Alito & Antitrust

From The Legal Intelligencer comes Carl Hittinger's essay, Alito's Conservative Views on Antitrust, summarizing Judge Alito's antitrust track record in the hopes of discerning his views on substantive antitrust question (the American Antitrust Institute also summarizes Alito's antitrust record here).  Hittinger focuses on the two Third Circuit decisions authored by Judge Alito, Miller v. Indiana Hospital and Barton & Pittinos v. SmithKline, and the dissent he joined in LePage's v. 3M authored by Judge Greenberg.  Hittinger's primary conclusion is that:

Alito interprets precedent strictly and narrowly applies the reaches of the antitrust laws.  He does not appear to give private antitrust plaintiffs the benefit of the doubt, particularly as to issues of standing or injury, even in the context of summary judgment . . .. [H]e often appears to be saying that the plaintiff was not the proper plaintiff to bring the case, not that there were no antitrust violations at play.  Based on his joining of the Brader, it appears he is willing to give a plaintiff the chance to develop a discovery record if the essential elements are plead.

This is all to the good.  Earlier in the essay, however, Hittinger makes a statement that I find to be more troublesome:

"in many [of Alito's cases], the antitrust claims were dismissed on a motion for summary judgment despite what seemed to be disputed factual and related expert issues concerning antitrust market and injury questions."

My suspicion is that this passage is largely in reference to Alito's opinion in SmithKline, which Hittinger goes on to discuss, and describes (correctly, in my view) as the best available example of Alito's antitrust jurisprudence.  The opinion is worth a closer look.

The plaintiff (B&P) marketed SmithKline's Hepatitis-B vaccine to nursing homes until terminated.  The termination appeared to be brought on by complaints by pharmacists who had traditionally supplied nursing homes with vaccines and pharmaceutical products.  The Third Circuit unanimously affirmed the district court's ruling that no Section 1 violation of the Sherman Act had taken place on the grounds that the plaintiff was lacking antitrust standing.  Specifically, the district court noted that the plaintiff's alleged injury was not "the type for which the antitrust laws were designed to protect."

Affirming the district court, Judge Alito points out that B&P clearly fails the antitrust standing requirement on the basis of their complaint alone, which alleges that competition has been injured in the markets to sell and distribute the vaccine while B&P readily admits that it does not participate in either of these activities (and in fact, is prohibited from doing so by law).  Judge Alito also considered B&P's modified claim, raised at oral argument and in their briefs, that the relevant market was the competition between B&P and the pharmacists.  Judge Alito carefully rejected this argument by considering the cross-elasticity of demand between the services offered B&P and the pharmacists.  Because B&P's role was limited to marketing the vaccine, nursing homes were not choosing between B&P and the pharmacists because the former would be worthless without the entire package offered by SmithKline, a licensed seller, and B&P.  Namely, B&P would me missing the vaccine! Judge Alito concludes that:

"[c]onsequently, there was no elasticity of demand as between the pharmacists' offerings and B&P's offerings; no matter how much the pharmacists raised the price of the package of the goods and services offered, the nursing homes would not have switched to B&P."

Judge Alito also notes that B&P's president described his own company as an advertising and marketing agency which did not compete with wholesalers and pharmacists.  While I do not have the benefit of the entire record, nothing in this opinion strikes me as justifying any concern that Judge Alito cavalierly dismissed the motion for summary judgment despite genuine factual disputes.  To the contrary, the facts underlying the analysis were plainly undisputed.

While I share Hittinger's view that Judge Alito will strictly apply the antitrust standing precedent, I do not share his concern that he may eschew careful legal and factual analysis in order to limit opportunities for private antitrust plaintiffs.  On this point, my sense of Judge Alito's antitrust opinions is quite the opposite.  I find that what little Judge Alito has written on antitrust issues is properly described as fastidious analysis complemented by strict application of doctrine.

Comments

[geoff manne]

Nice -- thanks for the analysis. By the way --a quick glance at the AAI memo demonstrates no analysis whatever: It's merely an accounting (with window-dressing, to be sure) of how many times Alito ruled for antitrust plaintiffs and how many times against. Its conclusion is thus rather jarring: "Judge Alito is not likely to be a supporter of antitrust enforcement." Well, I guess you could infer that from the head count, but it'd be a pretty weak inference. Perhaps Alito would love to support antitrust plaintiffs if only one would come along with a good case. But then, I suppose AAI didn't suggest they were concerned with *appropriate* antitrust enforcement, just enforcement period, full stop.