15 U.S.C. § 1 · C relations

fact · supports Claim I asserts a conspiracy between Plan Sponsors, using Caremark as their “common agent,” to fix the prices paid independent pharmacies for dispensing prescription drugs to Plan Subscribers.

rule Under United States v. Masonite Corp., 316 U.S. 265, 276, 62 S.Ct. 1070, 86 L.Ed. 1461 (1942) the Plan Sponsors’ knowledge of and acquiescence in that common strategy could reasonably support a finding of conspiracy under Section 1.

held For purposes of Pharmacy’s common agent claim, the relevant agreement is that alleged to exist among the Plan Sponsors. And that agreement, between firms that would normally compete with each other for the purchase of prescription drugs, may fairly be said to constitute a horizontal restraint.

fact · supports The Dealers provided only limited liquidity to multiple trueEX's platforms-both its CLOB and RFQ platforms-with the effect of denying it enough volume in IRS transactions in general to eat into the Dealers' IRS market share.

fact · supports The Dealers created unreasonable delays and erected artificial barriers to the progress of the trueEX platform.

fact · supports The Dealers conditioned their provision of liquidity to all-to-all trading platforms upon the platforms use of "name give up."

fact · supports The Dealers attempted to placate trueEX with minor business opportunities designed to create the illusion of cooperation or progress.

fact · supports It has held that the original plaintiffs (Javelin, Tera, and the putative class) have convincingly pled a boycott by the same Dealers of Javelin and Tera's all-to-all trading platforms.

rule The claimed Dealer behavior towards trueEX thus must be evaluated, not myopically as the Dealers' brief largely proceeds, but against the backdrop of a contemporaneous Dealer plot against entities that posed a similar threat to the Dealers' business model and profitability.

rule To be plausibly pled, a conspiracy to marginalize a looming competitive threat does not require that allegations that each conspirator acted at every turn maximally to ice that threat,

held On its review, the Court holds, trueEX has plausibly pled a § 1 boycott conspiracy aimed at harming, marginalizing, and/or destroying-along with the other two platforms-its platform.

fact · cuts-against Defendants argue that as to a number of Dealers, the affirmative acts of obstruction towards trueEX that are pled are "razor thin."

fact · supports But trueEX pleads that checking its platform's advance was but one object of a broader Dealer conspiracy, in which, as IRS I held , each of the surviving Dealer Defendants have been plausibly implicated.

rule Do the facts pled plausibly support that the individual Dealer, already implicated in a conspiracy against two like platforms, was aware of the conspiracy's third and parallel object (as to trueEX's platform)?

held the Court's assessment is that the inferences urged by trueEX are plausible enough to preclude granting a motion to dismiss its AC as to any one Defendant Dealer

fact · supports He asked what defendant could do about seeing to it that no more factory Fords found their way to plaintiff’s Springfield lot.

fact · supports Mr. Boutelle acknowledged that the situation was not good for Automobile Sales and directed the officer in charge of distribution of factory Fords, Mr. Saunders, to “correct the situation.”

fact · supports We ask that a dealer not bid on these units for the purpose of reselling them to a wholesaler.

fact · supports Following the first mailing of this letter on September 22, 1960, Mr. Daniel Kossick discussed the letter with Mr. Saunders at the District Sales Office and stated that he was “in agreement” with its terms.

rule As long as Colgate has any life in it, however, a simple announcement of policy followed by customer acquiescence based solely on the individual self-interest of the customer in continued dealings with the manufacturer is not an agreement within the reach of the Sherman Act.

held The essential fact is that defendant’s action in imposing the restrictions was not unilateral but was instigated by one of its dealers and cannot, therefore, be said to fall within the rule of Colgate.

fact · supports The record further shows the return of bids by Ford dealers on the very letters which requested the resale restrictions, and in some cases actual discussions with dealers concerning the terms of the letter, though there is no evidence that the restrictions themselves were discussed specifically.

fact · supports Following defendant’s letter, which was repeated in three later mailings, several Ford dealers from whom plaintiff sought to obtain factory Fords either refused to sell to him or responded equivocally and evasively to his requests to buy.

fact · supports Plaintiff testified that when he asked Dow when the next factory Fords were to be sold Dow replied, “Perley, I am sorry I cannot sell you those cars any more. We received a letter with the bid which forbids us from selling them.”

rule the Court cautioned that when a manufacturer goes beyond a simple refusal to deal in attempting to effect compliance with announced policies, the necessary element of agreement may be found.

held When defendant, at the instigation of one'of its dealers, sought to impose resale restrictions on all of its dealers, it entered the “announcement plus” area which, coupled with evidence in this record of dealer compliance, constitutes a wider agreement.

held We cannot say on this record that a finding that these dealers acted pursuant to an agreement with defendant was clearly erroneous.

fact · supports Several months after the first mailing of defendant’s letter, plaintiff’s purchases of factory Fords declined sharply.

fact · supports That Haar purchased 54 factory Fords in 1960 and sold 50 of them to plaintiff, but purchased only 14 in 1961 (and sold 5 to plaintiff), and 10 in 1962 (and sold 6 to plaintiff), was the direct result, plaintiff concludes, of that participation.

fact · supports In the calendar years 1959 and 1960 slightly over half of plaintiff’s gross profit was derived from resale of factory Fords obtained from Ford dealers.

rule a plaintiff in an antitrust suit is not barred merely because factors other than defendant’s unlawful conduct may have contributed to its injury.

held On the basis of this record the jury was justified in concluding that with reasonable probability there was a substantial causal connection between defendant’s unlawful acts and the decline in plaintiff’s purchases of factory Fords.

fact · supports In November, 1981, a luncheon meeting was held in Dayton, Ohio, and attended by Handler, Borack, Beaupain, and Beaupain’s boss, Blair Mooney.

fact · supports Handler replied that “Tri-State would not call on any Co-Operative Theatres’ accounts.”

fact · supports The government also called on three other theater owners who testified that Tri-State had called on them prior to November, 1981, but had subsequently refused their business on the grounds that Tri-State and Co-Op had an agreement not to take each other’s customers.

fact · supports One of the theater owners further testified that he also contacted the President of Co-Op, Blair Mooney, who confirmed the existence of the agreement between Co-Op and Tri-State.

rule the standard of review is whether the relevant evidence could be accepted by a reasonably minded jury as adequate and sufficient to support the conclusion of guilt beyond a reasonable doubt

held we find that the direct evidence presented through Handler’s testimony when viewed in favor of the government was sufficient to allow a reasonable juror to conclude that defendants had entered into an illegal agreement not to seek business from each other’s accounts

fact · supports 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.

fact · supports I wish I could do more but my hands have been officially tied by the TCOA on this issue.”

fact · supports 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.

fact · supports 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.

rule 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.”

rule 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.

held 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.

fact · supports In 1997, Leegin instituted the “Brighton Retail Pricing and Promotion Policy.”

fact · supports It offered retailers incentives to become Heart Stores, and, in exchange, retailers pledged, among other things, to sell at Leegin’s suggested prices.

fact · cuts-against Leegin responded that it had established a unilateral pricing policy lawful under § 1, which applies only to concerted action.

held On appeal Leegin did not dispute that it had entered into vertical price-fixing agreements with its retailers.

fact · supports Originally organized in 1920, the NFL is an unincorporated association that now includes 32 separately owned professional football teams.

fact · supports Each team has its own name, colors, and logo, and owns related intellectual property.

fact · supports In December 2000, the teams voted to authorize NFLP to grant exclusive licenses, and NFLP granted Reebok International Ltd. an exclusive 10-year license to manufacture and sell trademarked headwear for all 32 teams.

fact · supports The teams compete with one another, not only on the playing field, but to attract fans, for gate receipts, and for contracts with managerial and playing personnel.

rule The key is whether the alleged “contract, combination ... , or conspiracy” is concerted action — that is, whether it joins together separate decisionmakers.

rule Because the inquiry is one of competitive reality, it is not determinative that two parties to an alleged § 1 violation are legally distinct entities. Nor, however, is it determinative that two legally distinct entities have organized themselves under a single umbrella or into a structured joint venture.

held The NFL teams do not possess either the unitary decision-making quality or the single aggregation of economic power characteristic of independent action.

held Directly relevant to this case, the teams compete in the market for intellectual property. To a firm making hats, the Saints and the Colts are two potentially competing suppliers of valuable trademarks.

fact · supports In 1963, the teams formed National Football League Properties (NFLP) to develop, license, and market their intellectual property.

fact · supports NFLP’s licensing decisions are made by the 32 potential competitors, and each of them actually owns its share of the jointly managed assets.

fact · supports Unlike typical decisions by corporate shareholders, NFLP licensing decisions effectively require the assent of more than a mere majority of shareholders.

fact · supports The 32 teams capture individual economic benefits separate and apart from NFLP profits as a result of the decisions they make for NFLP.

rule Agreements made within a firm can constitute concerted action covered by § 1 when the parties to the agreement act on interests separate from those of the firm itself,

held For that reason, decisions by NFLP regarding the teams’ separately owned intellectual property constitute concerted action.

held In making the relevant licensing decisions, NFLP is therefore “an instrumentality” of the teams.