Southwest Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass'n

• Decision Date: 21 April 1987
• Docket Number: No. 86-3154,86-3154
• Citation: 830 F.2d 1374
• Parties: , 1987-2 Trade Cases 67,705 SOUTHWEST SUBURBAN BOARD OF REALTORS, INC., Regan Corporation, and James Regan, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BEVERLY AREA PLANNING ASSOCIATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1374

830 F.2d 1374

89 A.L.R.Fed. 895, 1987-2 Trade Cases 67,705

SOUTHWEST SUBURBAN BOARD OF REALTORS, INC., Regan

Corporation, and James Regan, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BEVERLY AREA PLANNING ASSOCIATION, et al., Defendants-Appellees.

No. 86-3154.

United States Court of Appeals, Seventh Circuit.

April 21, 1987.

Decided Sept. 8, 1987.

Rehearing Denied Oct. 5, 1987.

John L. Gubbins, John L. Gubbins & Assoc., Ltd., Chicago, Ill., for plaintiffs-appellants.

James J. Casey, Keck, Mahin & Cate, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiffs appeal the district court's grant of summary judgment in favor of defendants on the ground that plaintiffs lacked standing to maintain this antitrust action. We affirm in part and reverse in part.

I.

In October 1984, the Southwest Suburban Board of Realtors ("SSBR"), a trade association of real estate brokers, filed this lawsuit on its own behalf and as a putative class representative of all its member brokers, except those brokers named as defendants in the suit. The complaint named as defendants the Beverly Area Planning Association ("BAPA"), a not-for-profit neighborhood planning association designed to promote the maintenance of a racially integrated community in the Beverly Hills/Morgan Park neighborhoods located on the southwest side of Chicago, Illinois, certain employees and volunteers of BAPA, certain real estate brokerage entities, and certain real estate brokerage principals. In April 1985, SSBR filed an amended complaint which added two named plaintiffs: Regan Corporation, a for-profit real estate firm and a member of SSBR, and its president, James Regan.

The plaintiffs' amended complaint essentially charges that the defendants have conspired to control and monopolize real estate transactions in the Beverly Hills/Morgan Park neighborhoods in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1, 2. The complaint also includes pendent state law claims alleging tortious interference with contractual relations of the plaintiff and members of the plaintiff class. Plaintiffs allege that the relevant market for purposes of their antitrust allegations is "the provision of real estate brokerage service in the Beverly Hills-Morgan Park neighborhoods of Chicago, Illinois" (Amended Complaint p 38).

The amended complaint alleges that BAPA has adopted a comprehensive plan to control the sale of real estate brokerage services and thereby all real estate transactions in the Beverly Hills/Morgan Park neighborhoods, with the intent and effect of monopolizing and excluding plaintiffs from the market. BAPA, in connection with the other defendants, has created the "Beverly Area Planning Association Housing Center," which among other things provides counseling services to prospective homebuyers and residential renters and maintains detailed records of all housing for sale in the area. According to the complaint, the defendants have agreed to maintain a list of preferred brokers and to boycott any broker who, like many SSBR members including the Regan firm, is not on the list. The defendants have encouraged preferred brokers to maintain their own listings of property for sale in the relevant market and discouraged them from listing properties with SSBR's Multiple Listing Service, which SSBR provides to all its members for a fee. In addition, the amended complaint alleges that the defendants have harassed and intimidated the plaintiffs and other SSBR members by threatening to initiate frivolous litigation charging violations of the fair housing laws. Finally, the defendants have allegedly induced prospective sellers of real estate to breach their listing contracts with non-preferred brokers. As a result of these activities, the plaintiffs allege that they have been deprived of their lawful share of the relevant market and accordingly have been denied real estate brokerage business which they otherwise would have achieved. The complaint seeks both damages and injunctive relief.

II.

The district court held that each of the three named plaintiffs lacked standing to sue for the alleged antitrust violations. Section 4 of the Clayton Act provides that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States ..., and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. Sec. 15. In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701, the Supreme Court held that plaintiffs maintaining actions under Sec. 4 must show more than simply an "injury causally linked" to an antitrust violation; instead "plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful." See also Cargill, Inc. v. Monfort of Colorado, Inc., --- U.S. ----, 107 S.Ct. 484, 488-489, 93 L.Ed.2d 427. Although a showing of antitrust injury is necessary to establish standing under Sec. 4, the Supreme Court pointed out in Cargill that it is not always sufficient because a party may have suffered antitrust injury but still not be a proper plaintiff under Sec. 4 for other reasons. 107 S.Ct. at 489 n. 5; see also Local Beauty Supply, Inc. v. Lamaur, Inc., 787 F.2d 1197, 1201 (7th Cir.1986); Page, The Scope of Liability for Antitrust Violations, 37 Stan.L.Rev. 1445, 1483-1485 (1985) (distinguishing between concepts of antitrust injury and antitrust standing). To determine whether a party is a proper plaintiff under Sec. 4, the Supreme Court has instructed lower courts to examine "other factors in addition to antitrust injury, such as the potential for duplicative recovery, the complexity of apportioning damages, and the existence of other parties that have been more directly harmed." Cargill, 107 S.Ct. at 490 n. 6 (citing Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 538-545, 103 S.Ct. 897, 908-912, 74 L.Ed.2d 723, and Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707). ¹

The antitrust injury requirement is also applicable to antitrust actions seeking injunctive relief. Section 16 of the Clayton Act provides in part that "[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws...." 15 U.S.C. Sec. 26. Section 16 differs from Sec. 4 in that Sec. 4 requires a plaintiff to show actual injury whereas Sec. 16 only requires a showing of "threatened" loss or damage. Nonetheless, the Supreme Court in Cargill held that Sec. 16 affords private plaintiffs injunctive relief only for those injuries cognizable under Sec. 4 of the Act and that plaintiffs seeking such relief must therefore allege threatened loss or damage "of the type the antitrust laws were designed to prevent." 107 S.Ct. at 491 (quoting Brunswick, 429 U.S. at 489, 97 S.Ct. at 697). The Court explained that "[i]t would be anomalous ... to read the Clayton Act to authorize a private plaintiff to secure an injunction against a threatened injury for which he would not be entitled to compensation if the injury actually occurred." Id. 107 S.Ct. at 490. While acknowledging that because of the difference in the remedy provided under Sec. 4 and Sec. 16, some of the factors appropriate to a determination of standing under Sec. 4, such as the potential for duplicative recovery and the complexity of apportioning damages, would not be relevant to a determination of standing under Sec. 16, the Court indicated that analysis of the antitrust injury requirement would be effectively the same under the two sections. Id. at 490 n. 6.

With these general principles in mind, we review the standing of each of the named plaintiffs in turn.

A. James Regan

The amended complaint does not allege any injury suffered by plaintiff James Regan that is separate and distinct from that suffered by plaintiff Regan Corporation as a result of the defendants' alleged efforts to prevent non-preferred brokers from providing real estate brokerage services to prospective buyers and sellers in the Beverly Hills/Morgan Park area. Clearly Regan Corporation, and not James Regan individually, was the target of any anticompetitive practices. While James Regan may in fact have suffered some injury as a result of the alleged antitrust violation, presumably in the form of reduced salary, commissions, or other employment benefits due to the corporation's weakened competitive position, such injury was merely derivative of the injury suffered by the corporation itself.

Merely derivative injuries sustained by employees, officers, stockholders, and creditors of an injured company do not constitute "antitrust injury" sufficient to confer antitrust standing. See Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 533-535 and 541 n. 46, 103 S.Ct. 897, 906-907, and 910 n. 46, 74 L.Ed.2d 723; Blue Shield of Virginia v. McCready, 457 U.S. 465, 477, 102 S.Ct. 2540, 2547, 73 L.Ed.2d 149 ("Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property"); Eagle v. Star-Kist Foods, Inc., 812 F.2d 538, 541-542 (9th Cir.1987); National Independent Theatre Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 608 (11th Cir.1984) ("Neither an officer nor an employee of a corporation has standing to bring an action in his own right for an antitrust violation causing injury to the corporation and its business."), certiorari denied, 471 U.S. 1056, 105 S.Ct. 2120, 85...