Summary Judgment in Conspiracy Cases

Pages201-229
201
CHAPTER VII
SUMMARY JUDGMENT IN CONSPIRACY CASES
Historically, courts were hesitant to grant summary judgment in
antitrust cases.1 However, more recent cases suggest that summary
judgment is available in conspiracy cases. Much of the change is due to
the Supreme Court’s “landmark” decision in Matsushita Electric
Industrial Co. v. Zenith Radio Corp.2
A. Historical Context: from
Poller
to
Matsushita
The historical reluctance to grant summary judgment stemmed from a
1962 Supreme Court case regarding the termination of a broadcast
affiliation contract, Poller v. CBS.3
The plaintiff in Poller alleged that the defendant had canceled the
plaintiff’s affiliation contract pursuant to a conspiracy with other
broadcast affiliates.4 The trial court had entered summary judgment for the
defendant on the theory that it had a unilateral right to cancel the contract.5
1. See, e.g., Norfolk Monument Co. v. Woodlawn Mem’l Gardens, 394 U.S.
700, 704 (1969) (per curiam).
2. 475 U.S. 574 (1986); see Stephen Calkins, Reflections on Matsushita and
“Equilibrating Tendencies”: Lessons for Competition Authorities, 82
ANTITRUST L.J . 15, 19-20 (2018) (“Matsushita became a landmark case,”
and, according to Westlaw had been cited as of June 8, 2017, by over
100,000 cases, including 6164 federal antitrust cases, 4802 federal courts
of appeal cases, and 25 Supreme Court cases). Its influence has not been
limited to the summary-judgment context. See Edward D. Cavanagh,
Matsushita at Thirty: Has the Pendulum Swung Too Far in Favor of
Summary Judgment?, 82 ANTITRUST L.J . 81, 104 (2018) (discussing how
Matsushita “has encouraged t rial courts not only to resolve antitr ust issues
at the summary judgment stage, but also to find other procedures to decide
antitrust cases earlier and earlier in the litigation timeline t hrough motions
to dismiss, rulings on expert testimony, and class certification decisions”)
(footnotes and citations omitted).
3. 368 U.S. 464 (1962).
4. Id. at 466-67.
5. Id. at 468.
202 Proof of Conspiracy Under Federal Antitrust Laws
The Supreme Court held this was error because it was unclear from the
record whether the defendant acted unilaterally or in concert with others.6
The Court cautioned that “summary procedures should be used sparingly
in complex antitrust litigation where motive and intent play leading roles,
the proof is largely in the hands of the alleged conspirators, and hostile
witnesses thicken the plot.”7 The Court noted that evidenc e of motive and
intent can be assessed only “when the witnesses are present and subject to
cross-examination.”8
Justice Harlan, in dissent, observed that the nature of the antitrust
statutes sometimes tempts plaintiffs to bring unmeritorious suits, and that
the complexity of antitrust cases renders them a burden on trial court
resources.9 For those reasons, he disagreed with the majority’s sentiment
that summary judgment should be granted sparingly in antitrust conspiracy
cases.10
For two decades after Poller, courts routinely cited the case in denying
summary judgment in antitrust conspiracy cases.11 That began to change
in 1984, when the Supreme Court decided Monsanto Co. v. Spray-Rite
Service Corp.12
In Monsanto, a terminated distributor, Spray-Rite, alleged that its
termination was the result of a conspiracy between Monsanto and other
distributors to fix resale prices of Monsanto products.13 Spray-Rite
prevailed at trial, and the Seventh Circuit upheld the verdict on appeal.
6. Id. at 472-73.
7. Id. at 473.
8. Id.
9. Id. at 478.
10. See id. (“[W]ithout reflecting in any way up on the good faith of thi s
particular lawsuit, having regard for the special te mptations that the
statutory private antitrust remedy affords for the institution of vexatious
litigation, and the inordinate amount of time that such cases sometimes
demand of the trial courts, there is good reason for giving the summary
judgment rule its full legitimate sweep in this field.”).
11. See, e.g., Norfolk Monument Co. v. Woodlawn Mem’l Gardens, 394 U.S.
700, 704 (1969) (per curiam); Harold Friedman Inc. v. Thorofare Mkts.,
587 F.2d 127, 141-43 (3d Cir. 1978); Industrial Bldg. Materials v.
Interchemical Corp., 437 F.2d 1336, 1340, 1344-45 (9th Cir. 1970). But
see Mut. Fund Inv’rs v. P utnam Mgmt., 553 F.2d 620, 624 (9th Cir. 1977)
(noting that Poller should not be used as a “magic wand” to deny summary
judgment in antitrust cases).
12. 465 U.S. 752 (1984).
13. Id. at 756-58.

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