Date: 08-09-2015

Case Style: DUTY FREE AMERICAS, INC. vs. THE ESTEE LAUDER COMPANIES, INC.

Case Number: No. 14-11853

Judge: Judge Stanley Marcus

Court: IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Plaintiff's Attorney: Emily E. Chow, Craig S. Coleman and Richard A. Duncan

Defendant's Attorney: Joseph Kattan and Robert C. Walters

Description: The essential facts contained in DFA’s complaint and its attached exhibits
are these. DFA operates many duty free stores in American airports with
international terminals. DFA is one of approximately ten major operators of duty
free stores in the United States. DFA currently holds leases in thirteen
international airports located in eleven cities: New York (JFK and LaGuardia),
Washington, D.C. (Dulles and Reagan National), Detroit, Miami, Atlanta,
Baltimore, San Antonio, Phoenix, San Diego, Salt Lake City, and Charlotte. It
competes with other duty free operators for the limited rental space available in
U.S. airports servicing international flights.
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Airports generally rent their dedicated duty free space for lease terms of
between five and ten years. An airport seeking to rent to a duty free operator
proceeds by initiating competitive bidding. Typically, the airport issues a request
for proposal (“RFP”), and interested duty free operators respond with proposals
explaining what products they would carry at the airport and the amount of rent
they are willing to pay. Proposed rent in the duty free market is comprised of both
a minimum annual guarantee and a percentage of sales revenue. Normally, all of
the space that an airport allocates for duty free retail space is leased by the same
operator.
At duty free stores, customers -- who must be outbound international
travelers -- can purchase luxury products at discounted prices. Beauty products --
which include makeup, skin care products, and fragrances -- are a substantial
component of duty free stores’ product offerings. And Estée Lauder is the “largest
manufacturer of beauty products sold in duty-free stores in U.S. airports.” DFA
notes that in 2010 Estée Lauder’s market share of cosmetics, a subgroup consisting
of makeup and skin care, sold in duty free stores was approximately 45.71%, while
its market share for skin care products exceeded 50%. DFA further estimates that
Estée Lauder’s market share has increased in the intervening years. Newcomers to
the duty free beauty products market are apparently rare, due to the “extremely
limited shelf space available in airport duty free shops,” and DFA alleges that
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“[t]here has been no change in the composition of the top five beauty product
manufacturers in the past five years, other than [Estée Lauder’s] continuous
increase in market share each year.”
DFA purchased Estée Lauder beauty products to sell in its duty free stores
until June 2008. During that time, Estée Lauder set two different prices for each
product -- a suggested domestic retail price and a lower suggested travel retail
price. Retailers that sold Estée Lauder products in traditional outlets, such as
department stores, could purchase goods at wholesale prices, which were set by
discounting the suggested domestic retail prices of items. By contrast, duty free
operators like DFA could purchase at lower travel wholesale rates that were set by
discounting the suggested travel retail prices for particular products. For most of
DFA’s relationship with Estée Lauder, the suggested travel retail price for beauty
products offered customers a 10% discount off of the suggested domestic retail
price.
Duty free operators that contracted with Estée Lauder had to comply with
several inventory and display requirements. In particular, Estée Lauder required
operators to carry the full line of products within a particular brand (“full line
forcing”) and carry the company’s less-popular fragrances if they wanted to sell
cosmetics (“tying”). Estée Lauder also mandated that operators reserve display
space of a certain size and quality for its products and that they keep excess
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inventory in stock, and routinely threatened to cut off all product supply when duty
free operators resisted these conditions. According to the complaint and its
attached exhibits, DFA was last subject to Estée Lauder’s various contractual
requirements several years ago: (1) “display space and inventory demands” in
March 2008; (2) “full line forcing” in March 2008; and (3) “tying” fragrances to
other products in April 2006.
In January 2007, Estée Lauder announced plans to eliminate the differences
between its suggested domestic retail prices and suggested travel retail prices. In
other words, it would promulgate only one suggested retail price for each product
that would be used in both traditional retail outlets and duty free stores. This
planned change, which would both increase the prices DFA paid for Estée Lauder
products and eliminate the discount that DFA’s customers gained by shopping at
duty free stores, was supposed to take effect on April 1, 2008. As a result of the
changing price structure, DFA terminated its business dealings with Estée Lauder
by June 2008.
DFA adapted to the loss of Estée Lauder’s product lines by devoting the
display space that it formerly reserved for Estée Lauder products to other beauty
brands. But at some undisclosed point, DFA sought to renew its prior relationship
with Estée Lauder. The manufacturer refused to have any further dealings with
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DFA. The decision not to resume relations with DFA costs Estée Lauder an
estimated $14.5 million each year.
Since 2008, DFA has participated in competitive bidding for duty free retail
space at four international airports: Newark Liberty International Airport, Boston
Logan International Airport, Orlando International Airport, and Hartsfield-Jackson
Atlanta International Airport. Because DFA’s allegations of unlawful conduct
stem from Estée Lauder’s involvement, directly and indirectly, in these bidding
processes, we relay the events that occurred in some detail.
In December 2008, Newark Liberty International Airport issued a request for
proposal, seeking a tenant to lease its duty free retail space for a seven-year term.
DFA submitted a proposal in response to the RFP, as did three competitors:
International Shoppes, Dufry, and EJE Travel Retail. Each of the other operators
sold Estée Lauder products. During the RFP process, Estée Lauder’s President of
Travel Retailing Worldwide, Olivier Bottrie, sent a letter to the leasing agent
responsible for administering Newark’s bidding. The letter included a list of duty
free operators that sold Estée Lauder products. Bottrie wrote: “We are confident
that each of these authorized retailers brings the expected quality of in-store
execution and required operational excellence necessary to represent our brands
and service your valued passengers.”
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Newark ultimately rejected DFA’s proposal and opted to lease its space to
Dufry. Newark also ranked the proposals, indicating that it chose the Dufry
proposal because “Dufry had . . . [the] strongest financial position.” The airport
ranked DFA’s proposal second to last among those submitted, stating only “Duty
Free Americas does not have the rights to sell Est[é]e Lauder brands.”
In May 2011, Boston Logan International Airport issued an RFP, seeking a
tenant to lease its duty free retail space for a seven-year term. At the time the RFP
was issued, DFA had been the incumbent duty free operator at the Boston airport
for the last 16 years. DFA submitted a bid for the lease, as did two competitors,
International Shoppes and Dufry. Both of the other operators had ongoing
relationships with Estée Lauder. During the bidding process, Estée Lauder
informed the contractor administering the RFP that the company did not sell its
products to DFA. Boston elected to lease its duty free space to International
Shoppes. The contractor explained its reasoning, emphasizing two factors:
International Shoppes was authorized to sell Estée Lauder products, and the
minimum annual guarantee component of International Shoppes’ proposed rent
was higher than DFA’s.
In August 2011, Orlando International Airport issued an RFP, seeking an
operator to develop duty free space. DFA submitted a proposal in partnership with
Stellar Partners Inc. -- a local Florida entity that operated the duty free stores at
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Tampa International Airport. Under the terms of DFA and Stellar’s joint proposal,
each company would run separately branded stores within the Orlando airport.
DFA alleges that its bid “proposed to pay millions of dollars more in rent than any
other bidder over the life of the contract.” Four bids were also submitted by
DFA’s competitors: Dufry, Heinemann (in conjunction with a local partner, Travel
Retail), World Duty Free, and a partnership of Nuance and DFASS. During the
bidding process, Bottrie wrote to the Executive Director of the Greater Orlando
Aviation Authority to inform him that Estée Lauder would not do business with
DFA or with Stellar. The other four bids were submitted by entities or partnerships
that sold Estée Lauder products. The Airport Authority awarded its duty free
concessions to the Nuance/DFASS partnership, ranking DFA’s proposal second
among the submitted bids. DFA appealed the decision, and the Airport Authority
conducted a hearing on November 15, 2011.
At the appeal hearing, DFA was asked to explain why its proposal implied
that it would sell Estée Lauder products in the Orlando Airport if it were awarded the lease.1 DFA and Stellar attempted to account for the discrepancy by arguing
1 Specifically, DFA’s proposal had listed a “significant number of Estée Lauder brand items” that would be sold in its Orlando stores. Next, the promotional brochure that DFA included with its proposal made multiple references to Estée Lauder. First, the brochure included a section entitled “DFA Name Brands.” Both Estée Lauder and Clinique -- one of Estée Lauder’s brands - were included in this list. Second, the brochure included pictures of DFA retail space in which Estée Lauder and Clinique signage and products were visible. Finally, during the interview that the Airport Authority conducted after the proposals were submitted, when DFA representatives
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that its proposal had not been misleading, because the two operators assumed that
the Stellar locations within the airport would carry Estée Lauder products. Stellar
explained that, in the past, it sold Estée Lauder products in its Tampa duty free
space. However, it had been forced to downsize its physical space and could no
longer comply with Estée Lauder’s display requirements. Stellar’s representative
claimed that Estée Lauder had assured Stellar that if the company acquired
sufficient physical space to meet Estée Lauder’s display requirements, the two companies could resume their relationship. 2
During the appeal hearing, several competitors for the Orlando International
Airport contract criticized DFA’s proposal. Travel Retail expressed its view that
DFA’s financial projections were “unreasonable in light of past performance,” and
that awarding a contract to DFA would be a “risk.” Travel Retail further said, “we
strongly believe that Estée Lauder is a product which you have to sell.” Travel
Retail reiterated this view in a letter after the hearing, in which it cited information
“received directly from Estée Lauder” that placed “Estée Lauder’s market share

were asked to confirm that the company had “a direct merchandise purchasing relationship with all that brands [it was] offering,” both representatives responded “yes” to the question. 2 DFA also alleges that Estée Lauder engaged in similar conduct toward another of its partners, Concourse Concessions. Concourse Concessions partners with DFA to run duty free stores in three airports -- Miami, Dulles, and San Diego -- but partners with another operator in the Los Angeles airport. Estée Lauder has refused to sell products to Concourse Concessions for resale in Miami, Dulles, and San Diego, but supplies the operator with products for its Los Angeles location.
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[at] first in all categories” of beauty products sold in U.S. airport duty free stores.
Travel Retail emphasized, “failure to offer the Estée Lauder product line will
negatively impact duty free and duty paid sales revenue for both international and
domestic travelers.” Similarly, Nuance, the winner of the Orlando contract,
criticized DFA’s proposal, claiming that the ability to sell Estée Lauder products
was a “key component” of operating a successful duty free store and “echo[ing]”
Travel Retail’s concerns. Specifically, Nuance argued that “DFA[’s] sale
projections are deemed to be unreasonable and not sustainable in light of the
history.”
In January 2012, the Orlando Airport Authority affirmed its decision to
award the Orlando lease to Nuance/DFASS, stating that it found DFA’s “sales
projections . . . overstated and not reasonably attainable.” Specifically, the Airport
Authority concluded that DFA’s inability to offer Estée Lauder products would
adversely impact sales. Moreover, the data that DFA provided from its other
airport locations cast doubt on its predictions for sales in Orlando, and DFA’s
estimates for future performance far exceeded what the independent consultant that
the Airport Authority hired to evaluate the proposals believed was probable.
Finally, in July 2011, Hartsfield-Jackson Atlanta International Airport issued
an RFP for a seven-year lease to operate its duty free retail space. DFA submitted
a proposal here too, as did three of its competitors: World Duty Free, Dufry, and
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Nuance. In November 2011, Atlanta’s Chief Procurement Officer, Adam Smith,
informed the bidders that the contract would be awarded to DFA. In December, an
attorney representing one of the other bidders wrote a letter to Atlanta officials
regarding DFA. The letter suggested that DFA had made improper representations
about its relationship with Estée Lauder, and it included Bottrie’s contact
information, a list of Estée Lauder-owned brands, and information about the
Orlando Airport Authority appeal hearing. The attorney urged Smith to examine
DFA’s proposal for indications that the company was planning to sell Estée Lauder
products if awarded the Atlanta contract, and suggested that Smith contact Bottrie
to verify any representations DFA may have made.
Smith contacted DFA. He recounted that DFA had listed 19 stock keeping
units of Estée Lauder’s products, and asked DFA to confirm that it could in fact
carry those items. DFA explained that it could supply everything listed in the
proposal out of outstanding inventory. Subsequently, in early January 2012, the
contract was officially awarded to DFA.
On January 13, 2012, an attorney representing World Duty Free wrote to
Bottrie, asking him whether DFA was authorized to sell Estée Lauder’s products.
Bottrie responded, “Estée Lauder . . . do[es] not have a commercial relationship
with DFA or its affiliates and ha[s] no plans to enter into such a relationship. In
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accordance, DFA does not have authority to offer our product lines in their operations.”3
On January 17, Nuance sent a letter to Smith formally protesting the
decision to award the Atlanta contract to DFA and accusing DFA of making
misrepresentations in its proposal. Nuance stated in its letter “DFA may have
made misrepresentations about its ability to carry Estée Lauder brands.” The letter
also claimed that “a lack of access to Estée Lauder brands would cast doubt on the
validity of DFA’s projected revenue streams.” Nuance based this statement on the
fact that “Estée Lauder brands account for 20% of cosmetic and fragrance sales . . .
and cosmetic and fragrance sales constitute one of the largest sources of revenue
for duty free stores.” The letter also contained excerpts from the Orlando appeal
decision. The protest letter apparently had no impact on the Atlanta officials’
decision.
B.
On April 26, 2012, DFA commenced this action in the United States District
Court for the Southern District of Florida, asserting four claims against Estée
Lauder: (1) conspiracy in restraint of trade, in violation of § 1 of the Sherman Act,
15 U.S. § 1; (2) conspiracy to monopolize, in violation of § 2 of the Sherman Act,
3 An attorney representing Nuance later contacted Bottrie, seeking confirmation that Estée Lauder had not resumed relations with DFA. Bottrie responded with a similar letter to the one he sent to World Duty Free, stating that DFA had no relationship with Estée Lauder.
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15 U.S. § 2; (3) attempt to monopolize, in violation of § 2 of the Sherman Act; and
(4) tortious interference with prospective business relationships, in violation of
Florida law. Estée Lauder moved to dismiss under Federal Rule of Civil Procedure
12(b)(6); the district court granted the motion, and dismissed the claims without
prejudice. Soon thereafter, DFA amended its complaint. This time, DFA raised
three claims: (1) attempt to monopolize, in violation of § 2 of the Sherman Act; (2)
contributory false advertising, in violation of § 43(a) of the Lanham Act, 15 U.S.C.
§ 1125(a); and (3) tortious interference with prospective business relationships, in
violation of Florida law.
Estée Lauder again moved to dismiss the claims, and once again, the district
court granted Estée Lauder’s motion. This time, though the court dismissed the
Lanham Act claim without prejudice, it dismissed the Sherman Act and tortious
interference claims with prejudice, because “DFA [had] already had an opportunity
to amend these claims” after accessing “tens of thousands” of Estée Lauder
documents in discovery. The court first addressed DFA’s attempted
monopolization claim, examining the three different forms of conduct that DFA
alleged were anticompetitive. It concluded that the first two -- refusing to deal
with DFA and disparaging DFA to airport authorities -- did not constitute
anticompetitive conduct within the meaning of the antitrust laws. As for the last
allegation -- that Estée Lauder imposed restrictions on duty free operators’ display
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space allocation and inventory stocking -- the court concluded that the claim was
time barred to the extent DFA sought damages. To the extent that DFA sought
injunctive relief, the district court held that the claim was barred by laches or, in
the alternative, that DFA lacked antitrust standing to pursue it. Next, the court
concluded that the Lanham Act claim failed because DFA did not adequately
allege that Estée Lauder or any of the duty free operators had made any false or
misleading statements about DFA. In the trial court’s view, each of the offending
statements expressed merely an opinion or prediction for the future and not a
verifiable fact. Thus, it concluded that the statements were not actionable under
§ 43(a) of the Lanham Act. Finally, the court dismissed the tortious interference
claim because the complaint contained no allegations of improper conduct that
would amount to an unjustified interference with DFA’s business relationships.
DFA timely appealed.
II.
We review de novo the district court’s order dismissing DFA’s complaint
pursuant to Rule 12(b)(6). Henderson v. Wash. Nat. Ins. Co., 454 F.3d 1278, 1281
(11th Cir. 2006). We accept the allegations in the complaint as true and construe
them in the light most favorable to the plaintiff. Murphy v. F.D.I.C., 208 F.3d 959,
962 (11th Cir. 2000). “However, we afford no presumption of truth to legal
conclusions and recitations of the basic elements of a cause of action.” Franklin v.
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Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013) (per curiam). We are “free to
affirm the district court’s decision on any ground that is supported by the record.”
United States v. Elmes, 532 F.3d 1138, 1142 (11th Cir. 2008) (quotation omitted);
see also Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1059 (11th Cir.
2007) (“[W]e may . . . affirm a district court’s decision to grant or deny a motion
for any reason, regardless of whether it was raised below.”).
Rule 8(a) provides that a plaintiff’s pleading “must contain . . . a short and
plain statement of the claim showing that the pleader is entitled to relief.” The
Supreme Court has further instructed that the plaintiff must submit “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). In order “[t]o 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.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). This “plausibility standard is met only where the facts alleged
enable ‘the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.’” Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708
(11th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). “Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 557). Although “[a] plaintiff need not plead
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‘detailed factual allegations[,] . . . a formulaic recitation of the elements of a cause
of action will not do,’” and the plaintiff must offer in support of its claim
“sufficient factual matter, accepted as true, to ‘raise a right to relief above the
speculative level.’” Simpson, 744 F.3d at 708 (quoting Twombly, 550 U.S. at
555).
We measure each claim against this standard.
III.
DFA first says that Estée Lauder violated the Sherman Act by attempting to
monopolize the market for duty free beauty products sold in United States airports.
Section 2 of the Act establishes that “[e]very person who shall . . . attempt to
monopolize . . . any part of the trade or commerce among the several States, or
with foreign nations, shall be deemed guilty of a felony.” 15 U.S.C. § 2. Section
15 of the same statute prescribes that “any person who shall be injured in his
business or property by reason of anything forbidden in the antitrust laws may sue
therefor.” 15 U.S.C. § 15. A plaintiff alleging a claim for attempted
monopolization under § 2 must plausibly assert three things: “(1) that the
defendant has engaged in predatory or anticompetitive conduct with (2) a specific
intent to monopolize and (3) a dangerous probability of achieving monopoly
power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993).
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“[T]he conduct requirement is arguably the single most important aspect of
attempted monopolization.” Spanish Broad. Sys. of Fla., Inc. v. Clear Channel
Commc’ns, Inc., 376 F.3d 1065, 1075 (11th Cir. 2004) (quotation omitted). To
survive a motion to dismiss, the plaintiff must adequately allege “actual or
potential harm to competition.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,
1339 (11th Cir. 2010). This means the plaintiff must allege a “factual connection
between the alleged harmful conduct and its impact [or likely impact] on
competition in the market.” Id. Damage to individual competitors is rarely
sufficient to establish this element. See Spanish Broad. Sys. of Fla., Inc., 376 F.3d
at 1072-73 (“Although damage to a critical competitor may also damage
competition in general, [the plaintiff] bears the burden of drawing that implication
with specific factual allegations.” (emphasis omitted)).
“Actual anticompetitive effects include, but are not limited to, reduction of
output, increase in price, or deterioration in quality.” Jacobs, 626 F.3d at 1339.
“[A] showing of market power is necessary, but not sufficient, to establish
potential harm to competition.” Id. at 1340; see Spanish Broad. Sys. of Fla., Inc.,
376 F.3d at 1073 (“A plaintiff seeking to use market power as a proxy for adverse
effect must show market power, plus some other ground for believing that the
challenged behavior could harm competition in the market . . . .” (quoting Tops
Mkts, Inc. v. Quality Mkts, Inc., 142 F.3d 90, 97 (2d Cir. 1998))). To show that
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the defendant’s conduct caused harm to competition, “the plaintiff must define the
relevant market and establish that the defendants possessed power in that market.”
Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1213 (11th Cir. 2002)
(quotation omitted).
The relevant market has two components, and the plaintiff must define both
the geographic market and the product market in which the defendant allegedly
possesses increasing power. McWane, Inc. v. F.T.C., 783 F.3d 814, 828 (11th Cir.
2015). The relevant geographic market is “the area of effective competition in
which a product or its reasonably interchangeable substitutes are traded.” L.A.
Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 423 (11th Cir. 1984)
(quotation omitted). The Court considers whether outside sellers are precluded
from entering the market, id., and whether consumers cannot realistically turn
outside the geographic area, T. Harris Young & Associates, Inc. v. Marquette
Electronics, Inc., 931 F.2d 816, 823 (11th Cir. 1991). “[E]conomic and physical
barriers to expansion [such] as transportation costs, delivery limitations and
customer convenience and preference” are relevant to this determination. L.A.
Draper & Son, 735 F.2d at 423 (quotation omitted).
“Defining a relevant product market is primarily a process of describing
those groups of producers which, because of the similarity of their products, have
the ability -- actual or potential -- to take significant amounts of business away
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from each other.” Polypore Int’l, Inc. v. F.T.C., 686 F.3d 1208, 1217 (11th Cir.
2012) (quoting U.S. Anchor, 7 F.3d at 995). For this reason, we “pay particular
attention to evidence of the cross-elasticity of demand” -- the extent to which
consumers demand less of the particular product as the price for its alleged
substitute declines. Jacobs, 626 F.3d at 1337 & n.16. “A high cross-elasticity of
demand (that is, consumers demanding proportionately greater quantities of
Product X in response to a relatively minor price increase in Product Y) indicates
that the two products are close substitutes for each other,” and are part of the same
product market. Id. at 1337 n.16. In other words, “[a] product market consists of
‘products that have reasonable interchangeability for the purposes for which they
are produced.’” McWane, Inc., 783 F.3d at 828 (quoting United States v. E. I. du
Pont de Nemours & Co., 351 U.S. 377, 404 (1956)).
Defining the relevant product market is a fact-intensive endeavor. U.S.
Anchor, 7 F.3d at 994. We consider a variety of factors in the calculus, including
“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.”
Polypore Int’l, Inc., 686 F.3d at 1217 (quoting U.S. Anchor, 7 F.3d at 995).
Second, the plaintiff must allege that the defendant acted with specific intent
to monopolize. Anticompetitive intent is the design “to gain greater market share,
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to drive up prices, or to obtain some other illegal goal.” Mr. Furniture Warehouse,
Inc. v. Barclays Am./Commercial Inc., 919 F.2d 1517, 1522 (11th Cir. 1990). We
have also explained that intent “may sometimes be inferred from predatory conduct
itself.” U.S. Anchor, 7 F.3d at 1001.
Lastly, to adequately plead dangerous probability of achieving monopoly
power, the plaintiff must allege that the defendant is “close to achieving monopoly
power” in the relevant product market. U.S. Anchor, 7 F.3d at 994. “Monopoly
power is ‘the power to raise prices to supra-competitive levels or . . . the power to
exclude competition in the relevant market either by restricting entry of new
competitors or by driving existing competitors out of the market.’” Id. (alteration
in original) (quoting Am. Key Corp. v. Cole Nat’l Corp., 762 F.2d 1569, 1581
(11th Cir. 1985)); see McWane, Inc., 783 F.3d at 830 (“Monopoly power is the
ability to control prices or exclude competition.” (quotation omitted)). “[A]
dangerous probability of achieving monopoly power may be established by a 50%
share” of the relevant market. U.S. Anchor, 7 F.3d at 1000.
We accept for the purposes of our analysis that DFA has adequately defined
a relevant product and geographic market. We read the complaint to essentially
say that the relevant product market is the retail market for duty free “beauty
products,” and the relevant geographic market is comprised of airport duty free
stores throughout the United States. While Estée Lauder challenges both the
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definition of the product market and the definition of the geographic market, we
have no occasion to address this fact-intensive question at this stage because the
complaint wholly fails to allege any truly anticompetitive conduct on Estée Lauder’s part -- no matter how broadly or narrowly the market is defined.4
Because our analysis begins and ends with the first, and most important, element of
an attempted monopolization claim, we also decline to reach Estée Lauder’s
arguments about anticompetitive intent and probability of achieving monopoly
power. We find that each of DFA’s allegations of anticompetitive conduct is
insufficient to state a claim, and accordingly affirm the district court’s dismissal of
the antitrust claims. Moreover, we conclude that DFA lacks both constitutional
and antitrust standing to complain about the requirements that Estée Lauder places
on DFA’s competitors, because DFA has not alleged that those restrictions have
caused it any injury.
A.
DFA first argues that Estée Lauder’s refusal to reinstate its sales relationship
with DFA constitutes anticompetitive conduct. It is by now well settled that “[a]
unilateral refusal to deal is [generally] not unlawful.” Mr. Furniture Warehouse, 4 DFA is not completely clear in its complaint whether it is defining the relevant market as the market to sell or to manufacture beauty products to be sold in airport duty free stores. On the one hand, the complaint alleges that DFA licenses brand names and manufactures their products, and, on the other hand, the complaint posits that Estée Lauder has entered the sales side of the market by hiring its own staff to work in duty free stores and by placing vending machines in DFA-dedicated airports. Estée Lauder challenges both formulations, arguing that it is not a seller -- or at least not an airport duty free retailer -- and DFA is not a manufacturer.
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Inc., 919 F.2d at 1522 (second alteration in original). The Supreme Court has for
many years emphasized that “the Sherman Act ‘does not restrict the long
recognized right of [a] trader or manufacturer engaged in an entirely private
business, freely to exercise his own independent discretion as to parties with whom
he will deal.’” Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP
(Trinko), 540 U.S. 398, 408 (2004) (alteration in original) (quoting United States v.
Colgate & Co., 250 U.S. 300, 307 (1919)). Moreover, the Court has “been very
cautious in recognizing . . . exceptions” to that rule “because of the uncertain virtue
of forced sharing and the difficulty of identifying and remedying anticompetitive
conduct by a single firm.” Id.
At the same time, “[t]he high value that [courts] have placed on the right to
refuse to deal with other firms does not mean that the right is unqualified.” Aspen
Skiing Co. v. Aspen Highlands Skiing Corp. (Aspen Skiing), 472 U.S. 585, 601
(1985). Thus, a refusal to deal under some circumstances “can constitute
anticompetitive conduct and violate § 2.” Trinko, 540 U.S. at 408. We come,
then, to the first basic question: whether DFA’s refusal to deal allegations “fit
within existing exceptions or provide a basis, under traditional antitrust principles,
for recognizing a new one.” Id. We conclude that they do not.
DFA claims that its complaint sets forth sufficient facts yielding an inference
of an anticompetitive refusal to deal within the meaning of two Supreme Court
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cases: Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, and Otter
Tail Power Co. v. United States (Otter Tail), 410 U.S. 366 (1973). But as we see
it, these two cases are persuasively distinguishable, and this case provides no
compelling reason to depart from a business entity’s general “right to deal, or
refuse to deal, with whomever it likes, as long as it does so independently.”
Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984).
First, in Aspen Skiing, a system was developed in Aspen, Colorado at a time
when each of its three major ski resorts were independently owned, under which
skiers could purchase an “all-Aspen” pass that would allow them to use specially
purchased tickets interchangeably at all the resorts. 472 U.S. at 587-89. One
company, Ski Co., subsequently gained control of three of the four major resorts,
but the fourth, Highlands, remained independent. Id. at 589-90. Ski Co. then
unilaterally discontinued the “all-Aspen” pass, and subsequently refused to enter
into any cooperative arrangement allowing Highlands customers access to any of
its resorts. Id. at 592-94. It also refused to sell lift tickets to Highland, even when
Highland offered to pay the market retail price of the tickets. Id. at 593.
The Court held that Ski Co. had engaged in anticompetitive conduct by
terminating the all-Aspen program, emphasizing that Ski Co. had not “merely
reject[ed] a novel offer to participate in a cooperative venture that had been
proposed by a competitor. Rather, [Ski Co.] elected to make an important change
25
in a pattern of distribution that had originated in a competitive market and had
persisted for several years.” Id. at 603. The Supreme Court acknowledged that
this conduct was “not necessarily anticompetitive.” Id. at 604. But it raised
enough of a question that the Court was required to consider the effect of Ski Co.’s
actions on Highlands, the “impact on consumers[,] and whether [the company]
ha[d] impaired competition in an unnecessarily restrictive way,” id. at 605. The
Court noted that customers strongly preferred the all-Aspen pass, id. at 606-07, and
that Highlands’s market share dropped from approximately 20% to 11% over the
four year period after the pass was discontinued, id. at 594-95, 607-08. Under
these circumstances, the Court explained,“[t]he jury may well have concluded that
Ski Co. elected to forgo . . . short-run benefits because it was more interested in
reducing competition in the Aspen market over the long run by harming its smaller
competitor.” Id. at 608.
The Supreme Court’s later opinion in Verizon Commc’ns Inc. v. Law
Offices of Curtis V. Trinko, LLP, 540 U.S. 398, provides further guidance. Trinko
clarified that Aspen Skiing embodies only a “limited exception” to the general rule
that firms may choose the other companies with which they deal. Id. at 409. In
Trinko, the plaintiffs alleged that defendant Verizon was statutorily obliged to
make its operations support system available to its competitors, but that Verizon
essentially refused to deal with those competitors by ignoring or delaying its
26
response to their requests for access. Id. at 402-05; see Covad Commc’ns Co. v.
BellSouth Corp. (Covad II), 374 F.3d 1044, 1047-48 (11th Cir. 2004). The
Supreme Court held that the plaintiffs had not stated a refusal to deal claim under
Aspen Skiing, characterizing that case as “at or near the outer boundary of § 2
liability.” Trinko, 540 U.S. at 409. The Court held that the Trinko plaintiffs could
not state a refusal to deal claim under Aspen Skiing for two primary reasons. As
an initial matter, the plaintiff in Aspen Skiing had demonstrated “[t]he unilateral
termination of a voluntary (and thus presumably profitable) course of dealing,”
which “suggested a willingness to forsake short-term profits to achieve an
anticompetitive end.” Id. (emphasis in original). By contrast, the Trinko plaintiffs
did “not allege that Verizon voluntarily engaged in a course of dealing with its
rivals.” Id. Interpreting this portion of the opinion, we have explained, “Trinko
now effectively makes the unilateral termination of a voluntary course of dealing a
requirement for a valid refusal-to-deal claim under Aspen.” Covad II, 374 F.3d at
1049.
The Supreme Court also emphasized “pricing behavior,” noting that the
plaintiff in Aspen Skiing was willing to compensate the defendant at the price its
rival charged its ordinary customers. Trinko, 540 U.S. at 409. By contrast, the
Trinko plaintiffs complained about Verizon’s reluctance to deal at a statutorily set
“cost-based rate of compensation.” Id. (“Verizon’s reluctance to interconnect at
27
the cost-based rate of compensation . . . tells us nothing about dreams of
monopoly.”).
In our view, DFA has similarly failed to state a refusal to deal claim under
Aspen Skiing. For starters, DFA has not alleged that Estée Lauder unilaterally
terminated the business relationship between the two companies. Rather, the
district court found, and we agree, that DFA ceased dealing with Estée Lauder of
its own accord. DFA argues that this Court must credit the complaint’s allegation
that Estée Lauder is responsible for ending the relationship between the two
parties. However, the complaint did not allege that Estée Lauder originally
terminated the relationship in 2008. Rather, the complaint used broad language to
generally allege that Estée Lauder refused to do business with DFA. It says, for
example, “[Estée Lauder] refused to sell its products to DFA,” and that Estée
Lauder attempted “to isolate and exclude DFA,” without specifically mentioning
how the parties’ business relationship was terminated. Indeed, the complaint
focuses not on the relationship’s end but on the fact that, while “DFA has
approached [Estée Lauder] in an effort to resume their . . . relationship several
times[,] [Estée Lauder] has refused to even discuss this possibility.”
Moreover, when Estée Lauder filed its motion to dismiss, the district court
conducted a hearing. At that proceeding, DFA’s counsel admitted that DFA
terminated the relationship. The district court asked counsel: “Isn’t it undisputed
28
that [DFA] initially terminated its relationship and then they went back and said,
‘Now we want to restate [sic] our relationship, and [Estée Lauder] refused to
restart it[?]” Counsel responded:
[A]fter DFA did not want to purchase from [Estée Lauder] because of the price increase, you’re right. They went back to them. But I would say there’s additional facts that would suggest that the initiative to refuse to deal had moved to [Estée Lauder] certainly by 2010 . . . .
Because DFA’s own characterization of its complaint at the hearing was that DFA,
not Estée Lauder, terminated the relationship, its attempt to now argue the opposite
is unpersuasive.
But even if we were not persuaded by DFA’s own description of the
termination at the hearing before the district court, DFA referred to the transcript
of the Orlando RFP appeal hearing repeatedly in its complaint and attached an
excerpt of the transcript as an exhibit. At the Orlando hearing, a representative for
DFA noted that all of the duty free operators had disagreed with Estée Lauder’s
proposed price increases. He went on to explain: “DFA was the only company that
followed through on its conviction that the Estée Lauder pricing change was not in
keeping with the spirit of customer duty-free savings expectations. And as a
consequence, DFA quit offering Estée Lauder products in its stores.” As a
document which was referenced in the complaint, and is central to the issue of
whether DFA adequately alleged anticompetitive conduct, the district court was
entitled to consider the transcript and the facts therein. Bickley v. Caremark RX,
29
Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (“[W]here the plaintiff refers to
certain documents in the complaint and those documents are central to the
plaintiff’s claim, then the Court may consider the documents part of the pleading
for purposes of Rule 12(b)(6) dismissal.” (quotation omitted)); Maxcess, Inc. v.
Lucent Technologies, Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (per curiam)
(stating that a court may consider documents “central to the plaintiff’s claims
and . . . undisputed in terms of authenticity”).
Aspen Skiing is also distinguishable from this case in other significant ways.
Thus, while the Aspen Skiing plaintiffs demonstrated their willingness to pay the
market price for the defendant’s goods, DFA repeatedly asserts in its complaint
that it strongly resisted Estée Lauder’s across the board price increases. In this
regard, DFA far more closely resembles the Trinko plaintiffs, with their insistence
that Verizon had to deal with its rivals at cost.
We are likewise unpersuaded by DFA’s suggestion that the Supreme Court’s
decision in Otter Tail applies. Notably, Otter Tail involved “a vertically integrated
monopolist that refuse[d] to deal with a customer to foreclose competition in a
second market.” See Covad Commc’ns Co. v. BellSouth Corp., 299 F.3d 1272,
1289 (11th Cir. 2002), vacated, 540 U.S. 1147 (2005), overruled on other grounds
by Covad II, 374 F.3d 1044; see also IIIB Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law ¶ 772b3, at 205 (3d ed. 2008) (“The defendant [in
30
Otter Tail] possessed a natural monopoly. This monopoly was partially regulated
in ways that may have allowed it to operate to the detriment of consumers through
vertical integration. Third, the case ought to be read in light of strong historical
formulations from the common law imposing broad duties to deal on public
utilities.”). Here, by contrast, DFA has not alleged that Estée Lauder is a
monopolist attempting to leverage its power to foreclose competition in a related or
secondary market. Rather, taken in the light most favorable to DFA, the complaint
establishes only that Estée Lauder has captured half of the market for supplying
beauty products to duty free operators in U.S. airports. Thus, even if Estée Lauder
is seeking to move into the sales market, it is not a monopolist, much less a
vertically integrated monopolist, rendering Otter Tail inapplicable.
B.
DFA also cites as predatory conduct that Estée Lauder made false statements
about DFA during airport bidding processes. Disparagement is rarely a basis for
finding attempted monopolization under § 2, because even false statements about a
single competitor often do not meet the requisite standard of generating harm to
competition. See Spanish Broad. Sys. of Fla., Inc., 376 F.3d at 1076-77. As we
have explained, when a defendant makes false statements -- even clearly false
statements -- about a competitor, “these . . . practices might be characterized as
unsavory, or even illegal under other laws,” but “they do not give rise to a federal
31
antitrust claim without factual allegations specifically addressing how these
practices have harmed competition.” Id. Indeed, many of our sister circuits have
adopted a presumption that misrepresentations or false statements about a
competitor have a de minimis effect on competition. See, e.g., Lenox MacLaren
Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1127 (10th Cir. 2014); Am.
Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric
Surgery, Inc., 323 F.3d 366, 370 (6th Cir. 2003); Am. Prof’l Testing Serv., Inc. v.
Harcourt Brace Jovanovich Legal & Prof’l Publ’ns, Inc. (Harcourt), 108 F.3d
1147, 1152 (9th Cir. 1997); Nat’l Ass’n of Pharm. Mfrs., Inc. v. Ayerst Labs., Div.
of/& Am. Home Prods. Corp., 850 F.2d 904, 916 (2d Cir. 1988); see also Mercatus
Grp., LLC v. Lake Forest Hosp., 641 F.3d 834, 852 (7th Cir. 2011) (“[C]laims
based on one competitor’s disparagement of another should presumptively be
ignored. . . . [A]bsent an accompanying coercive enforcement mechanism of some
kind, even demonstrably false commercial speech is not actionable under the
antitrust laws.” (quotations omitted and alteration adopted)).
These courts generally require a plaintiff alleging disparagement to rebut the
presumption by showing the defendant’s statements were “(1) clearly false, (2)
clearly material, (3) clearly likely to induce reasonable reliance, (4) made to buyers
without knowledge of the subject matter, (5) continued for prolonged periods, and
(6) not readily susceptible to neutralization or other offset by rivals.” Lenox
32
MacLaren Surgical Corp., 762 F.3d at 1127; accord Harcourt, 108 F.3d at 1152;
Nat’l Ass’n of Pharm. Mfrs., 850 F.2d at 916.
We agree that these factors are at least relevant to determining whether a
defendant engaged in anticompetitive disparagement of a competitor. As the Ninth
Circuit has explained, “distinguishing false statements on which buyers do, or
ought reasonably to, rely from customary puffing is not easy,” particularly because
most buyers “recognize disparagement as non-objective and highly biased.”
Harcourt, 108 F.3d at 1152 (quoting III Phillip Areeda & Donald F. Turner,
Antitrust Law ¶ 737b, at 278 (1978)). Moreover, where a plaintiff complains of
isolated rather than systemic disparagement, the effects on the plaintiff are
necessarily speculative and the effects on competition even more so. See id.
To resolve this case, however, we need not decide whether the plaintiff must
present facts to support each of these factors, because, at the most basic level, DFA
has failed to allege that Estée Lauder made any clearly false statements. As we see
it, a plaintiff alleging anticompetitive disparagement must allege, at a minimum,
statements that were demonstrably false in order to survive a motion to dismiss.
Indeed, DFA seems to agree with this baseline requirement, inasmuch as it urges
us to hold that a claim may go forward on allegations of deliberate “submission of
false information to a decision-making governmental agency.”
33
DFA’s complaint identifies three instances of disparagement: (1) Estée
Lauder sent a letter to the Newark Airport Authority including a list of its dealers
and its belief that they were quality operators; (2) Estée Lauder told Boston and
Orlando airport officials that it did not deal with DFA; and (3) Estée Lauder
communicated its market share and the fact that it did not deal with DFA to other
duty free operators. Even taking these allegations in the light most favorable to
DFA, none of the statements are false. First, Estée Lauder’s statement vouching
for the quality of its duty free partners neither refers to DFA nor expresses an
opinion about the quality of its work. Moreover, Estée Lauder does not have a
relationship with DFA, and there is no allegation that the market share it
communicated to its duty free operator customers was inflated or otherwise
incorrect. For these reasons, we are unable to find any allegations of
disparagement that could offend the antitrust laws in DFA’s complaint.
Moreover, DFA has failed to allege that any of these communications
harmed competition. Rather, the complaint contains numerous examples of robust
competition between the duty free operators to obtain airport leases. In fact, each
of the relevant RFPs resulted in an award to a different operator. DFA itself was
awarded the Atlanta duty free concessions contract after successfully rebutting
claims that it would be unable to sell any Estée Lauder products. Similarly, during
34
the Orlando RFP, DFA was offered a full and fair opportunity to contest the
statements that other duty free operators made against it.
The complaint also does not allege that DFA is being pushed out of the duty
free beauty products market. Rather, it concedes that DFA was able to develop
demand for new beauty brands, and continues to sell beauty items despite losing
access to Estée Lauder products. Finally, and perhaps most compellingly, DFA’s
strategy of offering a wider array of products than its competitors appears to be
working. The complaint alleges that DFA currently operates the duty free
commercial spaces in more than half of the airports that possess that space -- it is
the leaseholder in 13 of the 25 airports.
As we have explained, “[a]lthough damage to a critical competitor may also
damage competition in general, [the plaintiff] bears the burden of drawing that
implication with specific factual allegations.” Spanish Broad. Sys. of Fla., Inc.,
376 F.3d at 1072-73 (second emphasis added). And “market power alone cannot
be sufficient to show the potential for genuine adverse effects on competition”; the
plaintiff is “required [to make] specific allegations linking market power to harm
to competition in that market.” Id. at 1073; see also Tops Mkts, Inc., 142 F.3d at
97 (“A plaintiff seeking to use market power as a proxy for adverse effect must
show market power, plus some other ground for believing that the challenged
behavior could harm competition in the market, such as the inherent
35
anticompetitive nature of the defendant’s behavior or the structure of the interbrand
market.”). Here, it is not enough for DFA to allege that Estée Lauder is the top
supplier of duty free beauty products. DFA was required to link that fact to a
competitive harm.
Finally, DFA argues that the district court “refused to treat as true the
allegations in the Complaint attributing statements by [Estée Lauder]-favored
operators to [Estée Lauder].” However, DFA did not allege a conspiracy between
Estée Lauder and the operators, nor did it claim any agency relationship between
the companies. Rather, the complaint, taken in the light most favorable to DFA,
simply asserts that “[Estée Lauder] is aware of and has not stopped its favored duty
free operators from representing to airport authorities that DFA . . . cannot meet its
financial bids to airports.” These conclusory statements provide no legal basis for
attributing the statements to Estée Lauder.
C.
DFA’s final claim is that Estée Lauder’s restrictions on its customers’
display space and its inventory requirements are anticompetitive. Although DFA’s
complaint seeks damages -- and the company argued in its briefing before this
Court that damages might be appropriate -- DFA’s counsel stated at oral argument
that it was abandoning any claim for damages resulting from Estée Lauder’s
display space and inventory requirements. In any event, to the extent DFA seeks
36
damages on this count, its claim is time barred. An action by a private party
seeking damages based on a defendant’s antitrust violations must be “commenced
within four years after the cause of action accrued.” 15 U.S.C. § 15(b); see id. §
15. The complaint establishes that DFA was last subject to Estée Lauder’s
requirements several years ago: (1) “display space and inventory demands” in
March 2008; (2) “full line forcing” in March 2008; and (3) “tying” fragrances to
other products in April 2006. Because DFA did not bring suit until April 26, 2012,
any claim for damages is barred by the statute of limitations.
DFA says that even if it cannot state a claim for damages, it may still seek
injunctive relief. See 15 U.S.C. § 26 (“Any person, firm, corporation, or
association shall be entitled to sue for and have injunctive relief . . . against
threatened loss or damage by a violation of the antitrust laws . . . .”). Because
DFA is not a customer of Estée Lauder, and thus is not subject to any of these
requirements, we are hard pressed to see how it has constitutional standing to
challenge them. As the party invoking federal jurisdiction, DFA had the burden of
demonstrating that it has standing to sue. Mulhall v. UNITE HERE Local 355, 618
F.3d 1279, 1286 (11th Cir. 2010); see also Church v. City of Huntsville, 30 F.3d
1332, 1336 (11th Cir. 1994) (“[S]tanding requirements ‘are not mere pleading
requirements but rather are an indispensable part of the plaintiff’s case.’
Therefore, each element of standing must be supported ‘with the manner and
37
degree of evidence required at the successive stages of the litigation.’” (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992))). “[B]ecause the
constitutional standing doctrine stems directly from Article III’s ‘case or
controversy’ requirement, this issue implicates our subject matter jurisdiction, and
accordingly must be addressed as a threshold matter regardless of whether it is
raised by the parties.” Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229,
1242 (11th Cir. 2003). When analyzing a defendant’s “motion to dismiss we must
evaluate standing based on the facts alleged in the complaint, and we may not
‘speculate concerning the existence of standing or piece together support for the
plaintiff.’” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (quotation
omitted)).
The test for Article III standing is by now well settled. “First, the plaintiff
must have suffered an ‘injury in fact’ -- an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (quotation omitted). Second,
the plaintiff must establish a causal connection between its injury and the
defendant’s conduct. Id. Third, the plaintiff must show that it is likely -- and not
merely speculative -- that a favorable decision by the court will redress the injury.
Id. at 561. Moreover, we have explained that there is an additional element to the
injury in fact requirement when a plaintiff seeks injunctive relief. Houston v.
38
Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). “Because
injunctions regulate future conduct, a party has standing to seek injunctive relief
only if the party alleges, and ultimately proves, a real and immediate -- as opposed
to a merely conjectural or hypothetical -- threat of future injury.” Wooden v. Bd.
of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001) (quoting
Church, 30 F.3d at 1337); see City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983) (“[P]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” (second alteration in original) (quotation omitted)).
The fact that DFA may have been injured by the display and inventory
requirements in the past -- as late as March 2008 -- cannot be sufficient to establish
an injury in fact that would support injunctive relief. The complaint contains no
allegation that those restrictions caused any lasting impact or likely future injury,
and thus DFA has not met the requirement that it show harm that is “actual or
imminent.” Lujan, 504 U.S. at 560. Absent facts suggesting that former exposure
to Estée Lauder’s requirements caused “continuing, present adverse effects” on
DFA, Estée Lauder’s past conduct cannot be the basis of a request for injunctive
relief. Lyons, 461 U.S. at 102; see Church, 30 F.3d at 1337 (“Logically, a
prospective remedy will provide no relief for an injury that is, and likely will
remain, entirely in the past.” (quotation omitted)).
39
DFA claimed at oral argument that it would suffer injury if it resumes
purchasing from Estée Lauder and becomes subject to Estée Lauder’s
requirements. This cannot be characterized as a “concrete” or “actual” injury in
fact because, by its very terms, it has not yet occurred, and indeed may never
occur.
DFA also suggests that it is injured by the display space and inventory
requirements because its competitors are still subject to them. But DFA fails to
provide any plausible connection between an injury it has sustained and the
restrictions which DFA claims harm its competitors. Indeed, DFA alleges in its
complaint that it protested the restrictions when it was subject to them several
years ago. Moreover, DFA draws attention to the ways in which the restrictions --
which limit its competitors’ ability to offer a wide array of products -- benefit
DFA. Specifically, DFA claims to “obtain[] licenses from a number of high-end
beauty product brand owners” that its competitors often do not carry because they
do not have enough space. DFA also alleges that it is “able to offer more and more
prominent display space to non-[Estée Lauder] brands than [other] duty free
operators do.” In short, nothing in the complaint suggests that DFA is harmed by
Estée Lauder’s restrictions on other duty free operators. We therefore hold that
DFA does not have constitutional standing to challenge the display space and
inventory requirements.
40
Because DFA cannot demonstrate that it has Article III standing to challenge
Estée Lauder’s contractual requirements, it plainly follows that it cannot establish
what our cases have referred to as “antitrust standing.” See Palmyra Park Hosp.
Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1299 (11th Cir. 2010) (“To
have antitrust standing, a party must do more than meet the basic ‘case or
controversy’ requirement that would satisfy constitutional standing; instead, the
party must show that it satisfies a number of prudential considerations aimed at
preserving the effective enforcement of the antitrust laws.” (quotation omitted)).
We analyze antitrust standing using a two pronged test that “involves
consideration of the nexus between the antitrust violation and the plaintiff’s harm
and whether the harm alleged is of the type for which Congress provides a
remedy.” Sunbeam Television Corp. v. Nielsen Media Research, Inc., 711 F.3d
1264, 1271 (11th Cir. 2013). First, we consider whether the plaintiff has suffered
an antitrust injury. Id. “Antitrust injury is ‘injury of the type the antitrust laws
were intended to prevent and that flows from that which makes [the] defendant[’s]
acts unlawful.’” Palmyra Park Hosp. Inc., 604 F.3d at 1299 (quoting Brunswick
Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)). When a plaintiff is
seeking injunctive relief, this means it “must allege threatened injury that would
constitute antitrust injury if inflicted upon the plaintiff and the defendant’s causal
responsibility for such threatened injury.” Id. at 1452. Second, the plaintiff must
41
“be an ‘efficient enforcer’ of the antitrust laws.” Sunbeam Television Corp., 711
F.3d at 1271. When only injunctive relief is sought, “the dangers of mismanaging
the antitrust laws are less pervasive,” Todorov v. DCH Healthcare Auth., 921 F.2d
1438, 1452 (11th Cir. 1991), and accordingly “we are less concerned about
whether the party would be the most efficient enforcer of the antitrust laws,”
Palmyra Park Hosp. Inc., 604 F.3d at 1299-300. Nevertheless, certain factors that
the Court typically considers when determining whether a plaintiff is an efficient
enforcer remain relevant to this Court’s inquiry into whether injunctive relief
would be appropriate. See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S.
104, 111 n.6 (1986); Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 437 (2d Cir. 2005).5 Thus, for example, a plaintiff who has suffered only indirect injury, or
who alleges speculative damages, may lack antitrust standing to seek an injunction.
Again, DFA has not alleged that it suffers any injury as a result of Estée
Lauder’s restrictions on its competitors, much less that it suffers an antitrust injury.
And even if DFA had plausibly alleged that it sustained an antitrust injury, we
5 This Court usually considers six factors in determining whether a plaintiff would be an efficient enforcer of the antitrust laws: (1) whether the plaintiff has suffered a direct injury; (2) whether its injury is remote; (3) whether other plaintiffs are better suited to bring the suit; (4) whether the plaintiff’s injuries are speculative; (5) whether the calculation of damages would be complex and run the risk of duplicative recoveries; and (6) whether the plaintiff could enforce the court’s judgment. Sunbeam Television Corp., 711 F.3d at 1271 (citing Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 538-45 (1983)). When the plaintiff seeks only equitable relief, however, some of these factors -- such as the danger of duplicative recoveries, complexity of assessing damages, and the existence of more suitable plaintiffs -- are not implicated. Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111 n.6 (1986).
42
would still be obliged to find that it is not an efficient enforcer of the antitrust laws
because it is not currently subject to Estée Lauder’s display space and inventory
restrictions and has not been for several years. This means that DFA could not
enforce any judgment that we would reach about the requirements, and that any
injury to DFA would necessarily be speculative -- something that may or may not
occur in the future. Plainly, another duty free operator that currently maintains a
relationship with Estée Lauder would be in a far better position than DFA to clarify
the contours of Estée Lauder’s restrictions and to point out what harm, if any, those requirements may cause.6
IV.
DFA’s second claim is that its competitors made statements to airport
authorities that amount to actionable false advertising under § 43(a) of the Lanham
Act. DFA argues that Estée Lauder can be held liable for these statements based 6 The Supreme Court’s recent decision in Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), casts doubt on the future of prudential standing doctrines such as antitrust standing. In Lexmark, the Supreme Court declined to adopt the antitrust standing test in the Lanham Act context. Id. at 1385-87, 1391. In the course of this discussion, the Court questioned referring to the test as one of prudential “standing” -- noting that, in actuality, it is neither prudential nor an inquiry into standing, but an analysis of whether the plaintiff’s “injuries were proximately caused by a defendant’s antitrust violations.” Id. at 1386-87 n.4. This, the Court explained, is a statutory interpretation question about “the scope of the private remedy created by Congress” when it drafted the antitrust laws. Id. at 1386-87 (quotation omitted). However, Lexmark is a Lanham Act case, and this discussion is dicta. We do not “lightly cast aside” Supreme Court dicta, Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006), but “[u]nder the prior precedent rule, we are bound to follow a prior binding precedent unless and until it is overruled by this court en banc or by the Supreme Court.” United States v. VegaCastillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quotation omitted). In any event, any impact that Lexmark may have on the notion of antitrust standing is utterly immaterial in this case, because DFA has not established that it has Article III standing.
43
on a theory of contributory liability. Estée Lauder responds that the claim must
necessarily fail both because the Lanham Act’s prohibition on false advertising
does not include a derivative claim based on contributory liability and because,
even if it did, DFA has not alleged facts sufficient to support such a claim. While
we agree with DFA that the prohibition on false advertising in § 43(a) of the
Lanham Act may allow a claim based on contributory liability, the complaint does
not come close to alleging the necessary facts. Thus, we affirm the dismissal of the
Lanham Act claim for failure to state a claim.
Whether § 43(a) of the Lanham Act includes within its ambit a claim for
false advertising based on contributory liability is a question of first impression.
DFA has cited only one case in which a circuit court recognized the possibility that
a defendant could be contributorily liable for a third party’s false advertising. See
Societe Des Hotels Meridien v. LaSalle Hotel Operating P’ship, L.P., 380 F.3d
126, 132-33 (2d Cir. 2004). Moreover, our research suggests that while district
courts routinely assume that contributory liability claims are available, neither the
Supreme Court nor any Court of Appeals has explicitly considered and resolved
this question. See, e.g., Coach, Inc. v. Sapatis, 994 F. Supp. 2d 192, 201 (D.N.H.
2014); Merck Eprova AG v. Brookstone Pharm., LLC, 920 F. Supp. 2d 404, 425
(S.D.N.Y. 2013); Merck Eprova AG v. Gnosis S.p.A., 901 F. Supp. 2d 436, 456
(S.D.N.Y. 2012), aff’d, 760 F.3d 247 (2d Cir. 2014); Coach, Inc. v. Farmers Mkt.
44
& Auction, 881 F. Supp. 2d 695, 704 (D. Md. 2012); ADT Sec. Servs., Inc. v. Sec.
One Int’l, Inc., No. 11-CV-05149 YGR, 2012 WL 4068632, at *3 (N.D. Cal. Sept.
14, 2012); Campagnolo S.R.L. v. Full Speed Ahead, Inc., No. C08-1372 RSM,
2010 WL 2079694, at *4 (W.D. Wash. May 20, 2010), aff’d, 447 F. App’x 814
(9th Cir. 2011).
Although we begin any statutory construction by looking to the plain
language of the provision at issue, Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013),
contributory liability under the Lanham Act is a judicially developed doctrine, see
Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1245
(11th Cir. 2007) (noting that contributory liability actions “stem from the general
prohibitory language” of the Act’s trademark infringement provisions). Indeed, in
the trademark infringement arena, the Supreme Court has long recognized that
liability “can extend beyond those who actually mislabel goods.” Inwood Labs.,
Inc. v. Ives Labs., Inc., 456 U.S. 844, 853 (1982). This means that when a claim
involves trademark infringement, a manufacturer or distributor can be liable if it
“intentionally induces another to infringe a trademark” or “continues to supply its
product to one whom it knows or has reason to know is engaging in trademark
infringement.” Id. at 854 (citing William R. Warner & Co. v. Eli Lilly & Co., 265
U.S. 526 (1924)).
45
Interpreting this language, this Court has found no reason to confine the
doctrine to manufacturers, and has expanded it to cover a wide variety of
trademark infringement contexts. Mini Maid Servs. Co. v. Maid Brigade Sys.,
Inc., 967 F.2d 1516, 1522 (11th Cir. 1992) (“With respect to a franchisor’s liability
for the independent infringing acts of its franchisees, we hold that the franchisor
may be held accountable only if it intentionally induced its franchisees to infringe
another’s trademark or if it knowingly participated in a scheme of trademark
infringement carried out by its franchisees.”); Bauer Lamp Co. v. Shaffer, 941 F.2d
1165, 1171 (11th Cir. 1991) (“A person who knowingly participates in furthering
the trade dress infringement is liable as a contributing party.”). Our sister circuits
have taken a similar approach. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d
259 (9th Cir. 1996); Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc.,
42 F.3d 1421, 1432 (3d Cir. 1994); Hard Rock Cafe Licensing Corp. v. Concession
Servs., Inc., 955 F.2d 1143, 1149 (7th Cir. 1992); see also Tiffany (NJ) Inc. v.
eBay Inc., 600 F.3d 93, 106-09 (2d Cir. 2010) (assuming, without deciding, that
Inwood applied to a claim outside the manufacturing context).
The rationale for allowing contributory trademark infringement actions
supports recognizing a similar theory of liability in the false advertising context.
For starters, § 43(a) of the Lanham Act contains two different classes of
prohibitions: one banning trademark infringement and one prohibiting false
46
advertising. Each cause of action is a subpart of a single statutory provision, which
reads this way:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-- (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a).
These prohibitions are found in the same statutory provision, and they share
the same introductory clause. We analyze this structure in light of the core
principle that “[s]tatutory construction is a holistic endeavor,” Koons Buick
Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (quotation omitted), and that
individual provisions are “often clarified by the remainder of the statutory
scheme,” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,
484 U.S. 365, 371 (1988). The placement of the two prohibitions in the same
statutory section -- and correspondingly, the fact that the introductory language
47
banning both practices is identical -- suggests the two causes of action should be
interpreted to have the same scope.
Reading these two clauses in the same way is reinforced by the fact that both
causes of action were motivated by a unitary purpose. “Section 43(a) of the
Lanham Act creates a ‘federal cause of action for unfair competition.’” Optimum
Techs, Inc., 496 F.3d at 1247-48 (quoting Univ. of Fla. v. KPB, Inc., 89 F.3d 773,
775 (11th Cir. 1996) (per curiam)); see 15 U.S.C. § 1127 (noting that one of the
purposes of the Act is “to protect persons engaged in . . . commerce against unfair
competition”); S. Rep. No. 79-1333, at 4 (1946), reprinted in 1946 U.S.C.C.A.N.
1274, 1275 (“There is no essential difference between trade-mark infringement and
what is loosely called unfair competition. Unfair competition is the genus of
which trade-mark infringement is one of the species . . . .”). Both its trademark
protections and its prohibition on false advertising are “part of the broader law of
unfair competition that has its sources in English common law.” Moseley v. V
Secret Catalogue, Inc., 537 U.S. 418, 428 (2003) (citation omitted); see Natural
Answers, Inc. v. SmithKline Beecham Corp., 529 F.3d 1325, 1330-31 (11th Cir.
2008) (“The intent of [the false advertising] provision is to protect ‘commercial
interests [that] have been harmed by a competitor’s false advertising, and [to
secure] to the business community the advantages of reputation and good will by
preventing their diversion from those who have created them to those who have
48
not.’” (second and third alterations in original) (quoting Phoenix of Broward, Inc.
v. McDonald’s Corp., 489 F.3d 1156, 1168 (11th Cir. 2007))).
The Supreme Court has clarified that the principles underlying the Lanham
Act contemplate liability that extends beyond direct violators of the trademark
provision of § 43(a). Inwood Labs., Inc., 456 U.S. at 853; see William R. Warner
& Co., 265 U.S. at 530 (“The [defendant manufacturer’s] wrong was in designedly
enabling the dealers to palm off the [drug] as that of the [plaintiff].”). Because
these same principles motivated the false advertising provision, the same reasoning
supports the conclusion that a plaintiff can state a claim for contributory false
advertising. As the Third Circuit has explained in addressing whether claims based
on agency and apparent agency are cognizable under § 43(a) of the Lanham Act:
The contributory infringement cases . . . demonstrate that in certain instances, secondary, indirect liability is a legitimate basis for liability under the federal unfair competition statute. There is a good reason for this: the Lanham Act is derived generally and purposefully from the common law tort of unfair competition, and its language parallels the protections afforded by state common law and statutory torts. . . . In construing the Act, then, courts routinely have recognized the propriety of examining basic tort liability concepts to determine the scope of liability.
Am. Tel. & Tel. Co., 42 F.3d at 1433.
Moreover, while the two causes of action are derived from the same
principles and contained in the same statute, the Supreme Court has recognized
that the false advertising provision of the Lanham Act entails broader protections.
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See POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2234 (2014) (“The
Lanham Act’s trademark provisions are the primary means of achieving [the
statute’s] ends. But the Act also creates a federal remedy [for false advertising]
‘that goes beyond trademark protection.’ The broader remedy is at issue here.”
(quoting Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 29
(2003)). It would be odd indeed for us to narrow the scope of the false advertising
provision -- a cause of action plainly intended to encompass a broader spectrum of
protection -- and hold that it could be enforced only against a smaller class of
defendants. Absent congressional direction, we are reluctant to limit the statute’s
scope in this way. Thus, we hold that a plaintiff may bring a claim for contributory
false advertising under § 43(a) of the Lanham Act.
What, then, must a plaintiff establish in order to state a contributory false
advertising claim? First, the plaintiff must show that a third party in fact directly
engaged in false advertising that injured the plaintiff. Second, the plaintiff must
allege that the defendant contributed to that conduct either by knowingly inducing
or causing the conduct, or by materially participating in it.
In order to establish that a third party engaged in false advertising, the
plaintiff “must plead (and ultimately prove) an injury to a commercial interest in
sales or business reputation proximately caused by the . . . misrepresentations.”
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Lexmark Int’l, Inc., 134 S. Ct. at 1395. To prove that the third party’s statements
caused the requisite injury, we have held that the plaintiff must show:
(1) the . . . statements were false or misleading; (2) the statements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on the consumers’ purchasing decision; (4) the misrepresented service affects interstate commerce; and (5) [the plaintiff] has been, or likely will be, injured as a result of the false or misleading statement.
Sovereign Military Hospitaller Order v. Fla. Priory of Knights Hospitallers, 702
F.3d 1279, 1294 (11th Cir. 2012).
The Lanham Act’s false advertising provision allows a plaintiff to base its
claim not only on statements that are literally false, but also on statements that are
misleading when considered in their full context. Osmose, Inc. v. Viance, LLC,
612 F.3d 1298, 1308 (11th Cir. 2010). Although “[s]tatements of opinion are
generally not actionable” under the Lanham Act, id. at 1311, we have suggested
that we will treat a statement framed as an opinion as one of fact if it “fairly
implies a [factual] basis.” See id. (citing Restatement (Third) of Unfair
Competition § 3 cmt. d. (1995) (“Some representations of opinion may imply the
existence of facts that justify the opinion . . . .”)).
Once the plaintiff establishes the elements of a direct false advertising claim
against a third party, it must allege that the defendant contributed to that conduct.
This means that the plaintiff must allege that the defendant had the necessary state
of mind -- in other words that it “intended to participate in” or “actually knew
51
about” the false advertising. See Mini Maid Servs. Co., 967 F.2d at 1522. The
plaintiff must also allege that the defendant actively and materially furthered the
unlawful conduct -- either by inducing it, causing it, or in some other way working
to bring it about. Cf. 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1249
(10th Cir. 2013) (explaining that Inwood establishes liability for a defendant who
“enables a third party” to violate the Lanham Act).
Analogies from trademark infringement, in which contributory liability is
more developed, can be instructive. Thus, for example, a plaintiff may be able to
make out the participation prong of a contributory false advertising claim by
alleging that the defendant directly controlled or monitored the third party’s false
advertising. See Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 807 (9th
Cir. 2007). It is also conceivable that there could be circumstances under which
the provision of a necessary product or service, without which the false advertising
would not be possible, could support a theory of contributory liability. See Inwood
Labs., Inc., 456 U.S. at 854-55. In determining whether a plaintiff has adequately
alleged facts to support such a claim, we look to whether the complaint suggests a
plausible inference of knowing or intentional participation, examining “the nature
and extent of the communication” between the third party and the defendant
regarding the false advertising; “whether or not the [defendant] explicitly or
implicitly encouraged” the false advertising; whether the false advertising “is
52
serious and widespread,” making it more likely that the defendant “kn[ew] about
and condone[d] the acts”; and whether the defendant engaged in “bad faith refusal
to exercise a clear contractual power to halt” the false advertising. See Mini Maid
Servs. Co., 967 F.2d at 1522.
The district court identified four allegedly false claims in the complaint,
each of which was made by a duty free operator to representatives of an airport and
each of which DFA says we should attribute to Estée Lauder. First, Nuance stated
in a letter to Atlanta officials: “Given that Estée Lauder brands account for 20% of
cosmetic and fragrance sales, at least in Orlando, and cosmetic and fragrance sales
constitute one of the largest sources of revenue for duty free stores, a lack of access
to Estée Lauder brands would cast doubt on the validity of DFA’s projected
revenue streams.” Second, Travel Retail told Orlando officials: “[W]e strongly
believe that Estée Lauder is a product which you have to sell, also, to domestic
passengers.” Third, Nuance said during the Orlando appeal hearing: “With respect
to DFA, I’d like to echo Travel Retail’s concerns on DFA’s rents. . . . DFA sales
project[ions] are deemed to be unreasonable and not sustainable in light of the
history.” Finally, Travel Retail informed the Orlando Airport Authority: “[F]ailure
to offer the Estée Lauder product line will negatively impact duty free and duty
53
paid sales revenue for both international and domestic travelers.”7 DFA argues
that it also alleged that Nuance, in its letter protesting the Atlanta award, stated
“DFA may have made misrepresentations about its ability to carry Estée Lauder brands,”8 and we agree that this is an allegedly false claim the district court failed
to consider.
As for the first element, Estée Lauder claims that the duty free operators did
not engage in any false advertising. Estée Lauder urges us to hold that DFA’s
complaint is devoid of any false or misleading statements cognizable under the
Lanham Act, but we need not answer this fact-intensive question. We agree that
DFA did not adequately allege Estée Lauder contributed to any of the statements,
and thus affirm the district court’s dismissal on this ground.
We are unable to find in DFA’s complaint any facts that would enable the
court to draw the reasonable inference that Estée Lauder induced or knowingly or
intentionally participated in any of the allegedly false statements made by the other
duty free operators. In its complaint, DFA based its claim for contributory liability
7 DFA argues that the district court ought not to have considered these quotes, but should have credited the complaint’s formulations, specifically (1) “carrying [Estée Lauder] products is required for the success of a duty free store” and (2) “DFA’s lack of access to [Estée Lauder] products will prevent it from being successful, including being able to meet its projected revenue targets.” DFA’s summarized false statements are indistinguishable from the quotations in substance. And its claim fares no better if they are substituted for the actual statements that the operators made to airport authorities. 8 DFA again argues that we must consider its preferred formulation: “DFA did not have the ability to sell the [Estée Lauder] products it had listed in its [Atlanta] bid.” The substitution of this phrasing would be similarly immaterial.
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on the fact that “[Estée Lauder] knew or should have known of the False Claims,
but [it] continued to supply [Estée Lauder] product[s] to its favored duty free
operators . . . . In doing so, [Estée Lauder] provided its favored duty free operators
with the means to continue making the False Claims . . . . ” We cannot see how the
mere sale of Estée Lauder products can serve as a basis for holding the
manufacturer liable for any disparaging statements its customers make in the
course of their own separate business relations. In our view, selling Estée Lauder
products is too unrelated to the making of the allegedly false or misleading
statements to form a basis for liability -- under either an inducement or
participation theory.
Moreover, contrary to DFA’s argument, there are simply no facts in the
complaint that suggest the existence of coordinated action or encouragement, much
less inducement, between Estée Lauder and the operators on the decision to make
the disputed claims to airport authorities. There has been no allegation that by
selling its products to the duty free operators, Estée Lauder monitored, controlled,
or participated in operators’ statements to airport authorities during a competitive
bidding process for which Estée Lauder was not even present. More generally,
there are no facts to suggest that Estée Lauder commonly exercises any level of
control over or involvement in the duty free operators’ conduct during airport RFP
bidding.
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In short, although we agree with DFA that a plaintiff may state a claim
against a defendant for contributory false advertising, we are unwilling to extend
the doctrine as far as DFA urges. The mere sale of products in the course of an
ordinary business relationship, without more, cannot justify a finding that a
defendant induced, encouraged, caused, procured, or brought about false
advertising. Contributory false advertising claims are cognizable under the
Lanham Act, but a plaintiff must allege more than an ordinary business
relationship between the defendant and the direct false advertiser in order to
plausibly plead its claim. DFA has failed to do so here.
V.
DFA’s final claim is that Estée Lauder’s direct and indirect involvement in
airport RFP processes violated Florida’s prohibition against tortious interference
with a prospective business relationship. Under Florida law, “[t]he elements of
tortious interference with a business relationship are ‘(1) the existence of a
business relationship[;] (2) knowledge of the relationship on the part of the
defendant; (3) an intentional and unjustified interference with the relationship by
the defendant; and (4) damage to the plaintiff as a result of the breach of the
relationship.’” Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814
(Fla. 1994) (alteration adopted) (quoting Tamiami Trail Tours, Inc. v. Cotton, 463
So. 2d 1126, 1127 (Fla. 1985) (per curiam)). Though the second and fourth
56
elements of this test are self-explanatory, the first and third require some additional
explication.
As for the first element -- the existence of a business relationship -- the
Supreme Court of Florida has explained that the plaintiff need not allege the
existence of an enforceable contract and that the plaintiff can prevail “if the jury
finds that an understanding between the parties would have been completed had
the defendant not interfered.” Id. (quoting Landry v. Hornstein, 462 So. 2d 844,
846 (Fla. Dist. Ct. App. 1985)). “A mere offer to sell, however, does not, by itself,
give rise to sufficient legal rights to support a claim of intentional interference with
a business relationship.” Id. (quoting Landry, 462 So. 2d at 846).
The third element, intentional and unjustified interference with a business
relationship, requires the plaintiff to allege that “the defendant acted without
justification.” Sec. Title Guarantee Corp. of Balt. v. McDill Columbus Corp., 543
So. 2d 852, 855 (Fla. Dist. Ct. App. 1989). This is a fact-intensive inquiry that
requires “an examination of the defendant’s conduct, its motive, and the interests it
sought to advance.” Id. (quotation omitted). Importantly, however, Florida
recognizes a “privilege of interference.” Wackenhut Corp. v. Maimone, 389 So.
2d 656, 657-58 (Fla. Dist. Ct. App. 1980). This means that where “there is no
contract right to have the relation continued, but only an expectancy[,] . . . a
competitor has the privilege of interference in order to acquire the business for
57
himself.” Id.; accord Greenberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc.,
629 So. 2d 252, 255 (Fla. Dist. Ct. App. 1993).
“If a defendant interferes with a contract in order to safeguard a preexisting
economic interest of his own, the defendant’s right to protect his own established
economic interest outweighs the plaintiff’s right to be free of interference, and his
actions are usually recognized as privileged and nonactionable.” See Heavener,
Ogier Servs., Inc. v. R.W. Fla. Region, Inc., 418 So. 2d 1074, 1076-77 (Fla. Dist.
Ct. App. 1982); Sec. Title Guarantee Corp. of Balt., 543 So. 2d at 855 (noting that,
as “long as improper means are not employed, activities taken to safeguard or
promote [a company’s] own financial interests are entirely non-actionable.” (quotation and alteration omitted)).9 Indeed, Florida courts have explained that,
even if the plaintiff has an existing, terminable-at-will contract, the defendant’s
interference to protect its economic interests is privileged unless the plaintiff 9 Florida’s Standard Jury Instructions, though merely persuasive, also confirm our understanding of Florida law. They read, in relevant part:
A person who interferes with the business relations of another with the motive and purpose, at least in part, to advance [or protect] his own business [or financial] interests, does not interfere with an improper motive. But one who interferes only out of spite, or to do injury to others, or for other bad motive, has no justification, and his interference is improper. So also, a person who interferes with another’s business relations using ordinary business methods [of competition] does not interfere by an improper method. But one who uses [physical violence], [misrepresentations], [illegal conduct], [threats of illegal conduct], [or] [(identify other improper conduct)] has no privilege to use those methods, and his interference using such methods is improper.
Standard Jury Instructions-Civil Cases (99-1), 778 So. 2d 264, 269 (Fla. 2000) (footnotes omitted).
58
alleges “a purely malicious motive” divorced from any “legitimate competitive
economic interest.” See Heavener, Ogier Servs., Inc., 418 So. 2d at 1077. It
follows that where the plaintiff alleges only a prospective business relationship --
and thus the plaintiff has a “mere expectancy” of a new relationship -- the privilege
of interference similarly bars only interference consisting of malicious conduct.
Cf. id. at 1077.
Interpreting Florida law, we have said that “when there is room for different
views” about the propriety of a defendant’s interference with a plaintiff’s business
relationships, “the determination of whether the interference was improper or not is
ordinarily left to the jury.” Mfg. Research Corp. v. Greenlee Tool Co., 693 F.2d
1037, 1040 (11th Cir. 1982) (quotation omitted). However, when plaintiffs have
failed to adequately allege improper methods, we have followed the Florida courts
and dismissed these claims. See, e.g., Int’l Sales & Serv., Inc. v. Austral Insulated
Prods., Inc., 262 F.3d 1152, 1159 n.1 (11th Cir. 2001); Royal Typewriter Co., a
Div. of Litton Bus. Sys. v. Xerographic Supplies Corp., 719 F.2d 1092, 1104-05
(11th Cir. 1983); see also Seminole Tribe of Fla. v. Times Pub. Co., 780 So. 2d
310, 318 (Fla. Dist. Ct. App. 2001) (affirming district court’s grant of defendant’s
motion to dismiss tortious interference claim).
DFA urges us to find that it adequately alleged improper methods in its
complaint, citing to three allegations about Estée Lauder’s conduct: (1) Estée
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Lauder represented to airport authorities that DFA could not meet its financial
projections; (2) Estée Lauder represented to the Atlanta Airport Authority that
DFA was unable to sell any Estée Lauder products, implying that DFA did not
have outstanding inventory; and (3) Estée Lauder suggested to airport authorities
that DFA was not a quality operator.
As we see it, the problem with each of these allegations is the same: the
complaint does not allege that Estée Lauder actually made any of these statements.
To be sure, false statements made “for the purpose of harming [a competitor’s]
economic interests” can in some instances form the basis of a claim for tortious
interference. Londono v. Turkey Creek, Inc., 609 So. 2d 14, 18-19 (Fla. 1992).
But DFA does not allege that Estée Lauder ever expressed an opinion on DFA’s
financial projections or its inventory, much less that it conveyed that opinion to
any airport officials. As for the third statement -- that DFA was not a quality
operator -- DFA asks us to infer this opinion from a letter in which Estée Lauder
vouched for the quality of other duty free operators. In our view, this is not a
reasonable inference from Estée Lauder’s statement. That Estée Lauder is satisfied
with the quality of its named business partners cannot be read to implicitly
disparage the quality of all other unmentioned entities in the same industry. DFA
was not referenced at all in the disputed letter to Newark airport officials, and we
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are unwilling to read this silence to make any comment on the quality of DFA’s
work.
DFA also cites language from its complaint that Estée Lauder “encourag[ed]
or induc[ed]” other duty free operators to make misrepresentations to airport
authorities. We agree that if the complaint adequately alleged inducement, this
might be sufficient to state a claim under Florida law. But DFA was required to
provide more than “‘a formulaic recitation of the elements’” of its tortious
interference claim. Simpson, 744 F.3d at 708 (quoting Twombly, 550 U.S. at 555).
It was obliged to support its allegation with facts from which a reasonable trier of
fact could infer inducement or encouragement by Estée Lauder. We are unable to
find any facts of this kind in DFA’s complaint. No facts in the complaint plausibly
suggest that Estée Lauder asked or encouraged any duty free operator to discuss
DFA with airport authorities. All that the complaint establishes is that Estée
Lauder sold its products to the operators, provided them with truthful information
about its market share, and vouched for the quality of their work. These facts are
entirely unrelated to inducement, and for that reason are insufficient to raise DFA’s
claim from possible to plausible.
Moreover, even if we were to agree with DFA that its bare and wholly
conclusory statements that Estée Lauder induced or encouraged the duty free
operators were sufficient to survive a motion to dismiss, we would still conclude
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that the complaint is devoid of any allegations of impropriety. Florida law is clear
that the privilege of interference encompasses actions taken to protect a company’s
economic interests as long as the methods employed were not improper. Sec. Title
Guarantee Corp. of Balt., 543 So. 2d at 855; Heavener, Ogier Servs., Inc., 418 So.
2d at 1076-77. DFA does not allege that any of its competitors took action for the
sole purpose of interfering with DFA’s prospective relationships with airport
authorities. To the contrary, as DFA acknowledges, each duty free operator was
attempting to procure the same airport contract for itself. Taking the complaint in
the light most favorable to DFA, two of its competitors disparaged its sales
projections and business practices during the competitive bidding processes for
both the Orlando International Airport and the Hartsfield-Jackson Atlanta
International Airport. DFA does not allege that its competitors entered the
competition pretextually, solely for the purpose of harming DFA’s prospective
interests. Moreover, there are simply no facts from which we can infer that the
statements were made out of any motivation other than the hope of winning the
airport contract. Accordingly, we affirm the dismissal of the tortious interference
claim.

Outcome: In sum, DFA failed to allege a critical element of each of its three claims
against Estée Lauder. Accordingly, we AFFIRM.

Plaintiff's Experts:

Defendant's Experts:

Comments: