# Petition for Writ of Certiorari — Arthur S. Langenderfer, Inc. v. S. E. Johnson Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1926%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 899 ## Text 90-1581 |": ELS IN THE | ence ( Supreme Court of the United States October Term, 1990 ARTHUR S. LANGENDERFER, INC., NORTHERN OHIO ASPHALT PAVING CO., MACRITCHIE MATERIALS, INC., M & B ASPHALT CO., and G. M. SADER EXCAVATING & PAVING CO., Petitioners, vs. S. E. JOHNSON COMPANY, S. E. JOHNSON COMPANIES, INC., THE OHIO ENGINEERING COMPANY, FRED R. CREAGER & SONS, INC., MATCO, ASPHALTIC CONCRETE PRODUCING CO., OAMCO, INC., C. P. CALAWAY, INC., MAUMEE STONE COMPANY, MICHIGAN STONE COMPANY, WOLCOTTVILLE SAND & GRAVEL CORP., SAXON DEVELOPMENT COMPANY, STONECO, INC. and J. T. KIRKBY, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CourT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI JAMES M. PORTER Counsel of Record SQUIRE, SANDERS & DEMPSEY 1800 Huntington Building Cleveland, Ohio 44115 (216) 687-8500 Attorney for Petitioners Of Counsel: WALTER J. REksTIS, III Eric M. OAKLEY VIRGINIA A. SEGER ELIZABETH A. RADER THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647 ee i. QUESTIONS PRESENTED 1. In reversing jury verdicts for plaintiffs in a Sherman §2 monopoly case, is it a violation of the Seventh Amendment's proscription against the _ re- examination of any fact found by a jury, for a Court of Appeals: (a) sua sponte to redetermine and reduce damages by an implicit extension of Matsushita on the ground ‘“‘that some of the dollar figures offered by plaintiffs and their experts simply fail to reflect economic reality and we shall make adjustments accordingly’ when the amount of the verdicts was never challenged by motions in the trial court for directed verdict, j.n.o.v., or new trial and was never raised or argued on appeal; (b) sua sponte to hold that a plaintiff only suffered indirect injury and lacked antitrust standing under Associated General Contractors when the defendants failed to raise the issue either in the trial court or on appeal; (c) to hold that plaintiffs also had to prove that defendants monopolized individual counties within a thirteen county relevant geographical market, even though the Court of Appeals affirmed the jury's finding that defendants monopolized the whole thirteen county area; (d) to hold that plaintiffs had failed to prove that defendants monopolized the production of all highway construction materials, although the plaintiffs’ contention and the jury’s express findings were that defendants monopolized the supply of highway construction materials used only on asphalt paving jobs that defendants were also found to have monopolized; and ie) to hold, as a matter of law, that the evidence was insufficient to support a jury's finding that a defendant controlling an essential facility refused to deal with the plaintiff customer for retaliatory and anticompetitive reasons rather than for genuine credii reasons when the Court itself is “‘persuaded”’ that plaintiff's claim “has arguable merit.” 2. Whether, as a matter of law, a_ prevailing antitrust plaintiff can be refused all attorney's fees and costs for the first nine years of legal effort in successfully prosecuting a monopoly case over fifteen vears. 3. On retrial of a case, when a second jury returns a larger verdict for the original plaintiffs which includes the damages awarded on the original vacated judgment, are the original plaintiffs entitled to interest on the original amount from the date of that first judgment. eee ill. RULE 29.1 STATEMENT Material Suppliers of Northwest Ohio, Inc., an Ohio corporation, is a non-wholly owned subsidiary of Northern Ohio Asphalt Paving Co. All other companies and subsidiaries are wholly owned. Vv. TABLE OF CONTENTS QUESTIONS PRESENTED .......... ccc ceeuaes ee a ee eee ee ee ree py OF BM iy | - ererererrreer er 6a Ws aKa kn dw ete tenweewhews FE 6o 6.5 600 ek cea nenes CONSTITUTIONAL PROVISION INVOLVED.... pe pg FN ee ee Serre a STATEMENT OF THE CASE 2... cc cscs nccnee A. B C. D 7 Overview of the Decision Below ............ a ic hdc e ho Oke bun kan saa The Jury's Specific Findings ............... The Asphalt Paving Industry in PRR IE 6 6.5:5 0 00e5nstdesvadsarens The Relevant Markets .................... Defendants Deliberately Obtained Monopoly Power Through Thirteen Anticompetitive RD a 6 60:6:46 654404454400 440R ROR Acquisitions of essential quarries, sand pits and bridge building capacity foreclosed CUE 50.2 Cac xdadacdanc cease Acquisitions of asphalt paving competitors were anticompetitive and monopolistic . ... Defendants’ Market Shares and Statistical Evidence of Monopoly Power After the Ps 6. 6:06:60 40 645 cehdcunebeneavss Oo £ NM HW WD tO -J vi. H. Defendants’ Size and Power Dwarfed All SICA 0 d4.4400 40050004 060R00RRe RSD 10 I. Abuses of Monopoly Power................. 10 J. The Proceedings and Disposition Below ...... 11 REASONS FOR GRANTING THE WRIT........ 13 I. The Sixth Circuit’s Opinion Is An Implicit Extension Of Matsushita In Violation Of The DN DO ick bs ceawatias &i 13 II. The Seventh Amendment Precluded The Court Of Appeals From Sua _ Sponte Reviewing Any Issues Of Langenderfer’s Damages Or Indirect Injury To NOAP. The Issues Were Never Raised By Motion Beiow; They Were Never Assigned As Error, Briefed Coe AME TI CO 6k ib es eee icac caecis 17 A. The Court of Appeals effectively directed a damage verdict for a reduced sum........ 17 B.The Sixth Circuit's review likewise deprived petitioners of appellate due POORER. oon ccc cs cecseceesennses cebenes 19 III. The Appellate Court Again Violated The Seventh Amendment When It Re-Examined The Jury's Relevant Market Findings. Defendants’ Monopolization Of ODOT/OTC Asphalt Paving And Materials Used Therein As Found By The Jury Is Sufficient To Sustain The Claims Of All The Plaintiffs.... 21 IV. The Court Of Appeals Again Re-Examined The Jury’s Findings In Reversing Sader’s Judgment. Sader Was Cut Off By The Monopolist Under A Sham Credit Pretext; It wre: A GU BO hia cacucieuaceevneesese 23 Vii. V. The Court's Refusal To Award Attorneys’ Fees Or Costs To The Prevailing Plaintiff For The First Nine Years Of This Case Is Contrary To Law, Unconscionable On Its Face And Exhibits Hostility To Private Enforcement Of The Antitrust Laws........ 25 Vl. Refusal To Allow Postjudgment Interest On The Original Langenderfer I Judgment Reinstated By The Langenderfer I] Judgment Is Contrary To Binding Precedents In The Sixth Circuit And Presents A Direct Conflict With The Eighth And Ninth Circuits 27 Ps kn ok ROR CAS eSk Kon khe hake bea bas 29 viii. APPENDIX: Opinion of the Court of Appeals for the Sixth Circuit, dated October 29, 1990 .............. Al Judgment of the Court of Appeals for the Sixth Circuit, dated October 29, 1990 .............. A72 Jury's Answers to Special Interrogatories and General Verdicts for Plaintiffs, dated October 1, SER RNKREL GSS CHEN SENG ENS REESE RO KE OK ON A74 Judgment of Trial Court, dated October 2, 1986... A&9 Memorandum and Order of the Trial Court Denying Defendants’ Motion for J.N.O.V. or New Trial, dated April 30, 1987 .............. A91 Trial Court's Memorandum and Order Re Post- Judgment Interest, dated August 13, 1987..... A98 Trial Court's Memorandum and _ Order Re Attorney's Fees and Costs dated January eS eras ery Te re eee ry eee te Al0z2 Order of the Court of Appeals Denying Petition for Rehearing and Rehearing En Banc, dated CT EE “eV GaN adeeb Geb hens oes eben A122 U.S. Constitution, Amendment VII ........... Al24 Sherman Act §2, 15 U.S.C. §2 (1974) ...........4 A124 Clayton Act §4(a), 15 U.S.C. $15(a) (1982) .. 2... ., A125 ee ee: ee we cece ebebeeas A126 Defendants-Appellants’ Brief on the Merits, Excerpt: “Issues Presented ..............5. A127 ix. TABLE OF AUTHORITIES Cases Aetna Ins. Co. v. Kennedy, 301 U.S. 389 . , FEPCTSTERETE TTT PECTS TT TTT TT LOTTE T CTT 18 Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 738 F.2d 1509 (10th Cir. 1984), aff'd, 472 U.S. 585 Se a Sac ksnee se ceen seen wae eeskseeness 16 Associated General Contractors of California, Inc. v. Carpenters, 459 U.S. 519 (1983)... ............. 19 Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Limited, 369 U.S. 355 (1962) ......... cc eee eens 18 Bailey v. Chattem, Inc., 838 F.2d 149 (6th Cir.), cert. denied, 486 U.S. 1059 (1988) .............000e. 27,28 Brown v. Marshall, 704 F.2d 333 (6th Cir.) (per curiam), cert. denied, 464 U.S. 835 (1983)........ 20 Browning-Ferris Industries v. Kelco Disposal, Inc., Cae ee ee CUED 4h0 5 Che ed des eweceseectucsas 17,20 California v. American Stores Co., _.. U.S. ___, be We Gis Se CEN 66 be cabeasteneseuesanes 26 Chiropractic Cooperative Ass'n of Michigan ov. American Medical Ass'n, 867 F.2d 270 (6th Cir. I ee ts ei oe ee ee arr ed 20 Continental Ore Co. v. Union Carbide & Carbon Cn, Te Ce ee SE 6 0 6.0 5d 50.00 6a oh bee ces 15 Fairmount Glass Works v. Cub Fork Coal Co., 287 i Se ee ee eet 18 FTC v. Superior Court Trial Lawyers Association, nun Woe , 110 S. Ct. 768 (1990) ............ 24 1 & Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. PG Te 6 ne ie ia eee ioe eas 21 General Industries Corp. v. Hartz Mountain Corp., oe me ie hy ) Pre 24 H&J, Inc., v. International Tel. & Tel. Corp., 1991-1 CCH Trade Case £69,327 at 65,264 (8th Cir. 1991) 27 Handgards v. Ethicon, Inc., 743 F.2d 1282 (9th Cir. 1984), cert. denied, 469 U.S. 1190 (1985) ........ 27,28 Hensley v. Eckerhart, 461 U.S. 424 (1983) ........ 26,27 Kaiser Aluminum & Chemical Corp. v. Bonjorno, waves Wis canis NEO es Go DO AE i baer ca toes 28 Kerasotes Michigan Theatres, Inc. v. National Amusement. Inc., 854 F.2d 135 (6th Cir. 1988)... 22 Arthur S. Langenderfer, Inc. v. S.E. Johnson Company (Langenderfer I), 729 F.2d 1050 (6th Cir.), cert. denied, 469 U.S. 1036 SRO Se ey al a ee EW ee ee ee passim Arthur S. Langenderfer, Inc. v. S.E. Johnson Company, 1987-2 Trade Cases (CCH) {67,858 (N.D. Ohio 1987) (Interest Opinion)............. 1 Arthur S. Langenderfer, Inc. v. S.E. Johnson Company, 684 F. Supp. 953 (N.D. Ohio 1988) (Fee RRS Scar anisole sve aoe ee ae eee ] Arthur S. Langenderfer, Inc. v. S.E. Johnson Company, 1987-i Trade Cases (CCH) 67,553 (J.N.O.V.— New Trial Opinion)................. 1 Arthur S. Langenderfer, Inc. v. S.E. Johnson Company (Langenderfer II), 917 F.2d 1413 Oe ee ee ee ee ee ye passim Matsushita Electric Industrial Co. v. Zenith Radio Corp, 475 U.S. O76 COGR). wo cc ce censsccs 4,13,14 xi. McKinnon v. City of Berwyn, 750 F.2d 1383 (7th MR ER ip een pu Pas ae ee a a ee 17,18 McLaughlin v. Liu, 849 F.2d 1205 (9th Cir. 1988)... 14 Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 Poe A ee OO, SO oe cs oe ws wee ee ee 20 Parsons v. Bedford, 28 U.S. 433 (1830) ............ 18 Priddy v. Edelman, 883 F.2d 43% (6th Cir. LS a eae RC tas ak se eee yea aera 20 Singleton v. Wulff, 428 U.S. 106 (1976)... .......... 20 Smith v. Illinois Central Railroad Co., 394 F.2d 254 CEE ONIN Se a to dates Olay o aie no ote shane we xis 15 Standard Oil Co. v. United States, 221 USS. | MEER ards 4 4-4 he ee a Rae ee ee eee 22 United States v. Grinnell Corp., 384 U.S. 563 EE os po ee RR OGD oak Cea hee ae ae 21 Young v. Central Railroad Co., 232 U.S. 602 (1914)... 18 Statutes, Constitution and Rules Clayton Act §4(a), 15 U.S.C. §15(a)............. 2,19,26 snerman Act $2, 16 U.S.C. 92... 0.5... n ces eus 2,11,26 ee ara EE oo pc coe shee ak eases ee ee 2 Ae WU SUE 2 oo 5 ebb cas vives eeereg nena 16 28 Re 8 2 er err ere fre 18 U.S. Const., Amend. VII..... 2,4,13,14,17.18,19,21,25,29 xii. Treatises and Law Journals 9 C. Wright & Miller, Fed. Prac. and Proc. §2536, . : rr s eer eee acs 11 C. Wright & Miller, Fed. Prac. and Proc. §2803, MM 8. os 00s cu yea cee a S. DeSanti & W. Kovacic, ‘Matsushita: Its Construction And Application By the Lower Courts,’ 59 Antitrust Law Journal 609 (errr e ry se eee eee ee ee J. Stempel, ‘“‘A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process,’ 49 O.S.L.J. 95 (1968)... 0... ween eaee 14 14 No. IN THE Supreme Court of the United States October Term, 1990 ARTHUR S. LANGENDERFER, INC., NORTHERN OHIO ASPHALT PAVING CO., MACRITCHIE MATERIALS, INC., M & B ASPHALT CO., and G. M. SADER EXCAVATING & PAVING CO., Petitioners, Vs. S. E. JOHNSON COMPANY, S. E. JOHNSON COMPANIES, INC., THE OHIO ENGINEERING COMPANY, FRED R. CREAGER & SONS, INC., MATCO, ASPHALTIC CONCRETE PRODUCING CO., OAMCO, INC, C. P. CALAWAY, _INC., MAUMEE STONE COMPANY, MICHIGAN STONE COMPANY, WOLCOTTVILLE SAND & GRAVEL CORP., SAXON DEVELOPMENT COMPANY, STONECO, INC. and J. T. KIRKBY, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CourRT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI The petitioners, plaintiffs below, Arthur S. Langenderfer, Inc., Northern Ohio Asphait Paving Company, MacRitchie Materials, Inc., M&B Asphalt Co., Inc., and G.M. Sader Excavating and Paving Co., Inc., respectfully request that a writ of certiorari issue to review the judgment and decision of the United States Court of Appeals for the Sixth Circuit entered on October 29, 1990, reversing jury verdicts for the second time. OPINIONS BELOW The opinion of the Court of Appeals is reported at 917 F.2d 1413 (‘Langenderfer IT’) and appears in the Appendix hereto at Al-71.' The district court rendered a written opinion appended hereto (AQ91) denying respondents’ motions for j.n.o.v. or a new trial. That opinion is unofficially reported at 1987-1 CCH Trade Cases 467,553. The attorney's fee and costs opinion of the district court affirmed by the Court of Appeals is reported at 684 F. Supp. 953 (N.D. Ohio W.D. 1988) (A102). The district court's Interest Opinion is unofficially reported at 1987-2 CCH Trade Cases £67.45 (A98). The earlier opinion of the Court of Appeals in this case is reported in 729 F.2d 1050 (6th Cir.), cert denied, 469 U.S. 1036 (1984) (‘‘Langenderfer ]°’). JURISDICTION The judgment of the Court of Appeals was entered on October 29, 1990 (A72). A timely petition for rehearing and suggestion for rehearing en banc was denied on January 23, 1991 (A122). The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). ‘Citations to the Appendix to this petition are in the following form (‘A_”). The pages in the Joint Appendix in the Court of Appeals are cited as “JA,” with original transcript page citations appearing as “TR_..’ Exhibit references are PX for plaintiffs (petitioners) and DX for defendants (respondents). Emphasis ‘is petitioners’ unless otherwise noted. 2 CONSTITUTIONAL PROVISION INVOLVED The action of the Court of Appeals in reversing unanimous jury verdicts directly involves the application of the Seventh Amendment to the Constitution of the United States which provides that: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. STATUTES INVOLVED The suit involves applications of Section 2 of the Sherman Act, 15 U.S.C. §2, Section 4(a) of the Clayton Act, 15 U.S.C. §15(a) and the Federal Interest Statute, 28 U.S.C. §1961. These statutes appear at A1l24-25. STATEMENT OF THE CASE A. Overview of the Decision Below This fifteen year old Sherman §2 monopoly case has been tried twice and each time a different but unanimous jury has found for plaintiffs (the petitioners) and returned substantial damages. Each time a different trial judge has overruled defendants’ (respondents’) motions j.n.o.v. and for a new trial, holding that the juries’ verdicts were supported by the evidence and the law. Now for the second time, the Sixth Circuit Court of Appeals (two of the same judges? sitting) has overturned the result below (with one exception) largely on the grounds of insufficient evidence. ‘‘[W]hen two juries have reached substantially the same result, the possibility of a miscarriage of justice is very slight.” 11 C. Wright & Miller, Fed. Prac. and Proc. $2803, p. 35 (1973). The District Judge found no ‘miscarriage of justice’’ and sustained the verdicts below (A91-97). * The same two appellate judges formed the majority which reversed plaintiffs’ unanimous verdicts on both appeals in Langenderfer ], 729 F.2d 1050 and Langenderfer I], 917 F.2d 1413. The same judge wrote che opinion each time. i The Sixth Circuit reversed and vacated actual damage verdicts aggregating $2,425,000, thereby awarding nothing to four of the plaintiffs and reducing the award to the fifth plaintiff, Langenderfer, by two- thirds to $471,104. All plaintiffs participated within the contiguous thirteen county relevant market in Northwestern Ohio that the Court found the defendants monopolized. From 1972 to 1985, defendants monopolized 75% to 85% of all Ohio Turnpike paving and 40% to 80% of all Turnpike and State (ODOT) paving in that market (PX 69SA, 71A, C). After eighteen years, defendants’ monopoly remains intact today. In overturning the jury’s verdicts and the trial court’s rulings, the Court of Appeals sua sponte decided legal and factual issues not raised or preserved below and never argued on the appeal. It violated the traditional and generally accepted rules of appellate procedure and limited review. It redetermined damages although the amount of damages had not been challenged. It totally missed a key relevant product market issue and misconceived the application of law to relevant geographical markets which changed the outcome of the case, all in disregard of the jury’s express findings in answers to special interrogatories drafted by defendants. It substituted its judgment for that of the factfinder. Its lengthy opinion (Al1-71) is replete with de novo factfinding premised on: theories and arguments never advanced by defendants; defendants’ evidence rejected by the jury; improper inferences, misconceptions and self-contradictory conclusions drawn from conflicting evidence; and a general disregard of the plaintiffs’ key evidence which has been ‘accepted by two different and unanimous juries, two different trial judges, and even by the Sixth Circuit itself in Langenderfer I, 729 F.2d at 1053-54. We respectfully submit that the Sixth Circuit’s announced vision of ‘‘economic reality’ is an unwarranted extension of the summary judgment standard that this Court enunciated in Matsushita 4 Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and deprives plaintiffs of appellate due process and violates the Seventh Amendment to the Constitution of the United States which guarantees ‘‘that the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” This Petition raises serious Constitutional and antitrust issues which implicate a Court of Appeals’ power to disregard a jury’s express findings of fact. The questions presented have far-reaching application to all appeals from jury verdicts and do not just apply in antitrust cases. The broad policy issues at stake here require the Supreme Court’s review in the exercise of its supervisory responsibilities over the appellate courts. B. The Parties Petitioners and plaintiffs below, Arthur S. Langenderfer, Inc. (‘‘Langenderfer’’), Northern Ohio Aspha't Paving Company (‘“NOAP’), MacRitchie Materials, Inc. (‘“MacRitchie Materials’), M&B Asphalt Co., Inc., (“M&B"’), and G.M. Sader Excavating and Paving Co., Inc. (‘‘Sader’’) all competed against the defendants in the asphalt paving market within a contiguous area of thirteen counties in Northwestern Ohio surrounding Toledo (e.g., PX 1). Langenderfer was in the asphalt highway paving business for 65 years in the thirteen counties until driven out by defendants in 1978 (JA 734-35; TR 163-64). NOAP_ produced the hot mix asphalt used _ by Langenderfer in its paving business until driven out in 1980. MacRitchie Materials owns a quarry at West Millgrove which supplied road stone and sand to Langenderfer and NOAP for paving and asphalt production. Langenderfer, NOAP and MacRitchie Materials were sister companies, all commonly owned by the MacRitchie family (JA 734-38, 749; TR 163-67, 178). 5 M&B was also an asphalt paver which competed against defendants and owned a single hot mix asphalt plant at Maple Grove, within the thirteen counties (JA 1831-33, 1858-68; TR 1789-90; 1815-25). Sader was a small paving contractor in the Bowling Green area which competed against defendants on private and_ local government paving projects. Sader had no asphalt plant or quarry and depended on defendants’ Portage (near Bowling Green) quarry and asphalt plant until defendants cut him off in 1983 (JA 1127-43, 1167-171; TR 758-74, 798-802). Defendants are a ciosely held, commonly owned enterprise resulting from thirteen acquisitions managed as an integrated unit by defendant John T. (Ted) Kirkby, their chief executive officer since 1957. ‘‘Kirkby, both individually and as chief officer of Johnson, intended to eliminate competition and dominate the market.” Langenderfer II, 917 F.2d at 1443 (A60); Langenderfer I, 729 F.2d at 1054. The principal defendant companies are asphalt pavers S.E. Johnson, Ohio Engineering and Fred Creager & Sons, Inc.; Matco and OAMCO, which supply hot mix asphalt to the paving defendants; Maumee Stone, Michigan Stone and Wolcottville S&G, which supply stone and sand to Matco, OAMCO and the defendant pavers; and C.P. Calaway, a bridge building subsidiary of S.E. Johnson. Two months before the trial of Langenderfer I, defendants acquired Union Quarries Co., a_ fully integrated competitor, for $3.5 million cash. A year before the retrial in Langenderfer II, defendants acquired Allen County Aggregates and Dailey Asphalt for another $3.5 million cash (729 F.2d at 1053-54; JA 2044-47, 2102, 2197-2205; TR 2098-2101, 2156, 2251-59; PX3). C. The Jury’s Specific Findings The unanimous jury found in answers to special interrogatories drafted by defendants that: defendants’ thirteen acquisitions of asphalt pavers, quarries and sand pits ‘‘were all made to exclude and/or injure competition 6 and increase Johnson’s power which he succeeded in doing’; the acquisitions enabled defendants to monopolize and attempt to monopolize Turnpike and ODOT asphalt paving work and the _ highway construction materials (asphalt, stone and sand) used therein in a thirteen county market in Northwestern Ohio where plaintiffs competed; defendants’ monopoly power was willfully acquired, maintained or used through anticompetitive conduct in all the relevant markets pursuant to a specific intent to achieve a monopoly; and defendants’ anticompetitive conduct injured all five plaintiffs in the aggregate sum of $2,475,000 actual damages (Ans. to Itgs. 1-18; A74-84). The trial court found on post-trial motions that the evidence was sufficient in all respects to sustain the jury’s findings (A91). D. The Asphalt Paving Industry in Northwestern Ohio Limestone and sand are the principal ingredients of asphaltic concrete (asphalt, or hot mix) and essential to asphalt paving. A ton of asphaltic concrete consists of approximately 60% stone, 40% sand and 6% liquid asphalt (which evaporates in the mixing process at an asphalt plant). Limestone and sand are also used in the base (underlying) course of road building over which the surface course of hot mix asphalt is laid. Consequently, control of stone quarries, sand pits and asphalt plants is important to asphalt paving. Highway asphalt paving work is administered and paid for by governmental bodies which invite competitive bids on specifications from paving contractors who are required to supply all the necessary highway construction materials (hot mix, stone and sand), labor and supervision at per-unit prices specified in the winning bid. The larger volume work is performed by prequalified contractors on Federal and State highway jobs which are closely specified and administered by the Ohio Department of Transportation (“ODOT’’) and the 7 Ohio Turnpike Commission (‘“‘OTC’’) with substantial use of Federal funds (JA 773, TR 202; 729 F.2d at 1052-53). The costs of the essential raw (stone and sand) and processed materials (hot mix) and of hauling them to the job site are the major expenses in performing these contracts. In order to minimize the expense, the paving contractor normally tries to buy his materials from the quarry or hot mix plant closest to the job site. The practical effective radius of a hot mix plant is about 25- 30 miles because of the haul cost involved and the specified temperature at which the product must be delivered (JA 761, 1044, 1869-70; TR 190, 620, 1826-27; 729 F.2d at 1053). Defendants, through a series of acquisitions, now control seven quarries, two sand pits and fourteen hot mix plants strategically located throughout the area and are obviously the dominant factor in this regional industry (729 F.2d at 1052-53). E. The Relevant Markets The jury answered all seven special interrogatories drafted by the defendants on the issue of relevant markets in plaintiffs’ favor. They found that the relevant product markets were Turnpike and ODOT asphalt paving contracts and the supply of stone, sand and asphalt used in performing the contracts (Ans. to Itgs. 1- 7; A74-78). The trial court overruled defendants’ motion j.n.o.v. on the relevant market issues (A94, n.3). Defendants stipulated the ODOT/OTC asphalt paving market in the thirteen counties in the Langenderfer I appeal. 729 F.2d at 1052-53. The Court of Appeals herein “conclude[d] that this thirteen-county ODOT/OTC asphalt paving market is established.’’ 917 F.2d at 1440; A54. F. Defendants Deliberately Obtained Monopoly Power Through Thirteen Anticompetitive Acquisitions The jury, asked to describe one or more types of defendants’ anticompetitive conduct, expressly found that “‘the acquisitions were all made to exclude and/or 8 injure competition and increase Johnson's power which he succeeded in doing” in the relevant markets (Ans. to Itg. 10; A811). The Court of Appeals found that “acquisitions by defendants of quarry sites coupled with the use of lengthy non-competition agreements and other circumstances did foreclose production and efficient use of such quarries and limestone by Langenderfer and others as competitors of defendants.” 917 F.2d at 1443; A61. The evidence fully supported these conclusions. Starting in 1957, defendants deliberately engineered the thirteen acquisitions, on both a horizontal and vertical basis, of its major paving competitors and suppliers of limestone, sand and asphalt (JA 2081-2110, 2146-2213; TR 2135-64, 2200-67; 729 F.2d at 1053-54; PX 3). 1. Acquisitions of essential quarries, sand pits and bridge building capacity foreclosed competition. The raw material acquisitions of quarries and sand pits gave defendants a captive supply of stone and sand for their own asphalt paving purposes and choice locations for placing asphalt plants, while becoming stone supplier to their asphalt paving competitors. 729 F.2d at 1054. Defendants sold stone and sand at high, rigid and non-competitive prices to’their competitors who no longer could get discounts from the formerly independent quarries and sand pits (e.g., JA 840-45; TR 269-74). After defendants’ acquisition of bridge builder Calaway, it no longer did bridge work for, nor subcontracted paving to, plaintiffs and other asphalt paving competitors (JA 822, 2084-86, 2501; TR 251, 2138-40, 2615). 2. Acquisitions of asphalt paving competitors were anticompetitive and monopolistic. In the face of a shrinking market (1969), defendants decided it was good business to acquire asphalt paving competitors to expand their market share by doubling capacity (JA 2156-58; TR 2210-12; PX 3). The 9 acquisitions were accompanied by non-compete agreements; were admittedly without’ business justification or need; were designed to prevent competitors’ expansion; or were otherwise made to prevent competitors from price-cutting or competing (JA 2156-67; TR 2210-21). In summary, defendants grew from two quarries and three hot-mix plants to seven quarries, fourteen hot mix plants and three sand pits serving Northwestern Ohio (729 F.2d at 1054; PX 3; JA 2077, 2192-93; TR 2131, 2246-47). Following defendants’ acquisitions, established competitors avoided bidding against defendants, left the market altogether or went out of business (JA 1117, 1143, 1539-40, 1801-02, 1852, 2262-64; TR 743, 774, 1399%- 1400, 1748-49, 1809, 2315-17; PX 16). Plaintiffs’ expert economists testified that defendants’ anticompetitive acquisitions created a monopoly, eliminated actual competition, increased market concentration, prevented potential competition, raised entry barriers, foreclosed competition and enabled other anticompetitive conduct. This reflected a deliberate, calculated strategy that drove Langenderfer and NOAP out of the market, weakened remaining competition and inflicted plaintiffs’ losses (JA 2640-2682, 2820-2875; TR 2874-2916, 3333-89). G. Defendants’ Market Shares and Statistical Evidence of Monopoly Power After the Acquisitions After the acquisitions, defendants’ market shares grew massively in Northwestern Ohio. They were the leading ODOT contractor in the entire state for over eighteen years (PX 37, 37A). Before the acquisitions, they bid less than 40% of the Northwestern Ohio market; afterwards thev bid 80% to 100% of the market (PX 147A, 147S). Between 1972 and 1985, they averaged between 75.8% and 85% of all revenues on Turnpike work (PX 69, 69SA, 69B, 69C) and averaged 59% of all ODOT/OTC paving (PX 73A). Their share of asphalt tonnage rose from 40% in the 1970s to 48.3% in the 1980s (PX 30, 30A). In the 1970s and 1980s, defendants controlled half of the important Toledo area stone —— 10 market (PX 145, 145A). Defendants’ pre-qualification bidding power’ went from $13 Million in 1970 to $106 Million by 1986 (PX 68SB). H. Defendants’ Size and Power Dwarfed All Competitors By 1985, defendants’ net worth had grown to $35 million; all seven major competitors together had net worth of only $6.9 million (PX 110S). By 1985, defendants’ total assets were over $47 million; all combined competitors had $16 million (PX 112S). By 1984, defendants’ sales were 67% greater than the rest of competitors combined (JA 2549, TR 2669; PX 113A- 114S). In the 1970s, defendants’ net profits more than doubled; by 1984 they had doubled again (PX 115, 115A, 116A). In summary, defendants’ twenty year history reflected phenomenal growth and massive economic power (PX 117A): Combined Defendant Companies ($000's omitted) 1965 1970 1975 1978 1985 Increase Assets 5,668 11,374 19,089 25,320 47,154 732% Net worth 4,222 9,117 15,865 21,495 35,270 735% Total revenues 6,570 14,915 30,513 43,146 83,064 1164% Profit before ; income taxes 934 2,163 2,969 4,319 5,866 528% For the period 1979-84, defendants’ cumulative net profit totalled $12.9 million; all seven competitors together equalled $637,000, and most competitors had severe losses (PX 116A). By 1984, defendants controlled 87% of the net worth among ODOT competitors; 71% of the assets; 64% of the sales dollars; and 91% of the net profit (PX 116B). I. Abuses of Monopoly Power There was direct evidence of defendants’ intentional abuses and leveraging of monopoly power over the years toward many competitors. Defendant Kirkby told his *The dollar amount of ODOT paving work an ODOT-qualified contractor could have in progress at any one time in a given year (e.g., PX 68A-2). 11 Chairman of the Board that ‘‘in order to keep our position in the business we had to be dominant”’; that he bid at ‘‘zero profit’’ against Miller and Langenderfer ‘‘to see just how tough the competition is’’; that he hated competitors Miller and Langenderfer and would like to run them out of business. Kirkby warned plaintiff M&B to stay out of his “‘territory’’ and told Sader that “state work’’ belonged to Johnson and that Sader should not bid it (JA 1085-89, 1149, 1860-61, 2039-41, 2257-60; TR 685-89, 780, 1817-18, 2092-94, 2310-13). In addition to the acquisitions, the trial court submitted six kinds of anticompetitive acts to the jury: (1) monopolistic stone pricing; (2) price or _ profit squeezing and cross-subsidization; (3) leveraging its position in ODOT and OTC; (4) tying the sale of stone and sand to the sale of asphalt; (5) intimidating, discouraging, coercing and _ retaliating against competitors; and (6) refusal to sell stone to Sader (JA 216). The trial court also submitted to the jury the issue of whether defendants’ refusal to deal with Sader was for legitimate credit reasons or retaliation for testifying in Langenderfer I (JA 216-17, 219). The jury found for the plaintiff on all these matters. The evidence supported these claims and the trial court so found in denying defendants’ j.n.o.v. motion (A91). J. The Proceedings and Disposition Below Plaintiffs Langenderfer and NOAP filed the original private antitrust action herein (‘‘Langenderfer J’’) in 1976, alleging that defendants had violated Section 2 of the Sherman Act (15 U.S.C. §2) (JA 37-58). In March 1980, a unanimous jury of twelve returned a general verdict in favor of plaintiffs for actual damages of $982,117 (JA 59). District Judge Young denied defendants’ post-trial motions, entered treble judgment for $2,946,351, ordered injunctive relief and awarded | attorney's fees and costs. Both sides appealed (JA 81- 105). 12 While the Langenderfer I appeal was _ pending, plaintiffs Langenderfer and NOAP were joined by new plaintiffs MacRitchie Materials, M&B and Sader in a companion suit filed on December 23, 1983 (““Langenderfer II’’), for damages inflicted since 1980 by the continuing monopoly. On March 15, 1984 the Sixth Circuit (Judges Wellford and Lively in the majority, Judge Wilhoit dissenting), while recognizing that the evidence supported plaintiffs’ claims of monopolization, reversed, vacated the judgments and remanded Langenderfer I for a new trial. Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 729 F.2d 1050 (6th Cir. 1984), cert. denied, 469 U.S. 1036 (1984). Langenderfer I and II were consolidated in a seven- week jury trial before District Judge John W. Potter in August-September, 1986. The second unanimous jury returned general verdicts in favor of all five plaintiffs for actual damages aggregating $2,425,000, unanimously answering all of the 18 special interrogatories (including 60 subparts) in pleintiffs’ favor (A74-84; JA 251-75). These interrogatories were in the form submitted by defendants. Judge Potter trebled the damages, awarded fees and costs, denied post-judgment interest to the Langenderfer I plaintiffs and ordered injunctive relief. He denied defendants’ post-trial motions for j.7.0.v. or a new trial, finding the special interrogatory answers consistent with the general verdicts in all respects (A91). Appeal and cross-appeal to the Sixth Circuit followed. The Court of Appeals entered its Opinion and Judgment on October 29, 1990 (A1-71). Plaintiffs’ timely Petition for Rehearing and Rehearing En Banc was denied on January 23, 1991 (A122). The Court refused to stay its mandate on February 12, 1991 despite all parties requesting same. This is the second time petitioners Langenderfer and NOAP have sought a writ of certiorari in this Court. | 13 REASONS FOR GRANTING THE WRIT I. The Sixth Circuit’s Opinion Is An _ Implicit Extension Of Matsushita In Violation Of The Seventh Amendment. The concerns vigorously expressed by the four dissenting Justices (White, Brennan, Blackmun and Stevens) in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 598-607 (1986) have come to full flower on the instant appeal. Here, the Sixth Circuit disregarded the jury’s findings expressed in answers to special interrogatories and, through its own fact-finding exercise and ‘‘economic theorizing,’ overturned jury verdicts for the second time. The Sixth Circuit's opinion is an implicit extension of Matsushita in violation of the Seventh Amendment. In Matsushita, a (5-4) majority of this Court held that, on summary judgment, an antitrust plaintiff must come forward with more persuasive proof than is ordinarily required “if the factual context renders [plaintiffs’} claim implausible—if the claim is one that simply makes no economic sense[.]'’ 475 U.S. at 587. The dissent was properly concerned that the Matsushita majority made ‘‘a number of assumptions that invade the factfinder’s province,’’ 475 U.S. at 599. The Sixth Circuit’s review of the evidence herein went far beyond anything this Court condoned in Matsushita. This is not a summary judgment case. Plaintiffs have passed the “‘plausibility’’ test time after time on motions for summary judgment, directed verdict, j.n.o.v./new trial, and most importantly before a jury that returned answers to special interrogatories finding for the plaintiffs. Although it may not raise constitutional concerns for a court to find, at the summary judgment stage, that ‘‘the factual context renders [a] claim implausible,’ 475 U.S. at 587, such concerns are raised 14 where, as here, a jury, for the second time, has examined the facts and found the claims not only plausible, but real, based on all the evidence in a seven week trial.‘ The Sixth Circuit's sua sponte finding that Langenderfer’s damage claims ‘‘simply fail to reflect economic reality and we_ shall make adjustments accordingly, (917 F.2d at 1444; A62) is the illegitimate offspring of Matsushita. It baldly illustrates the extent to which the Court went to impose its own views of economic reality on a case where the factfinder had already fulfilled its constitutional role. Instead of reviewing the sufficiency of the evidence in the light most favorable to plaintiffs, as it was required to do, the Court felt free to weigh the plausibility of plaintiffs’ evidence, compare it with defendants’ evidence, and make its own judgments about economic impact despite the jury's findings to the contrary. Where a jury has examined and found the facts, however, a reviewing court has no business considering plausibility. Simply put—does the Seventh Amendment permit a Court of Appeals to overturn a jury’s express findings, based on that Court's vision of ‘‘economic reality’? As hereinafter discussed, the answer must be a resounding: ‘‘No.”’ ‘Matsushita authorizes an inquiry on summary judgment into the ‘implausibility’ of inferences from circumstantial evidence, particularly in antitrust conspiracy cases, not an inquiry into the credibility of direct evidence.” McLaughlin v. Liu, 849 F.2d 1205, 1207 (9th Cir. 1988). See also DeSanti & Kovacic, ‘Matsushita: Its Construction and Application By The Lower Courts,’ 59 Antitrust Law Journal 609, 628, 634, 641-43 (1990) (‘Lower court opinions reflect the tension between the majority and minority opinions in Matsushita concerning the extent to which a court must ‘weigh’ evidence and therefore invade the province of the factfinder ...'); Stempel, ‘A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process,” 49 O.S.L.J. 95, 164-68 (1988) (‘When the nature of ... (by extension judgment n.o.v.) practice is changed, however, so that it involves a judicial assessment of the correctness of competing questions of fact existence and fact inference, the rock on which these cases (e.g., Matsushita) was built begins to crumble ... it would seem that these new ... ground rules violate the Seventh Amendment.”’) 15 There can be no question that the Sixth Circuit construed the facts in this case in disregard of the jury's findings, scorning its own rules: The Appellate Court must be governed by the rules safeguarding the constitutional right of trial by jury, which requires the Appellate Court to take the strongest legitimate view of all the evidence to uphold the verdict; to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict. Smith v. Illinois Central Railroad Co., 394 F.2d 254, 256- 57 (6th Cir. 1968). The jury may not have believed a word defendants’ witnesses said, as the Court instructed was their right (JA 203). For the Sixth Circuit to credit any of defendants’ witnesses was the plainest invasion of the jury's factfinding responsibilities. The Court of Appeals utterly failed to consider the case as a whole. It studied each of the five plaintiffs, issues and markets independently in a vacuum, as though one had nothing to do with the other. It failed to consider the overall impact of defendants’ monopoly and all plaintiffs’ proof contrary to the trial court’s charge (JA 204). As stated in Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 698-99 (1962): It is apparent from the foregoing that the Court of Appeals approached Continental’s claims as if they were five completely separate and _ unrelated lawsuits. We think this was improper. In cases such as this, plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. | 16 These principles were reaffirmed in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 599 (1985) but the Sixth Circuit steadfastly ignored them in the appeal at issue.* In short, the principal reason for granting the writ in this fifteen year old case is to protect the constitutional right to trial by jury and preserve the integrity of the appellate process. The Langenderfer 1] Court of Appeals trampled on the unanimous jury findings and disregarded traditional concepts of appellate procedure—a precedent, which if allowed to stand, will hereafter plague the course of innumerable appeals and judicial supervision of jury verdicts. The Court of Appeals literally “‘... has so far departed from the accepted course of judicial proceedings ... as to call for an exercise of [the Supreme] Court's power of supervision” (S.Ct. R.10.1(a)). Plaintiffs have no other remedy for the fundamental violation of _ their Constitutional rights by a Court of Appeals than review by this Court. *'fThe trial court herein submitted six specific categories of defendants’ anticompetitive conduct to the jury and found them supported by the evidence in its post trial rulings (JA 216; A91). The Sixth Circuit, however, treated each one separately for each of plaintiffs’ claims and found that the plaintiffs had failed to prove monopolistic stone pricing, price squeezing and tying in various respects. This was contrary to the teaching of Aspen where the Tenth Circuit had held: Plaintiff's evidence should be viewed as a whole. Each of the six things [alleged anticompetitive acts] viewed in isolation need not be supported by sufficient evidence to amount to a §2 violation. It is enough that taken together they are sufficient to prove the monopolization claim. Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1522, n.18 (10th Cir. 1984), aff'd 472 U.S. 585, 599 (1985). ee 17 II. The Seventh Amendment Precluded The Court Of Appeals From Sua Sponte Reviewing Any Issues Of Langenderfer’s Damages Or Indirect Injury To NOAP. The Issues Were Never Raised By Motion Below; They Were Never Assigned As Error, Briefed Or Argued On Appeal. The appellate court sua sponte disregarded unanimous jury damage verdicts and ridiculed plaintiffs’ proofs. It then waded into the record and redetermined damages to suit itself and cut Langenderfer’s award by two-thirds, stating ‘‘that some of the dollar figures offered by plaintiffs and their experts simply fail to reflect economic reality and we shall make adjustments accordingly’’ (917 F.2d at 1444; A62). A new day has dawned, if Courts of Appeals can now fix the amount of damages in jury cases. “It is not our role to review directly the award for excessiveness, or to substitute our judgment for that of the jury.” Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, __, 109 S. Ct. 2909, 2921 (1989). The Court candidly set out to re-do the jury’s job: to evaluate the alternate methods of proof, to sift and weigh the evidence, to draw inferences, to judge credibility, and to decide what was reasonable under all the circumstances after making its own “realistic allocations,’ 917 F.2d at 1444-47; A61-66. A. The Court of Appeals effectively directed a damage verdict for a reduced sum. Under the Seventh Amendment, no appellate court has the power to redetermine damages.*® ‘“‘The Seventh Amendment reserves the determination of damages, in jury trials within its scope, to the jury.’’ McKinnon v. *The Supreme Court only recently noted that ‘‘we have never held expressly that the Seventh Amendment allows appellate review of a district court's denial of a motion to set aside an award as excessive” although it has twice granted certiorari to consider the issue but never reached it. Browning-Ferris, 109 S. Ct. at 2922, n.25. Certainly the time is ripe for review of this issue, especially when the defendants never attacked the excessiveness of the verdict, by motion below or on appeal. 18 City of Berwyn, 750 F.2d 1383, 1392 (7th Cir. 1984). There is no point in having juries at all if appellate courts can sua sponte disregard their findings of fact and usurp the jury’s unique function in fixing damages. A United States Court of Appeals has no jurisdiction to re- examine facts tried to a jury. Parsons v. Bedford, 28 U.S. 433, 446-48 (1830); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Limited, 369 U.S. 355, 363-64 (1962). The Court of Appeals did not even have the right to review the trial court’s denial of a new trial on damage issues absent a clear showing of abuse of discretion, which was never raised. In Fairmount Glass Works uv. Cub Fork Coal Co., 287 U.S. 474, 481 (1933), it was stated: The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or inadequate. The rule precludes likewise a review of such action by a circuit court of appeals. What this appellate Court did is the equivalent of directing a verdict in a reduced sum for the plaintiff Langenderfer. The Court of Appeals cannot direct a verdict in a jury case in view of the Seventh Amendment prohibitions. See, Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 392-94 (1937); Young v. Central Railroad Co., 232 U.S. 602, 603-604 (1914). The Court of Appeals had no power to vacate or reduce the aggregate judgment for Langenderfer and NOAP. This Court should correct such a flagrant disregard of the Seventh Amendment as an admonition to those courts that might be tempted to stray from Constitutional orthodoxy. We submit that the Court of Appeals’ conduct is so far outside the accepted confines of the Seventh Amendment and appeilate procedure that its rulings overturning damage verdicts should be summarily vacated and judgments of $1,675,000 for Langenderfer and NOAP reinstated. S.Ct. Rule 16.1. | 19 B. The Sixth Circuit’s review likewise deprived petitioners of appellate due process. The Court’s bold usurpation of the jury's unique role is all the more astonishing because defendants did not move for directed verdicts, j.n.o.v., or new trial on the issue of damage amounts or NOAP'’s standing (JA 2901- 48, 3721-3752; JA 283-86) and never presented, briefed or argued those non-issues as error on the appeal. See, Defendants’ ‘“‘Issues Presented”’ (A 126-27). Consequently, plaintiffs never even had a chance to argue or defend against the Court of Appeals’ gratuitous and startling findings. In similar vein, the Court of Appeals held (917 F.2d at 1437-38; A47-50) that plaintiff NOAP had only been indirectly injured under the standing doctrine of Associated General Contractors of California, Inc. v. Carpenters, 459 U.S. 519, 538-40 (1983) and could not recover antitrust damages under Clayton §4, even though the defendants had never raised NOAP'’s standing as a defense at trial or by motion, and never presented or argued it on appeal.’ Once again, plaintiffs had no chance to argue the issue. This kind of appellate conduct is shocking and should be ‘nipped in the bud,” lest other courts find its exercise tempting. The common law proscription referred to in the Seventh Amendment iimits appellate review to issues properly raised below or on appeal. Defendants repeatedly waived these issues and the Court of Appeals violated traditional standards of appellate due process and the limited scope of review (including its own) in even considering such issues. It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below. In Hormel v. Helvering, 312 U.S. 552, "Defendants waived NOAP’s standing years ago in Langenderfer I and never raised it on retrial. In fact, in the special interrogatories and general verdict forms drafted by defendants, they combined Langenderfer and NOAP and treated them as one party for findings and verdict purposes (Ans. to Itgs. 1-7, 12, 17, 18; A75-78, 81, 83, 84). 20 556 (1941), the Court explained that this is “essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues ... [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.'’ We have no idea what evidence, if any, petitioner would, or could, offer in defense of this statute, but this is only because petitioner has had no opportunity to proffer such evidence. Moreover, even assuming that there is no such evidence, petitioner should have the opportunity to present whatever legal arguments he may have in defense of the statute. Singleton v. Wulff, 428 U.S. 106, 121 (1976). “The clear rule is that appellate courts do not consider issues not presented to the district court.” Brown v. Marshall, 704 F.2d 333, 334 (6th Cir.) (per curiam), cert. denied, 464 U.S. 835 (1983). The appellate court will not review issues not specifically preserved by mouons for a directed verdict, j.n.o.v. or new trial. 9 C. Wright & Miller, Fed. Prac. & Proc. $2536, p. 593 (1971). In the case at hand, not only did defendants fail to raise the subject issues of damages and NOAP’s standing at the trial but they failed to present or argue them in the Sixth Circuit appeal. See, Defendants- Appellants’ Issves Presented (A126). ‘“‘[AJn [appellant's] original brief abandons all points not mentioned therein,’’ Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530, 1539 n.14 (5th Cir. 1984); Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989).° *The Sixth Circuit has declined to decide an issue even where the parties had briefed the issue because it had not been ‘‘specifically’’ appealed. Chiropractic Cooperative Ass'n of Michigan v. American Medical Ass'n, 867 F.2d 270, 277 (6th Cir. 1989). Recently, this Court has declined to address an argument because the defendant failed to raise it properly in the district court or on appeal. Browning-Ferris, supra, 109 S. Ct. at 2921. Ee 21 The issues were never before the appellate court. The court's gratuitous reversal of jury awards in these circumstances violates cardinal principles limiting the scope of review to issues properly raised and argued. If courts of appeals can ignore their own rules and sua sponte overturn jury verdicts at will, the Seventh Amendment has become a dead letter. Ill. The Appellate Court Again Violated The Seventh Amendment When It Re-Examined The Jury's Relevant Market Findings. Defendants’ Monopolization Of ODOT/OTC Asphalt Paving And Materials Used Therein As Found By The Jury Is Sufficient To Sustain The Claims Of All The Plaintiffs. The Court of Appeals decision raises important issues of antitrust law in the process of contravening the jury's findings of fact. Perhaps the most important is that, although the Court of Appeals affirmed, as to plaintiff Langenderfer, the jury’s finding that defendants monopolized and attempted to monopolize a contiguous thirteen county area in Northwestern Ohio (917 F.2d at 1440; A54), it rejected that same finding when it reversed awards to two other plaintiffs (M&B and Sader) who competed against defendants within the same thirteen counties on the grounds they did not each prove separate relevant geographical markets as to the lesser included counties.’ In short, the Court of Appeals ignored the ‘‘economic reality’’ that the total includes the sum of its parts, contrary to United States v. Grinnell Corp., 384 U.S. 563, 576 (1966) which held: * The trial court properly instructed the jury on the relevant thirteen county market and submarkets within it (JA 209-211). It was defendants who concocted a confusing interrogatory asking the jury to ‘‘state the relevant market or submarket of each plaintiff.’ Thus, the jury may very well have found submarkets for each plaintiff. The jury's answers to special interrogatories must be reconciled if at all possible with the general verdicts (as the trial court did) when ‘‘there is a view of the case that makes the jury answers to special interrogatories consistent."’ Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 119 (1963). The Court of Appeals flatly ignored that principle. 22 ... the relevant market for determining whether | the defendants have monopoly power is not the several local areas which the individual stations serve, but the broader national market that reflects the reality of the way in which they built and conduct their business. The rejection of this principle will have far-reaching consequences and affect the trial of many antitrust cases for years to come wherever relevant market issues and multiple plaintiffs are involved. The appellate court also ignored the anticompetitive leverage that defendants’ thirteen county monopoly exerted over the individual counties within the thirteen. As the Sixth Circuit itself stated in Kerasotes Michigan Theatres, Inc. v. National Amusement, Inc., 854 F.2d 135, 137 (6th Cir. 1988): To run afoul of the antitrust laws, it is not necessary that the party attempting to leverage its monopoly power from a given market [the 13 counties] into a second market [a cluster of counties within the 13] possesses monopoly power or dominant market position in that second market. . . We expressly reject the district court's reasoning that leveraging or the abuse of monopoly power is not actionable when the offender has not yet acquired a dominant position in the affected market. Since the relevant geographical market was the only issue defendants successfully appealed against M&B, if this ruling is reversed, M&B’s actual damages of $350,000 should be reinstated. Finally, the Court of Appeals ignored the jury's explicit findings that defendants monopolized and attempted to monopolize the raw materials (stone, sand and asphalt) that went into (called “inputs’’) asphalt paving of Turnpike and ODOT jobs,"* and instead, held ’°The jury's finding that defendants monopolized the “inputs” is fully supported by the landmark case of Standard Oil Co. v. United States, 221 U.S. 1, 77 (1911): (Footnote continued on following page.) reer 23 that plaintiffs were required to prove that defendants monopolized or attempted to monopolize the production of all stone and sand in the thirteen counties whether or not used in OTC/ODOT work. The jury did not find that defendants monopolized the production of all stone, sand and asphalt but only that which was used in OTC/ODOT paving contracts as plaintiffs had claimed (Ans. to Itg. 9;