Sulmeyer v. Coca Cola Co.

Decision Date11 July 1975
Docket NumberNo. 73-2231,73-2231
Citation515 F.2d 835
Parties1975-2 Trade Cases 60,387 Irving SULMEYER and Arnold L. Kupetz, Co-trustees in Bankruptcy for Bubble Up Corporation, Plaintiffs-Appellants, v. COCA COLA COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Joseph M. Alioto, Lawrence J. Appel, Joseph L. Alioto, San Francisco, Cal., Glover McGhee, Clayton H. Farnham, Atlanta, Ga., Lawrence J. Moreno, Beverly Hills, Cal., for plaintiffs-appellants.

Charles L. Gowen, Hugh Peterson, Jr., Jack H. Watson, Jr., C. David Vaughan, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before THORNBERRY, COLEMAN and ROSENN *, Circuit Judges.

THORNBERRY, Circuit Judge:

Irving Sulmeyer and Arnold Kupetz, Co-trustees in Bankruptcy for the Bubble Up Corporation, appeal the trial court's denial of their motion for judgment notwithstanding the verdict in their antitrust suit against the Coca Cola Company. 1 Alternatively, they claim that the trial court erred in denying their motion for a new trial. The trial court's rulings followed an eight week jury trial that ended with a general verdict for Coca Cola Company. We have carefully examined Bubble Up's numerous claims of error, and have concluded that Bubble Up had ample opportunity to develop its antitrust claims in the court below. The trial court properly submitted the case to the jury on instructions satisfactory to Bubble Up, and substantial evidence supports the jury's verdict in Coca Cola's favor. Therefore we affirm the trial court's actions in denying both post-trial motions.

A. The Lemon-Lime Soft Drink Market

Bubble Up Corporation manufactures a lemon-lime soft drink syrup that it sells to franchised bottlers. They bottle the syrup in accordance with Bubble Up's standards, and deliver the finished product to retailers for distribution to the ultimate consumers. Other soft drink syrup manufacturers market their products in a similar fashion. By the late 1950's, Coca Cola, Pepsi Cola, and Seven Up had effectively achieved nationwide distribution at the consumer level for their soft drinks. Each had done so through a series of franchise agreements with independent bottlers across the nation. Thus each company had franchised a distinct group of independent bottlers, though evidence indicated that some bottlers handled both Coca Cola and Seven Up. 2 Seven Up was the dominant seller of lemon-lime soft drinks and was Bubble Up's chief competitor at the consumer level. 3

Bottler profits vary as a direct function of consumer demand. Since substantial nationwide demand for Seven Up had developed, Bubble Up would have been hard pressed to convince a bottler franchised for Seven Up to change to a Bubble Up franchise. The company chose to avoid head to head competition with Seven Up for lemon-lime bottler franchises, and sought to achieve nationwide distribution through franchise agreements with bottlers holding Coca Cola or Pepsi Cola franchises.

In 1960 Bubble Up made a major corporate decision. Dissatisfied with efforts to achieve national distribution using both Coca Cola and Pepsi Cola franchisees, the company decided to seek to franchise Coca Cola bottlers exclusively. At about the same time the Coca Cola Company decided to market its own lemon-lime product Sprite. In the end Bubble Up's efforts to achieve nationwide distribution through the bottlers franchised for Coke fizzled.

B. The Coca Cola Company's Entry Into the Lemon-Lime Market

Dr. John S. Pemberton formulated the original Coca Cola syrup and extract in 1866 in Columbus, Georgia. He and J. M. Robinson began to distribute the product in Atlanta, Georgia. Pemberton fell ill and died in 1888. Asa G. Candler, a former competitor, acquired all rights to the product by April 1891, and in 1892, transferred those rights to the Coca Cola Company, a newly formed Georgia corporation, in exchange for stock. Originally, the company sold its product to fountain retailers who mixed the syrup with carbonated water at the retail outlet for direct sale to the ultimate consumer. Around 1900 independent bottlers were licensed to mix and bottle the drink, then sell it to retailers. A nationwide system of franchised bottlers developed and that system became the primary channel for distribution of Coca Cola to retail outlets for sale to the consumer.

Through World War II, Coca Cola concentrated exclusively on selling its basic product, Coca Cola syrup, to the franchised bottlers. Then a shift in soft drink demand occurred, with consumers willing to purchase a more varied assortment of soft drinks. The demand shift at the consumer level produced a corresponding shift in bottler demand. Independent bottlers holding Coca Cola franchises began pressuring the Coca Cola Company to market a more varied line of syrups. Lemon-lime flavored soft drinks developed into the second largest line of soft drink flavors with Seven Up holding by far the largest share of that market. 4 A number of products competed for the consumer dollars in that market including Bubble Up, Sun Up, Uptown, and 50-50. 5 The development of soft drink lines other than cola drinks coincided with a period of rapid growth and increasing sophistication in vending machines. Bottlers sought additional flavor lines to supply a full range of products at retail vending machine outlets. Coca Cola responded to this consumer and bottler demand in 1958 with the Fanta line of soft drink products. That line included orange, grape, root beer, strawberry, ginger ale, and club soda.

Coca Cola decided to compete very actively in the lemon-lime segment of the soft drink industry in 1960. It opted to enter the market through internal expansion. 6 Coca Cola already had a nationwide system of franchised bottlers for its Coca Cola syrup. Understandably the company looked to those bottlers to handle Sprite. Several factors influenced Coca Cola in this regard. Introduction of Sprite was in some measure a response to already existing Coca Cola franchisee demand. Coca Cola employees had a working relationship with franchised bottlers that could be used to Coke's advantage in introducing Sprite at minimum expense. There would be economies of scale in using the existing field marketing organization to market the new product. And the company did not wish to deal with bottlers handling a competing cola product.

The decision to use its already existing distribution system placed Coca Cola on a collision course with Bubble Up both companies competing to franchise the same group of independent bottlers. From 1961-66, the two companies fought rather fiercely, with Bubble Up the clear loser. Bubble Up contends that the Coca Cola Company did not fight fairly and violated Sections 1 and 2 of the Sherman Act. The jury below disagreed, but Bubble Up seeks to overturn that verdict.


Bubble Up moved in the trial court for judgment n.o.v. on its Section 1 and 2 claims. The trial judge denied the motion, rejecting each claim that Bubble Up raised. Here Bubble Up seeks reversal, but fights an uphill battle. Generally a motion for directed verdict or judgment n.o.v. should be granted only in two situations: "First, where there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense. . . . Second, where there are no controverted issues of fact upon which reasonable men could differ." 5A Moore's Federal Practice P 50.02(1) (2d ed. 1974). Accord Alman Bros. Farms & Feed Mill, Inc. v. Diamond Lab., Inc., 437 F.2d 1295 (5th Cir. 1971). In passing on the motion, the trial court must view the evidence in the light most favorable to the party opposing it, giving that party the benefit of all reasonable inferences in its favor. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). The standard of review at the appellate level is the same. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524 (1971).

A. Bubble Up's Section 1 Claims

Bubble Up argues that it was entitled to a directed verdict on its Section 1 claims because it conclusively proved various per se violations. 7 Appellants challenged a number of marketing practices the Coca Cola Company employed in connection with Sprite's introduction in the early 1960's claiming they constituted tying arrangements or group boycotts both per se violations of the Sherman Act. 8 The trial court denied Bubble Up's motions for a directed verdict and judgment n.o.v. on those claims. It did, however, instruct the jury as to boycotts and tying arrangements, but the jury's verdict rejected Bubble Up's Section 1 claims. We find the district court properly denied Bubble Up's motions as the evidence does not conclusively demonstrate any Section 1 violations.

1. The Investment Market Program:

Bubble Up directs the major thrust of its Section 1 attack against the Investment Market Program Coca Cola employed from 1961 to 1963. We examine this program in some detail as our dispostion of the Section 1 arguments here helps answer Bubble Up's attack on various other Coca Cola Company programs. 9

To successfully market Sprite nationwide, the Coca Cola Company had to do two things: (1) stimulate sufficient consumer demand to make production economical; and (2) develop an effective delivery system. Coke already had a nationwide distribution system for its primary product, Coca Cola. It decided to look to the network of Coca Cola franchised bottlers to establish a nationwide distribution system for Sprite. To stimulate consumer demand for the new product, Coke developed an advertising program that made extensive use of television.

During the late 1950's television replaced radio as the dominant advertising medium. Though extremely effective, it was also extremely expensive. 10 The Coca Cola Company commissioned the McCann-Erickson Advertising Agency of New York City to develop...

To continue reading

Request your trial
119 cases
  • Domed Stadium Hotel, Inc. v. Holiday Inns, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 21, 1984
    ...537 F.2d 1347, 1368 (5th Cir.1976), cert. denied, 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 540 (1977) (20%); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 850 (5th Cir.1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976) (22%). If a market share of seventeen percent will not s......
  • Aspen Highlands Skiing Corp. v. Aspen Skiing Co., s. 82-1407
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 13, 1984
    ...Electric Co., 692 F.2d 307, 311 (3d Cir.1982); Pinder v. Hudgins Fish Co., 570 F.2d 1209, 1220-21 (5th Cir.1978); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 839 (5th Cir.1975), cert. denied, 424 U.S. 934, 98 S.Ct. 1148, 47 L.Ed.2d 341 (1976); ABA Antitrust Section, Antitrust Law Developments ......
  • Roland Machinery Co. v. Dresser Industries, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 21, 1984
    ...of a particular product indicates his commitment to pushing that brand; he doesn't have divided loyalties. See Sulmeyer v. Coca-Cola Co., 515 F.2d 835, 840 n. 2 (5th Cir.1975). If the dealer carries several brands, his stake in the success of each is reduced. Suppose, though there is contra......
  • National Bancard Corp. (NaBanco) v. VISA U.S.A., Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 10, 1986 is basically a fact question heavily dependent upon the special characteristics of the industry involved." Sulmeyer v. Coca Cola Co., 515 F.2d 835, 849 (5th Cir.1975) (Section 2 monopolization case). The finder of fact normally is presented with voluminous expert testimony and other ......
  • Request a trial to view additional results
4 books & journal articles
  • Restraints of Trade
    • United States
    • ABA Antitrust Library Antitrust Law Developments (Ninth Edition) - Volume I
    • February 2, 2022
    ...associated retail stores push its own products and that it frowned upon their handling of competing goods”); Sulmeyer v. Coca-Cola Co., 515 F.2d 835, 841-48 (5th Cir. 1975). But see Menominee Rubber Co. v. Gould, Inc., 657 F.2d 164, 166-67 (7th Cir. 1981) (affirming entry of preliminary inj......
  • Section 2 of The Sherman Act
    • United States
    • ABA Antitrust Library Model Jury Instructions in Civil Antitrust Cases
    • December 8, 2016
    ...Plant Corp., 537 F.2d 1347, 1368 (5th Cir. 1976) (20 percent market share insufficient as a matter of law); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 850 (5th Cir. 1975) (22 percent insufficient to establish monopolization claim); Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F.2d 5......
  • Table of Cases
    • United States
    • ABA Antitrust Library Antitrust Law Developments (Ninth Edition) - Volume II
    • February 2, 2022
    ...NFL, 34 F.3d 1091 (1st Cir. 1994), 35, 77, 79, 127, 820 Sullivan v. Tagliabue, 25 F.3d 43 (1st Cir. 1994), 831 Sulmeyer v. Coca-Cola Co., 515 F.2d 835 (5th Cir. 1975), 206 Sumitomo Mitsubishi Silicon Corp. v. MEMC Elec. Materials, Inc., 2007 U.S. Dist. LEXIS 61964 (N.D. Cal.), aff ’ d in pa......
  • Do the DOJ Vertical Restraints Guidelines provide guidance?
    • United States
    • Sage Antitrust Bulletin No. 32-3, September 1987
    • September 1, 1987
    ...See, e.g., Joyce BeveragesofNew York, Inc. v. RoyalCrownColaCo.,555 F. Supp. 271 (S.D.N.Y. 1983); Sui meyer v. Coca-ColaCo., 515 F.2d 835 (5th Cir. 1975); 620 The antitrust bulletinelusive distribution creates both efficiencies and market power,one would not necessarily wish to prohibit the......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT