Eighth Circuit

Eighth Circuit decisions

Establishing antitrust liability based on fraudulent procurement of patents

Inline Packaging, LLC v Graphic Packaging Int’l, LLC

The Eighth Circuit considered an appeal by the plaintiff, Inline Packaging, LLC (Inline), a producer of susceptor packaging (i.e., a specialist packaging for microwaving food), against the defendant, Graphic Packaging International (Graphic), in a suit brought under the Sherman Antitrust Act and Minnesota antitrust law.^[1] Inline produced susceptor packaging, and Graphic produced both susceptor packaging and paperboard and carton packaging. Both Inline and Graphic supplied consumer packaging groups such as Nestlé, Conagra, Heinz, Schwan’s, and Pinnacle. When this suit was filed, Graphic held approximately 95 percent of the US susceptor packaging market and Inline held approximately 4.6 percent.^[2] Nestlé initially awarded a contract to Inline, but subsequently decided to split the contract between Inline and Graphic since Graphic held the patent for a necessary design.^[3] Inline sued Graphic, asserting claims for fraudulently procured patents, baseless litigation threats relating to the asserted patents, use of predatory-discount bundling in supply agreements, and tortious interference with prospective business and contractual relations.^[4] The district court dismissed Inline’s claims.

In 2001, Graphic and Chef America, Nestlé’s predecessor, partnered on two projects that included developing an original design for a susceptor sleeve.^[5] Graphic created drawings of Chef America’s concept and sold 500 sample sleeves to Chef America for a little over $3,600. In 2005, Graphic and Nestlé entered into a joint development agreement (JDA) to redesign the susceptor sleeve.^[6] The JDA included a provision for seven years of mutual exclusivity whereby Nestlé would purchase 100 percent of its requirements from Graphic and Graphic would provide the packaging only to Nestle.^[7] Graphic then obtained patents for the redesign of the susceptor sleeve with the United States Patent and Trademark Office (USPTO) and listed its employee as the first and sole inventor of the redesign. Graphic did not mention the engineer from Nestlé who assisted with the redesign. A few years later, Inline secured the susceptor business of Nestlé’s Kahiki product line and Graphic filed a patent infringement suit against Inline in a separate action. Shortly thereafter, Inline filed the present suit.^[8]

The court considered each of Inline’s claims and affirmed the district court’s dismissal of each. The court found that Inline’s claim did not present the requisite intent for fraudulent procurement, which requires an ‘intent to deceive or, at least, a state of mind so reckless as to the consequences that it is held to be the equivalent of intent (scienter).’^[9] Although the court agreed with Inline’s claim that Graphic designed the patent at issue with assistance from Nestlé, the court found Graphic’s argument that no former or current employee at Nestlé claimed to be an inventor, or co-inventor, conclusive for warranting dismissal.^[10] The court affirmed the approach in Pro-Mold & Tool Co v Great Lakes Plastics, Inc,^[11] that ‘[w]hen an alleged omitted co-inventor does not claim to be such, it can hardly be inequitable conduct not to identify that person to the [US]PTO as an inventor.’ ^[12] Inline attempted to distinguish this instance by asserting that Nestlé had not disaffirmed inventorship as was done in Pro-Mold & Tool,^[13] whereby an alleged co-inventor agreed that it was his father who conceived the idea. The court found that regardless of whether the inventor at Nestlé disaffirmed ownership, there must be an affirmative claim of inventorship by another party.^[14]

The Eight Circuit also rejected Inline’s argument that Graphic defrauded the USPTO by concealing the prior sales made in 2001 to Chef America. Graphic did not dispute that the prior sales occurred, but argued that (1) the employees identified by Graphic as owing a duty to disclose did not know the prior sales were material, and (2) the sales of $3,600 were not material. The court agreed with the former argument by Graphic and concluded that the employees identified by Inline were not on notice of the existence of material information and thus had no duty to investigate or disclose the sales.^[15] Mere gross negligence was affirmed to be insufficient to satisfy the requisite deceptive intent.^[16] The court distinguished this case from Brasseler, USA I, LP v Stryker Sales Corp,^[17] whereby patentee’s attorneys were notified of an event with the potential of creating an on-sale bar.^[18] Here, none of the employees identified by Inline were notified of the existence of sales material to the patentability of the asserted patent and thus had no duty to disclose.

The Eight Circuit also rejected Inline’s additional theory of antitrust liability for sham threats and litigation.^[19] The sham exception to the Noerr-Pennington doctrine^[20] consists of two elements:

First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation.^[21]

Inline argued that the patent infringement suit by Graphic was a sham since Graphic knew the asserted patents were invalid. Graphic argued that Inline’s claim relied exclusively on the same facts as those in the alleged fraudulently procured patent claims. The court found that Inline did not meet its burden of demonstrating that there was objectively no basis for Graphic’s patent infringement claims. The court agreed with Graphic’s argument and found that Inline had not established why the same set of facts and evidence for the fraudulent procurement claims would render the patent infringement baseless.^[22]

Inline’s claims that Graphic engaged in discount bundling and leveraged sales of susceptor packaging with paperboard packaging were also dismissed. Inline alleged that Graphic’s supply agreements, which included both susceptor and paperboard packaging, were anticompetitive. Graphic argued that it did not engage in bundling because discounts on paperboard were not conditioned upon the purchase of susceptor packaging and it did not hold monopoly power in the paperboard market. The court held that Inline had not sufficiently shown that Graphic was a monopolist and declined to consider what the standard would be in the Eighth Circuit for determining discount bundling as anticompetitive. The court found that although Graphic held market power in the susceptor packaging market, Graphic faced significant competition in the paperboard packaging market, which was found to be a relevant and leveraging market.^[23]

The court also considered whether Inline properly pleaded claims of anticompetitive conduct through the use of exclusive dealing. Inline argued claims of ‘antitrust implications of the exclusivity provisions of Graphic’s bundles, and Graphic’s exclusive arrangement with Nestl[é], which together foreclosed competition for more than 85% of the susceptor market.’ ^[24] The court declined to search the record for factual disputes and found that Inline failed to make sufficient citations to the record, showing it had actually pleaded an exclusive dealing claim. The court affirmed the district court’s ruling noting that ‘while we recognize that the pleading requirements under the Federal Rules are relatively permissive, they do not entitle parties to manufacture claims, which were not pled, late into the litigation for the purpose of avoiding summary judgment.’ ^[25]

This case affirms and strengthens the bar used in Pro-Mold & Tool that plaintiffs must meet to allege fraudulently procured patents in an antitrust claim. Fraudulent procurement of a patent requires ‘intent to deceive or, at least, a state of mind so reckless as to the consequences that it is held to be the equivalent of intent (scienter).’ ^[26] As applied, when the claim is based on false representation of inventorship, there must be an affirmative claim by an alternative inventor; and when the claim is based on failure to disclose material information, mere gross negligence is insufficient and a duty to investigate or disclose only exists if there is notice of the existence of material information.

Establishing the scope of relevant markets

Trone Health Servs, Inc v Express Scripts Holding Co

The plaintiffs (Trone Health Services, Inc, Reddish Pharmacy, Inc, Jobos Pharmacy, Inc, Oak Tree Pharmacy, Amex Pharmacy, and Amrut Jal, LLC (the Pharmacies)), brought suit for breach of contract and attempted monopolization against the defendants (Express Scripts Holding Company, Express Scripts, Inc, Express Scripts Mail Order, Inc, Express Scripts Mail Pharmacy Service, Inc (together, Express)), who are administrators of a prescription drug plan.^[27] The Pharmacies consist of five locally owned retail pharmacies that participated in Express’s pharmacy network and were required to supply Express with each customer’s identity, address, insurer, prescribed medication, the prescribing doctor, the quantity and dosage, the patient’s mailing address, and the number of refills authorized by the prescription for confirmation of the customer’s coverage and reimbursement.^[28] The Pharmacies alleged that Express had no need for all this information and instead used the information for its own commercial benefit. The Pharmacies argued that Express forcibly switched the Pharmacies’ customers to Express’s own mail-based pharmacies without the Pharmacies’ or their customers’ authorization.^[29] The District Court for the Eastern District of Missouri dismissed the action and the Pharmacies appealed.^[30]

The Eighth Circuit affirmed each of the district court’s dismissals, including those for breach of contract and attempted monopolization.^[31] In dismissing the breach of contract claims under the Health Insurance Portability and Accountability Act of 1996 (HIPPA) for improper use of customer information, the Eighth Circuit slightly deviated from the district court’s ruling. The court agreed that HIPPA does not provide a private cause of action as an underlying basis in a civil suit for plaintiffs who are not actual patients, beneficiaries, or customers. However, the court found that this does not prevent a breach of contract claim that incorporates HIPPA by reference.^[32] In this instance though, the Eighth Circuit found that the Pharmacies failed to provide support for past or ongoing HIPPA violations.^[33]

In dismissing the attempted monopolization claim, the court held that the plaintiffs did not plead sufficient facts to meet their burden of alleging a relevant market in order to state a plausible antitrust claim.^[34] To establish the third requirement for an attempted monopolization claim under the Sherman Act, a plaintiff must prove a ‘dangerous probability of success’ that is ‘examined by reference to the offender’s share of the relevant market.’^[35] The Pharmacies asserted ‘that the relevant market “must be measured by the alternatives available to buyers, (i.e., patients)” and that it should not be defined to include prescription payments from uninsured customers or other plan sponsors that do not contract with ESI.’ ^[36] The court declined this reading and agreed with the defendant’s argument and the approach taken in Park Irmat Drug Corp v Express Scripts Holding Co,^[37] that a relevant market must include all reasonably interchangeable products ‘includ[ing] medication payments from uninsured customers and PBMs [pharmacy benefit managers] other than [Express].’ ^[38] As ‘a matter of law, in an antitrust claim brought by a seller, a product market cannot be limited to a single method of payment when there are other methods of payment that are acceptable to the seller.’ ^[39]

In this case, the Eighth Circuit affirmed its approach in Park Imrat that the product market of maintenance medications paid for by the defendants’ plan sponsors was too narrowly defined.^[40] In Park Imrat, Park Imrat alleged the relevant product market to be the ‘mail-order pharmacy services to Express Script members.’ ^[41] The Eighth Circuit again held that the relevant market must include all interchangeable payment options to the Pharmacies,^[42] thereby increasing the difficulty for pharmacies, or those in similar plan-based markets, to allege antitrust claims.

District court decisions

Pleading parallel conduct in price-fixing cases

In Re Pork Antitrust Litigation

This class action consolidated 13 separately filed lawsuits.^[43] Three putative classes^[44] alleged that the defendants, some of the nation’s leading pork producers and integrators, conspired to limit the supply of pork and fix prices in violation of state and federal antitrust laws.^[45] The pork industry is structured with relatively few players, many of which are vertically integrated; the top four participants control almost 70 percent market share and the top eight, all of whom were defendants, control more than 80 percent of the market.^[46] The plaintiffs allege that, from at least 2009 and continuing through this suit, the defendants conspired to fix, raise, maintain, and stabilize the price of pork by coordinating output and limiting production.^[47] In 2019, the court dismissed the plaintiffs’ claims without prejudice finding that they failed to adequately plead parallel conduct sufficient to support an inference of conspiracy.^[48] Specifically, the court dismissed the allegations in the plaintiffs’ complaint that relied on industry-wide data and showed that pork production decreased overall in the years after 2009. The court stated that this did ‘nothing to indicate how any of the individual [d]efendants acted . . . [a]nd that type of information [regarding which, how many, and when individual defendants affirmatively acted to reduce the supply of pork] is vital to pleading parallel conduct.’ ^[49] The court concluded insufficient support for the claim that the individual defendants contributed to the decreased production at issue, but left leave to amend.

The plaintiffs refiled their amended complaints in 2020, and the defendants moved to dismiss. Two related cases brought by Winn-Dixie Stores, Inc^[50] and the Commonwealth of Puerto Rico^[51] were subsequently combined. The court considered the plaintiffs’ amended complaint and found they had now met the burden of pleading parallel conduct in addition to factual enhancement or plus factors.^[52] The amended complaint included allegations of decreased production, decreased supply, and increased exports specific to each of the defendants between 2008 and 2011, except Indiana Packers. The court determined that these allegations were sufficient to plausibly plead parallel conduct against all defendants except Indiana Packers. The plaintiffs included the following in their amended complaint:

• In 2008, Smithfield indicated that it was ‘reducing the number of pigs that come off sow farms’; in 2009, Smithfield announced it had reduced the size of its domestic supply by ‘two million market hogs annually’ and ‘that it was immediately further reducing its herd by 3%’; in 2010, Smithfield followed with a 5 percent reduction; and in 2011, Smithfield further downsized (an unspecified amount).
• Between 2008 and 2009, Tyson reduced the number of its sows by more than 25 percent; and in 2010 and 2013, Tyson reported decreased sales volume of 3.3 percent and 3.6 percent, respectively, combined with unspecified decreases in its capacity utilization rate.
• In 2008, a farm member of Triumph announced it was reducing its herd by 11,000 sows; and in 2009, Triumph further reduced its herd by 6 percent (24,500 sows).^[53]

The court found the new allegations gave individualized content to the original allegations that after nearly a decade of sustained growth, pork supply decreased. The court further noted the inherent difficulty of obtaining solid information about an antitrust conspiracy, especially one involving sophisticated commercial entities, and thus the evidence that the plaintiffs presented was sufficient to survive the relatively low bar of the pleading stage.^[54]

In this case, the court provided guidelines on the types of allegations and level of specificity that will be considered sufficient to plead parallel conduct in price-fixing cases. The court made clear that general trends will be insufficient; however, specific allegations pertaining to the behavior of individual defendants, such as decreasing production or increasing exports during relevant years, may be sufficient. The court also gave credence to the inherit difficulty in obtaining information prior to discovery in antitrust cases.

Pleading parallel conduct in price-fixing cases

In Re Cattle Antitrust Litigation

Several putative actions were filed against the nation’s four largest meat packers, defendants JBS USA Food Company Holdings, Cargill, Inc, National Beef Packing Company, and Tyson Foods, Inc.^[55] The plaintiffs consist of Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (Ranchers), a Montana non-profit public benefit corporation; Farmers Educational and Cooperative Union of America (Farmers), a national federation of state Farmers Union organizations; and individual and businesses who sold cattle to the defendants. According to the complaint, the defendants were responsible for purchasing approximately 83 percent of the slaughter-weight fed cattle in the United States.^[56] After purchasing the cattle, the defendants processed them into beef for sale to other processors, wholesalers, and retail outlets. The plaintiffs alleged that from at least 2015, the defendants conspired to fix and suppress the price of fed cattle in violation of federal and state antitrust laws. The conspiracy allegations were brought in part by the shift in how the defendants purchased cattle. The defendants previously purchased cattle almost entirely from cash sales, but shifted to formula contracts whereby producers agreed to supply cattle to a packer once it reached slaughter weight. The price for these formula contracts was determined by average cash-sale prices prevailing at delivery.^[57]

The plaintiffs provided allegations that in 2015, JBS reduced its annual slaughter volume by 17 percent, National Beef by 6 percent, and Tyson by 4 percent. Additionally, the plaintiffs presented testimony of two confidential witnesses.^[58] Witness 1 was a quality assurance officer at an unidentified defendant’s slaughter plant for more than 10 years. Witness 1 provided testimony that the fabrication manager at the plant explained in multiple conversations that all the defendants reduced their purchase and slaughter volume so as to reduce fed-cattle prices after deciding they were too high. Witness 1 also provided testimony that Witness 1 and the fabrication manager had a specific discussion in 2015 or 2016 in which the fabrication manager ‘specifically admitted that the Packing Defendants had an “agreement” to reduce their price and slaughter volumes in response to what they perceive to be high cattle prices.’ ^[59] Witness 2 was a manager at an unidentified feedlot who described an anticompetitive ‘queuing convention’ in which the prices for cash sales were set by a complicated system that forced producers into lower prices and defendants would allocate who made the first bid each week collectively by drawing cards in their office.^[60] The defendants argued that these confidential witnesses were insufficiently identified to allow the court to give credence to their testimony and pointed to the heightened pleading standard in securities litigation cases.^[61]

The court held that the plaintiffs did not plead sufficient detail of parallel conduct to support an inference of a price-fixing conspiracy and dismissed the complaint with leave to amend.^[62] The court stated that the plaintiffs did little to allege how individual defendants acted and instead resorted to group pleading and allegations of what the market did.^[63] Owing to the lack of detail regarding the places of employment of the confidential witnesses, the court agreed with the defendants and concluded that the plaintiffs had not adequately explained how the witnesses’ jobs and interactions would lead to their acquired knowledge regarding the practices at issue.^[64] Additionally, the allegations of reduced slaughter volume in 2015 were found insufficient as they said little about the defendants in the following years when slaughter volumes increased.^[65] The court cited In Re Pork Antitrust Litigation^[66] and noted that it was similarly declining to allow market allegations based on industry-wide data instead of individual defendants.

This case, decided prior to the subsequent decision in In Re Pork, indicated a potential higher bar that plaintiffs would need to meet to assert allegations of parallel conduct. In In Re Pork, the court noted the difficulty for plaintiffs to acquire sufficient detail of defendants’ businesses and found the amended complaint containing individual allegations sufficient. It is unclear whether the bar in the subsequent In Re Pork would have changed the decision here, but the case may be distinguished as the allegations here were only provided for 2015, and not in later years that were also at issue.

Establishing the scope of relevant markets

Federal Trade Commission v Peabody Energy Corp

The Federal Trade Commission (FTC) brought an action against the defendant coal producers, Peabody Energy Company (Peabody) and Arch Resources, Inc (Arch), seeking an injunction under the Federal Trade Commission Act to prevent their joint venture.^[67] On 19 June 2019, Peabody and Arch, the two largest coal producers in the United States, announced their intention to form a joint venture. Peabody and Arch proposed to mitigate the effects of the coal industry’s overall decline on their employees and investors by combining parts of their thermal coal operations. Eight months later, and three days before the joint venture was to be consummated, the FTC filed the present suit.^[68]

The court granted the FTC’s injunction and found that the FTC had met its initial burden of demonstrating a relevant market in which the proposed joint venture was likely to harm competition relative to the ‘but-for’ world without the joint venture.^[69]

Because competitive harm in any relevant product market is enough to make out a prima facie case for violation of the Clayton Act, and because potential harms to competition will likely be less apparent in a broader, less concentrated market than in a narrower included market, this Court’s task is to identify the narrowest market within which the defendant companies compete that qualifies as a relevant product market.^[70]

The FTC argued that the market for Southern Powder River Basin (SPRB) coal satisfied all applicable criteria for a relevant product market. Peabody and Arch argued that the relevant market could not reasonably be the SPRB coal market alone and instead must include not only other kinds of coal but also other fuels that compete with coal in the electricity generation market.^[71] While noting that it is indisputable that coal competes with natural gas and renewables in a broader energy market, the court agreed with the FTC’s narrower relevant market and found that the FTC had presented sufficient evidence to show that there was a distinct competitive market among SPRB coal producers with distinct customers, distinct and desirable characteristics, and unique production facilities.^[72] The court further supported its decision with reiterations of the FTC’s arguments that SPRB coal supplier mines are located exclusively within the SPRB, and SPRB coal cannot be mined or purchased from mines outside the SPRB.^[73]

In support of its prima facie case, the FTC made a market share argument based on the Herfindahl–Hirschmann Index (HHI). HHI figures are ‘calculated by summing the squares of the individual firms’ market shares,’ a calculation that ‘gives proportionately greater weight to the larger market shares.’^[74] Using 2019 mine production data, the market calculations made by the FTC’s expert found that the joint venture would double the coal market’s HHI and take an already highly concentrated market and make it far more concentrated. This increase would be four times the increase that the DC Circuit determined as having a presumption of anticompetitive effects. Additionally, the expert performed the same calculations in all years from 2008 to 2020 and found that the joint venture would have been presumptively illegal in each of those years.^[75] Thus, the FTC had met its burden and firmly established that the proposed joint venture would have anticompetitive effects in violation of section 7 of the Clayton Act by eliminating head-to-head competition between defendants and increasing already existing incentives to engage in strategic output withholding to the detriment of customers.^[76]

The defendants were presented with an opportunity to rebut the presumption of anticompetitive effects and argued that customers had multiple strategies available to them to resist potential price increases. Among these arguments were that (1) customers had both short-term and long-term options to substitute other fuels for coal if prices were to change and (2) the joint venture would face competitive constraints from other SPRB coal producers, including through possible expansion.^[77] The court, citing evidence by the FTC’s expert, found each of these arguments unpersuasive and held that ‘[t]here can be little doubt that the acquisition of the second largest firm in the market by the largest firm in the market will tend to harm competition in that market.’ ^[78]

In other 2020 cases, courts in the Eighth Circuit rejected attempts to narrow the scope of a relevant market and found that markets should include all interchangeable products.^[79] This case, however, indicates some leeway that courts may grant under the Clayton Act for what constitutes an interchangeable product allowing a narrower relevant market.

Establishing the scope of relevant markets

Willis Elec Co v Polygroup Macau Ltd (BVI)

The plaintiff, Willis Electric Co (Willis), filed suit against its competitors in the field of artificial holiday trees, defendants Polygroup Macau Ltd (BVI), Polytree (HK) Co Ltd, and Polygroup Trading Ltd (collectively, Polygroup).^[80] Willis began manufacturing pre-lit holiday trees in 2008 to the industry standard.^[81] In 2019, Willis began selling a unique one-plug tree and filed a patent application for it. Polygroup began selling an alleged imitation design and applied for its own patent.^[82] Willis commenced a patent infringement suit in 2015 and the magistrate judge granted a stay of the case pending inter partes review before the Patent Trial and Appeal Board. The magistrate judge lifted the stay in 2019 and Willis filed a second amended complaint.^[83]

In the second amended complaint, Willis alleged 10 additional counts of anticompetitive conduct by Polygroup in addition to its original six counts of patent infringement. The 10 new counts included three counts of alleged antitrust conduct in violation of the Sherman Act,^[84] and Minnesota’s antitrust statute,^[85] and a related claim for common law conspiracy based on the same alleged antitrust conduct. The antitrust counts were based on (1) alleged bid rigging agreements between Polygroup and another distributor pursuant to which ‘Polygroup would secretly manufacture its . . . trees for [the other distributor], and in exchange, neither party would compete with the other party’s tree slot’ with respect to multiple retailers, and (2) alleged ‘predatory pricing’ and below-cost bidding that were intended to prevent Willis from expanding its business to new retailers.^[86] According to Willis, one purpose of Polygroup’s anticompetitive agreement ‘was to remove Willis from the Lowe’s market and prevent Willis from entering the market at other large home goods and home improvement retailers.’ ^[87]

Polygroup moved to dismiss the second amended complaint on the grounds, inter alia¸ that Willis failed to state an antitrust injury. The court found, ‘[i]n light of the low burden to establish standing at the pleading stage,’ the ‘coordinated anticompetitive’ allegations of harm to Willis’ sales, business reputation, and market share, were ‘sufficient’ ^[88] and rejected each of Polygroup’s arguments. In response to Polygroup’s argument that Willis had not alleged a horizontal restraint on trade, the court considered Willis’ allegations regarding bid rigging agreements to define the market and its participants with sufficient precision to state a plausible claim for horizontal bid rigging.^[89] Similarly, the court also rejected Polygroup’s argument that because Willis did not allege Polygroup controlled the bid process, it had not alleged bid rigging conduct.^[90]

Polygroup also presented several arguments that Willis failed to properly define a relevant market. Willis referred to the relevant market as ‘the market for artificial holiday trees at large home goods and home improvement retailers in the United States,’ including ‘the market for artificial holiday trees at Lowe’s and Home Depot.’ ^[91] Polygroup took issue with this definition and contended that there was no plausible reason for narrowing the market to artificial holiday trees from Lowe’s and Home Depot. The court found that ‘the fact that Willis Electric use[d] two specific retail stores as examples does not suggest that the alleged relevant market is limited to those two stores[]’ and ‘[o]n a motion to dismiss, this Court accepts the factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff’s favor.’ ^[92] Polygroup also disputed the exclusion of small retailers and non-artificial holiday trees from Willis’ market definition and its focus on ‘large home goods and home improvement retailers.’ ^[93] The court found that Polygroup had sufficiently alleged that artificial trees have innovative and unique characteristics that would not make them interchangeable with non-artificial holiday trees and that the ‘proper market definition can be determined only after a factual inquiry into the commercial realities faced by consumers, which first requires the parties to have an opportunity for discovery.’ ^[94]

The court here again demonstrated that the relevant market definition and required breadth may vary depending on the product. The relevant market cases before the Eighth Circuit support that these determinations are decided case by case and different markets will warrant narrower or broader interpretation.

Notes