Covad Communications v. Bell Atlantic Corp.
| Decision Date | 06 May 2005 |
| Docket Number | No. 02-7057.,02-7057. |
| Citation | 407 F.3d 1220 |
| Parties | COVAD COMMUNICATIONS COMPANY and Dieca Communications, Inc., d/b/a Covad Communications Company, Appellants v. BELL ATLANTIC CORPORATION, et al., Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (99cv01046). On Appellants' Petition for Rehearing.
Merril Jay Hirsh, John Richard Gerstein, Peter G. Thompson, Gabriela Richeimer, Ross, Dixon & Bell, Donald B. Verrilli, Jr., Jenner & Block, Bruce Douglas Sokler, Fernando Raul Laguarda, Mintz Levin Cohn Ferris Glovsky & Popeo, Antony Richard Petrilla, Covad Communications Company, Washington, DC, James A. Kirkland, Covad Communications Company, San Jose, CA, for Appellants.
John Thorne, Arlington, VA, Richard Gray Taranto, Farr & Taranto, Michael K. Kellogg, Steven F. Benz, Mark C. Hansen, Aaron M. Panner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, DC, Dan K. Webb, Winston & Strawn, Chicago, IL, Justin S. Antonipillai, Arnold & Porter LLP, Washington, DC, for Appellees.
Andrew D. Roth, Laurence Stephen Gold, Bredhoff & Kaiser, James Franklin Rill, Howrey Simon Arnold & White, Lawrence E. Sarjeant, United States Telephone Association, Washington, DC, Stephen M. Shapiro, Jeffrey W. Sarles, John E. Muench, Mayer, Brown, Rowe & Maw LLP, Chicago, IL, Marc Gary, BellSouth Corporation, Atlanta, GA, for Amicus Curiae for Appellee.
Albert H. Kramer, Dickstein Shapiro Morin & Oshinsky, David L. Lawson, C. Frederick Beckner, III, Ryan Douglas Nelson, Sidley Austin Brown & Wood, Jason Douglas Oxman, CompTel/ALTS, Washington, DC, David W. Carpenter, Sidley Austin Brown & Wood, Chicago, IL, Mark C. Rosenblum, American Telephone & Telegraph, Bedminster, NJ, Glenn B. Manishin, Kelley, Drye & Warren, Vienna, VA, Michelle Marie Aronowitz, Attorney, Richard Leonard Schwartz, Jay L. Himes, Attorney General's Office of State of New York, New York, NY, for Amicus Curiae for Appellant.
John A. Rogovin, John Edward Ingle, Deputy Associate General Counsel, Susan L. Launer, Deputy Associate General Counsel, Federal Communications Commission, Washington, DC, for Amicus Curiae.
Before: GINSBURG,* Chief Judge, and ROGERS and TATEL, Circuit Judges.
Opinion by Chief Judge GINSBURG with whom Circuit Judge TATEL joins.
Upon consideration of appellants' petition for rehearing filed March 28, 2005, it is
ORDERED that the petition be denied.
Covad Communications Company petitions for rehearing of its antitrust case against Bell Atlantic Corporation. See 398 F.3d 666 (2005). For the reasons stated below, we deny the petition.
Covad first contends the court's decision "fails to apply existing antitrust standards and instead creates a de facto industry-specific exception to Section 2 of the Sherman Act." This claim is baseless; the court expressly addressed Covad's "refusal to cooperate" claims under existing antitrust standards. See id. at 672-73. Following and quoting from Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 409, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004), we explained that "[a]n antitrust claim based upon the defendant's refusal to cooperate with its competitor can withstand a motion to dismiss only when it is alleged either that the defendant had previously `engaged in a course of dealing with its rivals, or that it would ever have done so absent statutory compulsion.'" 398 F.3d at 673. Covad had made no such allegation, see id. (), and Covad does not now claim otherwise.
Covad's second argument, that the court's holding "eliminates" the antitrust claim of a price squeeze, simply misreads our opinion. The court, following the reasoning of Trinko, held only that a claim of a price squeeze cannot lie when there has been no allegation the defendant would have made its loops available to its competitors absent statutory compulsion. See id. at 673-74. Notably, the court did not face a circumstance similar to that in Covad Communications Co. v. BellSouth Corp., 374 F.3d 1044, 1050-52 (2004), in which the Eleventh Circuit held a claim for predatory pricing of loops could proceed; in that case the complaint alleged the "basic prerequisites for ... price predation." Here, Covad did not argue its claim as one of price predation and, unsurprisingly, we did not treat it as such.
Covad's third ground for rehearing is that the court erred in finally disposing of Covad's claim that Bell Atlantic had brought a bad faith and baseless patent suit against Covad. Although on a motion to dismiss the court...
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