USE OF CIRCUMSTANTIAL EVIDENCE. A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence, including:
(I) evidence that the official undertaking the reprisal knew of the disclosure; or
(II) evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal.
USE OF CIRCUMSTANTIAL EVIDENCE. A general framework for answering these questions was provided by the Court in the classic Interstate Circuit case from 1939.20 Interstate Circuit was a chain of so-called “first-run” movie theaters and had a dominant share of the first-run theaters in the relevant geographic market.21 Despite its “monopoly,” Interstate was concerned about competition from “second-run” theaters that did not have the latest releases but charged lower admission prices. Interstate 18 In criminal cases, the defendant is entitled to a jury. In private treble damage cases, if the amount in question is greater that a de minimis threshold, either party can ask for a lay jury. Typically it is the plaintiff who requests the jury, presumably out of a perception, not necessarily supported by empirical data, that juries will be more favorable to plaintiffs than judges in price fixing cases. See, e.g., Xxxxx X. Xxxxxxxx & Xxxxxxxx Xxxxxxxxx, Trial by Jury or Judge: Transcending Empiricism, 77 CORNELL L. REV. 1124 (1992). 19 The defendant has various opportunities to ask the judge to dismiss the case either before a jury has begun to deliberate or even after a jury has announced its verdict. While there are occasional permutations the basic scheme is as follows. After the complaint has been filed but before broad discovery has commenced (there may be some limited and finely tailored discovery on a specific issue), the defendant can move to dismiss the complaint. This kind of dismissal used to be quite rare in the absence of an incompetently drafted complaint, but in the wake of Xxxxxxx, such dismissals are not uncommon. See Bell Atlantic Corp. x. Xxxxxxx, 000 X.X. 000 (2007). See also, Xxxxx X. Xxxxxxxx, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821 (2010); Xxxxxxx XxXxxxx, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Atlantic Corp. x. Xxxxxxx, 41 SUFFOLK U. L. REV. 851 (2008). Before the formal courtroom trial begins but after a lot of evidence in the form of documents and oral depositions has been amassed, a defendant can seek summary judgment on the grounds that there is no relevant dispute about the facts so that the only issues are legal. Once the courtroom trial has concluded, either just before the case is turned over to the jury or right after the jury has reached a verdict, the defendant can seek judgment as a matter of law (formerly called, respectively, a motion for directed verdict or a motion for judgment notwithstanding the ver...
