Prologue — Harrison Aire, Inc. v. Aerostar International, Inc. (No. 05-887)

Court, US.

FILE O

05-887 JAN 12 2006

No.

QOPMOG OF THE OLBRK

IN THE

SUPREME COURT OF THE UNITED STATES

HARRISON AIRE, INC.

Petitioner,

AEROSTAR INTERNATIONAL, INC. and

RAVEN INDUSTRIES, INC.

Respondents

ON PETITION FOR WRIT OF CERTIORAR

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN K. WESTON

Counsel of Record

Sacks & Weston

114 Old York Road

Jenkintown, Pennsylvania 19046

(215) 925-8200

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

I. Did the circuit court create a new barrier to

victims of anticompetitive activity in an

aftermarket, by requiring the victim to show

“hard evidence dissociating the competitive

situation in the aftermarket from activities

occurring in the primary market,” contrary to the

express language of this Court in Eastman Kodak

Co. v. [mage Technical Services, Inc.?

NM

Did the circuit court’s refusal to allow Plaintiff

favorable inferences on a summary judgment

motion “introduce a special burden on plaintiffs

facing summary judgment in antitrust cases,”

contrary to the express direction of this Court in

Eastman Kodak Co. v. mage Technical Services,

Inc.?

PARTIES TO THE PROCEEDING

Harrison Aire, Inc.:

Plaintiff in the District Court for the Eastern

District of Pennsylvania;

Appellant in the United States Court of Appeals

for the Fourth Circuit;

Petitioner before this Court.

Aerostar International, Inc.:

Defendant in the District Court for the Eastern

District of Pennsylvania;

Appellee in the United States Court of Appeals

for the Fourth Circuit:

Respondent before this Court.

Raven Industries, Inc.:

Defendant in the District Court for the Eastern

District of Pennsylvania;

Appellee in the United States Court of Appeals

for the Fourth Circuit;

Respondent before this Court.

CORPORATE DISCLOSURE STATEMENT

Harrison Aire, Inc. has no parent corporation, nor

does any publicly held company own 10% or more of

its stock.

TABLE OF CONTENTS

Question Presented for Review

Parties to the Proceeding

Table of Contents

Table of Cited Authorities

Petition for Writ of Certiorari

Opinions and Orders Below

Statement of Jurisdiction

Constitutional Provisions and Statutes Involved

Statement of the Case

Argument

The circuit court created a new barrier to

victims of anticompetitive activity in

an aftermarket, by requiring the victim to

show “hard evidence dissociating the

competitive situation in the aftermarket

from activities occurring in the primary

bh

NM

market,” contrary to the express language

of this Court in Eastman Kodak Co. v.

Image Technical Services, Inc.

The circuit court’s refusal to allow

Plaintiff favorable inferences on a

summary judgment motion introduced

a special burden on plaintiffs facing

suinmary judgment in antitrust cases,

contrary to the express direction of this

Court in Eastman Kodak Co. v. Image

Technical Services, Inc.

Conclusion

Appendices

Appendix A - Opinion, Harrison Aire v.

Aerostar International, Inc., U.S. Court

of Appeals for the Third Circuit,

September 16, 2005

Appendix B - Opinion, //arrison Aire v.

Aerostar International, Inc., U.S. District

Court for the Eastern District of

la

Pennsylvania, Baylson, J., April 30,2004 27a

Appendix C - Judgment of June 9, 2004,

Harrison Aire v. Aerostar International,

Inc., U.S. District Court for the Eastern

District of Pennsylvania 137a

Appendix D - Order of April 30, 2004,

Harrison Aire v. Aerostar International,

Inc., U.S. District Court for the Eastern

District of Pennsylvania (re: summary

judgment) 138a

Appendix E - Order of October 14, 2005,

Harrison Aire v. Aerostar International,

Inc., U.S. Court of Appeals for the Third

Circuit (denying reargument) 139a

TABLE OF CITED AUTHORITIES

Brzozowski v. Correctional

Physician Services, Inc.,

360 F.3d 173 (3d Cir. 2004)

Eastman Kodak Co. v.

Image Technical Services, Inc.

504 U.S. 451, 112 S. Ct. 2072

(U.S. Cal.) (1992)

In re Braden’s Balloons Aloft, Inc.,

FAA Docket No. CP99S WO037,

U.S. Dept. of Transportation,

Office of Hearings, July 26, 2000

Keefe v. Prudential Prop.

& Cas. Co., 203 F.3d 219

(3d Cir. 2000)

Leatherman v. Tarrant County

Narcotics Intelligence

and Coordination Unit,

507 U.S. 163, 168-169,

113 S.Ct. 1160, 122 L.Ed.2d

517 (1993)

Vi

8-19

6

20

Matsushita Elec. Indus. Co.

v. Zenith Radio Ca

475 U.S. 574, 106 d.ct.

1348, 89 L.Ed.2d 538 (1986)

SMS Systems Maintenance

Services, Inc. v. Digital

Equipment Corp., 188 F.3d 11

(Ist Cir.1999)

17

9,10

PETITION FOR WRIT OF CERTIORARI

Petitioner Harrison Aire, Inc. respectfully

petitions this Court for a writ of certiorari to review a

judgment of the United States Court of Appeals for the

Third Circuit, entered in this proceeding on September

16, 2005.

OPINIONS AND ORDERS BELOW

The September 16, 2005 opinion of the United

States Court of Appeals for the Third Circuit is reported

at 423 F.3d 374 and is reproduced in Appendix A,

beginning at la. The April 30, 2004 opinion of the

United States District Court for the Eastern District of

Pennsylvania is reported at 316 F.Supp.2d 186 and is

reproduced in Appendix B, beginning at 27a.

STATEMENT OF JURISDICTION

The judgment of the United States Court of

Appeals for the Third Circuit was entered on September

16, 2005. By order of October 14, 2005 that court

denied a timely filed motion tor rehearing. Jurisdiction

exists under 28 USC §1254(1), pursuant to which cases

in the courts of appeals may be reviewed by the

Supreme Court by writ of certiorari.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

No constitutional provisions or statutes are

directly involved in resolution of this matter.

STATEMENT OF THE CASE

Procedural History

This is an antitrust case brought by a hot air

balloon owner (petitioner Hdrrison Aire) against

companies which manufactured hot air balloons

(respondents Raven and Aerostar). Harrison Aire

asserted federal antitrust claims and state law claims for

fraud and negligence. Because citizenship was diverse,

both federal question and diversity jurisdiction existed.

The complaint was_filed on March 12, 2002.

Both sides conducted extensive discovery, after which

defendants filed a motion for summary judgment under

FRCP 56. By order of April 30, 2004 the district court

granted partial summary judgment, and dismissed the

antitrust counts of the complaint.’ On June 9, 2004 the

district court entered final judgment on all counts,

pursuant to the parties’ stipulation submitted in

accordance with Brzozowski v. Correctional Physician

Services, Inc., 360 F.3d 173 (3d Cir. 2004) and Keefe v.

Prudential Prop. & Cas. Co., 203 F.3d 219 (3d Cir.

2000).

Plaintiff appealed the June 9 judgment to the

Third Circuit Court of Appeals, which affirmed the

district court’s judgment.’ A timely-filed petition for

panel rehearing was denied by order of October 14,

2005. The instant petition for writ of certiorari has been

filed within the time permitted by Supreme Court Rule

13.

| ‘ ? ,

Harrison Aire, Lic. v. Aerostar International,

Inc., 316 F.Supp.2d 186 (E.D. Pa. 2004).

“Harrison Aire, Inc. v. Aerostar International,

Inc., 423 F.3d 374 (3d Cir. 2005).

3

Facts

Piaintiff produced evidence of the following facts

in its response to Defendants’ motion for summary

judgment:

Hot air balloon envelopes wear out at the top

first.’ Replacing the top portion of the ervelope’s

fabric significantly extends the envelope’s useful life,

and is much cheaper than replacing the entire envelope.

Consequently there is a market for replacement fabric.

The barrier to entry into the repiacement fabric

market is high. FAA approval of the fabric is required

before the fabric can be sewn into an envelope. The

balloon’s manufacturer enjoys a natural monopoly in

the market, because the FAA _ approves the

manufacturer's fabric when the FAA approves the

manufacturer’s balloon design. However, third parties

who wish to sell replacement fabric must obtain FAA

approval - for each model of each manufacturer’s

balloon - before they can sell replacement fabric."

‘The envelope is the part of the balloon that holds

the hot air.

‘The “PMAs” and “STCs” referred to in the lower

court opinions are, essentially, the FAA’s licenses to

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