Aerotec International, Inc. v. Honeywell International, Inc.
Aerotec International, Inc. v. Honeywell International, Inc.
Opinion of the Court
AMENDED* ORDER AND OPINION
I. MOTIONS PRESENTED
At docket 107, Plaintiff Aerotec International, Inc. (“Aerotec”) filed a motion for
At docket 115, Honeywell filed a motion for summary judgment on all claims. Its supporting statement of facts is at docket 116. Aerotec’s response is at docket 137, and its controverting statement of facts is at docket 138. Honeywell’s reply is at docket 142. All documents related to the summary judgment motions were filed under seal. Oral argument was heard on December 5, 2013.
II. BACKGROUND
The case at hand relates to competition in the repair market for auxiliary power units (“APUs”). APUs are small engines in commercial aircraft that provide power needed for non-propulsion functions such as electric power for on-board electrical equipment and for air conditioning the cabin. Honeywell and Hamilton Sundst-rand are the two major manufacturers of APUs, but Honeywell is the largest manufacturer of APUs for commercial aircraft. Honeywell manufactures and sells approximately a dozen different models of APUs.
APUs need routine maintenance, as well as repair and overhaul (“MRO”) services. When an airline does not perform its own MRO services, it typically will solicit bids from MRO service providers for long-term contracts. An airline usually has more than one type of aircraft, and therefore has to arrange MRO services for different models of APUs. Consequently, an airline will often contract for MRO services with more than one provider.
The most common MRO service agreements are Maintenance Service Agreements (“MSAs”) and Not-To-Exceed Agreements (“NTEs”). Both types generally have terms of three to seven years. Under a standard MSA, an MRO service provider charges an airline a negotiated rate based on number of hours spent on repairs, and in exchange the airline agrees to send all APUs of the model covered under the MSA to the MRO service provider for repairs and overhaul for the duration of the agreement. An NTE agreement is a commitment to repair a certain APU model for a price that will not exceed a negotiated amount. That is, an airline will agree to a set rate for labor and parts, but the total charge for any given APU repair job cannot exceed the amount negotiated by the parties.
Honeywell provides MRO services for Honeywell APU models. Indeed, it is the largest provider of MRO services for Honeywell APUs. Honeywell uses NTE agreements most often. There are at least 49 other MRO service providers around the world that service Honeywell APUs. These include independent MRO service providers and airlines that service their own APÜs and the APUs of other airlines.
APU component parts are often needed to complete an APU repair, and thus MRO service providers need to obtain- component parts. Parts that come from the original APU manufacturer are known -as “OEM parts.” Honeywell sells Honeywell-branded OEM parts for its APUs. Other MRO service providers, airlines, brokers, and distributors purchase these parts to use or sell for Honeywell APU repairs. Thus, the independent MRO service providers that compete with Honeywell for repair contracts are also Honeywell’s customers in the component parts market.
MRO service providers that do no have agreements with Honeywell can buy OEM parts directly from Honeywell or from brokers, distributors, and others who have surplus parts to sell. They can also buy aftermarket substitute parts, which are APU parts that have been reverse engineered to replicate Honeywell-branded OEM parts. The suppliers go through a process known as “parts manufacturing authority” to obtain approval of these substitute parts; these parts are commonly referred to as “PMA” parts. PMA parts are less expensive than OEM parts but are less common and more difficult to obtain for certain Honeywell APU models. Typically, however, the aftermarket will have more PMA parts as well as more surplus OEM parts available for a certain APU model as that model ages and is installed in aircraft more frequently.
In order to compete with Honeywell, which is both the supplier of component parts and a large competitor for MRO service contracts, MRO providers promote their quick turn around time for repairs and availability of spare APUs for the customer’s use as benefits of their services over Honeywell’s services. Additionally, the independent MRO service providers that are not contractually obligated to use Honeywell parts can use PMA parts as a way to reduce costs; although, as discussed above, PMA parts are not always readily available.
Aerotec is an independent MRO service provider for several APU models, including both Honeywell APUs and Hamilton Sundstrand APUs. Aerotec competes with Honeywell in the MRO service market. Aerotec controls a small share of the market, with less than 1.0% of the Honeywell APUs in existence under contract for repair services. Aerotec is also a customer of Honeywell in the component parts market, buying Honeywell-branded OEM parts that it uses to perform MRO services on Honeywell APUs. It does not have a contractual agreement with Honeywell and thus buys parts on a purchase order to purchase order basis. The record reflects that in addition to Aerotec there are at least four other completely independent MRO service providers; that is, service
Aerotec filed a complaint against Honeywell, arguing that Honeywell has used its position as the predominant APU manufacturer and component parts supplier to behave in an anticompetitive manner in the MRO service market in violation of antitrust laws and price discrimination laws. Aerotec’s first claim alleges that Honeywell engaged in illegal tying in violation of Section 1 of the Sherman Act by using its power in the market for Honeywell APU component parts to tie sales of such parts to the sale of Honeywell’s MRO services. Aerotec’s second claim alleges Honeywell engaged in exclusive dealing and bundled pricing in violation of Section 1 of the Sherman Act by using “exclusive dealing agreements with APU repair customers to foreclose a substantial portion of the APU repair market from rival repair providers” and imposing “a severe pricing penalty if customers do not commit to using Honeywell repair services.” Aerotec’s third claim and forth claim for relief allege that Honeywell engaged in monopolization and attempted monopolization, respectively, in violation of Section 2 of the Sherman Act by effectively refusing to deal with Aero-tec, failing to provide Aerotec reasonable access to facilities that are essential for it to compete in the repair market, using bundled pricing, and requiring exclusive dealing arrangements with repair customers. The fifth claim for relief alleges that Honeywell engaged in price discrimination in violation of the Robinson-Patman Act. Aerotec’s sixth claim for relief alleges Honeywell violated Arizona’s antitrust laws, and its seventh through tenth claims for relief allege that Honeywell committed various business torts in violation of Arizona law.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party has the burden of showing that there is no genuine dispute as to any material fact.
IV. DISCUSSION
A. Section 1 of the Sherman Act
Under Section 1 of the Sherman Act, “[ejvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”
Here, Aerotec asserts that Honeywell enters into agreements with customers in the APU repair market that unreasonably restrain trade. First, it argues that Honeywell forecloses competition in the APU repair sector by tying Honeywell-branded APU parts to Honeywell’s MRO services in a manner that is per se illegal. Second, it argues that Honeywell forecloses competition by using exclusive dealing agreements with APU repair customers. The court will address each claim in turn.
1. Tying
Aerotec asserts that Honeywell engages in illegal tying. “A tying arrangement exists when a seller conditions the sale of one product or service (the tying product or service) on the buyer’s purchase of another product or service (the tied product or service).”
[T]he essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms.14
Courts “generally evaluate whether a practice unreasonably restrains trade in violation of Section 1 under the ‘rule of reason,’ ” which seeks to distinguish between restraints with anticompeti-tive effects and those with stimulating effects on competition based on the actual market conditions.
Aerotec asserts that Honeywell’s practices amount to per se illegal tying, claiming that Honeywell uses its dominant position in the market for Honeywell APU parts to coerce APU owners, who need Honeywell APU component parts for APU repairs, to purchase MRO services from Honeywell. To show that parts and repair services are two distinct products or services that Honeywell has tied together, Aerotec relies on Eastman Kodak Co. v. Image Technical Services.
Aerotec’s reliance on Eastman Kodak is misplaced. Aerotec alleges that it seeks to sell the same parts/repair service to APU owners that Honeywell provides, but that it is foreclosed from doing so because Honeywell limits it access to component parts needed to complete repairs. Aerotec does not allege that customers are foreclosed from buying its MRO services because Honeywell conditions sale of its parts on an agreement not to buy MRO services from an independent provider. Aerotec does not allege that it attempts to provide unbundled MRO service to customers who obtain their own Honeywell parts but cannot do so because Honeywell will not sell parts to anyone unless they
Aerotec also argues that Honeywell’s bundling of parts and repairs at a discount is effectively a tie between parts and repairs, because it induces customers to buy repair services from Honeywell as opposed to buying repair services from other MRO providers. Yet, there is no evidence that customers are foreclosed from using Aerotec by a tie. Even if the APU parts and repair services are tied, Aerotec has not presented evidence that would prove the second element needed to prove an illegal tie. “Essential to the second element of a tying claim is proof that the seller coerced a buyer to purchase the tied product.”
Aerotec has failed to present any direct evidence of coercion. There is no evidence that Honeywell only sells needed component parts to customers who also commit to using its MRO services or to those MRO service providers who are affiliated with Honeywell through an ASC or storefront agreement.
2. Exclusive Dealing
Aerotec alleges that Honeywell’s exclusive dealing arrangements with its MRO service customers violate Section 1 of the Sherman Act. “An exclusive dealing arrangement is an agreement in which a buyer agrees to purchase certain goods or services only from a particular seller for a certain period of time.”
The Ninth Circuit has adopted a burden-shifting approach to the rule of reason analysis.
Aerotec has not met its initial burden to show that Honeywell’s customer agreements with exclusive dealing provisions have significant anticompetitive effects on the repair market for Honeywell APUs. Aerotec asserts that Honeywell’s power in the repair market alone is sufficient evidence for the court to find that its exclusive dealing agreements probably exclude rivals. But it is not enough that exclusive dealing agreements have the probable effect of foreclosing competition.
Aerotec presents evidence that it lost business to Honeywell and that its market share declined from .71% to .55%. Such evidence is insufficient; plaintiffs like Aerotec must “prove a reduction of competition in the market in general and not mere injury to their own positions as competitors in the market.”
B. Section 2 of the Sherman Act
Section 2 of the Sherman Act makes it unlawful for a person to monopolize or attempt to monopolize “any part of the trade or commerce among the several States.”
1. Refusal to deal/ denial of essential facilities
Aerotec alleges that Honeywell violates Section 2 by refusing to deal with Aerotec on reasonable terms and/or denying it access to essential APU component parts. It argues that Honeywell subjects it to an onerous ordering system, delays shipments of needed component parts, refuses to provide accurate information about delivery of parts, charges it higher prices for parts than it does non-rivals, refuses to provide it with technical data, and implements restrictive payment terms. In addition to raising arguments as to why it has not engaged in unlawful conduct under the “refusal to deal” theory of monopolization, Honeywell urges the court to consider the lack of antitrust injury generally.
The purpose of antitrust law is to preserve competition for the benefit of consumers.
Here, Aerotec asserts that it has suffered injuries as a result of Honeywell’s unreasonable business terms. More specifically, Aerotec argues that it has put forth enough evidence to show, or at least create a genuine issue of fact for trial, that it lost good will and suffered a reduced market share because of Honeywell’s actions. But such evidence is not enough. Aerotec must show that these injuries, even assuming they are caused by Honeywell’s conduct, are not just the product of vigorous competition. Aerotec must put forth evidence that Honeywell’s conduct relating to the supply of parts and technical data, harms the competitive process by raising prices for MRO repair customers or diminishing the quality of MRO services market-wide.
Aerotec relies on the “refusal to deal” theory of monopolization set forth in Aspen Skiing Co. v. Aspen Highlands Skiing Corp.
Since Aspen Skiing, the Supreme Court has significantly restricted its reach. The Court has warned that Aspen Skiing “is at or near the outer boundary of § 2 liability.”
Although the rationale in Aspen Skiing reaches far enough to include situations where the terms of dealing are unreasonable,
Furthermore, there is no evidence that Honeywell’s conduct caused harm to the competitive process. There is no evidence in the record to show that Aerotec’s problems with Honeywell in terms of acquiring component parts and technical data impacts the price or quality of MRO services generally. Indeed, the evidence that Honeywell has delayed shipments of replacement parts or withheld some technical data, for whatever reason, does not show an anticompetitive effect. Rather, it suggests that Honeywell’s conduct, even though possibly injurious to Aerotec, has a pro-competitive effect on the market as a whole, because dissatisfaction with Honeywell’s ability to provide parts and data for repairs actually increases the demand for alternatives to Honeywell-branded APU parts.
Aerotec argues the short-term pro-competitive effects will give way to long-term anticompetitive effects. Aerotec argues that Honeywell’s actions in failing to provide adequate parts service to independent MRO service providers in the parts market will push independent repair firms, like itself, out of business, which will eventually allow Honeywell to increase its market share in the MRO service market and permanently increase prices and diminish quality of service. There is no evidence to support Aerotec’s argument. The evidence presented by Aerotec shows that at most Honeywell has about a 50% share in the Honeywell APU repair market, which is insufficient to establish that Honeywell threatens to obtain sufficient market power and then permanently increase repair prices.
The evidence presented by Aerotec is limited to the effects felt by Aerotec. Aer-otec argues that the negative effects on its business ultimately harm MRO service customers. It points to evidence that its service customers find Aerotec’s quality of service superior, but that evidence is irrelevant here. Aerotec itself possesses a small share of the MRO service market (less than 1%); thus, the court cannot conclude that effects felt by Aerotec will have a meaningful impact on the market as a whole.
2. Bundled pricing
Aerotec also alleges that Honeywell violates Section 2 by offering bundled pricing of parts and repairs in its MRO service contracts. Bundled pricing is “the practice of offering, for a single price, two or more good or services that could be sold separately. A bundled discount occurs when a firm sells a bundle of goods or services for a lower price than the seller charges for the good or services purchased individually.”
To show predatory pricing at the retail level, Aerotec must demonstrate that Honeywell engages in below-cost pricing.
Aerotec argues that Honeywell’s evidence is insufficient. It argues that Honeywell has not actually disclosed its actual costs; rather, it simply provided a declaration and supporting financials with
Aerotec argues that it has put forth evidence of Honeywell’s below-cost pricing. It points to a few examples of Honeywell’s repair bids that end up being below cost when the “discount attribution test” is applied.
Honeywell argues that the discount attribution test does not apply in this situation. It argues that Cascade Health’s discount attribution test only applies in situations where the rival does not sell as many products as the bundled discounter and not in situations like the one presented here where every repair bid, whether made by Honeywell or Aerotec, by nature includes “a bundle” of labor and component parts. The competitive product here is not just the labor, but the entire bundle of parts and labor. Thus, Honeywell and Aerotec each offer the same “bundle” of parts and labor, and the application of the discount attribution test makes little sense. It further argues that the application of the discount attribution test to the specific examples relied on by Aerotec makes even less sense because it would cause the customer to pay substantially more. As explained in detail in Honeywell’s briefing, applying the discount attribution test here would require Honeywell to increase the price of its repairs on the APU model at issue more than 200% and result in a minimum price that is actually well above Aerotec’s average price for that very same repair.
While the court finds Honeywell’s arguments against the application of the discount attribution test persuasive, it need not make a determination about whether the test should actually apply. Even applying the discount attribution test, Aerotec has not shown that Honeywell’s pricing fails the test. Aerotec used Honeywell’s “pricing summary sheets” in its calculations.
C. Price Discrimination
In addition to the Sherman Act claims, Aerotec brings a price discrimination claim under the Robinson-Patman Act.
Aerotec alleges that both airline customers and affiliated MRO service providers receive the benefit of Honeywell’s price discrimination because they are offered Honeywell’s catalog prices without a premium. It does not point to specific instances of price discrimination but generally asserts that it has to pay 15% above Honeywell’s catalog prices while affiliates and airlines receive the catalog prices or lower.
Aerotec cannot base its price discrimination claim on the different prices offered to airline customers who buy component parts from Honeywell and then perform their own APU repairs because there is no competitive injury involved. To the extent those airlines do not bid for other MRO service contracts, they operate on a different level than Aerotec and are not competitors.
Honeywell puts forward evidence to demonstrate that the “favored” affiliated MRO service providers are parties to agreements with Honeywell that are materially different from the purchase-to-purchase agreements Aerotec has with Honeywell.
Aerotec argues that spot sales and long-term contracts should only be considered materially different if those long-term contracts actually set a negotiated set selling price for the product at issue. In those situations, long-term contracts reduce both parties’ exposure to changes in the market price of a commodity and thus reflect different market conditions. Aerotec points to evidence set forth in its contravening statement of facts to argue that Honeywell does not actually negotiate pricing in its affiliate contracts and that affiliates do not receive a long-term price discounts, but instead pay whatever the catalog prices may be at the time of the order and without any additional premium.
D. State Law Claims
Plaintiff pled several state law claims. The Sixth Claim is for violation of the Arizona antitrust laws. That claim must be dismissed for the same reasons that summary judgment is appropriate on all of the federal antitrust claims.
The Seventh and Eighth Claims allege tortious interference, which under state law requires a showing that the defendant’s interfering conduct was both intentional and improper.
Aerotec’s Ninth Claim alleges Honeywell published injurious falsehoods regarding Aerotec in order to prevent customers from doing business with it in violation of state law. In order to establish a claim for injurious falsehood, Aerotec must show that Honeywell published false information that is “derogatory to [its] business” and “calculated to prevent others from dealing with [Aerotec].”
The Tenth Claim alleges that Honeywell violated Arizona’s Consumer Fraud statute. The statute makes it illegal to engage in any “deception, deceptive or unfair act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely on such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise, whether or not any person has in fact been misled, deceived or damaged thereby.”
V. CONCLUSION
Based on the preceding discussion, Plaintiff’s motion for summary judgment at docket 107 is DENIED. Defendant’s motion for summary judgment at docket 115 is GRANTED. The clerk will please enter judgment for Defendant.
. Fed.R.Civ.P. 56(a).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id.
. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Id. at 323, 106 S.Ct. 2548.
. Id. at 323-25, 106 S.Ct. 2548.
. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505.
. Id. at 255, 106 S.Ct. 2505.
. Id. at 248-49, 106 S.Ct. 2505.
. 15U.S.C. § 1.
. State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997).
. Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1155 (9th 2001) (quoting Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1410 (9th Cir. 1991)).
. Id. at 1157.
. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984), abrogated on other grounds by Illinois Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 126 S.Ct. 1281, 164 L.Ed.2d 26 (2006).
. Brantley v. NBC Universal, Inc., 675 F.3d 1192, 1197 (9th Cir. 2012).
. Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 913 (9th Cir. 2008).
. 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992).
. Id. at 463, 112 S.Ct. 2072.
. Id. at 463 n. 8, 112 S.Ct. 2072; see also 10 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1748 at 253 (3ded. 2011).
. Eastman Kodak, 504 U.S. at 458, 463, 112 S.Ct. 2072.
. This distinction is discussed in 10 Areeda & Hovenkamp, supra note 19, at ¶ 1748 at 253:
Rather than merely seeking to sell the same bundle to machine owners, the plaintiffs sought to sell unbundled service to customers of Kodak parts. Only those customers are foreclosed by a tie. Customers desiring only the parts/service bundle buy a single finished product, for they are not foreclosed to the plaintiffs by a tie but only by Kodak's refusal to sell parts to the plaintiffs.
. Doc.116-3. Aerotec does not dispute this fact but argues that the delivery of such parts are untimely. This issue will be addressed in relation to Aerotec’s Section 2 claims, but it is not relevant to the tying claim. The relevant issue is whether any customers are foreclosed from Aerotec because of a tie.
. Paladin Assocs., Inc. v. Montana Power Co., 328 F.3d 1145, 1159 (9th Cir. 2003).
. 515 F.3d at 914.
. Id. at 915.
. Aerotec does not dispute this figure. Doc. 116 at ¶ 9; Doc. 138 at ¶ 9.
. See 10 Areeda & Hovenkamp, supra note 19, ¶ 1758b at 363 (suggesting separate sales below 10% presumptively indicates a de facto tie).
. Id. ¶ 1758 at 358 (suggesting a "presumption of non-tying if either (1) the bundle passes the attribution test or (2) a sufficiently large number of customers are observed who purchase the secondary product from someone other than the defendant”). Aerotec argues that Honeywell's bundled discount does not pass the attribution test. However, as explained in 10 Areeda & Hovenkamp, supra note 19, ¶ 1758 at 358, the court will presume non-tying even if the bundle does not pass the attribution test as long as there is sufficient evidence of separate sales. Moreover, Aero-tec has not demonstrated that Honeywell’s bundled pricing fails the attribution test, as discussed in detail below.
. Paladin, 328 F.3d at 1160 (noting evidence of coercion can consist of a written contract with a seller with market power that contained a provision requiring a buyer to purchase the tied product or deposition testimony by a buyer confirming that a defendant refused to sell the needed tying product unless the buyer also bought the tied product).
. Cascade Health, 515 F.3d at 914-15 (finding evidence of coercion based in part on a customer's testimony that she had been “held hostage” by defendant’s pricing practices).
. Paladin, 328 F.3d at 1160 (noting that evidence of coercion has been found when a plaintiff produces a written contract that required the purchase of the tied product on “extremely onerous terms”).
. ZF Mentor, LLC v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012).
. Id.; see also Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991, 996 (9th Cir. 2010).
. ZF Meritor, 696 F.3d at 270; Allied Orthopedic, 592 F.3d at 996.
. See Hairston v. Pac. 10 Conference, 101 F.3d 1315, 1319 (9th Cir. 1996) (applying a burden-shifting analysis to determine whether the restraint’s harm to competition outweighs its pro-competitive effects).
. Id.
. See Bhan, 929 F.2d at 1413.
. Les Shockley Racing, Inc. v. Nat’l Hot Rod Ass'n, 884 F.2d 504, 507 (9th Cir. 1989); see also Kaplan v. Burroughs Corp., 611 F.2d 286, 291 (9th Cir. 1979) (stating that proof of impact on competition "is an absolutely essential element” in a rule of reason case).
. Allied Orthopedic, 592 F.3d at 996 n. 1.
. Id. at 996, 996 n. 1.
. Les Shockley, 884 F.2d at 508.
. Doc. 137 atp. 21.
. Doc. 116 at ¶¶ 34-36; Doc. 138 at ¶¶ 34-36.
. Les Shockley, 884 F.2d at 508-09.
. See doc. 138 at ¶ 9 (challenging the inclusion of 16 of the 65 repair firms listed by Honeywell, leaving 49 unchallenged).
. 15 U.S.C. § 2.
. Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004).
. Id.
. Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1202 (9th Cir. 1997) (“Eastman Kodak II”).
. Cascade Health, 515 F.3d at 893.
. Rebel Oil Co., Inc. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995).
. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977).
. Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1055 (9th Cir. 1999).
. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993).
. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993).
.Trinko, 540 U.S. at 408, 124 S.Ct. 872.
. See Pool Water Prods. v. Olin Corp., 258 F.3d 1024, 1034 (9th Cir. 2001) ("[T]he antitrust laws are only concerned with acts that harm 'allocative efficiency and raise[] the price of goods above their competitive level or diminish[] their quality.' ” (quoting Rebel Oil, 51 F.3d at 1433)).
. 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985)
. Id.
. Aspen Skiing, 472 U.S. at 608, 610-11, 105 S.Ct. 2847.
. Trinko, 540 U.S. at 409, 124 S.Ct. 872.
. 3B Areeda & Hovenkamp, supra note 19, ¶ 774e at 279.
. Trinko, 540 U.S. at 408, 124 S.Ct. 872 (noting that "[e]nforced sharing [] requires antitrust courts to act as central planners, identifying the proper price, quantity, and other terms of dealing,” and that courts are "ill-suited” for such a role).
. See MetroNet Servs. Corp. v. Qwest Corp., 383 F.3d 1124, 1132-34 (9th Cir. 2004) (noting that dealing with a competitor only on unreasonable terms and conditions can amount to a practical refusal to deal).
. See Eastman Kodak II, 125 F.3d at 1206 (noting that a dominant share of the market often carries with it the power to control output and prices and that courts generally require a 65% market share to show dominant share).
. See doc. 138 at ¶ 9.
. Cascade Health, 515 F.3d at 894.
. Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 555 U.S. 438, 452, 129 S.Ct. 1109, 172 L.Ed.2d 836 (2009) ("If there is no duty to deal at the wholesale level and no predatory pricing at the retail level, then a firm is certainly not required to provide both of these services in a manner that preserves its rivals’ profit margins.”).
. Doc. 137 at p. 38.
. Brooke Grp., 509 U.S. at 222, 113 S.Ct. 2578 (noting that it is the plaintiff's burden to prove predatory pricing).
. Doc. 116 at ¶¶ 41-50 (and exhibits cited therein).
. Doc. 116 at ¶¶41, 43 (and exhibits cited therein).
. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
. Doc. 142 at 10 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Doc. 107 atpp. 16-17.
. Cascade Health, 515 F.3d at 906.
. Id. at 909-10.
. Doc. 122 at pp. 13-14.
. Doc. 108 at ¶ 131; Doc. 108-13 (Ex. 117).
. Doc. 123 at ¶ 131; Doc. 116 at ¶¶ 38-40; Doc. 116-1 (Ex. 1).
. Doc. 116 aM38; Doc. 116-1 (Ex. 1).
. 15 U.S.C. § 13(a).
. Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 176, 126 S.Ct. 860, 163 L.Ed.2d 663 (2006) (internal quotations and citations omitted).
. Id.
.See Feesers, Inc. v. Michael Foods, Inc., 591 F.3d 191, 197, 203-05 (3d Cir. 2010) (no competitive injury demonstrated where the supplier charged distributors higher prices than those charged to direct customers); O’Byrne v. Cheker Oil Co., 530 F.Supp. 70, 71 (N.D.Ill. 1981) (holding that sales to distributors at higher prices than direct sales to consumers were not actionable because consumers did not re-sell the product therefore do not compete with distributors).
. Doc. 116 at ¶¶ 19-20 (and exhibits cited therein).
. Coalition for a Level Playing Field, LLC v. AutoZone, Inc., 813 F.Supp.2d 557, 566 (S.D.N.Y. 2011); see also Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 990 F.2d 25, 27 (1st Cir. 1993) (suggesting but not deciding that high-priced purchases on the spot market and sales under a long-term contract are not reasonably contemporaneous); 14 Ar-eeda & Hovenkamp, supra note 19, ¶ 2313d at 37-38.
. Coastal Fuels, 990 F.2d at 27.
. Doc. 116 at ¶¶ 17, 20-23 (and exhibits cited therein).
. Doc. 138 at ¶ 141 (Ex. G).
. Doc. 142-1.
. Doc. 116 at ¶ 20. See, e.g., doc. 116-3 at p. 39 (Ex. 17); doc. 116-4 atpp. 43, 52 (Ex. 21); doc. 116-5 at pp. 6, 53; doc. 116-6 at p. 7.
. Doc. 115 atp. 44.
. Bunker's Glass Co. v. Pilkington PLC, 206 Ariz. 9, 75 P.3d 99, 106 (2003) (en banc) (noting that when interpreting Arizona's antitrust statute, Arizona courts "follow[ ] federal law in determining the standard of conduct required by antitrust law”).
. Safeway Ins. Co. v. Guerrero, 210 Ariz. 5, 106 P.3d 1020, 1026 (2005) (enbanc).
. Doc. 137 at p. 44 (conceding that its tor-tious inference claims "live or die based on [its] federal antitrust claims”).
. Aldabbagh v. Ariz. Dep’t of Liquor Licenses and Control, 162 Ariz. 415, 783 P.2d 1207, 1213 (Ariz.Ct.App. 1989).
. Doc. 116 at ¶ 136; Doc. 116-11 (Ex. 103).
. Fed.R.Evid. 801, 802.
. See Fed.R.Civ.P. 56(e); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
. A.R.S. § 44-1522(A).
. A.R.S. § 12-541(5).
.Doc. 108 at ¶¶ 90-95; Doc. 108-13 (Ex. 76).
This amended order and opinion corrects the docket numbers associated with the parties’ motions.
Reference
- Full Case Name
- AEROTEC INTERNATIONAL, INC. v. HONEYWELL INTERNATIONAL, INC.
- Cited By
- 8 cases
- Status
- Published