Sumotext Corp. v. Zoove, Inc., dba StarStar Mobile, et al.

Under the Sherman Act’s burden-shifting “rule of reason” framework, an antitrust plaintiff bears the initial burden of proving that a challenged restraint harms competition “in the relevant market.” The relevant market includes the product at issue and all economic substitutes for the product. Accordingly, absent proof of actual detrimental effects on competition, this Court has stated that “[w]hat is called for is an appraisal of the cross-elasticity of demand” between the affected product and any claimed substitutes for that product. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 394-395 (1956). “Because the ability of customers to turn to other suppliers restrains a firm from raising prices above the competitive level, the definition of the “relevant market” rests on a determination of available substitutes.” Id. The Questions Presented are:

1. Whether the Ninth Circuit applies an unduly lax standard for showing whether other suitable economic substitutes are available for the products at issue, in conflict with the standard applied in other Circuits and in this Court.

2. Whether the Ninth Circuit applies an unduly lax standard for showing whether an expert’s testimony is relevant and reliable, in conflict with the standard set forth in Federal Rule of Evidence 702 and as applied in other Circuits and in this Court.