Summary Judgment in Antitrust Cases: Understanding Monsanto and Matsushita

• Author: Mark A. Lemley,Thomas M. Jorde
• Published date: 01 June 1991
• Date: 01 June 1991
• DOI: 10.1177/0003603X9103600201
• Subject Matter: Article

The Antitrust Bulletin/Summer

1991

Summary judgment in

antitrust cases:

understanding Monsanto

and Matsushita

BY THOMAS M. JORDE* and MARK A.

LEMLEY"

I. Introduction

271

The 1980's witnessed tremendous changes in the scope

and

application

of

the antitrust laws. Two

of

the most significant

changes involved redefinition

of

the line between conduct that is

illegal per se

and

conduct judged under the rule

of

reason,I

and

Professor of Law, Boalt Hall School of Law, University

of

California at Berkeley.

•• Boalt Hall School

of

Law, University

of

California at Berkeley.

AUTHORS' NOTE: We would like to thank Stephen Bundy. Stephen

Calkins. Einer Elhauge, Herbert Hovenkamp and Eleanor Swift

for

helpful comments on this article.

1This redefinition has two components. First, the Court has

reclassified as rule of reason cases certain types of behavior formerly

©1991 by Federal Legal Publications, Inc.

272 The antitrust bulletin

use

of

procedural means to achieve substantive antitrust goals. 2

The subject

of

this

article-summary

judgment standards in

antitrust cases-implicates both of these changes. We argue that

the procedural summary judgment standard developed by the

Court in Matsushita Elec. Ind. Co. v. Zenith Radio Corp,' serves

to bolster the substantive line the Court has drawn between the

rule of reason and the per se rule.' Unfortunately, lower courts

have misunderstood Matsushita, and have applied the Court's

summary judgment opinion inconsistently and inaccurately.' The

purpose

of

this article is to provide courts and antitrust practi-

tioners a coherent theoretical framework for deciding what sum-

mary judgment standards to apply in antitrust cases.

In Matsushita, the Supreme Court affirmed agrant

of

sum-

mary judgment for the defendants in an antitrust case that had

alleged a 20-year predatory pricing conspiracy by Japanese firms

in the consumer electronics industry. In its opinion, the Court

held to be per se illegal. Compare Business Elec. Corp. v, Sharp Elec.

Corp., 108 S. Ct.

1515

(1988) and Continental T.V., Inc. v. GTE

Sylvania, Inc., 433 U.S. 36 (1977) with United States v. Arnold,

Schwinn &Co., 388 U.S. 365 (1967) (vertical nonprice restraints).

Second, the Court has narrowed the difference between the per se rule

and the rule of reason by requiring additional

proof

even in

"per

se"

cases. Northwest Wholesale Stationers v. Pacific Stationery &Printing,

472 U.S. 284, 289-98 (1985); Broadcast Music, Inc. v, Columbia

Broadcasting System,

441

U.S. 1, 19-24 (1979); see also Calkins, The

October 1989 Supreme Court Term and Antitrust: Power, Access and

Legitimacy, 59

ANTITRUST

L.J. (1990), at 47-49.

2One significant procedural rule not discussed here is the antitrust

injury doctrine, which greatly restricts the ability

of

private parties to

bring an antitrust action. See, e.g., Atlantic Richfield Co. v, USA

Petroleum

Co.,

110 S. Ct. 1884, 1890 (1990); Cargill, Inc. v. Monfort of

Colo., 479 U.S. 104 (1986).

3475 U.S. 574 (1986).

4See infra notes 97-105 and accompanying text.

5

For

a comprehensive discussion of those lower court cases, see

DeSanti &Kovacic, Matsushita: Its Construction and Application by

Lower Courts, 59

ANTITRUST

L.J. 609, 618-53 (1990).

Summary judgment : 273

stated that the

plaintiff

"must

present evidence that tends to

exclude the possibility that defendants acted independently" if

the plaintiff is to avoid summary judgment." The

Court's

new

6475 U.S. at 588. The Court derived this test from Monsanto v.

Spray-Rite Corp., 465 U.S. 752, 763-64 (1985), which involved a

conspiracy to set resale prices.

Matsushita was not the only summary judgment case on the

Supreme Court docket. In 1986, the United States Supreme Court

decided a trio of cases that had a profound effect on the law of

summary judgment in federal courts. In Celotex Corp. v. Catrett, 477

U.S. 317 (1986), the Court held that adefendant making a summary

judgment motion need not produce evidence to negate the nonmovant's

claim, at least where the moving party would not have the burden of

proof on that issue at trial. Id. at 322-24. In Anderson v. Liberty

Lobby, 477 U.S. 242 (1986), the Court concluded that the amount of

evidence a plaintiff must show to defeat a motion for summary

judgment will vary with the standard of proof for the issue at trial. Id.

at 252-54. Specifically, the Court noted that

"more

facts in evidence are

needed for the judge to allow reasonable jurors to pass on a claim when

the proponent is required to establish the claim not merely by a

preponderance of the evidence but beyond a reasonable

doubt."

Id. at

253 (quoting United States v, Taylor, 464 F.2d 240, 242 (2d Cir.

1972)).

Taken together, these cases demonstrate the Court's new-found belief in

the proposition

that

"[s]ummary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather as an

integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett,

477 U.S. 317,327 (1986).

In many respects, Matsushita does not line up well with Celotex and

Anderson. First, Matsushita is the only case of the three that is specific

to a substantive area of law, i.e. antitrust, while both Celotex and

Liberty Lobby created rules of general applicability in interpreting

FED.

R. CIv. P. 56, which governs summary judgment proceedings in federal

court. Second, both Celotex and Liberty Lobby are at least nominally

content-neutral. That is, they allow for easier use of summary judgment

by plaintiffs or defendants. The effect of Matsushita, on the other hand,

is to make summary judgment easier for defendants than for plaintiffs.

Antitrust scholars are divided on the effect of the Matsushita

opinion on summary judgment burdens (and thus on whether it creates a

"neutral"

burden on all parties opposing summary judgment or a

burden solely on plaintiffs). Compare Austin, Predatory Pricing Law

Since Matsushita, 58

ANTITRUST

L.J.

895, 897-98

(1989)

(Matsushita and