Harkins Amusement Enterprises, Inc. v. General Cinema Corp.

748 F. Supp. 1399, 1990 U.S. Dist. LEXIS 18357, 1990 WL 157461
CourtDistrict Court, D. Arizona
DecidedMay 24, 1990
DocketNo. CIV 77-736 PHX CLH
StatusPublished

This text of 748 F. Supp. 1399 (Harkins Amusement Enterprises, Inc. v. General Cinema Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harkins Amusement Enterprises, Inc. v. General Cinema Corp., 748 F. Supp. 1399, 1990 U.S. Dist. LEXIS 18357, 1990 WL 157461 (D. Ariz. 1990).

Opinion

[1402]*1402MEMORANDUM OPINION AND ORDER

HARDY, District Judge.

A damage study prepared by Professor Michael Conant, Harkins’ damage expert, presents three alternative methods for calculating damages based on a market share, yardstick, and a picture-by-picture methods of analysis. Separate motions attacking the admissibility and validity of the damage study have been filed by United Artists Theatre Circuit, Inc. (“UATC”), the distributor defendants, and American Multi-Cin-ema, Inc. (“AMC”). The motions will be granted in part and denied in part.

I. Applicable Standard

It is well settled that “in a case in which the defendant has prevented the plaintiffs entry into a market, we must adopt a special solicitude toward the proof of damages.” Murphy Tugboat Co. v. Crowley, 658 F.2d 1256, 1260 (9th Cir.1981). However:

[E]ven where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances, ‘juries are allowed to act upon probable and inferential, as well as direct and positive proof.’ [citations omitted] Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim.

Id. at 1260 (Quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 579, 90 L.Ed. 652 (1946)); see also Dolphin Tours, Inc. v. Pacifico Creative Service, Inc., 773 F.2d 1506, 1509-10 (9th Cir.1985); Farley Transportation Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1358 (9th Cir.1985).

A recent Supreme Court case explains the rationale behind allowing the plaintiff in an antitrust action great latitude in estimating the amount of damages:

Our willingness to accept a certain degree of uncertainty in these cases rests in part on the difficulty of ascertaining business damages as compared, for example, to damages resulting from a personal injury or from condemnation of a parcel of land. The vagaries of the market place usually deny us sure knowledge of what the plaintiff’s situation would have been in the absence of the defendant’s antitrust violation.

J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 566, 101 S.Ct. 1923, 1929, 68 L.Ed.2d 442 (1981). The Court held that it would be a “perversion of fundamental principles of justice” to deny recovery of damages because the defendant’s unlawful conduct “is of such a nature as to preclude the ascertainment of the amount of damages with certainty.” Id. at 567, 101 S.Ct. at 1929 (quoting Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 405, 71 L.Ed. 684 (1927)).

II. UATC’s Motion in Limine

While UATC alleges numerous grounds for its motion in limine, the bulk of UATC’s motion concentrates on three main arguments.

A. Segregating Lawful and Unlawful Conduct

UATC claims that the damage study is not admissible because it does not account for those pictures where a defendant-exhibitor’s bid was clearly superior to Harkins’ bid, and therefore fails to measure profits lost solely as a result of exclusionary conduct. According to UATC, such pictures were not lost due to the conspiracy to exclude competition from the market, but due to legitimate bidding competition from the defendant.

1. Loss of Individual Licenses Not Necessarily Relevant to Market Share Method

Dr. Conant bases his market share method of damages on the total superior first-run box office revenues of all theaters in the market which typically played superi- or, first-run films (“first run theaters”) during the relevant damage period. The study divides that figure by the number of screens of all such theaters in order to [1403]*1403calculate the box office admission grosses for the average first-run screens in the Phoenix market.

The relevant four-year period in this case was divided into eleven sub-periods to reflect the increase in the number of theaters in the market over time. The competitive share for each period represents a reasonable estimate of the plaintiffs’ expected share of superior first-run box office grosses in a freely competitive market. For each of the eleven periods, the average superior first-run box office gross per screen of each first-run exhibitor is multiplied by the number of available first-run screens operated in that period by Harkins. These are Harkins’ expected total superior first-run grosses in a free market.

Once the grosses from the first-run films Harkins was able to license are subtracted, the resultant figure is the net competitive share for each period and represents the loss of superior first-run box office revenues allegedly caused by Harkins exclusion from the market. The net competitive shares for each period are aggregated to obtain the total net admission losses for the entire damage period. Once total expenses such as film rental and other assorted expenses are deducted from the total net competitive gross, the resulting figure is Harkins’ adjusted net loss of expected profits from box office admissions during the relevant damage period.

A damage calculation based on a plaintiff’s share of the gross that could be expected in a hypothetically free market— which is not based on damages lost from the denial of specific film licenses due to anticompetitive activity — does not necessarily require that those specific films lost to legitimate competition be excluded from the study where the anticompetitive impact of the conspiracy on the market as a whole is clear.

Harkins claims that in the absence of the defendants’ conspiracy to restrain competition in the market for the licensing of first-run films, he would have obtained a share of that market consistent with the performance of his competitors and his share of the screens capable of showing first-run films. The fact that individual films may have been lost to “legitimate competition” does not necessarily alter the damages Harkins suffered as a result of the anticompetitive impact of the conspiracy as a whole upon his ability to compete in the market.

Admittedly, if the defendants can convince the jury that Harkins’ lack of success in licensing first-run films during the damages period was a result of the overall inferiority of his bids — as opposed to the activities of the defendants taken in furtherance of the conspiracy — then he will have failed to prove that the conspiracy resulted in his exclusion from the market.1

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Related

Eastman Kodak Co. v. Southern Photo Materials Co.
273 U.S. 359 (Supreme Court, 1927)
Bigelow v. RKO Radio Pictures, Inc.
327 U.S. 251 (Supreme Court, 1946)
Continental Ore Co. v. Union Carbide & Carbon Corp.
370 U.S. 690 (Supreme Court, 1962)
Zenith Radio Corp. v. Hazeltine Research, Inc.
395 U.S. 100 (Supreme Court, 1969)
J. Truett Payne Co. v. Chrysler Motors Corp.
451 U.S. 557 (Supreme Court, 1981)
Agrashell, Inc. v. Hammons Products Company
479 F.2d 269 (Eighth Circuit, 1973)
Riss & Company v. Association of American Railroads
190 F. Supp. 10 (District of Columbia, 1960)
Admiral Theatre Corp. v. Douglas Theatre Co.
585 F.2d 877 (Eighth Circuit, 1978)
Murphy Tugboat Co. v. Crowley
658 F.2d 1256 (Ninth Circuit, 1981)
Syufy Enterprises v. American Multicinema, Inc.
793 F.2d 990 (Ninth Circuit, 1986)
Pawnee Indian Tribe of Oklahoma v. United States
370 U.S. 918 (Supreme Court, 1962)
McGlinchy v. Shell Chemical Co.
845 F.2d 802 (Ninth Circuit, 1988)

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Bluebook (online)
748 F. Supp. 1399, 1990 U.S. Dist. LEXIS 18357, 1990 WL 157461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harkins-amusement-enterprises-inc-v-general-cinema-corp-azd-1990.