DUBINA, Circuit Judge:
Plaintiff-Appellant, Morris Communications Corp. ("Morris"), brought suit against Defendant-Appellee PGA TOUR, Inc. ("PGA"), alleging that PGA violated section 2 of the Sherman Act, codified at 15 U.S.C. § 2, by monopolizing the markets for (1) the publication of compiled real-time golf scores on the Internet, and (2) the sale, or syndication of those scores. In addition, Morris alleged that PGA further violated section 2 of the Sherman Act by refusing to deal with Morris. The district court granted summary judgment in favor of PGA because it found, inter alia, that PGA had a valid business justification for its actions. For the reasons that follow, we affirm the judgment of the district court.
Morris is a media company that publishes print and electronic newspapers. PGA is the sponsor of a series of professional golf tournaments throughout North America known as the PGA Tour. In order to provide golf scores during its tournaments, PGA has developed a Real-Time Scoring System ("RTSS") that allows PGA to monitor the play around the entire golf course. RTSS is an elaborate electronic relay scoring system that relies on state-of-the-art computer technology and equipment as well as dozens of trained workers and volunteers.
RTSS works as follows. During a PGA golf tournament, volunteers known as walking scorers follow each group of golfers on the course and tabulate the scores of each player at the end of each hole
The nature of a PGA golf tournament makes it impossible for one person to physically follow all the players at once. First, the average golf course spans approximately 150 acres and various golfers play numerous holes simultaneously. In addition, the PGA does not allow its invitees to use cell phones and hand-held devices on the course because such devices might disrupt play. Therefore, the only source of compiled golf scores for all tournament players is RTSS. Likewise, the only physical location at which to obtain compiled golf scores is the media center.
In order for media organizations to have access to the PGA media center, they must obtain free press credentials from PGA. To obtain these credentials, all media organizations must agree to follow PGA's terms and conditions, including PGA's On-Line Service Regulations ("OLSR"). The OLSR require media organizations to delay publication on their Internet websites of scoring information obtained by RTSS until the earliest of (1) thirty minutes after the actual occurrence of the shot
Morris contends that, as a result of the OLSR, PGA is the only entity able to publish and sell real-time golf scores. Thus, Morris continues, PGA has an unfair advantage in the publication and syndication
Based on the allegedly illegal OLSR, Morris filed suit against PGA, asserting four antitrust claims: (1) monopolization of the Internet markets, (2) unlawful refusal to deal, (3) monopoly leveraging, and (4) attempted monopolization of the Internet markets.
B. Procedural History
After extensive pre-trial discovery, the parties filed cross-motions for summary judgment on each claim. The district court granted PGA's motion for summary judgment, finding that PGA had a valid business justification for its OLSR because the OLSR prevented Morris from free-riding on PGA's investment in its costly RTSS. Accordingly, the district court found that PGA had not violated the antitrust laws even if it operated a monopoly and refused to deal with Morris.
Subsequent to the granting of summary judgment in favor of PGA, Morris filed a Rule 60 motion for relief from judgment on the ground that, following the issuance of judgment in favor of PGA, PGA adopted new terms of service ("TOS") regarding www.pgatour.com in further violation of § 2 of the Sherman Act. The new TOS prohibit anyone from using the information displayed on www.pgatour.com for a commercial purpose without first buying a license from PGA. The district court denied the motion, finding that the new TOS were beyond the scope of the instant lawsuit, which addressed only PGA's media credentialing regulations and the OLSR. Accordingly, the district court found that Morris's challenge to the new TOS would be more aptly addressed in a separate lawsuit.
Morris timely and separately appealed the adverse summary judgment and Rule 60 orders. This court consolidated the two appeals.
STANDARDS OF REVIEW
This court reviews de novo whether the district court correctly granted summary judgment in favor of PGA on all counts, applying the same standard that governed the district court. Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir.2001).
This court reviews whether the district court correctly denied Morris's Rule 60 motion for abuse of discretion. See Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla., Inc., 140 F.3d 898, 905 (11th Cir.1998).
Before discussing the antitrust issues in this case, it is important to note what this case is not about. Contrary to the arguments of Morris and its amici curiae, this case is not about copyright law,
Section 2 of the Sherman Act provides that "[e]very person who shall monopolize, or attempt to monopolize, ... any part of the trade or commerce among the several States, ... shall be deemed guilty of a felony...." 15 U.S.C. § 2. "The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant
The first element, monopoly power, is the power to control prices in or to exclude competition from the relevant market. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). The second element requires predatory or exclusionary acts or practices that have the effect of preventing or excluding competition within the relevant market. See United States v. Microsoft, 253 F.3d 34, 58 (D.C.Cir.2001). In order for a practice to be exclusionary, "it must harm the competitive process and thereby harm consumers." Id. "[H]arm to one or more competitors will not suffice" for a § 2 violation. Id.; see also Consultants & Designers, Inc. v. Butler Serv. Group, Inc., 720 F.2d 1553, 1562 (11th Cir.1983) ("The relevant inquiry is not whether [a company's] present attempt to exclude adversely impacts competition but rather whether its acquisition of the power to exclude competitors had a sufficiently adverse impact on competition to constitute a [Sherman Act] violation.").
B. Refusal to Deal
Two theories exist upon which to predicate a unilateral refusal to deal claim: (1) the intent test and (2) the essential facility test. Mid-Texas Communications Sys., Inc. v. AT&T, 615 F.2d 1372, 1387 n. 12 (5th Cir.1980).
Under the essential facility test, a company that has exclusive control over a facility essential to effective competition may not deny potential competitors access to that facility on reasonable terms and conditions if to do so would create or maintain monopoly power in the relevant market. Covad Communications Co. v. BellSouth Corp., 299 F.3d 1272, 1285 (11th Cir.2002), cert. granted and judgment vacated on other grounds, 540 U.S. 1147, 124 S.Ct. 1143, 157 L.Ed.2d 1040 (2004); MCI Communications Corp. v. AT&T, 708 F.2d 1081, 1132-33 (7th Cir.1983); see also Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 124 S.Ct. 872, 881, 157 L.Ed.2d 823 (2004) ("The indispensable requirement for invoking the doctrine is the unavailability of access to the `essential facilities'; where access exists, the doctrine serves no purpose."). The plaintiff has the burden of proving that the defendant controls an essential facility that cannot be practically or economically duplicated. See Covad Communications, 299 F.3d at 1285.
In the absence of any purpose to create or maintain a monopoly, however, a
Ordinarily, when determining whether a defendant has violated § 2 of the Sherman Act, we first determine the relevant market and then decide whether the defendant possessed monopoly power in that market. In this case, however, we do not pursue such an inquiry because we agree with the district court that even if PGA possessed monopoly power in the relevant market, Morris's § 2 claims cannot prevail because PGA has a valid business justification for its actions. Therefore, even if PGA is monopolistic, and even if PGA refused to deal with Morris, it has not violated § 2 of the Sherman Act.
C. Valid Business Justification as a Defense
"The Sherman Act is ... the `Magna Carta of free enterprise,' but it does not give judges carte blanche to insist that a monopolist alter its way of doing business whenever some other approach might yield greater competition." Verizon Communications, 124 S.Ct. at 883 (internal quotations omitted). To the contrary, "Section 2 of the Sherman Act ... seeks merely to prevent unlawful monopolization "and unlawful refusals to deal. Id.
Unlawful monopoly power requires anticompetitive conduct, which is "conduct without a legitimate business purpose that makes sense only because it eliminates competition." Gen. Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 804 (8th Cir.1987); see also LePage's Inc. v. 3M, 324 F.3d 141, 153-54 (3rd Cir.2003) (discussing Conwood Co., L.P. v. United States Tobacco Co., 290 F.3d 768 (6th Cir.2002), cert. denied, 537 U.S. 1148, 123 S.Ct. 876, 154 L.Ed.2d 850 (2003)). Likewise, refusal to deal that is designed to protect or further the legitimate business purposes of a defendant does not violate the antitrust laws, even if that refusal injures competition. See Aspen Skiing, 472 U.S. at 604, 105 S.Ct. at 2858; see also NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 137, 119 S.Ct. 493, 499, 142 L.Ed.2d 510 (1998) (citing Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225, 113 S.Ct. 2578, 2589, 125 L.Ed.2d 168 (1993), for the proposition that "[e]ven an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws"); United States Football League v. National Football League, 842 F.2d 1335, 1360 (2d Cir.1988) (concluding that no § 2 liability existed where network's actions were based on desire "to obtain $736 million in rights fees, not to exclude competitors").
Once the defendant has met its burden to show its valid business justification, the burden shifts to the plaintiff to show that the proffered business justification is pretextual. See U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 1002 (11th Cir.1993); see also Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212 (9th Cir.1997).
In this case, PGA met its business justification burden by showing that it seeks to prevent Morris from "free-riding" on PGA's RTSS technology. See Cont'l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 55, 97 S.Ct. 2549, 2560, 53 L.Ed.2d 568 (1977) (stating that prevention of "free-riding" by competitors is a legitimate business
If Morris wishes to sell PGA's product, it must first purchase it from PGA. See Consultants & Designers, 720 F.2d at 1559 (explaining that plaintiff did not have the right to abrogate defendant's property interest). Section 2 of the Sherman Act does not require PGA to give its product freely to its competitors. See Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573 (11th Cir.1991) (stating that it "is not a function of the antitrust laws" to equip plaintiffs with defendants' competitive advantages). PGA is willing to sell its product to its competitors, including Morris, thereby allowing credentialed media organizations like Morris to syndicate compiled real-time golf scores after paying a licensing fee to PGA. Accordingly, we conclude from the record that PGA has satisfied its burden to show a valid business justification.
D. Business Justification Is Not Pretextual
Because PGA has met its burden of showing that its asserted business justification is valid, the burden shifts to Morris to allege facts that support an inference that the proffered justification is merely pretextual, thereby establishing genuine issues of material fact. U.S. Anchor Mfg., 7 F.3d at 1002; see also Image Technical Servs., 125 F.3d at 1212. Morris argues that PGA's only justification for its refusal to deal with Morris on Morris's terms is economic and such sole motivation is not a valid business justification; thus, PGA's justification is pretextual. See LePage's, 324 F.3d at 163 ("[D]efendant's assertion that it acted in furtherance of its economic interests does not constitute the type of
Morris supports its argument with a series of cases which are fundamentally distinguishable from this case. In the cases upon which Morris relies, the plaintiffs alleging antitrust violations had created with their own work and efforts, or purchased with their own money, their very own products that defendants prohibited them from selling. See, e.g., Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 485, 112 S.Ct. 2072, 2092, 119 L.Ed.2d 265 (1992) (plaintiffs "invest substantially ... in parts inventory"); Aspen Skiing, 472 U.S. at 587-88, 105 S.Ct. at 2850 (plaintiff developed and maintained its own competitive ski resort and ski packages); Lorain Journal Co. v. United States, 342 U.S. 143, 149-50, 72 S.Ct. 181, 184-85, 96 L.Ed. 162 (1951) (injured competitor trying to sell its radio air time for advertisements); Int'l News Serv. v. Associated Press, 248 U.S. 215, 221, 39 S.Ct. 68, 69, 63 L.Ed. 211 (1918) (plaintiff "gathers in all parts of the world, by means of various instrumentalities of its own, by exchange with its members, and by other appropriate means, news and intelligence of current and recent events of interest to newspaper readers"); LePage's, 324 F.3d at 144 (plaintiff selling its own transparent tape); Microsoft Corp., 253 F.3d at 63 (injured competitors deterred from selling their own computers and browsers); Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 854 (2d Cir.1997) (analyzing free-riding issues and noting that plaintiff did not free-ride because it used its own efforts to conduct business); U.S. Anchor Mfg., 7 F.3d at 990 (plaintiff manufactures and supplies anchors); Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 187 (2d Cir.1992) (plaintiffs purchased product from defendants).
Morris refers to this distinction as PGA's "sweat of the brow" defense and correctly states that it is not a defense in a copyright case. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 359-60, 111 S.Ct. 1282, 1295, 113 L.Ed.2d 358 (1991) (concluding that "sweat of the brow" is no defense in a copyright case). [Appellant Br. at 53-55.] This well-established rule of copyright law is irrelevant, however, in this antitrust case. The "sweat of the brow" product, to which Morris (and the district court) refer, is no different than, for example, the interconnection services in Verizon Communications, 124 S.Ct. at 876, the job shoppers in Consultants & Designers, 720 F.2d at 1555, and the sports jackets in Starter Sportswear, 964 F.2d at 187.
Moreover, even if we overlook the fundamental and dispositive distinction between this case and the cases cited by Morris, the case law supports summary judgment in favor of PGA. See Verizon Communications, 124 S.Ct. at 879 ("Aspen Skiing is at or near the outer boundary of § 2 liability"); Aspen Skiing, 472 U.S. at 593-94, 105 S.Ct. at 2852-53 (defendant refused to accommodate and cooperate with plaintiff, refused to sell its product to plaintiff, and acted contrary to its own economic interests in order to eliminate plaintiff); Otter Tail Power Co. v. United States, 410 U.S. 366, 370-72, 93 S.Ct. 1022, 1026-27, 35 L.Ed.2d 359 (1973) (defendant was already in the business of selling a service to certain customers and refused to sell the same service to certain other customers); Lorain Journal, 342 U.S. at 148-49, 72 S.Ct. at 183-84 (defendant refused to sell to plaintiff in violation of the Sherman Act); Starter Sportswear, 964 F.2d at 189-91 (holding, in a factually analogous case, that defendant had valid business justification for refusal to deal); Fishman v. Estate of Wirtz, 807 F.2d 520, 562 (7th Cir.1986) (holding defendant liable under § 2 for refusing to lease Chicago Stadium to plaintiff).
E. Morris's Rule 60(b) motion
Relief pursuant to Rule 60(b)(2) is appropriate only if the moving party offers newly discovered evidence that could alter the outcome of the trial. See Wilson v. Thompson, 638 F.2d 801, 804 (11th Cir.1981); Fed. R. Civ. Pro. 60(b)(2). Because we review the district court's decision for abuse of discretion, "it is not enough that a grant of the motion might have been permissible or warranted." Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir.1977). After reviewing the record, we conclude that the district court did not err in finding that the new TOS evidence would have failed to alter the outcome of the trial in light of PGA's valid business justification for its regulations. Accordingly, we hold the district court did not abuse its discretion when it denied the Rule 60 motion.
Contrary to Morris's argument regarding copyright law, this case is not about copyright and the district court did not find the golf scores to be trade secrets.
Morris Communications Corp. v. PGA Tour, Inc., 235 F.Supp.2d 1269, 1274 (M.D.Fla.2002). The version of the OLSR at issue here was instituted in January 2000.
[R. Vol. 8 at pp. 34-36.]