AFMS LLC v. United Parcel Service, Inc., et al.

Petitioner AFMS LLC (“AFMS”) is an industry consultant in the multi-billion dollar national shipping market dominated by Respondents United Parcel Service, Inc. (“UPS”) and FedEx Corporation (“FedEx”). AFMS presented evidence of a horizontal agreement between UPS and FedEx to prevent customers from utilizing third-party shipping rate consultants, like AFMS, to negotiate lower rates and offer cost-saving services on complex shipping contracts. The district court granted summary judgment on the ground that AFMS failed to proffer sufficient evidence of a relevant market under a full-blown rule of reason analysis. The district court held that the per se rule did not apply because AFMS was not a direct customer or supplier of UPS and FedEx, and also found that truncated or “quick look” rule of reason analysis was inappropriate. The Ninth Circuit affirmed in a discordant ruling, which sub silencio adopted the district court’s premise that per se and “quick look” rule of reason analyses were inapplicable. The questions presented are:

1. In a group boycott case, does the per se rule apply to an agreement among horizontal competitors, where the agreement has the purpose and effect of excluding market participants, but the market participants are not direct “suppliers or customers” of defendants?

2. Alternatively, to address disparate analyses among the Circuits, does a court err in holding that a defendant’s assertion of a procompetitive justification obviates the presumption of “quick look” rule of reason analysis, so that the antitrust plaintiff is required to proffer evidence supporting a relevant market under a full-blown rule of reason analysis?