Tunica Web Advertising v. Tunica Casino Operators Ass'n
civil; group-boycott claim by domain-name owner against casinos; summary judgment for defendants; plaintiff appeals (result: remanded)
Facts
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
In May 2001, TWA appeared before the TCTC and proposed to lease “tunica.com” collectively to all of the casinos in Tunica County, Mississippi.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
None of the casinos agreed to TWA’s proposal, and the casinos apparently reached a consensus to not jointly utilize the “tunica.com” domain name.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied triable
Shortly after the TCOA meeting, Clyde Callicott, the marketing director for Gold Strike, allegedly told Graziosi that the casinos had entered into a “gentlemen’s agreement” to not do business with TWA, either individually or as a group.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied triable
I wish I could do more but my hands have been officially tied by the TCOA on this issue.”
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied triable
Graziosi asserts that Callicott told her that, at the May 30, 2001 meeting, Robert McQueen, General Manager of the Horseshoe Casino, stated that the domain name would be worthless if none of the casinos dealt with TWA.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied triable
To establish concerted action, the plaintiff must present “evidence that reasonably tends to prove that the [defendants] had a conscious commitment to a common scheme designed to achieve an unlawful objective.”
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
Given the joint nature of TWA’s initial proposal, which invited the casinos to respond together as a single entity, the casinos’ decision to reject that proposal is not concerted action subject to section 1.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied triable
According to another email from Callicott to Graziosi, the casinos met in November 2002 and again decided to refuse to advertise on “tunica.com,” in the hopes that the value of the domain name would decrease and the casinos could buy it at a later date.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied triable
If TWA can establish concerted action by the casinos through this sort of direct evidence, then it is not required to provide circumstantial evidence, such as the details surrounding its later proposals to the casinos, from which a concerted refusal to deal can be inferred.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied triable
Accordingly, we hold that the district court erred when it found that TWA’s proffered evidence did not create any issue of fact on the element of concerted action.
- 9 Parker v. Brown state-action immunity (Midcal two-prong test: clearly articulated state policy + active state supervision) not law
The court rejected the other defendants’ claims that they were entitled to immunity from plaintiffs’ antitrust claims under the LGAA, the Parker doctrine, and the Noerr-Pennington doctrine.
- 9 Parker v. Brown state-action immunity (Midcal two-prong test: clearly articulated state policy + active state supervision) not law
Finally, we reject the casinos’ immunity claims for essentially the reasons stated in the district court's November 24, 2004 order.