Antitrust Law Daily Wrap Up, ANTITRUST—4th Cir.: Rejection of gas station operators' claims against distributors upheld, (Jul 23, 2013)

By Jeffrey May, J.D.

The U.S. Court of Appeals in Richmond, Virginia, has upheld dismissal of an antitrust action brought by gas station operators against a group of wholesale distributors in an unpublished opinion. In addition to summarily affirming the district court’s order granting the defendants’ summary judgment motions, the appellate court ruled that the lower court did not abuse its discretion in excluding the reports of the plaintiffs' expert witnesses (SSS Enterprises, Inc. v. Nova Petroleum Realty, LLC, July 19, 2013, per curiam).

More than two dozen gas station operators in the District of Columbia and Northern Virginia commenced the antitrust action against the wholesale distributors, who sold the plaintiffs Shell and Exxon branded gasoline and who, for the most part, leased the plaintiffs the gas stations from which they operated. The gas station operators alleged that the defendants engaged in monopolization, attempted monopolization, predatory pricing, and discriminatory pricing.

According to the appellate court, the complaining gas station operators failed to present evidence of relevant markets, of the defendants’ monopoly power or the probability of their obtaining it, and the defendants’ conduct in excluding competition. In addition, the plaintiffs provided no pricing information to support their allegations of a “price squeeze.” The court also stated without elaborating that the plaintiffs failed to establish antitrust injury. A breach of contract claim also was deemed unsupported.

Exclusion of expert reports. With respect to the discovery sanctions, the appellate court concluded that the lower court did not abuse its discretion. The district court properly granted the defendants' motion to strike expert disclosures because they did not include the experts’ reports and properly refused to allow the plaintiffs to file these reports late.

The Federal Rules of Civil Procedure impose an “automatic sanction” of exclusion of a party’s expert witness for failure to adhere to the requirements set forth in Rule 26(a), the court explained. The disclosures were noncompliant, and the plaintiffs failed to show that their noncompliance was either substantially justified or harmless.

The case is No. 12-2088.

Attorneys: Peter L. Goldman (O'Reilly & Mark, P.C.) for SSS Enterprises, Inc. Alphonse M. Alfano (Bassman, Mitchell & Alfano, Chtd.) for Nova Petroleum Realty, LLC.

Companies: Nova Petroleum Realty, LLC; SSS Enterprises, Inc.

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