207 F.3d 1039 (8th Cir. 2000), 98-3732, Concord Boat Corp. v Bruinswick Corp.

Docket Nº:98-3732, 98-4042
Citation:207 F.3d 1039
Party Name:CONCORD BOAT CORPORATION; GALAXIE BOAT WORKS, INC.; SEA ARROW MARINE, INC.; MARIAH BOATS, INC.; HARRIS KAYOT, INC.; ARMADA MANUFACTURING COMPANY, INC.; BAHA CRUISERS/FRP INDUSTRIES, INC.; CAMPION MARINE, INC.; CARAVELLE BOATS; KCS INTERNATIONAL/CRUISERS, INC.; MIRAGE HOLDINGS, INC.; PLAY TIME MANUFACTURING BY OHIO MARINE DISTRIBUTOR, INC.; POWERQUE
Case Date:March 24, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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207 F.3d 1039 (8th Cir. 2000)

CONCORD BOAT CORPORATION; GALAXIE BOAT WORKS, INC.; SEA ARROW MARINE, INC.; MARIAH BOATS, INC.; HARRIS KAYOT, INC.; ARMADA MANUFACTURING COMPANY, INC.; BAHA CRUISERS/FRP INDUSTRIES, INC.; CAMPION MARINE, INC.; CARAVELLE BOATS; KCS INTERNATIONAL/CRUISERS, INC.; MIRAGE HOLDINGS, INC.; PLAY TIME MANUFACTURING BY OHIO MARINE DISTRIBUTOR, INC.; POWERQUEST BOATS, INC.; SILVERTON MARINE CORPORATION; INDEPENDENT BOAT BUILDERS, INC.; WTYS NO. 4 INC., DOING BUSINESS AS THOMPSON BOAT CO.; CENTURY CRAFT INDUSTRIES, LTD., FORMERLY KNOWN AS VANGUARD INDUSTRIES; AVENGER MANUFACTURING; G W INVADER; MALIBU BOATS WEST; MAVERICK BOAT COMPANY, INC.; WEERES INDUSTRIES CORPORATION; DORAL INTERNATIONAL, INC.; ALBERMARLE BOATS, INC., PLAINTIFFS - APPELLEES,

v.

BRUNSWICK CORPORATION, A DELAWARE CORPORATION, DEFENDANT - APPELLANT,

NATIONAL ASSOCIATION OF MANUFACTURERS, AMICUS ON BEHALF OF APPELLANT.

CONCORD BOAT CORPORATION; GALAXIE BOAT WORKS, INC.; SEA ARROW MARINE, INC.; MARIAH BOATS, INC.; HARRIS KAYOT, INC.; ARMADA MANUFACTURING COMPANY, INC.; BAHA CRUISERS/FRP INDUSTRIES, INC.; CAMPION MARINE, INC.; CARAVELLE BOATS, INC.; KCS INTERNATIONAL/CRUISERS, INC.; MIRAGE HOLDINGS, INC.; PLAY TIME MANUFACTURING

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BY OHIO MARINE DISTRIBUTOR, INC.; POWERQUEST BOATS, INC.; SILVERTON MARINE CORPORATION; THOMPSON BOAT COMPANY; INDEPENDENT BOAT BUILDERS, INC.; WTYS NO. 4 INC., DOING BUSINESS AS THOMPSON BOAT COMPANY; CENTURY CRAFT INDUSTRIES, LTD., FORMERLY KNOWN AS VANGUARD INDUSTRIES; AVENGER MANUFACTURING; G W INVADER; MALIBU BOATS WEST; MAVERICK BOAT COMPANY, INC.; WEERES INDUSTRIES CORPORATION; DORAL INTERNATIONAL, INC.; ALBERMARLE BOATS, INCORPORATED, PLAINTIFFS - APPELLANTS,

v.

BRUNSWICK CORPORATION, A DELAWARE CORPORATION, DEFENDANT - APPELLEE,

NATIONAL ASSOCIATION OF MANUFACTURERS, AMICUS ON BEHALF OF APPELLEE.

Nos. 98-3732, 98-4042

United States Court of Appeals, Eighth Circuit

March 24, 2000

        Submitted: September 15, 1999

        Appeal and Cross Appeal from the United States District Court for the Eastern District of Arkansas.

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        Before McMILLIAN and Murphy, Circuit Judges, and Bogue,1 District Judge.

        Murphy, Circuit Judge.

        A number of boat builders2 brought this antitrust action against stern drive engine manufacturer Brunswick Corporation (Brunswick) for violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 (1994), and of Section 7 of the Clayton Act, 15 U.S.C. § 18 (1994). Brunswick counterclaimed, arguing that the boat builders had themselves conspired to restrain trade in violation of Section 1 of the Sherman Act. The case was tried to a jury for ten weeks, and a verdict was returned in favor of the boat builders for $44,371,761. Post trial motions were filed by both sides, and judgment was eventually entered for the boat builders in the amount

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of $133,115,283, plus $7,783,224 in attorney fees and $1,267,424 in costs. The district court granted Brunswick's motion for judgment as a matter of law on its counterclaim, but denied its motions for a new trial and for judgment as a matter of law on the boat builders' claims. It also denied the boat builders' motion for equitable relief. Both sides appeal, and we reverse.

        I.

        A.

        Neither side contests the finding of the jury that the relevant market is the market for inboard and stern drive marine engines. Since the early 1980s there have been a number of manufacturers in the market, including inboard manufacturers PCM, Indmar, Crusader, Volvo, Marine Power, MTU, Caterpillar, Detroit Diesel, Cummins, and Toyota, and stern drive manufacturers Brunswick, Outboard Marine Corporation (OMC), Volvo Penta of the Americas (Volvo), and Yamaha. In this opinion we employ the term "stern drive engines" to include both types of engines.

        The manufacturers use standard automobile engine blocks to make stern drive engines for motor boats. They "marinize" the automobile engines and equip them with a drive system and then sell them to boat builders who may be affiliated with the manufacturer or may be independent buyers. The boat builders install the engines in their brand name boats and sell the completed boats to dealers. Stern drive engines are used primarily in recreational power boats known as runabouts, which are typical water skiing boats, and in cruising boats, which are larger and more expensive boats and usually have cabins. Runabouts and cruising boats together make up about 40% of all recreational power boats.

        Brunswick has been the market leader in stern drive engine manufacturing for many years, and by 1983 it had earned a 75% market share. Beginning in 1982 it employed McKinsey & Company (McKinsey) to provide consulting services to its engine business. McKinsey consultants suggested various ways for Brunswick to increase the sales of its engines. In 1984 Brunswick began to offer market share discounts to boat builders and dealers. Several of its competitors, including Volvo and OMC, also offered market share discounts at about the same time. Under the Brunswick programs, boat builders and dealers could agree to purchase a certain percentage of their engine requirements from Brunswick for a fixed period of time in exchange for a discount off the list price of the engine. From 1984 to 1994, Brunswick offered a 3% discount to boat builders who bought 80% of their engines from the company, a 2% discount for 70% of all purchases, and a 1% discount for those who took 60% of their needs from Brunswick. For the 1995 to 1997 model year program, the market share requirements were reduced so that the maximum 3% discount could be earned by buying 70% from Brunswick; customers could receive a 2% discount for 65% market share and 1% for 60% market share. Another feature was added to the program in 1989 to offer long term discounts of an additional 1 or 2% to anyone who signed a market share agreement for two to three years.3 Boat builders also could receive a volume discount of up to 5% based on the quantity of engines purchased. Brunswick attempted to increase its market share requirement to 95% in its proposed 1994 "Industry Growth Program," but was unsuccessful

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due to serious backlash from boat builders. The market share discounts were eliminated entirely in the middle of 1997.

        Neither the regular market share discount program, the long term program, nor the volume discount program obligated boat builders and dealers to purchase engines from Brunswick, and none of the programs restricted the ability of builders and dealers to purchase engines from other engine manufacturers. Builders and dealers were able to buy up to 40% of their engines from other manufacturers and still obtain a discount from Brunswick. Several boat builders chose to take a higher percentage of their engines from Brunswick than necessary to qualify for its largest market share discount; some purchased 95 or 100% of their engines from Brunswick.

        In the year after Brunswick and other stern drive engine manufacturers instituted market share discount programs, Brunswick's largest domestic competitor, OMC, introduced a new stern drive engine called the "Cobra." The Cobra engine registered solid early sales, which increased OMC's stern drive engine market share and simultaneously reduced Brunswick's market share to approximately 50%. Brunswick began exploring its competitive options, and in December 1986 it purchased two of the largest boat builders, U.S. Marine (Bayliner) and Ray Industries (Sea Ray).4 These purchases were noted throughout the boating industry. Brunswick hoped this vertical integration would enable it to synthesize engine manufacturing and boat building, leading to a higher quality and less expensive product.

        Other events occurred about this time which improved Brunswick's competitive position. OMC's success with the Cobra was short lived because the company began receiving complaints that the engine's shift cable was defective. After a year investigating complaints, OMC was forced to recall all of its Cobra engines in 1989. This resulted in significant market share gains by Brunswick. Brunswick also experienced a market share gain in 1993 as a result of mistakes made by Volvo and OMC when they merged, leading to decreased consumer confidence in their products. In 1994 Yamaha, another stern drive engine manufacturer, left the market. The price of Brunswick's stern drive engine increased between 1986 and 1997 from $4775 to $4984, fluctuating both upward and downward in the interim.

        B.

        The boat builders filed this antitrust suit in 1995, more than ten years after Brunswick and other stern drive engine manufacturers first instituted market share discount programs, and over nine years after Brunswick acquired Bayliner and Sea Ray. They alleged that Brunswick had violated Section 7 of the Clayton Act by acquiring Bayliner and Sea Ray in 1986 and subsequently holding them, enabling Brunswick to create a monopoly in the stern drive engine market. They contended that Brunswick had used its market share discounts, volume discounts, and long term discounts and contracts, coupled with the market power it had achieved in purchasing Bayliner and Sea Ray, to restrain trade and to monopolize the market in

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violation of Sections 1 and 2 of the Sherman Act. According to the boat builders, Brunswick's monopolization of the market enabled it to charge supracompetitive high prices for their engines, which drove other engine manufacturers out of business. The boat builders also claimed that Brunswick had fraudulently concealed both the special deals that they gave to certain boat builders and the stern drive engine that Bayliner was developing.

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