Tic-X-Press, Inc. v. Omni Promotions Co. of Georgia

815 F.2d 1407, 55 U.S.L.W. 2627, 1987 U.S. App. LEXIS 5697
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 1, 1987
DocketNos. 86-8243, 86-8528
StatusPublished
Cited by4 cases

This text of 815 F.2d 1407 (Tic-X-Press, Inc. v. Omni Promotions Co. of Georgia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tic-X-Press, Inc. v. Omni Promotions Co. of Georgia, 815 F.2d 1407, 55 U.S.L.W. 2627, 1987 U.S. App. LEXIS 5697 (11th Cir. 1987).

Opinion

JOHNSON, Circuit Judge:

I. INTRODUCTION

This is an appeal and cross-appeal from a judgment and award of damages and in-junctive relief in an antitrust case brought under Section 1 of the Sherman Act. Plaintiff Tic-X-Press (TXP), a ticket-selling service located in Atlanta, Georgia, brought suit against the Atlanta Coliseum, Inc. (ACI), the Omni Promotions Company of Georgia (TOPCOG), the Omni Promotions Company, Limited (TOPCOL), and S.E.A. T. S., Inc. (SEATS). TXP’s complaint alleged that the defendants violated the Sherman Act’s prohibition against anticompeti-tive tying arrangements by conditioning the lease of the Omni Coliseum upon the use of SEATS, a ticket-selling agency affiliated with ACI, TOPCOL and TOPCOG. The district judge found that the defendants had violated the antitrust laws and awarded the plaintiff treble damages and injunctive relief as well as attorney’s fees. ACI, TOPCOL, TOPCOG and SEATS appeal the district court’s finding of antitrust liability and TXP cross-appeals both the damages award and the injunctive relief ordered by the district court. Both parties appeal the award of attorney’s fees. We reject the arguments raised on all of these issues and affirm the district court.

II. FACTS AND PRIOR PROCEEDINGS

TXP filed suit against the defendants/appellants/eross-appellees (hereinafter “appellants”) in federal district court on September 15, 1982, alleging violations of Sections 1 and 2 of the Sherman Act.1 15 U. S.C.A. §§ 1 & 2. Following a bench trial on the Section 1 claim, the Honorable Charles A. Moye entered the findings of fact and conclusions of law summarized below.

The Omni Coliseum is an enclosed facility in the City of Atlanta used for sporting events, musical concerts, and various other events. The Omni is the only arena in the Atlanta area with seating capacity adequate to accommodate in excess of 16,000 people, and the only enclosed arena with capacity to seat more than 4,000 people. There are other facilities in the Atlanta area for the production of concerts, but all are smaller or are not enclosed.2 The district court concluded that the Omni’s size and configuration make it a unique facility with a substantial economic advantage for the presentation of concerts where the audience attendance is expected to range between 4,000-16,000.

Pursuant to a series of agreements with the City of Atlanta and Fulton County Recreational Authority, the governmental body which owns the Omni, ACI and TOP-COL3 have the exclusive right to control the use and rental of the Omni. SEATS is a computerized ticketing service in the business of selling tickets for events at various facilities in the Atlanta area. ACI, TOPCOL, and SEATS are under common ownership and management and essentially function as a single entity.

ACI and TOPCOL frequently rent the Omni to promoters seeking to stage various musical concerts and other events in the Atlanta area.4 In negotiating with outside promoters for the use of the Omni, TOPCOL uses a standard form contract called the “Producer’s Agreement.” Paragraph 23 of the Agreement provides in

its rights regarding the Omni to TOPCOG on February 1, 1980, and TOPCOG assigned those same rights to TOPCOL in December 1986. Both TOPCO and TOPCOG were subsequently dissolved. For simplicity, we will refer to the entity which successively performed the functions of what is now TOPCOL as "TOPCOL" throughout this opinion. [1412]*1412pertinent part that “[a]ll ticket sales relating to the PRODUCER’S [i.e. the outside promoter’s] use of the Premises under this Agreement shall be made by PROMOTIONS’ [i.e. TOPCOL’s] box office or at other ticket agencies approved by PROMOTIONS...” Although TOPCOL technically does not have a box office (ACI does), there was no real dispute that the phrase “PROMOTIONS’ box office” referred to SEATS. Some of the agreements also had typed-in language providing that promoters were required to pay all fees and expenses immediately following the show, “including rent [and] a 3.5% ticket charge.” The 3.5% ticket charge represented the amount due SEATS for providing the ticketing services for the event. Promoters contracting to use the Omni never signed a separate contract or engaged in separate negotiation with SEATS.

The district court determined that Paragraph 23 of the “Producer’s Agreement” gives promoters the right to select a ticket agency approved by the appellants. The district court also determined that the appellants had legitimate business interests in approving the ticket agency for Omni events, such as the safety of ticket sale proceeds, the adequacy of the ticket distribution network, and the financial integrity of the agency. The district court found, however, that the appellants had never established any written specifications or procedures for approving other ticketing services.

TXP is a ticketing agency primarily in the business of selling tickets for musical concerts in the Atlanta area. TXP requested permission to sell tickets to Omni productions on a partial or entire basis on a number of occasions without success. TXP and SEATS are the only two companies which provide remote ticketing services in the Atlanta area.5 Remote ticketing services sell tickets for an event at various outlet locations throughout a metropolitan or geographical area, thereby expanding the sites where would-be spectators may buy tickets to an event beyond the box office of the facility housing the event.

Although both TXP and SEATS are engaged in the business of selling tickets to events in the Atlanta area through various outlet locations, there are some differences in how the two companies operate. TXP uses “hard tickets” which are preprinted, divided up, and distributed to various locations to be sold. SEATS, on the other hand, uses a centralized computerized system with terminals at various locations which print the ticket at the time of purchase. In addition, TXP services on a per-ticket basis are “somewhat less expensive” to promoters than the services of SEATS.6

The district court found that SEATS has sold the tickets to every musical event at the Omni since the ticketing service’s inception.7 SEATS sold more than one million tickets to Omni events between 1978 and 1982, representing a gross intake of between 9 and 13.5 million dollars in ticket sales. The court found that the major local promoters who staged concerts in the Omni during the relevant period understood from years of dealing with TOPCOL and from repeated use of the “Producer’s Agreement” that they had to use SEATS as the ticketing service for concerts at the Omni, although it also found that no promoter had actually requested approval of another ticketing agency, including TXP. In con[1413]*1413trast, the court found that some promoters used TXP a large percentage of the time for concerts performed at facilities other than the Omni.

The court did find, however, that several promoters had inquired into the possibility of “split-ticketing” — that is, where one ticketing agency (SEATS) provides only part of the ticketing services for an event, while another agency (TXP or some other hard-ticketing company) provides the balance of the ticketing.8

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Bluebook (online)
815 F.2d 1407, 55 U.S.L.W. 2627, 1987 U.S. App. LEXIS 5697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tic-x-press-inc-v-omni-promotions-co-of-georgia-ca11-1987.