Summary Judgment Dooms Attempted Monopolization Claim In Small Container Trash Hauling Market

In All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al., Case No. 2:08-cv-01816-LDW-AKT, August 1, 2012, the District Court for Eastern District of New York recently granted defendants' motion for summary judgment on the grounds that the plaintiffs failed to establish the element of "dangerous probability" for an antitrust claim for attempted monopolization under Section 2 of the Sherman Act. Plaintiffs are members of a certified class consisting of "all persons and entities that have contracted with, and purchased small containerized waste disposal services in the relevant market directly from defendants." The relevant time period is from May 5, 2000 forward. The relevant business market described in the complaint is the market for "small containerized waste hauling and disposal services". The relevant geographic market is alleged to consist of Long Island, New York.

Plaintiffs seek damages and injunctive relief for alleged overcharges within the relevant market. The court held that the use of 7-10 year exclusive dealing contracts with "evergreen" renewal provisions in a concentrated trash hauling market was not sufficient to raise a genuine issue of attempted monopolization. This is so notwithstanding the fact that the relevant market consisted of two major firms with 39% and 25% market share respectively, for a total of 64%, with the remaining portion made up of competing firms with approximately 10% share each. Although that market share had been relatively stable through time, the respective 39% and 25% shares enjoyed by two of the defendants nonetheless was held legally insufficient, and...