Nexstar Broadcasting Inc v. Granite Broadcasting Corporation et al
Filing
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OPINION AND ORDER: DENYING 72 MOTION for Reconsideration re 65 Opinion and Order Or, In The Alternative, Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) And Stay Of Proceedings filed by Wise-TV License LLC, Granite Broadcasting Corporation, Wise-TV Inc.. Signed by Judge Robert L Miller, Jr on 10/9/12. (jld) Modified on 10/9/2012 to correct text (jld).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
NEXSTAR BROADCASTING, INC.,
Plaintiff
vs.
GRANITE BROADCASTING
CORPORATION, WISE-TV LICENSE,
LLC, AND WISE-TV, INC.,
Defendants
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CAUSE NO. 1:11-CV-249 RM
OPINION and ORDER
The defendants’ motion to reconsider the court’s July 9 opinion and order
denying the motion to dismiss, or, alternatively, to certify issues for interlocutory
appeal and to stay proceedings pending the outcome of that appeal [Doc. No. 72]
pends before the court. For the following reasons, the court denies the motion in
its entirety.
I. MOTION TO RECONSIDER
A court may, in the exercise of its discretion, revise any non-final order “at
any time before the entry of a judgment adjudicating all the claims....” FED. R. CIV.
P. 54(b); see also Galvan v. Norberg, 678 F.3d 582, 587 and n.3 (7th Cir. 2012).
“Motions for reconsideration serve a limited function: to correct manifest errors
of law or fact or to present newly discovered evidence,” and should not “serve as
the occasion to tender new legal theories for the first time.” Rothwell Cotton Co.
v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting Keene Corp. v. Int’l
Fidelity Ins. Co., 561 F.Supp. 656, 665-66 (N.D. Ill. 1982), aff’d, 736 F.2d 388
(7th Cir. 1984)).
Defendants Granite Broadcasting Corporation, WISE-TV Licence, LLC and
WISE-TV, Inc. (collectively referred to as “Granite”) raise only a single issue in
their motion to reconsider — whether the court erred in finding that the complaint
sufficiently alleged antitrust injury. Granite contends that payment of a “supracompetitive” price for the FOX affiliation wasn’t “illegal” and can’t be the “but for”
cause of an antitrust injury unless it’s part of a “predatory bidding scheme,” citing
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312, 325
(2007), and that Nexstar Broadcasting’s complaint doesn’t allege such a scheme.
Nexstar argues that Granite’s motion to reconsider merely places a new spin
on arguments already rejected by the court, see Latson v. Ethicon, Inc., 2009 WL
3837889, at *2 (N.D. Ind. Nov. 13, 2009) (motions for reconsideration “are not the
appropriate vehicles to again advance arguments already rejected by the court.”),
and that Weyerhaeurer is distinguishable and inapplicable when the complaint
alleges a course of concerted conduct by two horizontal competitors — Granite
and Malara — to exclude rivals from the market and monopolize that market. See
Gulf States Reorganization Group, Inc. v. Nucor Corp., 466 F.3d 961, 965-966
(11th Cir. 2006) (reversing summary judgment for the defendants on the issue of
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causation and holding that while the plaintiff “could have prevailed had it
submitted a higher cash bid, [its] need to make a higher bid was occasioned only
by” collusion between the two defendants); United States v. Microsoft Corp., 253
F.3d 34, 68-71 (D.C. Cir. 2001) (“monopolist’s use of exclusive contracts” to
foreclose competitors violated Sherman Act); Fishman v. Estate of Wirtz, 807 F.2d
520, 533 (7th Cir. 1986). The court agrees.
Granite’s reliance on Weyerhaeurer as a basis for reconsidering the court’s
holdings on the sufficiency of the allegations of antitrust injury is misplaced.
Granite raised this argument for the first time in its motion to reconsider, and
provided no explanation as to why it should be allowed to do so at this stage of the
proceedings. See Pole v. Randolph, 570 F.3d 922, 938 (7th Cir. 2009) (“Arguments
raised or developed for the first time in a motion to reconsider are generally
deemed forfeited.”); Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251
(7th Cir. 1987) (motions to reconsider should not “serve as the occasion to tender
new legal theories for the first time”). Even if Granite had raised it in its earlier
briefing, Weyerhaeuser v. Ross-Simmons Hardwood, 549 U.S. 312, involved a
motion for judgment after a jury trial, not a motion to dismiss in which the only
question before the court was whether the plaintiff had alleged a plausible
antitrust claim, and could be distinguished on its facts. See In re Dairy Farmers
of America, Inc. Cheese Antitrust Litigation, 767 F.Supp.2d 880, 905-906 (N.D.
Ill. 2011).
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While it’s true that Gulf States Reorganization Group, Inc. v. Nucor Corp.,
466 F.3d 961 (11th Cir. 2006), doesn’t bind courts in this circuit and was decided
before Weyerhaeuser, it presents similar facts and provides persuasive authority
supporting the court’s previous findings regarding the sufficiency of the antitrust
injury allegations in this case. Granite’s assertion that Gulf States Reorganization
Group is inconsistent with Weyerhaeuser, and “if decided today, would have been
decided differently,” is conclusory and unsupported.
Finally, and more importantly, Granite’s argument once again incorrectly
assumes that the acquisition of the FOX network affiliation was the only antitrust
violation alleged and the sole cause of Nexstar’s alleged injuries. It was not.
In the July 9 order, the court explained that:
The conduct complained of and the injury alleged aren’t as
simple as Granite contends. The complaint alleges that Granite,
either alone or with Malara and others, engaged in a course of
conduct that had the purpose and effect of excluding competition in
the television local spot advertising market in violation of the
antitrust laws. . . .
Nexstar’s aggregation or “chain reaction” theory of liability was
pleaded in each of its claims, as was the requisite antitrust injury.
Contrary to Granite’s assertions, the alleged facts support a
reasonable inference that Granite’s concerted pre-2011 actions gave
it the market power needed to acquire control over all a majority of
the network affiliations and network programming in the Fort Wayne
DMA and the advertising sales and revenues those affiliations
generate, to the exclusion of other competitors. Whether Nexstar can
prove that Granite’s concerted actions are illegal per se or under the
rule of reason (i.e., that Granite was involved in a horizontal
conspiracy with the purpose and effect of excluding direct
competitors from the market, or that the alleged conduct would
always or almost always tend to restrict competition and decrease
output, without justification), see Broadcast Music, Inc. v. CBS, 441
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U.S. 1 (1980), and whether Granite’s actions were the “but for” cause
of Nexstar’s alleged injuries remains to be determined. The court can’t
decide at the pleadings stage whether Nexstar would have suffered
identical injuries had someone else acquired the FOX affiliation, as
Granite contends. While Nexstar’s injuries might have been the same
if another competitor had purchased the FOX affiliation, it could be
inferred plausibly from the complaint’s allegations that Granite,
because of its market power, was the only competitor who could and
would pay a “supra-competitive” price for the FOX affiliation
agreement.
[Doc. No. 65 at pp. 11-12]. The court didn’t conclude, as Granite contends in its
reply brief, “that Nexstar may have pled sufficient antitrust injury only through
its ‘allegations that Granite, because of is market power, was the only competitor
who could and would pay a “supra-competitive” price for the FOX affiliation
agreement.’”
Accordingly, the court denies Granite’s motion for reconsideration.
II. MOTION FOR INTERLOCUTORY APPEAL AND STAY
Granite alternatively asks the court to certify for interlocutory appeal three
questions of law relating to antitrust injury:
(1) whether Nexstar’s allegations of payment by a defendant with
market power of an alleged “supra-competitive” price for an exclusive
distributorship can support a claim for antitrust injury without plaintiff
alleging a predatory bidding scheme;
(2) whether the Continental Ore doctrine, which provides that a
defendant’s allegedly anticompetitive conduct can sometimes be aggregated
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to prove a defendant’s substantive antitrust violation, can be used to
support a claim of private plaintiff antitrust injury in light of Kochert v.
Greater Lafayette Health Services, 463 F.3d 710 (7th Cir. 2006); and
(3) whether, under Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986), and its progeny, a plaintiff competitor pleads
a plausible antitrust injury when it alleges that the conduct of the
defendant that it challenges as anticompetitive resulted in increased prices
in the relevant market.
Under 28 U.S.C. § 1292(b), a court may certify a question for interlocutory
appeal if it presents “a controlling question of law as to which there is a
substantial ground for difference of opinion and . . . an intermediate appeal . . .
may materially advance the ultimate termination of the litigation.” A party seeking
an interlocutory appeal must satisfy each requirement, Ahrenholz v. Bd. of
Trustees of Univ. of Illinois, 219 F.3d 674, 675 (7th Cir. 2000), and persuade the
district court that “exceptional circumstances justify a departure from the basic
policy of postponing appellate review until after the entry of final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (quoting Fisons, Ltd. v.
United States, 458 F.2d 1241, 1248 (7th Cir. 1972).
Granite has identified good legal questions of significant interest in this
case, but those questions are “controlling” only if one shares Granite’s
understanding of the court’s ruling on the motion to dismiss. As explained in the
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preceding section, Granite’s understanding of that ruling isn’t correct. An
interlocutory appeal of those issues would simply delay the course of litigation
premised on allegations of anticompetitive conduct involving a course of concerted
conduct dating back to 2005, not simply Granite’s acquisition and Nexstar’s loss
of the FOX affiliation and the higher prices that might result. An interlocutory
appeal is inappropriate.
III. CONCLUSION
For these reasons, the court DENIES the defendants’ motion for
reconsideration or, in the alternative, interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b) and stay of proceedings [Doc. No. 72].
SO ORDERED.
ENTERED:
October 9, 2012
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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