Kentucky Speedway, LLC v. National Association of Stock

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0420p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
KENTUCKY SPEEDWAY, LLC,
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No. 08-5041
v.
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NATIONAL ASSOCIATION OF STOCK CAR
Defendants-Appellees. -
AUTO RACING, INC. et al.,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 05-00138—William O. Bertelsman, District Judge.
Argued: July 30, 2009
Decided and Filed: December 11, 2009
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Before: GILMAN, COOK, and FARRIS, Circuit Judges.
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COUNSEL
ARGUED: Charles Frederick Rule, CADWALADER, WICKERSHAM & TAFT LLP,
Washington, D.C., for Appellant. David Boies, BOIES, SCHILLER & FLEXNER LLP,
Armonk, New York, for Appellees. ON BRIEF: Charles Frederick Rule, Joseph J.
Bial, CADWALADER, WICKERSHAM & TAFT LLP, Washington, D.C., Stanley M.
Chesley, W. B. Markovits, Fay E. Stilz, Paul M. DeMarco, WAITE, SCHNEIDER,
BAYLESS & CHESLEY CO., L.P.A., Cincinnati, Ohio, Einer R. Elhauge, HARVARD
LAW SCHOOL, Cambridge, Massachusetts, Stephen D. Susman, Justin A. Nelson,
SUSMAN GODFREY, L.L.P., Houston, Texas, for Appellant. David Boies, Helen M.
Maher, BOIES, SCHILLER & FLEXNER LLP, Armonk, New York, Stuart H. Singer,
BOIES, SCHILLER & FLEXNER LLP, Ft. Lauderdale, Florida, Guy I. Wade III,
Rodney Acker, Oscar Rey Rodriguez, FULBRIGHT & JAWORSKI L.L.P., Dallas,
Texas, G. Jack Donson, Jr., TAFT, STETTINIUS & HOLLISTER L.L.P., Cincinnati,
Ohio, Robert B. Craig, TAFT, STETTINIUS & HOLLISTER, Covington, Kentucky,
Matthew C. Blickensderfer, FROST BROWN TODD, Cincinnati, Ohio, Sheryl G.
*
The Honorable Jerome Farris, Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
1
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 2
Snyder, FROST BROWN TODD, Louisville, Kentucky, for Appellees. Jeffrey A.
Lamken, MOLO LAMKEN, Washington, D.C., for Amicus Curiae.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Kentucky Speedway, LLC (KYS) sued
both the National Association of Stock Car Auto Racing, Inc. (NASCAR) and an
affiliated company that owns multiple racetracks called International Speedway
Corporation (ISC), alleging that they violated federal antitrust laws by not sanctioning
a Sprint Cup race at KYS’s racetrack in Kentucky and by preventing KYS from
purchasing other racetracks that already host such a race. The district court granted
summary judgment in favor of NASCAR and ISC after determining that the opinions of
KYS’s expert witnesses were unreliable. Summary judgment was also granted because
KYS failed to establish sufficient proof of an antitrust injury. For the reasons set forth
below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
1. NASCAR
NASCAR races are among the most popular sporting events in the country.
Organized in 1948, NASCAR grew from humble beginnings by racing cars at Daytona
Beach, Florida. Today, NASCAR sanctions races at 120 tracks in 38 states and abroad.
The company is privately owned by the France family, including James France and his
niece, Lesa France Kennedy. Another member of the France family, Bill France, Jr.,
served as the Chairman and CEO of NASCAR until 2004.
NASCAR is in the business of sanctioning races. “Sanctioning” is the process
of organizing and staging a race, including the selection of venues, picking drivers, and
setting the rules. NASCAR-sanctioned races are highly coveted by the owners of
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 3
racetracks around the country due to the consistently high quality and profitability of
these events.
But not all NASCAR events are created equal. One kind of event is prized by
racetrack owners above all others: a NASCAR Sprint Cup race. (Sprint became the
sponsor of this racing series in 2008; immediately prior to 2008 the series was sponsored
by Nextel.) This racing series is widely considered to be the “major leagues” of stock-
car racing. All other stock-car events, like the NASCAR-sanctioned Busch series, are
analogous to the minor leagues. In terms of market share, KYS alleges that NASCAR
owns a 100% share of the premium-stock-car race-sanctioning market (the Sanctioning
Market). We will assume that this allegation is true for the purposes of this opinion.
Not every racetrack capable of hosting a Sprint Cup race, however, can obtain
one. This is because NASCAR selects locations for Sprint Cup races based on a number
of factors, including the condition of the facility, the market area (e.g., whether the area
has a history of supporting motor sports and whether it is a promising area for
expansion), the competition schedule, the travel requirements for the race-car drivers and
officials, weather conditions, the history of facility operations and management, the
financial health of the facility, prior relationships with NASCAR, historical preservation,
and NASCAR’s long-term business goals.
2. ISC
There can be no Sprint Cup races—or any other races for that matter—without
racetracks. Bill France, Sr. realized this and so, in 1953, incorporated ISC, the other
defendant in this case. Over the years, ISC has raised funds through public offerings of
its shares, which it has used to finance the acquisition and development of additional
racing facilities. Although ISC is a public company subject to the oversight of ISC’s
Board of Directors, the France family retains control and has made all major decisions
for the company, including but not limited to the selection of track locations, asset
acquisitions, asset sales, and growth strategy—all of which ISC has disclosed in its
filings with the Securities and Exchange Commission.
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 4
ISC sought to expand into new geographic markets and acquire and construct
new venues beginning in the mid-1990s. Before 1996, ISC owned interests in four
facilities that currently host Sprint Cup races. Between 1997 and 2004, ISC acquired
ownership interests in eight additional venues, which also host the sought-after Sprint
Cup races. Fifty-five percent of all Sprint Cup races are currently held at racetracks
owned at least in part by ISC. The remaining 45% operate on independent tracks that
are not parties in this case. Speedway Motorsports, Inc. (“SMI”) is the only company
other than ISC that owns more than one racetrack hosting a Sprint Cup race. KYS calls
the market for hosting Sprint Cup races the “Hosting Market.” Again, for the purpose
of this opinion, we will assume that this market definition is accurate.
In addition to acquiring ownership stakes in racing venues, ISC sought and
obtained rights of first refusal from several independent racetracks already hosting
NASCAR events. One such agreement gave ISC the right to be first in line to negotiate
for the purchase of the Pocono Raceway in Long Pond, Pennsylvania if a third party
contacted the owner seeking to purchase a share of the facility. According to ISC,
“[t]hese agreements do not preclude another buyer from purchasing the facilities, they
have never resulted in the purchase of a track by ISC, and [they] offer no guarantee that
ISC will purchase or even bid on the track subject to that right.” KYS has not contested
this claim.
ISC does not impose any “exclusive dealing arrangement,” which means that
companies other than NASCAR have been permitted to sanction races at ISC’s
racetracks. One of ISC’s corporate representatives has nevertheless conceded that ISC
has the ability, hypothetically, to prevent sanctioning bodies other than NASCAR from
running races on ISC’s tracks by “denying access to our asphalt”—i.e., by simply
declining to allow the alternative sanctioning body to use ISC’s venues.
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 5
3. KYS and its racetrack
As NASCAR’s popularity surged in the 1990s, KYS’s investors started planning
the construction of a 1.5 mile racetrack in northern Kentucky. Prior to KYS’s
completion, NASCAR warned KYS that the area surrounding Kentucky was saturated
with Sprint Cup races held at facilities in Indianapolis, Indiana; Bristol, Tennessee;
Talladega, Florida; and Richmond, Virginia. Construction nevertheless continued. In
1999, the racetrack was completed.
The KYS facilities have received rave reviews. Even NASCAR’s former
Chairman Bill France, Jr. acknowledged that KYS did “everything right.” Echoing that
praise, John Saunders, Chief Operating Officer and Executive Vice President of ISC,
called KYS a “rock-solid asset.” Drivers have also praised the track. Championship
driver Darrell Waltrip, for example, said that he “never talked to a driver that didn’t like
the racetrack.”
Attendance records bolster the claim that KYS’s facility is first-class. In June
2000, KYS hosted a Craftsman Truck Race. Tickets sold out, luxury suites were full,
and the race had a roster full of impressive sponsors. Indeed, the Craftsman Truck race
at KYS’s facility continues to be among the best-attended in the Craftsman series
nationwide. Craftsman Truck races are NASCAR-sanctioned events.
Other racing events held at the racetrack have been similarly successful. KYS
hosted an Indy Racing League (IRL) race in 2000 and now regularly hosts IRL races.
In 2001, KYS branched out and hosted a Busch-series race. (Although Anheuser-Busch
no longer sponsors this racing series, we will continue to refer to the series as the Busch
series for the sake of simplicity.) The 2001 Busch race sold out and was one of the
highest-attended and highest-rated Busch races in the country. KYS continues to host
Busch-series races. The Busch series is also sanctioned by NASCAR.
Despite this string of successes, KYS has failed to attract a race from the most
profitable and high-profile racing series—the NASCAR-sanctioned Sprint Cup. KYS
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 6
claims, in essence, that it built a major-league facility that has not been able to attract a
major-league event.
4. Alleged anticompetitive conduct
KYS blames its failure to obtain a Sprint Cup race on allegedly anticompetitive
conduct by NASCAR and ISC, pointing to several alleged practices that purportedly
show that NASCAR and ISC have colluded to shut out competition in the Sanctioning
and Hosting Markets, respectively. These practices include acting jointly to set the
NASCAR Cup schedule, to develop new markets, and to decide which tracks will host
premium stock-car races.
KYS also complains about NASCAR’s and ISC’s practice of working together
to obtain rights-of-first-refusal agreements from independent racetracks “for little or no
consideration.” These agreements allow ISC to be the first-in-line bidder for
independent racetracks in the event that the owners of the racetrack express an interest
in selling the same.
Two other NASCAR and ISC business practices, however, are particularly
objectionable to KYS. First, NASCAR and ISC have purportedly conspired to increase
ISC’s share of the Hosting Market. For example, NASCAR allegedly refused to
sanction a Sprint Cup race at the Homestead-Miami Speedway in Florida until ISC was
permitted to purchase a major interest. KYS also claims that NASCAR threatened to
pull Sprint Cup races from the Las Vegas Motor Speedway in Nevada unless ISC was
allowed to purchase the facility. ISC has thus allegedly increased its share of the
Hosting Market by using NASCAR’s Sprint Cup series as a bargaining chip.
Second, KYS asserts that NASCAR and ISC have enlisted at least one other
independent racetrack—SMI—to help them dominate their respective markets. KYS has
tried to obtain a Sprint Cup race by purchasing an independent racetrack that already has
this race so that KYS can move the race to its northern Kentucky facility. But no
independent track has agreed to sell, even though KYS has allegedly submitted good
offers. Moreover, KYS alleged that ISC and SMI have agreed not to compete with each
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 7
other in the Hosting Market by, for example, entering into a joint venture to purchase
Dover Motorsports, the owner of an independent speedway in Delaware, while KYS
unsuccessfully sought to purchase the same company in order to secure a Sprint Cup
race.
5. Injury
The sole injury that KYS claims to have suffered is the failure to host a Sprint
Cup race, which KYS contends has caused it a loss of at least $175 million. According
to KYS, this injury flows from NASCAR’s and ISC’s anticompetitive conduct,
calculated to drive independent racetracks like KYS out of the Hosting Market while
preventing future businesses from challenging NASCAR’s dominance in the Sanctioning
Market.
B. Procedural background
Convinced that NASCAR’s and ISC’s conduct has been anticompetitive, KYS
filed suit in the United States District Court for the Eastern District of Kentucky in July
2005, alleging that NASCAR and ISC violated Sections 1 and 2 of the Sherman Antitrust
Act, 15 U.S.C. §§ 1 and 2. KYS specifically alleged (1) unlawful monopolization of the
Sanctioning Market by NASCAR under § 2, (2) illegal conspiracy in restraint of trade
by NASCAR and ISC under § 1 (involving an alleged conspiracy between themselves
and “other companies that control tracks hosting NASCAR-sanctioned events”),
(3) conspiracy to monopolize the Hosting and Sanctioning Markets under § 2 (based on
the same allegations as the § 1 conspiracy), and (4) attempted monopolization of the
Hosting Market by ISC under § 2.
NASCAR and ISC filed separate motions to dismiss in September of the same
year. In January 2006, the district court denied the motions, concluding that KYS had
properly alleged antitrust claims. The court also noted, however, that “[i]t may well be
that plaintiff’s case will fail when scrutinized after discovery under the higher standards
of proof that will prevail on summary judgment or at trial.” Ky. Speedway, LLC v.
NASCAR, Inc., 410 F. Supp. 2d 592, 597 (E.D. Ky. 2006).
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 8
After discovery was complete, and after KYS filed a second amended complaint,
NASCAR and ISC filed a joint motion for summary judgment in August 2007. The
district court granted the motion in January 2008, holding that there was insufficient
evidence supporting KYS’s definitions of the Hosting and Sanctioning Markets because
the reports and deposition testimony of KYS’s experts could not withstand scrutiny
under the Supreme Court test laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). Alternatively, the court concluded that KYS’s suit was
indistinguishable from a straightforward “jilted distributor” case, meaning that KYS
could not survive summary judgment because KYS had failed to establish an antitrust
injury. This timely appeal followed.
II. ANALYSIS
A. Standards of review
As to the admissibility of expert testimony, this court applies the abuse-of-
discretion standard. Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258 (6th Cir.
2001). “A district court abuses its discretion if it bases its ruling on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” Brown v. Raymond Corp.,
432 F.3d 640, 647 (6th Cir. 2005) (citation and internal quotation marks omitted).
With regard to the grant of summary judgment, we review the district court’s
decision de novo. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008).
Summary judgment is proper where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
considering a motion for summary judgment, the district court must draw all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986).
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 9
B. Exclusion of expert testimony
Turning now to the issues on appeal, KYS first argues that the district court
erroneously excluded the testimony of its two key experts. KYS’s claims are governed
by Rule 702 of the Federal Rules of Evidence, which controls the admissibility of all
types of expert testimony. The rule provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the
case.
According to Daubert, a district court’s task in assessing evidence proffered under Rule
702 is to determine whether the evidence “both rests on a reliable foundation and is
relevant to the task at hand.” 509 U.S. at 597. The district court must consider “whether
the reasoning or methodology underlying the testimony is scientifically valid.” Id. at
592-93.
As an initial matter, KYS urges us to review the district court’s order de novo
because of the court’s alleged failure to perform its gate-keeping function. De novo
review, however, is appropriate only where the district court excludes expert testimony
on the basis of an incomplete record, or after conducting nothing more than a
perfunctory review. See, e.g., Jahn v. Equine Servs., PSC, 233 F.3d 382, 393 (6th Cir.
2000) (reversing under the de novo standard of review where the district court
“prematurely” excluded experts’ reports without conducting a Daubert hearing or
allowing the parties to submit briefs); Goebel v. Denver & Rio Grande W. R.R. Co., 215
F.3d 1083, 1088 (10th Cir. 2000) (reviewing de novo where “[t]here is not a single
explicit statement on the record to indicate that the district court ever conducted any
form of Daubert analysis whatsoever”). Because the district court’s analysis in the
present case does not suffer from these deficiencies, de novo review is inappropriate.
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 10
Regarding the district court’s analysis, KYS contests the court’s decision to
exclude the expert opinions of Dr. Andrew Zimbalist and Dr. Keith Leffler. KYS argues
that Zimbalist used several reliable and well-accepted methods that pass muster under
Daubert and other caselaw for defining the relevant markets. As for Leffler, KYS
contends that the court erroneously determined that his opinions relied entirely on
Zimbalist’s definition of the relevant markets, when in fact Leffler’s views regarding
NASCAR’s and ISC’s allegedly anticompetitive conduct should survive even if
Zimbalist’s opinions are excluded. We will discuss each exclusion in turn.
1. Dr. Zimbalist
Dr. Zimbalist was hired by KYS primarily to define the relevant markets in this
case—the Sanctioning Market and the Hosting Market. But he also opined on the
question of whether NASCAR’s and ISC’s conduct was anticompetitive in nature,
concluding that their practices did in fact have anticompetitive consequences.
The district court struck Zimbalist’s report and deposition testimony because he
had included only Busch series and open-wheeled races as possible substitutes for
attending live NASCAR stock-car racing events or watching them on television. It
concluded that Zimbalist should have considered other sports—and possibly other forms
of entertainment—as substitutes. Furthermore, the court concluded that the SSNIP test
(which stands for “Small but Significant Non-transitory Increase in Price”) Zimbalist
used to define the markets did not meet the Daubert criteria. Specifically, the court
found that Zimbalist “used his own version” of the test, a version that had not been
tested, had not been subjected to peer review, had no controlling standards, had no
demonstrable showing of support within the scientific community, and was produced
solely for purposes of the instant litigation. Our independent review of the record
convinces us that the district court did not abuse its discretion in so ruling.
KYS bears the burden of defining “the relevant market within which the alleged
anticompetitive effects of [NASCAR’s and ISC’s] actions occur.” See Worldwide
Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955, 962 (6th Cir. 2004) (“Failure to
identify a relevant market is a proper ground for dismissing a Sherman Act claim.”)
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 11
(quoting NHL Players’ Assoc. v. Plymouth Whalers Hockey Club, 325 F.3d 712, 719-20
(6th Cir. 2003) (citations and internal quotation marks omitted)). To determine this
relevant market, “no more definite rule can be declared than that commodities
reasonably interchangeable by consumers for the same purposes make up that part of the
trade or commerce, monopolization of which may be illegal.” United States v. E.I. du
Pont de Nemours & Co., 351 U.S. 377, 395 (1956).
A relevant market consists of both a geographic component and a product
component. NHL Players’ Assoc., 325 F.3d at 719. When analyzing the latter, this court
has found the “reasonable interchangeability” standard to be “[t]he essential test for
ascertaining the relevant product market.” White & White, Inc. v. Am. Hosp. Supply
Corp., 723 F.2d 495, 500 (6th Cir. 1983). “Reasonable interchangeability” is assessed
by considering (1) product uses (whether substitute products can perform the same
function) and/or (2) consumer response (also known as “cross-elasticity”), defined as
“consumer sensitivity to price levels at which they elect substitutes for the defendant’s
product or service.” Worldwide Basketball, 388 F.3d at 961 (citations omitted).
In construing the Sanctioning Market, Zimbalist posited that NASCAR receives
revenue from ticket and concession sales, licensing fees, sponsorship monies, and
broadcast monies. Zimbalist further determined that NASCAR is the sole supplier of a
“product” (the Sprint Cup races) of which fans, television stations, corporations, and the
motorsports radio network are consumers. But despite evidence that NASCAR
competes with various forms of entertainment—including other stock-car and open-
wheel racing, other professional sports leagues, and recreational sports—Zimbalist
identified only the Busch series and open-wheel racing series as possible substitutes. A
substitutability analysis that encompasses all the alternative forms of entertainment is
necessary in light of the fact that the consumers Zimbalist identifies have a variety of
comparable “products” from which to choose. Corporate sponsors, for example, could
choose to advertise their products in conjunction with another sporting event, and
broadcasters could select non-auto racing programming, or non-sports programming
altogether, in lieu of airing a Sprint Cup race.
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 12
Although we question whether Sprint Cup race fans should be deemed consumers
in the Sanctioning Market—NASCAR, after all, does not sell tickets, and therefore ticket
sales should not be included in NASCAR’s revenue stream—they similarly face multiple
choices in deciding whether to spend money to watch a race. As the district court noted,
“a family [of four] might patronize a Bengals or Reds game or some other sports event,
instead of a [Sprint Cup] race,” if the price of Sprint Cup race tickets were raised.
Appellate courts have also recognized the notion that a professional sport competes with
other sports and other forms of entertainment. See, e.g., Am. Needle, Inc. v. NFL, 538
F.3d 736, 743 (7th Cir. 2008) (“[T]he [NFL] competes with other forms of entertainment
for an audience of finite (if extremely large) size.”); Chicago Prof’l Sports Ltd. P’ship
v. NBA, 95 F.3d 593, 597 (7th Cir. 1996) (noting that the NBA competes with “other
basketball leagues (both college and professional), other sports (Major League Baseball,
college football), and other entertainments such as plays, movies, opera, TV shows,
Disneyland, and Las Vegas”) (internal quotation marks omitted).
KYS contends, however, that racetracks—rather than broadcasters, corporate
sponsors, and fans—are the consumers in the Sanctioning Market, and that these tracks
cannot switch to hosting another sporting event such as baseball or football. But this
argument conflicts with Zimbalist’s own deposition testimony that racetracks are not
consumers in the Sanctioning Market. Zimbalist testified that “[racetracks] are not final
consumers; they are inputs. They are purchasing the right to be—[o]r they’re
negotiating the right to be a part of the production process.” We thus decline to critique
the district court for failing to view Zimbalist’s expert testimony from a perspective
rejected by Zimbalist himself.
As with his analysis of the Sanctioning Market, Zimbalist did not evaluate a
broader range of potential substitutes in the context of the Hosting Market. We therefore
conclude that the district court’s reasoning regarding the paucity of interchangeability
analysis in Zimbalist’s report was not erroneous.
In addition to finding that Zimbalist inadequately examined possible substitutes
for the Sprint Cup races, the district court concluded that Zimbalist did not properly
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 13
perform the SSNIP test. This test measures whether increasing a product’s
price—usually by five percent—results in a substantial number of consumers purchasing
an alternative product. The use of this technique has been recognized in antitrust
caselaw, see F.T.C. v. Whole Foods Mkt., Inc., 548 F.3d 1028, 1038 (D.C. Cir. 2008)
(recognizing the SSNIP test as a valid diagnostic tool), and the district court found that
the parties in this case agreed that it is “an accepted means of analyzing the
interchangeability of a product and its substitutes.”
By his own admission, Zimbalist did not perform the standard SSNIP test.
Rather than analyzing whether a price increase at a particular point in time would result
in consumer substitution of an alternative product, Zimbalist looked at average Sprint
Cup ticket prices and attendance figures over an eight-year span and concluded that both
price and demand increased in this time period. The district court properly characterized
this analysis as Zimbalist’s “own version” of the SSNIP test and noted that “[i]t has not
been tested; has not been subjected to peer review and publication; there are no standards
controlling it; and there is no showing that it enjoys general acceptance within the
scientific community. Further, it was produced solely for this litigation.” We find this
analysis persuasive. The district court therefore did not abuse its discretion in
discrediting Zimbalist’s SSNIP test.
But KYS argues that the district court’s ruling wrongly forces parties to use the
standard SSNIP test as the “sole methodology for judging a relevant market” and
excludes consideration of other acceptable methods. Specifically, KYS notes that
Zimbalist primarily relied on the “practical indicia” factors laid out in Brown Shoe Co.
v. United States, 370 U.S. 294, 325 (1962). These factors include “industry or public
recognition of the submarket as a separate economic entity, the product’s peculiar
characteristics and uses, unique production facilities, distinct customers, distinct prices,
sensitivity to price changes, and specialized vendors.” Id.
Contrary to KYS’s contention, however, these practical indicia come into play
only after the “outer boundaries of a product market are determined” by evaluating “the
reasonable interchangeability of use or the cross-elasticity of demand between the
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 14
product itself and substitutes for it.” Id. Once the contours of the “broad market” are
defined, practical indicia are then employed to determine whether “well-defined
submarkets” exists. Id. This court has rejected the notion that “market and submarket
analyses are substitute tests.” White & White, Inc. v. Am. Hosp. Supply Corp., 723 F.2d
495, 500 (6th Cir. 1983). Rather, the reasonable-interchangeability analysis is the
“essential test for ascertaining the relevant product market.” Id.
Submarket criteria, by contrast, are “to be used in conjunction with the basic test
to more precisely define the relevant markets.” Id. (holding that the district court’s
“fundamental error . . . was the mistaken premise that standard market tests may be
abandoned or ignored and replaced with a less demanding ‘submarket test’”); see also
Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955, 962 (6th Cir. 2005)
(“[A] submarket analysis incorporates, but does not replace, the standard market test.
It merely adds new factors to that test so as to more precisely define the market affected
by the defendant’s actions.”) (citations omitted).
Equally unpersuasive is KYS’s argument that Zimbalist looked to barriers to
entry and anticompetitive conduct as additional indicia to define the relevant markets.
Not only did KYS fail to raise this argument in the district court, it has not cited any
authority for the proposition that these factors can define (rather than simply reinforce)
a market definition. See, e.g., Todd v. Exxon Corp., 275 F.3d 191, 206 (2d Cir. 2001)
(holding that a showing of anticompetitive conduct “is a strong indicator of market
power”) (emphasis added).
In light of these deficiencies, the district court excluded Zimbalist’s expert report
and deposition testimony as being unreliable under Daubert. We find no abuse of
discretion regarding that ruling.
2. Leffler
The district court also excluded Leffler’s expert report and deposition testimony
because he based his opinions on Zimbalist’s market analysis. Given Leffler’s statement
in his report that he “concur[s] in Dr. Zimbalist’s opinions concerning market
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 15
definitions,” and the fact that Leffler conducted no interchangeability analysis of his
own, we again find no abuse of discretion with regard to the district court’s ruling.
C. Lack of expert testimony
KYS alternatively asserts that, contrary to the district court’s opinion, KYS can
prove the relevant markets in the absence of expert testimony from either Zimbalist or
Leffler. Our sister circuits have disagreed as to whether expert testimony is necessary
to establish a relevant market. Compare Lantec v. Novell, 146 F. Supp. 2d 1140, 1147-
48 (D. Utah 2001), aff’d, 306 F.3d 1003 (10th Cir. 2002) (rejecting an Eleventh Circuit
rule that a relevant market must be established using expert testimony), with Colsa Corp.
v. Martin Marietta Servs., Inc., 133 F.3d 853, 855 n.4 (11th Cir. 1998) (holding that
“construction of a relevant economic market or a showing of monopoly power in that
market cannot be based upon lay opinion testimony”) (citation, alterations, and internal
quotation marks omitted).
This court has not yet weighed in on the issue. Suffice it to say, however, that
what KYS proposes to use in place of expert testimony—namely lay testimony and
internal NASCAR marketing documents—does not provide a sound economic basis for
assessing the market for Sprint Cup races the way that a proper interchangeability test
would. In short, without Zimbalist’s testimony, KYS lacks the ability to define the
relevant markets necessary to succeed on its claims. See Verizon Commc’ns., Inc. v. Law
Offices of Curtis Trinko, LLP, 540 U.S. 398, 407 (2004) (holding that a claim under
Section 2 of the Sherman Act requires “the possession of monopoly power in the
relevant market”) (emphasis added); Worldwide Basketball, 388 F.3d at 959 (listing the
requisite elements for a claim under Section 1 of the Sherman Act, the second being
unreasonable restraint of trade “in the relevant market”) (emphasis added); see also NHL
Players’ Assoc. v. Plymouth Whalers Hockey Club, 325 F.3d 712, 719-20 (6th Cir. 2003)
(“Failure to identify a relevant market is a proper ground for dismissing a Sherman Act
claim.”).
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 16
D. Additional challenges faced by KYS
In addition to the inadmissibility of its proposed expert testimony, KYS faces
other hurdles in prevailing on its antitrust claims. It would, for example, need to
demonstrate that NASCAR and ISC are legally capable of conspiring with each other.
Courts have barred antitrust actions against companies under common ownership or
companies that exhibit a unity of interest. See Copperweld Corp. v. Independence Tube
Corp., 467 U.S. 752, 771 (1984) (holding that a parent and a wholly owned subsidiary
have a “complete unity of interest” because “their objectives are common” and “their
general corporate actions are guided or determined not by two separate corporate
consciousnesses, but one”); Guzowski v. Hartman, 969 F.2d 211, 214 (6th Cir. 1992)
(concluding that two horse-racing tracks, despite being owned by separate corporations,
were a “single economic unit” because the shareholders of the corporation were
identical); Zachair Ltd. v. Driggs, No. 97-1811, 1998 WL 211943, at *2 (4th Cir. April
30, 1998) (affirming a district court’s dismissal of an antitrust claim because the “[p]lain
language of the complaint allege[d] that the corporate defendants were all controlled
and/or owned by” the same person); Livingston Downs Racing Ass’n, Inc. v. Jefferson
Downs Corp., 257 F. Supp. 2d 819, 835 (M.D. La. 2002) (finding no antitrust violation
between competing racetracks where a husband and wife wholly owned one and held
72% of the voting stock in the other because “there can be no § 1 conspiracy between
one corporation and another corporation that it legally controls”). KYS would thus need
to show that despite having overlapping ownership, NASCAR (wholly owned by three
members of the France family) and ISC (of which the France family owns 65% of the
voting stock and for which the family makes all of the major decisions) are not under
common ownership or control and do not share a single “corporate consciousness.”
Another hurdle faced by KYS is its need to show that its failure to obtain a Sprint
Cup race constitutes an antitrust injury, “which is to say injury of the type the antitrust
laws were intended to prevent and that flows from that which makes defendants’ acts
unlawful.” See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977).
An injury does “not qualify as ‘antitrust injury’ unless it is attributable to an anti-
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 17
competitive aspect of the practice under scrutiny.” Atl. Richfield Co. v. USA Petroleum
Co., 495 U.S. 328, 334 (1990). “The Sixth Circuit, it is fair to say, has been reasonably
aggressive in using the antitrust injury doctrine to bar recovery where the asserted injury,
although linked to an alleged violation of the antitrust laws, flows directly from conduct
that is not itself an antitrust violation.” Valley Prods., Inc. v. Landmark, 128 F.3d 398,
403 (6th Cir. 1997).
We question KYS’s allegation that NASCAR’s refusal to grant KYS a Sprint
Cup race constitutes an antitrust injury because there are many considerations relevant
to the quintessential business judgment of whether expanding the Sprint Cup to northern
Kentucky makes economic sense in developing the NASCAR brand on a national basis.
See Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336, 347 (6th Cir. 2006)
(explaining that “whether the parties exercise wise business judgment in any given
transaction is not a concern of antitrust laws”). KYS has also failed to put forth
persuasive evidence that NASCAR and ISC are colluding to drive KYS out of business,
especially in light of the healthy source of revenue that KYS reaps from NASCAR
continuing to sanction both the Craftsman Truck races and the Busch series at the KYS
facility.
Likewise, KYS’s contention that its inability to purchase an independent
racetrack because NASCAR, ISC, and SMI have colluded against it is unsupported by
the record. KYS does not appear to have been hampered in its efforts to bid for an
independent track, and even if KYS should have won the bid, antitrust law does not
require that sellers of independent tracks make good business decisions. See id.
(observing that “sellers are free to choose to whom they will sell, and salesmen battle
and strive to curry favor and close the deal; whether the parties exercise wise business
judgment in any given transaction is not a concern of the antitrust laws”).
In this regard, there is a serious question as to whether KYS is simply a “jilted
distributor” that NASCAR bypassed as a host for a Sprint Cup race in favor of its
competitors. See, e.g., Care Heating & Cooling, Inc. v. Am. Standard, Inc., 427 F.3d
1008, 1014-15 (6th Cir. 2005) (holding that a “manufacturer has a right to select its
No. 08-5041 Ky. Speedway, LLC v. NASCAR et al. Page 18
customers and refuse to sell its goods to anyone, for reasons sufficient to itself”)
(internal quotation marks omitted) (quoting Dunn & Mavis, Inc. v. Nu-Car Driveaway,
Inc., 691 F.2d 241, 243 (6th Cir. 1982)). These cases strike us as analogous to the
circumstances faced by KYS in the present case, and they cast doubt on whether KYS’s
failure to obtain a Sprint Cup through NASCAR’s application process is “an injury of
the type the antitrust laws were intended to prevent.” See Brunswick Corp., 429 U.S. at
489.
We need not address these potential hurdles further, however, in light of our
conclusion that the district court did not abuse its discretion in excluding the reports and
deposition testimony of KYS’s experts Zimbalist and Leffler. Without having defined
the relevant markets, KYS is simply unable to sustain its antitrust claims.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.