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SPECTRUM SPORTS, INC., ET AL. v. MCQUILLAN

ET VIR, DBA SORBOTURF ENTERPRISES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 91-10. Argued November 10, 1992—Decided January 25, 1993 Shortly after the manufacturer of sorbothane-a patented elastic polymer

with shock-absorbing characteristics—informed respondents, distributors of medical, athletic, and equestrian products made with sorbothane, that it would no longer sell them the polymer, petitioner Spectrum Sports, Inc., became the national distributor of sorbothane athletic products. Respondents' business failed, and they filed suit in the District Court against petitioners and others, seeking damages for alleged violations of, inter alia, $2 of the Sherman Act, which makes it an offense for any person to “monopolize, or attempt to monopolize, or combine or conspire ... to monopolize any part of the trade or commerce among the several States.” A jury found that the defendants violated $2 by, in the words of the verdict sheet, “monopolizing, attempting to monopolize, and/or conspiring to monopolize.” The Court of Appeals affirmed, noting that, although the jury had not specified which of the three possible $2 violations had occurred, the verdict stood because the evidence established a case of attempted monopolization. Relying on its earlier rulings in Lessig v. Tidewater Oil Co., 327 F. 2d 459, and its progeny, the court held that the jury could have inferred two of the elements of that offense-a specific intent to achieve monopoly power and a dangerous probability of monopolization of a relevant market—from evidence showing the defendants' unfair or predatory conduct, without any proof of relevant market or the defendants' market power, and that the jury

was properly instructed that it could make such inferences. Held: Petitioners may not be liable for attempted monopolization under

82 absent proof of a dangerous probability that they would monopolize a relevant market and specific intent to monopolize. The conduct of a single firm, governed by $2, is unlawful "only when it threatens actual monopolization.” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 767. Consistent with this approach, Courts of Appeals other than the court below have generally required a plaintiff in an attempted monopolization case to prove that (1) the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power. Unfair or predatory conduct may be sufficient to prove the necessary intent to Opinion of the Court

monopolize. However, intent alone is insufficient to establish the dangerous probability of success, Swift & Co. v. United States, 196 U. S. 375, 402, which requires inquiry into the relevant product and geographic market and the defendant's economic power in that market. There is little if any support in the statute or case law for Lessig's contrary interpretation of $2. Moreover, Lessig and its progeny are inconsistent with the Sherman Act's purpose of protecting the public from the failure of the market. The law directs itself only against conduct that unfairly tends to destroy competition, and, thus, courts have been careful to avoid constructions of $2 which might chill competition rather than foster it. The concern that $2 might be applied so as to further anticompetitive ends is plainly not met by inquiring only whether the defendant has engaged in “unfair” or “predatory” tactics. Since the jury's instructions and the Court of Appeals' affirmance both misconstrued 82, and since the jury's verdict did not negate the possibility that it rested on the attempt to monopolize ground alone, the case is

remanded for further proceedings. Pp. 454–460. 907 F. 2d 154, reversed and remanded.

WHITE, J., delivered the opinion for a unanimous Court.

James D. Vail argued the cause and filed briefs for petitioners.

Robert A. Long, Jr., argued the cause for the United States as amicus curiae in support of petitioners. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General James, Deputy Solicitor General Wallace, and Catherine G. O'Sullivan.

Jeffrey M. Shohet argued the cause for respondents. With him on the brief was Marcelle E. Mihaila.

JUSTICE WHITE delivered the opinion of the Court.

Section 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. $ 2, makes it an offense for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . The jury in this case returned a verdict finding that petitioners had monopolized, attempted to monopolize, and/or conspired to monopolize. The District Court entered a judgment rul

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ing that petitioners had violated $2, and the Court of Appeals affirmed on the ground that petitioners had attempted to monopolize. The issue we have before us is whether the District Court and the Court of Appeals correctly defined the elements of that offense.

I

Sorbothane is a patented elastic polymer whose shockabsorbing characteristics make it useful in a variety of medical, athletic, and equestrian products. BTR, Inc. (BTR), owns the patent rights to sorbothane, and its wholly owned subsidiaries manufacture the product in the United States and Britain. Hamilton-Kent Manufacturing Company (Hamilton-Kent) and Sorbothane, Inc. (S. I.), were at all relevant times owned by BTR. S. I. was formed in 1982 to take over Hamilton-Kent's sorbothane business. App. to Pet. for Cert. A3. Respondents Shirley and Larry McQuillan, doing business as Sorboturf Enterprises, were regional distributors of sorbothane products from 1981 to 1983. Petitioner Spectrum Sports, Inc. (Spectrum), was also a distributor of sorbothane products. Petitioner Kenneth B. Leighton, Jr., is a co-owner of Spectrum. Ibid. Kenneth Leighton, Jr., is the son of Kenneth Leighton, Sr., the president of HamiltonKent and S. I. at all relevant times.

In 1980, respondents Shirley and Larry McQuillan signed a letter of intent with Hamilton-Kent, which then owned all manufacturing and distribution rights to sorbothane. The letter of intent granted the McQuillans exclusive rights to purchase sorbothane foruseinequestrian products. Respondents were designing a horseshoe pad using sorbothane.

In 1981, Hamilton-Kent decided to establish five regional distributorships for sorbothane. Respondents were selected to be distributors of all sorbothane products, including medical products and shoe inserts, in the Southwest. Spectrum

Sorbothane, Inc., was formerly called Sorbo, Inc. App. 67.

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was selected as distributor for another region. Id., at A4-A5.

In January 1982, Hamilton-Kent shifted responsibility for selling medical products from five regional distributors to a single national distributor. In April 1982, Hamilton-Kent told respondents that it wanted them to relinquish their athletic shoe distributorship as a condition for retaining the right to develop and distribute equestrian products. As of May 1982, BTR had moved the sorbothane business from Hamilton-Kent to S. I. Id., at A6. In May, the marketing manager of S. I. again made clear that respondents had to sell their athletic distributorship to keep their equestrian distribution rights. At a meeting scheduled to discuss the sale of respondents' athletic distributorship to petitioner Leighton, Jr., Leighton, Jr., informed Shirley McQuillan that if she did not come to agreement with him she would be “looking for work.Id., at A6. Respondents refused to sell and continued to distribute athletic shoe inserts.

In the fall of 1982, Leighton, Sr., informed respondents that another concern had been appointed as the national equestrian distributor, and that they were “no longer involved in equestrian products.” Id., at A7. In January 1983, S. I. began marketing through a national distributor a sorbothane horseshoe pad allegedly indistinguishable from the one designed by respondents. Ibid. In August 1983, S. I. informed respondents that it would no longer accept their orders. Ibid. Spectrum thereupon became national distributor of sorbothane athletic shoe inserts. Pet. for Cert. 6. Respondents sought to obtain sorbothane from the BTR's British subsidiary, but were informed by that subsidiary that it would not sell sorbothane in the United States. Respondents' business failed. App. to Pet. for Cert. A8.

Respondents sued petitioners seeking damages for alleged violations of $$1 and 2 of the Sherman Act, 15 U. S. C. $$1

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and 2,2 $3 of the Clayton Act, 38 Stat. 731, 15 U. S. C. $ 14, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. $ 1962, and two provisions of California business law. Respondents also alleged fraud, breach of oral contract, interference with prospective business advantage, bad-faith denial of the existence of an oral contract, and conversion.

The case was tried to a jury, which returned a verdict against one or more of the defendants on each of the 11 alleged violations on which it was to return a verdict. All of the defendants were found to have violated $2 by, in the words of the verdict sheet, “monopolizing, attempting to monopolize, and/or conspiring to monopolize.” App. 410. Petitioners were also found to have violated civil RICO and the California unfair practices law, but not $ 1 of the Sherman Act. The jury awarded $1,743,000 in compensatory damages on each of the violations found to have occurred. This amount was trebled under $ 4 of the Clayton Act. The District Court also awarded nearly $1 million in attorney's fees and denied motions for judgment notwithstanding the verdict and for a new trial.

2 Two violations of $1 were alleged, resale price maintenance and division of territories. Attempted monopolization, monopolization, and conspiracy to monopolize were charged under $2. All in all, four alleged violations of federal law and seven alleged violations of state law were sent to the jury.

3 The special verdict form advised the jury as follows: “The following pages identify the name of each defendant and the claims for which plaintiffs contend that the defendant is liable. If you find that any of the defendants are liable on any of the claims, you may award damages to the plaintiffs against those defendants. Should you decide to award damages, please assess damages for each defendant and each claim separately and without regard to whether you have already awarded the same damages on another claim or against another defendant. The court will insure that there is no double recovery. The verdict will not be totaled.” App. 416.

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