All Care Nursing Svs. v. Bethesda

PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____________________________________ No. 95-4714 _____________________________________ D. C. Docket No. 88-8568-CIV-JCP

ALL CARE NURSING SERVICE, INC., BENSON HEALTH CARE SERVICES, INC., et. al., Plaintiffs-Appellees, versus

HIGH TECH STAFFING SERVICES, INC., Defendant-Appellant.

__________________________________ No. 95-5218 __________________________________ D. C. Docket No. 88-8568-CIV-JCP

ALL CARE NURSING SERVICE, INC., Plaintiff-Appellant,

A COMPLETE HEALTH SERVICE, INC., QUALITY PROFESSIONAL NURSING, INC., et al., Plaintiffs-Appellants, JULIE MONAHAN, Counter-Defendant- Appellant, versus

BETHESDA MEMORIAL HOSPITAL, INC., NME HOSPITALS, INC., et. al., Defendants-Appellees, HIGH TECH STAFFING SERVICES, INC., Defendant-Appellant- Cross-Appellee. ______________________________________ Appeals from the United States District Court for the Southern District of Florida _______________________________________ (February 18, 1998)

Before EDMONDSON and BARKETT, Circuit Judges, and WELLFORD*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Two separate actions (with different plaintiffs) against the

same defendants for alleged antitrust violations have been

consolidated and are treated as one appeal. Plaintiffs appeal a

jury verdict for defendants on antitrust claims. They also

appeal the jury verdict against them on counterclaims for state

and federal RICO violations. Many issues were raised on

appeal. But we conclude that most of the challenges obviously

lack merit, and we do not discuss them in this opinion. We do

discuss a couple of issues in some detail, and we affirm the

district courts’ judgments.

__________________ *Honorable Harry W. Wellford, Senior U.S. Circuit Judge Sixth Circuit, sitting by designation.

2 Background Beginning in the mid-1980's the United States experienced

a severe nursing shortage. Southern Florida was hit especially

hard due to its increased demand for nurses in winter months

to accommodate the high influx of people to the area at that

time of year. This shortage, along with other market

considerations, caused an increase in prices for nursing

services and a difficulty in staffing hospitals (and other

facilities) with sufficiently licensed nurses.1 Hospitals use full or part-time hospital nurses, contract

nurses (nurses hired for a specified period of time), travel

nurses (contract nurses hired from different areas of the

country), and temporary nurses (nurses employed by agencies 1 Nurse qualifications fall into at least three different licensing categories: Registered Nurse (RN), Licensed Practical Nurse (LPN), and Certified Nursing Assistant (CNA). 3 and hired by hospitals for a shift at a time)2. Temporary nursing

agencies send their nurses to hospitals, nursing homes, clinics,

doctors’ offices, and patients’ homes. They have the choice to

provide services for any facility or person in need of such care.

They are not limited to providing nurses to hospitals.

During the pertinent period, hospitals were faced with

quality concerns, as well as rising prices. No efficient means

existed to share information with other hospitals about agency

nurses. This lack of information resulted in problems with

some agencies, including plaintiff-appellant All Care Nursing

Services, Inc. (“All Care”).3 These problems included “phantom

booking” -- where a hospital requests a specific nurse with

whom it has dealt in the past, only to be sent a different nurse;

2 These temporary nursing agencies are also providers of travel and contract nurses to hospitals. 3 The problems described formed the basis of the counterclaim against All Care and Monahan for federal and state RICO violations. 4 “blind booking” -- where a hospital sets up to receive the

services of a nurse from an agency only to have the agency

cancel at the last minute; fraudulent billing -- billing hospitals

for services of an RN when actually a less qualified LPN or CNA

performed the services; cheating on certification exams; and

altering certification documents.

In response to the problems the South Florida Hospital

Association (“SFHA”) approached hospitals in Palm Beach

County about a potential purchasing arrangement. In 1988,

twelve (12) Palm Beach County hospitals set up an arrangement

whereby they would solicit bids from temporary nursing

agencies and would then select agencies to be preferred

providers of such services, the Preferred Provider Program

(“PPP”). The selection of the preferred agencies was to be

made based upon competence, services provided, quality, and

bid price. Under this joint-buying arrangement all the

participating hospitals agreed to seek first nurses from 5 preferred providers before going to nonpreferred agencies for

nurses on each occasion.

All agencies were invited, either by letter or by

advertisement in the Palm Beach newspaper (Palm Beach

Post), to participate in the bidding. Sixteen (16) agencies

presented bids and eight (8) were selected as preferred.4 In November 1988, the PPP began operation. Each

hospital entered into individual contracts with each of the

preferred agencies. All the agencies selected as preferred

providers were required to agree to things like treating their

nurses as employees by providing workers’ compensation, 4 Some of the appellant agencies participated in the bidding process, others did not. Following the submission of the initial bids four (4) agencies were eliminated based on their bid prices, which in some instances were 50% higher than other agencies’ bids. The remaining twelve (12) rebid and were considered using the established criteria. Which agencies actually resubmitted bids is unclear. But, all of the accepted agencies bid prices higher than the price ranges suggested by the SFHA in its invitation to bid. None of the appellants was selected as preferred providers. 6 paying taxes, and providing necessary insurance. Before the

PPP, agencies had treated their nurses as independent

contractors, not employees; and the higher costs associated

with unprotected workers were borne by the hospitals.5 The preferred agencies did not contract with the hospitals

at the same prices, but instead at the prices that each particular

agency had bid. Agencies were also required to agree in the

contracts not to change their prices for one year -- the length of

each contract -- and, thus, were somewhat tied into their bid

prices. But to allow for shifts due to market changes, each

agency could terminate its contract with a particular hospital

upon 30 days notice (the “escape clause”).

After the creation of the PPP, plaintiffs-appellants filed suit

against the participating hospitals, preferred agencies, and the 5 The hospitals felt the need to place some of the financial burden on the agencies because after the bidding, agency services were actually costing more than before the PPP. These contract provisions were a way to shift some of the cost back to the agencies. 7 SFHA6 alleging antitrust violations under sections 1 and 2 of the

Sherman Act, 15 U.S.C. §§ 1 , 2, and under Florida Statutes §§

542.18 and 542.19. Defendants then filed a counterclaim

against All Care, and its operator Monahan, for violations of

federal and state RICO statutes by billing fraudulently, aiding

cheating on certification exams, and aiding persons to obtain

false certification.7 Awaiting trial, plaintiffs-appellants sought and received a

preliminary injunction, which halted implementation of the PPP.

That preliminary injunction, however, was vacated by this court

because of the district court’s failure to hold the necessary 6 Plaintiffs-appellants include: All Care Nursing Services, Inc.; A Complete Health Care Services, Inc.; Benson’s Health Care Services, Inc.; Critical Health Care, Inc.; Quality Professional Nursing of Florida, Inc.; and P.D.Q. Nurse, Inc. Defendants-appellees include the SFHA, twelve (12) Palm Beach County hospitals, and four (4) remaining agency defendants (four (4) agencies settled with plaintiffs before final disposition in the district court). 7 Claims of fraud, civil theft, and false representation against All Care and Monahan were dismissed before trial. 8 evidentiary hearing. All Care Nursing Serv., Inc. v. Bethesda

Memorial Hosp., Inc., 887 F.2d 1535 (11th Cir. 1989). The request

for an injunction was never reinstated.

After a four-week jury trial, a verdict was entered in favor

of defendants on all relevant claims. Plaintiffs filed motions for

new trial, for judgment as a matter of law, and for amendment

of the pleadings to conform with the evidence. All these

motions were denied by the district court; and we now affirm

those denials.8 Plaintiffs-appellants also appeal the antitrust

and RICO counterclaim verdicts against them; but we affirm

those judgments, too.

Discussion

I. Federal and State RICO Claims 8 Also affirmed is the district court’s decision in the bench trial of Defendant High Tech’s Lanham Act counterclaim. 9 Plaintiffs-appellants All Care and Monahan argue that the

Florida and Federal RICO claims against them are barred by the

economic-loss rule. That rule provides that “parties to a

contract can only seek tort damages if conduct occurs that

establishes a tort distinguishable from or independent of [the]

breach of contract.” Jones v. Childers, 18 F.3d 899, 904 (11th

Cir. 1994) (citations and quotations omitted). The rule is based

upon the idea that “contract principles are more appropriate

than tort principles for resolving economic loss claims.”

Florida Power & Light Co. v. Westinghouse Elec. Corp., 510

So.2d 899, 901 (Fla. 1987).

Neither All Care nor Monahan can use the economic-loss

rule to escape liability under the federal RICO statutes.9 We Defendants argue that Monahan cannot 9

be afforded the benefit of the economic-loss rule because she, individually, entered into 10 have already ruled that Florida’s economic-loss rule does not

bar a plaintiff from “bringing a [federal] RICO action where a

breach of contract claim also exists . . . . many RICO cases

no contract with the defendant hospitals: she lacked privity of contract. All contracts were between her agency, All Care, and the hospitals. Because we conclude that the economic-loss rule does not bar RICO claims, state or federal, we need not decide this question. But, the Florida Supreme Court has held, at least under one set of facts, that privity is not required for the economic-loss rule to apply. See Casa Clara Condominium Ass’n v. Charley Toppino and Sons, Inc., 620 So.2d 1244 (Fla. 1993); see also Hoseline, Inc. v. U.S.A. Diversified Products, Inc., 40 F.3d 1198, 1200

(11th Cir. 1994) (where this court applied Casa Clara to make “meritless” a claim that the rule does not bar tort claims between parties who lack contractual privity). 11 involve contract disputes.” Arabian American Oil Co. v.

Scarfone, 939 F.2d 1472, 1478 (11th Cir. 1991).

About the state RICO claims, Florida’s RICO statutes have

consistently been interpreted using federal RICO claims cases.

No reason has been presented to us to justify applying the

economic-loss rule differently to RICO claims made under state

and federal RICO statutes.10 Thus, the economic-loss rule does

not bar these claims.

II. Antitrust Claims 10 Plaintiffs-appellants also challenged the RICO counterclaims on another ground: that reliance on the alleged misrepresentations made by All Care and Monahan was not proved by defendants. Reliance is only an element of a RICO claim to the extent that a RICO plaintiff must prove he was injured by reason of the RICO defendant’s deception and fraud. Pelletier v. Zweifel, 921 F.2d 1465, 1499 (11th Cir. 1991). But, no argument is made by the plaintiffs-appellants that injury was inadequately shown. So, lack of reliance does not require reversal on this claim. 12 Plaintiffs-appellants argue that the formation and operation

of the Palm Beach County PPP is a violation of the antitrust

laws of the Sherman Act and Florida Statutes §§ 542.18 and

542.19,11 prohibiting restraints on trade. The Sherman Act, in

relevant part, sets out these rules:

Section 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. . . .

11 Federal and Florida antitrust laws are analyzed under the same rules and case law. Fla. Stat. § 542.32 (“It is the intent of the Legislature that, in construing this chapter, due consideration and great weight be given to the interpretations of the federal courts relating to comparable federal antitrust statutes.”); see also St. Petersburg Yacht Charters, Inc. v. Morgan Yacht, Inc., 457 So.2d 1028, 1032 (Fla. Dist. Ct. App. 1984) (“[T]he Florida legislature has, in effect, adopted as the law of Florida the body of antitrust law developed by the federal courts under the Sherman Act.”); Fla. Stat. §§ 542.16 (Florida antitrust laws complement federal antitrust laws), 542.18 (analogous to § 1 of the Sherman Act). So, for purposes of this opinion discussion of the law under the Sherman Act is equally applicable to the plaintiffs-appellants’ state antitrust claims. 13 Section 2: Every person who shall monopolize, or attempt to monopolize, or combine or conspire . . . to monopolize . . . shall be deemed guilty of a felony.

15 U.S.C. § 1 ; 15 U.S.C. § 2 .

Despite the expansive language of the statute, the

Supreme Court has interpreted this statute to prohibit only

“unreasonable” restraints on trade. “A restraint may be

violative of the Sherman Act because it is solely a naked

restraint of trade so offensive to competition as to be

unreasonable per se, or because it runs afoul of the more

detailed rule of reason inquiry.” Retina Assocs., P.A. v.

Southern Baptist Hosp. of Florida, Inc., 105 F.3d 1376 , 1380 (11th

Cir. 1997).

Some acts have been said to be so facially anticompetitive

that by their very nature they are deemed unreasonable and,

thus, per se violative of antitrust laws. These “practices are ‘so

plainly anticompetitive,’ and so often ‘lack . . . any redeeming

virtue,’ that they are conclusively presumed illegal without 14 further examination under the rule of reason . . . .” Broadcast

Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1,

7-8 , 99 S.Ct. 1551, 1556 (1979) (internal citations omitted)

(“BMI”). Price fixing, horizontal market divisions, tying

arrangements, and group boycotts have emerged as practices

that are generally illegal per se. See National Bancard Corp.

(NaBanco) v. Visa U.S.A., Inc., 779 F.2d 592, 598 (11th Cir. 1986)

(citing United States v. Parke, Davis & Co., 362 U.S. 29 , 80 S.Ct.

503 , 4 L.Ed.2d 505 [1960]); State Oil Co. v. Khan, 118 S.Ct. 275

(1997); International Salt Co. v. United States, 332 U.S. 392 , 68

S.Ct. 12 , 92 L.Ed. 20 (1947); Fashion Originators’ Guild of

America v. FTC, 312 U.S. 457 , 61 S.Ct. 703 , 85 L.Ed. 949 (1941).

“But easy labels do not always supply ready answers.”

BMI, 441 U.S. at 8 , 99 S.Ct. at 1556 . Since the emergence of

these per se categories, we have stressed that “whether the

ultimate finding is the product of a presumption or actual

market analysis, the essential inquiry remains the same -- 15 whether or not the challenged restraint enhances competition.”

National Bancard Corp., 779 F.2d at 598 (citation and quotation

omitted). The Supreme Court, as well, has refused to force

various practices into “pigeonhole[s] and [to invoke] the per se

rule.” FTC v. Indiana Federation of Dentists, 476 U.S. 447, 458 , 106 S.Ct. 2009, 2018 (1986).

A “rule of reason” is generally applied to determine what

acts are permissible. Standard Oil Co. of New Jersey v. United

States, 221 U.S. 1, 60 (1911). Thus, a presumption exists that

the circumstances of a case will be looked at in the light of the

rule of reason standard and will not be deemed per se

unreasonable. Business Electronics Corp. v. Sharp Electronics

Corp., 485 U.S. 717, 723, 726 (1988). But, there are no bright

lines. “The decision to apply the per se rule [instead of the rule

of reason] turns on ‘whether the practice facially appears to be

one that would always or almost always tend to restrict

competition and decrease output . . . or instead one designed 16 to ‘increase economic efficiency and render markets more,

rather than less, competitive.’” Northwest Wholesale Stationers,

Inc. v. Pacific Stationery and Printing Co., 472 U.S. 284, 289-90 , 105 S.Ct. 2613, 2617 (1985).

In Northwest, the Supreme Court observed that what

activities might fall into a per se category is “far from certain.”

Id. at 294 , 105 S.Ct. at 2619 . Considerable inquiry into the

market conditions and market power of the defendant is often

necessary before conduct can be presumed to be

anticompetitive. Id. at 296 , 105 S.Ct. at 2620-21 (addressing

group boycotts).

Plaintiffs-appellants claim that the PPP’s arrangement is

per se illegal as both price fixing and as a group boycott. Thus,

plaintiffs-appellants have the burden to make a threshold

showing that the PPP falls into one of these forbidden

categories. See Id. at 298 , 105 S.Ct. at 2621 . In this case,

plaintiffs-appellants allege that, because price bids were a 17 consideration in determining which temporary nurse agencies

would become preferred providers, this conduct falls into the

forbidden category of price fixing. They also claim that the

exclusion of the nonpreferred agencies from the PPP amounts

to a group boycott.

The decision whether the PPP established by defendants-

appellees amounts to either a price fix or a group boycott,

deserving of per se treatment, determines the antitrust issue on

appeal.12 A. Per se Violations 12 If we decide the PPP is deserving of per se treatment the case ends; plaintiffs-appellants must win. But if we decide that conduct such as the establishment of the PPP does not rise to the level of anticompetitiveness necessary to hold it per se illegal, the rule of reason applies; and we will defer to the determination of the jury -- that plaintiffs-appellants failed to establish the relevant market in which to judge the PPP’s reasonableness. 18 1. Price Fixing That the PPP has some impact on the prices of obtaining

temporary nurses is undisputed. That price fixing is equally

violative of antitrust laws whether it is done by buyers or sellers

is also undisputed. Mandeville Island Farms, Inc. v. American

Crystal Sugar Co., 68 S.Ct. 996, 1005-06 (1948). And, it is no

excuse that the price “fixed” is reasonable. FTC v. Superior

Court Trial Lawyers Ass’n, 110 S.Ct. 768, 775 (1990). But

whether the per se rule should apply “is not a question simply

of determining whether two or more potential competitors have

literally ‘fixed’ a ‘price.’” BMI, 441 U.S. at 9 , 99 S.Ct. at 1556-57 .

Plaintiffs-appellants argue that the intent of the PPP was

to stabilize prices and that such intent makes this practice a per

se violation. But anticompetitive effects -- not intent -- is the

focal point of antitrust legislation. The question is not did

defendants intend to fix prices, but instead whether the PPP did 19 so. In defining “price fixing” the Supreme Court wrote in these

terms:

That price-fixing includes more than the mere establishment of uniform prices is clearly evident . . . . [P]rices are fixed . . . if the range within which purchases or sales will be made is agreed upon, if the prices paid or charged are to be at a certain level or on ascending or descending scales, if they are to be uniform . . . . They are fixed because they are agreed upon.

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222-23

(1940). In forming the PPP, the hospitals, among themselves,

never agreed to a uniform price, to an acceptable price range,13

or to a scale for determining price.

The PPP has an impact on price; all preferred agencies

contracting with the hospitals will, to some degree, be tied into 13 That the SFHA -- when it requested bids -- suggested a price range to the participating agencies does not create an agreement on the prices they would accept. As shown by the accepted bids, prices outside the range were acceptable. 20 a set price for their services. But this point of law must be

remembered: “Not all arrangements among actual or potential

competitors that have an impact on price are per se violations

of the Sherman Act or even unreasonable restraints.” BMI, 441

U.S. at 23 , 99 S.Ct. at 1564 . And, it cannot be forgotten that

market fluctuations could result in a preferred agency’s

exercise of the escape clause -- allowing that agency to reenter

the market free to charge the prices it chooses. Most

important, this case involves lots of distinct contracts. A

pricing agreement of some kind is necessary in the contracting

for goods and services; and competitive bidding is an

acceptable way to decide with whom the hospitals wish to

contract.

Earlier Supreme Court cases were faced with more direct

price fixing, which led to the per se categorization of such

schemes. In the context of a blatant agreement to fix prices, 21 [i]t makes no difference whether the motives of the participants are good or evil; whether the price fixing is accomplished by express contract or by some more subtle means; whether the participants possess market control; whether the amount of interstate commerce affected is large or small; or whether the effect of the agreement is to raise or to decrease prices.

United States v. McKesson & Robbins, Inc., 351 U.S. 305, 310

(1956). But we do not have an agreement to fix prices in this

case: no prices were preset for nursing services.

The Supreme Court has recently taken another step away

from per se treatment, particularly in vertical price fixing

arrangements.14 See State Oil Co. v. Khan, 118 S.Ct. 275 (1997).

Vertical price fixing is no longer a per se violation. Id. at 278 .

The key to per se treatment is whether the conduct is of

the kind that can only be anticompetitive. But, the PPP, 14 The alleged attempt to fix prices by the hospitals’ agreement with each other would be horizontal -- an agreement among competitors. The alleged attempt to fix prices by the hospitals’ agreements with the preferred agencies would be vertical and is not per se illegal after State Oil Co. v. Kahn. 22 arranged by the SFHA and the Palm Beach County hospitals, is

not inherently an anticompetitive practice. No temporary

nursing agency was precluded from competing to become a

preferred agency. Also, all agencies are still able to provide

nurses to medical facilities other than hospitals and even to

hospitals should the need for nurses not be met by the

preferred agencies. Although the PPP may stabilize prices to

some degree, it is not the kind of “stabilization” that can be

viewed as price fixing, especially when the escape clauses in

the contracts are taken into account. These escape clauses

allow the market and not the SFHA to be the ultimate

decisionmaker for each hospital and each agency on the issues

of price, demand, supply, and terms of dealing.

2. Group Boycotts 23 The same principles apply to a consideration of application

of the per se rule whether the act complained of is labeled price

fixing or a group boycott. “[T]he recent jurisprudence of the

Supreme Court and of the Court of Appeals of this Circuit

cautions against the haphazard expansion of the ‘group boycott

label’ and the concomitant imposition of per se liability.”

Retina Assocs., 105 F.3d at 1381. “Not all concerted refusals to

deal are predominantly anticompetitive.” Northwest, 472 U.S.

at 298 , 105 S.Ct. at 2621 . In cases of group boycotts where the

per se rule has been applied, “the boycott often cut[s] off

access to a supply, facility, or market necessary to enable the

boycotted firm to compete, . . . and frequently the boycotting

firms possessed a dominant position in the relevant market.”

Id. at 294 , 105 S.Ct. at 2619 (emphasis added).

In dealing with group boycott situations, market analysis

has found its way into the determination of whether a given

practice should be per se illegal. No longer is relevant market 24 a factor only after it has been decided that the rule of reason

applies. “Unless the cooperative possesses market power or

exclusive access to an element essential to effective

competition, the conclusion that [the conduct] is virtually

always likely to have an anticompetitive effect is not

warranted.” Northwest, 472 U.S. at 296 .

In this case, no refusal to deal has been shown. All

agencies were able to participate in the bidding to become

preferred providers, and generally a hospital will still deal with

any nursing agency when the preferred agencies with which the

hospital has contracted for nursing services fail to meet its

needs. The record shows, in fact, that more than a trifling

portion of hospital nursing business in Palm Beach County

continued to go to nonpreferred agencies after the PPP was in

operation. Also, due to the rise in HMOs, home care, and

similar trends in the medical world, facilities other than

hospitals provide the market, the supply, and the facilities 25 necessary for nonpreferred agencies to compete with each

other and with preferred agencies in the marketplace.

Per se treatment has been given to those practices which

history has shown have only anticompetitive effects.

“[A]nalyzing this case under the per se rubric would remain

inappropriate absent some demonstration that the practice at

issue historically leads to anticompetitive effects in the

market.” Retina Assocs., 105 F.3d at 1381. No history of this

kind seems to exist for health-care preferred-provider programs

materially similar to what we have before us now.

We conclude, based upon undisputed facts, that the

practice of this PPP is not deserving of per se treatment and

was properly evaluated under the rule of reason.

B. Rule of Reason 26 The rule of reason requires “the factfinder [to weigh] all of

the circumstances of the case in deciding whether a restrictive

practice should be prohibited as imposing an unreasonable

restraint on competition.” Continental T.V., Inc. v. GTE Sylvania

Inc., 433 U.S. 36, 49 (1977). The rule of reason should be

applied to practices designed to “increase economic efficiency

or render markets more, rather than less, competitive.” BMI, 441 U.S. at 19-20 ; see also Northwest, 472 U.S. at 289-90 .

“[T]o satisfy the rule of reason, the plaintiff must prove

that the [conduct] had an adverse effect on competition.”

Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1392 (10th Cir. 1992).

But, competition occurs only in a market. Thus, “before we can

reach the larger question of whether [defendants] violated any

of the antitrust laws, we must confront the threshold problem

of defining the relevant market.” Thompson v. Metropolitan

Multi-List, Inc., 934 F.2d 1566, 1572 (11th Cir. 1991).15 15 Because this case is subject to the rule of reason and 27 Interrogatories went to the jury.16 The jury found that

plaintiffs-appellants failed to establish the relevant market.

Because no definable market was proved, plaintiffs could show

no adverse effect on competition. Plaintiffs-appellants try to

debate the required showing of market power. But their

argument is based upon per se treatment of the antitrust claim.

Because we have decided, as did the district court, that the PPP

triggers no per se analysis, relevant market was critical to

plaintiffs-appellants’ claims.

because of the importance of relevant market and market power in evaluating the reasonableness of a purported restraint, the district court’s jury instructions and interrogatories directing that the jurors must find for defendants if plaintiffs failed to establish the relevant market were proper applications of the law governing this case. 16 The interrogatories, among other things, directed the jury to find for the defendants if the plaintiffs did not establish the necessary relevant market. 28 The jury found that no relevant market was shown; and we

will reverse the jury’s determination on this factual issue only

if it is clearly erroneous. United States v. E.I. du Pont de

Nemours & Co., 351 U.S. 377, 381 , 76 S.Ct. 994, 999 (1956). We

cannot say the finding that no relevant market was established

is clearly erroneous. The failure to establish the relevant

market (either by product or geography) was fatal to plaintiffs-

appellants’ antitrust claims. So, we accept the jury verdict

against them.

AFFIRMED.

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