Sixth Circuit

Courts in the Sixth Circuit issued decisions on a broad range of antitrust issues during the past year. Some of the decisions addressed fairly unique issues regarding Illinois Brick’s ownership-or-control exception, standards for injunctive relief, and Parker immunity. Other decisions added to the growing body of law on the appropriate scope of a relevant market and standards for determining whether a plaintiff has demonstrated antitrust injury.

Sixth Circuit decisions

Ownership-or-control exception does not redefine ‘indirect purchaser’

In re Automotive Parts Antitrust Litigation

In a long-running case alleging price-fixing in the automotive parts industry, the Sixth Circuit considered whether plaintiffs who purchased parts from a subsidiary of a defendant, rather than directly from a named defendant, were bound by an indirect purchaser class settlement, or whether they could assert direct purchaser claims against the named defendants under the ‘ownership-or-control exception’ to the standing rule of Illinois Brick Co v Illinois.^[1] The Sixth Circuit determined the plaintiffs could not bring direct purchaser claims based on the plain language in the indirect purchaser settlement agreements at issue.

The case stemmed from a 2013 price-fixing lawsuit filed under various state laws by a putative class of indirect purchasers of anti-vibration rubber parts against several manufacturers and suppliers. In 2016 and 2017, the United States District Court for the Eastern District of Michigan certified a nationwide settlement class consisting of those who indirectly purchased anti-vibration rubber parts from the defendants, and the parties settled shortly thereafter.^[2]

However, before the court entered final approval of the indirect purchaser settlement agreements, three individuals filed a separate class action suit against the same defendants in the same court seeking monetary damages under federal antitrust law on behalf of all direct purchasers.^[3] The plaintiffs claimed that they were direct purchasers because they purchased anti-vibration parts from a subsidiary of one of the named defendants, although they did not purchase directly from an entity that was named as a defendant in the litigation.^[4] In response, the defendants filed a motion to enforce the indirect purchaser settlements against the alleged direct purchaser plaintiffs, reasoning that the settlement agreements prohibited the plaintiffs from maintaining the direct purchaser suit against them because they had not purchased parts directly from the defendants.^[5] The district court denied the defendants’ motion, finding that the plaintiffs were properly considered direct purchasers under Illinois Brick’s ‘ownership-or-control exception’, which generally requires that a private plaintiff be a direct purchaser to have standing and seek monetary damages under federal antitrust law.^[6] The exception allows for an indirect purchaser to have antitrust standing under federal law if it made a purchase from a seller owned or controlled by the ultimate seller (defendant) – which is a practical carve-out so that ‘antitrust violators cannot simply integrate vertically to escape federal antitrust liability’.^[7]

On appeal, the Sixth Circuit addressed whether the indirect purchaser settlement agreements prohibited the three plaintiffs from maintaining their direct purchaser action.^[8] As the interpretation of the settlement agreements was a matter of contract, the court applied Michigan state contract law and determined that the ‘settlement agreements clearly and unambiguously’ barred the plaintiffs from maintaining the direct purchaser suit.^[9] The settlement class excluded only those persons and entities that purchased parts ‘directly or for resale’ from the defendants, and because the plaintiffs’ purchases were not ‘[s]traightforward, uninterrupted’, ‘immediate’ or ‘without intermediation’ from the defendants, they were ‘not direct’ purchases.^[10]

Critically, the Sixth Circuit refused to allow the plaintiffs to ‘circumvent’ this ‘plain meaning’ by pointing to Illinois Brick’s ownership-or-control exception.^[11] The plaintiffs argued that they should be able to proceed as direct purchasers because they were the only direct purchasers the defendants did not own (i.e., the defendants were vertically integrated in such a way that they owned their direct purchasers).^[12] The court, however, agreed with the defendants that the plaintiffs’ argument was ‘irrelevant’ to the court’s interpretation of the settlement agreements.^[13] Whether the plaintiffs were indirect purchasers was a matter of contract law and interpretation, not a question of antitrust standing to which Illinois Brick would be applicable.^[14] As the Sixth Circuit stated: ‘The ownership-or-control exception mentioned in Illinois Brick is ultimately a pragmatic carveout to a federal antitrust standing rule, not a redefinition of indirect purchaser.’^[15] The plaintiffs were therefore barred from maintaining the direct purchaser suit by the terms of the settlements and the district court decision to the contrary was reversed.^[16]

Injunction vacated for a refusal-to-deal claim

St Luke’s Hospital v ProMedica Health System, Inc

The Sixth Circuit vacated a preliminary injunction in a case borne out of the Federal Trade Commission’s (FTC) successful challenge in 2014 to a merger between two hospital systems – St Luke’s and ProMedica. Despite St Luke’s efforts to ‘cast th[e] narrative as a David versus Goliath story’, the Sixth Circuit ultimately found that ProMedica’s alleged refusal to deal with St Luke’s was not ‘irrational but for its anticompetitive effect’ and sided with ‘Goliath’.^[17]

The case has its roots in Ohio’s Lucas County, which is home to four main hospital systems: Mercy Hospitals, University of Toledo, ProMedica and St Luke’s.^[18] The Sixth Circuit previously affirmed the FTC’s decision in ProMedica v FTC to block, post-consummation, a merger of St Luke’s and ProMedica.^[19] As part of that merger’s unwinding, St Luke’s signed an agreement with ProMedica’s insurance subsidiary, in which ProMedica’s subsidiary would keep St Luke’s as an in-network healthcare provider.^[20] St Luke’s could be dropped as an in-network provider, however, if its ownership changed – which ultimately occurred when St Luke’s merged with McLaren Health in 2020.^[21] St Luke’s subsequently sued ProMedica in the US District Court for the Northern District of Ohio, claiming that ProMedica violated the antitrust laws, primarily Section 2 of the Sherman Act, by refusing to do business with it.^[22] The district court found ProMedica’s actions would ‘very likely have detrimental effects on competition’ and issued a preliminary injunction against ProMedica, preventing it from dropping St Luke’s as an in-network provider.^[23]

On appeal, the Sixth Circuit first noted that the Sherman Act not only prohibits ‘two companies from entering a contract that permits an anticompetitive monopoly’, but also ‘a company from refusing to deal with another company in aid of such practices’.^[24] However, the court emphasized that such claims ‘face a steep and obstacle-laden climb’ and ‘[c]ourts start with the liberty-based assumption that individuals and companies may do business with whomever they please’.^[25] Thus, according to the court, liability for a refusal to deal requires showing that the conduct is ‘irrational but for its anticompetitive effect’.^[26]

The court found that no such irrationality existed with respect to ProMedica’s conduct, and St Luke’s was thus unlikely to succeed on the merits of its refusal-to-deal claim, because ProMedica had legitimate business reasons for ending its relationship with St Luke’s.^[27] Indeed, the court pointed to the contract provision allowing St Luke’s to be dropped as an in-network provider in the event of an ownership change as an example of the parties (and the FTC, since it approved the agreement) recognizing possible business reasons for ProMedica to abandon the deal.^[28] Further, changes in the types of healthcare services offered by St Luke’s after the merger with McLaren made St Luke’s a ‘completely different type of competitor’ than what ProMedica had originally contracted with, such that ending the relationship would allow for ProMedica to avoid revenue losses.^[29]

Another key factor weighing against an injunction was an insufficient showing of irreparable harm by St Luke’s.^[30] The court noted that harm resulting from a denied preliminary injunction is not irreparable if it can be fully compensated for with monetary damages and ‘economists can and do assess [the loss of patients and market share] in monetary terms’.^[31] St Luke’s, accordingly, failed to show that monetary damages would be insufficient to compensate for its alleged antitrust injuries.^[32]

As a result, the Sixth Circuit vacated the preliminary injunction issued by the district court. In so doing, however, the court made a point of reminding the parties that ‘David competed ably in the end’.^[33] In the court’s view, St Luke’s would be more than capable of doing the same after taking on ‘gigantic qualities of its own’ thanks to its merger with McLaren.^[34]

Judgment for police department against private security companies’ claims

Comprehensive Security Inc v Metropolitan Government of Nashville and Davidson County

On appeal from the US District Court for the Middle District of Tennessee, the Sixth Circuit took up a case alleging that a metropolitan police department monopolized the market for private security services. In affirming a bench trial judgment in favor of the police department, the Sixth Circuit provided a refresher for antitrust plaintiffs everywhere on the threshold importance of a properly defined relevant market.

The case at issue involved three private security companies (plaintiffs) in the Nashville area of Tennessee that, prior to 2013, often hired off-duty officers of the Metropolitan Nashville Police Department (MNPD).^[35] Starting in 2013, plaintiffs largely lost this source of officers when the MNPD changed its policy to limit its officers from accepting other employment and entered the private security market itself, sometimes even offering discounted or free services.^[36] This allegedly resulted in the MNPD winning several private security contracts previously held by the plaintiffs.^[37] Moreover, in 2018, the MNPD completely stopped allowing off-duty officers to work for private security companies.^[38] The plaintiffs then sued for unlawful monopolization of the private security market in violation of Section 2 of the Sherman Act.^[39]

After a bench trial in 2021, the district court ruled in favor of the MNPD, primarily on grounds that the plaintiffs ‘failed to prove a definition of the relevant market’, and even if they had, the plaintiffs’ expert offered ‘no insight into how his analysis establish[ed] MNPD’s monopoly power’.^[40] On appeal, the Sixth Circuit agreed with the district court that the plaintiffs failed on both of these ‘threshold inquiries’ under Section 2.^[41]

With respect to market definition, the Sixth Circuit first noted that it employs the ‘reasonable interchangeability’ standard to define the relevant market.^[42] Under this standard, the court assesses the product uses (i.e., whether the substitute products or services can perform the same function) and consumer sensitivity to price levels at which they elect substitutes for the defendant’s product or services (i.e., cross-elasticity).^[43] Here, the plaintiffs’ proposed relevant market was ‘the supply of security services that require post-commissioned officers’, which the plaintiffs contended they had established through evidence that showed (1) there would be a ‘public outcry if MNPD forbade its officers from working for private security companies’, and (2) the MNPD ‘removed private security companies’ ability to provide a substitute for MNPD’s services’.^[44] The Sixth Circuit agreed with the district court’s conclusion that such evidence failed to establish the relevant market because it did not provide any proof regarding ‘the core inquiries for the market analysis’, namely ‘what services are being sold, what the market concentration is, or what the individual shares of sales are’.^[45] Moreover, testimony from the plaintiffs’ expert was no help because he focused his analysis on the alleged market for labor needed by the plaintiffs, rather than the market for private security services that ‘require post-commissioned officers’.^[46]

Without a properly defined relevant market, the Sixth Circuit further concluded that the plaintiffs were left without any basis to establish that the MNPD had monopoly power through either a showing of the MNPD’s ‘high market share’ or ‘direct evidence’ showing the MNPD’s ‘exercise of actual control over prices or the actual exclusion of competitors’.^[47] Though the court acknowledged that the MNPD’s apparent ‘exclusion of competition at dozens of locations’ might generally suffice ‘to support an inference of monopoly power in some market’, it was insufficient in the present case without a ‘precisely defined relevant market to contextualize the extent of MNPD’s power’.^[48] Without evidence of monopoly power, there can be no Section 2 liability, and the Sixth Circuit affirmed judgment for the MNPD accordingly.^[49]

District court decisions

Eastern District of Michigan dismisses football helmet add-on suit

Hobart-Mayfield, Inc v National Operating Committee on Standards for Athletic Equipment

Antitrust claims filed by a manufacturer of an add-on product for football helmets were dismissed by the Easter District of Michigan. Hobart-Mayfield, Inc (Mayfield) (plaintiff) sued a group of football helmet manufacturers (Helmet Manufacturers) and the National Operating Committee on Standards for Athletic Equipment (NOCSAE), alleging that the defendants improperly interfered with Mayfield’s sale of an add-on helmet product called the SAFEClip, which was designed to reduce the impact on a football player’s helmet when struck.^[50] Mayfield claimed that the defendants, through licensing agreements and a broader conspiracy, attempted to exclude it from the helmet add-on market in violation of Section 1 of the Sherman Act and Michigan state law, among other claims.^[51] The court disagreed, however, and dismissed Mayfield’s antitrust claims for failure to sufficiently allege an agreement or concerted conduct.

NOCSAE, a non-profit entity, develops and maintains testing standards for athletic equipment that have been voluntarily adopted by a majority of football regulatory bodies, including the National Football League.^[52] NOCSAE also enters into licensing agreements with football product manufacturers, including with the Helmet Manufacturers, allowing them to use NOCSAE logos and phrases on NOCSAE-certified products.^[53] In 2018, NOCSAE issued a press release indicating that add-on manufacturers, such as Mayfield, were no longer permitted to have their add-on products tested with another manufacturer’s helmet to have the combination gain NOCSAE safety certification.^[54] Mayfield subsequently filed suit and argued that this policy change, in tandem with the licensing agreements between NOCSAE and the Helmet Manufacturers, restricted Mayfield and other add-on product makers’ ability to gain NOCSAE certification, which in turn restricted their access to the market in football head protection as a whole.^[55]

The defendants moved to dismiss Mayfield’s antitrust claims and the court agreed, owing to several fundamental flaws in Mayfield’s claims. First, the court found ‘no allegations of any communication, agreement, or conspiratorial conduct between defendants about the policy change’ or any of the Helmet Manufacturers’ licensing agreements.^[56] Accordingly, the court held that there was no showing of an explicit agreement to restrict trade and insufficient circumstantial evidence to infer one.^[57] This was true despite allegations that the Helmet Manufacturers were on NOCSAE’s board and the defendants mutually attended trade association meetings.^[58] Moreover, the court found that there were legitimate justifications for the defendants’ conduct. Most notably, the court said that the plaintiff failed to ‘demonstrate how the certification policy modification was unreasonable in light of defendants’ competing and valid interests in maintaining their brand credibility and helmet safety standards’.^[59] It was natural, the court stated, for the Helmet Manufacturers to ‘individually reject the use of a product that changed their helmets’, and it made sense to do so ‘absent ironclad assurance as to its safety, especially considering the potential for serious head injuries and concussions’.^[60] The court dismissed Mayfield’s antitrust claims from the case as a result.^[61]

No market participant exception to Parker immunity

Nfinitylink Communications, Inc v City of Monticello

The US District Court for the Eastern District of Kentucky sided with a municipality in a case involving a challenge to the municipality’s immunity from the federal antitrust laws.^[62] The challenger was Nfinitylink Communications, Inc (plaintiff), a communications company that sued the City of Monticello, Kentucky (Monticello), its City Council, and another communications provider owned jointly by Monticello and Wayne County, Kentucky (CTS), after Monticello denied the plaintiff’s request for a cable franchise.^[63] The plaintiff specifically alleged that CTS’s chairman ‘asked the City Council to reject plaintiff’s request’ during its consideration of the request, ‘explaining that he did not want Plaintiff to compete’ with CTS.^[64] As a result, the plaintiff filed a complaint claiming ‘violations of the Sherman Act and Kentucky state antitrust laws’ and alleging that the defendants had engaged ‘in a conspiracy to maintain CTS’s monopoly over the cable market’.^[65]

In response to the complaint, the defendants successfully argued that they were entitled to immunity under Parker v Brown (Parker immunity), which grants states and state officials immunity from federal antitrust claims.^[66] The court noted that Parker immunity does not automatically apply to the actions of municipalities and their agents because ‘municipalities and other political subdivisions are not themselves sovereign’.^[67] Instead, municipalities and their agents only acquire immunity if they are acting in accordance with a ‘clearly articulated and affirmatively expressed state policy to displace competition’.^[68] Such a state policy exists if displacement is a foreseeable result of the state policy.^[69] Additionally, the municipalities or their agents ‘must show that the state has delegated authority to them to act anticompetitively’.^[70]

The defendants relied on a ‘virtually indistinguishable’ Sixth Circuit case, Consolidated Television Cable Service, Inc v City of Frankfort, Kentucky, et al., to support their Parker immunity claim.^[71] In that case, the Sixth Circuit ‘ultimately found that Parker immunity extended to the defendants’ [a municipality and municipality-owned cable provider] actions’ because Kentucky law contains a ‘clearly articulated and affirmatively expressed’ state policy to ‘allow municipal regulation of the provision of [cable television] service, and, foreseeably, to displace competition’.^[72] The court found that ‘the state policy relied upon in Consolidated still sufficiently confers Parker immunity on Defendants’ – for both the state and federal antitrust claims – because cities have authority under the Kentucky Constitution to ‘reject bids by cable television providers for franchises and to control which cable television providers may obtain franchises to operate within the municipality’.^[73]

Notably, the court rejected the plaintiff’s argument that the defendants were not entitled to Parker immunity because they were acting as market participants when they denied the plaintiff’s franchise request.^[74] The court noted that although the Supreme Court and Sixth Circuit have both recognized the ‘possibility’ of a market participant exception to Parker immunity in the municipality context, it was unwilling to ‘reestablish antitrust liability against a municipality’ in the instant case without any other court having done so before.^[75] The court thus declined to upend the defendants’ Parker immunity here and dismissed the plaintiff’s antitrust claims accordingly.^[76]

Antitrust claims dismissed for lack of antitrust injury

Anesthesia Associates of Ann Arbor, PLLC v Blue Cross Blue Shield of Michigan

In another example of a long line of healthcare services cases, the Eastern District of Michigan dismissed a plaintiff’s claims of monopsony and conspiracy under the Sherman and Clayton Acts owing to an insufficient showing of antitrust injury. The case was filed by Anesthesia Associates of Ann Arbor (plaintiff), one of the largest physician-owned anesthesiology groups in Michigan, against Blue Cross Blue Shield of Michigan (defendant), which allegedly controlled at least 67 percent of the commercial health insurance market in Michigan.^[77] The plaintiff claimed that the defendant used its dominant market position as a healthcare services purchaser to pay the plaintiff’s anesthesiologists artificially depressed reimbursement rates and to coerce Michigan hospitals into refusing to deal with providers who left the defendant’s network.^[78] The defendant’s reimbursement rate for Michigan anesthesiologists was allegedly in the lowest band nationally,^[79] and the plaintiff announced in 2019 that it would be leaving the defendant’s network after failing to get the defendant to raise its reimbursement rates. This, in turn, resulted in local hospitals terminating their relationships with the plaintiff.^[80]

The defendant argued in its motion that the plaintiff lacked antitrust standing to dismiss because the plaintiff failed to plead any conduct that caused an antitrust injury (i.e., there were no allegations of an ‘illegal price effect, a reduction in output, or a reduction in quality’).^[81] In response, the plaintiff pointed to the imposition of artificially low rates as a Sherman Act Section 1 injury and an alleged conspiracy between local hospitals to refuse to deal with the plaintiff when it left the defendant’s network, but the court determined that neither course of conduct caused plausible antitrust injuries.^[82]

With regard to the claim of artificially low rates, the court found that the plaintiff was essentially complaining of stagnant reimbursement rates, and stagnant reimbursement rates are not an antitrust injury.^[83] As described by the court, the antitrust laws were designed to protect ‘consumers against prices that were too high, not too low’.^[84] Since the defendant was allegedly trying to keep the prices for anesthesiologists down with low reimbursement rates, and because there were no other allegations plausibly showing impermissible pricing, the plaintiff failed to show an injury that warranted redress.^[85] As to the plaintiff’s claim that it was injured by a conspiracy resulting in local hospitals refusing to deal with the plaintiff, the court also found a lack of standing because in the absence of an agreement with others to fix prices, ‘a monopsonist stating its own willingness to pay a certain price for a particular good or service is not a cognizable antitrust injury’.^[86] The plaintiff’s claims were dismissed for lack of antitrust standing accordingly.^[87]

A relevant market restricted to a defendant’s product is too narrow

ComSpec International, Inc v Uniface BV

The US District Court for the Eastern District of Michigan swiftly rejected a plaintiff’s attempt to define the allegedly monopolized market as narrowly as the market for the defendant’s product itself in a case between software companies.^[88] As described by the court, defining a plausible relevant market and demonstrating a defendant’s power in that market are threshold requirements in a Section 2 claim, and the plaintiff fell far short.^[89]

The case stems from a ‘business dispute’ between ComSpec International (plaintiff), a software developer and provider, and Uniface BV (defendant), a software corporation based in the Netherlands.^[90] The defendant developed a copyright-protected programming language that the plaintiff used in its user interface systems pursuant to a licensing agreement.^[91] The licensing agreement went through several modifications from 1994 through 2019, and the defendant was sold multiple times during the same period.^[92] Ultimately, the defendant terminated the licensing agreement, cutting off the plaintiff’s access to the defendant’s software, and threatened a copyright suit after the defendant’s internal investigation allegedly found that the plaintiff owed nearly $6 million in past-due payments.^[93]

In response to the license termination and copyright threat, the plaintiff filed suit alleging that the defendant had created an illegal monopoly in violation of the Sherman Act.^[94] The plaintiff attempted to define the relevant market for its monopolization claim as the ‘Uniface Based Software Market’, seemingly because it was no longer able to offer that specific software after termination of the licensing agreement.^[95] The court stated that this ‘not only fails to include any products which are reasonably interchangeable’ but is also ‘untenable’ and ‘side-steps the need to find market power because it is restricting the market to the Defendants’ product itself’.^[96] In addition, the court found that the plaintiff failed to allege injury to any entity other than itself (i.e., a market-wide injury). As described by the court, the plaintiff argued that the defendants’ license termination and threat of a copyright lawsuit were anticompetitive, but there were ‘no specific facts alleged as to how such behavior impacted the market as a whole’.^[97] Indeed, there were ‘no allegations regarding how [defendants’ conduct] would have an adverse effect on the market as a whole or how it caused any anticompetitive effects at all’.^[98] The plaintiff’s claims were, therefore, dismissed.^[99]

Notes