Host International, Inc. v. MARKETPLACE, PHL, LLC, On Appeal from United States District Court for the Eastern…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2848
______________
HOST INTERNATIONAL, INC.,
Appellant
v.
MARKETPLACE, PHL, LLC,
______________
On Appeal from United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:19-cv-02036)
District Judge: Honorable John M. Gallagher
______________
Argued September 24, 2021
Before: CHAGARES, Chief Judge, HARDIMAN, and
MATEY, Circuit Judges.
(Filed: April 27, 2022)

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Thomas C. Goldstein [ARGUED]
Eric F. Citron
Goldstein & Russell, PC
7475 Wisconsin Avenue, Suite 850
Bethesda, MD 20814
Howard I. Langer
Edward Diver
Peter E. Leckman
Langer Grogan & Diver, PC
1717 Arch Street, Suite 4130
Philadelphia, PA 19103
R. Paul Yetter
Bryce L. Callahan
Yetter Coleman LLP
811 Main Street, Suite 4100
Houston, TX 77002
Counsel for Appellant
Angelo I. Amador
Restaurant Law Center
2055 L Street, NW, 7th Floor
Washington, DC 20036
Gabriel K. Gillett
Kelsey L. Stimple
Jenner & Block LLP
353 North Clark Street, Suite 4500
Chicago, IL 60654
Counsel for Restaurant Law Center, Amicus Curiae in
Support of Appellant

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Leslie E. John [ARGUED]
Jason A. Leckerman
Elizabeth P. Weissert
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Counsel for Appellee
______________
OPINION
______________
MATEY, Circuit Judge.
After winning a bid for retail concession space at
Philadelphia International Airport (“PHL”), Host
International, Inc. (“Host”) heard a common question: “Is
Pepsi okay?” Host decided that it was not and, eager to pour
what it pleased, filed an antitrust action. From that most
ordinary origin bubbles up the novel question of whether an
exclusive beverage agreement at an airport can be challenged
under the federal antitrust laws. We conclude that it cannot,
because Host lacks antitrust standing and has not adequately
pled a violation of Section 1 of the Sherman Act. So we will
affirm the District Court’s judgment.
I.
Host is a familiar face to travelers, operating food,
beverage, and merchandise concessions at over 120 airports
globally, including PHL. The City of Philadelphia owns PHL
and uses a private firm, MarketPlace, PHL, LLC
(“MarketPlace”), as landlord. PHL is a big operation, serving

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more than thirty million passengers each year, and producing
equally big food and beverage sales, more than $100M in 2016.
After a competitive bidding process, Host won two
concession spots at PHL, planning to open a coffee shop in one,
and a restaurant in the other. But negotiations between Host
and MarketPlace for a lease hit a wall when MarketPlace
insisted on a term allowing it to “enter into
agreements . . . granting . . . third-parties exclusive or semi-
exclusive rights to be sole providers of certain foods, beverages
or other types of products.” (App at 24.) That included a
“pouring-rights agreement” (“PRA”), “granting a beverage
manufacturer, bottler, distributor or other company (e.g., Pepsi
or Coca-Cola) the exclusive control over beverage products
advertised, sold and served at [PHL].” (App. at 24 (alteration
in original)). Host balked and demanded that the PRA be left
out. MarketPlace refused, and Host walked away from the deal
and into federal court.
Host’s Complaint sketches a “scheme to gain control
over the sale of beverages at PHL” by tying the PRA to leases
for commercial space. (App. at 14.) If successful, Host alleges,
MarketPlace would enjoy outsized profits “at the expense of
PHL consumers, competing beverage suppliers, and lessees of
concession and retail space at PHL.” (App. at 15.) Host also
alleges that MarketPlace would receive payoffs from a “big
soda company” courtesy of an exclusive pouring-rights
agreement. (App. at 16.)1 Host grounds those allegations in two
1 The company’s identity has since been publicly
revealed as PepsiCo. While PepsiCo is not a party here,
MarketPlace alleged “an exclusive third-party beverage
company” as one co-conspirator for the Section 1 conspiracy
claim.

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theories: 1) an unlawful tying arrangement in violation of
Section 1 of the Sherman Act; and 2) an illegal conspiracy and
agreement in restraint of trade, another Section 1 violation.2
MarketPlace moved to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(6). The District Court
held that Host had standing to bring its antitrust claims but
granted the motion with prejudice, finding Host failed to
adequately plead a relevant geographic market. Host timely
appealed, and we will affirm the District Court’s judgment.3
II.
Surviving a motion to dismiss requires “only enough
facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Further,
“[w]e accept as true the factual allegations in the complaint,
and draw all reasonable inferences in the plaintiff’s favor.”
Phila. Taxi, 886 F.3d at 338. But “we are not compelled to
2 Host does not appeal the District Court’s decision to
decline supplemental jurisdiction over a third claim for tortious
interference.
3 The District Court had jurisdiction under 28 U.S.C.
§ 1331 and 15 U.S.C. § 4. We have jurisdiction under 28
U.S.C. § 1291. “We exercise plenary review of the District
Court’s dismissal of the [Complaint],” Phila. Taxi Ass’n, Inc.
v. Uber Techs., Inc., 886 F.3d 332, 338 (3d Cir. 2018) (citation
omitted), and “may affirm on any basis supported by the
record, even if it departs from the District Court’s rationale,”
TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019)
(citation omitted). Host also moved for an injunction, (ECF
No. 50), but because we will affirm the dismissal of Host’s
Complaint, that motion is moot.

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accept ‘unsupported conclusions and unwarranted
inferences.’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007) (quoting Schuylkill Energy Res., Inc. v. Pa. Power &
Light Co., 113 F.3d 405, 417 (3d Cir. 1997)). As a result, we
draw on “judicial experience and common sense,” rather than
follow an attenuated chain of assumptions. Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Finally, while “it is inappropriate to apply Twombly’s
plausibility standard with extra bite in antitrust and other
complex cases,” W. Penn Allegheny Health Sys., Inc. v.
UPMC, 627 F.3d 85, 98 (3d Cir. 2010), we need not “accept as
true a legal conclusion couched as a factual allegation,”
Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with
approval in Twombly, 550 U.S. at 555–56); Iqbal, 556 U.S. at
678–79 (quoting Twombly, 550 U.S. at 555).
A. Host Fails to Plead Antitrust Standing
Despite the sweeping commands of the Sherman and
Clayton Acts, courts have read a limit into their text.4 So while
4 About four decades ago, around 100 years after the
Sherman Act became law, the Supreme Court “observed, the
lower federal courts have been ‘virtually unanimous in
concluding that Congress did not intend the antitrust laws to
provide a remedy in damages for all injuries that might
conceivably be traced to an antitrust violation.’” Associated
Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S.
519, 534 (1983) (“AGC”) (quoting Hawaii v. Standard Oil
Co., 405 U.S. 251, 263 n.14 (1972)). But that conclusion “is
inferred largely from the perception that the courts construing
Section 7 between 1890 and 1914 perceived such a
congressional intention and implemented it.” John F. Hart,

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Section 4 of the Clayton Act permits enforcement of the
Sherman Act through civil suits for treble damages by “any
person who shall be injured in his business or property,” 15
U.S.C. § 15, courts have decided that not every person may
sue. See Steamfitters Loc. Union No. 420 Welfare Fund v.
Philip Morris, Inc., 171 F.3d 912, 922 (3d Cir. 1999) (citing
Blue Shield of Virginia v. McCready, 457 U.S. 465, 477
(1982)). Instead, the cause of action is subject to an additional,
a-textual requirement known as “antitrust standing.”5 See
Standing Doctrine in Antitrust Damage Suits, 1890-1975:
Statutory Exegesis, Innovation, and the Influence of Doctrinal
History, 59 Tenn. L. Rev. 191, 255–56 (1992). So too with
Section 4 of the Clayton Act’s direct-injury rule, which
“depends in turn on the proposition that the courts had adopted
such a restriction between 1890 and 1914.” Id. In other words,
because courts began to stray from the ordinary best meaning
of the statutes, the courts concluded their preferred reading
reflected the bills passed by Congress and signed into law.
5 A theory often “stated elliptically and without
analytical precision,” meaning “[m]any of the cases cannot be
reconciled.” A. Douglas Melamed et al., Antitrust Law and
Trade Regulation: Cases and Materials 1173 (7th ed. 2018).
Leaving us with “a murky and mushy analytical framework
for . . . the standing of a private antitrust plaintiff.” Stephen D.
Susman, Standing in Private Antitrust Cases: Where is the
Supreme Court Going?, 52 Antitrust L.J. 465, 467 (1983). But
see Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 126–28 (2014) (In AGC, “we sought to ‘ascertain,’
as a matter of statutory interpretation, the ‘scope of the private
remedy created by’ Congress in § 4 of the Clayton Act
. . . . Later decisions confirm that [AGC] rested on statutory,

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Ethypharm S.A. France v. Abbotts Labs., 707 F.3d 223, 232
(3d Cir. 2013) (quoting City of Pittsburgh v. W. Penn Power
Co., 147 F.3d 256, 264 (3d Cir. 1998)). While the name echoes
the familiar formulation of Article III, the judicially imposed
requirement of antitrust standing is far more
limiting. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace
Corp., 995 F.2d 425, 429 (3d Cir. 1993). So even though
“‘[h]arm to the antitrust plaintiff is sufficient to satisfy the
constitutional standing requirement of injury in fact,’ courts
must also consider ‘whether the plaintiff is a proper party to
bring a private antitrust action.’” Phila. Taxi, 886 F.3d at 343
(quoting AGC, 459 U.S. at 535 n.31).
Naturally, determining who is a “proper party” is
complicated by a consideration of generalized concepts like
“foreseeability and proximate cause, directness of injury,
certainty of damages and privity of contract.” Gulfstream, 995
F.2d at 429 (quoting AGC, 459 U.S. at 532–33). And so courts
whipped up a list of factors:
(1) the causal connection between the antitrust
violation and the harm to the plaintiff and the
intent by the defendant to cause that harm, with
neither factor alone conferring standing;
(2) whether the plaintiff’s alleged injury is of the
type for which the antitrust laws were intended
to provide redress; (3) the directness of the
injury, which addresses the concerns that liberal
application of standing principles might produce
speculative claims; (4) the existence of more
direct victims of the alleged antitrust violations;
not ‘prudential,’ considerations.” (quoting AGC, 459 U.S. at
529)).

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and (5) the potential for duplicative recovery or
complex apportionment of damages.
In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144,
1165–66 (3d Cir. 1993) (citing AGC, 459 U.S. at 545).6 But we
need not pore over the list, as one, the absence of antitrust
injury, is enough to affirm the District Court’s judgment.
1. There is No Antitrust Injury on These Facts
“The second [AGC] factor, antitrust injury, ‘is a
necessary . . . condition of antitrust standing.’ If it is lacking,
[a court] need not address the remaining AGC
factors.” Ethypharm, 707 F.3d at 233 (quoting Barton &
Pittinos, Inc. v. SmithKline Beecham Corp., 118 F.3d 178, 182
(3d Cir. 1997)). We start our search there, looking for an
“injury of the type the antitrust laws were intended to prevent
and that flows from that which makes defendant[’s] acts
unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429
6 Determining when to dive into this analysis is
similarly murky. Compare Hanover 3201 Realty, LLC v. Vill.
Supermarkets, Inc., 806 F.3d 162, 171 (3d Cir. 2015) (“We
begin with antitrust standing.”), with Lifewatch Servs. Inc. v.
Highmark Inc., 902 F.3d 323, 341 (3d Cir. 2018) (addressing
antitrust standing after addressing the pled antitrust violation).
But rather than getting lost, courts often “assume the existence
of a violation and then ask whether the . . . standing elements
are shown.” Phillip E. Areeda & Herbert Hovenkamp,
Antitrust Law: An Analysis of Antitrust Principles and Their
Application, ¶ 335f (4th ed. 2014). And because we can
dismiss solely for lack of antitrust standing, we begin there. See
W. Penn, 147 F.3d at 269 (affirming the district court’s
dismissal for lack of antitrust standing).

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U.S. 477, 489 (1977). Somewhat circular, but it means the
“challenged conduct affected the prices, quantity or quality of
goods or services, not just [the plaintiff’s] own
welfare.” Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641
(3d Cir. 1996) (quotations omitted). All of which “aims to
protect competition, not competitors,” consistent with the
judicial gloss on the antitrust laws. Id. And the injury required
for antitrust standing must flow from the unlawful nature of
defendants’ acts. See 15 U.S.C. § 15(a).
Accepting Host’s argument, the District Court reasoned
that “the alleged antitrust injury” is “exclusion from PHL.”
(App. at 9.) But Host was not excluded; Host chose to walk
away from the table because it did not like the lease terms
MarketPlace offered. And the conclusion that Host pled a
plausible antitrust injury stretches the boundaries of antitrust
law too far. First, because a breakdown in contract negotiations
is outside the Sherman Act’s scope; second, because injury to
competitors, rather than to competition, is beyond the law’s
sphere.
i. Failure to Secure Preferred Contractual Terms
is Not an Antitrust Injury
Begin with the narrow contours of Host’s claim.
MarketPlace selected Host to develop retail space and offered
a proposed lease. Host did not like the terms and, weighing its
options, declined the offer. It is a scenario that plays out across
the nation daily, in transactions big and small. But it is not an
antitrust injury because competition has not been suppressed.
Host has not been excluded from any market nor forced to
purchase non-alcoholic beverages from anyone.

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True, refusing to deal can sometimes establish an
antitrust claim under Section 2.7 Likewise, a group decision
among competitors to boycott a firm might constitute a claim
under Section 1. And a host of common law claims sounding
in contract, quasi-contract, and tort could come into play. See
JetAway Aviation, LLC v. Bd. of Cty. Comm’rs, 754 F.3d 824,
855 (10th Cir. 2014) (per curiam) (Tymkovich, J., concurring);
E. Food Servs., Inc. v. Pontifical Catholic Univ. Servs. Ass’n,
Inc., 357 F.3d 1, 9 (1st Cir. 2004).
But Host seeks something novel: recognition that failing
to contract for commercial space states a Section 1 claim. We
decline that invitation. An objectionable term in a commercial
agreement, without more, is not an antitrust violation because
“[d]espite [Section 1’s] seemingly absolute language,” only
unreasonable agreements in restraint of trade are antitrust
violations under the Sherman Act. W. Penn, 627 F.3d at 99
(citations omitted). Host’s Complaint alleges how the
exclusive beverage agreement and the PRA are undesirable,
but not how they are unreasonable restraints. Host surely
prefers a broader set of options for its sublessees, but that does
not create a duty on MarketPlace because “[a]s a general rule,
businesses are free to choose the parties with whom they will
deal, as well as the prices, terms, and conditions of that
dealing.” See Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc.,
7 But only among competitors, and only if the
parties have a history of dealing paired with facts suggesting
“a willingness to forsake short-term profits to achieve an
anticompetitive end.” Verizon Commc’ns Inc. v. L. Offs. of
Curtis V. Trinko, LLP, 540 U.S. 398, 409 (2004) (citing Aspen
Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585
(1985)).

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555 U.S. 438, 448 (2009). As a result, Host does not have an
antitrust injury sufficient to confer standing.
ii. Host Alleges Harm Only to Itself
Refusing to agree to a contract also cannot state a
plausible Section 1 injury because it is now “axiomatic that the
antitrust laws were passed for ‘the protection of competition,
not competitors.’” Brooke Grp. Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209, 224 (1993) (quoting Brown Shoe
Co. v. United States, 370 U.S. 294, 320 (1962)). Even if that
axiom comes from the courts, not Congress, it is still a binding
limitation on our review.
The District Court recognized, “[d]espite references of
potential harm to others, . . . Host seeks remedy for its injury
alone, and that injury is its exclusion from PHL.” (App. at 9.)
But, once again, pleading an antitrust injury requires a plaintiff
to “prove that [the] challenged conduct affected the prices,
quantity or quality of goods or services, not just [its] own
welfare.” Mathews, 87 F.3d at 641 (quotations omitted); see
also Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394, 403
(3d Cir. 2016) (citing W. Penn, 627 F.3d at 100).8 Host
8 Host’s speculations do not alter that conclusion. The
Complaint references, anecdotally, that a pouring rights
agreement “at one airport, . . . resulted in the exclusion of three
of four premium brands of bottled water.” (App. at 21). And
“[i]n another market study, 17% of respondents indicated it is
essential that the water they purchase be natural spring water.”
(App. at 22.) Taking both in the light most favorable to Host,
we can infer: 1) that a market study was conducted at some
airport, somewhere, sometime; and 2) in a separate study,
around 1.7 of every ten consumers—perhaps at airports,

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“estimates [under the PRA] . . . costs at its existing units would
increase by over 30%,” noting, for example, “the price increase
for regular non-premium water is more than 40% for a smaller
serving size.” (App. at 21.) But that is harm only to Host’s
“own welfare,” which is not our focus. Mathews, 87 F.3d at
641. Host fails to plead facts tending to show that consumer
prices would increase under the PRA because it does not
follow that Host’s costs must be passed on to consumers. The
PRA might just as easily secure lower or discounted beverage
prices for smaller subtenants who could not access volume
discounts and decrease prices for consumers. See Eisai, 821
F.3d at 403 (“[E]xclusive dealing arrangements . . . can also
offer consumers various economic benefits, such as assuring
them the availability of supply and price stability.”); Race
Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 76
(3d Cir. 2010) (“[I]t is widely recognized that in many
circumstances [exclusive dealing arrangements] may be highly
efficient—to assure supply, price stability, outlets, investment,
best efforts or the like—and pose no competitive threat at all.”)
(quoting E. Food Servs., 357 F.3d at 8)). And what is more,
Host is not even required to purchase non-alcoholic beverages
under the PRA.
Host also contends that “MarketPlace and [PHL] have
attempted to cause and have in fact caused . . . competitive
harm . . . potentially to other lessors/sublessors at PHL, as well
as to competing beverage suppliers shut out of the market
under pouring rights and consumers of beverages and other
products at PHL.” (App. at 28 (emphasis added).) But Host’s
perhaps not— really liked spring water. We cannot infer that
the quality of non-alcoholic beverages at PHL under the PRA
would not be comparable. Or much else for that matter.

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Complaint lacks any facts alleging harm to other PHL tenants
and potential harms do not suffice. To recover treble damages
under Section 4 of the Clayton Act, “a plaintiff must make
some showing of actual injury attributable to something the
antitrust laws were designed to prevent,” not potential injury.
J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557,
558 (1981) (emphasis added). And most importantly,
competing beverage suppliers were not “shut out” of the
market unilaterally; they participated in a competitive bidding
process that PepsiCo simply won.9
Sailing a straight course through the murky waters of
antitrust injury challenges courts to avoid the siren songs of
illusory harm. That is why the doctrine “requires every plaintiff
to show that its loss comes from acts that reduce output or raise
prices to consumers” in the relevant market. Chicago Prof’l
Sports Ltd. P’ship v. Nat’l Basketball Ass’n, 961 F.2d 667, 670
(7th Cir. 1992) (collecting cases). Host does not and, for that
reason, cannot state a claim for relief.
9 It is telling that the same competitive bidding process
that resulted in the PRA also awarded Host the two retail
concession spaces, (App. at 24–25) a process Host agrees was
competitive. (Opening Br. at 15.) Understandably, as “[i]t is
well established that competition among businesses to serve as
an exclusive supplier should actually be encouraged.” Race
Tires, 614 F.3d at 83; see also Menasha Corp. v. News Am.
Mktg. In-Store, Inc., 354 F.3d 661, 663 (7th Cir. 2004)
(competition to be an exclusive supplier “is a vital form of
rivalry, and often the most powerful one, which the antitrust
laws encourage rather than suppress.”).

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B. The Tying Claim
While Host’s failure to plead antitrust standing defeats
both its Section 1 claims,10 we note a deeper problem with
using a “tying theory” on these facts. Tying refers to “selling
one good (the tying product) on the condition that the buyer
also purchase another separate good (the tied product).” Race
Tires, 614 F.3d at 75 (quoting Harrison Aire, Inc. v. Aerostar
Int’l, Inc., 423 F.3d 374, 385 (3d Cir. 2005)).11
That is not the case here. Host strains to argue that a
lease provision limiting the use of MarketPlace’s property
forces Host’s sublessees to purchase something they may not
want. But we “are not bound to accept as true a legal
conclusion couched as a factual allegation.” Twombly, 550
U.S. at 555 (quoting Papasan, 478 U.S. at 286). It also requires
Olympic-level gymnastics to bound across the floor from a
publicly bid leased space to a tying agreement. Among the
leaps: Host is not “purchasing” non-alcoholic beverages (when
instead its tenants might); Host is not “forced” to purchase non-
alcoholic beverages (when instead the PRA only limits Host’s
sublessees’ choice of vendors). Thankfully, “we are not
10 Host also alleged that MarketPlace’s conduct violated
Section 1 of the Sherman Act because it constituted an
unlawful restraint of trade. But because Host has not
adequately alleged an antitrust injury, Host’s generic Section 1
claim fails.
11 We have viewed tying cases to implicate rule of
reason analysis. Town Sound & Custom Tops, Inc. v. Chrysler
Motors Corp., 959 F.2d 468, 477, 482 (3d Cir. 1992) (en banc).
But because Host has not proven the existence of a tie, we need
not address whether the District Court erred in not analyzing
the claim under the rule of reason.

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compelled to accept ‘unsupported conclusions and
unwarranted inferences,’” Baraka, 481 F.3d at 195 (quoting
Schuylkill, 113 F.3d at 417) and can rely instead on ordinary
understanding, Iqbal, 556 U.S. at 679. Understanding that
draws on the “essential characteristic of an invalid tying
arrangement,” namely “the seller’s exploitation of its control
over the tying product to force the buyer into the purchase of a
tied product.” Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466
U.S. 2, 12 (1984), abrogated on other grounds by Ill. Tool
Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006).
At bottom, Host alleges the proposed lease demands
purchasing non-alcoholic beverages under the PRA. If that
sounds familiar, it is, because it again recasts the PRA contract
restriction as a product. But even if it were, Host would be
obligated to “purchase” the tied product because of the lease
agreement, not because of MarketPlace’s market power over
the tying product. “The flaw in this argument is that the
essential element of coercion on the part of the product seller
is absent completely from the facts.” Aquatherm Indus., Inc. v.
Fla. Power & Light Co., 145 F.3d 1258, 1263 (11th Cir. 1998).
If anything, that is an issue of contract law rather than antitrust
law. MarketPlace’s control over the non-alcoholic beverage
suppliers at PHL does not stem from market power; it stems
from its role as a landlord.12 See Queen City Pizza, Inc. v.
12 See E. Food Servs., 357 F.3d at 4 (“The university,
like most landlords, controls who may set up shop on its
premises. It could act as the sole on-campus supplier of food
and beverages, allow multiple suppliers, or give exclusive
access to one supplier.”); JetAway, 754 F.3d at 857–58
(Tymkovich, J., concurring) (“No one disputes that the Airport
may control access to its own premises, . . . [and] strictly

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Domino’s Pizza, Inc., 124 F.3d 430, 441 (3d Cir. 1997).
Antitrust plaintiffs cannot simply frame their contract claims
in a clever way to pursue treble damages.13
control its concessionaires and the services they supply.”);
see also Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1193 (10th Cir. 2009) (“[A] resort has no obligation
under the antitrust laws to allow competitive suppliers of
ancillary services on its property. A theme park, for example,
does not have to permit third parties to open restaurants, hotels,
gift shops, or other facilities within the park.”).
13 An illegal tying scheme requires that “the seller
possesses market power in the tying product market.” Town
Sound, 959 F.2d at 477. The necessary market power “is the
power to force a purchaser to do something that he would not
do in a competitive market” and can be “inferred from the
seller’s possession of a predominant share of the market.”
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451,
464 (1992) (quotations omitted). “[T]he court calculates the
market share in the relevant product markets” from the
geographic market, the “area in which a potential buyer may
rationally look for the goods or services he seeks.” Gordon v.
Lewistown Hosp., 423 F.3d 184, 212 (3d Cir. 2005). But
because Host has failed to plead that MarketPlace “forced”
Host to “purchase” a separate “product,” we need not address
whether a single airport can constitute a geographic market.
See Town Sound, 959 F.2d at 477. Federal courts are not
economists, and we should avoid an unnecessary “ramble
through the wilds of economic theory.” United States v. Topco
Assocs., Inc., 405 U.S. 596, 609 n.10 (1972).

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III.
Contractual negotiations began the relationship between
Host and Marketplace, and contract, not antitrust, is where that
relationship ends. The antitrust laws prevent the consequence
of an antitrust injury; they do not create one. Whatever remedy
exists for Host’s disappointment must lie outside the antitrust
law which “is not intended to be as available as an over-the-
counter cold remedy, because were its heavy power brought
into play too readily it would not safeguard competition, but
destroy it.” Capital Imaging Assocs., P.C. v. Mohawk Valley
Med. Assocs., Inc., 996 F.2d 537, 539 (2d Cir. 1993). For that
reason, we will affirm the judgment of the District Court
dismissing the Complaint with prejudice.

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