F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 22 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
GREEN COUNTRY FOOD MARKET,
INC., d/b/a Collinsville IGA; GREEN
COUNTRY FOOD MARKET NO. 3,
INC., d/b/a Harvest Fine Foods No. 3;
GREEN COUNTRY FOOD MARKET
NO. 4, INC., d/b/a Harvest Find Foods
No. 4; GREEN COUNTRY FOOD
MARKET NO. 5, INC., d/b/a Harvest
Fine Foods No. 5; GREEN COUNTRY
FOOD MARKET NO. 6, INC., d/b/a
Cushing IGA; BRISSA, INC., d/b/a
Foodworld IGA; PLAZA REDBUD
INC., d/b/a Plaza Redbud No. 02-5076
Supermarket; and NET-MOR FOOD
OUTLET, INC., d/b/a Net-mor Food
Outlet,
Plaintiffs - Appellants,
v.
BOTTLING GROUP, LLC and
BOTTLING GROUP HOLDINGS,
INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 01-CV-0411-E)
Keith A. Ward, (Nancy C. Curtis with him on the briefs) Richardson, Stoops,
Richardson & Ward, Tulsa, Oklahoma, for Plaintiffs-Appellants.
Jon E. Brightmire, (James P. McCann and R. Charles Wilkin III, with him on the
brief) Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, for
Defendants-Appellees.
Before EBEL, BALDOCK, and KELLY, Circuit Judges.
EBEL, Circuit Judge.
Plaintiffs, retail grocery stores operating in the Tulsa, Oklahoma area,
brought this diversity action under the Oklahoma Antitrust Reform Act against
their local distributor of Pepsi and affiliated beverage products and its holding
company (“Bottling Group” and “Holdings”). Plaintiffs alleged that Bottling
Group unlawfully discontinued sales to Plaintiffs in response to a price
discrimination lawsuit Plaintiffs had previously brought against Bottling Group’s
predecessor-in-interest. The district court granted summary judgment in favor of
Bottling Group and Holdings. On appeal, Plaintiffs primarily challenge the
district court’s definition of the relevant product market. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and AFFIRM.
BACKGROUND
Plaintiffs are corporations that operate grocery stores, each owned in whole
or in part by either Steven Davis or Brian Honel. Plaintiff Brissa, Inc. (operated
by Mr. Honel) and Plaintiff Plaza Redbud Inc. (operated by Mr. Davis) had
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purchased Pepsi and affiliated beverage products from Beverage Products
Corporation (“BPC”), the exclusive distributor of these products in the Tulsa area.
By 1997, Mr. Honel and Mr. Davis had recognized that they were often unable to
sell their Pepsi products at prices competitive with other area grocery stores. Mr.
Honel and Mr. Davis compared their invoices from BPC and discovered that BPC
had been charging them different wholesale prices for the beverage products it
distributed. On January 5, 1999, Plaintiffs Brissa and Plaza Redbud sued BPC for
price discrimination under Oklahoma antitrust laws.
On February 8, BPC transferred all assets, liabilities, and stock to Bottling
Group Holdings, Inc. (“Holdings”), which the same day transferred the same
assets, liabilities, and stock to Bottling Group, LLC (“Bottling Group”). Bottling
Group is majority owned by Holdings, and Holdings is indirectly wholly owned
by The Pepsi Bottling Group, Inc.
On February 11, Bottling Group discontinued sales to Plaintiffs Brissa and
Plaza Redbud because of a “distinct decrease in the level of trust” between
Bottling Group and each grocery store stemming from the pending price
discrimination lawsuit. Bottling Group has also refused to distribute its products
to other Plaintiff grocery stores that Mr. Honel and Mr. Davis have acquired.
Plaintiffs therefore have no access, other than retail purchase, to the 155 Pepsi
and affiliated beverage products distributed by Bottling Group.
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Plaintiffs filed this lawsuit against both Bottling Group and Holdings under
§§ 203 and 205 of the Oklahoma Antitrust Reform Act, Okla. Stat. tit. 79, § 201
et seq. The complaint alleged monopolization, attempt to monopolize, and
conspiracy to monopolize under § 203(B) and denial of access to an essential
facility under § 203(C), and requested injunctive relief and monetary damages
under § 205. All allegations were predicated on Bottling Group’s refusal to deal
with Plaintiffs following Plaintiffs’ initiation of the price discrimination lawsuit
against BPC.
The district court denied Plaintiffs’ request for a preliminary injunction and
granted summary judgment in favor of Bottling Group and Holdings. The district
court held that Plaintiffs had not pled a claim under § 203(A) of the Oklahoma
Antitrust Reform Act, which prohibits unilateral acts in restraint of trade, and that
their claims under §§ 203(B) and 203(C) of the Act failed because Plaintiffs had
not proven that the beverage products distributed by Bottling Group comprised a
relevant product market.
Plaintiffs timely filed this appeal. Plaintiffs argue that the complaint stated
a claim under § 203(A) and, in the alternative, that the complaint should have
been treated by the district court as constructively amended, under Federal Rule
of Civil Procedure 15(b), to include a § 203(A) claim. Plaintiffs also argue that
the district court erred in requiring Plaintiffs to offer proof of a relevant product
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market and, in the alternative, in rejecting Plaintiffs’ narrow definition of the
relevant product market.
DISCUSSION
We review a grant of summary judgment de novo, applying the same
standard used by the district court. State of Utah v. Babbitt, 53 F.3d 1145, 1148
(10th Cir. 1995). Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
We construe the facts and inferences therefrom in the light most favorable to the
non-moving party. Babbitt, 53 F.3d at 1148. 1
1
Summary judgment in antitrust cases should be used sparingly because
motive and intent play leading roles in the analysis. Sports Racing Servs., Inc. v.
Sports Car Club of Am., Inc., 131 F.3d 874, 882 (10th Cir. 1997); Dreiling v.
Peugeot Motors of Am., Inc., 850 F.2d 1373, 1379 (10th Cir. 1988). However,
the usual rules governing summary judgment still apply in antitrust cases. Sports
Racing, 131 F.3d at 882.
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A. Whether Plaintiffs Properly Pled a § 203(A) Claim
1. The complaint
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement must
give the defendant “fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957).
A plaintiff should not be prevented from pursuing a claim simply because
of a failure to set forth in the complaint a theory on which the plaintiff could
recover, provided that a late shift in the thrust of the case will not prejudice the
other party in maintaining its defense. Evans v. McDonald’s Corp., 936 F.2d
1087, 1090-91 (10th Cir. 1991). The liberalized pleading rules, however, do not
permit plaintiffs to wait until the last minute to ascertain and refine the theories
on which they intend to build their case. Id. at 1091. This practice, if tolerated,
“would waste the parties’ resources, as well as judicial resources, on discovery
aimed at ultimately unavailing legal theories and would unfairly surprise
defendants, requiring the court to grant further time for discovery or
continuances.” Id. (affirming district court’s determination precluding plaintiff
from litigating new legal theory raised for first time in response to defendant’s
motion for summary judgment).
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In Dunn v. Ewell (In re Santa Fe Downs), the complaint cited one section
of the Bankruptcy Act but the plaintiffs attempted to introduce evidence
pertaining to a second section. 611 F.2d 815, 816 (10th Cir. 1980). We held that
the plaintiffs had not properly stated a claim under that second section. See id.
We noted that “[w]e cannot say that the incorrect statutory citation was an
unimportant detail implicitly corrected by the facts alleged in the complaint.” Id.
“[A] fundamental statutory citation is not a mere fact and, if incorrect, may topple
the structure of the complaint, particularly where the citation appears to represent
the legal theory upon which the plaintiff relies.” Id.
In this case, Plaintiffs did not mention § 203(A) in their complaint but
referred only to §§ 203(B), 203(C), and 205. 2 Plaintiffs’ allegations focused
2
Section 203 of the Oklahoma Antitrust Reform Act provides in relevant
part:
A. Every act, agreement, contract, or combination in the form of a
trust, or otherwise, or conspiracy in restraint of trade or commerce
within this state is hereby declared to be against public policy and
illegal.
B. It is unlawful for any person to monopolize, attempt to
monopolize, or conspire to monopolize any part of trade or commerce
in a relevant market within this state.
C. Without limiting any other section of Title 79 of the Oklahoma
Statutes or applicable sections of Title 17 of the Oklahoma Statutes,
it is unlawful for any person in control of an essential facility to
unreasonably refuse to give a competitor or customer of an entity
(continued...)
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exclusively on alleged monopolization under § 203(B) and denial of access to an
essential facility under § 203(C). Plaintiffs failed to mention § 203(A), which
prohibits unilateral acts in restraint of trade, either in form or in substance.
As in Dunn, we cannot say that this omission was “an unimportant detail.”
See 611 F.2d at 816. The complaint did not place Defendants Bottling Group and
Holdings on notice of the need to defend against a § 203(A) claim, as was
demonstrated by Defendants’ failure to offer any defense to a § 203(A) claim in
their initial motion for summary judgment. Plaintiffs’ citation to § 203(A) in
their response to Defendants’ motion did not cure that error. See Evans, 936 F.2d
at 1091. A claim for unilateral acts in restraint of trade is sufficiently
distinguishable from either a monopolization or an essential facilities claim that
Plaintiffs should have mentioned the claim in the complaint. Accordingly, the
district court did not err in holding that Plaintiffs had not pled a § 203(A) claim
in their complaint.
2
(...continued)
controlling an essential facility access to it upon reasonable terms if
the effect of such denial is to injure competition. An injured
competitor or customer may bring an action under Section 5 of this
act to enforce the provisions of this section only when such injured
competitor or customer does not have a remedy before the
Corporation Commission.
Okla. Stat. tit. 79, § 203(A)-(C). Section 205 provides for injunctive relief and
monetary damages to any person injured by a violation of the Act. Id. § 205(A).
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2. Rule 15(b)
We review a district court’s denial of a motion to treat the complaint as
amended for abuse of discretion. Koch v. Koch Indus., Inc., 203 F.3d 1202, 1216
(10th Cir. 2000). Federal Rule of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure so to amend does
not affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be
amended and shall do so freely when the presentation of the merits of
the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice
the party in maintaining the party’s action or defense upon the merits.
The court may grant a continuance to enable the objecting party to
meet such evidence.
Fed. R. Civ. P. 15(b). Rule 15(b) is “intended to promote the objective of
deciding cases on their merits rather than in terms of the relative pleading skills
of counsel[.]” Wright et al., Federal Practice and Procedure, § 1491, at 5 (2d ed.
1990) (quoted with approval in Brandon v. Holt, 469 U.S. 464, 471 n.19 (1985)).
Rule 15(b) contains two mechanisms for amending the complaint to
conform to the evidence. First, a complaint may be impliedly amended under
Rule 15(b) “if an issue has been tried with the express or implied consent of the
parties and not over objection.” Hardin v. Manitowoc-Forsythe Corp., 691 F.2d
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449, 456 (10th Cir. 1982). A party impliedly consents to the trial of an issue not
contained within the pleadings either by introducing evidence on the new issue or
by failing to object when the opposing party introduces such evidence. Koch, 203
F.3d at 1217. However, implied consent cannot be based on the introduction of
evidence that is relevant to an issue already in the case when there is no
indication that the party presenting the evidence intended to raise a new issue.
Moncrief v. Williston Basin Interstate Pipeline Co., 174 F.3d 1150, 1162 (10th
Cir. 1999).
This mechanism for implying an amendment is not available if the opposing
party objects to evidence pertaining to a new claim. Dunn, 611 F.2d at 817.
Instead, upon objection by the opposing party, the party wishing to amend the
pleadings must employ the second mechanism of Rule 15(b). Pursuant to that
mechanism, the pleadings may be amended if the party files a motion to amend
the complaint and the objecting party fails to satisfy the court that it will be
prejudiced by the amendment. Fed. R. Civ. P. 15(b). The party must expressly
move under Rule 15(b) for such an amendment. Moncrief, 174 F.3d at 1163 n.7
(“A court may not sua sponte invoke the second portion of Rule 15(b).”).
Accordingly, when proper objections have been made but no Rule 15(b) motion
has been filed, the lack of prejudice to a party does not provide a basis for an
amendment. Dunn, 611 F.2d at 817.
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In the instant case, Plaintiffs referenced § 203(A) only three times in their
motions below or in response to Bottling Group and Holdings’ motion for
summary judgment. Each reference involved a mere citation to or quotation of §
203(A) and was unaccompanied by any evidence that differed from the evidence
offered in support of their §§ 203(B) and 203(C) claims. Significantly, Bottling
Group and Holdings objected to Plaintiffs’ attempt to raise a § 203(A) claim on
the ground that the claim was not pled in the complaint. In light of this objection,
the first mechanism of Rule 15(b) is inapplicable. See Dunn, 611 F.2d at 817.
Because a court can invoke the second mechanism of Rule 15(b) only in response
to a Rule 15(b) motion and because Plaintiffs filed no such motion, the second
mechanism of Rule 15(b) is likewise inapplicable. See Moncrief, 174 F.3d at
1163 n.7.
Accordingly, the district court did not abuse its discretion in refusing to
treat Plaintiffs’ complaint as amended under Rule 15(b) to include a § 203(A)
claim.
B. The Relevant Product Market
The Oklahoma Antitrust Reform Act is construed in accordance with
federal antitrust law. Okla. Stat. tit. 79, § 212; see also Teleco, Inc. v. Ford
Indus., Inc., 587 P.2d 1360, 1362 (Okla. 1978). Sections 203(B) and 203(C) of
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the Oklahoma Antitrust Reform Act both require that the plaintiff prove a relevant
market.
Under § 203(B), “[i]t is unlawful for any person to monopolize, attempt to
monopolize, or conspire to monopolize any part of trade or commerce in a
relevant market within this state.” Okla. Stat. tit. 79, § 203(B). Accordingly, to
establish liability under § 203(B), a plaintiff must first define the relevant market.
Id. § 203(D)(1)(a); see also Walker Process Equip., Inc. v. Food Mach. & Chem.
Corp., 382 U.S. 172, 177 (1965) (“Without a definition of that market there is no
way to measure [a defendant’s] ability to lessen or destroy competition.”);
Smalley & Co. v. Emerson & Cuming, Inc., 13 F.3d 366, 368 (10th Cir. 1993) (to
establish § 2 Sherman Act violation for monopolization or attempted
monopolization, plaintiff must define relevant market).
Under § 203(C), “it is unlawful for any person in control of an essential
facility to unreasonably refuse to give a competitor or customer of an entity
controlling an essential facility access to it upon reasonable terms if the effect of
such denial is to injure competition.” Okla. Stat. tit. 79, § 203(C). Pursuant to
the statute, an “essential facility” is a facility which, inter alia, “is controlled by
an entity that possesses monopoly power.” Id. § 203(D)(3)(a). “Monopoly
power” is “the power to control market prices or exclude competition.” Id. §
(D)(2); see also United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377,
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391 (1956). To prove monopoly power, the plaintiff must first define the relevant
market. See Walker Process Equip., 382 U.S. at 177.
Accordingly, both § 203(B) and § 203(C) require proof of a relevant
market. The relevant market inquiry has two components: geographic market and
product market. Telecor Communications, Inc. v. Southwestern Bell Tel. Co.,
305 F.3d 1124, 1130 (10th Cir. 2002). Only the latter is an issue in this appeal.
The Supreme Court articulated the standard for defining the relevant
product market in United States v. E.I. du Pont de Nemours & Co., 351 U.S. at
404. A relevant product market consists of “products that have reasonable
interchangeability for the purposes for which they are produced – price, use and
qualities considered.” Id.; Teleco, 587 P.2d at 1364. The interchangeability of
products is measured by, and is substantially synonymous with, cross-elasticity.
Telecor, 305 F.3d at 1131. A market is “cross-elastic” if rising prices for one
product causes consumers to switch to the other product. Id.; see also du Pont,
351 U.S. at 393 (“Determination of the competitive market for commodities
depends on how different from one another are the offered commodities in
character or use, how far buyers will go to substitute one commodity for
another.”).
The Supreme Court has also recognized the existence of submarkets within
a larger product market. Brown Shoe Co. v. United States, 370 U.S. 294, 325
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(1962). The boundaries of such a submarket are defined by such factors as
industry or public recognition of the submarket as a separate economic entity, the
product’s peculiar characteristics and uses, unique production facilities, distinct
customers, distinct prices, and sensitivity to price changes and specialized
vendors. Id. “The same proof which establishes the existence of a relevant
product market also shows (or...fails to show) the existence of a product
submarket.” 1 ABA Section of Antitrust Law, Antitrust Law Developments 521
(4th ed. 1997) (quoting H.J., Inc. v. Int’l Tel. & Tel. Corp., 867 F.2d 1531, 1540
(8th Cir. 1989)). Thus, the general standard articulated in du Pont, in conjunction
with the specific factors announced in Brown Shoe, provides the applicable
standard for defining the relevant product market.
1. Products of a single manufacturer or brand
In general, a manufacturer’s own products do not themselves comprise a
relevant product market. 1 ABA Section of Antitrust Law, supra, 527-28. As the
Supreme Court stated in du Pont:
[W]here there are market alternatives that buyers may readily use for
their purposes, illegal monopoly does not exist merely because the
product said to be monopolized differs from others. If it were not so,
only physically identical products would be a part of the market.
351 U.S. at 394. Similarly, we have said that “a company does not violate the
Sherman Act by virtue of the natural monopoly it holds over its own product.”
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TV Communications Network, Inc. v. Turner Network Television, Inc., 964 F.2d
1022, 1025 (10th Cir. 1992) (holding that TNT is not relevant product market for
purposes of Sherman Act). Even where brand loyalty is intense, courts reject the
argument that a single branded product constitutes a relevant market. Disenos
Artisticos E. Industriales, S.A. v. Work, 714 F. Supp. 46, 47-48 (E.D.N.Y. 1989)
(defining relevant product market as market for high quality decorative giftware,
despite “intense brand loyalty” among some customers for certain brand of
porcelain figurine); see also Grappone, Inc. v. Subaru of New England, Inc., 858
F.2d 792, 797 (1st Cir. 1988) (Although “virtually every seller of a branded
product has some customers who especially prefer its product,” that fact alone
does not show market power (emphasis in original).).
Nonetheless, products of a single manufacturer may in rare circumstances
constitute a relevant product market. Eastman Kodak Co. v. Image Technical
Servs., Inc., 504 U.S. 451, 481-82 (1992). In Eastman Kodak Co. v. Image
Technical Services, Inc., the Supreme Court held that the relevant product market
must be defined in terms of the choices of products and services available to
Kodak equipment owners. Id. Because Kodak equipment owners were locked
into Kodak parts and services, Kodak parts and services were not interchangeable
with the parts and services of other manufacturers. See id. at 482. Accordingly,
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only those companies that serviced Kodak machines comprised the relevant
product market. Id. 3
The Supreme Court has acknowledged in dicta that the soft drink industry
is a prototypical example of an industry in which products are so interchangeable
that control over one brand cannot be an illegal monopoly. The Court said that
“this power that...soft-drink manufacturers have over their trademarked products
is not the power that makes an illegal monopoly.” du Pont, 351 U.S. at 393.
“[T]here are certain differences in the formulae for soft drinks but one can hardly
say that each one is an illegal monopoly.” Id.; see also Coca-Cola Bottling Co. of
Shreveport, Inc. v. Coca-Cola Co., 696 F. Supp. 97, 131 (D. Del. 1988) (“There
can be no serious dispute that Coca-Cola products are in competition with many
other soft drinks.”); Barq’s Inc. v. Barq’s Beverages, Inc., 677 F. Supp. 449, 455
(E.D. La. 1987) (“Based upon the theory of interchangeability, which allows for
closely related product substitutes to be considered in the relevant market, the
appropriate unit here is all soft drinks. Barq’s root beer is merely one soft drink
in a market of competing soft drinks.”).
3
See also Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of
Okla., 468 U.S. 85, 111-12 (1984) (holding that distinct market exists for NCAA
college football broadcasts); Int’l Boxing Club of N.Y., Inc. v. United States, 358
U.S. 242, 249-52 (1959) (holding that relevant market was properly defined as
promotion of championship boxing contests, not all professional boxing events).
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Accordingly, Pepsi branded beverage products cannot alone comprise a
relevant product market. Plaintiffs attempt to avoid this conclusion by offering
evidence that consumers are “brand loyal” to Pepsi branded products. Mr. Davis,
one of the grocery store owners in this case, testified that in his experience,
people are brand loyal to Pepsi because instead of substituting Coke if they do not
find Pepsi on the grocery store shelves they look elsewhere for Pepsi. Brand
loyalty of consumers to particular soft drinks is an insufficient basis for
concluding that Pepsi constitutes a relevant product market. Plaintiffs have
offered no other evidence to show that Pepsi products are not reasonably
interchangeable with Coke products or other branded soft drinks.
Nor have Plaintiffs offered any evidence pertaining to the specific factors
listed by the Supreme Court in Brown Shoe, such as evidence that Pepsi prices are
insensitive to price changes in other branded soft drinks. See 370 U.S. at 325. In
short, Plaintiffs have offered no evidence – other than their own testimony
pertaining to brand loyalty – to prove that Pepsi branded products constitute a
market distinct from other soft drink products.
2. Cluster markets
Courts also recognize the existence of “cluster markets.” A “cluster
market” exists where a seller provides a full line of products or services that
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create a separate product market consisting of that “cluster” of products or
services. See United States v. Phillipsburg Nat’l Bank & Trust Co., 399 U.S. 350,
360-61 (1970) (holding that products and services offered by full-service banks
constituted cluster market); United States v. Grinnell Corp., 384 U.S. 563, 572-73
(1966) (holding that central station protective services including automated
burglar alarms, automated fire alarms, sprinkler services, and watch signal
services constituted cluster market); United States v. Phila. Nat’l Bank, 374 U.S.
321, 356-57 (1963) (holding that products and services offered by commercial
banks constituted cluster market).
A cluster market exists only when the “cluster” is itself an object of
consumer demand. See Westman Comm’n Co. v. Hobart Int’l, Inc., 796 F.2d
1216, 1221 (10th Cir. 1986) (rejecting cluster market approach where cluster was
not itself the object of consumer demand). In other words, the cluster approach is
only appropriate where “‘the product package is significantly different from, and
appeals to buyers on a different basis from, the individual products considered
separately.’” Id. (quoting JBL Enterprises, Inc. v. Jhirmack Enterprises, Inc., 698
F.2d 1011, 1016-17 (9th Cir. 1983)).
Plaintiffs argue that even if Pepsi products themselves cannot constitute a
relevant product market, Bottling Group distributes a full line of beverage
products that together constitute a cluster market over which Bottling Group has
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monopoly power. Specifically, Plaintiffs point out that Bottling Group distributes
approximately 60 Pepsi branded products, approximately 25-30 Dr. Pepper
branded products, and other branded apple juices, teas, sport drinks, and water
products. In total, Bottling Group distributes approximately 155 branded
beverage products.
There are two problems with Plaintiffs’ argument. First, Plaintiffs have
presented no evidence that the 155 different products distributed by Bottling
Group together constitute a cluster that is itself the object of consumer demand, as
our precedent requires. See Westman, 796 F.2d at 1221. Plaintiffs offer no
evidence establishing that the package of grocery products distributed by Bottling
Group appeals to grocery stores on a different level than Pepsi, Dr. Pepper, Slice,
etc. considered separately. They have not offered evidence, for example, that
Plaintiffs’ customers enter the store with the intent to purchase both Pepsi and Dr.
Pepper together and the absence of one of those products would cause the
customer to go to another store to purchase both. Nor have they introduced
evidence that grocery stores significantly benefit from purchasing Dr. Pepper
products and Pepsi products as a package rather than individually.
Second, Plaintiffs do not argue that Bottling Group has monopoly power
even if the product market is defined as a cluster market. If a cluster market
exists, then presumably that market would include all distributors who provide a
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similar cluster of soft drink or other beverage products and affiliated services to
grocery stores for retail sale in the relevant geographic market. Plaintiffs have
come forward with no evidence demonstrating that Bottling Group has monopoly
power even in this more narrowly defined product market. 4 Plaintiffs appear to
misunderstand the significance of a cluster market – the fact that an entity
distributes a number of different products does not of itself give it monopoly
power in a “cluster market”; it merely defines the product(s)/service(s) offered by
the distributor as a package and then limits the relevant product market to those
entities that can offer a competitive package.
Accordingly, the district court did not err in holding that the products
exclusively distributed by Bottling Group in the Tulsa area cannot, as a matter of
law, constitute a relevant product market. 5
4
Plaintiffs did offer evidence of the market share of the individual products
distributed by Bottling Group; however, evidence of the market share of the
products as a product cluster is not provided.
5
Plaintiffs may have argued below that Bottling Group had monopoly power
in a product market more broadly defined as the market for all soft drink and
other beverage products distributed to retail grocers. By failing to re-assert this
argument on appeal, however, Plaintiffs have waived it, and, in any event, the
record does not support such a theory.
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CONCLUSION
We hold that Plaintiffs failed to plead a claim under § 203(A) of the
Oklahoma Antitrust Reform Act, and that their claims under §§ 203(B) and
203(C) of the Act require proof of a relevant product market. We further hold
that Plaintiffs have failed to establish a genuine dispute that the products
distributed by Bottling Group alone constitute a relevant product market.
Accordingly, the district court’s grant of summary judgment in favor of Bottling
Group and Holdings is AFFIRMED.
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