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WT/DS162/R/Add.1 Page 87

of Civil Procedure, complaints filed in all federal district courts in the United States are notice pleadings.  This means that a particular complaint need simply recite allegations which if proven would be sufficient to establish the violations of law the complaint alleges.  As the Supreme Court has indicated, "the liberal system of 'notice pleading' set up by the Federal Rules of Civil Procedure" simply requires "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests"284.  As a consequence, from the perspective of the content of the pleadings, it is no more difficult to file a complaint alleging one or more violations of the RobinsonPatman Act than to file a complaint alleging one or more violations of the 1916 Act.  In either situation, it is sufficient for the complaint to recite the facts which, if proven, would establish the violations of law alleged.

3.6

The United States contends that the conclusion that pleading requirements have not in any way discouraged the filing of complaints under the RobinsonPatman Act is borne out by the relative numbers of 1916 Act and RobinsonPatman Act cases filed in the recent past.  Since the issuance of the Supreme Court decision in Brooke Group in 1993, more than forty reported Court of Appeals and District Court opinions in more than forty different cases have addressed allegations that the price discrimination provisions of the RobinsonPatman Act have been violated, including cases leading to more than ten Court of Appeals and District Court decisions in 1998 alone.  Moreover, during that same time period there have been fourteen federal district court decisions addressing allegations of primary line RobinsonPatman Act violations.  By contrast, only two complaints under the 1916 Act have been filed during that same period.  In short, these data strongly support the conclusion that it is far easier for a plaintiff to satisfy the pleading requirements under the RobinsonPatman Act than those under the 1916 Act.

3.7

In response to this US argument in respect of the US Federal Rules of Procedure, Japan notes that the issue is not the similarity of the form of the "notice of claim" but the difference of burden of pleading imposed on complainants.  

3.8

The United States notes further that its second reason for rejecting Japan's argument is that, with respect to the comparative difficulty of defeating a motion to dismiss or for summary judgment, the case law establishes that it is no easier for a plaintiff to do so under the 1916 Act than under the RobinsonPatman Act.  Indeed, since the Brooke Group decision, four Court of Appeals decisions arising from three cases addressing allegations of primary line price discrimination have been issued.285

3.9

The United States recalls that, for example, in Rebel Oil v. Atlantic Richfield, two gasoline retailers alleged that ARCO had, inter alia, engaged in primary line price discrimination

"by executing a pricing policy in Las Vegas of charging predatory prices in an attempt to increase its market share and eventually monopolise the Las Vegas gasoline market."286  

284 The United States refers to Leatherman v. Tarrant County NICU, 507 US 163, p. 168 (1993).

285 The United States refers to Kentmaster Manufacturing Co. v. Jarvis Products Corp., 146 F.3d 691, p. 69495 (9th Cir. 1998), amended, No. 9656341, 1999 WL 19636 (9th Cir. Jan. 20, 1999);  Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, p. 188 (1st Cir. 1996); Rebel Oil Co. v. Atlantic Richfield Co., 146 F.3d 1088, p. 1091 (9th Cir. 1998), cert. denied, 119 S.Ct. 541 (1998), and 51 F.3d 1421, p. 1429 (9th Cir. 1995).

286 Rebel Oil Co., Inc. v. Atlantic Richfield Co., 957 F.Supp. 1184, p. 1192 (D. Nev. 1997), aff'd, 146 F.3d 1088 (9th Cir.), cert. denied, 119 S. Ct. 541 (1998).

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