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ORAL ARGUMENT SCHEDULED FOR MAY 19, 1998
No. 97-5183
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, ET AL.,
Plaintiffs-Appellees,
v.
THOMSON CORP., ET AL.
Defendants-Appellees,
HYPERLAW, INC.,
Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLEE UNITED STATES OF AMERICA
(FINAL COPY)
JOEL I. KLEIN
Assistant Attorney General
DONNA E. PATTERSON
Deputy Assistant Attorney General
CRAIG W. CONRATH ROBERT B. NICHOLSON
JAMES K. FOSTER, JR. JOHN P. FONTE
Attorneys Attorneys
Department of Justice Department of Justice
1401 H Street, N.W. 601 D Street, N.W.
Suite 4000 Room 10535
Washington, D.C. 20530 Washington, D.C. 20530
(202) 514-2435
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici.
All parties, intervenors, and amici appearing before
the district court and in this Court are listed in the Brief for
Appellant, HyperLaw, Inc.
B. Rulings Under Review
References to the rulings at issue appear in the Brief
for Appellant, HyperLaw, Inc.
C. Related Cases
This case was heard in the United States District Court for
the District of Columbia, in Docket No. 96-1415. Notices of
appeal from that action were filed in this Court in Nos. 96-5309,
97-5062 and 97-5070. All three appeals were voluntarily
dismissed by the appellants. Additionally, HyperLaw filed a
notice of appeal from the December 23, 1996 district court's
order which was docketed in this Court as No. 97-5063. This
Court dismissed that appeal as moot on October 23, 1997. The
"appeals now before the United States Court of Appeals for the
Second Circuit," mentioned in appellant's certificate as to
related cases, are not related to this case. Those appeals are
from declaratory judgment actions concerning West Publishing
Company copyright claims, and do not involve issues similar to
those presented in this appeal.
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
TABLE OF AUTHORITIES
GLOSSARY
STATEMENT OF JURISDICTION
STATUTORY PROVISIONS
STATEMENT OF ISSUES
STATEMENT OF THE CASE
- Proceedings In The District Court
- Statement of Facts
- Background To The Transaction
- The Proposed Consent Decree
- The District Court's Decisions
SUMMARY OF ARGUMENT
ARGUMENT
- STANDARDS OF REVIEW
- THE DISTRICT COURT'S FINDING THAT THERE ARE NO
"DETERMINATIVE DOCUMENTS" WITHIN THE MEANING OF THE
TUNNEY ACT IS NOT CLEARLY ERRONEOUS
- THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY
NOT REQUIRING A SECOND ROUND OF NOTICE AND COMMENT
CONCLUSION
WORD COUNT CERTIFICATE
CERTIFICATE OF SERVICE
ORAL ARGUMENT SCHEDULED FOR MAY 19, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-5183
UNITED STATES OF AMERICA, ET AL.,
Plaintiffs-Appellees,
v.
THOMSON CORP., ET AL.
Defendants-Appellees,
HYPERLAW, INC.,
Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLEE UNITED STATES OF AMERICA
STATEMENT OF JURISDICTION
The district court had jurisdiction to enjoin the subject
acquisition under 15 U.S.C. &167;&167; 4 & 8 and 28 U.S.C. &167;&167; 1331 &
1337. This Court has jurisdiction to review the district court's
final judgment under 15 U.S.C. &167; 29(a) and 28 U.S.C. &167;&167; 1291 &
1294. Final judgment was entered on March 7, 1997, and, after
the district court granted an extension of time within which to
file a notice of appeal from that final judgment, the notice of
appeal was timely filed on July 9, 1997. (Doc. 136).1 See
infra note 4.
STATUTORY PROVISIONS
STATUTORY PROVISIONS
All applicable statutes, etc., are contained in the Brief for
Appellant, HyperLaw, Inc.
STATEMENT OF ISSUES
1. Whether the district court clearly erred when it found
that there were no determinative documents within the meaning of
the Tunney Act in this antitrust consent decree proceeding.
2. Whether the district court abused its discretion when it
determined that additional public notice and comment was not
needed for it to make its public interest determination.
STATEMENT OF THE CASE
A. Proceedings In The District Court
On June 19, 1996, the United States of America and the states
of California, Connecticut, Illinois, Massachusetts, New York,
Washington and Wisconsin ("plaintiffs"), filed a complaint
challenging the proposed acquisition of West Publishing Company
("West") by the Thomson Corporation ("Thomson") as a violation of
Section 7 of the Clayton Act, 15 U.S.C. &167; 18, and Section 1 of
the Sherman Act, 15 U.S.C. &167; 1. (Doc. 1; J.A. 123). The
complaint sought permanent injunctive relief. Simultaneously,
the plaintiffs filed, pursuant to the Antitrust Procedures and
Penalties Act ("Tunney Act"), 15 U.S.C. &167; 16(b)-(h), a proposed
consent decree to settle the case. (Doc. 3 Attachment; J.A.
591). On July 5, 1996, the United States published the proposed
decree and a competitive impact statement ("CIS") in the Federal
Register. See 61 Fed. Reg. 35,250 (1996). .
Comments were received from 26 parties, to which the plaintiffs
filed a response, including amendments to the proposed decree, on
September 23, 1996. (Doc. 43; J.A. 625).2 On
September 30, 1996, the district court heard oral argument from
the plaintiffs, from Thomson and West, and from amicus curiae
Lexis-Nexis. The district court also received amicus briefs from
appellant, HyperLaw, Inc. (Doc. 49), and Lexis-Nexis. On October
23, 1996, the plaintiffs moved for entry of the revised proposed
consent decree as a final judgment. (Doc. 58; J.A. 709).
On December 23, 1996, the court entered an opinion and order
finding all aspects of the proposed decree to be in the public
interest except for one, and on that basis it denied the
plaintiffs' motion for entry of a final judgment. (Docs. 77 &
78).3 It pointed out, however, how it
believed the defects could be remedied, and invited submission of
a revised decree. 949 F. Supp. at 931-32. A revised decree was
submitted on February 4, 1997 (Doc. 99), but was again denied by
order and opinion filed on February 27, 1997. (Docs. 116 & 117;
J.A. 73). This time the court pointed out additional minor
defects that had to be corrected before it would enter a final .
judgment. In that order the court also granted HyperLaw's motion
to intervene for purposes of appeal. On March 7, 1997, after the
parties submitted another revised consent decree, the court
entered the revised decree as a final judgment. (Doc. 126; J.A.
87). This appeal followed.4
B. Statement of Facts
1. Background To The Transaction
West was the largest publisher of legal research materials in
the United States -- notably of court decisions contained in its
National Reporter System. (Doc. 6 p. 5; J.A. 159). Thomson, a
Canadian corporation, also was a very large publisher of legal
research materials in the United States. (Id. at 4-5; J.A. 158-
59).5 On February 25, 1996, Thomson
agreed to purchase West for approximately $3.42 billion in cash.
(Id. at 5; J.A. 159).
The plaintiffs in their antitrust complaint alleged that the
proposed acquisition would significantly reduce competition in
several specific product markets in three major categories: 1)
print and/or CD-ROM sales of nine "enhanced primary law" products
(i.e., annotated caselaw or statutes)6; 2)
print and/or CD-ROM sales of 47 "secondary law" products (i.e.,
federal or state procedure manuals, law treatises, practice
guides, etc.)7; and 3) the provision of
comprehensive online legal research services. (Doc. 1 pp. 8-20;
J.A. 130-42). The complaint explained that Thomson and West were
the strongest publishers in the nine enhanced primary law product
markets, and were either the only two or two of only a few
publishers in the 47 secondary law product markets. (Doc. 1 p.
3; J.A. 125). Additionally, West claimed copyright infringement
when a rival used what is commonly referred to as "star
pagination" -- the insertion of an asterisk or other symbol in
the text of a decision to indicate internal page breaks in West's
National Reporter System, and the placement nearby of the West
reporter's page number. (Id. at 12; J.A. 134). West had granted
few, if any, licenses to employ star pagination to anyone other
than Lexis-Nexis. (Id.). Because courts usually require
citations to the National Reporter System,.
the complaint alleged that West's copyright claim chilled entry
into the primary and secondary law markets charged in the
complaint because new entrants could not offer products using
star pagination without the threat of copyright infringement
litigation. (Id.).
Finally, the complaint explained that Lexis-Nexis and Westlaw
are the nation's two largest comprehensive online legal research
services -- electronic databases that allow users to search for
and find relevant portions of primary and secondary law
materials. (Doc. 1 p. 16; J.A. 138).8
West places its own primary and secondary law products on
Westlaw. (Id. at 18; J.A. 140). Lexis-Nexis places its own and
third parties' material on its service, including some Thomson
primary and secondary law products such as United States Code
Service and its annotated statutes for California, New York,
Massachusetts and Michigan. (Id.). Thomson also licensed to
Lexis-Nexis its Auto-Cite electronic citator service that is used
to gather case history and negative commentary for a case. The
complaint alleged that the acquisition would increase Thomson's
incentive to raise prices for, reduce quality and innovation of,
or withhold access to, some of the products it was
licensing to Lexis-Nexis. (Id. at 19; J.A. 141). .
2. The Proposed Consent Decree
Simultaneously with filing the complaint, the plaintiffs filed
a proposed consent decree to remedy the violations charged in the
complaint. The proposed decree required Thomson to divest its
U.S. Reports Lawyers' Edition, its enhanced statutory law
products, and one secondary law product in each of the relevant
secondary law markets. (Doc. 3 Attachment p. 6; J.A. 596). It
further required Thomson to divest its Auto-Cite product, and to
permit the states of California, Washington and Wisconsin to
reopen bidding of their contracts to publish the official state
reporters, thus allowing those states to cause a divestiture of
the state reporter products and related assets if they so chose.
(Id. at 6, 17; J.A. 596, 607). The purchasers of divested
products would receive all production assets of the products,
including intellectual property and work in progress, to allow
those products to remain viable. (Id. at 3-4; J.A. 593-94). The
decree also required Thomson to license the use of star
pagination in the National Reporter System to other legal
publishers (id. at 15-16; J.A. 605-06), and set forth a model
license agreement with a fee schedule. (Id. at Exhibit B; J.A.
615). That agreement contained a provision that required the
licensee to give up its right to challenge West's copyright
claim. (J.A. 619)..
9
The proposed decree did not prohibit the defendants from
consummating their transaction. Rather, it required them to hold
the divestiture products separate and to maintain those products
as ongoing and viable assets until divestiture was completed.
(Doc. 3 Attachment pp. 14-15; J.A. 604-05). Additionally,
through a stipulated order which the court signed on June 19,
1996, the defendants agreed to abide by the terms of the proposed
decree as though the decree was in effect. (Doc. 3 p. 2; J.A.
585). Thus, although the defendants consummated the acquisition
on June 20, 1996, the divestiture products were at all times held
separate.
The proposed consent decree and CIS were published in the
Federal Register on July 5, 1996. Among other things, the CIS
explained that there were no "determinative materials or
documents" within the meaning of the Tunney Act, 15 U.S.C. &167;
16(b), that were considered by the United States in formulating
the proposed decree. (Doc. 6 p. 24; J.A. 178). The public then
had 60 days in which to comment. See 15 U.S.C. &167; 16(b). The
plaintiffs received comments from 26 parties. On September 23,
1996, the plaintiffs filed with the court their response to the
public comments,10 along with a copy of each of
the comments
received. (Doc. 43; J.A. 625). In response to the comments, the
parties agreed to lower the star pagination license fee. They
also clarified that neither Thomson nor West would use the
existence of the star pagination license agreement to support
West's copyright claim, that the license fee need only be paid by
the publisher and not by third party information providers, and
that the license fee for books was payable only in the year
printed. (Doc. 43 pp. 35, 40, 50-51, 52; J.A. 663, 668, 678-79,
680). Additionally, at the September 30, 1996 hearing, in
response to concerns voiced by the court, Thomson agreed to
eliminate the license provision that prohibited licensees from
challenging West's copyright claim (Tr. 41-42, 84; J.A. 798-99,
841).
In its amicus brief filed October 18, 1996, HyperLaw argued,
among other things, that the government failed to make available
"determinative documents" within the meaning of the Tunney Act.
It claimed that those documents included, at the very least,
"secret 1988 agreements between West and Lexis-Nexis," and the
1996 license extension agreement between Thomson and Lexis.
(Doc. 49 pp. 4, 9-10 & n.8).11 It further argued, .
by reference to "HyperLaw's letter to DOJ dated October 10, 1996
(HyperLaw Exhibit J)," that the government was required to
republish for public comment the revised proposed consent decree.
(Id. at 3). On October 23, 1996, the plaintiffs filed their
response to HyperLaw's amicus brief reiterating that there were
no determinative documents, and explaining why the modifications
to the proposed decree did not require republication. (Doc. 57).
Also on October 23, 1996, the plaintiffs moved for entry of a
revised consent decree. (Doc. 58; J.A. 709). In addition to the
changes noted above, and in response to a supplemental brief
filed by Lexis-Nexis (Doc. 65), the submitted proposed decree
clarified: 1) that Thomson would not prohibit buyers of
divestiture products from cross-citing to Thomson products; 2)
that Thomson's assignment of its Auto-Cite agreement with Lexis-
Nexis as part of the divestiture of Auto-Cite would be only "if
permitted by contract;" and 3) that the Auto-Cite database to be
divested was sublicensable. (Doc. 58 at 2; J.A. 710).
3. The District Court's Decisions
On December 23, 1996, the court issued a lengthy opinion and
order finding all aspects of the proposed consent decree in the
public interest except for the star pagination license agreement.
The court first found that the plaintiffs had fully .
complied with all procedural requirements of the Tunney Act. The
court specifically rejected HyperLaw's claims that the government
should be required to disclose additional documents and that the
court could not approve the revised decree until it was published
in the Federal Register, finding "nothing in the statute or in
the case law" to support HyperLaw's claims. 949 F. Supp. at 915
n.7.
The court then evaluated whether the divestitures required by
the proposed decree would remedy the violations charged in the
complaint. The court found that the decree's hold-separate
safeguards, in conjunction with the degree of assets to be
divested and a buyer's ability to hire Thomson/West employees,
demonstrated that "the divested products will attract strong,
capable buyers who will be able to ensure the viability of the
[divestiture] products." 949 F. Supp. at 915-16. The court also
found that the divestiture products had sufficient brand
recognition, and that the purchasers of those products would be
able to continue cross-
referencing other Thomson products. Id.
at 916-17. Thus, the court "conclude[d] that the Proposed Final
Judgment adequately ensures the viability of the divested Thomson
products, thereby curing the specific allegations in the
complaint." Id. at 918. For the same reasons, the court also
found that the specific divestitures required by the proposed
decree, including Supreme Court Reports Lawyers Edition and Auto-
Cite, cured the offense charged in the complaint in the
comprehensive online legal research services .
product market. Id. at 921-24.
The court then addressed West's copyright claim and the star
pagination license agreement. The court expressed "serious
doubts" about the merits of West's claim. 949 F. Supp. at 925-
26. It then noted that "the consent decree does legitimize
Thomson/West's ability to profit from the licenses for use of
star pagination while the issue is litigated in the Second and
Eighth Circuits." Id. at 926.12 It concluded that "[t]hat fact
alone is troublesome in view of the weakness of West's
claim." Id. Although the court found the mandatory nature of
the license agreement in the public interest, since it gave
publishers protection from litigation by Thomson and West (id. at
928-29), it found that the fees to be paid by a licensee would
"maintain[] by court order significant barriers to entry into the
relevant markets identified in the complaint." Id. at 929.
Thus, the court found that the "license agreement and fee
schedule do not effectively remedy the anticompetitive effects of
the merger alleged in the complaint." Id. The court then
"suggest[ed] that the public interest would be served if West and
Thomson would agree to amend the license provisions . . . to
provide a free
license" until West's copyright claim is
judicially resolved. Id. at 930. And, although it denied entry of the
decree, the court invited the parties to "submit a revised
Proposed Final Judgment with an appropriate motion at their
earliest convenience." Id. at 931-32.
On January 26, 1997, Thomson agreed to sell all of the
divestiture products to Lexis-Nexis. (Doc. 98). Subsequently,
on February 4, 1997, the defendants submitted a revision to the
proposed decree, which the plaintiffs supported, addressing the
license fee issue raised in the court's December opinion. (Doc.
99). The revision provided that for any publishing company with
net sales of less than $25 million per year, all license fees
would be deferred until either "a final judicial determination"
of West's copyright claim had been made, or December 31, 2000,
whichever came first. If no final judicial determination had
been made by December 31, 2000, licensees would start paying
prospectively according to the fee schedule, but the fees accrued
to that point would continue in abeyance. Deferred fees would
become payable 30 days after West's copyright claim was upheld.
(Id.). Also on February 4, 1997, HyperLaw moved to intervene for
purposes of appeal. (Docs. 100 & 106; J.A. 506, 531).
On February 27, 1997, the court entered an opinion and order
addressing these matters. (Docs. 116 & 117). First, the court
concluded that the proposed sale of all divestiture products to
one buyer rather than several did not alter its .
previous findings concerning "the soundness of the divestiture
process and the sufficiency of the divestiture package." (Doc.
116 pp. 3-5; J.A. 75-77). It then addressed the revision to the
license agreement and noted that a minor change was needed to
clarify that a "final judicial determination" was a Supreme Court
decision on the merits. (Id. at 8-9; J.A. 80-81). Finally, it
granted HyperLaw's motion to intervene for purposes of appeal.
(Id. at 10-11; J.A. 82-83). After the license agreement was so
clarified, the court entered the amended proposed consent decree
as Final Judgment on March 7, 1997. (Doc. 126; J.A. 87).
Subsequently, the plaintiffs approved the sale of the divestiture
products to Lexis-Nexis, and the sale was completed on March 31,
1997.
SUMMARY OF ARGUMENT
The district court's finding that none of the four
document's singled out by HyperLaw are "determinative documents"
within the meaning of the Tunney Act is not clearly erroneous.
As this Court recently explained, a determinative document is one
that had a significant impact on the government's formulation of
the proposed decree. Since two of the documents at issue did not
even exist when the consent decree was drafted, they could not
have been instrumental in that drafting. And HyperLaw offers no
evidence to show that the other two documents it seeks played a
role in the decree's formulation. Indeed, HyperLaw's evidence
proves the exact opposite..
Additionally, the district court did not abuse its discretion
by not requiring a second round of public comments in this case.
The few modifications that were made to the original proposed
decree were a "logical outgrowth" of that proposal. Indeed, none
of the changes were contrary to HyperLaw's or the public's
interests, and the only substantive changes involved the star
pagination license, not the divestiture provisions of which
HyperLaw complains. Because the divestiture provisions in the
original proposal were not modified during the course of the
proceeding, those provisions were necessarily subject to full
notice and comment.
ARGUMENT
I. STANDARDS OF REVIEW
1. In United States v. Western Electric Co., 993 F.2d
1572 (D.C. Cir.), cert. denied, 510 U.S. 984 (1993), this Court
left unresolved whether the district court's underlying findings
in a Tunney Act case, which if improper could constitute abuse of
discretion, are reviewed under the "clearly erroneous" standard
or are reviewed de novo. See 993 F.2d at 1577-78 (citing Fed. R.
Civ. P. 52 but analogizing Tunney Act appellate review to review
of district court's application of substantial evidence standard
in reviewing an agency decision). In either case, the
government's determinations are due substantial deference. Id. We
believe that the court's finding that the government was correct
that there are no determinative documents in this case.
should be reviewed under the clearly erroneous standard.
2. We are not aware of any decision setting forth the
standard for reviewing a Tunney Act district court's
determination that an additional round of notice and comment is
not required for it to make its "public interest" finding.
Because the court enjoys broad discretion in controlling the
evidence gathering in these cases, see infra pp. 21-22, we
believe that its decision in this regard should be reviewed for
an abuse of discretion.
II. THE DISTRICT COURT'S FINDING THAT THERE ARE NO
"DETERMINATIVE DOCUMENTS" WITHIN THE MEANING OF THE
TUNNEY ACT IS NOT CLEARLY ERRONEOUS
The Tunney Act's notice and comment provision requires the
government to make available to the public copies of the proposed
consent decree, and "any other materials and documents which the
United States considered determinative in formulating such
proposal." 15 U.S.C. &167; 16(b). In its CIS, the government
certified that there were no determinative documents. (Doc. 6 p.
24; J.A. 178). And although HyperLaw claimed that there were
such documents, citing Section 16(b), the district court agreed
with the government. See 949 F. Supp. at 915 n.7.
Nonetheless, HyperLaw's primary argument (Br. passim) is that
the district court erred when it held that the Tunney Act did not
require production of any documents in this case. HyperLaw
argues that there are four determinative documents that the
government failed to produce: 1) the 1988 settlement.
agreement between West and Mead Data13;
2) the March 1996 agreement that extended Lexis-Nexis' licenses
for Thomson content included on its service14;
3) the January 1997 Thomson/Lexis-
Nexis sales agreement for the divestiture products; and 4) the
mutual release that was part of that sales agreement. See
HyperLaw Br. at 22 n.9.15 HyperLaw's claim borders on
the frivolous.
Just seven months ago, in Massachusetts School of Law of
Andover v. United States, 118 F.3d 776 (D.C. Cir. 1997)
("MSL"), this Court held that Section 16(b)'s statutory language
and legislative history lead to the conclusion that the term
"determinative documents" encompasses "only . . . documents, such
as reports to the government, that individually had a
significant impact on the government's formulation of relief --
i.e., on its decision to propose or accept a particular
settlement. " 118 F.3d at 784 (quoting Gov't's Br.) The Court
gave as an example of a determinative document the "Ramsden
memorandum" that formed the basis for the government's decision
not to require ITT to divest the then recently acquired.
Hartford Fire Insurance Company. Id.16
HyperLaw, which omits any reference to MSL, does not come
close to showing that the documents it claims are determinative
"individually had a significant impact on the government's
formulation of relief." 118 F.3d at 784.17
Neither the 1997 West/Lexis-Nexis sales agreement for the
divestiture products, nor the mutual release attached to it,
could have been determinative in government formulation of the
proposed final judgment in 1996, because neither the agreement
nor the release then existed.18 Nor does HyperLaw give any
remotely persuasive.
explanation why the March 1996 Thomson/Lexis-Nexis agreement,
that merely extended existing licenses for 5 years, would have
been determinative in formulating the decree.
HyperLaw is thus left with arguing that the government must
have considered the 1988 settlement agreement between West and
Mead Data a determinative document because, allegedly, "the
Government's own papers" "constantly" and "repeatedly" refer to
that settlement agreement. (Br. 12, 17 n.5, 18, 20, 25 n.12, 29,
30). But the record is clear that no government "papers" refer
to this 1988 agreement. Thus, although HyperLaw claims that it
"described the many references to these 1988 agreements made in
connection to the proposed consent decree" in its counsel's
October 10, 1996 letter to the Department of Justice (Br. 20-21 &
n.8), neither its brief nor that October 1996 letter provides one
citation to any government document that makes reference to the
1988 agreement. Indeed, no such government document exists.19
Thus, HyperLaw's claim that "the Justice Department . . .
repeatedly refer[ed] to central, critical, and finally
determinative documents in virtually .
every pleading filed" (Br. 30) (emphasis in original) is
totally baseless.20
Moreover, HyperLaw's claim, that "[a]ccording to the
Government's own papers, these documents were used in its
negotiation of the [star pagination] License Agreement" (Br. 18),
is totally refuted by the very "evidence" upon which it does
rely. Thus, on page 14 of its brief, HyperLaw quotes at length
from an article in the September 1996 issue of The American
Lawyer titled How West Was Won. That article, in turn, quotes
"West's chief lawyer" as explaining that the proposed star
pagination license agreement "is not analogous at all to the
[1988] Lexis agreement with West -- [it is] different in almost
every way -- and thus determining what Lexis might or might not
save [by switching from its existing agreement to the proposed
license agreement] is a very difficult calculation. " (Br. at 14)
(second alteration in Br.). It is hard to imagine how a document
that is "not analogous at all" and "different in almost every way"
from the proposed license agreement was determinative in the
formulation of that agreement.21
In short, none of the four documents HyperLaw seeks .
" individually had a significant impact on the government's
formulation of relief. " MSL, 118 F.3d at 784. Indeed, none of
those documents even constitutes a " smoking gun[] or the
exculpatory opposite." Id. Thus, the district court correctly
held that the government was correct that they were not
determinative documents within the meaning of the Tunney Act.
III.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY NOT
REQUIRING A SECOND ROUND OF NOTICE AND COMMENT
The government, in conformance with the Tunney Act (15 U.S.C.
&167; 16(b)), published both the proposed decree and the CIS in the
Federal Register. 61 Fed. Reg. 35,250 (1996). After receiving
public comments, and again in conformance with Section 16(b), the
government published the comments and its response to them. 61
Fed. Reg. 53,386 (1996). In the district court, HyperLaw
nonetheless argued that because the parties had made certain
modifications in response to the public comments, additional
notice and comment was required. (Doc. 49). The district court
disagreed, finding "nothing in the statute or in the caselaw that
requires . . . further publication and opportunity to comment."
949 F. Supp. at 915 n.7. HyperLaw's claim that the court erred
is meritless.
In a Tunney Act proceeding, the role of the district court is
to determine if the proposed consent decree is "in the public
interest." 15 U.S.C. &167; 16(e). As the legislative history
explains, the statute's "procedural" requirements -- government
preparation of a CIS and participation in a notice and comment
proceeding -- are intended "to assist the court in making that determination." S. Rep. No. 93-298, at 4-
5 (1973); accord H.R.
Rep. No. 93-1463, at 21 (1974) (comments of Rep. Hutchinson) (the
statutory requirement that "the Department of Justice . . .
publish a competitive impact statement in the Federal Register
and receive public comment . . . is to enable a court to
determine whether a proposed consent decree is in the public
interest "), quoted in Alex. Brown & Sons, 169 F.R.D. at 541.
Moreover, Congress "anticipated that the trial judge will adduce
the necessary information through the least complicated and least
time-consuming means possible." S. Rep. No. 93-298 at 6.
Indeed, Congress fully intended that the court would enjoy broad
discretion in how it chose to obtain the necessary information.
Id. at 7.
Thus, Tunney Act notice and comment is analogous to agency
rulemaking notice and comment. Both are intended to inform the
decisionmaker of the pros and cons of the proposed action.22
And in the agency rulemaking context, the law is well settled
that additional notice and comment is required only rarely. In.
Omnipoint Corp. v. FCC, 78 F.3d 620 (D.C. Cir. 1996), this Court
explained that whether a second round of comment is required
depends on " whether the final rule promulgated by the agency is
a "logical outgrowth" of the proposed rule. " 78 F.3d at 631
(quoting American Water Works Ass'n v. EPA, 40 F.3d 1266, 1274
(D.C. Cir. 1994)). The Court further explained that an agency
"act[s] well within its authority" when it chooses to modify a
proposed rule "based on comments responding to the [notice of
proposed rulemaking]." 78 F.3d at 632. In fact, "[i]n most
cases, if [after publishing notice] the agency then alters
its course in response to the comments it receives, little
purpose would be served by a second round of comment." American
Water Works, 40 F.3d at 1274 (emphasis added). Rather, "a
new round of notice and comment" is required only if it "would
provide the first opportunity" for the public to comment on the
proposed rule. Id.
The same rule could well apply in Tunney Act proceedings. Cf.
United States v. American Telephone & Tel. Co., 552 F. Supp.
131, 144-45 (D.D.C. 1982) ("AT&T")(suggesting without deciding
that notice and comment would be required if "a major
modification" were made to an existing consent decree), aff'd,
460 U.S. 1001 (1983).23 And it is clear that the
judgment .
submitted for approval in October 1996 after notice and comment
(Doc. 58), and generally approved by the court in December 1996,
was a "logical outgrowth" of the original proposed decree.
Omnipoint Corp., 78 F.3d at 631. It contained only two
substantive changes to the original proposed decree -- both
concerning star pagination licensing, and both in response either
to the public comments or the court's expressed concerns. First,
at the September 30, 1996 hearing, in response to concerns voiced
by the court, Thomson agreed to eliminate the provision requiring
a star pagination licensee to give up its right to challenge
West's copyright claim (Tr. 41-42, 84; J.A. 798-99, 841).
Second, in response to "many comments on the level of the
pagination fees," the parties agreed to lower those fees (Doc. 43
pp. 39-40; J.A. 667-68).24
The only other changes to the original proposed decree were
the addition of language to clarify: 1) that Thomson would not
use the star pagination license to support West's copyright.
claim; 2) that the license fee need only be paid by the
publisher; 3) that the license fee for books was payable only in
the year printed; 4) that Thomson would not prohibit buyers of
divestiture products from cross-citing to Thomson products; 5)
that Thomson's divestiture of Auto-Cite would not violate its
contract with Lexis-Nexis; and 6) that the divested Auto-Cite
database would be sublicensable. (Doc. 43 pp. 35, 50-52; Doc. 58
p. 2; J.A. 663, 678-80, 710).
All of the modifications were a natural outgrowth of the
notice and comment process. Taken separately or together, the
nine of them do not fundamentally change the original proposed
decree. All either benefited HyperLaw and contributed to the
public interest, or had no adverse effect on them. Thus,
additional notice and comment was not required. Omnipoint Corp.,
supra; American Water Works, supra.
Indeed, HyperLaw can not explain why any of the specific
modifications that the parties made to the decree required
additional comment. Rather, quoting its February 1997 motion to
intervene for purposes of appeal, HyperLaw shifts its focus from
the text of the decree to the actual carrying out of the decree.
Thus, it claims that "the final transaction [Thomson's purchase
of West and sale of the divestiture products to Lexis-Nexis] . .
. is going to be substantially different than the original
proposed decree of June, 1996." (Br. 25) (first emphasis added).
Apparently, HyperLaw is implying that when .
Thomson agreed to sell all the divestiture products to Lexis-
Nexis, as opposed to other buyers, somehow this modified the
decree and required further notice and comment.
In fact, however, on the issue of divestiture nothing in the
decree changed. The decree as originally proposed in June 1996
and as ultimately entered by the court in March 1997 merely
required Thomson to divest specifically identified legal
products, and to obtain the government's approval of any intended
sale. It did this to remedy the acquisition's anticompetitive
overlap of specific Thomson and West legal products as charged in
the complaint.25 The language of the decree
never required nor prohibited the sale of the divestiture
products to any particular entity. And since there was never any
change to the decree in this respect, the original notice and
comment were wholly sufficient. The district court, in rejecting
HyperLaw's argument pressed here on appeal, correctly explained
that the divestiture sale to Lexis-Nexis did not change the
decree in any way; it merely carried it out (Doc. 116 pp. 4-5;
J.A. 76-77):
[T]he Court has already decided that
divestiture is an acceptable remedy for
the anticompetitive effects of the
Thomson/West merger and that the
procedures set forth in the consent
decree for accomplishing the divestiture
are well designed to assure viability
and competitiveness. The fact that all of the Divesture (sic)
Products will be sold to Lexis-Nexis does not alter that
conclusion . . . . [Thus], the Court sees no reason to alter its
judgment that the divestiture as set forth in the consent decree,
whether to one buyer or to many, is in the public interest.
In short, the district court did not abuse its discretion when
it decided that it had sufficient information without additional
notice and comment to make its public interest determination.
CONCLUSION
For the foregoing reasons, the judgment of the district
court should be affirmed.26
Respectfully submitted.
JOEL I. KLEIN
Assistant Attorney General
DONNA E. PATTERSON
Deputy Assistant Attorney General
CRAIG W. CONRATH ROBERT B. NICHOLSON
JAMES K. FOSTER, JR. JOHN P. FONTE
Attorneys Attorneys
Department of Justice Department of Justice
1401 H Street, N.W. 601 D Street, N.W.
Suite 4000 Room 10535
Washington, D.C. 20530 Washington, D.C. 20530
(202) 514-2435
CERTIFICATE REQUIRED BY CIRCUIT RULE 28(d)
I hereby certify that the foregoing Brief for Appellee
United States of America contains no more than 12,500 words.
__________________________
JOHN P. FONTE
Counsel of Record
CERTIFICATE OF SERVICE
I hereby certify that on March 27, 1998, I served the
foregoing final form Brief for Appellee United States of America,
by first-class mail, upon the following counsel of record:
Wayne D. Collins, Esquire Lorence L. Kessler, Esquire
Shearman & Sterling 1825 I Street, N.W.
599 Lexington Avenue Suite 400
New York, New York 10022 Washington, D.C. 20006
Paul J. Ruskin, Esquire
72-08 243rd Street
Douglaston, New York 11363
Carl J. Hartmann, Esquire
69 Sussex Street
Jersey City, New Jersey 07302
___________________________________
JOHN P. FONTE
Counsel of Record
FOOTNOTES
1
References to Doc. are to the document numbers of the
district court's docket sheet.
2
The comments and the plaintiffs' response to them were
published in the Federal Register on October 11, 1996. See 61
Fed. Reg. 53,386 (1996).
3
The district court's December 23, 1996 opinion and order are
reported at 949 F. Supp. 907 (D.D.C. 1996). References in this
brief to that opinion and order are to the official reporter.
4
HyperLaw originally filed a notice of appeal from the
December 23, 1996 district court order. That notice was dated
February 12, 1997 and was docketed in the district court on
February 27, 1997. (Doc. 119). That notice produced docket
number 97-5063 in this Court. The government moved to dismiss
that appeal on the ground that it was from a non-final order.
After HyperLaw opposed that motion, we suggested that HyperLaw
seek from the district court, pursuant to Fed. R. App. P.
4(a)(5), an extension of time to file a notice of appeal from the
court's March 7, 1997 judgment. HyperLaw did so on June 5, 1997
(Doc. 132), and the court granted the motion on July 9, 1997.
(Doc. 135). After that appeal was docketed in this Court as No.
97-5183 (the instant appeal), this Court, by order filed October
9, 1997, dismissed appeal No. 97-5063. Three other appeals also
were taken by other persons from non-final orders entered by the
district court in 1996, and were docketed in this Court as Nos.
96-5309, 97-5062 and 97-5070: all were voluntarily dismissed.
5
Thomson owned Lawyers Cooperative Publishing, Bancroft-
Whitney, and Clark Boardman Callaghan. (Doc. 1 pp. 2-3; J.A.
124-25).
6
These products are the United States Code, United States
Supreme Court case law, the California Code, California case law,
the Massachusetts Code, the Michigan Code, the New York Code,
Washington case law, and Wisconsin case law. (J.A. 151).
7
Appendix C to the complaint identifies them. (J.A. 154).
8
In its brief (at 8-9) HyperLaw correctly states that West
and Lexis-Nexis "control almost 100%" of the comprehensive on-
line legal research market. That was true both before and after
the subject acquisition.
9
Prior to the government's investigation of the subject
acquisition, Thomson and Lexis-Nexis "negotiated extensions of
the most important licenses for Thomson content [placed on the
Lexis-Nexis service], both legal and non-legal," and generally at
existing prices. 949 F. Supp. at 921. With these extensions,
the average length of the licenses was seven years. Id. (In its
brief (at 17, 22 n.9), HyperLaw refers to this agreement as the
March 1996 agreement between Thomson and Lexis). Subsequently,
in the proposed consent decree, Thomson agreed to extend for five
additional years the licenses for its non-legal data bases. Id.
10
For logistical reasons the State of Connecticut was unable
to join the plaintiffs' response to public comments, but it did
join the plaintiffs' motion for entry of the revised consent
decree that was filed on October 23, 1996. See 949 F. Supp. at
912 n.4.
11
The 1988 agreements sought by HyperLaw refer to the
settlement agreement between West and Mead Data Central, Inc.,
then provider of Lexis-Nexis, entered into after the Eighth
Circuit decided West Publishing Co. v. Mead Data Central, Inc.,
799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070
(1987). In that case, the court of appeals, affirming the grant
of a preliminary injunction, held that Lexis-Nexis' star
pagination to West's National Reporter volumes infringed West's
compilation copyright. See HyperLaw Br. at 8 n.3.
12
As the district court noted, 949 F. Supp at 925-26, West's
copyright claim has had a long history of litigation. In fact,
in December 1996, West's copyright claim was the subject of
litigation in both the Second and Eighth Circuits. See 949 F.
Supp. at 926 n.18. The United States filed an amicus brief in
both of those proceedings arguing that star pagination to West's
reporters does not infringe any West copyright. Id. Since then,
the Eighth Circuit appeal was dismissed after the parties
settled, and the Second Circuit appeal has been briefed and will
be argued on March 16, 1998. Matthew Bender & Co., et al. v.
West Publishing Co. et al., No. 97-7430 (2d Cir.).
13
See supra note 11.
14
See supra note 9.
15
On February 18, 1997, Lexis-Nexis filed the divestiture
products sales agreement under seal. (Doc. 109). The mutual
release is Exhibit E to that sales agreement. Because these
documents did not exist prior to 1997, HyperLaw first claimed
that they were "determinative documents" in its February 1997
motion to intervene for purposes of appeal. See J.A. 551.
16
The Ramsden memorandum and its significance to an accurate
interpretation of the Tunney Act is also discussed in United
States v. Alex. Brown & Sons, 169 F.R.D. 532, 541-42 (S.D.N.Y.
1996), appeal docketed, No. 97-6130 (2d Cir. May 27, 1997).
17
Curiously, HyperLaw does rely on United States v. Central
Contracting Co., 537 F. Supp. 571 (E.D. Va. 1982) (Br. 17 n.5,
30). In that case, the court concluded that "determinative
documents" include " [t]he materials and documents that
substantially contribute to the determination [by the government]
to proceed by consent decree. " 537 F. Supp. at 577 (alterations
in original) (quoting United States v. Central Contracting Co.,
531 F. Supp. 133, 134 (E.D. Va. 1982)). That court also was of
the view, unsupported by statutory text, legislative history, or
subsequent courts, that documents individually not determinative
can, in the "aggregate," be determinative. 531 F. Supp. at 134.
No court since has followed Central Contracting. Indeed, one
court, relying in part on this Court's decision in United States
v. Microsoft Corp., 56 F.3d 1448, 1459-61 (D.C. Cir. 1995),
recently concluded that Central Contracting's interpretation of
the Tunney Act conflicts with both the statute's purpose and
legislative history. United States v. Alex Brown & Sons, 169
F.R.D. at 541-42. See MSL, 118 F.3d at 784-85 (statutory
language suggests determinative documents "individually" impacted
formulation of decree, and broad disclosure requirement would
conflict with Congress' intent to preserve government's ability
to settle cases).
18
Moreover, as the district court correctly found, the sale of
all the divestiture products to Lexis-Nexis, as opposed to
several buyers, did not alter in any way the proposed consent
decree. See Doc. 116 pp. 3-5; J.A. 75-77 & infra pp. 25-27.
19
The few HyperLaw citations to documents referring to the
1988 agreement are to either letters, affidavits, or pleadings
prepared by Thomson or Lexis-Nexis representatives, and none of
them suggests that the government considered the 1988 agreement
determinative. See, e.g., HyperLaw Br. at 13 (quoting Lexis-
Nexis comments that the government's understanding, that under
its existing agreement with West, Lexis-Nexis was paying 17
cents per thousand characters, "is not correct," and explaining
that it actually was paying approximately the same rate (9 cents
per thousand) that was contained in the proposed consent decree).
20
HyperLaw's unsupported claim that the "1988 agreements were
anti-competitive from their inception" (Br. 20, 28) has no place
in this case, because the legality of that agreement was not
challenged by the government's complaint. See United States v.
Microsoft Corp., 56 F.3d at 1459-60 (Tunney Act district court's
jurisdiction is limited to evaluating the legality of only those
practices against which the complaint was directed).
21
See also supra note 19.
22
As Judge J. Skelly Wright told Congress, the Tunney Act
would provide antitrust consent decree courts with "light from
the public." (HyperLaw Br. 21). The district court found that
just such light was provided here, and described as "particularly
helpful the public comments of Lexis-Nexis and HyperLaw [and nine
other named commentators]." 949 F. Supp. at 909 n.1. Contrary
to HyperLaw's claim (Br. 19), however, we note that Judge Wright
made clear that the remarks now set forth in block quotes on
pages 19 and 20 of HyperLaw's brief "represent[] my personal
views on the pending legislation, and not necessarily the views
of the [Judicial] Conference." The Antitrust Procedures and
Penalties Act: Hearings on S. 782 & S. 1088 Before the Subcomm.
on Antitrust and Monopoly of the Sen. Comm. on the Judiciary, 93d
Cong., 146, 147, 151 (1973) (statement of Hon. J. Skelly Wright).
23
Arguably the standard should be more deferential to district
court procedural discretion in Tunney Act cases, because the
notice and comment procedure is intended "to assist the court in
making [its public interest] determination," and the court enjoys
broad discretion in how it chooses to resolve that issue. S.
Rep. No. 93-298 at 5, 7. Moreover, HyperLaw is wrong in implying
(Br. 22-24) that AT&T requires additional notice and comment
whenever the parties to a proposed Tunney Act consent decree
modify the proposal prior to its entry. In fact, after notice
was published and comments were received in AT&T, the court
required the parties to agree to several substantive changes to
the proposed modified judgment without any additional notice or
comment being given, before it entered the decree as in the
public interest. See 552 F. Supp. at 225-26. See also MSL, 118
F.3d at 778 (noting that after notice and comment "several
modifications had been made" to the proposed decree, and the
court found the modified proposal in the public interest).
24
After the court's December 23, 1996 opinion and order, the
parties made a third substantive amendment to the star pagination
license fee agreement to satisfy the court that the license was
in the public interest. See supra pp. 11-14.
25
Moreover, it was always likely that the divestiture would --
as it ultimately did -- take place after the decree was entered
as a final judgment. The district court entered final judgment
on March 7, 1997, and the government approved the sale of the
divestiture products to Lexis-Nexis on March 28, 1997. The sale
was consummated on March 31, 1997.
26
The seven plaintiff states have authorized the United States
to say that they also urge affirmance of the district court's
final judgment.
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