Opposition Brief — Deutscher Tennis Bund v. ATP Tour, Inc.

Supreme Court brief2010

Ask Donna

What actually matters in this document.

Text

\ aa

\ A * ‘

No. 10-421

In the

Supreme Court of the Anited States

DEUTSCHER TENNIS BUND, ROTHENBAUM

SPORTS GMBH AND QATAR TENNIS FEDERATION,

Petitioners,

ATP TOUR, INC., ETIENNE DE VILLIERS, CHARLES

PASARELL, GRAHAM PEARCE, JACCO ELTINGH,

PERRY ROGERS, AND IGGY JOVANOVIC,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION.

LAWRENCE C. ASHBY BRADLEY I. RUSKIN

PHILIP TRAINER, JR. Counsel of Record

ASHBY & GEDDES JENNIFER R. SCULLION

500 Delaware Avenue JORDAN B. LEADER

8th Floor ROBERT D. FORBES

Wilmington, DE 19899 PROSKAUER ROSE LLP

(302) 654-1888 1585 Broadway

New York, NY 19036

(212) 969-3000

bruskin@proskauer.com

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

(1)

QUESTION PRESENTED

Did the Court of Appeals correctly affirm the

jury’s rejection of Petitioners’ Sherman Act Section |

claim where the District Court found that there were

factual and economic disputes precluding a “Quick

Look” analysis of the changes to the format, rules

and structure of Respondent’s tennis circuit and

where the jury found that Petitioners failed to prove

their asserted relevant market for “top-tier” player

services in any event?

(11)

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

The caption contains the names of all parties to

the proceeding below. Respondent ATP Tour, Inc. is

a non-profit, Delaware non-stock membership

corporation. No publicly held company owns 10% or

more of ATP Tour, Inc.

(i11)

TABLE OF CONTENTS

Page

I ane aca cdidde daicgn sankeeeneeoaneeians 1

PRE EBT EGFR BRE CRI oi cc cevnsendeccaicerssccecoccensscnssascess 6

A. The Federations Sought to Prove a

Restraint on an Alleged “Top Player”

lac tcsanenieunenineaios 7

B. The Jury Rejected the Federations’

Antitrust Claims After a Two Week

Trial, Finding Insufficient Proof of the

Alleged “Top Players” Market ....................... 7

C. The Third’ Circuit Unanimously

Affirmed the Jury Verdict........................208- 10

REASONS FOR DENYING THE PETITION ................. 1]

I. The Third Circuit Applied Well-Established

Antitrust Law Precluding a Quick Look

Analysis Given the Disputed, and Ultimately

Unproven, “Top Player Services” Market as

Well as the Lack of Inherently Suspect

Isc a vias daccaveiicncovsdepassns teuctabandeteeurlaeioe 11

Il. The Federations Did Not Move for Quick

Look Treatment in the District Court.................. 17

Ill. There is No Circuit Split on the Requirement

of a Relevant Market for a Quick Look

PRM. vs, ccssscuchexapssdusmnsduebasoriiaasecsaioaear poaket 15

IV. The Burden of Proof Under Quick Look Is

Irrelevant Here and Correctly Stated by the

ck. SRR nROS Poem Tee Ratan Cen anne pin coney 19

V. The Federations Failed to Prove Additional

Elements Required Under Section l.................... 23

NIE ois cccercionsdisecindanineddbvndaeamereapoeuaaienal 25

(iV)

APPENDICES:

Appendix A

Appendix B

Appendix C

Appendix D

Judgment of the United States

District Court for the District of

Delaware, entered October 3,

2008, Verdict Form Attached....

Excerpts of Parties’ Proposed Jury

Instructions, Submitted to the

District Court on August 4, 2008..

Excerpts of Final Jury

Instructions, Read to the Jury on

PRIS Gas cscscinccascscccstess

Excerpts of Joint Appendix

Submitted to Third Circuit Court

of Appeals May 29, 2009....

l6a

20a

(v)

TABLE OF AUTHORITIES

Page(s)

CASES

Alabama v. Shelton,

Be Oe i Me IED i icsicocevcucccsscdieckecencccseniiasca 17, 24

Am. Needle, Inc. v. Nat’ Football League,

U.S... 190 B. Ct. SB01 ([O1G). ..crcrecese: ro

Associated Gen. Contractors of Cal. v. Cal.

State Council of Carpenters,

Be OF Oe Oe Ue cncesonecsccdncaccdcdcdcavcassscectscs ie OO

Brunswick Corp. v. Pueblo Bowl-O-Mat,

Oe ts HE 0 OE Pikik vcr nce cekdadacacencdatschexearsinss 23, 24

Cal. Dental Ass'n v. FTC,

Be EF, CE Ces vcciccndeivanccsscestsaterssaccisens passim

Cal. ex rel. Brown v. Safeway, Inc.,

F.3d, 2010 WL 3222187 (9th Cir

Be ey icaites usasncdcacdacnaccaneovezeseon’ . 15, 20, 21

Cargill v. Monfort of Col.,

ee aaa cid ndnckeecaccvancncubccacendenvocedcwan 25

Continental T.V., Inc. v. GTE Sylvania Jnc.,

Be EE Bic nsiucckacasnrsdevssasddencs daksaeucdeasaneae 22

Eichorn v. AT&T Corp. ,

248 F.3d 131 (Sd Cir. 2001) .........cccccsesees Pays asus

FTC v. Ind. Fed’n of Dentists,

476 U.S. 447 (1987)................ STE Re Oe a Re 16

(vi)

Gordon v. Lewistown Hosp.,

423 F.3d 184 (3d Cir. 200) ..........cccccsecccccccssccceee 14

Hennessy v. NCAA,

BG4 F.2d LISS (GER Cir. 1977)... .ccccceccococcccecsccccess. 21

Law v. Nat] Collegiate Athletic Ass'n,

134 F.3d 1010 (10th Cir. 1998)............... 16. 17, 21

Los Angeles Mem’! Coliseum Comm'n v. NFL,

726 F.2d 1381 (9th Cir. 1984).................cccseeceeees 22

Mid-South Grizzlies v. NFL,

ip (2 ge Wer Ob” Le RRL.) 24

MLB Properties Inc. v. Salvino,

642 F.3d 290 (2d Cir. ZOO8) ........c0cceccccssccsssecceeees 14

NCAA v. Bd. of Regents of Univ. of Okla.,

ee ED ss cesssestccceeocansonsoncsanes 4,13, 17, 22

Oltz v. St. Peter’s Cmty. Hosp..,

861 F.2d 1440 (9th Cir. 1988)................0...... 15, 16

Polygram Holding, Inc. v. FTC,

416 F.3d 29 (D.C. Cir. 2005)................0....000. 16, 20

Sullivan v. NFL,

34 F.3G 1081 (let Cir. 1904) .......ccccccocccscecscscsccees 22

Texaco, Inc. v. Dagher,

ss abansibabedéonveriunvies 12

Toscano v. PGA Tour,

201 F. Supp. 2d 1106 (E.D. Cal. 2002)............... 22

(vl)

Unitherm Food Sys. v. Swift-Eckrich, Inc.,

SEG U5, BPO Cp aswkesetsarsessossstccsccsssees. 18

Worldwide Basketball & Sport Tours, Inc. v

NCAA,

388 F.3d 955 (6th Cir. 2004)..... joes O, LL, 13, 16

STATUTES

15 U.S.C.

Der ees passim

OTHER AUTHORITIES

ABA Section of Antitrust Law, Antitrust Law

Developments (6th ed. 2007) ................6.. . 13,18

ABA Section of Antitrust Law, Model Jury

Instructions in Civil Antitrust Cases (2005) . 18

Areeda & Hovenkamp, Antitrust Law,

(Ded Oh. BE y sears caves ca ssnccecccccas. ... 18,19

“‘ederal Rules of Civil Procedure

Mule BO. 6:62: ee, Oo. &. i718

Beate BG, .<cfeccucun dee eect ca cece eee |

In the

Supreme Court of the Anited States

DEUTSCHER TENNIS BUND, ROTHENBAUM

SPORTS GMBH AND QATAR TENNIS FEDERATION,

Petitioners,

ATP TOUR, INC., ETIENNE DE VILLIERS, CHARLES

PASARELL, GRAHAM PEARCE, JACCO ELTINGH,

PERRY ROGERS, AND IGGY JOVANOVIC,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION.

INTRODUCTION

The decision of the Third Circuit unanimously

affirming a jury verdict in favor of Respondent ATP

Tour, Inc. (“ATP”) is premised on a basic principle of

antitrust law: where a plaintiff fails to establish any

relevant market — and indeed where a jury

specifically so finds — the plaintiff loses. That is

what happened here.

The efforts by Petitioners Deutscher Tennis Bund

(“DTB”) and Qatar Tennis Federation (“QTF”)

(together, the “Federations”) to recast this case are

)

without basis factually or legally. In all events, the

Federations do not raise any determinative or

fundamental legal issues undey the antitrust laws

that could save their failed lawsuit, much less

identify any issue on which there is a conflict among

the circuits.

After a two-week trial, and a full presentation

from all of the Federations’ fact and _ expert

witnesses, the Federations failed to prove any of

their antitrust claims against the ATP. The jury

found in its special verdict that the Federations

failed to prove an essential element of their case

namely the supposed existence of a self-proclaimed

market for “top player’ services” (which the

Federations posited at trial solely for nurposes of this

case).

The Third Circuit correctly affirmed the jury’s

verdict under well-settled antitrust law. No further

review of the jury’s verdict, or of the Third Circuit’s

affirmance, is warranted.

The Federations did not, and do not, challenge

the sufficiency of the evidence supporting the jury’s

verdict. Instead, the Federations seek to avoid the

jury's finding by insisting that that the jury should

have been instructed to conduct a Quick Look review

and that a Quick Look review would have permitted

the jury to find a Section 1 violation despite the

Federations’ failure to prove the existence of a

relevant market let alone any anticompetitive

market impact. The Federations are wrong.

First, every Section 1 claim is premised on the

threat of “anticompetitive effect on customers and

markets.” Cal. Dental Ass’n v. FTC, 526 U.S. 756,

770 (1999). Quick Look is not a separate species of

Section 1 violation that dispenses with the

«)}

fundamental requirement of market impact. Quick

Look is merely a mode of analysis that applies when

the market impact is so “obvious” that an extensive

market analysis is unnecessary. ld The

Federations own supposed Quick Look jury

instructions expressly assumed a_ finding of

“substantial harm to competition in a_ relevant

market” from the challenged conduct. Opp. App

l6a-17a. Market impact is not “obvious” and

therefore Quick Look does not apply where, as

here, the very existence and contours of the claimed

market were hotly contested and factually disputed

so much so, in fact, that the jury found the

Federations’ proof lacking after considering all of the

evidence presented. See, e.g., Worldwide Basketball]

& Sport Tours, Inc. v. NCAA, 388 F.3d 955, 961 (6th

Cir. 2004)

The Third Circuit applied these basic principles of

antitrust law to the facts at hand. The Federations

do not dispute that their self-proclaimed “top player

services” market was vigorously contested and that

its boundaries were found to be “ambiguous.” Pet

App. 20a. (Indeed, the Federations affirmatively

argued that the case presented “immensely

complicated” issues requiring an “extremely careful

and nuanced analysis” of evidence to assess market

definition and competitive effects. Opp. App. 28a.)

Standing alone, such disputes over the market

preclude any finding of the “obvious” anticompetitive

impact on “markets and consumers” that is

necessary for a truncated, Quick Look review. In

addition, the Third Circuit correctly concluded that

restraints within sports leagues are not naked

restraints on price or output (or other inherently

suspect conduct) in any event because = such

restraints “are essential if the product is to be

available at all.” Pet. App. 20a (quoting NCAA v. Bd.

of Regents of Univ. of Okla., 468 U.S. 85, 101 (1984)).

Even now, the Federations do not claim that the

challenged conduct resulted in any reduction in

output or increase in price in any market, however

described. Thus, fundamentally, this was never a

Quick Look case.

Given the market complexities, and the lack of

any naked restraint or inherently suspect conduct,

the Third Circuit correctly concluded that Quick

Look was inapplicable to the Federations’ claims.

Pet. App. 20a-2la. The speculation by the Third

Circuit, in dicta, that some of the challenged tour

rules “might” have an (unproven) impact on an

undefined “player services” market is insufficient on

its face to invoke Quick Look. The possibility of

impact on a market indicates nothing more than

that, as in any Rule of Reason case that goes to a

jury, the potential competitive impacts were to be

proven and weighed. The Third Circuit’s speculation

is irrelevant in any event because the Federations

strategically chose to rest their claims on a supposed

“top-tier” player services market that they never

proved.

Second, the Federations’ request for review

makes no sense given the jury’s rejection of their

theory on the facts. Where applicable, Quick Look is

a procedural device to shortcut a “detailed” market

analysis because of the self-evident impact on

markets and consumers. Cal. Dental, 526 U.S. at

770. Here, the Federations failed to prove their

relevant market after a full, two-week trial. While

Quick Look may be useful to resolve some claims

expeditiously without submission to a full trial, it

cannot be used, after the fact, to excuse a failure of

proof after a full and fair opportunity to prove

Section 1 claims at tmal. The supposed

anticompetitive effects on consumers and markets

cannot be more obvious with less proof and analyis.

Third, because this case fundamentally is not a

Quick Look case, none of the supposed Circuit splits

on Quick Look that the Federations claim are

relevant. In any event, the alleged Circuit splits do

not exist. The Third Circuit’s analysis is entirely

consistent with the settled precedent in actual Quick

Look cases.

Fourth, even if the disputed and ultimately

unproven nature of the “top player services” market

could be ignored, the Federations never moved the

District Court under Fed. R. Civ. P. 56 before trial or

Fed. R. Civ. P. 50 during or after trial to apply a

Quick Look analysis. The Federations only proposed

Quick Look jury instructions. Where applicable,

Quick Look is a procedural device used by the court.

The Federations do not cite a single case holding that

Quick Look is 4 jury question. Review of the Third

Circuit’s Quick Look discussions would be imprudent

because the Federations’ procedural default would

preclude recovery under Quick Look even were that

the correct mode of analysis.

Finally, even if this were a Quick Look case, the

Federations’ claims fail independently for, among

other deficiencies, lack of antitrust standing and

failure to prove antitrust injury. Both are requisite

elements to recovery under the Sherman and

Clayton Acts by private litigants such as _ the

Federations. Although the Third Circuit had no need

to address these additional, fatal flaws in the

Federations’ Section 1 claims, both issues were fully

preserved for appeal.

STATEMENT OF THE CASE

ATP is a non-profit membership corporation

comprised of men’s professional tennis tournaments

and _ players. ATP operates an annual men’s

professional tennis circuit in dozens of cities around

the world (the “Tour”).

The Federations are ATP members that together

own an ATP tournament in Hamburg, Germany.

The QTF also owns an ATP tournament in Doha,

Qatar.

In 2007, ATP’s Board of Directors voted to modify

the format of the Tour under ATP’s “Brave New

World” plan (“BNW”). BNW was implemented in

response to consumer demand to make the Tour

more interesting, more exciting, easier to follow, and

more competitive with other sports and

entertainment offerings. Among other things, BNW

increased compensation (prize money) to players,

improved travel schedules between tournaments,

and improved the quality of the facilities by

increasing investment in new and existing stadia.

BNW also sought to offer consumers more and better

quality events and a more coherent ranking system.

As part of BNW, the Federations submitted an

application to ATP seeking to have the Hamburg

tournament selected as one of the nine Tour events

offering winners 1,000 ranking points. The Board

denied the Federations’ application for a “1,000”

designation, and instead designated the Hamburg

tournament as a “500” point tournament (keeping

the tournament within the top third of the Tour's

events).

A. The Federations Sought to Prove a Restraint

on an Alleged “Top Player” Services Market.

The Federations sued ATP and the individual

Board members who voted to reject the Federations’

application. The Federations alleged claims under

Sections 1 and 2 of the Sherman Act, as well as

various state law claims.

The Federations’ antitrust claims alleged, in

relevant part, that ATP had restrained the input

“market for player services for top-tier men’s

professional tennis.”" Opp. App. 20a-27a. The

existence and contours of this professed market were

among the most hotly contested factual issues at

trial. Pet. App. 20a.

B. The Jury Rejected the Federations’ Antitrust

Claims After a Two Week Trial, Finding

Insufficient Proof of the Alleged “Top Players”

Market.

The Federations’ claims were tried to a jury over

the course of more than two weeks. The Federations

presented their theory of the case through the direct

and cross examination of more than fifteen fact

witnesses and four economics and damages experts

and the presentation of nearly 1,000 exhibits.

ATP’s Board members moved for judgment as a

matter of law on the Section 1 claims brought

against them individually. The Board members

argued that they could not be liable absent a per se

' The Federations also sought to prove an output market for

“top-tier men’s professional tennis” and an input market for

“sanctions for top-tier men’s professional tennis events. Opp.

App. 20a.

Section 1 violation and that the Federations had

failed to prove any per se violation. The District

Court agreed, finding that:

“The complexity of these particular

arrangements, the peculiar industry of sports,

and the ambiguity of the bounds of the relevant

market, all counsel against treating the business

practices in dispute here as per se violations of

antitrust law.”

The District Court further held that:

“The evidence adduced by the plaintiffs in this

case could perhaps be evidence of certain

illegalities, that is, antitrust violations, but only

after one engaged in a detailed examination of the

industry in question, and, furthermore, only after

taking the industry in question to be top-tier

men’s. professional tennis, rather than, for

example, professional sports or spectator sports

more generally.”

Pet. App. 44a.

The Federations never moved for judgment as a

matter of law under Fed. R. Civ. P. 50 to have the

District Court condemn ATP’s challenged conduct

under a Quick Look analysis (although any such

motion would have failed given the evidence and the

subject matter of the Federations’ challenge). The

Federations instead merely proposed supposed Quick

Look jury instructions (without citing a single case

holding that Quick Look can be applied by a jury).

Yet, tellingly, the Federations’ own _ proposed

instructions expressly presumed findings of

“significant competitive harm” in “relevant markets”

from the challenged conduct even though the District

Court had never been asked to make such findings.

Opp. App. 16a.

ATP objected to the proposed instructions,

including on the ground that Quick Look is not a jury

issue and that the prerequisites for Quick Look were

absent. Opp. App. 16a-19a.

The District Court held that it would be

“inappropriate” to give the proposed Quick Look

instructions in light of its findings that the

complexities of the industry and the ambiguous

nature of the relevant market precluded any

conclusion that the challenged conduct was obviously

anticompetitive. Pet. App. 50a. Instead, a “detailed”

examination of the industry was needed, including

consideration of whether any analysis could be

limited to “top tier” tennis, as the Federations had

urged. Id.

The District Court instructed the jury to analyze

the Federations’ Section 1 claims under a Rule of

Reason analysis. This included instructions with

respect to proof of the posited “top-tier” player

services market. Opp. App. 20a-27a. (The same

relevant market instruction was given with respect

to both the Section 1 and Section 2 claims. Id.)

After deliberations, the jury returned a special

verdict that rejected the Federations’ claims. The

jury found that the Federations had failed to prove

any requisite “agreement.” Opp. App. 2a. It also

found that the Federations failed to prove any

relevant market. Opp. App. 6a, 9a, 12a. As such,

the jury rejected both the Section 1 and the Section 2

claims.

The Federations did not file any post-trial motion

to challenge the jury’s finding that the Federations

failed to prove a relevant market.

C. The Third Circuit Unanimously Affirmed the

Jury Verdict.

The Federations appealed the judgment with

respect to the failed Section 1 claims against ATP.

The Federations did not appeal the jury verdict

rejecting their Section 2 claims.

The Third Circuit unanimously affirmed the

jury’s verdict and the resulting judgment.” Pet. App.

3a. The Third Circuit found that the jury’s finding of

no relevant market with respect to the Section 2

claims was equally applicable to, and doomed, the

Section 1 claims because the claims rested on

identical proposed market definitions. Pet. App. 11la-

12a n.5, 12a n.6, 33a.

The Third Circuit rejected the Federations’

arguments that the District Court should have

instructed the jury under a Quick Look analysis and

that such analysis would have relieved the

Federations of their failure of proof on a relevant

market. The Third Circuit affirmed that Quick Look

was inappropriate given, among other things, the

substantial, factual disputes as to the Federations’

claims of a “top player services” market to this case:

“Although the Federations contended the Brave

New World Plan restrained the ‘top player

services’ market, the definition of the relevant

market was one of the most contested issues at

trial — so much so that after all the evidence was

presented the District Court saw the bounds of

* The Third Circuit also affirmed the antitrust and fiduciary

duty claims against the individual Board members. Pet. App.

23a-24a n.8, 34a-41a.

the relevant market as ‘ambiguous.’ Because ‘the

contours of the market’ here are not ‘sufficiently

well known or defined to permit the court to

ascertain without the aid of extensive market

analysis whether the challenged practice impairs

competition,’ ‘quick look’ is not appropriate and

proof of relevant market is required under full-

scale rule of reason.”

Pet. App. 20a-2la (quoting Worldwide Basketball,

388 F.3d at 961).

The Third Circuit also reasoned, in dicta not

essential to the judgment, that even if Quick Look

had been applied initially, ATP’s_ substantial

evidence of the procompetitive effects of BNW would

have required the jury to undertake a full-scale Rule

of Reason analysis. Pet. App. 22a-23a. Thus, any

error the District Court made in not applying Quick

Look ultimately was harmless. J/d.

REASONS FOR DENYING THE PETITION

The Third Circuit correctly affirmed the verdict

and judgment. It did so by applying standard, long-

settled antitrust law to the jury’s finding of fact. No

further review by this Court is required.

I. The Third Circuit Applied Well-Established

Antitrust Law Precluding a Quick Look Analysis

Given the Disputed, and Ultimately Unproven, “Top

Player Services” Market as well as the Lack of

Inherently Suspect Conduct.

The Federations indisputably failed to prove the

existence of the market on which they chose to rest

their Section 1 claims — namely, a vaguely defined

“top-tier” player services market. The Federations

do not challenge the jury instructions concerning

their posited market. Nor do they claim that they

were unlawfully barred from presenting their best

evidence of such a market. They also do not dispute

that, under a Rule of Reason analysis, the failure to

prove a relevant market precludes Section 1 liability

as a matter of law.

Instead, each of the Federations’ arguments for

review presumes that, if a Quick Look analysis were

used, the failure to prove a “top-tier” player services

market somehow could be ignored. Respectfully, the

Federations have it exactly backwards. This was

never a Quick Look case given the lack of any naked

restraint, inherently suspect conduct, or obvious

anticompetitive market impact. The Federations

cannot remake it into a Quick Look case post hac to

avoid their failed trial strategy and the consequent

jury finding. Quick Look is a procedural device used

to cut to the chase when the anticompetitive effects

on a posited market are obvious, not to ignore a jury

finding that a market is so unobvious that it was not

proven after a two week trial.

The antitrust principles applied by the Third

Circuit are clear and long-settled.

First, every Section 1 claim is premised on harm

or threatened harm to a market. This Court has

made clear that the categories of per se, Quick Look,

and Rule of Reason are merely modes of analysis

along a continuum. Cal. Dental, 526 U.S. at 780-81

(“(T}here is generally no categorical line to be drawn

between restraints that give rise to an intuitively

obvious inference of anticompetitive effect and those

that call for more detailed treatment. What is

required, rather is an enquiry meet for the case,

looking to the circumstances, details, and logic of a

restraint.”) Each mode of analysis ultimately is

concerned with anticompetitive impacts on actual

“customers and markets.” Jd. at 770; Texaco, Inc. v.

Dagher, 547 U.S. 1, 5, 7 n.3 (2006) (finding per se

and Quick Look inapplicable given lack of

competition between joint venturers “in the relevant

market”); Bd. of Regents, 468 U.S. at 104 n.26 (“Per

se rules may require considerable inquiry into

market conditions before the evidence justifies a

presumption of anticompetitive conduct.”). Thus,

while different depths of analysis may be “meet for

the case” depending’ on the particular

“circumstances, details, and logic” of the challenged

conduct (Cal. Dental, 526 U.S. at 780-81), the various

modes of analysis do not change the elements of a

Section 1 claim — including the need for “market”

effects and, therefore, for a cognizable market.

Second, as a corollary to the above, Quick Look

does not eliminate the basic Section 1 requirement of

anticompetitive impact in a relevant market. See

ABA Sec. of Antitrust Law, Antitrust Law

Developments 65 (6th ed. 2007) (“Without defining

the relevant market, there is no meaningful context

within which to assess the restraint’s potential

competitive effects.”). To the contrary, as the Third

Circuit correctly explained, the threshold

requirement for a Quick Look analysis is that “the

anticompetitive effect on customers and markets”

must be so obvious that no elaborate or detailed

analysis is needed. Pet. App. at 17a (citing Cal.

Dental, 526 U.S. at 770). The Federations clearly

recognized this when they proposed Quick Look jury

instructions that included a threshold finding of

impact in a “relevant market.” Opp. App. 16a-17a.

Third, given the prerequisites for a Quick Look

analysis,. where the relevant market is ambiguous or

there are disputes over its contours, Quick Look is

not appropriate. Worldwide Basketball, 388 F.3d at

961 (rejecting Quick Look and remanding for Rule of

Reason review where market was “neither obvious

nor undisputed” and plaintiff failed to account for

market alternatives); MLB Properties Inc. v. Salvino,

542 F.3d 290, 332-34 (2d Cir. 2008) (Quick Look

inappropriate where no proof of impact on output);

Gordon v. Lewistown Hosp., 423 F.3d 184, 209-10 (3d

Cir. 2005) (Quick Look inappropriate for non-price

vertical restraints where market effects are not

obvious). In such a case a more detailed inquiry into

the nature of the posited market and the impact, if

any, of the challenged conduct on that market is

required.

Finally, the Federations ignore that neither the

District Court nor the Third Circuit concluded that

there was any self-evident anticompetitive impact on

the posited (but vague and unproven) “top player

services” market. Although the Third Circuit also

discussed general concepts concerning a market for

“player services,” the jury instructions confirm that

is not a market that the Federations posited at trial.

Opp. App. 20a-27a. In any event, neither the

District Court nor the Third Circuit found the self-

evident anticompetitive effect in such a market

required for a Quick Look case, let alone any naked

restraint or other inherently suspect conduct. At

best, the Court of Appeals speculated that there

“might” have been an impact on a market. That

clearly is not close to a finding of an actual, obvious

impact necessary for Quick Look. The Third

Circuit's comment is nothing more than _ the

observation that, as in any Kule of Reason case that

goes to a jury, there may be competitive impacts for

the jury to find and to weigh.

Il. There is No Circuit Split on the Requirement of a

Relevant Market for a Quick Look Analysis.

Because this never was and is not now a Quick

Look case (and because the Federations failed to

preserve any claim to Quick Look treatment), review

is not necessary to resolve any alleged “circuit split”

concerning the role of relevant markets in Quick

Look cases. In any event, the Third Circuit adhered

to established Section 1 and Quick Look principles.

The Federations manufacture a “split” based on

tortured readings of excerpts from opinions divorced

from their context. None of the cases cited by the

Federations conflict with the Third Circuit’s ruling.

In Cal. ex rel. Brown v. Safeway, Inc.,__ F.3d __,

2010 WL 3222187 (9th Cir. Aug. 17, 2010), the Ninth

Circuit applied Quick Look to an agreement among a

group of supermarket competitors to share profits

during a labor strike. The court held this agreement

between competitors created “a great likelihood of

anticompetitive effects” by creating a “negative effect

on their incentives to compete with one another for

customers.” Jd. at *11-12. The Ninth Circuit

identified the group’s “60% or 70% of the market

share” of the “Southern California [grocery] market”

as a significant factor in its finding of likely

anticompetitive effects of the agreement between

competitors. Jd. at *13.

The Ninth Circuit’s holding in Oltz v. St. Peter’s

Cmty. Hosp., 861 F.2d 1440 (9th Cir. 1988) did not

involve a Quick Look approach. Nonetheless, that

case also cited the defendant’s 84% market share as

a persuasive factor in affirming a directed verdict

that the relevant market was the market for

anesthesia services in Helena. Jd. at 1442, 1447.

The record in Oltz contained evidence of actual

anticompetitive effects in that market through a

reduction in output and a corresponding increase in

consumer prices. Jd. at 1448. By contrast, the Third

Circuit here held the record evidence was insufficient

to demonstrate actual anticompetitive effects

“without the aid of extensive market analysis.” Pet.

App. 20a-2la (quoting Worldwide Basketball, 388

F.3d at 959).

In Polygram Holding, Inc. v. FTC, 416 F.3d 29

(D.C. Cir. 2005), the D.C. Circuit reviewed the FTC’s

determination that competitors who had entered a

joint venture violated Section 5 of the Federal Trade

Commission Act by agreeing to enact price

restrictions and limit advertising on their own

products that competed with the joint venture’s

product. The D.C. Circuit agreed with the FTC that

appellants “failed to identify any competitive

justification” for conduct that “looks suspiciously like

a naked price’ (fixing = agreement between

competitors.” 416 F.3d at 37-38. The court held that

this conduct was sufficiently suspect to presume “a

deleterious effect upon consumers” because

“agreements restraining autonomy in pricing and

advertising impede the ‘ordinary give and take of the

market place.” Jd. at 37 (citing FTC v. Ind. Fed’n of

Dentists, 476 U.S. 447, 459 (1987)). The D.C. Circuit

did not, however, find that the determination of a

relevant market (or, as here, a jury’s determination

that the alleged relevant market has not been

proven) has no significance in a Quick Look analysis

Likewise, in Law v. NCAA, 134 F.3d 1010, 1017

(10th Cir. 1998), the Tenth Circuit found an

agreement among NCAA member institutions to

limit the salaries of assistant basketball] coaches

“constitutes the type of naked horizontal agreement

among competitive purchasers to fix prices usually

found to be illegal per se” but applied Quick Look

because horizontal restraints were necessary to

produce the product of college basketball. “No ‘proof

of market power’ is required where the very purpose

and effect of a horizontal agreement is to fix prices so

as to make them unresponsive to a competitive

marketplace.” /d. at 1020 (citing Bd. of Regents, 468

U.S. at 110). Nowhere did the Tenth Circuit hold, as

the Federations suggest, that a jury’s factual finding

that a plaintiff failed to prove a relevant market is

irrelevant under a Quick Look analysis.

Iil.The Federations Did Not Move for Quick Look

Treatment in the District Court.

Even if the substantive parameters for Quick

Look existed, the Federations never made any

motion for judgment as a matter of law under Fed. R

Civ. P. 50 for the District Court to condemn the

ATP’s BNW under Quick Look. Instead, they merely

proposed supposed Quick Look jury instructions

Opp. App. 16a-19a. The Federations’ strategic

choices resulted in procedural defaults that preclude

review of any Quick Look issues

First, Quick Look is not a jury issue. It is a

“procedural device” used by courts to assess whether

“inherently suspect” conduct should be condemned as

unlawful by the court without a plenary trial or,

instead, assessed by a jury under a full Rule of

’ Although the Third Circuit's conclusions obviated the need

to address the Federations’ procedural defaults, ATP preserved

this issue for appeal. ATP raises this issue here to preserve it

for its potential ments brief. Alabama v. Shelton, 535 U.S. 654

(2002)

Reason analysis. Antitrust Law Developments 59-

60. As the ABA Model Jury Instructions in Civil

Antitrust Cases explains, “because application of the

quick look analysis is a question of law to be

determined by the court,” there are no jury

instructions for Quick Look. ABA Section of

Antitrust Law, Model Jury Instructions in Civil

Antitrust Cases A-8, n.2 (2005). Leading

commentators likewise confirm that Quick Look is

an analysis “to enable the court to make a judgment

on reasonableness.” Areeda & Hovenkamp, Antitrust

Law, ¥ 1914(d) at 355-356 (2d ed. 2005) (emphasis

added).

Second, the jury instructions that the Federations

proposed were expressly premised on the District

Court first making findings that “as a matter of law

... these restraints constitute ... naked restraints of

trade” resulting in “significant competitive harm.”

Opp. App. 16a. But, in fact, the Federations had

never made any motion asking the District Court to

make such determinations “as a matter of law.”

Thus, even if Quick Look were a jury issue and not

simply a procedural tool for the courts, the

Federations failed to seek the threshold court

findings “as a matter of law” on which their own jury

instructions were premised. As explained above, the

District Court found that, on the evidence presented

at trial, the market definitions, dynamics, and

competitive effects were too complex and non-obvious

to warrant either per se or Quick Look treatment.

Finally, the Federations also are precluded from

attacking the sufficiency of the evidence supporting

the jury’s special verdict on relevant markets

because they failed to make the requisite Rule 50

motions below. Unitherm Food Sys. v. Swift-Eckrich,

Inc., 546 U.S. 394, 400-402 (2006).

IV.The Burden of Proof Under Quick Look and the

Analysis of Competitive Impacts on Related

Markets Are Irrelevant Here and In All Events

Correctly Stated by the Third Circuit.

The Federations incorrectly claim that (a) Quick

Look puts the burden on the antitrust defendant to

establish procompetitive justifications that outweigh

the presumed anticompetitive effects (Pet. at 34) and

(b) that Section 1 myopically focuses solely on alleged

competitive impacts to the plaintiffs chosen market

— and prohibits courts and juries from considering

procompetitive justifications in any other market,

including related markets (Pet. at 15-22). Neither

argument is relevant given the Federations’ failure

to prove any relevant market. The Federations are

wrong on both counts in any event.

With respect to the burden of proof, none of the

cases the Federations cite even reach this issue. The

Third Circuit accurately stated (in dicta) that it was

the Federations’ burden to establish that BNW’s

alleged anticompetitive effects outweighed the

procompetitive benefits that ATP established.

This Court held in Cal. Dental that, upon a

showing of an “obvious” likelihood of anticompetitive

effects, “quick look analysis in effect requires” a court

to “shift[] to a defendant the burden to show

empirical evidence of procompetitive effects.” 526

U.S. at 775 n.12. This is a burden of production, not

a burden of proof: This Court has never held that a

defendant bears the burden to show “empirical

evidence of procompetitive effects” outweigh the

presumed anticompetitive effects. See also Areeda &

Hovenkamp, 4 1914(d) at 356 (“[I]f a proper

competitive justification is adequately demonstrated

[by the defendant]...the burden of showing market

power and presumed or actual anticompetitive

effects falls on the plaintiff....”).

The Federations themselves proposed that the

jury be instructed that “[t]he challenged restraint is

illegal under Section 1 of the Sherman Act if you find

that the competitive harm outweighs the competitive

benefit,” (Opp. App. 16a.) and that, “ilf the

competitive harm outweighs the competitive

benefits, then the challenged restraint is

unreasonable. If the competitive harm does not

outweigh the competitive benefits, then the

challenged restraint is not unreasonable.” Opp. App.

19a. In short, the Federations’ own proposed

instructions confirmed that the burden of proof

remains on the antitrust plaintiff to show that

anticompetitive effects outweigh competitive

benefits.

The two cases the Federations rely on to frame a

purported “circuit split” are not to the contrary.

Neither Safeway, supra, nor Polygram, supra,

reached the issue of who bears the burden under

Quick Look with respect to balancing the competitive

effects of an alleged restraint. In both cases, the

defendant failed to establish evidence of any

legitimate procompetitive effects.

In Safeway, the Ninth Circuit quoted Cal. Dental

in describing the Quick Look burden of the defendant

grocery stores to produce evidence of procompetitive

effects of their agreement to share profits during a

labor dispute. 2010 WL 3222187 at *9, 16. The

Ninth Circuit found that the only “benefit” the

defendants offered was that the profit sharing

agreement would help them win their labor dispute,

which in turn would allow them to pay lower wages,

and in turn offer lower prices to consumers. The

Ninth Circuit rejected this argument, holding that

“driving down compensation to workers is not a

benefit to consumers cognizable under our laws as a

‘procompetitive’ benefit.” Jd. at *17. Because the

“defendants offerfed] no plausible procompetitive

benefits,” the Ninth Circuit did not reach the issue of

who bears the burden of weighing procompetitive

and anticompetitive effects under Quick Look. Id. at

*5.

Similarly, in Law, the Tenth Circuit articulated

the defendant’s burden under Quick Look: “Once the

plaintiff meets that burden [of establishing

anticompetitive effects]...the burden shifts to the

defendant to justify the restraint as a ‘reasonable’

one.” 134 F.3d at 1021. In describing the

defendant’s burden to “justify the restraint,” the

Tenth Circuit distinguished the Fifth Cuircuit’s

holding in Hennessy v. NCAA, 564 F.2d 1136, 1153-

54 (5th Cir. 1977), in which the Fifth Circuit

“admittedly border[ed] on speculation” in presuming

the reasonableness of an NCAA rule capping the

number of assistant basketball and football coaches

so as to avoid “forecloseling], by way of injunction,

any opportunity to build up experience on which the

issue could ultimately be judged.” Law held that the

defendant NCAA failed to establish any evidence of

procompetitive effects, not — as the Federations

suggest — that the defendant failed to prove the

procompetitive effects outweighed the

anticompetitive effects. 134 F.3d at 1022-1024.

The Federations also wrongly claim that the

Third Circuit created a “conflict” when it observed

that ATP’s evidence of procompetitive benefits in

“the sports and entertainment market” could be

weighed by a jury against the Federations’ claimed

evidence of anticompetitive impacts on their asserted

input market for “top player services.”

First, again, the Third Circuit’s observation was

dicta not necessary to its holding given the

Federations’ failure of proof as to any relevant

market.

Second, the case law is clear that a competitive

analysis is not strictly limited to one market and,

instead, should include consideration of related

markets. See, e.g., Continental T.V., Inc. v. GTE

Sylvania Inc., 433 U.S. 36, 52 n.19, 54-55 (1977)

(recognizing that positive effects on interbrand

competition can justify anticompetitive effects on

intrabrand competition, even though “the degree of

intrabrand competition is wholly independent of the

level of interbrand competition.”); Bd. of Regents,

468 U.S. at 115-20 (considering the NCAA's interest

in protecting live attendance at untelevised games

and the NCAA's “legitimate and important” interest

in maintaining competitive balance between amateur

athletic teams as a justification for asserted restraint

on the market for the telecasting of collegiate football

games); Sullivan v. NF'L, 34 F.3d 1091, 1111-13 (1st

Cir. 1994) (noting that cases from Supreme Court

and Circuits have looked to procompetitive benefits

beyond the relevant market where the benefits in

one market are related to another) (citing, inter alia,

Continental T.V., supra, Bd. of Regents, supra and

Los Angeles Mem’ Coliseum Comm'n v. NFL, 726

F.2d 1381, 1404-1405 (9th Cir. 1984)); Toscano v.

PGA Tour, 201 F. Supp. 2d 1106, 1121 (B.D. Cal.

2002) (rejecting Quick Look review when the PGA

proffered evidence that its eligibility rules had the

procompetitive effect of “ensurling] that spectators

see the marquee players they want to see thereby

helping to attract sponsors who ultimately finance

the Senior PGA Tour and create the product.”).

Finally, the Federations ignore the evidence that

ATP presented at trial of the vast array of

procompetitive benefits that BNW would have in the

production of men’s tennis’ events, including

increased player compensation, better travel

schedules (protecting player health), increased

investment in facilities, increased geographic reach

of the Tour, increased and better quality

broadcasting, and an easier to understand and more

exciting overall format for the Tour season. Pet.

App. 22a. ATP brought forth this evidence of wide-

ranging procompetitive effects of BNW in the face of

the Federations’ assertion of restraints in three

vaguely defined alleged relevant markets: the

market for “top player services,” the market for “to;

tier men’s professional tennis events,” and the

market for “sanctions for top-tier men’s professional

tennis events.” Opp. App. 201. Nevertheless, as this

Court recently stated in Am. Needle, Inc. v. Nat'l

Football League, ___ U.S. __, 180 S. Ct. 2201, 2216-17

(2010), a sports league’s interest “in making the

entire league successful and profitable” can justify

many restraints within the league and its input

markets.

V. The Federations Failed to Prove Additional

Prerequisites to Recovery.

Review of this case also would be of no practical

utility because, even if the Federations could

overcome their fundamental failure of proof of a

relevant market under a Quick Look approach, their

claims fail for additional, independent reasons.

Specifically, the Federations failed to prove that

they had suffered any antitrust injury or possessed

antitrust standing. Proof of both antitrust injury

and antitrust standing are required to prevail on a

Section 1 claim. Brunswick Corp. v. Pueblo Bowl-O-

Mat, 429 U.S. 477, 489 (1977) (antitrust injury);

Associated Gen. Contractors of Cal. v. Cal. State

Council of Carpenters, 459 U.S. 519, 538-40 (1983)

(antitrust standing). The Federations’ failures of

proof are dispositive of any appeal. *

It was the Federations’ burden to prove that they

had suffered “antitrust injury” — i.e. injury “of the

type the antitrust laws were intended to prevent and

that flows from that which makes defendants’ acts

unlawful.” Brunswick, 429 U.S. at 489. The only

injury they alleged was not injury to competition, but

injury to the Federations as competitors for “top

player services.” A key executive for the Federations

made this absolutely clear at trial when he testified

that the Federations’ goal in the lawsuit was not to

challenge an anticompetitive system of player

allocation, but to remain as a top-tier event within

the Tour. Opp. App., 29a-30a. The Federations did

not allege, and the jury did not find, the existence of

any barriers that would prevent the Federations or

any other potential competitor from “competing for

players by forming a competitive league.” Mid-South

Grizzlies v. NFL, 720 F.2d 772, 787 (3d Cir. 1983).

Indeed, if BNW had resulted in any restraint on

* Although the Third Circuit’s conclusions obviated the need

to address the Federations’ lack of antitrust standing and

antitrust injury, ATP preserved both issues for appeal and does

so here to preserve them for any review by this Court. Shelton,

535 U.S. 654.

compensation to the players, that restraint would

have made it easier for the Federations and others to

form a competitive league and offer the players

greater compensation. Even more fundamentally,

where no market has been proven, a party plainly

has no injury and no standing to recover. Eichorn v.

AT&T Corp., 248 F.3d 131, 140 (3d Cir. 2001) (no

“antitrust injury unless the activity has a wider

impact on the competitive market.”)

The Federations also were required to prove

“antitrust standing” by showing that their alleged

injuries were “the type that the antitrust statute was

intended to forestall” and that the Federations were

appropriate parties to seek redress. Associated Gen.

Contractors of Cal. v. Cal. State Council of

Carpenters, 459 U.S. 519, 538-40 (1983); Cargill v.

Monfort of Col., 479 U.S. 104, 110 n.5 (1986) (“[A]

party may have suffered antitrust injury but may not

be a proper party under § 4 for other reasons.”). Any

alleged claim that ATP restricted a market for “top

player services” would be more directly brought by

the players whose ability to market their services

allegedly would have been constrained.

CONCLUSION

For the foregoing reasons, the Court should deny

the petition for a writ of certiorari.

Respectfully submitted.

LAWRENCE C. ASHBY BRADLEY I. RUSKIN

PHILIP TRAINER, JR. Counsel of Record

ASHBY & GEDDES JENNIFER R. SCULLION

500 Delaware Avenue JORDAN B. LEADER

8th Floor ROBERT D. FORBES

Wilmington, DE 19899 PROSKAUER ROSE LLP

(302) 654-1888 1585 Broadway

New York, NY 10036

(212) 969-3000

bruskin@proskauer.com

OCTOBER 27, 2010

APPENDIX

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

[Filed 10/03/2008}

Civil Action No. 07-178 GMS

DEUTSCHER TENNIS BUND et al.,

Plaintiffs,

Vv.

ATP TouR, INC. et al.,

Defendants

JUDGMENT

This action came before the Court for a trial by

jury. The issues have been tried and the jury

rendered its verdict on August 5, 2008. The verdict

was accompanied by a verdict form (D.I. 195), a copy

of which is attached hereto. Therefore,

IT IS HEREBY ORDERED AND ADJUDGED

that judgment be and is hereby entered in favor of

the defendant, ATP TOUR, INC., and against the

plaintiffs, DEUTSCHER TENNIS BLIND, ROTHEN-

BAUM SPORTS GMBH AND QATAR TENNIS

FEDERATION.

Dated: October 3, 2008

/s/ Gregory M. Sleet

CHIEF, UNITED STATES DISTRICT JUDGE

SHERMAN ACT § 1

WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of

the evidence that the Defendant entered inte

contract(s), combination(s) or conspiracy(ies) with

any separate entity or entities? (A “yes” answer to

this question is a finding for Plaintiffs. A “no” answer

is a finding for the Defendant. If “yes,” proceed to

question 2 below. If “no,” please sign this jury verdict

form and return it to the U.S. Marshall.)

Question 1 Yes No X

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties

to each such agreement:

2. Have Plaintiffs proven by a preponderance of

the evidence the existence of a relevant product

market within a relevant geographic market? (A

“yes” answer to this question is a finding for Plain

tiffs. A “no” answer is a finding for the Defendant. If

“yes,” proceed to question 3 below. If “no,” please sign

this jury verdict form and return it to the U.S.

Marshall.)

Question 2 Yes No

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify each rele-

vant product market and the associated

geographic market:

3. Have Plaintiffs proven by a preponderance of

the evidence that any contract, combination or

conspiracy that you found in question 1 had a harm-

ful effect on competition in a relevant product and

geographic market(s)? (A “yes” answer to this ques-

tion is a finding for Plaintiffs. A “no” answer is a

finding for the Defendant. If “yes,” proceed to ques-

tion 4 below. If “no,” please sign this jury verdict form

and return it to the U.S. Marshall.)

Question 3 Yes No

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the

associated relevant product and _ geographic

market(s):

4. Do you find by a preponderance of the evidence

that any contract, combination or conspiracy for

which you answered “Yes” to question 3 had procom

petitive benefits? (A “yes” answer to this question is a

finding for the Defendant. A “no” answer is a finding

for Plaintiffs. If “yes,” proceed to question 5 below. If

“no,” proceed to question 7 below.)

Question 4 Yes No

(for Plaintiffs) (for Defendant)

5. Do you find by a preponderance of the evidence

that any contract, combination or conspiracy for

which you answered “Yes” to question 4 was reasona-

bly necessary to achieve the procompetitive benefits

you found? (A “yes” answer to this question is a find-

ing for the Defendant. A “no” answer is a finding for

Plaintiffs. If “yes,” proceed to question 6 below. If

“no,” proceed to question 8 below.)

Question 5 Yes | No

(for Plaintiffs) (for Defendant)

6. Have Plaintiffs proven by a preponderance of

the evidence that the harmful] effect on competition

of any contract, combination or conspiracy for

which you answered “Yes” to question 5 substantially

outweighs the procompetitive benefits you found? (A

“yes” answer to this question is a finding for Plain

tiffs. A “no” answer is a finding for the Defendant. If

“ves,” proceed to question 7 below. If “no,” please sign

this jury verdict form and return it to the U.S

Marshall.)

Question 6 Yes No

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the

associated relevant product and = peopraphi

market(s)

7. Do you find by a preponderance of the evidence

that the contract(s), combination(s) or conspiracy(ies)

the Defendant entered was or were a material cause

of any injury to the Plaintiffs in their business or

property? (A “yes” answer to this question is a finding

for Plaintiffs. A “no” answer is a finding for the

Defendant. If “yes,” proceed to question .8 below. If

“no,” please sign this jury verdict form and return it

to the U.S. Marshall.)

Question 7 Yes No

(for Plaintiffs) (for Defendant)

8. For any injury you found in response to question

7, do you find by a preponderance of the evidence

that any such injury to Plaintiffs was caused by a

reduction in competition, acts that would lead to a

reduction in competition., or acts that would

otherwise harm consumers? (A “yes” answer to this

question is a finding for Plaintiffs. A “no” answer is a

finding for the Defendant. If “yes,” proceed to

question 9 below. If “no,” please sign this jury verdict

form and return it to the U.S. Marshall.)

Question 8 Yes___ No _

(for Plaintiffs) (for Defendant)

9. For any injury for which you answered “Yes” to

Question 8, do you find by a preponderance of the

evidence that Plaintiffs failed to take all reasonable

steps available to minimize their losses? (A “yes”

answer to this question is a finding for the Defen-

dant. A “no” answer is a finding for Plaintiffs. If “no,”

proceed to question 10 below and do not answer

question 11. If “yes,” please proceed to question 11

below and do not answer question 10.)

Question 9 Yes __ No ___

(for Plaintiffs) (for Defendant)

10. For any injury for which you answered “No” to

question 9, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury

based on the evidence available to you? Write your

answer in the line labeled “Amount” below.

11. For any injury for which you answered “Yes” to

question 9, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury if

they had take all reasonable steps to mitigate their

damages? Write your answer in the line labeled

“Amount” below.

Amount:

WHEN THE JURY HAS REACHED A VERDICT,

THE FOREPERSON MUST SIGN THIS VERDICT

FORM AND SIGNAL THE U.S. MARSHALL THAT

THE JURY IS READY TO RENDER A VERDICT.

Date: _8-5-08 Jury Foreperson:

[Redacted Stamp]

SHERMAN ACT § 2 - MONOPOLIZATION

WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of

the evidence the existence of any relevant product

market(s) within any relevant geographic market(s)?

(A “yes” answer to this question is a finding for Plain-

tiffs. A “no” answer is a finding for the Defendant. If

“yes,” proceed to question 2 below. If “no,” please sign

this jury verdict form and return it to the US.

Marshall.)

Question 1 Yes No X

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties

to each such agreement:

2. Have Plaintiffs proven by a preponderance of

the evidence that the Defendant had monopoly power

in any market for which you answered “Yes” to Ques-

tion 1? (A “yes” answer to this question is a finding

for Plaintiffs, A “no” answer is a finding for the

Defendant. If “yes,” proceed to question 3 below. If

“no,” please sign this jury verdict form and return it

to the U.S. Marshall.)

Question 2 Yes ___ No |

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify to which

relevant product and geographic market(s) this

answer applies: —__

3. For each relevant product market you listed in

your answer to question 2, have Plaintiffs proven by

a preponderance of the evidence that Defendant

willfully acquired or maintained monopoly power

through exclusionary conduct without legitimate

reasons for engaging in such conduct? (A “yes”

answer to this question is a finding for Plaintiffs. A

“no” answer is a finding for the Defendant. If “yes,”

proceed to question 4 below. If “no,” please sign this

jury verdict form and return it to the U.S. Marshall.)

Question 3 Yes _ No

(for Plaintiffs) (for Defendant)

[f you answered “Yes,” please specify to which

relevant product and geographic market your

answer applies:

4. Have Plaintiffs proven by a preponderance of

the evidence that the conduct for which you answered

“Yes” to question 3 caused injury to the Plaintiffs in

their business or property? (A “yes” answer to this

question is a finding for Plaintiffs. A “no” answer is

a finding for the Defendant. If “yes,” proceed to

question 5 below. If “no,” please sign this jury verdict

form and return it to the U.S. Marshall.)

No.

5. For any injury you found in response to question

4, do you find by a preponderance of the evidence

that any such injury to Plaintiffs was caused by a

reduction in competition, acts that would lead to a

reduction in competition, or acts that would other-

wise harm consumers? (A “yes” answer to this ques-

tion is a finding for Plaintiffs. A “no” answer is a

finding for the Defendant. If “yes,” proceed to ques-

tion 6 below. If “no,” please sign this jury verdict form

and return it to the U.S. Marshall.)

Question 5 Yes No

(for Plaintiffs) (for Defendant)

6. For any injury for which you answered “Yes” to

Question 5, do you find by a preponderance of the

evidence that Plaintiffs failed to take all reasonable

steps available to minimize their losses? (A “yes”

answer to this question is a finding for the Defen-

dant. A “no” answer is a finding for Plaintiffs. If “no,”

proceed to question 7 below and do not answer ques-

tion 8. If “yes,” please proceed to question 8 below

and do not answer question 7.)

Question 6 Yes ___ No

(for Plaintiffs) (for Defendant)

7. For any injury for which you answered “No” to

question 6, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury

based on the evidence available to you? Write your

answer in the line labeled “Amount” below.

8. For any injury for which you answered “Yes” to

question 6, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury if

they had taken all reasonable steps to mitigate their

damages? Write your answer in the line labeled

“Amount” below.

Amount: _

WHEN THE JURY HAS REACHED A VERDICT,

THE FOREPERSON MUST SIGN THIS VERDICT

FORM AND SIGNAL THE U.S. MARSHALL THAT

THE JURY IS READY TO RENDER A VERDICT.

Date: _8-5-08 | Jury Foreperson:

[Redacted Stamp]

SHERMAN ACT § 2 -

ATTEMPTED MONOPOLIZATION

WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of

the evidence the existence of a relevant product

market within a relevant geographic market? (A

“yes” answer to this question is a finding for Plain-

tiffs. A “no” answer is a finding for the Defendant. If

“yes,” proceed to question 2 below. If “no,” please sign

this jury verdict form and return it to the U.S.

Marshall.)

Question 1 Yes _ No X

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties

to each such agreement: __

2. Have Plaintiffs proven by a preponderance of

the evidence that the Defendant engaged in anticom-

petitive conduct with an intent to achieve monopoly

power in a relevant product market within a relevant

geographic market for which you answered “Yes” to

Question 1? (A “yes” answer to this question is a

finding for Plaintiffs. A “no” answer is a finding for

the Defendant. If “yes,” proceed to question 3 below.

If “no,” please sign this jury verdict form and return

it to the U.S. Marshall.)

Question 2 Yes ____ No

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the

associated product and geographic market(s):

3. Have Plaintiffs proven by a preponderance of

the evidence that there is a dangerous probability

10a

that the Defendant would achieve its goal of mono-

poly power in any relevant product market? (A “yes”

answer to this question is a finding for Plaintiffs. A

“no” answer is a finding for the Defendant. If “yes,”

proceed to question 4 below. If “no,” please sign this

jury verdict form and return it to the U.S. Marshall.)

Question 3 Yes ___ No _

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the

associated product and geographic market(s):

4. Have Plaintiffs proven by a preponderance of

the evidence that the actions of the Defendant caused

injury to the Plaintiffs in their business or property?

(A “yes” answer to this question is a finding for Plain-

tiffs. A “no” answer is a finding for the Defendant. If

“yes,” proceed to question 5 below. If “no,” please sign

the jury verdict form and return it to the U.S.

Marshall.)

Question 4 Yes ___ No _

(for Plaintiffs) (for Defendant)

5. For any injury you found in response to question

4, do you find by a preponderance of the evidence

that any such injury to Plaintiffs was caused by a

reduction in competition, acts that would lead to a

reduction in competition, or acts that would other-

wise harm consumers? (A “yes” answer to this ques-

tion is a finding for Plaintiffs. A “no” answer is a

finding for the Defendant, If “yes,” proceed to ques-

tion 6 below. If “no,” please sign this jury verdict form

and return it to the U.S. Marshall.)

lla

Question 5 Yes___ No _

(for Plaintiffs) (for Defendant)

6. For any injury for which you answered “Yes” to

question 5, do you find by a preponderance of the

evidence that Plaintiffs failed to take all reasonable

steps available to minimize their losses? (A “yes”

answer to this question is a finding for the Defen-

dant. A “no” answer is a finding for Plaintiffs. If “no,”

proceed to question 7 below and do not answer ques-

tion 8. If “yes,” please proceed to question 8 below

and do not answer question 7.)

Question 6 Yes ___ No

(for Plaintiffs) (for Defendant)

7. For any injury for which you answered “No” to

question 6, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury

based on the evidence available to you? Write your

answer in the line labeled “Amount” below.

8. For any injury for which you answered “Yes” to

question 6, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury if

they had taken all reasonable steps to mitigate their

damages? Write your answer in the line labeled

“Amount” below.

Amount:

WHEN THE JURY HAS REACHED A VERDICT,

THE FORE PERSON MUST SIGN THIS VERDICT

FORM AND SIGNAL THE U.S. MARSHALL THAT

THE JURY IS READY TO RENDER A VERDICT.

Date: _8-5-08 Jury Foreperson:

[Redacted Stamp]

12a

SHERMAN ACT § 2 -

CONSPIRACY TO MONOPOLIZE

WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of

the evidence the existence of a relevant product

market within a relevant geographic market? (A

“yes” answer to this question is a finding for Plain-

tiffs. A “no” answer is a finding for the Defendant. If

“yes,” proceed to question 2 below. If “no,” please sign

this jury verdict form and return it to the U.S.

Marshall.)

Question 1 Yes___ No _X

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties

to each such agreement:

2. Have Plaintiffs proven by a preponderance of

the evidence that the Defendant entered into an

agreement or mutual understanding to obtain or

maintain monopoly power in a relevant market

within a relevant geographic market? (A “yes” answer

to this question is a finding for Plaintiffs. A “no”

answer is a finding for the Defendant. If “yes,”

proceed to question 3 below. If “no,” please sign this

jury verdict form and return it to the U.S. Marshall.)

Question 2 Yes ____ No

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the

associated product and geographic market(s):

3. Have Plaintiffs proven by a preponderance of

the evidence that the Defendant knowingly became

parties to that agreement or mutual understanding?

l3a

(A “yes” answer to this question is a finding for Plain-

tiffs. A “no” answer is a finding ior the Defendant. If

“yes,” proceed to question 4 below. If “no,” please sign

this jury verdict form and return it to the U.S.

Marshall.)

Question 3 Yes No

(for Plaintiffs) (for Defendant)

4. Have Plaintiffs proven by a preponderance of

the evidence that the Defendant intended that the

parties to the agreement or mutual understanding

would obtain or maintain monopoly power in any

relevant product market within a relevant geographic

market you specified in your answer to question 2? (A

“yes” answer to this question is a finding for Plain-

tiffs. A “no” answer is a finding for the Defendant. If

“yes,” proceed to question 5 below. If “no,” please sign

this jury verdict form and return it to the U.S.

Marshall.)

Question 4 Yes __ No

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the asso-

ciated product and _ geographic market(s):

5. Have Plaintiffs proven by a preponderance of

the evidence that the Defendant took an overt act in

furtherance of that agreement or mutual under-

standing? (A “yes” answer to this question is a find-

ing for Plaintiffs. A “no” answer is a finding for the

Defendant. If “yes,” proceed to question 6 below. If

“no,” please sign this jury verdict form and return it

to the U.S. Marshall.)

l4a

Question 5 Yes No

(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the

associated relevant product market(s):

6. Do you find by a preponderance of the evidence

that the anticompetitive actions of the Defendant

caused injury to the Plaintiffs in their business or

property? (A “yes” answer to this question is a finding

for Plaintiffs. A “no” answer is a finding for the

Defendant. If “yes,” proceed to question 7 below. If

“no,” please sign the jury verdict form and return it to

the U.S. Marshall.)

Question 6 Yes ___ No

(for Piaintiffs) (for Defendant)

7. For any injury you found in response to question

6, do you find by a preponderance of the evidence

that any such injury to Plaintiffs was caused by a

reduction in competition, acts that would lead to a

reduction in competition, or acts that would other-

wise harm consumers? (A “yes” answer to this ques-

tion is a finding for Plaintiffs. A “no” answer is a

finding for the Defendant. If “yes,” proceed to ques-

tion 8 below. If “no,” please sign this jury verdict form

and return it to the U.S. Marshall.)

Question 7 Yes __ No

(for Plaintiffs) (for Defendant)

8. For any injury for which you answered “Yes” to

Question 7, do you find by a preponderance of the

evidence that Plaintiffs failed to take all reasonable

steps available to minimize their losses? (A “yes”

answer to this question is a finding for the Defen-

L5a

dant. A “no” answer is a finding for Plaintiffs. If “no,”

proceed to question 9 below and do not answer ques

tion 10. If “yes,” please proceed to question 10 below

and do not answer question 9.)

Question 8 Yes No

(for Plaintiffs) (for Defendant)

9. For any injury for which you answered “No” to

question 8, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury

based on the evidence available to you? Write your

answer in the line labeled “Amount” below.

10. For any injury for which you answered “Yes” to

question 8, what is the total amount of damages that

would fairly compensate Plaintiffs for this injury if

they had taken all reasonable steps to mitigate their

damages? Write your answer in the line labeled

“Amount” below.

Amount:

WHEN THE JURY HAS REACHED A VERDICT,

THE FOREPERSON MUST SIGN THIS VERDICT

FORM AND SIGNAL THE U.S. MARSHALL THAT

THE JURY IS READY TO RENDER A VERDICT

Date: _8-5-08 Jury Foreperson:

(Redacted Stamp]

l6a

APPENDIX B

Plaintiffs’ Proposed Antitrust

Jury Instruction 7

Antitrust Claims: Sherman Act Section 1

Rule of Reason — Quick Look

Under Section 1 of the Sherman Act, a restraint of

trade is illegal if it is found to be unreasonable. You

must determine, therefore whether the restraints

challenged here are unreasonable. The restraints

alleged here are: the channeling of players to certain

events via rules, regulations, bonuses and sanctions;

the creation and sale of a limited number of “sanc-

tions” which are required if a tournament is to

attract players; the pooling of broadcast and sponsor-

ship rights; geographic market protections for

favored tournaments; calendar market protection for

certain tournaments; and the limitation and/or cap of

output of top-tier men’s professional tennis. I have

determined as a matter of law that these restraints

constitute horizontal market divisions, geographic

market divisions and price fixing and, as such, are

naked restraints of trade. The Plaintiffs have estab-

lished, therefore, that the Defendants’ restraints

have caused substantial harm to competition in a

relevant market. You must consider whether the

restraint produces countervailing competitive bene-

fits. If you find that it does, then you must balance

the competitive harm against the competitive benefit.

The challenged restraint is illegal under Section 1 of

the Sherman Act if you find that the competitive

harm outweighs the competitive benefit. I have found

as a matter of law, significant competitive harm. It is

lva

your duty to consider the competitive benefits, if any

and to balance them against this harm.”

Defendants’ Objection

Defendants object to Plaintiffs’ Proposed Jury In

struction 16 because it is not relevant to the facts and

issues to be tried, because the Court has not made

the determination described and the evidence at trial

will not support such a determination. Defendant

further object to the extent that it purports to list

specific restraints that Plaintifis have never pre

viously alleged. Additionally, it is unnecessary and

potentially confusing to repeat Plaintiffs’ allegation

in the context of this instruction. Furthermore,

alleged restraints Nos. 1 and 2 are unreasonably

argumentative, and No. 6 is unreasonably vague and

undefined

Plaintiffs’ Proposed Antitrust

Jury Instruction 8

Antitrust Claims: Sherman Act Section ]

Rule of Reason - Quick Look Evidence

of Competitive Benefits

As I have found that Plaintiffs have proven that

the challenged restraint resulted in substantial harm

to competition in a relevant markets, you must deter

mine whether the restraint also benefits competition

in other ways. The only legitimate rationales that you

may consider are those that are necessary to produce

competitive men’s professional tennis. Further, ratio

nales relating merely to profitability or cost savings

do not qualify as a pro-competitive justification

NCAA ov. Board of Repent of the University of Oklahoma, 104

5.Ct. 2984, 2965 (1984)

lSa

In this case, Defendants contend that the chal

lenged restraint benefits competition the following

way(s): the Defendants, certain men’s professional

tournaments, and certain men’s professional tenni:

players will make more money because consumers in

the relevant output market(s) will pay more therein

If you find that Defendants have proven that the

challenged restraint does result in competitive

benefits, then you also must consider whether the

restraint was reasonably necessary to achieve the

benefits. If Plaintiffs prove that the same benefit:

could have been readily achieved by other, reasonably

available alternative means that create substantially

less harm to competition, then they cannot be used to

justify the restraint.”

Defendants’ Objection

Defendants object to Plaintiffs’ Proposed Jury In

struction 17 because it 1s not relevant to the facts and

issues to be trned, because the Court has not made

the determination described and the evidence at trial

will not support such a determination. Defendant

further object on the yvrounds that it contains an

inaccurate and argumentative characterization of

Defendants’ contentions as to the pro-competitive

benefits of their challenged actions

Plaintiffs’ Proposed Antitrust

Jury Instruction 9

Antitrust Claims: Sherman Act Section 1

Rule of Reason — Quick Look - Evidence

of Competitive Benefits

If you find that the challenged restraint was rea

sonably necessary to achieve competitive benefits,

“ABA SECTION OF ANTITRUST LAW, MODEL JURY INSTRUM

MONS IN CIVIL ANTITRUST CASES, 2005 Edition A-10 (2005)

19a

then you must balance those competitive benefits

against the competitive harm resulting from the

same restraint. If the competitive harm outweighs

the competitive benefits, then the challenged re-

straint is unreasonable. If the competitive harm does

not outweigh the competitive benefits, then the

challenged restraint is not unreasonable. In conduct-

ing this analysis, you must consider the benefits and

harm to competition and consumers, not just to a

single competitor or group of competitors.”

Defendants’ Objection

Defendants object to Plaintiffs’ Proposed Jury In

struction 18 because it is not relevant to the facts and

issues to be tried, because it eliminates the require-

ment that the jury determine whether there has been

any competitive harm. Defendants further object on

the grounds that it misstates the law. Plaintiffs bear

the burden of proving that the alleged competitive

harm substantially outweighs the procompetitive

benefits.

10 ABA SECTION OF ANTITRUST LAW, MODEL JURY INSTRUC-

TIONS IN CIVIL ANTITRUST CASES, 2005 Edition A-12 (2005).

20a

APPENDIX C

Antitrust Jury Instruction 2

Antitrust Claims: Sherman Act Sections 1 and 2

Private Actions Under the Antitrust Laws

This type of lawsuit is known as a private antitrust

civil action. Private antitrust actions are a means of

enforcing the antitrust laws, because they serve to

deter defendants who have violated the antitrust

laws from violating the law in the future.

Plaintiffs have brought two separate antitrust

claims. Plaintiffs’ first claim is under Section 1 of the

Sherman Act, which prohibits a person or corporation

from entering into contracts, combinations and con-

spiracies that unreasonably restrain trade. Plaintiffs

allege that Defendants entered into agreements, com-

binations and conspiracies to restructure men’s pro-

fessional tennis that unreasonably restrained trade

in the market(s) for top-tiez: men’s professional ten-

nis, player services for top-tier men’s professional

tennis, and/or sanctions for top-tier men’s profes-

sional tennis.

Plaintiffs’ second claim is under Section 2 of the

Sherman Antitrust Act, which prohibits a person or a

corporation from maintaining a monopoly in any part

of our country’s trade or commerce. In this case,

Plaintiffs allege that Defendants unlawfully gained

and maintained a monopoly in the relevant mar-

ket(s); conspired to gain and maintain a monopoly in

the relevant market(s); and attempted to gain and

maintain a monopoly in the relevant market(s).

Zla

Antitrust Jury Instruction 13

Rule of Reason — Proof of Relevant Market

As I mentioned, Plaintiffs must show that the

harm to competition occurred in an identified market,

known as a “relevant market.” There are two aspects

to a relevant market. The first aspect is known as a

relevant product market. The second aspect is known

as the relevant geographic market. It is Plaintiffs’

burden to prove the existence of a relevant market.

Relevant Product Market

The basic idea of a relevant product market is that

it includes all products that are reasonable substi-

tutes for each other from a buyer’s point of view; that

is, the products compete with each other. In other

words, the relevant product market includes the

products that a consumer believes are reasonably in-

terchangeable or reasonable substitutes for each oth-

er. This is a practical test with reference to actual

behavior of buyers and marketing efforts of sellers.

Products need not be identical or precisely inter-

changeable as long as they are reasonable substi-

tutes. For example, if consumers seeking to cover lef-

tover food for storage considered certain types of flex-

ible wrapping material — such as aluminum foil, cel-

lophane, or even plastic containers — to be reasonable

alternatives, then all those products would be in the

same relevant product market.

To determine whether products are reasonable sub-

stitutes for each other, you should consider whether a

small but significant permanent increase in the price

of one product would result in a substantial number

of consumers switching from that product to another.

Generally speaking, a small but permanent increase

in price is approximately a five percent increase in

22a

price not due to external cost factors. If you find that

such switching would occur, then you should conclude

that the products are in the same product market.

In evaluating whether various products are rea-

sonably interchangeable or are reasonable substi-

tutes for each other, you may also consider: (1) con-

sumers’ views on whether the products are inter-

changeable; (2) the relationship between the price of

one product and sales of another; (3) the presence or

absence of specialized vendors; (4) the perceptions of

either industry or the public as to whether the prod-

ucts are in separate markets; (5) the views of Plain-

tiffs and Defendants regarding who their respective

competitors are; and (6) the existence or absence of

different customer groups or distribution channels.

In this case, Plaintiffs define the relevant product

markets as the market for the production of top-tier

men’s professional tennis, the market for player ser-

vices for top-tier men’s professional tennis, the mar-

ket for hosting top-tier men’s professional tennis,

and/or the market for live top-tier men’s professional

tennis. By contrast, Defendants assert that Plaintiffs

have failed to prove a proper relevant product market

because Defendants claim that Plaintiffs’ alleged

product markets do not include all reasonably inter-

changeable products or substitutes. If you find that

Plaintiffs have proven a relevant product market or

markets that includes all reasonably interchangeable

products or substitutes, then you should continue to

evaluate the remainder of Plaintiffs’ claim with re-

spect to that market or those markets. However, if

you find that Plaintiffs have failed to prove such a

market, then you must find in Defendants’ favor on

this claim.

23a

Relevant Geographic Market

For each relevant product market you determine

that Plaintiffs have proven, Plaintiffs must also prove

a relevant geographic market. The relevant geo-

graphic market for a given relevant product market

is the area in which the defendant faces competition

‘from other firms that compete in that relevant prod-

uct market and to which customers can reasonably

turn for purchases. When analyzing the relevant

geographic market, you should, consider whether

changes in prices or product offerings in one area

have substantial effects on prices or sales in another

area, which would tend to show that both areas are

in the same relevant geographic market. The geo-

graphic market may be as large as global or nation-

wide, or as small as a single town or even smaller.

The relevant geographic market for one relevant

product market may be larger or smaller than that

for a different relevant product market.

Plaintiffs have the burden of proving the relevant

geographic market by a preponderance of the evi-

dence. In this case, Plaintiffs claim that the relevant

geographic market for each of these markets is glob-

al. By contrast, Defendants assert that Plaintiffs

have failed to prove a proper geographic market. In

determining whether Plaintiffs have met their bur-

den and proven that their proposed geographic mar-

ket is proper, you may consider several factors, in-

cluding:

e The geographic area in which the relevant

products are sold and where customers for the

relevant products are located;

e The geographic area to which customers turn

for supply of the relevant products or have se-

riously considered turning; and

24a

e The geographic areas that suppliers of the re-

levant products; view as potential sources of

competition.

Antitrust Jury Instruction 18

Antitrust Claims: Sherman Act Section 2 -

Monopolization General Elements

Plaintiffs allege that they were injured by the De-

fendants’ unlawful monopolization of the markets for

top-tier men’s professional tennis; player services for

top-tier men’s professional tennis; and sanctions for

top-tier men’s professional tennis tournaments. To

prevail on this claim, Plaintiffs have the burden of

proving each of the following elements by a prepon-

derance of the evidence:

First, that the alleged market is a valid anti-

trust market;

Second, that the ATP Tour possessed monopoly

power in that market;

Third, that the Defendants “willfully” acquired or

maintained monopoly power in that market by

engaging in anticompetitive conduct; and

Fourth, that the Plaintiffs were injured in their

business or property because of the Defendants’

anticompetitive conduct.

If you find that Plaintiffs have failed to prove any

of these elements as to any Defendant, then you must

find for that Defendant and against Plaintiffs on this

claim. If you find that Plaintiffs have proved each of

these elements by a preponderance of the evidence,

then you must find for Plaintiffs and against Defen-

dants on this claim.

25a

Antitrust Jury Instruction 24

Antitrust Claims: Sherman Act Section 2 -

Attempt to Monopolize General Elements

Plaintiffs allege that they were injured by Defen-

dants’ unlawful attempt to monopolize the markets

for top-tier men’s professional tennis; player services

for top-tier men’s professional tennis; and sanctions

for top-tier men’s professional tennis tournaments.

To prevail on its claim of attempted monopolization,

Plaintiffs have the burden of proving each of the fol-

lowing elements by a preponderance of the evidence:

First, that Defendants engaged in anticompeti-

tive conduct.

Second, that Defendants had a specific intent to

achieve monopoly power in a relevant market;

Third, that there was a dangerous probability

that Defendants would achieve their goal of mo-

nopoly power in the relevant market; and

Fourth, that Plaintiffs were injured in their

business or property by Defendants’ anticompeti-

tive conduct.

If you find that the evidence is insufficient to prove

any one or more of these elements against any specif-

ic Defendant, then you must find for Defendants and

against Plaintiffs on Plaintiffs’ claim of attempted

monopolization. If you find that the evidence is suffi-

cient to prove all four elements as to a Defendant,

then you must find for Plaintiffs and against that De-

fendant on Plaintiffs’ claim of attempted monopoliza-

tion.

26a

Antitrust Jury Instruction 27

Antitrust Claims: Sherman Act Section 2 -

Conspiracy to Monopolize’ General Elements

Plaintiffs allege a conspiracy to monopolize in vi-

olation of Section 2 of the Sherman Act, which dec-

lares unlawful every conspiracy to monopolize inter-

state or foreign commerce.

To prevail against Defendant(s) on their claim of

conspiracy to monopolize, Plaintiffs have the burden

of proving by a preponderance of the evidence as to

Defendant(s) each of the following elements:

First, that an agreement or mutual understand-

ing between two or more persons to obtain or

maintain monopoly power in the market(s) for

top-tier men’s professional tennis, player services

for top-tier men’s professional tennis, and sanc-

tions for top-tier men’s professional tennis tour-

naments;

Second, that Defendant(s) knowingly - that is,

voluntarily and intentionally - became a party to

that agreement or mutual understanding;

Third, that Defendant(s) specifically intended

that the parties to the agreement would obtain or

maintain monopoly power in the market(s) for

top-tier men’s professional tennis, player services

for top-tier men’s professional tennis, and sanc-

tions for top-tier men’s professional tennis tour-

naments;

Fourth, that Defendant(s) committed an overt

act in furtherance of the conspiracy;

Fifth, that Defendant’s (or Defendants’) activi-

ties occurred in or affected interstate or foreign

commerce; and

2/a

Sixth, that Plaintiffs were injured in their busi

ness or property because of the conspiracy to

monopolize.

If you find that the evidence is sufficient to prove

each element as to a Defendant, then you must find

for Plaintiffs and against that Defendant on Plain-

tiffs’ conspiracy to monopolize claim. If you find that

the evidence is sufficient to prove each element as to

a defendant, then you must find for Plaintiffs and

against that defendant on Plaintiffs’ conspiracy to

monopolize claim.

28a

APPENDIX D

7/30/2008 Transcript of Trail (Day 8)

(JA 1729] Now, as this goes forward, the one thing |

want to address is, you know, I listened yesterday, as

you did, of course, too, and this comment of what

happened, he was being asked about what about this

market for fans? Well, there was an exchange about

this Cincinnati/Washington. Well, okay, there was.

But that is not our lawsuit. We’re not focusing on

those.

But as we get here, what we have, I have to say

this is an immensely complicated area of the law. It’s

an immensely complicated area of just getting your

mind around the economic principles involved. And I

have to say I go to bed at night sometimes and I have

to start over. What is Point A? What is Point B?

What is Point C in the analysis, honest to God. It is

that complex. And then you have courts doing their

absolute best with it to see that parties are treated

fairly on both sides of the case in terms of the law

and the economics and the evidence. And I think we

all know it is extremely subtle and it needs an ex-

tremely careful and nuanced analysis.

But that goes to the point that I think is of the es-

sence here. There needs to be, I think the Court

needs to hear from Dr. Walker and you need to hear

how

Dr. Walker goes about his work. And I think that

may help you understand how another economist

goes about a methodology. And you may see things

may become more clear

* * *k 4

29a

8/2/2008 Transcript of Trial (Day 10)

(JA 2090] “Answer: I do not believe that ATP would

have over the course of so many years left the Ham

burg Tournament in its standing the way it was in

May if ATP had not, like me, believed that that was

the only logical consequence in the calendar of events

on the way to Paris, to the Paris Tournament.

“Question: Would you agree there could be other

logical calendars that one could create? Yes?

“Answer: I would have to be convinced, I don’t ses

any other — any other logical calendar.

“Question: As part of how the tour should go for

ward, is it your view that Hamburg should continue

to be a Masters series event and should receive a

thousand points?

“In your view of how the tour should go forward,

how should Hamburg be treated?

“Answer: If I were in Mr. de Villiers’s position and

looked at the overall European tennis and I weren’t

German, I would still be in favor of Hamburg because

even in that case — so even if I were not a German, if

! were an Austrian or an Italian, I would still be in

favor of Hamburg because I would still think that

Hamburg fits into this Masters Series circuit.

“Question: And you would be in favor of continuing

a Masters Series?

“Answer: Yeah, I’m struggling, battling for the

[JA 2091] resumption of Hamburg as a 1000 event, as

a Masters event in May.

“Question: And as part of that you would want

Hamburg to be the only event during its tournament

week?

30a

“Answer: Yes, I want the player tournament—the

player commitment, excuse me, to continue as it was

before, that is that the top players commit to playing

that Masters Series.

“Question: And would you want Hamburg to have

the benefit of the player commitment that is being

proposed for the 1000 events starting in 2009”

“Answer: Yes, exactly. That’s how I understand the

plan, namely, that the players would have to commit

to these 1000 events as a precondition of the 1000

events to take place.

“Question: With respect to which tournaments in

German did you plead that they should not pay any

appearance fees?

“Answer: | actually pleaded with all tournament

organizers in Germany. I mean I told them that in

my opinion that’s the wrong way to go, but it was my

opinion at the time.

“Question: Is that still your opinion?

“Answer: I am against appearance fees. That’s why

I’m so adamant about keeping the 1000 tournaments,

(JA 2092] because it enables us to force the players to

play without appearance fee.

(Deposition ends.)

... PETER R. GREENHALGH, having been duly

Sworn as a witness, was examined and testified as

follows. .

DIRECT EXAMINATION

BY MR. UNDERWOOD:

Q@. Good afternoon, Mr. Greenhalgh. Could you

please tell the jury what your profession is?

sia

. Ye lam an econom!

) Do you have a particular irea | | WitNI!

the broad discipline of economi

A. Yes. | principally am what called a micro

economist, someone who studies firms and industrie

And within that broad field, my real specialty |

called industrial organization, which is the specifi

tudy of firms and industrie:

And CVC?) Vvithin that at id my most narrow p>

clalty is really antitrust economi well as the

computation of damage: both in antitrust cast i!

in other case

() Could you please daescnil ediucat

background?

A Ye have a Bache IO] le pret mn matnemat

from Princeton University ther pent four veay}

pr rduate

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.