Stefan R. Underhill, United States District Judge.
This case involves a "turf battle" between two sets of construction organizations. The defendant, New England Regional Council of Carpenters (the
I previously granted summary judgment for the Carpenters, see Conn. Ironworkers Emp'rs Ass'n v. New Eng. Reg'l Council of Carpenters, 157 F.Supp.3d 173, 175 (D. Conn. 2016) ("Ironworkers I"), after I concluded that the Carpenters' conduct was shielded from antitrust scrutiny by both the non-statutory exemption to the antitrust laws and the construction industry proviso contained in Section 8(e) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(e). On appeal by the Ironworkers, the Second Circuit agreed that the Carpenters' actions fell within the construction industry proviso, and affirmed with respect to the unfair labor practices claim. See Conn. Ironworkers Emp'rs Ass'n v. New Eng. Reg'l Council of Carpenters, 869 F.3d 92, 96-97 (2d Cir. 2017) ("Ironworkers II"). The Court concluded, however, that "there are factual disputes that preclude a decision on whether the conduct falls within the non-statutory exemption," and reversed with respect to the Ironworkers' Sherman Act claim. Id. The Court remanded "for further proceedings consistent with this opinion, including for such additional discovery as will permit the District Court to be informed of the relevant history and permit the parties to move for summary judgment or, if necessary, to proceed to trial." Id. at 97.
Following the remand, and before allowing additional discovery, I scheduled a new argument on the undecided issue raised by the Carpenters' previously-briefed motion for summary judgment. After examining the parties' submissions, I conclude that the Ironworkers have failed to provide evidentiary support for the actual adverse effect on competition required to state a prima facie case for violation of the Sherman Act under the rule of reason. Therefore, I again grant the Carpenters' motion for summary judgment.
Summary judgment is appropriate when the record demonstrates that "there
"The trial court's function at this stage is to identify issues to be tried, not decide them," Graham v. Long Island R.R. Co., 230 F.3d 34, 38 (2d Cir. 2000), and so "[o]nly when no reasonable trier of fact could find in favor of the non-moving party should summary judgment be granted." White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir. 2000). Summary judgment therefore is improper "[w]hen reasonable persons, applying the proper legal standards, could differ ... on the basis of the evidence presented." Sologub, 202 F.3d at 178. Nevertheless,
Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.
"[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial," and in such circumstances, there is "no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if it can point to an absence of evidence to support an essential element of nonmoving party's claim). To present a "genuine" issue of material fact and avoid summary judgment, the record must contain contradictory evidence "such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
"In the context of antitrust cases," the Second Circuit has noted that "summary judgment is particularly favored because of the concern that protracted litigation will chill pro-competitive market forces." PepsiCo v. Coca-Cola Co., 315 F.3d 101, 104 (2d Cir. 2002) (per curiam). Thus, "[a]lthough all reasonable inferences will be drawn in favor of the non-movant, those inferences `must be reasonable in light of competing inferences of acceptable conduct.'" Id. at 105 (quoting Top Mkts. v. Quality Mkts., 142 F.3d 90, 95 (2d Cir. 1998)).
The Ironworkers and the Carpenters are both construction organizations that operate throughout New England. The
The Carpenters moved for summary judgment in May 2014, Doc. No. 85, arguing that their actions were "shield[ed] ... from antitrust scrutiny" by "the non-statutory labor exemption and the `construction industry proviso' provided in Section 8(e)" of the NLRA. See Ironworkers I, 157 F.Supp.3d at 175. I granted the Carpenters' motion. In a ruling issued on January 20, 2016, I held that the Carpenters had "established the requisite elements to be afforded the protection of the construction industry proviso" and had also shown that "the subcontracting provisions at issue," as "lawful provisions of a valid CBA, ... [were] protected by the non-statutory labor exemption." Id. at 187. Therefore, I concluded, "the Carpenters [were] not subject to antitrust scrutiny for their attempts to enforce the subcontracting agreements." Id. at 188.
The Ironworkers appealed and the Second Circuit reversed in part. Although the Court agreed that "the construction industry proviso applies to the disputed subcontracting practices," it decided that "disputes of material fact prevent [it] from deciding ... whether the non-statutory exemption applie[d]." Ironworkers II, 869 F.3d at 104. The Court referred to the standard for applying the non-statutory exemption set forth in Local 210, Laborers' International Union of North America v. Labor Relations Division, Associated General Contractors of America, New York State Chapter, 844 F.2d 69 (2d Cir. 1988) ("Local 210"):
Id. at 79-80 (citations, internal quotation marks, and alterations omitted).
With respect of the first prong of the Local 210 test, I had relied on Local 210 and a Supreme Court decision on which it relied, Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) ("Fibreboard"), for the proposition that most "subcontracting clauses are within the scope of the mandatory subjects of collective bargaining." See Ironworkers II, 869 F.3d at 107. Quoting
The Second Circuit deemed my reliance on Local 210 and Fibreboard "misplaced." Ironworkers II, 869 F.3d at 107. Both decisions, the Court determined, were "premised on the fact that the particular subcontracting clauses ... were designed to `preserve work traditionally performed by a union for a particular employer.'" Id. (quoting Local 210, 844 F.2d at 73) (emphasis in Ironworkers II); see also id. ("[T]he `contracting out' of the work previously performed by members of an existing bargaining unit is a subject about which the National Labor Relations Act requires employers and the representative of their employees to bargain collectively.") (quoting Fibreboard, 379 U.S. at 209, 85 S.Ct. 398 (emphasis in Ironworkers II). Those precedents stood only "for the proposition that work preservation — not restrictive subcontracting generally — is a legitimate labor purpose and a mandatory subject of collective bargaining." Id. With respect to the present case, the Second Circuit concluded that "the record [was] insufficient to determine whether or not the[] subcontracting clauses were in fact being used to preserve work ... or whether [they] were used for work expansion." Id. at 108. Because the latter "purpose ... would not fall within the scope of traditionally mandatory subjects of collective bargaining," the Court held that I "erred in finding, as a matter of law, that the disputed subcontracting practices were entitled to the protection of the `non-statutory exemption.'" Id.
The Second Circuit remanded "for further proceedings consistent with [its] opinion, including for such additional discovery as will permit the District Court to be informed of the relevant history and permit the parties to move for summary judgment or, if necessary, to proceed to trial." Id. at 109. On remand, prior to reopening discovery, I elected to address the undecided alternative ground raised by the Carpenters' previously-briefed motion for summary judgment. This ruling addresses the unresolved issues raised by that motion.
Following the Second Circuit's determination that the CBA clauses are not entitled to the non-statutory exemption, the Carpenters' motion for summary judgment presents two further matters for decision. First, what is the proper standard for analysis of the Ironworkers' claims? The Ironworkers insist that the CBA clauses constitute "group boycott[s]" that should be deemed "per se violations of the antitrust laws." Mem. Opp'n Mot. Summ. J., Doc. No. 100, at 40. The Carpenters, conversely, argue that the CBA clauses are "exclusive dealing requirements" that should be "analyzed under the rule of reason." Mem. Supp. Mot. Summ. J., Doc. No. 86, at 32-33. I agree that the CBA clauses — which at worst substitute one group of unionized workers for another — are not "manifestly anticompetitive." See Bus. Elecs. Corp. v. Sharp. Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). Accordingly, per se condemnation is inappropriate, and I analyze the clauses under the rule of reason.
Most arrangements alleged to violate the antitrust laws are analyzed under the so-called rule of reason, a multi-part test through which the factfinder "weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition." See Bus. Elecs. Corp., 485 U.S. at 723, 108 S.Ct. 1515. A few arrangements, however, such as "group boycotts," are considered "unlawful per se." FTC v. Ind. Fed'n of Dentists, 476 U.S. 447, 458, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986). In order to avoid application of the rule of reason — which entails a "burdensome" and "demanding calculus," Am. Steel Erectors v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 815 F.3d 43, 61, 67 (1st Cir. 2016) ("ASE II") — the Ironworkers attempt to obtain the benefit of the per se rule by "forcing the [CBA clauses] into the `boycott' pigeonhole." See Ind. Fed'n of Dentists, 476 U.S. at 458, 106 S.Ct. 2009. The Carpenters respond that the CBA clauses are not a "group boycott," but rather akin to "exclusive dealing requirements" that should be "analyzed under the rule of reason." Mem. Supp. Mot. Summ. J., Doc. No. 86, at 32-33. I agree with the Carpenters.
Although courts often list so-called "`[g]roup boycotts' ... among the classes of economic activity that merit per se invalidation" under the antitrust laws, it is "far from certain" what conduct "fall[s] within the forbidden category." Nw. Wholesale Stationers v. Pac. Stationery & Printing Co., 472 U.S. 284, 294, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985); see also Spectators' Commc'n Network v. Colonial Country Club, 253 F.3d 215, 223 (5th Cir. 2001) (observing that "the distinction between boycotts that are per se illegal and those judged by the rule of reason is often a vexing one"). Broad dicta in older cases notwithstanding, "per se condemnation is not visited on every arrangement that might, as a matter of language, be called a group boycott or concerted refusal to deal." U.S. Healthcare v. Healthsource, Inc., 986 F.2d 589, 593 (1st Cir. 1993). Instead, the Supreme Court has "limit[ed] the per se rule in the boycott context to cases involving horizontal agreements among direct competitors."
The Carpenters argue that this case "obviously [does] not present" a group boycott under recent precedent, see Ind. Fed'n of Dentists, 476 U.S. at 458, 106 S.Ct. 2009, because the challenged agreements were made "between parties at different levels of the market structure." Mem. Supp. Mot. Summ. J., Doc. No. 86, at 32. The Carpenters and the employers "did not compete" with one another; rather, the Carpenters "w[ere] an upstream supplier" of labor for the employers. See MacDermid Printing Sols. v. Cortron Corp., 833 F.3d 172, 185 (2d Cir. 2016). Thus, the Carpenters argue, the agreements between the Carpenters and the employers were "no[t] ... inherently anticompetitive" and should not be subject to per se treatment. See id.
The Ironworkers respond that the Carpenters' CBAs "involve both horizontal and vertical provisions." Suppl. Mem. Opp'n Mot. Summ. J., Doc. No. 116, at 11. As adduced at oral argument, the Ironworkers' theory appears to be that because most of the CBAs were made between the Carpenters and associations of employers, the vertical agreements between the Carpenters and the associations also operate as "horizontal agreements among the construction managers ... [who are] parties to th[e] association[s]." See Mot. Hr'g Tr. (Jan. 24, 2018), Doc. No. 148, at 9. In other words, if the employers collectively agreed with the Carpenters to boycott the Ironworkers, then the employers also "agreed with each other to do it." See id. at 11.
I doubt that a third party's agreement with an association is by itself enough to establish a horizontal agreement among members of the association. "Mere membership in associations is not enough to establish participation in a conspiracy with other members of those associations," Osborn v. Visa Inc., 797 F.3d 1057, 1067 (D.C. Cir. 2015), cert. dismissed as improvidently granted, ___ U.S. ___, 137 S.Ct. 289, 196 L.Ed.2d 396 (2016) (mem.), and "concerted action does not exist every time a trade association member speaks or acts." Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1007 (3d Cir. 1994). In the absence of evidence that "two or more of the association's members have committed themselves to the anti-competitive activity of the ... association," the existence of the association alone does not suffice to infer a horizontal agreement.
I need not dwell on whether the CBAs are better regarded as horizontal, vertical, or both, however, because even were the agreements primarily horizontal, "[t]his case ... cannot be fitted into the category of group boycott cases." Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir. 1978) (en banc). Not all horizontal agreements are per se violations of the antitrust laws. See Premier Elec. Constr. Co. v. Nat'l Elec. Contractors Ass'n, 814 F.2d 358, 370 (7th Cir. 1987) ("Premier"); cf. Bogan, 166 F.3d at 513, 516 ("assum[ing] plaintiffs' view of the Agreement as primarily horizontal, rather than vertical," but nevertheless holding that "[p]laintiffs fail[ed] to establish a threshold case for per se treatment"). Assuming, arguendo, that the Carpenters' CBAs entailed horizontal agreements among members of the associations, the Ironworkers have not even hinted at any "economic incentive" for the employers to boycott them. See Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1090 (6th Cir. 1996). Quite simply, the employers — as purchasers of labor — "would stand nothing to gain financially" by driving the Ironworkers out of the labor supply market. See id.
In order to illustrate that point, consider Premier Electrical Construction Co. v. National Electrical Contractors Ass'n, a case in which an employers' association actually used an agreement with a union to "eliminate a source of competition." 814 F.2d at 368. In Premier, the National Electrical Contractors Association ("NECA") had agreed with the International Brotherhood of Electrical Workers ("IBEW") to create a National Electrical Industry Fund, into which members of the NECA would pay one percent of their gross payroll.
Here, unlike Premier, it is far from obvious how the CBA clauses could have improperly raised costs or fixed-prices. There is no reason for employers — who purchase labor — to want higher labor prices. If (contrary to the evidence in the record) the Carpenters' prices were higher, then the employers who affiliated with them would be underbid by rivals who signed with the Ironworkers. If the quality of the Carpenters' work was lower (as the Ironworkers repeatedly suggest, without evidence),
Indeed, notwithstanding the challenged CBA clauses, counsel for the Ironworkers admitted at the hearing that "sometimes [employers] just skip the Carpenters and bring in Ironworkers to actually do the work."
The Ironworkers, apparently recognizing that the employers' incentive to join the posited boycott is murky at best, strive to bring their case within the rule of Klor's, Inc. v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). In Klor's, a large department store chain, Broadway-Hale, used its "`monopolistic' buying power" to organize a boycott of its much smaller rival, Klor's. Id. at 209, 79 S.Ct. 705. Klor's filed suit under the Sherman Act, alleging that manufacturers and distributors had "conspired among themselves and with Broadway-Hale either not to sell to Klor's or to sell to it only at discriminatory prices and highly unfavorable terms." Id. The Supreme Court held that the defendants had "[p]lainly" engaged in a group boycott. Id. at 212, 79 S.Ct. 705. The Court observed that Klor's "[a]lleged ... a wide combination consisting of manufacturers, distributors and a retailer," which "t[ook] from Klor's its freedom to buy ... in an open competitive market and dr[ove] it out of business as a dealer in the defendants' products," and also "deprive[d] the manufacturers and distributors of their freedom to sell to Klor's." Id. at 213, 79 S.Ct. 705. Thus, the Court concluded that the alleged conduct "clearly ha[d], by its `nature' and `character,' a `monopolistic tendency,'" and was to be regarded as illegal per se. See id. Klor's is admittedly difficult to reconcile with more recent cases, which have "recognized that the scope of per se illegality should be narrow in the context of vertical
In other words, Klor's entailed an instance of a "hub-and-spoke" conspiracy, "in which an entity at one level of the market structure, the `hub,' coordinates an agreement among competitors at a different level, the `spokes.'" Id. at 314. According to the Second Circuit, hub-and-spoke arrangements "consist of both vertical agreements between the hub and each spoke and a horizontal agreement among the spokes `to adhere to the [hub's] terms.'" Id. (quoting VI Areeda & Hovenkamp (3d ed.), supra, at ¶ 1402c). Thus, notwithstanding the "`hub-and-spoke' metaphor," the plaintiff "must also prove the existence of a `rim' to the wheel in the form of an agreement among the horizontal competitors." Id. at 314 n.15. For example, in United States v. Apple, Inc., the Second Circuit held that Apple had "orchestrated a horizontal conspiracy among [publishers] to raise ebook prices" by vertically contracting with each publisher under terms that "were only attractive ... to the extent [the publishers] acted collectively." Id. at 297, 320. Even though the contracts themselves "might well, if challenged, have to be evaluated under the rule of reason," the Second Circuit held that Apple was liable for the entire conspiracy under the per se rule because it used the vertical contracts to "organize[] a horizontal cartel." Id. at 323.
Apple shows why Klor's is inapposite to the present case: simply put, the Ironworkers have not placed a rim on their alleged wheel. Besides stating that the employers are members of associations (which, as noted above, is not enough to show a horizontal agreement), the Ironworkers have not shown or provided a reasonable basis to infer any agreement among the employers to drive the Ironworkers out of the market.
The Ironworkers have failed to introduce "evidence of any horizontal agreement among general contractors or among [labor unions] to foreclose the plaintiffs
An exclusive dealing agreement is "a contract between a [supplier] and a buyer that forbids the buyer from purchasing the contracted [service] from any other seller." XI Phillip E. Areeda & Herbert Hovenkamp, et al., Antitrust Law ¶ 1800, at 3 (2d ed. 2005) ("Areeda & Hovenkamp (2d ed.)"). Unlike a group boycott, an exclusive dealing agreement "is not a per se violation of the antitrust laws." Stop & Shop Supermkt. Co. v. Blue Cross & Blue Shield of R.I., 373 F.3d 57, 62 (1st Cir. 2004) ("Stop & Shop"). Instead, "[e]xclusive dealing arrangements have a significant efficiency potential," were "generally approved" at common law, and "simply do not belong in a classification of practices that are even presumptively condemned without market analysis." XI Areeda & Hovenkamp (2d ed.), supra, ¶ 1820, at 4, 161, 163. As a result, "[e]xclusive dealing contracts are analyzed under the rule of reason."
The Ironworkers insist unpersuasively that the CBA clauses are not exclusive dealing agreements, and propose five criteria for identifying such arrangements. According to the Ironworkers, exclusive dealing agreements consist only of arrangements whereby:
Suppl. Mem. Opp'n Mot. Summ. J., Doc. No. 116, at 10-11.
The first and last of the Ironworkers' proposed criteria are (partially) correct,
Finally, the Ironworkers try to earn per se treatment by invoking a presumption against superfluity. Cf., e.g., Kawashima v. Holder, 565 U.S. 478, 486, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012) (discussing presumption against superfluities in statutory interpretation). The reason that the Supreme Court developed the non-statutory labor exemption, they argue, "is because it was so obvious that any multi-employer bargaining association violates the antitrust laws." See Mot. Hr'g Tr. (Jan. 24, 2018), Doc. No. 148, at 12. Were labor agreements analyzed under the rule of reason, the Ironworkers claim that the non-statutory exemption would be unnecessary. Therefore, the Ironworkers assert, the existence of the non-statutory exemption means that all non-exempt agreements should be regarded as per se violations of the antitrust laws. That theory is flatly wrong.
The Second Circuit has expressly stated that "the failure of [a] defendant['s] claim for complete antitrust immunity does not mean that plaintiffs are entitled to prevail." Jacobi v. Bache & Co., 520 F.2d 1231, 1237 (2d Cir. 1975) (Friendly, J.). The Third Circuit, too, has observed that "[a] finding that particular union conduct ... is non-exempt ... should not drive a court inexorably to the conclusion that the union has violated the antitrust laws." Larry V. Muko, Inc. v. Sw. Pa. Bldg. & Constr. Trades Council, 670 F.2d 421, 426 (3d Cir. 1982) ("Muko II"). Precisely because "the rule of reason provides the `breathing space' necessary" for the labor laws to work, see Jacobi, 520 F.2d at 1239, courts "caution against mechanical or imprudent application of the per se rule in the labor context." Muko II, 670 F.2d at 426.
In fact, when the Second Circuit has analyzed non-exempt labor conduct under the antitrust laws, it has applied the rule of reason as a matter of course. See Berman Enters. v. Local 333, United Marine Div., Int'l Longshoremen's Ass'n, 644 F.2d 930, 936-37 (2d Cir. 1981); see also Commerce Tankers Corp. v. Nat'l Maritime Union of Am., AFL-CIO, 553 F.2d 793, 802 (2d Cir. 1977) ("[E]ven if the `nonstatutory' exemption does not apply, there is at least a substantial question whether a per se approach under the antitrust laws is applicable in the case of a non-exempt labor activity."); id. at 802 n.8 (citing with approval Professor Handler's conclusion that "the [Supreme] Court intended that there be a full-scale rule of reason inquiry in every instance in which a non-exempt activity is claimed to be in violation of antitrust") (quoting Handler, Labor and Antitrust: A Bit of History, 40 Antitrust L.J. 233, 239-40 (1971)); cf. Jacobi, 520 F.2d at
Although the Third Circuit — which has addressed the question in greater detail — has left open the possibility of applying the per se rule in the labor contest "where appropriate," that court also has held that "[i]n most cases the rule of reason will supply the measure of illegality." Muko II, 670 F.2d at 427-28. Under the Third Circuit's test, if "union activity falls outside the protection of the labor exemption," then the "court must apply traditional antitrust principles in determining whether the activity in question violates the antitrust laws." Id. at 427. Even assuming, arguendo, that the Second Circuit would follow the Third Circuit's standard, I already have determined that per se condemnation would not be warranted under "traditional antitrust principles." Id. Accordingly, the per se rule does not apply.
In antitrust cases, "there is a presumption in favor of [the] rule-of-reason standard," and any "departure from that standard must be justified by demonstrable economic effect." See Bus. Elecs. Corp., 485 U.S. at 726, 108 S.Ct. 1515. Here, the Ironworkers have not justified such a departure. Thus, I conclude that the CBA clauses must be analyzed under the rule of reason.
The rule of reason analysis "requires a burdensome multipart showing." ASE II, 815 F.3d at 67. First, the "plaintiff bears the initial burden of showing that the challenged action has had an actual adverse effect on competition as a whole in the relevant market." Capital Imaging, 996 F.2d at 543. "The fact that the defendant's actions prevent a plaintiff from competing in a market is not enough, standing alone, to satisfy this initial burden of proof." Virgin Atl., 257 F.3d at 264. If the plaintiff "surmounts its first hurdle," then "the burden shifts to the defendant to offer evidence of the pro-competitive `redeeming virtues'" of the challenged conduct. Id.; Capital Imaging, 996 F.2d at 543. Should the defendant "come[] forward with such proof, the burden shifts back to plaintiff for it to demonstrate" that "the same procompetitive effect could be achieved through alternative means that are less restrictive of competition." Virgin Atl., 257 F.3d at 264; Capital Imaging, 996 F.2d at 543. Ultimately, in order to prove a violation of the Sherman Act, the plaintiff must show that the challenged conduct "will have an actual adverse effect on competition in the relevant market." Elec. Commc'ns Corp. v. Toshiba Am. Consumer Prods., 129 F.3d 240, 244 (2d Cir. 1997).
As an initial matter, I question whether the labor union plaintiffs — the Iron Workers, Sheet Metal Workers, and Glaziers — have standing to attack the CBA clauses.
IIA Phillip E. Areeda & Herbert Hovenkamp, et al., Antitrust Law ¶ 391, at 318, 320 (3d ed. 2007) ("Areeda & Hovenkamp (3d ed.)").
In an exclusive dealing case, plaintiffs may show injury-in-fact by "argu[ing] that they are foreclosed (or excluded) from a market," i.e., that they have been "denied the ability to make sales that they would otherwise have made." Id. ¶ 397, at 435. But not every injury-in-fact constitutes an antitrust injury. For instance, an "exclusive-dealing partner whose business relationship was terminated in favor of another exclusive-dealing partner" is "[c]learly not a victim of antitrust injury." XI Areeda & Hovenkamp (2d ed.), supra, ¶ 1823, at 199.
That essentially is the situation presented here. "Hot cargo" clauses are "standard in construction industry CBAs, including those of the Plaintiff unions." See Mem. Supp. Mot. Summ. J., Doc. No. 86, at 10. Stripped of rhetoric, the gravamen of the Ironworkers' complaint is that the Carpenters have used their CBA clauses to enter into exclusive dealing arrangements with employers who formerly had exclusively dealt with the Ironworkers. The resulting "turf battle," Ironworkers II, 869 F.3d at 97, between two beneficiaries of exclusive dealing arrangements is not properly adjudicated under the antitrust laws. Cf. Elec. Commc'ns Corp., 129 F.3d at 244 ("[I]t is simply not an antitrust violation for a manufacturer to contract with a new distributor, and as a consequence, to terminate his relationship with a former distributor, even if the effect of the new contract is to seriously damage the former distributor's business.").
Consider Balaklaw v. Lovell, in which a hospital switched its exclusive contract for anesthesiology services from one anesthesiologist (Balaklaw) to another (King). Balaklaw challenged the hospital's exclusive dealing agreement with King under the Sherman Act. See 14 F.3d at 795-96. The Second Circuit held that Balaklaw had not suffered an "antitrust injury" because there was "no foreclosure of competition." Id. at 799 (internal quotation marks omitted). "From the consumers' point of view," the Court reasoned, "nothing about the market ha[d] changed," because Balaklaw already "had exclusive control over anesthesiology services" at the hospital "prior to the [challenged] agreement." Id. at 798. As a result, the hospital's choice of one set of exclusive dealing partners over another was "only a reshuffling of competitors" and did not increase or decrease opportunities for competition in the market. Id. at 798 (quoting Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1393 (10th Cir. 1992)). Recalling that the antitrust laws "require plaintiffs to establish that the defendants
The Ironworkers attempt to distinguish Balaklaw on the basis that the plaintiff "had participated in a competitive process to obtain the exclusive contract," Mem. Opp'n Mot. Summ. J., Doc. No. 100, at 49, which (they allege) did not occur here. But the mere fact that the Carpenters and the Ironworkers did not participate in a formal competitive process does not mean that the choice of one over the other was more than "a reshuffling of competitors." Cf. Balaklaw, 14 F.3d at 798. According to the Ironworkers, the work at issue here was "traditionally performed by [them]" and "never sought" by the Carpenters. Cf. Ironworkers II, 869 F.3d at 98; Ironworkers I, 157 F.Supp.3d at 177; see Local Rule 56(a)2 Statement, Doc. No. 98, at 2 ("Plaintiff contractors performed eighty percent of the panel work ten years ago. ... Iron Workers and Glaziers performed one hundred percent of the panelized window systems, punch windows, curtain wall installation and store fronts ten years ago. ...") (internal parentheticals omitted). When the Carpenters began to obtain such work, the Ironworkers may have suffered "injury [as] a competitor," see Virgin Atl., 257 F.3d at 265, but that substitution of exclusive contractors did not by itself create "an adverse effect on competition market-wide." Todd v. Exxon Corp., 275 F.3d 191, 213 (2d Cir. 2001) (Sotomayor, J.). Because the Ironworkers have not shown that their injury stemmed from "impairment of the competitive structure of the market," see Stop & Shop, 373 F.3d at 66 (citing Brown Shoe Co. v. United States, 370 U.S. 294, 344, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962)), they did not suffer — and do not have standing to raise — antitrust injury.
"The Sherman Act ... [is] designed to protect competition, not individual competitors." Virgin Atl., 257 F.3d at 265. Here, the Ironworkers' "simple loss of business" does not establish an antitrust injury, Stop & Shop, 373 F.3d at 66; "at most it reflects only harm to individual competitors, not to competition." Unity Hosp., 208 F.3d at 661-62.
The other plaintiffs — M.R.S., Barrett, Peterson, Berlin Steel, Connecticut Ironworkers, and Sheet Metal Contractors — do appear to have antitrust standing to pursue Sherman Act claims. Nevertheless, their claims (along with those of the labor unions) fail at the rule of reason's first hurdle. Viewed in the light most favorable to the Ironworkers, the evidence would not permit a reasonable trier of fact to find that "the challenged action has had an actual adverse effect on competition as a whole in the relevant market." Capital Imaging, 996 F.2d at 543. To show an "adverse effect on competition," id., the Ironworkers rely heavily on the testimony of their expert witness, Prof. Edward Deak. Deak's report states that the restrictive clauses "potentially raise[] the price" of labor by "limit[ing] ... the number of bidders." Deak Rep., Ex. 5 to Carroll Aff., Doc. No. 88-5, at 67 (emphasis added). The report cites no evidence, however,
Deak speculates that overall prices might increase because "[u]nion carpenters may require more hours of labor than other union trades in performing the work," id., but there is no evidence to substantiate that supposition in the record. Deak testified that he "did not do ... any analysis that said output was reduced because of the [C]arpenters" or that "the [C]arpenters' conduct resulted in a reduction in quality." Deak Dep., Doc. No. 88-6, at 9-10. Other evidence suggests that the Carpenters and the Ironworkers were equally efficient: Roland Levesque, the president and founder of plaintiff M.R.S. Enterprises, testified that the Carpenters "install[ed] exterior metal panels ... at about the same efficiency rate as ... sheet metal workers or ironworkers." Local Rule 56(a)1 Statement, Doc. No. 87, at 22-23 (citing R. Levesque Dep. (Dec. 18, 2013), Ex. 46 to Carol Aff., Doc. No. 88-46, at 4). The Ironworkers complain that Levesque's assessment "simply [represents] testimony of a particular witness," Local Rule 56(a)2 Statement, Doc. No. 97, at 15, but they, not the Carpenters, bear the burden to introduce sufficient evidence to show an "actual adverse effect on competition" under the rule of reason. Capital Imaging, 996 F.2d at 543. They have not done so.
The Ironworkers also fail to substantiate their Sherman Act claims by showing "market power." Market power refers to "the ability to raise prices above those that would be charged in a competitive market." In re Aggrenox Antitrust Litig., 199 F.Supp.3d 662, 665 (D. Conn. 2016) (quoting NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 109, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984)); see IIB Areeda & Hovenkamp (3d ed.), supra, ¶ 501, at 109 ("Market power is the ability to raise price profitably by restricting output. ... A defendant firm has market power if it can raise price without a total loss of sales."). Market power can be shown directly, "by evidence of the control of prices or the exclusion of competition," or indirectly, by "proof that the defendant has a large percentage share of the relevant market." Heerwagen v. Clear Channel Commc'ns, 435 F.3d 219, 227 (2d Cir. 2006). "The relevant market consists of a relevant product market and a relevant geographic market." Id. For exclusive dealing claims, "a plaintiff makes a prima facie case ... by showing market structure, power, and coverage of the exclusive-dealing arrangement sufficient to create an inference of reduced output and higher prices in the affected market." XI Areeda & Hovenkamp (2d ed.), supra, ¶ 1820, at
Here, the Ironworkers' effort to show market power fails because the report of their expert witness, Dr. Deak, does not establish a well-defined market or the Carpenters' share within it. The boundaries of the proposed product market are highly uncertain: Deak seems to arbitrarily limit the product market to union labor, even though many general contractors presumably hire non-union labor as well (and the Carpenters themselves allegedly "regard[] non-union carpenter work as [their primary] competition"). See Deak Rep., Doc. No. 88-5, at 66. In addition, Deak does not identify the dollar value of the relevant market; the total number of general contractors in the market; or even the number of signatories to the Carpenters' CBAs. Compare id. at 66 (stating that "[t]he [Carpenters] already ha[ve] approximately 400-700 signatory members throughout their six state region including the sub-state relevant market") with id. at 67 (stating that "some 700 [general contractor]s and [construction manager]s have signed with the [Carpenters] throughout New England").
With respect to the boundaries of the proposed geographic market, Deak purports to establish (based on the parties' headquarters and the jurisdictions defined in the CBAs) a precise geographic market consisting of Connecticut, Rhode Island, and four counties in western Massachusetts. Id. at 46. Nevertheless, throughout his report, Deak seems to rely on evidence of the Carpenters' market share throughout the larger New England region. See, e.g., id. at 75 ("[T]he Carpenters are currently signatory with hundreds of construction managers in the New England area and continue to sign additional construction managers."). Because the Carpenters are headquartered in Boston and maintain separate CBAs for work in the "Eastern Massachusetts Jurisdictional Area," to conflate their (perhaps dominant) market share in the Boston area with their market share in Connecticut, Rhode Island, and western Massachusetts likely overstates the Carpenters' power in the relevant geographic market. Simply put, the Ironworkers have "not supplied" the "reliable numbers" and geographic boundaries that "are an essential starting point" for a market power analysis. See Stop & Shop, 373 F.3d at 68.
The Ironworkers' case boils down to an unwarranted presumption against exclusive dealing agreements. They assert that "you do not have to be an expert in economics to know that if you eliminate competition, prices will eventually rise [and] quality will suffer." Mem. Opp'n Mot. Summ. J., Doc. No. 100, at 42. But that argument begs the question, for "[e]xclusive dealing foreclosing upstream rivals from access to downstream markets may not produce any competitive harm at all."
Because the Ironworkers have not provided any evidence of "lower output and higher prices in a properly defined market," they have not shown "injury to `competition,'" but (at most) merely injury to themselves as competitors. See id. That does not suffice to state a prima facie case under the rule of reason. See NYNEX Corp., 525 U.S. at 135, 119 S.Ct. 493 ("[T]he plaintiff ... must allege and prove harm, not just to a single competitor, but to the competitive process, i.e., to competition itself."); Virgin Atl., 257 F.3d at 259 ("[W]hat the antitrust laws are designed to protect is competitive conduct, not individual competitors."). Hence, I grant the defendant's motion for summary judgment for failure to show an adverse effect on competition.
For the foregoing reasons, I grant the Carpenters' motion for summary judgment. The Clerk shall enter judgment in favor of the defendant and close the case.
So ordered.