Crimpers Promotions Inc. v. Home Box Office, Inc. And Showtime Entertainment Corporation

724 F.2d 290, 1983 U.S. App. LEXIS 14570
CourtCourt of Appeals for the Second Circuit
DecidedDecember 12, 1983
Docket126, Docket 83-7364
StatusPublished
Cited by68 cases

This text of 724 F.2d 290 (Crimpers Promotions Inc. v. Home Box Office, Inc. And Showtime Entertainment Corporation) 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
Crimpers Promotions Inc. v. Home Box Office, Inc. And Showtime Entertainment Corporation, 724 F.2d 290, 1983 U.S. App. LEXIS 14570 (2d Cir. 1983).

Opinion

FRIENDLY, Circuit Judge:

The question on this appeal is whether a company organized to hold a trade show to facilitate contacts between producers of cable television programming and local cable television stations has standing to prosecute an action under § 4 of the Clayton Act against two companies which are alleged to dominate the business of purchasing and assembling programming from producers and selling it to the stations. Plaintiff claims that the defendants conspired to cause a boycott of its trade show and to have used their monopoly power to assure the show’s failure, in violation of §§ 1 and 2 of the Sherman Act. Judge Sand, in the District Court for the Southern District of New York, answered the question in the affirmative in a well-considered opinion, 554 F.Supp. 838 (1982), but certified his ruling for interlocutory appeal under 28 U.S.C. § 1292(b). We unhesitatingly affirm.

*291 The Proceedings in the District Court

The principal allegations of the complaint here relevant are as follows:

Plaintiff Crimpers Promotions Inc. (Crim-pers) was formed in 1980 for the initial purpose of producing a cable television trade show known as CATEL-EXPO-PRO-GRAMMING SOURCES ’81 (CATEL) in Las Vegas during September, 1981. CA-TEL was to be “the first all programming, conference and exposition in the Cable Television Industry and was formed and produced in order to develop a national and international market place [sic] for Cable Television programming of all types and kinds.” The show contained space for 350 booths and it was expected that 5000 or more persons would attend.

Defendant Home Box Office, Inc. (HBO) is the most widely available pay-television satellite network in the United States with approximately 8 million subscribers. It purchases programs from independent producers and also creates its own. It sends programs through a satellite to some 3,000 cable system operators affiliated with HBO, who in turn send them to the homes of various subscribers. In addition HBO provides direct services to subscribers in certain areas. Defendant Showtime Entertainment Corporation (Showtime) operates similarly, with some 2.5 million subscribers and 1,300 operators or affiliates.

The complaint goes on to allege that the defendants have become the dominant force in the cable pay-television industry and have unlawfully monopolized the market for programming to the industry. 1 Defendants have been able to offer the cable operators a “bundle” of programs which defendants have acquired from the producers and, being “the most powerful and influential sources through which programming may be sold” in the cable industry, have offered extremely low and unfair prices for programming to the independent companies that sell programming to them. The purpose of CATEL is to bring together in one trade show all suppliers of cable programming, both the independents and the networks, for “a truly comprehensive exposition and conference,” with the further goal of creating “a diversity of information sources and access so that Cable System Operators would not be dependent upon the defendants whose vast Satellite Network Services dominate the Pay-TV business in Cable Television.”

The complaint further alleges that defendants sent letters and made phone calls to independent programming and system operators to inform them that they should not appear at CATEL. It quoted a representative of defendant Showtime as having told a person who he thought was an independent producer that Showtime would not participate in the show because the company believed it to be a “rip-off”; this was because Showtime considered Crimpers to be an “opportunist” and because Showtime’s policy was that it would not sell a particular piece of programming but only programming on a 24-hour a day basis. Defendants had informed independent programming suppliers and system operators that CATEL was a “rip-off” or scam and was a fraud on the public, and that none of the exhibitors would attend. Defendants also threatened that they would no longer purchase programming from those suppliers who attended the show. As a result only 55 companies were exhibitors, only 97 booths were occupied and less than 200 people appeared, in contrast to the 250, 350 and 5,000 that had been expected. As a result defendants had accomplished “their means of driving competitors from the market and of not permitting independent suppliers of *292 stand-alone programming to be solidified into a unit which would attempt to challenge the monopoly created by the defendants.” Defendants’ illegal acts also forced Crimpers to cease business. The complaint proceeded to make further allegations in support of the claim of monopolization and sought treble damages and injunctive relief. Defendants moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint, which also contained counts making a tying claim under § 1 of the Sherman Act and § 3 of the Clayton Act, and various state law claims. The judge denied the motion except for the tying claim and some of the state law claims.

With respect to the claims under §§ 1 and 2 of the Sherman Act, the judge began by explaining that the courts have grafted a doctrine of standing on the sweeping language of § 4 which confers a cause of action upon “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.” He noted that this circuit had adopted the so-called “target-area" test, citing Billy Baxter, Inc. v. Coca-Cola Co., 431 F.2d 183 (1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826 (1971), and Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir.1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1776, 32 L.Ed.2d 132 (1972). He said that “[u]nder this test, the plaintiff must either be the ‘direct target’ of the antitrust violation or fall within the ‘target area’ of the alleged antitrust violation — that sector of the economy which is endangered by a breakdown of competitive conditions in the particular industry.” 554 F.Supp. at 842. He noted defendants’ argument that Crimpers did not directly compete with them in buying and selling cable programming; that their activities aimed only at such competitors; and that Crimpers was only incidentally harmed. After canvassing further elaborations of these arguments, the court found the case distinguishable from Billy Baxter and Calderone because defendants “took ‘direct aim’ at Crimpers and its trade show.” Id. at 844.

Judge Sand then stated that whatever doubts he might have had with respect to plaintiff’s standing under Billy Baxter and Calderone were dispelled by the Supreme Court’s decision in Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct.

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724 F.2d 290, 1983 U.S. App. LEXIS 14570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crimpers-promotions-inc-v-home-box-office-inc-and-showtime-ca2-1983.