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The burden is on the plaintiff both to establish the relevant market and to prove it is realistically in the relevant markets it postulates. See Arthur S. Langenderfer, Inc. Johnson Co. The product market includes products which are reasonably interchangeable by consumers for the same purpose or have a high cross elasticity of demand.
See United States v. Cross elasticity focuses on "the extent to which customers will change their consumption of one product in response to a price change in another. Image Technical Services, Inc. The geographic market consists of the area of effective competition.
Bacchus Indus. Arvin Indus. A party has monopoly power if it has the ability to control prices or exclude competition in a relevant market. Hilltop Concrete Corp. American Standard, Inc. As Langenderfer stated: Competition is a ruthless process. A firm that reduces costs and expands sales injures rivals sometimes fatally. The firm that slashes costs the most captures the greatest sales and inflicts the greatest injury.
The deeper the injury to rivals, the greater the potential benefit. These injuries to rivals are by-products of vigorous competition, and the antitrust laws are not balm for rivals' wounds. Mutual Hospital Insurance, Inc. See also United States v. Aluminum Co. The focus, therefore, is on whether plaintiffs have raised a genuine issue of material fact that defendants' alleged conduct has harmed consumers and competition. Each has separate elements and merits individual attention.
United States v. Grinnell Corp. A determination of monopoly power is closely tied to the defendant's market share. While a high percentage of market share does not necessarily indicate a firm's capacity to achieve a monopoly, Richter, F. There is no hard and fast rule as to what percentage of market share is required to establish a monopoly.
Mowery v. Standard Oil Co. Ohio , aff'd without opinion, F. Dick Co. Byars v. Bluff City News Co. Although the "starting point" in Byars is a bit high compared to other cases, the Court finds reasonable and well-supported another Sixth Circuit case which stated, "There is substantial merit in a presumption that market shares below 50 or 60 percent do not constitute monopoly power. Factors such as competitiveness of the market, number and strength of competitors, market trends and the presence or absence of significant barriers to entering the market also are useful in determining whether a defendant has monopolized a market.
See Bacchus Industries, Inc. Arvin Industries, Inc. Even if monopoly power can be established, a plaintiff still bears the burden of showing that such power is acquired or maintained willfully rather than as a consequence of superior product, business skill or historic accident. Grinnell, U. The distinction between legal, shrewd competition and illegal, willful monopolization may be blurred at times. The plaintiff bears the "stiff burden" of showing that the challenged conduct is more than "unfair, impolite or unethical," Langenderfer, F.
Attempted Monopolization The elements of attempted monopolization are 1 anticompetitive conduct; 2 specific intent to monopolize; and 3 a dangerous probability of success. Langenderfer, F. United States, U. Specific intent requires proof that a defendant aimed "to destroy competition or build monopoly.
Merely showing that defendant desired to increase market share does not satisfy this standard. See United States Steel Corp. Fortner Enterprises, Inc. The presence of a dangerous probability of success is closely linked to a defendant's market share. Establishing that the defendant has a significant share of the market is an essential part of an attempted monopolization claim. Conspiracy to Monopolize Elements of a claim for conspiracy to monopolize are 1 the existence of a combination or conspiracy; and 2 specific intent to monopolize.
Richter, F. Both elements may be established by either direct or indirect proof. See American Tobacco Co. Proof of a dangerous probability of success is not necessary to establish a conspiracy claim. However, where the defendants' actions are ambiguous and could be motivated by factors other than an attempt to monopolize, the likelihood of success is a factor in determining whether the defendants had the requisite specific intent to monopolize.
Hunt-Wesson Foods, Inc. Ragu Foods, Inc. See also Bailey's, Inc. Windsor America, Inc. Analysis After extensive review, the Court determines that plaintiffs' claims for monopolization, attempted monopolization and conspiracy to monopolize do not raise genuine issues of material fact. Plaintiffs' claims suffer from two equally serious flaws, either of which would support a grant of summary judgment. First, the claims rest upon plaintiffs' expert's statistics and conclusions which are not supported by a credible economic or demographic foundation.
Second, even if the statistical claims were accepted in full, they do not raise genuine issues of material fact sufficient to meet the "stiff burden," Langenderfer, F. Plaintiffs' Expert Testimony Plaintiffs' expert, economist Dr. Donald Martin, identified two product markets: the market for residential real estate brokerage services and the market for recruiting and retention of "experienced and successful" sales agents.
Martin defined defendants' market shares in each of the geographic markets as their respective percentages of the total dollar volume of residential sales of NORMLS listings from January 1, , through August 4, According to Dr. This particular definition of market power was created by Dr.
Martin, who had never published or previously used such a definition and could provide no economic or peer review literature to back it up. Martin's report and deposition testimony, Plaintiffs have not met their burden of defining the relevant geographic market. While it may be true that the residential real estate industry is essentially a local business, the rote adoption of the geographic areas used by NORMLS for statistical purposes does not satisfy Plaintiffs' responsibility to identify geographic markets which correspond to commercial realities of the industry and are economically significant.
By choosing to justify his geographic market definition with broad generalizations that "the geographic market in which agents conduct most of their business is very local" Martin Report at 24 , Dr. Martin fails to offer evidence that the particular geographic areas he defines are true independent markets. Martin lacked any meaningful knowledge about the population, geographical size, commercial activity or demographic statistics of the geographic markets he defined.
The markets ranged from tiny suburbs with population of less than 1, to cities the size of Lorain pop. Moreover, there is no evidence in the record that home sellers or buyers obtain real estate brokerage services exclusively or even largely from brokers within their specific NORMLS geographic area.
Nor is there evidence that brokers within the named geographic areas do not compete with outside brokers for the sale of homes within other geographic areas. Some geographically connected suburbs are substantially similar in size, demographics and home values. There is no reasonable explanation why they should be separated into distinct geographic submarkets. Even if the Court were to accept the arbitrary classification of northeast Ohio into geographic markets for residential real estate services, Dr.
Martin's statistics are skewed. First, he derived his market share from the percentage of the dollar value of homes sold rather than from a percentage of homes actually sold. Second, his statistics cover a month period from to , while this lawsuit is based upon and seeks damages from events dating back to Such an approach ignores the fact that a significant amount of residential real estate transactions are conducted each year without the use of the multiple listing service.
Martin's attempt to establish the same geographic areas as the relevant geographic markets for recruiting and retaining real estate agents fails for the same reasons. There is no evidence that the brokers who recruit agents restrict their searches to Dr.
Martin's particularized geographic communities. In sum, Plaintiffs have failed to adequately define a relevant geographic market to support their monopolization claims. This is fatal to the claims. In the interest of thoroughness, however, the Court does not rest its conclusion merely on the infirmities of the market definition.
Even if the Court were to accept for the sake of argument that 1 Dr. Martin had adequately defined the geographic markets and 2 that the market shares he attributes to defendants were valid, the monopolization claims still would fail as a matter of law. They now offer a "leveraging" theory that defendants' conduct in that market injures them in the market for recruiting and retaining real estate agents and brokers. The Monopolization Claims a. Martin's statistics, Smythe Cramer has market shares of Property Professionals claims that these market shares, in the context of the "unique nature" of the real estate industry, establish that Smythe Cramer enjoyed market power in those communities.
Response Memorandum, Docket No. These relationships allegedly permit Smythe Cramer to use its relatively large share in the Hudson and Aurora markets to control prices and exclude competition. For example, Property Professionals alleges that Smythe Cramer imposes adverse commission splits on brokers attempting to offer discount commissions, a practice that deters competitors from reducing prices and causes prices to stay above competitive levels.
Property Professionals' argument that the "unique characteristics" of the real estate industry permit a finding of a monopoly ignores the fact that other characteristics of the industry make the establishment of a monopoly far more difficult. For example, anyone who passes a state licensing test can enter the field, and the overhead required to establish an office is minimal compared to that of most other industries. The sheer volume of real estate companies and offices is indicative of the relative ease of entry into the field.
Recognizing the uphill battle it faces to establish the existence of a monopoly in light of Smythe Cramer's market shares, Property Professionals argues that there is no per se rule that a certain percentage of market share is necessary to establish a monopoly. Monopoly power is the power to "control prices or exclude competition.
While Smythe Cramer can control its own prices and set its rates on commission splits, there is no evidence that its policies have controlled market prices or excluded competition. If Smythe Cramer were successfully controlling prices, one would expect to see higher overall commission rates in areas in which Smythe Cramer has a monopoly than in areas in which it lacks a monopoly.
No such evidence has been presented. Excluding competition requires more than adopting policies which tend to harm specific competitors. Indeed, after years of alleged anticompetitive activity, Smythe Cramer still possesses well under half the market share in both communities, and there is no evidence of a steadily increasing market share for Smythe Cramer as a result of its policies. Therefore, its claim of monopolization fails. Plaintiffs' response to Realty One's summary judgment motion fails to point out which franchisees do business in these communities.
Such a showing is vital to establishing whether the individual franchisees are harmed by Realty One's alleged monopoly in a specific community. Their claims are thus without merit. Still to be considered are plaintiffs' claims that Realty One monopolized the Westlake and Bay Village markets.
Those percentages are not sufficient to rebut the presumption of no monopoly,[21] particularly when there are no statistics indicating whether Realty One's market share increased after initiating the alleged anticompetitive activity and there is no evidence that there were true entry barriers to the real estate industry.
The Attempted Monopolization Claims The attempted monopolization claims of Property Professionals against Smythe Cramer and the five franchisees against Realty One suffer from the same infirmity: they fail to establish that the defendants had either a specific intent to monopolize or a dangerous probability of success.
Construing the evidence favorably toward the plaintiffs, the ACS could be interpreted as an effort to drive the plaintiffs out of business. However, monopolization is the destroying of competition, not the destroying of a competitor. Times-Picayune Publishing Co. Evidence of targeting a single competitor for destruction, without more, is not evidence of an attempt to destroy competition, particularly in a marketplace featuring a significant number of competitors. This is particularly true because plaintiffs have failed to establish that either Smythe Cramer or Realty One has a dangerous probability of success in achieving monopolization.
The alleged anticompetitive acts began in and continue to this day. Yet plaintiffs fail to present evidence showing whether the market share of defendants has grown since Finally, the relative ease of entry into the real estate field, evidenced by the presence of large numbers of real estate companies in most communities, further refutes any inference that Smythe Cramer or Realty One has a dangerous probability of achieving monopolization.
The defendants' predominance in certain communities is not tantamount to monopolization or near-monopolization. The Conspiracy to Monopolize Claims Plaintiffs' failure to establish the specific intent element necessary for an attempted monopolization claim is likewise fatal to their conspiracy to monopolize claims. Without more, and given the fact that there may be legitimate business reasons for such action, plaintiffs fail to establish that defendants specifically intended to establish monopolies.
The conspiracy claim suffers from a second infirmity as well. Plaintiffs have not raised a genuine issue that any purported agreement by the two competitors would have been made to enhance the alleged monopolization goals of either defendant. Similarly, Ohio's Valentine Act, O. Although the federal and state statutes are worded slightly differently, the goals are the same. Both condemn combinations having for their purpose restraints on trade or commerce.
Fairview Shopping Ctr. Consequently, an analysis based upon the Sherman Act will encompass the Ohio claims as well. See Richter Concrete Corp. Hilltop Basic Resources, F. Ohio , aff'd, F. American Hosp. Supply Corp. There are two standards for evaluating whether a restraint of trade is unreasonable: the rule of reason and the per se rule. USA Petroleum Co. Indiana Federation of Dentists, U. Under the rule of reason, the plaintiff bears the burden of establishing the challenged activity's unreasonable effect on competition.
Under the per se rule, the challenged activity's unreasonableness is presumed. The nature of the restraint determines which rule will be applied. Atlantic Richfield Co. A horizontal conspiracy to fix prices is a type of restraint which falls under the per se standard. See Copperweld Corp. Independence Tube Corp. Therefore, assuming plaintiffs could prove a conspiracy to set prices, they would not have to prove further the unreasonable impact on commerce such conspiracy would have. It is critical to establish that there has been a contract, combination or conspiracy between separate entities.
Nurse Midwifery Associates v. Hibbett, F. Copperweld Corp. To support a claim of antitrust conspiracy, a plaintiff must present evidence that the defendants "had a conscious commitment to a common scheme designed to achieve an unlawful objective. Spray-Rite Service Corp. A plaintiff lacking direct evidence may use circumstantial evidence to infer the existence of a conspiracy through business behavior indicating "a unity of purpose or common design and understanding, or a meeting of the minds in an unlawful arrangement.
Industrial Co. Zenith Radio, U. The mere fact that a group of defendants' conduct is consistent with an illegal conspiracy does not support an inference of antitrust conspiracy. To survive summary judgment, a plaintiff must present evidence that "tends to exclude the possibility that the alleged conspirators acted independently.
In other words, the nonmoving party "must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action. Based upon Monsanto and Matsushita, the Sixth Circuit has adopted a two-part inquiry to determine whether circumstantial evidence can support an inference of conspiracy: 1 is the plaintiff's evidence of conspiracy ambiguous, i. Riverview Investments v. Ottawa Community Imp. Examples of evidence which could "tend to exclude the possibility" of independent conduct include actions contrary to a defendant's economic self-interest, product uniformity, exchange of price information, opportunity to meet, a large number of communications and a common motive to conspire.
Wallace v. Bank of Bartlett, 55 F. The presence of one or more of these "plus factors" helps raise an inference that the activities of two or more defendants was concerted. See id. Yet it is important to note that the presence of one or more of these "plus factors," in and of itself, is not sufficient to preclude judgment as a matter of law. In Wallace, plaintiffs alleged that a group of banks conspired to keep fees for writing checks on insufficient funds artificially high.
The Sixth Circuit noted that plaintiffs offered as circumstantial evidence "plus factors" such as exchange of price information and common motive to conspire. However, the appeals court, in affirming the district court's grant of summary judgment, noted that the banks provided legitimate business reasons for the presence of those factors, and plaintiffs failed to establish that the circumstantial evidence tended to exclude the possibility of independent conduct.
Wallace, 55 F. In Nurse Midwifery, midwives alleged that a doctor and a hospital conspired to deny the midwives hospital privileges. The district court found two "plus factors" present: the defendants had both a motive and an opportunity to conspire. However, the court further found that the defendants' alleged conduct was equally consistent with defendants' stated and legitimate reason for the denial.
The district court's granting of summary judgment was affirmed by the Sixth Circuit, which noted that plaintiffs did not explain how their circumstantial evidence tended to exclude the possibility that the privileges were denied for legitimate reasons. Nurse Midwifery, F. The Sixth Circuit noted that some of the defendants had a common motive to conspire and all of them had opportunities to meet.
However, those factors, in the context of the case, did not tend to exclude the possibility of independent conduct: "All may be consistent with conspiratorial conduct but The appeals court thus affirmed the grant of j. Thus the Sixth Circuit precedent counsels that the mere presence of "plus factors" is not enough to survive a summary judgment challenge unless those plus factors tend to exclude the possibility of independent conduct.
Plaintiffs thus face the burden of establishing a genuine issue of material fact of a conspiracy either by 1 direct evidence, or 2 circumstantial evidence which tends to exclude the possibility that Realty One and Smythe Cramer acted alone in imposing the ACS. If they rely on circumstantial evidence, they "must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action.
This is consistent with Sixth Circuit summary judgment principles which state that the nonmoving party must present sufficient evidence for a jury to return a verdict for that party. Street v. Plaintiffs argue that the circumstantial evidence includes a number of Wallace "plus factors" which support an inference of conspiracy.
Chief among such factors is the purported parallel pricing of Realty One and Smythe Cramer in imposing a similar ACS within six weeks of each other in Parallel pricing is not enough in itself to raise an inference of conspiracy.
However, plaintiffs argue there were other "plus factors" present, such as common motive, exchange of price information[24] and opportunities to meet. Martin, their expert economist, who theorized that it did not make economic sense for either defendant to impose and maintain the ACS without knowing that the other would do the same.
A: I expect that they would. Q: Do you know how much more successful they would have been? A: I don't have a number associated with that. Q: Would that have been an unfavorable outcome for Smythe Cramer in your view? A: Any time a competitor in the labor market In addition to this cross-examination of Dr. Thus the purported parallel pricing is at best "ambiguous," i.
Nor do the other alleged "plus factors" tend to exclude independent conduct. Each has a reasonable explanation independent of conspiracy. In the words of Riverview, "All may be consistent with conspiratorial conduct but Considered as a whole, the purported "plus factors" present no more than a scintilla of circumstantial evidence of conspiracy, not enough "for a jury to return a verdict" for plaintiffs.
Thus the circumstantial evidence does not present sufficient evidence of conspiracy to survive summary judgment. Plaintiffs alternatively offer "direct" evidence which they argue is sufficient to deny summary judgment. This evidence comes in the affidavit and deposition testimony of Leo Lee, former general manager and member of the executive committee of Realty One. According to Lee's affidavit, Vince replied that there was no need to worry because someone would have to prove that he had talked to L.
McKelvey the principal shareholder of Smythe Cramer. He then leaned forward, smiled and said, "Of course[,] we didn't. He stated further during his deposition, "Vince gave me the impression that he had done it, no one had seen it and we didn't have to worry about it. Defendants dispute the contention that Lee's testimony constitutes "direct" evidence of conspiracy. Plaintiffs argue that the statement and accompanying actions are admissible under Fed.
Bourjaily held that a trial court could consider the content of a co-conspirator's statement when determining whether a conspiracy existed. Importantly, however, Bourjaily restricted its holding to situations where the co-conspirator's statement helped corroborate other evidence of conspiracy. The Court stated, "We need not decide in this case whether the courts below could have relied solely upon [declarant's] hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence.
Bourjaily thus left open the question of whether an alleged conspiratorial statement can be admissible to establish a conspiracy in the absence of corroborating evidence. However, appellate courts which have considered the issue, including the Sixth Circuit, have unanimously held that establishment of a conspiracy requires some evidence in addition to the contents of the statement.
Clark, 18 F. Beckham, F. Sepulveda, 15 F. Daly, F. Zambrana, F. Silverman, F. Hernandez, F. Byrom, F. First, in order to admit a statement of a co-conspirator the movant must establish 1 that a conspiracy existed, 2 that the defendant was a member of the conspiracy, and 3 that the co-conspirator's statements were made in furtherance of the conspiracy.
Pierce, 62 F. The district court must make these determinations under a preponderance of the evidence standard. Corroborating evidence aside from the statement itself must be proffered to prove the existence of the conspiracy. The Court must determine whether corroborating evidence exists to support the introduction of Lee's testimony. Petroleum Products held that "evidence of conduct that is completely consistent with defendant's unawareness of the conspiracy cannot serve as corroborating evidence under Rule d 2 E.
If the purported corroborated evidence is circumstantial in nature, the Ninth Circuit applies the following standard: "In the antitrust context the [corroboration] requirement can be met if the circumstantial evidence offered in addition to the co-conspirator's statements is adequate to defend against summary judgment under Matsushita This requirement comports with the This Court has decided that the circumstantial evidence proffered by plaintiffs is insufficient to survive summary judgment.
In addition to its inadmissibility on the foregoing grounds, Lee's testimony of Aveni's "smile" suffers from a second fatal infirmity. Rule d 2 E requires the statement to be "during the course and in furtherance of the conspiracy" emphasis added.
Plaintiffs offer no credible evidence that the purported smile in any way furthered the alleged conspiracy. Moore, F. There is no evidence Aveni intended to draw Lee into the alleged conspiracy or enlist Lee to help accomplish the alleged conspiracy's objectives. Plaintiffs are left with no direct evidence and inadequate circumstantial evidence to support a denial of defendants' motion for summary judgment.
Count IX asserts a common law claim of unfair competition. Count X is a claim for tortious interference with business relations. Misrepresentation of Market Characteristics O. This contention is without merit. First, defendants' listing contract with sellers explicitly states that the defendants reserve the right to split commissions in varying amounts depending upon the broker. Second, plaintiffs offer no evidence that the ACS practice in fact restricts the market as they claim.
Accordingly, the claim based upon misrepresentation of the characteristics of the market fails. Disparagement O. Defendants deny wrongdoing and assert that any alleged disparaging statements would have been protected by a qualified privilege. Ohio law attaches a conditional or qualified privilege to statements "fairly made by a person in Kotten, 43 Ohio St.
Factors establishing a conditionally privileged communication include "good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. Ohio Bldg. Trades Council, 73 Ohio St. The Court finds that defendants have established the existence of a qualified privilege in this case. The communications went toward a legitimate interest, i. They were not disseminated to the general public and appear to have been communicated in a legitimate manner.
However, Ohio law does not require the type of "common interest" to which plaintiffs allude. Hahn makes clear that a defendant has a right to communicate with parties with which it has a contract in an effort to maintain that contract, and "a qualified privilege arises when such communications are made in which the person communicating has the interest. Jacobs v. Frank, 60 Ohio St. Actual malice goes beyond a showing of ill will or enmity; the plaintiff must prove that defendants made the statements with knowledge that they were false or with reckless disregard for their truth or falsity.
However, plaintiffs' claim is flawed in several respects. First and most importantly, Plaintiffs have not established that defendants' claims were made with actual malice. The evidence does not indicate by a preponderance, much less to a clear and convincing degree, that defendants were knowingly or recklessly spreading false information about defendants. But that is to be expected in a competitive industry, and the Court does not find a genuine issue of material fact that the statements were made with actual malice.
Second, plaintiffs are unable to even remotely articulate any specific damages from the alleged disparagement. Finally, most of their claim consists of general accusations without attributing them to any specific defendant or claiming disparagement of any particular plaintiff. See Sorin v. Board of Ed. Ohio defamation of business claim must stated with specificity. Why is a value of exactly 0. Further, how are you supposed to arrange and line up objects in your scene when, in rendered view, the displacement maps will push them out of position, even if those maps are only supposed to create displacement in specific areas.
The Problem in Practice This is the problem I am having at the moment. I have a plane which is supposed to be a snowy field, and I am using a displacement map to give some depth to the snow. In rendered view, my plane jumps up significantly. This is what lead me to investigate my understanding of displacement maps, and to this question.
Additionally, what is the correct way to increase and decrease the strength of a displacement map? At the moment, I will run them through a Math node set to multiply, however, as you might imagine, this exaggerates the issue that I am complaining about above.
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