Plaintiffs Win a Round in Sixth Circuit Milk Case: No Need to Show Relevant Geographic Market or Antitrust Injury to Avoid Pre-Trial Dismissal

In reversing the decision of the district court, the Sixth Circuit held that the court should have considered the possibility that the fact nature of the restraint was sufficiently clear that a “quick look” analysis would have shown that the conduct had obvious, adverse anticompetitive consequences and that a detailed market analysis was not necessary. Even though the alleged conduct was not illegal per se, the allegations in the complaint were sufficient to shift the burden to the defendant to produce evidence of some of the procompetitive benefits of the alleged conduct.
Second, the circuit court found that the trial court’s exclusion of an expert economist’s testimony in dismissing the monopolization counts in respect to his opinion on geographic market was error.  In reaching his conclusion, the expert relied on the “hypothetical monopolist” construct to assess whether the territory alleged constituted a relevant geographic market.  While the district court ruled this approach was not  that this construct required speculation about a buyer’s likely reaction to a price increase, and was not, therefore, based upon actual evidence — and, hence, was unreliable.  The Sixth Circuit, however, viewed the approach as consistent with Supreme Court authority as well as with the DOJ and FTC merger guidelines for determining a relevant market. While defendants contended that the market was much smaller, the circuit court held that that issue should be left to the jury to decide:In re Southeastern Milk Antitrust Litigation