Summary Judgment in Conspiracy Cases

• Pages: 201-229

201

CHAPTERVII

SUMMARY JUDGMENT IN CONSPIRACY CASES

Historically, courts were hesitant to grant summary judgment in

antitrust cases.1However, 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 Polleralleged that the defendant had canceled the

plaintiff’s affiliation contract pursuant to a conspiracy with other

broadcast affiliates.4The 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.

202Proof 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.”7The Court noted that evidence 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.9For 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.11That 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.13Spray-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]ithoutreflecting in any way upon the good faith of this

particular lawsuit, having regard for the special temptations 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); IndustrialBldg. 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 thatPoller 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.