Professional Documents
Culture Documents
TABLE OF CONTENS
THE
GOVERNNT
. 9
II. THE DISTRICT COURT ERRED IN HOLDING THAT THE FIRST
AMNDMENT IMMIZES FROM ANITRUST LIABILITY AN
AGREEMNT THAT IS IMPLEMNTED BY NO CONDUCT OTHER
SPEECH THA
CONCLUSION
TABLE OF AUTORITIES
CAES
Agritronics COrD. v. National Dairv Herd Association
914 F. Supp. 814 (N. Y. 1996) .
Allied Tue & Conduit COrD. v. Indian Head. Inc.
486 U. S. 492 (1988) . 11, 22,
26,
American Society of Mechanical Engineers. Inc. v.
Hydrolevel Co , 456 U. S. 556 (1982) . . 27
Bates v. State Bar of Arizona , 433 U. S. 350 (1977) 20,
Berkey Photo. Inc. v. Eastman Kodak Co. , 603 F.
263 (2d Cir. 1979), cert. denied , 444 U. S. 1093
(1980) .
Broadcast Music. Inc. v. CBS , 441 U. S. 1 (1979)
Brunswick COrD. v. Pueblo Bowl-O-Mat. Inc. , 429 U.
477 (1977) .
Cal i f ornia Motor Transport Co. v. Trucking Unl imi ted
404 U. S. 508 (1972) .
Central Hudson Gas & Electric v. Public Service
Commission , 447 U. S. 557 (1980) .
Consolidated Metal Products. Inc. v. American
Petroleum Institute , 846 F. 2d 284 (5th Cir.
1988) . 23,
Denver Area Educational Telecommunications
Consortium v. FCC , 116 S. Ct. 2374 (1996)
Eastern R. R. Pres. Conf. v. Noerr Motor Freiqht. Inc.
365 U. S. 127 (1961) . 10,
FTC v. Indiana Federation of Dentists , 476 U. S. 447
(1986)
26, 27,
FTC v. Superior Court Trial Lawvers Association
493 U. S. 411 (1990) .
Giboney v. Empire Storage & Ice Co. , 336 U. S. 490
(1949) . 18, 19,
Greater Rockford Enerqy and Technology Co . v.
Shell Oil Co. , 998 F. 2d 391 (7th Cir. 1993),
cert. denied , 510 U. S. 1111 (1994) .
iii
United States v. Rock Royal Corp. , 307 U. S. 533 (1939)
United States v. Socony- Vacuum Oil Co. , 310 U. S. 150
(1940) .
United States v. United States Gypsum Co. , 600 F.
414 (3d Cir. cert. denied , 444 U. S. 884 (1979)
Virginia Academy of Clinical Psychologists v.
Blue Shield of Virginia , 624 F. 2d 476
(4th Cir. 1980), cert. denied , 450 U. S. 916 (198
Virginia State Board of Pharmcy v. Virqinia
Citizens Consumer Council , 425 U. S. 748' (1976) 15, 16,
Ward v, Rock Against Racism , 491 U. S. 781 (1989) 18,
Washington v. Smith , 80 F. 3d 555 (D. C. Cir. 1996)
Zavaletta v. American Bar Association , 721 F. Supp.
96 (E. D. Va. 1989) ,
STATUES
Shermn Act, 15 U. S . C. 1, 2 . passim
Tunney Ac t , 15 U. S . C.
MISCELLAOtJS
James J. Anton & Dennis A. Yao, Standard- Setting
Consortia. Antitrust. and High Technology
Industries , 64 Antitrust L. J. 247 (1995) .
Phillip E. Areeda, Antitrust Law (1986) 25, 26,
Phillip E. Areeda & Donald F, Turner, Antitrust Law
(1978) .
Harry S. Gerla, Federal Antitrust Law and the
Flow of Consumer Informtion , 42 Syracuse
L. Rev. 1029 (1991) .
Clark C. Havighurst & Peter M. Brody, Accrediting
and the Sherman Act , 57 Law & Contemp. Prob.
199 (1995) . 26, 27,
Lawrence A. Sullivan, Handbook of the Law of Antitrust
(1977) 0 .
IN THE UNITED STATES COURT OF APPEAS
FOR THE THIRD CIRCUIT
No. 96-1792
enforcement.
STATEMNT OF ISSUES PRESENTED
1. Whether the district court erred in holding that the
Noerr doctrine see Eastern R, R, Pres. Conf. v. Noerr Motor
Freight. Inc. , 365 U. S. 127 (1961)) exempts from the antitrust
Standards for the Approval of Law Schools set forth the minimum
requirements for ABA approval. The standards relate to almost
every aspect of a law school program, including curriculum,
faculty, administration, admissions, library resources, and
physical facilities.
1990. MSL graduates are thus eligible to take the state bar
examination and practice law in that state.
In 1992 , MSL applied for ABA accreditation. Accreditation
was denied, however , on the ground that several aspects of MSL'
program failed to comply with ABA standards. MSL then filed suit
v. Noerr Motor Freight. Inc. , 365 U. S. 127 (1961); and (2) that
The district court further held that MSL' s claim would fail
protected conduct, because the ABA has done nothing more than
allegations fall outside the scope of our own complaint (see page
The court also noted that MSL had raised its professors
salaries and bought more books for its library for the purpose of
improving morale and to "have any chance of accreditation. Slip
Ope at 9 n. 10.
But MSL alleged that it ' had maintained high
standards without paying the salaries required by the ABA rules,
the court noted, and so ABA rules artificially inflating costs at
other schools should provide MSL with a competitive advantage.
Any injury resulted from MSL' s unilateral decisions, the court
held.
under the appropriate legal standard. And we take no position on
the district court' s ruling that plaintiff may not seek redress
the antitrust laws for all " speech, " or at least for all
market power.
necessarily lost whenever such conduct also had any direct effect
expansion of Noerr
The district court also swept too broadly with its
alternative holding that MSL cannot show injury flowing from the
effect comes about through speech are necessarily exempt from the
antitrust laws.
Shermn Act simply by showing that the ABA adopted and adhered to
accreditation standards that affect MSL adversely. . Legitimate,
good- faith standard- setting, even by economically interested
of fact. But this Court should not affirm on the ground that the
Shermn Act, as a matter of law , does not apply to agreements
whose anticompetitive effects are brought about through speech.
ARGUMNT
accord Allied Tube & Conduit Corp. v. Indian Head. Inc. , 486 U.
476, 482 (4th Cir. 1980), cert. denied , 450 U. S. 916 (1981) (no
Noerr protection for collaboration that " may have been calculated
to provoke a judicial response" to the collaborators
bring it within Noerr ; only direct dealings with FCC are Noerr
protected); Aqritronics Corp. v. National Dairy Herd Ass , 914
the alleged injury to the market was a by- product of any such
petitioning; indeed, the ABA did not even argue in its Motion for
Sumry Judgment that it was engaged in petitioning activities.
To the extent that the district court extended Noerr immunity to
conduct that did not constitute petitioning, it err
Shermn Act.
It is clearly possible, as a general matter, f
protected under the First Amendment and cannot be the basis for
Amendmen t . " (E) xpressions of ' opinion ' may often imply an
assertion of objective fact. Milkovich v. Lorain Journal Co.
497 U. S. 1, 18 (1990) (statements that are couched as " opinion"
but "imply a (false) assertion of objective fact" may be
actionable libel); Washin ton v. Smith, 3d 555, 556 (D. C.
Cir. 1996) ("There is no categorical First Amendment immuni ty
The Court has also held that Shermn Act remedies may be
crafted to restrict the defendant' s " range of expression" without
offending the First Amendment. National Society of Professional
Engineers v. United States , 435 U. S. 679, 697 & n.
(1978) (collecting cases)
economically interested parties cannot be the basis for antitrust
liability: Allied Tube , 486 U. S. 492, and Schachar v. American
Academy of Ophthalmoloqy. Inc. , 870 F. 2d 397 (7th Cir. 1989).
Neither decision relied upon or even discussed the First
Amendment.
The district court cited Allied Tube to suppor
distinction between pure standard setting and standard setting
products. But it did not say that that factor was necessary to
antitrust liability. Indeed, there is dictum in the Allied Tube
opinion suggesting the contrary. See 486 U. S. at 506-507
as II
experimental , " called for more research, and urged patients
and physicians to approach the procedure with caution until the
research was completed. Eight ophthalmologists sued the Academy,
alleging that the press release was a restraint of trade in
violation of section 1 of the Shermn Act. Judgment was entered
on a jury verdict for the defendants, and plaintiffs appealed.
allege that the Academy had prevented any of them from doing what
he wished or imposed sanctions on those who facilitated the work
998 F. 2d 391, 396 (7th Cir. 1993), cert. denied , 510 U. S. 1111
(1994) .
The plain language of section 1 broadly outlaws II (e) very
contract, combination in the form of trust or otherwise, or
assess MSL' s " stigm" claim under the Shermn Act. Al though
there is no general antitrust exemption for accreditation-related
Law & Contemp. Probe 199, 200, 219 (1995) ("Havighurst & Brody")
setting standards for their rivals ' products. James J. Anton &
Dennis A. Yao, Standard-Settinq Consortia. Antitrust. and High
Technoloqy Industries , 64 Antitrust L. J. 247 (1995).
Nevertheless, there is a potential for abuse when
accreditation standards are promulgated and applied . by
scrutiny. " Allied Tube , 486 U. S. at 500; see also Havighurst &
Brody at 224 (" an accrediting program that grossly manipulates
public or consumer ignorance for the competitive and economic
advantage of the collaborators is a good candidate for antitrust
attention" ) . 11
JOEL I. KLEIN
Acting Assistant Attorney General
A. DOUGLA MELAD
Deputy Assistant Attorney General
Mark Edwards
MORGAN , LEWIS & BOCKIUS
2000 One Logan Square
Philadelphia, PA 19103
Robert A. BurgoYne
FULLBRIGHT & JAWORSKI
Market Square
801 Pennsylvania Ave. N.
Washington, D. C. 20004
David T. pritikin
David R. Stewart
Jeffrey H. Dean
SIDLEY & AUSTIN
One First National Plaza
Chicago, IL 60603
At torney
Department of Justice
Room 3224
950 pennsyl vania Avenue, N. W .
Washington, D. C. 20530-0001
(202) 514 - 2886