11th Circuit Adopts D.C. Circuit’s Standard for “Efficient Enforcer” Prong for Antitrust Standing Test

On March 4, 2013, the 11th U.S. Circuit Court of Appeals issued an opinion in Sunbeam Television Corp. v. Nielsen Media Research, Inc., affirming a lower court ruling that Sunbeam lacked antitrust standing to pursue Section 2 claims alleging exclusionary conduct by Nielsen, which held an undisputed monopoly in the market for “television audience measurement services,” or television ratings. The decision is available here.

Sunbeam, a Miami-area broadcaster, purchased ratings from Nielsen. Sunbeam alleged that, among other things, Nielsen violated antitrust laws by excluding competition from three potential competitors:  Arbitron, ADcom, and erinMedia. Sunbeam claimed that as a customer, its burden to show causation between Nielsen’s exclusionary conduct and Sunbeam’s injury was less than that required of a competitor. Specifically, Sunbeam claimed that it need not establish the same degree of preparedness to enter the market by competitors Arbitron, ADcom, and erinMedia that would be required if one of the competitors brought the claim.The Court disagreed, adopting the D.C. Circuit’s holding in Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 862 (D.C. Cir. 2008), that “a would-be purchaser [or customer] suing an incumbent monopolist for excluding a potential competitor from which it might have bought a product at a lower price must prove the excluded firm was willing and able to supply it but for the incumbent firm’s exclusionary conduct.” To prove that a competitor was “willing and able,” Sunbeam must have established “affirmative steps” by the competitor to enter the market, including that it had “prepared cash flow estimates and financial statements in order to determine the profitability of the expansion, had existing capabilities that would have allowed it to serve the market, and took affirmative steps to obtain necessary government permits, etc.” Absent these concrete indications of preparedness to enter the market, Sunbeam could not establish that it was an efficient enforcer of the antitrust laws. On March 26, Sunbeam filed a petition seeking a rehearing en banc.