"Back to DOJ Antitrust Review
of Thomson/West Merger Page"
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
v.
THE THOMSON CORPORATION,
and
WEST PUBLISHING COMPANY,
Defendants
_________________________________
Civ. No. 96-1415 (PLF)
HYPERLAW, INC.’S MOTION AND
SUPPORTING MEMORANDUM FOR PERMISSION TO FILE ITS AMICUS
CURIAE BRIEF AFTER THE GOVERNMENT COMPLIES WITH THE
PUBLICATION AND DISCLOSURE REQUIREMENTS OF THE TUNNEY ACT
COMES NOW HyperLaw, Inc., which has been granted
the opportunity to particpate in this matter as amicus
curiae, and requests that it be permitted to file its amicus
curiae brief after the government has fully complied with
the publication and disclosure requirements of the Tunney
Act. In the alternative, Hyperlaw requests that it be
permitted to file its amicus curiae brief no later than ten
days following the completion of the hearing to be held
before this Court on September 30, 1996. In support
thereof, HyperLaw submits:
1. The Department of Justice (DOJ) is seeking
entry of a consent judgment in the above-captioned action,
even though the government has failed to comply with the
publication and disclosure requirements of the Tunney Act.
Among other things, the government has failed to publish in
the Federal Register its response to public comments.
2. Even in the absence of such compliance, a
hearing in this matter has been scheduled for September 30,
1996.
3. By an Order dated September 25, 1996, the
Court granted Hyperlaw’s motion to participate as amicus
curiae, but specified that Hyperlaw could not participate in
the hearing September 30th. Thus, Hyperlaw intends to
participate by filing an amicus curiae brief.
4. In the past week, a significant amount of new
material has been filed in this matter, including the
Plaintiff’s Response to Public Comments and the Defendants’
filing in response thereto. Hyperlaw’s counsel received the
Plaintiff’s document on September 25, and has not yet
received a copy of the Defendants’ response. Hyperlaw has
not had an adequate opportunity to review and anlyze these
documents. (See accompanying declaration of Alan D.
Sugarman, President of Hyperlaw, Inc.).
5. In order to participate in any meaningful way
in this proceeding, Hyperlaw needs a reasonable period of
time to review and analyze these filings prior to the
preparation of Hyperlaw’s amicus curiae brief. (See
declaration of Mr. Sugarman).
6. Hyperlaw’s request for time to analyze the
materials filed last week will not cause any unnecessary
delay in this proceeding because the government has yet to
satisfy the statutory requirements of the Tunney Act,
including the requirement that DOJ publish in the Federal
Register its response to the public comments it received.
Such publication is important in this matter because, after
receiving the public comments on September 3, 1996, DOJ
refused to make the comments available to the public while
the agency was reviewing the comments. Moreover,
publication of the public comments and the DOJ response was
specifically ordered in this matter by Judge Richey.
7. DOJ also has failed to satisfy the Tunney Act
requirement that it disclose the documents it considered in
formulating its proposal, a requirement that is particularly
important here because of the existence of prior
confidential settlement and licensing agreements, upon which
the proposal here relies.
7. Hyperlaw’s request for time to review and
analyze the newly-filed materials before submitting its
brief is entirely consistent with the public interest in
this matter. Indeed, there were numerous public comments
filed in opposition to the DOJ proposal, and -- given DOJ’s
failure to publish the comments and its response in the
Federal Register -- the hearing of September 30 will occur
before most interested members of the public have had any
opportunity to review the documents filed by the DOJ last
week. Thus, additional time to allow interested parties to
review and examine the new assertions which are part of that
material can only serve to promote the public interest in
this proceeding.
8. Nothing in the record suggests that there are
extraordinary circumstances in this matter which could
excuse a failure to follow the public interest protections
established in the Tunney Act.
Points and Authorities in Support of Hyperlaw’s Motion
A. DOJ Has Not Complied With Judge Richey’s Order for
Publication
In this matter, Judge Richey ordered that the
comments and government’s response to the comments be
published in the Federal Register. Although the government
acknowledged this requirement in a footnote on page three of
its response, such publication had not appeared in the
editions of the Federal Register available to the public on
Friday, September 27, 1996, the last business day prior to
the hearing on September 30, 1996. Judge Richey’s order
was intended to promote public dissemination of this
material. But, by failing to publish these materials prior
to the hearing, the Department of Justice has treated Judge
Richey’s order as though its only purpose was simply to
create archival material for historians.
B. The Department of Justice Has Not Yet Satisfied the
Publication and Disclosure Requirements of the Tunney Act.
There are six distinct statutory requirements
which apply when the government seeks to enter into a
consent judgment[FNR1] under the antitrust laws. All of
these requirements must be met before the Court can proceed
to make a public interest determination. In the absence of
compliance with these requirements, the Court cannot make a
public interest determination. Nor, in the absence of such
disclosures, can Hyperlaw (or any other interested member of
the public) participate meaningfully in this proceeding.
Among the Tunney Act provisions is the requirement
that any written comments relating to any proposal for a
consent judgment submitted by the United States for entry,
and any responses by the United States thereto, must also be
filed with the Court and published by the United States in
the Federal Register within the sixty-day period prior to
the entry of judgment.[FNR2] (Emphasis added.) Here, such
publication had not occurred in the editions of the Federal
Register available to the public as of the final business
day prior to the hearing, September 30, 1996. Moreover,
the publication requirements of the statute have already
been short-changed by DOJ’s failure to publish the
modifications made to the proposed consent judgment after
the initial publication.
Equally important is the Tunney Act requirement
that, in addition to the proposed judgment, the government
shall make available to the public “any other materials and
documents which the United States considered determinative
in formulating such proposal, ....” The lack of such
disclosure here makes it difficult if not impossible for
Hyperlaw to participate meaningfully in this proceeding. For
example, the parties have compared the proposed agreement
here to the 1988 settlement and licensing agreements between
West and Mead Data which to date remain secret, even though
copies were provided to DOJ.
After, and only after, the government has complied
with all six of these requirements, the Court can consider
the proposed consent agreement and make a public interest
determination. Here, the government has not yet certified
that it has complied with the requirements, and thus the
Court cannot make a public interest determination.
WHEREFORE, for all of the above-referenced reasons,
Hyperlaw respectfully requests that it be permitted to file
its amicus curiae brief after the government has complied
with the publication and disclsoure requirements of the
Tunney Act, and prior to the Court’s determination of public
interest.
Dated: September 30, 1996
Respectfully Submitted:
_____________________________
Lorence L. Kessler (D.C. Bar # 203521)
Counsel for HyperLaw, Inc.
Suite 400
1825 I Street, N.W.
Washington, D.C. 20006
202-857-8067
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
v.
THE THOMSON CORPORATION,
and
WEST PUBLISHING COMPANY,
Defendants
___________________________________
Civ. No. 96-1415 (PLF)
DECLARATION OF ALAN D. SUGARMAN
I, Alan D. Sugarman, hereby state the following to be true
and accurate:
1. This statement is submitted in support of the
motion by Hyperlaw, Inc., seeking permission to file its
amicus curiae brief in this matter after the Department of
Justice has fully complied with the publication and
disclosure requirements of the Tunney Act and after Hyperlaw
has had a reasonable period of time to review and analyze
the extensive new materials filed in this matter in the past
week.
2. I am the President of Hyperlaw, Inc. I am a
graduate of the University of Chicago Law School and am a
member of the bar of the State of New York and the federal
courts in New York. I have been personally involved in all
aspects of Hyperlaw’s collection and publication of federal
appellate opinions on CD-ROM.
3. I first received the materials filed last week
by the Department of Justice on Thursday, September 26,
1996. Prior thereto, I attempted to obtain copies of the
comments alone after they were filed with the Goverment on
September 3, 1996, but the Government would not make them
available to us or, apparently, the other parties.
4. Nothing would have stood in the way of the
government’s publishing the statements in the Federal
Register shortly after September 3, 1996, or even posting
the comments on the WEB as they did in June with the
Proposed Consent Decree and License. See
http://gopher.usdoj.gov/atr/cases/Thomson/thomson.html.
Instead, the government flatly refused to provide copies of
these statements. See Thomson’s and West’s Response To
Public Comments p. 2, n.1. . See Reply of Lexis-Nexis in
Support of Motion to Intervene, p. 3, n. 3. The Government
could also have posted its response to the public comments
on the WEB.
5. The government filed its response to the
comments on Monday, September 23, 1996. Apart from the fact
that the government did not publish its response to the
comments in the Federal Register prior to that time as
mandated by the Tunney Act, the responses are written in
such a way that analysis is highly difficult. That is
because the government refers to statements made by
commenters, but provides its cross-reference to the location
of these statements in an appendix, which appendix does not
provide the page number where the government’s responses
appear. Ordinarily, that would not be a major problem,
except for the length and number of comments, the limitation
of time, and the fact that the government completely
distorts and mischaracterizes or ignores the statements made
by the commenters. This declarations show sufficient
examples so as to justify requiring the government to
footnote each statement attributed to a commenter to the
page of the comment in the text where DOJ makes its
comments, in preparation for publication in the Federal
Register and for refiling in this Court. In any event, we
urge the court to completely ignore the governments
characterization of the statements made by the commenters
and to rely upon the statements themselves.[FNR3]
6. HyperLaw must emphasize that we have distinctly
differing positions form Lexis-Nexis on many issues (The
public interest clearly calls for West and Lexis to waive
the confidentiality of their secret 1988 settlement
agreements.
7. HyperLaw filed its motion to participate as
amicus curiae in opposition to the entry of the proposed
final judgment on Thursday, September 12, 1996. Initially,
it was HyperLaw’s view that it would be premature to file a
motion as amicus curiae until after the government had an
opportunity to provide its response to the numerous public
comments. However, when HyperLaw learned of the Lexis-
Nexis filings, and the fact that proceedings appeared to be
on a fast-track despite the numerous objections from public
commenters, Hyperlaw submitted its motion.
8. The DOJ response to public comments was due
September 23, 1996. Prior to that date, the government
refused to make its response available (a fact confirmed by
Thomson’s papers), even though it was known that its
response would be voluminous, and that a hearing was to be
held on September 30, 1996. And, when the Department of
Justice did file its response, with the hearing less than a
week away, the Department did not post the response on the
Internet WEB, even though the initial complaint had been
posted there. Such a posting to promote public awareness
would have been appropriate because some commenters had
posted their comments on the Internet WEB and other
commenters provided electronic versions of their submissions
to HyperLaw to be posted on its WEB site, www.hyperlaw.com--
together with links to the other comments. (Indeed, Thomson
acknowledges using the HyperLaw WEB site to obtain copies of
certain of these comments).[FNR4]
9. The government, in its responses to comments,
makes statements and conclusions: (1) that are clearly
incorrect merely upon the application of logic and law; (2)
that are factually incorrect and ignore previous information
that were provided to the government; (3) that are sweeping
factual conclusions with which we disagree and which appear
without any supporting references or documents; and (4) as
a subcategory of point 3, are references to statements
supposedly made by Thomson/West upon which the government
relies.
10. With respect to the recent positions ‘stated’
by Thomson/West -- I note that statements made by counsel
for Thomson/West have later been repudiated by West--despite
the fact that they were made before courts and Congress. See
Affidavit of Alan D. Sugarman in Support of HyperLaw’s
Motion for Summary Judgment attached hereto as part of
Exhibt A.
11. On page 44 of its responses to comments, the
government states:
(1) The plaintiffs interpret the proposed license to mean
that a license must be issued for star pagination any set of
cases selected by the licensee, even if West or any other
person had previously selected a similar set of cases. (2)
Defendants have stated to plaintiffs that they would not
consider a CD-ROM product which included exactly the same
cases included in a West print reporter to be an
infringement. (3) Indeed, Matthew Bender has introduced
such a product and we are informed defendants have not
challenged it as a “selection” infringement. (4) Defendants
would object to a print reporter which simply replicated a
West print reporter ... (numeration of sentences added).
12. As to statement (1), above, it is pure naïveté
on the part of the government that DOJ’s interpretation of
the contract that is inconsistent with the language of the
agreement has any relevance. The agreement states:
“1.03 ‘Licensee Case Reports’ shall mean Licensee’s reports
of judicial decisions that are selected for reporting by
Licensees in [Licensee Product(s)/Services(s) and
coordinated and arranged by Licensee within [Licensee
Product(s)/Services].”
As to statements (2) and (4), there simply is no such
letter, sworn or otherwise in the government’s materials.
Moreover, based upon HyperLaw’s five years of constant
negotiation and litigation with West on these issues (and in
light of Judge Martin’s findings regard West’s credibility)
both of these statements are completely inconsistent with
anything ever said by West/Thomson--as well as statements
filed by West in the New York litigation only four weeks
ago. The government does not even provide a source for
these statements.
13. The same is true as to statement (3). Again,
the government provides no source for this statement, and
HyperLaw, knows of no such statements made in the New York
action. Further, counsel for Matthew Bender as adivsed me
stated that they knew of no such statement by West.
14. It is clear that West-Thomson was unwilling to
formalize these positions in the license agreement. The
department, rather than admit that the license agreement
plainly does not match up with its press releases, drafts
its own legislative history-- for which it will never be
held accountable because of the confidentiality provisions,
and which would be ignored by most arbitrators.
15. I believe the Court, pursuant to Section 16(f)
of the Tunney Act and as part of the public interest
determination, should have Mr. Brian Hall, the President of
West, sworn as a witness, and then asked if he agrees that
his answers to the questions will be binding on West and its
subsidiaries in future litigation. The Court should read
each of the four statements described above to Mr. Hall, and
ask him if the statements represents the position of Thomson
and its subsidiaries
16. The court cannot rely upon the governments
characterizations of the comments submitted. In many cases,
the government has characterized statements so that the
government can avoid the hard questions. For example, the
governments states at page 48:
Mr. Sugarman, Ms. Lewis, and Mr. Wolfe comment that the
confidentiality provision in the proposed star pagination
license will permit Thomson/West to engage in preferential
licensing and to continue to engage in abusive licensing
practices in secret. Plaintiffs disagree. The
confidentiality provision in the star pagination license is
intended to protect the product development and marketing
plans of the licensee, not any secrets of Thomson/West.
The following is what HyperLaw (Mr. Sugarman) actually
stated, at page 9 of its September 3, 1996 comments:
6. The Division argued that the confidentiality
provision were for the protection of the licensee. That may
be if the licensee desires confidentiality, and, the
Division was unable to explain why the licensee would be
forced to maintain confidentiality over its objections. It
is clear to us that the primary beneficiary of
confidentiality would be West-Thomson. Once again, the
Division's defense to accepting this provision is completely
illogical.
17. HyperLaw believes the Court must ask the
department to “explain why the licensee would be forced to
maintain confidentiality over its objections”. The ability
of a licensee to have a public dialogue (regarding abuse by
a licensor) may be the only remedy available to a licensee -
- and indeed Thomson and Lexis are each using public
exposure herein to pressure the other to modify licensing
positions. Openness here will not only make West-Thomson
accountable with regard to the proposal, but would make the
government accountable as well. This suggests why the
government dodged HyperLaw’s question. [FNR5]
18. Similarly, with respect to the requirement of
arbitration, HyperLaw had objected not only to the
confidentiality of the arbitration and the requirement that
the agreement be arbitrated in West/Thomson’s home court,
but to the fact that the arbitration could not be appealed.
In response, the government states says page 49:
In addition, the decision of the arbitrators is appealable
to the appropriate state or federal court.
The agreement provides for binding arbitration, and
misaprehends the nature of arbitration. There is no right
to appeal. The government’s statement is pure invention.
Other unfavorable terms in the arbitration provision include
the use of three rather one arbritator which is prohibitvely
expensive, especially for an out-of-state party. In
addition, the licensee must pay all of its own costs and
attorneys fees even if they are the prevailing party and
West acted in complete bad faith.
19. Hyperlaw believes that as part of the public
interest determination the Court must consider the entire
issue of text copyrights. The government’s complaint was
accurate, but the settlement drops the point. Paragraph 30
of the Complaint states:
“Entry would be difficult for three reasons. First,
successful entry would require access to past and current
court opinions and statutes. Past and/or current opinions
simply are not available from many courts, and in many
others, obtaining access is costly and time-consuming.”
20. Now the government realizes the implication of
this statement and wishes to walk away from it because the
settlement provides absolutely no relief to this serious
pivotal problem identified in the complaint, which relates
to West claims to the copyright of the body of the court
opinions (not the headnotes and syllabus). This is a
critical problem where there are no public domain reporters.
One of the biggest problems are opinions of the federal
district courts. Simply put, for most historic opinions as
corrected by the judges, West is the only source.
21. The government’s treatment of HyperLaw’s
comments on the failure of the consent decree to address the
monopoly in text copyright is wholly disingenuous, and the
government simply fails to respond to the comments. HyperLaw
respectfully urges the Court to read HyperLaw’s comments.
In addition, attached hereto as Exhibit is a letter to
Attorney General Reno, dated September 27, 1996, requesting
the government to file an amicus curiae brief in HyperLaw
New York action with respect to the text issue.
22. The government concedes, finally, that “The
proposed Final Judgment does not support or even address
West’s claim to a text copyright.” Government Response
p.37. Indeed, the government characterized the New Mexico
dispute with West as follows “New Mexico’s dispute with West
over the copyrightability of West-reported New Mexico
opinion likewise is not related to any actual or potential
competition likely to be lost as a result of the
Thomson/West merger” Government Response, P. 22. We think
that the government understates the New Mexico position,
which, presumably, New Mexico would point out were it
provided the opportunity.
23. The government mischaracterizes nearly all of
HyperLaw’s statements about text of opinions. The fact is
that is not just difficult to obtain historic archives of
opinions, but impossible, because many just do not exist.
This is what HyperLaw actually stated:
We understand that the American Association of Legal
Publishers is providing today to DOJ an analysis of its
efforts to obtain original copies of federal court opinions
directly from the courts for opinions from the 1960’s and
1970’s. This study shows that opinions are simply missing
from files, that court files are not able to be found, that
opinions are misfiled in the case files, that the court
archive centers limit the number of case files to as few as
three that may by viewed, and that the process if fraught
with delays, confusion and expense. It is sometimes
difficult to obtain even current court opinions and some
federal courts of appeals do not even make all of their
published opinions available electronically.
That is why the Department of Justice keyed in court
opinions from West books in 1976 -- because it was not
possible to obtain the opinions from the archives. That is
why Lexis keyed in opinions from West books until 1988 when
West sued them to stop.
24. I would note that the government states on
page 43:
Mr. Sugarman states, “Thomson was not only a potential
competitor in the creation of archives of opinions, but was
well on the way to doing so.” Plaintiffs are unaware of any
basis for this assertion.
The government is unaware only because it wishes to be
unaware. HyperLaw advised the government at meetings last
spring that
LCP had CD-ROM caselaw products in as many as 30 states,
including New York, Florida, California, Washington, and
Texas.
HyperLaw provided tagged text of federal opinions to LCP
which are used on LCP CD-ROMs.
LCP publishes Federal Rules Decisions.
Thomson had in recent years acquired these companies that
have opinion text archives: Bancroft Whitney (California),
Barclays (4th and 9th Circuits), CD-Law of New Hampshire
(New Hampshire and Vermont), a South Carolina CD-ROM
company. It had also purchased databases from Lois for
states such as Connecticut and Arkansas. Most of these
states have official reporters from which cases can be
copies.
It has rumored that the Thomson did not have an on-line
database because an agreement with Lexis prohibited them
from so doing.
Thomson used to opereate Veralex, another competing on-line
database system.
25. Most importantly, HyperLaw advised the
government that Thomson had released a CD-ROM with a
database keyed in from West books, the Curtis Hill Texas
database where there is no official reporter from which
competitors can copy with impunity, and was thus directly
confronting West. If Thomson could do this in Texas, it
could do the same in every other state and for the federal
courts, as Lexis had done before West sued it.
26. The government decided to close its eyes to
this for a number of reasons: First, if Thomson were viewed
as an actual if not potential competitor of West in
accumulating a text archive, this might require even more
divestiture. Second, the Administration had cut a deal on
databases with the information industry including West to
provide protection of these databases. This is discussed in
HyperLaw’s letter of September 3, 1996. The government did
not respond to this portion of HyperLaw’s letter, for to do
so would admit the political aspects of this consent
decree.[FNR6]
27. The government acknowledges that West’s
copyright claim of star pagination is anti-competitive:
Government Response, Page 33. But, it then states that all
of the comments concerning the insufficiency of the license
agreement “do not relate to harm caused by a merger and to
the violation alleged in the complaint.” This is of course
inaccurate to say that the pagination copyright does not
relate to the merger. The comment of Kendall Svengalis,
state librarian of Rhode Island states that after the
merger, West-Thomson will control more that 50% of the
treatise market. See p. 3. Prior to the merger, other
publishers could compete equally with the Thomson CD-ROM
versions of their treatises, because Thomson could not use
the West internal page numbers on hyperlinked cases, and had
the same problems gaining access to court opinions. After
the merger, Thomson CD-ROM versions of its treatises will
have an overwhelming advantage over everyone elses. And it
does not help that the other giant in the industry, Lexis,
has already cut its deal with West on citation, text, and
statutes in the 1988 secret agreement.
28. The government’s position on statutes is
disingenuous as well. The government states at page 54:
(1) Mr. Sugarman is concerned that the proposed star
pagination license does not include a mandatory license
agreement for statutes. (2) Star pagination to West’s
statutes has not become an issue. (3)We are aware of no
jurisdiction where it is conventional to cite to statues by
West pages. (4) A license agreement on the text of statutes
themselves is not called for in the context of competitive
issues raised in this merger investigation.
29. I am of course aware that statutes are cited by
section number, and not by page number. HyperLaw is also
aware that:
West claims as copyright to its codification section numbers
and names in states such as Texas.
West was sued by a Thomson company Bancroft Whitney and the
State of Texas in connection with these claims.
A bill was introduced in Congress in 1992, H.R. 4426, which
covered not only case citations, but “any name, number, or
citation by which the text of State and Federal laws or
regulations are, or ever have been identified.
A hearing was held on that bill on May 14, 1992, and the
primary supporter of the bill was Thomson and the primary
opponent West.
As revealed by the docket sheet therein, the secret 1988
settlement agreement between West and Lexis applied not only
to case law, but also to the citations and text of statutes.
Not only is HyperLaw aware of this information, but such
information was provided by HyperLaw to the government
during its investigation. The government has not sought
disclosure of the secret 1988 agreements because to do so
would be to show how its vaunted license agreement covers so
little, and also would reveal to this court how shallow was
the governments investigation.
30. The government and Thomson seem to justify the
weakness of the license agreement on the grounds that is was
a “freebie.” Thomson essentially claims that it was strong-
armed by the government which forced Thomson to accept the
agreement, Thomson’s and West’s Response to Public Comment,
Page 10. Thomson claims that the government could never have
obtained this relief in litigation. Id. However, it
appears, that this was merely a swap: the government backed
off on relief it thought it could obtain in litigation such
as more substantial divestitures, in return for something it
thought was of value. Once criticism began, the government
realized it had taken a pig in a poke.
Most importantly, in order to evaluate the proposed license,
it is crucial to compare this agreement to the 1988 secret
agreements between West and Lexis, which covered statutes,
text, as well as pagination. The court and the public needs
to understand how these two industry giants have sewn-up
this agreement.
31. Thomson is very sensitive to the fact that
there was a trade-off:
It is also critical to note here that there is no indication
whatsoever—certainly not in the investigation or the
settlement negotiations—that the Department compromised on
some theory of anticompetitive harm in another product area
in order to obtain the Proposed Final Judgment’s mandatory
license requirement.
Thomson and West’s Response to Public Comments p. 28.
HyperLaw would submit there was a trade-off in many
areas, and all the evidence as well as the comments clearly
point in this direction. Thomson, indeed, has opened the
door as to consideration of those areas that the government
did compromise, in order to gain, what it may have thought,
was a meaningful concession, or perhaps less charitably,
hoped would look like a meaningful concession.
31. HyperLaw alleged in its comments that many of
the divested products were in essence dogs, and were
divested merely to create an impressively long list.
HyperLaw asked that the government disclose for all of the
divested products:
(a) The publisher.
(b) The HHH numbers.
(c) The identity of the competing product which led the
government to require divestiture.
(d). The HHH numbers for products for which divestiture was
not sought.
The government avoided this as well. It is also unfortunate
that the intervention of CD-Law was denied, for, the
government just plain ignored his observation that a
Washington state product that was divested was one that he
had never heard off and could locate only with difficulty,
despite the fact that CD-Law’s president had practice law
for years in Washington as well as being a legal publisher.
It is somewhat sad that this procedure permits the
government to mischaracterizes or just ignore comments that
it finds to be inconvenient and have its comments appear in
a Federal Register that is received in the mail after the
court holds its hearing to approve the merger.
32. Attached hereto are the following exhibits:
HyperLaw Exhibit A (original on file with the Court) --
HyperLaw Motion for Summary Judgment, Matthew Bender &
Company, Inc. and HyperLaw, Inc. v. West Publishing Company,
September 24, 1996, 94 CIV 0589 (JSM), United States
District Court, Southern District of New York
HyperLaw Exhibit B -- Letters from HyperLaw Attorney General
Reno and Lawrence Fullerton dated September 26, 1996.
________________________________
Alan D. Sugarman
September ___, 1996
[FNT1>
Tunney Act , 15 USCS 16(b)-16(h). These
requirements do not apply to stipulation of dismissal of
antitrust action, but only to settlements by way of consent
decree, such as the instant matter. Re International
Business Machines Corp., 687 F2d 591 (2d. Cir. 1982). This
is because a federal court has inherent powers to look
behind stipulations of dismissal to determine if there is
collusion or other improper conduct giving rise to a
stipulation. Gregg Communications Systems, Inc. v American
Tel. & Tel. Co., 98 FRD 715, 38 FR Serv 2d 1492 (N.D. Ill.
1983).
[FNT2>
The applicable statute, 15 U.S.C 16(b), states:
(b) Consent judgments and competitive impact
statements; publication
in Federal Register; availability of copies to the
public.
Any proposal for a consent judgment submitted by
the United States for entry in any civil proceeding brought
by or on behalf of the United States under the antitrust
laws shall be filed with the district court before which
such proceeding is pending and published by the United
States in the Federal Register at least 60 days prior to the
effective date of such judgment. Any written comments
relating to such proposal and any responses by the United
States thereto, shall also be filed with such district court
and published by the United States in the Federal Register
within such sixty-day period.
The statute further states, in subsection (d) that
“[d]uring the 60-day period as specified in subsection (b)
of this section. . .the United States shall receive and
consider any written comments relating to the proposal for
the consent judgment submitted under subsection (b). . . .At
the close of the period during which such comments may be
received, the United States shall file with the district
court and cause to be published in the Federal Register a
response to such comments.”
[FNT3>
An example of statements attributed to HyperLaw that were
never made
:
“Many of the commenters questioned the propriety of
including the Star Pagination License Provision in the
Proposed Final Judgment” Government Responses, p. 34.
HyperLaw questioned the sufficiency of the agreement, not
the propriety.
“Specifically, these commenters believe the license
provision somehow endorses West’s claim that star pagination
infringes its copyrights. Government Response, p 34.
HyperLaw did not make that argument, nor did the other
commenters.
[FNT4>
Even though the DOJ noted on page 3 of its response that
“[t]he most extensive comments are submitted by Lexis/Reed
Elsevier, Alan Sugarman, President of HyperLaw, Inc.
(“HyperLaw”) and Matthew Bender & Company, Inc. (“Matthew
Bender”), DOJ made no effort to provide a copy to HyperLaw
on any kind of expedited basis. Hyperlaw received a copy
only after its counsel contacted DOJ. HyperLaw then
received the service copy (with all exhibits omitted) by
regular mail on Friday, September 27. (It is Hyperlaw’s
understanding that Bender also did not receive copies of
the DOJ response until Friday.)
[FNT5>
As an example, the government was heavily criticized in
the Microsoft consent case for not including Windows NT in
the consent decree. Events have shown the government to
have been wrong, as Windows NT sweeps the market only two
years later.
[FNT6>
The Government similarly dismisses the anonymous whistle
blower on the collaboration between West and the Congress on
the United States Code is revealing. See Comment Number 12.
The government’s response at page 67 is remarkable and
epitomizes the governments reviews of the merger.
“Plaintiffs received no other information to support this
anonymous allegation.” However, the significant point is
that the government completely ignored the key point which
is that West obtains the codification first, prior to any
other publishers, and that this alone provided West with
extraordinary competitive advantages. In other words, the
advantage to being the official print publisher or
unofficial collaborator in state and federal statutes is not
just one of access to the opinions, but relates as well as
availability of keyed-in data and most important speed.
CERTIFICATE OF SERVICE
I hereby certify that on September 30, 1996, I caused
copies of this document 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
____________________________
September 30, 1996
_______________________________