A
federal
judge
in
Delaware
has
dismissed
the
claim
by
now-shuttered
legal
research
startup
ROSS
Intelligence
that
Thomson
Reuters
violated
federal
antitrust
law
by
unlawfully
tying
its
search
tool
to
its
public
law
database
in
order
to
maintain
its
dominance
in
the
overall
market
for
legal
search
platforms.
The
ruling
brings
an
end
to
ROSS’s
counterclaims
against
Thomson
Reuters
(TR)
in
the continuing
federal
court
litigation between
the
two
parties.
Still
to
be
decided
in
the
case
are
TR’s
claims
that
ROSS
violated
its
copyrights
by
unlawfully
copying
TR’s
legal
materials
in
order
to
use
them
to
train
its
own
AI-driven
legal
research
platform.
Those
claims
were
scheduled
to
have
gone
to
trial
last
month,
but
the
trial
was
continued
at
the
eleventh hour,
leaving
the
copyright
issues
yet
to
be
decided.
After
TR
first
brought
its
copyright
lawsuit
against
ROSS
in
May
2020,
ROSS
filed
a
counterclaim
asserting
that
TR
was
violating
federal
antitrust
law by
maintaining
monopolistic
and
anticompetitive
control
over
the
legal
research
market.
In
2022,
Judge
Leonard
P.
Stark
—
who
previously
presided
over
the
case
as
a
U.S.
district
judge
in
Delaware
before
becoming
a
judge
of
the
Court
of
Appeals
for
the
Federal
Circuit–
dismissed
a
portion
of
ROSS’s
antitrust
claims,
but
he
allowed
the
tying
claim
to
move
forward.
That
claim
alleged
that
TR
violated
Section
2
of
the
Sherman
Antitrust
Act
by
unlawfully
tying
its
search
tool
to
its
public
law
database
in
order
to
maintain
its
dominance
in
the
overall
market
for
legal
search
platforms.
See
all
my
stories
about
this
lawsuit.
Tying
occurs
when
a
seller
exploits
its
control
of
a
product
to
condition
the
sale
of
that
product
on
the
buyer’s
promise
to
also
purchase
a
different
product.
But
that
earlier
ruling
came
before
the
parties
had
been
able
to
flesh
out
the
evidence
in
the
case
through
discovery
and
depositions
and
was
based
on
ROSS’s
allegations
in
its
counterclaim.
No
Proof
of
Tying
In
the
ruling
issued
Friday,
the
judge
who
replaced
Judge
Stark
in
the
case,
3rd
U.S.
Circuit
Court
of
Appeals Judge
Stephanos
Bibas,
sitting
by
designation
in
the
U.S.
District
Court
in
Delaware,
granted
TR’s
motion
for
summary
judgment
on
the
tying
claim,
concluding
that
ROSS
had
failed
to
back
up
its
allegations
with
sufficient
evidence.
ROSS’s
theory
was
that
the
Westlaw
caselaw
database
is
a
standalone
product
that
many
consumers
want
to
buy,
but
that
TR
will
sell
it
only
when
it
is
packaged
with
Westlaw’s
search
tools,
which
ROSS
alleged
was
a
separate
product.
“In
other
words,
Ross
claims
that
Thomson
Reuters
forces
people
to
buy
its
Westlaw
search
tools
if
they
want
to
use
its
caselaw
database,”
Judge
Bibas
explained.
To
establish
an
unlawful
tying
arrangement,
Judge
Bibas
said,
ROSS
would
have
to
show
that
the
products
are,
in
fact,
separate,
and
then
would
have
to
define
the
relevant
market
for
those
products
in
order
to
show
an
improper
use
of
power
in
that
market.
ROSS
failed
to
establish
either
of
these
facts,
Judge
Bibas
ruled.
On
the
issue
of
separate
products,
ROSS
failed
to
show
that
there
is
sufficient
consumer
demand
in
the
market
to
purchase
these
products
separately,
insofar
as
it
failed
to
show
that
consumers
had
in
fact
bought
the
products
separately,
had
wanted
to
buy
the
products
separately,
or
would
have
wanted
to
buy
the
products
separately
had
TR
not
intimidated
them
from
doing
so.
A
key
to
ROSS’s
argument
was
that
the
case
law
TR
now
sells
online
was
once
sold
in
books,
as
a
product
separate
and
distinct
from
Westlaw’s
search
tools.
That
proved
that
the
caselaw
database
was
a
separate
product,
ROSS
asserted.
But
the
judge
concluded
that
the
analogy
to
books
suffered
from
two
flaws.
“First,
Ross
is
wrong
that
books
were
sold
without
search
tools,”
Judge
Bibas
wrote.
“True,
books
were
sold
without
Westlaw’s
current
technological
capacity.
But
if
we
can
analogize
online
legal
databases
to
printed
legal
databases,
we
can
also
analogize
online
search
tools
to
printed
search
tools:
tables
of
contents,
indices,
and
page
numbers.
So
its
database
was
not
sold
unbundled
from
search
tools.”
Second,
Judge
Bibas
continued,
“the
evolution
from
book
search
tools
(say,
a
table
of
contents)
to
Westlaw’s
digital
search
tools
(say,
Boolean
search
terms)
is
like
how
the
horse-drawn
carriage
market
evolved
into
the
car
market.
Just
as
we
no
longer
use
horse-drawn
carriages
for
transportation
(except
for
fun),
few
consumers
want
caselaw
separated
from
the
sophisticated
search
tools
that
make
it
digestible.
A
market
for
public
law
in
book
form
used
to
exist,
but
that
does
not
mean
that
a
market
for
separate
caselaw
still
exists
in
a
world
with
more
sophisticated
search
tools.”
The
opinion
goes
on
to
discuss
–
and
dismiss
–
other
arguments
ROSS
raised
to
establish
its
tying
argument,
but
the
bottom
line
is
that
the
judge
found
insufficient
evidence
to
establish
any
of
them.
Even
if
ROSS
had
established
tying,
the
judge
said
that
its
claim
would
still
fail
because
it
had
failed
to
establish
evidence
that
would
define
the
market
that
would
be
harmed
by
any
tying
arrangement.
ROSS
attempted
to
do
that,
the
judge
said,
through
the
opinion
of
an
expert
witness,
James
Ratliff,
an
economist
who
specializes
in
antitrust
matters.
But
the
judge
said
that
Ratliff’s
expert
opinion
devoted
only
a
few
paragraphs
to
this
issue
and
was
so
lacking
that
it
failed
to
meet
the
standards
for
the
admissibility
of
an
expert
opinion
under
under
Federal
Rule
of
Evidence
702
and
Daubert
v.
Merrell
Dow
Pharms.,
Inc.,
509
U.S.
579,
592–93
(1993).
“Dr.
Ratliff
essentially
has
no
methodology
for
defining
the
relevant
markets,”
Judge
Bibas
said.
“He
includes
no
math
or
economic
modeling.
He
never
analyzes
potential
competitors
in
any
depth.
All
he
does
is
make
brief,
conclusory
assertions.
That
is
not
enough.”