City of Oakland v. Oakland Raiders ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF OAKLAND, No. 20-16075
Plaintiff-Appellant,
D.C. No.
v. 3:18-cv-07444-
JCS
OAKLAND RAIDERS, a California
Limited Partnership; ARIZONA
CARDINALS FOOTBALL CLUB, LLC; OPINION
ATLANTA FALCONS FOOTBALL CLUB
LLC; BALTIMORE RAVENS, LP;
BUFFALO BILLS, LLC; PANTHERS
FOOTBALL, LLC; CHICAGO BEARS
FOOTBALL CLUB, INC.; CINCINNATI
BENGALS, INC.; CLEVELAND
BROWNS FOOTBALL COMPANY,
LLC; DALLAS COWBOYS FOOTBALL
CLUB, LTD.; PDB SPORTS LTD.;
DETROIT LIONS, INC.; GREEN BAY
PACKERS, INC.; HOUSTON NFL
HOLDINGS, LP; INDIANAPOLIS
COLTS, INC.; JACKSONVILLE
JAGUARS LLC; KANSAS CITY CHIEFS
FOOTBALL CLUB, INC.; CHARGERS
FOOTBALL COMPANY LLC; THE
RAMS FOOTBALL COMPANY, LLC;
MIAMI DOLPHINS, LTD.; MINNESOTA
VIKINGS FOOTBALL LLC; NEW
YORK FOOTBALL GIANTS, INC.; NEW
YORK JETS, LLC; PHILADELPHIA
2 CITY OF OAKLAND V. OAKLAND RAIDERS
EAGLES LLC; PITTSBURGH
STEELERS LLC; FORTY NINERS
FOOTBALL COMPANY LLC;
FOOTBALL NORTHWEST LLC;
BUCCANEERS TEAM LLC;
TENNESSEE FOOTBALL, INC.; PRO-
FOOTBALL, INC.; NATIONAL
FOOTBALL LEAGUE; NEW ENGLAND
PATRIOTS LLC; NEW ORLEANS
LOUISIANA SAINTS, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted June 14, 2021
San Francisco, California
Filed December 2. 2021
Before: A. Wallace Tashima and Patrick J. Bumatay,
Circuit Judges, and Douglas L. Rayes,* District Judge.
Opinion by Judge A. Wallace Tashima;
Concurrence by Judge Bumatay
*
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
CITY OF OAKLAND V. OAKLAND RAIDERS 3
SUMMARY**
Antitrust
The panel affirmed the district court’s dismissal, for
failure to state a claim, of an antitrust action brought by the
City of Oakland against the National Football League and its
member teams.
The City alleged that defendants created artificial scarcity
in their product of NFL teams, and then used that scarcity to
demand supra-competitive prices from host cities. The City
alleged that when it could not pay those prices, defendants
punished it by allowing the Raiders to move to Las Vegas.
The panel held that the City had Article III standing
because it plausibly alleged that, but for defendants’ conduct,
it would have retained the Raiders, and thus made the
required showing that its injury was likely caused by
defendants.
Affirming the district court’s dismissal, the panel held
that defendants’ conduct did not amount to an unreasonable
restraint of trade in violation of § 1 of the Sherman Act. The
panel held that the City failed sufficiently to allege a group
boycott, which occurs when multiple producers refuse to sell
goods or services to a particular customer. Here, the City
alleged only that a single producer, the Raiders, refused to
deal with it. The panel held that the City also failed
sufficiently to allege statutory standing on a theory that
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CITY OF OAKLAND V. OAKLAND RAIDERS
defendants’ conduct constituted an unlawful horizontal price-
fixing scheme. The panel held that a finding of antitrust
standing requires a balancing of the nature of the plaintiff’s
alleged injury, the directness of the injury, the speculative
measure of the harm, the risk of duplicative recovery, and the
complexity in apportioning damages. The panel reasoned
that here, the City was priced out of the market and therefore
was a nonpurchaser. In addition, the City’s damages were
highly speculative and would be exceedingly difficult to
calculate.
Concurring, Judge Bumatay wrote that he would hold that
the price-fixing claim was too speculative to satisfy the
threshold of constitutional standing. He wrote that the City
did not show that its injury was fairly traceable to defendants’
challenged conduct, but rather relied on speculation upon
speculation to connect its injury of the Raiders leaving for
Las Vegas to the NFL’s entry rule. Judge Bumatay thus
concurred in the court’s judgment and joined Parts I, II, and
III.B of the majority opinion.
CITY OF OAKLAND V. OAKLAND RAIDERS 5
COUNSEL
Michael M. Fay (argued), James W. Quinn, Jenny H. Kim,
and Emily Burgess, Berg & Androphy, New York, New
York; Bruce L. Simon, Pearson Simon & Warshaw, LLP, San
Francisco, California; Clifford H. Pearson, Michael H.
Pearson and Thomas J. Nolan, Pearson Simon & Warshaw,
LLP, Sherman Oaks, California; Barbara Jean Parker, Maria
Bee, and Malia McPherson, Office of the City Attorney,
Oakland, California, for Plaintiff-Appellant City of Oakland.
Daniel B. Asimow (argued) and Kenneth G. Hausman,
Arnold & Porter Kaye Scholer LLP, San Francisco,
California; Jonathan I. Gleklen, Arnold & Porter Kaye
Scholer LLP, Washington, D.C.; for Defendant-Appellee The
Oakland Raiders.
John E. Hall, Gregg H. Levy, Derek Ludwin, and Benjamin J.
Razi, Covington & Burling LLP, Washington, D.C., for
Defendants-Appellees The National Football League and all
NFL Clubs other than The Oakland Raiders.
Makan Delrahim Assistant Attorney General; Michael F.
Murray, Deputy Assistant Attorney General; Daniel E. Haar
and Jeffrey D. Negrette, Attorneys; Antitrust Division, United
States Department of Justice, Washington, D.C.; for Amicus
Curiae United States of America.
6 CITY OF OAKLAND V. OAKLAND RAIDERS
OPINION
TASHIMA, Circuit Judge:
Plaintiff City of Oakland (the “City”) alleges that the
National Football League (“NFL”) and its thirty-two member
teams (collectively, “Defendants”) have “created artificial
scarcity in their product (NFL teams), and then used that
scarcity . . . to demand supra-competitive prices from host
cities.” First Am. Compl. (“FAC” or “complaint”) FAC ¶ 1.1
It further alleges that, “[w]hen Oakland could not pay those
prices, Defendants punished the city: they voted to allow the
Raiders to move to Las Vegas, which left Oakland without an
NFL team and caused significant losses to Oakland.” FAC
¶ 2. The City contends that Defendants’ conduct amounts to
an unreasonable restraint of trade in violation of § 1 of the
Sherman Act, 15 U.S.C. § 1, on two independent bases: First,
because it constitutes an unlawful group boycott, and second,
because it constitutes an unlawful horizontal price-fixing
scheme. The district court dismissed the City’s Sherman Act
claim for failure to state a claim upon which relief may be
granted. See City of Oakland v. Oakland Raiders, 445 F.
Supp. 3d 587, 606 (N.D. Cal. 2020); Fed. R. Civ. P. 12(b)(6).
We affirm.
We agree with the district court that the City has failed to
allege a group boycott. A group boycott occurs when
multiple producers refuse to sell goods or services to a
particular consumer. Although the City alleges collective
1
The NFL is “an association of ‘separately owned professional
football teams.’” In re Nat’l Football League’s Sunday Ticket Antitrust
Litig., 933 F.3d 1136, 1144 (9th Cir. 2019) (quoting Am. Needle, Inc. v.
Nat’l Football League, 560 U.S. 183, 187 (2010)).
CITY OF OAKLAND V. OAKLAND RAIDERS 7
action (i.e., that the other NFL teams supported the Raiders’
boycott), it has not alleged a group boycott. The City has
alleged only that a single producer—the Raiders—refused to
deal with the City.
The City’s horizontal price fixing theory fails as well. To
plead a Sherman Act claim, a private plaintiff must show that
it is a proper party to pursue the claim—a requirement known
as antitrust standing. Although buyers who pay collusive
overcharges (direct purchasers) ordinarily have antitrust
standing to challenge a horizontal price-fixing scheme,
buyers, like the City, who are priced out the market—and
hence do not purchase the product or pay the
overcharge—ordinarily do not. A nonpurchaser’s injury is
less direct than the injuries of actual purchasers and highly
speculative: we cannot know whether, in the absence of
Defendants’ restrictions on output, the nonpurchaser would
have made a purchase and, if so, under what terms. In
addition, the City’s damages are highly speculative and
would be exceedingly difficult to calculate. We therefore
agree with the district court that the City has failed to allege
antitrust standing on its horizontal price fixing theory of
liability.
8 CITY OF OAKLAND V. OAKLAND RAIDERS
I.2
In 1995, the Oakland Raiders professional football team
signed an agreement to play in the Oakland-Alameda County
Coliseum (“Coliseum”). FAC ¶ 102. Under the terms of the
agreement, the Raiders leased the Coliseum for a period of
sixteen years, with an annual rent of $50,000; the City offered
the Raiders a $31.9 million relocation and operating loan; the
City committed up to $10 million toward the construction of
a new training facility; the City offered up to $85 million
toward stadium modernization efforts; and the Raiders agreed
to a $1 surcharge on ticket sales, with the proceeds to benefit
Oakland public schools and other public services. FAC
¶ 102. The Raiders extended the lease in 2009 and again in
2014. FAC ¶¶ 107, 112.
In the years that followed, the City negotiated with the
Raiders in an unsuccessful attempt to keep the team in
Oakland. In 2014, the City proposed donating land to the
Raiders for a new stadium. FAC ¶ 113. In 2015, the City
proposed a $500 million renovation of the Coliseum, to which
the City would have contributed significantly. FAC ¶ 113.
In 2016, the City supported a proposal to build a new
$1.3 billion stadium in Oakland, financed by $350 million in
public funds, $400 million from an investment group led by
former NFL players Ronnie Lott and Rodney Peete, and $500
2
Because the district court dismissed the City’s Sherman Act claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, we recite the
facts as they appear in the City’s complaint. See Padilla v. Yoo, 678 F.3d
748, 751 n.1 (9th Cir. 2012) (“We emphasize that this factual background
is based only on the allegations of the plaintiffs’ complaint. Whether the
plaintiffs’ allegations are in fact true has not been decided in this
litigation, and nothing we say in this opinion should be understood
otherwise.”).
CITY OF OAKLAND V. OAKLAND RAIDERS 9
million from the Raiders. FAC ¶ 121. The City alleges that
the Raiders and the NFL engaged in these negotiations in bad
faith. According to the complaint, “[t]he Raiders, the NFL,
and ultimately, the vast majority of NFL Clubs, were just
stringing Oakland along as part of their collusive scheme to
relocate the Raiders.” FAC ¶ 23.
In 2017, the Raiders filed an application with the NFL to
relocate the team to Las Vegas. FAC ¶ 124. The NFL teams
voted thirty-one to one to approve the relocation. FAC ¶ 132.
The complaint alleges that the move benefitted the Raiders
and the other NFL teams alike. The Raiders moved to a new,
$1.9 billion stadium in Las Vegas, financed by $750 million
in public funds, FAC ¶¶ 5, 149, and the team’s enterprise
value more than doubled to $3 billion, FAC ¶¶ 5, 63. The
other teams, meanwhile, divided a $378 million relocation fee
paid by the Raiders, FAC ¶ 66, and, due to revenue sharing
among NFL teams, stand to share in “new television rights in
a new geographic territory, new merchandising, new
intellectual property and game receipts from an ultra-luxury
$1.9 billion stadium,” FAC ¶¶ 4, 66.
In 2018, the City commenced this action against the NFL,
the Raiders, and the other thirty-one NFL teams, alleging an
antitrust violation under § 1 of the Sherman Act, 15 U.S.C.
§ 1, as well as breach of contract and unjust enrichment
claims under California law. FAC ¶¶ 218–42. The complaint
seeks declaratory and monetary relief, including treble
damages under § 4 of the Clayton Act, 15 U.S.C. § 15(a).
With respect to the Sherman Act claim, which is the focus
of this appeal, the complaint alleges that
10 CITY OF OAKLAND V. OAKLAND RAIDERS
[t]he relevant market in this action is the
market for hosting NFL teams. The
consumers in this market are all Host Cities
offering, and all cities and communities that
are willing to offer (i.e., potential Host Cities),
home stadia and other support to major league
professional football teams in the geographic
United States. The product in this market is
the NFL team, as a hosted entity.
FAC ¶ 189. The City alleges that this market is
anticompetitive because the NFL limits both the number of
teams and the freedom of teams to relocate: NFL rules
permit neither league expansion nor team relocation without
the approval of three-fourths of the NFL’s teams. FAC ¶ 66.
The complaint further alleges that these policies and practices
artificially restrict the number of teams, driving up the prices
demanded of and paid by host cities. As incumbent and
aspiring host cities compete with one another, they are forced
to pay supracompetitive prices to retain or acquire teams,
usually in the form of publicly financed stadia. The
complaint alleges that in a competitive market—with more
teams and fewer restrictions on relocation—teams would
instead compete for host cities, driving down prices:
“Because all viable locations would have a team, team
owners would not be able to make threats about leaving their
current Host Cities. In fact, the tables would take a dramatic
turn: teams actually would compete for financially viable
locations.” FAC ¶ 47 (quoting R. Fort, Market Power in Pro
Sports: Problems and Solutions, 13–14, in The Economics of
Sports (W. Kern ed., 2000)). The complaint maintains that,
“[i]n a competitive market, demanding a new stadium would
be a risky move for any team owner: the Host City could
CITY OF OAKLAND V. OAKLAND RAIDERS 11
reject the demand and seek out a new team willing to play in
the existing stadium.” FAC ¶ 145.
The City’s contention that, in a competitive market, the
Raiders would have stayed in Oakland rests on three
premises. First, the City alleges that there would be more
NFL teams in a competitive market. According to the
complaint, Defendants “artificially restrict the supply of its
product (NFL teams) even though consumer demand in the
market could support greater output (more teams).” FAC ¶ 9.
“[F]ocusing on factors of wealth and population,” the City
contends that “the current NFL could support as many as
42 teams in the United States.” FAC ¶ 43. Second, the City
asserts that Oakland is a highly attractive market:
A recent economic analysis conducted by
Dr. Daniel Rascher, Professor and Director of
Academic Programs for the Sport
Management Program at the University of San
Francisco, commissioned by Oakland focused
on which U.S. cities, currently without an
NFL team, best reflect the demographic and
financial conditions of existing Host Cities
and are the best prospects for new NFL
franchises. The winner? Oakland. Focusing
on total population, real income, percentage of
NFL “super fans,” and existing stadia support,
Oakland was the highest rated city for NFL
expansion.
FAC ¶ 138. Third, the City alleges that “without the NFL’s
cartel structure and rigid control over output (league
expansion), the Raiders would have had virtually no
relocation ‘extortion’ threat to exercise.” FAC ¶ 92.
12 CITY OF OAKLAND V. OAKLAND RAIDERS
The City contends that Defendants’ conduct violates the
Sherman Act on horizontal price-fixing and group boycott
theories. First, the City contends that Defendants have
engaged in a group boycott, also known in antitrust law as a
concerted refusal to deal. The complaint alleges that “[t]he
decision to remove a team from a Host City, combined with
the decision to deny that same City a new expansion
franchise, constitutes a collective refusal to deal with, or a
group boycott of, the City.” FAC ¶ 140. Second, the City
contends that Defendants, as a cartel, have engaged in a
classic horizontal price-fixing scheme. FAC ¶ 146. By
“constrain[ing] the supply of NFL teams,” the NFL “is
driving up the price of hosting an NFL team far beyond the
marginal costs of operating an NFL team and far beyond the
price that would be found in a competitive marketplace.”
FAC ¶¶ 145–46.
The complaint asserts that the City lost the Raiders for
two reasons. First, the City alleges that it was priced out of
the market: “Because it could not pay Defendants’
supra-competitive prices, Oakland lost the Raiders and any
chance to host an NFL team.” FAC ¶ 51. Second, because
Defendants believed moving the Raiders to Las Vegas was in
their economic interest, they refused to negotiate with the
City in good faith.
The complaint alleges that Defendants’ conduct—and the
loss of the Raiders—has injured the City in several ways:
lost investment value arising from the tens of millions of
dollars the City borrowed to improve the Coliseum and build
a training facility, FAC ¶¶ 201–03; lost income, including the
$1 ticket surcharge dedicated to public education and the
rental monies the Raiders paid for use of the Coliseum, FAC
¶¶ 204–05; lost tax revenues from ticket sales, concessions,
CITY OF OAKLAND V. OAKLAND RAIDERS 13
stadium parking, player compensation, and merchandising
associated with Raiders games, FAC ¶¶ 206–10; and
devaluation of the Coliseum property, which the City and
Alameda County jointly own, FAC ¶¶ 211–17.
The district court dismissed the City’s Sherman Act claim
with prejudice under Rule 12(b)(6) and declined to exercise
supplemental jurisdiction over the state-law claims. The
court concluded that the City’s alleged injuries were too
speculative to confer antitrust standing because the City “had
not plausibly alleged that, but for the limited number of
teams, Oakland would still have an NFL team.” City of
Oakland, 445 F. Supp. 3d at 601. The court also rejected the
City’s group boycott theory on the ground that the City had
“not alleged that any NFL team besides the Raiders has
refused to deal with Oakland, or that the NFL has prohibited
any team from dealing with Oakland.” Id. at 605–06.
Following the entry of judgment, the City timely appealed.
II.
“Dismissal for failure to state a claim is reviewed de
novo.” Barrett v. Belleque, 544 F.3d 1060, 1061 (9th Cir.
2008) (per curiam). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.“Antitrust standing is a question of law reviewed de novo.”
Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051,
1054 (9th Cir. 1999).
14 CITY OF OAKLAND V. OAKLAND RAIDERS
III.
A. Article III Standing
We begin by addressing Defendants’ argument that the
City lacks Article III standing.3 To establish constitutional
standing, “a plaintiff must show (i) that he suffered an injury
in fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant; and
(iii) that the injury would likely be redressed by judicial
relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992)).
Defendants focus on the second requirement, contending
that the City’s “purported injury cannot ‘fairly . . . be traced’
to the NFL’s rules requiring existing teams to approve league
expansion,” because the City relies on “a long and speculative
chain of causation.” Specifically, Defendants emphasize that
the City does not “allege that any team sought to play in the
NFL and was denied admission,” “that if there were an
additional team, it would have played in Las Vegas thereby
foreclosing the Raiders’ move there,” “that if there were
additional teams and one of them might have played in Las
Vegas, the Raiders would have stayed in Oakland rather than
move to another city with a more attractive stadium or better
economics,” or “that it made any effort to attract an existing
franchise or new expansion team to replace the Raiders in
3
Although Defendants did not challenge the City’s constitutional
standing in the district court, the issue “may be raised at any time, even for
the first time on appeal.” DBSI/TRI IV Ltd. P’ship v. United States,
465 F.3d 1031, 1038 (9th Cir. 2006).
CITY OF OAKLAND V. OAKLAND RAIDERS 15
Oakland since learning in 2016 of the Raiders’ plans to
leave.”
We agree with Defendants that the City relies on a
somewhat speculative chain of causation. As we explain in
Part III.C, infra, this fact plays a significant role in our
analysis of the City’s statutory standing. To establish
constitutional standing, however, the City need not establish
to a certainty that, but for Defendants’ challenged conduct, it
would have retained the Raiders or acquired another team. It
need only plausibly allege that, but for that conduct, there is
a “substantial probability” that it would have done so. See
Warth v. Seldin, 422 U.S. 490, 504 (1975); Nat’l Fam. Farm
Coal. v. U.S. Env’t Prot. Agency, 966 F.3d 893, 908 (9th Cir.
2020); Legal Aid Soc’y of Alameda Cnty. v. Brennan,
608 F.2d 1319, 1334–35 (9th Cir. 1979). That standard is
satisfied here. The City credibly alleges that Oakland is a
prime location for an NFL team, that there would be more
NFL teams in a market driven by consumer demand, and
that—in a competitive market—teams like the Raiders would
not be able to use a threat of relocation to demand
supracompetitive concessions from host cities. Specifically,
Oakland is an incumbent host city. FAC ¶ 1. The City
further alleges that in the absence of Defendants’ challenged
actions (i.e., in a competitive market), there would be more
teams in the NFL FAC ¶¶ 1, 9, 39, 43–44, 67, 69, 197, 199;
that in the absence of Defendants’ challenged actions,
Defendants would not be able to threaten relocation, FAC
¶¶ 16, 145, or demand supracompetitive prices from host
cities, FAC ¶¶ 5, 10, 14, 47, 49, 57, 149, 198; that Oakland
was willing and able to pay competitive prices to retain the
Raiders, FAC ¶¶ 4, 65, 121–22, 128–31; that Oakland is a
highly desirable host city for an NFL team, FAC ¶¶ 5, 26.
127,138; that NFL relocation policies favor a team’s home
16 CITY OF OAKLAND V. OAKLAND RAIDERS
territory over relocation, FAC ¶¶ 21, 89–90, 167; that the
Raiders were financially successful in Oakland, received
significant financial support from the City, and had one of the
most loyal fan bases in the NFL, FAC ¶ 22; that Oakland lost
the Raiders solely because it was unable to pay
supracompetitive prices, FAC ¶¶ 51, 133, 150–51; and that,
in a competitive market, the Raiders would have stayed in
Oakland or Oakland would have landed another team, FAC
¶¶ 16, 92.
These allegations are sufficiently plausible to allege that
there is a “substantial probability” that the Raiders would
have stayed in Oakland if not for Defendants’ challenged
conduct. This is not a case in which the plaintiff’s theory of
standing is either “counterintuitive” or premised on “a ‘highly
attenuated chain of possibilities.’” California v. Texas,
141 S. Ct. 2104, 2119 (2021) (quoting Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 410 (2013)).4
4
Defendants’ reliance on City of Rohnert Park v. Harris, 601 F.2d
1040 (9th Cir. 1979), is misplaced. There, the city’s assertion that a
regional shopping center would have been developed in the city absent the
defendants’ challenged conduct was “entirely speculative.” Id. at 1045.
That is not the case here.
CITY OF OAKLAND V. OAKLAND RAIDERS 17
B. Group Boycott5
As stated above, the complaint alleges a violation of the
Sherman Act on two alternative theories—horizontal price
fixing and group boycott. The district court rejected the
group boycott theory on the ground that the City “has not
alleged that any NFL team besides the Raiders has refused to
deal with Oakland, or that the NFL has prohibited any team
from dealing with Oakland or set any ‘agreed terms’ that
Oakland must meet to attract a new or different team.” City
of Oakland, 445 F. Supp. 3d at 605–06. The City contends
that the complaint adequately states a claim on a group
boycott theory because it alleges that “it is the NFL owners
5
“The classic ‘group boycott’ is a concerted attempt by a group of
competitors at one level to protect themselves from competition from
non-group members who seek to compete at that level”—something that
is not alleged here. Phil Tolkan Datsun, Inc. v. Greater Milwaukee
Datsun Dealers’ Advert. Ass’n, 672 F.2d 1280, 1284 (7th Cir. 1982)
(quoting Smith v. Pro Football, Inc., 593 F.2d 1173, 1178 (D.C. Cir.
1978)); see also Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law:
An Analysis of Antitrust Principles and Their Application ¶¶ 2003i, 2200a
(4th and 5th eds. 2013–2020) (“Areeda & Hovenkamp”). “The term
group boycott,” however, “is in reality a very broad label for divergent
types of concerted activity,” Phil Tolkan Datsun, 672 F.2d at 1285(quoting Mackey v. Nat’l Football League, 543 F.2d 606, 619 (8th Cir.
1976), overruled on other grounds as stated in Eller v. Nat’l Football
League Players Ass’n, 731 F.3d 752, 755 (8th Cir. 2013)), and the
Supreme Court has recognized group boycotts aimed directly at
consumers, e.g., St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 533,
544 (“[T]he Sherman Act makes it an offense for [businessmen] to agree
among themselves to stop selling to particular customers.” (alteration in
original) (quoting Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340
U.S. 211, 214 (1951), overruled on other grounds by Copperweld Corp.
v. Indep. Tube Corp., 467 U.S. 752 (1984))). For purposes of our analysis,
therefore, we assume that a concerted refusal to deal with a consumer or
consumers states a cognizable “group boycott” claim under § 1 of the
Sherman Act.
18 CITY OF OAKLAND V. OAKLAND RAIDERS
acting collectively (not individual teams) who decide whether
and where a particular team may relocate and . . . Defendants
made a ‘collective decision to move the Raiders to Las
Vegas.’” We disagree.
Collective action in support of an individual boycott is not
the same as a group boycott. The City’s allegations, taken as
true, show only that the Raiders boycotted the City and that
the other Defendants supported the Raiders’ boycott. The
other teams did not “boycott” the City. The FAC does not
allege that they, or any of them, refused to “sell” to the City.
The group boycott cases upon which the City relies
involve circumstances in which multiple producers refused to
sell their goods or services to consumers. In FTC v. Superior
Court Trial Lawyers Ass’n., 492 U.S. 414 (1990), the
Supreme Court recognized a viable group boycott claim
where “a group of lawyers agreed not to represent indigent
criminal defendants in the District of Columbia Superior
Court until the District of Columbia government increased the
lawyers’ compensation.” Id. at 422–23 (emphasis added).
The Supreme Court explained that these lawyers, as a group,
had engaged in “a concerted refusal to serve an important
customer in the market for legal services.” Id. at 423. And
in St. Paul Fire & Marine Insurance Co., 438 U.S. at 543–45,
the Court recognized a group boycott claim where three
medical malpractice insurers refused to offer coverage to the
policyholders of a fourth insurer in order to force the
policyholders into agreeing to coverage by the fourth insurer
on the fourth insurer’s terms. As these cases reflect, a group
boycott occurs when “two or more competitors . . . refuse to
do business with one firm.” Group boycott, Black’s Law
Dictionary (11th ed. 2019) (emphasis added); see Seagood
Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1568 (11th Cir.
CITY OF OAKLAND V. OAKLAND RAIDERS 19
1991) (“[T]he distinguishing feature of such cases is a
plurality of refusals to deal by different parties.”); Constr.
Aggregate Transp., Inc. v. Fla. Rock Indus., Inc., 710 F.2d
752, 773 (11th Cir. 1983) (“[I]t is important to remember that
a concerted refusal to deal essentially is an agreement among
two or more parties that each will engage in an individual
refusal to deal with a particular customer or customers. In the
case before us, however, we have only one business entity
refusing to deal with the plaintiff . . . . That [a second
business entity] may have instigated [the first entity’s] refusal
to deal does not create the plurality of ‘refusals’ necessary for
the arrangement to be called a group boycott.”). Here, the
other NFL teams simply supported the Raiders’ refusal to
deal with the City, but did not themselves refuse to do
business with the City. The City, therefore, although it has
alleged an individual boycott, has not alleged a group
boycott.6
The City alternatively contends that it has alleged a group
boycott because the other teams supported the Raiders’
relocation threat by agreeing among themselves that they
would neither relocate to Oakland nor allow an expansion
team to locate there if the City refused to accede to the
Raiders’ demands for a new stadium. FAC ¶ 140. A law
review article upon which the City relies describes this group
boycott theory as follows:
[G]iven the artificial scarcity of teams and the
difficulty of new entry, threats to relocate are
6
We do not decide whether the collective action of which the City
complains could be actionable under § 1 of the Sherman Act on any other
theory. We hold only that the conduct of which the City complains does
not allege a group boycott.
20 CITY OF OAKLAND V. OAKLAND RAIDERS
more than the action of an individual
economic entity; rather, every threat to
relocate is also an implicit threat of a
concerted boycott. A group boycott exists
when individual economic actors agree to
refrain from dealing with another entity in
order to gain some competitive advantage, in
this case the advantage of favorable subsidies
to build or renovate new stadiums. . . .
Translation: If Houston does not pay the price
demanded by the Oilers, no other NFL team
will deal with the city.
David Haddock, Tonga Jacobi & Matthew Sag, League
Structure & Stadium Rent-Seeking—the Role of Antitrust
Revisited, 65 Fla. L. Rev. 1, 50–51 (2013). This may be a
viable theory of group boycott (a question we need not
reach), but it fails here because the City has not proffered any
specific allegations to suggest that such an agreement in fact
existed in this case. As the district court explained, “[c]ertain
commentators’ view that ‘a threat by an individual team to
relocate may comprise an implicit threat of concerted boycott’
does not, without more, show that such a boycott in fact
occurred.” City of Oakland, 445 F. Supp. 3d at 606. The
City’s allegation is therefore too speculative to cross the
plausibility threshold.
C. Horizontal Price Fixing: Antitrust Standing
Because the City’s group boycott theory fails to state a
claim, the viability of the City’s Sherman Act claim turns on
its horizontal price-fixing theory. As set forth below, we hold
CITY OF OAKLAND V. OAKLAND RAIDERS 21
that the City’s price-fixing theory fails as well, for lack of
antitrust standing.7
Section 1 of the Sherman Act prohibits unreasonable
restraints of trade. In re NFL’s Sunday Ticket Antitrust Litig.,
933 F.3d at 1149.8 Actions for damages, like this one, are
authorized by § 4 of the Clayton Act.9 “Despite the apparent
breadth of the phrase ‘any person,’ the Supreme Court has
held that Congress did not intend to afford a remedy to
everyone injured by an antitrust violation simply on a
showing of causation.” Knevelbaard Dairies v. Kraft Foods,
Inc., 232 F.3d 979, 987 (9th Cir. 2000). Instead, the plaintiff
must have “antitrust standing.” Id.We have “identified certain factors for determining
whether a plaintiff who has borne an injury has antitrust
standing”:
7
Because we affirm the dismissal of the City’s group boycott theory
on other grounds, we need not address whether our analysis of antitrust
standing with respect to the City’s price-fixing theory applies as well to
the City’s group boycott theory.
8
The City does not contend that the challenged practices are per se
unlawful.
9
Section 4(a) provides:
[A]ny person who shall be injured in his business or
property by reason of anything forbidden in the antitrust
laws may sue therefor . . . and shall recover threefold
the damages by him sustained, and the cost of suit,
including a reasonable attorney’s fee.
15 U.S.C. § 15(a).
22 CITY OF OAKLAND V. OAKLAND RAIDERS
(1) the nature of the plaintiff’s alleged injury;
that is, whether it was the type the antitrust
laws were intended to forestall;
(2) the directness of the injury;
(3) the speculative measure of the harm;
(4) the risk of duplicative recovery; and
(5) the complexity in apportioning damages.
Am. Ad Mgmt., 190 F.3d at 1054.10
10
These five factors are illustrative rather than exhaustive. In R.C.
Dick Geothermal Corp. v. Thermogenics, Inc., 890 F.2d 139, 146 (9th Cir.
1989) (en banc), for example, we articulated five different factors that,
although largely overlapping with those identified in American Ad
Management, included two factors that we did not specifically mention in
American Ad Management: “[t]he specific intent of the alleged
conspirators” and “[t]he existence of other, more appropriate plaintiffs.”
We nevertheless rely on the American Ad Management factors to frame
our analysis. Among other virtues, they adhere closely to the factors
identified by Areeda and Hovenkamp in their influential treatise on
antitrust law:
Unlike the United States government, which is
authorized to sue anyone who violates the antitrust
laws, a private antitrust plaintiff must show “standing”
to sue. In addition to proving everything that would
entitle the government to relief, the private plaintiff
must also show (1) that the acts violating the antitrust
laws caused—or, in an equity case, threatened to
cause—it injury-in-fact to its “business or property;”
(2) that this injury is not too remote or duplicative of
the recovery of a more directly injured person; (3) that
such injury is “antitrust injury,” which is defined as the
kind of injury that the antitrust laws were intended to
CITY OF OAKLAND V. OAKLAND RAIDERS 23
“To conclude that there is antitrust standing, a court need
not find in favor of the plaintiff on each factor.” Id. at 1055.
“Instead, we balance the factors,” id., recognizing that
“[a]ntitrust standing involves a case-by-case analysis,”
Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir. 1996) (as
amended). “Most cases will find some factors tending in
favor of standing (to a greater or lesser degree), and some
against (also in varying degrees), and a court may find
standing if the balance of factors so instructs.” L.A. Mem’l
Coliseum Comm’n v. Nat’l Football League, 791 F.2d 1356,
1363 (9th Cir. 1986). Nevertheless, the first factor—antitrust
injury—is mandatory. See Am. Ad Mgmt., 190 F.3d at 1055(“[T]he Supreme Court has noted that ‘[a] showing of
antitrust injury is necessary, but not always sufficient, to
establish standing under § 4.’” (second alteration in original)
(quoting Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104,
110 n.5 (1986))); see also Big Bear Lodging Ass’n v. Snow
Summit, Inc., 182 F.3d 1096, 1102 (9th Cir. 1999) (“To have
standing to bring an antitrust case, a plaintiff must
demonstrate that the harm the plaintiff has suffered or might
suffer from the practice is an ‘antitrust injury,’ that is, an
‘injury of the type the antitrust laws were intended to prevent
and that flows from that which makes defendants’ acts
unlawful.’” (quoting Atl. Richfield Co. v. USA Petroleum Co.,
prevent and “flows from that which makes defendants’
acts unlawful”; and, in a damage case, (4) that the
damages claimed or awarded measure such injury in a
reasonably quantifiable way.
Areeda & Hovenkamp ¶ 335 (footnotes omitted). Although American Ad
Management did not mention the requirement that a plaintiff show injury
to its “business or property,” that is indisputably an additional requirement
for antitrust standing under § 4 of the Clayton Act. See 15 U.S.C. § 15(a);
Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 260–61 (1972).
24 CITY OF OAKLAND V. OAKLAND RAIDERS
495 U.S. 328, 334 (1990))). Applying these principles here,
we conclude that, although the City has alleged antitrust
injury, it has not alleged antitrust standing generally.
1. Antitrust Injury
We have identified “four requirements for antitrust injury:
(1) unlawful conduct, (2) causing an injury to the plaintiff,
(3) that flows from that which makes the conduct unlawful,
and (4) that is of the type the antitrust laws were intended to
prevent.” Am. Ad Mgmt., 190 F.3d at 1055.
The City has adequately alleged the first
requirement—unlawful conduct. The City alleges that
Defendants, operating as a cartel, have restricted the number
of NFL teams and demanded supracompetitive prices from
host cities. These allegations are sufficient. See, e.g., NCAA
v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 107–08
(1984) (“Restrictions on price and output are the paradigmatic
examples of restraints of trade that the Sherman Act was
intended to prohibit.”); Rebel Oil Co. v. Atl. Richfield Co.,
51 F.3d 1421, 1434 (9th Cir. 1995) (“If the plaintiff puts forth
evidence of restricted output and supracompetitive prices,
that is direct proof of . . . injury to competition . . . .”).
The City has adequately alleged the second
requirement—injury—as well. This requirement is satisfied
where the plaintiff shows that it “stands to suffer, not gain,”
from the defendant’s unlawful conduct. Am. Ad Mgmt.,
190 F.3d at 1056. That is the case here. The City plausibly
alleges that, but for Defendants restrictions on output, the
Raiders would have stayed in Oakland, or another NFL team
would have located there. The City alleges, moreover, that
CITY OF OAKLAND V. OAKLAND RAIDERS 25
the loss of the Raiders has caused the City economic loss,
including reduced tax revenues.
Under the third requirement, “[i]t is not enough that the
plaintiff’s claimed injury flows from the unlawful conduct.
An antitrust injury must ‘flow[ ] from that which makes
defendants’ acts unlawful.’” Id. (second alteration in
original). The complaint again satisfies this requirement
here. The City’s alleged injuries stem from the loss of the
Raiders, and the City plausibly alleges that the Raiders left
Oakland because of Defendants’ allegedly unlawful
restriction on output. The City also credibly asserts that, in
a world with more teams, there might have already been a
team in Las Vegas, blocking the Raiders’ move there, and
that, in a competitive market with more teams, the Raiders
would not have had the leverage to demand supracompetitive
concessions from the City. The City’s alleged injuries,
therefore, flow from that which allegedly makes Defendants’
conduct unlawful: limiting output below levels dictated by
consumer demand.
“Finally, the plaintiff’s injury must be ‘of the type the
antitrust laws were intended to prevent.’” Id. at 1057. “The
Supreme Court has made clear that injuries which result from
increased competition or lower (but non-predatory) prices are
not encompassed by the antitrust laws.” Id. Thus, “[i]f the
injury flows from aspects of a defendant’s conduct that are
beneficial or neutral to competition, there is no antitrust
injury, even if the defendant’s conduct is illegal.” Theme
Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1003
(9th Cir. 2008). Here, Defendants argue that the complaint
fails this test because the City lost the Raiders “through the
process of competition . . . . Loss of the Raiders to a city that
26 CITY OF OAKLAND V. OAKLAND RAIDERS
made a better offer is not injury arising from a reduction in
competition.”
Defendants’ argument stands antitrust law on its head.
“[T]he principal objective of antitrust policy is to maximize
consumer welfare by encouraging firms to behave
competitively,” Areeda & Hovenkamp ¶ 100, not, as
Defendants suggest, to maximize producers’ welfare by
increasing competition among consumers. As the Supreme
Court recently reminded us, “[t]he goal [of the Sherman Act]
is to distinguish between restraints with anticompetitive effect
that are harmful to the consumer and restraints stimulating
competition that are in the consumer’s best interest.” NCAA
v. Alston, 141 S. Ct. at 2151 (first alteration in original)
(emphasis added) (quoting Ohio v. Am. Express Co., 138 S.
Ct. 2274, 2284 (2018)). Thus, the fact that the City lost the
Raiders as a result of enhanced competition among
consumers does not negate the City’s antitrust injury.
On the contrary, the proper focus is on whether the City’s
injuries flow from a decrease in competition among
producers. They do. The City alleges that it was injured
because Defendants reduced output and increased prices.
These are precisely the kinds of harms to competition that the
antitrust laws were intended to prevent. See Pool Water
Prod. v. Olin Corp., 258 F.3d 1024, 1034 (9th Cir. 2001)
(“Antitrust injury ‘means injury from higher prices or lower
output, the principal vices proscribed by the antitrust laws.’”
(quoting Nelson v. Monroe Reg’l Med. Ctr., 925 F.2d 1555,
1564 (7th Cir. 1991))). Thus, the City has alleged antitrust
injury.
CITY OF OAKLAND V. OAKLAND RAIDERS 27
2. The Directness of the Injury
The second factor in the antitrust standing inquiry “looks
to whether [the plaintiff’s] alleged injury was the direct result
of [the defendant’s] allegedly anticompetitive conduct.” Am.
Ad Mgmt., 190 F.3d at 1058. This factor focuses on “the
chain of causation between [the plaintiff’s] injury and the
alleged restraint” of trade. Id. “The harm may not be
‘derivative and indirect’ or ‘secondary, consequential, or
remote.’” Theme Promotions, 546 F.3d at 1004 (first quoting
Amarel, 102 F.3d at 1511, and then quoting Kolling v. Dow
Jones & Co., 187 Cal. Rptr. 797, 808 (Ct. App. 1982)).
This factor cuts against the City’s antitrust standing. In
a horizontal price-fixing scheme like the one the City alleges
here, members of a cartel “collude on price and output in an
effort to maximize their profits.” Areeda & Hovenkamp
¶ 391b1. Producers restrict output and raise prices, and
consumers—direct purchasers from the cartel—pay an
overcharge (a supracompetitive price) to purchase the
producers’ goods or services. These direct purchasers plainly
have “standing to recover any collusive overcharges.” Id.Their injuries are direct and certain. The same cannot be
said, however, of consumers, like the City, that “were priced
out of the market.” Id. As Areeda & Hovenkamp explain:
The difficulty lies in identifying those who are
injured by the deadweight welfare loss.
Anyone could claim that he or she would have
purchased at the competitive price but was
priced out of the market as a result of the
anticompetitive pricing. Thus, courts are
likely to find that the claims of those who
28 CITY OF OAKLAND V. OAKLAND RAIDERS
refused to purchase at the cartel price are
speculative.
Id.The Tenth Circuit confronted this situation in Montreal
Trading Ltd. v. Amax Inc., 661 F.2d 864 (10th Cir. 1981).
There, the plaintiff alleged that the defendants unlawfully
limited potash production to drive up prices. Id. at 865. The
plaintiff brought an antitrust action against the producers,
arguing that as a result of the defendants’ actions it was
unable to buy potash that it could have resold at a profit. Id.
at 867. The Tenth Circuit held that the plaintiff lacked
antitrust standing. Id. at 868. First, the court noted that “[a]
price fixing conspiracy is certainly ‘aimed’ at those who
purchase the product at the inflated price; their injury is more
direct and more proximately caused than those who are
unable to purchase due to product scarcity.” Id. Second, the
plaintiff’s injury was too speculative:
[W]hen, as here, the nonpurchaser has no
prior course of dealing with any defendant, we
will remain unsure about many things,
including: whether the purchase would have
been made from one of the conspirators or
from one of their competitors; what quantity
would have been purchased; what price would
have been paid; and at what price resale
would have occurred. In the instant case we
would also be uncertain whether the potash
producers would have inquired about the
identity of [the plaintiff’s] customers before
making the sale; whether, if asked, [the
plaintiff] could have truthfully replied that
CITY OF OAKLAND V. OAKLAND RAIDERS 29
part of the purchase was allocated to
customers outside North Korea; whether [the
plaintiff] would have had the funds needed to
make the purchase; and whether an alleged
shortage of railroad cars would have aborted
the transaction.
Id. at 868.11
The same concerns exist here too. First, the City’s
injuries are less direct than those of actual purchasers, such as
the cities of Las Vegas and Los Angeles, each of which
recently acquired NFL teams, presumably by agreeing to
supracompetitive prices. Indeed, the existence of these more
direct victims is an additional factor counseling against the
City’s standing. See Ass’n of Wash. Pub. Hosp. Dists. v.
Philip Morris Inc., 241 F.3d 696, 701 (9th Cir. 2001); R.C.
Dick Geothermal Corp., 890 F.2d at 146; Montreal Trading,
661 F.2d at 868.12
Second, the City’s contention that, in the absence of
Defendants’ challenged practices, it would have retained the
Raiders (or acquired another team) is too speculative to
establish antitrust standing. As the district court explained:
The Court . . . previously held that Oakland
had not plausibly alleged that, but for the
11
The Tenth Circuit did not adopt a bright-line rule precluding
nonpurchasers who have been priced out of a market from establishing
antitrust standing. See Montreal Trading, 661 F.2d at 868. We agree.
12
The City’s injuries would also be less direct than those of NFL
expansion teams denied entry into the league.
30 CITY OF OAKLAND V. OAKLAND RAIDERS
limited number of teams, Oakland would still
have an NFL team. The Court identified the
following “incomplete list of issues that might
be relevant” but were not addressed in
Oakland’s original complaint:
(1) whether there are additional potential
owners willing to establish new teams if
the NFL allowed them to do so;
(2) whether such potential owners would
have based a team in Las Vegas before the
Raiders decided to relocate there;
(3) whether the Raiders would still have
left Oakland for another city if the NFL
allowed additional teams; (4) if the
Raiders might still have left, whether an
additional team would have been
established in Oakland to replace the
Raiders; or (5) whether Oakland has made
any effort to attract an existing team other
than the Raiders or to establish a new
expansion team to replace the Raiders.
Oakland’s first amended complaint alleges
none of those things. Instead, it repeats an
allegation from the original complaint that
entrepreneur and basketball-team-owner Mark
Cuban believes Oakland is a better site for the
Raiders than Las Vegas, and adds an
allegation that an economic analysis
commissioned by Oakland determined that, of
U.S. cities without NFL teams, Oakland “best
reflect[s] the demographic and financial
conditions of existing Host Cities” and has
CITY OF OAKLAND V. OAKLAND RAIDERS 31
“the best prospects for new NFL franchises.”
But Oakland still has not plausibly alleged
what the playing field would look like if the
NFL allowed more than thirty-two teams. In
that hypothetical world, what would prevent
Las Vegas from offering a more attractive
deal, as in fact occurred? Would another team
have already existed in Las Vegas? Would
the Raiders have gone elsewhere if Las Vegas
already had a team? If the Raiders left, would
a different team play in Oakland? The first
amended complaint answers none of those
questions.
City of Oakland, 445 F. Supp. 3d at 601 (second alteration in
original) (citations omitted).
We agree. The City has not alleged—and there is no way
of knowing—what would have occurred in a more
competitive marketplace. Would new teams have joined the
NFL? Would they have found Oakland attractive? Would
the Raiders have left Oakland in any event? Would the
Raiders have stayed in the Bay Area, but not in Oakland?
What price would the City have paid to retain the Raiders or
acquire another team? Would the City have been willing and
able to pay a competitive price? There are too many
speculative links in the chain of causation between
Defendants’ alleged restrictions on output and the City’s
alleged injuries. Cf. Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 540
(1983) (“In this case, the chain of causation between the
Union’s injury and the alleged restraint in the market for
construction subcontracts contains several somewhat vaguely
defined links.”).
32 CITY OF OAKLAND V. OAKLAND RAIDERS
The City complains that it should not be required “to
reconstruct the hypothetical marketplace absent a defendant’s
anticompetitive conduct.” (Quoting United States v.
Microsoft Corp., 253 F.3d 34, 79 (D.C. Cir. 2001).)13
Nonpurchasers who are priced out of the market, however,
present a special problem, due to the speculative nature of the
harm. We require a reasonable level of certainty before we
will confer antitrust standing on such consumers. See
Montreal Trading, 661 F.2d at 868; Areeda & Hovenkamp
¶ 391b1.
The City alternatively contends that it has standing under
Montreal Trading because it can show “a regular course of
dealing with the conspirators.” 661 F.2d at 868. The City’s
past dealings with the Raiders, however, do not establish a
regular course of dealing. And, under Montreal Trading, a
“regular course of dealing” exception makes sense only if that
course of dealing occurred in a competitive market. But that
is not what the FAC alleges. The City alleges that its course
of dealing with the Raiders occurred in an anticompetitive
market, which does not resolve the many uncertain links in
the chain of causation. Thus, even assuming that Montreal
Trading is the law of the Circuit, an issue we need not decide,
the City would still lack standing.
13
In Microsoft, 253 F.3d 34, the plaintiffs were required to prove that
Microsoft’s anticompetitive practices (i.e., foreclosing Netscape’s and
Java’s distribution channels) caused Microsoft to maintain its monopoly
power in the operating system market. In that context, and relying on
Areeda & Hovenkamp, the D.C. Circuit reasoned that courts could infer
causation from the fact that a defendant has engaged in anticompetitive
conduct that reasonably appears capable of making a significant
contribution to maintaining monopoly power. Id. at 79. The court did not
address the question presented here.
CITY OF OAKLAND V. OAKLAND RAIDERS 33
In sum, this factor—the directness of the injury—supports
the conclusion that the City has not alleged antitrust standing.
3. The Speculative Measure of Harm
So too does the third factor, which considers whether the
City’s “damages are only speculative.” Am. Ad Mgmt.,
190 F.3d at 1059. For the reasons just discussed, we do not
know whether the City would have retained an NFL team,
whether that team would have been the Raiders or another
team, where that team would have played, or what price the
City would have paid for the privilege of having an NFL
team. Because we do not know whether the City would have
retained the Raiders, we cannot know whether it would have
avoided the harm it alleges.
Furthermore, even if the City could demonstrate that it
would have retained the Raiders (or acquired another team),
its damages—“lost investment value,” “tax revenues
associated with Raiders games,” and “devaluation of the
Coliseum property”—would be exceedingly difficult to
calculate. Cf. id. at 1060 (“[W]e do not find the calculation
of damages in this case to be exceedingly complicated.”);
Areeda & Hovenkamp ¶ 335c5 (“Once it becomes
clear—especially early in the litigation—that damage
measurements will be unduly speculative, the courts generally
dismiss the damage suit.”). In this respect too, this case is far
afield from the conventional horizontal price-fixing case in
which an actual purchaser seeks to recover collusive
overcharges.
In sum, like the second factor, the third factor supports
that the City has not adequately alleged antitrust standing.
34 CITY OF OAKLAND V. OAKLAND RAIDERS
4. Remaining Factors
The remaining factors do not undermine the City’s claim
of antitrust standing. This case does not appear to present a
risk of duplicative recoveries. Nor does it appear that this
case would require an apportionment of damages.
Nevertheless, in light of the indirectness of the City’s injuries,
the existence of more direct victims, the speculative measure
of harm, and the difficulty in calculating damages, we are
persuaded that the City lacks antitrust standing to pursue its
horizontal price-fixing theory. As the district court observed,
the circumstances presented here “render[] this case
particularly unsuitable as a novel expansion of antitrust
liability to non-purchaser plaintiffs.” City of Oakland, 445 F.
Supp. 3d at 603.
IV.
We hold that the district court properly dismissed the
City’s Sherman Act claim for failure to state a claim upon
which relief may be granted. The City’s group boycott theory
fails to state a claim because the City has not alleged that
more than one team refused to deal with the City. The City’s
horizontal price-fixing theory fails because the City has not
adequately alleged antitrust standing. Although the City has
alleged antitrust injury, it has not alleged with sufficient
certainty that it would have purchased the product (i.e., that
the Raiders would have stayed in Oakland), and under what
terms, in a hypothetical competitive market.
The judgment of the district court, therefore, is
AFFIRMED.
CITY OF OAKLAND V. OAKLAND RAIDERS 35
BUMATAY, Circuit Judge, concurring:
The City of Oakland brings two theories of antitrust
liability against the NFL, the Raiders, and the NFL’s other
31 teams. We’ve called one theory the “group boycott” claim
and the other a “price-fixing” claim. As the majority
correctly holds, both theories come up short. In their view,
Oakland gets to suit up and take the field of Article III
standing but can’t run the claims into the endzone of antitrust
liability. Upon further review, however, I think, the majority
fumbles the standing analysis on the price-fixing claim. I
would hold that this claim is too speculative to satisfy the
threshold of constitutional standing and so must be benched
even before kickoff. On the group boycott claim, I fully
agree with the majority that Oakland stays on the field but
ultimately fails to score on the merits. In short, we should
have dismissed Oakland’s price-fixing claim on Article III
standing grounds and denied the group boycott claim on legal
sufficiency grounds. I thus concur in the court’s judgment
and join Parts I, II and III.B of the majority opinion.
I.
Rigorous enforcement of the Article III standing
requirements ensures that federal courts stay in their lanes.
See Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). By
disclaiming jurisdiction to resolve certain disputes, we
confine ourselves to “a proper[] judicial role.” Id.(simplified). To meet Article III standing, a party must
establish (1) an injury in fact; (2) traceability; and
(3) redressability. Id. And meeting standing on one claim
doesn’t mean standing on other claims. See DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 352–53 (2006). Thus, courts
must look to see if a party has standing for each claim
36 CITY OF OAKLAND V. OAKLAND RAIDERS
brought—regardless of standing on another claim. Id. The
party seeking access to federal court bears the burden of
showing standing. Spokeo, 578 U.S. at 338.
Here, Oakland asserts two independent theories of
antitrust liability under § 1 of the Sherman Act, 15 U.S.C.
§ 1.
First, the “price-fixing” claim. Oakland alleges that the
NFL has created a horizontal price-fixing scheme with its
entry requirements for new teams. An NFL rule dictates that
¾ of NFL owners must vote to approve a new football team’s
entry into the league. Such a rule, says Oakland, inflates the
price of hosting teams for cities by artificially restricting the
supply of teams.
Second, we have the “group boycott” claim. Oakland
contends that the NFL and its teams have started an
anticompetitive boycott against the City by collectively
refusing to deal with it. In the City’s view, the NFL’s
franchises are punishing Oakland for declining to pay the
high costs and benefits to keep the Raiders in the Bay Area.
Oakland fails to meet its burden of establishing Article III
standing for the price-fixing claim, while the group boycott
claim fails on the merits.
A.
Oakland’s price-fixing claim drops the ball on the second
element—traceability. A party satisfies this element by
showing that its injury “is fairly traceable to the challenged
conduct of the defendant.” Spokeo, 578 U.S. at 338.
Traceability requires “a causal connection between the injury
CITY OF OAKLAND V. OAKLAND RAIDERS 37
and the conduct complained of.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992). So with traceability, we ask: “Is
the line of causation between the illegal conduct and injury
too attenuated?” Allen v. Wright, 468 U.S. 737, 752 (1984).
Our court has held that “a causal chain does not fail
simply because it has several links, provided those links are
not hypothetical or tenuous.” Nw. Requirements Utils. v.
FERC, 798 F.3d 796, 806 (9th Cir. 2015) (simplified).
Traceability then can’t “rely on conjecture about the behavior
of other parties.” Ecological Rts. Found. v. Pac. Lumber Co.,
230 F.3d 1141, 1152 (9th Cir. 2000). And when a standing
theory “rests on a highly attenuated chain of possibilities,”
“far stronger evidence” is required to establish traceability.
California v. Texas, 141 S. Ct. 2104, 2119 (2021)
(simplified).
Oakland’s price-fixing claim relies on speculation upon
speculation to connect its injury to the NFL’s entry rule.
Basically, Oakland tries to connect its injury—the Raiders
leaving for Las Vegas—to the NFL’s ¾ approval rule for new
franchises. Specifically, Oakland argues that the entry rule
allows NFL teams to demand excessive payments from host
cities, causing the Raiders to move to Las Vegas and costing
Oakland an NFL home team. As a result, Oakland argues it
would not have been injured under more lenient rules for
entry into the NFL. Essentially, Oakland’s causal chain looks
like this:
38 CITY OF OAKLAND V. OAKLAND RAIDERS
But Oakland relies on speculation every step of the way.
Start with Step One. Under Oakland’s theory, in a pro-
competitive hypothetical world, the NFL would replace its
current ¾ approval rule with a more competitive approach,
which would allow for easier admission. We aren’t told what
this new rule might be or how it might meet the threshold of
CITY OF OAKLAND V. OAKLAND RAIDERS 39
improved competition. Instead, we must imagine a
hypothetical rule that would somehow accomplish what
Oakland seeks.
Step Two—engage in more speculation about
hypothetical teams. To get to the next step in the chain of
traceability, we need to speculate that this new rule would
entice new football franchises to apply to the NFL. Here, it’s
unclear how potential football franchises would react to this
hypothetical new rule. Oakland assumes that more franchises
would apply, given a more lenient admission rule. But there
is no evidence that these imaginary franchises would have a
significant incentive to apply under, say, a ½ owner approval
rule rather than the existing ¾ rule. As the NFL accurately
notes, Oakland cannot point to a single instance of a team
being denied entry into the NFL under the existing rule. And
under either regime, a potential franchise would have to
convince a significant portion of NFL owners that its
admission would not hurt the sport or the quality of
competition. In fact, the only evidence Oakland can muster
on this point is a 2004 estimate that the NFL could support up
to 42 teams in the United States. But such evidence comes
well short of showing that more franchises would be likely to
apply simply because the NFL could hypothetically support
more of them. Article III requires “far stronger evidence”
here. California v. Texas, 141 S. Ct. at 2119.
Step Three—consider a hypothetical world where the
NFL admits new teams from the crop of applicants. The
problem at this step is that the composition of sports leagues
is inherently difficult to predict. Sports leagues can’t have an
infinite number of teams. For example, a sports league has to
weigh increasing the number of teams in its roster against
other factors such as scheduling constraints, the quality of
40 CITY OF OAKLAND V. OAKLAND RAIDERS
competition, and existing contracts and commitments with
players. See Phillip E. Areeda & Herbert Hovenkamp,
Antitrust Law: An Analysis of Antitrust Principles and Their
Application, ¶ 2214(b) (5th ed. 2021) (“Areeda &
Hovenkamp”) (“[A] sports league requires limits on the
number of teams in order that scheduling and ranking can be
coordinated.”). Oakland would have us overlook these
realities and speculate that the NFL would admit more teams
if it had a more permissive entry rule and received more
applications.
Step Four—calculate the probabilities that a new
imaginary NFL team would play in Las Vegas. Only if
another NFL team played at Allegiant Stadium would the
Raiders be blocked from leaving Oakland—the precise injury
alleged here. But as Oakland acknowledges, it can’t provide
any evidence that Las Vegas would have hosted an NFL team
prior to the Raiders under supposedly pro-competitive rules.
As a result, Oakland again asks this court to make another
speculative leap—this time that a hypothetical franchise
admitted under hypothetical rules would have chosen Las
Vegas as its home. But we generally do not “endorse
standing theories that rest on speculation about the decisions
of independent actors.” Clapper v. Amnesty Int’l, USA,
568 U.S. 398, 414 (2013); see also Ecological Rts. Found.,
230 F.3d at 1152 (“The issue in the causation inquiry is
whether the alleged injury can be traced to the defendant’s
challenged conduct, rather than to that of some other actor not
before the court.”).
Finally, Step Five—assume there would be enough new
franchises admitted by the NFL to prevent other host cities
from attracting the Raiders away from Oakland. At this final
step, we must speculate whether another city would have still
CITY OF OAKLAND V. OAKLAND RAIDERS 41
attracted the Raiders with a more appealing stadium or better
economics. Oakland does put forward evidence from an
economic expert stating that Oakland is an attractive location
for an NFL franchise. But ultimately, Oakland asks us to
conjecture about how hypothetical franchises would have
weighed hypothetical proposals from hypothetical host cities.
So Oakland’s expert can’t save the speculative house of cards
from tumbling down.
In sum, Oakland’s price-fixing theory requires us to make
layers of speculative judgments to connect the allegedly
unlawful conduct (the NFL’s entry rule) to the alleged injury
(the Raiders’ decision to leave Oakland). But Article III
standing requires more than an elaborate string of
speculations. It requires the alleged injury to be fairly
traceable to the unlawful conduct. Spokeo, 578 U.S. at 338.
Oakland’s loss of the Raiders is too remote and too
conjectural to be traceable to the NFL’s entry process. I
would hold that Oakland failed to establish Article III
standing on its price-fixing claim.
The majority looks past these speculations by determining
that Oakland has shown a “substantial probability” of
standing. Maj. Op. 16. The majority argues that, despite a
“somewhat speculative chain of causation,” there is a
substantial probability that the Raiders would have stayed in
Oakland but for the NFL’s entry rule. Maj. Op. 15. But our
court has made clear that causation cannot “be too
speculative, or rely on conjecture about the behavior of other
parties.” Ecological Rts. Found., 230 F.3d at 1152. That is
precisely what Oakland’s price-fixing claim does. It
speculates about events at every step of the causal
chain—relying on inferences about what unknown,
independent parties would do under hypothetical
42 CITY OF OAKLAND V. OAKLAND RAIDERS
circumstances. As a result, I would dismiss Oakland’s price-
fixing claim for failure to establish Article III standing. 1
B.
Oakland, however, does establish Article III standing for
its group boycott claim. Oakland satisfies the standing
requirements for the group boycott claim because it directly
connects the unlawful conduct to the alleged injury. Unlike
the price-fixing claim, the premise of the group boycott claim
is that the NFL franchises themselves colluded to keep
Oakland from hosting an NFL team. The football teams
sought to punish Oakland, the theory goes, after the City
refused to make new payments or improvements to its
stadium to keep the Raiders. Thus, the injury of a lack of an
NFL franchise is closely tied to the alleged unlawful conduct
of group boycotting. In other words, there is a direct handoff
from the anticompetitive action to the alleged injury. As a
result, Oakland establishes Article III standing on its group
boycott claim.
1
In reaching the merits of the price-fixing claim, the majority imports
a Tenth Circuit case into our court—Montreal Trading Ltd. v. Amax Inc.,
661 F.2d 864 (10th Cir. 1981). In Montreal Trading, the Tenth Circuit
denied antitrust standing to non-purchasers on the theory that their injuries
were too uncertain. Id. at 868. I question, however, whether Montreal
Trading is relevant here. Montreal Trading explained that nonpurchasers
should be denied standing to sue “when they lack a past course of dealing
with the conspirators.” Id. But Oakland, the Raiders, and the NFL have
a long course of dealing, making the applicability of the Montreal Trading
rule suspect. Moreover, the majority applies Montreal Trading without
claiming to adopt it as a “bright-line rule” for our circuit. Maj. Op. 29
n.11. But doing so just further complicates an already complicated area
of law. The majority should have punted on this issue.
CITY OF OAKLAND V. OAKLAND RAIDERS 43
Looking at the merits, I agree with the majority that
Oakland fails to demonstrate an antitrust violation on this
claim. In short, Oakland can only show that the Raiders
refused to deal with the City—not that the other franchises
joined the Oakland boycott. Moreover, since Oakland failed
to plead a Sherman Act violation, I do not reach whether
Oakland has sufficiently shown antitrust standing. Antitrust
standing is distinct from Article III standing. See Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 535 n.31 (1983). Unlike Article
III standing, courts have discretion to skip antitrust standing
and go right to the merits. See Areeda & Hovenkamp, ¶ 335f
(“When a court concludes that no violation has occurred, it
has no occasion to consider [antitrust] standing.”). So there’s
no need to address Oakland’s antitrust standing on this claim,
but that doesn’t mean the City has it. See Maj. Op. 21 n.7.
II.
So, after further review, we must affirm the district
court’s dismissal of Oakland’s suit. While Oakland doesn’t
need to provide indisputable evidence of traceability to win
access to federal courts, the City can’t rely on a Hail Mary of
speculation to satisfy standing. In my view, we should have
blown the whistle on jurisdiction rather than letting that claim
play out on the merits.