Government'S Opposition To Massachusetts School of Law'S Motion To Be Granted Intervening-Party Status For Purposes of Appeal
Government'S Opposition To Massachusetts School of Law'S Motion To Be Granted Intervening-Party Status For Purposes of Appeal
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UNITED STATES OF AMERICA, )
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Plaintiff, ) Civil Action No. 95-1211(CRR)
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v. )
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AMERICAN BAR ASSOCIATION, )
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Defendant. )
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denied since MSL has not met the standard for permissive
intervention and since the Court’s entry of the Final Judgment
clearly met the standards of the Tunney Act, 15 U.S.C. § 16(b)-
1
This Motion was accompanied by a full shipping container of "exhibits"
consisting nearly entirely of briefs MSL filed in its pending private litigation
against the ABA. In addition, MSL filed a Notice Of Appeal along with this
Motion. The Government intends to file today with the Court of Appeals a motion
to dismiss MSL’s appeal. Professor Moore apparently reads Hobson v. Hansen, 44
F.R.D. 18 (D.D.C. 1968), to hold that the filing of a notice of appeal together
with a motion to intervene for purposes of appeal deprives the district court of
jurisdiction to decide the motion to intervene. 9 Moore’s Federal Practice
¶ 203.06 n.10. That reading, however, overlooks the critical fact that
Dr. Hansen, a named defendant in his official capacity, had filed a notice of
appeal in that capacity, although he also sought to intervene for purpose of
appeal in another capacity. A party’s notice of appeal from a final judgment
deprives the district court of jurisdiction, but it does not follow that a notice
of appeal filed by one who has no right to appeal similarly deprives the court of
jurisdiction. Consequently, the Government believes the Court has jurisdiction
to rule on MSL’s Motion.
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its legitimate interests. Nowhere in the instant Motion has MSL
revived its claim of a right to intervene.
Allowing MSL permissive intervention will harm, not promote,
the public interest by wasting judicial and the parties’
resources on possible further proceedings in this Court and then
a subsequent meritless appeal. MSL clearly intends to attempt to
use intervenor status to seek the discovery, under the guise of
"determinative" documents, it has failed to obtain in its two
private lawsuits against the defendant.
2
AT&T is sui generis. Judge Greene granted intervention to over 100
parties, including numerous state regulatory commissions. United States v.
Western Electric Co., 578 F. Supp. 677, 678 (D.D.C. 1983). AT&T, of course,
involved the dissolution of the world’s largest company and the disruption of
numerous federal and state regulatory schemes.
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standard set in the Tunney Act as explained by this Circuit in
Microsoft. Consequently, permissive intervention for MSL is
undesirable and unnecessary.3
3
A motion for permissive intervention is addressed to this Court’s
discretion and the courts of appeal have rarely questioned the exercise of that
discretion; A...there apparently is only a single case in which an appellate
court has reversed solely because of an abuse of discretion in denying permissive
intervention." Wright, Miller & Kane, Federal Practice & Procedure Civil 2d
§ 1923, p. 516. That case, Crumble v. Blumenthal, 549 F.2d 462 (7th Cir. 1979),
is dissimilar to this one. It was a private suit for damages incurred due to
defendants’ violation of the Civil Rights and Fair Housing Acts. Intervenors
claimed damages from the same violation. The trial judge failed to give any
reason for denial of permissive intervention.
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(Tr. 4), it had no misunderstanding as to the proper standard of
review.4 Indeed, when MSL made the same claim during the June 20
hearing it makes again in this Motion, the Court observed: "I
within the reaches of the public interest," and that the trial
court must afford deference to the prosecutor and reject the
settlement only if "it has exceptional confidence@ that it is not
within the reaches of the public interest. 56 F. 3d at 1460.
MSL further argues that the Court of Appeals made statements
in Microsoft that "do not always appear internally consistent" so
4
The Court commented to Government counsel that: "Your success in the
Court of Appeals in the Microsoft case is the most definitive construct that I
know of with respect to the authority of the Court" (Tr. 3).
5
III. MSL SHOULD NOT BE GRANTED INTERVENOR
STATUS TO CONTINUE TO PURSUE DISCOVERY IN
THIS PROCEEDING THAT HAS BEEN DENIED IT
IN ITS PRIVATE ACTIONS AGAINST THE DEFENDANT
MSL wishes for intervenor status to pursue its belief that
the Government and dozens of district courts have misapplied the
"determinative@ documents requirement in the Tunney Act during
court has adopted the construction of the Tunney Act MSL has
urged in this case and wishes to pursue to the Court of Appeals.5
The Tunney Act requires the United States to make available
as "determinative" documents material that "the United States
5
One court, in United States v. Central Contracting Co., 537 F. Supp.
571 (E.D. Va. 1982), adopted a construction of the "determinative" document
provision with which we disagree. Central Contracting involved a civil case that
was companion to a criminal prosecution and the court required production of plea
agreement-related documents in the criminal case, not the underlying
investigatory evidence that MSL seeks here. We previously provided as exhibits
to our October 10 Opposition To Intervention documents similar to those produced
in Central Contracting.
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considered determinative in formulating such [settlement]
proposal. . . ." 15 U.S.C. § 16(b). On its face, the statute
refers to materials relating to the relief sought in the
settlement, and not the underlying evidence that caused the
Government to file suit. This construction is consistent with
the instruction in Microsoft that the trial court’s role is not
to inquire into the Government’s exercise of prosecutorial
discretion, but "only . . . to review the decree itself." 56
F.3d at 1459.
The Tunney Act was adopted in reaction to the settlement of
three cases the Government brought against ITT in the early
1970s. Senator Tunney, during the debate on the meaning of the
6
Ramsden was Richard Ramsden who was retained by the Government to
prepare a report on the economic consequences of the proposed settlement of one
of the ITT cases. There is nothing analogous to a Ramsden report in this
proceeding.
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CONCLUSION
MSL should not be granted intervenor status so that it can
burden the Court of Appeals with its needless request for
clarification of the Microsoft decision or to advance its novel
construction of the Tunney Act. Accordingly, the Court should
adopt the attached Order denying MSL’s Motion.
____________________________
D. BRUCE PEARSON
JAMES J. TIERNEY
JESSICA N. COHEN
MOLLY L. DEBUSSCHERE
U.S. Department of Justice
Antitrust Division
600 E Street, N.W.
Suite 9500
Washington, D.C. 20530
Tel: 202/307-0809
Fax: 202/616-8544
Attorneys for Plaintiff
United States
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA, )
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Plaintiff, ) Civil Action No. 95-1211(CRR)
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v. )
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AMERICAN BAR ASSOCIATION, )
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Defendant. )
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ORDER
Darryl L. DePriest
American Bar Association
541 N. Fairbanks Court
Chicago, Illinois 60611
Lawrence R. Velvel
Massachusetts School of Law
500 Federal Street
Andover, Massachusetts 01810
A. Paul Victor
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153.
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D. BRUCE PEARSON