Focus Areas:    Antitrust

Bargaining in the Shadow of Justice Alito

David Fischer at Antitrust Review posts an excerpt from Information Resources, Inc.’s (IRI) press release issued to explain the recent settlement of their ten year long litigation against VNU (A.C. Nielsen, IMS Health, and Dun and Bradstreet). IRI’s claims were based on an “above cost” bundling theory that Thom has discussed in detail here. In that post, Thom expressed optimism (like me) about Justice Alito’s influence on the Supreme Court’s antitrust jurisprudence in large part because of his sensible dissent in LePage’s. It looks like we do not have to wait long to for evidence of that influence. Notice this section from IRI’s press release:

Even if IRI were to prevail at the Second Circuit on the bundling issue, both litigation teams felt there was a significant risk that the Supreme Court would rule against IRI if it accepted the case for appeal, particularly in light of the current make-up of the Supreme Court and the fact that Justice Alito, the newest addition to the Supreme Court, was the author of an appellate court decision in 2002 that was adverse to IRI’s bundling position in this case. Although Justice Alito’s position was overturned on en banc review by the Third Circuit Court of Appeals in 2003, Justice Alito has recently expressed his opinion that his original view of that case was correct.

I do not recall seeing such a detailed explanation of a settlement, at least, not referencing an individual Justice’s views on a particular subject. In any event, I guess this means that antitrusters might have to wait a bit longer for SCOTUS to articulate a rule for above cost bundling.