The Revolution in Antitrust Litigation in the Last Quarter of the Twentieth Century

The RPA is the major anomaly of antitrust law which survived the revolution in antitrust law following the Supreme Court 's 1977 decision in Continental T.V., Inc. v. GTE Sylvania, Inc. (" Sylvania "). ^[7] The purpose of antitrust law and the relationship between antitrust law and economics were often unclear during the first 75 years after the Sherman Act was enacted. A revolution in the application of antitrust law in litigation was set in motion by Sylvania, and that revolution eliminated apparently conflicting goals of antitrust enforcement and firmly established the economic foundation of antitrust law.

Sylvania provided the foundation for two progressive developments in the enforcement of antitrust law. First, the Supreme Court embraced the "rule of reason" as the presumptive standard to be applied in litigation to evaluate most concerted restraints of trade. Specifically , the Court adopted the rule of reason as the standard which must be applied to vertical non-price restraints, and the Court made the rule of reason the presumptive standard to be applied to any restraint with which courts lacked sufficient experience to predict that it always, or nearly always, injured competition. Second, the Court adopted an economic interpretation of antitrust law, espoused by the "Chicago School," which forced federal judges to examine economic effects of various restraints and to evaluate possible procompetitive justifications for them.

In 1979, the Supreme Court reinforced these two aspects of Sylvania in Broadcast Music, Inc. v. CBS , ^[8] in which the Court declined to apply the per se rule to an efficiency-enhancing price-fixing arrangement. In 1984, in NCAA v. Board of Regents ^[9] , the Court declined to apply the per se rule to an association of universities which limited the number of college football games which could be broadcast on television and found that the rule of reason should be applied to a facially horizontal restraint on output. The restraint did not withstand analysis under the rule of reason, but the Court again communicated to lower courts that, except for a few "hard core " restraints, most antitrust cases required examination of economic consequences of restraints in the context of a relevant market.

The next important developments in the revolution in antitrust litigation occurred in 1986. Those developments were partly procedural and partly substantive. The procedural development is embodied in three cases, known as the "trilogy": Anderson v. Liberty Lobby , ^[10] Celotex Corp. v. Catrett ^[11] and Matsushita Industrial Elec. Co. v. Zenith Radio Corp., ^[12] in which the Supreme Court clarified the evidentiary standards and methodology for lower federal courts to apply in ruling on motions for summary judgment. The procedural effect of the trilogy was that it facilitated summary disposition in factually baseless antitrust cases before trial. Most lower courts enthusiastically embraced the trilogy. Almost overnight, private antitrust cases changed from being among the most difficult in which to obtain summary disposition to among the easiest , on two distinct grounds: failure to prove the existence of conspiracy , which is an essential element in all § 1 Sherman Act cases; and failure to prove the relevant market and the market power of the defendant in the relevant market, which are requirements in § 1 rule of reason cases and § 2 monopolization and attempt to monopolize cases.

The development in substantive antitrust law was contained in Matsushita , in which the Court emphasized that ambiguous, circumstantial evidence is insufficient as a matter of law to support an inference of conspiracy. Instead, to survive a motion for summary judgment, a plaintiff must present evidence "which tends to exclude the possibility that the alleged conspirator acted independently." ^[13]

Experienced litigators who defend antitrust cases now focus their discovery efforts on laying a foundation for demonstrating the absence of a genuine issue of material fact concerning one or more elements of the plaintiff's claim and routinely move for summary judgment at the conclusion of discovery.

In 1993, the Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals, Inc. , ^[14] which initiated the final major development in the revolution in antitrust litigation. Daubert was not an antitrust case. Its importance in antitrust litigation arises from the requirement that issues such as definition of the relevant product market and proof of market power be based on expert testimony. In Daubert , the Court articulated several standards for trial courts to apply in evaluating and excluding unreliable expert testimony. Daubert dealt specifically with "scientific" evidence. The Court confirmed that the Daubert principles apply to all expert testimony in Kumho Tire Co. v. Carmichael. ^[15]

Daubert had an immediate impact on antitrust litigation. Nobel laureates in economics can no longer offer opinions concerning economic issues in an antitrust case simply because they are Nobel laureates in economics. If the proposed expert opinion testimony does not pass muster under the tests for reliability described in Daubert and Kumho (which have been incorporated into Rule 702 of the Federal Rules of Evidence), it will be found to be inadmissible before trial, and may result in summary judgment against the proponent of the testimony. Pretrial motions to exclude expert testimony under Daubert are now routine in antitrust litigation.

With the adoption in 2000 of amended Rule 702 of the Federal Rules of Evidence, the Twentieth Century ended with antitrust law and antitrust litigation practice which were vastly different from those when the Court decided Sylvania in 1977.

^[7] 433 U.S. 36 (1977).

^[8] 441 U.S. 1 (1979)

^[9] 486 U.S. 85 (1984)

^[10] 475 U.S. 574 (1986)

^[11] 477 U.S. 242 (1986)

^[12] 477 U.S. 317 (1986)

^[13] 475 U.S. at 588

^[14] 509 U.S. 579 (1993)

^[15] 526 U.S. 137 (1999)