stating that fact that plaintiffs corporation, but not plaintiff, was party to contract would not bar use of economic loss rule because privity is not required under Florida law
How later courts described this case
- stating that fact that plaintiffs corporation, but not plaintiff, was party to contract would not bar use of economic loss rule because privity is not required under Florida law
- declining to apply a per se analysis to an arrangement whereby competing hospitals agreed to seek bids as a group for temporary nursing services
- holding that preferred provider program was not per se illegal group boycott of non preferred agencies
- declining to apply the per se group boycott rule against a preferred provider network because a recognized history of anticompetitive effect did not exist "for health-care preferred- provider programs"
Written by the judges who cited it.
The opinion
WELLFORD, Senior Circuit Judge,
concurring:
I concur in Judge Edmondson’s opinion. The antitrust issues were addressed early in this case through a decision on setting aside a preliminary injunction in and expanded on in a concurring opinion authored by then Chief Judge Tjoflat, 887 F.2d 1535, 1539 (11th Cir.1989) (Tjoflat, C.J., concurring).
There were contested issues as to whether defendants possessed market power in a relevant market for temporary nursing services. The jury decided the contested relevant issue on which plaintiffs had the burden. There were contested issues as to whether defendants had monopoly “control over access to an essential element of competition” by means of the arrangement. Plaintiffs had the burden to prove this and they failed in this burden.
Judge Edmondson points out, as Judge Tjoflat previously did in this case, that Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 , 105 S.Ct. 2613 , 86 L.Ed.2d 202 (1985), is key, and it “prohibits the application of the per se rule to cooperative buying arrangements unless a court has made certain preliminary findings of fact.” Id. Northwest held that *750 “[ajbsent a showing [of market power or exclusive access to an element essential to effective competition] with respect to a cooperative buying arrangement, courts should apply a rule-of-reason analysis.” Northwest, 472 U.S. at 297 , 105 S.Ct. at 2621 , quoted in All Care Nursing Service, 887 F.2d at 1539 ; see also Areeda & Havenkamp, Antitrust Law (1989 Supp.) ¶ 1511 (discussing Northwest and suggesting that plaintiffs must establish market power of defendant before the court should finally decide per se or rule of reason application).
In addition, this circuit has indicated that “[tjhe presumption in cases brought under section 1 of the Sherman Act is that the rule-of-reason standard applies.” Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1567 (11th Cir.1991). We observed in that case, moreover, that “[tjhe Supreme Court has made it clear that the per se label should be applied infrequently and with caution.” Id.
The majority opinion has covered all of the questions in this case; I merely emphasize the application of the rule-of-reason principle under the circumstances.