A.M. Rutkowski wrote:
> They prevailed big time today with the DC Circuit's
> decision in the Thomas case. This is probably the
> most influential federal appellate court short of the
> US Supreme Court - particularly on matters relating
> to the US government. The decision was authored by
> a senior, well-respected jurist. The language vis-a-vis
> Network Solutions' role under the NSF cooperative
> agreement should be fairly dispositive regarding
> matters, for example, relating to its intellectual
> property.
>
> See below and at
> http://www.cadc.uscourts.gov/common/opinions/199905/98-5502a.txt
OTOH, the opinion hints strongly that the DC Circuit would reverse the
ruling in the PGMedia case that NSI is immune to antitrust liability, if
presented with a plaintiff with legal standing to file an antitrust claim
(DoJ, for example):
Just as important, Southern Motor Carriers dealt only with
state regulation of private entities. See also Greensboro
Lumber Co. v. Georgia Power Co., 844 F.2d 1538 (11th Cir.
1988). Here we have instead a contractual relationship be-
tween a federal government agency and a private party.12 It
is not obvious to us, particularly in view of Otter Tail Power
Co. v. United States, 410 U.S. 366, reh'g denied, 411 U.S. 910
(1973), that a private contractor automatically shares the
federal agency's immunity simply because the contractor's
allegedly anti-competitive conduct occurred--as Network So-
lutions puts it and some courts suggest13--"pursuant" to a
government contract. A contractor might be free to perform
the contract in any number of ways, only one of which is anti-
competitive.14
__________
12 The complex subject of antitrust immunity for private parties,
after the Supreme Court's decision in Parker v. Brown, is discussed
at length in 1 Phillip E. Areeda & Herbert Hovencamp, Antitrust
Laws ss 221-231, at 356-540 (revised ed. 1997).
13 See, e.g., PGMedia, Inc., No. 97 Civ. 1946, slip op. at 20;
Beverly v. Network Solutions, Inc., No. C-98-0337, 1998 WL
320829, at *4 (N.D. Cal. June 12, 1998); Medical Ass'n of Ala. v.
Schweiker, 554 F. Supp. 955, 966 (M.D. Ala. 1983).
14 In Otter Tail, an electric utility company sought to avoid
Sherman Act liability partly on the ground that its anti-competitive
actions were pursuant to its contract with the Bureau of Reclama-
tion, a federal agency. The Court rejected this defense, agreeing
with the Solicitor General that "government contracting officers do
not have the power to grant immunity from the Sherman Act." 410
