Monopolies and the TTPA
A recent case from the Tennessee Court of Appeals, Jerry Duke v. Browning-Ferris Ind., et al., provides a well-analyzed overview of the Tennessee law on monopolies. As noted by the Court, this law is largely codified in the Tennessee Trade Practices Act. T.C.A. § 47-25-101.
This long running case involved allegations that BFI was suppressing competition in the Memphis area waste management industry. The plaintiff alleged that this suppression was evidenced by both the terms of BFI’s customer contracts and its willful acquisition of monopoly power in the Memphis area. The Court summarily dismissed the first allegation dealing with BFI’s contracts noting that "the TTPA only applies to the sale of tangible goods, not intangible services.” However, the Court then went on to take a hard look at the Plaintiff’s claim of monopolization and attempted monopolization.
In order to establish a claim for monopolization, the Court noted that “the plaintiff must show (1) the possession of monopoly power in the relevant market, and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." The Court defined “Monopoly power” as "the power to control prices or exclude competition."
Similarly, to recover for attempted monopolization, the Court noted that the plaintiff must establish "(1) that the defendant has engaged in predatory or anti-competitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power."
Ultimately, the Court found that there were no barriers to entry into the Memphis commercial waste industry and that, although BFI did possess the lion’s share of the market, there was ample competition and BFI was open to negotiations in contracting with its commercial customers. Accordingly, the Court held that BFI was not liable for either monopolization or attempted monopolization under the TTPA.
This was a well-reasoned opinion from the Court and a valuable point of reference for attorney’s involved in TTPA or monopolization cases.