Adaptive Power Solutions, LLC v. Hughes Missile Systems Co.

141 F.3d 947, 98 Cal. Daily Op. Serv. 2752, 98 Daily Journal DAR 3799, 1998 U.S. App. LEXIS 7420, 1998 WL 172774
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 15, 1998
DocketNo. 97-55010
StatusPublished
Cited by7 cases

This text of 141 F.3d 947 (Adaptive Power Solutions, LLC v. Hughes Missile Systems Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adaptive Power Solutions, LLC v. Hughes Missile Systems Co., 141 F.3d 947, 98 Cal. Daily Op. Serv. 2752, 98 Daily Journal DAR 3799, 1998 U.S. App. LEXIS 7420, 1998 WL 172774 (9th Cir. 1998).

Opinion

OVERVIEW

THOMPSON, Circuit Judge:

Adaptive Power Solutions, LLC (“APS”), a defense industry subcontractor, sued Hughes Missile Systems Company (“Hughes”) and Raytheon Company (collectively the “defendants”) for allegedly violating section 1 of the Sherman Act and related state law claims. APS alleged that the defendants joined in a concerted refusal to deal with APS to punish APS for attempting to raise prices, which drove APS out of business. The district court granted summary judgment in favor of the defendants on the Sherman Act claim and dismissed the state law claims without prejudice. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

Raytheon and Hughes are the only two firms that manufacture advanced medium [949]*949range air to air missiles (“AMRAAMs”) for sale to the Department of Defense.

In June 1995, the plaintiff APS acquired all of the assets of Sigmapower, Inc. Prior to that acquisition, Sigmapower had manufactured sophisticated electronic equipment, primarily for use in the defense industry. In particular, Sigmapower had manufactured an internal power supply system known as the “A3” for the AMRAAM missile. At the time that APS bought Sigmapower’s assets, Sigmapower supplied A3s to Raytheon. Another electronic subcontractor, Oeeo Corporation, supplied A3s to Hughes. There were no other suppliers of A3s.

Even before the Sigmapower acquisition was completed, APS began to negotiate with Raytheon for the sale of A3s. In these negotiations, APS raised its asking price for A3s from the previous price of $2,750 per unit to $3,900 per unit. Raytheon refused to buy A3s from APS at the new price.

APS then tried to sell the A3s to Hughes for $2,758, but Hughes refused to buy them. For the purpose of this summary judgment motion, the defendants do not contest APS’s allegation that because Raytheon was “angered at APS’s attempt to charge Raytheon an increased price for A3’s,” Raytheon convinced Hughes to join it in refusing to deal with APS “for the purpose and with the intent of driving APS out of the market for the manufacture of A3’s.”

When APS could not sell its A3s to either Raytheon or Hughes, APS got out of the A3 business. This occurred in September 1995. Oeco then became the only remaining supplier of A3s. But not for long.

The next month, Raytheon awarded a contract for A3s to Signal Technologies Keltee Corporation (“ST Keltee”), a new entrant in the market for the manufacture and sale of A3s. ST Keltee manufactured sophisticated electronic equipment, primarily for the defense industry.

At about this same time, October 1995, APS sold to SoraPower, Inc., another new entrant in the A3 manufacturing market, the assets needed to manufacture A3s (but did not sell to SoraPower APS’s inventory of completed A3s). In March or April 1996, SoraPower tried to get Hughes to sign a contract to buy A3s from it, but Hughes refused.

APS filed this lawsuit against Hughes and Raytheon in April 1996, alleging a violation of section 1 of the Sherman Act and related state law claims. Raytheon later moved for summary judgment, and Hughes joined in that motion. APS opposed the motion and moved for a continuance so it could conduct further discovery. The district court denied APS’s motion for a continuance, and granted summary judgment in favor of the defendants on the Sherman Act claim. The court then dismissed without prejudice the state law claims. APS now appeals.

A. The Raytheon/Hughes Conspiracy

For the purpose of the summary judgment motion, the parties assume that Raytheon and Hughes conspired to drive APS from the business of supplying A3s. APS argues this conspiracy is a group boycott or refusal to deal which is per se unreasonable.

Section 1 of the Sherman Act provides: “Every ... conspiracy, in restraint of trade or commerce among the several States, ... is hereby declared to be illegal.” 15 U.S.C. § 1 (1994). A restraint of trade is per se unreasonable, when “the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output.” National Collegiate Athletic Ass’n v. Board of Regents of Univ. of Okla., 468 U.S. 85, 100, 104 S.Ct. 2948, 2959, 82 L.Ed.2d 70 (1984) (citation omitted). If a court finds that a restraint is not per se unreasonable, it analyzes the restraint under the rule of reason to determine “whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” Federal Trade Comm’n v. Indiana Fed’n of Dentists, 476 U.S. 447, 458, 106 S.Ct, 2009, 2017, 90 L.Ed.2d 445 (1986) (citation omitted).

The Supreme Court has applied the per se approach to cases that “have generally involved joint efforts by a firm or firms to disadvantage competitors____” Northwest Wholesale Stationers, Inc. v. Pacific-Station[950]*950ery & Printing Co., 472 U.S. 284, 293-94, 105 S.Ct. 2613, 2619, 86 L.Ed.2d 202 (1985) (emphasis added). Three characteristics are indicative of a per se illegal boycott:

(1) the boycott cuts off access to a supply, facility, or market necessary to enable the victim firm to compete; (2) the boycotting firm possesses a dominant market position; and (3) the practices are not justified by plausible arguments that they enhanced overall efficiency or competition.

Hahn v. Oregon Physicians’ Serv., 868 F.2d 1022, 1030 (9th Cir.1988) (summarizing Northwest Wholesale Stationers, Inc., 472 U.S. at 294, 105 S.Ct. at 2619-20). Absent such a showing, “the category of activities comprising group boycotts ‘is not to be expanded indiscriminately.’ ” Id. (quoting Indiana Fed’n of Dentists, 476 U.S. at 458, 106 S.Ct. at 2017-18).

Framing its argument to fit within the Hahn formulation, APS argues that the defendants’ conspiracy was per se illegal because (1) it cut off APS’s access to the market for the sale of A3s; (2) the defendants are the only manufacturers of AMRAAMs so, not only are they the dominant market, they are the only market for the sale of A3s; and (3) the defendants have failed to state a plausible argument that their conspiracy enhanced competition.

This argument overlooks the Court’s description of a group boycott as one which “disadvantages competitors.” Northwest Wholesale Stationers, Inc., 472 U.S. at 294, 105 S.Ct. at 2619-20. “[T]he per se approach has generally been limited to cases in which firms with market power boycott suppliers or customers in order to discourage them from doing business with a competitor.” Indiana Fed’n of Dentists, 476 U.S. at 458, 106 S.Ct. at 2018 (emphasis added).

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141 F.3d 947, 98 Cal. Daily Op. Serv. 2752, 98 Daily Journal DAR 3799, 1998 U.S. App. LEXIS 7420, 1998 WL 172774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adaptive-power-solutions-llc-v-hughes-missile-systems-co-ca9-1998.