92 A.D.3d 570 | N.Y. App. Div. | 2012
Until the spring of 2009, defendant IBS and defendant City Sights operated competing double-decker sightseeing tour buses in New York City. However, they subsequently formed Twin America, which controls 90% of the double-decker sightseeing tour bus market in New York City;
Prior to commencement of this litigation, plaintiff had oper
After the formation of Twin America, defendants reduced plaintiffs commission and the amount of time plaintiff had to remit payment. Plaintiff alleges that when it refused to sell a 49% interest in its company to defendants, defendants advised plaintiff that they would “force [p]laintiff out” so defendants could control the hotel concierge desks.
Plaintiffs complaint alleges monopolization, and attempted monopolization, of both the Tour Bus Market and the Ticket Sales Market. Plaintiff defines the Tour Bus Market as the market for hop-on, hop-off double-decker sightseeing bus tours in New York City, and the Ticket Sales Market as the “hotel concierge desk distribution channel for the sale of tickets to passengers for the double-decker sightseeing tours in New York City.” Plaintiff contends that IBS and City Sights conspired to form Twin America, with the intent to control, dominate and curtail competition in the Tour Bus Market. Plaintiff also alleges that defendants conspired to monopolize the Ticket Sales Market by vertically controlling distribution of their tickets, “taking over” hotel concierge desks previously operated by plaintiff, and reducing plaintiffs commission percentage and time to remit payment.
The motion court properly dismissed the antitrust claims for failure to state a cause of action.
Plaintiff’s claims with respect to the Ticket Sales Market were correctly dismissed because plaintiff failed to define a relevant product market. A relevant product market includes all products that are “reasonably interchangeable,” and the alleged market must be plausible (Theatre Party Assoc., Inc. v Shubert Org., Inc., 695 F Supp 150, 154 [SD NY 1988]). The general rule when determining a relevant product market is that “[t]he outer boundaries of a product market are determined by the reasonable interchangeability of use [by consumers] or the cross-elasticity of demand between the product itself and substitutes for it” (F.T.C. v Staples, Inc., 970 F Supp 1066, 1074 [DDC 1997] [internal quotation marks omitted]). Interchangeability and cross-elasticity of demand look to the availability of substitute commodities, meaning, “whether two products can be used for the same purpose, and if so, whether and to what extent purchasers are willing to substitute one for the other” {id. [internal quotation marks omitted]). If there are other products available to consumers that are similar in character or use to the products in question, then the products are said to be functionally interchangeable and form the outer boundaries of a relevant product market for antitrust purposes.
Here, according to plaintiff, the market for ticket sales for double-decker bus tours through hotel concierge desks is distinct from the market for ticket sales for the same double-decker bus tours that are available through other vendors and distribution channels. Although plaintiff contends it is the “major distribution channel” of defendants’ tickets, it is not the only distribution channel because consumers can purchase tickets from street vendors, the Internet, and visitor centers operated by defendants. Thus, there is functional interchangeability between the hotel concierge desk distribution channel and other distribution channels and vendors. Plaintiffs isolation of a supposed separate market via hotel concierge desks from the other vendors is too narrow a definition to constitute a plausible market (Belfiore v New York Times Co., 826 F2d 177, 180 [2d Cir 1987], cert denied 484 US 1067 [1988]).
Furthermore, the hotel concierge desk distribution channel does not constitute a submarket within the larger double-decker
Even if the Ticket Sales Market were a relevant product market or submarket, plaintiff failed to allege an antitrust injury in that market. An antitrust injury is an injury “attributable to an anti-competitive aspect of the practice under scrutiny” (Atlantic Richfield Co. v USA Petroleum Co., 495 US 328, 334 [1990]). Here, plaintiff complains that defendants have replaced it as the concierge at 11 of the 43 hotels where it used to operate the concierge desk, that defendants plan to take over the hotel concierge industry, and in so doing, defendants have decreased plaintiffs commission and the amount of time plaintiff has to remit payment. However, in the hotel concierge industry, plaintiff and defendants are now competitors, and the antitrust laws were enacted to protect competition, not competitors (see Theatre Party, 695 F Supp at 155). Plaintiff does not allege that defendants have prevented it from selling vouchers at concierge desks it continues to operate.
Furthermore, the antitrust laws do not require defendants to pay plaintiff a particular commission or give it a certain number of days to pay (see Belfiore v New York Times Co., 654 F Supp 842, 847 [D Conn 1986], affd 826 F2d 177 [2d Cir 1987], cert denied 484 US 1067 [1988]). In fact, defendants may decline to deal with plaintiff altogether (see Theatre Party, 695 F Supp at 155; see also E & L Consulting, Ltd. v Doman Indus. Ltd., 472 F3d 23, 29 [2d Cir 2006], cert denied 552 US 816 [2007]).
Indeed, a manufacturer’s vertical control of the distribution of its own product is presumptively legal and not a violation of the antitrust laws (E & L Consulting, 472 F3d at 30). The grava
The motion court properly dismissed plaintiff’s attempted monopolization claims. Although the motion court found that plaintiff could not bring a private right of action for attempted monopolization, that portion of the ruling is incorrect.
To establish a “dangerous probability” of success we must examine whether a defendant “possesses a significant market share when it undertakes the challenged anticompetitive conduct” (Intl. Distrib., 812 F2d at 791). Here, the minimal economic power defendants may have in the hotel concierge industry does not warrant the conclusion that they possessed a significant market share at the time plaintiff alleges they engaged in the anticompetitive actions. Defendants now operate seven hotel concierge desks in New York City, however, according to the complaint, plaintiff remains the “largest operator of hotel concierge desks in New York City.” Further, plaintiff’s conclusory allegations that defendants will eventually “take over each and every hotel concierge desk in New York City” and
The motion court properly declined to permit plaintiff to re-plead its antitrust claims because no amount of repleading will change the nature of its injuries (see Chapman v New York State Div. for Youth, 546 F3d 230, 239 n 3 [2d Cir 2008], cert denied sub nom. Handle With Care Behavior Management System, Inc. v New York State Division for Youth, 558 US —, 130 S Ct 552 [2009]).
We have considered the parties’ remaining contentions and find them unavailing. Concur — Tom, J.E, Moskowitz, Richter, Abdus-Salaam and Román, JJ.
. On February 8, 2011, the United States Surface Transportation Board (STB) denied approval of the Twin America joint venture. On March 8, 2011, the STB stayed its February 8 decision pending defendants’ petition for reconsideration.
. Although 11 hotels initially terminated their contracts with plaintiff and gave business to defendants, four of these hotels subsequently reinstated plaintiff as the hotel concierge desk operator.
. The motion court also determined that defendants were one entity after the creation of Twin America and therefore plaintiff had failed to allege a conspiracy between two or more legal or economic entities. However, it does not matter, for purposes of this decision, whether or not the motion court erred in finding that defendants had become a single entity because plaintiffs claims fail on other grounds.
. In Two Queens v Scoza (296 AD2d 302 [2002]), this Court reinstated the defendant’s counterclaims, which included an allegation of attempted monopolization. It is a fair inference that the Two Queens Court found that the Donnelly Act provided for a private right of action for attempted monopolization.