Jay Palmer v. Brg of Georgia, Inc., a Georgia Corporation, D/B/A Bar/bri

ilar to the format of the BRG course. HBJ CLARK, Before HATCHETT and developed its own standardized multi-state Judges, *, Circuit and FITZPATRICK materials and part sold these as a of its Judge. District Georgia course. In competed BRG and HBJ in Geor- HATCHETT, Judge: Circuit gia. response In the low of BRG’s brought In by this action former law course, HBJ reduced the of its Geor- University Georgia students of the Law gia money course and lost as a result. against companies, School bar review we Conviser, Richard chairman of HBJ’s board ruling affirm the district court’s directors, states in his affidavit companies bar review did not violate the $45,000 $120,000 HBJ lost on revenues of Sherman Act. accounting without for overhead. point At some West informed FACTS planned BRG that it to sell its multi-state Appellants, graduates all 1985 of the stores, through materials ending book thus Georgia University of Law School in Ath- arrangement. the test market At about ens, Georgia, brought this antitrust action time, the same lawyer who had been in against Georgia, (BRG), BRG Inc. charge conducting Georgia HBJ’s course Pelletier, Georgia corporation, Ronald 0. suffered a heart attack. Conviser’s affida- owner, BRG’s and Harcourt Brace Jovano- vit states that HBJ decided to withdraw Legal Publications, vich and Professional Georgia time, from the market at this but (HBJ), corporation.1 Inc. a Delaware The no documentation of this decision has been appellants took a bar review course offered offered. during January BRG February Conviser met early with Pelletier in preparation 1985 in Georgia for the bar April On BRG and HBJ entered examination. gave into a written BRG BRG offered a bar review an exclusive license use HBJ’s name course which covered the federal multi- Georgia. agreed “Bar/Bri” in that it components state and law of the longer would no offer a bar review course Georgia bar exam. The in- BRG course compete and that it would plus lawyers cluded written materials Georgia. agreed with BRG in not to professors’ videotaped live and compete lectures. Georgia. HBJ outside of * Fitzpatrick, Honorable Duross U.S. District Pelletier formed BRG in 1979 for the sole Judge Georgia, sitting for the Middle District of offering purpose of bar review courses to Geor- by designation. gia applicants. bar Group, 1. BRG includes Bar Review Inc. and publications, Georgia corpora- all tions. courses, not described these are but

Immediately after execution record. rose price of BRG’s agreement, does The record $400. to over

from $150 HISTORY PROCEDURAL com or other prices HBJ what not disclose re charging similar sought represent panies were The appellants 1982, group February, In law who consisting courses. of students view class those brought a class Athens, Georgia, students in Georgia law of BRG course attended a alleg HBJ 1984, and against 15, present. BRG and lawsuit action between June al as alleges violations section ing through antitrust each identical I IV Counts Edwards, al. Act, et 15 U.S.C.A. in this See leged case. of the Sherman violations al., Dis liability et Middle theory per se Georgia, of A BRG l.2 different § A, counts, 82-13-Ath. No. Georgia, Circuit each of under these trict advanced was taking I); (Count students those mar- class included cartel namely, price-fixing II); and April (Count course between allocation BRG’s ket and customer partial refunds offering By to deal refusal concerted boycott June and members, set and HBJ BRG joint venture (Count III); class unreasonable to the IX of IV).3 through V (Count class. tled that Counts 2 violations section complaint alleged each class the 1982 During pendency Act, 2.4 The 15 U.S.C.A. § Sherman a modified action, HBJ executed BRG and monopolize conspiracy to allegations were: agreement, modified this In agreement. V); monopo- (Count attempt Georgia in right to BRG’s exclusive HBJ withdrew VI); monopoly in (Count Georgia in lize in materials multi-state HBJ’s monop- VII); (Count conspiracy the ex- However, retained Georgia. attempt (Count VIII); and olize nationwide in connec- use right “Bar/Bri” clusive IX). (Count monopolize nationwide Also, the modified its with course. tion liability denying express covenant BRG and answered dropped by the class described in denying contained been had compete which not to On properly be certified. appellants could the execution Since agreement. the initial moved for 7, 1986, appellants February com- has not agreement, HBJ par- moved for later class certification nor licensed peted with BRG the con- on one of summary judgment tial any other by use for materials multi-state May complaint. On of their spiracy counts course. Georgia bar review summary for HBJ moved University of majority In subsequently filed Appellants judgment. re- used who Georgia law students sanctions for Fed.R.Civ.P. motion Athens, Georgia, conducted view course Pelletier. against courses. or the either the took court the district January On for data no similar contains record summary for motion appellants’ cur- denied The BRG years. subsequent HBJ’s BRG’s granted but judgment, statewide, conduct- marketed rently as to summary judgment motion for includ- Georgia, locations ed various complaint, and IX of the through II Counts Other bar Atlanta. ing Athens district I. The ruling on Count deferred appli- Georgia bar are offered courses Publications, Inc. that BRG found court “PMBR” “NORD” cants, namely, the designations to the court referred “Every the district provides: Act Sherman 1 of the 2. Section plaintiffs. or contract, otherwise, of trust chosen form combination or of trade conspiracy, restraint or States, "Every among several provides: Act commerce 2 of the Sherman 4.Section illegal...." nations, to be foreign is declared attempt to monopolize, or persоn shall who any conspire with monopolize, or combine theories that these noted court district 3. The any part monopolize persons, to person or other be- separate pled as counts improperly among several or commerce the trade of ac- only cause one have cause nations, States, shall be deemed foreign or with 1 violation alleged section for an tion Act],...” this have violated [to reference, However, ease of Act. Sherman Group, and Bar Inc. Review were related cient probative evidence from which jury corporations which have been defunct at could reasonably inferred that relevant times and had no involvement in relevant any allegedly anti-competitive activities. existed; monopoly power existed or was granted district summary judg- dangerously likely to exist in that claimed Publications, ment to BRG Inc. and Bar market; and that BRG and HBJ took ac- Group Review separate on all counts. tions to secure or intended to secure such orders, the appel- also denied monopoly power required as appellants lants’ motions for class certification and to establish a violation of section 2 of the Rule 11 sanctions. Sherman Antitrust Act. February

On appellants filed a Motion for January Reconsideration DISCUSSION rulings, memorandum and responding I. Consumer Class Certification to the district court’s produce invitation to appellants evidence to support a section 1 contend that the “rule of dis applied trict reason court an legal violation” of the Sherman erroneous stan Act. The dard applying district court 23(a)(4) declined to Fed.R.Civ.P. pre- reconsider its rulings, vious misread the record in denying held appellants that the their had motion for failed class Kirkpatrick, support Citing certification. violation, a rule of reason et al. Bradford, al., et granted (11th BRG’s and HBJ’s F.2d 718 motion for Cir.1987), summary judgment appellants argue on Count I. On that con July sumer class certification district court should not judg- entered be de nied Appellants ment. because of a lack subjective filed a motion to alter or interest part on the of the judgment, plaintiffs, amend the and the district named unless court participation their denied that is Appellants motion. so they minimal that then filed a virtually timely appeal. notice abdicated conduct of

their case to lawyer. their ISSUES Kirkpatrick HBJ cite argue The appellants raise five ap- on issues adequacy representation of class peal: under 23(a) Fed.R.Civ.P. primarily is a fac- tual issue best left for the district court’s 1) whether the district court’s determina- determination. They argue that the trial tion that the appellants “may lack financial court’s denial of up- certification should be commitment” to this consumer class action held absent abuse of discretion. BRG proper legal standard; constitutes a argue HBJ further individual 2) whether the district court abused its appellants had little knowledge of the class discretion in denying a motion for sanctions deposed, action when named Pelletier; against appellants were unaware of the extent of 3) whether the district court erred in obligation pay expenses. Thus, granting summary BRG and HBJ judg- BRG and HBJ assert that the record dem- ment; appellants’ onstrates the lack of involve- 4) whether evidence that BRG’s and ment unwillingness finance the case. HBJ’s combination enabled them to: in- may proceed Whether lawsuit as a price 800-percent; crease output; reduce class is action committed to the sound dis and eliminate prod- consumer choice for a court, cretion of the district and its deter uniformly uct perceived indispens- to be mination will not be overturned absent a able, proof is anticompetitive sufficient showing that it has abused its discretion. preclude effect to summary judgment un- In re Dennis Greenman Litiga Securities der section 2 Act; Sherman tion, (11th 829 F.2d Cir. 1543-44 5) whether 1987). the district court general erred rule provides that the granting summary judg- and HBJ district court’s class is certification final ment appellants when produced suffi- exists, unless an abuse of discretion or the skill, providing HBJ is its ex- legal crite Because impermissible applied has court Alexander, special to Pelletier pertise and methods Lawler v. or ria standards. BRG, Pelletier or BRG de- Cir.1983). if either (11th 439, 441 F.2d conduct a bar review examina- sires to held: The district than course in state other Geor- tion only state plaintiffs juncture, At this opportu- offer gia, it shall first assuming the only capable they are and materials nity to license courses approximately mailing notice cost of and conditions as con- on the same terms members. 280 absent class HBJ or its licen- tained herein. Because requires that 23(a), Fed.R.Civ.P. Rule courses in certain already conduct sees a class dem- represent seeking parties (1) states, agree: not BRG and Pelletier adequately pro- they will onstrate HBJ for such request a license from Because class. of the interest tect the states; directly will financial commitment may lack own, manage, operate, join, in- indirectly investigation and adequate sufficient vest, participate in or be con- control or light of the preparation trial officer, employee, partner, nected as an finds that certification ruling, the director, or other- independent contractor improper at this be class would wise, operat- any business which motion Accordingly, the juncture. preparation ing participating hereby denied. certification class in HBJ or its in a state candidates which a bar examina- operating is then licensee not court did district hold that the We Those certain states course. tion review discretion, impermissi- apply nor abuse present- licensees are in HBJ or its which denying in standards or legal criteria ble as Exhibit is attached hereto ly operating class certifica- for appellants’ request the “A”. certification be- point where At the tion. had district court important, the

came para- in states Pelletier’s affidavit Mr. for sum- HBJ’s motion BRG’s and granted graphs 3: one. except all counts judgment on mary agreed with have I At time ever no appellants the allowed district court The Legal Publi- Brace Jovanovich Harcourt of reason a rule thirty days to establish (“HBJ Richard cations, Legal”), or Inc. I, reject- it had because claim under Count Conviser, agent employee or or liability. The per se claims on ed their concerning: Legal its discre- exercised properly district court charge for a) prices BRG would be- certification denying class in tion courses; rule of reason expected cause the courses b) offer BRG would where degree greater a development to require courses; or or not offer appellants’ than the commitment financial avail- c) made hiring only lecturers Ac- they possessed. depositions reflected Legal. by HBJ able con- denial of cordingly, the district affirmed. com- argued class certification Pelletier sumer that appellants The 3(b) of his paragraph perjury mitted Sanctions II. Fed.R.Civ.P. Fed.R.Civ.P. thereby violated affidavit The 115, warranting sanctions. Pel established that appellants inconsistency alleged court found affidavit. false letier submitted a not estab- did statements the two licensing into HBJ first entered the motion denied perjury, lish Paragraph 27 of April, agreement sanctions. provided: pay tion, may order to include an part: pertinent provides, in Fed.R.Civ.P. of the parties amount party or motion, the other paper is pleading, or other aIf of the court, because rule, expenses incurred reasonable filing of this signed in violation motion, paper, initiative, or other pleading, upon shall its own upon motion it, attorney’s rep- fee. signed including upon person who a reasonable impose both, appropriate sanc- party, resented appellants contend that Rule 11 Corp., Co. Zenith Radio mandatory, discretionary. 585-86, sanctions are 1348, 1355-56, 106 S.Ct. 89 L.Ed.2d BRG and HBJ contend that the district (1986); 56(c), (e). Fed.R.Civ.P. properly appellants’ denied the mo- When carry BRG and HBJ their burden correctly tion for sanctions and ruled that 56(c), under Fed.R.Civ.P. appellants no evidence the record established that must do more simply than show some me penury. Pelletier had committed BRG and taphysical doubt as to the material facts. argue HBJ further that the district court appellants must come forward with denying did not abuse its discretion specific demonstrating facts genuine is appellants’ Rule motion for sanctions. 56(e). sue for trial. Rule Where the Although the district court found that record, whole, taken as a does not lead a affidavit, Pelletier submitted a false rational trier of appel fact to find for the impose district court did not Rule 11 sanc lants, genuine issue for trial exists. tions because it could not determine wheth Matsushita, 586-87, 475 U.S. at is, guilty perjury, er Pelletier was 1356; Dunnivant v. Bi-State Auto whether his untrue statements were inten Parts, (11th 851 F.2d 1579-80 Cir. reviewing record, tional. we find 1988). the district court did not abuse its denying appellants’ discretion in In reviewing grant motion summary judgment, See Donaldson v. Rule sanctions. inferences to be drawn from Clark, (11th Cir.1987). underlying F.2d 1551 Ac facts must be viewed cordingly, light we affirm the district court’s most favorable non-moving par to the denial of Rule 11 sanctions. ty. But antitrust law range limits the permissible ambiguous inferences from evi Summary Judgment III. on Antitrust dence in a Sherman Act section 1 case. Claims Conduct as permissible consistent with competition illegal as well conspiracy as A. Standard Review not, alone, standing does support an infer Appellate granting the of a conspiracy. Matsushita, ence of antitrust summary judgment motion questions for 587-88, 1356-57; 475 U.S. at 106 S.Ct. at any genuine whether issue material fact Dunnivant, 851 F.2d at 1579-80. 56(c). exists. Fed.R.Civ.P. When review To survive BRG’s and HBJ’s ing decision, motion for summary judgment the re summary judgment, appellants viewing court is must by legal bound the same present tending to exclude standards as those that control the district possibility that determining BRG and HBJ acted inde- summary whether pendently. judgment appropriate. appellants is The Amey Inc. v. must demon- Title, Inc., Abstract & 758 F.2d 1486, strate that the inference conspiracy is Gulf denied, (11th Cir.1985), light cert. competing 1502 reasonable 475 infer- U.S. 1107, 106 independent ences of (1986). S.Ct. action or 89 L.Ed.2d 912 collusive action that could not have harmed them. To survive BRG’s and HBJ’s motion for Matsushita, 475 U.S. at 106 S.Ct. at summary judgment, appellants ‍​​​‌​​​​​​‌​​​​​​‌​‌​​​​​​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌‌​‍must 1357; Dunnivant, 851 F.2d at 1579-80. genuine establish a issue of material fact as to whether appellants’ per evaluating BRG and HBJ entered into se liabil illegal conspiracy appel that caused the ity claims under section 1 of the Sherman cognizable Act, lants to suffer injury. Fed.R. generally, the district court found that 56(e). showing Civ.P. This compo plaintiff asserting has two 1 a section claim must first, appellants nents: prove must show that the defendant’s acts or conduct more conspiracy than a in violation of the anti-competitive had an effect in relevant existed; they antitrust laws geographic product must show an markets. See States, injury resulting illegal to them from the Standard Oil Co. v. United 337 conduct; second, the issue of fact must be U.S. 69 S.Ct. 93 L.Ed. 1371 Matsushita Electric Industrial genuine. (1949). Thus, appellants bore the bur- (agreements per illegal make proof required only se if their den of showing support necessary “nature and effect plainly of these ele are so factual anticompetitive study HBJ sum that elaborate when BRG and moved for ments industry establish their v. needed to judgment. Corp. See Celotex Ca mary illegality”). trett, (1986). L.Ed.2d appellants The contend that the district in denying court erred their motion that The district court observed where a partial summary judgment upon based the- complained of defendant’s acts conduct per liability ories of se under section recognized judicially categories, fit certain appellants argue Act. The Sherman need not establish agreement that the existence of an be- actually conduct had an anti- defendants’ providing tween and BRG HBJ for the effect, competitive nor establish the rele- existing withdrawal of from an mar- markets. vant ket its refusal to bid for customers in Thus, per the defendant is se liable for exchange (Georgia), that market for the plaintiff. damages suffered The not that BRG sell other mar- designated is that the conduct is rationale markets, kets or bid for customers in other reliably anti-competitive inherently so illegal per constitutes se market allocation pre- anti-competitive may effects be that rigging. appellants argue bid sumed. erroneously district court held this illegal per not to constitute a se Analysis B. Act Sherman § agreement. market or customer allocation 1. Per Se Violation appellants argue agree- further that an categories of concerted ac Certain competitors ment to eliminate tion section 1 of Sherman which violate price competition preclude future com- illegal. per Act held to be se have been petition through exchange of mutual only con appropriate Per rulеs are se compete, coupled covenants not with a manifestly anti-competitive, duct provision profits, per share constitutes is, always conduct that would almost illegal price fixing. se competition and decrease tend to restrict appellants argue further Corpo Business Electronics output. See holding that BRG’s and Sharp Corp., 485 Electronics ration HBJ’s conduct does constitute 99 L.Ed.2d 108 S.Ct. U.S. illegal price fixing neither BRG because — denied, U.S. -, cert. agreed upon nor each would (1988). 1727, 100 L.Ed.2d 192 also See charge to for its is errone- continue Dentists, v. Indiana Federation FTC According appellants, BRG’s ous. 447, 458-59, 2009, 106 2017- 476 S.Ct. U.S. precisely the kind of com- conduct HBJ’s 18, (1986) (the L.Ed.2d 445 Court has 90 per rule is intend- se bination which per analysis se “been slow ... extend apply. ed to imposed in the context of busi restraints that the district BRG and contend im relationships the economic ness where summary properly granted judgment court practices immediately is not pact of certain appellants’ failure to because of obvious.”); Regents NCAA v. Board of significant probative evidence indi- present 85, Oklahoma, U.S. University 468 laws. cating a of the antitrust violation 103-04, 2948, 2961, 82 L.Ed.2d 70 104 S.Ct. BRG and HBJ assert (“Per sur when se rules invoked relationship at the supplier-retailer vertical rounding make the likeli circumstances agreement; first license had of the time anti-competitive great conduct so hood agreement; and have a second executed unjustified further examina as to render they were free to submitted affidavits conduct.”); challenged and Na tion of the each other. compete with Engineers Society tional of Professional 692, to denominate States, 679, appellants seek 98 435 U.S. United dealings (1978) agreements between 55 L.Ed.2d 637 S.Ct. 1424 arrangements type Thus, as of the which and HBJ. the district court found

per liability recognized, only se has been name market ever claimed both de ly, price fixing, Socony- United States v. fendants was Georgia, the state of Co., 150, up Vacuum 310 U.S. was not divided Oil under either the 1980 or 811, (1940); agreements. L.Ed. market and cus allocation, tomer Topco United States v. The district court ruled that BRG's and Inc., 596, Associates, 405 U.S. 92 S.Ct. HBJ’s conduct did not boycott constitute a 1126, (1972); boycott 31 L.Ed.2d 515 and or concerted refusal to deal. See Zenith deal, Origi concerted refusal Fashion Corp. Research, Radio v. Hazeltine nators’ America v. Guild Federal 100, 1562, 395 U.S. 89 S.Ct. 23 L.Ed.2d 129 Commission, 457, Trade U.S. 61 S.Ct. (1969). The district rejected ap- (1941); 85 L.Ed. 949 and unreasonable pellants’ attempt per to invoke the se theo- joint venture, Publishing Citizens Co. v. ry based on the fact agreement States, United 394 U.S. 89 S.Ct. prohibited hiring BRG from certain law (1969). 22 L.Ed.2d 148 lecturers appellants because the had no standing to argument. raise that The district court found that arrangement Finally, the district court HBJ did found that the not conduct any recognized fit within described category of record differed recognized from that per liability. se The district court Citizens further Publish- Co., ing 394 U.S. agreement found that the 1982 was not a as an joint unreasonable price fixing classic form venture per where com which was two illegal. se petitors agreed district court found price they what would pool BRG and HBJ did capital, charge products. for their On the con HBJ had no risk of loss on the trary, the district court found that neither Thus, review course. arrangement cre- agreement the 1980 nor the explicitly venture, ated joint was not a and the Citi- addressed price, the factor of and that HBJ zens Publishing theory inapplicable. any right has never had under agree either ment to be consulted about the The district appellants’ court denied the BRG course. Socony-Vacuum See Oil partial motion summary judgment and Co. 310 U.S. 60 S.Ct. 811. The district granted summary judgment to the defen- although also found that agree dants on through Counts II IV. The dis- competitors ment of “pool” two analyses trict court’s of these issues are products may upward exert an influence of thorough legally Accordingly, sound. price, such an inherently is not we affirm the district ruling anti-competitive. appellants failed to per establish se liability under section 1 of the Sherman

The district court found that neither Act. agreement between BRG and HBJ consti

tuted the kind of market or customer allo 2. The Rule of Reason Violation cation recog which has been nized as a basis per liability. se See theory Because no liability Topco, applied S.Ct. 1126. The appellants’ to the claims under sec district court found that this Act, was not a tion 1 appellants of the Sherman the situation competitors where up divided a may only prevail by demonstrating that business, market in doing which both were arrangement BRG’s and HBJ’s had an anti- taking portion each of the competitive market. The effect in geographic relevant district court also found that product BRG had and markets. Whether the action never done business outside the state of violates section 1 of the Sherman Act is Georgia, nothing that in sug the record through case-by-case determined applica gested so, that it ever intended do to and tion of the rule of reason when the action is nationwide, that HBJ has done business illegal; weighs not the fact-finder all but withdrew from the market fol deciding circumstances of a case in lowing agreement the 1980 between practice BRG whether a restrictive should be record from in the exists tive evidence re- unreasonable an imposing as prohibited reasonably infer that an could jury Electron- which Business competition. on straint between BRG agreement existed unwritten ics, 108 S.Ct. other against each compete not HBJ to and appellants the required court district The BRG and courses. selling bar review probative significant submit to rely- appellants if are argue the that HBJ BRG and agreement between the 1980 that the agreement, then this unwritten ing on anti-com- had an HBJ, as modified no ends because analysis reason rule of geo- and product in relevant effect petitive to be evaluated. exists agreement of anti-com- As evidence graphic markets. the offered effect, appellants the petitive upon agreement possible The second price went the itself, fact that the contract was may relied appellants the which contract, the signed parties up after the HBJ and agreement license the Gelderen, a Van Leon of affidavit and their bar took appellants BRG when graduate. Law of School Georgia State HBJ agreement, In this courses. review of affidavit on an relied appellants The to materials bar review supply promised February Henry, filed William Dr. The district basis. on a nonexclusive BRG product relevant the issues to address agreement did the license found that court market. geographic relevant and market provisions. anti-competitive not contain mar- the relevant that stated This affidavit ap- that contend Thus, and BRG courses “comprehensive bar ket the existence prove failure pellants’ take the students prepare that product and geographic appropriate relevant that and examination” HBJ’s effects in which “Athens, Georgia, was be could evaluated lawof term academic during winter claim. rule reason their defeated school.” of rea- rule appellants’ analyzing and BRG’s that contend appellants The examined claim, court the district son sub- and modification contract HBJ’s significant offered appellants whether con- noncompetitive pricing sequent HBJ’s that BRG’s probative evidence continuing horizontal of a are evidence duct had an in 1982 as modified that argue appellants The conspiracy.. geo- relevant anti-competitive effect re- disputed genuinely facts material district The markets. graphic complaint II of I Counts garding possibility anti-com- that court found allocation). They fixing and market (price be- in the contract existed effect petitive denial district contest HBJ, was amended tween on judgment summary partial motion nonexclu- license BRG’s to make appellants counts. those liability for not the covenants to delete sive erroneously the district argue be effect cannot that such compete, but temporal tests structural applied itself. the contract presumed for sum- motion HBJ’s BRG’s and granting price although the found that section district appellants’ on mary judgment after up significantly fur- went appellants of BRG’s theory. The of reason rule did this fact signing, was suffi- contract the 1980 their evidence contend ther ef- anti-competitive conflicting infer- demonstrate reasonably suffice to create cient increase fect, especially when the unreasonableness regarding ences withdrawal of West’s conduct. the heels HBJ’s on came BRG’s materials. multi-state free appel- contend assume safe as it was court found section any basis show failed lants addi- these reflected increase that argue that They reason violation. 1 rule of that to assume it was costs as tional suf- analysis reason appellants’ rule gouge merely to prices higher exactly specify failure fers that found The district customer. unreasonable. was which add did not Gelderen of Van affidavit proba- significant no that HBJ contend and significant on the issue of anti- appellants contend that did not competitive prove have to effect. that BRG's and HBJ’s combi- anti-competitive nation had an effect in a Finding Henry’s affidavit, in Dr. flaws specifically product geographic defined and the district court determined that it was market, particular nor that a con- written expert product not a substitute market present anti-competitive tract has a effect analysis, anti-competitive and that the ef- in order to establish the section 2 violation. fect of the contract was appropriately more appellants argue that the structural measured in a statewide market. The dis- proof standards for of unreasonableness “Athens, trict court also ruled that Geor- contained both the district court’s Janu- gia, during the winter academic term of ary July 9 and wrong 8 orders are for three law school” was geographic not a relevant (1) proof specific reasons: product market. The district court found that no geographic and required markets is in a significant probative evidence established horizontal rule of prove reason case to anti- arrangement modified contractual effect; competitive (2) the evidence of an present had a anti-competitive effect in a anti-competitive purpose alone, even with- product geographic relevant and market. effects, anti-competitive out prove would Accordingly, granted the court BRG’s and unreasonableness; and evidence that HBJ’s motion for summary judgment on prices were intended to “skyrock- and did I. In reviewing Count the district court et,” reduced, output was and consumer analysis, we affirm. choice eliminated is prove sufficient to rule of reason violation. C. Sherman Analysis Act 2§ Because the district court found that the addressing V, Count conspiracy ‍​​​‌​​​​​​‌​​​​​​‌​‌​​​​​​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌‌​‍appellants presented significant proba- VI, monopolize Georgia; Count at tive evidence that the modified contractual tempt monopolize Georgia; and Count arrangement between and HBJ had a VII, monopoly in Georgia, the district court present anti-competitive effect in a relevant appellants’ examined the evidence of rele product geographic market, appel- product geographic vant markets and lants have no foundation for a section 2 monopoly power dangerous probability so, claim. appellants argue Even monopoly. This circuit has held that 800-percent evidence of an increase “proof product geographic relevant without loss of sales entry, or new two market is absolutely appel essential surveys unopposed expert opin- lants’ Section 2 claims.” showing American ion Key that defendants control at Corp. Corp, 93-percent v. Cole Nat. least market, F.2d relevant (11th Cir.1985). Further, output and a reduction in prove an and elimination (Count attempt monopolize VI), consumer choice prove are sufficient to an anti anti-competitive plaintiff effect prove trust must a relevant the existence of product “methods, ap- market. The practices means and pellants argue that the would, district court trans- successful, accomplish if monopoli formed their rule of reason claim into a zation, which, though short, falling section structural claim and then arbi- approach nevertheless so close as to create it_” trarily acknowledge refused to or consider dangerous probability of Ameri- their structural evidence. States, can Tobacco Co. v. United 781, 785, 814-15, 1125, 1127, 66 S.Ct. 1141- appellants argue further (1946). prove L.Ed. 1575 To a claim conceptions district court’s mar (Count VII), monopoly plain an antitrust definition, ket geogrаphic market defini prove monopoly power tiff must in the tion, anti-competitive effect are con market, is, power relevant to con trary precedent. They assert that the prices competition. trol or exclude United complaint court misread the in reference to Corp., States v. Grinnell charge allocation, U.S. of statewide market ignored 16 L.Ed.2d 778 deposition, survey, (1966). BRG’s and HBJ’s enrollment contracts product of the relevant elements loss structural increasing price without demonstrating fur- and HBJ geographic market. BRG or statewide, gave insufficient and sales of of offenses that the section appellants ther contend affidavits. other weight to monopoliza- product attempt, and actual conspiracy, HBJ’s and that BRG’s argue also consumers, respect its proof with by require the same unique tion all as perceived is theoretical than of the economic higher attributes significantly to the structural is prop alleged alternatives, the distinctive are it has in the violations and market which They assert BRG and prevail, vendors. To place. discreet and to have taken erties iden product market show: every appellants criteria for must argue the that HBJ that United Shoe economically in Brown v. (1) cited of some existence tification the 1502, 8 L.Ed. 294, 82 S.Ct. States, market, by product defined meaningful in the record by characteristics, (2) is satisfied and the 2d 510 geographic and contend Thus, appellants the power case. the monopoly this within of existence secure, to actions HBJ took argue and that HBJ BRG and identified market. BRG in monopoly power to secure or intended on both accounts. appellants failed that the Act. the Sherman 2 of of section violation failed to appellants establish Because the evidence of con- probative any significant argue that the authorities HBJ BRG and con- and HBJ agreement, BRG spiracy or do to have little appellants by the cited fail. must section that all theories tend proof quality of kind, quantum, the with signifi- Also, that HBJ contend BRG and an show that offer to must plaintiff that a produced has been probative evidence cant HBJ and BRG place in reasonably infer jury could from which BRG of reason. the rule in 1985 violated parties in 1985 HBJ BRG that and are appellants the argue that and HBJ control over give agreement to a re- suggesting that in wrong simply Georgia market. illegal does not straint which of the context within evaluated need to be proof of the that court held The district market. geographic and product a defined market is product geographic relevant fail- appellants’ that contend BRG and dis- claims. The to all section essential a relevant of the existence ure to establish Henry’s Dr. affidavit found trict court de- thus geographic product prop- justify identify insufficient be claims. section 2 feats their The dis- market. geographic product or er entirety of found that trict court also appellants argue identify proper effort appellants’ produce sufficient failed to con- markets was product theories on their summary judgment avoid Hen- Dr. William affidavit of in the alleged tained monopolization of respect to with HBJ’s to BRG’s opposition ry, filed contend and HBJ Georgia markets. dis- summary judgment.6 motion for to establish failed appellants depositions of the Upon review states: 6. The affidavit deposition of Ronald named sworn, being duly de- Henry, William Dr. nearly all apparent students Pelletier it says: j. poses and Georgia take University School Law at College of Finance course. Because I Professor bar review am defendants’ Georgia State en- taking at also Administratiоn Business University students degree economics school a Ph.D. at the law students as full-time rolled University, expect Athens, State Carolina not realistic from North it is above-captioned mat- offered a course give affidavit in [sic] take this could reasonable Further, Pel- Ronald area. ter. Athens outside the accounted that defendants letier testified plain- depositions I reviewed the of bar percent the sales eighty least action, deposition of Ronald this tiffs in Pelletier, area. in the review courses Athens produced contracts the enrollment defendants, deoposition of Pro- comprehensive bar I conclude the case taken in written David Kamershen lectures includes fessor course which Georgia, Athens, C.A. prepare et al. BRG Edwards material offered exhibits together with the bar examination No. 82-13-Ath take the students to Ath- and that thereto. is the relevant trict Henry’s court held Dr. affidavit insuf- area.” The district court found that these ficient to define the product relevant mar- assertions were “clearly insufficient.” ket. Particularly, because Dr. Henry chose product define the in such a CONCLUSION and seemingly narrow manner, artificial the district court found that the lack of Because of the district thorough, court's justification for his conclusions rendered it complete, and correct analysis antitrust re- valueless. The district court held the rele- garding the appellants’ claims and BRG’s vant geographic market geo- be the HBJ’s and motions for summary judgment, graphic area of competition” “effective for we affirm. product in question. American Key Corp., 762 F.2d at 1581. AFFIRMED.

Although the appellants’ failure to prop- erly identify product relevant geo- CLARK, Judge, Circuit dissenting: graphic required markets the district court The majority concludes that the district grant summary judgment to BRG and court’s analysis of procedural and sub- HBJ on Counts through VII, V the district stantive antitrust issues in this case is court found that Count (attempt VI to mo- “thorough, complete, and correct.” I dis- nopolize Georgia) in and Count (monop- VII sent.1 oly in Georgia) would have failed for addi- tional reasons. Count VI would have failed under the American Tobacco requirement, 1. Facts and Count VII would have failed under the The facts in this appeal are relatively requirement. Grinnell supra p. See simple. From 1976 to the present, defen- The district court found that the appel- dants BRG of (BRG) and its owner only lants’ effort to show evidence of these Ronald Pelletier have comprehen- offered a requirements was conclusory state- sive bar review course in Georgia.2 ments appellants they had “no both reviews other choice” than the multistate and BRG course when Georgia portions took the Georgia it in January through bar exam February, Athens, through 1984 in written and the materials in statement Dr. live and

Henry's videotaped first affidavit that “[f]urther, lectures attorneys Ron- and law ald professors. Pelletier testified that During 1979, defendants ac- utiliz- was counted eighty percent ing least of the free multistate materials that West sales of bar review courses in the Athens Publishing Company was test marketing. ens geographic pur- relevant market for record plaintiffs’ reflects that the counsel was poses of analysis. ecomonic qualified I further con- experienced, prepared this clude that defendants have and have had the inception case from its competent in a power prices market, to control professional plaintiffs’ manner. alleged that defendants therefore have monopoly lack of financial simply commitment was not a power in the relevant factor presentation their trial counsels' markets. their case. I believe that the district court’s day May, This the 12th misperceptions regarding the evidence neces- Henry sary William /s/ R. establish the asserted antitrust viola- tions, Henry infra, Dr. William discussed resulted in the court erro- neously denying class certification based on the 1. I concur in II majority opinion Part of the plaintiffs’ purported "lack of financial commit- (upholding denial Rule I ment.” would therefore reverse the district sanctions). disagree, however, I major- with the court on this issue. ity’s conclusion in I Part that the district court’s denial of class certification was not an abuse of 2. Prior to predecessor, BRG’s defendant premise discretion. The of the district court's Group, Bar Review offered the bar review order was "may lack financial Georgia. course in During Pelletier commitment adequate investiga- sufficient corporations: formed two BRG of tion preparation and trial light of the (BRG) court's and BRG purposes Publications. For ruling [granting summary judgment on all opinion, this references to the defendant BRG except counts the rule of reason claim].” includes Pelletier as well. following sustaining 1979 losses Legal and Jovanovich Brace Harcourt operated attorney who had com- (HBJ) sells the death Publications Professional Georgia. forty No review courses courses HBJ bar prehensive however, decision, of bar largest provider of this documentation is the states in the he asserts was un- services also and lecture Conviser materials exists. review its own uses of its free produces HBJ withdrawal country.3 of West’s aware offering began HBJ at the time materials. BRG from multistate materials multistate in 1976. basis on limited Georgia review withdraw from to purportedly decided HBJ 1977-79, competed BRG period During Georgia. com- of provision inHBJ directly with 1980, got and Pelletier early Conviser Georgia.4 in courses review bar prehensive and HBJ during a time when BRG together pro- two dominant HBJ were BRG and in courses selling review bar still were Georgia in at review courses of bar viders months, they en- Georgia.5 a few Within this time. 22, April agreement on a written tered 1979, conducted an BRG in Beginning gave BRG (“1980 agreement”) which against advertising campaign intensive HBJ’s to market license exclusive rep- false alleges included HBJ HBJ which the ex- Georgia and in materials multistate Vigor- course. the HBJ about resentations tradename use the Bar/Bri right clusive BRG between competition price ous contained agreement also Georgia. in The their of driving the in HBJ resulted HBJ not required provision which range of about into the courses bar review Georgia and that BRG in with compete rivalry per student. $150 of HBJ outside compete with not BRG vitriolic. rancorous HBJ was re- agreement, HBJ Georgia.6 Under in engaging il- the other Each accused enrolled 40% per student $100 ceives Convis- According to Richard legal tactics. after their Soon over $350. all revenues Legal and Professional er, HBJ’s head in HBJ announced agreement, BRG $45,- a loss Publications, incurred HBJ because advertising literature their $120,000 the 1979 in revenues 000 on Georgia “combination, stu- Bar/Bri during point some At war. essence, ‘best will, dents selling begin its Publishing decided West ” worlds.’ both bookstores; West materials multistate for the charge agree- BRG following decided therefore Immediately materials. free multistate increased formerly course ment, price of BRG’s Law stu- $400. to over about from $150 unilaterally HBJ asserts Conviser course and in the BRG who enrolled dents Georgia mar- to withdraw decided prices paid the increased after date unspecified some future ket at li-a discussed Conviser Chicago he and where courses bar review originally its retailed 3. HBJ buy-out. Id. Pelletier arrangement censing or modified has since directly to but consumers meeting was a third where to Atlanta returned licensees strategy about retailing to include arrange- licensing possible discuss right held or non-exclusive the exclusive who have Id. ment. does not HBJ bar review courses. provide HBJ compe- retail concurrently at its course offer provisions two agreement contained licensees. any of these 6.The with tition Compete” and Not to “Covenant termed a one Record, Ventures.” “Other other entitled in three administered review courses 4. required E10, The former Macon, E15. at Athens, Tab Atlanta, where law Vol. cities, "own, manage, indirectly directly or HBJ were located. schools control, invest, participate in or join, operate, officer, partner, employee, as an be connected arranged one of meeting was first 5. Their director, or otherwise independent contractor Chicago had con- who attorneys in ser’s Convi partici- operating or which business with flew At- by phone. Conviser Pelletier tacted for the of candidates preparation pating in the & the Coach lanta, at Georgia Pelletier and met Id. E10. Georgia Bar Examination." State passing” "in discussed where Six restaurant against compete not to required BRG latter purchasing possibility of Bar/Bri operated currently Record, in states operations. Georgia buying HBJ's Georgia. at E15. Id. outside state flew to later Pelletier at 10-11. Tab Vol. during April period 1980 to June market for bar review against BRG, filed an antitrust suit courses. HBJ, Conviser, Pelletier, and others. This The district court held that the 1980 class action resulted a settlement which agreement illegal was not under provided partial class members re- rule; it therefore did not decide whether funds. pending While the lawsuit was in the conspiracy BRG-HBJ continued. The 1982, BRG and HBJ modified their 1980 district court also found that neither the agreement by removing express cove- nor the modified 1982 compete granting nants not to BRG agreement violated the rule of reason.8 right the nonexclusive to use Bar/Bri mate- (“1982 Georgia agreement”). BRG,

rials in II. Standard of Review however, right retained the exclusive to My disagreement with the majority be use the conjunction Bar/Bri tradename in gins adoption with its improper an stan Georgia. with its bar course in dard of summary judgment review this Despite modifications, these HBJ has not action. In its recitation of the law on anti competed with BRG in and has not summary trust judgment, the majority re licensed its multistate materials for use lies on Matsushita Elec. Indust. Co. v. Georgia. other bar review course Corp., 574, Zenith Radio addition, competed BRG has not against (1986), 89 L.Ed.2d preda HBJ outside the market. The tory pricing action. In Matsushita the price of the BRG review course has contin- Court held that in an action based on a ued to increase also. In 1985 the list predatory pricing theory “conduct as con approximately escalated to group A $825. permissible sistent with competition as with of law students who enrolled in the BRG illegal not, conspiracy alone, does standing Athens, Georgia course in from June support an inference of conspir antitrust present 1984 to the initiated this class ac- acy.” Id. at 106 S.Ct. at 1357. The alleging BRG, tion HBJ and Pelletier plaintiff provide must therefore additional engaged in various antitrust violations.7 evidence demonstrating that the defen dant’s conduct was inconsistent with com plaintiffs The law-student in this anti- petition. holding Matsushita’s is founded prove trust action could that BRG and HBJ practical on the difficulties of differentiat violated the antitrust in a laws number ing legitimate illegitimate between First, ways. they could demonstrate that practices (i.e. competitive business pricing agreement the 1980 between versus predatory pricing) plain when the per was a se violation of the antitrust laws tiff’s theory asserted antitrust specula is conspiratorial agreement and that the con- tive. despite tinued the defendants’ 1982 con- Next, tractual if per modifications. se Matsushita is one of Supreme two recent fail, claims they could demonstrate that the Court decisions which have clarified the agreements and modified 1982 applicable standard of review antitrust unreasonable under the rule of summary judgment reason. actions which are They could also establish speculative that BRG and based on economic theories. conspired attempted monopo- to or also Spray-Rite See Monsanto v. Service lize, or in monopolizing, succeeded the Corp., 465 U.S. complaint alleges nationwide; 7. The nine count the defen- ten materials and lecture services (1) engaged price-fixing; dants (9) in: horizontal attempt monopolize an bar review (2) allocations; (3) geographic market concert- written materials and lecture services nation- deal; (4) joint ed refusals to an unreasonable wide. venture; (5) conspiracy monopolize review written materials and lecture services in January granted In its 1987 order (6) Georgia; attempt monopolize an bar re- summary judgment the defendants’ motion for view written materials and lecture services in court, however, permitted on counts 1-9. (7) Georgia; monopolization of bar review writ- to recast counts 1-4 under the rule Georgia; ten materials and lecture services in of reason. (8) conspiracy monopolize bar review writ- example of is a classic fixing ac- HBJ (vertical L.Ed.2d practices blatantly anticompetitive distributor). most brought by terminated tion engage.11 competitors can horizontal presented Monsanto Matsushita Both scholarly debate no credible defining There task the difficult Court horizon- allocation deter- evidentiary standard proper dominant two between price-fixing tal circumstances factual what mining under procom- legitimate industry are firms in an may in- be conspiracy antitrust illegal an Thus, sub- practices. business petitive cir- and other conduct parallel ferred con- presumptions antitrust stantive evidence direct where evidence cumstantial holding Matsushita the Court’s trolled lacking.9 conspiracy to these inapplicable Monsanto Monsanto, how- Both Matsushita pro- agreements whose of horizontal types instant distinguishable from ever, are or non-exis- are minimal competitive virtues a consumer involved case Neither action. tent. horizon- upon well-established based action summary in this of review standard where theories reason rule of se tal in Celo announced is that action judgment writ- explicit establishes direct 317, 106 S.Ct. Catrett, U.S. tex competitors al- two ten v. (1986) and Anderson 265 L.Ed.2d 91 interfering inde- locating markets 242, 106 S.Ct. Inc., 477 U.S. Lobby, Liberty Instead, the anti- setting. pendent (1986). Fed.R. Under 202 91 L.Ed.2d and Monsanto Matsushita trust claims grant sum must 56(c), this pricing Civ.Proc. predatory competitors’ on relied plain if the defendants mary judgment theories, re- price maintenance and vertical to showing sufficient to make “fail tiffs scholars antitrust spectively, essen an element existence of legit- establish ensnaring criticized have judges will case, [they] and on which tial [their] It is therefore practices.10 business imate Celo- proof at trial.” of the burden bear announced the standards whether doubtful at 2552-53. tex, S.Ct. in situ- apply and Monsanto in Matsushita have plaintiffs determining whether action, In where the instant ations, as such view all burden, must we their is met action concerted of evidence direct such from evidence, drawn and inferences be- agreements explicit written manifest to the favorable evidence, light most in the mono- allocating and firms dominant tween infer justifiable all resolve plaintiffs interfering with polizing Anderson, 477 U.S. favor. in their ences 1980 BRG- The setting. independent Economics, Kaserman, 121-128 Antitrust D.& and Mon- in Matsushita concern common The or en may preserve pricing (1985) (predatory summary judg- denial a court’s is that santo create, power); R. hance, cannot but speculative inferences merely on based ment Policy at War A Bork, Paradox: Antitrust penal- deter could ambiguous evidence pred (debunking (1978) most Itself, 144-59 with atory pricing procompetitive con- legitimate and perfectly ize Posner, theories); Antitrust R. is the price-cutting legitimate Because duct. (1976) 184-96 Perspective, Economic An allowing Law: "mistak- competition," "very essence practices de predation limiting (narrowly liability in antitrust to result en inferences” more efficient equally signed exclude laws are antitrust very conduct "the chills been has also price-fixing competitor). Vertical Matsushita, U.S. at designed protect.” See, D. Ka- e.g., & R. Blair critiqued. severely Monsanto). The (citing at 1360 Inte Vertical serman, Economics Law and exacting adopted more therefore Supreme Court (law Control, con 157-61 gration permissible separate evidentiary standards poten despite price maintenance vertical pro- demns practices from business procompetitive Bork, effects); su R. economic tially beneficial ac- practices in antitrust anticompetitive scribed restraints (virtually all vertical facially at 280-98 pra, conduct on business based tions lawful). should be benefit consumers Consequently, both practice. supports either summary judg- use reinvigorated the cases allege a action this 11.Notably, plaintiffs ac- antitrust summarily certain dismiss ment corporations and two conspiracy evidence on circumstantial based tions is unlike situation This respective officers. theories. economic speculative twenty-one involving pricing scheme prеdatory im- found Court Supreme preda- defendants application broad of the Criticism plausible in Matsushita. See, e.g., R. Blair abounds. tory pricing theories 2505, 2513, L.Ed.2d consequences of the defendants’ conspira- (1986); Helicopter Support Systems agreement. torial Hughes Helicopter, 818 F.2d III. Per Se Claims (11th Cir.1987). particular piece One evidence, isolation, may viewed not be analysis district court’s plain- sufficiently probative justify sending per tiffs’ se claims13 contrary to well-es- jury; case to the a review all the evi- tablished antitrust case law. Under bind- however, dence collectively, may justify ing Supreme precedent, Court the 1980 addition, such a result. In may we agreement between HBJ and BRG falls weigh conflicting evidence to resolve dis- within recognized one of two per catego- puted Instead, genuine factual issues. if a ries: market allocation and price-fixing.14 exists, issue of material fact deny must court, we however, misapplied summary judgment. Helicopter Support proper test on both addition, claims. Systems, 818 F.2d (moving at 1532 party there is sufficient evidence of an unlawful has burden of demonstrating the absence continuing conspiracy be- genuine issue of material tween viewing fact the defendants to survive a summa- light ry judgment most favorable to motion. non-moving party; “A deny court must A. HBJ and BRG are Horizontal Com- judgment summary if reasonable minds petitors could differ as to the factual inferences to be from undisputed facts”). drawn matter, As an initial argue HBJ and BRG plaintiffs’ horizontal se theo- thorough A review of the entire record apply ries do not to them because indicates that the produced in a supplier/retailer vertical relationship. sufficient evidence to summary survive They urge further that HBJ’s asserted uni- judgment on their price-fixing, market allo- lateral decision to withdraw from the Geor- cation, reason, rule of and monopolization gia market in early 1980 instantaneously applicable claims under Supreme Court transformed HBJ’s relationship from a hor- precedents. Each of these claims relies izontal to vertical one precluding thus hori- upon well-established economic theories.12 per zontal se arguments, theories. These Further, they support their claims with di- however, simply disingenuous are and mer- rect of concerted (including action itless. explicit an agreement) written that ex- the possibility legitimate cludes indepen- It is firmly established that entities in a addition, dent action. In provid- seemingly have vertical relationship may be ca ed expert substantial analysis pable economic of horizontal if they restraints are which demonstrates the potential adverse economic actual or competitors.15 During plaintiffs’ price-fixing The plainly anticompetitive alloca- study that no elaborate types tion claims are the industry that necessary courts and econo- of an is to establish their long per mists have illegality. condemned as se violations Engi National Soc. of Professional States, 679, 692, Sherman Act. Their rule reason and neers v. United 435 U.S. 98 S.Ct. monopolization 1355, 1365, similarly claims (1978). are founded 55 L.Ed.2d 637 upon widely accepted principles. economic Mississippi Corp., 15. Abadir & Co. v. First 651 appropriate only (5th 13. Per Se rules 1981) are July for conduct F.2d Cir.Unit A 426-27 manifestly anticompetitive is (competitors which and should not allowed to turn an otherwise be surrounding "invoked when by horizontal setting circumstances vertical up a anticompetitive licensing corporation make likelihood impose conduct market alloca great unjustified ‍​​​‌​​​​​​‌​​​​​​‌​‌​​​​​​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌‌​‍see, so agreements); as to e.g., render tion ates, Inc., Topco further exami U.S. v. Associ challenged nation National U.S. conduct." 405 92 S.Ct. Collegiatе (1972) Regents Athletic (cooperative Ass'n v. Board buying L.Ed.2d 515 associa Oklahoma, 85, 103-04, University tion which U.S. allocates territories violates horizon 2948, 2961, (1984). rule); Inc., per Sealy, 82 L.Ed.2d 70 tal se U.S. v. 87 S.Ct. 18 L.Ed.2d 1238 Supreme applied per (characterizing Court has se relationship licensor-licensee as geographic rule to market allocation and hori horizontal substantially where licensees own all price-fixing practices licensor). zontal because such are so stock of Corp., Mississippi v. First Abadir & Co. 1976-1980, and BRG HBJ both period vigorous- HBJ 426. Given that 651 F.2d at compet antagonistic direct, fierce were joined forces with then ly competed and mar Georgia review bar itors meetings Pelletier following between and BRG courses the HBJ ket. Because Conviser, indisputable conclusion brands distinguishable separate and were, continue to BRG and HBJ courses, BRG comprehensive per se horizontal be, engaging capable of en competitors horizontal HBJ were restraints. In ad competition.16 inter-brand gaging in Allocation B. Market always have been and dition, and BRG HBJ competit potential to be at least continue erroneously concluded The district HBJ can stated, Simply ors.17 violation under prove per se they are hori ways theory it both market allocation not have —either reen can that BRG and had show competitors because zontal market in relevant compete some marketplace and have sub-divided ter Be- competed.18 they previously co-conspirators act they are with BRG HBJ did divide cause competition such prevent in concert ing themselves, marketplace between themselves. between no Sherman reasoned that the trial BRG’s Further, HBJ and assertion court, occurred. 1 violation section Georgia mar- from the HBJ’s “withdrawal” legal however, distinc- an erroneous made HBJ’s sta- BRG’s and altered ket somehow “allo- terms “divide” tion competitors potential actual tus as cate.” es- argument would Their disingenuous. demonstrates case law Well-established rule because nullify per sentially or sub-mar of markets that the allocation antitrust could competitors avoid horizontal per se antitrust competitors is kets entering anticompet- into simply liability by Asso Topco States United violation. aspects. vertical agreements that itive ciates, U.S. arrange- an view Instead, court must held (1972), Court Supreme L.Ed.2d than its rather substance ment’s economic competitors agreements between form. competition to minimize territories allocate rule is per se for each rationale se unlawful: an agreement, analysis of examples economic of a se per of the classic One advan- economic potential between analysis agreement of 1 is an of § violation parties mar- motivate level of the might same tages which at the competitors A agreement. per territories of to allocate type particular a structure ket This competition.... if particular case to a to minimize applicable order se rule again time time analysis which has reiterated Court if the economic only “ limitations territorial particular to the applies [horizontal the rule justifies of trade with restraints are naked ... case. liability. Topco, per se aas basis competitors nized Cf. Agreements horizontal 16. not a This is 1126]. S.Ct. "pri [92 U.S. 596 405 competition Eirethe inter-brand that affect up a mar competitors divided where Continental situation law.” mary of antitrust concern busi 36, previously done have both in which U.S. 52 T.V., 433 ket Sylvania, v. GTE Inc. ness, taking portion a market. 2549, 19, each 19, L.Ed.2d 568 53 2558 n. S.Ct. n. 97 the state business outside never done (1977). has suggests nothing the record Georgia, and service, noted so. as [HBJ] to do type it ever intended provide same Both nationwide, but virtually provid- courses, capable of done business are both has review following Georgia market loca- the same ing services withdrew their [HBJ]. BRG and agreement between agreements). (absent 1980 their tions by both Thus, ever claimed only market clearly Georgia, and the state stated that: The district Defendants up under divided was not state [HBJ] agreement between BRG Neither agreements. or 1982 the 1980 either or customer of market the sort constitutes added). 9, (emphasis Order, January 1987 8 recog- been agreement has which allocation 1434 purpose stifling except of competition.” its. BRG and HBJ disavow intent to Such per limitations are se violations of restrain trade and claim that agree-

the Sherman Act. “nothing ment is more than ordinary copyright royalty Id. at 92 (emphasis arrangement” S.Ct. at 1133-34 which added) (citations omitted). See also courts “routinely E. Sul sustained.” The Harrison, livan & J. Understanding Anti district court held there no per was se trust Implications, Economic Its agreement violation because the neither ex- (1988) (“A 4.14 at 111 horizontal § plicitly prices set nor was inherently it anti- division competitors agree is created when competitive.20 compete designated not to market.”). The district court’s analysis plain- in Topco defendants did not divide a price-fixing tiffs’ claim is incomplete in at market in previously had com least important respects. First, two peted; they agreed simply to allocate mar fact agreement that the between the defen- kets. See also Gainesville Utilities v. dants did not explicitly pricing address Co., Light Florida Power & 573 F.2d not express did have the right under (5th Cir.1978) (horizontal 299-300 agreement to be consulted about the violation), per denied, division cert. prices charged for bar U.S. S.Ct. L.Ed.2d courses, does not exclude possibility (1978). Thus, mаrket division is simply a price-fixing Second, violation. the dis- subset of market allocation both of which trict court erred in finding that the reve- per se antitrust violations.19 nue-sharing agreement not inherently was action, In this HBJ and BRG allocated anticompetitive because the record estab- designated markets: BRG received the lishes purpose and effect of the Georgia market while HBJ received the agreement was price to increase the of bar balance of the States. agreed United Each review courses. compete not to in the respective other’s It is market. clear that a price-fixing district court horizontal therefore erred failing does classify require violation this market allocation the defen literally prices. as dants fix Instead, se violation. “[u]nder the Sherman Act a combination formed for C. Price-Fixing Claim the purpose and with the raising, effect of depressing, fixing, pegging, stabilizing also claim that BRG and price of a commodity in HBJ entered interstate or into their 1980 foreign is illegal per commerce se.” primary purpose Unit eliminating ed competition Socony-Vacuum Co., States Oil between themselves in U.S. marketplace. They L.Ed. assert (1940). instance, license fee For revenue-sharing agree- price-fixing re ment between competitors sults agree HBJ is when the mecha- to some non- nism that facilitates pur- the defendants’ restrictions that directly and adverse pose in raising price the ly of bar review the prices affect market goods for their courses and distributing resulting the prof- or services.21 Such indirect methods of 19. To parlance, use the price district court’s of the BRG course. While it is true that HBJ divided by allocating the market agreement the "pool" competitors two to 0% for HBJ and 100% for BRG and the may divided products upward their exert an influence by nаtional allocating 100%for HBJ and price, agreement on such an inherently is not 0% for BRG. anticompetitive, given setting and in a could actually procompetitive. be 20. The district held that: Order, January at'7-8. agreement price is not a classic form fixing competitors agree 21. See, where two e.g., Sales, Target what Catalano Inc. v. price they charge products. will for their On 446 U.S. (1980) (horizontal 64 L.Ed.2d 580 contrary, agreement explicitly neither agreement ad- to terminate the dresses price, practice factor of and giving has [HBJ] squarely credit falls within the any right never had under either per 1980 or against price-fixing); traditional se rule Na agreement 1982 U.S., be consulted Society Eng. about tional v. 435 U.S. of Prof.

1435 given close attention avoided and must be much as as injure consumers raising prices inte efficiency-creating procompetitive, setting. direct, price overt the result accomplished is as gration that methods, the indirect to such contrast In anticompetitive, yet ancil outwardly of an licensing defendants’ combination Corp. Bancard lary, restraint. National has a di- revenue-sharing agreements U.S.A., Inc., (11th VISA, 592 779 F.2d it re- price because on upward effect rect denied, Cir.1986), cert. its price of bar set the quires BRG (1986). L.Ed.2d 301 S.Ct. revenue- before $350 above totally eliminates It sharing begins. also contrast, Here, is in the record devoid BRG with compete incentive HBJ’s agreement any evidence First, little incentive has HBJ Georgia. had ancillary or it HBJ and was BRG resulting with BRG because compete efficiency-creating procompetitive, some prof- HBJ’s reduce competition would price Furthermore, there is evi- no potential. revenue-sharing agreement’s under the its necessary for dence that it was exclusive Second, has the BRG provision. provide BRG to combine resources tradename the Bar/Bri right to usе Georgia particularly a review course using HBJ from precluding Georgia thus years competed for several they had when its own multistate materials own its The use of price war. restric- prior to their of the licens- The combination tradename. agreement fur- in the tive covenants have revenue-sharing provisions ing and that the de- the inference ther buttresses main- stifling competition the effect allocating purpose fendants’ HBJ’s) (and indirectly dom- taining BRG’s competition between was to reduce Georgia. inance in prices raise ultimately to themselves in the second error output.23 reduce justifica- possible to the analysis relates reiterating the 1980 It is worth The dis- conduct. the defendants’ tions for price and in- totally eliminated because correctly noted that trict court competition between HBJ ter-brand procom- agreements some horizontal are and there Georgia market in the agree- horizontal all potential, not petitive or other of scale economies apparent competi- potential among actual ments this anti- savings counterbalance cost per se price on are impact have an tors that sold could have result. competitive joint ven- example, some For violations. such entering without to BRG its materials arrangements cooperative other tures and agreement.24 anticompetitive blatantly agree- because per se violations competitors Instead, principal two necessary to market is price ment on accomplished Georgia market have product.22 sub- through their written challenged determining whether laws antitrust what actions sequent subject to a per se violation practice is injury to prevent: designed to into inquire reason, must rule consumer. almost al- always or practice whether establishes out- and restrict to raise ways tends and HBJ agreement between creation likely to assist the put or instead prece- Court binding Supreme illegal under drawing Rigid line efficiency. of economic "greater product which was rangement (1978) (agreement created L.Ed.2d parts”). of its setting free mar- the sum than that interferes face). illegal forces is on ket States, Publishing v. United Co. See 23. Citizens Collegiate Ass’n v. 22. See, e.g., Athletic National 928-29, 927, 134-36, 22 131, S.Ct. 89 U.S. 394 Oklahoma, University 468 Regents Board of of of agree (1969) (market allocation L.Ed.2d 148 2948, 2960, 85, 101, 70 L.Ed.2d 82 104 S.Ct. U.S. rivalry designed prevent commercial ment competition (horizontal (1984) on restraints conspiracy). fixing price support available); Broad necessary to be if Broadcasting Sys Music, v. Inc. Columbia cast 1563, note 31. 1551, 24. See 1, 21-22, tem, Inc., 99 S.Ct. U.S. 441 infra licensing (horizontal (1979) ar- 1 60 L.Ed.2d 1436 agreement dent. The written has ef- 36, 49, 433 U.S. 53 reducing price fect of competition in Geor- (1978). L.Ed.2d 568 Although the rule of gia and markets into might which BRG reason will require often a careful bal- have otherwise entered absent the agree- ancing of challenged harms, restraint’s agreement ment. The also has no redeem- benefits, alternatives, a court can ing procompetitive Thus, virtues. the trial readily a challenged condemn restraint on court by too narrowly erred construing the summary judgment when the restraint di- against

rule price horizontal fixing and rectly competition limits on or output should have condemned the defendants’ and has no procompetitive justification. P. agreement per se as being illegal.25 Areeda, Law, Antitrust ÍÍ1508, at 403 (1986); NCAA, see also 109, 468 U.S. at IV. Rule of Reason Claim 104 S.Ct. at 2964. Under rule of rea- Although agreement per 1980 is a se son, sliding scale has developed violation, plaintiffs may also show that permits plaintiffs antitrust to demonstrate agreement the 1980 subsequent a lower threshold of anticompetitive level 1982 modifications violate the rule of rea- effect the more egregious the defendants’ son. The district court found that neither challenged practice or A restraint. demon- the 1980 nor the agree- reformulated 1982 stration of anticompetitive effect or market ments violated the rule of reason because power, however, may not be necessary in plaintiffs failed to demonstrate any ac- cases where the challenged restraints are anticompetitive tual effects. The district sufficiently “naked” in the sense that in its findings erred and also failed directly restrain output. apply the proper analysis under the rule of reason. A. The Rule Reason Under Indiana Under reason, the rule of a “factfinder Federation Dentists

weighs all of the circumstances of a case in deciding whether practice a restrictive Under the rule of reason as enunciated in should be prohibited as imposing an unrea FTC v. Indiana Federation Dentists, sonable competition.” restraint on Continental 447, 106 2009, 476 U.S. S.Ct. 90 L.Ed.2d 445 T. Inc. v. Sylvania, V. GTE (1986),26 in this action can 25. Because the district finding (antitrust erred in at F.2d 919 defendants’ continued agreement that the 1980 did not constitute a sharing of professional revenues and and social violation, it did not address whether the permits 1982 affiliations inference of continued con- modified Thus, constituted a spiracy). withdrawal it is an unsettled factual issue from or conspiracy. abandonment of the In conspiratorial whether the objectives manifest Kissel, 601, United v. States 218 U.S. 31 S.Ct. in the 1980 between HBJ and BRG (1910), 54 L.Ed. Supreme 1168 Court despite have continued supposedly ameliora- held conspiracies may antitrust continue in tive modifications made in 1982. beyond time original conspiratorial agree ment until conspiracy’s either objectives are Dentists, Indiana Federation 608-09, abandoned or succeed. Id. at 31 S.Ct. at 106 S.Ct. 90 L.Ed.2d 445 example, For a conspirаcy so group continues stop dentists decided supplying x- long as one or conspirators more rays continue patients’ of their mouths to the insurance payments receive under a collusive contract be company paying the Supreme bill. The Court conspirators cause the continue to realize a cen practice held that this illegal is an horizontal tral objective (i.e. obvious conspiracy agreement that withheld from dental customers profits). illicit Co., Dynalectric United States v. particular service the customers desired. "Ab (11th 859 F.2d Cir.1988); 1563-69 United sent ‍​​​‌​​​​​​‌​​​​​​‌​‌​​​​​​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌‌​‍countervailing some procompetitive vir Aquafredda, States v. (11th 834 as, F.2d tue —such for example, the creation of effi Cir.1987), notn., cert. Agostino denied sub operation ciencies in of a market or —States, U.S. -, United provision goods services, agree such an (1988). L.Ed.2d proof In the absence limiting ment by impeding consumer choice withdrawal, conspirators presumed ‘ordinary give place’ take of the market continue conspiracy in their particularly where cannot be sustained under the Rule of Reason." they continue to share the fruits of their con (citations U.S. at 106 S.Ct. at 2018 spiracy, through in this case revenue-sharing omitted). Additionally, the Court reiterated that provision agreements. in the 1980 and 1982 Dy- specific the FTC's findings absence of regarding nalectric, 1563-69; F.2d Aquafredda, power definition and market does not were agreements of in one violation antitrust an demonstrate rule of reason. the under competitive the that requires first The ways. two agree- the that demonstrate plaintiffs a Anticompetitive imposed HBJ and C. BRG Effects ment in price; or output on restriction “naked" method, plaintiffs the second the Under not have would instance, plaintiffs the this demon- they have because prevail must market show or market relevant a to define effects:27 the detrimental actual strated however, HBJ, would and BRG power. has increased courses review of bar price proeom- countervailing a provide to have cost-based no sufficient dramatically with the liability. Under avoid to virtue non-com- petitive and HBJ’s and explanation not agreement method, if the consumer has reduced second agreement petition can plaintiffs “naked,” the sufficiently output. reduced choice a effects, such as detrimental actual show aof evidence introduced plaintiffs The in- price, increased output or of reduction immediately price increase dramatic power. market into inquiry an of stead agreement. defendants’ the followed the conclusion rejected court district The anticompeti- was an “Naked” price increase is a this that Agreement BRG-HBJ B. agreement.28 defendants’ the of result tive Restraint however, indicates record, the A of review method, BRG- the 1980 first the Under fact re- of material issue genuine that a re- “naked” blatant is a continuing anticom- garding actual it allocated output because on striction sum- precluding thus exists effects petitive sell- from prevented thus markets on the defendants for the judgment mary any course to materials review ing its bar claims.29 reason rule of plaintiffs’ the in than other provider exclusive the along with This market. Increases 1. Price BRG’s, perpetuated provision tradename price the that indicates record dominance The HBJ’s, economic indirectly Georgia has course review market. BRG’s review Georgia bar in the list to a $150 have from not increased did therefore plaintiffs increase This in 1985. of $825 market relevant aof evidence provide consumers obviously detrimental claim. on prevail power market district the yet courses Georgia bar shiftеd Instead, burden the defendants neces- does not increase the that held court procompetitive of some provide be- effect anticompetitive establish sarily agree- to their virtue efficiency-enhancing be- increased may have costs BRG’s cause district to do. they failed ment, which made longer Publishing West cause BRG-HBJ the holding that erred court "present anti- arrangement had contractual law, finding the preclude, as a matter of geographic a relevant competitive effect Id. at trade. unlawfully restrained dentists (em- Order, at 7 July product market." Instead, proof actual at 2018-19. S.Ct. added). phasis out- effects, reduction as a such detrimental inquiry into need for obviate put, can not have case do reason in a rule 29.Plaintiffs 460-61, 2019. Id. at power. market anticompetitive effect present to demonstrate specifically-defined in a anticompetitive ef- they shown have Because existence establish can if to establish fects, plaintiffs would during the purpose anticompetitive effects mar- had defendants or that relevant practices anticompetitive period time power. ket anticompetitive These effect. allegedly in were price increases from can be inferred effects following rea- "it is as Instead, held (and re- HBJ-BRG re- price increase to assume sonable bar review number in the sulting reduction is to as it costs multistate] [additional flected revenue-sharing licensing sold), merely courses provisions, higher prices assume gouge consumer the elimination Order, at 5. July consumers.” withdrawal through HBJ’s choice failed held that also trial Georgia market. modified defendants’ demonstrate free multistate materials available.30 The drawal” or from having BRG pay addi- however, analysis, neglects the anti- production tional costs and salaries. It competitive effects inherent in the defen- may portion be that a large in- BRG’s licensing dants’ fee and revenue-sharing creased may simply “costs” be HBJ’s share provisions contained both the 1980 and of the increased revenues resulting from agreements. price competition. less The defendants failed to offer any evidence to rebut the district court is correct in concluding strong price inference that possibility anticompetitive ef- increases large resulted in part price fect exists and from the increase of defendants’ agreements may BRG’s bar review and their course be attributa- adverse effects on ble, competition in part, to the Georgia cost of multistate mate- bar review mar- rials that BRG must now bear due to kets. West

Publishing’s charge decision to pre- for its viously free materials.31 These increased 2. Bar/Bri Tradename costs, course, are increased revenues for In price increases, addition to BRG’s re- HBJ. agreements, Under their pays tention of the right exclusive to use the per HBJ $100 student enrolled and BRG Bar/Bri Georgia tradename on materials jointly any price share increases agreement under the 1982 effectively pre- Thus, above price any $850. increase im- vents HBJ from competing with BRG or posed on BRG bar review consumers above licensing its multistate any materials to $350 results increased revenues to both potential other providers of bar review instance, HBJ. For for each bar Georgia. fact, courses in In the Bar/Bri review course BRG sells at the 1985 list tradename has displaced the BRG trade- price $825, (40% HBJ receives $190 making name synon- Bar/Bri $475) plus per licensing $100 student ymous as a entity common business in the At the price, fee. list $825 HBJ receives a Georgia marketplace. The defendants’ ar- total per of $290 sold while BRG gument that competing another bar review receives the balance of $535 course. in Georgia could use the Bar/Bri materials The revenue-sharing provision, therefore, under another tradename such as “HBJ minimizes HBJ’s compete incentive with Georgia” compete effectively highly BRG because resulting price competi- speculative. tion would profits reduce HBJ’s under the agreement. Similarly, revenue-sharing D. Summary

provision also minimizes HBJ’s incentive to its license multistate materials other bar sum, plaintiffs have demonstrated review courses in because such agreement that the 1980 and its modifica- compete courses would with BRG and fur- impose tions sufficiently “naked” re- reduce profits. ther HBJ’s straints on output making Thus, disputed it is a factual issue wheth- inquiry elaborate analysis into market un- er the increases necessary. resulted from re- Even if the 1980 competition duced following HBJ’s “with- and its 1982 legally modifications were not 30. The district court concluded Deposition, ”[u]nder albeit not free. Pelletier at 73. Sec- circumstances, it is ond, fair to conclude that the although forego HBJ would income possibility exists, anticompetitive effect but selling its multistate materials to some other bar such presumed effect cannot be from the Georgia, legitimate review course in reasons Order, July contract itself.” at 4. explain why exist to necessary it was for HBJ to only form an rival in Geor- important 31. An factual issue is whether BRG’s gia blatantly anticompetitive that contains li- agreements necessary HBJ's for either’s censing, revenue-sharing, and market First, allocation competitive survival. no evidence exists provisions. plausible explanation A explain why BRG's BRG had use multi- Bar/Bri’s profit by and HBJ's collective state materials right desire much have eliminat- less the exclusive ing rivalry sharing Bar/Bri Other increased tradename. sources reve- instance, of multistate materials Fоr nues that existed. would result BRG's new-found Publishing’s West materials still available dominance in the market. most market, court discounted “naked,” the sufficiently evi- totally uncontested plaintiffs’ of the actual, sustained sufficient demonstrated held that “the court district The dence.36 to sur- competition on effects detrimental identify the effort to Plaintiffs’ entirety of summary judgment. vive geographic markets is product and proper Dr. William Claims of Two the affidavit Section contained V. Sherman in- Henry’s affidavit is Doctor Henry_ the defendants allege that plaintiffs The proper identify justify or a to sufficient attempted to mo- monopolize,32 conspired to Order, geographic market.” product Georgia the monopolized34 nopolize,33 that 9, court held at 12. The January 1987 submarkets) for bar (and relevant market “valueless” Henry’s conclusions were Dr. law students prepare courses in a product market the he defined because court district The Georgia bar. for the manner seemingly artificial “narrow in defendants’ summary judgment granted Id. The justifications.” economic without it held that because counts on these favor Henry’s Dr. conclusion rejected also court identify the properly to failed plaintiffs sub- a relevant Athens, was markets. geographic product and relevant Henry's Dr. stated that court The market. additional to consider refused The area in “that not address analysis did despite claims on these evidence economic offered, but rather product which plain- under the evidence considering such place where to the its limits consideration claim. reason of rule tiffs’ during the is administered Id. year.” school Monopoly Power A. in its include did not The district 2, plaintiff a section Sherman Under expert deposition of analysis the defendants) market demonstrate

must (including Kamerschen David Prof. witness power or substantial monopoly either have of and affidavits depositions exhibits),37 the product relevant in a power market class, and the student of the law members attempt market.35 by Prof. provided and affidavit survey data power economic of degree what evaluate Dr. neglected court also Ponsoldt. relevant exercised the defendants consequence development aas (1) growth or requires monopolize conspiracy to A32. acumen, historic superior product, business deliberately entered action proof of concerted Corp., 384 v. States Grinnell United accomplish accident. specific intent with the into 1703-04, 1698, 570-71, 16 563, S.Ct. 86 U.S. monopoly; and achieving a result of unlawful (1966). 778 act L.Ed.2d overt at least one (2) commission conspir- a conspiracy. Under furtherance power as the defined Monopoly power is attain 35. not have theory, do acy the defendants competition and is exclude price or to obtain control monopoly power would nor market. relevant by to the reference conspiracy been had measured monopoly power if Co.,& de Nemours Pont E.I. du Sullivan, States v. Law United on Handbook L. successful. 1005, 100 U.S. (1977). Antitrust, 351 132-34 is the traditional share Market L.Ed. 1264. monopoly power. Unit market measure dis is an offense monopolization Attempted 33. 563, 571, 86 Corp., U.S. Grinnell (1) v. States a ed requires monopolization which tinct from (90% (1966) 16 L.Ed.2d S.Ct. (2) danger monopolize and specific intent monopoly constitutes market of relevant share Co. Journal Lorain success. probability of ous monopo “substantial share power, 80% over States, U.S. United product relevant of the ly”). The determination important (1951). most L.Ed. (and mar defendant’s geographic markets to mo specific intent of defendants’ evidence however, an exact science share), is not danger ket A anticompetitive cоnduct. nopolize is times, yield may, precision mathematical is measured success probability ous convenience. administrative market possession of substantial defendant’s power. re- evidence submitted The defendants 36. analysis. structure plaintiffs’ market but the 2 of monopoly under section The offense (1) the elements: has two Act Sherman principal deposition was Kamerschen’s power in a relevant monopoly possession first class upon economic mainte acquisition or willful was based. action distinguished from power as of that nance Henry’s second affidavit and the defen- 2. Relevant Product Market marketing dants’ own literature deposi- presented evidence that testimony. tion These additional materials product the relevant comprehen- provide description a vivid sive bar review courses including lectures and geographic market structure issues rel- and written materials that prepare stu- evant to the resolution of the claims in this dents to take bar exam.41 The case. court, however, held plain- tiffs failed to establish a product relevant Geographic 1. Submarkets market. The failing court erred in recognize Athens, Georgia In as a Brown relevant Shoe States, submarket Co. v. United 2 analysis. 294, Sherman section The dis- U.S. 1502, 8 L.Ed.2d 510 correctly trict court notes that (1962), BRG offers the Court stated: its review course on a statewide basis.38 The outer product boundaries of a mar- court, however, rejected district ket are by determined the reasonable plaintiffs’ Athens, contention Georgia that interchangeability of use or the cross- was a despite relevant submarket39 uncon- elasticity of demand product between the expert tested testimony and survey data itself and substitutes for However, it. which indicates that prefer- law student within this market, broad well-defined high ences and transрortation sepa- costs submarkets may which, exist in them- rate Athens the Atlanta and Macon selves, product constitute market for an- addition, markets. survey 1986-87 data titrust purposes. The boundaries of show that approximately of University 90% such a submarket may be determined Georgia year third law students take the examining practical such indicia as indus- during BRG course the winter term when try public recognition of the submark- they are Yet, still enrolled in school.40 et as a separate entity, economic district court discounted all this evidence. products’s peculiar characteristics and Further, the record indicates that BRG uses, unique production facilities, distinct and HBJ combined for at least 80% the customers, prices, distinct sensitivity to prior Athens agreement. to their price changes, specialized vendors. Deposition Pelletier at 130. The district Id. at 82 S.Ct. at 1523-24. The district court confirms this stating fact that analysis is contrary to Brown be- “vast majority” University Georgia plaintiff cause the presented law evidence indi- students who took a bar review course cating (1) that University Athens, conducted in law took either the “Harc- perceived students ourt or the BRG course” in 1979. reasonable alterna- Subse- quent tives to survey comprehensive data of University Georgia BRG review students, course; (2) law year who basically (in constitute third law par- students market, entire Athens ticular winter students) indicates semester year third has over 95% market. consumers, Athens Pon- distinct law student Affidavit, soldt Record Vol. Tab at 3. consumers were insensitive to in- 38. discloses that BRG’s course is 40. Prof. record "[T]he survey Ponsoldt conducted the of all statewide, marketed statewide and is offered at various year third Georgia. students at the University of during year locations both the school survey being indicated it was conducted in following and Order, year.” close of the school pending "context of a federal antitrust case January 1987 at 12. The court how- against certain companies." bar review course ever failed to consider whether is a Record, 2,Vol. Tab 31 at 8. 63 of the 170 third relevant despite evidence year responded. students Id. at 3. suggesting such a conclusion. 41. See, 39. Affidavit, Record, e.g., Henry Supreme Vol. Court in Tab United States v. Grin Corp., nell (1966), L.Ed.2d 778 stated under Sherman may section 2 "there be submarkets that are separate economic entities.” creases because America, STATES large price in- UNITED after even Plaintiff-Appellant, advertising own The defendants’ creases. also statements deposition literature comprehensive perception reflect their TORKINGTON, John prepare students courses Defendant-Appellee. relevant constitute Georgia bar for the market. 88-5319. No. provides evidence This uncontroverted Appeals, Court States United Sher- plaintiffs’ for the support substantial Circuit. Eleventh Thus, 2 claims. section man summary judgment granting erred 7, June plaintiffs’ because defendants re- fact issue of genuine raises violated defendants whether garding section Sherman Conclusion

VI. failed to court conclusion, the district per se plaintiffs’ analyze the

adequately claims. allocation

price-fixing demonstrated have plaintiffs trade restrain conspired to explicit written an entered illegal. It remains per se which was have the defendants whether issue factual agree- conspiratorial this withdrawn failing also erred The trial ment. rule of plaintiffs’ analyze the properly present- plaintiffs claim. reason the defendants evidence sufficient ed directly re- entered re- Georgia bar competition strained dem- have also market. view effects anticompetitive actual onstrated same This agreement. arising from the plaintiffs’ supports

economic reverse I would 2 claims. section Sherman summary ‍​​​‌​​​​​​‌​​​​​​‌​‌​​​​​​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌‌​‍judgment a trial on the district remand issues. foregoing

all

Case Details

Case Name: Jay Palmer v. Brg of Georgia, Inc., a Georgia Corporation, D/B/A Bar/bri

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 29, 1990

Citation: 874 F.2d 1417

Docket Number: 87-8804

Court Abbreviation: 11th Cir.