Attorneys’ Fees in Antitrust Litigation: Making the System Fairer

(Excerpt) Section 4(a) of the Clayton Act entitles prevailing plaintiffs in private antitrust actions to recover, in addition to treble damages, their reasonable attorneys\u27 fees. Unique when adopted as part of the Sherman Act in 1890, this fee-shifting provision has been imitated, at least in part, in over 100 federal statutes. In providing for attorneys\u27 fees, Congress intended to promote private enforcement of the antitrust laws and to insulate the treble damages recovery from expenditures for legal fees. Fee-shifting is mandatory where a plaintiff prevails, but the court has some leeway in setting the amount of the fee. The controversy over the quantum of proof necessary to establish the fee award has been extensively litigated in the district and circuit courts. Although there is now widespread agreement on the principles for measuring fee awards, the criteria include a subjective component that may yield vastly differing results in cases involving similar facts

United Airlines LOFT training

Line oriented training is used in a broader, more generic sense that as a specific program under FAR 12.1409 and AC 120-35. A company policy was adopted more than twenty years ago requiring that all pilot checks and recurrent training be conducted with a full crew occupying the seats they occupy on the line. Permission was obtained to reschedule the hours for recurrent proficiency training to include one and one-half hours of LOFT flight. The number of emergencies and abnormal procedures which could be undertaken were considered and the introduction of an a occasional incapacitation revealed which person is the most difficult to replace on the widebodies. By using the LOFT concept, every training period can be structured like a typical line flight. The use of LOFT in simulator syllabus development and problems that need to be refined are discussed

Nuclear Magnetic Resonance in Low-Symmetry Superconductors

We consider the nuclear spin-lattice relaxation rate, $1/T_1T$ in superconductors with accidental nodes. We show that a Hebel-Slichter-like peak occurs even in the absence of an isotropic component of the superconducting gap. The logarithmic divergence found in clean, non-interacting models is controlled by both disorder and electron-electron interactions. However, for reasonable parameters, neither of these effects removes the peak altogether.Comment: 10 pages, 5 figure

Offensive Non-Mutual Issue Preclusion Revisited

(Excerpt) Some forty years ago, in Parklane Hosiery Co. v. Shore, the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-1) litigation against a defendant who had been party to both the F-I and present (F-2) cases. In so ruling, the Supreme Court gave its imprimatur to Judge Traynor\u27s dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association nearly four decades earlier. The outcome in Parklane was also foreshadowed by the Court\u27s earlier ruling in Blonder-Tongue Laboratories v. University of Illinois Foundation. There, the Court rejected mutuality where the stranger to F-I invoked the F-I decision holding a patent invalid as a defense to an infringement suit in F-2 involving the same patent. Blonder Tongue was consistent with the trend in many state and lower federal court decisions that had abrogated mutuality where preclusion was interposed defensively. Parklane, of course, involved offensive non-mutual issue preclusion, and at the time of the Blonder Tongue decision, many courts drew a line distinguishing defensive and offensive non-mutual preclusion, allowing the former but not the latter. Parklane acknowledged this bright-line distinction but rejected an outright ban on offensive non-mutual issue preclusion, leaving it to the trial courts to determine on a case-by-case basis when it should be applied. The Court in Parklane thus stopped short of a blanket approval of offensive non-mutual issue preclusion, and qualified its holding in three important respects: (1) a defendant must have had a full and fair opportunity to litigate the case in F- 1; (2) invocation of non-mutual issue preclusion must not produce an unfair result; and (3) the decision of whether or not to allow offensive non-mutual issue preclusion is left to the sound discretion of the trial court and thus is not a matter of right

Pleading Rules in Antitrust Cases: A Return to Fact Pleading?

(Excerpt) The Federal Rules of Civil Procedure, adopted in 1938, introduced a simplified pleading regimen for litigation in the federal courts. Commonly referred to as notice pleading, this new pleading regimen was designed to shift the courts\u27 attention away from the pleadings and toward proof at trial. Under the simplified pleading standards adopted by the Federal Rules, the complaint need not contain a ritualistic recitation of elements of an abstruse theory of recovery, as required at common law; nor did it need to detail facts sufficient to make out a cause of action, as required under the old scheme of code pleading. Under the Federal Rules, the complaint simply has to put the other side on notice of claims for relief, and it would withstand a motion to dismiss unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Detailed factual allegations are necessary only in cases involving fraud or mistake. The United States Supreme Court has repeatedly reaffirmed this lenient pleading standard. Nevertheless, lower courts in antitrust cases, purportedly following the lead of the Supreme Court, have used lack of detail in complaints as a basis for dismissing claims on the merits at the pleading stage even where it is clear that the other side is on notice of the plaintiffs claims. Judges have, in effect, implemented court-made specificity requirements to supplement the standards set forth in Rule 9(b). This Article analyzes the questions of whether a judicially created requirement for specificity in pleading is consistent with the Federal Rules of Civil Procedure and whether such judge-made pleading rules, if proper, ought to exist. The Article will: 1) explore general standards for pleading under the Federal Rules of Civil Procedure, 2) discuss the exceptional circumstances where specificity in pleading is required under the Federal Rules of Civil Procedure, and 3) analyze the case for and the case against a specificity in pleading requirement in antitrust cases

Whatever Happened to Quick Look?

In California Dental Ass’n v. F.T.C. (hereafter “Cal Dental”), the Supreme Court observed that there is no sharp divide separating conduct that can be summarily condemned under section one of the Sherman Act as per se unlawful from conduct that warrants a more searching factual assessment to ascertain any anticompetitive effect and hence its legality. The Court further observed that not every antitrust claim falling outside the narrow ambit of per se illegality warrants the detailed Rule of Reason analysis prescribed in Chicago Board of Trade. The Court thereby eschewed any notion that section one analysis is dichotomous, i.e., that restraints of trade fall into one of two categories: per se violations, which are condemned out of hand; or Rule of Reason violations, which are condemned only after a detailed analysis of anticompetitive effects and procompetitive benefits. Rather, it suggested that conduct be adjudged on a sliding scale and that “the quality of proof required should vary with the circumstances.” In so ruling, the Court specifically acknowledged what it had held implicitly in three earlier decisions: that certain conduct, although falling outside of the narrow parameters of per se illegality, has such anticompetitive potential that absent proof of look” without a detailed market assessment. Accordingly, the Court acknowledged in principle the concept of a truncated Rule of Reason analysis. Ultimately, however, the Court concluded that “quick look” did not apply to the facts of the case and that a “less quick look” was necessary to assess defendant’s advertising restrictions because it was not intuitively obvious that these advertising restrictions by themselves would create anticompetitive effect and because the advertising restrictions may have actually promoted competition by eliminating unverifiable and misleading discount and quality of service advertising. Quick look is tailor–made for restraints that bear a close family resemblance to price–fixing but are of the type with which courts have little experience or are idiosyncratic in nature. Proponents of quick look argue that quick look “improves upon the traditional dichotomous approach by reducing and enforcement and adjudication costs, enhancing the accuracy of administrative and judicial determinations and improving deterrence of harmful restraints.” Yet, notwithstanding Cal Dental’s ruling that quick look applies “[where] an observer with even rudimentary understanding of economics could conclude that the arrangements in question have anticompetitive effect on customers and markets,” quick look has not caught on in the lower courts. Indeed, with the notable exception of the D.C. Circuit’s decision in Polygram Holding, Inc. v. F.T.C. (hereafter “Three Tenors”), the lower courts appear to have largely abandoned the quick look approach. This article analyzes the evolution of the Rule of Reason, the emergence of quick look analysis, and its precipitous decline. It argues that the traditional unstructured Rule of Reason analysis articulated in Chicago Board of Trade is unworkable in that it is costly, unpredictable, and has significant risks of error. This article further argues that the structured, nuanced, fact–specific inquiry utilized in Three Tenors would provide “more clarity, greater predictability, fewer errors and less expense in antitrust litigation” and that the lower courts should embrace—not shun—quick look. It concludes that widespread adoption of the quick look approach by lower courts is unlikely. In Cal Dental, the Supreme Court missed an opportunity to clarify how the Rule of Reason should be applied in antitrust cases. Moreover, its decisions since Cal Dental have sent mixed signals on quick look. As a result, the concept of quick look, outside a narrow range of FTC cases, has largely become a dormant doctrine

The Relevance of Administrative Considerations in the Judicial Decisionmaking Process: A Kantian Perspective

(Excerpt) This essay examines and analyzes the role of administrative considerations in the judicial decisionmaking process. The central issue is the extent to which administrative factors, such as concerns for efficiency, minimization of complexity, ease of proof, consistency of holdings, and predictability of future decisions, may be properly taken into account by courts in rendering decisions and weighed against rights granted under substantive law. Put another way, the question presented is: To what extent may a court invoke administrative considerations to reach a result different from what otherwise would be the just solution? The analysis will proceed in two steps. First, it will review the contrasting philosophical points of view with respect to the relevance of administrative considerations as set forth in Immanuel Kant\u27s Four Cases contained in The Metaphysical Elements of Justice, and in the works of Professor Ronald Dworkin. The second step will be a comparative approach, contrasting application of judicial precedent and Kantian principles to four contemporary legal doctrines: (1) res judicata; (2) prospective overruling; (3) the direct purchaser rule of Illinois Brick; and (4) the so-called complexity exception to the Seventh Amendment right to a jury trial in civil cases

The Bernstein Lectures: A Foreword (2000)

(Excerpt) In this issue, the St. John\u27s Law Review is pleased to publish the 1998 and 1999 Lewis Bernstein Memorial Lectures by Thomas E. Kauper, Henry M. Butzel Professor at Michigan Law School, and William E. Kovacic, Professor at George Washington University Law School, respectively

De-Regulation of the Air Waves: Is Antitrust Enough?

(Excerpt) By enacting the Telecommunications Act of 19961, Congress mandated large-scale deregulation of the television, radio, telecommunications and cable industries. Having successfully de-regulated the airline, interstate transportation and energy industries, Congress sought to dismantle the tangled legal, administrative and regulatory structure that had governed broadcast media and telecommunications for decades and replace it with a competitive model. Its goal was to minimize the inefficiencies inherent in any regulatory scheme and allow participants to reap the economic benefits of the free market. Equally important, Congress wanted to be sure that the emerging cable, satellite and cellular technologies were not stifled by the incumbent regulatory structure, which many viewed as outmoded and ill-suited to the marketplace of the 21st century. To assure that competition would be preserved in the absence of regulation, Congress made clear that antitrust law principles would govern this newly deregulated market. Nowhere has the impact of the Telecommunications Act been more dramatic than in the radio field. The Act unleashed a merger wave which has dramatically altered the competitive landscape in radio. That merger wave has certainly benefited many station owners by permitting them to capture economies of scale that simply could not have been achieved under a regulatory regime which limited the number of stations any entity could own