THEME PROMOTIONS v. NEWS AMERICA MARKETING FSI
539 F.3d 1046 (2008)
THEME PROMOTIONS, INC., a California corporation, dba Theme Co-op Promotions, Plaintiff-counter-defendant-Appellee,
NEWS AMERICA MARKETING FSI, a Delaware corporation, Defendant-counter-claimant-Appellant.
Theme Promotions, Inc., a California corporation, dba Theme Co-op Promotions, Plaintiff-counter-defendant-Appellant,
News America Marketing FSI, a Delaware corporation, Defendant-counter-claimant-Appellee.
Nos. 06-16230, 06-16341.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 14, 2008.
Filed August 20, 2008.
Eugene Crew, Nancy L. Tompkins, Holly Gaudreau, Townsend and Townsend and Crew, LLP, San Francisco, CA; Theodore T. Herhold, Townsend and Townsend and Crew, LLP, Palo Alto, CA, for the plaintiff/appellee/cross-appellant.
Gary J. Malone, Constantine Cannon, New York, NY, for the defendant/appellant.
Before: STEPHEN S. TROTT, SIDNEY R. THOMAS, and RICHARD A. PAEZ, Circuit Judges.1
This appeal presents the question of whether right of first refusal agreements between a publisher of advertising tools and packaged goods companies violate California antitrust and tort law. We conclude that the jury verdict in favor of Plaintiff was supported by substantial evidence in the record, and we affirm.I
News America Marketing FSI, Inc. ("News") is one of two publishers of an advertising tool called a free-standing insert ("insert"). An insert is a multi-colored advertising booklet inserted into a Sunday newspaper that contains coupons promoting products—like cereal and soft drinks—sold by packaged goods companies. Although packaged goods companies advertise and promote their products with a variety of advertising tools, inserts are the primary tool that packaged goods companies use to distribute coupons nationally. The other major company that sells, publishes, and distributes inserts is Valassis Communications ("Valassis").
It is common for a packaged goods company to enter into a right of first refusal agreement with either News or Valassis to meet its insert needs. In a right of first refusal agreement with News, a packaged goods company agrees to first offer all (if the agreement is a "100% right of first refusal agreement") or a set percentage (if the agreement is a "share right of first refusal agreement") of its insert business to News. Under the agreement, News must accept this business unless it cannot accommodate the date requested by the packaged goods company. In return for the greater volume of sales promised by the right of first refusal agreement, News discounts the insert prices.
Theme Promotions, Inc. ("Theme") is an advertising company that offers promotional programs to packaged goods companies. Theme specializes in related-item merchandising, or "tie-ins", that involve the joint promotion of complementary products from two different packaged goods companies (for example, a particular brand of popcorn with a particular brand of cola). Theme often uses inserts in its related-item promotions. Because Theme is contractually bound to two or more packaged goods companies for each related-item promotion, and because Theme is responsible for the execution of the promotions, Theme—and not the packaged goods companies—often purchases the inserts from either News or Valassis.
Theme itself has entered into right of first refusal agreements with News (before 1996) and Valassis (since 1996) to get lower insert prices. In June 1995, Theme entered into a right of first refusal agreement with News for its insert business. When a dispute arose between the parties, the agreement was voided, and Theme entered into a right of first refusal agreement with Valassis. News subsequently sued Theme and Valassis for intentional interference with contractual relations. The lawsuit settled in 1997. Since 1996, Theme's preferred supplier of inserts has been Valassis, in part because Valassis offers Theme "extras" like better page position for its coupons, and rebates for promotional programs brought to Valassis.