Duty Free Americas, Inc. v. The Estee Lauder Companies, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 7, 2015
• Docket: 14-11853
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-11853 ________________________

D.C. Docket No. 0:12-cv-60741-RNS

DUTY FREE AMERICAS, INC.,

Plaintiff - Appellant,

versus

THE ESTEE LAUDER COMPANIES, INC.,

Defendant - Appellee. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 7, 2015)

Before MARCUS and WILSON, Circuit Judges, and THAPAR, ∗ District Judge.

MARCUS, Circuit Judge:

Duty Free Americas, Inc. (“DFA”), which operates duty free stores in many

international airports nationwide, appeals the district court’s dismissal of its

∗ Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by designation. Case: 14-11853 Date Filed: 08/07/2015 Page: 2 of 62

multicount suit against The Estée Lauder Companies, Inc. (“Estée Lauder”), the

largest manufacturer of beauty products sold in duty free retail outlets in the United

States. DFA claims that Estée Lauder’s refusal to do business with DFA, and its

communication of that fact to airport authorities evaluating whether to offer rental

space to DFA, violates several federal and state laws. DFA also says that Estée

Lauder places anticompetitive restrictions on duty free operators’ display space

and ability to select their own inventory; it seeks injunctive relief from these

requirements. Finally, DFA claims that its competitors disparaged its business

methods and financial projections to airport authorities and seeks to hold Estée

Lauder accountable for all of those statements. DFA filed suit in the United States

District Court for the Southern District of Florida, asserting three claims in its

amended complaint: (1) attempted monopolization, in violation of § 2 of the

Sherman Act; (2) contributory false advertising, in violation of § 43(a) of the

Lanham Act; and (3) tortious interference with a prospective business relationship,

in violation of Florida law. The district court dismissed the lawsuit in its entirety

for failure to state a claim.

After thorough review, we affirm. On each claim, DFA failed to allege

basic facts sufficient to state a claim to relief that is plausible on its face. Thus, in

pleading its antitrust claim, DFA did not adequately allege that Estée Lauder

engaged in predatory or anticompetitive conduct. Nor has DFA come close to

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establishing standing to seek injunctive relief from the requirements that Estée

Lauder places on its competitors, inasmuch as DFA no longer does any business

with Estée Lauder. As for its false advertising claim, DFA failed to plead

sufficient facts from which a court could find that Estée Lauder made false

statements, or, for that matter, was responsible for any such statements made by

DFA’s competitors. Finally, the complaint failed to allege any improper conduct

sufficient to constitute tortious interference with a business relationship in

violation of Florida law.

I.

A.

The essential facts contained in DFA’s complaint and its attached exhibits

are these. DFA operates many duty free stores in American airports with

international terminals. DFA is one of approximately ten major operators of duty

free stores in the United States. DFA currently holds leases in thirteen

international airports located in eleven cities: New York (JFK and LaGuardia),

Washington, D.C. (Dulles and Reagan National), Detroit, Miami, Atlanta,

Baltimore, San Antonio, Phoenix, San Diego, Salt Lake City, and Charlotte. It

competes with other duty free operators for the limited rental space available in

U.S. airports servicing international flights.

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Airports generally rent their dedicated duty free space for lease terms of

between five and ten years. An airport seeking to rent to a duty free operator

proceeds by initiating competitive bidding. Typically, the airport issues a request

for proposal (“RFP”), and interested duty free operators respond with proposals

explaining what products they would carry at the airport and the amount of rent

they are willing to pay. Proposed rent in the duty free market is comprised of both

a minimum annual guarantee and a percentage of sales revenue. Normally, all of

the space that an airport allocates for duty free retail space is leased by the same

operator.

At duty free stores, customers -- who must be outbound international

travelers -- can purchase luxury products at discounted prices. Beauty products --

which include makeup, skin care products, and fragrances -- are a substantial

component of duty free stores’ product offerings. And Estée Lauder is the “largest

manufacturer of beauty products sold in duty-free stores in U.S. airports.” DFA

notes that in 2010 Estée Lauder’s market share of cosmetics, a subgroup consisting

of makeup and skin care, sold in duty free stores was approximately 45.71%, while

its market share for skin care products exceeded 50%. DFA further estimates that

Estée Lauder’s market share has increased in the intervening years. Newcomers to

the duty free beauty products market are apparently rare, due to the “extremely

limited shelf space available in airport duty free shops,” and DFA alleges that

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“[t]here has been no change in the composition of the top five beauty product

manufacturers in the past five years, other than [Estée Lauder’s] continuous

increase in market share each year.”

DFA purchased Estée Lauder beauty products to sell in its duty free stores

until June 2008. During that time, Estée Lauder set two different prices for each

product -- a suggested domestic retail price and a lower suggested travel retail

price. Retailers that sold Estée Lauder products in traditional outlets, such as

department stores, could purchase goods at wholesale prices, which were set by

discounting the suggested domestic retail prices of items. By contrast, duty free

operators like DFA could purchase at lower travel wholesale rates that were set by

discounting the suggested travel retail prices for particular products. For most of

DFA’s relationship with Estée Lauder, the suggested travel retail price for beauty

products offered customers a 10% discount off of the suggested domestic retail

price.

Duty free operators that contracted with Estée Lauder had to comply with

several inventory and display requirements. In particular, Estée Lauder required

operators to carry the full line of products within a particular brand (“full line

forcing”) and carry the company’s less-popular fragrances if they wanted to sell

cosmetics (“tying”). Estée Lauder also mandated that operators reserve display

space of a certain size and quality for its products and that they keep excess

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inventory in stock, and routinely threatened to cut off all product supply when duty

free operators resisted these conditions. According to the complaint and its

attached exhibits, DFA was last subject to Estée Lauder’s various contractual

requirements several years ago: (1) “display space and inventory demands” in

March 2008; (2) “full line forcing” in March 2008; and (3) “tying” fragrances to

other products in April 2006.

In January 2007, Estée Lauder announced plans to eliminate the differences

between its suggested domestic retail prices and suggested travel retail prices. In

other words, it would promulgate only one suggested retail price for each product

that would be used in both traditional retail outlets and duty free stores. This

planned change, which would both increase the prices DFA paid for Estée Lauder

products and eliminate the discount that DFA’s customers gained by shopping at

duty free stores, was supposed to take effect on April 1, 2008. As a result of the

changing price structure, DFA terminated its business dealings with Estée Lauder

by June 2008.

DFA adapted to the loss of Estée Lauder’s product lines by devoting the

display space that it formerly reserved for Estée Lauder products to other beauty

brands. But at some undisclosed point, DFA sought to renew its prior relationship

with Estée Lauder. The manufacturer refused to have any further dealings with

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DFA. The decision not to resume relations with DFA costs Estée Lauder an

estimated $14.5 million each year.

Since 2008, DFA has participated in competitive bidding for duty free retail

space at four international airports: Newark Liberty International Airport, Boston

Logan International Airport, Orlando International Airport, and Hartsfield-Jackson

Atlanta International Airport. Because DFA’s allegations of unlawful conduct

stem from Estée Lauder’s involvement, directly and indirectly, in these bidding

processes, we relay the events that occurred in some detail.

In December 2008, Newark Liberty International Airport issued a request for

proposal, seeking a tenant to lease its duty free retail space for a seven-year term.

DFA submitted a proposal in response to the RFP, as did three competitors:

International Shoppes, Dufry, and EJE Travel Retail. Each of the other operators

sold Estée Lauder products. During the RFP process, Estée Lauder’s President of

Travel Retailing Worldwide, Olivier Bottrie, sent a letter to the leasing agent

responsible for administering Newark’s bidding. The letter included a list of duty

free operators that sold Estée Lauder products. Bottrie wrote: “We are confident

that each of these authorized retailers brings the expected quality of in-store

execution and required operational excellence necessary to represent our brands

and service your valued passengers.”

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Newark ultimately rejected DFA’s proposal and opted to lease its space to

Dufry. Newark also ranked the proposals, indicating that it chose the Dufry

proposal because “Dufry had . . . [the] strongest financial position.” The airport

ranked DFA’s proposal second to last among those submitted, stating only “Duty

Free Americas does not have the rights to sell Est[é]e Lauder brands.”

In May 2011, Boston Logan International Airport issued an RFP, seeking a

tenant to lease its duty free retail space for a seven-year term. At the time the RFP

was issued, DFA had been the incumbent duty free operator at the Boston airport

for the last 16 years. DFA submitted a bid for the lease, as did two competitors,

International Shoppes and Dufry. Both of the other operators had ongoing

relationships with Estée Lauder. During the bidding process, Estée Lauder

informed the contractor administering the RFP that the company did not sell its

products to DFA. Boston elected to lease its duty free space to International

Shoppes. The contractor explained its reasoning, emphasizing two factors:

International Shoppes was authorized to sell Estée Lauder products, and the

minimum annual guarantee component of International Shoppes’ proposed rent

was higher than DFA’s.

In August 2011, Orlando International Airport issued an RFP, seeking an

operator to develop duty free space. DFA submitted a proposal in partnership with

Stellar Partners Inc. -- a local Florida entity that operated the duty free stores at

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Tampa International Airport. Under the terms of DFA and Stellar’s joint proposal,

each company would run separately branded stores within the Orlando airport.

DFA alleges that its bid “proposed to pay millions of dollars more in rent than any

other bidder over the life of the contract.” Four bids were also submitted by

DFA’s competitors: Dufry, Heinemann (in conjunction with a local partner, Travel

Retail), World Duty Free, and a partnership of Nuance and DFASS. During the

bidding process, Bottrie wrote to the Executive Director of the Greater Orlando

Aviation Authority to inform him that Estée Lauder would not do business with

DFA or with Stellar. The other four bids were submitted by entities or partnerships

that sold Estée Lauder products. The Airport Authority awarded its duty free

concessions to the Nuance/DFASS partnership, ranking DFA’s proposal second

among the submitted bids. DFA appealed the decision, and the Airport Authority

conducted a hearing on November 15, 2011.

At the appeal hearing, DFA was asked to explain why its proposal implied

that it would sell Estée Lauder products in the Orlando Airport if it were awarded

the lease.1 DFA and Stellar attempted to account for the discrepancy by arguing

1 Specifically, DFA’s proposal had listed a “significant number of Estée Lauder brand items” that would be sold in its Orlando stores. Next, the promotional brochure that DFA included with its proposal made multiple references to Estée Lauder. First, the brochure included a section entitled “DFA Name Brands.” Both Estée Lauder and Clinique -- one of Estée Lauder’s brands - - were included in this list. Second, the brochure included pictures of DFA retail space in which Estée Lauder and Clinique signage and products were visible. Finally, during the interview that the Airport Authority conducted after the proposals were submitted, when DFA representatives 9 Case: 14-11853 Date Filed: 08/07/2015 Page: 10 of 62

that its proposal had not been misleading, because the two operators assumed that

the Stellar locations within the airport would carry Estée Lauder products. Stellar

explained that, in the past, it sold Estée Lauder products in its Tampa duty free

space. However, it had been forced to downsize its physical space and could no

longer comply with Estée Lauder’s display requirements. Stellar’s representative

claimed that Estée Lauder had assured Stellar that if the company acquired

sufficient physical space to meet Estée Lauder’s display requirements, the two

companies could resume their relationship. 2

During the appeal hearing, several competitors for the Orlando International

Airport contract criticized DFA’s proposal. Travel Retail expressed its view that

DFA’s financial projections were “unreasonable in light of past performance,” and

that awarding a contract to DFA would be a “risk.” Travel Retail further said, “we

strongly believe that Estée Lauder is a product which you have to sell.” Travel

Retail reiterated this view in a letter after the hearing, in which it cited information

“received directly from Estée Lauder” that placed “Estée Lauder’s market share

were asked to confirm that the company had “a direct merchandise purchasing relationship with all that brands [it was] offering,” both representatives responded “yes” to the question. 2 DFA also alleges that Estée Lauder engaged in similar conduct toward another of its partners, Concourse Concessions. Concourse Concessions partners with DFA to run duty free stores in three airports -- Miami, Dulles, and San Diego -- but partners with another operator in the Los Angeles airport. Estée Lauder has refused to sell products to Concourse Concessions for resale in Miami, Dulles, and San Diego, but supplies the operator with products for its Los Angeles location. 10 Case: 14-11853 Date Filed: 08/07/2015 Page: 11 of 62

[at] first in all categories” of beauty products sold in U.S. airport duty free stores.

Travel Retail emphasized, “failure to offer the Estée Lauder product line will

negatively impact duty free and duty paid sales revenue for both international and

domestic travelers.” Similarly, Nuance, the winner of the Orlando contract,

criticized DFA’s proposal, claiming that the ability to sell Estée Lauder products

was a “key component” of operating a successful duty free store and “echo[ing]”

Travel Retail’s concerns. Specifically, Nuance argued that “DFA[’s] sale

projections are deemed to be unreasonable and not sustainable in light of the

history.”

In January 2012, the Orlando Airport Authority affirmed its decision to

award the Orlando lease to Nuance/DFASS, stating that it found DFA’s “sales

projections . . . overstated and not reasonably attainable.” Specifically, the Airport

Authority concluded that DFA’s inability to offer Estée Lauder products would

adversely impact sales. Moreover, the data that DFA provided from its other

airport locations cast doubt on its predictions for sales in Orlando, and DFA’s

estimates for future performance far exceeded what the independent consultant that

the Airport Authority hired to evaluate the proposals believed was probable.

Finally, in July 2011, Hartsfield-Jackson Atlanta International Airport issued

an RFP for a seven-year lease to operate its duty free retail space. DFA submitted

a proposal here too, as did three of its competitors: World Duty Free, Dufry, and

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Nuance. In November 2011, Atlanta’s Chief Procurement Officer, Adam Smith,

informed the bidders that the contract would be awarded to DFA. In December, an

attorney representing one of the other bidders wrote a letter to Atlanta officials

regarding DFA. The letter suggested that DFA had made improper representations

about its relationship with Estée Lauder, and it included Bottrie’s contact

information, a list of Estée Lauder-owned brands, and information about the

Orlando Airport Authority appeal hearing. The attorney urged Smith to examine

DFA’s proposal for indications that the company was planning to sell Estée Lauder

products if awarded the Atlanta contract, and suggested that Smith contact Bottrie

to verify any representations DFA may have made.

Smith contacted DFA. He recounted that DFA had listed 19 stock keeping

units of Estée Lauder’s products, and asked DFA to confirm that it could in fact

carry those items. DFA explained that it could supply everything listed in the

proposal out of outstanding inventory. Subsequently, in early January 2012, the

contract was officially awarded to DFA.

On January 13, 2012, an attorney representing World Duty Free wrote to

Bottrie, asking him whether DFA was authorized to sell Estée Lauder’s products.

Bottrie responded, “Estée Lauder . . . do[es] not have a commercial relationship

with DFA or its affiliates and ha[s] no plans to enter into such a relationship. In

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accordance, DFA does not have authority to offer our product lines in their

operations.”3

On January 17, Nuance sent a letter to Smith formally protesting the

decision to award the Atlanta contract to DFA and accusing DFA of making

misrepresentations in its proposal. Nuance stated in its letter “DFA may have

made misrepresentations about its ability to carry Estée Lauder brands.” The letter

also claimed that “a lack of access to Estée Lauder brands would cast doubt on the

validity of DFA’s projected revenue streams.” Nuance based this statement on the

fact that “Estée Lauder brands account for 20% of cosmetic and fragrance sales . . .

and cosmetic and fragrance sales constitute one of the largest sources of revenue

for duty free stores.” The letter also contained excerpts from the Orlando appeal

decision. The protest letter apparently had no impact on the Atlanta officials’

decision.

B.

On April 26, 2012, DFA commenced this action in the United States District

Court for the Southern District of Florida, asserting four claims against Estée

Lauder: (1) conspiracy in restraint of trade, in violation of § 1 of the Sherman Act,

15 U.S.C. § 1; (2) conspiracy to monopolize, in violation of § 2 of the Sherman

3 An attorney representing Nuance later contacted Bottrie, seeking confirmation that Estée Lauder had not resumed relations with DFA. Bottrie responded with a similar letter to the one he sent to World Duty Free, stating that DFA had no relationship with Estée Lauder. 13 Case: 14-11853 Date Filed: 08/07/2015 Page: 14 of 62

Act, 15 U.S.C. § 2; (3) attempt to monopolize, in violation of § 2 of the Sherman

Act; and (4) tortious interference with prospective business relationships, in

violation of Florida law. Estée Lauder moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6); the district court granted the motion, and dismissed the

claims without prejudice. Soon thereafter, DFA amended its complaint. This time,

DFA raised three claims: (1) attempt to monopolize, in violation of § 2 of the

Sherman Act; (2) contributory false advertising, in violation of § 43(a) of the

Lanham Act, 15 U.S.C. § 1125(a); and (3) tortious interference with prospective

business relationships, in violation of Florida law.

Estée Lauder again moved to dismiss the claims, and once again, the district

court granted Estée Lauder’s motion. This time, though the court dismissed the

Lanham Act claim without prejudice, it dismissed the Sherman Act and tortious

interference claims with prejudice, because “DFA [had] already had an opportunity

to amend these claims” after accessing “tens of thousands” of Estée Lauder

documents in discovery. The court first addressed DFA’s attempted

monopolization claim, examining the three different forms of conduct that DFA

alleged were anticompetitive. It concluded that the first two -- refusing to deal

with DFA and disparaging DFA to airport authorities -- did not constitute

anticompetitive conduct within the meaning of the antitrust laws. As for the last

allegation -- that Estée Lauder imposed restrictions on duty free operators’ display

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space allocation and inventory stocking -- the court concluded that the claim was

time barred to the extent DFA sought damages. To the extent that DFA sought

injunctive relief, the district court held that the claim was barred by laches or, in

the alternative, that DFA lacked antitrust standing to pursue it. Next, the court

concluded that the Lanham Act claim failed because DFA did not adequately

allege that Estée Lauder or any of the duty free operators had made any false or

misleading statements about DFA. In the trial court’s view, each of the offending

statements expressed merely an opinion or prediction for the future and not a

verifiable fact. Thus, it concluded that the statements were not actionable under

§ 43(a) of the Lanham Act. Finally, the court dismissed the tortious interference

claim because the complaint contained no allegations of improper conduct that

would amount to an unjustified interference with DFA’s business relationships.

DFA timely appealed.

II.

We review de novo the district court’s order dismissing DFA’s complaint

pursuant to Rule 12(b)(6). Henderson v. Wash. Nat. Ins. Co., 454 F.3d 1278, 1281

(11th Cir. 2006). We accept the allegations in the complaint as true and construe

them in the light most favorable to the plaintiff. Murphy v. F.D.I.C., 208 F.3d 959,

962 (11th Cir. 2000). “However, we afford no presumption of truth to legal

conclusions and recitations of the basic elements of a cause of action.” Franklin v.

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Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013) (per curiam). We are “free to

affirm the district court’s decision on any ground that is supported by the record.”

United States v. Elmes, 532 F.3d 1138, 1142 (11th Cir. 2008) (quotation omitted);

see also Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1059 (11th Cir.

2007) (“[W]e may . . . affirm a district court’s decision to grant or deny a motion

for any reason, regardless of whether it was raised below.”).

Rule 8(a) provides that a plaintiff’s pleading “must contain . . . a short and

plain statement of the claim showing that the pleader is entitled to relief.” The

Supreme Court has further instructed that the plaintiff must submit “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). In order “[t]o survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). This “plausibility standard is met only where the facts alleged

enable ‘the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.’” Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708

(11th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). “Where a complaint pleads facts

that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line

between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 557). Although “[a] plaintiff need not plead

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‘detailed factual allegations[,] . . . a formulaic recitation of the elements of a cause

of action will not do,’” and the plaintiff must offer in support of its claim

“sufficient factual matter, accepted as true, to ‘raise a right to relief above the

speculative level.’” Simpson, 744 F.3d at 708 (quoting Twombly, 550 U.S. at

555).

We measure each claim against this standard.

III.

DFA first says that Estée Lauder violated the Sherman Act by attempting to

monopolize the market for duty free beauty products sold in United States airports.

Section 2 of the Act establishes that “[e]very person who shall . . . attempt to

monopolize . . . any part of the trade or commerce among the several States, or

with foreign nations, shall be deemed guilty of a felony.” 15 U.S.C. § 2. Section

15 of the same statute prescribes that “any person who shall be injured in his

business or property by reason of anything forbidden in the antitrust laws may sue

therefor.” 15 U.S.C. § 15. A plaintiff alleging a claim for attempted

monopolization under § 2 must plausibly assert three things: “(1) that the

defendant has engaged in predatory or anticompetitive conduct with (2) a specific

intent to monopolize and (3) a dangerous probability of achieving monopoly

power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993).

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“[T]he conduct requirement is arguably the single most important aspect of

attempted monopolization.” Spanish Broad. Sys. of Fla., Inc. v. Clear Channel

Commc’ns, Inc., 376 F.3d 1065, 1075 (11th Cir. 2004) (quotation omitted). To

survive a motion to dismiss, the plaintiff must adequately allege “actual or

potential harm to competition.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,

1339 (11th Cir. 2010). This means the plaintiff must allege a “factual connection

between the alleged harmful conduct and its impact [or likely impact] on

competition in the market.” Id. Damage to individual competitors is rarely

sufficient to establish this element. See Spanish Broad. Sys. of Fla., Inc., 376 F.3d

at 1072-73 (“Although damage to a critical competitor may also damage

competition in general, [the plaintiff] bears the burden of drawing that implication

with specific factual allegations.” (emphasis omitted)).

“Actual anticompetitive effects include, but are not limited to, reduction of

output, increase in price, or deterioration in quality.” Jacobs, 626 F.3d at 1339.

“[A] showing of market power is necessary, but not sufficient, to establish

potential harm to competition.” Id. at 1340; see Spanish Broad. Sys. of Fla., Inc.,

376 F.3d at 1073 (“A plaintiff seeking to use market power as a proxy for adverse

effect must show market power, plus some other ground for believing that the

challenged behavior could harm competition in the market . . . .” (quoting Tops

Mkts, Inc. v. Quality Mkts, Inc., 142 F.3d 90, 97 (2d Cir. 1998))). To show that

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the defendant’s conduct caused harm to competition, “the plaintiff must define the

relevant market and establish that the defendants possessed power in that market.”

Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1213 (11th Cir. 2002)

(quotation omitted).

The relevant market has two components, and the plaintiff must define both

the geographic market and the product market in which the defendant allegedly

possesses increasing power. McWane, Inc. v. F.T.C., 783 F.3d 814, 828 (11th Cir.

2015). The relevant geographic market is “the area of effective competition in

which a product or its reasonably interchangeable substitutes are traded.” L.A.

Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 423 (11th Cir. 1984)

(quotation omitted). The Court considers whether outside sellers are precluded

from entering the market, id., and whether consumers cannot realistically turn

outside the geographic area, T. Harris Young & Associates, Inc. v. Marquette

Electronics, Inc., 931 F.2d 816, 823 (11th Cir. 1991). “[E]conomic and physical

barriers to expansion [such] as transportation costs, delivery limitations and

customer convenience and preference” are relevant to this determination. L.A.

Draper & Son, 735 F.2d at 423 (quotation omitted).

“Defining a relevant product market is primarily a process of describing

those groups of producers which, because of the similarity of their products, have

the ability -- actual or potential -- to take significant amounts of business away

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from each other.” Polypore Int’l, Inc. v. F.T.C., 686 F.3d 1208, 1217 (11th Cir.

2012) (quoting U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 968, 995 (11th

Cir. 1993). For this reason, we “pay particular attention to evidence of the cross-

elasticity of demand” -- the extent to which consumers demand less of the

particular product as the price for its alleged substitute declines. Jacobs, 626 F.3d

at 1337 & n.13. “A high cross-elasticity of demand (that is, consumers demanding

proportionately greater quantities of Product X in response to a relatively minor

price increase in Product Y) indicates that the two products are close substitutes for

each other,” and are part of the same product market. Id. at 1337 n.13. In other

words, “[a] product market consists of ‘products that have reasonable

interchangeability for the purposes for which they are produced.’” McWane, Inc.,

783 F.3d at 828 (quoting United States v. E. I. du Pont de Nemours & Co., 351

U.S. 377, 404 (1956)).

Defining the relevant product market is a fact-intensive endeavor. U.S.

Anchor, 7 F.3d at 994. We consider a variety of factors in the calculus, including

“industry or public recognition of the submarket as a separate economic entity, the

product’s peculiar characteristics and uses, unique production facilities, distinct

customers, distinct prices, sensitivity to price changes, and specialized vendors.”

Polypore Int’l, Inc., 686 F.3d at 1217 (quoting U.S. Anchor, 7 F.3d at 995).

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Second, the plaintiff must allege that the defendant acted with specific intent

to monopolize. Anticompetitive intent is the design “to gain greater market share,

to drive up prices, or to obtain some other illegal goal.” Mr. Furniture Warehouse,

Inc. v. Barclays Am./Commercial Inc., 919 F.2d 1517, 1522 (11th Cir. 1990). We

have also explained that intent “may sometimes be inferred from predatory conduct

itself.” U.S. Anchor, 7 F.3d at 1001.

Lastly, to adequately plead dangerous probability of achieving monopoly

power, the plaintiff must allege that the defendant is “close to achieving monopoly

power” in the relevant product market. U.S. Anchor, 7 F.3d at 994. “Monopoly

power is ‘the power to raise prices to supra-competitive levels or . . . the power to

exclude competition in the relevant market either by restricting entry of new

competitors or by driving existing competitors out of the market.’” Id. (alteration

in original) (quoting Am. Key Corp. v. Cole Nat’l Corp., 762 F.2d 1569, 1581

(11th Cir. 1985)); see McWane, Inc., 783 F.3d at 830 (“Monopoly power is the

ability to control prices or exclude competition.” (quotation omitted)). “[A]

dangerous probability of achieving monopoly power may be established by a 50%

share” of the relevant market. U.S. Anchor, 7 F.3d at 1000.

We accept for the purposes of our analysis that DFA has adequately defined

a relevant product and geographic market. We read the complaint to essentially

say that the relevant product market is the retail market for duty free “beauty

21 Case: 14-11853 Date Filed: 08/07/2015 Page: 22 of 62

products,” and the relevant geographic market is comprised of airport duty free

stores throughout the United States. While Estée Lauder challenges both the

definition of the product market and the definition of the geographic market, we

have no occasion to address this fact-intensive question at this stage because the

complaint wholly fails to allege any truly anticompetitive conduct on Estée

Lauder’s part -- no matter how broadly or narrowly the market is defined. 4

Because our analysis begins and ends with the first, and most important, element of

an attempted monopolization claim, we also decline to reach Estée Lauder’s

arguments about anticompetitive intent and probability of achieving monopoly

power. We find that each of DFA’s allegations of anticompetitive conduct is

insufficient to state a claim, and accordingly affirm the district court’s dismissal of

the antitrust claims. Moreover, we conclude that DFA lacks both constitutional

and antitrust standing to complain about the requirements that Estée Lauder places

on DFA’s competitors, because DFA has not alleged that those restrictions have

caused it any injury.

4 DFA is not completely clear in its complaint whether it is defining the relevant market as the market to sell or to manufacture beauty products to be sold in airport duty free stores. On the one hand, the complaint alleges that DFA licenses brand names and manufactures their products, and, on the other hand, the complaint posits that Estée Lauder has entered the sales side of the market by hiring its own staff to work in duty free stores and by placing vending machines in DFA-dedicated airports. Estée Lauder challenges both formulations, arguing that it is not a seller -- or at least not an airport duty free retailer -- and DFA is not a manufacturer. 22 Case: 14-11853 Date Filed: 08/07/2015 Page: 23 of 62

DFA first argues that Estée Lauder’s refusal to reinstate its sales relationship

with DFA constitutes anticompetitive conduct. It is by now well settled that “[a]

unilateral refusal to deal is [generally] not unlawful.” Mr. Furniture Warehouse,

Inc., 919 F.2d at 1522 (second alteration in original). The Supreme Court has for

many years emphasized that “the Sherman Act ‘does not restrict the long

recognized right of [a] trader or manufacturer engaged in an entirely private

business, freely to exercise his own independent discretion as to parties with whom

he will deal.’” Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP

(Trinko), 540 U.S. 398, 408 (2004) (alteration in original) (quoting United States v.

Colgate & Co., 250 U.S. 300, 307 (1919)). Moreover, the Court has “been very

cautious in recognizing . . . exceptions” to that rule “because of the uncertain virtue

of forced sharing and the difficulty of identifying and remedying anticompetitive

conduct by a single firm.” Id.

At the same time, “[t]he high value that [courts] have placed on the right to

refuse to deal with other firms does not mean that the right is unqualified.” Aspen

Skiing Co. v. Aspen Highlands Skiing Corp. (Aspen Skiing), 472 U.S. 585, 601

(1985). Thus, a refusal to deal under some circumstances “can constitute

anticompetitive conduct and violate § 2.” Trinko, 540 U.S. at 408. We come,

then, to the first basic question: whether DFA’s refusal to deal allegations “fit

23 Case: 14-11853 Date Filed: 08/07/2015 Page: 24 of 62

within existing exceptions or provide a basis, under traditional antitrust principles,

for recognizing a new one.” Id. We conclude that they do not.

DFA claims that its complaint sets forth sufficient facts yielding an inference

of an anticompetitive refusal to deal within the meaning of two Supreme Court

cases: Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, and Otter

Tail Power Co. v. United States (Otter Tail), 410 U.S. 366 (1973). But as we see

it, these two cases are persuasively distinguishable, and this case provides no

compelling reason to depart from a business entity’s general “right to deal, or

refuse to deal, with whomever it likes, as long as it does so independently.”

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984).

First, in Aspen Skiing, a system was developed in Aspen, Colorado at a time

when each of its three major ski resorts were independently owned, under which

skiers could purchase an “all-Aspen” pass that would allow them to use specially-

purchased tickets interchangeably at all the resorts. 472 U.S. at 587-89. One

company, Ski Co., subsequently gained control of three of the four major resorts,

but the fourth, Highlands, remained independent. Id. at 589-90. Ski Co. then

unilaterally discontinued the “all-Aspen” pass, and subsequently refused to enter

into any cooperative arrangement allowing Highlands customers access to any of

its resorts. Id. at 592-94. It also refused to sell lift tickets to Highland, even when

Highland offered to pay the market retail price of the tickets. Id. at 593.

24 Case: 14-11853 Date Filed: 08/07/2015 Page: 25 of 62

The Court held that Ski Co. had engaged in anticompetitive conduct by

terminating the all-Aspen program, emphasizing that Ski Co. had not “merely

reject[ed] a novel offer to participate in a cooperative venture that had been

proposed by a competitor. Rather, [Ski Co.] elected to make an important change

in a pattern of distribution that had originated in a competitive market and had

persisted for several years.” Id. at 603. The Supreme Court acknowledged that

this conduct was “not necessarily anticompetitive.” Id. at 604. But it raised

enough of a question that the Court was required to consider the effect of Ski Co.’s

actions on Highlands, the “impact on consumers[,] and whether [the company]

ha[d] impaired competition in an unnecessarily restrictive way,” id. at 605. The

Court noted that customers strongly preferred the all-Aspen pass, id. at 606-07, and

that Highlands’s market share dropped from approximately 20% to 11% over the

four year period after the pass was discontinued, id. at 594-95, 607-08. Under

these circumstances, the Court explained,“[t]he jury may well have concluded that

Ski Co. elected to forgo . . . short-run benefits because it was more interested in

reducing competition in the Aspen market over the long run by harming its smaller

competitor.” Id. at 608.

The Supreme Court’s later opinion in Verizon Commc’ns Inc. v. Law

Offices of Curtis V. Trinko, LLP, 540 U.S. 398, provides further guidance. Trinko

clarified that Aspen Skiing embodies only a “limited exception” to the general rule

25 Case: 14-11853 Date Filed: 08/07/2015 Page: 26 of 62

that firms may choose the other companies with which they deal. Id. at 409. In

Trinko, the plaintiffs alleged that defendant Verizon was statutorily obliged to

make its operations support system available to its competitors, but that Verizon

essentially refused to deal with those competitors by ignoring or delaying its

response to their requests for access. Id. at 402-05; see Covad Commc’ns Co. v.

BellSouth Corp. (Covad II), 374 F.3d 1044, 1047-48 (11th Cir. 2004). The

Supreme Court held that the plaintiffs had not stated a refusal to deal claim under

Aspen Skiing, characterizing that case as “at or near the outer boundary of § 2

liability.” Trinko, 540 U.S. at 409. The Court held that the Trinko plaintiffs could

not state a refusal to deal claim under Aspen Skiing for two primary reasons. As

an initial matter, the plaintiff in Aspen Skiing had demonstrated “[t]he unilateral

termination of a voluntary (and thus presumably profitable) course of dealing,”

which “suggested a willingness to forsake short-term profits to achieve an

anticompetitive end.” Id. (emphasis in original). By contrast, the Trinko plaintiffs

did “not allege that Verizon voluntarily engaged in a course of dealing with its

rivals.” Id. Interpreting this portion of the opinion, we have explained, “Trinko

now effectively makes the unilateral termination of a voluntary course of dealing a

requirement for a valid refusal-to-deal claim under Aspen.” Covad II, 374 F.3d at

1049.

26 Case: 14-11853 Date Filed: 08/07/2015 Page: 27 of 62

The Supreme Court also emphasized “pricing behavior,” noting that the

plaintiff in Aspen Skiing was willing to compensate the defendant at the price its

rival charged its ordinary customers. Trinko, 540 U.S. at 409. By contrast, the

Trinko plaintiffs complained about Verizon’s reluctance to deal at a statutorily set

“cost-based rate of compensation.” Id. (“Verizon’s reluctance to interconnect at

the cost-based rate of compensation . . . tells us nothing about dreams of

monopoly.”).

In our view, DFA has similarly failed to state a refusal to deal claim under

Aspen Skiing. For starters, DFA has not alleged that Estée Lauder unilaterally

terminated the business relationship between the two companies. Rather, the

district court found, and we agree, that DFA ceased dealing with Estée Lauder of

its own accord. DFA argues that this Court must credit the complaint’s allegation

that Estée Lauder is responsible for ending the relationship between the two

parties. However, the complaint did not allege that Estée Lauder originally

terminated the relationship in 2008. Rather, the complaint used broad language to

generally allege that Estée Lauder refused to do business with DFA. It says, for

example, “[Estée Lauder] refused to sell its products to DFA,” and that Estée

Lauder attempted “to isolate and exclude DFA,” without specifically mentioning

how the parties’ business relationship was terminated. Indeed, the complaint

focuses not on the relationship’s end but on the fact that, while “DFA has

27 Case: 14-11853 Date Filed: 08/07/2015 Page: 28 of 62

approached [Estée Lauder] in an effort to resume their . . . relationship several

times[,] [Estée Lauder] has refused to even discuss this possibility.”

Moreover, when Estée Lauder filed its motion to dismiss, the district court

conducted a hearing. At that proceeding, DFA’s counsel admitted that DFA

terminated the relationship. The district court asked counsel: “Isn’t it undisputed

that [DFA] initially terminated its relationship and then they went back and said,

‘Now we want to restate [sic] our relationship, and [Estée Lauder] refused to

restart it[?]” Counsel responded:

[A]fter DFA did not want to purchase from [Estée Lauder] because of the price increase, you’re right. They went back to them. But I would say there’s additional facts that would suggest that the initiative to refuse to deal had moved to [Estée Lauder] certainly by 2010 . . . .

Because DFA’s own characterization of its complaint at the hearing was that DFA,

not Estée Lauder, terminated the relationship, its attempt to now argue the opposite

is unpersuasive.

But even if we were not persuaded by DFA’s own description of the

termination at the hearing before the district court, DFA referred to the transcript

of the Orlando RFP appeal hearing repeatedly in its complaint and attached an

excerpt of the transcript as an exhibit. At the Orlando hearing, a representative for

DFA noted that all of the duty free operators had disagreed with Estée Lauder’s

proposed price increases. He went on to explain: “DFA was the only company that

followed through on its conviction that the Estée Lauder pricing change was not in 28 Case: 14-11853 Date Filed: 08/07/2015 Page: 29 of 62

keeping with the spirit of customer duty-free savings expectations. And as a

consequence, DFA quit offering Estée Lauder products in its stores.” As a

document which was referenced in the complaint, and is central to the issue of

whether DFA adequately alleged anticompetitive conduct, the district court was

entitled to consider the transcript and the facts therein. Bickley v. Caremark RX,

Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (“[W]here the plaintiff refers to

certain documents in the complaint and those documents are central to the

plaintiff’s claim, then the Court may consider the documents part of the pleading

for purposes of Rule 12(b)(6) dismissal.” (quotation omitted)); Maxcess, Inc. v.

Lucent Technologies, Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (per curiam)

(stating that a court may consider documents “central to the plaintiff’s claims

and . . . undisputed in terms of authenticity”).

Aspen Skiing is also distinguishable from this case in other significant ways.

Thus, while the Aspen Skiing plaintiffs demonstrated their willingness to pay the

market price for the defendant’s goods, DFA repeatedly asserts in its complaint

that it strongly resisted Estée Lauder’s across the board price increases. In this

regard, DFA far more closely resembles the Trinko plaintiffs, with their insistence

that Verizon had to deal with its rivals at cost.

We are likewise unpersuaded by DFA’s suggestion that the Supreme Court’s

decision in Otter Tail applies. Notably, Otter Tail involved “a vertically integrated

29 Case: 14-11853 Date Filed: 08/07/2015 Page: 30 of 62

monopolist that refuse[d] to deal with a customer to foreclose competition in a

second market.” See Covad Commc’ns Co. v. BellSouth Corp., 299 F.3d 1272,

1289 (11th Cir. 2002), vacated, 540 U.S. 1147 (2005), overruled on other grounds

by Covad II, 374 F.3d 1044; see also IIIB Phillip E. Areeda & Herbert

Hovenkamp, Antitrust Law ¶ 772b3, at 205 (3d ed. 2008) (“The defendant [in

Otter Tail] possessed a natural monopoly. This monopoly was partially regulated

in ways that may have allowed it to operate to the detriment of consumers through

vertical integration. Third, the case ought to be read in light of strong historical

formulations from the common law imposing broad duties to deal on public

utilities.”). Here, by contrast, DFA has not alleged that Estée Lauder is a

monopolist attempting to leverage its power to foreclose competition in a related or

secondary market. Rather, taken in the light most favorable to DFA, the complaint

establishes only that Estée Lauder has captured half of the market for supplying

beauty products to duty free operators in U.S. airports. Thus, even if Estée Lauder

is seeking to move into the sales market, it is not a monopolist, much less a

vertically integrated monopolist, rendering Otter Tail inapplicable.

DFA also cites as predatory conduct that Estée Lauder made false statements

about DFA during airport bidding processes. Disparagement is rarely a basis for

finding attempted monopolization under § 2, because even false statements about a

30 Case: 14-11853 Date Filed: 08/07/2015 Page: 31 of 62

single competitor often do not meet the requisite standard of generating harm to

competition. See Spanish Broad. Sys. of Fla., Inc., 376 F.3d at 1076-77. As we

have explained, when a defendant makes false statements -- even clearly false

statements -- about a competitor, “these . . . practices might be characterized as

unsavory, or even illegal under other laws,” but “they do not give rise to a federal

antitrust claim without factual allegations specifically addressing how these

practices have harmed competition.” Id. Indeed, many of our sister circuits have

adopted a presumption that misrepresentations or false statements about a

competitor have a de minimis effect on competition. See, e.g., Lenox MacLaren

Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1127 (10th Cir. 2014); Am.

Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric

Surgery, Inc., 323 F.3d 366, 370 (6th Cir. 2003); Am. Prof’l Testing Serv., Inc. v.

Harcourt Brace Jovanovich Legal & Prof’l Publ’ns, Inc. (Harcourt), 108 F.3d

1147, 1152 (9th Cir. 1997); Nat’l Ass’n of Pharm. Mfrs., Inc. v. Ayerst Labs., Div.

of/& Am. Home Prods. Corp., 850 F.2d 904, 916 (2d Cir. 1988); see also Mercatus

Grp., LLC v. Lake Forest Hosp., 641 F.3d 834, 852 (7th Cir. 2011) (“[C]laims

based on one competitor’s disparagement of another should presumptively be

ignored. . . . [A]bsent an accompanying coercive enforcement mechanism of some

kind, even demonstrably false commercial speech is not actionable under the

antitrust laws.” (quotations omitted and alteration adopted)).

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These courts generally require a plaintiff alleging disparagement to rebut the

presumption by showing the defendant’s statements were “(1) clearly false, (2)

clearly material, (3) clearly likely to induce reasonable reliance, (4) made to buyers

without knowledge of the subject matter, (5) continued for prolonged periods, and

(6) not readily susceptible to neutralization or other offset by rivals.” Lenox

MacLaren Surgical Corp., 762 F.3d at 1127; accord Harcourt, 108 F.3d at 1152;

Nat’l Ass’n of Pharm. Mfrs., 850 F.2d at 916.

We agree that these factors are at least relevant to determining whether a

defendant engaged in anticompetitive disparagement of a competitor. As the Ninth

Circuit has explained, “distinguishing false statements on which buyers do, or

ought reasonably to, rely from customary puffing is not easy,” particularly because

most buyers “recognize disparagement as non-objective and highly biased.”

Harcourt, 108 F.3d at 1152 (quoting III Phillip Areeda & Donald F. Turner,

Antitrust Law ¶ 737b, at 278 (1978)). Moreover, where a plaintiff complains of

isolated rather than systemic disparagement, the effects on the plaintiff are

necessarily speculative and the effects on competition even more so. See id.

To resolve this case, however, we need not decide whether the plaintiff must

present facts to support each of these factors, because, at the most basic level, DFA

has failed to allege that Estée Lauder made any clearly false statements. As we see

it, a plaintiff alleging anticompetitive disparagement must allege, at a minimum,

32 Case: 14-11853 Date Filed: 08/07/2015 Page: 33 of 62

statements that were demonstrably false in order to survive a motion to dismiss.

Indeed, DFA seems to agree with this baseline requirement, inasmuch as it urges

us to hold that a claim may go forward on allegations of deliberate “submission of

false information to a decision-making governmental agency.”

DFA’s complaint identifies three instances of disparagement: (1) Estée

Lauder sent a letter to the Newark Airport Authority including a list of its dealers

and its belief that they were quality operators; (2) Estée Lauder told Boston and

Orlando airport officials that it did not deal with DFA; and (3) Estée Lauder

communicated its market share and the fact that it did not deal with DFA to other

duty free operators. Even taking these allegations in the light most favorable to

DFA, none of the statements are false. First, Estée Lauder’s statement vouching

for the quality of its duty free partners neither refers to DFA nor expresses an

opinion about the quality of its work. Moreover, Estée Lauder does not have a

relationship with DFA, and there is no allegation that the market share it

communicated to its duty free operator customers was inflated or otherwise

incorrect. For these reasons, we are unable to find any allegations of

disparagement that could offend the antitrust laws in DFA’s complaint.

Moreover, DFA has failed to allege that any of these communications

harmed competition. Rather, the complaint contains numerous examples of robust

competition between the duty free operators to obtain airport leases. In fact, each

33 Case: 14-11853 Date Filed: 08/07/2015 Page: 34 of 62

of the relevant RFPs resulted in an award to a different operator. DFA itself was

awarded the Atlanta duty free concessions contract after successfully rebutting

claims that it would be unable to sell any Estée Lauder products. Similarly, during

the Orlando RFP, DFA was offered a full and fair opportunity to contest the

statements that other duty free operators made against it.

The complaint also does not allege that DFA is being pushed out of the duty

free beauty products market. Rather, it concedes that DFA was able to develop

demand for new beauty brands, and continues to sell beauty items despite losing

access to Estée Lauder products. Finally, and perhaps most compellingly, DFA’s

strategy of offering a wider array of products than its competitors appears to be

working. The complaint alleges that DFA currently operates the duty free

commercial spaces in more than half of the airports that possess that space -- it is

the leaseholder in 13 of the 25 airports.

As we have explained, “[a]lthough damage to a critical competitor may also

damage competition in general, [the plaintiff] bears the burden of drawing that

implication with specific factual allegations.” Spanish Broad. Sys. of Fla., Inc.,

376 F.3d at 1072-73 (second emphasis added). And “market power alone cannot

be sufficient to show the potential for genuine adverse effects on competition”; the

plaintiff is “required [to make] specific allegations linking market power to harm

to competition in that market.” Id. at 1073; see also Tops Mkts, Inc., 142 F.3d at

34 Case: 14-11853 Date Filed: 08/07/2015 Page: 35 of 62

97 (“A plaintiff seeking to use market power as a proxy for adverse effect must

show market power, plus some other ground for believing that the challenged

behavior could harm competition in the market, such as the inherent

anticompetitive nature of the defendant’s behavior or the structure of the interbrand

market.”). Here, it is not enough for DFA to allege that Estée Lauder is the top

supplier of duty free beauty products. DFA was required to link that fact to a

competitive harm.

Finally, DFA argues that the district court “refused to treat as true the

allegations in the Complaint attributing statements by [Estée Lauder]-favored

operators to [Estée Lauder].” However, DFA did not allege a conspiracy between

Estée Lauder and the operators, nor did it claim any agency relationship between

the companies. Rather, the complaint, taken in the light most favorable to DFA,

simply asserts that “[Estée Lauder] is aware of and has not stopped its favored duty

free operators from representing to airport authorities that DFA . . . cannot meet its

financial bids to airports.” These conclusory statements provide no legal basis for

attributing the statements to Estée Lauder.

C.

DFA’s final claim is that Estée Lauder’s restrictions on its customers’

display space and its inventory requirements are anticompetitive. Although DFA’s

complaint seeks damages -- and the company argued in its briefing before this

35 Case: 14-11853 Date Filed: 08/07/2015 Page: 36 of 62

Court that damages might be appropriate -- DFA’s counsel stated at oral argument

that it was abandoning any claim for damages resulting from Estée Lauder’s

display space and inventory requirements. In any event, to the extent DFA seeks

damages on this count, its claim is time barred. An action by a private party

seeking damages based on a defendant’s antitrust violations must be “commenced

within four years after the cause of action accrued.” 15 U.S.C. § 15b; see id. § 15.

The complaint establishes that DFA was last subject to Estée Lauder’s

requirements several years ago: (1) “display space and inventory demands” in

March 2008; (2) “full line forcing” in March 2008; and (3) “tying” fragrances to

other products in April 2006. Because DFA did not bring suit until April 26, 2012,

any claim for damages is barred by the statute of limitations.

DFA says that even if it cannot state a claim for damages, it may still seek

injunctive relief. See 15 U.S.C. § 26 (“Any person, firm, corporation, or

association shall be entitled to sue for and have injunctive relief . . . against

threatened loss or damage by a violation of the antitrust laws . . . .”). Because

DFA is not a customer of Estée Lauder, and thus is not subject to any of these

requirements, we are hard pressed to see how it has constitutional standing to

challenge them. As the party invoking federal jurisdiction, DFA had the burden of

demonstrating that it has standing to sue. Mulhall v. UNITE HERE Local 355, 618

F.3d 1279, 1286 (11th Cir. 2010); see also Church v. City of Huntsville, 30 F.3d

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1332, 1336 (11th Cir. 1994) (“[S]tanding requirements ‘are not mere pleading

requirements but rather are an indispensable part of the plaintiff’s case.’

Therefore, each element of standing must be supported ‘with the manner and

degree of evidence required at the successive stages of the litigation.’” (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992))). “[B]ecause the

constitutional standing doctrine stems directly from Article III’s ‘case or

controversy’ requirement, this issue implicates our subject matter jurisdiction, and

accordingly must be addressed as a threshold matter regardless of whether it is

raised by the parties.” Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229,

1242 (11th Cir. 2003). When analyzing a defendant’s “motion to dismiss we must

evaluate standing based on the facts alleged in the complaint, and we may not

‘speculate concerning the existence of standing or piece together support for the

plaintiff.’” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (quotation

omitted)).

The test for Article III standing is by now well settled. “First, the plaintiff

must have suffered an ‘injury in fact’ -- an invasion of a legally protected interest

which is (a) concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.” Lujan, 504 U.S. at 560 (quotation omitted). Second,

the plaintiff must establish a causal connection between its injury and the

defendant’s conduct. Id. Third, the plaintiff must show that it is likely -- and not

37 Case: 14-11853 Date Filed: 08/07/2015 Page: 38 of 62

merely speculative -- that a favorable decision by the court will redress the injury.

Id. at 561. Moreover, we have explained that there is an additional element to the

injury in fact requirement when a plaintiff seeks injunctive relief. Houston v.

Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). “Because

injunctions regulate future conduct, a party has standing to seek injunctive relief

only if the party alleges, and ultimately proves, a real and immediate -- as opposed

to a merely conjectural or hypothetical -- threat of future injury.” Wooden v. Bd.

of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001) (quoting

Church, 30 F.3d at 1337); see City of Los Angeles v. Lyons, 461 U.S. 95, 102

(1983) (“[P]ast exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief . . . if unaccompanied by any continuing,

present adverse effects.” (second alteration in original) (quotation omitted)).

The fact that DFA may have been injured by the display and inventory

requirements in the past -- as late as March 2008 -- cannot be sufficient to establish

an injury in fact that would support injunctive relief. The complaint contains no

allegation that those restrictions caused any lasting impact or likely future injury,

and thus DFA has not met the requirement that it show harm that is “actual or

imminent.” Lujan, 504 U.S. at 560. Absent facts suggesting that former exposure

to Estée Lauder’s requirements caused “continuing, present adverse effects” on

DFA, Estée Lauder’s past conduct cannot be the basis of a request for injunctive

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relief. Lyons, 461 U.S. at 102; see Church, 30 F.3d at 1337 (“Logically, a

prospective remedy will provide no relief for an injury that is, and likely will

remain, entirely in the past.” (quotation omitted)).

DFA claimed at oral argument that it would suffer injury if it resumes

purchasing from Estée Lauder and becomes subject to Estée Lauder’s

requirements. This cannot be characterized as a “concrete” or “actual” injury in

fact because, by its very terms, it has not yet occurred, and indeed may never

occur.

DFA also suggests that it is injured by the display space and inventory

requirements because its competitors are still subject to them. But DFA fails to

provide any plausible connection between an injury it has sustained and the

restrictions which DFA claims harm its competitors. Indeed, DFA alleges in its

complaint that it protested the restrictions when it was subject to them several

years ago. Moreover, DFA draws attention to the ways in which the restrictions --

which limit its competitors’ ability to offer a wide array of products -- benefit

DFA. Specifically, DFA claims to “obtain[] licenses from a number of high-end

beauty product brand owners” that its competitors often do not carry because they

do not have enough space. DFA also alleges that it is “able to offer more and more

prominent display space to non-[Estée Lauder] brands than [other] duty free

operators do.” In short, nothing in the complaint suggests that DFA is harmed by

39 Case: 14-11853 Date Filed: 08/07/2015 Page: 40 of 62

Estée Lauder’s restrictions on other duty free operators. We therefore hold that

DFA does not have constitutional standing to challenge the display space and

inventory requirements.

Because DFA cannot demonstrate that it has Article III standing to challenge

Estée Lauder’s contractual requirements, it plainly follows that it cannot establish

what our cases have referred to as “antitrust standing.” See Palmyra Park Hosp.

Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1299 (11th Cir. 2010) (“To

have antitrust standing, a party must do more than meet the basic ‘case or

controversy’ requirement that would satisfy constitutional standing; instead, the

party must show that it satisfies a number of prudential considerations aimed at

preserving the effective enforcement of the antitrust laws.” (quotation omitted)).

We analyze antitrust standing using a two pronged test that “involves

consideration of the nexus between the antitrust violation and the plaintiff’s harm

and whether the harm alleged is of the type for which Congress provides a

remedy.” Sunbeam Television Corp. v. Nielsen Media Research, Inc., 711 F.3d

1264, 1271 (11th Cir. 2013). First, we consider whether the plaintiff has suffered

an antitrust injury. Id. “Antitrust injury is ‘injury of the type the antitrust laws

were intended to prevent and that flows from that which makes [the] defendant[’s]

acts unlawful.’” Palmyra Park Hosp. Inc., 604 F.3d at 1299 (quoting Brunswick

Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)). When a plaintiff is

40 Case: 14-11853 Date Filed: 08/07/2015 Page: 41 of 62

seeking injunctive relief, this means it “must allege threatened injury that would

constitute antitrust injury if inflicted upon the plaintiff and the defendant’s causal

responsibility for such threatened injury.” Todorov v. DCH Healthcare Auth., 921

F.2d 1438, 1452 (11th Cir. 1991). Second, the plaintiff must “be an ‘efficient

enforcer’ of the antitrust laws.” Sunbeam Television Corp., 711 F.3d at 1271.

When only injunctive relief is sought, “the dangers of mismanaging the antitrust

laws are less pervasive,” Todorov, 921 F.2d at 1452, and accordingly “we are less

concerned about whether the party would be the most efficient enforcer of the

antitrust laws,” Palmyra Park Hosp. Inc., 604 F.3d at 1299-300. Nevertheless,

certain factors that the Court typically considers when determining whether a

plaintiff is an efficient enforcer remain relevant to this Court’s inquiry into whether

injunctive relief would be appropriate. See Cargill, Inc. v. Monfort of Colorado,

Inc., 479 U.S. 104, 111 n.6 (1986); Daniel v. Am. Bd. of Emergency Med., 428

F.3d 408, 437 (2d Cir. 2005).5 Thus, for example, a plaintiff who has suffered

5 This Court usually considers six factors in determining whether a plaintiff would be an efficient enforcer of the antitrust laws: (1) whether the plaintiff has suffered a direct injury; (2) whether its injury is remote; (3) whether other plaintiffs are better suited to bring the suit; (4) whether the plaintiff’s injuries are speculative; (5) whether the calculation of damages would be complex and run the risk of duplicative recoveries; and (6) whether the plaintiff could enforce the court’s judgment. Sunbeam Television Corp., 711 F.3d at 1271 (citing Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 538-45 (1983)). When the plaintiff seeks only equitable relief, however, some of these factors -- such as the danger of duplicative recoveries, complexity of assessing damages, and the existence of more suitable plaintiffs -- are not implicated. Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111 n.6 (1986). 41 Case: 14-11853 Date Filed: 08/07/2015 Page: 42 of 62

only indirect injury, or who alleges speculative damages, may lack antitrust

standing to seek an injunction.

Again, DFA has not alleged that it suffers any injury as a result of Estée

Lauder’s restrictions on its competitors, much less that it suffers an antitrust injury.

And even if DFA had plausibly alleged that it sustained an antitrust injury, we

would still be obliged to find that it is not an efficient enforcer of the antitrust laws

because it is not currently subject to Estée Lauder’s display space and inventory

restrictions and has not been for several years. This means that DFA could not

enforce any judgment that we would reach about the requirements, and that any

injury to DFA would necessarily be speculative -- something that may or may not

occur in the future. Plainly, another duty free operator that currently maintains a

relationship with Estée Lauder would be in a far better position than DFA to clarify

the contours of Estée Lauder’s restrictions and to point out what harm, if any, those

requirements may cause.6

6 The Supreme Court’s recent decision in Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), casts doubt on the future of prudential standing doctrines such as antitrust standing. In Lexmark, the Supreme Court declined to adopt the antitrust standing test in the Lanham Act context. Id. at 1385-87, 1391. In the course of this discussion, the Court questioned referring to the test as one of prudential “standing” -- noting that, in actuality, it is neither prudential nor an inquiry into standing, but an analysis of whether the plaintiff’s “injuries were proximately caused by a defendant’s antitrust violations.” Id. at 1386-87 n.4. This, the Court explained, is a statutory interpretation question about “the scope of the private remedy created by Congress” when it drafted the antitrust laws. Id. at 1386-87 (quotation omitted). However, Lexmark is a Lanham Act case, and this discussion is dicta. We do not “lightly cast aside” Supreme Court dicta, Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006), but “[u]nder the prior precedent rule, we are bound to follow a prior binding precedent unless and until it is overruled by this court en banc or by the Supreme Court.” United States v. Vega- 42 Case: 14-11853 Date Filed: 08/07/2015 Page: 43 of 62

IV.

DFA’s second claim is that its competitors made statements to airport

authorities that amount to actionable false advertising under § 43(a) of the Lanham

Act. DFA argues that Estée Lauder can be held liable for these statements based

on a theory of contributory liability. Estée Lauder responds that the claim must

necessarily fail both because the Lanham Act’s prohibition on false advertising

does not include a derivative claim based on contributory liability and because,

even if it did, DFA has not alleged facts sufficient to support such a claim. While

we agree with DFA that the prohibition on false advertising in § 43(a) of the

Lanham Act may allow a claim based on contributory liability, the complaint does

not come close to alleging the necessary facts. Thus, we affirm the dismissal of the

Lanham Act claim for failure to state a claim.

Whether § 43(a) of the Lanham Act includes within its ambit a claim for

false advertising based on contributory liability is a question of first impression.

DFA has cited only one case in which a circuit court recognized the possibility that

a defendant could be contributorily liable for a third party’s false advertising. See

Societe Des Hotels Meridien v. LaSalle Hotel Operating P’ship, L.P., 380 F.3d

126, 132-33 (2d Cir. 2004). Moreover, our research suggests that while district

Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quotation omitted). In any event, any impact that Lexmark may have on the notion of antitrust standing is utterly immaterial in this case, because DFA has not established that it has Article III standing. 43 Case: 14-11853 Date Filed: 08/07/2015 Page: 44 of 62

courts routinely assume that contributory liability claims are available, neither the

Supreme Court nor any Court of Appeals has explicitly considered and resolved

this question. See, e.g., Coach, Inc. v. Sapatis, 994 F. Supp. 2d 192, 201 (D.N.H.

2014); Merck Eprova AG v. Brookstone Pharm., LLC, 920 F. Supp. 2d 404, 425

(S.D.N.Y. 2013); Merck Eprova AG v. Gnosis S.p.A., 901 F. Supp. 2d 436, 456

(S.D.N.Y. 2012), aff’d, 760 F.3d 247 (2d Cir. 2014); Coach, Inc. v. Farmers Mkt.

& Auction, 881 F. Supp. 2d 695, 704 (D. Md. 2012); ADT Sec. Servs., Inc. v. Sec.

One Int’l, Inc., No. 11-CV-05149 YGR, 2012 WL 4068632, at *3 (N.D. Cal. Sept.

14, 2012); Campagnolo S.R.L. v. Full Speed Ahead, Inc., No. C08-1372 RSM,

2010 WL 2079694, at *4 (W.D. Wash. May 20, 2010), aff’d, 447 F. App’x 814

(9th Cir. 2011).

Although we begin any statutory construction by looking to the plain

language of the provision at issue, Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013),

contributory liability under the Lanham Act is a judicially developed doctrine, see

Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1245

(11th Cir. 2007) (noting that contributory liability actions “stem from the general

prohibitory language” of the Act’s trademark infringement provisions). Indeed, in

the trademark infringement arena, the Supreme Court has long recognized that

liability “can extend beyond those who actually mislabel goods.” Inwood Labs.,

Inc. v. Ives Labs., Inc., 456 U.S. 844, 853 (1982). This means that when a claim

44 Case: 14-11853 Date Filed: 08/07/2015 Page: 45 of 62

involves trademark infringement, a manufacturer or distributor can be liable if it

“intentionally induces another to infringe a trademark” or “continues to supply its

product to one whom it knows or has reason to know is engaging in trademark

infringement.” Id. at 854 (citing William R. Warner & Co. v. Eli Lilly & Co., 265

U.S. 526 (1924)).

Interpreting this language, this Court has found no reason to confine the

doctrine to manufacturers, and has expanded it to cover a wide variety of

trademark infringement contexts. Mini Maid Servs. Co. v. Maid Brigade Sys.,

Inc., 967 F.2d 1516, 1522 (11th Cir. 1992) (“With respect to a franchisor’s liability

for the independent infringing acts of its franchisees, we hold that the franchisor

may be held accountable only if it intentionally induced its franchisees to infringe

another’s trademark or if it knowingly participated in a scheme of trademark

infringement carried out by its franchisees.”); Bauer Lamp Co. v. Shaffer, 941 F.2d

1165, 1171 (11th Cir. 1991) (“A person who knowingly participates in furthering

the trade dress infringement is liable as a contributing party.”). Our sister circuits

have taken a similar approach. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d

259 (9th Cir. 1996); Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc.,

42 F.3d 1421, 1432 (3d Cir. 1994); Hard Rock Cafe Licensing Corp. v. Concession

Servs., Inc., 955 F.2d 1143, 1149 (7th Cir. 1992); see also Tiffany (NJ) Inc. v.

45 Case: 14-11853 Date Filed: 08/07/2015 Page: 46 of 62

eBay Inc., 600 F.3d 93, 106-09 (2d Cir. 2010) (assuming, without deciding, that

Inwood applied to a claim outside the manufacturing context).

The rationale for allowing contributory trademark infringement actions

supports recognizing a similar theory of liability in the false advertising context.

For starters, § 43(a) of the Lanham Act contains two different classes of

prohibitions: one banning trademark infringement and one prohibiting false

advertising. Each cause of action is a subpart of a single statutory provision, which

reads this way:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a).

These prohibitions are found in the same statutory provision, and they share

the same introductory clause. We analyze this structure in light of the core

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principle that “[s]tatutory construction is a holistic endeavor,” Koons Buick

Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (quotation omitted), and that

individual provisions are “often clarified by the remainder of the statutory

scheme,” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,

484 U.S. 365, 371 (1988). The placement of the two prohibitions in the same

statutory section -- and correspondingly, the fact that the introductory language

banning both practices is identical -- suggests the two causes of action should be

interpreted to have the same scope.

Reading these two clauses in the same way is reinforced by the fact that both

causes of action were motivated by a unitary purpose. “Section 43(a) of the

Lanham Act creates a ‘federal cause of action for unfair competition.’” Optimum

Techs, Inc., 496 F.3d at 1247-48 (quoting Univ. of Fla. v. KPB, Inc., 89 F.3d 773,

775 (11th Cir. 1996) (per curiam)); see 15 U.S.C. § 1127 (noting that one of the

purposes of the Act is “to protect persons engaged in . . . commerce against unfair

competition”); S. Rep. No. 79-1333, at 4 (1946), reprinted in 1946 U.S.C.C.A.N.

1274, 1275 (“There is no essential difference between trade-mark infringement and

what is loosely called unfair competition. Unfair competition is the genus of

which trade-mark infringement is one of the species . . . .”). Both its trademark

protections and its prohibition on false advertising are “part of the broader law of

unfair competition that has its sources in English common law.” Moseley v. V

47 Case: 14-11853 Date Filed: 08/07/2015 Page: 48 of 62

Secret Catalogue, Inc., 537 U.S. 418, 428 (2003) (citation omitted); see Natural

Answers, Inc. v. SmithKline Beecham Corp., 529 F.3d 1325, 1330-31 (11th Cir.

2008) (“The intent of [the false advertising] provision is to protect ‘commercial

interests [that] have been harmed by a competitor’s false advertising, and [to

secure] to the business community the advantages of reputation and good will by

preventing their diversion from those who have created them to those who have

not.’” (second and third alterations in original) (quoting Phoenix of Broward, Inc.

v. McDonald’s Corp., 489 F.3d 1156, 1168 (11th Cir. 2007))).

The Supreme Court has clarified that the principles underlying the Lanham

Act contemplate liability that extends beyond direct violators of the trademark

provision of § 43(a). Inwood Labs., Inc., 456 U.S. at 853; see William R. Warner

& Co., 265 U.S. at 530 (“The [defendant manufacturer’s] wrong was in designedly

enabling the dealers to palm off the [drug] as that of the [plaintiff].”). Because

these same principles motivated the false advertising provision, the same reasoning

supports the conclusion that a plaintiff can state a claim for contributory false

advertising. As the Third Circuit has explained in addressing whether claims based

on agency and apparent agency are cognizable under § 43(a) of the Lanham Act:

The contributory infringement cases . . . demonstrate that in certain instances, secondary, indirect liability is a legitimate basis for liability under the federal unfair competition statute. There is a good reason for this: the Lanham Act is derived generally and purposefully from the common law tort of unfair competition, and its language parallels the protections afforded by state common law and statutory torts. . . . 48 Case: 14-11853 Date Filed: 08/07/2015 Page: 49 of 62

In construing the Act, then, courts routinely have recognized the propriety of examining basic tort liability concepts to determine the scope of liability.

Am. Tel. & Tel. Co., 42 F.3d at 1433.

Moreover, while the two causes of action are derived from the same

principles and contained in the same statute, the Supreme Court has recognized

that the false advertising provision of the Lanham Act entails broader protections.

See POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2234 (2014) (“The

Lanham Act’s trademark provisions are the primary means of achieving [the

statute’s] ends. But the Act also creates a federal remedy [for false advertising]

‘that goes beyond trademark protection.’ The broader remedy is at issue here.”

(quoting Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 29

(2003)). It would be odd indeed for us to narrow the scope of the false advertising

provision -- a cause of action plainly intended to encompass a broader spectrum of

protection -- and hold that it could be enforced only against a smaller class of

defendants. Absent congressional direction, we are reluctant to limit the statute’s

scope in this way. Thus, we hold that a plaintiff may bring a claim for contributory

false advertising under § 43(a) of the Lanham Act.

What, then, must a plaintiff establish in order to state a contributory false

advertising claim? First, the plaintiff must show that a third party in fact directly

engaged in false advertising that injured the plaintiff. Second, the plaintiff must

49 Case: 14-11853 Date Filed: 08/07/2015 Page: 50 of 62

allege that the defendant contributed to that conduct either by knowingly inducing

or causing the conduct, or by materially participating in it.

In order to establish that a third party engaged in false advertising, the

plaintiff “must plead (and ultimately prove) an injury to a commercial interest in

sales or business reputation proximately caused by the . . . misrepresentations.”

Lexmark Int’l, Inc., 134 S. Ct. at 1395. To prove that the third party’s statements

caused the requisite injury, we have held that the plaintiff must show:

(1) the . . . statements were false or misleading; (2) the statements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on the consumers’ purchasing decision; (4) the misrepresented service affects interstate commerce; and (5) [the plaintiff] has been, or likely will be, injured as a result of the false or misleading statement.

Sovereign Military Hospitaller Order v. Fla. Priory of Knights Hospitallers, 702

F.3d 1279, 1294 (11th Cir. 2012).

The Lanham Act’s false advertising provision allows a plaintiff to base its

claim not only on statements that are literally false, but also on statements that are

misleading when considered in their full context. Osmose, Inc. v. Viance, LLC,

612 F.3d 1298, 1308 (11th Cir. 2010). Although “[s]tatements of opinion are

generally not actionable” under the Lanham Act, id. at 1311, we have suggested

that we will treat a statement framed as an opinion as one of fact if it “fairly

implies a [factual] basis.” See id. (citing Restatement (Third) of Unfair

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Competition § 3 cmt. d. (1995) (“Some representations of opinion may imply the

existence of facts that justify the opinion . . . .”)).

Once the plaintiff establishes the elements of a direct false advertising claim

against a third party, it must allege that the defendant contributed to that conduct.

This means that the plaintiff must allege that the defendant had the necessary state

of mind -- in other words that it “intended to participate in” or “actually knew

about” the false advertising. See Mini Maid Servs. Co., 967 F.2d at 1522. The

plaintiff must also allege that the defendant actively and materially furthered the

unlawful conduct -- either by inducing it, causing it, or in some other way working

to bring it about. Cf. 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1249

(10th Cir. 2013) (explaining that Inwood establishes liability for a defendant who

“enables a third party” to violate the Lanham Act).

Analogies from trademark infringement, in which contributory liability is

more developed, can be instructive. Thus, for example, a plaintiff may be able to

make out the participation prong of a contributory false advertising claim by

alleging that the defendant directly controlled or monitored the third party’s false

advertising. See Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 807 (9th

Cir. 2007). It is also conceivable that there could be circumstances under which

the provision of a necessary product or service, without which the false advertising

would not be possible, could support a theory of contributory liability. See Inwood

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Labs., Inc., 456 U.S. at 854-55. In determining whether a plaintiff has adequately

alleged facts to support such a claim, we look to whether the complaint suggests a

plausible inference of knowing or intentional participation, examining “the nature

and extent of the communication” between the third party and the defendant

regarding the false advertising; “whether or not the [defendant] explicitly or

implicitly encouraged” the false advertising; whether the false advertising “is

serious and widespread,” making it more likely that the defendant “kn[ew] about

and condone[d] the acts”; and whether the defendant engaged in “bad faith refusal

to exercise a clear contractual power to halt” the false advertising. See Mini Maid

Servs. Co., 967 F.2d at 1522.

The district court identified four allegedly false claims in the complaint,

each of which was made by a duty free operator to representatives of an airport and

each of which DFA says we should attribute to Estée Lauder. First, Nuance stated

in a letter to Atlanta officials: “Given that Estée Lauder brands account for 20% of

cosmetic and fragrance sales, at least in Orlando, and cosmetic and fragrance sales

constitute one of the largest sources of revenue for duty free stores, a lack of access

to Estée Lauder brands would cast doubt on the validity of DFA’s projected

revenue streams.” Second, Travel Retail told Orlando officials: “[W]e strongly

believe that Estée Lauder is a product which you have to sell, also, to domestic

passengers.” Third, Nuance said during the Orlando appeal hearing: “With respect

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to DFA, I’d like to echo Travel Retail’s concerns on DFA’s rents. . . . DFA sales

project[ions] are deemed to be unreasonable and not sustainable in light of the

history.” Finally, Travel Retail informed the Orlando Airport Authority: “[F]ailure

to offer the Estée Lauder product line will negatively impact duty free and duty

paid sales revenue for both international and domestic travelers.” 7 DFA argues

that it also alleged that Nuance, in its letter protesting the Atlanta award, stated

“DFA may have made misrepresentations about its ability to carry Estée Lauder

brands,”8 and we agree that this is an allegedly false claim the district court failed

to consider.

As for the first element, Estée Lauder claims that the duty free operators did

not engage in any false advertising. Estée Lauder urges us to hold that DFA’s

complaint is devoid of any false or misleading statements cognizable under the

Lanham Act, but we need not answer this fact-intensive question. We agree that

DFA did not adequately allege Estée Lauder contributed to any of the statements,

and thus affirm the district court’s dismissal on this ground.

7 DFA argues that the district court ought not to have considered these quotes, but should have credited the complaint’s formulations, specifically (1) “carrying [Estée Lauder] products is required for the success of a duty free store” and (2) “DFA’s lack of access to [Estée Lauder] products will prevent it from being successful, including being able to meet its projected revenue targets.” DFA’s summarized false statements are indistinguishable from the quotations in substance. And its claim fares no better if they are substituted for the actual statements that the operators made to airport authorities. 8 DFA again argues that we must consider its preferred formulation: “DFA did not have the ability to sell the [Estée Lauder] products it had listed in its [Atlanta] bid.” The substitution of this phrasing would be similarly immaterial. 53 Case: 14-11853 Date Filed: 08/07/2015 Page: 54 of 62

We are unable to find in DFA’s complaint any facts that would enable the

court to draw the reasonable inference that Estée Lauder induced or knowingly or

intentionally participated in any of the allegedly false statements made by the other

duty free operators. In its complaint, DFA based its claim for contributory liability

on the fact that “[Estée Lauder] knew or should have known of the False Claims,

but [it] continued to supply [Estée Lauder] product[s] to its favored duty free

operators . . . . In doing so, [Estée Lauder] provided its favored duty free operators

with the means to continue making the False Claims . . . . ” We cannot see how the

mere sale of Estée Lauder products can serve as a basis for holding the

manufacturer liable for any disparaging statements its customers make in the

course of their own separate business relations. In our view, selling Estée Lauder

products is too unrelated to the making of the allegedly false or misleading

statements to form a basis for liability -- under either an inducement or

participation theory.

Moreover, contrary to DFA’s argument, there are simply no facts in the

complaint that suggest the existence of coordinated action or encouragement, much

less inducement, between Estée Lauder and the operators on the decision to make

the disputed claims to airport authorities. There has been no allegation that by

selling its products to the duty free operators, Estée Lauder monitored, controlled,

or participated in operators’ statements to airport authorities during a competitive

54 Case: 14-11853 Date Filed: 08/07/2015 Page: 55 of 62

bidding process for which Estée Lauder was not even present. More generally,

there are no facts to suggest that Estée Lauder commonly exercises any level of

control over or involvement in the duty free operators’ conduct during airport RFP

bidding.

In short, although we agree with DFA that a plaintiff may state a claim

against a defendant for contributory false advertising, we are unwilling to extend

the doctrine as far as DFA urges. The mere sale of products in the course of an

ordinary business relationship, without more, cannot justify a finding that a

defendant induced, encouraged, caused, procured, or brought about false

advertising. Contributory false advertising claims are cognizable under the

Lanham Act, but a plaintiff must allege more than an ordinary business

relationship between the defendant and the direct false advertiser in order to

plausibly plead its claim. DFA has failed to do so here.

V.

DFA’s final claim is that Estée Lauder’s direct and indirect involvement in

airport RFP processes violated Florida’s prohibition against tortious interference

with a prospective business relationship. Under Florida law, “[t]he elements of

tortious interference with a business relationship are ‘(1) the existence of a

business relationship[;] (2) knowledge of the relationship on the part of the

defendant; (3) an intentional and unjustified interference with the relationship by

55 Case: 14-11853 Date Filed: 08/07/2015 Page: 56 of 62

the defendant; and (4) damage to the plaintiff as a result of the breach of the

relationship.’” Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814

(Fla. 1994) (alteration adopted) (quoting Tamiami Trail Tours, Inc. v. Cotton, 463

So. 2d 1126, 1127 (Fla. 1985) (per curiam)). Though the second and fourth

elements of this test are self-explanatory, the first and third require some additional

explication.

As for the first element -- the existence of a business relationship -- the

Supreme Court of Florida has explained that the plaintiff need not allege the

existence of an enforceable contract and that the plaintiff can prevail “if the jury

finds that an understanding between the parties would have been completed had

the defendant not interfered.” Id. (quoting Landry v. Hornstein, 462 So. 2d 844,

846 (Fla. Dist. Ct. App. 1985)). “A mere offer to sell, however, does not, by itself,

give rise to sufficient legal rights to support a claim of intentional interference with

a business relationship.” Id. (quoting Landry, 462 So. 2d at 846).

The third element, intentional and unjustified interference with a business

relationship, requires the plaintiff to allege that “the defendant acted without

justification.” Sec. Title Guarantee Corp. of Balt. v. McDill Columbus Corp., 543

So. 2d 852, 855 (Fla. Dist. Ct. App. 1989). This is a fact-intensive inquiry that

requires “an examination of the defendant’s conduct, its motive, and the interests it

sought to advance.” Id. (quotation omitted). Importantly, however, Florida

56 Case: 14-11853 Date Filed: 08/07/2015 Page: 57 of 62

recognizes a “privilege of interference.” Wackenhut Corp. v. Maimone, 389 So.

2d 656, 657-58 (Fla. Dist. Ct. App. 1980). This means that where “there is no

contract right to have the relation continued, but only an expectancy[,] . . . a

competitor has the privilege of interference in order to acquire the business for

himself.” Id.; accord Greenberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc.,

629 So. 2d 252, 255 (Fla. Dist. Ct. App. 1993).

“If a defendant interferes with a contract in order to safeguard a preexisting

economic interest of his own, the defendant’s right to protect his own established

economic interest outweighs the plaintiff’s right to be free of interference, and his

actions are usually recognized as privileged and nonactionable.” See Heavener,

Ogier Servs., Inc. v. R.W. Fla. Region, Inc., 418 So. 2d 1074, 1076-77 (Fla. Dist.

Ct. App. 1982); Sec. Title Guarantee Corp. of Balt., 543 So. 2d at 855 (noting that,

as “long as improper means are not employed, activities taken to safeguard or

promote [a company’s] own financial interests are entirely non-actionable.”

(quotation and alteration omitted)). 9 Indeed, Florida courts have explained that,

9 Florida’s Standard Jury Instructions, though merely persuasive, also confirm our understanding of Florida law. They read, in relevant part:

A person who interferes with the business relations of another with the motive and purpose, at least in part, to advance [or protect] his own business [or financial] interests, does not interfere with an improper motive. But one who interferes only out of spite, or to do injury to others, or for other bad motive, has no justification, and his interference is improper. So also, a person who interferes with another’s business relations using ordinary business methods [of competition] does not interfere by an improper method. But one who uses 57 Case: 14-11853 Date Filed: 08/07/2015 Page: 58 of 62

even if the plaintiff has an existing, terminable-at-will contract, the defendant’s

interference to protect its economic interests is privileged unless the plaintiff

alleges “a purely malicious motive” divorced from any “legitimate competitive

economic interest.” See Heavener, Ogier Servs., Inc., 418 So. 2d at 1077. It

follows that where the plaintiff alleges only a prospective business relationship --

and thus the plaintiff has a “mere expectancy” of a new relationship -- the privilege

of interference similarly bars only interference consisting of malicious conduct.

Cf. id. at 1077.

Interpreting Florida law, we have said that “when there is room for different

views” about the propriety of a defendant’s interference with a plaintiff’s business

relationships, “the determination of whether the interference was improper or not is

ordinarily left to the jury.” Mfg. Research Corp. v. Greenlee Tool Co., 693 F.2d

1037, 1040 (11th Cir. 1982) (quotation omitted). However, when plaintiffs have

failed to adequately allege improper methods, we have followed the Florida courts

and dismissed these claims. See, e.g., Int’l Sales & Serv., Inc. v. Austral Insulated

Prods., Inc., 262 F.3d 1152, 1159 n.1 (11th Cir. 2001); Royal Typewriter Co., a

Div. of Litton Bus. Sys. v. Xerographic Supplies Corp., 719 F.2d 1092, 1104-05

[physical violence], [misrepresentations], [illegal conduct], [threats of illegal conduct], [or] [(identify other improper conduct)] has no privilege to use those methods, and his interference using such methods is improper.

Standard Jury Instructions-Civil Cases (99-1), 778 So. 2d 264, 269 (Fla. 2000) (footnotes omitted). 58 Case: 14-11853 Date Filed: 08/07/2015 Page: 59 of 62

(11th Cir. 1983); see also Seminole Tribe of Fla. v. Times Pub. Co., 780 So. 2d

310, 318 (Fla. Dist. Ct. App. 2001) (affirming district court’s grant of defendant’s

motion to dismiss tortious interference claim).

DFA urges us to find that it adequately alleged improper methods in its

complaint, citing to three allegations about Estée Lauder’s conduct: (1) Estée

Lauder represented to airport authorities that DFA could not meet its financial

projections; (2) Estée Lauder represented to the Atlanta Airport Authority that

DFA was unable to sell any Estée Lauder products, implying that DFA did not

have outstanding inventory; and (3) Estée Lauder suggested to airport authorities

that DFA was not a quality operator.

As we see it, the problem with each of these allegations is the same: the

complaint does not allege that Estée Lauder actually made any of these statements.

To be sure, false statements made “for the purpose of harming [a competitor’s]

economic interests” can in some instances form the basis of a claim for tortious

interference. Londono v. Turkey Creek, Inc., 609 So. 2d 14, 18-19 (Fla. 1992).

But DFA does not allege that Estée Lauder ever expressed an opinion on DFA’s

financial projections or its inventory, much less that it conveyed that opinion to

any airport officials. As for the third statement -- that DFA was not a quality

operator -- DFA asks us to infer this opinion from a letter in which Estée Lauder

vouched for the quality of other duty free operators. In our view, this is not a

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reasonable inference from Estée Lauder’s statement. That Estée Lauder is satisfied

with the quality of its named business partners cannot be read to implicitly

disparage the quality of all other unmentioned entities in the same industry. DFA

was not referenced at all in the disputed letter to Newark airport officials, and we

are unwilling to read this silence to make any comment on the quality of DFA’s

work.

DFA also cites language from its complaint that Estée Lauder “encourag[ed]

or induc[ed]” other duty free operators to make misrepresentations to airport

authorities. We agree that if the complaint adequately alleged inducement, this

might be sufficient to state a claim under Florida law. But DFA was required to

provide more than “‘a formulaic recitation of the elements’” of its tortious

interference claim. Simpson, 744 F.3d at 708 (quoting Twombly, 550 U.S. at 555).

It was obliged to support its allegation with facts from which a reasonable trier of

fact could infer inducement or encouragement by Estée Lauder. We are unable to

find any facts of this kind in DFA’s complaint. No facts in the complaint plausibly

suggest that Estée Lauder asked or encouraged any duty free operator to discuss

DFA with airport authorities. All that the complaint establishes is that Estée

Lauder sold its products to the operators, provided them with truthful information

about its market share, and vouched for the quality of their work. These facts are

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entirely unrelated to inducement, and for that reason are insufficient to raise DFA’s

claim from possible to plausible.

Moreover, even if we were to agree with DFA that its bare and wholly

conclusory statements that Estée Lauder induced or encouraged the duty free

operators were sufficient to survive a motion to dismiss, we would still conclude

that the complaint is devoid of any allegations of impropriety. Florida law is clear

that the privilege of interference encompasses actions taken to protect a company’s

economic interests as long as the methods employed were not improper. Sec. Title

Guarantee Corp. of Balt., 543 So. 2d at 855; Heavener, Ogier Servs., Inc., 418 So.

2d at 1076-77. DFA does not allege that any of its competitors took action for the

sole purpose of interfering with DFA’s prospective relationships with airport

authorities. To the contrary, as DFA acknowledges, each duty free operator was

attempting to procure the same airport contract for itself. Taking the complaint in

the light most favorable to DFA, two of its competitors disparaged its sales

projections and business practices during the competitive bidding processes for

both the Orlando International Airport and the Hartsfield-Jackson Atlanta

International Airport. DFA does not allege that its competitors entered the

competition pretextually, solely for the purpose of harming DFA’s prospective

interests. Moreover, there are simply no facts from which we can infer that the

statements were made out of any motivation other than the hope of winning the

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airport contract. Accordingly, we affirm the dismissal of the tortious interference

claim.

VI.

In sum, DFA failed to allege a critical element of each of its three claims

against Estée Lauder. Accordingly, we AFFIRM.