American Ad Management, Inc. v. General Telephone Co.

190 F.3d 1051
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 9, 1999
DocketNo. 97-55679
StatusPublished
Cited by3 cases

This text of 190 F.3d 1051 (American Ad Management, Inc. v. General Telephone 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
American Ad Management, Inc. v. General Telephone Co., 190 F.3d 1051 (9th Cir. 1999).

Opinion

TASHIMA, Circuit Judge:

American Ad Management, Inc. and O’Connor Agency (collectively “American”) appeal the district court’s grant of summary judgment in favor of General Telephone Company of California and related companies (collectively “GTE”), in American’s suit against GTE for asserted violations of the federal antitrust laws and related state law claims. We previously reversed the district court’s award of summary judgment on the merits in favor of GTE. See American Ad Management, Inc. v. GTE Corp., 92 F.3d 781 (9th Cir.1996) (“American Ad I”). On remand, the district court again granted summary judgment to GTE, holding that American lacks antitrust standing. American appeals, contending that it has standing under the test set forth in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), and theories based on American’s participation in the restrained market and the fact that American’s injury was inextricably intertwined with GTE’s anticompetitive scheme. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

I.

GTE publishes telephone directories commonly known as Yellow Pages. Advertisers may purchase advertising space in the directories either directly from GTE or through an Authorized Selling Representative (“ASR”). American is an ASR.

Once an ASR receives an order for advertising space, the ASR purchases the space from the publisher. The publisher sells the space to the ASR at a lower price than that given to the public, thereby providing the ASR with a commission. By charging customers a price lower than the publicly available price, the ASR passes some of the commission on to the customers. This common practice is called “discounting.”

GTE is a member of the Yellow Pages Publishers Association (“YPPA”). In 1992, American filed suit against GTE, raising claims under § 1 of the Sherman Act, 15 U.S.C. § 1, other federal antitrust laws, and state law.1 American alleges that members of the YPPA agreed to eliminate commissions on local accounts and to restrict the definition of national accounts on which commissions are still paid with the effect of ending the ASRs’ practice of discounting with respect to local accounts.

In 1994, the district court granted GTE’s motion for summary judgment on American’s antitrust claims and dismissed its supplemental state law claims on the ground that American had failed to raise a genuine issue of material fact as to whether GTE’s conduct unreasonably restrained trade. American appealed. This court reversed the award of summary judgment, [1054]*1054finding that there were disputed issues of fact with respect to all of the elements of American’s claim under § 1 of the Sherman Act. See American Ad I, 92 F.3d at 792.2 In the process of deciding whether the district court applied the correct analytical framework to the issue of whether the alleged conspiracy constituted an unreasonable restraint of trade, we found the relationship between the ASRs and the publishers to be one of agency, rather than one of retailer and wholesaler. See id. at 785. We stated, “[i]n short, ASRs do not compete with publishers in the sale of yellow pages advertising, rather the relationship is one of agency.” Id. at 786 (footnote omitted). Because genuine issues of material fact existed, we remanded the case to the district court. See id. at 792.

On remand, the district court again granted summary judgment in favor of GTE, this time on the ground that American lacks antitrust standing to bring this suit. American appeals.

II.

We review the grant of summary judgment de novo. See Tri-State Dev., Ltd. v. Johnston, 160 F.3d 528, 529 (9th Cir.1998). Because the facts underlying the district court’s conclusion that American lacked antitrust standing are not in dispute, the only question we must determine is whether the district court correctly applied the relevant law. See id. Antitrust standing is a question of law reviewed de novo. See Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir.1997).

III.

A. Antitrust Standing

? 4 of the Clayton Act authorizes the award of damages under the antitrust laws: “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15(a) (1999). This provision is quite broad, and if “[rjead literally, could afford relief to all persons whose injuries are causally related to an antitrust violation.” Amarel, 102 F.3d at 1507 (quoting Lucas v. Bechtel Corp., 800 F.2d 839, 843 (9th Cir.1986)) (internal quotation marks omitted) (alteration in the original). The Supreme Court has determined, however, that Congress did not intend § 4 to have such an expansive scope. See Associated General, 459 U.S. at 530-35, 103 S.Ct. 897. Therefore, courts have constructed the concept of antitrust standing, under which they “evaluate the plaintiffs harm, the alleged wrongdoing by the defendants, and the relationship between them,” id. at 535, 103 S.Ct. 897, to determine whether a plaintiff is a proper party to bring an antitrust claim.3

Recognizing that it is “virtually impossible to announce a black-letter rule that will dictate the result in every case,” id. at 536, 103 S.Ct. 897, the Supreme Court in Associated General identified certain factors for determining whether a plaintiff who has borne an injury has antitrust standing. These factors include: [1055]*1055Amarel, 102 F.3d at 1507 (citing Associated General, 459 U.S. at 535, 103 S.Ct. 897); see also Lucas Automotive Eng’g, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228, 1232 (9th Cir.1998) (citing same factors).

[1054]*1054(1) the nature of the plaintiffs alleged injury; that is, whether it was the type the antitrust laws were intended to forestall;
(2) the directness of the injury;
(3) the speculative measure of the harm;
(4) the risk of duplicative recovery; and
(5) the complexity in apportioning damages.

[1055]*1055To conclude that there is antitrust standing, a court need not find in favor of the plaintiff on each factor. See Amarel, 102 F.3d at 1507. Generally “[n]o single factor is decisive.” R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 890 F.2d 139, 146 (9th Cir.1989) (en banc). Instead, we balance the factors. See id. Nevertheless, we give great weight to the nature of the plaintiffs alleged injury. See Amarel, 102 F.3d at 1507.

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190 F.3d 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-ad-management-inc-v-general-telephone-co-ca9-1999.