United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 95-2976

_____________ Community Publishers, Inc.; Shearin, * doing business as Shearin & Company * Realtors, Inc., * * Plaintiffs - Appellees, * * v. * * DR Partners, doing business as Donrey * Media Group; Thomson Newspapers, * Inc.; Northwest Arkansas Times, * Appeals from the United States * District Court for the Defendants, * Western District of Arkansas. * NAT, L.C., * * Defendant - Appellant, * * Little Rock Newspaper, doing business * as Arkansas Democrat-Gazette, Inc., * * Movant. *

---------------------------- * * United States of America, * * Plaintiff - Appellee, * * v. * * NAT, Inc., *-2- * Defendant - Appellant, * * DR Partners, doing business as Donrey * Media Group, Inc., * * Defendants. *

------------------------------- * * Freedom Communications, Inc., * * Amicus Curiae. *

___________ No. 95-3165

___________ Community Publishers, Inc.; Shearin, * doing business as Shearin & Company * Realtors, Inc., * * Plaintiffs - Appellees, * * v. * * DR Partners, doing business as Donrey * Media Group, * * Defendant - Appellant, * * Thomson Newspapers, Inc.; Northwest * Arkansas Times; NAT, L.C., * * Defendants, * * Little Rock Newspaper, doing business *-3-

as Arkansas Democrat-Gazette, Inc., * * Movant. *

--------------------------- * * United States of America, * * Plaintiff - Appellee, * * v. * * NAT, Inc.; DR Partners, doing business * as Donrey Media Group, Inc., * * Defendants. *

------------------------------- * * Freedom Communications, Inc., * * Amicus Curiae. *

___________ No. 95-3355

___________ Community Publishers, Inc.; Shearin, * doing business as Shearin & Company * Realtors, Inc., * * Plaintiffs - Appellees, * * v. * * DR Partners, doing business as Donrey * Media Group; Thomson Newspapers, * Inc., Northwest Arkansas Times, *-4- * Defendants, * * NAT, L.C., * * Defendant - Appellant, * * Little Rock Newspaper, doing business * as Arkansas Democrat-Gazette, Inc., * * Movant. *

--------------------------- * * United States of America, * * Plaintiff, * * v. * * NAT, Inc., DR Partners, doing business * as Donrey Media Group, Inc., * * Defendants. *

------------------------------- * * Freedom Communications, Inc., * * Amicus Curiae. *

___________ No. 95-3358

___________ Community Publishers, Inc.; Shearin, * doing business as Shearin & Company * Realtors, Inc., *-5- * Plaintiffs - Appellees, * * v. * * DR Partners, doing business as Donrey * Media Group, * * Defendant - Appellant, * * Thomson Newspapers, Inc.; Northwest * Arkansas Times; NAT, L.C., * * Defendants, * * Little Rock Newspaper, doing business * as Arkansas Democrat-Gazette, Inc., * * Movant. *

--------------------------- * * United States of America, * * Plaintiff, * * v. * * NAT, Inc.; DR Partners, doing business * as Donrey Media Group, Inc., * * Defendants. *

------------------------------- * * Freedom Communications, Inc., * * Amicus Curiae. *The Honorable H. Franklin Waters, United States District Judge for t he Western 1 District of Arkansas. The opinion of the court is reported at Community Publishers , Inc. v. Donrey Corp. ,892 F. Supp. 1146 (W.D. Ark. 1995). The United States also filed a Section 7 case against NAT and Donrey. Th e 2 District Court consolidated the cases for trial. The private plaintiffs have filed a motion to dismiss these appeals as moot. That 3 motionis denied. An issue raised by NAT and Donrey is whether the District Court erredin awarding attorney fees and costs to the private plaintiffs. The award of fees and costs can be sustained only if the pr ivate parties are found to be prevailing parties. -6- _____________ Submitted: April 11, 1996 Filed: March 25, 1998

_____________ Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

_____________ BOWMAN, Circuit Judge. NAT, L.C. (NAT) and DR Partners d/b/a Donrey Media Gro up (Donrey) appeal from the judgment and amended judgment of the District Court. The case concerns 1 the lawfulness of a newspaper acquisition. After a bench trial, the court (1) held that NAT's acquisition of the No rthwest Arkansas Times (the Times) violated Section 7 of the Clayton Act, 15 U.S.C. § 18, (2) ordered NAT and Thomson Newspapers, Inc

. (Thomson), from which NAT had purchased the Times, to rescind the transaction, and (3) awarded attorney fees and costs to Community Publishers, Inc. (CPI) and Shearin Inc. d/b/a Shearin & Company Realtors (Shearin), the priva te plaintiffs who challenged the acquisition. Thomson's motion to stay the r escission order pending the disposition 2 of these appeals having been denied, rescission has taken place and Thomson has sold the Times to a third party. 3See Cl ayton Act § 16, 15 U.S.C. § 26; Fed. R. Civ. P. 54(d). We must decide th e

various arguments for reversal asserted by NAT and Donrey before we can s ay whether the private plaintiffs are in fact, at the end of the day , prevailing parties. These appeals therefore are not moot. The standing of the United States to maintain its Section 7 action i s 4 unchallenged. Resolution of this issue affects only the private plaintiffs. -7- Plaintiff s' theory of the case, which the findings and conclusions of the District Cour t fully support, is that the acquisition of the Times by NAT likely would hav e antico mpetitive effects in the local daily newspaper business, because the acquisition would result in NAT and Donrey, both under the common control of Jack Stephens and his family, owning both the Time s and the Morning News of Northwest Arkansas (the Morning News), the two leading local daily newspapers, together having a dominant market share, in the relevant geographic mar ket. Seeking reversal and dismissal of the complain t, NAT and Donrey challenge virtually all the key aspects of the Distric t Court 's findings and conclusions. We shall address seriatim the issues raised. Th e facts of the case are described in detail in the District Court's lengthyopinion. We shall discuss them only to the extent appropriate to our resolution of the issues.
I. Ap pellants argue the District Court erred in determining that the privat e plaintiffs, CPI and Shearin, suffered antitrust injury. We disagree. 4 CPI, which asserted standing as a competitor of the Times, was required to show injury or "loss of profits from practices forbidden by the antitrust laws." Cargill, Inc. v. Monfortof Colo., Inc. , 479 U.S. 104, 116 (1986). Though " Cargillhas impose d signific ant

barriers to competitor attempts to enjoin merger transactions," Phototro n Corp. v. Eastman Kodak Co. , 842 F.2d 95, 102 (5th Cir.), cert. denied , 486 U.S. 1023 (1988), here the District Court found that CPI's profits w ere threatened in various ways-8-

by the anticompetitive aspects of the challenged acquisition of the Times. See 89 2 F. Supp. 1166-67. Having reviewed the record, we cannot say the District Court' s findings on this point are clearly erroneous. We therefore must agree with the District Court tha t "this is one of those rare cases [in which] a competitor plaintiff ha s successfully proved a threat of antitrust injury." Id.
As t o Shearin, the District Court found a threat of antitrust injury based upo n Sheari n's status as a purchaser of advertising in the Morning News. Shearin allege d that a combination of the Times and the Morning News would raise advertising rates as a result of the two newspapers' dominant market position. The threat of highe r prices resulting from dominant market power being a pr imary concern of Section 7, the District Court correctly determined that Shearin had shown antitrust injury.
II. NAT and Donrey contend the District Court erred in aggregating their interests for the purpose of determining whether the acquisition violated Section 7. Appellants argue that because the Stephens family inter ests that own NAT are somewhat different fromthe array of Stephens family interests that own Donrey, and no single famil y me mber or set of family members possesses more than a minority interest in eithe r NAT or Donrey , there is no reason to believe that NAT and Donrey would act i n concert to dominate the newspaper business in northwest Arkans as. The District Court dete rmined, however, based on a careful consideration of the evidence, that th e Stephens family could be expected to act in a coordinated way to maximize the wealth of the family as a whole. Specifically, the court found "tha t the various members of the Stephens family do not pursue separate interests or compete against each other in any way." Id. at 1170-71. The court's findings on this point are not clearly erroneous

. Thus, it was proper for the District Court to aggregate the intere sts of NAT and Donrey for purposes of Section 7 analysis. Cf. Copperweld Corp. v. Independence Tub e Corp. , 467 U.S. 752, 771 (1984) (holding that two or more legally separate and-9-

distinct, although related, entit ies are not distinct for purposes of conspiring under the Sher man Act because they are not "independent sources of economic power . .

. pursuing separate interests").
III. Appellants also contend the District Court erred in defining the relevan t geographic market for purposes of Section 7. The court defined the relevan t geograp hic market as northwest Arkansas, encompassing Washington and Bento n Counties. The

court found that the term "Northwest Arkansas" has come to stand for "an increasingly integrated economic, social and po litical unit which just happens to be loca tedin the northwest corner of the state." 892 F. Supp. at 1157. In addition, th e court found that the Times and the Morning Ne ws strongly compete against each other for readers and advertisers in Washington County, and that the Benton County Daily Record ( the Daily Record), published by CPI, and the Morning News compete with one another in Benton County. We h ave reviewed the record and conclude we cannot say a ny of these findings are clearly erroneous. Accordingly, the District Court' s definition of the relevant geographic market must stand.
IV. Appellants argue the District Court erred in defining the product market fo r purposes of Section 7. The court found that the relevant product market for antitrust purposes i s the local daily newspaper market. This is, as the court also found, in fact two markets: one for readers and one for advertisers. Based on the evidenc e presented, including expert testimony, the court rejected the view that in northwes t Arkansas national and state newspapers can be considered to compete with the local daily newspapers, either for readers or advertisers. The court made a similar finding with respect to radio, television, and circulars and junk mail.-10-

We recognize that properly defining the relev ant product market is a critical and often difficult task. We also recognize that trial records c ould be made in a case of this sor t that would persuade the factfinder the product market is in fact broader than just local daily newspapers. Indeed, we acknowledged as much in Midwest Radio Co. v. Forum Publishing Co. , 942 F.2d 1294, 1297 (8th Cir. 1991), in which we affirmed a summary judgment for the defen dant on a claim of monopolization under the Sherman Act because the plaintiff presented no evidence to counter the de fendant's evidence that othermediawere part of the relevant product market for advertisers. But suc h de terminations are necessarily fact intensive and must be based on evidence that describe s real markets, not hypothetical ones. We are not yet ready to say that fo r antitrust purposes local daily newspapers and other media outlets always occupy the same product market. Having reviewed the record made in this case, we are satisfied the DistrictCourt did not clearly err in limiting the product market to local dail y newspapers. In fact, on this record we believe it would be a considerable stretch t o find otherwise.
V. Appell ants argue the District Court erred in determining it was reasonabl y probable the ac quisition of the Times by NAT would substantially lessen competition in vi olation of Section 7. The District Court found that the combination of the Times and the Morning News under the ownership of the Stephens family resulted in th e com bination's having in excess of 84% of the readers and 88% of the advertisin g revenue o f local daily newspapers in northwest Arkansas, with the Daily Recor d hold ing the smallish remainder. These high combined market shares of the tw o Stephen s newspapers clearly raised a presumption that the acquisition violate d Section 7. See United States v. Philadelphia Nat'l Bank , 374 U.S. 321, 364 (1963 ) (holding presumptively illegal a merger that would result in single bank controlling 30% of market in which the

largest four banks after the merger together would have a 78% share). Further, the court found that NAT and Donrey had failed to rebut the-11-

presumpti onof illegality. In particular, the court found that barriers to entry ar e formidable in the local daily newspaper business, rejecting defendant s' arguments to the contrary. Based on our review of the record, we do not believe any of the court' s findings are clearly erroneous. These findings of fact lead inexorably to the conclusion thatN AT's acquisition of the Times violated Section 7 by creating a reasonabl e probability of a substantial lessening of competition in the local newspaper business in northwest Arkansas.
VI.
Fi nally, appellants object to the award of attorney fees and costs to CPI an d Shearin. Beca use our review of the case leaves the status of CPI and Shearin a s prevaili ng parties intact, they clearly are entitled to recover reasonable attorney fee s andcosts. Appellants' arguments to limit the attorney fees and costs awarded ar e unpersuasive. The award of attorney fees and costs is sustained.
VII.
We have considered al l the arguments raised by NAT and Donrey, and we find no basis for re versal. The decision of the District Court is affirmed. The motion o f NAT and Donrey to supplement the record is denied. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.