants allegedly theory but rather on the relative plausibil- such an approach would arguably be less acted in concert to work backward from ity of the “competing inferences” proffered conducive to summary judgment than this price catalogue to set their wholesale by the defendants. 8 other readings of Matsushita , the Third prices. The Matsushita Court considered Circuit ultimately applied a conventional Plaintiffs settled with all defendants a claim that Japanese television “plus factor” analysis in the context of except PPG. PPG fi led a motion for manufacturers had conspired to fi x an alleged price-fi xing scheme in an summary judgment, which the district artifi cially low prices in the United States oligopolistic market, and to that extent court granted. The Third Circuit reversed in order to drive American manufacturers The Antritrust Practitioner Page 2 Continued on next page Volume 1, December 2004

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