06-4908
Port Dock v. Oldcastle
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006
(Argued: June 14, 2007 Decided: October 23, 2007)
Docket No. 06-4908-cv
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PORT DOCK & STONE CORPORATION,
GOTHAM SAND & STONE CORP. and
PORT DOCK HOLDINGS CORP.,
Plaintiffs-Appellants,
-- v. --
OLDCASTLE NORTHEAST, INC., CRH GROUP,
PLC AND TILCON INC.,
Defendants-Appellees.
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B e f o r e: LEVAL, CALABRESI, and JOHN R. GIBSON,* Circuit
Judges.
Appeal from a final judgment of the United States District
Court for the Eastern District of New York (Denis R. Hurley,
Judge), granting motion to dismiss the complaint for failure to
state a claim on which relief can be granted. We affirm.
WILLIAM G. KOPIT
JOHN R. SACHS, JR.,
Epstein Becker & Green, P.C., New York,
New York, for Plaintiffs-Appellants
*
The Honorable John R. Gibson, Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
JOHN R. FORNACIARI, ESQ.
Sheppard, Mullin, Richter & Hampton,
LLP, Washington, D.C., for Defendants-
Appellees
JOHN R. GIBSON, Circuit Judge.
Port Dock Holdings Corp., and its two subsidiaries, Port
Dock & Stone Corp. and Gotham Sand & Stone Corp. (whom we will
refer to collectively as Port Dock), appeal from the district
court's dismissal of their antitrust claim against their
erstwhile suppliers CRH, PLC, Oldcastle Northeast, Inc., and
Tilcon, Inc. (known collectively as Tilcon).1 Port Dock & Stone
Corp. v. Oldcastle Northeast, Inc., No. 05 Civ. 4292 (DRH) (ARL),
2006 WL 2786882 (E.D.N.Y. Sept. 26, 2006). Port Dock alleged
that Tilcon monopolized the market for manufacturing crushed
stone, or "aggregate," by buying out its only significant
manufacturing competitor, Lone Star Industries. Before the Lone
Star buyout, Port Dock bought aggregate from Tilcon and
distributed it; after the buyout, Port Dock alleges that Tilcon
refused to sell aggregate to Port Dock, thus depriving Port Dock
of any source of supply and coercing it to sell its assets to
1
The complaint alleges that Tilcon is a subsidiary of
Oldcastle, which is a subsidiary of CRH. The defendants contend
that Oldcastle was never served with a complaint, has therefore
never made an appearance in this action, and is not a party to
this appeal. Oldcastle joined the motion to dismiss, and the
district court dismissed the complaint as to all defendants.
Oldcastle does not move to dismiss this appeal, and in view of
our affirmance of the dismissal, we need not belabor the point.
2
Tilcon at a sacrifice. The district court held that Port Dock
did not show that it had suffered an antitrust injury. We
affirm.
Because this case was decided on the pleadings, we take the
facts as stated in the complaint. Tilcon and its predecessor
owned quarries and were in the business of producing aggregate.
Port Dock acted as a distributor, buying its aggregate from
Tilcon and Tilcon's predecessor and reselling in Long Island and
the New York metropolitan area. According to the complaint, by
the 1980s, Tilcon produced about 85% of the supply of aggregate
in the market area, with only one significant competitor, New
York Trap Rock, which had about 10% of the market share. The
complaint alleged that in this two-supplier market, Tilcon
attempted to raise prices unilaterally in 1988, but was forced to
rescind when New York Trap Rock did not follow suit. Even though
Port Dock was Tilcon's largest customer, in the early 1990s
Tilcon sought to compete with Port Dock in the distribution
market by soliciting Port Dock's customers and selling them
aggregate at prices below Tilcon's actual cost. In 1997, Tilcon
acquired New York Trap Rock's parent company, Lone Star
Industries, and so captured Port Dock's only alternative source
of supply. In 1999, Tilcon announced that it would no longer
sell aggregate to Port Dock. Tilcon proposed to purchase Port
Dock's assets; because Port Dock had no alternative source of
3
supply, it had no choice but to sell on Tilcon's terms, at a
sacrifice price. Within weeks of closing the purchase of Port
Dock's assets, Tilcon raised prices to its customers. Port Dock
filed for bankruptcy in 2003.
Port Dock filed this antitrust complaint in September 2005,
alleging (1) that Tilcon had attempted to monopolize the
"relevant market" in violation of section 2 of the Sherman Act2;
(2) that Tilcon had in fact monopolized the market; and (3) that
Tilcon had unlawfully acquired businesses with the effect of
substantially limiting competition and tending to create a
monopoly in violation of section 7 of the Clayton Act.3 Port
2
Section 2 of the Sherman Act, 15 U.S.C. § 2, provides:
Every 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, or with foreign
nations, shall be deemed guilty of a felony, and, on
conviction thereof, shall be punished by fine not
exceeding $100,000,000 if a corporation, or, if any
other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the
discretion of the court.
3
Section 7 of the Clayton Act, 15 U.S.C. § 18, provides:
No person engaged in commerce or in any activity
affecting commerce shall acquire, directly or
indirectly, the whole or any part of the stock or other
share capital and no person subject to the jurisdiction
of the Federal Trade Commission shall acquire the whole
or any part of the assets of another person engaged
also in commerce or in any activity affecting commerce,
where in any line of commerce or in any activity
affecting commerce in any section of the country, the
effect of such acquisition may be substantially to
4
Dock also alleged state law claims for tortious interference with
business relations and unfair competition. Port Dock defines the
relevant product market as the market for aggregate for use in
the construction, paving, and concrete manufacturing industries,
and the relevant geographic market as Long Island and the New
York City metropolitan area, as well as counties in northern New
Jersey.4
Tilcon moved to dismiss for failure to state a claim. The
district court held that Port Dock had not pleaded an antitrust
injury because its injury resulted from Tilcon's vertical
integration into the distribution market, rather than from
Tilcon's acquisition of its competitor in the manufacturing
lessen competition, or to tend to create a monopoly.
No person shall acquire, directly or indirectly, the
whole or any part of the stock or other share capital
and no person subject to the jurisdiction of the
Federal Trade Commission shall acquire the whole or any
part of the assets of one or more persons engaged in
commerce or in any activity affecting commerce, where
in any line of commerce or in any activity affecting
commerce in any section of the country, the effect of
such acquisition, of such stocks or assets, or of the
use of such stock by the voting or granting of proxies
or otherwise, may be substantially to lessen
competition, or to tend to create a monopoly.
4
Although both in its complaint and in its brief before this
Court Port Dock describes the relevant product market as the
"market for the distribution of aggregate," its factual
allegations extend to monopolization of the market for production
of aggregate as well.
5
market. Port Dock & Stone Corp., 2006 WL 2786882, at *9. The
court also held that Port Dock was not an efficient enforcer of
the antitrust laws because Port Dock was not a participant in the
market allegedly monopolized. Id. at *10. Having dismissed the
federal claims, the court declined to exercise supplemental
jurisdiction over the state law claims and so dismissed those as
well. Id.
We review the district court's dismissal of a complaint
under Fed. R. Civ. P. 12(b)(6) de novo, taking as true the
factual allegations of the complaint, but giving no effect to
legal conclusions couched as factual allegations. Bell Atl.
Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). The
plaintiff's factual allegations must be enough to give the
defendant fair notice of what the claim is and the grounds upon
which it rests. Id. In last term's Twombly decision, itself an
antitrust case, the Supreme Court held that a complaint must
allege facts that are not merely consistent with the conclusion
that the defendant violated the law, but which actively and
plausibly suggest that conclusion. Id. at 1966; see Iqbal v.
Hasty, 490 F.3d 143, 155-58 (2d Cir. 2007) (intepreting Twombly
as instituting a "plausibility standard," requiring amplification
of facts in certain contexts).
On appeal, Port Dock contends that it had antitrust standing
because it was both a customer and competitor in the relevant
6
geographic market for aggregate. Port Dock argues it was
Tilcon's customer at the production level and Tilcon's competitor
at the distribution level. Port Dock argues that by acquiring
Lone Star Industries, Tilcon achieved a monopoly at the
production level, then expanded vertically into the distribution
level and refused to deal with Port Dock. The loss of the only
alternative supplier at the production level rendered Port Dock
utterly dependent on Tilcon, which then cut off Port Dock's
supply of aggregate.
Although Port Dock's substantive claims arise under section
2 of the Sherman Act and section 7 of the Clayton Act, the
private right of action is provided by section 4 of the Clayton
Act, 15 U.S.C. § 15. Section 4 confers standing on private
plaintiffs in sweeping language: "[A]ny person who shall be
injured in his business or property by reason of anything
forbidden in the antitrust laws may sue therefor . . . and shall
recover threefold the damages by him sustained . . . ." Despite
the broad language of the statute, courts have carefully parsed
antitrust standing in order to avoid counter-productive use of
antitrust laws in ways that could harm competition rather than
protecting it. See Serpa Corp. v. McWane, Inc., 199 F.3d 6, 10
(1st Cir. 1999).
Antitrust standing is distinct from constitutional standing,
in which a mere showing of harm in fact will establish the
7
necessary injury. Associated Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 535 n.31 (1983).
In addition to injury in fact to the plaintiff's business or
property caused by the antitrust violation, 15 U.S.C. § 15,
antitrust standing for a private plaintiff requires a showing of
a special kind of "antitrust injury," as well as a showing that
the plaintiff is an "efficient enforcer" to assert a private
antitrust claim. See Associated Gen Contractors, 459 U.S. at
537-45; Paycom Billing Servs., Inc. v. Mastercard Int'l, Inc.,
467 F.3d 283, 290-91 (2d Cir. 2006) (suitability of plaintiff
evaluated by efficient enforcer factors: (1) whether the
violation was a direct or remote cause of the injury; (2) whether
there is an identifiable class of other persons whose self-
interest would normally lead them to sue for the violation; (3)
whether the injury was speculative; and (4) whether there is a
risk that other plaintiffs would be entitled to recover
duplicative damages or that damages would be difficult to
apportion among possible victims of antitrust injury); see
generally 2 Phillip E. Areeda et al., Antitrust Law, ¶ 335 (2d
ed. 2000).
The necessary "antitrust injury" is an injury attributable
to the anticompetitive aspect of the practice under scrutiny.
See Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334
(1990). Showing such an injury requires identifying the practice
8
complained of and the reasons such a practice is or might be
anticompetitive. For instance, in Atlantic Richfield, even where
a retail competitor was actually injured due to the effects of an
illegal vertical agreement among an oil company and its retailers
setting a maximum price for gasoline, the Supreme Court held the
competitor had no antitrust injury. The Court said the reason
vertical maximum price fixing was illegal5 was that it would
restrain non-price competition by the dealers subject to
artificial price caps, preventing the dealers from offering the
kind of service they might otherwise choose to provide and
depriving customers of such superior service. Id. at 336-37.
Competitors who were not bound by the resale price arrangement
were not injured by the anticompetitive aspect of vertical
maximum price fixing, since they could offer superior service if
they liked. Nevertheless, those competitors might in fact be
hurt by the price fixing in another way–they might make less
money because they had to charge lower prices to compete with an
artificially capped price. Id. at 338. Despite their actual
injury from price competition, the competitors would not have
antitrust injury, for it is axiomatic that the antitrust laws do
5
Since Atlantic Richfield, the Supreme Court has abrogated
the per se rule against vertical maximum price fixing, State Oil
Co. v. Khan, 522 U.S. 3, 18 (1997), and later, the per se rule
against vertical minimum price fixing, Leegin Creative Leather
Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2710 (2007). Such
arrangements are now tested under the rule of reason. Khan, 522
U.S. at 22; Leegin, 127 S. Ct. at 2720.
9
not protect a competitor against competition. Id.; see also
Brunswick Corp. v. Pueblo Bowl-o-Mat, Inc., 429 U.S. 477, 488
(1977).
Port Dock argues that it was a customer and a competitor in
the market for aggregate and therefore should have antitrust
standing. However, Port Dock's argument that competitors and
customers have antitrust standing is oversimplified, as we see
from Atlantic Richfield and other cases in which competitors
lacked standing. 495 U.S. at 338; accord Cargill, Inc. v.
Montfort of Colo., Inc., 479 U.S. 104, 122 (1986); Pueblo Bowl-o-
Mat, 429 U.S. at 488; see also Novell, Inc. v. Microsoft Corp.,
— F.3d — , 2007 WL 2984372, at *6-8 (4th Cir. Oct. 15, 2007)
(declining to adopt bright line rule that only consumers or
competitors have antitrust standing). We can ascertain antitrust
injury only by identifying the anticipated anticompetitive effect
of the specific practice at issue and comparing it to the actual
injury the plaintiff alleges.
In this case, Tilcon's alleged anticompetitive practices are
(1) acquisition of its only major competitor, resulting in a
monopoly in the production of aggregate in 1997, followed by (2)
vertical integration into the distribution level and refusal to
deal with Port Dock in 1999, leading to a second Tilcon monopoly
at the distribution level.
First, we must examine the danger to competition to be
10
expected from Tilcon's acquisition of Lone Star for the alleged
purpose of monopolizing production of aggregate and compare it to
Port Dock’s alleged injury. The danger to customers from
monopolization of the production level is the danger that the
monopolist will raise prices and restrict output. "[T]he
rationale for condemning a merger lies in its potential for
supracompetitive pricing, not in its potential for cost savings
and other efficiencies." Fla. Seed Co. v. Monsanto Co., 105 F.3d
1372, 1375 n.3 (11th Cir. 1997) (quoting Phillip Areeda & Herbert
Hovencamp, Antitrust Law ¶ 381 (rev. ed. 1995)). Port Dock,
although it had formerly been a customer of Tilcon's, did not
suffer an injury from increased prices. Indeed, Port Dock's
counsel conceded at oral argument that after the acquisition of
Lone Star, Tilcon did not raise prices to Port Dock.6 Instead,
Port Dock's grievance is that Tilcon refused to sell to it at
all. In other words, Port Dock is a former customer.
6
In fact, counsel asserted at oral argument that the
opposite was true–that Tilcon had cut prices to customers (other
than Port Dock) to below cost. However, examination of the
complaint shows that the one episode of below-cost pricing was
alleged to have occurred in connection with a 1991 dispute
between Tilcon and Port Dock, rather than to have occurred after
Tilcon acquired its production monopoly. After acquiring its
monopoly, Tilcon is alleged to have increased prices to its
remaining customers (but not Port Dock), as one would expect it
to do.
To the extent that Port Dock relies on predatory pricing
alleged to have happened in 1991, it appears on the face of the
complaint that any possible claim would be barred by the four-
year statute of limitations. 15 U.S.C. § 15b.
11
Where a defendant is alleged to have acquired other firms in
order to achieve monopoly power at the manufacturing level of a
product market, dealers or distributors terminated in the
aftermath do not have standing to assert claims under section 2
of the Sherman Act or section 7 of the Clayton Act for
monopolization at the manufacturing level. See G.K.A. Beverage
Corp. v. Honickman, 55 F.3d 762, 766-67 (2d Cir. 1995) (§ 2); see
also Norris v. Hearst Trust, —F.3d—, 2007 WL 2702941, at *9 (5th
Cir. Sept. 18, 2007)(§ 2); Serpa Corp., 199 F.3d at 11-12 (§ 2
and § 7); Fla. Seed Co., 105 F.3d at 1375 n. 3 (§ 2); John Lenore
& Co. v. Olympia Brewing Co., 550 F.2d 495, 500 (9th Cir. 1977)
(§ 7); A.G.S. Elecs., Ltd. v. B.S.R., Ltd., 460 F. Supp. 707,
710-711 (S.D.N.Y.) (§ 7), aff'd, 591 F.2d 1329 (2d Cir. 1978).
Dealers in this situation lack standing because their particular
injury was not caused by an exercise of the defendant’s newly
acquired power to raise prices. See generally Eastman Kodak Co.
v. Image Technical Servs., Inc., 504 U.S. 451, 464 (1992)
(defining market power as the ability of a single seller to raise
price and restrict output); AD/SAT v. Associated Press, 181 F.3d
216, 227 (2d Cir. 1999) (defining monopoly power as ability to
sustain price substantially above competitive level for
significant time). Instead, the dealer's injury was caused by
the manufacturer’s decision to terminate their relationship,
something the manufacturer could have just as well done without
12
having monopoly power. G.K.A. Beverage, 55 F.3d at 767
(reasoning that acquired bottler could have terminated
distributors before acquisition); Serpa Corp., 199 F.3d at 12
("This loss [of a distributorship] is neither connected with, nor
resulted from, defendant's market power . . . ."); John Lenore &
Co., 550 F.2d at 500 ("The [post-acquisition] terminations [of
distributors] were an incidental matter which the merger may have
made possible, but certainly did not cause."). Those who would
suffer from the defendant’s exercise of monopoly power would be
the dealers or consumers who were forced to buy at higher prices
(or inferior quality) because the defendant had acquired the
market power to charge monopoly prices. See Precision Surgical,
Inc. v. Tyco Int’l Ltd., 111 F. Supp. 2d 586, 590 & n.9 (E.D. Pa.
2000) (“Here, there is no overcharge issue [regarding terminated
distributor] because the distributors no longer deal in
defendants’ products. The only potential down-stream victim of a
monopoly overcharge would be hospitals and doctors purchasing
directly from the manufacturer.”) Therefore, Port Dock did not
plead an antitrust injury from Tilcon's alleged monopolization of
the production level.
Next, Port Dock alleges that Tilcon monopolized the
distribution level of the aggregate market by expanding
vertically into the distribution level and later refusing to deal
with Port Dock. Vertical expansion by a monopolist, without
13
more, does not violate section 2 of the Sherman Act. Belfiore v.
N.Y. Times Co., 826 F.2d 177, 181 (2d Cir. 1987).
Here, in addition to vertical expansion by a monopolist,
Port Dock alleges the monopolist refused to deal with a former
distributor. A refusal to deal is generally not unlawful unless
it is done for the purpose of monopolization. United States v.
Colgate & Co., 250 U.S. 300, 307 (1919); Trans Sport, Inc. v.
Starter Sportswear, Inc., 964 F.2d 186, 189 (2d Cir. 1992). The
absence of a legitimate business purpose for the defendant's
refusal to deal has been seen as circumstantial evidence of
improper intent. See Aspen Skiing Co. v. Aspen Highlands Skiing
Corp., 472 U.S. 585, 608 (1985); Otter Tail Power Co. v. United
States, 410 U.S. 366, 378 (1973); Eastman Kodak Co. v. So. Photo
Materials Co., 273 U.S. 359, 375 (1927); Morris Commc'ns Corp. v.
PGA Tour, Inc., 364 F.3d 1288, 1295 (11th Cir. 2004)
(anticompetitive conduct is "conduct without a legitimate
business purpose that makes sense only because it eliminates
competition") (internal quotation marks omitted).
Our cases establish that when a monopolist has acquired its
monopoly at one level of a product market, its vertical expansion
into another level of the same product market will ordinarily be
for the purpose of increasing its efficiency, which is a
prototypical valid business purpose. In G.K.A. Beverage Corp. v.
Honickman, 55 F.3d 762 (2d Cir. 1995), soft-drink distributors
14
alleged that a bottler, Honickman, had monopolized the upstream
market by acquiring its principal competitor and had then
expanded that monopoly into the distribution level. This Court
held that there was no anticompetitive effect from this second-
level monopolization. Id. at 767. We affirmed dismissal of the
G.K.A. Beverage complaint for failure to state a claim. Id. at
768. The rationale for our ruling was that a monopolist can only
extract one monopoly profit on a product; once it enjoys a
monopoly at one level of the product's market, there is no
further monopoly profit to be had from its expansion vertically.
Accordingly, once Honickman had achieved an upstream monopoly, it
had no incentive to behave anticompetitively at the distribution
level: "Once having achieved the alleged bottling monopoly,
therefore, [the bottler's] sole incentive is to select the
cheapest method of distribution." Id. at 767. Since Honickman
had no anticompetitive incentive to create a downstream monopoly,
the allegations of the complaint made it more likely that
Honickman chose to eliminate the distributors to increase
efficiency, rather than for the purpose of monopolization. Id.
Therefore, a complaint pleading that a defendant expanded
vertically and as a result, decided to discontinue doing business
with its erstwhile trading partners at the next level down, does
not plead an actionable refusal to deal. Such allegations are
equally consistent with the idea that the monopolist expected to
15
perform the second level service more efficiently than the old
trading partners and thus undertook the vertical integration for
a valid business reason, rather than for an anticompetitive one.
The same reasoning, but slightly different facts, underlay
this Court's decision in E&L Consulting Ltd. v. Doman Indus.,
Ltd., 472 F.3d 23 (2d Cir. 2006), cert. denied, No. 06-1549, 2007
WL 1494779 (U.S. Oct. 1, 2007), where a lumber production
monopolist allegedly cut off a distributor and created a
distribution-level monopoly in another dealer. We affirmed
dismissal of the complaint, holding that there was no
anticompetitive incentive for the lumber producer to create a
monopoly in retail distribution of its product. Id. at 30. The
facts pleaded suggested that the producer acted for the purpose
of increasing efficiency in some way: "Like any seller of a
product, a monopolist would prefer multiple competing buyers
unless an exclusive distributorship arrangement provides other
benefits in the way of, for example, product promotion or
distribution." Id. Following this reasoning, the allegations of
an exclusive distribution agreement between the monopolist and
the new dealer did not state a cause of action under section 2 of
the Sherman Act. Id. at 31.
In light of G.K.A. Beverage and E&L Consulting, the facts
alleged by Port Dock do not establish that the vertical expansion
and the accompanying refusal to deal with Port Dock were
16
anticompetitive or, therefore, that they stated a claim for
violation of section 2 of the Sherman Act at the distribution
level of the aggregate market.
There may be special circumstances in which a monopolist's
vertical expansion could be anticompetitive, such as where the
monopolist uses the vertical integration to facilitate price
discrimination, to avoid government regulation of price at one
level, or to preserve its production monopoly by putting up entry
barriers to new competitors seeking to enter at the production
level. See Trans Sport, Inc. v. Starter Sportswear, Inc., 964
F.2d 186, 191 (2d Cir. 1992); Paschall v. Kansas City Star Co.,
727 F.2d 692, 702 (8th Cir. 1984) (en banc); Byars v. Bluff City
News Co., 609 F.2d 843, 861-62 (6th Cir. 1980); see generally
Note, Refusals to Deal by Vertically Integrated Monopolists, 87
Harv. L. Rev. 1720, 1727-28 (1974). Port Dock has not alleged any
such circumstance that would make Tilcon's vertical integration
and refusal to deal with it anticompetitive. The complaint
pleads no facts that would show that Tilcon's vertical expansion
was for an anticompetitive purpose rather than for the purpose of
improving efficiency. Since it is established law that mere
vertical expansion by a monopolist plus refusal to deal with a
former distributor, without more, does not establish
anticompetitive monopolization, it was incumbent on Port Dock to
plead further facts "plausibly suggesting" an anticompetitive
17
aspect to the refusal to deal. See Twombly, 127 S. Ct. at 1966
(since it is established that consciously parallel conduct of
competitors is not sufficient to establish conspiracy, plaintiff
must plead further facts plausibly suggesting conspiracy).
Port Dock relies on cases in which refusals to deal were
found to be anticompetitive, but those cases are distinguishable
because in each of them, the plaintiff plausibly suggested that
the defendant had an economic incentive to exclude the
competitor. Tilcon, in contrast, had no such incentive because
it already enjoyed a monopoly at the production level. Port Dock
relies on PrimeTime 24 Joint Venture v. NBC, 219 F.3d 92 (2d Cir.
2000), in which this Court held that a plaintiff stated antitrust
injury from a concerted refusal to deal. There, the major
television networks and their affiliated stations were alleged to
have conspired to refuse to license copyrighted programs to the
plaintiff satellite company, which wanted to buy the programs to
package with alternative programming to transmit to consumers or
to distributors. This Court held that the conspiracy's alleged
object in refusing to sell programming was to deprive the
satellite company of the tools it needed to compete with the
networks, and the alleged anticompetitive effect was that the
networks could maintain higher prices on their programming
without the competition from alternative programming. Id. at
103-04. Thus, the plaintiff was competing with a number of
18
vertically integrated defendants, and the defendants had an
economic incentive to exclude it from the market. The incentive
to behave anticompetitively distinguishes PrimeTime 24 from this
case, in which Tilcon was alleged to have successfully
monopolized the market at one level of production, and thus had
already vouchsafed its monopoly profit and had nothing to gain
from excluding Port Dock from the distribution market.
Port Dock also cites Aspen Skiing Co. v. Aspen Highlands
Skiing Corp., 472 U.S. 585 (1985), in which a company that owned
three ski mountains refused to deal with its rival that owned
only one mountain. After years of voluntary cooperation in a
joint venture in which the companies offered a package with
access to all four mountains, the defendant changed course and
refused to cooperate or even to allow the plaintiff to purchase
ski passes at defendant's retail price in order to put together
its own package. The evidence at trial showed that consumers
preferred the four mountain package, but when deprived of the
package, would bypass the plaintiff's mountain altogether. Id.
at 605-08. As in PrimeTime 24, by refusing to deal with its
rival, the defendant was able to eliminate competition from its
rival and thereby gain market power. Moreover, the Supreme Court
emphasized that there was no legitimate reason for the defendant
to refuse to sell tickets to the plaintiff at the defendant's
retail price, id. at 608-09, especially since the defendant had
19
found it commercially desirable to cooperate in offering packages
with the plaintiff in the past, id. at 603. The absence of a
legitimate business reason for the refusal to deal suggested that
the reason for the defendant's action was intent to monopolize.
Here, in contrast, our vertical integration cases show that
Tilcon's expansion into distribution was most likely in pursuit
of increased efficiency, and Port Dock has not alleged any facts
that would plausibly suggest that Tilcon's purpose was
anticompetitive. There was thus an apparent legitimate business
reason for Tilcon's refusal to deal.
Port Dock also relies on Eastman Kodak Co. v. Image
Technical Servs. Inc., 504 U.S. 451 (1992), which involved a
claim of leveraging monopoly power over one product market into a
distinct product market, id. at 483, rather than vertical
integration in one product market, and so is not on point.
In sum, Port Dock lacks antitrust standing to assert a claim
for monopolization of the aggregate market at the manufacturing
level, and it has failed to allege a plausible claim of
anticompetitive conduct at the distribution level. Therefore,
the district court correctly found that it had failed to state a
claim.
Port Dock asks that we remand with leave to replead, but it
has not offered any pleading that would cure the deficiencies in
the extant complaint. Without such a showing, we can only
20
conclude that repleading would be futile. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (request to replead
should be denied where repleading would be futile).
We affirm the district court's order dismissing the
complaint.
21