Bubis v. Blanton

885 F.2d 317, 1989 WL 104856
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 14, 1989
DocketNo. 88-5805
StatusPublished
Cited by19 cases

This text of 885 F.2d 317 (Bubis v. Blanton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bubis v. Blanton, 885 F.2d 317, 1989 WL 104856 (6th Cir. 1989).

Opinions

CONTIE, Senior Circuit Judge.

Plaintiff Robert S. Bubis appeals from the order of the district court dismissing his complaint alleging that defendants Leonard Ray Blanton and James Allen1 violated section one of the Sherman Act, 15 U.S.C. § 1, and section four of the Clayton Act, 15 U.S.C. § 15.2 The district court, finding that Bubis did not have standing to make a claim under section 4 of the act, dismissed the claim. We affirm.

I3

This case derives from the conspiracy by former Tennessee governor Blanton and several of his aides and associates to manipulate the issuance of liquor licenses.

On May 27, 1983, appellant filed his complaint alleging that as a result of appellees’ unlawful conduct, he was damaged in his business and property.4 The specific action which allegedly damaged appellant was the denial of a transfer of a liquor license issued for Red & White Liquor Store (R & W) by the Tennessee Alcoholic Beverage Commission (ABC).

The facts relevant to the denial of the transfer of the R & W license are as follows. On March 15, 1977, Shirley Wise contracted to purchase R & W from Bette Anne Cole. Wise also entered into an agreement to lease the premises at 501 8th Avenue South on that day. On March 21, 1977, Wise individually applied for a license to sell alcoholic beverages at the 8th Avenue location. On the application she stated that no other person had any interest in R & W.' She also filled out a questionnaire to the ABC in which she stated that she would run R & W as a sole proprietorship. On April 1, 1977, the ABC issued a license for R & W in Wise’s name only. On April 20, 1977, appellant and Wise filed a joint application for transfer of the license to 5701 Nolensville Road. Appellant held an option on the Nolensville Road property. They also filled out a joint questionnaire stating that they intended to operate R & W as a partnership. On July 12, 1977, the ABC denied the application for transfer to the Nolensville Road location. Finally, appellant and Wise’s husband testified that appellant had a partnership interest in R & W.

The case was tried to the court from August 17, 1987 to August 21, 1987. On June 27, 1988, 704 F.Supp. 1491, the court issued a memorandum opinion dismissing appellant’s antitrust claim on the basis of lack of standing. The district court made alternative findings. Initially, it found that since appellant held no interest in the R & W license he had no interest which could have been transferred. The court also found that pursuant to Tennessee law any interest appellant had in R & W was illegal due to the failure to disclose the interest in the license application.

Appellant argues that the district court erred in requiring appellant to be a co-licensee to have standing, in finding his co-ownership in R & W to be illegal, and in failing to find standing based on his status as a potential competitor.

[319]*319II.

Appellees do not contest the district court’s finding that they conspired to restrain trade in violation of section 1 of the Sherman Act. Therefore, the sole issue before this court is whether appellant had standing under the Clayton Act, i.e., whether appellant had a legitimate business or property interest that was injured by reason of the unlawful conspiracy.

The district court ruled that appellant had no standing because (a) he had no interest in the R & W license, and (b) any ownership interest he had in R & W was illegal.5

Appellant concedes that he had no interest in the license. He argues, however, that he has standing as a potential competitor or because he had an interest in R & W which was injured by the denial of the transfer of the license.

For his potential competitor argument, appellant relies on the principles articulated by this court in Huron Valley Hospital, Inc. v. City of Pontiac, 666 F.2d 1029 (6th Cir.1981).

The test for determining whether a potential competitor has a business interest protected by the antitrust laws is whether he had both the intention and preparedness to compete. Courts must attempt to distinguish the serious potential competitor who has been illegally kept out of the market from the inchoate business enterprise with a mere hope of entry. Among the factors which courts have considered are the plaintiffs background and experience in the prospective business, financial ability to enter the business, substantial affirmativé action toward entry, and the consummation of contracts in preparation for entry.

Id. at 1033 (citations omitted).

In Huron Valley, the plaintiffs, who were attempting to build a hospital, were denied a certificate of need by a state agency. The plaintiff brought suit under the Clayton Act. The district court dismissed the antitrust claim on the basis of lack of standing. This court reversed. Applying the above standards, this court determined that the facts that the plaintiff had acquired a thirty-one acre site for a hospital, engaged in feasibility studies, attempted to obtain a certificate of need, entered into management contracts and secured commitments for staff were sufficient to establish a legitimate business interest for standing purposes. Id. See also Fine v. Barry & Enright Prod., 731 F.2d 1394 (9th Cir.) (student who applied to appear on six game shows and who appeared on three game shows had standing to bring antitrust suit), cert. denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984); Hecht v. Pro-Football, Inc., 570 F.2d 982, 987 (D.C.Cir.1977) (a manifestation of intention to enter business and a demonstrated preparedness to do so is sufficient to establish standing), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978).

Appellees admit that the Huron Valley standards are appropriate for determining the standing of a potential competitor. They argue, however, that this is not a potential competitor case, but rather a case of whether an individual who does not have a legitimate business interest has standing. We agree.

A review of the evidence indicates that appellant did not have a nascent business interest. Rather, the evidence indicates that appellant had an existing interest in R & W and was a competitor in the liquor sales market. Bubis testified that he sold his interest in late 1977 or early 1978 because R & W was unprofitable. Accordingly, we believe this case turns on the issue of whether appellant had a legitimate busi[320]*320ness interest which was injured by appel-lees’ unlawful acts.

The district court held that appellant did not have standing because his interest in R & W was illegal. The court and appellees rely on Tennessee Code Section 57—3—210(f) which reads in relevant part as follows:

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Bubis v. Blanton
885 F.2d 317 (Sixth Circuit, 1989)

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Bluebook (online)
885 F.2d 317, 1989 WL 104856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bubis-v-blanton-ca6-1989.