Landmark Publications

The Sherman Antitrust Act Landmark Publications

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Sherman Antitrust Act. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * Plaintiffs must plead a relevant market to state an antitrust claim under the Sherman Act, unless they assert a per se claim. Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1044-45 (9th Cir. 2008). While plaintiffs need not plead a relevant market with specificity, "[t]here are . . . some legal principles that govern the definition of an antitrust 'relevant market, ' and a complaint may be dismissed under Rule 12(b)(6) if the complaint's 'relevant market' definition is facially unsustainable." Id. at 1045. * * * The relevant market must include both a geographic market and a product market. Big Bear Lodging Ass'n v. Snow Summit, Inc., 182 F.3d 1096, 1104 (9th Cir. 1999). The latter, which is relevant to the present appeal, "must encompass the product at issue as well as all economic substitutes for the product." Newcal Indus., 513 F.3d at 1045. Economic substitutes have a "reasonable interchangeability of use" or sufficient "cross-elasticity of demand" with the relevant product. Id. (quoting Brown Shoe v. United States, 370 U. S. 294, 325, 82 S. Ct. 1502, 8 L. Ed.2d 510 (1962)). Including economic substitutes ensures that the relevant product market encompasses "the group or groups of sellers or producers who have actual or potential ability to deprive each other of significant levels of business." Id. (quoting Thurman Indus., Inc. v. Pay 'N Pak Stores, Inc., 875 F.2d 1369, 1374 (9th Cir. 1989)). * * * Within a general product market, "well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes." Brown Shoe, 370 U. S. at 325, 82 S. Ct. 1502. To plead an antitrust claim based on a submarket, "the plaintiff must be able to show (but need not necessarily establish in the complaint) that the alleged submarket is economically distinct from the general product market." Newcal Indus., 513 F.3d at 1045. "In Brown Shoe, the Supreme Court listed several 'practical indicia' of an economically distinct submarket: 'industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.'" Id. (quoting 370 U. S. at 325, 82 S. Ct. 1502). Hicks v. PGA Tour, Inc., 897 F. 3d 1109 (9th Cir. 2018