Catlin v. Washington Energy Co.

791 F.2d 1343, 55 U.S.L.W. 2010
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 13, 1986
DocketNo. 85-3570
StatusPublished
Cited by39 cases

This text of 791 F.2d 1343 (Catlin v. Washington Energy 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
Catlin v. Washington Energy Co., 791 F.2d 1343, 55 U.S.L.W. 2010 (9th Cir. 1986).

Opinions

EUGENE A. WRIGHT, Circuit Judge:

In this case we are asked to decide whether the advertising or sale of consumer products by a state-regulated natural gas distribution monopoly violates the Sherman Act or Washington antitrust law, based on a theory of “monopoly leveraging.” The district court found no antitrust violations, and we affirm.

FACTS AND PROCEEDINGS BELOW

Lawrence Catlin, James C. Fry and James A. Fry, appellants, were in the business of selling vent dampers, energy saving devices installed on flue pipes of oil or gas-fired furnaces and water heaters. Washington Natural Gas (WNG), appellee, is a state-regulated utility with an exclusive right to sell natural gas in prescribed geographic areas. Its merchandising division sells numerous gas-related consumer products, including vent dampers. It is undisputed that appellants and WNG competed in the sale of vent dampers within WNG’s exclusive territory (King, Pierce, and Snohomish Counties).

Appellants filed this action in federal district court, alleging that WNG abused its natural gas monopoly power in violation of federal and state antitrust laws (15 U.S.C. § 2 and Wash.Rev.Code § 19.86.040) and Washington’s Public Utility Statute (Wash. Rev.Code §§ 80.04.440 and 80.28.090). Following a four day bench trial, the court entered judgment in favor of WNG. It found that WNG “did not abuse its lawfully obtained monopoly power in the natural gas market” and that appellants “have suffered no actionable damage as a result of any conduct by [WNG] that is at issue in this case.” It concluded that WNG had not violated Section 2 of the Sherman Act, the state antitrust (monopoly) statute, or the state public utility statute.

Appellants raise these issues on appeal:

1. Did the district court err in concluding that WNG did not abuse its natural gas monopoly power in violation of state and federal antitrust laws?

2. Did it err in concluding that WNG did not violate Washington’s Public Utilities Statute?

3. Did it err in concluding that appellants failed to prove “actionable damage” as a result of WNG’s challenged conduct?

ANALYSIS

I. STANDARD OF REVIEW

We review de novo the district court’s legal conclusions and we review its factual findings for clear error. United States v. McConney, 728 F.2d 1195, 1200-01 (9th [1345]*1345Cir.), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

We review de novo the interpretation and application of state law. Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986).

II. Monopoly Leveraging

Appellants contend that WNG abused its lawful monopoly power in natural gas distribution by using it as leverage to gain an unfair advantage in the vent damper market. They challenge two specific business practices of WNG’s merchandising division.

WNG printed “hot potato” advertisements for its vent dampers on billing envelopes sent to WNG’s 217,000 residential gas customers in the three counties. Its vent damper was the “featured item” in ten mailings and was the “minor item” in 43 mailings.

Appellants contend that this “piggyback” technique resulted in $2 million in “free postage” benefits for WNG in the vent damper market. WNG concedes that postage costs for billings were included in rates paid by its natural gas customers, but contends that the challenged advertising added nothing to the cost of postage. WNG contends also that printing costs were allocated to WNG’s merchandising division and were not charged to natural gas customers.

Similarly, appellants challenge WNG’s practice of allowing its merchandising division exclusive use of WNG’s natural gas customer list.1 Appellants contend that, without the benefit of this list, their cost of blanket advertising to obtain comparable public recognition was prohibitive. Appellants claim that they should be “given funds sufficient to mail their own vent damper materials to all gas customers 53 times” ($2 million), that WNG’s merchandising division should be required to pay its own postage, or that appellants should be given “equal time to advertise their products in WNG’s ‘hot potatoes’ ”. WNG asserts that its customer list is privileged “trade secret” information unaffected by antitrust laws.

Appellants’ antitrust claim rests on a theory of “monopoly leveraging” stated by the Second Circuit in Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). “[T]he use of monopoly power attained in one market to gain a competitive advantage in another is a violation of § 2, even if there has not been an attempt to monopolize the second market. It is the use of economic power that creates the liability.” Id. at 276.

In defense of its business practices, WNG quotes from the same paragraph in Berkey Photo. It contends that any prohibition as to the “use of monopoly power” does not extend to the lawful use of advantages brought about by size and integration:

[A] large firm does not violate § 2 simply by reaping the competitive rewards attributable to its efficient size, nor does an integrated business offend the Sherman Act whenever one of its departments benefits from association with a division possessing a monopoly in its own market. So long as we allow a firm to compete in several fields, we must expect it to seek the competitive advantages of its broad-based activity — more efficient production, greater ability to develop complementary products, reduced transaction costs, and so forth. These are gains that accrue to any integrated firm, regardless of its market share, and they cannot by themselves be considered uses of monopoly power.

Id. at 276 (emphasis added).

We must decide whether this court has adopted the “monopoly leveraging” theory of antitrust liability and whether this theory is an alternative to proving monopolization or an attempt to monopolize.

[1346]*1346A. Monopoly Leveraging in the Ninth Circuit

Appellants contend that this court “recognized” and adopted the monopoly leveraging theory in M.A.P. Oil Co., Inc. v. Texaco, Inc., 691 F.2d 1303 (9th Cir.1982). However, in M.A.P. Oil, we did not elaborate upon the nature or application of the monopoly leveraging theory. We held only that plaintiffs had failed to identify a relevant product or service market, a “threshold requirement” essential to proving any monopolization claim. Id. at 1306. We observed only that under a monopoly leveraging theory, “the market identification burden is compounded ...

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791 F.2d 1343, 55 U.S.L.W. 2010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catlin-v-washington-energy-co-ca9-1986.