# Opposition — National Educational Advertising Services, Inc. v. Cass Student Advertising, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1110%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 986 ## Text Supreme Court, U. & FILED OCT 24 1975 : MICHAEL RODAK, JR., CLERK IN THE Supreme Court of the GAnited States OcTOBER TERM, 1975 No. 75-480 NATIONAL EDUCATIONAL ADVERTISING SERVICES, INC., Petitioner, vs. CASS STUDENT ADVERTISING INCORPORATED, * Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI JERALD P. Esrick One IBM Plaza Suite 3000 Chicago, Illinois 60611 Attorney for Respondent Of Counsel: WILDMAN, HARROLD, ALLEN & DIxOn One IBM Plaza Suite 3000 Chicago, Illinois 60611 312-222-0400 Gunthorp-Warren Printing Company, Chicago e Financial 6-6565 TABLE OF CONTENTS NE MED 6 6 0n0.6066s500cbesesdneevasecaness Question Presented for Review ................0- Do i cccds co ceeedecnsbecebune’ Reasons Why the Writ Should Be Denied ............ A. The Case Turns Wholly Upon Application of Well Established Legal Standards to Uncontro- verted Facts and Presents No Special or SE GD Sawecsvcovese emscsens B. The Reasons for Granting the Writ Stated in the Petition Present Questions Which Have No REAR IEE Fe a Re ag ZEIT UE AER a ER SE ieee rena aa ere eee Ie il TABLE OF AUTHORITIES Cases Brown Shoe Co. v. United States, 370 U. S. 294 (1962) Cass Student Advertising, Inc. v. National Educational Advertising Services, Inc., 374 F. Supp. 796 (N. D. Ill. 1974), reversed 516 F. 2d 1092 (7th Cir. 1975)...1, 2,4, 5 Credit Bureau Reports, Inc. v. Retail Credit Co., 358 F. Supp. 780 (S. D. Tex. 1971), affd 476 F. 2d 989 (Sth Cee Te. ovecscucevecueseecesegeseuebsbanes 5 International Boxing Club, Inc. v. United States, 358 U. S. i, BPevrrivirirrire Te ere Tre 5 Marnell v. United Parcel Service of America, 1971 Trade + Be) 8 Se B- 8 oo arr 5 United States v. Connecticut National Bank, 418 U. S. GRE CIBNE) cc cctvcdsccesctarcesececssétsuces 3 United States v. E. I. Dupont de Nemours & Co., 351 U. S. SFE CHRD hécectuccecéececeeseepssunvesses 3,4, 5 United States v. Grinnell Corp., 384 U. S. 563 (1966). ..3, 5, 6 United States v. Phillipsburg National Bank, 399 U. S. 350 CEE: 660 66-0edé-tvavedess oewaneeeatenseanse 3 Rules Federal Rules of Civil Procedure, Rule 52({a) 28 a Oe Ee Ose5 80th kesdednced usu easedendeseee 3, 4,7 Supreme Court of the Gnited States OCTOBER TERM, 1975. No. 75-480 NATIONAL EDUCATIONAL ADVERTISING SERVICE, INC., Petitioner, vs. CASS STUDENT ADVERTISING INCORPORATED, Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI OPINIONS BELOW The opinion of the Court of Appeals is reported at 516 F. 2d 1092. Otherwise, Opinions Below, Jurisdiction and Statutes Involved are as stated in the Petition. QUESTION PRESENTED FOR REVIEW The questions presented for review in the Petition are in- accurate. The sole question which could properly be presented for review is: Whether the Court of Appeals applied the proper legal standards to essentially uncontroverted facts in defining the relevant market to be “the service of representing col- lege newspapers in the placement of national advertising”? STATEMENT OF THE CASE The relevant facts and proceedings below are fairly sum- marized in the Opinion of the Court of Appeals, appended to the Petition at pages la-16a, reported at 516 F. 2d 1092, and in the Opinion of the District Court, appended to the Petition at pages 1b-14b, reported at 374 F. Supp. 796. The Statement of the Case in the Petitionycontains numerous misstatements of facts, misrepresentations of the record, and unwarranted argumenta- tion, most of which are not germane to the question presented for review. As recognized by both Courts below and admitted by the Petitioner itself in its Brief to the Court of Appeals (Brief of Defendant-Appellee, p. 27), the evidence in the record re- lating to the determination of the relevant market issue is essentially uncontroverted. Without belaboring or refuting Petitioner's misstatements in detail, the record provides io support for Petitionez’s irrelevant and all inclusive assertions that “the advertising representative, whether for college newspapers, metropolitan dailies or broad- cast media works on an exclusive basis” (Petition p. 3) and “[iJn college newspapers carrying both local and national ad- vertising, most advertising is local advertising” (Petition, p. 3). It is not true that Respondent had exclusive contracts with all or even a significant number of Chicago-area high school and college newspapers for the placement of local advertising. Re- spondent’s stetement carefully overlooks a key finding of the Court of Appeals that: . Since the college newspapers cannot practically as- sume the sclicitation of national advertisers themselves and since other wdvertising representatives specialize by medium, college newspapers have little alternative to CASS or NEAS if they wish to secure national advertising. Cf. Telex Corp. v. International Business Machines Corp., ...¥F. 2d... (10th Cir. 1-24-75, slip opinion at 47-59).” (emphasis added) (Petition, p. 16a.) REASONS WHY THE WRIT SHOULD BE DENIED A. The Case Turns Wholly Upon Application of Well Estab- lished Legal Standards to Uncontroverted Facts and Pre- sents No Special or Important Questions The Petition is plainly insubstantial and presents no special or important reasons for considering it. Petitioner does not suggest that the Court of Appeals announced new or novel legal standards for determining the relevant market, which are in con- flict with those well established by this Court. Indeed, Petitioner concedes that the Court of Appeals made its decision based upon an application of the controlling legal standards established by United States v. E. 1. DuPont de Nemours & Co., 351 U. S. 377 (1956) and Brown Shoe Company v. United States, 370 U. S. 294 (1962). Petitioner seeks review because it disputes the Court of Ap- peals’ application of those standards to the instant facts. In addition, inconsistently with its agreement before the Court of Appeals that all essential facts were uncontroverted, it now argues that the Court of Appeals overruled the District Court’s findings of fact in violation of Federal Rule 52(a). Neither argument is well founded. However, even if it were assumed arguendo that the Court of Appeals erred in its applica- tion of the proper legal standards to the facts or reversed a finding of fact of the District Court, such errors would not be of sufficient magnitude to warrant the granting of the Writ. The legal standards by which the relevant market issue should be determined are well settled by this Court’s decisions in DuPont, Brown Shoe and more recently in United States v. Grinnell Corp., 384 U. S. 563 (1966), United States v. Phillips- burg National Bank, 399 U. S. 350 (1970), and United States v. Connecticut National Bank, 418 U. S. 656 (1974). These decisions were recognized and applied by the Court of Appeals, 4 which was conscious of this Court’s admonition in DuPont that relevant market determinations could be reversed only upon a showing “that erroneous legal tests were applied to essential find- ings of fact or that the findings themselves were ‘clearly erroneous’ within our rulings on Rule 52(a) of the Rules of Civil Procedure,” (351 U. S. at 381) (emphasis added). The Court of Appeals, in accord with that admonition, re- versed based upon its conclusion that the District Court had “misapplied the appropriate legal standards” (Petition, p. 3a). The Court found it unnecessary to set aside the District Court’s findings of fact under the “clearly erroneous” standard since the facts essential to the relevant market determination were un- controverted. The Court of Appeals’ opinion analyzed the uncontroverted facts, measured them against the reasonable interchangeability standard of DuPont, and applied with precise detail the Brown Shoe submarket indicia, in reaching its conclusion. This Court's relevant market standards do not focus upon an abstract theoretical judgment as to whether the market under review is “narrow” or “broad”. What is critical is whether the service claimed to be the market is reasonably interchangeable, from the purchaser’s standpoint, with other available services. As recognized by the Court of Appeals, the college newspapers, the purchasers of the service at issue here, have no reasonable alternative but to use the services of a representative specializing in college newspaper national ad- vertising, due to the fact that advertising representatives spe- cialize by medium. (Petition, pp. 15a.-16a.)* * Petitioner’s repeated reference to Mr. Hanson’s earlier duties as a space salesman for the Ladies Home Journal (Petition, pp. 3, 18) are a perfect illustration of Petitioner’s basic failure to understand the interchangeability test applied by the Court of Appeals. Just be- cause every salesman performs the same physical tasks in selling his product is irrelevant to whether the service of selling a particular type of product is interchangeable with available substitutes for that service. The decisions of this Court and others have repeatedly a oe ee - © ie eo 5 The District Court erroneously failed to focus on the service at issue, as required by Grinnell (384 U. S. at 573). Rather, it held the relevant market to include “all modes of competition used to present national advertising to college students” (Pe- tition, p. 14b), which in its view included: “television, AM and FM radio, commercial newspapers, magazines such as Playboy, Penthouse, Oui and Sports Illustrated, the college editions of Time and Newsweek magazines, other college publications, and billboards . . . direct mail advertisments, posters located on campus, student directory ads, advertising samples distributed on campus, commercial magazines distributed predominantly on campus, and ‘Beetleboards’ . . .” (Petition, pp. 9b-10b). Such a definition by its terms included virtually all national advertising to the public at large, rather than merely national advertising to college students since all national advertising to some degree reaches college students. By no reasonable basis could a market definition which included all national advertis- ing be justified under the sub-market standards of Brown Shoe, given the undisputed facts of this case. The Court of Appeals ruling here is yet another example of this Court’s statement in DuPont that in relevant market cases, “(T]he varying circumstances of each case determine the re- sult.” (351 U. S. at 395.) Were the Court to grant the Writ, every losing party in a relevant market case would be equally justified in pressing a Petition for Certiorari on this issue. The geometric increase in cases prophesied by the Petition if the Writ is denied (Petition, p. 11), will surely be realized if the Petition is granted. This Court does not sit to review the recognized that neither similarity nor even identity of function creates reasonably interchangeable products or services within a relevant line of commerce. E.g., United States v. Grinnell Corp., 384 U. S. 563, 573-576 (1966); International Boxing Club, Inc. v. United States, 358 U. S. 242, 249-251 (1959); Marnell v. United Parcel Service of America, 1971 Trade Cas. § 73,761 at pp. 91,212-91,213 (N. D. Cal. 1971); Credit Bureau Reports, Inc. v. Retail Credit Co., 358 F. Supp. 780, 790 (S. D. Tex. 1971), aff'd. 476 F. 2d 989 (Sth Cir. 1973). 6 unique facts of individual cases. A decision by this Court on the relevant market appropriate to the facts at bar, would have no impact beyond the limits of this specific case. B. The Reasons for Granting the Writ Stated in the Petition Present Questions Which Have No Basis in the Record Point II of the Petition begs the question, in assuming that “college newspaper advertising” cannot be a relevant market. Such an argument misses the point of the Court of Appeals’ decision, which properly focused on the service at issue as re- quired by this Court's Grinnell decision. In doing so, the Court of Appeals properly reversed the District Court, which had failed to analyze whether that service was reasonably inter- changeable with other services available to college newspapers to secure national advertising. The Court of Appeals properly concluded, upon a review of all uncontroverted facts, that there were no reasonable alternatives. The Petition attempts to confuse this Court into focusing on “college newspaper ad- vertising” rather than upon the service at issue. The supposed conflict (claimed in Point III of The Petition) of the decision below with the decisions of other Circuits is nonexistent. The Court below applied the same legal standards utilized by the cases cited by Petitioner. Each court applied these standards to the unique facts before it. No conflict be- tween Circuits can exist when the only purported distinction between decisions is whether the market defined is “narrow” or “broad”, a matter dictated solely by the facts of each case. The important point is that the standards utilized by all Cir- cuits deciding the relevant market issue were those mandated by this Court’s decisions. The Petition attempts to categorize the relevant market found by the Court of Appeals to be “narrow”. The relevant market found herein is no more narrow than that found in Grinnell which properly analyzed the cluster of services at 7 issue. What Petitioner is really saying is that the service at issue is a relatively small part of the nation’s commerce and, there- fore, not entitled to be dignified with classification as a rele- vant market. The short answer is that neither the Sherman Act nor this Court’s decisions provide any basis for applying differ- ent standards to relevant lines of commerce based upon their size. | Finally, Point IV of the Petition is simply an effort, without saying so, to have this Court decide whether the Court of Appeals improperly overruled the District Court under Rule 52(a). This Court’s function, respectfully, is not to review findings of fact, all the more so where both courts below and Petitioner have agreed that the essential facts are uncontro- verted. CONCLUSION For all of the foregoing reasons, the Petition for a Writ of Certiorari should be denied. Respectfully submitted, JERALD P. EsrIck One IBM Plaza Suite 3000 Chicago, Illinois 60611 Attorney for Respondent Of Counsel: WILDMAN, HARROLD, ALLEN & DIXON One IBM Plaza Suite 3000 Chicago, Illinois 60611 312-222-0400 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1110%3A2. Public record. Not legal advice.