Richardson notified Weil on several occasions that Richardson required Weil to quote the life insurance companies' annuity prices only to tort defendants or their liability insurers. However, Weil began providing specific quotations on annuity prices to tort plaintiffs as part of a consulting service Weil offered to the tort plaintiffs' bar. This enabled the tort plaintiffs to secure more favorable structured settlements. Not surprisingly, the demand for Weil's services increased substantially.
On August 4, 1989, Richardson terminated the Richardson Agreement, after complaints from certain defendant brokers and defendant life insurance companies. Shortly after its termination by Richardson, Weil was forced to discontinue its structured settlement business. Weil alleges that it was forced out of the business as a result of the defendants' defense only policy.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only when there is no genuine issue of material fact or when, viewing the evidence in the light most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56(c); Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied U.S. , 112 S. Ct. 617 (1991). The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Once the moving party demonstrates the absence of any genuine issue of material fact, however, the burden shifts to the nonmoving party to produce evidence sufficient to support a jury verdict in his favor. Id. at 255. To meet this burden, the nonmoving party must go beyond the pleadings and show "by her own affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Section 4 of the Clayton Act allows any person "injured in his business or property by reason of anything forbidden in the antitrust laws" to sue for treble damages. 15 U.S.C. § 15. This section imposes a standing requirement on private parties who seek to enforce the antitrust laws. Even if the defendants violate antitrust laws, "the right of action under § 4 of the Clayton Act is available only to those private plaintiffs who have suffered antitrust injury." ARCO v. U.S.A. Petroleum Co., 495 U.S. 328, 344, 109 L. Ed. 2d 333, 110 S. Ct. 1884 (1990) (emphasis added).
The Supreme Court has held consistently that antitrust injury is not to be equated with injury in fact. Id. at 339 n.8; see also Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 277 (1977). "Antitrust injury does not arise for purposes of the Clayton Act until a private party is adversely affected by an anticompetitive aspect of the defendant's conduct." ARCO, 495 U.S. at 339 (citations omitted) (emphasis in original). Thus, the dispositive issue on this motion is whether Weil has any evidence that it has been injured in an anticompetitive manner by defendants' alleged conduct.
If the structured settlement industry's policy results in injury to anyone, it is to tort plaintiffs. If a tort plaintiff had access to the price of an annuity to the tort defendant, then the tort plaintiff could better estimate the top amount the defendant would pay to settle the case. This would give tort plaintiffs a stronger negotiating position in settlement negotiations, which would allow them to bargain for larger settlements. Thus, according to Weil, tort plaintiffs are injured by the industry's policy.
Assuming, without deciding, that being deprived of this negotiating advantage is an injury to tort plaintiffs, this is not the type of injury that the antitrust laws were designed to prevent. The cost of the annuities to the tort defendant is almost always privileged work product information.
If tort plaintiffs were allowed to find out such information by hiring a consultant such as Weil, they would be able to obtain privileged information without the consent of the defense. Since tort plaintiffs have no right to this information, they have not suffered any legally cognizable harm from having it withheld from them.
Furthermore, tort plaintiffs and tort defendants are parties to an explicitly adversarial relationship. The purpose of the antitrust laws is "the prevention of restraints to free competition in business and commercial transactions." Apex Hosiery Co. v. Leader, 310 U.S. 469, 493, 84 L. Ed. 1311, 60 S. Ct. 982 (1940). The antitrust laws are not intended to regulate negotiations between adversaries in litigation.
Most importantly to the issue in this motion, Weil itself is not a tort plaintiff. Weil therefore cannot recover under the Clayton Act by showing that tort plaintiffs somehow are injured by defendants' conduct. Weil must show that it suffered some antitrust injury to itself.
Weil has submitted no evidence which shows that it is injured in an anticompetitive manner from defendants' conduct. Weil's relevant competition, in this market, would be other structured settlement consultants who provided services to tort plaintiffs. Nothing about the alleged conspiracy in this case prevented Weil from continuing to act as a consultant to tort plaintiffs without disclosing the confidential information on annuity prices. Weil has admitted through discovery that this is a highly competitive market. Weil has offered no evidence to suggest that the defense only policy alleged by Weil has any effect on Weil's ability to compete in this market. On the contrary, the industry's defense only policy merely deprived Weil of an unfair advantage it gained over its competition. Thus, Weil has not suffered any antitrust injury.
Weil argues, however, that it does not need to show any antitrust injury to itself because of the nature of Defendants' alleged conduct. Certain restraints of trade have been held to be per se violations of the Sherman Act. Weil contends that defendants' conduct in this case amounts to an industry-wide boycott of a competitor, which according to Weil is a per se violation of the Sherman Act. Weil claims that it is not necessary to prove actual antitrust injury where the plaintiff can prove a per se violation by defendants. Thus, Weil argues, it can survive this motion for summary judgment without any showing of antitrust injury to itself.
Weil's contentions in this regard are unfounded. It is true that liability under the Sherman Act can be established by a showing of a per se violation, without any proof of actual antitrust injury to a private party. But the fact that a per se violation of the Sherman Act is involved is not dispositive of the issue of whether a private party has a right of action under the Clayton Act to seek treble damages for the alleged violation. The Supreme Court clearly has held that "even in cases involving per se violations, the right of action under § 4 of the Clayton Act is available only to those private plaintiffs who have suffered antitrust injury."
ARCO, 495 U.S. at 344.
Thus, this court need not determine whether the alleged conduct of Defendants is a per se violation of the Sherman Act. The dispositive issue on this motion is whether Weil itself has suffered any antitrust injury. For the reasons given above, there is no genuine issue of fact whether Weil has suffered antitrust injury. Defendants' motion for summary judgment on Weil's federal antitrust claims therefore is granted.
In accordance with the foregoing, the court hereby enters summary judgment on plaintiff's claims under section 1 and section 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2, as to the following defendants:
The Manufacturers Life Insurance Company;