Maris Distributing Co. v. Anheuser-Busch, Inc.

[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