Cosmetic Gallery alleged that suppliers of salon beauty products boycotted it to prevent it from competing with Beauty Bar. The district court granted the defendants’ motion for summary judgment on the ground that Cosmetic Gallery hadn’t shown an unlawful concert of action among the defendants. The Third Circuit affirmed. Cosmetic Gallery, Inc. v. Schoeneman Corp., No. 05-3679 (3d Cir. July 20, 2007).
The decision turned on the plaintiff’s bootlegging ways. Cosmetic Gallery established a reputation for buying premium salon products — gels, sprays, and such, Blawgletter imagines — outside of normal channels and then reselling them cheap. Cosmetic Gallery’s practices upset the industry’s goal of quality and volume control, high prices, and cachet and explained why nobody wanted to do business with it. Nor did Cosmetic Gallery furnish any evidence that the defendants agreed to shun it.
Cosmetic Gallery applies in the summary judgment context statements in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), about requirements for pleading an antitrust conspiracy. But it doesn’t depart from pre-Twombly law, which demands evidence tending to exclude the possibility of non-conspiratorial, independent action. Twombly didn’t make a difference.
Barry Barnett
