United States District Court, Northern District of Illinois, E.D
June 3, 1983
BESSER PUBLISHING CO., PLAINTIFF,
PIONEER PRESS, INC., DEFENDANT.
The opinion of the court was delivered by: Leighton, District Judge.
This action arises out of the purchase by defendant Pioneer
Press of all of the assets of Pickwick Publishing Co., the
owner and operator of a chain of suburban weekly newspapers.
Plaintiff Besser Publishing owns and operates a suburban weekly
which is distributed in Niles and Morton Grove. Besser alleges
that defendant's acquisition of Pickwick violates Section 7 of
the Clayton Act, 15 U.S.C. § 18; and that its sale of
advertising at special rates violates Sections 1 and 2 of the
Sherman Act, 15 U.S.C. § 1 and 2.
The cause is before the court on Pioneer's motion to dismiss or
in the alternative for a more definite statement. Defendant
contends that Besser has failed to adequately allege an
essential element of its anti-trust claims — the relevant
geographic and product markets. The court, having reviewed the
complaint and the parties' submissions, agrees and accordingly,
grants the motion to dismiss, with leave to amend.
Plaintiff's complaint is in three counts. Count I alleges
discriminatory and predatory pricing in violation of Section 7
of the Clayton Act; Count II, that the acquisition unreasonably
restrains competition in violation of Section 1 of the Sherman
Act; Count III, that defendant has attempted to monopolize,
conspired to monopolize and has monopolized the relevant
It is well established that a determination of the relevant
product and geographic markets is essential to all but the
claim of conspiracy to monopolize. United States v. Marine
Bancorporation, 418 U.S. 602, 618, 94 S.Ct. 2856, 2868, 41
L.Ed.2d 978 (1974); Brown Shoe Co. v. United States,
370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510(1962);
Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268 (7th Cir.
1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d
461 (1982); Mullis v. Arco Petroleum Corp., 502 F.2d 290 (7th
Cir. 1974). However, it is not clear whether a relevant market
definition is required for a conspiracy to monopolize claim.
Plaintiff, citing U.S. v. National City Lines, 186 F.2d 562
(7th Cir. 1951) and Tire Sales Corp. v. Cities Service Oil
Co., 410 F. Supp. 1222 (N.D.Ill. 1976), argues that it is not.
But Judge Grady in Tire Sales, noted that the reasoning in
National City Lines is troublesome, and only reluctantly
followed its holding. Tire Sales, 410 F. Supp. at 1232.
Further, at least one circuit has abandoned the distinction
between a claim of conspiracy to monopolize and a claim of
attempt to monopolize; it has required a market definition for
both. Bill Beasley Farms v. Hubbard Farms, 695 F.2d 1341
(11th Cir. 1983); Sulmeyer v. Coca Cola Co., 515 F.2d 835
(5th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148,
47 L.Ed.2d 341 (1976). In the present case, the conspiracy to
monopolize claim is just a small subsection of plaintiff's
Count III; it was not intended, in the court's view, to stand
alone and cannot now be used by plaintiff to defeat the
defendant's motion to dismiss.
The geographic market alleged by plaintiff is defined as the
north, northwestern, and western suburbs of Chicago. Plaintiff
argues that it is clear which suburbs are included in this
definition. However, it is not clear to the court; and
obviously, it is not clear to defendants exactly what areas the
definition includes. The problem is further complicated by the
fact that plaintiff's newspaper is distributed in only two
northwestern suburbs. It is hard to see how plaintiff could be
competing for advertising in all of the north, northwestern and
western suburbs. Generalities such as "less-than-metropolitan
area-wide market" are simply too vague to provide a sufficient
definition of the relevant geographic markets involved in this
With respect to the product market, plaintiff alleges that it
is the "market or
submarket for local and weekly print advertising". Defendant
contends that the term "local" is unclear and susceptible to
various interpretations. Plaintiff responds by stating that the
meaning of local is obvious. Again, the court must note that
while it is obvious to plaintiff, it remains unclear to the
defendant. Local could mean advertising from local merchants or
advertising aimed at local consumers. Defendant should not have
to make assumptions regarding the meaning of definitions
contained in plaintiff's complaint, particularly where, as
here, the relevant market definitions are essential elements of
plaintiff's claims. For these reasons, the motion to dismiss is
granted. Plaintiff is given leave to file an amended complaint
within 21 days.
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