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Click here for the full text of this decision FACTS:In November 1999, Cherry Graziosi purchased the domain names “tunicamiss.com” and “tunicamississippi.com” for roughly $140 from the domain name registrar Network Solutions Inc. Shortly thereafter, Graziosi leased those domain names to Circus Circus Mississippi Inc., doing business as Gold Strike Casino Resort for one year, at a rate of $2,000 per month. No Web site was established at either of the domain names; rather, a user who entered either of the domain names into his or her Internet browser was, under the terms of the lease, automatically redirected to Gold Strike’s website, goldstrikemississippi.com. When the lease expired, Gold Strike continued to lease the domain names from Graziosi on an exclusive, month-to-month basis for $5,000 per month. In 2000, Graziosi formed Tunica Web Advertising Inc. (TWA). Graziosi was the CEO and sole shareholder of TWA. TWA acquired the domain name “tunica.com” from another company for approximately $20,000, and in November 2000, TWA leased “tunica.com” to Gold Strike for 90 days for $3,000 per month. Gold Strike continued to lease “tunica.com” from TWA through April 30, 2001. The Tunica County Tourism Commission (TCTC) filed suit against Graziosi. In its suit, TCTC claimed that Graziosi was a “cybersquatter” � one who purchases a domain name with the hope of profiting from another person’s trademark � and that she had no right to own “tunicamiss.com” or “tunicamississippi.com.” The TCTC and Graziosi eventually settled the suit. As part of the settlement, Graziosi transferred her rights in “tunicamiss.com” and “tunicamississippi.com” to the TCTC and the TCTC relinquished all claims to the domain name “tunica.com.” In May 2001, TWA appeared before the TCTC and proposed to lease “tunica.com” collectively to all of the casinos in Tunica County, Miss. Under the terms of TWA’s proposal, each casino in Tunica County would pay TWA $2,500 per month, and in return all visitors to “tunica.com” would be redirected to the TCTC’s website, which already featured information about all of the casinos. The casinos would also collectively have the right of first refusal to purchase “tunica.com.” Karen Sock, a TCTC member and the general manager of the Grand Casino Tunica, referred the matter to the Tunica Casino Operators Association (TCOA), a trade association formed by the Tunica casinos. On May 30, 2001, the TCOA held a meeting at which the members discussed “tunica.com” and TWA’s proposal. None of the casinos agreed to TWA’s proposal, and the casinos apparently reached a consensus not to utilize jointly the “tunica.com” domain name. Graziosi and TWA contended that the May 30, 2001, meeting also gave rise to an agreement among the casinos to refuse to deal with TWA on any terms. Shortly after the TCOA meeting, Clyde Callicott, the marketing director for Gold Strike, allegedly told Graziosi that the casinos had entered into a gentlemen’s agreement to not do business with TWA, either individually or as a group. On June 6, 2001, Graziosi received an e-mail from Callicott, stating that he had been instructed to terminate Gold Strike’s existing relationship with TWA. Graziosi and TWA suggested that the motivation for the casinos’ refusal to deal with TWA was to cause the value of “tunica.com” to decline. After the May 30, 2001 meeting, TWA changed its business model. It created a Web site at “tunica.com” and hoped to generate revenue through casino advertising or commissions from online hotel bookings. With this new business model in place, TWA approached a number of the casinos individually with proposals to advertise on “tunica.com,” but none of the casinos chose to advertise on the site. Graziosi and TWA sued the casinos in 2003, asserting state and federal antitrust claims against them, the TCTC and the TCOA, as well as several state causes of action not relevant to its federal case. On Nov. 24, 2004, the district court dismissed the antitrust claims against the TCTC, holding that the TCTC was immune from antitrust liability under the Local Government Antitrust Act, 15 U.S.C. �35(a) (the LGAA), and the Parker state-action immunity doctrine. The court rejected the other defendants’ claims that they were entitled to immunity from the plaintiffs’ antitrust claims under the LGAA, the Parker doctrine and the Noerr-Pennington doctrine. TCOA and Gold Strike were later dismissed from the suit by agreement of the parties. On Dec. 19, 2005, the district court granted summary judgment in favor of the remaining defendants on TWA’s antitrust claims. The district court found that: 1. the casinos’ alleged conduct could not amount to a per se violation of �1 of the Sherman Act; 2. any concerted refusal to deal with TWA arising from the May 30, 2001, TCOA meeting was not an unreasonable agreement in restraint of trade, because it was a joint response to a joint proposal and because TWA did not produce sufficient evidence to show any anticompetitive effect; and 3. TWA did not show that the casinos’ post-May 30, 2001, refusals to deal with TWA and “tunica.com” were the result of concerted action, in part because TWA did not provide the details of any of its post-May 30, 2001 proposals to the casinos. Graziosi and TWA appealed. HOLDING:Reversed and remanded. Section 1 of the Sherman Antitrust Act, 15 U.S.C. �1, provides: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” To state a claim under �1 of the Sherman Act, the court stated that a plaintiff must show that the defendants engaged in a conspiracy that restrained trade in a particular market. A necessary ingredient of any �1 conspiracy, the court stated, is a showing of concerted action on the part of the defendants. A plaintiff can submit direct or circumstantial evidence, the court stated. The court agreed with the district court that the casinos’ initial decision to reject TWA’s $2,500 per-casino-per-month proposal was not an unreasonable agreement in restraint of trade. But the court went on to note that TWA submitted evidence tending to prove that the casinos did more than simply reject TWA’s joint offer. TWA’s evidence of a gentleman’s agreement, the court stated, was, if credited, direct evidence that the casinos agreed not only to reject TWA’s initial proposal but also to refuse to do business with TWA and “tunica.com” individually. Moreover, the court stated that such evidence created an issue of fact as to whether the casinos engaged in concerted action. The court held that the district court erred when it found that TWA’s proffered evidence did not create any issue of fact on the element of concerted action. The court next considered TWA s argument that the casinos’ refusal to do business with it amounts to a horizontal boycott that is per se unlawful under �1. Under the rule of reason, the court stated, an agreement will be found unlawful only if the plaintiff shows that it actually had an adverse effect on competition. But the court stated that some types of agreements are almost inherently anticompetitive. Certain group boycotts or concerted refusals to deal can be per se violations of �1. The casinos’ alleged agreement to not do business with TWA, the court stated, was clearly a horizontal agreement, as the casinos were direct competitors of one another. The court concluded that the district court erred in finding that the per se rule only applied in situations where one of the conspirators was a direct competitor of the victim. Instead, to determine the applicability of the per se rule in this case, the court held that the district court should on remand analyze the following factors: 1. whether the casinos held a dominant position in the relevant market; 2. whether the casinos controlled access to an element necessary to enable TWA to compete; and 3. whether plausible arguments concerning pro-competitive effects existed. OPINION:Dennis, J.; Davis, Dennis and Prado, JJ.

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