Gweldon Lee Paschall and All Intervenors v. The Kansas City Star Company

695 F.2d 322, 1982 U.S. App. LEXIS 23171
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 20, 1982
Docket81-1963
StatusPublished
Cited by51 cases

This text of 695 F.2d 322 (Gweldon Lee Paschall and All Intervenors v. The Kansas City Star Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gweldon Lee Paschall and All Intervenors v. The Kansas City Star Company, 695 F.2d 322, 1982 U.S. App. LEXIS 23171 (8th Cir. 1982).

Opinions

HEANEY, Circuit Judge.

The Kansas City Star Company appeals from an order of the district court permanently enjoining it from refusing to sell its newspapers at wholesale rates to independent contract carriers. The district court held that the company’s proposal to directly distribute its newspapers through its own [325]*325delivery agents and to eliminate independent carriers violated Section 2 of the Sherman Act. We affirm.

I.

BACKGROUND.

The Kansas City Star was founded in 1880 as an evening newspaper. It expanded in 1894 to include a Sunday morning edition, The Sunday Star, and again in 1901 to include a morning paper, The Kansas City Times. From 1905 until 1942, the Star, Times and Sunday Star competed primarily with the Kansas City Post and Kansas City Journal. The Post and the Journal merged in 1922, but went out of business in 1942. Since then, the Star, Times and Sunday Star, all published by The Kansas City Star Company (hereafter the Star), and all different editions of the same newspaper, have been the only daily metropolitan newspapers published in the Kansas City, Missouri, and Kansas City, Kansas, metropolitan area.

In 1955, the Star was convicted of attempted and actual monopolization in violation of the Sherman Act. Kansas City Star Co. v. United States, 240 F.2d 643 (8th Cir.1957). The conviction was based on the Star’s predatory practices in driving its competitors out of business and preventing others from entering the Kansas City newspaper market.

Since nearly its inception, the Star’s newspapers have been distributed by independent carriers who purchase papers from the publisher at a wholesale rate, and then resell and deliver them to subscribers. Each independent carrier serves an exclusive distribution area. Hence, the only competition an independent carrier faces is from the Star itself, which expressly reserves the right in its delivery contracts to directly sell and deliver its newspapers to anyone. In fact, however, the Star seldom directly delivers newspapers to customers. The district court found that actual competition between the Star and the independent carriers was de minimis. It also found, however, that the Star’s presence on the edge of the distribution market has a restraining effect on the retail prices set by independent carriers.

On May 24,1974, the Star sent a letter to each independent carrier stating that the company might choose to modify or change its method of distribution, and declaring that it believed that it could do so without liability to the independent carriers. Beginning on June 1, 1974, the Star required any individual signing a new independent carrier contract to acknowledge in writing that he or she had read and understood the company’s May 24, 1974, letter. These actions by the Star prompted plaintiff Gweldon Paschall to initiate this lawsuit in January, 1975, to determine whether such a change by the Star would violate the antitrust laws,

In fall, 1976, Capital Cities Communications, Inc., a New York-based communications conglomerate, made a $125 million tender offer to the Star’s stockholders. On February 15, 1977, Capital Cities completed its acquisition of the Star. In analyzing the Star prior to purchase, Capital Cities’ officers were concerned with the Star’s low revenue per delivered copy, which was largely attributed to the Star’s independent carrier distribution system.

In September, 1977, shortly after the Capital Cities’ takeover, the Star announced its intention to change its distribution system. It proposed to terminate its existing contracts with independent carriers, and to replace them with its own agents who would directly sell and deliver papers to readers. No newspapers would be sold at wholesale to any independent carriers. As a result, the Star would have a monopoly in the retail, as well as publishing, market for daily metropolitan newspapers. The Star, however, offered all existing independent carriers the opportunity to become delivery agents for the company. The agency agreements would enable the carriers to earn approximately the same income that they did under the existing system.

Plaintiff Paschall, joined by approximately 250 other carriers who had intervened as plaintiffs, moved for a temporary restraining order and preliminary injunction. On [326]*326November 19, 1977, following an evidentiary hearing, the district court, the Honorable Elmo B. Hunter, issued a preliminary injunction barring implementation of the new distribution system.1 The case was then assigned to the Honorable Warren K. Urbom to determine whether the Star had violated the antitrust laws. Following a non jury trial, Judge Urbom found that the Star’s proposal to discontinue wholesale vending of its papers to independent carriers constituted an illegal expansion of a monopoly under Section 2 of the Sherman Act. Following Judge Urbom’s denial of a motion for reconsideration, Judge Hunter certified an interlocutory appeal. This Court initially granted leave to take the appeal, but subsequently vacated it as im~ providently granted. Pasehall v. Kansas City Star Co., 605 F.2d 403 (8th Cir.1979). The case was remanded to the district court to determine if the plaintiff and intervenors had shown the requisite injury and causation to warrant relief. On remand, the district court, the honorable William R. Collinson, found sufficient injury and causation, and entered a permanent injunction. The Star then appealed to this Court. The United States Justice Department filed a brief as a miens curiae arguing that the district court erred in finding a Sherman Act violation.

II.

LIABILITY.

The plaintiffs and intervenors (hereafter plaintiffs) do not challenge the Star’s right to sell and deliver its own newspapers. They do contend, however, that the Star’s proposed refusal to sell them papers at wholesale rates is an act of monopolization which violates Section 2 of the Sherman Act, 15 U.S.C. § 2. They argue that by so refusing to deal, the Star is unlawfully extending its monopoly in the publishing market to the presently competitive retail sale and delivery market.

A. Monopolization.

In order to establish monopolization in violation of Section 2, the plaintiffs here must prove that the defendant: (1) possessed monopoly power in the relevant market, and (2) used it, whether lawfully or unlawfully acquired, to foreclose competition, gain a competitive advantage, or destroy a competitor.2 Von Kalinowski, 3 Antitrust Laws and Trade Regulation, § 8.02[1], at 5 (Cum.Supp.1981). See United States v. Griffith Corp., 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948); Berkey Photo, Inc. v. Eastman Kodak, 603 F.2d 263, 275-276 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980).

Our threshold inquiry then is whether the defendant enjoys a monopoly in the relevant market.3

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695 F.2d 322, 1982 U.S. App. LEXIS 23171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gweldon-lee-paschall-and-all-intervenors-v-the-kansas-city-star-company-ca8-1982.