The opinion of the court was delivered by: Harry D. Leinenweber, United States District Court
MEMORANDUM OPINION AND ORDER
Plaintiff Menasha Corporation ("Menasha") brought this action alleging
that Defendants News America Marketing In-Store, Inc. and News America
Marketing In-Store Services, Inc. (collectively referred to as "News
America") violated federal and state antitrust laws by entering into
exclusive contracts with retail chains for the placement of at-shelf
coupon dispensers and by exercising its monopoly power in the market for
at-shelf coupon dispensers to foreclose competition. Now before the Court
are News America's Motion for Summary Judgment, Motion In Limine to
Exclude the Report and Testimony of James Tenser and the Opinions of Dr.
James Langenfeld That Rely on Tenser's Survey Research, Motion to Strike
Menasha's Responses to Defendants' Local Rule 56.1 Statement of Facts,
and Motion to Strike Menasha's Statement of Facts under Local Rule 56.1.
Also, before the Court is Menasha's Motion In Limine to Exclude the
Relevant Market Opinions of Drs. Rapp and Stiroh.
Manufacturers of packaged goods rely on a variety of mediums to
advertise and promote their products to consumers. One of the methods
manufacturers sometimes choose to promote their products is the placement
of a coupon dispenser next to the product on retail store shelves
(referred to as "at-shelf coupon dispensers"). An at-shelf coupon
dispenser is not the only method of placing coupons in proximity to
product, other methods include "on-pack coupons" attached directly to the
product, "tear pad coupons" affixed to the shelf near the product, and
in-store demonstrations, at which demonstrators distribute coupons to
consumers along with samples of the product. In addition, manufactures
may choose from a variety of other in-store marketing vehicles to target
consumers — shopping cart ads, shelf signs, manufacturers'
displays, and supermarket flyers to name a few. Menasha and News America
are both in the business of selling such in-store marketing products to
manufacturers of packaged goods.
At issue in this case is one particular in-store marketing product:
at-shelf coupon dispensers. News America sells an at-shelf coupon
dispenser consisting. of a reusable plastic container with a blinking red
light that contains manufacturers' coupons for consumer packaged goods.
News America sells at-shelf coupon dispensers directly to manufacturers,
typically guaranteeing placement in particular retail chains. News
America also offers manufacturers the guarantee of "category
exclusivity," meaning that the manufacturer is assured that no other
at-shelf coupon dispenser in a specific product category will be placed
in particular retail stores during an agreed-upon period. News America is
able to guarantee category exclusivity to manufacturers by entering into
multi-year contracts with retail chains under which News America is
granted the exclusive right to place at-shelf coupon dispensers
in the chain's stores. In exchange, News America offers the retailers a
percentage of the revenues News America derives from the sale of at-shelf
coupon dispensers to manufactures for placement in that chain's stores.
Menasha sells manufacturers a disposable at-shelf coupon dispenser made
of paper. However, adhering to a different business model from that of
News America, Menasha does not promise manufacturers category
exclusivity, nor does Menasha offer to enter into revenue sharing
agreements with retail chains in exchange for exclusive access to their
stores. In recent years, News America has enjoyed great success in
expanding its business in at-shelf coupon dispensers, while Menasha's
expectations for the growth of its at-shelf coupon business have not been
Menasha believes that News America has violated federal and state
antitrust laws by entering into exclusive contracts with retail chains
for the placement of at-shelf coupon dispensers. Menasha also contends
that News America exercises monopoly power in the market for at-shelf
coupon dispensers, and that News America has used its market power to
foreclose competition. Accordingly, Menasha brought the present action
alleging unreasonable restraint of trade in violation of Section 1 of the
Sherman Act (Counts I and II), monopolization and attempted
monopolization in violation of Section 2 of the Sherman Act (Counts III
and IV), monopolization and attempted monopolization in violation of the
Illinois Antitrust Act (Counts V and VI), restraint of trade in violation
of the Illinois Antitrust Act (Count VII), "inducing refusals to deal" in
violation of the Illinois Antitrust Act (Count VIII), unfair methods of
competition (Count IX), and tortious interference with business
relationships (Count X). Now before the Court are News America's Motion
for Summary Judgment, Motion in Limine to Exclude the Report and
Testimony of James Tenser and the Opinions of Dr. James Langenfeld That
Rely on Tenser's Survey Research, Motion to Strike Menasha's Responses to
Defendants' Local Rule 56.1 Statement of Facts, and Motion to Strike
Menasha's Statement of Facts Under Local Rule 56.1. Also, before the
Court is Menasha's Motion In Limine to Exclude the Relevant Market
Opinions of Drs. Rapp and Stiroh. The Court will begin by addressing the
parties' motions to strike and motions in limine.
Menasha's Statement of Material Facts
News America requests that the Court strike in its entirety the
document entitled "Menasha's Statement of Material Facts Under L.R.
56.1," which Menasha submitted as a response to the Statement of Material
Facts accompanying News America's Motion for Summary Judgment. Menasha
states that this document was "submitted in reply to [News America's)
Statement as a total replacement." (emphasis added). But, as News America
correctly points out, Local Rule 56.1 in no way authorizes a "total
replacement" in response to a movant's statement of facts.
Under Local Rule 56.1(a)(3), a party moving for summary judgment must
submit a statement, of material facts in the form of short numbered
paragraphs supported by specific references to the factual record. News
America submitted such a statement. Under Local Rule 56.1(b)(3), two
types of submissions are permitted in response to a moving party's Rule
56.1 statement of facts: (1) a response to each numbered paragraph
supported by references to the record, and (2) a statement of short
numbered paragraphs setting forth additional facts that require denial of
summary judgment, supported by citations to the record. L.R.
56.1(b)(3)(A)-(B). The "total replacement" submitted by Menasha
completely disregards these requirements — it is neither a response
America's Statement of Material Facts nor is it a true statement
of additional facts as contemplated by Local Rule 56.1.
Local Rule 56.1 serves the important function of structuring the
summary judgment process so as to "assist the court by organizing the
evidence, identifying undisputed facts, and demonstrating precisely how
each side propose[s] to prove a disputed fact with material evidence."
Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999). By filing an
unauthorized "alternative" statement of facts, Menasha's counsel
seriously hindered the Court's ability to perform its task of identifying
those facts actually in dispute. See Bordelon v. Chicago School Reform
Bd. of Trustees, 233 F.3d 524, 527-28 (7th Cir. 2000). However, as News
America has already gone to the trouble of responding to this document,
the Court will treat this submission a statement of additional facts.
Nevertheless, in ruling on News America's Motion for Summary Judgment,
the Court will disregard all argumentative, conclusory, unsupported or
otherwise non-conforming portions of Menasha's "Statement of Material
Facts Under L.R. 56.1."
Menasha's Response to News America's Statement of Facts
News America also requests that the Court strike Menasha's Response to
News America's Rule 56.1 Statement of Facts. News America has taken great
pains to meticulously detail the numerous shortcomings in Menasha's
Response. News America correctly points out that Menasha's Response is
replete with improper argument, general denials, responses unsupported by
citations to the record, and citations to large documents with no guide
as to where in the document the purported fact is to be found. Although
it is within this Court's discretion to enforce Local Rule 56.1
strictly, Bordelon, 233 F.3d at 527, the Court declines to impose the
harsh penalty of striking Menasha's Response in its entirety.
Nevertheless, in reaching its ruling, the Court will disregard all
argumentative, conclusory, or unsupported portions of Menasha's Response
to News America's Rule, 56.1 Statement of Facts.
News America and Menasha have filed dueling motions to exclude
the other's expert opinion defining the relevant antitrust market
in this case. The Court will begin with News America's Motion to
Exclude the Report and Testimony of James Tenser and the ...