All Care Nursing Svs. v. Bethesda , 135 F.3d 740 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 95-4714
_____________________________________
D. C. Docket No. 88-8568-CIV-JCP
ALL CARE NURSING SERVICE, INC., BENSON HEALTH
CARE SERVICES, INC., et. al.,
Plaintiffs-Appellees,
versus
HIGH TECH STAFFING SERVICES, INC.,
Defendant-Appellant.
__________________________________
No. 95-5218
__________________________________
D. C. Docket No. 88-8568-CIV-JCP
ALL CARE NURSING SERVICE, INC.,
Plaintiff-Appellant,
A COMPLETE HEALTH SERVICE, INC., QUALITY
PROFESSIONAL NURSING, INC., et al.,
Plaintiffs-Appellants,
JULIE MONAHAN,
Counter-Defendant-
Appellant,
versus
BETHESDA MEMORIAL HOSPITAL, INC., NME
HOSPITALS, INC., et. al.,
Defendants-Appellees,
HIGH TECH STAFFING SERVICES, INC.,
Defendant-Appellant-
Cross-Appellee.
______________________________________
Appeals from the United States District Court
for the Southern District of Florida
_______________________________________
(February 18, 1998)
Before EDMONDSON and BARKETT, Circuit Judges, and WELLFORD*, Senior Circuit
Judge.
EDMONDSON, Circuit Judge:
Two separate actions (with different plaintiffs) against the
same defendants for alleged antitrust violations have been
consolidated and are treated as one appeal. Plaintiffs appeal a
jury verdict for defendants on antitrust claims. They also
appeal the jury verdict against them on counterclaims for state
and federal RICO violations. Many issues were raised on
appeal. But we conclude that most of the challenges obviously
lack merit, and we do not discuss them in this opinion. We do
discuss a couple of issues in some detail, and we affirm the
district courts’ judgments.
__________________
*Honorable Harry W. Wellford, Senior U.S. Circuit Judge Sixth Circuit, sitting by
designation.
2
Background
Beginning in the mid-1980's the United States experienced
a severe nursing shortage. Southern Florida was hit especially
hard due to its increased demand for nurses in winter months
to accommodate the high influx of people to the area at that
time of year. This shortage, along with other market
considerations, caused an increase in prices for nursing
services and a difficulty in staffing hospitals (and other
facilities) with sufficiently licensed nurses.1
Hospitals use full or part-time hospital nurses, contract
nurses (nurses hired for a specified period of time), travel
nurses (contract nurses hired from different areas of the
country), and temporary nurses (nurses employed by agencies
1
Nurse qualifications fall into at least three different licensing
categories: Registered Nurse (RN), Licensed Practical Nurse
(LPN), and Certified Nursing Assistant (CNA).
3
and hired by hospitals for a shift at a time)2. Temporary nursing
agencies send their nurses to hospitals, nursing homes, clinics,
doctors’ offices, and patients’ homes. They have the choice to
provide services for any facility or person in need of such care.
They are not limited to providing nurses to hospitals.
During the pertinent period, hospitals were faced with
quality concerns, as well as rising prices. No efficient means
existed to share information with other hospitals about agency
nurses. This lack of information resulted in problems with
some agencies, including plaintiff-appellant All Care Nursing
Services, Inc. (“All Care”).3 These problems included “phantom
booking” -- where a hospital requests a specific nurse with
whom it has dealt in the past, only to be sent a different nurse;
2
These temporary nursing agencies are also providers of
travel and contract nurses to hospitals.
3
The problems described formed the basis of the
counterclaim against All Care and Monahan for federal and
state RICO violations.
4
“blind booking” -- where a hospital sets up to receive the
services of a nurse from an agency only to have the agency
cancel at the last minute; fraudulent billing -- billing hospitals
for services of an RN when actually a less qualified LPN or CNA
performed the services; cheating on certification exams; and
altering certification documents.
In response to the problems the South Florida Hospital
Association (“SFHA”) approached hospitals in Palm Beach
County about a potential purchasing arrangement. In 1988,
twelve (12) Palm Beach County hospitals set up an arrangement
whereby they would solicit bids from temporary nursing
agencies and would then select agencies to be preferred
providers of such services, the Preferred Provider Program
(“PPP”). The selection of the preferred agencies was to be
made based upon competence, services provided, quality, and
bid price. Under this joint-buying arrangement all the
participating hospitals agreed to seek first nurses from
5
preferred providers before going to nonpreferred agencies for
nurses on each occasion.
All agencies were invited, either by letter or by
advertisement in the Palm Beach newspaper (Palm Beach
Post), to participate in the bidding. Sixteen (16) agencies
presented bids and eight (8) were selected as preferred.4
In November 1988, the PPP began operation. Each
hospital entered into individual contracts with each of the
preferred agencies. All the agencies selected as preferred
providers were required to agree to things like treating their
nurses as employees by providing workers’ compensation,
4
Some of the appellant agencies participated in the bidding
process, others did not. Following the submission of the initial
bids four (4) agencies were eliminated based on their bid
prices, which in some instances were 50% higher than other
agencies’ bids. The remaining twelve (12) rebid and were
considered using the established criteria. Which agencies
actually resubmitted bids is unclear. But, all of the accepted
agencies bid prices higher than the price ranges suggested by
the SFHA in its invitation to bid. None of the appellants was
selected as preferred providers.
6
paying taxes, and providing necessary insurance. Before the
PPP, agencies had treated their nurses as independent
contractors, not employees; and the higher costs associated
with unprotected workers were borne by the hospitals.5
The preferred agencies did not contract with the hospitals
at the same prices, but instead at the prices that each particular
agency had bid. Agencies were also required to agree in the
contracts not to change their prices for one year -- the length of
each contract -- and, thus, were somewhat tied into their bid
prices. But to allow for shifts due to market changes, each
agency could terminate its contract with a particular hospital
upon 30 days notice (the “escape clause”).
After the creation of the PPP, plaintiffs-appellants filed suit
against the participating hospitals, preferred agencies, and the
5
The hospitals felt the need to place some of the financial
burden on the agencies because after the bidding, agency
services were actually costing more than before the PPP.
These contract provisions were a way to shift some of the cost
back to the agencies.
7
SFHA6 alleging antitrust violations under sections 1 and 2 of the
Sherman Act, 15 U.S.C. §§ 1, 2, and under Florida Statutes §§
542.18 and 542.19. Defendants then filed a counterclaim
against All Care, and its operator Monahan, for violations of
federal and state RICO statutes by billing fraudulently, aiding
cheating on certification exams, and aiding persons to obtain
false certification.7
Awaiting trial, plaintiffs-appellants sought and received a
preliminary injunction, which halted implementation of the PPP.
That preliminary injunction, however, was vacated by this court
because of the district court’s failure to hold the necessary
6
Plaintiffs-appellants include: All Care Nursing Services, Inc.;
A Complete Health Care Services, Inc.; Benson’s Health Care
Services, Inc.; Critical Health Care, Inc.; Quality Professional
Nursing of Florida, Inc.; and P.D.Q. Nurse, Inc.
Defendants-appellees include the SFHA, twelve (12) Palm
Beach County hospitals, and four (4) remaining agency
defendants (four (4) agencies settled with plaintiffs before final
disposition in the district court).
7
Claims of fraud, civil theft, and false representation against
All Care and Monahan were dismissed before trial.
8
evidentiary hearing. All Care Nursing Serv., Inc. v. Bethesda
Memorial Hosp., Inc., 887 F.2d 1535 (11th Cir. 1989). The request
for an injunction was never reinstated.
After a four-week jury trial, a verdict was entered in favor
of defendants on all relevant claims. Plaintiffs filed motions for
new trial, for judgment as a matter of law, and for amendment
of the pleadings to conform with the evidence. All these
motions were denied by the district court; and we now affirm
those denials.8 Plaintiffs-appellants also appeal the antitrust
and RICO counterclaim verdicts against them; but we affirm
those judgments, too.
Discussion
I. Federal and State RICO Claims
8
Also affirmed is the district court’s decision in the bench
trial of Defendant High Tech’s Lanham Act counterclaim.
9
Plaintiffs-appellants All Care and Monahan argue that the
Florida and Federal RICO claims against them are barred by the
economic-loss rule. That rule provides that “parties to a
contract can only seek tort damages if conduct occurs that
establishes a tort distinguishable from or independent of [the]
breach of contract.” Jones v. Childers, 18 F.3d 899, 904 (11th
Cir. 1994) (citations and quotations omitted). The rule is based
upon the idea that “contract principles are more appropriate
than tort principles for resolving economic loss claims.”
Florida Power & Light Co. v. Westinghouse Elec. Corp., 510
So.2d 899, 901 (Fla. 1987).
Neither All Care nor Monahan can use the economic-loss
rule to escape liability under the federal RICO statutes.9 We
Defendants argue that Monahan cannot
9
be afforded the benefit of the economic-loss
rule because she, individually, entered into
10
have already ruled that Florida’s economic-loss rule does not
bar a plaintiff from “bringing a [federal] RICO action where a
breach of contract claim also exists . . . . many RICO cases
no contract with the defendant hospitals:
she lacked privity of contract. All
contracts were between her agency, All
Care, and the hospitals. Because we conclude
that the economic-loss rule does not bar
RICO claims, state or federal, we need not
decide this question. But, the Florida
Supreme Court has held, at least under one
set of facts, that privity is not required
for the economic-loss rule to apply. See
Casa Clara Condominium Ass’n v. Charley
Toppino and Sons, Inc., 620 So.2d 1244 (Fla.
1993); see also Hoseline, Inc. v. U.S.A.
Diversified Products, Inc., 40 F.3d 1198, 1200
(11th Cir. 1994) (where this court applied Casa
Clara to make “meritless” a claim that the
rule does not bar tort claims between
parties who lack contractual privity).
11
involve contract disputes.” Arabian American Oil Co. v.
Scarfone, 939 F.2d 1472, 1478 (11th Cir. 1991).
About the state RICO claims, Florida’s RICO statutes have
consistently been interpreted using federal RICO claims cases.
No reason has been presented to us to justify applying the
economic-loss rule differently to RICO claims made under state
and federal RICO statutes.10 Thus, the economic-loss rule does
not bar these claims.
II. Antitrust Claims
10
Plaintiffs-appellants also challenged the RICO
counterclaims on another ground: that reliance on the alleged
misrepresentations made by All Care and Monahan was not
proved by defendants. Reliance is only an element of a RICO
claim to the extent that a RICO plaintiff must prove he was
injured by reason of the RICO defendant’s deception and fraud.
Pelletier v. Zweifel, 921 F.2d 1465, 1499 (11th Cir. 1991). But, no
argument is made by the plaintiffs-appellants that injury was
inadequately shown. So, lack of reliance does not require
reversal on this claim.
12
Plaintiffs-appellants argue that the formation and operation
of the Palm Beach County PPP is a violation of the antitrust
laws of the Sherman Act and Florida Statutes §§ 542.18 and
542.19,11 prohibiting restraints on trade. The Sherman Act, in
relevant part, sets out these rules:
Section 1: Every contract, combination in the form of
trust or otherwise, or conspiracy, in restraint of trade
or commerce among the several States, or with
foreign nations, is hereby declared to be illegal. . . .
11
Federal and Florida antitrust laws are analyzed under the
same rules and case law. Fla. Stat. § 542.32 (“It is the intent of
the Legislature that, in construing this chapter, due
consideration and great weight be given to the interpretations
of the federal courts relating to comparable federal antitrust
statutes.”); see also St. Petersburg Yacht Charters, Inc. v.
Morgan Yacht, Inc., 457 So.2d 1028, 1032 (Fla. Dist. Ct. App.
1984) (“[T]he Florida legislature has, in effect, adopted as the
law of Florida the body of antitrust law developed by the federal
courts under the Sherman Act.”); Fla. Stat. §§ 542.16 (Florida
antitrust laws complement federal antitrust laws), 542.18
(analogous to § 1 of the Sherman Act). So, for purposes of this
opinion discussion of the law under the Sherman Act is equally
applicable to the plaintiffs-appellants’ state antitrust claims.
13
Section 2: Every person who shall monopolize, or
attempt to monopolize, or combine or conspire . . . to
monopolize . . . shall be deemed guilty of a felony.
15 U.S.C. § 1; 15 U.S.C. § 2.
Despite the expansive language of the statute, the
Supreme Court has interpreted this statute to prohibit only
“unreasonable” restraints on trade. “A restraint may be
violative of the Sherman Act because it is solely a naked
restraint of trade so offensive to competition as to be
unreasonable per se, or because it runs afoul of the more
detailed rule of reason inquiry.” Retina Assocs., P.A. v.
Southern Baptist Hosp. of Florida, Inc., 105 F.3d 1376, 1380 (11th
Cir. 1997).
Some acts have been said to be so facially anticompetitive
that by their very nature they are deemed unreasonable and,
thus, per se violative of antitrust laws. These “practices are ‘so
plainly anticompetitive,’ and so often ‘lack . . . any redeeming
virtue,’ that they are conclusively presumed illegal without
14
further examination under the rule of reason . . . .” Broadcast
Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1,
7-8, 99 S.Ct. 1551, 1556 (1979) (internal citations omitted)
(“BMI”). Price fixing, horizontal market divisions, tying
arrangements, and group boycotts have emerged as practices
that are generally illegal per se. See National Bancard Corp.
(NaBanco) v. Visa U.S.A., Inc., 779 F.2d 592, 598 (11th Cir. 1986)
(citing United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct.
503, 4 L.Ed.2d 505 [1960]); State Oil Co. v. Khan, 118 S.Ct. 275(1997); International Salt Co. v. United States, 332 U.S. 392, 68
S.Ct. 12, 92 L.Ed. 20 (1947); Fashion Originators’ Guild of
America v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941).
“But easy labels do not always supply ready answers.”
BMI, 441 U.S. at 8, 99 S.Ct. at 1556. Since the emergence of
these per se categories, we have stressed that “whether the
ultimate finding is the product of a presumption or actual
market analysis, the essential inquiry remains the same --
15
whether or not the challenged restraint enhances competition.”
National Bancard Corp., 779 F.2d at 598 (citation and quotation
omitted). The Supreme Court, as well, has refused to force
various practices into “pigeonhole[s] and [to invoke] the per se
rule.” FTC v. Indiana Federation of Dentists, 476 U.S. 447, 458,
106 S.Ct. 2009, 2018 (1986).
A “rule of reason” is generally applied to determine what
acts are permissible. Standard Oil Co. of New Jersey v. United
States, 221 U.S. 1, 60 (1911). Thus, a presumption exists that
the circumstances of a case will be looked at in the light of the
rule of reason standard and will not be deemed per se
unreasonable. Business Electronics Corp. v. Sharp Electronics
Corp., 485 U.S. 717, 723, 726 (1988). But, there are no bright
lines. “The decision to apply the per se rule [instead of the rule
of reason] turns on ‘whether the practice facially appears to be
one that would always or almost always tend to restrict
competition and decrease output . . . or instead one designed
16
to ‘increase economic efficiency and render markets more,
rather than less, competitive.’” Northwest Wholesale Stationers,
Inc. v. Pacific Stationery and Printing Co., 472 U.S. 284, 289-90,
105 S.Ct. 2613, 2617 (1985).
In Northwest, the Supreme Court observed that what
activities might fall into a per se category is “far from certain.”
Id. at 294, 105 S.Ct. at 2619. Considerable inquiry into the
market conditions and market power of the defendant is often
necessary before conduct can be presumed to be
anticompetitive. Id. at 296, 105 S.Ct. at 2620-21 (addressing
group boycotts).
Plaintiffs-appellants claim that the PPP’s arrangement is
per se illegal as both price fixing and as a group boycott. Thus,
plaintiffs-appellants have the burden to make a threshold
showing that the PPP falls into one of these forbidden
categories. See Id. at 298, 105 S.Ct. at 2621. In this case,
plaintiffs-appellants allege that, because price bids were a
17
consideration in determining which temporary nurse agencies
would become preferred providers, this conduct falls into the
forbidden category of price fixing. They also claim that the
exclusion of the nonpreferred agencies from the PPP amounts
to a group boycott.
The decision whether the PPP established by defendants-
appellees amounts to either a price fix or a group boycott,
deserving of per se treatment, determines the antitrust issue on
appeal.12
A. Per se Violations
12
If we decide the PPP is deserving of per se treatment the
case ends; plaintiffs-appellants must win. But if we decide that
conduct such as the establishment of the PPP does not rise to
the level of anticompetitiveness necessary to hold it per se
illegal, the rule of reason applies; and we will defer to the
determination of the jury -- that plaintiffs-appellants failed to
establish the relevant market in which to judge the PPP’s
reasonableness.
18
1. Price Fixing
That the PPP has some impact on the prices of obtaining
temporary nurses is undisputed. That price fixing is equally
violative of antitrust laws whether it is done by buyers or sellers
is also undisputed. Mandeville Island Farms, Inc. v. American
Crystal Sugar Co., 68 S.Ct. 996, 1005-06 (1948). And, it is no
excuse that the price “fixed” is reasonable. FTC v. Superior
Court Trial Lawyers Ass’n, 110 S.Ct. 768, 775 (1990). But
whether the per se rule should apply “is not a question simply
of determining whether two or more potential competitors have
literally ‘fixed’ a ‘price.’” BMI, 441 U.S. at 9, 99 S.Ct. at 1556-57.
Plaintiffs-appellants argue that the intent of the PPP was
to stabilize prices and that such intent makes this practice a per
se violation. But anticompetitive effects -- not intent -- is the
focal point of antitrust legislation. The question is not did
defendants intend to fix prices, but instead whether the PPP did
19
so. In defining “price fixing” the Supreme Court wrote in these
terms:
That price-fixing includes more than the mere
establishment of uniform prices is clearly evident . . . .
[P]rices are fixed . . . if the range within which purchases
or sales will be made is agreed upon, if the prices paid or
charged are to be at a certain level or on ascending or
descending scales, if they are to be uniform . . . . They are
fixed because they are agreed upon.
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222-23
(1940). In forming the PPP, the hospitals, among themselves,
never agreed to a uniform price, to an acceptable price range,13
or to a scale for determining price.
The PPP has an impact on price; all preferred agencies
contracting with the hospitals will, to some degree, be tied into
13
That the SFHA -- when it requested bids --
suggested a price range to the
participating agencies does not create an
agreement on the prices they would accept.
As shown by the accepted bids, prices outside
the range were acceptable.
20
a set price for their services. But this point of law must be
remembered: “Not all arrangements among actual or potential
competitors that have an impact on price are per se violations
of the Sherman Act or even unreasonable restraints.” BMI, 441
U.S. at 23, 99 S.Ct. at 1564. And, it cannot be forgotten that
market fluctuations could result in a preferred agency’s
exercise of the escape clause -- allowing that agency to reenter
the market free to charge the prices it chooses. Most
important, this case involves lots of distinct contracts. A
pricing agreement of some kind is necessary in the contracting
for goods and services; and competitive bidding is an
acceptable way to decide with whom the hospitals wish to
contract.
Earlier Supreme Court cases were faced with more direct
price fixing, which led to the per se categorization of such
schemes. In the context of a blatant agreement to fix prices,
21
[i]t makes no difference whether the motives of the
participants are good or evil; whether the price fixing
is accomplished by express contract or by some
more subtle means; whether the participants possess
market control; whether the amount of interstate
commerce affected is large or small; or whether the
effect of the agreement is to raise or to decrease
prices.
United States v. McKesson & Robbins, Inc., 351 U.S. 305, 310
(1956). But we do not have an agreement to fix prices in this
case: no prices were preset for nursing services.
The Supreme Court has recently taken another step away
from per se treatment, particularly in vertical price fixing
arrangements.14 See State Oil Co. v. Khan, 118 S.Ct. 275 (1997).
Vertical price fixing is no longer a per se violation. Id. at 278.
The key to per se treatment is whether the conduct is of
the kind that can only be anticompetitive. But, the PPP,
14
The alleged attempt to fix prices by the hospitals’
agreement with each other would be horizontal -- an agreement
among competitors. The alleged attempt to fix prices by the
hospitals’ agreements with the preferred agencies would be
vertical and is not per se illegal after State Oil Co. v. Kahn.
22
arranged by the SFHA and the Palm Beach County hospitals, is
not inherently an anticompetitive practice. No temporary
nursing agency was precluded from competing to become a
preferred agency. Also, all agencies are still able to provide
nurses to medical facilities other than hospitals and even to
hospitals should the need for nurses not be met by the
preferred agencies. Although the PPP may stabilize prices to
some degree, it is not the kind of “stabilization” that can be
viewed as price fixing, especially when the escape clauses in
the contracts are taken into account. These escape clauses
allow the market and not the SFHA to be the ultimate
decisionmaker for each hospital and each agency on the issues
of price, demand, supply, and terms of dealing.
2. Group Boycotts
23
The same principles apply to a consideration of application
of the per se rule whether the act complained of is labeled price
fixing or a group boycott. “[T]he recent jurisprudence of the
Supreme Court and of the Court of Appeals of this Circuit
cautions against the haphazard expansion of the ‘group boycott
label’ and the concomitant imposition of per se liability.”
Retina Assocs., 105 F.3d at 1381. “Not all concerted refusals to
deal are predominantly anticompetitive.” Northwest, 472 U.S.
at 298, 105 S.Ct. at 2621. In cases of group boycotts where the
per se rule has been applied, “the boycott often cut[s] off
access to a supply, facility, or market necessary to enable the
boycotted firm to compete, . . . and frequently the boycotting
firms possessed a dominant position in the relevant market.”
Id. at 294, 105 S.Ct. at 2619 (emphasis added).
In dealing with group boycott situations, market analysis
has found its way into the determination of whether a given
practice should be per se illegal. No longer is relevant market
24
a factor only after it has been decided that the rule of reason
applies. “Unless the cooperative possesses market power or
exclusive access to an element essential to effective
competition, the conclusion that [the conduct] is virtually
always likely to have an anticompetitive effect is not
warranted.” Northwest, 472 U.S. at 296.
In this case, no refusal to deal has been shown. All
agencies were able to participate in the bidding to become
preferred providers, and generally a hospital will still deal with
any nursing agency when the preferred agencies with which the
hospital has contracted for nursing services fail to meet its
needs. The record shows, in fact, that more than a trifling
portion of hospital nursing business in Palm Beach County
continued to go to nonpreferred agencies after the PPP was in
operation. Also, due to the rise in HMOs, home care, and
similar trends in the medical world, facilities other than
hospitals provide the market, the supply, and the facilities
25
necessary for nonpreferred agencies to compete with each
other and with preferred agencies in the marketplace.
Per se treatment has been given to those practices which
history has shown have only anticompetitive effects.
“[A]nalyzing this case under the per se rubric would remain
inappropriate absent some demonstration that the practice at
issue historically leads to anticompetitive effects in the
market.” Retina Assocs., 105 F.3d at 1381. No history of this
kind seems to exist for health-care preferred-provider programs
materially similar to what we have before us now.
We conclude, based upon undisputed facts, that the
practice of this PPP is not deserving of per se treatment and
was properly evaluated under the rule of reason.
B. Rule of Reason
26
The rule of reason requires “the factfinder [to weigh] all of
the circumstances of the case in deciding whether a restrictive
practice should be prohibited as imposing an unreasonable
restraint on competition.” Continental T.V., Inc. v. GTE Sylvania
Inc., 433 U.S. 36, 49 (1977). The rule of reason should be
applied to practices designed to “increase economic efficiency
or render markets more, rather than less, competitive.” BMI,
441 U.S. at 19-20; see also Northwest, 472 U.S. at 289-90.
“[T]o satisfy the rule of reason, the plaintiff must prove
that the [conduct] had an adverse effect on competition.”
Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1392 (10th Cir. 1992).
But, competition occurs only in a market. Thus, “before we can
reach the larger question of whether [defendants] violated any
of the antitrust laws, we must confront the threshold problem
of defining the relevant market.” Thompson v. Metropolitan
Multi-List, Inc., 934 F.2d 1566, 1572 (11th Cir. 1991).15
15
Because this case is subject to the rule of reason and
27
Interrogatories went to the jury.16 The jury found that
plaintiffs-appellants failed to establish the relevant market.
Because no definable market was proved, plaintiffs could show
no adverse effect on competition. Plaintiffs-appellants try to
debate the required showing of market power. But their
argument is based upon per se treatment of the antitrust claim.
Because we have decided, as did the district court, that the PPP
triggers no per se analysis, relevant market was critical to
plaintiffs-appellants’ claims.
because of the importance of relevant market and market power
in evaluating the reasonableness of a purported restraint, the
district court’s jury instructions and interrogatories directing
that the jurors must find for defendants if plaintiffs failed to
establish the relevant market were proper applications of the
law governing this case.
16
The interrogatories, among other
things, directed the jury to find for the
defendants if the plaintiffs did not
establish the necessary relevant market.
28
The jury found that no relevant market was shown; and we
will reverse the jury’s determination on this factual issue only
if it is clearly erroneous. United States v. E.I. du Pont de
Nemours & Co., 351 U.S. 377, 381, 76 S.Ct. 994, 999 (1956). We
cannot say the finding that no relevant market was established
is clearly erroneous. The failure to establish the relevant
market (either by product or geography) was fatal to plaintiffs-
appellants’ antitrust claims. So, we accept the jury verdict
against them.
AFFIRMED.
29