David Fischer at Antitrust Review posts an excerpt from Information Resources, Inc.’s (IRI) press release issued to explain the recent settlement of their ten year long litigation against VNU (A.C. Nielsen, IMS Health, and Dun and Bradstreet). IRI’s claims were based on an “above cost” bundling theory that Thom has discussed in detail here. In that post, Thom expressed optimism (like me) about Justice Alito’s influence on the Supreme Court’s antitrust jurisprudence in large part because of his sensible dissent in LePage’s. It looks like we do not have to wait long to for evidence of that influence. Notice this section from IRI’s press release:
Even if IRI were to prevail at the Second Circuit on the bundling issue, both litigation teams felt there was a significant risk that the Supreme Court would rule against IRI if it accepted the case for appeal, particularly in light of the current make-up of the Supreme Court and the fact that Justice Alito, the newest addition to the Supreme Court, was the author of an appellate court decision in 2002 that was adverse to IRI’s bundling position in this case. Although Justice Alito’s position was overturned on en banc review by the Third Circuit Court of Appeals in 2003, Justice Alito has recently expressed his opinion that his original view of that case was correct.
I do not recall seeing such a detailed explanation of a settlement, at least, not referencing an individual Justice’s views on a particular subject. In any event, I guess this means that antitrusters might have to wait a bit longer for SCOTUS to articulate a rule for above cost bundling.
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Indeed, it will be interesting to see how antitrust doctrine will continue to evolve. A clue may be the court’s recent Reeder-Simco decision–a case in which Chief Justice Roberts participated on the side of a 7-2 majority with Justices Stevens and Thomas in dissent–which narrowed the reach of the Robinson-Patman Act.
Good point Keith — though I may be slightly less confident than you that O’Connor would have agreed with Alito on the LePage’s issue (at least, I’m just not sure). The press release suggests some of the other forces driving the settlement, e.g. IRI had already lost some important motions on the above-cost bundling theory. Regardless, it will be very interesting to watch what sort of impact the new SCOTUS members have on antitrust.
Very interesting, Josh. I wonder whether there will be a discernible difference in antitrust doctrine on account of Justices Roberts and Alito replacing Rehnquist and O’Connor. My sense is that there likely won’t be. Based on their past votes in cases like Kodak and Jefferson Parish, I think it’s fair to say that both Rehnquist and O’Connor would probably have agreed with Alito’s views about LePage’s. If that is right, then Justice Alito’s confirmation is only an ostensible explanation but not the true reason for the IRI settlement. Other forces were likely at work.