NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-2208 _____________

HELICOPTER HELMET,LLC, a Delaware Limited Liability Company; GOVERNMENT SURPLUS SALES INC., d/b/a Government Sales, Inc., Appellants

v.

GENTEX CORPORATION, a Delaware Corporation; FLIGHT SUITS, a California Corporation, d/b/a Gibson & Barnes; JAMES T. WEGGE, an individual

______________

On Appeal from United States District Court for the District of Delaware (District Court No. 1-17-cv-00497) District Judge: Honorable Matthew W. Brann ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 11, 2019 ______________

Before: McKEE, PORTER, and ROTH, Circuit Judges.

(Opinion filed: July 29, 2019)

_______________________ OPINION

McKEE, Circuit Judge.

Helicopter Helmet, LLC appeals the district court’s grant of a motion to dismiss

filed by Gentex Corporation, Gibson & Barnes, and James T. Wegge. In a thorough and

well-reasoned opinion, Judge Brann explained that Helicopter Helmet had failed to state

a claim for which relief could be granted for alleged violations of federal antitrust laws,

the Lanham Act, and Delaware’s Deception Trade Practices Act, along with common-law

claims for unjust enrichment and defamation.1 For the reasons set forth in that opinion as

briefly discussed below, we will affirm the order dismissing this complaint.

I.2

Helicopter claims that because the helicopter helmet manufacturing market

consists of only six competitors, Gentex and G&B’s actions violated federal antitrust

laws. However, Helicopter has not established antitrust standing or an antitrust violation.

Helicopter argues that because there are only six manufacturers of the helicopter

helmets in question, any damage inflicted on one manufacturer by Gentex and G&B’s

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 Helicopter Helmet, LLC v. Gentex Corp., No. 17-cv-00497,

(D. Del. 2018). 2 The District Court had jurisdiction pursuant to

, 1337(a), and 1367. We now have jurisdiction pursuant to

. We review a district court’s granting of a motion to dismiss de novo. See Eurofins Pharma US Holdings v. BioAlliance Pharms SA,

(3d Cir. 2010).

2 actions effects the entire market. This is not an argument for a particularized harm and is

not sufficient to establish antitrust injury.3 The Supreme Court has rejected the

proposition that a company may establish an antitrust injury by averring that absent the

defendant’s conduct it would have performed better.4 “There must be a causal link

between the alleged injury and an antitrust violation’s anticompetitive effects.”5 But

here, as in Philadelphia Taxi Association, Inc v. Uber, the Appellants “fail to aver an

antitrust injury, such as a negative impact on consumers or to competition in general, let

alone any link between this impact and the harms Appellants have suffered.”6

To establish a violation of the Sherman Act, Helicopter must prove “(1) that the

defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent

to monopolize and (3) a dangerous probability of achieving monopoly power.”7 This test

cannot be met here. Helicopter alleges that Gentex and G&B influenced government

officials to publish false reports aimed at hindering them from competing in the market.

Government officials removed those reports and cancelled the sole-source contract that

had been awarded to G&B. Because Helicopter fails to state a particularized financial

harm that can be traced back to G&B’s actions, their claims fail even when viewed in the

light most favorable to Helicopter.

3 See Eichorn v. AT&T Corp.,

(3d Cir. 2001) (collecting cases). 4 See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

(1977). 5 Phila. Taxi Ass’n, Inc v. Uber Technologies, Inc.,

(3d Cir. 2018). 6

. 7 Mylan Pharm. Inc. v. Warner Chilcott Pub. Ltd. Co.,

(3d Cir. 2016) (internal citations omitted).

3 Under the Noerr-Pennington doctrine, “antitrust liability cannot be predicated

solely on petitioning to secure government action.”8 The district court correctly

concluded that since Helicopter’s antitrust claims are premised on Gentex’s and G&B’s

alleged attempts to influence certain government agencies’ action, they necessarily fail.9

For the reasons clearly stated in the district court’s opinion, Helicopter has failed

to state claims for defamation,10 unjust enrichment,11 violation of the Lanham Act,12 of

the Delaware Deceptive Trade Practices Act.13

Therefore, we will affirm the judgment of the district court.

8 Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hosp.,

(3d Cir. 1999). 9 Helicopter,

, at *6. 10 Id. at *4. 11 Id. 12 Id. at *5-6. 13 Id. at *5. 4