PER CURIAM.
Plaintiff-Appellant JetAway Aviation, LLC ("JetAway") sued Defendants-Appellees ("Defendants") alleging, inter alia, violations of §§ 1 and 2 of the Sherman Act. Defendants are two local governmental entities, the Board of County Commissioners of the County of Montrose, Colorado (the "BOCC" or the "County") and the Montrose County Building Authority, and also non-governmental defendants Jet Center Partners, LLC ("JCP"), Black Canyon Jet Center, LLC ("BCJC"), Kevin Egan, and James Rumble.
Acting as a quorum, Judges Tymkovich and Holmes join this per curiam opinion and affirm the district court's judgment. More specifically, both judges conclude that the district court's decision
Because this court fully denies JetAway relief at the threshold on the basis of its failure to establish an antitrust injury, it has no need to reach Governmental Defendants' cross-appeal regarding state-action immunity. Accordingly, that cross-appeal is dismissed as moot.
In addition, the court addresses here two pending procedural matters — a motion to seal and a motion to strike. JetAway has filed an unopposed motion to seal Volume XVI of its appendix, which contains numerous documents that were under seal in the district court. This motion was provisionally granted by the Tenth Circuit's clerk's office, pending the merits panel's final determination. For the reasons that follow, the court denies the motion to seal.
"Courts have long recognized a common-law right of access to judicial records," but this right "is not absolute." Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.2007); see, e.g., Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) ("It is uncontested... that the right to inspect and copy judicial records is not absolute." (emphasis added)). We may, in our discretion, "seal documents if the public's right of access is outweighed by competing interests." Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir.2011) (quoting United States v. Hickey, 767 F.2d 705, 708 (10th Cir.1985)) (internal quotation marks omitted). "In exercising this discretion, we weigh the interests of the public, which are presumptively paramount, against those advanced by the parties." Id. (quoting Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir.1980)) (internal quotation marks omitted). To overcome this presumption against sealing, the party seeking to seal records "must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process." Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135-36 (10th Cir.2011) (quoting Helm, 656 F.3d at 1292) (internal quotation marks omitted).
On appeal, JetAway does not provide any basis for sealing the identified documents; instead, it merely states that the documents were filed under seal in the district court pursuant to a protective order and requests that this court maintain the status quo. Controlling precedent in this circuit — that was readily available to JetAway when it filed its motion to seal — explicitly rejects such an explanation as a sufficient justification for sealing documents on appeal. See Helm, 656 F.3d at 1292 ("[T]he parties cannot overcome the presumption against sealing judicial records simply by pointing out that the records are subject to a protective order in the district court."); see also Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241-42 (10th Cir.2012) (denying a motion to seal because "[t]he parties' only stated reason for filing these documents under seal [was] that they involve[d] the terms of confidential settlement agreements and/or they were filed under seal in the district court" and "[n]either party [had] submitted any specific argument or facts indicating why the confidentiality of their settlement agreements outweigh[ed] the presumption of public access," and noting that we were
Under the foregoing precedent, this court clearly could rest its denial of JetAway's motion to seal solely on this lack of justification. However, despite having no obligation to do so, this court has taken the additional step of examining JetAway's motion for a protective order — presented to the district court — to discern whether JetAway has ever expressly offered any specific grounds for why the confidentiality of the documents at issue "outweighs the presumption of public access." Colony Ins. Co., 698 F.3d at 1242. JetAway has not; its protective-order motion simply states that, at that time, the parties anticipated the production of confidential and proprietary information during discovery.
However, a generalized allusion to confidential information is woefully inadequate to meet JetAway's "heavy burden." See Helm, 656 F.3d at 1292-93 (rejecting as insufficient the parties' sole argument in support of their motion to seal that the documents at issue were "confidential discovery materials that [were] subject to a stipulated protective order entered by the district court"). Thus, even after taking this additional step, this court finds no basis to seal the requested documents; it denies that relief.
And, with limited elucidation required, the court disposes of the second procedural matter. Defendants move to strike JetAway's reliance on notes taken by County Commissioner David White regarding conversations he had with JCP's Kevin Scott. The notes purportedly support JetAway's position that Mr. Scott and Mr. Rumble colluded with Mr. Patterson to ensure that fixed-base operator ("FBO") services at Montrose Regional Airport (the "Airport")
In sum, by this per curiam opinion, this court
HOLMES, Circuit Judge, concurring:
I join the per curiam opinion that affirms the judgment of the district court. I write separately to explicate my reasoning for concluding that JetAway has failed to establish an antitrust injury and, consequently, lacks antitrust standing to bring this action.
In 2005, the County decided to privatize FBO services at the Airport and requested proposals from private parties. The BOCC received two proposals — one from JetAway and one from JCP. When JCP was selected to provide FBO services at the Airport, JetAway filed the instant lawsuit, alleging that Defendants violated the Sherman Act by manipulating the selection process and excluding JetAway from competing in the FBO services market at the Airport. The district court granted summary judgment in Defendants' favor, concluding,
Despite the voluminous record and extensive discovery undertaken in this case, the facts necessary to decide this appeal are relatively few. The difficulties among the parties arose from JetAway's efforts to obtain the right to serve as an FBO at the Airport, which the County runs. An FBO is a commercial business that provides a variety of aircraft-related services, such as fueling, hangaring, parking, aircraft rental, aircraft maintenance, and flight instruction. From 1991 to January 2006, the County ran the FBO at the Airport.
The BOCC is the governing authority for the County and consists of three members. Beginning in 2002, the BOCC began discussing the need to expand FBO services at the Airport and whether it should privatize these operations. Around the same time, Mr. Scott and Defendants Mr. Rumble and Mr. Egan considered forming JCP for the purpose of operating an FBO at the Airport in the event the County privatized FBO services. In early 2002, Mr. Scott provided the BOCC with a draft request-for-proposal ("RFP") form for the BOCC to use in soliciting bids if it chose to privatize FBO services. Moreover, on April 5 of that year, JCP submitted an unsolicited proposal to the BOCC to be selected as the FBO for the Airport, which was not accepted. In the following years, JCP lobbied for privatization of the FBO services at the Airport. JetAway also was in favor of privatization.
The three members of the BOCC were up for re-election in November 2004. At least two candidates publicly endorsed privatization of FBO services at the Airport: Bill Patterson and Allan Belt. Mr. Patterson and Mr. Belt won two of the three BOCC seats in the November 2004 election and, shortly thereafter, met with Mr. Scott and Mr. Rumble regarding this potential privatization. But support for privatization was not unanimous; in fact, an external consulting firm concluded that the County would economically benefit from continuing to operate the FBO at the Airport.
Also in 2004, JetAway purchased property adjacent to the Airport, from which it began operations as a "through-the-fence" FBO service provider. From this property, JetAway provided non-fuel-related FBO services to the Airport — which, in JetAway's view, placed it in a strong position to be selected by the County as the Airport's FBO if FBO services were privatized.
In early 2005, the BOCC decided that the County should privatize FBO services at the Airport. It therefore published an RFP for a private, on-Airport FBO service provider. The County reserved the right to negotiate with one, two, or several parties that might submit proposals, as well as the right to reject all proposals. The RFP also required each proposal to adhere to the Airport's minimum standards, which at that time explicitly forbade "through-the-fence" commercial operations such as JetAway's.
The County formed an independent committee to evaluate the FBO proposals that were submitted and to make a recommendation to the BOCC regarding whether it should accept one or more of the proposals or decline to privatize FBO operations at the Airport. As it turned out, the County only received two proposals — one from JetAway and one from JCP. Upon evaluation of the proposals, the independent committee recommended against privatizing FBO services at the Airport. Nevertheless, the BOCC voted to enter
On December 5, 2005, the County officially privatized FBO services at the Airport and entered into an FBO agreement with JCP that permitted JCP to provide these services on Airport property. That same day, with the assistance of Mr. Scott, the County adopted revised minimum standards for the Airport. Many of these reformulated standards, according to JetAway, made it difficult (if not impossible) for JetAway or any other FBO service provider to effectively compete with JCP.
Despite these setbacks, JetAway continued to negotiate with the County in an attempt to become a second FBO service provider at the Airport. But according to JetAway, the County and JCP were determined to thwart its efforts to compete with JCP in the FBO services market. For example, JetAway has provided evidence that County Attorney Robert Hill was in communication with JCP regarding JetAway's proposal to the BOCC to acquire on-Airport land from which to operate its FBO-services business and that Mr. Hill advised JCP to take action in light of this information to prevent JetAway's acquisition of the land. In the end, the BOCC rejected JetAway's proposals.
JCP began to provide on-Airport FBO services in January 2006. Around this time, JetAway was fueling aircraft on-Airport without the County's consent. In November 2008, the County sought a preliminary injunction to terminate JetAway's access to the Airport, alleging that JetAway violated several Airport safety rules in the course of running its business. The state court agreed with the County and issued a preliminary injunction. Thereafter, the County prevented JetAway from accessing Airport property, and JetAway's off-Airport operation has been closed ever since.
JetAway filed the instant action against Defendants in December 2007, alleging violations of §§ 1 and 2 of the Sherman Act and, pursuant to 42 U.S.C. § 1983, violations of the Equal Protection Clause and the Commerce Clause.
Governmental Defendants then moved for summary judgment on all of JetAway's claims. As to JetAway's antitrust claims,
Defendants subsequently filed a second motion for summary judgment, which the district court granted as to all claims. The district court concluded that JetAway's claims under the Equal Protection and Commerce Clauses were meritless. As to JetAway's antitrust claims, the district court concluded this time that the Noerr-Pennington doctrine shielded Non-Governmental Defendants from antitrust liability.
Most important for purposes of this appeal, the district court concluded that JetAway did not have antitrust standing to bring any of its antitrust claims. The district court reached this conclusion by focusing on the report of JetAway's antitrust expert, Dr. Philip B. Nelson, which stated that the demand for FBO services at the Airport was only sufficient to support one FBO service provider. In light of Dr. Nelson's report, the court reasoned that "[i]n essence, [JetAway] admits that the size of the business opportunity at the Airport limits that market to a single FBO operator." Aplt.App. at 6865 (Mem. Op. & Order, filed Mar. 28, 2012).
The district court acknowledged JetAway's contention that "the defendants' protection of JCP from later entry by JetAway has caused injury to the users of the Airport by subjecting them to higher prices and inferior services." Id. However, drawing further on Dr. Nelson's report concerning the timing of such competition, the court concluded that any competition between JetAway and JCP would have been relatively short-lived. Specifically, the court stated that "while there may be a period of competition between two competing [FBOs], for a limited time, perhaps one year, the market can sustain only one operator." Id. It reasoned that the possibility of such temporary competition did not militate in favor of a finding of antitrust injury. In this regard, the court stated, "It is well established law that the anti-competitive conduct that violates the Sherman Act must have more than a temporary effect on the market." Id.
The district court thus ultimately determined that, because ordinarily the Sherman Act does not protect one monopolist from the efforts of another aspiring monopolist to replace it, JetAway could not establish that Defendants caused an antitrust injury. Consequently, JetAway could not establish antitrust standing. The court's antitrust-standing determination was sufficient to shut the door on JetAway's antitrust claims. However, the court proceeded to reach the merits of those claims. Among other things, the court observed: "[T]he allegation is that the County had selected JCP to be the FBO operator even before issuing the RFP. The disputed evidence may support that finding. That, however, is not illegal [under the antitrust laws]." Id. at 6863. The court further opined, "It may be that the Commissioners who signed the FBO agreement with JCP did not act in the best interest of their constituents and permitted
JetAway appeals from the district court's grant of summary judgment to Defendants. Governmental Defendants cross-appeal the district court's decision denying them state-action immunity.
This court "review[s] a grant of summary judgment de novo, applying the same standard as the district court." Automax Hyundai S., LLC v. Zurich Am. Ins. Co., 720 F.3d 798, 803 (10th Cir.2013) (quoting Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246 (10th Cir.2010)) (internal quotation marks omitted). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party." Koessel v. Sublette Cnty. Sheriff's Dep't, 717 F.3d 736, 742 (10th Cir.2013) (quoting Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004)) (internal quotation marks omitted).
JetAway focuses all of its efforts on appeal on its antitrust claims.
Section 4 of the Clayton Act gives private parties, such as JetAway, the power to enforce federal antitrust laws. See 15 U.S.C. § 15(a) ("[A]ny person who shall be injured in his business or property by reason
To pursue such claims under § 4 of the Clayton Act, a plaintiff must demonstrate not only that it has standing under Article III of the Constitution, but also that it has antitrust standing.
Whether a plaintiff has suffered an antitrust injury is a "threshold inquiry."
Put another way, an antitrust injury is "an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Tal, 453 F.3d at 1253 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)) (internal quotation marks omitted); accord Cohlmia, 693 F.3d at 1280; Elliott Indus., 407 F.3d at 1124; Reazin, 899 F.2d at 962 n. 15; see also Bathaee, supra, at 335 ("To determine whether an antitrust injury exists, one must understand what protections antitrust laws were meant to afford."). It is therefore critical to set forth precisely what type of injury the antitrust laws were intended to prevent. See, e.g., Davis, supra, at 723 ("The [antitrust-injury] doctrine, in other words, directs a court to examine, in a proper case, what economic effects the case law rule or statute in
"The [Sherman Act] directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993); cf. United States v. Syufy Enters., 903 F.2d 659, 663 (9th Cir.1990) ("If, as the metaphor goes, a market economy is governed by an invisible hand, competition is surely the brass knuckles by which it enforces its decisions."). This proposition applies with full force as to both §§ 1 and 2 of the Sherman Act. Compare Syufy Enters., 903 F.2d at 663 (discussing the Sherman Act's focus on competition in a § 2 case), with Atl. Richfield Co., 495 U.S. at 342, 110 S.Ct. 1884 (stating that § 1 asks "whether a restraint [on competition] is `unreasonable,' i.e., whether its anticompetitive effects outweigh its procompetitive effects"), and Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 690, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978) (stating that the § 1 "inquiry is confined to a consideration of impact on competitive conditions").
Moreover, the Sherman Act's goal of preventing unfair competition is pursued with an eye toward safeguarding the benefits that consumers derive from a competitive marketplace. See Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1073 (10th Cir.2013) ("The bottom line, then, is that antitrust evinces a belief that independent, profit-maximizing firms and competition between them are generally good things for consumers.... Experience teaches that independent firms competing against one another is almost always good for the consumer and thus warrants a strong presumption of legality."), cert. denied, ___ U.S. ___, 134 S.Ct. 1947, 188 L.Ed.2d 976 (2014); see also Fishman v. Estate of Wirtz, 807 F.2d 520, 535 (7th Cir.1986) ("[T]he enhancement of consumer welfare is an important policy — probably the paramount policy — informing the antitrust laws."); Robert H. Bork, The Antitrust Paradox 61 (1978) ("The legislative history of the Sherman Act ... displays the clear and exclusive policy intention of promoting consumer welfare.").
Generally speaking, "the antitrust laws... protect competition, not competitors." Fischer, 883 F.2d at 599-600; see Colo. Interstate Gas Co. v. Natural Gas Pipeline Co. of Am., 885 F.2d 683, 697 (10th Cir. 1989) ("[T]he Supreme Court, in a now oft quoted phrase, has stated `the antitrust laws ... were enacted for the protection of competition not competitors.'" (omission in original) (quoting Pueblo Bowl-O-Mat, 429 U.S. at 488, 97 S.Ct. 690) (internal quotation marks omitted)); see also Spectrum Sports, 506 U.S. at 458, 113 S.Ct. 884 ("[The Sherman Act focuses on competition] not out of solicitude for private concerns but out of concern for the public interest."); Novell, 731 F.3d at 1078 ("Were intent to harm a competitor alone the marker of antitrust liability, the law would risk retarding consumer welfare by deterring vigorous competition...."); Cohlmia, 693 F.3d at 1280 ("The primary concern of the antitrust laws is the corruption of the competitive process, not the success or failure of a particular firm or individual." (quoting Tal, 453 F.3d at 1258) (internal quotation marks omitted)); SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 972 (10th Cir.1994) ("The Sherman Act ultimately must protect competition, not a competitor, and were we tempted to collapse the distinction, we would distort its continuing viability to safeguard consumer welfare."). As such, "[a] producer's loss is
In accord with these principles, the Sherman Act is not concerned with overly aggressive business practices, or even conduct that is otherwise illegal, so as long as it does not unfairly harm competition. See Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr., 582 F.3d 1216, 1225 (10th Cir.2009) ("After all, it is the `protection of competition or prevention of monopoly[ ] which is plainly the concern of the Sherman Act,' not the vindication of general `notions of fair dealing,' which are the subject of many other laws at both the federal and state level." (alteration in original) (quoting IIIB Areeda, supra, ¶ 770e, at 190)); Expert Masonry, 440 F.3d at 348 ("The parties may break a host of state or federal laws and regulations in making a side deal or in otherwise circumventing the bidding process in reaching a final arrangement, but they do not breach Section 1 of the Sherman Act where the alleged vertical agreements involve only one buyer and one seller.").
Thus, consonant with the Sherman Act's statutory concerns, "[t]he antitrust injury requirement ensures that a plaintiff can recover only if [its injury] stems from a competition-reducing aspect or effect of the defendant's behavior." Elliott Indus., 407 F.3d at 1124-25 (first alteration in original) (quoting Atl. Richfield Co., 495 U.S. at 344, 110 S.Ct. 1884) (internal quotation marks omitted); see Michael A. Carrier, A Tort-Based Causation Framework for Antitrust Analysis, 77 Antitrust L.J. 991, 997 (2011) ("The legal aspect of antitrust injury doctrine has been important in limiting cases in which the plaintiff cannot show harm related to reduced competition.").
JetAway contends that it suffered an antitrust injury because Defendants engaged in anticompetitive behavior in the FBO services market by manipulating the bid process rather than allowing market forces to determine which company was the superior FBO service provider. More specifically, JetAway argues that once the County sent out the RFP — initiating an ostensibly competitive bid process — then, in fact, it had "to be a fair and competitive bid process; it [could not] be manipulated." Oral Argument at 3:28, JetAway Aviation, LLC v. Bd. of Cnty. Comm'rs (Nos.12-1173, 12-1194). JetAway asserts that Defendants engaged in precisely such manipulation, unfairly putting a finger on the scales in favor of JCP. The unlawful result, as JetAway sees it, is that it was kept out of the Airport's FBO services market and not permitted to compete head-to-head with JCP.
As previously stated, the district court disagreed, reasoning as follows. Based on the report from JetAway's own expert, Dr. Nelson, the market for FBO services at the Airport could only sustain one FBO service provider,
For the reasons that follow, I am in substantial agreement with the district court. The district court appropriately identified the material facts that are not genuinely disputed and, in my view, applied sound legal principles to those facts in concluding that JetAway could not establish an antitrust injury. Therefore, like the district court, I conclude that JetAway lacks antitrust standing.
Notably, the district court's universe of genuinely undisputed material facts was based in large part on the testimony of JetAway's own expert, Dr. Nelson. In his report, Dr. Nelson set forth the "structural characteristics" of the relevant market, which he defined as the market for FBO services at the Airport. Aplt.App. at 3186 (Expert Report of Philip B. Nelson, Ph.D., dated July 15, 2011) (capitalization altered). He noted that, following Defendants' allegedly anticompetitive conduct, "JCP [was] the only competitor in the relevant market[], which implies that its market share [was] 100%." Id. Next, he analyzed the likelihood of other entrants into this market and concluded that other than JetAway, there were no probable entrants. Important for purposes of this appeal is one of the bases for Dr. Nelson's conclusion — namely, that "[t]here [was] only enough demand for FBO services at the Airport to support one FBO." Id. at 3190. Thus, according to Dr. Nelson, the market could only support one FBO provider; it would be either JCP or JetAway.
As a foundation for his assessment of damages, Dr. Nelson reiterated this conclusion: "But for the alleged anticompetitive conduct related to the contract selection process, JetAway would likely have been the only FBO at [the Airport]." Id. at 3200 (capitalization altered) (internal quotation marks omitted). Dr. Nelson
Dr. Nelson summarized his position as follows: "but for the alleged unlawful behavior, JetAway would have negotiated with the County after submitting its RFP response and would have been selected as the sole FBO at Montrose Airport (or JCP would have decided not to compete if it had also been selected)." Id. at 3203. He explained that, in the "less likely event" that JCP decided to enter the market anyway and compete with JetAway, "there would have been a short period" of competition that would have led to a reduction in JetAway's profits "associated with this short competitive period." Id. at 3203 n. 377 (emphases added). He then calculated the "but-for" damages as if JetAway had been the only FBO service provider from January 2006 forward. Alternatively, Dr. Nelson projected JetAway's damages if, as a result of this litigation, JetAway were permitted to enter the market in January 2012. Under that scenario, Dr. Nelson recognized that "JCP might not immediately stop operations," so he assumed that "JCP would continue to operate its business at a loss for one year before ceasing operations." Id. at 3208 (emphasis added).
JetAway attempts on appeal to undermine its own expert's characterization of the market in several ways, none of which are availing. First, JetAway argues that there is a genuine dispute of material fact as to whether the FBO services market at the Airport would inevitably be controlled by a monopolist. But the evidence on which JetAway relies does not cast doubt on Dr. Nelson's conclusions.
JetAway specifically points to JCP's representations to the County that two FBOs could compete at the Airport. In May 2005, the County asked JCP whether it would still consider its FBO services proposal viable if the County were "obligated to allow additional FBO operators." Id. at 6679 (Letter from Cnty. to JCP, dated May 27, 2005). JCP responded that the presence of additional FBO providers "would not necessarily change the viability of" its proposal, so long as potential competitors were subject to the same requirements as JCP, because JCP intended to outperform the competition. Id. at 6682 (Letter from JCP to Cnty., dated May 31, 2005). JetAway also cites the County's representations to the Federal Aviation Administration ("FAA") that a second FBO operator at the Airport would be feasible.
However, as I see it, this evidence is not inconsistent with Dr. Nelson's report and does not create a genuine dispute of material fact. This is so because Dr. Nelson's report expressly contemplated that JCP and JetAway might occupy the market together as competitors, but concluded that this circumstance would only briefly exist. Ultimately, as suggested by that expert report, the market would be perforce controlled by a lone monopolist. Therefore, JCP's and the County's representations regarding the feasibility of a second FBO in the market are in no way inconsistent with Dr. Nelson's ultimate, critical conclusion that "[t]here is only enough demand for FBO services at the Airport to support one FBO." Id. at 3190. Expressed another way, any seeming inconsistency
JetAway attempts, however, to cast doubt on whether any period of competition that might have occurred actually would have been short. To do so, JetAway points to evidence that the County and another company simultaneously provided FBO services at the Airport for a three-year period during the late 1980s and early 1990s. But evidence of a three-year period of competition approximately fifteen years before the time period at issue here does not place in dispute Dr. Nelson's conclusion that, as the market stood at the relevant time, a short period of competition between JCP and JetAway would quickly have driven one of the two out of business.
Finally, JetAway argues that Dr. Nelson's one-year estimate regarding the period of possible competition between JCP and JetAway was made only for purposes of estimating damages, and thus the true period of competition that would have resulted between the two FBOs is unknown. However, it was not the precise period of competition between the two FBOs that the district court deemed to be the material fact; rather, it was the fact that any such period of competition would have been short. And Dr. Nelson's report unequivocally supports the notion that any period of competition, at most, would have been short.
Thus, even disregarding the one-year figure, the record was not silent or uncertain concerning the period of any competition. It is that "short" — or, as the district court called it, "limited" — time frame of competition, and not the more specific one-year period, that formed the predicate for the district court's legal conclusion that the timing of any competition did not advance JetAway's cause to establish antitrust injury. See id. at 6865 (stating that "while there may be a period of competition between two competing [FBOs], for a limited time, perhaps one year, the market can sustain only one operator" (emphasis added)). Therefore, the district court's legal reasoning had support in the record concerning the length of any competition.
In my view, the district court correctly determined that applying these antitrust principles to the genuinely undisputed material facts — most notably, the facts coming from the testimony of JetAway's own expert, Dr. Nelson — doomed JetAway's effort to demonstrate an antitrust injury.
To start, the district court correctly understood that the mere fact that one monopolist is able to successfully replace another does not harm competition and, therefore, does not effect an antitrust injury. See Herbert Hovenkamp, Federal Antitrust Policy 663 (4th ed.2011) [hereinafter "Hovenkamp"] ("[I]f the plaintiff's only claim is of the nature `I, rather than the defendant, was entitled to be the monopolist,' then the plaintiff is not a victim of antitrust injury."); see also Fishman, 807 F.2d at 538 ("Without more, the substitution of one competitor for another does not implicate the antitrust laws."). The rationale for this is simple: while there is harm to the monopolist who is replaced, there is no harm to the level of competition in the market. See Columbia River People's Util. Dist. v. Portland Gen. Elec. Co., 217 F.3d 1187, 1190 (9th Cir.
Regardless of which entity controls a monopoly, it remains "free to reduce output and increase prices, the standard evils of monopoly power." HyPoint Tech., Inc. v. Hewlett-Packard Co., 949 F.2d 874, 878 (6th Cir.1991). But it is well-established that the possession of monopoly power alone, "and the concomitant charging of monopoly prices," is not itself unlawful; an antitrust plaintiff must show that the possession of monopoly power "is accompanied by an element of anticompetitive conduct." Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004) (emphasis omitted); see also 2 Julian O. von Kalinowski et al., Antitrust Laws and Trade Regulation (MB) § 25.02, at 25-11-25-14 (2d ed. 2013) ("Section 2 does not outlaw all monopolies. Section 2 does not condemn mere size or market dominance. Nor does monopoly power in and of itself offend Section 2. It is the acquisition, maintenance, or exercise of monopoly power — not its mere existence — that violates Section 2." (footnotes omitted)). And there can be no anticompetitive conduct — that is, harm to competition — in situations where the sole act in question is the replacement of one monopolist by another, as either monopolist can equally "exploit[] a monopoly." See Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 267 (7th Cir.1984). This is why ordinarily the mere act of one monopolist replacing another "is a matter of indifference" to the antitrust laws. Id.; see id. at 266 ("[A]lthough it hurts the lawful owner of the monopoly power," the "mere[] shift[ing of] a lawful monopoly into different hands ... has no antitrust significance."); Oxford Global Res., Inc. v. Weekley-Cessnun, No. Civ.A.3:04-CV-0330-N, 2004 WL 2599898, at *3 (N.D.Tex. Nov. 12, 2004) ("The antitrust laws ... are completely indifferent to the transfer of existing monopoly power.").
The district court also correctly discerned the legal significance of the undisputed material facts regarding the second critical point. Specifically, there was no genuine dispute (as discussed supra) that if there were a period of competition between JetAway and JCP, it would have been a short one. The court rightly determined that this meant that any purported deprivation of consumers of the benefits of such competition was of no material significance for purposes of determining the presence of antitrust injury. Putting the
In particular, JetAway asserts that there is no dispute that "JetAway's entry to the market would have led to significant reductions in prices for FBO services at the Airport, if not an all-out price war." Aplt. Opening Br. at 33; see also Aplt. Reply Br. at 14-15 ("Defendants also claim that even if prices did decrease, such a decrease would last only one year, which is not a sufficient length of time to constitute harm to competition.... [T]his diminishes the competitive importance of the drop in prices that consumers would have enjoyed during that period of time."). In effect, JetAway reasons that Defendants' purported anticompetitive conduct in excluding JetAway from the Airport's FBO services market should be found to have harmed consumers and caused an antitrust injury because it denied consumers the benefits (notably, lower prices) of direct competition between JetAway and JCP — even if those benefits would have only been of limited duration (that is, temporary). I find it pellucid, however, that the district court's contrary reasoning was firmly rooted in settled principles of antitrust law.
In divining the presence of an antitrust injury, courts have disregarded temporary anticompetitive effects. See Adaptive Power Solutions, LLC v. Hughes Missile Sys. Co., 141 F.3d 947, 952 (9th Cir.1998) (holding that to establish an antitrust injury, there must be "significant and more-than-temporary harmful effects on competition," and that the four- to ten-month harm alleged was "temporary" and thus insufficient (quoting Am. Prof'l Testing Serv., Inc. v. Harcourt Brace Jovanovich Legal & Prof'l Publ'ns, Inc., 108 F.3d 1147, 1151 (9th Cir.1997)) (internal quotation marks omitted)); Colo. Interstate Gas Co., 885 F.2d at 697 (holding that "unfair methods of competition that only threaten to have a transitory impact on the marketplace" do not violate the antitrust laws). This is because the Sherman Act is concerned only with conduct that has "long-run anti-competitive effects." Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984); see Colo. Interstate Gas Co., 885 F.2d at 697 (requiring a § 2 plaintiff "to show that an attempted monopolist's conduct threatened to create substantial and persistent changes in the marketplace" and recognizing that such a test "may allow some unfair and potentially harmful methods of competition to go unpunished by the antitrust laws" (emphasis added) (footnote omitted)); cf. Adaptive Power Solutions, 141 F.3d at 952 ("To constitute an injury to competition, the restraint must be of significant magnitude and more than trivial." (citation omitted) (internal quotation marks omitted)).
Were temporary effects on competition sufficient, an "ordinary business tort" and an antitrust violation would often be indistinguishable. See IIIB Areeda, supra, ¶ 782a, at 321 (explaining that to avoid invoking § 2 of the Sherman Act "on the basis of torts with insignificant market effects[,]... [t]he antitrust court must ... insist on a preliminary showing of significant and more than temporary harmful effects on competition"); see also Colo. Interstate Gas Co., 885 F.2d at 697 n. 26 (recognizing that the Sherman Act is not meant to remedy torts and that "[i]n attempting to distinguish between conduct that should be addressed by the antitrust laws and conduct which should be regulated by tort law, ... `[t]he antitrust court
Consequently, in discerning the presence of unlawful anticompetitive conduct, courts have focused on the long-term, impact of firm conduct on prices, even when the short-term effects might appear (at first blush) to be beneficial to consumers. See Atl. Richfield Co., 495 U.S. at 337 n. 7, 110 S.Ct. 1884 ("Rivals cannot be excluded in the long run by a nonpredatory maximum-price scheme unless they are relatively inefficient."); id. at 351, 110 S.Ct. 1884 (Stevens, J., dissenting) ("[N]otwithstanding any temporary benefit to consumers, the unlawful pricing practice that is harmful in the long run to competition causes `antitrust injury' for which a competitor may seek damages."); Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 121 n. 17, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986) ("[T]he likelihood that predatory pricing will benefit the predator is `inherently uncertain: the short-run loss [from pricing below cost] is definite, but the long-run gain depends on successfully neutralizing the competition ... [and] on maintaining monopoly power for long enough both to recoup the predator's losses and to harvest some additional gain.'" (omission and second and third alterations in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 589, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))); United States v. AMR Corp., 335 F.3d 1109, 1114 (10th Cir.2003) (same); MCI Commc'ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1181 (7th Cir.1983) ("The most blatant predatory use of monopoly power theoretically is, of course, a quick price cut upon entry until the competitor withdraws, at which time prices are raised back to monopoly levels to recoup the temporary losses sustained."); see also William J. Baumol, Quasi-Permanence of Price Reductions: A Policy for Prevention of Predatory Pricing, 89 Yale L.J. 1, 26 (1979) ("An attempt to provide a universally acceptable definition for a vague term such as `predatory pricing' probably can contribute little. However, the term does relate to a problem that is real and significant — the design of means to permit full and fair competitive measures by the established firm, without foreclosure of entry. The problem clearly involves intertemporal behavior patterns that cannot be addressed adequately by the comparison of prices and costs at any single moment." (emphasis added) (footnote omitted)); F.M. Scherer, Predatory Pricing Under Section 2 of the Sherman Act, 89 Harv. L.Rev. 868, 885 (1976) ("The essence of exclusionary pricing is sacrificing profits today to enhance market power, prices, and profits tomorrow. If future prices will be higher relative to costs than they would have been in the absence of today's price cutting, any correct reckoning of the welfare effects of exclusionary pricing must take into account the future efficiency losses as well as current gains or losses.").
Here, the anticompetitive effects were the product of Defendants' allegedly improper exclusion of JetAway from the Airport's FBO services market, where JetAway
In other words, the benefits flowing to consumers from a competitive FBO services market and the anticompetitive effects of Defendants' allegedly unlawful conduct — which prevented such a competitive marketplace from emerging — were, in a sense, two sides of the same coin. And, importantly, the coin was made of perishable stuff. After the competition between JetAway and JCP ceased, the market would naturally have become once again the preserve of a sole monopolistic firm — and, as noted, the existence of a monopoly is not itself anticompetitive or a violation of the antitrust laws.
In sum, the foregoing evidence demonstrates that JetAway cannot establish antitrust injury and thus cannot establish antitrust standing. The undisputed evidence reveals that the FBO services market would be controlled by a monopolist because there was insufficient demand for FBO services at the Airport to support two FBO firms. As discussed supra, ordinarily the identity of the monopolist is of no concern to the antitrust laws because the simple act of one monopolist replacing another does not adversely affect competition. See Columbia River, 217 F.3d at 1190;
Next, I would expressly address and reject two broad lines of argument advanced by JetAway by which it seeks to undermine the district court's conclusion that it has not established an antitrust injury.
Relying on this court's decision in Full Draw Productions v. Easton Sports, Inc., 182 F.3d 745 (10th Cir.1999), JetAway argues that "[c]onduct that eliminates one of two competitors or excludes a potential competitor from a relevant market harms competition." Aplt. Opening Br. at 29. I have no doubt that under certain circumstances, such as those in Full Draw, this is true. Such circumstances, however, are not present here.
A brief examination of the facts and reasoning in Full Draw demonstrates why its conclusion is not controlling here. In Full Draw, the plaintiff was an archery trade-show promoter who brought an antitrust suit against several defendants who were archery-product manufacturers and distributors and also a trade association to which the other defendants belonged. See 182 F.3d at 747-48. After the plaintiff rejected the trade association's offer to purchase the plaintiff's trade show, the trade association began its own trade show to rival the plaintiff's. See id. at 748. Following two years of competition between the two trade-show organizers, the
According to JetAway, the reasoning of Full Draw prompts the same conclusion here. As was true in Full Draw, says JetAway, there were two competitors in the Airport's FBO services market — it and JCP — and Defendants' anticompetitive conduct effectively precluded JetAway from competing in the market. However, the structure of the market in Full Draw was markedly different than the structure here — notably, prior to the commencement of the allegedly anticompetitive conduct, consumers in Full Draw had a meaningful choice between two competitors, and we found this fact to be significant in evaluating whether the defendants' conduct produced an antitrust injury. In that regard, we reasoned:
Id. (emphasis added).
It should be patent that the effects of the defendants' allegedly anticompetitive conduct in Full Draw differ from the effects of Defendants' allegedly anticompetitive conduct on the FBO services market here. As detailed above, the undisputed evidence is that, in all events, there would only be one FBO service provider at the Airport. This was not because of Defendants' conduct, but because "[t]here is only enough demand for FBO services at the Airport to support one FBO." Aplt.App. at 3190. The natural composition of the market here consists of one FBO — that is, one monopolist. Thus, unlike in Full Draw, Defendants' allegedly anticompetitive conduct did not have the effect of "reduc[ing] a ... market of two [service providers] to a market of one monopolist," 182 F.3d at 754; rather, the structure of the market itself dictated that there could be no more than one firm (i.e., monopolist). In other words, unlike the situation in Full Draw, Defendants' conduct did not change the composition of the FBO services market such that competition was reduced and an antitrust injury was effected. See Christy Sports, 555 F.3d at 1197-98 (distinguishing Full Draw on the grounds that in Full Draw, the "defendants actively invaded another market through anticompetitive behavior and substantially changed what that market looked like"). More specifically, Defendants' conduct did not deprive consumers of a meaningful, long-term choice between two competitors. At most, by virtue of their allegedly anticompetitive conduct, Defendants in this case selected which of two competing FBO service providers would be installed as the monopolist in a market that could only support one FBO service provider. As explained supra, such a shifting of a "monopoly into different hands ... has no antitrust significance." Brunswick Corp., 752 F.2d at 266; see Columbia River, 217 F.3d at 1190; Hovenkamp, supra, at 663. Thus,
JetAway's final attempt to carry its burden of demonstrating an antitrust injury is also unavailing. It argues that the requisite harm to competition needed to show antitrust injury is evinced by the decline in the quality and quantity of the FBO services at the Airport that occurred as a result of Defendants' exclusion of JetAway from the market.
Specifically, JetAway contends that, had Defendants not excluded it from the market, it would have provided higher quality FBO services than JCP and more of them. JetAway further claims it would have done so even after it drove JCP from the market and was the sole monopolistic firm, because of its superior facilities and Airport location. Thus, reasons JetAway, Defendants' anticompetitive conduct harmed consumers. This argument is legally infirm. Most saliently, even if JetAway would have been a better monopolist for consumers in the sense that it would have provided a more diverse, higher-quality array of FBO services, it cannot be said that Defendants' conduct harmed competition; thus JetAway cannot establish an antitrust injury. Cf. Davis, supra, at 742 ("Choosing A over B as one's exclusive distributor for a territory is not an antitrust violation at all, because whether A is chosen or B is chosen, competition remains the same. There was no predicate antitrust violation." (footnote omitted)).
It is true, as JetAway contends, that "[a]n antitrust plaintiff must prove that challenged conduct affected the prices, quantity or quality of goods or services, not just his own welfare." Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641 (3d Cir.1996) (internal quotation marks omitted); accord Cohlmia, 693 F.3d at 1281. But the primary import of such a statement is that an antitrust plaintiff must prove harm to the market's competitive landscape, rather than harm flowing only to itself. Courts do look to whether the alleged anticompetitive conduct adversely affected, inter alia, the "quantity or quality of goods or services," but only for clues as to whether there have been effects "on competition as a whole within
Such changes in quantity and quality in the market may well be the consequences of harm to competition — viz., the presence of such changes may provide the foundation for a reasonable inference that competitive harm is also present. See, e.g., Syufy Enters., 903 F.2d at 668 ("[C]ompetition is essential to the effective operation of the free market because it encourages efficiency, promotes consumer satisfaction and prevents the accumulation of monopoly profits. When a producer is shielded from competition, he is likely to provide lesser service at a higher price; the victim is the consumer who gets a raw deal."). However, it does not ineluctably follow that competition has been adversely affected whenever there has been a diminishment in the quality or quantity of goods or services in the market. Put another way, a decline in consumer benefits in a given case is not necessarily traceable to an injury to competition. See Fishman, 807 F.2d at 536 ("The antitrust laws are concerned with the competitive process, and their application does not depend in each particular case upon the ultimate demonstrable consumer effect. A healthy and unimpaired competitive process is presumed to be in the consumer interest."); id. at 538 ("The fact that the precise impact of defendants' conduct on the broad consuming public has remained unfocused here does not prevent a finding that the antitrust laws have been violated."); see also Christy Sports, 555 F.3d at 1199 (finding no harm to competition despite allegations of increased prices and decreased output).
Were this court to find antitrust injury whenever a would — be monopolist maintains that in a particular case it would be a better monopolist for consumers than the incumbent monopolist due to the comparative quality of the goods or services that it would provide, we would lose sight of the injury that the antitrust laws are meant to guard against — injury to competition — which "[e]xperience teaches ... is almost always good for the consumer." Novell, 731 F.3d at 1073; see also Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 538, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) ("[T]he Sherman Act was enacted to assure customers the benefits of ... competition."). Thus, homing in on injury to competition, the relevant question becomes whether the conduct at issue has reduced competition. Elliott Indus., 407 F.3d at 1124-25 ("[T]he antitrust injury requirement ensures that a plaintiff can recover only if [its injury] stems from a competition-reducing aspect or effect of the defendant's behavior." (internal quotation marks omitted)); see Spectrum Sports, 506 U.S. at 458, 113 S.Ct. 884 (noting the Sherman Act's focus on "conduct which unfairly tends to destroy competition"); see also City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 266-67 (3d Cir.1998) ("[B]ecause neither the agreement nor the proposed merger had brought about the lessening of competition in a `marketplace' where there was no competition, there was no antitrust injury."). As I have explicated in Part III.B.2, supra, there is no evidence here that Defendants' conduct reduced competition.
Notably, the thrust of JetAway's argument — that the quality and quantity of a monopolist's products and services should be deemed relevant to the antitrust-injury inquiry — is directly at odds with the principle that the identity of a monopolist is of no concern to antitrust law. See, e.g., Brunswick Corp., 752 F.2d at 266 (noting that "merely shift[ing] a lawful monopoly into different hands ... has no antitrust significance"); Hovenkamp, supra, at 663 ("[I]f the plaintiff's only claim is of the nature `I, rather than the defendant, was entitled to be the monopolist,' then the plaintiff is not a victim of antitrust injury."). Under JetAway's argument, the identity of the would — be monopolist would be critical in determining the existence of an antitrust injury because it would inform a court's judgment regarding the quality or quantity of goods or services that consumers could reasonably expect to receive.
However, antitrust injury cannot be predicated on a court's evaluation of the quality or quantity of a would-be monopolist's products or services, rather than on an evaluation of whether competition would be reduced in the relevant market. Cf. Expert Masonry, 440 F.3d at 348 ("[W]e decline to extend antitrust liability to give succor to dejected buyers or sellers who simply allege that one buyer and one seller colluded to reach a deal that may or may not have been inferior to the deal offered by the disappointed party."). At bottom, JetAway asks the panel to compare the FBO services offered by it and JCP and then to predict which entity's services would be superior. I decline to engage in this dubious undertaking. And, even if there were some legal foundation for such an exercise, "[a]dministrability considerations" would nonetheless dissuade me from moving down that path. Novell, 731 F.3d at 1073.
Courts lack a principled method to determine which services provide greater benefit to consumers. See Re/Max Int'l, Inc. v. Realty One, Inc., 173 F.3d 995, 1000 (6th Cir.1999) ("Manifestly, the judiciary is ill-suited to evaluate directly the efficiency of business practices."); cf. Four Corners, 582 F.3d at 1226 (rejecting the notion that the court should force the defendant monopolist to share its monopoly with the plaintiff because, inter alia, "[t]he federal judiciary is not a price control agency"); Four Corners, 582 F.3d at 1226 ("[A]ntitrust courts normally avoid direct price administration, relying [instead] on rules and remedies ... that are easier to administer." (second alteration and omission in original) (quoting Town of Concord v. Bos. Edison Co., 915 F.2d 17, 25 (1st Cir.1990)) (internal quotation marks omitted)).
Just as the Supreme Court has acknowledged that the federal courts are "ill suited `to act as central planners, identifying the proper price, quantity, and other terms of dealing,'" Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 555 U.S. 438, 452, 129 S.Ct. 1109, 172 L.Ed.2d 836 (2009) (quoting
In the end, this case is simple. JetAway "does not ask us to prevent a monopoly or break one apart," Four Corners, 582 F.3d at 1226, but asks to be installed as a monopolist. This relief is not available to JetAway, for the identity of the party that necessarily will exercise monopolistic control over the FBO services at the Airport "is a matter of indifference" to the antitrust laws. Brunswick Corp., 752 F.2d at 267. Because JetAway has failed to establish that Defendants' conduct reduced competition in the Airport's FBO services market, it cannot establish an antitrust injury. See Elliott Indus., 407 F.3d at 1124-25; Ashley Creek, 315 F.3d at 1254. Accordingly, in my view, the district court correctly granted summary judgment to Defendants on JetAway's Sherman Act claims.
Finally, given the per curiam disposition of this appeal, I pause to address certain concerns raised by my very esteemed colleague, Judge Tymkovich, in his own concurring opinion ("Tymkovich Concurrence"). Although that opinion accepts the overarching, fundamental conclusion that JetAway has not established the requisite antitrust injury, it declines to "underwrite some of the specifics" of my analysis. Tymkovich Concurrence at 1.
In my view, the approach of the Tymkovich Concurrence suffers from two salient, critical flaws. First, it improperly predicates its substantive Sherman Act analysis, and its view of the antitrust-injury requirement, on a definition of the relevant market that was never advanced by the parties.
Antitrust cases frequently present a host of intriguing intellectual detours; that
In light of this enduring legal principle, the Tymkovich Concurrence's criticism of this opinion's purported "embrace[]" of a "narrowly defined market," Tymkovich Concurrence at 4, is puzzling. The antitrust-injury analysis that I have undertaken is predicated on a relevant market that JetAway itself advanced, that Defendants acknowledged (at least tacitly) as the foundation for their responsive arguments, and that the district court accepted for purposes of adjudicating the summary-judgment issues. In contrast, the contours of the market that the Tymkovich Concurrence sua sponte proffers are entirely a product of the Tymkovich Concurrence's own hand. While I do not question its assertion that "a federal appellate court has discretion to affirm a grant of summary judgment on any legal grounds supported by the record," id. at 1 n. 1, given the posture of this case, I believe that the Tymkovich Concurrence's approach is unwarranted and ill-advised: no one has even hinted at affirming on the alternative grounds it endorses, and the district court did not even have an opportunity to consider, much less rule on, the market that the Tymkovich Concurrence has independently conjured up, see Arizona v. California, 530 U.S. 392, 412-13, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000) (instructing that "courts must be cautious about raising [issues] sua sponte, thereby eroding the principle of party presentation so basic to our system of adjudication").
It is well-settled that the plaintiff bears the burden of defining the relevant market, see Tarabishi v. McAlester Reg'l Hosp., 951 F.2d 1558, 1569 n. 15 (10th Cir.1991), and, in so doing, must present competent evidence to "make an affirmative showing of [its] proposed relevant market sufficient to sustain a reasonable jury finding," Telecor Commc'ns, Inc. v. Sw. Bell Tel. Co., 305 F.3d 1124, 1131 (10th Cir.2002); see Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 893 (10th Cir.1991) ("[T]he plaintiff must prove ... [the] relevant market (including geographic market and relevant product market) in which the alleged [antitrust violation] occurred." (quoting Shoppin' Bag of Pueblo, Inc. v. Dillon Cos., 783 F.2d 159, 161 (10th Cir.1986)) (internal quotation marks omitted)).
JetAway then sought to substantiate its market definition with Dr. Nelson's research results. It is patent from even a cursory review of Dr. Nelson's testimony that he conceived of JCP — and not the Airport — as being the monopolist, and the "relevant market" as being the Airport's "FBO Market." Id. at 3186; see id. ("JCP is the only competitor in the relevant market(s), which implies that its market share is 100%." (emphasis added)); see also id. (concluding "that the FBO services at [the Airport] and associated product-specific submarkets are well-defined relevant antitrust markets (both with respect to a `line of commerce' (product market) and `section of the country' (geographic market))"). And, when Defendants crossed swords with JetAway, framing the issues for decision, they did not challenge this basic definition of the market. See id. at 2836 (Cnty. Defs.' Summ. J. Br., filed Aug. 31, 2011) (accepting the premise that "JetAway claims entitlement to be the monopolist FBO at the Airport and bases its damage claim entirely upon being denied monopoly status" (emphasis added)). The district court properly reached its conclusions regarding the relevant market by focusing on the parties' arguments.
The parties also have maintained this perspective regarding the relevant market on appeal. See Aplt. Opening Br. at 3 ("This case arises from Defendants' concerted efforts to ... monopolize the [FBO] market at the [Airport]." (footnote omitted)). True to form, JetAway has continued to frame its arguments in terms of its ability "to compete as an on-Airport FBO," id. at 24, and JCP offers no resistance to this description, see Aplee. Opening Br. at 49 ("JetAway's claimed antitrust injury is that it, rather than JCP, should be the sole FBO at the Airport" (emphasis added)); Aplee. Opening Br. at 59 (discussing JetAway's "alleged lost `opportunity' to operate an FBO at the Airport").
Yet, with no foothold in the parties' firmly-established arguments, the Tymkovich Concurrence purports to reconfigure and redefine the market out of wholecloth. Given "the principle of party presentation," Greenlaw, 554 U.S. at 243, 128 S.Ct. 2559, this action — as I see it — is improper. It is well-settled that on appeal, this court reviews a district court's findings regarding the contours of the market under the clearly-erroneous standard. See Westman Comm'n Co. v. Hobart Int'l, Inc., 796 F.2d 1216, 1220 (10th Cir.1986). And, on this record, I believe any reviewing court would be hard-pressed to conclude that the district court clearly erred in accepting for purposes of its summary-judgment ruling a configuration of the relevant market that was congruent with the parties' arguments
At the end of the day, it is unnecessary for me to determine whether the Tymkovich Concurrence's alternative vision of the relevant market is more appropriate. It would not be proper for me to make such a determination, as the task of defining the relevant market was a matter for the parties — not this panel or, more specifically, the Tymkovich Concurrence — to undertake in the first instance. I note that my concurring opinion should not be read as negating the possibility that — were the facts and the parties' arguments different — the district court could have determined that the Airport was the relevant market and also the extant monopolist.
The Tymkovich Concurrence also claims to demur to this opinion's antitrust-injury analysis in that it "cannot agree ... that an upstart in a low-demand, one-firm market can never state an antitrust injury." Tymkovich Concurrence at 3 (emphasis added). But nor can I. Indeed, it seems patent that the Tymkovich Concurrence misinterprets my antitrust-injury analysis in this regard.
To be clear, as I see it, this concurring opinion does not definitively speak to whether there are circumstances where the antitrust-injury requirement might be satisfied in a monopolist-substitution scenario in a natural-monopoly market. See supra n. 12 ("[T]o the extent that there actually is an open question regarding whether such predatory or exclusionary conduct could give rise to an antitrust injury where the ultimate result is the replacement of one monopolist with another in a natural-monopoly market, I would leave the resolution of that question for another day."). Again, I find it noteworthy that some commentators have considered the matter an unresolved question. See Davis, supra, at 774-75; cf. Lawrence J. White, Economies of Scale and the Question of "Natural Monopoly" in the Airline Industry, 44 J. Air L. & Com. 545, 573 (1979) (hypothesizing that "[n]atural monopoly is not a serious problem for the airline industry," but cautioning that factors such as "the recent introduction of fare flexibility" suggest the need for "very close scrutiny" (internal quotation marks omitted)). Others have more strongly suggested that such a substitution could give rise to an antitrust injury. See, e.g., III Areeda, supra, ¶ 658b3, at 177-78. On these facts, however, I believe the more advisable approach is to avoid definitively staking out a position on this issue.
Critically, to the extent that an antitrust injury could arise when one monopolist replaces another in a natural-monopoly context, the authorities suggest that such
JetAway has established nothing more than that it sought to supplant JCP as the monopolist in the Airport's FBO services market — that is, to be the substitute monopolist — and that Defendants allegedly prevented it from doing so by means of various corrupt and unlawful practices. In particular, JetAway has not pointed to, much less offered evidence of, predatory or other exclusionary conduct of the kind that the antitrust laws have historically proscribed.
Alternatively, this case at least arguably might be analogized to the selection of an exclusive distributor for a given market — a species of conduct that also has not been historically condemned by the antitrust laws. See Westman Comm'n Co., 796 F.2d at 1225 (highlighting "[a] manufacturer's ability to limit its distributorships"); Blankenship v. Herzfeld, 661 F.2d 840, 844 (10th Cir.1981) (defending "[a] supplier['s]... right to unilaterally select and terminate its own distributors"); cf. Watkins & Son Pet Supplies v. Iams Co., 254 F.3d 607, 616 (6th Cir.2001) ("To the extent [Plaintiff] is claiming that it suffered an injury as a result of termination of its distributorship, we find ... that while a contract or tort claim might lie, an anti-trust claim does not...."); see also Davis, supra, at 742 ("Choosing A over B as one's exclusive distributor ... is not an antitrust violation at all.").
Yet, even assuming that some misconduct akin to such bidding or exclusive-distributor selections could rise to the level of an antitrust violation — a reasonable assumption I have made for purposes of my antitrust-injury analysis, see supra n. 9 — it is clear that JetAway still would be without redress. The Achilles's heel for JetAway remains its failure to show that any injury that it has suffered from Defendants' behavior also has had an anticompetitive effect. Vague allusions to the quality of FBO services or reduced prices cannot overcome this defect. Cf. NicSand, Inc. v. 3M Co., 507 F.3d 442, 459 (6th Cir.2007) (en banc) (noting that the plaintiff could not demonstrate having "suffered an antitrust injury, as opposed to the ill effects of price competition, which understandably hurts, but which does not by itself state a cognizable antitrust claim," and that "[o]therwise, every time an allegedly superior product or a lower-cost alternative was eliminated from the market by competition, the producer of that product
Furthermore, I underscore that the "substitution-of-monopolist" rule articulated supra is by no means painted in the broad brushstrokes that the Tymkovich Concurrence suggests. This rule does not perforce safeguard the incumbent monopolist; to the contrary, it is clearly indifferent to the identity of the market actors. More specifically, it is indifferent regarding whether the monopoly is ultimately possessed by the incumbent or the challenger. Stated otherwise, under different facts — such as those involving practices historically condemned by the antitrust laws — a firm like JetAway possibly could mount a legally cognizable objection to being excluded from the relevant market. But those facts simply are not present here; so, although in this case the effect of the "substitution-of-monopolist" rule is to insulate the incumbent (JCP) from liability, that would not necessarily be true in different settings.
In sum, the Tymkovich Concurrence proceeds on a false premise: that this opinion completely rejects the possibility of an antitrust injury resulting from one monopolist replacing another in a natural-monopoly setting. This is an untenable mischaracterization of the instant opinion's reasoning and conclusions. Consequently, although its analysis strives mightily (and might carry the day under different circumstances), I respectfully suggest that the Tymkovich Concurrence has only succeeded in defeating a straw man.
For the reasons stated herein, I would
TYMKOVICH, J., concurring.
JetAway has spun a sordid tale of small-town politics, but it has not described an injury the antitrust laws were designed to protect. And because JetAway cannot establish an antitrust injury, I join the per curium opinion that affirms the district court's decision below. Beyond this general level, however, I part company with the reasoning Judge Holmes employs in his concurring opinion ("Holmes Concurrence") to reach this conclusion. Indeed, given the analytical path down which the parties have guided the court — a path the Holmes Concurrence instinctively follows — I cannot underwrite some of the specifics of Judge Holmes's analysis. Proceeding along a different path compelled by the law, even one not specifically advanced by the parties, is the only way to recognize the realities of the antitrust principles at play in this case.
In particular, I disagree that this entire case is an instance of JetAway seeking to merely substitute one monopoly for another. Part of this case certainly falls under
But the same reasoning does not apply to defendants' post-bid efforts to prevent JetAway from becoming a second FBO. The relevant market is the Airport, and the Airport has no duty to allow competition for services on its premises. To avoid this conclusion, the defendants credit, and the Holmes Concurrence adopts, a narrower definition of the market — "FBO services at the Airport." And since the demand for FBO services would be insufficient to support two FBOs, the before-and-after picture will likely be the same: one on-airport FBO. Under this view, the competition for a natural monopoly is an "elimination bout" with the consumer an uninterested spectator. Thus, no antitrust injury.
Assuming the relevant market is a "natural monopoly," I still think competitive forces could play a pro-consumer role. Although Judge Holmes's reasoning is appealing on its surface, its logic is actually a self-fulfilling prophecy. If demand in a certain market is so low that only one firm can survive, then whether the incumbent firm behaves as a monopolist depends entirely on the rule we adopt. If, as Judge Holmes reasons, the incumbent firm is insulated from antitrust liability because it got there first, then the incumbent will indeed behave as a monopolist — because we said it can. But if, as I believe, the incumbent firm deserves no privileged position simply by virtue of already being there, then the very threat of an upstart entering the market will at least marginally constrain the incumbent's ability to extract monopoly rents. That does benefit consumers. And in any event, we have no right to enshrine the incumbent in its monopoly position simply because it is already there. That choice belongs to consumers.
Thus, I cannot agree with the implications of the Holmes Concurrence; namely, that an upstart in a low-demand, one-firm market can never state an antitrust injury.
I therefore write separately to explain what I believe to be the correct reasoning.
There are two complementary methods of demonstrating the failure of JetAway's antitrust claims: "by reference to the proper definition of a market or by reference to the absence of anticompetitive conduct." Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1193 (10th
JetAway brings claims under both Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 & 2). "To state a cause of action for conduct prohibited under § 2 of the Sherman Act, the plaintiff must define a relevant market within which the defendants allegedly engaged in anticompetitive behavior." Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1117 (10th Cir.2008).
For purposes of summary judgment, the district court accepted JetAway's expert's definition of the market as "FBO services at the Airport." Aplt.App. at 6865. The Holmes Concurrence also embraces this narrowly defined market. See Holmes Concurrence at 20-21, 35. But in my view, this definition misapprehends the relevant airport market, and does not reflect the underlying economic reality at play.
"The Supreme Court has recognized the economic value of allowing businesses to decide with whom they will deal...." Christy Sports, 555 F.3d at 1194. Thus, a ski resort may monopolize the market for ski rentals within the resort, id. at 1193-96; a hospital may monopolize the market for services within the hospital, Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, 582 F.3d 1216, 1221-25 (10th Cir.2009); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 480 n. 5 (7th Cir.1988); and a stadium may monopolize the sale of food within the stadium, Elliott v. United Center, 126 F.3d 1003, 1004-05 (7th Cir.1997). This result flows from the fact that skiers do not go to ski resorts simply to rent skis, patients do not go to a hospital simply for a single service, and sports fans do not go to a stadium simply to eat food. See Elliott, 126 F.3d at 1005. Rather, they purchase a package of related services. "To define one small component of the overall product as the relevant product market is simply implausible." Christy Sports, 555 F.3d at 1194.
The fact that a hospital, ski resort, or stadium might contract with a third party to provide a specific service does not change this:
I Phillip E. Areeda et al., Antitrust Law ¶ 209e3, at 315 (3d ed. 2007) ("Areeda").
Although the Montrose Airport is no Disneyland, a materially identical situation prevails here. No one disputes that the Airport may control access to its own premises, nor that FBO services are among the many types of services airlines, pilots, and passengers enjoy when visiting the Airport's premises. Thus, the Airport may operate its own FBO (as it has done in the past), it may operate its own FBO alongside a competitor (as it has also done in the past
Of course, one might argue that the public nature of the Airport (recognizing the Montrose County Building Authority's role) distinguishes it from a private business. Many of the cases expounding on the power of a business to restrict competition on its premises rely on the need to allow private firms to recoup their investment. See, e.g., Christy Sports, 555 F.3d at 1194; Elliott, 126 F.3d at 1005; see also Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004) ("[A]s a general matter, the Sherman Act does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal." (internal quotation marks omitted; alterations incorporated)). But this same need can apply to public entities as well as private. A public airport, just like a private airport, must somehow pay for the cost of building, maintaining, and perhaps upgrading its facilities, along with many other expenses. Thus, for example, a large airport like Denver International Airport might strictly control its concessionaires and the services they supply. But from an antitrust perspective, I see no reason to allow a private firm to choose with whom it will deal but not allow a public entity the same freedom.
An aspiring entrant into an airport's "market" might question a public airport's statutory authority to monopolize a market within its boundaries, to choose with whom it will deal, or to grant an exclusive concession.
In sum, "FBO services at the Airport" is not a relevant market. Instead, the market includes the full cluster of interrelated services that the Airport offers. Without its narrowly constructed market definition, JetAway has no Sherman Act claim based on defendants' efforts to thwart JetAway's desire to establish an FBO at the Airport. As I see it, the Airport faced no antitrust
For similar reasons, JetAway has failed to allege a cognizable antitrust injury. "[A] plaintiff can recover [under the antitrust laws] only if [its] loss stems from a competition-reducing aspect or effect of the defendant's behavior." Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990) (emphasis in original). As the district court recognized, JetAway alleges two distinct anticompetitive injuries: (1) efforts allegedly to corrupt the bid process, and (2) efforts allegedly to maintain JCP as the exclusive FBO. Aplt.App. at 2645. Neither allegation satisfies the "competition-reducing" requirement.
Before the County called for bids, it ran the Airport's sole on-airport FBO. There had been no competition for over ten years. The County then ostensibly opened the bidding for the chance to assume the County's FBO operations. JetAway claims that JCP's connections to the County made the result of the bidding a foregone conclusion, and even insinuates that JCP had an opportunity to change its bid in response to JetAway's.
The question, then, is whether a corrupt bid process reduces competition when the parties are bidding for an exclusive concession — or more specific to this case, when the parties are bidding to take over a portion of the monopolist's business that the monopolist had been running itself. The answer is no. Even had the bid process been clean, the result is the substitution of one firm for another, leaving competition — or the lack thereof — unchanged. "[S]ubstitution of one monopolist for another is not an antitrust violation." FTC v. Phoebe Putney Health Sys., Inc., ___ U.S. ___, 133 S.Ct. 1003, 1014, 185 L.Ed.2d 43 (2013) (quoting IA Areeda, ¶ 224e, at 126) (alteration in original).
With this much, I agree with Judge Holmes. The fact that JetAway had been operating a through-the-fence FBO does not change this. Even if we considered JetAway's off-airport operations relevant to the preexisting state of competition, the result from the consumer's standpoint is either the same or worse. When JetAway lost the bidding process, the status quo remained: one on-airport FBO and one off-airport FBO. Had JetAway won the bidding process, the consumer would have been left with a single FBO. Accordingly, JetAway cannot state a harm to competition with regard to the bid process at issue in this case, even if it was corrupt.
JetAway's other claim that defendants have conspired to exclude a second FBO likewise fails.
Again, no one disputes that the Airport may control its own premises. Thus, if the district court enjoined the Airport to allow JetAway to open an on-airport FBO, we would then have two on-airport FBOs, both operating under the Airport's control. JetAway assumes that such an arrangement would lead to competition, but the Airport has no antitrust duty to allow competition on its premises. In that respect, the Airport is like the defendant hospital in our recent Four Corners Nephrology decision. A nephrologist, Dr. Bevan, had sued a hospital under the antitrust laws to force the hospital to give him staff privileges, allowing him to compete with the hospital's in-house nephrology department. But, we said,
Four Corners Nephrology, 582 F.3d at 1226; see also IIIB Areeda, ¶ 773, at 239 ("When the monopolist is forced to sell [to a competitor], it sets the monopoly price and overall competitiveness is not affected at all; we simply have two firms sharing the monopoly rather than one."). In short, JetAway "is not a victim of antitrust injury, for there is no antitrust right to join a cartel." IIA Areeda, ¶ 348e1, at 217.
The foregoing analysis suffices to dispose of JetAway's claim that defendants have conspired to exclude a second FBO. Judge Holmes, however, employs different reasoning in his concurrence. By merging JetAway's claims related to the corruption of the bid process with its claims that defendants subsequently orchestrated to prevent JetAway from becoming a second FBO, Judge Holmes relies exclusively on the substitution-of-monopolist rule to reject the latter claims. Because the circumstances underlying each claim are distinct, I believe the Holmes Concurrence underestimates the scope of its premise with respect to the injury alleged concerning the post-bid process.
Judge Holmes, like defendants, bases his conclusion regarding defendants' post-bid exclusionary efforts largely on JetAway's expert, who opined that the relevant market was "FBO services at the Airport" and, in his view, "[t]here is only enough demand for FBO services at the Airport to support one FBO." Aplt.App. at 3190. In estimating JetAway's damages, the expert also assumed that competition between JCP and JetAway — if permitted — would last only about a year, after which JetAway would prevail. Aplt.App. at 4834, 4981, 6959. Defendants therefore argue: (1) the short period of competition JetAway's expert anticipates is not enough to state an antitrust injury, and (2) ultimately JetAway is seeking to substitute one monopolist for another. Defendants argue, in essence, that providing FBO services at the Montrose Airport is a natural monopoly. Cf. Richard A. Posner, Economic Analysis of Law § 12. 1, at 460 (8th ed. 2011) ("[I]f a market is small enough, almost any kind of firm can have a natural monopoly — a grocery store in a village, for example — because every firm has some fixed costs, and they may dominate total costs if demand is low enough.").
This reasoning goes down an anticompetitive path. Defendants have cited no persuasive authority for the notion that a projected short period of competition (should the plaintiff prevail on its antitrust claim) somehow vitiates antitrust injury. Indeed, defendants' cited authorities stand for the converse. In Adaptive Power Solutions, LLC v. Hughes Missile Systems Co., 141 F.3d 947 (9th Cir.1998) and Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243 (D.C.Cir. 1987), courts found insufficient antitrust injury because the lack of competition lasted only a short time.
The crucial problem with defendants' argument is the failure to distinguish the significance of the Airport's ownership of its premises from the significance of low demand. As explained previously, it is the Airport's control over concessionaires that undermines JetAway's claim of antitrust injury — concessionaires may only compete on the terms set by the concession-granter, which do not altogether coincide with the interests of the consumer. But defendants argue (and Judge Holmes agrees) that low demand (or the "natural monopoly"), regardless of the Airport's control of its own premises, is enough to invoke the substitution-of-monopolist rule.
Assuming for sake of argument that a public airport has a duty to open its premises to freewheeling concessionaire competition, its failure to do so is — right now — reducing competition, which is the essence of antitrust injury. This is so even if the sought-for competition is inevitably a winner-take-all contest. "[C]ompetition for a natural monopoly can be just as beneficial to consumers as competition within an ordinary market." III Areeda, ¶ 658b3, at 178 (emphasis in original). Among other things, the threat of potential competition for a natural monopoly will force the incumbent to lower its prices, knowing that upstarts may be waiting in the wings. Id. In any event, during the one-year competition period forecasted by JetAway's expert, pilots and airlines could play one FBO against the other for the best long-term deals — futures contracts, essentially — thus preserving lower prices for a longer term than the competition period itself. And again, as long as the victor knows that an upstart could potentially invade its market, monopoly pricing power is constrained.
I am not aware of any principle of antitrust law which can convert such competition-enhancing possibilities into a lack of antitrust injury. "If monopoly power can be used to beget monopoly, the [Sherman] Act becomes a feeble instrument indeed." United States v. Griffith, 334 U.S. 100, 108, 68 S.Ct. 941, 92 L.Ed. 1236 (1948), overruled on other grounds by Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 763 n. 8, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). Indeed, defendants
And in the antitrust realm, there is every difference in the world between a monopolist anointed by consumers and a monopolist anointed by itself. See Trinko, 540 U.S. at 407-08, 124 S.Ct. 872 (distinguishing those who obtain monopoly power through "superior product, business acumen, or historic accident" and those who obtain it through "anticompetitive conduct" (emphasis removed)); United States v. Aluminum Co. of America, 148 F.2d 416, 429 (2d Cir.1945) ("[T]he origin of a monopoly may be critical in determining its legality."). Thus, the incumbent newspaper in a town too small to support more than one paper may not defend an antitrust suit by asserting that one paper or the other will inevitably fail: "Where there is no identity of performance we will not say that the public does not have an interest in competition even though that competition be an elimination bout." Union Leader Corp. v. Newspapers of New England, Inc., 284 F.2d 582, 590 n. 4 (1st Cir.1960); see also Greenville Publ'g Co. v. Daily Reflector, Inc., 496 F.2d 391, 397 (4th Cir.1974) ("[E]ven if we proceeded on the assumption that one of the [competing papers] must fail, deliberate exclusionary conduct would still support a charge of attempted monopoly.... [T]he antitrust laws need not tolerate exclusionary conduct whenever it appears that only one competitor can survive the preliminary bout."). Nor can the incumbent sports team in a town with only enough demand for one franchise avoid antitrust liability on that premise:
There is no good reason to treat airport FBO services differently. Assuming, again, that the Airport must open its premises to FBO competition, and that the Airport has only enough demand for one FBO, "[the] choice [between the upstart and the incumbent in a natural monopoly] should in the first instance be made by consumers." III Areeda, ¶ 658b3, at 178. And JetAway in fact argues in this case that its now-shuttered through-the-fence FBO could provide better services to the consumer in the form of a more convenient location, larger hangar and terminal, more ramp space, and more fueling capacity. See Aplt. Opening Br. at 32-33.
To be sure, a defendant may offer evidence of low demand to support an argument that it operates in a natural monopoly — but this only rebuts any inference of illegality flowing from the defendant's position as a monopolist. See Hecht, 570 F.2d at 990; Greenville Publ'g, 496 F.2d at 397. Nonetheless, "the fact that a market is a natural monopoly should not operate as a guarantee that a particular incumbent is entitled to be the natural monopolist; a more aggressive rival might be a more efficient occupant of the same position." III Areeda, ¶ 658b3, at 177; cf. IIA Areeda, ¶ 348, at 215 ("Even when a monopoly appears inevitable — which is seldom certain — antitrust does not become indifferent to the tactics employed by the victor. Thus, once pricing is determined to be predatory, the defendant would not escape liability to its immediate victim by asserting, or even proving, that monopoly is inevitable in this market.").
Finally, defendants' overarching substitution-of-monopoly argument depends entirely on assumptions about demand. But natural monopolies can evaporate as circumstances change, and demand is a circumstance that can fluctuate wildly. Prospectors in the Uncompahgre Valley could discover a new mineral deposit and Montrose could become a mining boomtown, leading to increased traffic at the Airport and enough demand for two or more FBOs. Cf. III Areeda, ¶ 658b3, at 177 (arguing against giving protected status to an incumbent natural monopolist because, among other reasons, "technology may change a market from a natural monopoly to one in which rivalry is efficient" and any protected natural monopolist would have an incentive to stifle such innovation).
"[T]he ultimate issue is whether the plaintiff (1) seeks to join the exclusive arrangement while leaving the exclusivity requirement otherwise intact; or (2) seeks to forbid exclusivity, first on its own behalf, and implicitly on behalf of others." IIA Areeda, ¶ 348e1, at 217. JetAway sees itself under the second prong, and as between the second prong and the Holmes Concurrence's substitution-of-monopoly argument, JetAway is closer to correct.
Unfortunately for JetAway, the closest to correct is actually the first prong. As noted, this case turns not on demand for FBO services at the Airport, but on the Airport's control of its own premises. The Airport has no antitrust duty to open its premises up to concessionaire competition. If it did, however, then the demand-created natural monopoly would be no defense to antitrust liability.
For the reasons stated above, I would affirm the judgment of the district court.
Sharp v. United Airlines, Inc., 967 F.2d 404, 406-07 (10th Cir.1992); accord Elliott Indus., 407 F.3d at 1124 n. 31; Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995); Reazin v. Blue Cross & Blue Shield of Kan., Inc., 899 F.2d 951, 962 n. 15 (10th Cir.1990). These six factors "validate" and "give more specificity to the inquiry mandated by the two-part test." Sharp, 967 F.2d at 407 n. 2. I do not delve into the points of intersection of these two tests, however, because I would resolve this case by concluding that JetAway cannot establish the first prong of the two-part test — antitrust injury. Regardless of which test is applied, antitrust injury is a prerequisite to antitrust standing. See Elliott Indus., 407 F.3d at 1124 ("Antitrust injury and antitrust standing are overlapping concepts; `[s]tanding cannot be established without an antitrust injury, but the existence of an antitrust injury does not automatically confer standing.'" (alteration in original) (quoting Sharp, 967 F.2d at 406)). Parsing these two tests is unnecessary for the additional reason that the "nature-of-the-plaintiff's-injury" factor of the six-factor test essentially asks whether there was an antitrust injury. See Reazin, 899 F.2d at 962 n. 15 ("The nature of the plaintiff's injury factor is designed to implement the requirement that only antitrust injuries are redressable under section 4.").
Davis, supra, at 775 (emphasis added).
However, it is important to note that, in the circumstances contemplated by this allegedly open question, a cognizable antitrust injury does not arise from the mere act of substituting one monopolist for another — with no appreciable reduction in competition — but rather from the distinct "predatory or exclusionary activity," id. at 766, of the monopolist defendant that is calculated to effectuate the substitution. See Fishman, 807 F.2d at 535 (noting that "[t]he antitrust laws protect against unlawful, exclusionary conduct to acquire a natural monopoly"); id. at 536 ("[T]he defendants, through the economic leverage provided by their stadium monopoly, succeeded in driving out all competition for ownership of the [Chicago] Bulls. They used a monopoly in one market to foreclose competition in another — a classic violation of the antitrust laws."); see also Almeda Mall, Inc. v. Hous. Lighting & Power Co., 615 F.2d 343, 354-55 (5th Cir.1980) (noting that the circumstance of Otter Tail "happens when true competition is operative and anticompetitive activity surfaces"); Byars, 609 F.2d at 858 ("Otter Tail, among other things, refused to deal when small towns proposed to replace it with their own retail power systems. In that case, Otter Tail used its monopoly power in the wholesale power market to prevent the displacement of its (natural) monopoly in the local retail power market."). However, "[p]redatory pricing appears nowhere in [this] case," Novell, 731 F.3d at 1074, and JetAway does not cite Otter Tail or Fishman, much less allege the sort of "unlawful, exclusionary conduct," Fishman, 807 F.2d at 535, present there. Therefore, to the extent that there actually is an open question regarding whether such predatory or exclusionary conduct could give rise to an antitrust injury where the ultimate result is the replacement of one monopolist by another in a natural-monopoly market, I would leave the resolution of that question for another day.
Second, JetAway asserts that Columbia River, unlike this case, involved a state-sanctioned monopoly. But the reasoning of Columbia River was not dependent on the state-sanctioned status of the monopoly. Moreover, the rationale underlying Columbia River — that competition is not harmed simply by the replacement of one monopolist with another — holds true regardless of whether the monopoly is sanctioned by the state or is dictated by market forces.
