United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed On: May 6, 2005

No. 02-7057

 

Covad Communications Company and Dieca Communications,

Inc., d/b/a Covad Communications Company,

Appellants

v.

Bell Atlantic Corporation, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(99cv01046)

On Appellants’ Petition for Rehearing

______

BEFORE: Ginsburg, Chief Judge,* and Rogers and Tatel,*

Circuit Judges
2

O R D E R

Uponconsiderationof appellants’ petitionforrehearing filed

March 28, 2005, it is 

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk 

BY:

Deputy Clerk

* An opinion by Chief Judge Ginsburg, in whichCircuit Judge Tatel

joins, accompanies this order. 
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OpinionbyChiefJudge GINSBURG withwhomCircuitJudge

TATEL joins. 

GINSBURG, Chief Judge: Covad Communications

Company petitions for rehearing of its antitrust case against Bell

Atlantic Corporation. See 398 F.3d 666 (2005). For the reasons

stated below, we deny the petition. 

Covad first contends the court’s decision “fails to apply

existing antitrust standards and instead creates a de facto industryspecific exception to Section 2 of the Sherman Act.” This claim is

baseless; the court expressly addressed Covad’s “refusal to

cooperate” claims under existing antitruststandards. See id. at 672-

73. Following and quoting from Verizon Communications, Inc. v.

Curtis V. Trinko, LLP, 540 U.S. 398, 409 (2004), we explained

that “[a]n antitrust claim based upon the defendant’s refusal to

cooperate withits competitor canwithstand a motionto dismiss only

when it is alleged either that the defendant had previously ‘engaged

in a course ofdealingwith its rivals, or that it would ever have done

so absent statutory compulsion.’” 398 F.3d at 673. Covad had

made no such allegation, see id. (“Covad alleges neither that Bell

Atlantic had at one time voluntarily dealt with Covad nor that it

would ever have been in Bell Atlantic’s interest to have done so”),

and Covad does not now claim otherwise. 

Covad’s second argument, that the court’s holding

“eliminates” the antitrust claim of a price squeeze, simply misreads

our opinion. The court, following the reasoning of Trinko, held only

that a claim of a price squeeze cannot lie when there has been no

allegation the defendant would have made its loops available to its

competitors absent statutory compulsion. See id. at 673-74.
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Notably, the court did not face a circumstance similar to that in

Covad Communications Co. v. BellSouthCorp., 374 F.3d 1044,

1050-52 (2004), in which the Eleventh Circuit held a claim for

predatory pricing ofloops could proceed; in that case the complaint

alleged the “basic prerequisitesfor... price predation.” Here, Covad

did not argue its claim as one of price predation and, unsurprisingly,

we did not treat it as such.

Covad’s third ground for rehearing is that the court erred in

finally disposing of Covad’s claim that Bell Atlantic had brought a

bad faith and baseless patent suit against Covad. Although on a

motion to dismiss the court ordinarily assumes the truth of the facts

alleged in the complaint and decides only the legal sufficiencyof the

pleadings,see Covad, 398 F.3d at 670-71, in this case BellAtlantic

urged the court to decide that Covad’s claim of bad faith and

baselessness failed as a matter of law because “[a]llowing [it] to

proceed would penalize [Bell Atlantic’s] legitimate recourse to the

courts.” Appellee’s Br. at 41-42. As Bell Atlantic pointed out, we

could evaluate the legitimacy of Bell Atlantic’s patent suit solely by

reference to the published opinions of the district court and the

Federal Circuit, both of which had ruled against Bell Atlantic but

neither of which had treated itssuit asillegitimate. In the face of this

argument Covad stood mute. Accordingly, we took “judicial notice

of facts on the public record” – that is, consulted the relevant

opinions – as a court may do upon a motion to dismiss, see

Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221,

1228 (D.C. Cir. 1993) (court may look to record of another

proceeding “to avoid unnecessary proceedings whenan undisputed

fact on the public record makes it clear that the plaintiff does not

state a claim upon which relief could be granted”), and concluded

Bell Atlantic’s suit was not objectively baseless. 398 F.3d at 677.
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In sum, although Covad had an opportunity to rebut Bell

Atlantic’s argument for deciding the factual sufficiency of Covad’s

claim, it adduced no countervailing considerations. As we have said

before, “something...outweighs nothing everytime.” Nat’l Ass’n of

Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir.

1989). 

For the foregoing reasons, the petition for rehearing is

Denied.