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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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