Belfiore v. New York Times Co.

826 F.2d 177
CourtCourt of Appeals for the Second Circuit
DecidedAugust 7, 1987
DocketNo. 1351, Docket 87-7280
StatusPublished
Cited by49 cases

This text of 826 F.2d 177 (Belfiore v. New York Times Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belfiore v. New York Times Co., 826 F.2d 177 (2d Cir. 1987).

Opinion

MESKILL, Circuit Judge:

This is an appeal from a judgment entered in the United States District Court for the District of Connecticut, Zampano, J., which granted the motion for summary judgment offered by defendants, The New York Times Co. (the Times), several newspaper wholesalers that distribute The New York Times and MCI Corporation (now named Callcenter Services, Inc. and hereinafter CSI), an independent telephone soliciting firm employed by the Times. Belfiore v. New York Times Co., 654 F.Supp. 842 (D.Conn.1986). Plaintiffs are independent morning newspaper home delivery dealers. They allege that defendants have abused monopoly power, conspired to monopolize and attempted to monopolize under section two of the Sherman Act, 15 U.S.C. § 2 (1982), and fixed prices and conspired with others in restraint of trade under section one of the Sherman Act, 15 U.S.C. § 1 (1982). Plaintiffs’ Sherman Act claims arise from the Times’ decision to compete with them in the home delivery of The New York Times. Plaintiffs also appeal from the district court’s denial of certain of their discovery requests and their motion for leave to amend the complaint. Finally, plaintiffs appeal from the district court’s order denying their motion to disqualify for bias the special master, complaining that the alleged bias now requires vacatur and remand for new proceedings. For the reasons that follow, we reject plaintiffs’ contentions and affirm the judgment below.

BACKGROUND

The Times publishes The New York Times. The Times distributes The New York Times through newspaper wholesalers, who distribute it (and other newspapers such as The New York Daily News and The New York Post) to independent morning delivery dealers, such as plaintiffs, and to retail outlets. The Times holds no ownership interest in the wholesalers or the independent dealers.

Plaintiffs deliver morning newspapers in exclusive territories located in Fairfield County, Connecticut. A New York publishers’ association established these territories several years ago. Pursuant to the territorial allocations, the plaintiffs deliver all of the association’s members’ papers, and other papers, to home subscribers. Plaintiffs allege that over seventy-five percent of their deliveries are of The New York Times.

Prior to September 1982, plaintiffs experienced no competition in their territories. Thereafter, however, the Times instituted its own home delivery system in Fairfield County (the T-Route system), allegedly in response to a precipitous decline in home subscriptions over the preceding four years. The T-Route system delivers The New York Times to home subscribers in competition with plaintiffs, who concede that they still are able to purchase and deliver The New York Times and the other newspapers they traditionally have carried to their customers. Through its T-Routes the Times has gained fifteen percent of the home delivery market in Fairfield County.

Plaintiffs filed this action in September 1982. The district court appointed a special master, Kenneth Wallace, to supervise discovery and pretrial proceedings. Wallace formerly had been associated with defendants’ counsel, Cahill Gordon & Reindel, and briefly served in unrelated legal matters as local counsel for Cahill Gordon during his tenure as special master. This relationship [180]*180prompted plaintiffs to move to disqualify Wallace under 28 U.S.C. § 455 (1982), which motion the district court denied. Plaintiffs appeal from this ruling, as well as from the district court’s denial of certain of their discovery requests and their motion for leave to amend the complaint.

DISCUSSION

A. Merits

In reviewing the grant of summary judgment, we recently explained

that while [it] is a valuable means for avoiding unnecessary trials, and recent Supreme Court as well as Second Circuit cases have tended to encourage its use in complex cases such as this one, ... it should not be regarded as a substitute for trial. Thus, while the Supreme Court has indicated that trial courts should draw only reasonable inferences in favor of the non-moving party viewing the evidence as a whole, ... and while some assessing of the evidence is necessary in order to determine rationally what inferences are reasonable and therefore permissible, it is evident that the question of what weight should be assigned to competing permissible inferences remains within the province of the factfinder at trial.

Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.1987) (citations omitted). Applying these principles, we review the district court’s judgment as to each of plaintiffs’ claims.

1. Abuse of Monopoly

Monopolization in violation of section two requires a showing of “ ‘two elements: (1) the 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 historic accident.’ ” Hayden Publishing Co. v. Cox Broadcasting Corp., 730 F.2d 64, 68 (2d Cir.1984) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966)).

In the district court, plaintiffs alleged that the Times monopolizes the “general interest daily newspapers directed primarily to upscale readers” market. 654 F.Supp. at 846. As the district court noted, this market definition is implausible as a theoretical matter. Plaintiffs’ narrow definition is an awkward attempt to conform their theory to the facts they allege; this market definition does not reflect any relevant market evidenced in the record. See Grinnell Corp., 384 U.S. at 590-91, 86 S.Ct. at 1713-14 (Fortas, J., with Stewart, J., dissenting) (criticizing narrow market definitions tailored only to those activities in which defendants engage; relevant market includes alternative sources of and substitutes for defendants’ product reflecting “commercial realities”).

The district court, looking to a relevant market defined in terms of general circulation daily newspapers, determined that plaintiffs failed to counter the Times’ evidence that it does not possess a monopoly in Fairfield County. The Times produced uncontradieted evidence that The New York Daily News and The New York Post have greater circulation than The New York Times. J.App. at 1950-51. The district court’s holding that the Times does not possess monopoly power in this market is not error.

On appeal, however, plaintiffs proffer a new market definition. Plaintiffs for the first time theorize that the Times monopolizes the market for the sale of newspaper advertising throughout the New York metropolitan area and that any injury to independent home delivery dealers would further that monopoly. Plaintiffs’ advertising monopoly allegation rests on the Times’ ability to charge higher advertising rates than do the publishers of

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bill's Birds Inc. v. Trademarketing Resources Inc.
920 F. Supp. 2d 357 (E.D. New York, 2013)
Tindal v. Goord
340 F. App'x 12 (Second Circuit, 2009)
Emigra Group, LLC v. Fragomen, Del Rey, Bernsen & Loewy, LLP
612 F. Supp. 2d 330 (S.D. New York, 2009)
Tokarz v. Lot Polish Airlines
258 F. App'x 377 (Second Circuit, 2007)
In re Live Concert Antitrust Litigation
247 F.R.D. 98 (C.D. California, 2007)
Wood v. United States
175 F. App'x 419 (Second Circuit, 2006)
Mitchell v. Senkowski
158 F. App'x 346 (Second Circuit, 2005)
Mathias v. Daily News, L.P.
152 F. Supp. 2d 465 (S.D. New York, 2001)
Todd v. Exxon Corp.
126 F. Supp. 2d 321 (S.D. New York, 2000)
Carell v. Shubert Organization, Inc.
104 F. Supp. 2d 236 (S.D. New York, 2000)
SO Textiles Co., Inc. v. a & E PRODUCTS GROUP
18 F. Supp. 2d 232 (E.D. New York, 1998)
CDC Technologies, Inc. v. Idexx Laboratories, Inc.
7 F. Supp. 2d 119 (D. Connecticut, 1998)
United States v. Long Island Jewish Medical Center
983 F. Supp. 121 (E.D. New York, 1997)
AD/SAT v. Associated Press
920 F. Supp. 1287 (S.D. New York, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
826 F.2d 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belfiore-v-new-york-times-co-ca2-1987.