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Hayden Pub. Co. v. Cox Broadcasting Corp.

United States Court of Appeals for the Second Circuit

January 9, 1984, Argued ; March 6, 1984, Decided

Docket No. 83-7499

Opinion

 [*65]  OAKES, Circuit Judge:

Hayden Publishing Co., Inc. (Hayden), appeals from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, granting summary judgment to Cox Broadcasting Corp. (Cox) and United Technical Publications, Inc. (UTP). Hayden, the plaintiff below, alleged that Cox and UTP violated sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2 (1976).  In particular, Hayden alleged [**2]  that Cox and its wholly owned subsidiary, UTP, monopolized the market for advertising in the electronics catalogue industry by means of UTP's publication, Electronic Engineers Master (EEM). Additionally, Hayden claimed that the defendants engaged in various anticompetitive acts to injure its rival publication, Gold Book. Finding that Hayden had failed to establish that the relevant market consisted only of EEM and Gold Book, Judge Costantino granted summary judgment in favor of Cox and UTP and dismissed Hayden's complaint. Hayden Publishing Co. v. Cox Broadcasting Corp., 566 F. Supp. 503 (E.D.N.Y. 1983). Because we find that genuine issues of material fact remain, including the question of market definition, we reverse.

 [*66]  FACTS

As described by Hayden, the electronics catalogue industry consists of publications designed for, and distributed free to, electronic design engineers, purchasing agents for engineering companies, and other specialized users of electronic products. These publications contain two sections, the first a "directory section," which lists by product category companies that supply various electronic products and services, and the second [**3]  a "catalogue section," which provides space for advertising. Typically, the catalogue section provides descriptions, specifications, prices, and illustrations of electronic devices, thereby enabling design engineers to determine whether these items should be incorporated into their products. Because such publications are given free to this very specialized audience, the publishers derive their income from product advertising.

In Hayden's amended complaint of October, 1979, it charged that Cox and UTP violated sections 1 and 2 of the Sherman Act 1 by monopolizing, attempting to monopolize, and conspiring to monopolize the market for "domestic advertising in electronics catalog-directories." These alleged illegal acts of the appellees included offering free advertising pages in EEM, selling advertising in multi-year packages in anticipation of Gold Book's entry into the market, pricing some of EEM's advertising below cost, and having salespeople make false statements about Gold Book's financial stability and future prospects. Cox and UTP, of course, deny these allegations.

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730 F.2d 64 *; 1984 U.S. App. LEXIS 24772 **; 1984-1 Trade Cas. (CCH) P65,897

HAYDEN PUBLISHING CO., INC., Plaintiff-Appellant, v. COX BROADCASTING CORP. and UNITED TECHNICAL PUBLICATIONS, INC., Defendants-Appellees

Prior History:  [**1]   Appeal from a grant of summary judgment by the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, dismissing appellant's claims under sections 1 and 2 of the Sherman Act on the ground that no genuine issue of material fact existed on the definition of the relevant market.

Disposition: Reversed.

CORE TERMS

electronic, relevant market, summary judgment, monopoly power, monopolize, advertising, district court, products, catalog-directories, summary judgment motion, defendants', consisting, nominated, genuine, interchangeability, cross-elasticity, Directory, products and services, amended complaint, Interrogatory, engineers, words

Antitrust & Trade Law, Sherman Act, General Overview, Monopolies & Monopolization, Actual Monopolization, Criminal Law & Procedure, Sentencing, Fines, Attempts to Monopolize, Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Materiality of Facts, Regulated Practices, Private Actions, Discovery & Disclosure, Opposing Materials, Motions for Additional Discovery, Burdens of Proof, Movant Persuasion & Proof, Price Fixing & Restraints of Trade, Per Se Rule & Rule of Reason, Sherman Act