PALMER ET AL. v. BRG OF GEORGIA, INC., ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
Decided November 26, 1990
Respondents, BRG of Georgia, Inc. (BRG), and Harcourt Brace Jovanovich Legal and Professional Publications (HBJ), entered into an agreement under which BRG was given an exclusive license to market HBJ's tradename; HBJ agreed not to compete with BRG in Georgia, and BRG agreed not to compete with HBJ outside the State; and HBJ was entitled to receive $100 per student enrolled by BRG and 40% of revenues over $350. Immediately after the parties entered into the agreement, the price for BRG's course increased from $150 to $400. Petitioners, who contracted to take BRG's course, filed suit, contending that BRG's price was enhanced by reason of the agreement in violation of 1 of the Sherman Act. The District Court held that the agreement was lawful, and the Court of Appeals affirmed.
The agreement between HBJ and BRG was unlawful on its face. The agreement's revenue-sharing formula, coupled with the immediate price increase, indicate that the agreement was "formed for the purposes and with the effect of raising" the bar review course's prices in violation of the Sherman Act. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 . Agreements between competitors to allocate territories to minimize competition are illegal, United States v. Topco Associates, Inc., 405 U.S. 596 , regardless of whether the parties split a market within which they both do business or merely reserve one market for one and another for the other.
Certiorari granted; 874 F.2d 1417 and 893 F.2d 293, reversed and remanded.
In preparation for the 1985 Georgia Bar Examination, petitioners contracted to take a bar review course offered by respondent BRG of Georgia, Inc. (BRG). In this litigation, they contend that the price of BRG's course was enhanced by reason of an unlawful agreement between BRG and respondent Harcourt Brace Jovanovich Legal and Professional Publications (HBJ), the Nation's largest provider of bar review [498 U.S. 46, 47] materials and lecture services. The central issue is whether the 1980 agreement between respondents violated 1 of the Sherman Act. 1
HBJ began offering a Georgia bar review course on a limited basis in 1976, and was in direct, and often intense, competition with BRG during the period from 1977-1979. BRG and HBJ were the two main providers of bar review courses in Georgia during this time period. In early 1980, they entered into an agreement that gave BRG an exclusive license to market HBJ's material in Georgia and to use its trade name "Bar/Bri." The parties agreed that HBJ would not compete with BRG in Georgia and that BRG would not compete with HBJ outside of Georgia. 2 Under the agreement, HBJ received $100 per student enrolled by BRG and 40% of all revenues over $350. Immediately after the 1980 agreement, the price of BRG's course was increased from $150 to over $400.
On petitioners' motion for partial summary judgment as to the 1 counts in the complaint and respondents' motion for summary judgment, the District Court held that the agreement [498 U.S. 46, 48] was lawful. The United States Court of Appeals for the Eleventh Circuit, with one judge dissenting, agreed with the District Court that per se unlawful horizontal price fixing required an explicit agreement on prices to be charged or that one party have the right to be consulted about the other's prices. The Court of Appeals also agreed with the District Court that to prove a per se violation under a geographic market allocation theory, petitioners had to show that respondents had subdivided some relevant market in which they had previously competed. 874 F.2d 1417 (1989). 3 The Court of Appeals denied a petition for rehearing en banc that had been supported by the United States. 893 F.2d 293 (1990). 4
In United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940), we held that an agreement among competitors to engage in a program of buying surplus gasoline on the spot market in order to prevent prices from falling sharply was unlawful, even though there was no direct agreement on the actual prices to be maintained. We explained that [u]nder the Sherman Act, a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se. Id., at 223. See also Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643 (1980) (per curiam); National Society of Professional Engineers v. United States, 435 U.S. 679 (1978). [498 U.S. 46, 49]
The revenue-sharing formula in the 1980 agreement between BRG and HBJ, coupled with the price increase that took place immediately after the parties agreed to cease competing with each other in 1980, indicates that this agreement was "formed for the purpose and with the effect of raising" the price of the bar review course. It was, therefore, plainly incorrect for the District Court to enter summary judgment in respondents' favor. 5 Moreover, it is equally clear that the District Court and the Court of Appeals erred when they assumed that an allocation of markets or submarkets by competitors is not unlawful unless the market in which the two previously competed is divided between them.
In United States v. Topco Associates, Inc., 405 U.S. 596 (1972), we held that agreements between competitors to allocate territories to minimize competition are illegal:
The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 7
It is so ordered.
JUSTICE SOUTER took no part in the consideration or decision of this case.
[ Footnote 2 ] The 1980 agreement contained two provisions, one called a "Covenant Not to Compete" and the other called "Other Ventures." The former required HBJ not to "directly or indirectly own, manage, operate, join, invest, control, or participate in or be connected as an officer, employee, partner, director, independent contractor or otherwise with any business which is operating or participating in the preparation of candidates for the Georgia State Bar Examination." Plaintiffs' Motion for Partial Summary Judgment, Attachment E, at 10. The latter required BRG not to compete against HBJ in states in which HBJ currently operated outside the state of Georgia. Id., at 15.
[ Footnote 3 ] In dissent, Judge Clark explained that, in his view, HBJ and BRG were capable of engaging in per se horizontal restraints because they had competed against each other, and then had joined forces. He believed the District Court's analysis was flawed because it had failed to recognize that the agreements could be price-fixing agreements even without explicit reference to price, and because it had failed to recognize that allocation, rather than subdivision, of markets could also constitute a per se antitrust violation.
[ Footnote 4 ] The United States, as amicus curiae, had urged the court to adopt the views of the dissent.
[ Footnote 7 ] In 1982, in connection with the settlement of another lawsuit, respondents made certain changes in their arrangement. Because the District Court found that the 1980 agreement did not violate 1 of the Sherman Act, it did not address whether the 1982 modified agreement constituted a withdrawal from or abandonment of the conspiracy. In United States v. Kissel, 218 U.S. 601 (1910) we held that antitrust conspiracies may continue in time beyond the original conspiratorial agreement until either the conspiracy's objectives are abandoned or succeed. Id., at 608-609. Thus, it is an unsettled factual issue whether the conspiratorial objectives manifest in the 1980 agreement between HBJ and BRG have continued in spite of the 1982 modifications.
JUSTICE MARSHALL, dissenting.
Although I agree that the limited information before us appears to indicate that the Court of Appeals erred in its decision below, I continue to believe that summary dispositions deprive litigants of a fair opportunity to be heard on the merits and significantly increase the risk of an erroneous decision. See Smith v. Ohio, 494 U.S. 541, 544 (1990) (MARSHALL, J., dissenting); Pennsylvania v. Bruder, 488 U.S. 9, 11 -12 (1988) (MARSHALL, J., dissenting); Rhodes v. Stewart, 488 U.S. 1, 4 -5 (1988) (MARSHALL, J., dissenting); Buchanan v. Stanships Inc., 485 U.S. 265, 269 (1988) [498 U.S. 46, 51] (MARSHALL, J., dissenting); Commissioner v. McCoy, 484 U.S. 3, 7 -8 (1987) (MARSHALL, J., dissenting). I therefore dissent from the Court's decision today to reverse summarily the judgment below. [498 U.S. 46, 52]