PRECEDENTIAL
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`______________
`
`No. 20-2848
`______________
`
`HOST INTERNATIONAL, INC.,
` Appellant
`
` v.
`
`MARKETPLACE, PHL, LLC,
` ______________
`
`On Appeal from United States District Court
`for the Eastern District of Pennsylvania
`(D.C. No. 2:19-cv-02036)
`District Judge: Honorable John M. Gallagher
`______________
`
`Argued September 24, 2021
`
`
`
`
`
`
`Before: CHAGARES, Chief Judge, HARDIMAN, and
`MATEY, Circuit Judges.
`
`(Filed: April 27, 2022)
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`______________
`
`No. 20-2848
`______________
`
`HOST INTERNATIONAL, INC.,
` Appellant
`
` v.
`
`MARKETPLACE, PHL, LLC,
` ______________
`
`On Appeal from United States District Court
`for the Eastern District of Pennsylvania
`(D.C. No. 2:19-cv-02036)
`District Judge: Honorable John M. Gallagher
`______________
`
`Argued September 24, 2021
`
`
`
`
`
`
`Before: CHAGARES, Chief Judge, HARDIMAN, and
`MATEY, Circuit Judges.
`
`(Filed: April 27, 2022)
`
`
`
`
`
`Thomas C. Goldstein [ARGUED]
`Eric F. Citron
`Goldstein & Russell, PC
`7475 Wisconsin Avenue, Suite 850
`Bethesda, MD 20814
`
`Howard I. Langer
`Edward Diver
`Peter E. Leckman
`Langer Grogan & Diver, PC
`1717 Arch Street, Suite 4130
`Philadelphia, PA 19103
`
`R. Paul Yetter
`Bryce L. Callahan
`Yetter Coleman LLP
`811 Main Street, Suite 4100
`Houston, TX 77002
`Counsel for Appellant
`
`
`Angelo I. Amador
`Restaurant Law Center
`2055 L Street, NW, 7th Floor
`Washington, DC 20036
`
`Gabriel K. Gillett
`Kelsey L. Stimple
`Jenner & Block LLP
`353 North Clark Street, Suite 4500
`Chicago, IL 60654
`Counsel for Restaurant Law Center, Amicus Curiae in
`Support of Appellant
`
`
`
`
`
`2
`
`
`
`Leslie E. John [ARGUED]
`Jason A. Leckerman
`Elizabeth P. Weissert
`Ballard Spahr LLP
`1735 Market Street, 51st Floor
`Philadelphia, PA 19103
`Counsel for Appellee
`
`
`
`______________
`
`OPINION
`______________
`
`MATEY, Circuit Judge.
`
`After winning a bid for retail concession space at
`
`Philadelphia
`International Airport
`(“PHL”), Host
`International, Inc. (“Host”) heard a common question: “Is
`Pepsi okay?” Host decided that it was not and, eager to pour
`what it pleased, filed an antitrust action. From that most
`ordinary origin bubbles up the novel question of whether an
`exclusive beverage agreement at an airport can be challenged
`under the federal antitrust laws. We conclude that it cannot,
`because Host lacks antitrust standing and has not adequately
`pled a violation of Section 1 of the Sherman Act. So we will
`affirm the District Court’s judgment.
`
`I.
`
`Host is a familiar face to travelers, operating food,
`
`beverage, and merchandise concessions at over 120 airports
`globally, including PHL. The City of Philadelphia owns PHL
`and uses a private
`firm, MarketPlace, PHL, LLC
`(“MarketPlace”), as landlord. PHL is a big operation, serving
`
`
`
`3
`
`
`
`more than thirty million passengers each year, and producing
`equally big food and beverage sales, more than $100M in 2016.
`
`After a competitive bidding process, Host won two
`concession spots at PHL, planning to open a coffee shop in one,
`and a restaurant in the other. But negotiations between Host
`and MarketPlace for a lease hit a wall when MarketPlace
`insisted on
`a
`term
`allowing
`it
`to
`“enter
`into
`agreements . . . granting . . . third-parties exclusive or semi-
`exclusive rights to be sole providers of certain foods, beverages
`or other types of products.” (App at 24.) That included a
`“pouring-rights agreement” (“PRA”), “granting a beverage
`manufacturer, bottler, distributor or other company (e.g., Pepsi
`or Coca-Cola) the exclusive control over beverage products
`advertised, sold and served at [PHL].” (App. at 24 (alteration
`in original)). Host balked and demanded that the PRA be left
`out. MarketPlace refused, and Host walked away from the deal
`and into federal court.
`
`Host’s Complaint sketches a “scheme to gain control
`
`over the sale of beverages at PHL” by tying the PRA to leases
`for commercial space. (App. at 14.) If successful, Host alleges,
`MarketPlace would enjoy outsized profits “at the expense of
`PHL consumers, competing beverage suppliers, and lessees of
`concession and retail space at PHL.” (App. at 15.) Host also
`alleges that MarketPlace would receive payoffs from a “big
`soda company” courtesy of an exclusive pouring-rights
`agreement. (App. at 16.)1 Host grounds those allegations in two
`
`1 The company’s identity has since been publicly
`revealed as PepsiCo. While PepsiCo is not a party here,
`MarketPlace alleged “an exclusive third-party beverage
`company” as one co-conspirator for the Section 1 conspiracy
`claim.
`
`
`
`4
`
`
`
`theories: 1) an unlawful tying arrangement in violation of
`Section 1 of the Sherman Act; and 2) an illegal conspiracy and
`agreement in restraint of trade, another Section 1 violation.2
`
`
`MarketPlace moved to dismiss the Complaint under
`
`Federal Rule of Civil Procedure 12(b)(6). The District Court
`held that Host had standing to bring its antitrust claims but
`granted the motion with prejudice, finding Host failed to
`adequately plead a relevant geographic market. Host timely
`appealed, and we will affirm the District Court’s judgment.3
`
`II.
`
`Surviving a motion to dismiss requires “only enough
`
`facts to state a claim to relief that is plausible on its face.” Bell
`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Further,
`“[w]e accept as true the factual allegations in the complaint,
`and draw all reasonable inferences in the plaintiff’s favor.”
`Phila. Taxi, 886 F.3d at 338. But “we are not compelled to
`
`
`2 Host does not appeal the District Court’s decision to
`
`decline supplemental jurisdiction over a third claim for tortious
`interference.
`3 The District Court had jurisdiction under 28 U.S.C.
`
`§ 1331 and 15 U.S.C. § 4. We have jurisdiction under 28
`U.S.C. § 1291. “We exercise plenary review of the District
`Court’s dismissal of the [Complaint],” Phila. Taxi Ass’n, Inc.
`v. Uber Techs., Inc., 886 F.3d 332, 338 (3d Cir. 2018) (citation
`omitted), and “may affirm on any basis supported by the
`record, even if it departs from the District Court’s rationale,”
`TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019)
`(citation omitted). Host also moved for an injunction, (ECF
`No. 50), but because we will affirm the dismissal of Host’s
`Complaint, that motion is moot.
`
`
`
`5
`
`
`
`unwarranted
`and
`conclusions
`‘unsupported
`accept
`inferences.’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
`2007) (quoting Schuylkill Energy Res., Inc. v. Pa. Power &
`Light Co., 113 F.3d 405, 417 (3d Cir. 1997)). As a result, we
`draw on “judicial experience and common sense,” rather than
`follow an attenuated chain of assumptions. Ashcroft v. Iqbal,
`556 U.S. 662, 679 (2009).
`
`Finally, while “it is inappropriate to apply Twombly’s
`plausibility standard with extra bite in antitrust and other
`complex cases,” W. Penn Allegheny Health Sys., Inc. v.
`UPMC, 627 F.3d 85, 98 (3d Cir. 2010), we need not “accept as
`true a legal conclusion couched as a factual allegation,”
`Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with
`approval in Twombly, 550 U.S. at 555–56); Iqbal, 556 U.S. at
`678–79 (quoting Twombly, 550 U.S. at 555).
`
`A. Host Fails to Plead Antitrust Standing
`
`Despite the sweeping commands of the Sherman and
`Clayton Acts, courts have read a limit into their text.4 So while
`
`
`4 About four decades ago, around 100 years after the
`Sherman Act became law, the Supreme Court “observed, the
`lower federal courts have been ‘virtually unanimous in
`concluding that Congress did not intend the antitrust laws to
`provide a remedy in damages for all injuries that might
`conceivably be traced to an antitrust violation.’” Associated
`Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S.
`519, 534 (1983) (“AGC”) (quoting Hawaii v. Standard Oil
`Co., 405 U.S. 251, 263 n.14 (1972)). But that conclusion “is
`inferred largely from the perception that the courts construing
`Section 7 between 1890 and 1914 perceived such a
`congressional intention and implemented it.” John F. Hart,
`
`
`
`6
`
`
`
`Section 4 of the Clayton Act permits enforcement of the
`Sherman Act through civil suits for treble damages by “any
`person who shall be injured in his business or property,” 15
`U.S.C. § 15, courts have decided that not every person may
`sue. See Steamfitters Loc. Union No. 420 Welfare Fund v.
`Philip Morris, Inc., 171 F.3d 912, 922 (3d Cir. 1999) (citing
`Blue Shield of Virginia v. McCready, 457 U.S. 465, 477
`(1982)). Instead, the cause of action is subject to an additional,
`a-textual requirement known as “antitrust standing.”5 See
`
`
`Standing Doctrine in Antitrust Damage Suits, 1890-1975:
`Statutory Exegesis, Innovation, and the Influence of Doctrinal
`History, 59 Tenn. L. Rev. 191, 255–56 (1992). So too with
`Section 4 of the Clayton Act’s direct-injury rule, which
`“depends in turn on the proposition that the courts had adopted
`such a restriction between 1890 and 1914.” Id. In other words,
`because courts began to stray from the ordinary best meaning
`of the statutes, the courts concluded their preferred reading
`reflected the bills passed by Congress and signed into law.
`5 A theory often “stated elliptically and without
`analytical precision,” meaning “[m]any of the cases cannot be
`reconciled.” A. Douglas Melamed et al., Antitrust Law and
`Trade Regulation: Cases and Materials 1173 (7th ed. 2018).
`Leaving us with “a murky and mushy analytical framework
`for . . . the standing of a private antitrust plaintiff.” Stephen D.
`Susman, Standing in Private Antitrust Cases: Where is the
`Supreme Court Going?, 52 Antitrust L.J. 465, 467 (1983). But
`see Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
`U.S. 118, 126–28 (2014) (In AGC, “we sought to ‘ascertain,’
`as a matter of statutory interpretation, the ‘scope of the private
`remedy created by’ Congress in § 4 of the Clayton Act
`. . . . Later decisions confirm that [AGC] rested on statutory,
`
`
`
`7
`
`
`
`Ethypharm S.A. France v. Abbotts Labs., 707 F.3d 223, 232
`(3d Cir. 2013) (quoting City of Pittsburgh v. W. Penn Power
`Co., 147 F.3d 256, 264 (3d Cir. 1998)). While the name echoes
`the familiar formulation of Article III, the judicially imposed
`requirement
`of
`antitrust
`standing
`is
`far more
`limiting. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace
`Corp., 995 F.2d 425, 429 (3d Cir. 1993). So even though
`“‘[h]arm to the antitrust plaintiff is sufficient to satisfy the
`constitutional standing requirement of injury in fact,’ courts
`must also consider ‘whether the plaintiff is a proper party to
`bring a private antitrust action.’” Phila. Taxi, 886 F.3d at 343
`(quoting AGC, 459 U.S. at 535 n.31).
`
`Naturally, determining who is a “proper party” is
`
`complicated by a consideration of generalized concepts like
`“foreseeability and proximate cause, directness of injury,
`certainty of damages and privity of contract.” Gulfstream, 995
`F.2d at 429 (quoting AGC, 459 U.S. at 532–33). And so courts
`whipped up a list of factors:
`
`(1) the causal connection between the antitrust
`violation and the harm to the plaintiff and the
`intent by the defendant to cause that harm, with
`neither
`factor alone conferring
`standing;
`(2) whether the plaintiff’s alleged injury is of the
`type for which the antitrust laws were intended
`to provide redress; (3) the directness of the
`injury, which addresses the concerns that liberal
`application of standing principles might produce
`speculative claims; (4) the existence of more
`direct victims of the alleged antitrust violations;
`
`not ‘prudential,’ considerations.” (quoting AGC, 459 U.S. at
`529)).
`
`
`
`8
`
`
`
`and (5) the potential for duplicative recovery or
`complex apportionment of damages.
`
`In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144,
`1165–66 (3d Cir. 1993) (citing AGC, 459 U.S. at 545).6 But we
`need not pore over the list, as one, the absence of antitrust
`injury, is enough to affirm the District Court’s judgment.
`
`
`
`1.
`
`There is No Antitrust Injury on These Facts
`
`“The second [AGC] factor, antitrust injury, ‘is a
`
`necessary . . . condition of antitrust standing.’ If it is lacking,
`remaining AGC
`[a
`court] need not
`address
`the
`factors.” Ethypharm, 707 F.3d at 233 (quoting Barton &
`Pittinos, Inc. v. SmithKline Beecham Corp., 118 F.3d 178, 182
`(3d Cir. 1997)). We start our search there, looking for an
`“injury of the type the antitrust laws were intended to prevent
`and that flows from that which makes defendant[’s] acts
`unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429
`
`
`6 Determining when to dive into this analysis is
`
`similarly murky. Compare Hanover 3201 Realty, LLC v. Vill.
`Supermarkets, Inc., 806 F.3d 162, 171 (3d Cir. 2015) (“We
`begin with antitrust standing.”), with Lifewatch Servs. Inc. v.
`Highmark Inc., 902 F.3d 323, 341 (3d Cir. 2018) (addressing
`antitrust standing after addressing the pled antitrust violation).
`But rather than getting lost, courts often “assume the existence
`of a violation and then ask whether the . . . standing elements
`are shown.” Phillip E. Areeda & Herbert Hovenkamp,
`Antitrust Law: An Analysis of Antitrust Principles and Their
`Application, ¶ 335f (4th ed. 2014). And because we can
`dismiss solely for lack of antitrust standing, we begin there. See
`W. Penn, 147 F.3d at 269 (affirming the district court’s
`dismissal for lack of antitrust standing).
`
`
`
`9
`
`
`
`U.S. 477, 489 (1977). Somewhat circular, but it means the
`“challenged conduct affected the prices, quantity or quality of
`goods or
`services, not
`just
`[the plaintiff’s] own
`welfare.” Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641
`(3d Cir. 1996) (quotations omitted). All of which “aims to
`protect competition, not competitors,” consistent with the
`judicial gloss on the antitrust laws. Id. And the injury required
`for antitrust standing must flow from the unlawful nature of
`defendants’ acts. See 15 U.S.C. § 15(a).
`
`Accepting Host’s argument, the District Court reasoned
`
`that “the alleged antitrust injury” is “exclusion from PHL.”
`(App. at 9.) But Host was not excluded; Host chose to walk
`away from the table because it did not like the lease terms
`MarketPlace offered. And the conclusion that Host pled a
`plausible antitrust injury stretches the boundaries of antitrust
`law too far. First, because a breakdown in contract negotiations
`is outside the Sherman Act’s scope; second, because injury to
`competitors, rather than to competition, is beyond the law’s
`sphere.
`
`Failure to Secure Preferred Contractual Terms
`i.
`
`is Not an Antitrust Injury
`
`Begin with the narrow contours of Host’s claim.
`
`MarketPlace selected Host to develop retail space and offered
`a proposed lease. Host did not like the terms and, weighing its
`options, declined the offer. It is a scenario that plays out across
`the nation daily, in transactions big and small. But it is not an
`antitrust injury because competition has not been suppressed.
`Host has not been excluded from any market nor forced to
`purchase non-alcoholic beverages from anyone.
`
`
`
`10
`
`
`
`True, refusing to deal can sometimes establish an
`antitrust claim under Section 2.7 Likewise, a group decision
`among competitors to boycott a firm might constitute a claim
`under Section 1. And a host of common law claims sounding
`in contract, quasi-contract, and tort could come into play. See
`JetAway Aviation, LLC v. Bd. of Cty. Comm’rs, 754 F.3d 824,
`855 (10th Cir. 2014) (per curiam) (Tymkovich, J., concurring);
`E. Food Servs., Inc. v. Pontifical Catholic Univ. Servs. Ass’n,
`Inc., 357 F.3d 1, 9 (1st Cir. 2004).
`
`But Host seeks something novel: recognition that failing
`
`to contract for commercial space states a Section 1 claim. We
`decline that invitation. An objectionable term in a commercial
`agreement, without more, is not an antitrust violation because
`“[d]espite [Section 1’s] seemingly absolute language,” only
`unreasonable agreements in restraint of trade are antitrust
`violations under the Sherman Act. W. Penn, 627 F.3d at 99
`(citations omitted). Host’s Complaint alleges how
`the
`exclusive beverage agreement and the PRA are undesirable,
`but not how they are unreasonable restraints. Host surely
`prefers a broader set of options for its sublessees, but that does
`not create a duty on MarketPlace because “[a]s a general rule,
`businesses are free to choose the parties with whom they will
`deal, as well as the prices, terms, and conditions of that
`dealing.” See Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc.,
`
`
`7 But only among competitors, and only if the
`parties have a history of dealing paired with facts suggesting
`“a willingness to forsake short-term profits to achieve an
`anticompetitive end.” Verizon Commc’ns Inc. v. L. Offs. of
`Curtis V. Trinko, LLP, 540 U.S. 398, 409 (2004) (citing Aspen
`Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585
`(1985)).
`
`
`
`11
`
`
`
`555 U.S. 438, 448 (2009). As a result, Host does not have an
`antitrust injury sufficient to confer standing.
`
`
`
`ii.
`
`Host Alleges Harm Only to Itself
`
`Refusing to agree to a contract also cannot state a
`plausible Section 1 injury because it is now “axiomatic that the
`antitrust laws were passed for ‘the protection of competition,
`not competitors.’” Brooke Grp. Ltd. v. Brown & Williamson
`Tobacco Corp., 509 U.S. 209, 224 (1993) (quoting Brown Shoe
`Co. v. United States, 370 U.S. 294, 320 (1962)). Even if that
`axiom comes from the courts, not Congress, it is still a binding
`limitation on our review.
`
`The District Court recognized, “[d]espite references of
`potential harm to others, . . . Host seeks remedy for its injury
`alone, and that injury is its exclusion from PHL.” (App. at 9.)
`But, once again, pleading an antitrust injury requires a plaintiff
`to “prove that [the] challenged conduct affected the prices,
`quantity or quality of goods or services, not just [its] own
`welfare.” Mathews, 87 F.3d at 641 (quotations omitted); see
`also Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394, 403
`(3d Cir. 2016) (citing W. Penn, 627 F.3d at 100).8 Host
`
`
`8 Host’s speculations do not alter that conclusion. The
`
`Complaint references, anecdotally, that a pouring rights
`agreement “at one airport, . . . resulted in the exclusion of three
`of four premium brands of bottled water.” (App. at 21). And
`“[i]n another market study, 17% of respondents indicated it is
`essential that the water they purchase be natural spring water.”
`(App. at 22.) Taking both in the light most favorable to Host,
`we can infer: 1) that a market study was conducted at some
`airport, somewhere, sometime; and 2) in a separate study,
`around 1.7 of every ten consumers—perhaps at airports,
`
`
`
`12
`
`
`
`“estimates [under the PRA] . . . costs at its existing units would
`increase by over 30%,” noting, for example, “the price increase
`for regular non-premium water is more than 40% for a smaller
`serving size.” (App. at 21.) But that is harm only to Host’s
`“own welfare,” which is not our focus. Mathews, 87 F.3d at
`641. Host fails to plead facts tending to show that consumer
`prices would increase under the PRA because it does not
`follow that Host’s costs must be passed on to consumers. The
`PRA might just as easily secure lower or discounted beverage
`prices for smaller subtenants who could not access volume
`discounts and decrease prices for consumers. See Eisai, 821
`F.3d at 403 (“[E]xclusive dealing arrangements . . . can also
`offer consumers various economic benefits, such as assuring
`them the availability of supply and price stability.”); Race
`Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 76
`(3d Cir. 2010) (“[I]t is widely recognized that in many
`circumstances [exclusive dealing arrangements] may be highly
`efficient—to assure supply, price stability, outlets, investment,
`best efforts or the like—and pose no competitive threat at all.”)
`(quoting E. Food Servs., 357 F.3d at 8)). And what is more,
`Host is not even required to purchase non-alcoholic beverages
`under the PRA.
`
`Host also contends that “MarketPlace and [PHL] have
`attempted to cause and have in fact caused . . . competitive
`harm . . . potentially to other lessors/sublessors at PHL, as well
`as to competing beverage suppliers shut out of the market
`under pouring rights and consumers of beverages and other
`products at PHL.” (App. at 28 (emphasis added).) But Host’s
`
`
`perhaps not— really liked spring water. We cannot infer that
`the quality of non-alcoholic beverages at PHL under the PRA
`would not be comparable. Or much else for that matter.
`
`
`
`13
`
`
`
`Complaint lacks any facts alleging harm to other PHL tenants
`and potential harms do not suffice. To recover treble damages
`under Section 4 of the Clayton Act, “a plaintiff must make
`some showing of actual injury attributable to something the
`antitrust laws were designed to prevent,” not potential injury.
`J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557,
`558 (1981) (emphasis added). And most
`importantly,
`competing beverage suppliers were not “shut out” of the
`market unilaterally; they participated in a competitive bidding
`process that PepsiCo simply won.9
`
`Sailing a straight course through the murky waters of
`antitrust injury challenges courts to avoid the siren songs of
`illusory harm. That is why the doctrine “requires every plaintiff
`to show that its loss comes from acts that reduce output or raise
`prices to consumers” in the relevant market. Chicago Prof’l
`Sports Ltd. P’ship v. Nat’l Basketball Ass’n, 961 F.2d 667, 670
`(7th Cir. 1992) (collecting cases). Host does not and, for that
`reason, cannot state a claim for relief.
`
`
`9 It is telling that the same competitive bidding process
`that resulted in the PRA also awarded Host the two retail
`concession spaces, (App. at 24–25) a process Host agrees was
`competitive. (Opening Br. at 15.) Understandably, as “[i]t is
`well established that competition among businesses to serve as
`an exclusive supplier should actually be encouraged.” Race
`Tires, 614 F.3d at 83; see also Menasha Corp. v. News Am.
`Mktg. In-Store, Inc., 354 F.3d 661, 663 (7th Cir. 2004)
`(competition to be an exclusive supplier “is a vital form of
`rivalry, and often the most powerful one, which the antitrust
`laws encourage rather than suppress.”).
`
`
`
`14
`
`
`
`B.
`
`The Tying Claim
`
` While Host’s failure to plead antitrust standing defeats
`
`both its Section 1 claims,10 we note a deeper problem with
`using a “tying theory” on these facts. Tying refers to “selling
`one good (the tying product) on the condition that the buyer
`also purchase another separate good (the tied product).” Race
`Tires, 614 F.3d at 75 (quoting Harrison Aire, Inc. v. Aerostar
`Int’l, Inc., 423 F.3d 374, 385 (3d Cir. 2005)).11
`
`That is not the case here. Host strains to argue that a
`
`lease provision limiting the use of MarketPlace’s property
`forces Host’s sublessees to purchase something they may not
`want. But we “are not bound to accept as true a legal
`conclusion couched as a factual allegation.” Twombly, 550
`U.S. at 555 (quoting Papasan, 478 U.S. at 286). It also requires
`Olympic-level gymnastics to bound across the floor from a
`publicly bid leased space to a tying agreement. Among the
`leaps: Host is not “purchasing” non-alcoholic beverages (when
`instead its tenants might); Host is not “forced” to purchase non-
`alcoholic beverages (when instead the PRA only limits Host’s
`sublessees’ choice of vendors). Thankfully, “we are not
`
`10 Host also alleged that MarketPlace’s conduct violated
`Section 1 of the Sherman Act because it constituted an
`unlawful restraint of trade. But because Host has not
`adequately alleged an antitrust injury, Host’s generic Section 1
`claim fails.
`11 We have viewed tying cases to implicate rule of
`reason analysis. Town Sound & Custom Tops, Inc. v. Chrysler
`Motors Corp., 959 F.2d 468, 477, 482 (3d Cir. 1992) (en banc).
`But because Host has not proven the existence of a tie, we need
`not address whether the District Court erred in not analyzing
`the claim under the rule of reason.
`
`
`
`15
`
`
`
`and
`conclusions
`‘unsupported
`accept
`to
`compelled
`unwarranted inferences,’” Baraka, 481 F.3d at 195 (quoting
`Schuylkill, 113 F.3d at 417) and can rely instead on ordinary
`understanding, Iqbal, 556 U.S. at 679. Understanding that
`draws on the “essential characteristic of an invalid tying
`arrangement,” namely “the seller’s exploitation of its control
`over the tying product to force the buyer into the purchase of a
`tied product.” Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466
`U.S. 2, 12 (1984), abrogated on other grounds by Ill. Tool
`Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006).
`
`At bottom, Host alleges the proposed lease demands
`
`purchasing non-alcoholic beverages under the PRA. If that
`sounds familiar, it is, because it again recasts the PRA contract
`restriction as a product. But even if it were, Host would be
`obligated to “purchase” the tied product because of the lease
`agreement, not because of MarketPlace’s market power over
`the tying product. “The flaw in this argument is that the
`essential element of coercion on the part of the product seller
`is absent completely from the facts.” Aquatherm Indus., Inc. v.
`Fla. Power & Light Co., 145 F.3d 1258, 1263 (11th Cir. 1998).
`If anything, that is an issue of contract law rather than antitrust
`law. MarketPlace’s control over the non-alcoholic beverage
`suppliers at PHL does not stem from market power; it stems
`from its role as a landlord.12 See Queen City Pizza, Inc. v.
`
`
`12 See E. Food Servs., 357 F.3d at 4 (“The university,
`like most landlords, controls who may set up shop on its
`premises. It could act as the sole on-campus supplier of food
`and beverages, allow multiple suppliers, or give exclusive
`access to one supplier.”); JetAway, 754 F.3d at 857–58
`(Tymkovich, J., concurring) (“No one disputes that the Airport
`may control access to its own premises, . . . [and] strictly
`
`
`
`16
`
`
`
`Domino’s Pizza, Inc., 124 F.3d 430, 441 (3d Cir. 1997).
`Antitrust plaintiffs cannot simply frame their contract claims
`in a clever way to pursue treble damages.13
`
`
`control its concessionaires and the services they supply.”);
`see also Christy Sports, LLC v. Deer Valley Resort Co., 555
`F.3d 1188, 1193 (10th Cir. 2009) (“[A] resort has no obligation
`under the antitrust laws to allow competitive suppliers of
`ancillary services on its property. A theme park, for example,
`does not have to permit third parties to open restaurants, hotels,
`gift shops, or other facilities within the park.”).
`13 An illegal tying scheme requires that “the seller
`possesses market power in the tying product market.” Town
`Sound, 959 F.2d at 477. The necessary market power “is the
`power to force a purchaser to do something that he would not
`do in a competitive market” and can be “inferred from the
`seller’s possession of a predominant share of the market.”
`Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451,
`464 (1992) (quotations omitted). “[T]he court calculates the
`market share in the relevant product markets” from the
`geographic market, the “area in which a potential buyer may
`rationally look for the goods or services he seeks.” Gordon v.
`Lewistown Hosp., 423 F.3d 184, 212 (3d Cir. 2005). But
`because Host has failed to plead that MarketPlace “forced”
`Host to “purchase” a separate “product,” we need not address
`whether a single airport can constitute a geographic market.
`See Town Sound, 959 F.2d at 477. Federal courts are not
`economists, and we should avoid an unnecessary “ramble
`through the wilds of economic theory.” United States v. Topco
`Assocs., Inc., 405 U.S. 596, 609 n.10 (1972).
`
`
`
`17
`
`
`
`III.
`
`Contractual negotiations began the relationship between
`
`Host and Marketplace, and contract, not antitrust, is where that
`relationship ends. The antitrust laws prevent the consequence
`of an antitrust injury; they do not create one. Whatever remedy
`exists for Host’s disappointment must lie outside the antitrust
`law which “is not intended to be as available as an over-the-
`counter cold remedy, because were its heavy power brought
`into play too readily it would not safeguard competition, but
`destroy it.” Capital Imaging Assocs., P.C. v. Mohawk Valley
`Med. Assocs., Inc., 996 F.2d 537, 539 (2d Cir. 1993). For that
`reason, we will affirm the judgment of the District Court
`dismissing the Complaint with prejudice.
`
`
`
`18
`
`
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