Supermarket of Homes, Inc. v. San Fernando Valley Bd. of Realtors

Decision Date15 April 1986
Docket NumberNos. 83-6325,84-6159 and 84-6190,s. 83-6325
Parties, 230 U.S.P.Q. 316, 1986-1 Trade Cases 67,051, 1986 Copr.L.Dec. P 25,928 SUPERMARKET OF HOMES, INC., and Original Supermarket of Homes, Inc., Plaintiffs-Appellants, v. SAN FERNANDO VALLEY BOARD OF REALTORS, California Association of Realtors, National Association of Realtors, Defendants-Appellees. SUPERMARKET OF HOMES, INC., Plaintiff-Counterclaim Defendant-Appellant, v. SAN FERNANDO VALLEY BOARD OF REALTORS, California Association of Realtors, National Association of Realtors, Defendants-Counterclaim Cross Claim-Appellees. SUPERMARKET OF HOMES, INC., Bar W Properties, Gina W. Williams, Lawrence W. Williams, Plaintiffs-Cross Defendants-Appellants, v. SAN FERNANDO VALLEY BOARD OF REALTORS, INC., California Association of Realtors, National Association of Realtors, Chuck Lamb, Mondae Siegmeth, Sally Collum and Judy Trout, Defendants-Cross Plaintiffs-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Stephen E. Haberfeld, Haberfeld & Perlberger, Malibu, Cal., for plaintiffs-appellants.

Moses Lasky, John E. Munter, Lasky, Haas, Cohler & Munter, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, SCHROEDER and BOOCHEVER, Circuit Judges.

GOODWIN, Circuit Judge:

Plaintiff real estate entities sued the defendant trade association and others for monopolization, price fixing, group boycott and the other usual antitrust counts. Plaintiffs were met by denials and a counterclaim for copyright infringement for plaintiffs' unauthorized copying and selling of pages from the defendants' multiple listing book. The district court, after examining a stipulated statement of facts, voluminous documents, exhibits, and an imposing file of pleadings, entered summary judgment in favor of the Board of Realtors on the antitrust claims. After further proceedings, the court also entered summary judgment for the defendants on the counterclaim, and awarded damages. Plaintiffs appeal.

For the purposes of this appeal we will forbear needless description of the plaintiff and defendant entities which were named in the original pleadings but upon which nothing turns. The controversy at the end had boiled down to one between Gina and Lawrence Williams (Supermarket), who controlled the various plaintiff entities, and the San Fernando Valley Board of Realtors (the Board), a membership association of about ninety five per cent of the real estate business entities in the region of Southern California roughly described as the San Fernando Valley.

The dispute arose out of the desire of Supermarket to use the multiple listing information compiled by the defendant Board without complying with the Board's multiple listing service rules. The Supermarket plan was to offer discount real estate service by charging sellers a flat fee for completed sales and by offering buyers a discount off the sale price.

Other Board members were accustomed to charging a "going rate" commission of six per cent of the ultimate sale price. The usual multiple listing sale involved the sale by a cooperating broker who was typically not the broker who had obtained the listing from the seller. In such cases, the two cooperating brokers would split the six per cent commission equally. When a property was listed in the Board's multiple listing book, as most properties were, any member of the Board, including Mrs. Williams, could become a cooperating broker by showing the property to a customer. If the customer thereafter bought the property, the selling broker and the listing broker would split the customary commission. This practice made no provision for the sort of business Supermarket desired to conduct.

Board members refrained from showing Supermarket listed properties for the reason The Board limits access to the multiple listing books in several respects. First, only licensed brokers may list properties in the book. Second, only licensed brokers receive copies of the book. Third, a broker may use the listing only by showing it to a customer in the broker's presence. Fourth, a broker may not sell or distribute copies.

that there was little or no economic incentive for them to do so. Supermarket regarded this lack of response to its plan as a boycott in violation of the antitrust laws. Other members of the Board apparently regarded Supermarket's efforts as merely another economically doomed innovation that would be a mild irritant for awhile, but which would have no substantial impact on the way other Board members were conducting their business. The matter became a subject of newspaper attention and resulted in acrimonious exchanges between the parties. Supermarket decided to copy pages of the Board's multiple listing book and sell to their customers the copies Supermarket deemed relevant. Mrs. Williams is a member of the Board but does not consider herself bound by its rules.

The Board's copyright infringement counterclaim stems from Supermarket's public sale of multiple listing documents in defiance of the copyright notice contained in each document and in defiance of the Board's explicit prohibition.

Supermarket notified the Board of its intention to sell copies of multiple listings to the public, recognized that such a sale would be a "technical violation" of the Board's copyright and requested either outright permission or a licensing arrangement.

The Board refused Supermarket permission to disseminate multiple listing materials except as provided in the rules and warned that it would seek damages for any infringement. Supermarket nonetheless sold as many as 672 issues of the copyright material.

Supermarket contends on appeal that there were material issues of fact requiring a trial. The Board questions whether Supermarket had standing to file its antitrust complaint, whether it sustained any injury, and, if it did, whether that injury was caused by any act of the Board.


Standing to bring a private antitrust action is based upon Sec. 4 of the Clayton Act, 15 U.S.C. Sec. 15 (1982). California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 732 (9th Cir.1979). Plaintiff must show injury to his business or property by reason of "anything forbidden in the antitrust laws ....", 15 U.S.C. Sec. 15 (1982), and that the injury is one against which the antitrust laws were designed to protect. Kapp v. National Football League, 586 F.2d 644, 648 (9th Cir.1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979).

Section 4 is to be applied according to its plain language and its broad remedial and deterrent objectives. Blue Shield of Virginia v. McCready, 457 U.S. 465, 472, 102 S.Ct. 2540, 2544-45, 73 L.Ed.2d 149 (1982). It is broadly phrased. Congress intended to create a private enforcement mechanism that would deter violators and deprive them of the fruits of their illegal actions, and would provide ample compensation to the victims of antitrust violations. Blue Shield of Virginia v. McCready, 457 U.S. 465, 472, 102 S.Ct. 2540, 2544-45, 73 L.Ed.2d 149 (1982). We are satisfied that Supermarket has standing.


Supermarket alleges that the Board monopolized and attempted to monopolize the San Fernando Valley real estate market in violation of Sec. 2 of the Sherman Act, 15 U.S.C. Sec. 2 (1982).

Monopoly power is the power to control prices or to exclude competition. California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 735 (9th Cir.1979). Monopolization has three elements. A plaintiff must prove that the defendant has monopoly power in the relevant market, that the defendant Attempt to monopolize has four elements. It requires specific intent to control prices or to destroy competition, predatory or anticompetitive conduct directed to accomplishing that end, a dangerous probability of success, and causal antitrust injury. Id. Conduct that does not constitute willful acquisition or maintenance for the purposes of a monopolization charge cannot be cast as predatory for the purposes of an attempted monopolization charge against the same defendant. Id.

                willfully acquired or maintained that power, and that the plaintiff sustained antitrust injury.    Transamerica Computer Co., Inc. v. International Business Machines Corp., 698 F.2d 1377, 1382 (9th Cir.), cert. denied, 464 U.S. 955, 104 S.Ct. 370, 78 L.Ed.2d 329 (1983)

Supermarket's Sec. 2 claim turns upon its allegation that the Board used various exclusionary practices to keep licensed brokers from entering the San Fernando Valley real estate market.

Supermarket's proferred documents failed to show that the Board's practices were intended to, or did restrict the entry of licensed brokers into the market for brokerage services. The Board apparently welcomes all licensed brokers who are willing to join and to abide by the rules of membership. Supermarket was never excluded from membership or participation. As noted, Mrs. Williams was a Board member fully entitled to use the multiple listing service. The Court correctly found no triable issue of fact on the monopolization and attempt to monopolize claim.


Supermarket alleges three violations of section 1 of the Sherman Act: price fixing; group boycott; and conspiracy in restraint of trade.

Price fixing is a per se violation of Sec. 1 of the Sherman Act. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979). For a pricing policy to violate Sec. 1, it must result from an illegal agreement. United States v. Miller, 771 F.2d 1219, 1240 (9th Cir.1985). The agreement may be explicit or implicit.

Parallel pricing does not constitute price fixing. When the pricing behavior cannot be explained as being in the participants'...

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