Free Jury Instructions - District Court of Delaware - Delaware

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TABLE OF CONTENTS
FINAL JlTRY INSTRUCTIONS Initial Jury Instruction 1 Court's Final Instructions to the Jury Initial Jury Instruction 2 Evidence Defined Initial Jury Instruction 3 Direct and Circumstantial Evidence Initial Jury Instruction 4 Consideration ofEvidence Initial Jury Instruction 5 Statements ofCounsel Initial Jury Instruction 6 Credibility of Witnesses Initial Jury Instruction 7 Expert Testimony Initial Jury Instruction 7A Dr. Zimbalist's Testimony Initial Jury Instruction 8 Number of Witnesses Initial Jury Instruction 9 Burden ofProof Preponderance ofthe Evidence Initial Jury Instruction 10 Depositions/Videos Initial Jury Instruction 11 Corporations (previously from "Final Instructions "j Antitrust Jury Instruction 1 Antitrust Claims: Sherman Act Sec/ions 1 and 2 Purpose ofAntitrust Laws and Overview ofPlaintiffs' Antitrust Claims Antitrust Jury Instruction 2 Antitrust Claims: Sherman Act Sec/ions 1 and 2 Private Actions Under the Antitrust Laws Antitrust Jury Instruction 3 Antitrust Claims: Sherman Act Sec/ions 1 and 2 Sherman Act - Purpose Antitrust Jury Instruction 4 Antitrust Claims: Sherman Act Sec/ion 1 - Generally Antitrust Jury Instruction 5 Single Entity or Enterprise Defense Antitrust Jury Instruction 6 Unreasonable Restraint ofTrade Antitrust Jury Instruction 10 Antitrust Claims: Sherman Act Section 1 Rule of Reason - Overview Antitrust Jury Instruction 11 Antitrust Claims: Sherman Act Section 1 Rule of Reason - Proofof Competitive Harm Antitrust Jury Instruction 12 Antitrust Claims: Sherman Act Sections 1 and 2 Relevant Market - General Antitrust Jury Instruction 13 Rule ofReason - ProofofRelevant Market Antitrust Jury Instruction 14 Relevant Market - Necessity ofProof Antitrust Jury Instruction 15 Antitrust Claims: Sherman Act Section 1 Rule of Reason - Evidence ofCompetitive Benefits Antitrust Jury Instruction 16 Rule ofReason - Balancing the Competitive Effects Antitrust Jury Instruction 17 Shennan Act Section 1 - Contract, Combination or Conspiracy Definition, Existence and Evidence Antitrust Jury Instruction 18 Antitrust Claims: Sherman Act Section 2 Monopolization General Elements Antitrust Jury Instruction 19 Antitrust Claims: Sherman Act Section 2 Monopolization Monopoly Power Defined Antitrust Jury Instruction 20 Antitrust Claims: Sherman Act Section 2 Monopolization Existence ofMonopoly Power - Indirect Proof Antitrust Jury Instruction 21 Monopolization: Relevant Market - General Antitrust Jury Instruction 22 Existence ofMonopoly Power - Direct Proof Antitrust Jury Instruction 23 Antitrust Claims: Sherman Act Section 2 Monopolization Willful Acquisition or Maintenance ofMonopoly Power
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Antitrust Jury Instruction 24 Antitrust Claims: Sherman Act Section 2 - Attempt to Monopolize General Elements Antitrust Jury Instruction 25 Specific Intent Antitrust Jury Instruction 26 Antitrust Claims: Sherman Act Section 2 - Attempt to Monopolize Danger ofSuccess Antitrust Jury Instruction 27 Antitrust Claims: Sherman Act Section 2 - Conspiracy to Monopolize General Elements Antitrust Jury Instruction 28 Antitrust Damages: Sherman Act Sections I and 2 Introduction and Purposes Antitrust Jury Instruction 29 Antitrust Injury and Causation Antitrust Jury Instruction 30 Antitrust Damages: Sherman Act Sections I and 2 Expert Testimony Antitrust Jury Instruction 31 Speculation Not Permitted Antitrust Jury Instruction 32 Causation and Disaggregation Antitrust Jury Instruction 33 Mitigation Antitrust Jury Instruction 34 Trebling ofDamages Anitrust Jury Instruction 35 Other Conduct Final Instruction Deliberation and Verdict

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FINAL JURY INSTRUCTIONS
Initial Jury Instruction 1 Court's Final Instructions to the Jury

Members of the jury, now it is time for me to instruct you about the law that you must follow in deciding this case. Each of you has been provided a copy of these instructions. You may read along as I deliver them if you prefer, however, I would encourage you to focus your attention on me while the instructions are being read. You will be able to take your copies with you into your deliberations and refer to them at that time, if necessary. I will start by explaining your duties and the general rules that apply in every civil case. Then I will explain some rules that you must use in evaluating particular testimony and evidence. I will explain the positions of the parties and the law you will apply in this case. Finally, I will explain the rules that you must follow during your deliberations in the jury room, and the possible verdicts that you may return. Please listen very carefully to everything I say. Members of the Jury, it is important that you bear in mind the distinction between your duties and my duties. You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. You are the sole judges of the facts. It is your judgment, and your judgment alone, to detennine what the facts are, and nothing I have said or done during this trial was meant to influence your dt:cisions about the facts in any way. Your second duty is to take the law that I give you, apply it to the facts, and decide if, by a preponderance of the evidence, Defendants are liable. Now, as far as my duty is concerned, I have the duty of advising you about the law that you should apply to the facts as you find them. You are not to consider whether the principles I state to you are sound or whether they accord with your own view~ about policy. You are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. You must accept them despite how you feel about their wisdom. This includes the instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole. Perfonn these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way.

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Initial Jury Instruction 2 Evidence Defined

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You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way. The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, and the stipulations to which the lawyers agreed. Nothing else is evidence. The lawyers' statements and arguments are not evidence. The arguments of the lawyers are offered solely as an aid to help you in your determination of the facts. Their questions and objections are not evidence. My legal lUlings are not evidence. My comments and questions are not evidence. During the trial I may have not let you hear the answers to some of the questions the lawyers asked. I may also have ruled that you could not see some of the exhibits that the lawyers wanted you to see. You must completely ignore all of these things. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decislon in any way. Make your decision based only on the evidence, as I have defined it here, and nothing else.

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August 4, 2008 Initial Jury Instruction 3 Direct and Circumstantial Evidence

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You have heard the tenns direct and circumstantial evidence, Direct evidence is evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that she saw it raining outside, and you believed her, that would be direct evidence that it was raining. Circumstantial evidence is a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was rammg.
It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, nor does it say that one is any better than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.

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Initial Jury Instruction 4 Consideration ofEvidence

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You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

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Initial Jury Instruction 5 Statements ofCounsel

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A further word about statements and arguments of counsel. The attorney's statements and arguments are not evidence. Instead, their statements and arguments are intended to help you review the evidence presented. If you remember the evidence differently from the attorneys, you should rely on your own recollection. The role of attorneys is to zealously and effectively advance the claims of the parties they represent with the bounds of the law. An attorney may argue all reasonable conclusions from evidence in the record. It is not proper, however, for an attorney to state an opinion as to the truth or falsity of any testimony or evidence. What an attorney personally thinks or believes about the testimony or evidence in a case is not relevant, and you are instrucl:ed to disregard any personal opinion or belief concerning testimony or evidence that an attorney has offered during opening or closing statements, or at any other time during the course of the trial.

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Initial Jury Instruction 6 Credibility of Witnesses

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You are the sole judges of each witness's credibility. You should consider each witness's means of knowledge; strength of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it is consistent or incon~;istent; whether it has been contradicted; the witness's biases, prejudices, or interests; the witm::ss's manner or demeanor on the witness stand; and all circumstances that, according to the evidence, could affect the credibility of the testimony. If you find the testimony to be contradictory, you must try to reconcile it, if reasonably possible, so as to make one harmonious story of it all. But if you can't do this, then it is your duty and privilege to believe the testimony that, in your judgment, is most believable and disregard any testimony that, in your judgment, is not believable. In determining the weight to give to the testimony of a witness, you should ask yourself whether there is evidence tending to prove that the witness testified falsely about some important fact, or, whether there was evidence that at some other time the witness said or did something, or failed to say or do something that was different from the testimony he or she gave at trial. You have the right to distrust such witness's testimony in other particulars and you may reject all or some ofthe testimony of that witness or give it such credibility as you may think it deserves. You should remember that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth. People may tend to forget some things or remember other things inaccurately. If a witness has made a misstatement, you must consider whether it was simply an innocent lapse of memory or an intentional falsehood, and that may depend upon whether it concerns an important fact or an unimportant detail. This instruction applies to all witnesses.

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Initial Jury Instruction 7 Expert Testimony
Expert testimony is testimony from a person who has a special skill or knowledge in some science, profession, or business. This skill or knowledge is not common to the average person but has been acquired by the expert through special study or experience. In weighing expert testimony, you may consider the expert's qualifications, the reasons for the expert's opinions, and the reliability of the information supporting the expert's opinions, as well as the factors I have previously mentioned for weighing testimony of any other witness. Expert testimony should receive whatever weight and credit you th:,nk appropriate, given all the other evidence in the case.

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August 4, 2008 Initial Jury Instruction 7A Dr. Zimbalist's Testimony

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You have heard testimony in this case that Plaintiffs' expert witness Dr. Zimbalist and Plaintiffs' counsel together prepared a document that contained some of the questions he would be asked and some of the answers he expected to give. You also beard that Dr. Zimbalist took that document with him to the witness stand, that he made use of it during his testimony, and that the document itself and the fact that he had it with him while testifying were not disclosed to the Court or to Defendants' counsel. None of this should have been done. You have heard Dr. Zimbalist's testimony about that issue and it is up to you to draw your own conclusions about how that issue affects your assessment of the witness's credibility and his testimony.

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Initial Jury Instruction 8 Number of Witnesses

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One more point about the witnesses. Sometimes jurors wonder if the number of witnesses who testified makes any difference. Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers.

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Initial Jury Instruction 9 Burden ofProof Preponderance ofthe Evidence

This is a civil case. Plaintiffs have the burden of proving their claims and damages by what is called a preponderance of the evidence. Proof by a preponderance of the evidence means proof that something is more likely true than not. It means that certain evidence, when compared to the evidence opposed to it, has the more convincing force and makes you believe that something is more likely true than not. Preponderance of the evidence does not depend on the number of witnesses. If the evidence as to a particular element or issue is evenly balanced, the party has not proved the element by a preponderance of the evidence and you must find against that party. In determining whether any fact has been proven by a preponderance of the evidence, you may consider the testimony of all witnesses, regardless of who called them and all exhibits received into evidence regardless of who produced them. Those of you who are familiar with criminal cases will have heard the term proof beyond a reasonable doubt. That burden does not apply in a civil case and you should therefore put it out of your mind in considering whether or not a party has met its burden of proof on various issues. If Plaintiffs fail to meet their burden on any claim, you must render a verdict for Defendants on that claim.

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Initial Jury Instruction 10 Depositions/Videos

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During the trial of this case, certain testimony has been read to you by way of deposition or a video excerpt of such a deposition has been shown, consisting of sworn answers to questions asked of the witness in advance of the trial by one or more attorneys for the parties in the case. The testimony of a witness who, for some reason, could not be compelled to testify from the witness stand may be presented in writing under oath, or by way of videotape, in the form of a deposition. Such testimony is entitled to the same consideration, and is to be judged as to credibility, and weighed, and otherwise considered by the jury, insofar as is possible, in the same way as if the witness had been present and had testified from the witless stand.

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Initial Jury Instruction 11 Corporations
(previously from "Final Instructions ")


A corporation is a person under the law. A corporation acts only through its agents. A corporation's agents includes its directors, officers, employees, or others acting on its behalf. A corporation is not capable under the law of conspiring with its own agents or with its unincorporated divisions or its wholly-owned subsidiaries. In other words, a decision of the Board of Directors or of the management of a corporation does not constitute an agreement in and of itself with a party outside of the corporation; this is how a corporation takes action. Through its agents, however, a corporation may be capable of conspiring with other persons or independent corporations who are not part ofthe corporation. A corporation is entitled to the same fair trial as a privc.te individual. The acts of a corporation are to be judged by the same standard as the acts of a private individual, and you may hold a corporation liable only if such liability is established by the preponderance of the evidence. All persons, including corporations, are equal before the law.

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Antitrust Jury Instruction 1 Antitrust Claims: Sherman Act Sections 1 and 2 Purpose ofAntitrust Laws and Overview ofPlaintiffs' Antitrust Claims

In this case, the Plaintiffs, Deutscher Tennis Bund (Gennan Tennis Federation), Rothenbaum Sport GmbH, and the Qatar Tennis Federation (who I will refer to collectively as the "Plaintiffs"), assert that Defendants ATP Tour, Inc., Etienne de Villiers, Charles Pasarell, Graham Pearce, Jacco Eltingh, Perry Rogers, and Iggy Jovanovic (who I will refer to individually and/or collectively as the "Defendants"), violated the antitrust laws of the United States. Specifically, Plaintiffs contend that Defendants violated laws commonly known as Sections 1 and 2 of the Shennan Antitrust Act. Defendants deny those claims. The purposes of the antitrust laws are to preserve and advance our system of free and open competition and to secure to everyone an equal opportunity to engage in business, trade, and commerce, by preventing unreasonable restraint or monopolization of any business or industry so that the consuming public may receive better goods and services at lower cost. The law promotes the concept that free competition results in the best allocation of economic resources; but the law does not guarantee success to those who enter into business because it also recognizes that in the natural operation of our economic system, some competitors are going to lose business, or even go out of business, while others gain and prosper.

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Antitrust Jury Instruction 2 Antitrust Claims: Sherman Act Sections 1 and 2 Private Actions Under the Antitrust Laws

This type of lawsuit is known as a private antitrust civil action. Private antitrust actions are a means of enforcing the antitrust laws, because they serve to deter defendants who have violated the antitrust laws from violating the law in the future. Plaintiffs have brought two separate antitrust claims. Plaintiffs' first claim is under Section 1 of the Shennan Act, which prohibits a person or corporation from entering into contracts, combinations and conspiracies that unreasonably restrain trade. Plaintiffs allege that Defendants entered into agreements, combinations and conspiracies to restructure men's professional tennis that unreasonably restrained trade in the market(s) for top-tier men's professional tennis, player services for top-tier men's professional tennis, and/or sanctions for top-tier men's professional tennis. Plaintiffs' second claim is under Section 2 of the Shennan Antitrust Act, which prohibits a person or a corporation from maintaining a monopoly in any part of our country's trade or commerce. In this case, Plaintiffs allege that Defendants unlawfully gained and maintained a monopoly in the relevant market(s); conspired to gain and maintain a monopoly in the relevant market(s); and attempted to gain and maintain a monopoly in the relevant market(s).

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Antitrust Jury Instruction 3 Antitrust Claims: Sherman Act Sections 1 and 2 Sherman Act - Purpose

The purpose of the Shennan Act is to preserve free and unfettered competition in the marketplace. The Shennan Act rests on the central premise that competition produces the best allocation of our economic resources, the lowest prices, the highest quality, and the greatest material progress.

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Antitrust Jury Instruction 4 Antitrust Claims: Sherman Act Section I - Generally Plaintiffs challenge Defendants' conduct under Section 1 of the Shennan Act. Section 1 prohibits contracts, combinations and conspiracies that unreasonably restrain trade. To establish a violation of Section 1 of the Shennan Act, Plaintiffs must prove thtl following: First, the existence of a contract, combination or conspiracy between or among at least two separate persons; Second, that the contract, combination or conspIracy unreasonably restrains or will unreasonably restrain trade; and Third, that the restraint caused the Plaintiff(s) to suffer an injury to its business or property.

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Antitrust Jury Instruction 5 Single Entity or Enterprise Defense 1

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First, as a threshold matter, in order to satisfy the element of an agreement, there must be at least two separate persons or corporations who have reached an agreement or understanding in order to find a violation of Section One. The internal decisions of .l unified business enterprise do not give rise to claims under Section One of the Sherman Act. A decision agreed to by a Board of Directors on behalf of a unified business enterprise does not constitute an agreement between separate actors. You are instructed that the directors of ATP, acting in their capacity as directors, are not separate entities capable of conspiring with ATP. Furthermore, where separate persons or corporations are commonly controlled or substantially integrated in their operations, they may be considered a "single entity" or "single enterprise" under the antitrust laws. No combination or conspiracy is possible under the law between corporations that are commonly controlled or substantiallylntegrated, and that regularly conduct their business affairs in such a manner as to constitute, in e:Ject, a single business entity or enterprise? The law permits, and in fact encourages, coopl~ration inside an integrated business enterprise to better facilitate competition between that enterprise and other producers. 3 An issue you will be called upon to decide is whether the ATP and its members function as a single business entity or single enterprise with respect to operating and participating in the ATP Tour, including with respect to the categorization of tournament members, the creation of an annual calendar, the setting of ranking points to be awarded for performance in different ATP events, and the adoption of rules pertaining to when and where player members shall play. Plaintiffs contend that the ATP is an independent business actor that competes with its member tournaments in various alleged product markets. Defendants contend that the ATP and its members function as a single economic enterprise for the purpose of producing the ATP brand of professional tennis through the ATP World Tour and for the purpose of carrying out the core functions of a global professional tennis tour. Participants in such an enterprise may agree on all core functions of the integrated entity, including what products are produced, how, when and where to produce the products, who to sell the products to, how much of the products should be produced, and at what price the products are sold. 4 Although relevant to your consideration, it is not necessary for members of such an integrated enterprise to share common corporate ownership. 5 In determining whether, with respect to the challenged conduct, a membership organization constitutes a single business entity
I Copperweld v. Independence Tube, 467 U.S. 752 (1984); Toscano v. Professional Golfers Ass 'n, 258 F.3d 978, (9th Cir. 2001); ; Seabury v. PGA, 878 F. Supp. 771 (D. Md. 1994).

2 Texaco v. Dagher, 547 U.S. 1,6 (2006); Copperweld v. Independence Tube, 467 U.S. 752 (1984); HealthAmerica Penn., Inc. v. Susquehanna Health Sys., 278 F. Supp. 2d 423, 435 (M.D. Pa. 2003).

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Chicago Pro!'l Sports v. NBA, 95 F.3d 593, 598 (7th Cir. 1996); Am. Needle v. New Orleans Saints, 496 F. Supp. 2d 941, 943 (N.D. Ill. 2007). Texaco v. Dagher, 547 U.S. 1,6 (2006).

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5 Am. Needle v. New Orleans Saints, 496 F. Supp. 2d 941,944 (N.D. Ill. 2007); Williams v. lB. Fischer Nevada, 794 F. Supp. 1026, 1032 (D. Nev. 2003), aff'd 999 F.2d 445 (9th Cir. 1993).

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or enterprise, the most important consideration is whether the organization's members primarily compete with one another for customers of their own product, or whether the organization's members compete with outside producers of different but competing products. 6 Other factors you may consider are whether they share common ownership; whether they share expenses, capital expenditures, profits or losses; whether the tournaments and ATP are managed independently; and whether the coordination between ATP and its member tournaments is necessary to create the product ATP sells. You must consider whether any challenged conduct involving ATP and its members was undertaken as a single business entity or enterprise, or whether it represented actions taken by one or more separate, independent actors. 7

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Chicago Pro!'l Sports v. NBA, 95 F.3d 593, 600 (7th Cir. 1996); see also Continental v, GTE Sylvania, 433 U.S. 36, 52 n. 19 (1977) ("The primary concern of antitrust law" is "interbrand," not "intrabrand," competition.). Am. Needle v. New Orleans Saints, 496 F. Supp. 2d 941,943 (N.D. Ill. 2007).

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Antitrust Jury Instruction 6 Unreasonable Restraint of Trade
As common sense would tell you, and as I have told you, the antitrust laws do not prohibit every business agreement which affects trade or every agreement which may restrain or influence competition. The law prohibits only unreasonable restraints of trade. Your task is to determine whether any agreement among the Defendants and any s(~parate entity or entities is an unreasonable restraint of trade. As I will instruct you in more detaIl below, in order to arrive at your conclusion, you are to consider all of the circumstances surrounding the agreement, including, among other things: · the nature of the industry involved; · any facts that are unique to the particular industry involved; · the nature of the alleged agreement and restraint, and its actual and probable effect; · the history of the alleged restraint; · the reasons for adopting the particular practice which is alleged to be a restraint; · whether individual competitors lose their freedom to compete; · whether input prices are lower or output prices are higher than they otherwise would be; and · whether prices and output are responsive to consumer preferences.

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Antitrust Jury Instruction 10 Antitrust Claims: Sherman Act Section 1 Rule ofReason - Overview

Under Section 1 of the Sherman Act, a restraint of trade is illegal if it is found to be unreasonable. You must determine, therefore whether the restraints challenged here are unreasonable. The restraints alleged here are: the channeling of players to certain events via rules, regulations, bonuses and sanctions; the creation and sale of an artificially limited number of sanctions which are required if a tournament is to attract players: market divisions among the ATP and its alleged competitors; and the limitation and/or cap of output of top-tier men's professional tennis. In making this determination, you must first determine whether Plaintiffs have carried their burden to show that any challenged restraint has resulted or is likely to result in a substantial harm to competition in a relevant product and geographic market(s). If you find that Plaintiffs have carried their burden to show that any challenged restraint results in a substantial harm to competition in a relevant market(s), then you must consider whether the restraint produces countervailing competitive benefits. If you find that it does, then you must balance the competitive harm against the competitive benefit. The challenged restraint is illegal under Section 1 of the Sherman Act only if you find that the competitive harm substantially outweighs the competitive benefit. I will now review each step of the analysis in more detail.

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Antitrust Jury Instruction 11 Antitrust Claims: Sherman Act Section 1 Rule ofReason - ProofofCompetitive Harm

As I mentioned, in order to prove that the challenged restraint is unreasonable, Plaintiffs have the burden of demonstrating that a restraint has resulted or is likely to result in a substantial harm to competition. Although it may be relevant to the inquiry, harm that occurs merely to the individual business of Plaintiffs is not sufficient, by itself, to demonstrate harm to competition generally. That is, harm to a single competitor or group of competitors does not necessarily mean that there has been harm to competition. Furthermore, it is Plaintiffs' burden to show that the harm to competition occurred in an identified market, known as a "relevant market". There are two aspects to a relevant market. The first aspect is known as the relevant product market. The se(:ond aspect is known as the relevant geographic market. If you find that Plaintiffs have carried their burden to show the existence of a relevant market(s) then you must determine whether Plaintiffs also have carded their burden to show that a challenged restraint has or is likely to have a substantial harmful effect on competition in that market. A harmful effect on competition, or competitive harm, refers to a reduction in competition that results in the loss of some of the benefits of comp,;:tition, such as lower prices, increased output, and higher product quality. If the challenged conduct has not resulted in or is not likely to result in higher prices, decreased output, lower quality, or the loss of some other competitive benefit, then there has been no competitive harm and you should find that the challenged conduct was not unreasonable. In determining whether the challenged restraint has produced or is likely to produce competitive harm, you may look at the following factors: the effe:ct of the restraint on prices, output, product quality and service; the purpose and nature of the restraint; the nature and structure of the relevant market, both before and after the restraint was imposed; the number of competitors in the relevant market and the level of competition among them, both before and after the restraint was imposed; and whether the defendant(s) posses:~es "market power." The last factor mentioned, market power, has been defined a:; an ability profitably to raise prices charged above those that would be charged in a competitive market for a sustained period of time, or to pay lower prices that would be charged in a competitive market for a sustained period of time. A firm that possesses market power generally can charge higher prices for the same goods or services than a firm in the same market that does not possess market power. The ability to charge higher prices for better products or services, however, is not, without more, market power. An important factor in determining whether the defendant possesses market power is the defendant's market share; that is, its percentage of the products or services bought or sold in the relevant market by all competitors. Other factors that you may consider in determining whether the Defendant(s) have market power inc1udt: how ATP views itself; the testimony of individuals regarding the nature of the relevant market(s); the number of participants in the relevant market(s); whether Defendants have control over relevant input markets; the possible barriers to entry in the relevant market(s). If the Defendant(s) do not possess a substantial market share, it is less likely that they po~sess market power. If the

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Defendant(s) do not possess this kind of power, then it is less likely that the challenged restraint has resulted or will result in a substantial harmful effect on competition in the market(s).

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Antitrust Jury Instruction 12 Antitrust Claims: Sherman Act Sections 1 and 2 Relevant Market - General
Plaintiffs have the burden of proving by a preponderance of the evidence that the ATP Tour had market power in a relevant market. Defining the relevant market is essential because you are required to make a judgment about whether the ATP Tour has monopoly power in a properly defined economic market. To make this judgment, you must be able to determine what, if any, economic forces restrain the ATP Tour's freedom to set prices for or restrict the input markets for player services and tournament memberships/sanction:) and the output markets for sponsorships, broadcasters, and fans. The most likely and most important restraining force will be actual and potential competition from other firms and their products or services. This includes all firms and products or services that act as restraints on the ATP Tour's power to set prices as it pleases. All the firms and products or services that e)~ert this restraining force are within what is called the relevant market. There are two aspects you must consider in determining whether Plaintiffs have met their burden to prove the relevant market by a preponderance of the evidence. The first is the relevant product market; the second is the relevant geographic market.

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Antitrust Jury Instruction 13 Rule ofReason - ProofofRelevant Market

As I mentioned, Plaintiffs must show that the hann to competition occurred in an identified market, known as a "relevant market." There are two aspects to a relevant market. The first aspect is known as a relevant product market. The second aspect is known as the relevant geographic market. It is Plaintiffs' burden to prove the existence of a relevant market.
Relevant Product Market

The basic idea of a relevant product market is that it includes all products that are reasonable substitutes for each other from a buyer's point of view; that is, the products compete with each other. In other words, the relevant product market includes the products that a consumer believes are reasonably interchangeable or reasonable substitutes for each other. This is a practical test with reference to actual behavior of buyers and marketing efforts of sellers. Products need not be identical or precisely interchangeable as :long as they are reasonable substitutes. For example, if consumers seeking to cover leftover food for storage considered certain types of flexible wrapping material - such as aluminum foil, cellophane, or even plastic containers - to be reasonable alternatives, then all those products would be in the same relevant product market. To detennine whether products are reasonable substitutes for each other, you should consider whether a small but significant pennanent increase in tht: price of one product would result in a substantial number of consumers switching from that product to another. Generally speaking, a small but pennanent increase in price is approximately a five percent increase in price not due to external cost factors. If you find that such switl;hing would occur, then you should conclude that the products are in the same product market. In evaluating whether various products are reasonably interchangeable or are reasonable substitutes for each other, you may also consider: (1) consumers' views on whether the products are interchangeable; (2) the relationship between the price of one product and sales of another; (3) the presence or absence of specialized vendors; (4) the perceptions of either industry or the public as to whether the products are in separate markets; (5) the views of Plaintiffs and Defendants regarding who their respective competitors are; and (6) the existence or absence of different customer groups or distribution channels. In this case, Plaintiffs define the relevant product markets as the market for the production of top-tier men's professional tennis, the market for player services for top-tier men's professional tennis, the market for hosting top-tier men's professional tennis, and/or the market for live top-tier men's professional tennis. By contrast, Defendants assert that Plaintiffs have failed to prove a proper relevant product market because Defendants claim that Plaintiffs' alleged product markets do not include all reasonably interchangeable products or substitutes. If you find that Plaintiffs have proven a relevant product market or markets that includes all reasonably interchangeable products or substitutes, then you should continue to evaluate the remainder of Plaintiffs' claim with respect to that market or those markets. However, if you find that Plaintiffs have failed to prove such a market, then you must find in Defendants' favor on this claim.
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Relevant Geographic Market
For each relevant product market you determine that Plaintiffs have proven, Plaintiffs must also prove a relevant geographic market. The relevant geographic market for a given relevant product market is the area in which the defendant faces eompetition from other firms that compete in that relevant product market and to which customers can reasonably tum for purchases. When analyzing the relevant geographic market, you should consider whether changes in prices or product offerings in one area have substantial effects on prices or sales in another area, which would tend to show that both areas are in the same relevant geographic market. The geographic market may be as large as global or nationwide, or as small as a single town or even smaller. The relevant geographic market for one relevant product market may be larger or smaller than that for a different relevant product market. Plaintiffs have the burden of proving the relevant geographic market by a preponderance of the evidence. In this case, Plaintiffs claim that the relevant gt:ographic market for each of these markets is global. By contrast, Defendants assert that Plaintiffs have failed to prove a proper geographic market. In determining whether Plaintiffs have met their burden and proven that their proposed geographic market is proper, you may consider several factors, including: · The geographic area in which the relevant products are sold and where customers for the relevant products are located; · The geographic area to which customers tum for supply of the relevant products or have seriously considered turning; and · The geographic areas that suppliers of the relevant product:;; view as potential sources of competition.

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Antitrust Jury Instruction 14 Relevant Market - Necessity ofProof If, after considering all the evidence, you find that Plaintiffs have proven by a preponderance of the evidence both a relevant product market and a relevant geographic market, then you must find that Plaintiffs have met the relevant market requirement and you must consider the remaining elements of this claim. If you find that Plaintiffs have failed to prove by a preponderance of the evidence either a relevant product market or a relevant geographic market, then you must find for Defendants and against Plaintiffs on their antitrust claims.

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Antitrust Jury Instruction 15 Antitrust Claims: Sherman Act Section 1 Rule ofReason - Evidence of Competitive Benefits

If you find that Plaintiffs have proved that the challenged restraint resulted in substantial harm to competition in a relevant market, then you next must determine whether the restraint also benefits competition in other ways. In this case, Defendants contend that the challenged restraint benefits competition the following way(s): increased product quality and consistency; improved .efficiency; greater predictability; increased marketing; increased promotion and greater availability of consumer information; expanded product availability; increased investment. If you find that Defendants have proven that the challenged restraint does result in competitive benefits, then you also must consider whether the restraint was reasonably necessary to achieve the benefits. If Plaintiffs prove that the same benefits could have been readily achieved by other, reasonably available alternative means that create substantially less harm to competition, then they cannot be used to justify the restraint.

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Antitrust Jury Instruction 16 Rule ofReason - Balancing the Competitive Effects

If you find that the challenged restraint(s) were reasonably necessary to achieve competitive benefits, then you must balance those competitive benefits against the competitive harm resulting from the same restraint(s). If the competitive haml substantially outweighs the competitive benefits, then the challenged restraint(s) are unreasonable. Ifthe competitive harm does not substantially outweigh the competitive benefits, then the challenged restraint(s) are not unreasonable. In conducting this analysis, you must consider the benefits and harm to competition and consumers, not just to a single competitor or group of competitors.

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Antitrust Jury Instruction 17 Shennan Act Section I - Contract, Combination or Conspiracy Definition, Existence and Evidence

Plaintiffs allege that Defendants participated in a conspiracy to restrain trade by agreeing to (i) control players services for top-tier men's professional tennis tournaments by requiring those players to participate in all of the ATP's favored tournaments in order to meaningfully participate in the Tour, thereby precluding the non-favored ATP tournaments, and all non-ATP tournaments, from competing for those players in an open market; and (ii) limit the number of top-tier men's professional tennis tournaments while excluding all others from competition, thereby deriving cartel-related, monopoly profits. A conspiracy is an agreement by two or more persons to accomplish some unlawful purpose or to accomplish a lawful purpose by unlawful means. Plaintiffs have the burden of proving each of the following elements by a preponderance of the evidence: First, that the alleged conspiracy existed; and Second, that Defendant(s) knowingly became a member of that conspiracy; knowingly means voluntarily and intentionally, and not because of mistake or accident or other innocent reason. A conspiracy is a kind of "partnership" in which each person found to be a member of the conspiracy is liable for all acts and statements of the other members made during the existence of and in furtherance of the conspiracy. To create such a relationship, two or more persons must enter into an agreement that they will act together for some unlawful purpose or to achieve a lawful purpose by unlawful means. To establish the existence of a conspiracy, the evidence need not show that its members entered into any fonnal or written agreement; that they met together; or that they directly stated what their object or purpose was, or the details of it, or the means by which they would accomplish their purpose. The agreement itself may have been entirely unspoken. What the evidence must show to prove that a conspiracy existed is that the alleged members of the conspiracy in some way came to an agreement to accomplish a common purpose. It is the agreement to act together that constitutes the conspiracy. Whether the agreement succeeds or fails does not matter. A conspiracy may be fonned without all parties coming to an agreement at the same time, such as where competitors, without previous agreement, separately accept invitations to participate in a plan to restrain trade. The agreement may be shown if the proof establishes that the parties knowingly worked together to accomplish a common purpose. It is not essential that all persons acted exactly alike, nor it is necessary that they all possessed the same motive for entering the agreement. Direct proof of an agreement may not be available. A conspiracy may be disclosed by the circumstances or by the acts of the members. Therefore, you may infer the existence of an

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agreement from what you find the alleged members actually did, as well as from the words they used. Mere similarity of conduct among various persons, however, or the fact that they may have associated with one another and may have met or assembled together and discussed common aims and interests, does not establish the existence of a conspiracy unless the evidence tends to exclude the possibility that the persons were acting independently. If they acted similarly but independently of one another, without any agreement among them, then there would not be a conspiracy.
It is not necessary that the evidence show that all of the means or methods claimed by

Plaintiffs were agreed upon to carry out the alleged conspiracy; nor that all of the means or methods that were agreed upon were actually used or put into operation; nor that all the persons alleged to be members of the conspiracy actually were members. What the evidence must show is that the alleged conspiracy of two or more persons existed, that one or more of the means or methods alleged was used to carry out its purpose, and that Defendant(s) knowingly became a member of the conspiracy. In determining whether an agreement has been proved, you must view the evidence as a whole and not piecemeal. In considering the evidence, you first should determine whether or not the alleged conspiracy existed. If you conclude that the conspiracy did exist, you should next determine whether the each defendant knowingly became a member of that conspiracy with the intent to further its purposes. 8

ABA SECTION OF ANTITRUST LAW, ANTITRUST CASES, 2005 EDITION B-2 (2005).

MODEL

JURY

INSTRUCTIONS

IN

CIVIL

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Antitrust Jury Instruction 18 Antitrust Claims: Sherman Act Section 2 - Monopolization General Elements

Plaintiffs allege that they were injured by the Defendants' unlawful monopolization of the markets for top-tier men's professional tennis; player services for top-tier men's professional tennis; and sanctions for top-tier men's professional tennis tournaments. To prevail on this claim, Plaintiffs have the burden of proving each of the following elements by a preponderance of the evidence:
First, that the alleged market is a valid antitrust market; Second, that the ATP Tour possessed monopoly power in that market; Third, that the Defendants "willfully" acquired or maintained monopoly power in that market by engaging in anticompetitive conduct; and Fourth, that the Plaintiffs were injured in their business or property because of the Defendants' anticompetitive conduct.

If you find that Plaintiffs have failed to prove any of these elements as to any Defendant, then you must find for that Defendant and against Plaintiffs on 1his claim. If you find that Plaintiffs have proved each of these elements by a preponderance of the evidence, then you must find for Plaintiffs and against Defendants on this claim.

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Antitrust Jury Instruction 19 Antitrust Claims: Sherman Act Section 2 - Monopolization Monopoly Power Defined Monopoly power is the power to control prices and exclude competition in a relevant antitrust market. More precisely, a firm is a monopoly if it can profitably raise prices substantially above the competitive level for a significant period of time. To prove their monopolization claim, one of the elements Plaintiffs must prove is that the ATP Tour has monopoly power in a relevant antitrust market. However, monopoly ownership, in and of itself, is not unlawful. I will provide further instructions about how you may detelmine whether Plaintiffs have met their burden of proving monopoly power in a relevant market.

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Antitrust Jury Instruction 20 Antitrust Claims: Sherman Act Section 2 - Monopolization Existence ofMonopoly Power - Indirect Proof

If you find that Plaintiffs have proven a relevant. market, then you should determine whether the ATP Tour has monopoly power in that market. As I instructed you earlier, monopoly power is the power to control prices and exclude compdition in a relevant antitrust market. Plaintiffs have attempted to use evidence of the structure of the market to show that the ATP Tour has monopoly power. The evidence presented by the parties includes evidence of the ATP Tour's market share, alleged barriers to entry, and the number and size of other competitors. If this evidence establishes that the ATP Tour has the power to control prices and exclude competition in the relevant antitrust market(s), then you may conclude that the ATP Tour has monopoly power in that market(s).
Market Share

The first factor that you should consider is the ATP Tour's market share. Based on the evidence that you have heard about the ATP Tour's market share, you should determine the ATP Tour's market share as a percentage of total industry sales and other aspects of the relevant market(s). A market share above 50 percent may be sufficient to support an inference that Defendants have monopoly power, but in considering whether defendant has monopoly power it is also important to consider other aspects of the relevant market, such as market share trends, the existence of barriers to entry, the entry and exit by other companies, and the number and size of competitors. Along with defendants' market share, these factors should inform you as to whether defendants have monopoly power. The likelihood that a company has monopoly power is stronger the higher that company's share is above 50 percent. A market share below 50 percent is ordinarily not sufficient 10 support a conclusion that a defendant has monopoly power. However, if you find that the other evidence demonstrates that Defendants do, in fact, have monopoly power despite having a market share below 50 percent, you may conclude that defendants have monopoly power.
Barriers to Entry

You may also consider whether there are barriers to entry into the relevant market(s). Barriers to entry make it difficult for new competitors to entc:::r the relevant market in a meaningful and timely way. Barriers to entry might include rules and regulations, controls over necessary inputs, specialized marketing practices, and the reputation of the entities already participating in the market (or the brand name recognition of their products or services). Evidence of low or no entry barriers may be evidence that the ATP Tour does not have monopoly power, regardless of the ATP Tour's market share, because new competitors could enter easily if defendant attempted to raise prices for a substantial period of time. By contrast, evidence of high barriers to entry along with high market share may support an inference that defendant has monopoly power.
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Number and Size of Competitors
You may consider whether the ATP Tour's competitors are capable of effectively competing. In other words, you should consider whether the financial strength, market shares and number of competitors act as a check on the ATP Tour's ability to price its products or services. Ifthe ATP Tour's competitors are vigorous or have large or increasing market shares, this may be evidence that the ATP Tour lacks monopoly power. On the other hand, if you determine that the ATP Tour's competitors are weak or have small or declining market shares, this may support an inference that defendant has monopoly power.

Conclusion
If you find that the ATP Tour has monopoly power in the relevant market(s), then you must consider the remaining elements of this claim. If you find that the ATP Tour does not have monopoly power, then you must find for the ATP Tour and against the Plaintiffs on this claim.

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Antitrust Jury Instruction 21 Monopolization: Relevant Market - General

Plaintiffs must prove by a preponderance of the evidence that the defendants had monopoly power in a relevant market. Defining the relevant market is essential because you are required to make a judgment about whether defendants have monopoly power in a properly defined economic market. To make this judgment, you must be able to determine what, if any, economic forces restrain Defendants' freedom to restrict the supply of player services, restrict the supply of sanctions, set the prices paid to players or to restrict thl~ demand for player services and/or Defendants' freedom to set the prices charged to sponsors, broadcasters and fans or to restrict supply to those consumers. The most likely and most imponant restraining force will be actual and potential competition from other firms and their products. This includes all firms and products that act as restraints on defendants' power to set prices as they please. All the firms and products that exert this restraining force are considered to be within what is called the relevant market. There are two aspects you must consider in determining whether plaintiff has met its burden to prove the relevant market by a preponderance of the evidence. The first is the relevant product market; the second is the relevant geographic market.

·

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Antitrust Jury Instruction 22 Existence ofMonopoly Power - Direct Proof
If you find that Plaintiffs have proven a relevant market, then you should determine whether Defendants have monopoly power in that market. As I instmcted you earlier, monopoly power is the power to control prices and exclude competition in a relevant antitrust market. More precisely, a firm is a monopolist if it can profitably lower and maintain the prices it pays for its inputs substantially below the competitive level for a significant period of time, or if it can profitably raise and maintain the prices it charges for its outputs substantially above the competitive level for a significant period of time. Plaintiffs have the burden of proving that Defendants have the ability to profitably lower and maintain these input prices substantially below the competitive level for a significant period of time. Plaintiffs also have the burden of proving that Defendants have the ability to profitably raise and maintain these output prices substantially above the competitive level for a significant period of time. Plaintiffs must prove that Defendants have the power to do so by themselves that is, without the assistance of, and despite competition frOff" any existing or potential competitors. If Defendants attempted to maintain these prices above or below competitive levels, but would lose so much business to other competitors that the price increase would become unprofitable and would have to be withdrawn, then Defendants do not have monopoly power. Similarly, Plaintiffs must prove that Defendants have the ability to exclude competition. For example, if Defendants attempted to maintain prices above wmpetitive levels, but new competitors could enter the relevant market or existing competitors could expand their sales and take so much business that the price increase would become unprotitable and would have to be withdrawn, then Defendants do not have monopoly power. An ability to sell at higher prices or earn higher profit margins than other companies for similar goods or services over a long period of time may be evidence of monopoly power. However, the ability to earn high profit margins or a high rate of return does not necessarily mean that Defendants have monopoly power. Other factors may enable a company without monopoly power to sell at higher prices or earn higher profit margins than its competitors, such as the ability to offer superior products or services, the ability to maintain an efficient business operation, superior advertising or marketing, or unique structure of the industry. Evidence that Defendant would lose a substantial amount of sales if it raised prices substantially, or that the Defendants' profit margins were similar to or low compared to it~; competitors, erratic, and/or decreasing, might be evidence that the Defendants do not have monopoly power. If you find that Plaintiffs have proven that Defendants have monopoly power in the relevant market, then you must consider the remaining elements 0:: this claim. If you find that Defendants do not have monopoly power, then you must find for Defendants and against the Plaintiffs on this claim.

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Antitrust Jury Instruction 23 Antitrust Claims: Sherman Act Section 2 - Monopolization Wil((ul Acquisition or Maintenance ofMonopoly Power
The next element Plaintiffs must prove is that the ATP Tour willfully acquired or maintained monopoly power through anticompetitive acts or practic:es. Anticompetitive acts are acts, other than competition on the merits, that have the effect of preventing or excluding competition or frustrating the efforts of other companies to compete for customers within the relevant market(s). Harm to competition is to be distinguished from harm to a single competitor or group of competitors, which does not necessarily constitute harm, to competition. In addition, you should distinguish the acquisition or maintenance of monopoly power through anticompetitive acts from the acquisition or maintenance of monopoly power by supplying better products or services, possessing superior business skills, or because of luck, which is not lawful. Mere possession of monopoly power, if lawfully acquired, does not violate the antitrust laws. A monopolist may compete aggressively without violating the antitrust laws, and a monopolist may charge monopoly prices without violating the antitrust laws. A monopolist's conduct only becomes unlawful where it involves anticompetitive acts. The difference between anticompetitive conduct and conduct that has a legitimate business purpose can be difficult to determine. This is because all companies have a desire to increase their profits and increase their market share. These goals are an essential part of a competitive marketplace, and the antitrust laws do not make these goals - or the achievement of these goals - unlawful, as long as a company does not use anticompetitive means to achieve these goals. In determining whether the ATP Tour's conduct was anticompetitive or whether it was legitimate business conduct, you should determine whether th<:: conduct is consistent with competition on the merits, whether the conduct provides benefits to consumers, and whether the conduct would make business sense apart from any effect it has on excluding competition or harming competitors. For example, suppose there are five firms that make printen; for home computers and that these printers comprised a relevant product market. Suppose also that Firm A developed a more efficient manufacturing process that allowed it to sell profitably at a lower price than its competitors. If Firm A grew its market share and achieved monopoly power by selling profitably at a lower price, it would not be unlawful for Firm A to achieve monopoly power in this way. D