Epicenter Recognition, Inc. v. Jostens, Inc.

MEMORANDUM *

Jostens, Inc. appeals the district court’s decision that it violated 15 U.S.C. § 2 by monopolizing trade in high school graduation products, and also violated California Business and Professions Code § 17200. We reverse.

(1) Monopoly. In order to prevail on a monopolization claim, the plaintiff, here Epicenter Recognition, Inc., had to show, inter aha, that Jostens possessed monopoly power in the relevant market. See Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195 , 1202 (9th Cir.1997). That, in turn, means that Jostens must *911 have had the “ ‘power to control prices or exclude competition.’ ” Id. (citation omitted). That is, there must be either direct or circumstantial evidence of monopoly power. See Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1434 (9th Cir.1995); Oahu Gas Serv., Inc. v. Pac. Res., Inc., 838 F.2d 360, 363-67 (9th Cir.1988).

There is no direct evidence on this record. See id.; Forsyth v. Humana, Inc., 114 F.3d 1467, 1475 (9th Cir.1997). Therefore, we must turn to the consideration of circumstantial evidence. To demonstrate monopoly power by that route, it was necessary for Epicenter to: “(1) define the relevant…

dissenting.

I respectfully dissent from my colleagues’ decision to reverse the district court’s through and reasonable decision.

In overturning the district court’s decision, my colleagues have disregarded countless findings of fact — all, of course, made by the decisionmaker best positioned to make sense of a complex morass of often-conflicting evidence. A district court’s findings of fact should not be disturbed unless we have a “definite and firm conviction that a mistake has been committed.” Allen v. Iranon, 283 F.3d 1070, 1076 (9th Cir.2002). Indeed, “[wjhere there are *913 two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Cree v. Flores, 157 F.3d 762, 769 (9th Cir.1998). It seems plain to me that there are two permissible views of the evidence here.

The issue on which my colleagues and I seem to disagree 1 is whether the district court erred in finding that Jostens’ use of Total Service Program agreements (TSPs) acted as sufficient barriers to entry to satisfy the third prong of the “circumstantial evidence” test established by Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421 (9th Cir.1995). That case…