[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 19, 2002
________________________ THOMAS K. KAHN
CLERK
No. 00-16460
________________________
D.C. Docket No. 97-00015 CV-OC-10
MARIS DISTRIBUTING COMPANY,
a Florida corporation,
Plaintiff-Appellant,
versus
ANHEUSER-BUSCH, INC.,
a Missouri Corporation,
ANHEUSER-BUSCH COMPANIES, INC.,
a Delaware Corporation, et al.,
Defendants-Appellees.
________________________
No. 01-13095
________________________
D.C. Docket No. 97-00015 CV-OC-10C
MARIS DISTRIBUTING COMPANY,
a Florida corporation,
Plaintiff-Appellant,
versus
ANHEUSER-BUSCH, INC.,
a Missouri Corporation,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(August 19, 2002)
Before ANDERSON, HULL and KENNEDY*, Circuit Judges.
ANDERSON, Circuit Judge:
Plaintiff Maris Distributing Company (Maris) brought this antitrust action
against Defendant Anheuser-Busch, Inc. (Anheuser-Busch), alleging in part that
Anheuser-Busch violated §1 of the Sherman Act by prohibiting its distributors
from being owned, in whole or in part, by the public. Maris contended that this
restriction, contained in Anheuser-Busch’s distribution agreements, suppressed the
price for equity ownership interests in beer distributorships, and in particular in the
*
Honorable Cornelia G. Kennedy, U.S. Circuit Judge for the Sixth Circuit,
sitting by designation.
2
submarket of the purchase and sale of ownership interests in Anheuser-Busch beer
distributorships. After hearing the evidence at trial, the district court directed a
verdict in Anheuser-Busch’s favor on the issue of whether Anheuser-Busch had
market power, such that there was the potential for genuine anticompetitive effects
on competition. However, the court allowed to go to the jury the issue of whether
actual anticompetitive effects had been shown by the plaintiff. In response to
special interrogatories, the jury then found that Maris had established both a
relevant market (the purchase and sale of equity ownership interests in beer
distributorships) and submarket (the purchase and sale of equity ownership
interests in Anheuser-Busch beer distributorships). However, the jury found that
Maris had failed to show actual anticompetitive effects as a result of the public
ownership restriction. Maris appeals the district court’s directed verdict on the
issue of market power as well as several other issues related to the trial. For the
reasons that follow, we conclude that the district court’s actions were proper, and
we affirm.
I. BACKGROUND
Anheuser-Busch distributes its brands of beer through a network of
approximately 700 authorized wholesale distributors, each with an assigned
territory. Maris was one of these distributors from 1968-1997 and was Anheuser-
3
Busch’s exclusive distributor for the territory covering Gainesville and Ocala,
Florida. Maris paid nothing to Anheuser-Busch in exchange for this
distributorship.
The relationship between Anheuser-Busch and each of its distributors is
governed by a written contract referred to as the Equity Agreement. Upon
becoming a distributor in 1968, Maris agreed as part of the Equity Agreement that
Anheuser-Busch had the right to approve any change in Maris’s ownership. Less
than a year later, in 1969, the Equity Agreement was amended to include a
provision that precluded any public ownership (either through sale to a publicly-
owned company or via a public offering of stock) of distributorships. It is this
provision that is the subject of the instant lawsuit. Maris did not object to the
amendment when the provision was added in 1969, and it also signed two
subsequent versions of the Equity Agreement – one in 1974 and one in 1982 – each
of which contained similar prohibitions against public ownership.
The operative agreement between Maris and Anheuser-Busch at the time this
lawsuit was filed was the 1982 Equity Agreement, paragraph 4(i) of which
provided:
Under no circumstances shall Wholesaler or any owner of Wholesaler
have the right to transfer any ownership interest in the business of
Wholesaler if such transfer would result in Wholesaler being owned in
4
whole or in part, directly or indirectly, by the public.
The Equity Agreement provides, however, that distributors may sell
distributorships, including the right to distribute Anheuser-Busch products, to any
non-public entities, provided that they seek and obtain Anheuser-Busch’s approval.
Another provision required the distributor to provide Anheuser-Busch with notice
of its intent to sell and to allow Anheuser-Busch to have an exclusive right to
negotiate for the purchase of the distributorship for 45 days.
On August 25, 1996, following a meeting with Anheuser-Busch, Maris
submitted a “Notice of Intent to Sell,” pursuant to the terms of the Equity
Agreement. During the subsequent negotiations, Anheuser-Busch made two offers
to purchase Maris – one for $20.4 million and one for $21.5 million. Maris did not
accept these offers and made no counter-offer.
After the required 45-day negotiation period with Anheuser-Busch, Maris
indicated that it would seek to sell the business to a third-party. Maris had
discussions with at least six potential buyers, but never submitted a proposed
purchaser to Anheuser-Busch. According to Anheuser-Busch, Maris’s lack of
success in finding a buyer was in part because Maris demanded an unreasonably
high price – $60 million – and because it acted unreasonably in its negotiations
with potential buyers. Anheuser-Busch also attributes some of Maris’s difficulties
5
to the fact that it employed a broker, Irvin Philpot, who Anheuser-Busch says was
a convicted felon and an otherwise unsavory character.
Maris filed this lawsuit on January 22, 1997, challenging the Equity
Agreement’s public ownership provision. On March 20, 1997, Anheuser-Busch
terminated the Equity Agreement with Maris. Anheuser-Busch ceased selling its
products to Maris, and assigned Maris’s territories to two other distributors. Maris
asserted a Sherman Act §1 antitrust claim,1 alleging that the public ownership
provision effected an unreasonable restraint in trade (in the form of a non-price,
vertical restraint) by suppressing prices in the relevant market for the purchase and
sale of equity ownership interests in beer distributorships, and in the relevant
submarket for the purchase and sale of equity ownership interests in Anheuser-
Busch beer distributorships.2
Maris’s only claim that went to trial in this case was a rule of reason claim
1
Maris also attempted to assert a Sherman Act §1 horizontal restraint claim
and a §2 attempted monopolization claim against Anheuser-Busch. The district
court dismissed and/or granted summary judgment on those claims, and Maris does
not appeal those rulings.
2
Anheuser-Busch challenged Maris’s definitions of the alleged relevant
market and submarket. As discussed below, the jury accepted Maris’s contentions
concerning the relevant market and submarket, and Anheuser-Busch has not
appealed those findings. Therefore, we accept for purposes of this appeal Maris’s
definition of the relevant market and submarket.
6
under Sherman Act §1, and the parties agree that in order to prevail on its claim,
Maris had to prove, inter alia, either that (1) Anheuser-Busch had market power in
the relevant market or submarket such that the restraint had potential
anticompetitive effects, or (2) the restraint resulted in actual anticompetitive effects
on the relevant market or submarket. See Levine v. Central Florida Medical
Affiliates, Inc., 72 F.3d 1538, 1551 (11th Cir. 1996).
On the issue of market power, the evidence showed that Anheuser-Busch
only owned all or part of 20 out of approximately 700 Anheuser-Busch
distributorships3 and 2700 distributorships of all brands of beer. This indicates that
Anheuser-Busch’s market share in the alleged relevant market was less than 1%,
and that its share of the Anheuser-Busch submarket was still only 2.9%.
Nonetheless, Maris argued that it could show market power based on the fact that
Anheuser-Busch had a 48% market share in the manufacture of beer.
Despite Anheuser-Busch’s small market share in the relevant market and
submarket, Maris’s experts testified that in the case of vertical restraints, a
defendant’s market share in manufacturing can result in market power in the
3
The evidence was that Anheuser-Busch owned 12 distributorships outright,
and that that number had remained fairly constant over time. Moreover, Anheuser-
Busch was a limited partner, through the Anheuser-Busch Investment Capital
Corp., in 8 other distributorships (“ABICCs”), but that the number of these
ABICCs had decreased over time.
7
relevant market for the purchase and sale of ownership interests in distributorships.
These experts stated that when Anheuser-Busch’s market share in the manufacture
of beer is taken together with its contractual influence over the valuations and sales
of distributors, and the contractual exclusion of all publicly-owned buyers, then it
could be shown that Anheuser-Busch had market power over distributors.
Anheuser-Busch disagreed and argued that Anheuser-Busch’s small market
share in the relevant market precluded as a matter of a law a finding of market
power. The district court agreed with Anheuser-Busch and excluded Maris’s
expert testimony concerning market power, finding as a matter of law that market
share could not be imputed to the alleged relevant market for the purchase and sale
of equity ownership interests of beer distributorships from the separate market of
the manufacture and sale of beer. The district court also agreed with Anheuser-
Busch that market power could not be shown by evidence of Anheuser-Busch’s
influence over entry and exit to the market because, the court found, such evidence
only showed contract power and not market power. Therefore, the court also
excluded that evidence. After excluding this evidence, and in light of Anheuser-
Busch’s small market share in the relevant market and submarket, the district court
entered a directed verdict in favor of Anheuser-Busch on the issue of market
power.
8
Although the district court directed a verdict on the market power issue, the
court allowed to go to the jury the issue of whether Maris nonetheless had proven
actual anticompetitive effects as a result of the public ownership restriction. Maris
attempted to prove several actual anticompetitive effects, including: 1) the
suppression of the price at which beer distributorships are sold, 2) a reduction in
output (sales of distributorships) as a result of suppressed price, 3) the creation of
barriers to entry into the market, 4) the creation of a barrier to exit the market, and
5) harm to consumers in the form of higher beer prices as a result of decreased
competition among distributors.
In its special verdict, the jury found in favor of Anheuser-Busch on the issue
of actual anticompetitive effects. Based on this verdict, the district court entered
judgment in favor of Anheuser-Busch, and taxed Maris with costs.
II. ISSUES
Although Maris raises several issues on appeal, only two of those issues
merit extended discussion.4 These are:
4
In addition to the issues discussed in the text, Maris also maintains that it
was prejudiced by several rulings by the district court at trial, including allowing
Anheuser-Busch to refer to its alleged reasons for terminating Maris’s
distributorship and allowing Anheuser-Busch to refer to the criminal record of
Maris’s broker, Irvin Philpot. After careful review of the arguments of the parties
and the record as it relates to these issues, we find them to be without merit and we
affirm without further discussion.
9
1. Whether the district court erred in granting a directed verdict in favor of
Anheuser-Busch on the issue of market power, and in excluding related evidence.
2. Whether the district court abused its discretion by awarding certain costs
related to discovery depositions and expedited trial transcripts.
III. DISCUSSION
A. Directed Verdict on Market Power
Maris’s primary claim on appeal is its contention that the district court erred
by directing a verdict in Anheuser-Busch’s favor on the issue of market power (and
Maris also maintains that the district court erred by allowing Anheuser-
Busch to cross-examine Maris’s expert witnesses concerning the lack of
evidentiary support for certain propositions, even though Anheuser-Busch had
objected to supplying related information (mostly related to beer prices and
previous sales of Anheuser-Busch distributorships) during discovery based, in part,
on relevancy objections. Maris argues that Anheuser-Busch should have been
judicially estopped from taking this approach. See New Hampshire v. Maine, 532
U.S. 742, 121 S. Ct. 1808 (2001) (discussing factors for judicial estoppel). For
several reasons, we think Maris’s argument is without merit. First, it is clear that
Maris was provided with a great deal of the relevant information during discovery
and that much of the other data was publicly available to Maris and its experts if
they had sought it out. Second, it does not appear that Anheuser-Busch took
positions during the course of the litigation that were “clearly inconsistent,” see id.
at 1815, just because it originally maintained that certain issues were irrelevant, but
then sought to cross-examine Maris’s witnesses on those issues after the trial court
allowed them to be introduced. Finally, it appears that Anheuser-Busch’s cross-
examination on these issues was fair, and that it would have been unfair to deny
Anheuser-Busch the opportunity to conduct a thorough cross-examination of
Maris’s witnesses based on the positions that it took during discovery. Therefore,
we also reject Maris’s judicial estoppel argument.
10
excluding related evidence). Maris argues that the ban on public ownership
contained in Anheuser-Busch’s distributorship agreements is an unreasonable
vertical restraint in violation of §1 of the Sherman Act. The parties are in
agreement that Maris’s claim was subject to the “rule of reason,” rather than per se
antitrust analysis. In Levine v. Central Florida Medical Affiliates, Inc., 72 F.3d
1538 (11th Cir. 1996), we discussed the legal standards applicable to such a claim:
Under the rule of reason, the “test of legality is whether the restraint
imposed is such as merely regulates and perhaps thereby promotes
competition or whether it is such as may suppress or even destroy
competition.” Chicago Bd. of Trade v. United States, 246 U.S. 231,
238, 38 S. Ct. 242, 244, 62 L. Ed. 683 (1918). Rule of reason analysis
requires the plaintiff to prove (1) an anticompetitive effect of the
defendant’s conduct on the relevant market, and (2) that the conduct
has no procompetitive benefit or justification.
In order to prove an anticompetitive effect on the market, the plaintiff
may either prove that the defendants’ behavior had an “actual
detrimental effect” on competition, or that the behavior had “the
potential for genuine adverse effects on competition.” In order to
prove the latter, the plaintiff must define the relevant market and
establish that the defendants possessed power in that market.
Id. at 1551 (citations and quotations omitted). Ultimately, in order to consider a
rule of reason claim based on a vertical restraint, we have stated that a court must
conduct a “systematic comparison” of the negative effects of the restraint on
competition and compare that with the positive effects on competition stemming
from the restraint. Id. at 1571. Graphic Products Distributors v. Itek Corp., 717
11
F.2d 1560, 1571 (11th Cir. 1983)
Maris claimed, and the jury so found, that the relevant product market was
the market for the purchase and sale of equity ownership interests in beer
distributorships, and that there was a relevant submarket for the purchase and sale
of equity ownership interests in Anheuser-Busch beer distributorships. The jury
also found that the plaintiff had failed to prove an anticompetitive effect in the
form of an “‘actual detrimental effect’ on competition.” See Levine, 72 F.3d at
1551. The only issue before us involves whether the plaintiff made a sufficient
showing of market power in the relevant market and submarket to present a triable
issue on “the potential for genuine adverse effects on competition.” Id.
As Maris points out, “[t]he question of market power is a factual one,” and it
argues that the question of whether Anheuser-Busch had market power should
have been left to the jury. Thompson v. Metropolitan Multi-List, Inc., 934 F.2d
1566, 1580 (11th Cir. 1991). For the reasons that follow, we conclude that the
district court was correct in determining that, as a matter of law, Anheuser-Busch
was entitled to a directed verdict on the market power issue.
“A district court may enter judgment as a matter of law if a party has been
fully heard on an issue and there is no legally sufficient basis for a reasonable jury
to find in favor of that party on that issue. When considering such a motion, the
12
court must evaluate all of the evidence, together with any logical inferences
therefrom, in the light most favorable to the nonmoving party.” Carter v.
Decisionone Corp., 122 F.3d 997, 1003 (11th Cir. 1997). See Fed. R. Civ. P. 50.
We review de novo an order directing a verdict. Id. at 1004.
In arguing that the district court erred in directing a verdict on the market
power issue, Maris makes three different, but somewhat-related arguments. First,
it argues that Anheuser-Busch’s market share in beer should have been imputed to
the alleged relevant market for the purchase and sale of ownership interests in beer
distributorships. Second, it maintains that even if such an imputation is not
appropriate, Anheuser-Busch’s share of the relevant market should be aggregated
with the share held by all other parties to its distributor agreements, including all of
Anheuser-Busch’s distributors. Finally, Maris contends that the district court erred
by finding that certain restrictions imposed by Anheuser-Busch on its distributors
evidenced only contract power, and not market power. As we shall explain, we
find that none of these contentions has merit.
1. Imputation of Market Share to Relevant Market
As mentioned above, the district court determined, as a matter of law, that
Anheuser-Busch did not have market power in the alleged relevant market for the
purchase and sale of equity ownership interests in beer distributorships given its
13
market share of 1% - 3% in that market. Maris, however, maintains that Anheuser-
Busch’s significant market share in the manufacture and sale of beer is sufficient to
show market power in the relevant market and submarket. Specifically, Maris
contends that “[i]n cases involving vertical restraints imposed by a manufacturer
on distributors, market power is determined by reference to the manufacturer’s
share of products in the market, not its share of ownership in distributors.”
Maris’s Opening Brief, at p. 45. In other words, Maris maintains that a
manufacturer’s market share in the market for its products should be imputed to the
separate market for ownership interests in the manufacturer’s distributorships when
a provision in the distributorship agreement is challenged. We disagree.
We begin by noting that Maris’s position seems to be foreclosed by our
precedent, unless Maris is able to show some “connection” between the two
different markets that would justify our consideration of Anheuser-Busch’s market
share in the beer market while considering Maris’s claim. In Manufacturing
Research Corp. v. Greenlee Tool Co., 693 F.2d 1037 (11th Cir. 1982), we rejected
the relevance to an antitrust claim of market power in a market other than the
relevant market for the particular claim. In that case, which involved an attempt to
monopolize claim, we considered a district court’s denial of discovery concerning
the defendant’s sales of conduit benders in light of the court’s finding that the
14
relevant market for the antitrust claims in that case was the market for cable
benders. We affirmed the denial of discovery, reasoning that a showing of market
power in the cable bender market did not show market power in the relevant
market of conduit benders. Id. at 1043. In particular, we noted that this was true
because the plaintiff had provided “[n]o proof of any connection between
Greenlee’s conduct in the conduit bender market and that in the cable bender
market.” Id. Therefore, we held that a defendant’s market share in a market other
than the alleged relevant market is irrelevant, and cannot be imputed, at least
absent a showing of some “connection” between two different markets that would
provide a basis for such an imputation.
We have not been alone in reaching that conclusion. In Intergraph Corp. v.
Intel Corp., 195 F.3d 1346 (Fed. Cir. 1999), the Federal Circuit considered a
monopolization claim brought by Intergraph against its supplier Intel, a business
with a high market share in the market for high performance computer
microprocessors. Intergraph alleged in that case that the relevant market for its
antitrust claim was the “graphics subsystems” market, a market in which
Intergraph and Intel were competitors, but in which neither Intel nor Intergraph had
market power. Id. at 1354. In rejecting Intergraph’s claim that Intel’s role in the
microprocessor market supported its claim of monopolization in the graphics
15
subsystem market, the court stated:
Intel’s market power in the microprocessor market is irrelevant to the
issues of this case, all of which relate to the effect of Intel’s actions on
Intergraph’s position in its own markets.
Id. Therefore, the Federal Circuit also declined to impute market share from one
market to another for purposes of determining whether a defendant had market
power in the second market.
While urging us to accept its position that Anheuser-Busch’s market share in
the beer market should be imputed to the alleged relevant market for the purchase
and sale of equity ownership interests in beer distributorships, Maris primarily
relies on two cases – the Supreme Court’s opinion in Continental T.V., Inc. v. GTE
Sylvania, Inc., 433 U.S. 36, 97 S. Ct. 2549 (1977), and our decision in Graphic
Products Distributors v. Itex Corp., 717 F.2d 1560 (11th Cir. 1983). Sylvania is
the Supreme Court’s seminal case concerning vertical, non-price restraints. In that
case, the Supreme Court noted as background that:
The traditional framework of analysis under § 1 of the Sherman Act is
familiar and does not require extended discussion. Section 1 prohibits
“[e]very contract, combination . . ., or conspiracy, in restraint of trade
or commerce.” Since the early years of this century a judicial gloss on
this statutory language has established the “rule of reason” as the
prevailing standard of analysis. Standard Oil Co. v. United States, 221
U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911). Under this rule, the
factfinder weighs all of the circumstances of a case in deciding
whether a restrictive practice should be prohibited as imposing an
unreasonable restraint on competition.
16
Sylvania, 433 U.S. at 49, 97 S. Ct. at 2557. The Supreme Court then went on to
explain that “[t]he market impact of vertical restrictions is complex because of
their potential for a simultaneous reduction of intrabrand competition and
stimulation of interbrand competition,” and that even though such restrictions may
reduce intrabrand competition, “[v]ertical restrictions promote interbrand
competition by allowing the manufacturer to achieve certain efficiencies in the
distribution of his products.” Id. at 51-54, 97 S. Ct at 2558-60. Therefore, the
Court held that non-price, vertical restraints are subject to analysis under the rule of
reason, rather than to per se treatment. Id. at 57-59, 97 S. Ct. at 2561-62.
Maris argues that Sylvania supports its position that Anheuser-Busch’s
market share in the manufacture and sale of beer could show market power over
the alleged relevant market for the purchase and sale of equity ownership interests
in distributorships because it maintains that Sylvania indicates that it is a
manufacturer’s market share in manufacturing that is relevant in judging a vertical
restraint. Maris notes that the Supreme Court spoke in terms of the defendant’s
market share in sales of the manufacturer’s end-products. See id. at 38, 97 S. Ct. at
2551 (noting that defendant’s market share in sales of televisions increased from 1-
2% to 5% following imposition of vertical restraint).
We believe that the difference between Sylvania and the instant case is
17
patent and significant. The relevant market involved in Sylvania was the market
for television sets. Therefore, of course the defendant’s market share in the
manufacture and sale of those products was directly relevant to the issue of
whether it had market power in the relevant market. Nothing in Sylvania offers
any support, however, for the notion urged by Maris that in the case of a restraint
imposed by a manufacturer on its distributors, market share may be imputed from
one market (i.e., beer) to another market (i.e., equity ownership interests in
distributorships) in order to determine whether the defendant has market power in
the second market.
We find equally unavailing Maris’s reliance on our decision in Graphic
Products Distributors v. Itex Corp., 717 F.2d 1560 (11th Cir. 1983). In that case,
we also dealt with a claim concerning non-price, vertical restraints, in the form of
territorial restrictions on distributors, and stated that “Sylvania places the
competitive effect of particular vertical restraints at the center of the analysis under
the rule of reason.” Id. at 1568. We noted that as a threshold matter under the rule
of reason, a plaintiff must establish that the defendant had market power in a well-
defined relevant market, and that “[m]arket power is the ability to raise price
significantly above the competitive level without losing all of one’s business.” Id.
at 1568-70. We also recognized that “[m]arket share is frequently used in litigation
18
as a surrogate for market power.” Id. 1570.
As Maris points out, in Graphic Products, we did talk in terms of the
defendant’s market share in the manufacture or sale of the end-products. Id. at
1570-71. However, as was the case in Sylvania, that was because the defined
relevant market was the market for those end-products. Therefore, here again, this
case does not provide any basis for imputing market power from one relevant
market to another.5
5
It is true that Sylvania and Graphic Products do suggest that a
manufacturer’s market power in the end-product market does have an influence on
the typical vertical restraint analysis. In the typical vertical restraint case, a
plaintiff would prove that the defendant had market power in the relevant
geographic and product market, and the relevant product market would usually
consist primarily of the market for the manufacturer’s end-product (which in this
case would have been beer). The plaintiff would then prove anticompetitive
effects in that market. Finally, there would have to be a systematic comparison of
the negative effects which the challenged vertical restraint had on intrabrand
competition in the market for the product with the positive effects of the restraint
on competition in the interbrand market. Graphic Products, 717 F.2d at 1569-71.
Sylvania and Graphic Products suggest that a manufacturer’s market power in the
end-product market has an influence on the typical vertical restraint analysis for the
following reason. If a manufacturer with no market power imposed vertical
restraints which increased the price of the end-product, then the manufacturer
would necessarily experience a reduction in sales because consumers would
substitute the lower priced products of its competitors. Thus the intrabrand
restraint would have little effect on overall competition. Graphic Products, 717
F.2d at 1568-69 and n.11.
In this case, Maris did not pursue a typical vertical restraint claim. It did not
claim an unreasonable restraint of trade with respect to the end-product, beer.
Apparently concluding that it would not be able to show anticompetitive effects or
19
In an attempt to provide the type of “connection” that would justify the
imputation of Anheuser-Busch’s market share in the beer market to the market for
distributorships, Maris alludes to economic literature bearing on this question.
Maris states that its experts relied on “economic literature on vertical restraints
which supports the determination of the defendant manufacturer’s market power
based on its market share in manufacturing.” Maris’s Opening Br., at p. 46. Other
than the conclusory assertion of its experts, Maris provides no economic rationale
suggesting that Anheuser-Busch’s alleged market power in the beer market should
endow it with power in the different market for the purchase and sale of equity
ownership interests in beer distributorships. As Anheuser-Busch points out,
Maris’s expert testified that he could not identify a single non-price vertical
restraint case in which a court had imputed market power from an entirely different
market.
We have carefully reviewed Maris’s arguments and its experts’ reports. We
would not be able to show an unreasonable restraint of trade with respect to beer,
Maris instead pursued a more atypical claim of restraint of trade in the different
market of equity ownership interests in beer distributorships. The fact that
Sylvania and Graphic Products suggest that market power with respect to the end-
product has influence on the typical vertical restraint case, in which the relevant
product market is the end-product, says little with respect to the very different
question in this case of whether Anheuser-Busch’s alleged market power in the
end-product market for beer should be equated with market power in the different
relevant market for equity ownership interests in beer distributorships.
20
conclude that Maris has not identified a valid economic reason why Anheuser-
Busch’s alleged market power in the beer market should create market power in the
different market for the purchase and sale of equity ownership interests in beer
distributorships. We also pressed Maris at oral argument in this regard, to no
avail.6
The relevant market share evidence reveals that Anheuser-Busch possesses
only one to three percent of the alleged relevant markets. Under these
circumstances, it is clear that Anheuser-Busch’s market share in the relevant
market is inadequate, standing alone, to permit a finding of market power. See
Retina Assocs. v. Southern Baptist Hospital of Fla., Inc., 105 F.3d 1376, 1834
(11th Cir. 1997) (holding that the defendants’ 15% market share in the relevant
market was insufficient as a matter of law to show market power for purposes of a
§1 claim); L.A.P.D., Inc. v. General Electric Corp., 132 F.3d 402, 405 (11th Cir.
1997) (noting in context of § 1 claim that “[a] 5% or 10% or 15% share of a normal
market . . . does not imply power to raise prices by curtailing output”). Therefore,
unless Maris could show some other basis which would have permitted the jury to
6
Both Maris and its experts do refer to Anheuser-Busch’s contract power
with respect to the distributors of Anheuser-Busch products. For the reasons
indicated below, infra at Part III.A.3, we conclude that Anheuser-Busch’s contract
power does not give it market power.
21
find that Anheuser-Busch possessed market power in the relevant market, then the
district court properly entered a directed verdict on this issue. We turn to Maris’s
efforts to make such a showing.
2. Aggregation of Market Share
In its second attempt to show that the district court erred by directing a
verdict on the market power issue, Maris argues that even if we reject its argument
that Anheuser-Busch’s market share in the beer market may be imputed to the
relevant market in this case, as we have, then we should still find that Anheuser-
Busch had sufficient market share to show market power because we should
aggregate the market share of all parties subject to Anheuser-Busch’s distribution
agreements containing the public ownership restriction. This approach would yield
a market share somewhere around 48% in the market of ownership interests in beer
distributors, and 100% of the submarket of Anheuser-Busch beer distributorships.
We conclude that aggregation is inappropriate for purposes of assessing Anheuser-
Busch’s market share in the type of case before us.
In support of its aggregation argument, Maris primarily relies on the Fifth
Circuit’s opinion in Spectators’ Communications Network, Inc. v. Colonial
Country Club, 231 F.3d 1005 (5th Cir. 2000). In that case, the plaintiff sued one
member of an alleged conspiracy to boycott the plaintiff. The district court found
22
that the defendant, who coincidentally was Anheuser-Busch, could not be held
liable under § 1 because it individually did not have market power. Id. at 1014.
The Fifth Circuit reversed after finding that the market share of all of the co-
conspirators should have been aggregated in order to determine whether market
power was present, and stated:
[A]fter all, the reason for looking at market power is to determine
whether the combination or conspiracy, not each individual
conspirator, has the power to hurt competition in the relevant market.
Id. at 1014.
We conclude that Spectators is inapposite in that it deals with a conspiracy
to boycott a business, rather than a vertical restraint imposed by a manufacturer on
its distributors. If we were to aggregate the market share of all of Anheuser-
Busch’s distributors here, that would mean that aggregation of market share would
always be required when reviewing vertical restraints. This approach would lose
track of the fact that the vertical restriction was imposed by a single manufacturer
seeking to regulate its distributors. Requiring aggregation also would make it
much more difficult for any manufacturer with a significant market share in the
market for its products to agree with its distributors with respect to vertical
restrictions – which we know can be pro-competitive. When plaintiffs are able to
show that a manufacturer’s product constitutes a relevant submarket then
23
aggregation would yield a market share of 100%. We also believe that aggregation
under these circumstances could threaten many franchise agreements, exclusive
dealing agreements, and other arrangements traditionally reviewed under the rule
of reason, by making market power seem to appear where it does not really exist.
But we need not concern ourselves with aggregation in the context of
vertical restraints in general, the particular vertical restraint in the instant case is
one that would appear to be of interest only to Anheuser-Busch. Maris has pointed
to no evidence that other distributors have sought to prevent Maris from selling to
a publically owned entity. Nor has Maris suggested any reason why other
distributors might want to do so. Unlike Spectators, there is no agreement or
conspiracy here that all Anheuser-Busch distributors will refuse to deal with Maris;
no Anheuser-Busch distributor has agreed to do anything, or refrain from doing
anything with respect to Maris. Instead, the agreement at issue only involves
Maris and Anheuser-Busch.
We hold that it is not appropriate to aggregate Anheuser-Busch’s market
share with that of its distributors when determining whether Anheuser-Busch has
market power in the relevant product market for equity ownership interests in beer
distributorships for purposes of assessing a claim that the ban on public ownership
constitutes an illegal vertical restraint.
24
3. Contract Power Versus Market Power
Finally, Maris argues that the directed verdict was improper because the
district court based part of its reasoning on the fact that Anheuser-Busch’s actions
were an exercise in contract power, rather than in market power. Maris notes that
§1 claims always involve a contract or agreement, but that fact does not insulate
them from antitrust liability. Maris contends that the exercise of contract power,
particularly where a plaintiff is “locked in” to the defendant’s product or business,
may violate the antitrust laws. Although Maris’s argument has some intuitive
appeal, in that Anheuser-Busch clearly had some power over Maris and its other
distributors by virtue of the contractual provisions in its distribution agreements,
we find the cases relied upon by Maris distinguishable, and agree with the district
court that Anheuser-Busch’s exercise of its contract power over Maris did not
show that Anheuser-Busch had market power in the relevant market.
We begin by noting what the relevant question before us is not. It is not
whether the exercise of contract power can be an antitrust violation. Contracts, and
the exercise of contract power, may run afoul of the antitrust laws, as evidenced by
the fact that §1 of the Sherman Act prohibits any “contract, combination . . ., or
conspiracy, in restraint of trade.” 15 U.S.C. §1 (emphasis added). Therefore, if the
district court had held that Anheuser-Busch had not violated the antitrust laws
25
simply because its actions were pursuant to a contract, that would have been
incorrect. Anticompetitive actions are not immunized by virtue of being
memorialized in a contract.
The more interesting issue, and the one we think the district court was
addressing when it spoke of contract power, is the relationship between contract
power and market power. We believe, for the reasons that we discuss below, that
the district court correctly recognized that, while a party who exercises contract
power may have market power and may violate the antitrust laws under some
circumstances, the mere existence and exercise of contract power does not show
that a defendant had market power or violated the law. In other words, courts must
attempt to ascertain a defendant’s economic position in the relevant market, rather
than its power pursuant to a particular contract, when considering whether a
defendant has market power.
In arguing that the district court erred with respect to the contract power
issue, Maris begins by pointing to the Supreme Court’s decision in Eastman Kodak
v. Image Technical Servs., 504 U.S. 481, 112 S. Ct. 2072 (1992), the relevant part
of which involved a tying claim. Although Kodak does not address the issue of
when the exercise of contract power should be viewed as market power, it does
address issues of market definition and market power in a context in which a
26
plaintiff is “locked in” to a relationship with a defendant. In Kodak, the plaintiffs
had established triable issues of fact concerning the existence of a tying
arrangement – i.e., whether Kodak parts and service for Kodak photocopy and
micrographic equipment were distinct products subject to a tying analysis. Id. at
462-64, 112 S. Ct. at 2080. The Court noted that there was sufficient evidence that
consumers viewed parts and service as separate products. Id. The Court also
noted that parts for Kodak equipment were unique and were not interchangeable
with other manufacturers’ parts because only Kodak parts would work on Kodak
machines. Id. at 456-57, 112 S. Ct. at 2077. Because of these factors, the
Supreme Court held that a jury could find a tying arrangement between Kodak
parts (the tying product), and Kodak service (the tied product). Id. at 463-64, 112
S. Ct. at 2080.
The Court then proceeded to consider whether there was sufficient evidence
that Kodak had market power in the market for Kodak parts such that it could
force unwanted purchases of the tied product (service for Kodak machines). Id. at
464, 112 S. Ct. at 2081. Kodak defended, arguing that the brisk competition in the
original market for the photocopy and micrographic equipment would prevent it
from having market power in the aftermarkets for service and parts, even though it
had a dominant share of those markets – nearly 100% of the market for Kodak
27
parts. Id. at 465-68, 112 S. Ct. at 2081-83. Kodak argued that any attempt by it to
charge supracompetitive prices for service or parts would inevitably lead to a
reduction in sales of Kodak equipment because consumers would buy, or switch to,
competing equipment. Id. at 465-66, 112 S. Ct. at 2081-82. Among the factors
undermining this argument by Kodak, the Supreme Court pointed to the heavy
initial cost for Kodak equipment. Id. at 476-77, 112 S. Ct. at 2087. The Court
concluded that this high “switching cost” served to “lock in” existing customers,
inhibiting their taking advantage of the brisk competition in the equipment market
by switching to competitors’ equipment. Id.
Maris argues that the same is true when a plaintiff, such as itself, is “locked
in” by a distribution agreement with a manufacturer. Therefore, Maris urges us to
find that this “lock-in” gave Anheuser Busch market power.
In addition to Kodak, Maris also seeks support from a case in which a
franchisee brought antitrust claims against a franchisor challenging a provision in
the franchise agreement, and a district court in our circuit found that the exercise of
rights under a contract may run afoul of the antitrust laws. See Collins v. Int’l.
Dairy Queen, Inc., 939 F. Supp. 875 (M.D. Ga. 1996). In that case, the court
considered a tying claim brought by a franchisee, alleging that Dairy Queen’s
requirement that food and supplies be purchased from it constituted an unlawful
28
tying arrangement. Dairy Queen argued that it could not be held liable for tying
because the restraint was simply part of the franchise agreement and that any
power over the franchisee resulted from that agreement rather than market power.
Id. at 883. The district court rejected this argument, relying on a variation of the
“lock-in” concept from the Kodak decision:
Plaintiffs have shown that Dairy Queen franchisees make significant
initial investments in their franchises, which also provide them the
option to open additional stores without paying another franchise fee.
In addition, IDQ/ADQ can terminate or refuse to renew a franchise
agreement if a franchisee fails to carry the full authorized menu of
food products or does not meet quality standards. Because of the
excessive costs and potential losses associated with purchasing
another franchise, a Dairy Queen franchisee wishing to obtain
products and supplies from alternative sources at lower costs may be
locked in to the existing arrangement enjoyed by IDQ/ADQ. Based
upon these cases, the court finds that plaintiffs have produced
sufficient evidence of economic loss, overpriced products, and refusal
to consider alternative sources of comparable products to preclude the
entry of partial summary judgment based on the existence of a
franchisor-franchisee relationship.
Id. at 883. Therefore, the court held that the franchisee might have a viable claim
against the franchisor, even though the restriction of which it complained was
contained in the franchise agreement to which it had agreed.
In tension with the district court’s holding in Collins, several of our sister
circuits have cautioned against placing too much weight on the existence of
contract power when defining relevant markets and determining whether
29
defendants possess market power. In a case involving facts similar to those in
Collins, the Third Circuit reached a different result. See Queen City Pizza, Inc. v.
Domino’s Pizza, Inc., 124 F.3d 430 (3d Cir. 1997). In Queen City the court
considered a §2 monopoly claim brought by a franchisee against a franchisor
related to a requirement in the franchise agreement that the franchisee only
purchase from the franchisor or approved suppliers. The franchisor, Domino’s,
argued that its:
[P]ower to force plaintiffs to purchase ingredients and supplies from
them stemmed not from the unique nature of the product or from its
market share in the fast food franchise business, but from the
franchise agreement. For that reason, plaintiffs’ claims implicate
principles of contract, and are not the concern of the antitrust laws.
Id. at 435 (citations and quotations omitted). The district court agreed and
dismissed the plaintiffs’ claim.
The Third Circuit agreed that the exercise of contract power resulting from
the provisions of a franchise agreement did not raise antitrust concerns and that the
franchisee failed to state a valid, relevant product market when it limited the
alleged relevant market to parties who had entered into Domino’s franchise
agreements. Id. at 438. The court stated:7
7
For the same reasons, the Queen City court rejected the plaintiff’s definition
of the relevant product market for the alleged tying product, thus rejecting the
plaintiffs’ tying claim. Id. at 442-43.
30
A court making a relevant market determination looks not to the
contractual restraints assumed by a particular plaintiff when
determining whether a product is interchangeable, but to the uses to
which the product is put by consumers in general. Thus, the relevant
inquiry here is not whether a Domino’s franchisee may reasonably use
both approved or non-approved products interchangeably without
triggering liability for breach of contract, but whether pizza makers in
general might use such products interchangeably. Clearly, they could.
Were we to adopt plaintiffs’ position that contractual restraints render
otherwise identical products non-interchangeable for purposes of
relevant market definition, any exclusive dealing arrangement, output
or requirement contract, or franchise tying agreement would support a
claim for violation of antitrust laws. Perhaps for this reason, no court
has defined a relevant product market with reference to the particular
contractual restraints of the plaintiff.
Id. In this regard, the Third Circuit also rejected a “lock-in” argument derived
from Kodak, noting that the challenged provision in the franchise agreement was
part of the deal when the franchisee entered the agreement, and holding that the
crucial fact driving the determination of the relevant product market was that
Domino’s-approved supplies and ingredients were fully interchangeable with
substitutes from other pizza suppliers. Id. at 439-40. The court recognized that
contracts always restrain and affect a party’s available choices, but that for
purposes of determining a relevant product market, a court looks not to contractual
restraints on a particular consumer, but rather to the uses to which the product is
put by consumers in general and whether there are interchangeable substitutes.
The Fifth Circuit also took this approach when faced with a similar claim in
31
United Farmers Agents Assoc., Inc. v. Farmers Ins. Exchange, 89 F.3d 233 (5th
Cir. 1996). The court stated that “[e]conomic power derived from contractual
agreements such as franchises or in this case, the agents’ contract with Farmers,
‘has nothing to do with market power, ultimate consumers’ welfare, or antitrust.’”
Id. at 236. The court looked for the insurance company’s market share in the
market for insurance, rather than in a more specific market related to services
required for the company’s agents. Id. at 237.
Likewise, in Hack v. President and Fellows of Yale College, 237 F.3d 81 (2d
Cir. 2000), the Second Circuit considered this issue in the context of a
monopolization claim brought by students against their college based on the
college’s requirement that the students live in dormitories for their freshman and
sophomore years. Citing Queen City, the court rejected the plaintiffs’ market
definition and affirmed dismissal of the claim, holding: “Economic power derived
from contractual arrangements affecting a distinct class of consumers cannot serve
as a basis for a monopolization claim.” Id. at 85. Accord Double D Spotting
Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 560-61 (8th Cir. 1998) (holding that
market defined by one contract was not relevant market for antitrust purposes).
We agree with the approach taken by our sister circuits on this issue, and
conclude that the district court correctly distinguished between contract power and
32
market power in determining that Anheuser-Busch was entitled to a directed
verdict as to part of Maris’s claim.8 The fact that Anheuser-Busch had
considerable power over many aspects of Maris’s business by virtue of the
provisions of the contract to which they agreed (at least 3 separate times) reveals
little about the issue of whether Anheuser-Busch had market power in the broader,
relevant market for the purchase and sale of equity ownership interests in beer
distributorships. And there is no reason for us to believe that Anheuser-Busch’s
decision to exercise its rights under that agreement also were exercises of market
power.
Our conclusion is consistent with the decision of the former Fifth Circuit in
Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690 (5th Cir. 1975).9 In that case,
a beer distributor brought a §1 Sherman Act claim challenging, among other
things, the manufacturer’s right to restrain the price at which the distributor could
sell his distributorship. Id. at 693. We concluded that the district court erred by
instructing the jury that it would be a per se violation of the antitrust laws for the
8
Likewise, we conclude that the district court did not abuse its discretion by
excluding certain evidence related to the market power issue.
9
In Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all of the decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981. Id. at
1209.
33
manufacturer to dictate the sale price of the plaintiff’s distributorship. Id. at 695.
We held that any such restriction was subject to rule of reason review, and noted
that “[i]t is beyond question . . . that [a manufacturer] may legitimately restrict the
class of persons with whom it would agree to continue a . . . franchise, so long as
such restriction was not artificially employed to further some unlawful practice.”
Id. at 696. Based on this right, the Court continued:
It logically follows that Falstaff has a right to restrict the sales price of
one of its distributorship franchises to the reasonable value of that
franchise in order to insure that the purchaser will have a chance to
realize a reasonable return on his investment. Falstaff clearly has a
strong interest in the financial vitality of a new franchisee. If the
purchaser of a franchise makes a bad bargain when he buys, then he
cannot give the distributorship the solid, concerned management
which it must have to be successful for him and to enhance Falstaff’s
image and relative position in the market.
Id. We also noted that this recognition of a manufacturer’s interest in the identity
of its distributors and in the transfer of its distributorships had been recognized by
an earlier case in which we had “held that an automobile manufacturer possessed a
limited privilege to approve or disapprove a prospective purchaser since it would
deal with the purchaser in the future and would represent it to the public.” Id.
(citation omitted). Although we did not discuss directly address the issue in
Kestenbaum, it is clear from our discussion that we did not believe that the
defendant’s contractual power under its distribution agreement with the plaintiff
34
yielded market power.
Consistent with the holdings of the Third Circuit in Queen City, and the
Fifth Circuit in United Farmers Agents, we believe that the Supreme Court
decision in Kodak is distinguishable from the instant case. As noted in our
discussion of Kodak above, that opinion did not address at all the issue in this case
– i.e., whether contract power is the equivalent of market power for antitrust
purposes. Moreover, the context of Kodak is entirely different from the instant
context. There is no argument in this case that brisk competition in one market
would prevent a defendant from having market power in another market, despite
the defendant’s dominant share in that market, because consumers would switch to
competitors’ substitute products in the competitive market. Unlike Kodak, Maris
has not adduced “sufficient evidence of a tying arrangement,” coupled with a high
market share in the relevant product market for the tying product. Kodak, 504 U.S.
at 464-65, 112 S. Ct. at 2080-81. Unlike Kodak, the defendant in the instant case
has not defended against an otherwise viable antitrust claim (supported by
sufficient evidence of the defendant’s high market share in the relevant market) by
arguing that market power was lacking, despite its high share of the market,
because of the brisk competition in another market. It was because of this defense
in Kodak that it became relevant whether or not customers could switch to
35
competitors’ equipment. In this context, Anheuser- Busch has made no such
argument that an otherwise viable claim involving a defendant with a large share of
the relevant market is undermined by brisk competition in some other market.
Thus, the instant case does not involve the Kodak issue of whether or not
consumers can switch to a competitor.
Indeed, Maris has never argued, either in the district court or on appeal, that
high switching costs were relevant in the instant case. Nor does he explain how
such costs, even if proved, would be relevant to the issues before us.10 For all these
reasons, we find Maris’s reliance on Kodak to be misplaced.11
10
We do not believe that switching costs – even if the argument had been
presented and even if it were supported by evidence – are relevant to the issues
before us. It may be that a distributor’s ability to switch readily to another beer
manufacturer (e.g. Miller or Coor’s) might have offset the force of a viable
antitrust claim supported by evidence of market power in the chosen relevant
product submarket of ownership interests in Anheuser-Busch beer distributorships.
However, that issue was never reached in the instant case because Maris failed to
establish market power in the chosen relevant product markets and failed to
establish any actual anticompetitive effect in those markets. Thus, Maris’s claim
failed without regard to whether or not there might have been high switching costs.
11
It also appears that the context in which the district court in Collins
invoked the Kodak concept of consumers being “locked in” by switching costs was
a context more similar to Kodak than the context of the instant case. The
franchisee in Collins had already established that the defendant had a large share of
the market for the tying product; Dairy Queen enjoyed a 91% market share of the
relevant product market of soft-serve ice cream. Indeed, the franchisee had
adduced sufficient evidence to avoid summary judgment with respect to all of the
elements of the tying claim, including market power in the tying product and
36
For the foregoing reasons, we follow the rationale of the Third Circuit in
Queen City and its progeny. We would be reluctant to adopt Maris’s assertion that
contract power should automatically be equated with market power. To do so
would radically transform the accepted rule of reason analysis applicable to
vertical restraints. Maris’s theory would place significant additional risks on such
legitimate business practices as exclusive dealing arrangements, output contracts
and franchise tying agreements. See Queen City, 124 F.3d at 438 (“Were we to
adopt plaintiff’s position that contractual restraints render otherwise identical
products non-interchangeable for purposes of relevant market definition, any
exclusive dealing arrangement, output or requirement contract, or franchise tying
including substantial evidence of supracompetitive prices in the tied products and
other evidence of coercion and anticompetitive effects. In defense, Dairy Queen
relied upon Queen City “as authority for the proposition that an illegal tying
arrangement cannot exist as a matter of law between a franchisor and its existing
franchisees.” Collins, 939 F. Supp. at 883. Although it is not absolutely clear
from the opinion, Dairy Queen’s argument apparently was an attempt to avoid
having the case sent to the jury by asserting that the franchisee could always switch
franchises and do business with another franchisor. Thus, it seems probable that
the context in which the Collins court invoked the “lock-in” concept from Kodak
was the same context involved in Kodak itself, and a very different context from
the one in the instant case. In any event, it is clear that the Collins court did not
expressly address or reject the issue which is crucial for the instant case, i.e.,
whether contract power equates to market power for antitrust purposes. However,
to the extent that Collins supports the proposition that contract power is equated to
market power for antitrust purposes, we reject Collins in favor of what we consider
to be the more persuasive rationale of Queen City and its progeny.
37
agreement would support a claim for violation of antitrust laws.”). Therefore, we
affirm the district court’s directed verdict in favor of Anheuser-Busch on the issue
of market power.
B. The District Court’s Costs Award
Finally, Maris argues that the district court erred by awarding costs related to
certain depositions taken by Anheuser-Busch that were not used at trial, and for
costs associated with receiving expedited, daily transcripts of the trial proceedings.
The district court held that the deposition costs should be taxed because all of the
people Anheuser-Busch deposed had been identified by Maris on its witness list,
and the depositions consequently were “taken within the proper bounds of
discovery” and were necessary in light of the facts known to Anheuser-Busch at
the time. With respect to the cost of expedited transcripts, the district court stated:
According to the Defendant, such transcripts were necessary to the
preparation of a defense, including witness examination, jury
instructions, and closing arguments. The Defendant further contends
that the transcripts were necessary to preserve oral rulings made by
the Court and were indispensable because of the length and
complexity of the case. The Court agrees that this was a lengthy and
complex trial, and objections to the taxation of costs for expedited
transcripts and trial transcripts are due to be overruled.
As we will explain, we conclude that the district court did not abuse its discretion
in awarding the costs that it did.
We have recognized that we “will not disturb a costs award in the absence of
38
a clear abuse of discretion.” Technical Resource Servs. v. Dornier Medical Sys.,
134 F.3d 1458, 1468 (11th Cir. 1998). But the Supreme Court has held that a
district court abuses its discretion if it awards costs pursuant to Fed. R. Civ. P. 54
in excess of those permitted by Congress under 28 U.S.C. §1920. Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494 (1987). Expenses for “the
stenographic transcript necessarily obtained for use in the case” are permitted by
§1920.
Although some courts have not permitted the recovery of deposition costs
where the depositions are for discovery, rather than for use in the case, see Hall v.
Ohio Education Assoc., 984 F. Supp. 1144, 1146 (S. D. Ohio 1997), we have held
that “[t]axation of deposition costs of witnesses on the losing party’s witness list is
reasonable because the listing of those witnesses indicated both that the plaintiff
might need the deposition transcripts to cross-examine the witnesses, . . . and that
the information those people had on the subject matter was not so irrelevant or so
unimportant that their depositions were outside the bound of discovery.” EEOC v.
W & O, Inc., 213 F.3d 600, 621 (11th Cir. 2000). Therefore, because all of the
depositions of which Maris complains were taken of people on Maris’s witness list,
the district court did not abuse its discretion by awarding these deposition-related
costs.
39
Whether the costs for the expedited transcripts were properly taxed presents
a closer question. In In re Nissan Antitrust Litigation, 577 F.2d 910 (5th Cir.
1978), our predecessor Court found that a district court had abused its discretion by
permitting such costs, stating:
As an individual portion of the costs, the trial court awarded costs for
an expedited “daily” transcript requested solely by the defendants and
to which the plaintiffs had not agreed. This additional expense was
for the convenience of the defendants and was, by no means,
indispensable. Therefore, this award was an abuse of discretion.
Id. at 918. See also Pan American Grain Manufacturing Co. v. Puerto Rico Ports
Authority, 193 F.R.D. 26, 34 (D.P.R. 2000) (district court in Puerto Rico holding
that the additional costs for an expedited transcript should not be permitted where a
party “had ample representation during trial, and their attorneys could have taken
day-to-day notes on the proceedings”). However, in reaching our conclusion in
Nissan, we did not hold that the costs associated with expedited transcripts could
never be deemed “necessary” by a district court. To the contrary, we expressly
noted that expedited transcripts were not indispensable in that case.
Although we do not believe that the costs associated with expedited trial
transcripts should be allowed as a matter of course, lest litigation costs be
unnecessarily increased, the district court found that expedited transcripts were
necessary in this case given its length and complexity. Under the circumstances,
40
we cannot say that the district court clearly abused its discretion by reaching this
conclusion.
IV. CONCLUSION
For the reasons explained above, we conclude that the district court did not
err in granting a directed verdict in Anheuser-Busch’s favor on the issue of market
power, that the district court did not abuse its discretion in awarding the costs that
it did, and that the district court in all other respects is due to be affirmed.
AFFIRMED.
41