Thomson was charging into the publishing business through a steady stream of acquisitions. Starting in 1978, the Canadian conglomerate had purchased 13 other publishers, Wadsworth, Litton, Delmar, Gale, AutEx, Lawyers Cooperative Publishing (owners of Callaghan and Clark Boardman), MICROMEDEX, Institute for Scientific Research, Banks-Baldwin, Information Access Company, The Medstat Group, The Rutter Group, and Peterson’s.33 On Tuesday, February 27, 1996 the Wall Street Journal reported, “Thomson Corp. won the auction to acquire legal publisher West Publishing Co. for an expensive $3.43 billion in cash, even as the internet threatens West’s core markets.”34 The Wall Street Journal reviewed the purchase almost solely on Thomson’s ability to leverage West’s vast legal resources to compete in the emerging online marketplace.35 Before Thomson could finalize its acquisition, though, it would have to pass antitrust muster under the Hart-Scott-Rodino Act.36 In June, the United States, along with seven states, simultaneously filed an antitrust suit challenging the acquisition and announced a proposed settlement of the suit.37 As a portent of the “new order” of the legal publishing market, the court examined the implications of a combined Thomson/West and found it had the potential to create a duopolistic legal publishing market.38With the help of amici curiaeLexisNexis and Hyperlaw, and the additional public comments of Matthew Bender & Co. (“Bender”) and CD Law, the court examined the post-acquisition legal publishing market and found potential for anticompetitive results in two major areas: Thomson would have a monopoly in markets where West and Thomson were the only publishers of certain materials; and there was potential for Thomson to discontinue offering or increase the cost of purchasing its licensed content and service.39 The settlement stipulated that Thomson divest 52 legal publications.40 More importantly, though, Thomson agreed to a compulsory licensing system for its star pagination system, at a rate much cheaper than what LexisNexis had been paying pursuant to the settlement in 1986’s Mead case.41 Perhaps in deference to other pending litigation discussed below, the U.S. Department of Justice (“DOJ”) was careful to limit the precedential value of West’s agreement to freely license the star pagination system. In announcing the settlement, the DOJ stated:
Today’s settlement, with its open licensing requirement, does not suggest . . . that the Department believes a license is required for use of such pagination. The Department expressly reserves its right to assert its views concerning the extent, validity, or significance of any intellectual property right claimed by the companies [West and Thomson]. The Department also said that the parties agree that the settlement shall have no impact whatsoever on any adjudication concerning such matters.42
