Community Publishers v. NAT, L.C.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________

No. 95-2976
_____________

Community Publishers, Inc.; Shearin, *
doing business as Shearin & Company *
Realtors, Inc., *
*
Plaintiffs - Appellees, *
*
v. *
*
DR Partners, doing business as Donrey *
Media Group; Thomson Newspapers, *
Inc.; Northwest Arkansas Times, * Appeals from the United States
* District Court for the
Defendants, * Western District of Arkansas.
*
NAT, L.C., *
*
Defendant - Appellant, *
*
Little Rock Newspaper, doing business *
as Arkansas Democrat-Gazette, Inc., *
*
Movant. *
---------------------------- *
*
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
NAT, Inc., *
 *
Defendant - Appellant, *
*
DR Partners, doing business as Donrey *
Media Group, Inc., *
*
Defendants. *
------------------------------- *
*
Freedom Communications, Inc., *
*
Amicus Curiae. *

___________

No. 95-3165
___________

Community Publishers, Inc.; Shearin, *
doing business as Shearin & Company *
Realtors, Inc., *
*
Plaintiffs - Appellees, *
*
v. *
*
DR Partners, doing business as Donrey *
Media Group, *
*
Defendant - Appellant, *
*
Thomson Newspapers, Inc.; Northwest *
Arkansas Times; NAT, L.C., *
*
Defendants, *
*
Little Rock Newspaper, doing business *

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as Arkansas Democrat-Gazette, Inc., *
*
Movant. *
--------------------------- *
*
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
NAT, Inc.; DR Partners, doing business *
as Donrey Media Group, Inc., *
*
Defendants. *
------------------------------- *
*
Freedom Communications, Inc., *
*
Amicus Curiae. *

___________

No. 95-3355
___________

Community Publishers, Inc.; Shearin, *
doing business as Shearin & Company *
Realtors, Inc., *
*
Plaintiffs - Appellees, *
*
v. *
*
DR Partners, doing business as Donrey *
Media Group; Thomson Newspapers, *
Inc., Northwest Arkansas Times, *

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 *
Defendants, *
*
NAT, L.C., *
*
Defendant - Appellant, *
*
Little Rock Newspaper, doing business *
as Arkansas Democrat-Gazette, Inc., *
*
Movant. *
--------------------------- *
*
United States of America, *
*
Plaintiff, *
*
v. *
*
NAT, Inc., DR Partners, doing business *
as Donrey Media Group, Inc., *
*
Defendants. *
------------------------------- *
*
Freedom Communications, Inc., *
*
Amicus Curiae. *

___________

No. 95-3358
___________

Community Publishers, Inc.; Shearin, *
doing business as Shearin & Company *
Realtors, Inc., *

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 *
Plaintiffs - Appellees, *
*
v. *
*
DR Partners, doing business as Donrey *
Media Group, *
*
Defendant - Appellant, *
*
Thomson Newspapers, Inc.; Northwest *
Arkansas Times; NAT, L.C., *
*
Defendants, *
*
Little Rock Newspaper, doing business *
as Arkansas Democrat-Gazette, Inc., *
*
Movant. *
--------------------------- *
*
United States of America, *
*
Plaintiff, *
*
v. *
*
NAT, Inc.; DR Partners, doing business *
as Donrey Media Group, Inc., *
*
Defendants. *
------------------------------- *
*
Freedom Communications, Inc., *
*
Amicus Curiae. *

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 _____________

Submitted: April 11, 1996
Filed: March 25, 1998
_____________

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
_____________

BOWMAN, Circuit Judge.

NAT, L.C. (NAT) and DR Partners d/b/a Donrey Media Group (Donrey) appeal
from the judgment and amended judgment of the District Court.1 The case concerns
the lawfulness of a newspaper acquisition. After a bench trial, the court (1) held that
NAT's acquisition of the Northwest Arkansas Times (the Times) violated Section 7 of
the Clayton Act, 15 U.S.C. § 18, (2) ordered NAT and Thomson Newspapers, Inc.
(Thomson), from which NAT had purchased the Times, to rescind the transaction, and
(3) awarded attorney fees and costs to Community Publishers, Inc. (CPI) and Shearin
Inc. d/b/a Shearin & Company Realtors (Shearin), the private plaintiffs who challenged
the acquisition.2 Thomson's motion to stay the rescission order pending the disposition
of these appeals having been denied, rescission has taken place and Thomson has sold
the Times to a third party.3

1
The Honorable H. Franklin Waters, United States District Judge for the Western
District of Arkansas. The opinion of the court is reported at Community Publishers,
Inc. v. Donrey Corp.,892 F. Supp. 1146 (W.D. Ark. 1995).
2
The United States also filed a Section 7 case against NAT and Donrey. The
District Court consolidated the cases for trial.
3
The private plaintiffs have filed a motion to dismiss these appeals as moot. That
motion is denied. An issue raised by NAT and Donrey is whether the District Court
erred in awarding attorney fees and costs to the private plaintiffs. The award of fees
and costs can be sustained only if the private parties are found to be prevailing parties.

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 Plaintiffs' theory of the case, which the findings and conclusions of the District
Court fully support, is that the acquisition of the Times by NAT likely would have
anticompetitive effects in the local daily newspaper business, because the acquisition
would result in NAT and Donrey, both under the common control of Jack Stephens and
his family, owning both the Times and the Morning News of Northwest Arkansas (the
Morning News), the two leading local daily newspapers, together having a dominant
market share, in the relevant geographic market. Seeking reversal and dismissal of the
complaint, NAT and Donrey challenge virtually all the key aspects of the District
Court's findings and conclusions. We shall address seriatim the issues raised. The
facts of the case are described in detail in the District Court's lengthy opinion. We shall
discuss them only to the extent appropriate to our resolution of the issues.

I.

Appellants argue the District Court erred in determining that the private
plaintiffs, CPI and Shearin, suffered antitrust injury.4 We disagree.

CPI, which asserted standing as a competitor of the Times, was required to show
injury or "loss of profits from practices forbidden by the antitrust laws." Cargill, Inc.
v. Monfort of Colo., Inc., 479 U.S. 104, 116 (1986). Though "Cargill has imposed
significant barriers to competitor attempts to enjoin merger transactions," Phototron
Corp. v. Eastman Kodak Co., 842 F.2d 95, 102 (5th Cir.), cert. denied, 486 U.S. 1023
(1988), here the District Court found that CPI's profits were threatened in various ways

See Clayton Act § 16, 15 U.S.C. § 26; Fed. R. Civ. P. 54(d). We must decide the
various arguments for reversal asserted by NAT and Donrey before we can say whether
the private plaintiffs are in fact, at the end of the day, prevailing parties. These appeals
therefore are not moot.
4
The standing of the United States to maintain its Section 7 action is
unchallenged. Resolution of this issue affects only the private plaintiffs.

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by the anticompetitive aspects of the challenged acquisition of the Times. See 892
F. Supp. 1166-67. Having reviewed the record, we cannot say the District Court's
findings on this point are clearly erroneous. We therefore must agree with the District
Court that "this is one of those rare cases [in which] a competitor plaintiff has
successfully proved a threat of antitrust injury." Id.

As to Shearin, the District Court found a threat of antitrust injury based upon
Shearin's status as a purchaser of advertising in the Morning News. Shearin alleged
that a combination of the Times and the Morning News would raise advertising rates
as a result of the two newspapers' dominant market position. The threat of higher
prices resulting from dominant market power being a primary concern of Section 7, the
District Court correctly determined that Shearin had shown antitrust injury.

II.

NAT and Donrey contend the District Court erred in aggregating their interests
for the purpose of determining whether the acquisition violated Section 7. Appellants
argue that because the Stephens family interests that own NAT are somewhat different
from the array of Stephens family interests that own Donrey, and no single family
member or set of family members possesses more than a minority interest in either
NAT or Donrey, there is no reason to believe that NAT and Donrey would act in
concert to dominate the newspaper business in northwest Arkansas. The District Court
determined, however, based on a careful consideration of the evidence, that the
Stephens family could be expected to act in a coordinated way to maximize the wealth
of the family as a whole. Specifically, the court found "that the various members of the
Stephens family do not pursue separate interests or compete against each other in any
way." Id. at 1170-71. The court's findings on this point are not clearly erroneous.
Thus, it was proper for the District Court to aggregate the interests of NAT and Donrey
for purposes of Section 7 analysis. Cf. Copperweld Corp. v. Independence Tube
Corp., 467 U.S. 752, 771 (1984) (holding that two or more legally separate and

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distinct, although related, entities are not distinct for purposes of conspiring under the
Sherman Act because they are not "independent sources of economic power . . .
pursuing separate interests").

III.

Appellants also contend the District Court erred in defining the relevant
geographic market for purposes of Section 7. The court defined the relevant
geographic market as northwest Arkansas, encompassing Washington and Benton
Counties. The court found that the term "Northwest Arkansas" has come to stand for
"an increasingly integrated economic, social and political unit which just happens to be
located in the northwest corner of the state." 892 F. Supp. at 1157. In addition, the
court found that the Times and the Morning News strongly compete against each other
for readers and advertisers in Washington County, and that the Benton County Daily
Record (the Daily Record), published by CPI, and the Morning News compete with
one another in Benton County. We have reviewed the record and conclude we cannot
say any of these findings are clearly erroneous. Accordingly, the District Court's
definition of the relevant geographic market must stand.

IV.

Appellants argue the District Court erred in defining the product market for
purposes of Section 7. The court found that the relevant product market for antitrust
purposes is the local daily newspaper market. This is, as the court also found, in fact
two markets: one for readers and one for advertisers. Based on the evidence
presented, including expert testimony, the court rejected the view that in northwest
Arkansas national and state newspapers can be considered to compete with the local
daily newspapers, either for readers or advertisers. The court made a similar finding
with respect to radio, television, and circulars and junk mail.

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 We recognize that properly defining the relevant product market is a critical and
often difficult task. We also recognize that trial records could be made in a case of this
sort that would persuade the factfinder the product market is in fact broader than just
local daily newspapers. Indeed, we acknowledged as much in Midwest Radio Co. v.
Forum Publishing Co., 942 F.2d 1294, 1297 (8th Cir. 1991), in which we affirmed a
summary judgment for the defendant on a claim of monopolization under the Sherman
Act because the plaintiff presented no evidence to counter the defendant's evidence that
other media were part of the relevant product market for advertisers. But such
determinations are necessarily fact intensive and must be based on evidence that
describes real markets, not hypothetical ones. We are not yet ready to say that for
antitrust purposes local daily newspapers and other media outlets always occupy the
same product market. Having reviewed the record made in this case, we are satisfied
the District Court did not clearly err in limiting the product market to local daily
newspapers. In fact, on this record we believe it would be a considerable stretch to
find otherwise.

V.

Appellants argue the District Court erred in determining it was reasonably
probable the acquisition of the Times by NAT would substantially lessen competition
in violation of Section 7. The District Court found that the combination of the Times
and the Morning News under the ownership of the Stephens family resulted in the
combination's having in excess of 84% of the readers and 88% of the advertising
revenue of local daily newspapers in northwest Arkansas, with the Daily Record
holding the smallish remainder. These high combined market shares of the two
Stephens newspapers clearly raised a presumption that the acquisition violated
Section 7. See United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 364 (1963)
(holding presumptively illegal a merger that would result in single bank controlling 30%
of market in which the largest four banks after the merger together would have a 78%
share). Further, the court found that NAT and Donrey had failed to rebut the

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presumption of illegality. In particular, the court found that barriers to entry are
formidable in the local daily newspaper business, rejecting defendants' arguments to the
contrary. Based on our review of the record, we do not believe any of the court's
findings are clearly erroneous. These findings of fact lead inexorably to the conclusion
that NAT's acquisition of the Times violated Section 7 by creating a reasonable
probability of a substantial lessening of competition in the local newspaper business in
northwest Arkansas.

VI.

Finally, appellants object to the award of attorney fees and costs to CPI and
Shearin. Because our review of the case leaves the status of CPI and Shearin as
prevailing parties intact, they clearly are entitled to recover reasonable attorney fees
and costs. Appellants' arguments to limit the attorney fees and costs awarded are
unpersuasive. The award of attorney fees and costs is sustained.

VII.

We have considered all the arguments raised by NAT and Donrey, and we find
no basis for reversal. The decision of the District Court is affirmed. The motion of
NAT and Donrey to supplement the record is denied.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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