AA All Star Enterprises, Inc. v. Ameritech Publishing, Inc. (In re AA All Star Enterprises, Inc.)

173 B.R. 343, 1994 Bankr. LEXIS 1446
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedSeptember 7, 1994
DocketBankruptcy No. 94-3136; Related No. 94-31962
StatusPublished

This text of 173 B.R. 343 (AA All Star Enterprises, Inc. v. Ameritech Publishing, Inc. (In re AA All Star Enterprises, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AA All Star Enterprises, Inc. v. Ameritech Publishing, Inc. (In re AA All Star Enterprises, Inc.), 173 B.R. 343, 1994 Bankr. LEXIS 1446 (Ohio 1994).

Opinion

MEMORANDUM OPINION AND DECISION

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Plaintiff’s Verified Complaint For Temporary And Permanent Mandatory Injunction, Motion For Preliminary (Affirmative) Injunction, Motion For Emergency Hearing, Supplemental Brief In Support of Plaintiffs Motion For Preliminary Injunction, and Reply Brief, and Defendant’s Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction, Supplemental Memorandum, and Second Supplemental Memorandum. At the Hearing, the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. This Court has reviewed the arguments of counsel, exhibits presented as well as the entire record in the case. Based upon that review, and for the following reasons, the Court finds that the Plaintiffs Motion for Preliminary Injunction should be Denied.

FACTS

PlaintiffiDebtor AA All Star Enterprises, Inc. (hereafter “All Star”) is an Ohio corporation engaged in the' business of, among other things, appliance repair. On August 10, 1994, Plaintiff filed a voluntary Chapter 11 petition with this Court. On August 18, 1994, Plaintiff filed a Verified Complaint For Temporary and Permanent Injunction, initiating the present case. On that same day, Plaintiff filed a Motion For Emergency [344]*344Hearing, along with a Motion For Preliminary Injunction, asking this Court to direct Defendant Ameritech Publishing Inc. (hereafter “Ameritech”) to publish All Star’s advertisement in its commercial telephone advertising directory, commonly known as the “Yellow Pages”. The basis for Plaintiffs claim is that Ameritech’s refusal to publish its advertisement will cause irreparable harm to All Star, which obtains almost all of its business from yellow pages advertising, according to the affidavit of Patrick Mayberry, the President of All Star.

An Emergency Hearing was held on August 19, 1994. At that Hearing it was revealed by Ameritech that the basis for its refusal to publish All Star’s advertisement is that All Star has not paid approximately One Hundred Seventy-seven Thousand Nine Hundred Thirty-three Dollars ($177,933.00) for previous Yellow Page advertisements. Of this amount, approximately Eighty-three Thousand Four Hundred Sixty-seven Dollars ($83,467.00) related to advertisements displayed in the 1992-93 Yellow Pages editions for Toledo, Akron, and Indianapolis. The amounts relating to the 1992-93 can be broken down further, into approximately Forty-nine Thousand Three Hundred Ninety-two Dollars ($49,392.00) for the Toledo advertisement, Eighteen Thousand Five Hundred Eighty-five Dollars ($18,585.00) for Akron, and Fifteen Thousand Four Hundred Ninety Dollars ($15,490.00) for Indianapolis. The 1993-94 unpaid advertisements which were run in Toledo and Indianapolis only, totaled approximately Ninety-four Thousand Four Hundred Sixty-six Dollars ($94,466.00). These figures were not disputed by All Star.

All Star’s justification for not paying these claims relates back to two lawsuits presently pending in state court between itself and Ameritech. The first action appears to be for breach of contact. It appears that All Star expected Ameritech to display its ad first in the 1992-93 Toledo Yellow Pages titled listing. Instead they were placed second. This was the only advertisement alleged to be misplaced. All Star’s only explanation for not paying for any of the other ads is that they expect a judgment against Amer-itech from these lawsuits, and the moneys owed could simply be subtracted from the judgments.

The second action is an antitrust lawsuit against Ameritech under Section 2 of the Sherman Act for Ameritech’s refusal to publish any further advertisements without payment on the previous ones. In that action, All Star alleges that the operation of the Yellow Pages was in effect a monopoly for Ameritech, and as such Ameritech must provide equal access to services for all. It is on the basis of this suit that All Star seeks a Preliminary Injunction.

DISCUSSION

The issue presented in this case is whether this Court should grant a Preliminary Injunction as requested by All Star on the basis of All Star’s pending Antitrust action. For the reasons discussed below, the Court will deny All Star’s request for Preliminary Injunction.

As stated by the 6th Circuit Court of Appeals, there are four factors particularly important in determining whether a preliminary injunction is proper:

(1) the likelihood of success on the merits;
(2) whether injunction will save the plaintiff from irreparable injury;
(3) whether the injunction would harm others; and
(4) whether the public interest would be served by the injunction.

In re DeLorean Motor Company, 755 F.2d 1223 (1985).

For the reasons discussed below, this Court finds that All Star has failed to show a likelihood of success on the merits, and will thus deny its Motion. The other factors listed above need not be discussed in detail. However, it should be noted that Plaintiff has also made no showing that the injunction would harm others or society, other than the bare allegation that All Star may be forced out of business, and the result would harm competition in the appliance repair market. There has been no showing that this market would be non-competitive without the presence of All Star, or that any type of monopoly would result.

[345]*345The law in the area of antitrust under Sherman Act has been summarized by the United States Supreme Court in United States v. Grinnell Corp., 384 U.S. 563, 570, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966). In that- ease the Supreme Court noted that illegal monopolization under Section 2 of the Sherman Act has two distinct elements: 1) possession of monopoly power in the relevant market and 2) “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historical accident.” 384 U.S. at 570-71, 86 S.Ct. at 1704.

In the case at bar, All Star must make a reasonable showing that Ameritech’s control of the Yellow Pages is a monopoly in the “relevant market” in order to prevail in its antitrust action. Though this Court does not hereby hold that All Star has made this showing, there are several eases wherein the Yellow Pages has been inferred to possess monopoly power in certain instances. See Directory Sales Management v. Ohio Bell Telephone Company, 833 F.2d 606 (6th Cir.1987); Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories Corporation, 849 F.2d 1336 (11th Cir.1987); Yellow Pages Consultants, Inc. v. GTE Directories Corporation, 951 F.2d 1158 (9th Cir.1991). The Court will assume, arguendo, that monopoly power exists as a basis for the analysis of the value of All Star’s claim.

The “refusal to deal” area of antitrust law under Section 2 of the Sherman Act, has been succinctly stated by the 6th Circuit in Byers v. Bluff City News Company,

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173 B.R. 343, 1994 Bankr. LEXIS 1446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aa-all-star-enterprises-inc-v-ameritech-publishing-inc-in-re-aa-all-ohnb-1994.