63 F.3d 1378 | 5th Cir. | 1995
I. Summary and Procedural History
Plaintiffs-Appellees, Great Western Directories, Inc. (Great Western) and Canyon Directories, Inc. (Canyon), filed suit alleging that Defendants-Appellants, Southwestern Bell Telephone Company, et al. (collectively, “SWB”), violated Sections 1 and 2 of the Sherman Act, violated the Texas Free Enterprise and Antitrust Act, violated the Texas Deceptive Trade Practices Act, and tortiously interfered with business relations. Appellants allegedly orchestrated an “affiliation wide concerted action” to extend the SWB monopoly of the yellow pages market and to eliminate competition by raising the costs of doing business as an independent directory and by reducing the price of advertising in its wholly owned classified directory by 40%.
A jury returned a verdict in favor of Great Western and Canyon. The jury found damages of $5 million on Great Western’s antitrust claims, $50,000 in actual and $50,000 in additional damages on its DTPA claims, and $50,000 in actual and $50,000 in punitive damages for its tortious interference claims. The jury found damages of $9,400 on Canyon’s antitrust claims, $10,000 in actual and $10,000 in additional damages under its DTPA claims, and $10,000 in actual and $10,-000 in punitive damages on its tortious interference claims. Both plaintiffs were awarded attorneys’ fees.
Following the verdict, Appellants moved for JNOV and for a new trial. On July 27, 1990, the district court entered judgment on the verdict, awarding Great Western $15 million and Canyon $28,200 in trebled antitrust damages and awarding both plaintiffs attorneys’ fees; no damage award was made on the state law claims. On May 8, 1992, the
On July 9, 1993, Appellants filed a motion to stay the injunction pending appeal. On July 29, 1993, Appellants filed its notice of appeal. On December 7, 1993, the district court entered its final judgment, denied Appellants’ motion for stay, and refused to extend its injunction beyond the parties.
II. Parties and Subject Matter
Southwestern Bell Corporation (SWB) is a holding company; Southwestern Bell Telephone Company (Telephone), SWB’s wholly owned subsidiary, provides telephone service to its customers in Arkansas, Kansas, Missouri, Oklahoma, and Texas. Telephone publishes and provides the “white pages” to its telephone customers. In order to publish the white pages Telephone must compile and maintain a database of names, addresses, and telephone numbers of all its customers. This compilation is known in the telecommunications world as directory listing information (DLI).
Southwestern Bell Yellow Pages (Yellow Pages), another wholly owned subsidiary of SWB, licenses DLI
III. Facts
Appellants and Appellees paint distinctly different pictures of the facts in this case. However, some facts are uncontested. In June 1988 Yellow Pages improved its classified directories in certain markets and instituted a rate reduction in Amarillo. The rate reduction consisted of a 40% across-the-board reduction in advertising rates as well as various incentives enabling advertisers who maintained existing expenditure levels to receive additional advertising. Effective January 1,1989, Telephone increased its DLI prices from $0.30 to $0.50 for the initial load, and the update to $1.00.
The incidents leading up to the rate reduction and the DLI price increase are hotly contested as are the effects. Appellants and Appellees each give their own economic explanation of the causes and effects of the changes instituted by SWB. Briefly, Appel-lees contend SWB adopted a strategy to eliminate the competition and slow their declining market share. This was accomplished by a two-prong attack — raising the prices and imposing restrictive conditions on the sale of the DLI, while at the same time improving the quality of telephone directories published by Yellow Pages and reducing the prices charged for the advertisements. Because Great Western operates at a low marginal profit of two percent of its sales, reflecting its emphasis on expansion, the change in DLI prices forced Great Western out of its Richardson market and prevented it from entering its Little Rock market.
Appellants, on the other hand, contend that Yellow Pages’ share of the advertising directory market was shrinking, and accordingly made improvements to their directories and instituted a rate reduction of 40% in Amarillo on a trial basis. Pursuant to studies conducted of DLI prices in other markets, Telephone decided to increase its DLI price. Appellees continued to compete; in fact, Appellees’ revenues and market shares increased after the DLI price change. Great
IV. Summary of the Law
Standard of Review
This Court reviews a district court’s refusal to grant a judgment as a matter of law de novo, applying the same standards as the district court. The trial court, in entertaining a directed verdict, views the evidence in the light most favorable to the party against whom the motion is made. On appeal, this Court must consider the evidence in its strongest light in favor of the party against whom the motion was made, and must give him the advantage of every fair and reasonable intendment that the evidence can justify.
only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that a reasonable juror could not arrive at a contrary verdict, [while] viewing the facts in the light most favorable to the nonmovant and giving that party the advantage of every fair and reasonable inference that the evidence justifies.3
Antitrust Law
Appellees raised two Section 2 claims: monopoly and attempted monopoly. They contend that Appellants violated Section 2 under both of these theories by abusing an essential facility and through market leveraging. The jury returned a verdict in favor of Appellees finding that:
(1) defendants monopolized and attempted to monopolize the alleged relevant markets for telephone directory advertising by denying reasonable access to an essential facility, that is, Telephone’s DLI;
(2) defendants monopolized the same alleged markets by leveraging monopoly power over DLI in an illegal restraint of competition in the telephone directory advertising markets; and
(3) defendants attempted to monopolize the alleged telephone directory advertising markets by increasing the price of DLI to Yellow Pages and its competitors while at the same time substantially reducing Yellow Pages’ rates for telephone directory advertising and substantially enhancing its directories.
The offense of monopoly under Section 2 consists of two elements: (1) possession of monopoly power in the relevant market, and (2) willful acquisition or maintenance of that power as opposed to acquiring market dominance through competitively desirable means or through events beyond its control.
In addition to establishing the existence of monopoly power, it must be
An attempted monopoly in violation of Section 2 consists of 3 elements: (1) a showing that the defendant has engaged in predatory or anticompetitive conduct, (2) proof that the defendant specifically intended to acquire monopoly power in the relevant market, and (3) a dangerous probability that an actual monopoly position will ultimately be achieved. Predatory or anticompetitive conduct is that which unfairly tends to be exclusionary or tends to destroy competition. Specific intent is the intent to accomplish the forbidden objective, an intent that goes beyond the mere intent to do the act. Intent may be inferred by anticompetitive practices or proven by direct evidence. Dangerous probability of achieving an actual monopoly position is customarily assessed by looking at the defendant’s market share. If the defendant possesses a large share, it will likely be concluded that the defendant’s conduct, if undeterred, will result in an actual monopoly.
V. Discussion
Exclusionary Conduct
Appellants argue that under both a monopoly or attempted monopoly theory, Appellees must show that Appellants’ conduct was improperly exclusionary, that is, that the conduct caused injury to competition.
Appellants contend that in order for Appellees to succeed under a Section 2 antitrust claim, they must present evidence of injury to competition. This is not entirely true. Section 2, under both a claim of monopoly and a claim of attempted monopoly, proscribes exclusionary conduct. Injury to competition is NOT an element of Section 2. “[P]roving an injury to competition is not an element of a monopolization-based antitrust claim.”
Exclusionary conduct is conduct that tends to exclude or restrict competition and is not supported by a valid business reason. Exclusionary conduct comprehends behavior that not only tends to impair the
Appellants’ argument, that the DLI price increase had no adverse effect on competition and was not exclusionary, is not supported by the evidence taken in the light most favorable to Appellees. Appellees identify extensive evidence, if believed by the jury, that precludes a judgment as a matter of law. First, a jury could find that SWB’s purpose in raising the DLI price and imposing more restrictive terms was to recapture its market share, to prevent expansion of current independents, and to prevent new independents from entering the market. SWB identified one of its competitive weaknesses as “low start-up costs” for independents. “Competitor’s low margin and high risk strategy leaves [them] vulnerable to expense driven attacks.”
In Lehrman v. Gulf Oil Corp.
Few business practices are anticompetitive on their face- The circumstances surrounding the use of a particular business practice give strong clues as to what those who employ the practice hope to accomplish by it, and what those individuals hope to accomplish may shed light on whether the practice does in fact have the hoped for ... anticompetitive effect. In short, when a firm displays an anticompetitive animus in the operation of an otherwise ambiguous business practice, what the firm seeks to*1387 accomplish provides as sure an indicator of the actual effect of the practice on competition as can be found in the shifting sands of antitrust litigation.
There is some evidence, from studies undertaken by SWB and comments made by Kaufman, that the price increase was intended to restrict the competition. Appellants argue correctly that this is not a substitute for exclusionary conduct or injury to competition. Nevertheless, it is one more “indicator” of SWB’s exclusionary conduct the jury can take into account.
Second, there is evidence that other Companies’ DLI prices were only one-third of the price Telephone was charging, and that the terms at which SWB offered the listings were restrictive. For small independents, like Canyon, SWB’s required purchase of the entire directory even if the publisher only wanted small portions of the listings, substantially increased the fixed costs of operation. Independents were required to purchase both the residential and business updates; independents also had to contract to take updates for a period of two years; and if the publisher stopped taking updates within the two years, the publisher could not obtain listings again for another two years.
Third, the evidence supports a finding that Appellants’ conduct had an anti-competitive effect on the market. Both the number of publishers’ licensing listings and the number of competitive directories sharply declined. The price increase threatened to put Canyon out of business, forced it to increase prices to advertisers — adversely affecting the consumer, and reduced its number of customers. The change contributed to Great Western’s decline in profit margin, forced its withdrawal from Richardson, forced it to abandon its plans to enter Little Rock, and halted its historical pattern of entering two to three markets per year. Canyon’s and Great Western’s continued survival does not preclude them of a remedy.
The crux of Appellants’ argument is the contention that Appellees failed to show an antitrust injury. Appellants contend that Great Western not only profited after the DLI price increase, but its profits increased over the previous year. Appellees maintain that the DLI price increased the costs of listings to Great Western as percentage of its sales from 1.87% to 4.56%, exceeding Great Western’s 2% profit margin. In other words, Great Western could not maintain its previous increasing rate of expansion and retain its 2% marginal profit. The issue becomes whether this is an injury. Appellees’ profits increased in 1989, just not as much as they would have; and for a low profit margin competitor, the price increase halted Great Western’s expansion.
Pierce v. Ramsey Winch Co.
The issue before this Court is whether Great Western and Canyon suffered an antitrust injury despite an increase in profit. We find that they did. There is sufficient evidence of exclusionary conduct and intent to exclude. This evidence coupled with the fact that Appellees, low profit margin com
Opportunity Lost
Appellants contend the district court erred in denying its motion for directed verdict against Great Western for two reasons. First, Great Western’s fear of future price increases is too speculative to support a damage award for abandoning the Richardson market and failing to enter the Little Rock market. Second, Great Western has no standing to sue for its failure to enter Little Rock. We will discuss each in turn.
There is no evidence, Appellants argue, that Great Western could not compete in Little Rock and Richardson at the existing DLI prices. In fact, the district court acknowledged that it was the fear of future price increases, not present DLI prices, that forced Great Western to abandon Richardson and Little Rock. Great Western’s claims are not ripe. Appellants contend if Telephone raised DLI prices to exclusionary levels in the future, then Great Western would be entitled to relief.
The court instructed the jury not to award damages unless they were in fact attributable to the alleged wrongful conduct. The jury could find and the court did find that the enhanced investment risk was a material cause of Great Western’s abandonment of Richardson and failure to enter Little Rock. Additionally, this Court stated that in cases where the defendant’s acts are motivated by intent to injure the plaintiff, the inferential leap to the finding of fact of damage is not great.
Appellant cites several old non-Fifth Circuit cases for the proposition that a plaintiff cannot obtain damages that are to be suffered in the future.
Appellants’ second argument is based on standing. Appellants contend Great Western has no standing to sue for abandoning its plans to enter the Little Rock market unless it can establish a business or property interest protected by Section 4.
In assessing a company’s preparedness to expand, courts have looked to several factors: the ability of the plaintiff to finance the business and purchase the necessary facilities and equipment, consummation of contracts by the plaintiff, affirmative action by the plaintiff to enter the business, and background and experience in the prospective business. Id.
This Circuit has typically found lack of standing where a plaintiff lacked evidence on all the preparedness factors. Id. at 315-316 (plaintiff showed no ability to obtain financing); Hayes, 597 F.2d at 974-975 (plaintiff failed to prove ability to finance or contracts made); Martin, 365 F.2d at 634 (plaintiff failed to prove any of the four factors).
While Great Western has experience, there is no evidence of affirmative steps taken, contracts made or financing arranged in preparation to enter the Little Rock market. The sum total of Great Western’s preparation was review of pricing information, two visits to Little Rock by a corporate officer and setting of a publication date. Great Western has only demonstrated that it intended to enter the market, not that it was prepared to do business there.
Great Western urges us to find its situation analogous to that of the plaintiff in Heatransfer Corp. v. Volkswagenwerk AG. where we found standing in absence of all four of the factors of preparedness for a plaintiff who intended to expand production, not move into a new market. 553 F.2d 964, 988 n. 20 (5th Cir.1977).
In contrast, for a plaintiff moving into a new market, such as Great Western, the showing of preparedness is fundamental. We stated that,
“even though an antitrust plaintiff operates a going concern, he must demonstrate his preparedness and intent to expand that business into a new market if he claims that the expansion of that business into a new market has been foreclosed to him by the monopolistic activities of the defendant.” Id.
Great Western was not in the position of the plaintiff in Heatransfer. There were significant barriers to entry to the Little Rock market. Costs to enter the market were estimated at $1.6 million. Additionally, Great Western would have had to establish a new customer base and new contracts. Under these facts, Great Western cannot claim that little or no preparation was required.
Great Western argues that “its plans to enter Little Rock were kept secret” to prevent entrenchment in the market by
Injunction
We review the propriety of a district court’s decision to issue a permanent injunction for an abuse of discretion.
Appellants contend that the district court erred in granting Appellees’ injunctive relief because (a) Appellee failed to show the requisite threatened loss or damage, (b) the evidence was insufficient to support Appellees’ claim that the updates were essential and the update prices prohibited new entry, and (3) there is no basis for the 13.5 cent amount. Section 16 of the Clayton Act empowers federal courts to grant an injunction “against threatened loss or damage by a violation of the antitrust laws.” Appellants’ argument is merely more of the same — there is no evidence of a threatened loss. The evidence is sufficient to support a finding that the updates were properly included in the instructions. Testimony from Richard O’Neal, Great Western’s founder,
On cross-appeal, Great Western and Canyon argue that the injunction should apply across the five state market and not merely where the plaintiffs are located. Broader relief embraces the public interest served by private antitrust lawsuits,
The district court narrowed its injunction because it found that the evidence in this case did not justify injunctive relief in markets other than where the plaintiffs compete. No evidence of direct harm in these markets was provided. Also, the district court recognized that it can grant injunctive relief to non-parties but only if necessary to give the named plaintiffs the continuing relief to which they are entitled.
We AFFIRM the court below in every respect with the exception that we REVERSE the claim of Great Western with regard to its entering the Little Rock market. The court below will make the necessary changes in its judgment because of the dismissal by us of the Little Rock claim of Great Western.
. DLI is provided in a variety of formats. One form is known as the “book on the street” paper or "BOS-paper”. BOS-paper is a published compilation of names, addresses and telephone numbers, that is, the white pages. Another format is known as "subscriber listing update service" (update service). The update service consists of two components. The first component, the "initial load”, is a copy of Telephone's DLI on magnetic tape as of a given date. The second component, the “updates”, is a monthly update of the initial load.
. Continental Ore Co. v. Union Carbide Corp., 370 U.S. 690, 696, n. 6, 82 S.Ct. 1404, 1409, n. 6, 8 L.Ed.2d 777 (1962).
. Spuler v. Pickar, 958 F.2d 103, 105 (5th Cir.1992).
. United States v. Grinnell Corp, 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966).
. United States v. E.I. duPont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956).
. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 481-83, 112 S.Ct. 2072, 2090, 119 L.Ed.2d 265 (1992).
. WILLIAM C. HOLMES, ANTITRUST LAW HANDBOOK, 352-53 (1994 ed.).
. FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986).
.See e.g. Advanced Health Care Serv. v. Radford Comm. Hosp., 910 F.2d 139 (4th Cir.1990) (85 percent); Movie 1 & 2 v. United Artists Communications, Inc., 909 F.2d 1245 (9th Cir.1990) (96 percent); United States v. American Airlines, Inc., 743 F.2d 1114 (5th Cir.1984). In contrast, proof that the defendant's share is minimal will result in a finding that an actual monopoly is improbable. See, e.g., Langenderfer, Inc. v. S.E. Johnson Co., 917 F.2d 1413 (6th Cir.1990) (30 percent declining share); C.A.T. Industrial Disposal, Inc. v. Browning-Ferris Industries, 884 F.2d 209 (5th Cir.1989) (10 percent market share insufficient as a matter of law).
. Although the jury found Appellant liable under several theories of antitrust law, including monopoly, attempted monopoly, leveraging, and unreasonable denial of an essential facility, the briefs focus on the issue of exclusionary conduct and anticompetitive effect Because exclusionary conduct is the linchpin in this case, we will focus upon it.
. Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 939 (5th Cir.1988).
. See id. (recognizing that Section 4 of the Clayton Act comes with a specific injury requirement).
. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 n. 32, 105 S.Ct. 2847, 2859 n. 32, 86 L.Ed.2d 467 (1985).
. Aspen Skiing Co., 472 U.S. at 605, 105 S.Ct. at 2858.
. Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968); see also Poster Exchange v. National Screen Service Corp., 431 F.2d 334, 339 n. 13 (5th Cir.1970) (holding that a monopolist’s decision to charge retail prices to competing wholesaler was unlawful if done "to gain a competitive advantage").
. Although the planning documents from which these quotes were taken do not specifically recommend increasing the price of DLI, a jury could easily make the inferential hop.
. Affidavit of former Yellow Pages President A.C. Parsons.
. Several individuals testified at trial that Kaufman suggested looking into DLI prices to increase Telephone's revenues.
. SWB argues on appeal that by passing this cost on to the independents, it can thereby reduce the amount of basic telephone service to its customers. This was argument was not presented to the jury and the district court found it meritless, as do we. We cannot say as a matter of law that this post-trial explanation accurately stated the true purpose and effect of the DLI price increase.
. 464 F.2d 26, 38 n. 9 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972).
. After the district court questioned the two year requirement at a preliminary injunction hearing, SWB reduced the two year obligation to two months. For the two month period, independents had to purchase both business and residential listings; thereafter, they could purchase updates for business only or both.
. 753 F.2d 416, 436 (5th Cir.1985).
. Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1565 (5th Cir.1984) (en banc).
. Flintkote v. Lysfjord, 246 F.2d 368, 395 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957); Connecticut Importing Co. v. Frankfort Distilleries, Inc., 101 F.2d 79, 81 (2d Cir.1939); Bailey’s Bakery, Ltd. v. Continental Baking Co., 235 F.Supp. 705, 716-17 (D.Haw. 1964), aff'd, 401 F.2d 182 cert. denied, 393 U.S. 1086, 89 S.Ct. 874, 21 L.Ed.2d 779 (1969).
. Great Western alleges that SWB never raised the issue of preparedness in any of its motions for directed verdict, thus permitting this Court to review for plain error only. Preparedness, though, is only an element of standing under the antitrust claims. SWB expressly challenged the appellee's standing under antitrust in its motions for directed verdict. SWB also stated in its discussion of Great Western’s tortious interference claim that Great Western was unprepared to enter the Little Rock Market. Regardless of the standard of review, Great Western put on no evidence of key aspects of standing as will be discussed.
. See also Hayes v. Solomon, 597 F.2d 958, 973 (5th Cir.1979), cert. denied 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Martin v. Phillips Petroleum Corp., 365 F.2d 629, 633-34 (5th Cir.), cert. denied 385 U.S. 991, 87 S.Ct. 600, 17 L.Ed.2d 451 (1966); Gas Utilities Co. v. Southern Natural Gas Co., 996 F.2d 282, 283 (11th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 687, 126 L.Ed.2d 654 (1994); Curtis v. Campbell-Taggart, 687 F.2d 336, 338 (10th Cir.), cert. denied, 459 U.S. 1090, 103 S.Ct. 576, 74 L.Ed.2d 937 (1982).
. Accord Gas Utilities Co., 996 F.2d at 283 (lack of preparedness to enter new market when no contracts consummated and no financing); Curtis, 687 F.2d at 338 (experience in proposed business operation, unaccompanied by contracts and financing, not enough to establish "business or property” interest).
. See also Cable Holdings v. Home Video, 825 F.2d 1559, 1562 n. 3 (11th Cir.1987) (citing Heatransfer with approval).
. Securities & Exchange Commission v. MacElvain, 417 F.2d 1134, 1137 (5th Cir.1969) (finding that the district court did not abuse its discretion in entering a permanent injunction), cert. denied, 397 U.S. 972, 90 S.Ct. 1087, 25 L.Ed.2d 265 (1970).
. The district court apparently adopted Appel-lee's proposed findings in support of the injunction. Such findings merit heightened scrutiny. Falcon Constr. Co. v. Economy Forms Corp., 805 F.2d 1229, 1232 (5th Cir.1986) ("A district court that adopts one party's suggested findings essentially verbatim leaves doubt whether it has discharged its duty to review the evidence for itself and reached its decision on the basis of its own evaluation for the evidence rather than that of an advocate.”).
. Richard O'Neal stated the updates are essential for the independents to call on new businesses and to distribute new directories.
. Former Yellow Pages president explained that directory publishers need updated information to develop sales leads and to deliver directories to newly connected users.
. See e.g., Otter Tail Power Co. v. United States, 410 U.S. 366, 372-75, 93 S.Ct. 1022, 1027-28, 35 L.Ed.2d 359 (1973); Almeda Mall, Inc. v. Houston Lighting & Power Co., 615 F.2d 343, 353-54 (5th Cir.1980).
. See Willc v. American Medical Association, 671 F.Supp. 1465 (N.D.Ill.1987), aff'd, 895 F.2d 352 (7th Cir.1990).
. See Loew’s Inc. v. Milwaukee Towne Corp., 201 F.2d 19, 22-23 (7th Cir.1952), cert. denied, 345 U.S. 951, 73 S.Ct. 865, 97 L.Ed. 1374 (1953).
. See Professional Ass’n of College Educators v. El Paso County Community College Dist., 730 F.2d 258, 274 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984).
