# United States Court of Appeals

F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT

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 Judges2

O R D E R

Upon consideration of appellants’ petition for rehearing 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 which Circuit Judge Tatel

joins, accompanies this order.3

Opinion by Chief Judge G INSBURG with whom Circuit Judge

T ATEL joins.

G INSBURG

, C hief 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.

Co vad 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 antitrust standards. S ee id . at 672-

73. Following and quoting from V erizon Communications, Inc. v.

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

t hat “[a]n antitrust claim based upon the defendant’s refusal to

cooperate with its competitor can withstand a motion to dismiss only

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

in a course of dealing with its rivals, or that it would ever have done

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

made no suc h allegation, s ee id. (“Covad alleges neither that Bell

Atlantic had at one time voluntarily dealt w ith 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 cour t’s holding

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

our opinion. The court, following the reasoning of T rinko

, 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. S ee id. at 673-74.4

Notably, the court did not face a circumstance similar to tha t in

Covad Communications Co. v. BellSouth Corp.

, 374 F.3d 1044,

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

predatory pricing of loops could proceed; in that case the complaint

alleged the “basic prerequisites for

... 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 a nd 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 sufficiency of the

pleadings, see Covad

, 398 F.3d at 670-71, in this case Bell Atlantic

u rged the court to decide that Covad’s claim of bad faith an d

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 Atlan tic but

neither of which had treated its suit as illegitimate. 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

opi nions – as a court may do upon a motion to dismiss, s ee Marshall County Health Care Auth

. v. Shalala, 988 F.2d 1221,

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

proceeding “to avoid unnecessary proceedings when an 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 677.5

In sum, alt hough 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 every time.” N at’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

.