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68 Antitrust L.J. 145 (2000-2001)
United States v. IBM: A Monument ot Arrogance

handle is hein.journals/antil68 and id is 155 raw text is: UNITED STATES V. IBM: A MONUMENT TO ARROGANCE JOHN E. LOPATKA* The numbers astound: 700 trial days over the course of nearly seven years, preceded by six years of discovery; 87 live witnesses; 860 deposition witnesses (whose testimony was read aloud to an empty bench, a process that consumed 70 trial days); 104,400 trial transcript pages; 17,000 exhib- its.1 The case spanned the terms of five Presidents, nine Attorneys Gen- eral, and seven Antitrust Division chiefs; only five of the defendant's twenty-four-member board survived the duration as directors.2 The gov- ernment estimated that it spent $16.8 million, not including expert witness fees, litigating the case; the defendant estimated that the total annual cost-annual-to all parties was between $50 million and $100 million, an estimate that presumably does not include the incalculable indirect costs of the litigation.' And fifteen years after its investigation began,4 the United States simply dropped its case against IBM,5 Assistant * Alumni Professor of Law, University of South Carolina School of Law. I thank Jona- than Baker, Donald Dewey, Stephen Margolis, William Page, and Michael Vita for thought- ful comments on a prior draft of this essay. I See FRANKLIN M. FISHER ET AL., FOLDED, SPINDLED, AND MUTILATED 1, 15 (1983); Post-Mortem on IBM Case Provides Forum for Conflicting Perspectives, 42 Antitrust & Trade Reg. Rep. (BNA) 310, 311 (Feb. 11, 1982). Another federal judge called the process of reading evidence into the record in the absence of the presiding judge the strangest thing I ever saw. Steven Brill, What to Tell Your Friends About IBM, AM. LAW., Apr. 1982, at 1. 2Donald I. Baker, Government Enforcement of Section Two, 61 NOTRE DAME L. REv. 898, 899 n.13 (1986). 3 Post-Mortem, supra note 1, at 311. One writer estimated the total legal costs to be $200 million. See Brill, supra note 1, at 11. I The government's investigation began in 1967, its complaint was filed on January 17, 1969, trial began on May 19, 1975, and the United States sought dismissal on January 8, 1982. FISHER ET AL., supra note 1, at 1, 11; In re IBM Corp., 687 F.2d 591, 593 (2d Cir. 1982); In re IBM Corp., 618 F.2d 923, 925 (2d Cir. 1980); Baker, supra note 2, at 910. United States v. IBM Corp., Dkt. No. 69-Civ.-200 (S.D.N.Y. complaint filed Jan. 17, 1969). It is not quite accurate to say that the case was dropped simply. In response to the government's stipulation of dismissal, the district judge, David N. Edelstein, began hearings to determine whether the stipulation was ineffective because Tunney Act proce- dures (15 U.S.C. § 16(b)-(h)), which normally govern consent decrees, should have been followed or because conflicts of interest disqualified Baxter from signing the stipulation. The Second Circuit issued a writ of mandamus orderingJudge Edelstein to cease consider-

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