886 F.2d 1430 | 5th Cir. | 1990
Lead Opinion
Antitrust and Waste Disposal
Barton’s Disposal, Inc. (Barton’s) brought this antitrust action against Southwest Disposal, Inc. (Southwest)
Barton’s claim regarding monopolization and attempted monopolization in the Tyler sub-market was based on (i) evidence that Southwest successfully got the City of Tyler to grant it monopolistic control of a city owned landfill, an essential facility to the solid waste disposal business in the two sub-markets, and (ii) on evidence of predatory pricing by Southwest in the Tyler sub-market. Pursuant to F.R.Civ.P., Rule 49(a),
We agree with Barton’s argument that the trial court erred, essentially by charging the jury that Noerr-Pennington encompassed both the contracts with the city governments and the private conduct of Southwest unrelated to these municipalities, and by placing an incorrect burden of proof on Barton’s.
Although we agree with Barton’s arguments, we must nonetheless affirm that portion of the judgment regarding the City of Longview because the jury found no actual damages.
In the Beginning
Southwest entered the Gregg and Smith County sub-markets as a solid waste collection business in 1966. Southwest became the dominant company in both sub-market areas, having approximately 66% of the Tyler sub-market by 1986. For its Tyler area operations, Southwest had access to a landfill owned and operated by the City of Tyler. As part of its Longview area operations, Southwest also operated the Pine Hill Sanitary Landfill under license from the City of Longview.
Barton’s entered the solid waste disposal business in the Tyler and Longview sub-markets in 1978. Barton’s did not grow as aggressively as Southwest, but did have some 8% of the Tyler sub-market by 1986.
Upon the close of all evidence, the trial court, wisely
On appeal, Barton’s complains that the trial court erred in (i) instructing the jury that Noerr-Pennington immunity applied to purely private commercial activity, (ii) submitting to the jury impermissibly broad, multifarious and ambiguous interrogatories that compounded the error regarding the application of Noerr-Pennington immunity, and (iii) in effect, combining the broad special interrogatories with a special interrogatory specifically addressing the Noerr-Pennington issue which resulted either in logically and legally inconsistent findings by the jury or an impossible task for the jury-
We reverse the judgment regarding the Tyler submarket on the basis that the trial court erred in submitting to the jury interrogatories that failed to distinguish adequately between the various types of commercial activity of Southwest occurring in the Tyler submarket thus allowing the jury to mistakenly apply the Noerr-Pennington governmental petition doctrine to private commercial activity wholly unrelated to governmental importunity. We affirm the judgment regarding the Longview sub-market both because Barton’s neither complained of nor proved separate private predatory activity by Southwest in that submarket and because the jury found no actual dollar damages for the submarket.
Standard of Review
Generally, a trial court is afforded great latitude in the framing and structure of the instructions and special interrogatories given to the jury,
When reviewing the form or content of special interrogatories it is essential that adequate objections were timely made. The requirement is not technical nor technically applied. The purpose is to afford the trial court the opportunity of correcting possible errors. Thus, we have held that:
a party preserves a claim of error either by proposing and being denied a special interrogatory or by objecting to a proposed special interrogatory before the jury has retired.... Either method serves the ultimate purpose of directing the trial court’s attention to the issue. ... A final requirement is that each party desiring to preserve the claim of error must object.
Barton’s clearly satisfied this requirement. Barton’s proposed a special interrogatory that specifically delineated between the public/private and the private/private claims in Tyler.
Our review of special interrogatories submitted to a jury calls for an inquiry into several specific factors:
(i) whether, when read as a whole and in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury; (ii) whether the submission of the issues to the jury was “fair”; and (iii) whether the “ultimate questions of fact” were clearly submitted to the jury.
Dreiling v. General Electric Co.
Furthermore, while Dreiling places a substantial burden
Waste Not, Want Not
Barton’s complained about three types of antitrust violations, that (i) in the two sub-markets, Southwest monopolized the use of both the Tyler landfill and a publicly owned essential facility, Pine Hill, (ii) Southwest, under the Noerr-Pennington “sham” exception, impermissibly lobbied city governments to monopolize and attempt to monopolize waste disposal business in the two sub-markets, and (iii) Southwest engaged in predatory pricing activities to drive Barton’s out of the waste disposal business in the Tyler sub-market.
The Noerr-Pennington doctrine recognizes that, under the First Amend
The Noerr-Pennington defense, thus, shields a business entity when it has engaged in some sort of lobbying activity of a governmental body. .Direct interference in the business of a competitor is'fiot shielded even though a governmental body is incidentally connected to the activity. With this interpretation of Noerr-Pennington in mind we point out that Barton’s made three types of claims, two involved monopolistic activities by Southwest through the lobbying of city governments, the third was an allegation of direct interference by predatory pricing in Barton’s business relations with its customers.
Regarding the predatory pricing issue, an examination of the special interrogatories submitted to the jury by the trial court
Interrogatories 2 and 3 seem to be the closest to identifying to the jury Barton’s predatory pricing claim and the jury answered both those interrogatories affirmatively, finding that Southwest both monopolized and attempted to monopolize the Tyler sub-market. The trial court then instructed the jury that if the jury had answered Interrogatories No. 1, 2, 3, or 4 they should then answer Interrogatory No. 6. Interrogatory No. 6 inquired whether the anticompetitive conduct found to exist in Interrogatories No. 1, 2, 3, or 4 resulted from Southwest’s efforts to influence public officials. This was, in the war weary, worn out expression, not only mixing apples and oranges. Rather, it was mixing private (here predatory) acts for which there is no antitrust immunity, and the acts of petitioning public officials which have a constitutionally inspired immunity from antitrust consequences.
The special interrogatories, thus, did not adequately present the distinct third claim, the predatory pricing allegation in Tyler, to the jury. Instead, by asking the jury to decide if Noerr-Pennington immunity applied generally to the Tyler sub-market and not identifying the separate claims that were made in the Tyler sub-market, the trial court permitted the jury to apply Noerr-Pennington immunity, which the jury could legitimately have found to be applicable to the government lobbying activities of Southwest in Tyler, to what is essentially private commercial activity
A Wasted Charge?
Barton’s also contends that the charge as well as the special interrogatories was defective because the trial court erred by charging the jury that NoerrPennington encompassed both the contracts with the city governments and private activity,
The deficiencies in the charge more than meet our standard for reversal that the charge as a whole must leave us “with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.”
A Verdict — A Terrible Thing to Waste
Given the error in the trial court’s special interrogatories and accompanying general charge, we conclude that the judgment regarding Southwest’s activities in Tyler must be reversed. We do not reverse the judgment based on the jury’s verdict regarding the Longview sub-market because the jury found no actual dollar damages for Southwest’s conduct in the Longview sub-market.
For reasons pointed out, we hold that the special interrogatories and accompanying general charge are defective regarding Barton’s claims raised for Southwest’s activities in Tyler. The jury not only awarded monetary damages against Southwest because of its activities in Tyler which certainly implies that the jury found merit in Barton’s contentions regarding that sub-market. Rather, the jury answered “We do” to Interrogatories No. 1, 2, 3, and 4 which sufficiently included the charged fact of predatory pricing and other private, monopolistic practices by Southwest.
The judgment regarding the Tyler claims is therefore reversed and remanded for a new trial.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
. Southwest was known by the name Tiger Corporation during much of the history of this case. It now goes by the name Southwest and is referred to as such in this opinion.
. F.R.Civ.P. Rule 49(a) provides:
The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; ... If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury.
.The text of the interrogatories submitted to the jury and the jury’s answers are as follows (bracketed numbers inserted to illustrate many of the problems relating to the charge grow out of the fact that nearly every one of these issues is multifarious in that each asks for more than one fact finding by the jury:
Interrogatory No. 1
Do you find from a preponderance of the evidence that Defendant Tiger Corporation [i] entered into contracts or combinations that unreasonably restrained trade in the Tyler area of Smith County or the Longview area of Gregg County and [ii] such restraint, if any, proximately caused injury to Plaintiff’s business or property?
*1432 Answer: "We do” or "We do not” as to each area.
Tyler area of Smith County: We do Longview area of Gregg County: We do
Interrogatory No. 2
Do you find from a preponderance of the evidence that Defendant [i] possessed monopoly power in the commercial waste collection market and willfully acquired or maintained that power, if any, in the Tyler area of Smith County or the Longview area of Gregg County, and [ii] such acquisition or maintenance of monopoly power, if any, proximately caused injury to Plaintiffs business or property?
Answer: "We do" or “We do not” as to each area.
Tyler area of Smith County: We do Longview area of Gregg County: We do
Interrogatory No. 3
Do you find from a preponderance of the evidence that Defendant [i] attempted to monopolize the commercial waste collection business in the Tyler area of Smith County or the Longview area of Gregg County, and [ii] such attempt to monopolize, if any, proximately caused injury to Plaintiff's business or property, if any?
Answer: “We do” or "We do not” as to each area.
Tyler area of Smith County: We do Longview area of Gregg County: We do
Interrogatory No. 4
Do you find from a preponderance of the evidence that Defendant Tiger Corporation [i] • possessed control over a facility that was essential to competitive viability in the commercial waste disposal market in the Tyler area of Smith County or the Longview area of Gregg County, [ii] that such facility cannot practically be duplicated, [iii] that Defendant unreasonably denied Plaintiff use of that facility, and [iv] that such denial, if any, proximately caused injury to Plaintiffs business or property?
Answer: “We do” or "We do not” as to each area.
Tyler area of Smith County: We do Longview area of Gregg County: We do Answer Interrogatories No. 5, No. 6, and No.
7 only if you have answered Interrogatories No. 1, No. 2, No. 3 or No. 4 "We do.” Otherwise answer Interrogatory No. 8.
Interrogatory No. 5
Do you find from a preponderance of the evidence that [i] the anticompetitive conduct that you found in Interrogatories No. 1, No. 2, No. 3 or No. 4, was undertaken pursuant to a valid state policy adopted by a municipality and [ii] that the municipality actively supervised Defendant’s anticompetitive conduct?
Answer “We do” or “We do not" as to each area and each type of conduct referred to in the preceding interrogatories.
Tyler area of Smith County
Conduct described in Interrogatory No. 1: We do not
Conduct described in Interrogatory No. 2: We do not
Conduct described in Interrogatory No. 3: We do not
Conduct described in Interrogatory No. 4: We do not
Longview area of Gregg County Conduct described in Interrogatory No. 1: We do not
Conduct described in Interrogatory No. 2: We do not
Conduct described in Interrogatory No. 3: We do not
Conduct described in Interrogatory No. 4: We do not
Interrogatory No. 6
Do you find from a preponderance of the evidence that [i] the anticompetitive conduct referred to in Interrogatories No. 1, No. 2, No. 3 or No. 4, resulted from Defendant’s good faith effort to influence public officials to grant an anticompetitive contract or monopoly power to Defendant?
Answer “We do” or “We do not” as to each area and each type of conduct referred to in the preceding interrogatories.
Tyler area of Smith County Conduct described in Interrogatory No. 1: We do
Conduct described in Interrogatory No. 2: We do
Conduct described in Interrogatory No. 3: We do
Conduct described in Interrogatory No. 4: We do
Longview area of Gregg County Conduct described in Interrogatory No. 1: We do
Conduct described in Interrogatory No. 2: We do
Conduct described in Interrogatory No. 3: We do
Conduct described in Interrogatory No. 4: We do
Interrogatory No. 7
What sum of money, if now paid in cash, would reasonably compensate Plaintiff for its injury to business or property, if any, proximately caused by Defendant’s anticompetitive conduct referred to in Interrogatories No. 1, No. 2, No. 3 or No. 4?
Answer in dollars and cents as to each area and each type of conduct referred to in the preceding interrogatories.
Tyler area of Smith County Conduct described in Interrogatory No. 1: $10,000.00
Conduct described in Interrogatory No. 2: $10,000.00
Conduct described in Interrogatory No. 3: $30,000.00
Conduct described in Interrogatory No. 4: $50,000.00
Longview area of Gregg County Conduct described in Interrogatory No. 1: $0.00
Conduct described in Interrogatory No. 2: $0.00
*1433 Conduct described in Interrogatory No. 3: $0.00
Conduct described in Interrogatory No. 4: $0.00
Interrogatory No. 8
Do you find from a preponderance of the evidence that Defendant Tiger Corp. entered into non-competition agreements with competitors in the Longview area of Gregg County?
We do
(Answer “We do” or “We do not”)
Answer Interrogatory No. 9 only if you have answered Interrogatory No. 8 "We do.”
Interrogatory No. 9
Do you find from a preponderance of the evidence that [i] Defendant’s non-competition agreements, if any, were related to legitimate business transactions, [ii] were necessary to protect Defendant's business interest, and [iii] were no more restrictive than reasonably necessary to protect that interest?
We do not
(Answer "We do” or "We do not")
Answer Interrogatory No. 10 only if you have answered Interrogatory No. 8 "We do."
Interrogatory No. 10
What sum of money, if now paid in cash, would reasonably compensate the Plaintiff for injury to business or property, if any, proximately caused by the anticompetitive agreement, if any?
$0.00
(Answer in dollars and cents, if any) 4/13/87 Brenda Herrin
date foreperson
. Multiflex, Inc. v. Samuel Moore, 709 F.2d 980, 986-987 (5th Cir.1983) (In private antitrust cases, showing of injury requires fact of damage and some general proof regarding the amount of damage.); Nichols v. Mobile Bd. of Realtors, 675 F.2d 671, 675 (5th Cir. Unit B, 1982) ("Private antitrust liability under section 4 of the Clayton Act [providing a civil cause of action for Sherman Act violations] requires the showing of (1) a violation of the antitrust laws, (2) the fact of damage, and (3) some indication of the amount of damage.”).
. Other competitors in the Tyler sub-market area included the City of Tyler, Compac, and the
. In Count II of its complaint, Barton's also alleged violations of the Robinson-Patman Act, citing the same evidence as in Count I. Count III of Barton’s complaint alleged violations under Texas Law of Intentional Torts, again incorporating the same evidence as in Counts I and II.
. See Brown, Federal Special Verdicts: The Doubt Eliminator, (1967) 44 F.R.D. 338; Guidry v. Kem Mfg. Co., 598 F.2d 402, 405-06 (5th Cir.1979).
. Federal Rules of Civil Procedure, Rule 49(a) permits the trial court to "require a jury to return only a special verdict in the form of a special written finding upon each issue of fact.”
. J.C. Motor Lines v. Trailways Bus System, 689 F.2d 599, 603 (5th Cir.1982).
. Dreiling v. General Electric Company, 511 F.2d 768, 774 (5th Cir.1975), Abernathy v. Southern Pacific Co., 426 F.2d 512, 514 (5th Cir.1970).
. 682 F.2d 1149, 1171 (5th Cir.1982) (citations omitted).
. Barton’s Proposed Interrogatory VI.3 specifically directed the jury’s consideration to claimed predatory pricing unrelated to governmental importunities.
Do you find by a preponderance of the evidence that Tiger Corporation [Southwest] engaged in any of the following predatory acts for the purpose of controlling prices or destroying competition in the commercial solid waste collection business in the Tyler area: ... (e) By predatory pricing in the Tyler area sub-market.
Barton’s Proposed Interrogatory VI.3.
. Immediately after the jury was charged, Barton's objected contending that
in order to reach the issue of damages on all of the Plaintiff’s claims, the interrogatories are structured such that the jury must make a finding as to the State action defense and the Noerr-Pennington defense. Plaintiff contends that these two defenses apply only to actions involving the contract with the City of Tyler and the contract with the City of Longview; that they do not and cannot apply to the principal focus, which was Defendant’s anti-competitive pricing practices at the Pine Hill Landfill. Our damages were computed primarily on the difference between the price to Southwest Disposal and the price to our client for use of the Pine Hill Landfill, and there simply is no way that the State action issue or the Noerr-Pennington defense can be relevant to those claims, because the State statute and the State regulatory mechanism simply don’t reach the conduct of private parties, when dealing with other private parties.
We would, therefore, request a clarifying instruction to the jury that the state action defenses and Noerr-Pennington defenses apply only to the contracts with the City of Longview and the City of Tyler.
TR 21-22.
Although the quoted objection may not have covered all of the deficiencies of the trial court’s charge, in the light of the proffered interrogatory (see N. 11, supra), and the specific request for a clarifying instruction, were adequate to direct this knowledgeable trial judge to the persistent theory repeatedly advocated by Barton's advocate.
. 511 F.2d 768, 774 (5th Cir. 1975) (citations omitted).
. See, Brown, The Doubt Eliminator.
. Miley v. Oppenheimer & Co., 637 F.2d 318, 332 (5th Cir.1981).
. In re Burlington Northern, Inc., 822 F.2d 518, 524 (5th Cir.1987).
. At trial, Barton’s presented witnesses who testified that Southwest kept two price cards and offered prices that were substantially less when competition entered the sub-market area. Several examples of such price cards were offered in evidence.
. On accepted principles of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), the claim was properly before the trial court.
. N. 2, supra.
. The relevant portion of the charge stated: The Court instructs you that, even if you should find that Defendant restrained or monopolized trade by its contractual arrangements, or monopolized or attempted to monopolize the commercial waste collection market, Defendant is not liable for anti-competitive activity or results, if Defendant establishes either of the following defenses [state action or Noerr-Pennington ] by a preponderance of the evidence.
. The trial court charged the jury with the substance of the Noerr-Pennington defense and stated that the defense could be overcome if the plaintiff proved that it was a sham. In further defining the sham exception, the trial court instructed the jury that:
[t]he antitrust laws do not reach a situation where a government agency acting as a buyer, seller, or competitor in the marketplace voluntarily becomes a party to agreements that restrain trade, unless the government has been made the victim of a private party’s market power. If a monopolist uses his market power to dictate the terms of the trade to the government, no legitimate petitioning conduct would be involved. If this showing is made, Defendant must prove that its petitioning activity was substantially motivated by a genuine desire for government action. If a Defendant establishes such motive, any actions taken to acquire the anti-competitive contract or any monopoly resulting from the contract cannot subject Defendant to liability under the antitrust laws. (TR 15-16).
. Pierce v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir.1985).
. N. 4, supra.
Dissenting Opinion
dissenting:
Because I believe the district court’s charge and the interrogatories it submitted to the jury adequately framed the issues in this case, I would affirm the judgment the district court entered on the verdict.
The majority concludes that this entire case must be retried because it cannot determine whether the jury erroneously applied the Noerr-Pennington defense, and absolved the defendant of liability for purely private conduct.
The court’s charge plainly limits application of the Noerr-Pennington defense to
After receiving this charge, the jury then declared in answer to interrogatory six that “the anticompetitive conduct referred to in [interrogatories one through four] resulted in defendant’s good faith effort to influence public officials. ...”
Although counsels’ closing argument was not included as part of the record on appeal, the plaintiff was certainly entitled to argue to the jury that if it found that the defendant engaged in predatory pricing or other purely private anticompetitive conduct, it should answer interrogatory six “no.” The “yes” answer to this interrogatory tells me the jury found that all of the defendant’s anticompetitive conduct was the result of its lobbying efforts with city officials.
There are no perfect trials and this one is no exception, but in my view the issues were adequately framed and the jury’s verdict allows us to discern its findings. I see no necessity for a retrial.
. The district court’s special verdict form did not instruct the jury to skip interrogatory seven, the damage interrogatory, if it found the Noerr-Pennington defense available to defendants. I do not understand therefore how the jury’s response to the damage interrogatory supports the majority’s conclusion that the defendant engaged in private anticompetitive conduct.
. If we assume that the jury's responses to the interrogatories cast doubt on whether it applied the Noerr-Pennington defense to plaintiff's purely private predatory pricing claim, I would restrict the retrial to that predatory pricing claim. I would also give the district court discretion to determine whether to retry damages on the predatory pricing claim or to accept the $30,000 sum awarded in interrogatory seven (3) which included plaintiff's predatory pricing claim.
