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Broadway Delivery Corp. v. United Parcel Service, Inc.

Broadway Delivery Corp. v. United Parcel Service, Inc.

United States Court of Appeals for the Second Circuit

March 16, 1981, Argued ; June 3, 1981, Decided

No. 534, Docket 80-7727

Opinion

 [*123]  This is an appeal from a judgment of the District [**2]  Court for the Southern District of New York (Kevin T. Duffy, Judge) dismissing, after a jury trial, a complaint for treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15 (1976). The suit was brought by various firms that transport packages in the New York metropolitan area against  [*124]  United Parcel Service of America, Inc. (UPSA) and its wholly owned operating subsidiary in the Northeast, United Parcel Service, Inc. (New York) (UPSNY). The plaintiffs charged that from 1960 to 1975 the defendants conspired to monopolize, and monopolized or attempted to monopolize the pickup and delivery of small packages sent by wholesalers in the New York garment district, in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976). The § 1 claim was disposed of by summary judgment on the basis of the defendants' unopposed showing that during the relevant period they conducted their affairs and held themselves out as a single firm, incapable of conspiring with itself in violation of § 1. The § 2 claims were tried to a jury, which returned a verdict for the defendants. On appeal, the plaintiffs-appellants challenge primarily the District Court's rejection of their § 1 [**3]  claim, and the Court's jury instruction that they could not prevail on their § 2 monopolization claim unless they proved that during the relevant period the defendants controlled at least 50% of the relevant market. 2 We conclude that the plaintiffs abandoned their § 1 claim and that the challenged jury instruction was erroneous but harmless error in light of the plaintiffs' failure to present a prima facie case of a § 2 monopolization violation. Our disposition of these issues moots the other claims of error, and we therefore affirm.

 [**4]  FACTUAL BACKGROUND

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651 F.2d 122 *; 1981 U.S. App. LEXIS 12626 **; 1981-1 Trade Cas. (CCH) P64,068

BROADWAY DELIVERY CORP., et al., Plaintiffs-Appellants, v. UNITED PARCEL SERVICE OF AMERICA, INC., et al., Defendants-Appellees

Prior History:  [**1]  Appeal from a judgment of the District Court for the Southern District of New York (Kevin T. Duffy, Judge) dismissing, after a jury trial, an antitrust complaint for treble damages, the plaintiffs-appellants challenging primarily the District Court's jury instruction that the defendants could not be found to have monopolized the relevant market urged by the plaintiffs unless the defendants' share of that market was at least 50%.

Disposition: Judgment affirmed.

CORE TERMS

monopoly power, market share, pricing, defendants', monopolization, plaintiffs', relevant market, packages, market power, predatory, relevant period, transport, cases, commercial zone, possessed, subsidiaries, profits, summary judgment, management agreement, power to control, trial judge, competitor, rates

Civil Procedure, Dismissal, Involuntary Dismissals, General Overview, Judgments, Summary Judgment, Partial Summary Judgment, Appeals, Standards of Review, Antitrust & Trade Law, Monopolies & Monopolization, Actual Monopolization, Sherman Act, Defenses, Evidentiary Considerations, Regulated Practices, Attempts to Monopolize, Trials, Judgment as Matter of Law, Directed Verdicts, Judicial Officers, Judges, Market Definition, Jury Trials, Jury Instructions