Summary Judgment and Discovery Strategies in Antitrust and Rico Actions after Matsushita V. Zenith

• Date: 01 June 1991
• Author: Andrew P. Mccallin,John T. Soma
• DOI: 10.1177/0003603X9103600202
• Published date: 01 June 1991
• Subject Matter: Article

The

Antitrust

Bulletin/Summer 1991

Summary judgment and discovery

strategies in antitrust and RICO

actions after Matsushita v. Zenith

BY

JOHN

T. SOMA· and ANDREW P. McCALLIN**

I.

Introduction

325

During the spring

of

1986, the United States Supreme Court

promulgated three decisions that changed the summary judgment

standard used in federal courts. These three cases-Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., Celotex Corp. v,

Catrett/

and

Anderson v. Liberty Lobby, Inc,' (the summary

judgment

trilogy)-make

it easier for defendants to prevail on

Professor of Law, College of Law, University of Denver.

•• Senior Research Associate, College

of

Law, University of Den-

ver.

1475 U.S. 574 (1986).

2477 U.S. 317 (1986).

3477 U.S. 242 (1986).

©1991by Federal Legal Publications, Inc.

326 : The antitrust bulletin

summary judgment motions. This article analyzes the effect this

trilogy has

had

on litigants' approaches to antitrust and Rack-

eteering Influence and Corrupt Organizations Act (RICO) litiga-

tions.

To appreciate the changes wrought by the summary judgment

trilogy, part II

of

this article first reviews the Supreme Court's

early abhorrence toward summary judgment in complex antitrust

conspiracy cases. This abhorrence, however, was relaxed by later

decisions, which laid the foundation for the changes accom-

plished by Matsushita. With these historical precedents in place,

part

III demonstrates how Matsushita, Celotex, and Anderson

redefined the summary judgment standard.

Part

IV surveys

various post-Matsushita cases

and

shows how the new summary

judgment standard enables a defendant to obtain summary judg-

ment in antitrust conspiracy litigations. This section also explores

the possibilities

of

extending Matsushita's holding and rationale

beyond the scope

of

its peculiar facts, to obtain summary judg-

ment in other antitrust scenarios where conspiracies and preda-

tory pricing schemes are not at issue. Carrying this theme a step

further,

part

V examines whether Matsushita can be used to

obtain summary judgment in civil actions brought under RICO.4

Drawing on the many parallels between the antitrust and RICO

laws, it can be argued that Matsushita will serve as excellent

authority for a defendant to obtain summary judgment in civil

RICO actions.

Part

VI notes how the summary judgment trilogy has

increased the burden placed on a plaintiff in resisting summary

judgment. This burden is particularly onerous in antitrust con-

spiracy

and

RICO cases where the plaintiff greatly relies on

circumstantial evidence to prove its claims. This section also

recommends strategies aplaintiff can employ to avoid summary

judgment on its antitrust conspiracy or RICO claims. Plaintiff

and

defendant approaches to discovery, given this new summary

judgment standard, will be analyzed in part VII. This section

demonstrates how the plaintiff shoulders agreater burden. Plain-

418 U.S.C. §§ 1961-1968 (1976 &Supp. III 1979).