Opposition Brief — In re Cooper

( »

No. 87-1316 —

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

In Re: L. NAPOLEON COOPER d/b/a

LARRY N. Cooper the Proprietorship

On Writ of Mandamus and Prohibition

in the Alternative to the

United States Court of Appeals

for the District of Columbia Circuit

OPPOSITION TO PETITION FOR WRIT TO ISSUE

Toco D. WEsT, JR.

Counsel of Record

PATTERSON, BELKNAP, WEBB &

TYLER

Suite 1060

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 783-6518

Counsel for Respondents

Dow Jones & Company, Inc.,

The Wall Street Journal,

Peter J. Skinner, William

Cummings and David E. Moran

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Question Presented

Whether in summarily affirming dismissal of this

action, the United States Court of Appeals for the

District of Columbia Circuit exceeded its jurisdiction.

il

List of Parties Required by Supreme Court

Rule 28.1

Dow Jones & Company, Inc., The Wall Street Jour-

nal, Peter G. Skinner, William Cummings and David

E. Moran (hereinafter Dow Jones) hereby state that:

a. Dow Jones & Company, Inc. is the exclusive

owner and publisher of The Wall Street Journal.

b. Dow Jones & Company, Inc. does not have a

parent company, subsidiaries or affiliates.

c. Dow Jones & Company Inc., is a minority share-

holder in Telerate, Inc., One World Trade Center,

New York, New York.

TABLE OF CONTENTS

Page

I i

List OF PARTIES REQUIRED BY SUPREME COURT

NESSES SRLS ng a il

ME EID co ns nasovonmuckaacescducaccoaswnoceces ili

a iv

REFERENCE TO OPINIONS AND JUDGMENTS

DELIVERED BY THE COURTS BELOW eececccccccccccceeecee 1

APPLICABLE STATUTES AND RULES. .........cccc0000-00-.-. 2

UIT OU A occ ovesnccccecnscncsacceecsse. 6

A. Statement of Proceedings ...........0cccce 6

B. Statement of Material Facts .................. 7

REASONS FOR DENYING A WRIT OF MANDAMUS OR,

ALTERNATIVELY, PROHIBITION _ .....................s.eseseos.. 11

Fi. TMOPAOPGINATY Write .0.........0scccsccesececesss. 11

B. The Court of Appeals Had the Power to

Hold Summary Proceedings On Cooper’s

TR ieiciikised sanictmicisidabbotnnnsinésnsdncnnenen 13

C. The Court of Appeals Correctly Affirmed

the Judgment of the District Court ...... 14

1. The Complaint Fails to State a Cause

of Action Under the Antifraud Provi-

sion of the Williams Act ...............0... 15

2. The Complaint Fails to State a Cause

of Action Under the Robinson-Patman

SES se ee ee AR 17

3. The Complaint Fails to State a Claim

Under the Sherman Act ..............000... 19

ERR Rea LAREDO ae vcr 20

a

iv

TABLE OF AUTHORITIES

CASES: Page

Allied Chemical Corporation v. Daiflon, Inc., 449

CU, TE ARID. hcvcntccinnsnsccarsnstanensnmnsivenmnsionaes 11,12

Ambook Enterprises v. Time Inc., 612 F.2d 604 (2nd

Cir. 1979) cert. dismissed, 448 U.S. 914

CERIN: © sicccens seseeeeneneeseaeaesencansecessesneasaeneaeneneaees 18

Associated General Contractors of California, Inc.

v. California State Council of Carpenters, 459

EE ee GID. ncciiccaisnatnctinsinncietinnissmpianntitneinas 19

Bankers Life & Cas. Co. v. Holland, 346 U.S. 379

RE Gccessiincacitdsninesicsnssnsatnnsiotiicnsotecsbesnasesnecen 12

Barnes v. United States, 678 F.2d 10 (8rd Cir.

WOR) rocicasesescccvensiscccnosnscsnnsbadsonsesetbsdaswssecccsssass 13,14

Bird and Son, Inc., 25 FTC 468 (1937) . .........000 18

Bruce’s Juices v. American Can Co., 330 U.S. 743

CRETE cuisacncsstisniectengeeeraiaend ie colaiskiciichhanbiesialcundacbasar 18

Collier v. United States, 382 U.S. 890 (1969) ...... 12

Conley v. Gibson, 355 U.S. 41 (1957) «0... eeeeeeeeees 14

Copperweld Corp. v. Independence Tube Corp., 476

CFB, TE CRIN ccccsncseviscscsnitntnsitnasinnisosasinntotenss 19

Diamond v. World News Corp., 542 F. Supp. 887

(S.DI.Y. UDDG) cnccrcsccccccsanssasssorcnseccoscnermsencceses 19

Glick v. Koenig, 766 F.2d 265 (7th Cir. 1985) . 18,14

H.A.B. Chemical Co. Inc. v. Eastman Kodak Co.,

1981-1 Trade Cases (CCH) 4 63,912 (C.D. Cal.

RODD cascnesnssscnccnccsetansatnnntanensastunionigersessernonasenre 18

Hanson Trust PLC v. SCM Corp., 774 F.2d 47 (2d

Clie. TEI wccccntcncecntnenansnssntecasssnarecescantsrncacesee 16

Jaffke v. Dunham, 352 U.S. 280 (1957) «0... 13

Martin Trigona v. Smith, 712 F.2d 1421, on re-

mand 600 F. Supp. 1184 and 600 F. Supp.

1193, affirmed 818 F.2d 95 (D.C. Cir

WBF | sacdsscicsecacinsdesshaissscnniereanvsiietebapnetinnssansensees 13

Table of Authorities Continued

Page

Matter of Bankers Trust Co., 775 F.2d 545 (8rd

Sc aE. sland scbeiniuibiianietibdindamsteckaiandnndiecsinandioics 12

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

RR EE tatisesiahinsensducdiccanesenaninsditaccamacnoctcass 17

National Tire Wholesale, Inc. v. Washington Post

Co., 441 F. Supp. 81 (D.D.C. 1977), aff'd. mem.

506 F260 GBB(D.C. Cir. T6TB) o.cccccccccccc.cs..s. 18

Piper v. Chris-Craft Industries, Inc., 430 U.S. 1

COEED .. ncthsbeunnatieithiusaesaddidiaetaidasshiacemiidiibencnbackesss 15

Roche v. Evaporated Milk Assn., 319 U.S. 21

ERIE”: sab tkehisdebelisiiniatldeieetacinbibaictla teat iti asics 11

SEC v. Carter Hawley Stores, 760 F.2d 945 (9th

Gs SIE. siiclcnctsacesnukiciiadmainecsesenehsccoacaasisiiicaies 16

S-G Securities Inc. v. Fuqua Investment Co., 466 F.

UU. DERE CED. BERGR, BOBT) accicscccssarcccanvsieccs 16

Times Picayune Publishing Co. v. United States, 345

Rea TUITE TEENIE = dainsdcccitdncomidinnskeasxasapidiiaaeasideiaaniaa 18

Thermtron Products, Inc. v. Hermansdorfer, 423

ae IL nintahiisancesnsisienstiadastchies dha lcah dahastlaiagi'ns 11

United States v. Duell, 172 U.S. 576 (1899) ........ 12

United States v. Taylor, 798 F.2d 1337 (10th Cir.

SE IE Ls ccukischnsasctpinbacalsaeanipdiaiiniac 12

Wellman v. Dickinson, 475 F. Supp. 783 (S.D.N.Y.

SPTEND eukibecuidinsdibtiiseandaidiscnaacachaibleieaesibastnsknesins 15,16

Will v. United States, 389 US. ft. Een 11,12

TEXTS

F. Rowe, Price Discrimination Under the Robinson-

FE I IEE. dadtiitctessniisuasnisteteniceuiinccdaanis 17,18

Patman, Complete Guide to the Robinson Patman

PU ITE Gicchic tac arethien Sicclathigsaenbiecceahicesdeianion int 18

STATUTES

Securities and Exchange Act of 1934 § 14(e), 15

U.S.C. § 78n(e) (West 1981) oo... eee 15

Table of Authorities Continued

Page

Robinson-Patman Act § 2(e), 15 U.S.C. § 13(e) (West

1981) ccccccccccsccessscssscscsssseesecessssssssssscnsessnssssnoens 15,17

Sherman Antitrust Act, 15 U.S.C. § 1 (West Supp.

1987) ceccccsccecccesssssssscssssecscenscsssesssssssesssnsesensenees 15,19

28 U.S.C. § 1291 (West 1987) ....ccccccccceerereeeeereenens 4,13

28 U.S.C. § 1651 (West 1981) .....cccccccceceeeeeeeeeeeeees 3,11

9B U.S.C. § 2106 (West 1982) .....ccccccccrereeeeeeeeereees 3,13

RULES

Federal Rule Appellate Procedure 2 .......-:s+sss+++ 3,14

Fed. R. Civ. P. 12(D) ..cccccccceeeceeseeeeeeeeeeeeeenneneserenenes 4-5,14

Reference to Opinions and Judgments

Delivered by the Courts Below

Reference is made to the Order and Memorandum

of the United States District Court for the District

of Columbia dated July 29, 1986. Relying on Rule 11,

the District Court dismissed this action as frivolous.

Petitioner’s Appendix (Pet. App.) 5, 6-8.

Reference is also made to the Per curiam Order

of the United States Court of Appeals for the District

of Columbia Circuit dated July 30, 1987 In pertinent

part, the Court of Appeals (Starr, J., Silberman, J.

and McGowan, S.J.) ordered all parties to show cause

why the District Court’s judgment should not be af-

firmed. Pet. App. 9.

Reference is also made to the Per curiam Order

and Memorandum of the United States Court of

Appeals for the District of Columbia Circuit dated

October 9, 1987. The Court of Appeals, (Wald, C.J.,

Mikva, J. and Edwards, J.) summarily affirmed the

District Court, but on different grounds. The Court

of Appeals found that petitioner had failed to state

a cause of action upon which relief could be granted.

Pet. App. 12, 13-20.

Statement of Jurisdiction

The judgment of the United States District Court

for the District of Columbia was filed on July 29,

1986, dismissing petitioner’s complaint. The United

States Court of Appeals for the District of Columbia

summarily affirmed on October 9, 1987. Cooper’s

petition for rehearing was denied on November 10,

1987. Petitioner has invoked this Court’s jurisdiction

pursuant to 28 U.S.C. § 1651 (West 1981).

Applicable Statutes and Rules

Section 14(e) of the Securities and Exchange Act of

1934, 15 U.S.C. § 78n(e) (West 1981) provides:

“Tt shall be unlawful for any person to make

any untrue statement of a material fact or

omit to state any material fact necessary in

order to make the statements made, in the

light of the circumstances under which they

are made, not misleading, or to engage in

any fraudulent, deceptive, or manipulative

acts or practices, in connection with any

tender offer or request or invitation for tend-

ers, or any solicitation of security holders in

opposition to or in favor of any such offer,

request, or invitation. The Commission shall,

for the purposes of this subsection, by rules

and regulations define, and prescribe means

reasonable designed to prevent, such acts and

practices as are fraudulent, deceptive, or ma-

nipulative.”’

Section 2(e) of the Robinson-Patman Act, 15 U.S.C.

§ 13(e) (West 1981) provides:

“It shall be unlawful for any person to dis-

criminate in favor of one purchaser against

another purchaser or purchasers of a com-

modity bought for resale, with or without

processing, by contracting to furnish or fur-

nishing, or by contributing to the furnishing

of, any services or facilities connected with

the processing, handling, sale, or offering for

sale of such commodity so purchased upon

terms not accorded to all purchasers on pro-

portionally equal terms.”

Section 1 of the Sherman Act, 15 U.S.C. § 1 (West

Supp. 1987), provides:

“Every contract, combination in the form of

trust or otherwise, or conspiracy, in restraint

of trade or commerce among the several

States, or with foreign nations, is declared

to be illegal. Every person who shall make

any contract or engage in any combination

or conspiracy hereby declared to be illegal

shall be deemed guilty of a felony, and, on

conviction thereof, shall be punished by fine

not exceeding one million dollars if a cor-

poration, or, if any other person, one hundred

thousand dollars, or by imprisonment not ex-

ceeding three years, or by both said punish-

ments, in the discretion of the court.”

28 U.S.C. § 1651 (West 1966) provides:

“The Supreme Court and all courts estab-

lished by Act of Congress may issue all writs

necessary or appropriate in aid of their re-

spective jurisdictions and agreeable to the

usages and principles of law.”

28 U.S.C. § 2106 (West 1982) provides:

The Supreme Court or any other court of

appellate jurisdiction may affirm, modify, va-

cate, set aside or reverse any judgment, de-

cree, or order of a court lawfully brought

before it for review, and may remand the

cause and direct the entry of such appropri-

ate judgment, decree, or order, or require

such further proceedings to be had as may

be just under the circumstances.”

28 U.S.C. § 1291 (West 1987) provides:

“The courts of appeals (other than the United

States Court of Appeals for the Federal Cir-

cuit) shall have jurisdiction of appeals from

all final decisions of the district courts of the

United States, the United States District

Court for the District of the Canal Zone, the

District Court of Guam, and the District

Court of the Virgin Islands, except where a

direct review may be had in the Supreme

Court. The jurisdiction of the United States

Court of Appeals for the Federal Circuit shall

be limited to the jurisdiction described in sec-

tions 1292(c) and (d) and 1295 of this title.”’

Rule 2 of the Federal Rules of Appellate Procedure

provides:

“In the interest of expediting decision, or for

other good cause shown, a court of appeals

may, except as otherwise provided in Rule

26(b), suspend the requirements or provision

of any of these rules in a particular case on

application of a party or on its own motion

and may order proceedings in accordance

with its direction.”

Fed. R. Civ. P. 12(b) provides:

“(b) How Presented. Every defense, in law

or fact, to a claim for relief in any pleading,

whether a claim, counterclaim, cross-claim, or

third-party claim, shall be asserted in the re-

sponsive pleading thereto if one is required,

except that the following defenses may at the

option of the pleader be made by motion: (1)

lack of jurisdiction over the subject matter,

(2) lack of jurisdiction over the person, (3)

improper venue, (4) insufficiency of process,

(5) insufficiency of service of process, (6) fail-

ure to state a claim upon which relief can be

granted, (7) failure to join a party under Rule

19. A motion making any of these defenses

shall be made before pleading if a further

pleading is permitted. No defense or objec-

tion is waived by being joined with one or

more other defenses or objections in a re-

sponsive pleading or motion. If a pleading

sets forth a claim for relief to which the ad-

verse party is not required to serve a re-

sponsive pleading, the adverse party may

assert at the trial any defense in law or fact

to that claim for relief. If, on a motion as-

serting the defense numbered (6) to dismiss

for failure of the pleading to state a claim

upon which relief can be granted, matters

outside the pleading are presented to and not

excluded by the court, the motion shall be

treated as on for summary judgment and dis-

posed of as provided in Rule 56, and all par-

ties shall be given reasonable opportunity to

present all material made pertinent to such

a motion by Rule 56.”

Statement of the Case

A. Statement of Proceedings

On February 10, 1986, petitioner L. Napoleon

Cooper (hereinafter Cooper) instituted this action for

over $78 million in damages and injunctive relief

against Dow Jones, General Electric Company (GE),

RCA Corporation (RCA), and Lazard Freres & Com-

pany (Lazard) alleging violations of Section 14(e) of

the Securities and Exchange Act of 1934 (1934 Act),

15 U.S.C. § 78n(e) (West 1981), Section 1 of the Sher-

man Antitrust Act, 15 U.S.C. § 1 (West Supp. 1987),

and Section 2(e) of the Robinson-Patman Antidiscri-

mination Act, 15 U.S.C. § 13(e) (West 1973). Juris-

diction was asserted pursuant to § 27 of the 1934

Act, § 4 of the Clayton Act, as well as 28 U.S.C. §

1337 (jurisdiction for actions affecting commerce), 28

U.S.C. § 1831 (federal question), and 28 U.S.C. § 1332

(diversity).

With respect to Dow Jones, Cooper requested com-

pensatory and punitive damages under the antitrust

and securities counts, declaratory judgment concern- |

ing the alleged illegal actions, and an order that any

contract between Dow Jones and the remaining

appellees be declared void. He made similar claims

against GE, RCA and Lazard.

In essence, Cooper charged that the respondents

violated § 14(e) of the 1934 Act by conspiring to

withhold information about a prospective offer by him

to purchase 4.999% of RCA stock from stockholders.

Cooper also alleged antitrust violations by Dow Jones

in refusing to sell space to him to advertise his pur-

ported offer to purchase RCA and twenty-seven other

companies simultaneously.

Cooper sought, and was denied, injunctive relief.

Thereafter, all respondents moved to dismiss the ac-

tion as frivolous. Cooper opposed these motions. On

July 29, United States District Judge Harold H.

Greene granted respondents motions, dismissing the

action as frivolous. Pet. App. 5, 6-8.

On August 4, 1986, Cooper appealed this matter to

the United States Court of Appeals for the District

of Columbia Circuit. Cooper demanded, but did not

receive, emergency relief.

On July 30, 1987, the Court of Appeals, acting on

its own motion, directed the parties to show cause

why the District Court’s decision should not be sum-

marily affirmed. Pet. App. 9-10. Cooper, Dow Jones,

Gesub, RCA and GE timely responded to the show

cause order. Only petitioner Cooper opposed summary

affirmance.

On October 9, 1987, the Court of Appeals affirmed

the decision of the District Court, but for different

reasons. Pet. App. 12, 13-20. The Court of Appeals

found that Cooper had failed to state a cause of action

upon which relief could be granted. Fed. R. Civ. P.

12 (b) (6).

On October 23, 1987, Cooper petitioned the Court

of Appeals for a rehearing. The petition was denied

on November 10, 1987. On February 8, 1988, Cooper

applied to this Court for a writ of mandamus or,

alternatively, prohibition.

B. Statement of Material Facts

L. Napoleon Cooper is an individual citizen of Lou-

isiana trading as Larry N. Cooper the proprietorship.

In both capacities, Cooper is promoting a charitable

program identified by him as “Project 76-An Amer-

ican Affair, Inc.” (Project 76). Affidavit of L. Na-

poleon Cooper sworn to February 20, 1986

(hereinafter Cooper Affidavit) { 20.! Project 76 is an

unfunded charitable entity (Cooper Affidavit, ¢ 6) ded-

icated to

implementation [of a] mechanism whereby

America’s major for-profit companies would

(with shareholder approval) assume a primary

supplemental responsibility for the creation

of a working relationship with the nation’s

non-profit sector to [privately] finance and

administer the delivery of basic public works,

services and social welfare activities (in as-

sociation with and to the specifications of

federal, state and local governments).

(Emphasis in the original.)

Cooper Affidavit ¢ 20.

During the six years or so preceding the filing of

this action, Cooper approached twenty-eight Fortune

500 companies with prospective offers to buy 4.999% ~

of each company. Cooper Affidavit, ¢ 15. Cooper

planned to finance his purchases by issuing high-risk,

high-yield debt instruments secured by the respective

company’s equity voluntarily donated by shareholders.

Id., ¢ 6. Cooper made no other arrangements for

financing his proposed acquisitions. Id., ¢ 7. Dow

Jones, RCA, and GE were among the companies

Cooper approached seeking donations for his scheme.

See Pet. App. 41-47.

1 For purposes of this proceeding, all the well-pleaded facts

alleged in the complaint and the Cooper Affidavit are accepted

as true. zi

iia tia Sl th

Skinner advised Cooper that the owners of Dow

Jones were not interested in his proposal. Cooper

made no further attempt to acquire Dow Jones shares.

RCA and GE, among others, did not respond to

Cooper’s initial solicitation and Cooper specifically

pressed them for a response. On November 21, 1985,

Cooper submitted a prospective ‘‘offer to purchase”’

to RCA for 4.999% of its common stock. The ten-

tative offer price consisted of a $6.50 cash coupon

and a renewable $21.51 one-time tax deduction. Pet.

App. 27-28. The total face amount of the offer was

less than $300 million.2 Cooper’s only means of fi-

nancing his offer was by charitable donations from

RCA stockholders willing to give their equity to his

project.? Neither GE nor RCA responded to Cooper’s

offers.

On October 19, 1985, Cooper contacted The Wall

Street Journal (hereinafter the Journal) seeking in-

formation concerning purchasing advertising for char-

itable activities. By letter dated November 6, 1985,

the Journal provided the requested information. Pet.

App. 25.

On November 25, in a telephone conversation,

Cooper’s request to buy space to advertise his planned

offer to purchase 4.999% of RCA, GE, and twenty-

six other companies, was rejected by Cummings and

the Journal. See Pet. App. 23-29. On December 5,

1985, also in a telephone conversation, Moran con-

2 $66.17 x 4,484,103 $296,713,895.51. Pet. App. 26-27.

3On the same date, November 21, 1985, Cooper made pro-

posals of offers to purchase twenty-seven other companies, in-

cluding GE. As with the RCA proposal, donation of stock equity

was the only financing proposed. See Pet. App. 33, 38.

10

firmed the Journal’s decision not to sell Cooper ad-

vertising space. This was later confirmed by letter.

See Pet. App. 238, 25.

Dow Jones explained to Cooper that without sub-

stantially more supporting information about the

planned offers of purchase, the Journal would not

carry his advertisement. As submitted, the proposed

advertisement was so vague and misleading that it

was not publishable under the Journal’s standards.

Cooper concedes that he alone was denied the op-

portunity to purchase advertising space from the

Journal. See Pet. App. 25.

On December 4, 1985, Cooper ‘“‘began to dig’’ for

evidence that the Journal, in conjunction with others,

had agreed to never sell him the advertising space

he desired.’”’ Pet. App. 25. The only evidence he lo-

cated to support his suspicion arose out of an alleged

conversation with an unnamed corporate executive.

This unknown executive merely acknowledged Coop-

er’s assertion that the Journal would not sell him .

space.* Cooper did not question the executive further.

Cooper Affidavit, ¢ 26. Cooper presented no other

evidence of an agreement between Dow Jones and

any other party to refuse to sell him advertising space.

On February 13, 1986, following negotiations be-

tween the two companies, the RCA stockholders ac-

‘Cooper describes the conversation as follows: ‘‘By happenst-

ance, the way the plaintiff [Cooper] raised the subject caused

him to appear to be asking the executive if he was aware that

‘I’ve had problems publishing the offer in the Wall Street Jour-

nal.’ . . . [T]he executive immediately responded, ‘yes’. . . .”

Cooper Affidavit, { 26.

i ae AD ac cat ie a Sehr abet LPO 0 ue HS sae 8 wel AO

A oN tinal we ch be lle Ae

la ht Hive A th atv hate

api Phe

et

11

cepted a merger with GE valued at $6.3 billion. The

merger was later fully consummated.

Reasons for Denying a Writ of Mandamus

or, Alternatively, Prohibition

Petitioner has not established any basis for this

Court to issue either a writ of mandamus or a writ

of prohibition. Extraordinary writs, such as manda-

mus and prohibition, are properly directed against a

federal court that has either failed to perform a clear

obligation, or exceeded its jurisdiction. Allied Chem-

ical Corporation v. Daiflon, Inc., 449 U.S. 33, 34-35

(1980); Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 352-353 (1976); Will v. United States,

389 U.S. 90, 95 (1967). Here, the attions of the Court

of Appeals for the District of Columbia Circuit, both

procedurally and substantively, were well within the

court’s authority and jurisdiction.

A. Extraordinary Writs

The All Writs Act, 28 U.S.C. § 1651 (West 1966)

provides that extraordinary writs may issue as “‘nec-

essary or appropriate in aid of their (courts created

by Act of Congress) respective jurisdictions.’’ As such,

it is a “‘drastic remedy”’ and is only available in ‘‘ex-

traordinary situations.’’ Allied Chemical, 449 U.S. at

34.

Generally, in order to avoid piecemeal appellate lit-

igation and promote judicial efficiency, mandamus has

only been available, in connection with federal courts,

in order ‘‘to confine an inferior court to a lawful

exercise of its prescribed jurisdiction or to compel it

to exercise its authority when it is its duty to do so.”

Roche v. Evaporated Milk Assn., 319 U.S. 21, 26

12

(1943) quoted with approval at Will, 389 U.S. at 95

and Allied Chemical, 449 U.S. at 35. For similar rea-

sons, the availability of writs of prohibition has also

been restricted. United States v. Taylor, 798 F.2d

1337, 1340-1341 (10th Cir. 1986) reh’g denied; Matter

of Bankers Trust Co., 775 F.2d 545 (8rd Cir. 1985).

In order to obtain a writ of mandamus or prohi-

bition, in connection with a federal court, the appli-

cant must meet a two-part standard. First, the

applicant must demonstrate that he lacks any “‘other

means to obtain the relief he desires.’”’ Allied Chem-

ical, 449 U.S. at 35. Second, the applicant must prove

“this] right.to issuance of the writ is clear and un-

disputable.’’ Allied Chemical, 449 U.S. at 35 quoting

from Bankers Life & Cas. Co. v. Holland, 346 U.S.

379, 384 (1953) quoting from United States v. Duell,

172 U.S. 576, 582 (1899).

Here, neither standard has been met. First, Cooper

had an alternate means of relief available—petition

for certiorari. 28 U.S.C. § 1254.5 Second, Cooper has

not established a ‘clear and indisputable’ right to have -

a writ issue. In summarily affirming the judgment of

the District Court, the Court of Appeals did not ex-

ceed its jurisdiction or authority, either procedurally

or substantively.

5 This Court may, in its descretion, treat Cooper’s application

for an extraordinary writ as a petition for certiorari. Collier v. -

United States, 382 U.S. 890 (1969). As discussed infra, the issues _

present in this case do not merit review on a petition of

certiorari.

bck

13

B. The Court of Appeals Had the Power to Hold Summary

Proceedings on Cooper’s Appeal

Cooper contends, wrongly, that the Court of

Appeals exceeded its authority in summarily affirm-

ing, following an order to show cause. See Petition

24-25, 59. 28 U.S.C. §§ 1291, 2106, and Federal Rule

Appellate Procedure 2, provide the authority for the

procedure utilized in the instant action.

28 U.S.C. §§ 1291 and 2106 grant federal appellate

courts the authority to resolve appeals from final or-

ders rendered by the lower courts. In part, it permits

the appellate courts to affirm lower court decisions

on any grounds supported by the record, not merely

those relied upon by the lower court. Jaffke v. Dun-

ham, 352 U.S. 280 (1957). Where the facts and legal

issues have been fully presented, a federal appellate

court may also dispose of appeals, summarily.®

In addition to having the authority to dispose of

appeals summarily, appellate courts have the power

to tailor the proceedings in a particular case to the

* See e.g. Glick v. Koenig, 766 F.2d 265 (7th Cir. 1985) (Appeal

could be decided without oral argument where the matter is

frivolous, the dispositive issue has been recently authoritatively

decided, or the facts and legal arguments are adequately pre-

sented in the briefs and record); Martin-Trigona v. Smith, 712

F.2d 1421, on remand 600 F. Supp. 1184 and 600 F. Supp.

1193, affirmed 818 F.2d 95 (D.C. Cir. 1987) (summarily dis-

missing appeal after careful review of the facts and the legal

issues); Barnes v. United States, 678 F.2d 10 (8rd Cir. 1982)

(holding ‘‘[t]here can be no dispute about our power to act sum-

marily. Summary disposition by appellate courts, while not rou-

tine, is certainly not uncommon.’’)

14

facts and issues presented. Federal Rule of Appellate

Procedure 2 provides that “‘[iJn the interest of ex-

pediting decision, or for other good cause shown, a

court of appeals may . . . suspend the requirements

or provision of any of these rules in a particular case

. on its own motion and may order proceedings

in accordance with its direction.’’ Thus, the Court of

Appeals for the District of Columbia Circuit had the

power and the authority to dispense with the usual

appeal process, issue a show cause order and hold

summary proceedings.

Further, the Court of Appeals carefully considered

the facts and the legal issues before issuing its de-

cision. Glick, 766 F.2d at 265; Barnes 678 F.2d at

10. All parties were permitted to submit written re-

sponses to the order to show cause. Cooper and Dow

Jones took the opportunity to submit lengthy mem-

oranda with attachments. Finally, the Court of

Appeals issued a written memorandum setting forth

the issues on appeal, and, although it affirmed the

District Court’s judgments, it used a different ra- .

tionale. Thus, the Court of Appeals gave this appeal

due consideration and did not commit any procedural

impropriety.

C. The Court of Appeals Correctly Affirmed the Judgment

of the District Court

Rule 12(bX6) provides for dismissal of actions which

do not state a cause of action upon which the federal

courts are empowered to provide a remedy. Conley

v. Gibson, 355 U.S. 41, 45-46 (1957). This is just such

an action.

Viewing the well-pleaded facts in the light most

favorable to Cooper, the complaint and supporting

15

documents do not, as a matter of law, state a cause

of action. Here, Cooper has alleged that Dow Jones

committed violations of Section 14(e) of the 1934 Act

15 U.S.C. § 78n(e) (West 1981), Section 2(e) of the

Robinson-Patman Act, 15 U.S.C. § 13(e) (West 1973),

and Section 1 of the Sherman Act, 15 U.S.C. § 1

(West Supp. 1987). As to each action, the complaint

and Cooper affidavit fail to state a claim against Dow

Jones, as a matter of law.

1. The Complaint Fails to State a Cause of Action Under

the Antifraud Provisions of the Williams Act

In Counts I, II and III of the complaint, Cooper

has alleged that Dow Jones violated the antifraud

provisions of the 1934 Act, 15 U.S.C. § 78n(e) (West

1984). This provision is a general proscription against

fraud in connection with tender offers. Piper v. Chris-

Craft Industries, Inc., 430 U.S. 1, 22-23 (1977). It is

intended to protect shareholders in target companies

by insuring that they have access to all material in-

formation before deciding whether to tender shares.

Here, no material information concerning a com-

peting tender offer was withheld by Dow Jones since

Cooper’s offer°of purchase was not a tender offer.’

The term tender offer has not been defined by either

Congress or this Court; however, the lower courts

have developed two tests for determining whether a

purchase offer is a tender offer.

The most widely accepted standard was first ap-

plied in Wellman v. Dickinson, 475 F. Supp. 783

7 Cooper lacks standing to bring a 1934 Act claim for damages,

since he is at best only a disappointed offeror. Disappointed

offerors do not have standing to bring claims for damages under

Section 14(e). Piper, 430 U.S. at 35.

16

(S.D.N.Y. 1979) and holds that a tender offer is pres-

ent whenever there is a public announcement of the

offer and

(1) active and widespread solicitation of pub-

lic shareholders for the shares of an issuer;

(2) solicitation made for a substantial per-

centage of the issuer’s stock; (3) offer to pur-

chase made at a premium over the prevailing

market price; (4) terms of the offer are firm

rather than negotiable; (5) offer contingent

on the tender of a fixed number of shares

...; (6) offer open only a limited period of

time; (7) offeree subject to pressuring to sell

his stock.

Wellman, 475 F. Supp. at 823-24. See SEC v. Carter

Hawley Stores, 760 F.2d 945, 952, 952 n.5 (9th Cir.

1985). See also Hanson Trust PLC v. SCM Corp., 774

F.2d 47, 56-57 (2d Cir. 1985). The second test, first

applied in S-G Securities Inc. v. Fuqua Investment

Co., 466 F. Supp. 1114, 1126-1127 (D. Mass. 1987),

finds a tender offer where a public announcement of

a firm intention to purchase a large block of an is-

suer’s shares is followed by rapid accumulation of

shares by the offeror,

Both the Wellman and the S-G Securities tests rec-

ognize that one requirement of a tender offer is an

express offer to purchase securities. Cooper’s offer

fails both tests as he never made a firm offer, rather

he only articulated “‘plans” for ‘‘offers’’* Pet. App.16,

47.

* Indeed, Cooper has never indicated that he even attempted

to purchase a single share of RCA stock. Application of the

17

2. The Complaint Fails to State a Cause of Action Under

the Robinson-Patman Act

In Court IV of the complaint, Cooper charges that

Dow Jones violated the Robinson-Patman Act, 15

U.S.C. § 13(e) (West 1973). There are four jurisdic-

tional requirements in a Robinson-Patman Act claim:

(1) two or more sales, (2) of commodities, (3) of “‘like

grade and quality’, (4) in commerce.’ Here, two of

these requirements are absent—this is a simple case

of a seller declining to transact business with a single

prospective buyer, not discrimination in price in two

or more sales. Moreover, newspaper advertising is not

a commodity.

Since the Robinson-Patman Act is intended to pre-

clude price discrimination between two purchasers,

and does not prevent a seller from choosing his cus-

tomers, there is a jurisdictional requirement that the

remaining elements of the Wellman test to Cooper’s offer pro-

vides additional support for the conclusion that there was no

tender offer. Cooper sought donations of less than 5% and would

accept up to 80% of the shares of twenty-eight major corpo-

rations. He had no publicity or financing, offered no premium

over the market price since he wanted the equity as a donation,

and placed no meaningful time limit or other controls on his

offer. Assuming arguendo Cooper made a tender offer that was

material, the 1934 Act imposes no duty of publication on a

newspaper, and the Dow Jones appellees were thus under no

direct duty to publish the information at issue. Further, there

was no implied duty to publish as a statute compelling a news-

paper to publish that which it would not otherwise choose to

print would be unconstitutional. Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241, 256 (1974).

°F. Rowe, Price Discrimination Under the Robinson-Patman

Act, 36, 45-83 (1962)

reeneele

18

plaintiff show actual discriminatory sales.'° Here, the

only facts alleged in the complaint establish a single

decision not to sell to Cooper. Cooper has not pleaded

price discrimination on two or more sales. Dow Jones

simply chose not to sell space to Cooper, unless he,

first, provided additional information about his pro-

gram.

The Robinson-Patman Act applies only to commod-

ities. Newspaper advertising is not a commodity un-

der the act."! This view has prevailed in the District

of Columbia circuit and generally in other courts that

have addressed the issue.’”

10 See Bruce’s Juices v. American Can Co., 330 U.S. 743, 755

(1947); Bird and Son, Inc., 25 FTC 468, 470 (1937) (‘[s]ection

2(e) does not prohibit a seller from choosing its customers and

from refusing to deal with prospective purchasers to whom, for

whatever reason, it does not wish to sell’’); H.A.B. Chemical Co.

Inc. v. Eastman Kodak Co., 1981-1 Trade Cases CCH 4 63,912

at 75, 748 (C.D. Cal. 1980) (“‘refusals to deal are not actionable

as discrimination under the Robinson-Patman Act’); Patman,

Complete Guide to the Robinson-Patman Act, 83 (1963).

1179 Cong. Rec. 9078-9079 (1935) (Rep. Patman reconfirmed

his view that the act was not intended to apply to “magazine

or other advertising space’’); Times Picayune Publishing Co. v.

United States, 345 U.S. 594, 609 n.27 (1953) (while reserving

judgment, noting the government had conceded in oral argument

that the Robinson-Patman Act did not apply to advertising space).

See, F. Rowe, Price Discrimination Under the Robinson-Patman

Act, 60-61 (1962).

12 National Tire Wholesale, Inc. v. Washington Post Co., 441

F. Supp. 81, 86 (D.D.C. 1977), affd. 595 F.2d 888 (D.C. Cir.

1979) (“newspaper advertising is not a ‘commodity’ within the

meaning of the Robinson-Patman Act”). Ambook Enterprises v.

Time Inc., 612 F.2d 604, 609 (2nd Cir. 1979) cert. dismissed,

448 U.S. 914 (1980) (to regard newspaper advertising as a com-

modity under the Robinson-Patman Act would be “contrary to

renin

19

3. The Complaint Fails to State a Claim Under the Sher-

man Act

In Count IV of the complaint, Cooper has alleged

that Dow Jones violated Section 1 of the Sherman

Act. Cooper charges the Dow Jones respondents with

conspiring among themselves with another unnamed

Dow Jones employee in refusing to sell him adver-

tising space, and second, charges that Dow Jones,

together with the RCA and GE respondents, con-

spired to restrain trade in RCA stock. Pet. App. 33-

34.

Cooper alleges that Dow Jones engaged in a uni-

lateral refusal to deal. The Sherman Act does not

reach a unilateral act of restraint of trade or refusal

to deal involving a single firm."

Cooper’s claim of a conspiracy to impede transac-

tions in RCA stock is similarly insufficient. The Sher-

man Act is intended to protect commerce by

prohibiting actions that restrain trade. See Associated

General Contractors of California, Inc. v. California

State Counci! of Carpenters, 459 U.S. 519, 538 (1983).

Thus, a judicially recognizable action for recovery for

the ordinary reading of the language, [was] disavowed on the

floor of the Senate, disclaimed by the statute’s principal author

two years after its passage, . . . and [would be] contrary to the

consistent course of judicial decision on this and related matters

..+») Diamond v. World News Corp., 542 F. Supp. 887, 889

(S.D.N.Y. 1980).

‘8 Copperweld Corp. v. Independence Tube Corp., 476 U.S. 752,

768-769 (1984) (“[cloordinated conduct among officers and em-

ployees of the same company” and the internally coordinated

conduct of a corporation does not violate Section 1 of the Sher-

man Act); Diamond, 542 F. Supp. at 889 (‘‘a unilateral refusal

to deal, for any reason, is not actionable under Section 1.’’)

A Re Pe ee

Se

20

a conspiracy for violating the Sherman Act must in-

clude a claim that the plaintiff has suffered damages

arising out of a restraint of trade. Jd.

Here, the alleged antitrust conspiracy focuses on

Dow Jones’ refusal to publish an advertisement. Pet.

App. 34. This refusal to publish is not alleged to have

adversely impacted Cooper’s ability to purchase RCA

stock. Id. Accordingly, Cooper has failed to allege a

necessary element in an action for a conspiracy to

violate the Sherman Act. Thus, the Court of Appeals

properly affirmed dismissal of this count pursuant to

Rule 12(bX6).

Conclusion

Cooper’s application for a writ of mandamus, or,

in the alternative, a writ of prohibition, should be

denied. He has failed to establish that an extraordi-

nary writ was the only available remedy or to show

clear entitlement to the writ.

The Court of Appeals did not_exceed it’s jurisdiction

or authority in disposing of this matter upon an order

to show cause. Further, the court properly affirmed

the judgment of the District Court, based on grounds

supported by the record.'* This application should be

denied.

‘* Pursuant to Supreme Court Rule 17.1 this case is not ap-

propriate for review on certiorari. As evidenced by the Court

of Appeals Memorandum of October 9, 1987, the issues pre-

sented in the instant action and the pending petition for an

extraordinary writ may be resolved by the application of well

settled principles of law and procedure.

21

Respectfully submitted

Toco D. WEST, JR.

Counsel of Record

PATTERSON, BELKNAP, WEBB & TYLER

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 783-6518

Attorneys for Respondents,

Dow JONES & COMPANY, INC.,

The Wall Street Journal,

PETER G. SKINNER,

WILLIAM CUMMINGS, and DAVID E.

MORAN