# Opposition Brief — In re Cooper

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 957

## Text

( »
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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1321%3A3. Public record. Not legal advice.