INTRODUCTION AND SUMMARY OF ARGUMENT
Plaintiffs’ Opposition to OCLC’s Motion to Dismiss (the “Opposition” or “Mem. Opp.”) makes clear that this case is simply an attempt by Plaintiffs to use the court to gain free access to WorldCat – a resource the Complaint concedes OCLC has built over the last forty years and which is only available for use by libraries that are willing to share in the cost of its maintenance and improvement. In asserting that OCLC has violated the antitrust laws by (1) not giving Plaintiffs the benefits of OCLC’s innovation, and (2) by asserting that the Court should regulate OCLC’s pricing to allow its customers not to pay for the maintenance and improvement of WorldCat while still receiving its benefits, the Opposition ignores Supreme Court and Sixth Circuit controlling precedent and the facts Plaintiffs have admitted.
Plaintiffs boldly claim that OCLC has mischaracterized their Complaint, but then fail to provide even one example in which OCLC has misstated the claims pled. Instead, Plaintiffs repeatedly claim that their allegations contain facts sufficient to state a plausible claim. However, Plaintiffs only support that assertion with a string cite to conclusory and duplicative allegations in the Complaint, rather than any meaningful discussion of those allegations.
Further, Plaintiffs’ Opposition either ignores virtually all relevant authorities cited by OCLC or mischaracterizes the holdings of those cases. A simple comparison of the Tables of Authorities from OCLC’s Motion to Dismiss (“Motion”) with the Opposition reveals that Plaintiffs do not even mention, let alone distinguish, nineteen Sixth Circuit authorities cited by OCLC, on issues ranging from the pleading standard to antitrust injury to the requirements to state a tying claim.1 Likewise, the Opposition never addresses three of the leading Supreme Court cases cited in the Motion – Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990), Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104 (1986), and Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977). Similarly, it barely acknowledges the two most significant Supreme Court cases of recent years dealing with monopolization claims – Pacific Bell Tel. Co. v. linkLine Commc’ns, Inc., ___ U.S. ___, 129 S. Ct. 1109 (2009), and Verizon Commc’ns. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) – and the en banc Sixth Circuit decision in NicSand v. 3M Co., 507 F.3d 442 (6th Cir. 2007), addressing the limitations on when a competitor can complain that it does not like the defendant’s pricing.[continued ...]