Antitrust Law Daily Wrap Up, ANTITRUST NEWS: High Court Petition Questions Whether Jury Should Decide Issue of Publication Paper Conspiracy, (Nov 9, 2012)

By Jeffrey May, J.D.

An opinion of the U.S. Court of Appeals in New York City, concluding that it was up to a jury to decide whether a conspiracy to fix prices for publication paper existed and whether that alleged conspiracy caused injury to complaining purchasers, is the subject of a petition filed with the U.S. Supreme Court. The petition for review was filed by publication paper manufacturer Stora Enso North America Corporation on November 5, 2012 (Stora Enso North America v. Parliament Paper, Inc., Dkt. 12-569).

In its August 2012 decision (690 F.3d 51, 2012-2 Trade Cases ¶78,000), the Second Circuit determined that a jury could reasonably find that Stora Enso reached an unlawful agreement to raise the price of publication paper, which is used for magazines and catalogs, and that this agreement injured a class of complaining purchasers. The purchasers' case was based on a theory of conscious parallelism. The petitioner argues that the appellate court improperly vacated summary judgment in its favor, reasoning that (1) because the “totality of the evidence admits of alternative interpretations,” it was the “province of the jury” to weigh the evidence; and (2) a court should “presume” that the plaintiff's injury “was caused by” the alleged antitrust violations.

The petition presents two questions: (1) whether, when circumstantial evidence of a price fixing conspiracy between competitors is ambiguous, such that it permits equally reasonable “alternative interpretations,” one of conspiracy and the other of independent conduct, the Supreme Court's Court’s 1986 decision in Matsushita Electric Industrial Co. v. Zenith Radio Corp. (475 U.S. 574, 1986-1 Trade Cases ¶67,004) requires that summary judgment be granted in favor of the defendant on a Sherman Act, Sec. 1 claim; and (2) whether a plaintiff seeking damages under Sec. 4 of the Clayton Act has the burden at summary judgment of producing evidence demonstrating that the alleged antitrust violation caused a plaintiff’s injury.

Under Matsushita, a Sherman Act, Sec. 1 plaintiff must present evidence “that tends to exclude the possibility that the alleged conspiractors acted independently” in order to defeat a motion for summary judgment. According to Stora Enso, the Second Circuit's decision widens an existing Circuit split over Matsushita's “tends to exclude” summary judgment standard.

David Marx, Jr. (McDermott Will & Emery LLP) for petitioner.

News: Antitrust