I apologize for the delay in responding to the questions apparently posed by
Ms. Warmath, Mr. Lederer, and now Mr. Wetzel. [see postings attached below]
I did not see, nor was I alerted to, the first two and have only seen the
latter today because I mistook the "labor" in Labor Day weekend as meaning I
should be working.
AALL did indeed file comments with the DOJ regarding the proposed consent
decree in the sale of West Publishing to the Thomson Corporation. The
Executive Board at its July meeting in Indianapolis directed Robert Oakley,
AALL's Washington Affairs Representative, to prepare comments regarding the
consent order consistent with the position taken by the Association in its
initial letter to the DOJ dated March 26, 1996. Mr. Oakley prepared and sent
this letter to Mr. Craig Conrath, Chief of the Merger Task Force of the
Antitrust Division, U.S. Department of Justice, on July 29, 1996.
Both the original letter of March 26, 1996, and the second letter of July
29, 1996, are available on AALLNET, AALL's homepage, in the Washington
Affairs section. You may access them by going either directly to the
Washington Affairs site
<http://www.ll.georgetown.edu/aallwash/lt072996.html> or going through
AALLNET's "What's New" section <http://lawlib.wuacc.edu/aallnet.new.htm> or
"Press Releases" section <http.//lawlib.wuacc.edu/aallnet/press_re.htm>.
[As an aside, I encourage everyone to monitor AALLNET on a frequent basis
since new and revised material is mounted here on virtually a daily basis.]
I do apologize for the delay in posting the second letter to AALLNET and any
confusion that this may have caused. Post-Convention vacations of several
key individuals, minor technical difficulties, and several unfortunate
missed communications combined to cause the delay--there was not any
intention to keep the position of AALL as represented in the letter of July
29, 1996 from the membership or the public generally.
Frank Houdek, AALL President
At 02:43 PM 8/31/96 -0700, E. Scott Wetzel wrote:
>>Does AALL intend to file comments with the court regarding the proposed
>>anti-trust agreement with DOJ?
>
><snip>
>
>I can think of few people as affected, or better able to determine the
>>likely effect of the DOJ agreement, than AALL.
>>
>>Regards,
>> John Lederer
>>--
>>Will anyone from AALL be responding to this message on LAW-LIB from John
>>Lederer posted a week ago or did I miss the response from AALL?
>
>>Lyn Warmath
>>Hirschler, Fleischer, Weinberg, Cox & Allen
>>Richmond, Virginia
>>(804) 771-5605
>
>Unless I missed it, no one from AALL responded to the above-
>quoted message from Ms. Warmath or Mr. Lederer. Why not? I think
>that the Department of Justice's approval of the West/Thomson
>merger/acquisition is something that law librarians and law firms
>will be forced to deal with in coming months and years in real
>terms--dollars and cents--unless immediate action is taken
>to oppose this gargantuan legal publishing conglomerate.
>
>I realize that a substantial number of law librarians respect
>AALL's decision to remain "neutral" on the Thomson acquisition
>of West, and I understand that position. Nevertheless, and I
>speak from the position of one of the few remaining independent
>competing state law CD-ROM publishers in the United States, I think
>that someone from AALL should have given Ms. Warmath (and John
>Lederer, who originally posed the question) the courtesy of a reply.
>
In the interest of full disclosure, my company is one of the few
remaining independent competitors to the West/Thomson monolith.
We have been fortunate enough to gather sufficient market share in
Washington State to keep West honest (in fact, I think that Washington
is the only state in which West has recently begun offering
"free" online updates to its CD-ROM subscribers--a curious matter,
since I didn't think the word "free" was in West's vocabulary, and
certainly not in Thomson's, given their debt to pay for the deal).
On Friday, August 29th, Lexis-Nexis' attorney Gary Reback (of
Netscape v. Microsoft fame) filed a long comment with the Antitrust
Division of the Department of Justice. Mr. Reback's letter was
an excellent summary of why DOJ simply failed to do its job in this
matter. I quote a couple of pertinent paragraphs below, but the
fact of the matter is that there must have been an internal battle
at DOJ about how to proceed with the West/Thomson merger. This is
proved by the fact of the amicus curiae brief filed by the DOJ in
the Bender v. West action in the Southern District of New York that
alleges that West's claim to pagination copyright is simply not valid.
Why, then, did DOJ not litigate the proposed merger? In light of
Reback's letter, and when viewed dispassionately with a modicum of
common sense, DOJ's Anne Bingaman's statement that the proposed final
judgment and consent decree forcing divestiture of certain Thomson
products was a "major victory" for the legal community is a complete
crock. AALL members will be paying for their silence for years to come.
A couple of quotes from Mr. Reback's letter:
"There are three principal flaws in the Proposed Final Judgment. First,
West and Thomson are the only two competitors that provide editorially
enhanced case reporters and codes in the relevant product markets [the
nine identified by DOJ] (footnote omitted). Yet the Proposed Final Judgment
requires West and Thomson only to spin off the weakest of the overlapping
products, and even then they are spinning off what amount to product
fragments. There is no chance (much less a significant chance) that an
actual or potential competitor could take these fragments and put together
a rival set of enhanced products that could compete effectively with
West-Thomson.
"Under these circumstances, the proposed acquisition should never have
been permitted to be consummated: its likely harm to competition is
obvious and inevitable."
AALL's "neutrality" vis-a-vis the West/Thomson merger and its silence in
response to the question posed by a member of this list on the
above-referenced matter has been deafening. Yet all is not lost. Comments
to the Proposed
Final Judgment in this matter may be filed until September 3, 1996. The
DOJ's proposed final judgment and competitive impact statement may be found
at the URL http://www.access.gpo.gov/su_docs/aces/aaces002.html. Search
for West Publishing; the appropriate document is the third item in
the hit list. Comments may be filed with Craig W. Conrath, Chief,
Merger Task Force, Antitrust Division, United State Department of Justice,
1401 H. Street, N.W., Suite 4800, Washington D.C. 20530. His telephone
number is (202) 307-5779, and his fax number is (202) 307-5802. The
deadline again is September 3, 1995, so time is of the essence.
As Rhode Island Law Librarian Kendall Svengalis so aptly put it,
"Speak now or forever hold your peace." I would put it more bluntly:
Unless law librarians (and state court representatives) take the time
to say "Hey! This proposed acquisition STINKS!!" to the DOJ and the
court that will review the proposed acquisition of West by Thomson, law
libraries, law firms, and ultimately the citizens of the United States
will be paying for AALL's silence for years and years to come.
Scott Wetzel
CD Law, Inc., 1000 2nd Ave., Suite 1610 Seattle WA 98104
http://www.cdlaw.com
(206) 623-1688
Frank G. Houdek
Law Library Director & Prof. of Law
Southern Illinois University School of Law
Carbondale, Illinois 62901-6803
(618)453-8788/////FAX (618) 453-8728
e-mail: houdek@siu.edu
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