Gregory v. Fort Bridger Rendezvous Ass'n

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
May 23, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

SAND Y GREGORY; RICHARD
G REG O RY ,

Plaintiffs - Appellants,
No. 04-8100
v.

FO RT BRID G ER REN D EZV O US
ASSO CIATION, a W yoming Non-
Profit Association,

Defendant - Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING
(D . Ct. No. 03-CV-64-D)

Bernard Q. Phelan, Phelan-W atson Law Office, Cheyenne, W yoming, appearing
for the A ppellants.

Timothy W . M iller, Casper, W yoming, appearing for the Appellee.

Before TA CH A, Chief Circuit Judge, A ND ER SO N, and KELLY, Circuit Judges.

TA CH A, Chief Circuit Judge.

This appeal arises from an action brought by Plaintiffs-Appellants Richard

and Sandy Gregory against Defendant-Appellee Fort Bridger Rendezvous
Association (“FBRA”). The Gregorys allege that the FBRA engaged in a

horizontal group boycott by refusing to permit them to sell their goods at the Fort

Bridger R endezvous (“Rendezvous”) in violation of § 1 of the Sherman Act. See

15 U.S.C. § 1. Based on the same conduct, the Gregorys also allege that the

FBRA conspired to monopolize sales in violation of § 2 of the Sherman Act. See

15 U.S.C. § 2. The District Court granted summary judgment for the FBRA on

both claims. W e take jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

I. BACKGROUND

The Rendezvous is a historical reenactment held each Labor Day weekend

at the Fort Bridger Historical Site in W yoming in which participants reenact an

annual rendezvous held by local fur traders from 1825 to 1840. The weekend

boasts competitions in shooting, archery, and knife-throwing contests, and,

relevant to this appeal, hosts “traders” who sell accurate replicas of pre-1840

goods. The event attracts between 40,000–50,000 visitors and is the largest of its

kind in the region.

The State of Wyoming granted the FBRA, a nonprofit volunteer

organization, the exclusive right to conduct the Rendezvous. The FBRA has

approximately ninety members, a majority of whom trade at the Rendezvous.

Some of the members of the FBRA’s fourteen-person Board of Directors are also

traders. One need not be a member of the FB RA to trade at the Rendezvous,

however, as fewer than half of the traders are members of the FBRA.

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 Among other things, the FBRA monitors traders’ wares for authenticity and

assigns to traders the limited number of trading spaces allowed by its state permit.

Under the FBRA’s method of assigning spaces, priority is given to traders who

participated in the previous year’s Rendezvous. In this way, if a trader files a

timely application for space, he generally will receive the same space he occupied

the year before. Applications received by traders who did not trade at the

previous Rendezvous, or by traders who were at the previous Rendezvous but

filed their applications after the deadline, are accepted on a first-come, first-

served basis.

Although not members of the FBRA, the Gregorys were long-time and

large-volume Rendezvous traders who offered a wide selection of goods at low

prices as compared to most other traders— including traders w ho were members

and directors of the FB RA . D ue to their seniority, the Gregorys had obtained tw o

coveted trading spaces on the front row of the event, which they maintained by

making a timely application every year to the following year’s Rendezvous.

In addition to selling their replica pre-1840 goods at the Rendezvous, the

Gregorys also sold them at a trading post located on the grounds of the Fort

Bridger Historical Site. Their trading-post sales of goods were governed by a

contract with the State of W yoming rather than by the FBRA, however, and were

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therefore not subject to the FBRA’s standards of authenticity. 1 Nonetheless, the

Gregorys sold many of the same goods at the trading post that they offered for

sale at the Rendezvous. Additionally, the Gregorys have attended and sold their

goods at tw enty-five similar events in other parts of the country.

According to the Gregorys, in the late 1990s the FBRA launched an

anticompetitive campaign against them. The Gregorys complain of the following

conduct: (1) the Board, acting through a “trade committee,” forced the Gregorys

to stop selling “unauthentic goods,” w hile other traders, including Board

members, continued selling identical goods; 2 (2) the Board removed the camping

spaces next to the Gregorys’ trading space (which the Gregorys used for storage

instead of camping) and created another trading space; (3) the Board voted to

allow a trader only one space on the front row; 3 (4) the Board proposed to auction

1
The contract between the Gregorys and the State of Wyoming— which was
later apparently assigned to the Fort Bridger H istorical Association— expired in
2001. The Gregorys chose not to renew the contract.
2
The trade committee enforced the policy related to unauthentic goods by
visiting traders’ tents during the Rendezvous and inspecting the items they had
for sale. If one of the committee members noticed an unauthentic good, the trader
was asked to put the good away. The record reveals that, on average, the
Gregorys were asked to put away approximately one item per year due to its lack
of authenticity.
3
In 2002, the State of W yoming was engaged in an archeological project to
uncover the foundations of several historical buildings on the Fort Bridger
Historical Site. W hen the foundations were discovered, the State prohibited that
space from being used for R endezvous trading. Because of this prohibition, two
spaces w ould be lost on the front row of the Rendezvous. Rather than oust a
(continued...)

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off the Gregorys’ commercially advantageous trading area that they earned by

seniority, while no other spaces became the subject of a proposed auction; and (5)

the Board proposed severely limiting the range of merchandise permitted under

the replica pre-1840 standard, which would have adversely affected large-volume

traders like the Gregorys. 4

In response to these actions taken by the Board, Sandy Gregory initiated

her own course of conduct against the FBRA. She wrote several letters to the

Board, complaining of its proposals and of “personal grudges” that some directors

had against them. She also wrote to the State of W yoming and accused the FBRA

directors of gross mismanagement, embezzlement, permit violations, and ethics

violations. She asked for more state involvement and control over the FBRA and

requested that the State keep her communications confidential. M s. Gregory also

secretly recorded a traders’ meeting at the 2000 Rendezvous and several

telephone conversations between her husband and Kash Johnson, Chairman of the

Rendezvous and a director of the FBRA. She then wrote a letter to M r. Johnson

accusing him of being unethical, unprofessional, and “twisted with irrational

3
(...continued)
trader from the space altogether, the FBRA’s Board adopted a policy limiting
each trader to one space on the front row. The policy affected one trader, and
would have affected the Gregorys if they had traded at the 2002 Rendezvous.
4
These latter two proposals were not implemented. The G regorys also
complain of other conduct taken by the FBRA that is not supported by the record.

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anger.”

Subsequently, the State of Wyoming instructed M r. Johnson not to respond

to future complaints from M s. Gregory. As a result of this instruction, when the

Gregorys sent their application to the FBRA in 2002 by registered mail, it was

returned to them unopened. W hen M r. Gregory asked M r. Johnson why their

application was returned, M r. Johnson acknowledged that he had not realized that

the returned letter was their application. M r. Johnson told M r. Gregory that if he

resent it, it would be accepted. After the Gregorys reapplied and their application

was accepted, however, the Board voted unanimously to reject the G regorys’

application for trading space at the 2002 Rendezvous and returned their

application fee because of their “animosity and pattern of personal and

professional attacks made upon the Board in their correspondence to both the

Board members and the State of W yoming.” 5 As a result, the Gregorys were not

permitted to trade at the Rendezvous in 2002. 6 The Gregorys contend that their

5
It is not clear what precipitated the rejection of the Gregorys’ application,
although it seems to be based on another complaint lodged by M s. Gregory in
response to the Board’s decision to permit only one front row space per trader.
The letter, which was addressed to the W yoming State Parks and Cultural
Resources, accused the FBRA of sex discrimination and unethical business
practices.
6
Over the years, other traders’ timely applications for space at the
Rendezvous w ere denied because, for example, the proprietors refused to comply
with the requirement that they dress in period attire or because they sold goods
that did not comport with the pre-1840 standard. The ban from trading is not a
permanent ban, however, as traders are permitted to reapply for space the
(continued...)

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ouster was orchestrated to eliminate competition and that the reason proffered by

the FBRA— M s. Gregory’s unruly behavior— is pretextual.

The Gregorys filed suit against the FBRA, alleging violations of §§ 1 and 2

of the Sherman Act. The District Court granted summary judgment in favor of

the FBRA after finding that the G regorys failed to show a plurality of actors

necessary to establish concerted action or a conspiracy as required by those

provisions. This appeal followed.

II. D ISC USSIO N

A. Standard of Review

Under Federal Rule of Civil Procedure 56(c), we review a district court’s

grant of summary judgment de novo and apply the same legal standard used by

the district court. Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1391 (10th Cir.

1992). “Summary judgment is appropriate w hen ‘there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.’” Id. (quoting Fed. R. Civ. P. 56(c)) (alteration in original).

B. Section One of the Sherman Act

1. Concerted Action

Section 1 of the Sherman Act provides that “[e]very contract, combination

in the form of trust or otherwise, or conspiracy, in restraint of trade or comm erce

6
(...continued)
following year. It does not appear from the record that the Gregorys ever
reapplied for space at the Rendezvous after their 2002 application was denied.

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among the several States . . . is declared to be illegal.” 15 U.S.C. § 1. Section 4

of the Clayton Act creates a private cause of action for any person who has been

“injured in his business or property by reason of anything forbidden in the

antitrust laws,” and provides for treble damages. See 15 U.S.C. § 15(a); Full

Draw Productions v. Easton Sports, Inc., 182 F.3d 745, 750 (10th Cir. 1999).

Section 1 has been interpreted as prohibiting only concerted, multilateral

action. See Bell v. Fur Breeders Agric. Coop., 348 F.3d 1224, 1232 (10th Cir.

2003). Such action occurs when “two or more entities that previously pursued

their own interests separately . . . combin[e] to act as one for their common

benefit” in the restraint of trade. See Copperweld Corp. v. Independence Tube

Corp., 467 U.S. 752, 769 (1984). Underlying § 1's emphasis on concerted action

is the rationale that when two formerly separate entities combine for their

common benefit, their activity is “fraught with anti-competitive risk” because it

“deprives the marketplace of the independent centers of decisionmaking that

competition assumes and demands.” Id. at 768–69. For this reason, “unilateral

conduct, regardless of its anti-competitive effects, is not prohibited” by § 1 of the

Sherman Act. M otive Parts Warehouse v. Facet Enters., 774 F.2d 380, 386 (10th

Cir. 1985) (quoting Contractor Util. Sales v. Certainteed Prods., 638 F.2d 1061,

1074 (7th Cir. 1981)). Therefore, it is critical to distinguish between unilateral

and concerted action in establishing a violation of § 1.

The general rule, sometimes termed the “single-entity rule,” see Freeman v.

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San D iego Ass’n of Realtors, 322 F.3d 1133, 1147 (9th Cir. 2003), is that

coordinated activity within a corporation does not represent a plurality of actors

necessary to establish concerted action, Copperweld Corp., 467 U.S. at 769. The

Supreme Court has explained that “[t]he officers of a single firm are not separate

economic actors pursuing separate economic interests, so agreements among them

do not suddenly bring together economic power that was previously pursuing

divergent goals.” Id. Accordingly, “an internal ‘agreement’ to implement a

single, unitary firm’s policies does not raise the antitrust dangers that § 1 was

designed to police.” Id.

The Gregorys argue that the single-entity rule does not apply to the FBRA

because a majority of its members are traders that are horizontally positioned

competitors of the Gregorys themselves. In other words, they argue that the

officers and members of the corporation are separate economic actors pursuing

separate economic interests and therefore the principles in Copperweld do not

apply. Indeed, we have recognized a limited exception to the general rule that a

corporation cannot conspire with its officers or employees— namely, that

“employees are capable of combining with their corporate employer when they

have an ‘independent personal stake,’ and thus stand to benefit from conspiring

with the corporation to restrain trade.” M otive Parts Warehouse, 774 F.2d at 387

(quoting Holter v. M oore & Co., 702 F.2d 854, 855 (10th Cir. 1983).

Relying on this Court’s decision in Bell v. Fur Breeders Agricultural

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Cooperative, the District Court disagreed with the Gregorys’ contention.

Likening the FBRA to a cooperative, the court held that because the FBRA’s

members will theoretically always be in competition with each other, the

Gregorys were required to show either that the Board acted outside the scope of

its authority or that Board members acted for their own benefit rather than the

benefit of the FBRA as a whole. Having failed to make that requisite showing,

the District Court concluded that only unilateral conduct was at issue and

therefore the Gregorys had failed to show a violation of § 1 of the Sherman Act.

W e agree with the Gregorys that the District Court erred in relying on Bell

and hold that the FBRA represents a plurality of actors necessary to establish

concerted action under the Sherman Act. In that case, a group of mink ranchers

formed Fur Breeders Agricultural Cooperative for the sole purpose of providing

mink feed to cooperative members at a reduced cost. The effect of the

cooperative was to eliminate competition for minks based on the price of feed.

Initially, members of the cooperative picked up the feed from one of two

locations. After time, Fur Breeders began delivering feed to its members on an

established delivery route. Because one of the cooperative’s written objectives

was to ensure that members did not subsidize one another, members on the route

paid a price for the feed that included delivery costs. For members living off the

route, Fur B reeders would still deliver, although with an additional surcharge.

Off-route members could avoid the surcharge by picking up the feed themselves;

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the feed was discounted to exclude normal delivery costs of one cent per pound.

Id. at 1227–28.

An off-route member filed suit against Fur Breeders and its board members

alleging price discrimination in violation of the Sherman Act because the

cooperative: (1) failed to expand its existing delivery route; and (2) refused to

provide a discount which included the actual cost off-route members incurred by

picking up the feed themselves. Through this action, the member argued, Fur

Breeders’ board members purposely kept the cost of delivered feed down, which

benefitted them, but not the three members who picked up their feed. Id. at 1227.

In affirming summary judgment for Fur Breeders, we found that it was an

agricultural cooperative w hose “activities fall squarely within the antitrust

exemption [for agricultural cooperatives] in the Clayton and Capper-Volstead

Acts.” 7 Id. at 1235 (citing 7 U.S.C. § 291; 15 U.S.C. § 17). As such, it was

immune from liability for a conspiracy with its members. In affirming summary

judgment for the individual board members, we assumed without deciding that the

independent stakeholder exception could apply to members of an agricultural

7
Congress explicitly exempted agricultural cooperatives from the provisions
of the Sherman Act. See 7 U.S.C. § 291; 15 U.S.C. § 17. There are several
limited exceptions to this immunity, however, that place cooperatives outside the
protection of the Capper-Volstead Acts. For example, “agreements with persons
not engaged in agricultural production, particularly for the purpose of acquiring
monopoly power,” are not exempted. Bell, 348 F.3d at 1232. “Similarly, the
association may not engage in predatory tactics such as picketing and harassment,
coerced membership and discriminatory pricing.” Id.

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cooperative but stated that “[w ]e do not think that the fact that Fur Breeders’

board members compete with other members is dispositive” in determining

whether the board members had an independent personal stake in the trade at

issue “and thus stand to benefit from conspiring with the corporation to restrain

trade.” 8 Id. at 1233 (quotation and citation omitted). W e explained that “[u]nlike

traditional corporate officers who do not typically compete with each other in the

market place, cooperative members are theoretically always in competition with

each other because they are in the same trade and sell the same product.” Id.

Therefore, holding that competition among members, alone, satisfies the plurality

requirement would mean that every action taken by the board potentially violates

§ 1. Id. “Instead, in determining whether the board members have an

independent personal stake to conspire to benefit themselves, we ask whether

their actions are beyond the scope of their authority or for their own benefit rather

than the benefit of the cooperative as a whole.” Id. at 1233–34 (quotation marks

and footnote omitted).

Bell cannot be understood to broadly exempt associations of horizontal

competitors from liability under the antitrust law s so long as its board members

8
Fur Breeders argued that the independent stakeholder exemption did not
apply to cooperatives, instead maintaining that individual members of the
agricultural cooperative w ere exempt from liability under the antitrust laws
because the cooperative itself was exempt from the antitrust laws. Bell, 348 F.3d
at 1233 n.5. The court did not address this argument because it “easily resolve[d]
[the] issue applying the independent stakeholder exemption.” Id.

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are acting within the scope of their authority and with the intention to benefit the

association as a whole. Such a rule would eviscerate the protections of the

Sherman Act because it would permit, for example, horizontal competitors to

form associations in which all competitors agree to sell their product at the same

supracompetitive price. This hypothetical association would have the “authority”

to decide at what price to sell their products, and supracompetitive pricing would

benefit the whole group, rather than any individual competitor. But this type of

price-fixing agreement is exactly what the antitrust laws w ere designed to

prohibit.

Rather, Bell stands for the proposition that an agricultural cooperative and

its board members constitute a single entity and are thus exempt from antitrust

liability when the cooperative is not engaged in one of the excepted activities that

removes it from the protections of the Clayton and Capper-Volstead Acts. See id.

at 1235; supra note 8. Bell further provides that in the context of a board of

director’s day-to-day operating decisions, individual board members are deemed

part of the single entity so long as they act within the scope of their authority and

for the benefit of the entity, even though the individuals might have an

independent personal stake in the action taken by the entity. In other words, in

determining the applicability of the independent stakeholder exception to the

single-entity rule in the context of an association of potential competitors, the

proper focus is on the type of decision made by the board. See AD/SAT, Div. of

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Skylight, Inc. v. Associated Press, 181 F.3d 216, 234 (2d cir. 1999) (recognizing

that to the extent the challenged decision involves the day-to-day operations of a

trade association, board members and the association should be regarded as a

single entity).

In this case, the Board’s decision cannot be fairly characterized as one

involving day-to-day operations of the FBRA. See, e.g., Northwest W holesale

Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284 (1985) (stating

that rule-of-reason analysis applies to a nonprofit cooperative’s decision to expel

a retailer from membership). The decision to deny the Gregorys’ application

deprived them of the ability to compete at the 2002 Rendezvous— a decision from

which every other member-trader stood to benefit. See AD/SAT, Div. of Skylight,

181 F.3d at 234 (noting that there is no practical problem in treating those

decisions of a trade association that tend to reduce competition as a conspiracy of

its members) (quoting 7 Phillip E. Areeda et al., Antitrust Law ¶ 1477, at 347).

For these reasons, the District Court inappropriately relied on Bell in granting

summary judgment in favor of the FBRA.

Finally, we note that unlike a typical corporation in which the officers and

directors are not separate actors pursuing separate economic interests, the

members of the FBRA horizontally compete for the sale of replica pre-1840

goods. These types of associations “have traditionally been the objects of

antitrust scrutiny” because their members “often have economic incentives to

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restrain competition.” Allied Tube & Conduit Corp. v. Indian Head, Inc., 486

U.S. 492, 500 (1988); see also Northwest Wholesale Stationers, 472 U.S. 284;

Am. Soc’y of M ech. Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982). As

such, we hold the challenged action taken by the FBRA— excluding the Gregorys

from selling products at the 2002 Rendezvous— involves a plurality of actors

necessary to establish the concerted action requirement set forth in § 1 of the

Sherman Act.

2. Restraint of Trade

Section 1 prohibits only concerted action that unreasonably restrains trade.

Northwest Wholesale, 472 U.S. at 289. As we explained in Diaz v. Farley:

The Supreme Court has developed two main analytical approaches
for determining whether a defendant’s conduct unreasonably restrains
trade: the per se rule and the rule of reason. The rule of reason is the
usual method of analyzing conduct under the Sherman Act. It
requires the factfinder to weigh all of the circumstances of a case in
deciding whether a restrictive practice should be prohibited as
imposing an unreasonable restraint on competition. Per se analysis
is reserved for agreements or practices w hich because of their
pernicious effect on competition and lack of any redeeming virtue are
conclusively presumed to be unreasonable and therefore illegal
without elaborate inquiry as to the precise harm they have caused or
the business excuse for their use.

215 F.3d 1175, 1182 (10th Cir. 2000) (citations, alterations, and quotations

omitted).

The Gregorys contend that the FBRA’s action in excluding them from the

2002 Rendezvous is a horizontal “group boycott” (i.e., a concerted refusal to deal)

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and, as such, is per se illegal under § 1. See id. at 1182. The Supreme Court has

clearly held, however, that “not every cooperative activity involving a restraint or

exclusion will share with the per se forbidden boycotts the likelihood of

predominantly anticompetitive consequences.” Northwest W holesale, 472 U.S. at

295. Rather, “the decision to apply the per se rule turns on whether the practice

facially appears to be one that would always or almost always tend to restrict

competition and decrease output or instead one designed to increase economic

efficiency and render markets more, rather than less, competitive.” Id. at 289–90

(quotation and alteration omitted). M oreover, “there is a presumption in favor of

[the] rule of reason standard,” Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S.

717, 726 (1988); by contrast, the per se rule is appropriate only in “relat[ion] to

conduct that is manifestly anticompetitive,” Continental T. V., Inc. v. GTE

Sylvania, Inc., 433 U.S. 36, 50 (1977). Of course, some group boycotts have been

deemed per se illegal, but that approach “has generally been limited to cases in

which firms w ith market power boycott suppliers or customers in order to

discourage them from doing business with a competitor.” F.T.C. v. Ind. Fed’n of

Dentists, 476 U.S. 447, 458 (1986). Finally, per se treatment of group boycotts

should not be undertaken “indiscriminately” especially when “the economic

impact of certain practices is not immediately obvious.” Id. at 458–59.

The Gregorys have failed to show that the Board’s conduct is manifestly

anticompetitive. Because more traders apply to sell products at the Rendezvous

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than space permits, the FBRA must be able to exercise the authority granted to it

by the State of W yoming to determine which applications to accept. This

exercise is rendered impossible, however, when the threat of antitrust liability

looms overhead. M oreover, the denial of an application is not ordinarily likely to

result in predominantly anticompetitive effects because the denial of one trader’s

application opens the market to another competitor. Further, there is evidence

that other traders have been denied space at the Rendezvous for reasons other

than anticompetitive purposes. See supra note 6. The act of denying a trader

space at the Rendezvous therefore “does not necessarily imply anticompetitive

animus and thereby raise a probability of anticompetitive effect.” See Northwest

Wholesale, 472 U.S. at 296.

Nonetheless, the G regorys argue that per se treatment is warranted because

the FBRA cut off access to a facility necessary to enable them to

compete— namely, the Rendezvous. See id. at 294, 296 (stating that per se

treatment of conduct that is not necessarily anticompetitive may be warranted if

the association possesses market power or exclusive access to facility necessary

to compete). This theory of liability, which is known as “the essential facilities”

or “bottleneck” doctrine, imposes upon “a business or group of businesses which

controls a scarce facility . . . an obligation to give competitors reasonable access

to it.” Pittsburg County Rural Water Dist. No. 7 v. City of M cAlester, 358 F.3d

694, 721 (10th Cir. 2004). The doctrine generally applies in situations in which

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the plaintiff is unable to compete in the relevant market— in this case, the market

for replica pre-1840 goods— without access to a facility controlled by another.

For example, “the doctrine has been applied to electric transmission lines,

football and basketball stadiums, downhill ski hills, natural gas pipelines, and

local telephone facilities.” See In re Air Passenger Com puter Reservations Sys.

Antitrust Litig., 694 F. Supp. 1443, 1451 (C.D. Cal. 1993) (discussing cases).

In order to establish antitrust liability based on the essential facilities

doctrine, a plaintiff must show: “(1) control of the essential facility by a

monopolist; (2) a competitor’s inability to duplicate the facility; (3) denial of the

use of the facility to a competitor; and (4) the feasibility of providing the

facility.” Pittsburg County Rural Water Dist. No. 7, 358 F.3d at 721. The

Gregorys do not attempt to satisfy the above elements; they merely make the

conclusory allegation that the space at the Rendezvous is essential to selling

replica pre-1840 goods. W e therefore decline to address this argument, especially

since it is not apparent on its face that the Gregorys cannot sell their goods

elsewhere. 9 See Am. Airlines v. Christensen, 967 F.2d 410, 415 n.8 (“It is

insufficient merely to state in one’s brief that one is appealing an adverse ruling

below without advancing reasoned argument as to the grounds for the appeal.”

(citing Fed. R. App. P. 28(a)(4)). In any event, we think that this situation is

9
Indeed, as noted above, prior to the 2002 Rendezvous, the Gregorys sold
many of the same goods that they sold at the Rendezvous at the trading post
which was immediately adjacent to the Rendenzvous.

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particularly unsuitable for per se treatment given the limited space at the

Rendezvous. A finding that the FBRA’s decision to deny a trader space to sell

products amounts to a per se violation of the Sherman Act would unfairly expose

the association to treble damages each time it exercised its authority under the

State permit. As such, we hold that the Gregorys have not shown that the conduct

at issue constitutes the type of horizontal group boycott that warrants per se

treatment. 10

Our conclusion that per se treatment is not appropriate in this case does not

end our inquiry under § 1. Rather, we turn our focus to the rule of reason. W e

have explained the shifting burden of proof under the rule of reason as follow s:

[T]he plaintiff bears the initial burden of showing that an agreement
had a substantially adverse effect on competition. If the plaintiff
meets this burden, the burden shifts to the defendant to come forward
with evidence of the procompetitive virtues of the alleged wrongful
conduct. If the defendant is able to demonstrate procompetitive
effects, the plaintiff then must prove that the challenged conduct is
not reasonably necessary to achieve the legitimate objectives or that
those objectives can be achieved in a substantially less restrictive
manner. Ultimately, if these steps are met, the harms and benefits
must be weighed against each other in order to judge whether the
challenged behavior is, on balance, reasonable.

10
Our inquiry into whether the challenged action warrants per se or rule of
reason treatment does not include an inquiry into the specific motive of the
alleged conspirators. Rather, we look to the type of action involved to determine
whether it has such a pernicious effect on competition such that per se analysis is
warranted. W hether the conspirators’ justification for its conduct is
pretextual— as the Gregorys allege here— is properly considered under the rule of
reason analysis. See Northwest Wholesale, 472 U.S. at 296 n.7 (stating that
actions that are not substantially related to the asserted procompetitive purpose
might w arrant an inference of anticompetitive animus).

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Law v. Nat’l Collegiate Athletic Ass’n, 134 F.3d 1010, 1019 (10th Cir. 1998)

(internal citations omitted).

The purpose of the antitrust laws is to protect the public. Reazin v. Blue

Cross & Blue Shield of Kan., Inc., 899 F.2d 951, 960 (10th Cir. 1990). W e

therefore consider the FBRA’s conduct “in light of its effect on consumers, not on

competitors.” See id. Accordingly, under the first prong of the rule of reason

test, the Gregorys cannot simply show that the challenged action adversely

affected their business— they must demonstrate an adverse effect on competition

in general. Id.; see also Harolds Stores, Inc. v. Dillard Dept. Stores, Inc., 82 F.3d

1533, 1548 (10th Cir. 1996) (“An antitrust plaintiff must show that the challenged

conduct adversely impacts competition in general because the antitrust law s were

enacted for the protection of competition, not competitors.”) (quotation marks and

alteration omitted); Intergraph Corp. v. Intel Corp., 195 F.3d 1346, 1364 (Fed.

Cir. 1999) (“The federal antitrust laws do not create a federal law of unfair

competition or purport to afford remedies for all torts committed by or against

persons engaged in interstate commerce.”) (quotations and citations omitted).

The Gregorys make no argument that the denial of their 2002 application

violates the rule of reason test. Indeed, the record reveals that once their

application was denied, one or two other traders w ere permitted space to sell

replica pre-1840 goods at the 2002 Rendezvous. See Coffey, 955 F.2d at 1393

(plaintiff fails to meet burden under rule of reason test when restraint amounts to

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a reshuffling of competitors with no detrimental effect on competition). As such,

summary judgment was appropriately entered against the Gregorys. See Garrison

v. Gambro, Inc., 428 F.3d 933, 939 (10th Cir. 2005) (stating that an appellate

court may affirm the judgment of a district court on any ground supported by the

record, “provided the litigants have had a fair opportunity to develop the record”)

(quoting Ross v. U.S. M arshal, 168 F.3d 1190, 1194 n. 2 (10th Cir.1999)).

C. Section 2 of the Sherman Act

Under 15 U.S.C. § 2, “[e]very person who shall 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 . . . shall

be deemed guilty of a felony.” Because the Gregorys fail to establish that the

FBRA’s challenged conduct harmed the competitive process under § 1, their

conspiracy to monopolize claim under § 2 likewise fails. NYNEX Corp. v.

Discon, Inc., 525 U.S. 128, 139 (1998) (stating that agreements that do not harm

the competitive process do not amount to a conspiracy to monopolize); see also

Intergraph Corp., 195 F.3d at 1363–64 (dismissing § 1 and § 2 conspiracy claims

because agreement had no adverse effect on competition); Elecs. Commc’ns Corp.

v. Toshiba Am. Consumer Prods., Inc., 129 F.3d 240, 246 (2d Cir. 1997)

(dismissing a conspiracy to monopolize claim when the plaintiff could not prove

that the agreement harmed overall competition).

III. C ON CLU SIO N

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 W e conclude that the District Court erred in holding that the FBRA did not

constitute a plurality of actors necessary to establish concerted action or a

conspiracy in violation of §§ 1 and 2 of the Sherman A ct. W e nonetheless

AFFIRM summary judgment in favor of the FBRA because the Gregorys fail to

establish that the challenged action constitutes an unreasonable restraint of trade.

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