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Matsushita at Thirty: Has the Pendulum Swung Too Far in Favor of Summary Judgment?

Edward D. Cavanagh, Antitrust L.J, Forthcoming 2018

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The Supreme Court’s ruling in Matsushita Elec. Indus. Co. v. Zenith Radio Corp. marked the end of judicial hostility to Rule 56 motions and effectively legitimized the use of summary judgment in antitrust cases. The 5-4 decision dramatically altered the antitrust litigation landscape both procedurally and substantively. Procedurally, the decision underscored the trans-substantive nature of summary judgment, making clear that summary judgment is as appropriate in complex antitrust cases as in any other area of the law. Matsushita also made clear that the legal standards for summary judgment mirror the legal standards for directed verdict at trial. In addition, the decision instructs that to create a “genuine issue for trial” under Rule 56, the non-moving party must do more than create “metaphysical doubt.” That is, the non-movant must adduce sufficient evidence about which reasonable people could disagree; absent such a showing, “there is no ‘genuine issue for trial.’”

Perhaps even more important were the Court’s rulings on substantive antitrust issues. Matsushita limits the range of inferences that can be drawn from ambiguous evidence of an antitrust conspiracy. Evidence that is as consistent with independent activity as with antitrust conspiracy fails as a matter of law to create a genuine issue for trial. If the factual context makes the claim implausible, the non-movant must come forward with especially persuasive evidence to avoid summary dismissal. The Court concluded that defendants had no rational motive to agree to sustain sales losses for over 20 years with no end in sight in order to drive Zenith from the field. The enhanced factual showing necessary to defeat summary judgment where the claim is implausible suggests that the Court has strong reservations about the viability of predatory pricing claims under the antitrust laws.

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