The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 96-3158
Non-Argument Calendar.
RETINA ASSOCIATES, P.A., Plaintiff-Appellant,
v.
SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., d.b.a. Baptist
Medical Center; Richard L. Simmons, M.D.; Richard L. Simmons,
M.D., P.A.; Gerald A. Coluccelli, M.D.; Gerald A. Coluccelli,
M.D., P.A., et al., Defendants-Appellees,
Baptist Eye Institute, Inc.; BEI, Inc., Movants.
Feb. 19, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-255-CIV-J-10), William Terrell
Hodges, Judge.
Before TJOFLAT, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
We affirm the judgment of the district court for the reasons
set out in its dispositive order which is reproduced in the
appendix.
AFFIRMED.
APPENDIX
ORDER
This antitrust case is before the Court on the parties'
cross-motions for summary judgment. Because the Court finds that
the rule of reason, as opposed to the per se doctrine, governs
Count I of Plaintiff's complaint, and because there appears to be
no genuine issue of material fact as to the lack of anticompetitive
effects of the alleged concerted refusal to deal, Defendants'
motions for summary judgment on Count I will be granted. Because
Plaintiff has failed to demonstrate the existence of a triable fact
issue with regard to Defendant Florida Retina Institute's alleged
anticompetitive conduct or specific intent to monopolize, summary
judgment will also be granted on Count II of the complaint.
FACTS
Retina Associates, P.A. ("RA"), the sole plaintiff in this
case, is a Florida professional corporation whose shareholders are
Dr. Fred H. Lambrau, Jr., M.D. and Dr. Michael Stewart, M.D. Drs.
Lambrau and Stewart are board-certified ophthalmologists who have
specialized in the diagnosis and treatment of diseases of the
retina and vitreous. As the name would suggest, RA's practice is
limited to retina-related ophthalmology.
Defendant Southern Baptist Hospital of Florida, Inc., doing
business as Baptist Medical Center ("Baptist"), is a not-for-profit
Florida corporation that owns and operates the Baptist Medical
Center, the largest acute care hospital in Jacksonville, Florida.
Situated on the Baptist Medical Center campus is a four-story
building that houses the Baptist Eye Institute ("BEI"). BEI is an
amalgamation of non-specialized ophthalmologists comprised of
Defendants Richard L. Simmons, M.D., Gerard A. Coluccelli, M.D.,
Ernst Nicolitz, M.D., Charles P. Adams, Jr., M.D., Frank W. Bowden,
III, M.D., Neil T. Shmunes, M.D., and Jeffrey H. Levenson, M.D.
All of the BEI defendants except Dr. Levenson have incorporated
their medical practices and are the principal shareholders of these
professional corporations. The professional corporations are also
named defendants.
Sometime in 1989 Dr. Simmons, apparently on behalf of
Defendants Coluccelli, Nicolitz, Adams and Bowden 1, approached RA
with a proposal for the formation of an ophthalmological services
group involving several non-specialized ophthalmologists, one or
more retina specialists, other ophthalmological specialists and a
major local hospital. The proposal involved marketing the group
and cross-referral relationships among the involved parties.
Simmons goal for the venture was to offer a full range of
ophthalmological services in one location.
General ophthalmologists typically refer patients with
2
specific retina problems to retina specialists. That being the
case, a retina specialist was perceived as necessary for the
venture to provide a wide array of ophthalmological practitioners
under one roof. Prior to the events constituting the gravamen of
the complaint, RA alleges that it received the majority of retina
referrals from the BEI five.
RA declined Simmons' offer to participate in the group.
Meanwhile, the BEI five searched for a hospital that would support
the venture. Baptist ultimately decided to participate and agreed
to construct a "state of the art and user friendly" building for
the provision of myriad ophthalmological services. The building
was to contain office space for the ophthalmologists involved as
well as space for a diagnostic center and outpatient surgery.
True to the "one-stop shop" concept, the BEI five continued to
1
For convenience, these defendants will be collectively
referred to as the BEI five.
2
Plaintiff's expert, Dr. McClave, estimates that
approximately ninety percent of the patients treated by
Jacksonville based retina specialists are referred by other
health care providers.
look for retina specialists willing to participate. RA again
declined an offer to join the group. The BEI five also approached
Defendant James A. Staman, M.D., another retina specialist and the
principal shareholder of Defendant Florida Retina Institute, James
3
A. Staman, M.D., P.A. ("FRI"). In February of 1990, Staman
accepted the proposal but withdrew from the venture in May 1990.
Staman and FRI rejoined BEI permanently in September of 1991. The
complaint alleges that the agreement with FRI included the promise
that FRI would receive all of the retina referrals from the BEI
physicians.
The BEI five started, as a group, seeing patients in early
1990, and the BEI building at the Baptist Medical Center campus
opened in the fall of 1991. Staman and the other FRI specialists
began seeing patients in the BEI building shortly thereafter.
Defendant's Levenson and Shmunes joined the BEI five in 1993, and
opened offices in the BEI building.
The parties estimate that there are between 45 and 50
practicing general ophthalmologists in the Jacksonville area.
Plaintiff's best estimate, assuming the appropriateness of its
definition of the relevant product and geographic markets, is that
the BEI physicians referrals to retina specialists amount to
fifteen percent of the total referrals made. While the record
discloses some exceptions, FRI has received almost all of the
referrals for retina specialty work from the BEI physicians since
3
At the time this lawsuit was commenced, there were three
retinal specialty practices in Jacksonville: RA, Florida Retina
Institute and that of Dr. James Bolling who is affiliated with
the Mayo Clinic.
Staman and FRI joined the group.
On March 21, 1994, Plaintiff filed a complaint (Doc. 1)
alleging that the BEI physicians' referral of almost all of their
retina cases to FRI violates federal antitrust laws. Count I,
against all Defendants, maintains that the alleged exclusive
referral agreement constitutes a horizontal concerted refusal to
deal or group boycott in violation of Section 1 of the Sherman Act.
15 U.S.C. § 1. Count II, against Staman and FRI only, alleges that
their participation in the alleged exclusionary conduct constitutes
an attempt to monopolize in violation of Section 2 of the Sherman
Act. 15 U.S.C. § 2. The complaint prays for monetary and
injunctive relief. The parties have engaged in voluminous
discovery. Plaintiff and all defendants have filed cross-motions
for summary judgment on Count I of the complaint. Defendants
Staman and Florida Retina Institute have filed a motion for summary
judgment on Count II. All of the motions have been thoroughly
briefed.
DISCUSSION
Summary judgment is appropriate only when the Court is
satisfied that "there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law." F.R.Civ.P. 56(c). In making this determination, the Court
must examine the pleadings, affidavits and other evidence in the
record "in the light most favorable to the non-moving party."
Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th
Cir.1988). The moving party has the initial burden of establishing
the nonexistence of a triable fact issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2458, 91 L.Ed.2d 265 (1986). If
the movant is successful on this score, the burden shifts and the
non-moving party must come forward with "sufficient evidence of
every element that he or she must prove." Rollins v. TechSouth,
Inc., 833 F.2d 1525, 1528 (11th Cir.1987). The non-moving party
may not simply rest on the pleadings, but must use affidavits,
depositions, answers to interrogatories or other evidence to
demonstrate that a genuine fact issue remains to be tried.
Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
A. The Horizontal Concerted Refusal to Deal Claim
Plaintiff contends that the exclusive referral agreement
between the BEI physicians and Staman and the FRI constitutes a
horizontal concerted refusal to deal or group boycott violative of
Section 1 of the Sherman Act as a combination in restraint of
trade. Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits
"[e]very 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...." A Section 1 Plaintiff must
establish an agreement between two or more persons to restrain
trade affecting interstate commerce. Unilateral conduct will not
trigger the prohibition of Section 1. Monsanto Co. v. Spray-Rite
Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d
775 (1984), Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1455
(11th Cir.1991).
Assuming, without deciding, that the conduct alleged here
constitutes an agreement among several individuals4 to refer retina
cases solely to FRI and to thereby refuse to deal with RA, RA must
still establish that the purported agreement unreasonably restrains
competition. Standard Oil Co. v. United States, 221 U.S. 1, 58-64,
31 S.Ct. 502, 515-17, 55 L.Ed. 619 (1911). A restraint may be
violative of the Sherman Act because it is solely a naked restraint
of trade so offensive to competition as to be unreasonable per se,
or because it runs afoul of the more detailed rule of reason
inquiry. F.T.C. v. Indiana Fed'n of Dentists, 476 U.S. 447, 457-
58, 106 S.Ct. 2009, 2017, 90 L.Ed.2d 445 (1986). Conduct is
unreasonable per se when it "always or almost always tend[s] to
restrict competition and decrease output." Broadcast Music, Inc.
v. Columbia Broadcasting Sys., Inc., 441 U.S. 1, 19-20, 99 S.Ct.
1551, 1562, 60 L.Ed.2d 1 (1979). Claims under the Sherman Act are
presumptively evaluated under the rule of reason. Levine v. Cent.
Florida Medical Affiliates, 72 F.3d 1538, 1549 (11th Cir.1996)
(quoting Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555,
1567 (11th Cir.1991)).
1. Is the Conduct Per Se Unreasonable?
Plaintiff contends that it is entitled to summary judgment
because the alleged horizontal concerted refusal to deal or group
boycott is properly considered unreasonable per se. E.g., Klor's
4
Whether there is an actual combination or conspiracy
appears to be an issue among the parties. Defendants seem to
argue that BEI is a legitimate joint venture and that the
referral of patients exclusively to FRI is reasonably necessary
to effectuate its purpose. However, assuming defendants can
establish the existence of a joint venture, its practices would
not thereby automatically be immune from antitrust scrutiny. See
2 EARL W. KINTNER, FEDERAL ANTITRUST LAW § 9.15 (1980).
Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3
L.Ed.2d 741 (1959). However, the recent jurisprudence of the
Supreme Court and of the Court of Appeals of this Circuit cautions
against the haphazard expansion of the "group boycott label" and
the concomitant imposition of per se liability. Indiana Fed'n, 476
U.S. at 458, 106 S.Ct. at 2018, Levine, 72 F.3d at 1550 (citing
Consultants & Designers, Inc. v. Butler Serv. Group, Inc., 720 F.2d
1553, 1561 (11th Cir.1983)). "[T]he per se approach has generally
been limited to cases in which firms with market power boycott
suppliers or customers in order to discourage them from doing
business with a competitor...." Indiana Fed'n, 476 U.S. at 458,
106 S.Ct. at 2018. Unless the conspirators imposing the group
boycott possess "market power or exclusive access to an element
essential to effective competition, the conclusion that expulsion
is virtually always likely to have an anticompetitive effect is not
warranted." Northwest Wholesale Stationers, Inc. v. Pacific
Stationary and Printing Co., 472 U.S. 284, 296, 105 S.Ct. 2613,
2621, 86 L.Ed.2d 202 (1985).
In sum, the per se rule requires a historically focused
inquiry directed at ascertaining whether the behavior complained of
is of the type that regularly poses anticompetitive consequences.
Where prior cases have shown that a certain practice is of this
type, a deleterious effect on the market will be presumed and no
detailed market analysis is required. Where the anticompetitive
effect of a practice is not historically clear, the practice may
still be per se violative of the antitrust laws if a preliminary
examination of market conditions surrounding the alleged restraint
at issue reveals such an impact absent any procompetitive
justification. Indiana Fed'n, 476 U.S. at 458-59, 106 S.Ct. at
2018 ("[W]e have been slow ... to extend per se analysis to
restraints imposed in the context of business relationships where
the economic impact of certain practices is not immediately
obvious...."); Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466
U.S. 2, 15-19, 104 S.Ct. 1551, 1560-61, 80 L.Ed.2d 2 (1984). This
examination of market forces is not as detailed as the one required
by the rule of reason, and has been referred to as a "quick look"
at market conditions. U.S. Healthcare, Inc. v. Healthsource, Inc.,
986 F.2d 589, 594 (1st Cir.1993).
Plaintiff's argument for evaluation of this case under the per
se rule must fail for two reasons: (1) the boycott alleged here is
not of the type that has been historically shown to always or
almost always adversely affect competition; and (2) the market
power possessed by defendants in terms of patient referrals is
insufficient as a matter of law to justify per se treatment.
Assuming, for the moment, that Plaintiff is able to establish
that the BEI physicians have sufficient market power, analyzing
this case under the per se rubric would remain inappropriate absent
some demonstration that the practice at issue historically leads to
anticompetitive effects in the market. Levine, 72 F.3d at 1550
(citing Consultants and Designers, 720 F.2d at 1562)). Levine
involved a Section 1 attack by an internist excluded from a PPO
panel and a physician provider network.
Levine alleged that the exclusion constituted a concerted
refusal to deal. The PPO and provider network contended that
Levine was excluded because no more internists were needed in
Levine's area. In affirming a district court's grant of
defendants' motion for summary judgment, the Eleventh Circuit
declined to apply the per se rule. Id. at 1550-51.
The court, relying on a recently issued DOJ Enforcement
Policy, held that the courts have had insufficient experience with
multiprovider networks to justify condemning their exclusion
practices as per se violative of the Sherman Act. Id. at 1550. In
an effort to contain costs and enhance the competitive ability of
the network, multiprovider networks typically contract with some,
but not all, health care providers in a given area. Additionally,
multiprovider network membership restrictions may yield a
procompetitive benefit by giving those excluded the impetus to form
competing networks. Id. (quoting DOJ Enforcement Policy, available
in WESTLAW, 1994 WL 642477, at *42).
Levine's analysis on this score is equally applicable to the
this case. Testimony, in the record, apparently uncontroverted,
demonstrates that it is not at all unusual for networks like BEI to
affiliate with only a single retina group. BEI's guiding goal is
the provision of a "one-stop shop" for eye care and the
cost-containment and convenience that it represents. Further,
since BEI's inception, two competing multiprovider eye care
networks formed.5 The anticompetitive effect of the alleged
5
In early 1994, the Florida EyeCare Network was formed.
Plaintiffs' principals were among the initial shareholders of the
network and are the only retina specialists in the network,
although, according to Plaintiff, there is no agreement to refer
retina patients solely to RA. Plaintiff also refers to the
Florida EyeCare Network as an unsuccessful venture, but does not
appear to attribute that lack of success to any allegedly illegal
boycott is far from being "immediately obvious" and, as such,
analysis under the per se rule is improper. Indiana Fed'n, 476
U.S. at 459, 106 S.Ct. at 2018.
Plaintiff contends that the reasoning of Levine and the DOJ
enforcement policy is inapplicable here because those authorities
dealt with the ability of physicians to combine to jointly meet the
needs of managed care organizations. Here, Plaintiff contends, the
BEI physicians are illegally colluding to provide joint services to
non-managed care patients for whom they would normally compete.
However, here the Plaintiff is claiming injury from the alleged
refusal to refer patients to RA, not from the underlying
arrangement among the BEI physicians to treat non-managed care
patients. It is, therefore, the exclusion from patient referrals
that must be scrutinized for consistently anticompetitive effect
before per se analysis may properly be applied. See Northwest
Wholesale Stationers, Inc., 472 U.S. at 295-96, 105 S.Ct. at 2620
(reasoning that where the Plaintiff is not objecting to the
underlying arrangement but rather to expulsion from cooperative
association, it is the act of exclusion that must be evaluated
before the arrangement is condemned as illegal per se). The
reasoning of Levine and the DOJ Enforcement Policy indicates that
the anticompetitive effect of the challenged exclusionary conduct
is not fully understood and therefore should not be condemned out
of hand.
Plaintiff also argues that the BEI/FRI exclusive dealing
conduct of defendants. A third network, Eye Care Associates of
North Florida, has also been formed. Dr. Bolling, of the Mayo
Clinic, is the exclusive retina care provider for that network.
arrangement represents control over retina referrals necessary for
Plaintiff to compete because those referrals represent
"relationships" which RA needs "in the competitive struggle."
Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10
L.Ed.2d 389 (1963). The alleged boycott, plaintiff claims, has
caused it to "lose a significant volume of trading" and has
"hampered substantially" Plaintiff's ability to compete. Id., 373
U.S. at 348, 83 S.Ct. at 1252. However, apart from bald assertion,
Plaintiff presents no factual or evidentiary justification for such
a finding. Plaintiff has not demonstrated that the Defendants'
power over the market of referrals is sufficient to hamper
Plaintiff in its effort to compete.
Plaintiff's best case scenario is that the BEI physicians
control fifteen percent of the referrals made by general
ophthalmologists to retina specialists in the Jacksonville area.
This leaves plaintiff capable of vigorously competing for the other
eighty-five percent of referrals. Courts have refused to impose
antitrust liability upon greater showings of market power.
Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. at 16-25, 104
S.Ct. at 1560-1565 (holding that in product-tying claim thirty
percent control of relevant market was insufficient to warrant a
finding of per se invalidity); U.S. Healthcare, 986 F.2d at 596
(1st Cir.1993) (holding that power over twenty-five percent of
relevant market insufficient to justify, under the rule of reason,
Sherman Act liability for vertical exclusivity arrangement).
The determination that per se analysis is inapplicable in this
case is reinforced by RA's remarkable success during the years of
the alleged boycott. In 1990, when FRI participated in the venture
for only three months, Plaintiff's gross revenues were slightly in
excess of one and one-half million dollars. By contrast, RA's
gross revenues, derived from the practice of only two physicians,
consistently exceeded two million dollars annually between 1991 and
1994, when the asserted boycott was in full effect. In addition,
Plaintiff's records disclose, during the years of the boycott, a
referral base of one hundred and fifty physicians; and more, RA
has opened satellite offices in St. Augustine, Florida and
Waycross, Georgia. Further, Plaintiff has joined a competing
comprehensive eye care network. It clearly appears, therefore,
that RA has competed successfully despite the alleged refusal to
deal. As such, RA should not be heard to complain that Defendants'
use of fifteen percent of the available market is per se
unreasonable. The antitrust laws were designed to protect
competition, not competitors. Brown Shoe Co. v. United States, 370
U.S. 294, 344, 82 S.Ct. 1502, 1534, 8 L.Ed.2d 510 (1962). Attempts
to win the "Super Bowl of remuneration" by invoking rules of per se
invalidity cannot be countenanced. Levine, 72 F.3d at 1551.
2. Is the Conduct Illegal under the Rule of Reason?
Because Plaintiff has failed to establish the applicability
of a per se analysis in the instant case, the presumption that the
rule of reason inquiry governs Section 1 claims remains intact.
Under the rule of reason, the "test of legality is whether the
restraint imposed is such as merely regulates and perhaps thereby
promotes competition or whether it is such as may suppress or even
destroy competition." Chicago Bd. of Trade v. United States, 246
U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). To
establish that conduct violates Section 1 under the rule of reason,
RA must prove that (1) Defendant's conduct had an anticompetitive
effect in the relevant market; and (2) that no procompetitive
rationale would justify the conduct. Levine, 72 F.3d at 1551. In
showing that the conduct has an anticompetitive effect, Plaintiff
may establish either actual anticompetitive effects of the conduct
or the potential for genuine anticompetitive effect. Id. To
successfully show potential anticompetitive effects, the Plaintiff
must first define the relevant geographic and product markets and
then prove that the Defendants possessed power in that market.
Indiana Fed'n, 476 U.S. at 460-61, 106 S.Ct. at 2019.
a. is there any actual anticompetitive effect?
Plaintiff asserts three grounds upon which the alleged
boycott may be found to have actual anticompetitive effects.
First, Plaintiff argues that the alleged exclusive referral
agreement between the BEI physicians and the Florida Retina
Institute has resulted in higher prices to the consumer for common
diagnostic procedures. As evidence of this claim, Plaintiff
contends that FRI patients referred by BEI pay a higher price for
fluorescein angiograms than other patients because, in addition to
FRI's charge for the service, Baptist charges its own fee for the
use of its equipment and personnel at the BEI building.
Plaintiff is particularly poorly suited to raise this claim
because, should the evidence bear the claim out, Plaintiff stands
to benefit. Plaintiff, as a response, can either raise its fees
for the same procedures and earn more money, or capitalize on its
lower prices in the hope of competing more efficiently. Where a
plaintiff stands to benefit from a price increase, it cannot
recover for a combination imposing nonprice restraints, here a
group boycott, that has the effect of raising the market price.
Matsushita Elec. Indus. Co. v. Zenith Radio Co., Ltd., 475 U.S.
574, 562-63, 106 S.Ct. 1348, 1354, 89 L.Ed.2d 538 (1986). As a
result, the claim by this Plaintiff that the alleged boycott has
resulted in higher prices for some procedures is insufficient as a
matter of law.
Second, the Plaintiff asserts, when Dr. Levenson joined the
BEI physicians in 1993, he cancelled a subcontract with plaintiff
to refer patients Levenson had under a contract with PruCare HMO to
RA for any applicable retina treatments. 6 When Levenson informed
RA of his decision, RA offered to lower its price in order to keep
the contract. Levenson subsequently awarded the contract to FRI.
Plaintiff contends that this constitutes a detrimental effect on
competition because the savings that could have been achieved by
leaving the contract with RA could have been passed on to PruCare
and its subscribers. Plaintiff, for the same reasons stated above,
is particularly ill suited to raise this claim and it is therefore
insufficient to raise an issue of actual detrimental effect.
Finally, Plaintiff contends that the six BEI physicians who
perform radial keratotomy procedures have engaged in illegal price
fixing. Deposition testimony of one of the BEI doctors establishes
that the BEI physicians agreed on a price of $1350 as a benchmark
6
There is no allegation that Levenson breached any
contractual relationship he had with RA when he cancelled the
contract.
for the procedure. This claim can be summarily dismissed as it has
absolutely no relationship to the concerted refusal to deal alleged
by Plaintiff and has caused the Plaintiff no damages. The record
is devoid of any evidence establishing that the alleged price
fixing is in any way connected to the concerted refusal to deal of
which Plaintiff complains.
b. is there any potential anticompetitive effect?
As noted above, to establish potential anticompetitive effect
amounting to a violation of Section 1 under the rule of reason, the
evidence must show that the defendants possess market power. This
power must be shown to exist in properly defined geographic and
product markets. Further inquiry into market definition in this
case is, however, unnecessary. Assuming, arguendo, that
plaintiff's definition of the relevant geographic and product
markets pass legal muster, fifteen percent of the retina referral
market is insufficient, as a matter of law, to establish market
power.
Because plaintiff has failed to establish that the per se rule
governs the case and because there appears to be no triable fact
issue under the rule of reason, defendants' motions for summary
judgment on Count I of the complaint should be granted.
B. The Attempted Monopolization Claim
Plaintiff has also alleged that Staman and FRI have violated
Section 2 of the Sherman Act by attempting to monopolize the market
for retina services. Staman and FRI have moved for summary
judgment on that claim.
To prove attempted monopolization, a plaintiff must prove
that: (1) Defendant has engaged in predatory or anticompetitive
conduct; (2) a specific intent on Defendant's part to monopolize;
and (3) a dangerous probability of achieving monopoly power.
Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 113 S.Ct. 884,
122 L.Ed.2d 247 (1993). There is no evidence to support either the
first or second elements of the claim.
Staman and FRI argue that there is no evidence of
anticompetitive or predatory conduct sufficient to support a
Section 2 claim. They point to the fact that they did not actively
seek to affiliate with the BEI physicians and their initial
reluctance to join BEI. Plaintiff relies on Staman's and FRI's
participation in an unlawful group boycott to establish the
necessary predatory conduct. While participating in an unlawful
horizontal group boycott may be sufficient to establish a Section
2 claim, here such a finding is precluded by the Court's grant of
summary judgment against Plaintiff on Count I. As such, there is
no genuine issue of material fact as to the existence of predatory
conduct.
Proof of the intent element requires proof of "a specific
intent to destroy competition or build a monopoly." Times-Picayune
Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872,
890, 97 L.Ed.2d 1277 (1953). Plaintiff, in addition to Defendant's
participation in the boycott, points to a letter from FRI seeking
a commitment from BEI to make it the exclusive recipient of retina
referrals should it join the venture. Plaintiff claims that the
letter independently established an intent to exclude RA and
therefore to monopolize the market for retina patients. However
the record shows that Staman and FRI were reluctant to join BEI,
that they left the venture after the first few months and that they
desired to split the BEI referrals fifty-fifty with RA should they
join the venture. This Court's finding that no illegal group
boycott existed in conjunction with these facts permits no
inference of a specific intent to monopolize.
Because no triable fact issue exists with respect to two of
the three elements of the Section 2 claim, summary judgment should
be granted for Staman and FRI.