Antitrust Law Daily Wrap Up, ANTITRUST—D. Colo.: College student housing operator unable to exclude evidence of tying arrangement, (Jan 12, 2015)

By Greg Hammond, J.D.

An off-campus student housing operator could not preclude a competitor’s introduction of evidence relating to an allegedly uncharged tying arrangement, the federal district court in Denver concluded. In denying the operator’s motion in limine, the court determined that the motion was untimely and the operator failed to demonstrate that the evidence was irrelevant to the competitor’s conspiracy to monopolize claim (Auraria Student Housing at the Regency, LLC v. Campus Village Apartments, LLC, January 9, 2015, Martínez, W.).

Background. Auraria Student Housing at the Regency, LLC, leases and operates an apartment complex that provides off-campus housing for students attending the University of Colorado, Denver (UCD). In 2004, the UCD contracted with Campus Village Apartments, LLC to construct student housing near the campus. Campus Village and UCD entered into an agreement whereby UCD would institute a residency requirement for most full-time domestic students to live at Campus Village during the first two semesters of enrollment. Auraria filed suit against Campus Village, alleging a conspiracy to monopolize in violation of Section 2 of the Sherman Act, among other claims. Specifically, Auraria alleged that it lost business from new students as a result of the agreement between Campus Village and UCD.

Auraria was denied summary judgment in January 2014, and Campus Village was denied summary judgment in September 2014. Auraria filed a motion in limine to preclude the introduction of evidence regarding an uncharged tying arrangement.

Admissibility. As a preliminary matter, the court concluded that the motion was filed 14 days late, and that the motion’s tardiness was sufficient to support its denial. Nevertheless, the court considered the merits of the motion, noting that the issues would otherwise be inevitably raised again during trial.

In support of its motion, Auraria argued that the evidence regarding the alleged tying arrangement was irrelevant to its claim of conspiracy to monopolize, and that there is no support for Campus Village’s position that it can defend against Auraria’s Section 2 claim by demonstrating a lawful tying arrangement under Section 1. The court agreed with Auraria that the cases on which Campus Village relied on do not support its assertion that lawfulness under Section 1 automatically precludes liability for “conspiracy to monopolize” under Section 2.

Auraria, however, failed to demonstrate that the challenged evidence was inadmissible. Specifically, the court found that evidence supporting Campus Village’s lack of monopoly power in the relevant market is relevant to elements of Auraria’s conspiracy claim. Because Auraria did not identify any other category of evidence related to Campus Village’s tying argument that it seeks to exclude, the motion in limine was denied.

The case number is 10-cv-02516-WJM-KLM.

Attorneys: Thomas P. McMahon (Jones & Keller, PC) for Auraria Student Housing at the Regency, LLC. Sarah Levine Hartley (Bryan Cave LLP) for Campus Village Apartments, LLC.

Companies: Auraria Student Housing at the Regency, LLC; Campus Village Apartments, LLC

Cases: Antitrust ColoradoNews