Ticket Ctr., Inc. v. Banco Popular De Puerto Rico

• Decision Date: 31 October 2008
• Docket Number: Civil No. 04-2062 (GAG/BJM).
• Citation: 613 F.Supp.2d 162
• Parties: TICKET CENTER, INC., et al., Plaintiffs, v. BANCO POPULAR DE PUERTO RICO d/b/a TicketPop, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

613 F.Supp.2d 162

TICKET CENTER, INC., et al., Plaintiffs, v. BANCO POPULAR DE PUERTO RICO d/b/a TicketPop, et al., Defendants.

Civil No. 04-2062 (GAG/BJM).

United States District Court, D. Puerto Rico.

October 31, 2008.

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Guillermo De-Guzman-Vendrell, De Guzman & Gierbolini Law Office, Jose A. Ocasio-Robles, Ocasio Robles Law Offices, San Juan, PR, Santiago F. Lampon-Gonzalez, Lampon & Associates, Guaynabo, PR, for Plaintiffs.

Herman G. Colberg-Guerra, Nestor Mendez-Gomez, Maria D. Bertolez-Elvira, Pietrantoni Mendez & Alvarez, San Juan, PR, for Defendants.

OPINION AND ORDER

BRUCE J. McGIVERIN, United States Magistrate Judge.

Plaintiffs Ticket Center, Inc. and Ticket Plaza, Inc. d/b/a Ticket Center (collectively "Ticket Center"), bring this case against Banco Popular de Puerto Rico and other defendants (collectively "Banco Popular") complaining of antitrust violations and violations of federal banking laws. (Docket No. 150). Defendants moved to dismiss the complaint, or in the alternative, for summary judgment. (Docket Nos. 164, 194). Plaintiffs duly opposed. (Docket No. 185). The parties submitted opposing statements of uncontested facts pursuant to Local Rule 56. (Docket Nos. 161, 184). Defendants also submitted a supplemental motion to dismiss, or in the alternative, for summary judgment (Docket No. 217) addressing issues raised in a court order (Docket No. 209), which plaintiffs opposed. (Docket No. 227). The parties have consented to proceed before me. (Docket No. 61).

FACTUAL AND PROCEDURAL BACKGROUND

The following material facts, which will be viewed in the light most favorable to plaintiffs as the nonmoving party, are either undisputed or conclusively supported by the evidentiary record except where otherwise noted.¹

This case concerns alleged violations of antitrust laws and the Bank Holding Company Act brought by Ticket Center, a ticket sales business, against its competitor, Banco Popular, doing business as TicketPop. (Docket No. 150). In particular, Ticket Center claims that defendants "used their overwhelming market power to force upon customers exclusive use of additional less desired products and/or services ... to the detriment of competitors such as the plaintiffs, in a bold attempt to monopolize the relevant market." (Id., p. 1-2).

The background of the present dispute begins with extensive, ongoing negotiations between the parties, from 1995 through 2002, concerning a proposed joint venture that would benefit from a combination of Ticket Center's specific expertise in the ticket sales business with Banco Popular's automatic teller machine network. (Docket No. 150, ¶ 15-19; see also Docket No. 184, p. 13-14). During that time, Ticket Center provided confidential information to Banco Popular concerning the ticket sales business, technology, and market. (Id., ¶ 19). These negotiations, however, did not lead to the establishment of the proposed joint venture, and instead, Banco Popular in 2002 launched its own ticket sales processing division, TicketPop, which became a competitor of Ticket Center. (Id., ¶ 21). As of May 1999, Ticket Center had access to ninety-five percent of the ticket sales inventory for events in Puerto Rico, and by October 2002, had access to 90% of this inventory.² (Docket No. 161, ¶ 53, 54). Banco Popular, doing business under the name TicketPop, entered into its first agreement with an entertainment venue to process ticket sales in 2001, and began processing ticket sales for specific events in 2002. (Id., ¶ 55).

In 2001, TicketPop entered into an agreement with Cinemas Management— which was also a client of Banco Popular— for the development of an Internet-based ticket system to facilitate the sale of movie tickets in its movie theater chain, Caribbean Cinemas. (Id., ¶ 2, 3). It is undisputed —and attested by Cinemas Management President Robert Carrady—that Banco Popular did not condition the execution of the agreement on the purchase of another product or service, and Cinemas Management entered into the agreement freely and voluntarily without force or coercion from Banco Popular. (Id., ¶ 4, 5). However, Ticket Center asserts that Cinemas Management entered into the agreement "because Banco Popular was financing the expansion of Caribbean Cinemas movie theaters and/or otherwise providing substantial funds for sponsorship." (Docket No. 184, ¶ 3). Cinemas Management had negotiated a potential agreement with Ticket Center, leading to an agreement in principle in 2000, from which Cinemas Management withdrew in 2001 citing its alternate agreement with Banco Popular. (Docket No. 184, ¶ 4,5).

In January 2002, Banco Popular entered into an agreement with Casa de los Tapes, which at the time was one of the leading record store chains in Puerto Rico. (Docket No. 161, ¶ 10, 11). Pursuant to the agreement, Casa de los Tapes agreed to serve as an outlet for the processing and administration of admission tickets through the TicketPop system. It is undisputed—and attested by Casa de los Tapes owner, Anibal Jover—that Banco Popular did not condition the execution of the agreement on the purchase of another product or service and that Casa de los Tapes entered into the agreement freely and voluntarily without force or coercion by Banco Popular. (Id., ¶ 12, 13; Docket No. 161-3, ¶ 4, 5). Ticket Center contends, citing an unsworn declaration³ of Ticket Center Vice-President Jose Ramon Grau, that Mr. Jover had represented to Mr. Grau that "he had to serve as an outlet for TicketPop/Banco Popular in the sale of entertainment event tickets because Popular provide[d] him with certain credit facilities for his business." (Docket No. 184-3, ¶ 10 (cited by Docket No. 184, ¶ 9)).

During 2002, TicketPop provided ticket processing services for two events at the Coliseo Rubén Rodríguez in Bayamón, Puerto Rico. (Docket No. 161, ¶ 27). It is undisputed that Banco Popular did not condition the use of its services on the purchase of another product or service and that the promoter of those events entered into all agreements freely and voluntarily without force or coercion by Banco Popular. (Id., ¶ 30, 31). Ticket Center contends, however, that the "sponsorship provided by Banco Popular for these two events was excessive in comparison to the scope and magnitude of the events" and that TicketPop "provided their services at below cost pricing." (Docket No. 184, ¶ 22). To the extent Ticket Center provides record evidence in support of these assertions, it is only in an unsworn declaration provided by Ticket Center president Alberto Grau not based on personal knowledge.⁴ (Id. (citing Docket No. 184-2, ¶ 7, 8)).

A long-running dispute between the parties concerns Banco Popular's exclusive contract to handle ticketing services for the José Miguel Agrelot Coliseum (the "Coliseum") entered into in September 2004, which was also the subject of state court litigation. (See Docket No. 161, ¶ 16-24; 59-62). As of June 2000, the Coliseum was owned by AFICA⁵ and managed by SMG Puerto Rico, L.P. ("SMG"). (Id., ¶ 18). SMG advised AFICA in its selection of a ticket processing service provider for the Coliseum. (Id., ¶ 19). Ticket Center made an offer to become the ticketing service provider, but was not selected, and Ticket Center unsuccessfully challenged this decision in Puerto Rico state courts. (Id., ¶ 20). Banco Popular also entered into a sponsorship agreement with the Coliseum in September 2004. (Id., ¶ 22). The SMG executive responsible for negotiating the sponsorship agreement, Jochi Dávila, attested that Banco Popular did not condition the signing of the sponsorship agreement on the Coliseum's use of TicketPop ticketing services or any other Banco Popular services. (Id., ¶ 23 (citing Docket No. 161-4, ¶ 8)). Dávila further attested that SMG entered into its sponsorship agreement with Banco Popular freely and voluntarily without force or coercion from Banco Popular. (Id., ¶ 24 (citing Docket No. 161-4, ¶ 9)). Ticket Center does not directly contest these facts, but contends that "from the outset" the Coliseum's process for the selection of its ticketing services provider was "highly suspect". (Docket No. 184, ¶ 9). In support of this assertion, Ticket Center cites only to its own pleadings in the state court cases. (Id. (citing Docket No. 161-12, 161-13)).

In August 2003, Banco Popular provided both sponsorship and ticket processing services to the Puerto Rico Basketball Federation's "Torneo Pre-Olímpico" (the "Torneo"). (Docket No. 161, ¶ 34-38). Hector Martínez Souss, who was responsible for negotiating both agreements for the Torneo, attested that Banco Popular did not condition the purchase of sponsorship on the use of the TicketPop facilities or on the purchase of any other Banco Popular products or services. (Id., ¶ 36 (citing Docket No. 161-6)). Mr. Martínez Souss also attested that he entered into all agreements with Banco Popular freely and voluntarily without force or coercion by Banco Popular. (Id., ¶ 38 (citing Docket No 161-6)). Ticket Center contends that Mr. Martínez Souss engaged in conversations with Ticket Center concerning the provision of ticketing services for the Torneo, but Mr. Martínez Souss informed Ticket Center that he could not select Ticket Center as the ticketing services provider "because he was tied to Banco Popular." (Docket No. 184, ¶ 24). As support for this assertion, Ticket Center cites an unsworn declaration by its operations manager, Noland Otero Caballero, repeating a statement that Mr. Martínez Souss made to him at an unspecified time and location. (Id. (citing Docket No. 184-5)).

In October 2003, Banco Popular provided ticket processing services to the Puerto Rico Grand Prix. (Docket No. 161, ¶ 39-43). Jorge Díaz, who was responsible for negotiating both agreements for the Grand Prix, attested that Banco Popular did not condition the purchase of sponsorship on the use of the TicketPop facilities or...