Case 2:19-cv-01667-RFB-BNW Document 20 Filed 10/30/19 Page 1 of 32

1 J. RANDALL JONES, ESQ., SBN 1927

MICHAEL J. GAYAN, ESQ., SBN 11135
2 MONA KAVEH, ESQ., SBN 11825
KEMP, JONES & COULTHARD, LLP
3 3800 Howard Hughes Parkway, 17th Floor
Las Vegas, Nevada 89169
4
RICHARD L. STONE, ESQ. (pro hac to be filed)
5 AMY M. GALLEGOS, ESQ. (pro hac to be filed)
DAVID R. SINGER, ESQ. (pro hac to be filed)
6 JENNER & BLOCK LLP
633 West 5th Street, Suite 3600
7 Los Angeles, California 90071

8 Attorneys for Defendants

9 UNITED STATES DISTRICT COURT

10 DISTRICT OF NEVADA
11 LAS VEGAS SUN, INC., a Nevada Case No.: 2:19-CV-01667-RFB-BNW
corporation,
12

13 Plaintiff,
LAS VEGAS REVIEW-JOURNAL, INC.
AND NEWS+MEDIA CAPITAL GROUP
14 v.
LLC’S MOTION TO DISMISS
15 SHELDON ADELSON, an individual and COMPLAINT (FRCP 12(b)(6))
as the alter ego of News+Media Capital
16 [HEARING REQUESTED]
Group LLC and as the alter ego of Las
17 Vegas Review Journal, Inc.; PATRICK
DUMONT, an individual; NEWS+MEDIA
18 CAPITAL GROUP LLC, a Delaware
limited liability company; LAS VEGAS
19 REVIEW-JOURNAL, INC., a Delaware

20 corporation; and DOES, I-X, inclusive,

21 Defendants.

22

23 Defendants News+Media Capital Group LLC, and Las Vegas Review-Journal, Inc.

24 (collectively, “Defendants”) hereby move this Court for an order dismissing the Verified

25 Complaint filed by Plaintiff Las Vegas Sun, Inc. (“the Sun”) in its entirety, pursuant to Federal

26 Rule of Civil Procedure 12(b)(6).

27 / / /

28
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1 This Motion is based on the following memorandum of points and authorities, the papers
2 and pleadings on file in this action, any exhibits, and any argument the Court may allow at a

3 hearing on the motion.

4 DATED October 30, 2019.

5 KEMP, JONES & COULTHARD, LLP
6
By: /s/ J. Randall Jones
7 J. RANDALL JONES, ESQ., SBN 1927
MICHAEL J. GAYAN, ESQ., SBN 11135
8 MONA KAVEH, ESQ., SBN 11825
3800 Howard Hughes Parkway, 17th Floor
9 Las Vegas, Nevada 89169

10 RICHARD L. STONE, ESQ. (pro hac to be filed)

AMY M. GALLEGOS, ESQ. (pro hac to be filed)
11 DAVID R. SINGER, ESQ. (pro hac to be filed)
JENNER & BLOCK LLP
12 633 West 5th Street, Suite 3600
Los Angeles, California 90071
13
Attorneys for Defendants
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i
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1 TABLE OF CONTENTS
2 MEMORANDUM OF POINTS AND AUTHORITIES .....................................................1 

3 I.  INTRODUCTION. ..................................................................................................1 

4 II.  BACKGROUND. ....................................................................................................2 
5 A.  The Las Vegas Review-Journal. ..................................................................2 
6 B.  The Las Vegas Sun. .....................................................................................3 
7 C.  The Parties’ 2005 Joint Operating Arrangement. ........................................3 
8 D.  The Pending State Court Action and the Sun’s Forum Shopping. ..............4 
9 III.  THE SUN’S COMPLAINT MUST BE DISMISSED BECAUSE ALL OF ITS
CLAIMS ARE BASED ON THE 2005 JOA, WHICH WAS NOT APPROVED
10 BY THE DOJ AND THUS IS UNENFORCEABLE. .............................................5 
11 A.  The Department of Justice Did Not Approve The 2005 JOA. .....................5 
12 B.  Because The 2005 JOA Was Not Approved, It Is Unlawful To Enforce It.6 
13 C.  Because The 2005 JOA Is Unapproved, And Cannot Lawfully be
Enforced, All Of The Sun’s Claims Necessarily Fail. .................................9 
14
D.  The Court Should Reject Any Claim By The Sun That It Should Rely On
15 Obsolete, Disapproved Case Law to Avoid the Plain Meaning of the
Statute. .......................................................................................................10 
16
IV.  THE COMPLAINT FAILS BECAUSE THE MARKET DEFINITION IS
17 FACIALLY UNSUSTAINABLE. .........................................................................13 
18 V.  THE SUN’S COMPLAINT FAILS TO ALLEGE ANTITRUST INJURY. ........16 
19 VI.  THE SUN CANNOT USE FEDERAL ANTITRUST LAW TO “FORCE” THE
REVIEW-JOURNAL TO DO BUSINESS WITH THE SUN. .............................18 
20
A.  There is No “Duty to Deal” Under Antitrust Law. ....................................18 
21
B.  The Narrow Aspen Skiing Exception Does Not Apply Here. ....................19 
22
VII.  ANY CLAIMS BASED ON THE STATE COURT ACTION ARE BARRED BY
23 NOERR-PENNINGTON. ......................................................................................21 
24 VIII.  THE SECTION 7 CLAIM FAILS BECAUSE DEFENDANTS ARE NOT
ACQUIRING STOCK OR ASSETS. ....................................................................22 
25
IX.  THE NEVADA UNFAIR TRADE PRACTICES ACT CLAIM IS
26 MERITLESS. .........................................................................................................22 
27 X.  THE SUN’S CONSPIRACY CLAIMS FAIL. ......................................................22 
28 XI.  CONCLUSION. .....................................................................................................23 

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1 TABLE OF AUTHORITIES 
2 Page(s)
3 CASES

4 Advocate Health Care Network v. Stapleton,

137 S. Ct. 1652 (2017) ........................................................................................................... 12
5

6 Aerotec Int’l, Inc. v. Honeywell Int’l, Inc.,

836 F.3d 1171 (9th Cir. 2016) ......................................................................................... 19, 20
7
Animal Legal Def. Fund v. U.S. Dep’t of Agric.,
8 933 F.3d 1088 (9th Cir. 2019) ................................................................................................. 7
9 Apex Hosiery Co. v. Leader,
310 U.S. 469 (1940) ............................................................................................................... 17
10

11 Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,

472 U.S. 585 (1985) ................................................................................................... 19, 20, 21
12
Atl. Richfield Co. v. USA Petrol. Co.,
13 495 U.S. 328 (1990) ............................................................................................................... 16

14 Authenticom, Inc. v. CDK Global, LLC,

874 F.3d 1019 (7th Cir. 2017) ............................................................................................... 19
15
BedRoc Ltd., LLC v. United States,
16
541 U.S. 176 (2004) ................................................................................................................. 7
17
Bona v. Gonzales,
18 425 F.3d 663 (9th Cir. 2006) ................................................................................................. 13

19 Boone v. Redev. Agency of City of San Jose,

841 F.2d 886 (9th Cir. 1988) ................................................................................................. 21
20
Brignac v. Yelp Inc.,
21 Case No. 19-CV-01188-EMC, 2019 WL 2372251 (N.D. Cal. June 5, 2019) ....................... 14
22
Car Carriers, Inc. v. Ford Motor Co.,
23 745 F.2d 1101 (7th Cir. 1984) ............................................................................................... 14

24 Carcieri v. Salazar,
555 U.S. 379 (2009) ................................................................................................................. 7
25
Colonial Med. Group, Inc. v. Catholic Healthcare W.,
26 Case No. C-09-2192 MMC, 2010 WL 2108123 (N.D. Cal. May 25, 2010) ......................... 14
27 Copperweld Corp. v. Independence Tube Corp.,

28 467 U.S. 752 (1984) ............................................................................................................... 22

iii
 Case 2:19-cv-01667-RFB-BNW Document 20 Filed 10/30/19 Page 5 of 32

1 Dedication & Everlasting Love to Animals v. Humane Soc’y of U.S.,

50 F.3d 710 (9th Cir. 1995) ................................................................................................... 17
2
Eagle v. Star-Kist Foods, Inc.,
3 812 F.2d 538 (9th Cir. 1987) ........................................................................................... 16, 17
4
Exxon Mobil Corp. v. Allapattah Servs., Inc.,
5 545 U.S. 546 (2005) ............................................................................................................... 11

6 Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ................................................................................................. 7, 10, 11
7
Freedom Watch Inc. v. Judicial Watch, Inc.,
8 289 F. Supp. 3d 1270 (S.D. Fla. 2018) .................................................................................. 18
9
Freeman v. Lasky, Haas & Cohler,
10 410 F.3d 1180 (9th Cir. 2005) ............................................................................................... 21

11 Furniture Royal, Inc. v. Schnadig Int’l Corp.,

Case No. 18-cv-318 JCM (CWH), 2018 WL 6574779 (D. Nev. Dec. 13, 2018) .................. 22
12
Garcia v. United States,
13 469 U.S. 70 (1984) ................................................................................................................. 11
14 Golden Gate Pharm. Servs., Inc. v. Pfizer, Inc.,

15 433 F. App’x 598 (9th Cir. 2011) .......................................................................................... 13

16 Guido v. Mount Lemmon Fire Dist.,

859 F.3d 1168 (9th Cir. 2017) ................................................................................................. 8
17
Hicks v. PGA Tour, Inc.,
18 897 F.3d 1109 (9th Cir. 2018) ............................................................................. 13, 14, 15, 16
19 Hirschfield v. McKinley,
78 F.2d 124 (9th Cir. 1935) ................................................................................................... 10
20

21 Hughes Aircraft Co. v. Jacobson,

525 U.S. 432 (1999) ................................................................................................................. 7
22
Hyatt v. Office of Mgmt. & Budget,
23 908 F.3d 1165 (9th Cir. 2018) ................................................................................................. 9
24 In re Adderall XR Antitrust Litig.,
754 F.3d 128 (2d Cir. 2014)................................................................................................... 19
25
In re Salazar,
26
430 F.3d 992 (9th Cir. 2005) ................................................................................................... 8
27
Johnson v. Comm’n on Presidential Debates,
28 869 F.3d. 976 (D.C. Cir 2017) ............................................................................................... 17

iv
 Case 2:19-cv-01667-RFB-BNW Document 20 Filed 10/30/19 Page 6 of 32

1 Kaiser Steel Corp. v. Mullins,

455 U.S. 72 (1982) ................................................................................................................. 10
2
Kelly v. Robinson,
3 479 U.S. 36 (1986) ................................................................................................................. 12
4
Kingdomware Techs., Inc. v. United States,
5 136 S. Ct. 1969 (2016) ............................................................................................................. 9

6 Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005) ........................................................................................... 3, 13
7
Lambert v. Tesla, Inc.,
8 923 F.3d 1246 (9th Cir. 2019) ............................................................................................... 12
9
LiveUniverse, Inc. v. MySpace, Inc.,
10 304 F. App’x 554 (9th Cir. 2008) .................................................................................... 16, 19

11 Mack v. S. Bay Beer Distribs., Inc.,

798 F.2d 1279 (9th Cir. 1986) ......................................................................................... 17, 20
12
Mark H. v. Lemahieu,
13 513 F.3d 922 (9th Cir. 2008) ................................................................................................... 8
14 MetroNet Servs. Corp. v. Qwest Corp.,

15 383 F.3d 1124 (9th Cir. 2004) ............................................................................. 18, 19, 20, 21

16 Microsoft Corp. v. Comm’r,

311 F. 3d 1178 (9th Cir. 2002) .............................................................................................. 12
17
Miller v. French,
18 530 U.S. 327 (2000) ................................................................................................................. 9
19 News Weekly Sys., Inc. v. Chattanooga News-Free Press,
986 F.2d 1422, 1993 WL 47197 (6th Cir. Feb. 23, 1993) ..................................................... 11
20

21 Newspaper Guild v. Levi,

539 F.2d 755 (D.C. Cir. 1976) ................................................................................... 10, 11, 12
22
Novell, Inc. v. Microsoft Corp.,
23 731 F.3d 1064 (10th Cir. 2013) ....................................................................................... 20, 22
24 Or. Nat. Res. Council v. Mohla,
944 F.2d 531 (9th Cir. 1991) ................................................................................................. 21
25
Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc.,
26
555 U.S. 438 (2009) ............................................................................................................... 19
27
Paladin Assocs., Inc. v. Mont. Power Co.,
28 328 F.3d 1145 (9th Cir. 2003) ......................................................................................... 16, 22

v
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1 Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc.,

508 U.S. 49 (1993) ................................................................................................................. 21
2
Saldivar v. Sessions,
3 877 F.3d 812 (9th Cir. 2017) ................................................................................................. 13
4
Schneider v. Chertoff,
5 450 F.3d 944 (9th Cir. 2006) ................................................................................................. 13

6 Serv. Emps. Int’l Union v. United States,

598 F. 3d 1110 (9th Cir. 2010) ................................................................................................ 9
7
SOLIDFX, LLC v. Jeppesen Sanderson, Inc.,
8 841 F.3d 827 (10th Cir. 2016) ............................................................................................... 19
9
Somers v. Apple, Inc.,
10 729 F.3d 953 (9th Cir. 2013) ................................................................................................. 16

11 Sprewell v. Golden State Warriors,

266 F.3d 979 (9th Cir. 2001) ............................................................................................. 3, 13
12
Steiner Corp. v. Benninghoff,
13 5 F. Supp. 2d 1117 (D. Nev. 1998) ........................................................................................ 20
14 Steinle v. City & Cty. of S.F.,

15 919 F.3d 1154 (9th Cir. 2019) ............................................................................................... 12

16 Syed v. M-I, LLC,

853 F.3d 492 (9th Cir. 2017) ................................................................................................. 12
17
Tanaka v. Univ. of S. Cal.,
18 252 F.3d 1059 (9th Cir. 2001) ......................................................................................... 13, 14
19 Theme Promotions, Inc. v. News Am. Mktg. FSI,
546 F.3d 991 (9th Cir. 2008) ................................................................................................. 21
20

21 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,

971 F.2d 244 (9th Cir. 1992) ................................................................................................. 20
22
United States v. Lillard,
23 935 F.3d 827 (9th Cir. 2019) ................................................................................................... 7
24 United States v. One 1997 Toyota Land Cruiser,
248 F.3d 899 (9th Cir. 2001) ................................................................................................... 8
25
United States v. Ron Pair Enterprises, Inc.,
26
489 U.S. 235 (1989) ................................................................................................................. 7
27
Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP,
28 540 U.S. 398 (2004) ................................................................................................... 18, 19, 20

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1 Wadler v. Bio-Rad Labs., Inc.,

916 F.3d 1176 (9th Cir. 2019) ................................................................................................. 8
2
STATUTES AND RULES
3
15 U.S.C. § 2 ............................................................................................................................... 20
4

5 15 U.S.C. § 15 ............................................................................................................................. 16

6 15 U.S.C. § 18 ......................................................................................................................... 2, 22

7 15 U.S.C. § 1803(b) .............................................................................................. 1, 6, 8, 9, 10, 12

8 Fed. R. Civ. P. 12. ................................................................................................... i, 13, 14, 17, 22

9 OTHER AUTHORITIES

10 3B Areeda & Hovenkamp, Antitrust Law ¶ 809. ......................................................................... 22

11
WILLISTON ON CONTRACTS .......................................................................................................... 10
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Introduction.
3 The Sun’s entire complaint is predicated on a falsehood: that the parties’ 2005 joint
4 operating arrangement (“2005 JOA”) was approved by the U.S. Department of Justice (“DOJ”).

5 The underlying premise of each cause of action asserted by the Sun is that because the 2005 JOA

6 was approved by the DOJ, it is entitled to special protected status under the Newspaper

7 Preservation Act (“NPA”), and therefore any breach of, or attempt to terminate, the 2005 JOA

8 necessarily violates antitrust law. In fact, the 2005 JOA was not approved—the DOJ considered

9 it, and expressly declined to approve it.

10 Because the 2005 JOA was not approved by the DOJ, under the plain language of the NPA,
11 it cannot lawfully be enforced.1 This means that all of the Sun’s claims are barred as a matter of

12 law. Every supposedly anticompetitive act the Sun alleges is either a purported breach of the 2005

13 JOA by the Review-Journal, or an attempt to terminate the 2005 JOA by the Review-Journal. The

14 Sun is even asking this Court to enjoin the Review-Journal from terminating the 2005 JOA for the

15 20 years remaining on its term. The Court simply cannot award the Sun damages for alleged

16 breaches of the 2005 JOA (whether dressed up as antitrust claims or not), nor can it lawfully order

17 the parties to remain in the 2005 JOA. The Sun’s complaint must be dismissed with prejudice.

18 Because the 2005 JOA’s unapproved status disposes of all of the Sun’s claims, the Court
19 need not reach the many other deficiencies in the Sun’s complaint. However, if the Court elects to

20 consider them, then there are multiple independent reasons the Sun’s claims must be dismissed.

21 First, even if the Sun’s antitrust claims were not barred, they would still fail because the
22 Sun’s market definition is facially implausible. The Sun claims actual and threatened

23 monopolization of an artificially-defined market that includes only the joint Review-Journal/Sun

24 newspaper and absolutely no other media products of any type. The Sun’s single-product-market

25 definition defies common sense by pretending Nevadans live in a world where television, radio,

26 the internet, and news apps on smartphones and other mobile devices do not compete with

27

28
1
15 U.S.C. § 1803(b).

1
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1 newspapers. Because the Ninth Circuit instructs courts to apply common sense to relevant market

2 definitions, the Sun’s claims must be dismissed.

3 Second, the Sun has no standing to bring this lawsuit because it has not suffered “antitrust
4 injury,” a necessary element of all antitrust claims that limits relief to injuries resulting from harm

5 to competition. As the Sun concedes, there is no economic competition between the Sun and

6 Review-Journal newspapers in the Sun’s identified “market” because the two newspapers are sold

7 together as one. Thus, by definition, the Sun is not a competitor and has no antitrust injury.

8 Third, the Sun’s complaint, which seeks to prohibit the Review-Journal from terminating
9 the 2005 JOA even if the state court finds the Sun in material breach, turns antitrust law on its

10 head. Even if it the 2005 JOA were enforceable, which it is not, it still would not be an antitrust

11 violation for the review-journal to attempt to terminate it on account of the Sun’s material breach.

12 One party cannot be forced to deal with another party under the guise of antitrust law. There is no

13 “duty to deal,” only a duty to compete under the antitrust laws.

14 Fourth, the Sun’s claims under Section 7 of the Clayton Act fail because the statute
15 governs anti-competitive acquisitions of a competitor, and no such acquisition is at issue here.

16 Fifth, the Sun’s conspiracy claims fail because a company cannot legally conspire with its
17 owners and executives; they are considered a single entity.

18 Finally, the Sun’s Nevada Unfair Trade Practices Act claim fails because it is predicated
19 solely on the defective federal antitrust claims. For these reasons, the Court should dismiss each

20 of the Sun’s five claims.

21 II. Background.
22 A. The Las Vegas Review-Journal.
23 Defendant Las Vegas Review-Journal, Inc. publishes the Las Vegas Review-Journal
24 newspaper, the longest running daily newspaper in Las Vegas. Cplt. ¶ 5. The newspaper has had

25 various owners since its inception in 1929. Id. ¶¶ 7, 18, 57, 60. Most recently, in December 2015,

26 defendant News+Media Group LLC acquired the entity now called Las Vegas Review-Journal,

27 Inc. (together the “Review-Journal”). Id. ¶ 7.

28

2
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1 B. The Las Vegas Sun.

2 Plaintiff Las Vegas Sun, Inc. (the “Sun”) publishes the Sun newspaper, which has been
3 controlled by one or more members of the Greenspun family since its inception in 1950. Cplt. ¶ 2.

4 Brian Greenspun is the Sun’s Chief Executive Officer, Publisher and Editor. Cplt. p. 36. By the

5 late 1980s, the Sun newspaper “was in probable danger of financial failure.” Cplt. ¶ 18.

6 C. The Parties’ 2005 Joint Operating Arrangement.

7 In 1989, when the Sun was on the verge of collapse, it entered into a joint operating
8 arrangement with the then-owner (Donrey) of the more successful Review-Journal newspaper (the

9 “1989 JOA”). Cplt. ¶ 18. As alleged in the Complaint, the 1989 JOA was approved by the

10 Department of Justice and authorized by the NPA. Cplt. p. 1. Under the 1989 JOA, the Sun and

11 the Review-Journal continued to produce and distribute separate newspapers, but both newspapers

12 used the Review-Journal’s plant and equipment, and the Review-Journal handled the advertising

13 and circulation functions for the separately-distributed newspapers. Cplt. ¶ 21.

14 In 2005, the Sun and a different owner of the Review-Journal newspaper (Stephens Media)
15 entered into the 2005 JOA. Though titled “Amended and Restated Agreement,” the new 2005 JOA

16 expressly terminated the 1989 JOA and completely replaced it. Cplt. ¶ 23; Ex. A § 1.2.2 Under the

17 new 2005 JOA, the Sun and the Review-Journal ceased being sold and distributed as two separate

18 newspapers; “the parties combined the two newspapers into a single-media product” whereby the

19 Sun would be included as a separate newspaper inside the Review-Journal newspaper (i.e., an

20 insert). Cplt. ¶ 24. Although the Sun’s verified complaint alleges under oath that the 2005 JOA

21

22

23

24

25
2
26 All exhibits are attached to the concurrently filed Declaration of Michael Gayan. The court can
consider the 2005 JOA on this motion to dismiss because the complaint references and
27 incorporates the 2005 JOA but fails to attach a copy. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th
Cir. 2005) (courts may “take into account documents whose contents are alleged in a complaint
28 and whose authenticity no party questions, but which are not physically attached to the plaintiff’s
pleading.” (internal quotes and brackets omitted).

3
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1 was approved by the DOJ, that is not true. Id., p. 2. In fact, as set forth in an April 2008 letter, the

2 DOJ expressly did not approve the 2005 JOA. Ex. B.3

3 The 2005 JOA was intended to benefit both parties, not just the Sun. Section 5.3 requires
4 that both parties “take all corporate action necessary to carry out and effectuate the intent,

5 purposes and provisions of [the 2005 JOA],” and to “cooperate with the other party in every

6 reasonable way that will promote successful and lawful operation under [the 2005 JOA] for both

7 parties.” Ex. A § 5.3 (emphasis added). Under Section 5.2, the parties agreed that the Sun would

8 have editorial autonomy over the Sun newspaper, but they expressly limited that autonomy by

9 requiring that each newspaper “preserve high standards of newspaper quality . . . consistent with

10 United States metropolitan daily newspapers.” Id. § 5.2 (emphasis added). The 2005 JOA is

11 governed by Nevada law and states that it can be terminated if a party defaults in the performance

12 of a material obligation. Id. §§ 9.1.2 and 10.10.

13 D. The Pending State Court Action and the Sun’s Forum Shopping.
14 Since entering into the 2005 JOA, the Review-Journal newspaper’s ownership has changed
15 three times, but the Sun and its owner Brian Greenspun have had ongoing disputes or litigation

16 with each one.4 In 2018, the Sun sued the Review-Journal and its current owner in Nevada state

17 court for allegedly breaching terms of the 2005 JOA related to accounting of payments to the Sun,

18 as well as the physical appearance of the Sun’s masthead on the newspaper (the “State Court

19 Action”). The state court ordered certain claims to arbitration.

20 On August 30, 2019, the Review-Journal sought leave from the state court to file a
21 counterclaim against the Sun for materially breaching Sections 5.2 and 5.3 of the 2005 JOA

22
3
Because the complaint repeatedly refers to the DOJ’s supposed approval of the 2005 JOA, the
23 Court may take into account the DOJ document in question. See supra note 2; see also Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (courts “are not required to accept as
24 true conclusory allegations which are contradicted by documents referred to in the complaint”)
(internal quote omitted); Mack v. S. Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.
25 1986) (a court may take judicial notice of records and reports of administrative bodies), abrogated
on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991).
26
4
In 2013, Greenspun sued the owners of the Review-Journal (DR Partners dba Stephens Media)
27 in this Court for alleged antitrust violations and implicated his own family members in the alleged
conspiracy. See Greenspun v. Stephens Media LLC, et al., No. 2:13-cv-01494-JCM-PAL (D. Nev.,
28 Sept. 13, 2013) (Dkt. 34). In 2015, the Sun sued DR Partners in the Eighth Judicial District Court
to challenge conduct under the 2005 JOA. Las Vegas Sun Inc. vs. DR Partners, A-15-715008-B.

4
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1 because, among other things, the Sun has intentionally withheld its local news articles from the

2 Sun newspaper (which is part of the joint media product) and diverted those articles, along with

3 readers, to the Sun’s separately owned website. On September 24, 2019, the day before the state

4 court hearing on the Review-Journal’s motion, the Sun raced to this Courthouse and—literally—

5 tried to make a federal case out of the parties’ garden variety breach of contract claims. In this so-

6 called antitrust lawsuit, the Sun merely reasserts the same breach of contract claims already

7 pending in the State Court Action. See, e.g., Cplt. ¶ 56. On September 25, 2019, the state court

8 granted the Review-Journal leave to file its Counterclaims, which it did five days later.

9
III. The Sun’s Complaint Must Be Dismissed Because All Of Its Claims Are Based On
10 The 2005 JOA, Which Was Not Approved By The DOJ And Thus Is Unenforceable.
11 A. The Department of Justice Did Not Approve The 2005 JOA.
12 In this lawsuit, the Sun accuses the Review-Journal of breaching the 2005 JOA, and claims
13 that these alleged breaches, as well as the Review-Journal’s attempts to terminate the 2005 JOA

14 in the State Court Action because of the Sun’s material breaches, are part of a scheme to

15 monopolize in violation of the antitrust laws. Cplt. ¶¶ 23-25, 70-109. In the Sun’s verified

16 complaint, Brian Greenspun, the Sun’s CEO, Publisher and Editor swore under oath that the 2005

17 JOA was “approved by the Department of Justice” and therefore authorized by the Newspaper

18 Preservation Act. Cplt. p. 2; see also id. ¶¶ 121, 130 (alleging that the 2005 JOA was “permitted

19 by the Department of Justice under the Newspaper Preservation Act of 1970.”). In reality—as the

20 Sun knows perfectly well—the DOJ never approved the current 2005 JOA, and indeed, expressly

21 refused to approve it. Ex. B (DOJ Letter).

22 Even apart from the Sun’s and Mr. Greenspun’s lack of candor with the Court, the approval
23 (or not) of the 2005 JOA by the DOJ is not a minor detail. The entire premise of the Sun’s lawsuit

24 is that the DOJ’s stamp of approval “under the Newspaper Preservation Act” elevates the 2005

25 JOA to a government-blessed “super contract” which, the Sun contends, cannot be breached or

26 terminated without violating antitrust law. Cplt., ¶¶ 70-109, 121, 127, 130, 137, 147-52.

27 Every instance of allegedly predatory conduct described in the Sun’s antitrust complaint is
28 simply an alleged breach of some claimed obligation the Review-Journal supposedly owes to the

5
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1 Sun by virtue of their purportedly DOJ-approved 2005 JOA. See Cplt. ¶¶ 48-56 (alleging it was

2 predatory for the Review-Journal’s owners to look for ways to terminate or dissolve the JOA); Id.

3 ¶¶ 57-69 (alleging it was predatory for the Review-Journal to fire a certain publisher who the Sun

4 liked and under whose tenure the Sun’s payments under the JOA increased); Id. ¶¶ 75-107

5 (claiming the Review-Journal’s alleged failure to properly account for expenses under the JOA,

6 failure to promote the Sun as required by the JOA, failure to design its front page in accordance

7 with the JOA, and disputes about JOA-required audits were predatory “abuses of power”); Id. ¶¶

8 108-09 (alleging that the Review-Journal’s request for a judicial declaration terminating the JOA

9 due to the Sun’s material breaches was an “overt act[] in furtherance of their scheme to monopolize

10 the Clark Country newspaper market”).

11 As noted in the Sun’s complaint, there had been a 1989 JOA that was approved by the DOJ.
12 However, that agreement is irrelevant here because it was expressly terminated by the 2005 JOA.

13 The Sun itself admits that the 1989 JOA is not the operative agreement. Cplt. p. 9. The 2005 JOA

14 replaced the 1989 JOA, extinguishing all of the 1989 Agreement’s obligations with an express

15 termination provision and clean-slate releases for all claims and obligations under the 1989 JOA.

16 Ex. A, §§ 1.2, 10.13. The 2005 JOA eliminated the Sun as a standalone newspaper that competed

17 with the Review-Journal for subscribers and converted it to an insert to the Review-Journal,

18 creating a whole new business reality that necessitated a whole new agreement. See id. App’x. A;

19 see also Cplt. ¶ 24. This is why the DOJ conducted a separate investigation and determination of

20 the 2005 JOA. Ex. B. The 2005 JOA is the basis of the Sun’s antitrust claims, and it is the

21 termination of that agreement the Sun seeks to enjoin.

22 B. Because The 2005 JOA Was Not Approved, It Is Unlawful To Enforce It.
23 The DOJ’s decision not to approve the 2005 JOA results in important legal consequences
24 that are fatal to the Sun’s complaint. Written approval by the Attorney General is mandatory for

25 newspaper JOAs entered into after 1970 to be enforceable. 15 U.S.C. § 1803(b) The NPA

26 unambiguously mandates that “[i]t shall be unlawful for any person to enter into, perform, or

27 enforce a joint operating arrangement, not already in effect, except with the prior written consent

28 of the Attorney General of the United States.” Id. (emphasis added).

6
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1 Pursuant to now settled law, the Court must follow the NPA’s plain language. The Supreme
2 Court expressly forbids courts from departing from unambiguous statutory language and re-

3 emphasized this rule just four months ago when it reversed an Eighth Circuit decision in which the

4 court relied on legislative history to alter the plain language of the Freedom of Information Act. In

5 so ruling, the Court reiterated that where a statute’s meaning is clear on its face, the court’s

6 statutory interpretation “must stop.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356,

7 2364 (2019); see also Carcier. v. Salazar, 555 U.S. 379, 1063-64 (2009) (under settled principles

8 of statutory construction, the court “must first determine whether the statutory text is plain and

9 unambiguous. If it is, we must apply the statute according to its terms.”) (citations omitted). As

10 Justice Gorsuch wrote for the majority in Food Marketing Institute, “Even those of us who

11 sometimes consult legislative history will never allow it to be used to ‘muddy’ the meaning of

12 ‘clear statutory language.’” 139 S. Ct. at 2364 (internal citation omitted).

13 Although the Supreme Court has recently admonished against consulting legislative history
14 when the statute is unambiguous, this is not a new rule. In BedRoc Ltd., LLC v. United States, the

15 Supreme Court held that “the preeminent canon of statutory interpretation requires us to presume

16 that the legislature says in a statute what it means and means in a statute what it says there. Thus,

17 our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” 541

18 U.S. 176, 183 (2004) (punctuation and citations omitted); see also Hughes Aircraft Co. v.

19 Jacobson, 525 U.S. 432, 438 (1999) (“As in any case of statutory construction, our analysis begins

20 with the language of the statute. And where the statutory language provides a clear answer, it ends

21 there as well.”) (citation and quotation marks omitted); United States v. Ron Pair Enterprises, Inc.,

22 489 U.S. 235, 241 (1989) (explaining that “where, as here, the statute’s language is plain, the sole

23 function of the courts is to enforce it according to its terms”) quotation marks omitted).

24 The Ninth Circuit has not yet been asked to interpret this section of the NPA, but there is
25 no question it would follow the statute’s plain language, as Supreme Court precedent requires. See,

26 e.g., United States v. Lillard, 935 F.3d 827, 833-34 (9th Cir. 2019) (if the statutory language “has

27 a plain meaning or is unambiguous, the statutory interpretation inquiry ends there”) (quotation

28 marks omitted); Animal Legal Def. Fund v. U.S. Dep’t of Agric., 933 F.3d 1088, 1093 (9th Cir.

7
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1 2019) (same); Wadler v. Bio-Rad Labs., Inc., 916 F.3d 1176, 1187 (9th Cir. 2019) (“When, as here,

2 a statute’s language is plain and unambiguous, our inquiry ends.”) (quotation marks omitted); In

3 re Salazar, 430 F.3d 992, 995 (9th Cir. 2005) (“We cannot ignore the plain and ordinary meaning

4 of the words actually used by Congress. In fact, if the language of a statute is clear, we look no

5 further when we seek to ascertain its meaning.”) (quotation marks omitted).

6 The Ninth Circuit has consistently and repeatedly emphasized that it is reversible error for
7 a district court to refuse to follow a statute’s plain language. United States v. One 1997 Toyota

8 Land Cruiser is instructive. That case involved a statute allowed defendants in actions brought by

9 the government to seek attorney’s fees if the government’s settlement demand was unreasonable

10 compared to the judgment it eventually obtained. 248 F.3d 899, 902-03 (9th Cir. 2001). The district

11 court denied the defendant’s fee application, concluding based on the statute’s legislative history

12 that Congress had intended the provision to apply only to small businesses, not individuals. Id. at

13 903. The Ninth Circuit reversed, holding that “[t]he district court erred by not analyzing the plain

14 text of the statute, which unambiguously gives individuals the right to seek an award of attorney’s

15 fees.” Id.; see also Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168, 1174 (9th Cir. 2017)

16 (reversing the district court’s grant of summary judgment because its interpretation of the

17 applicable law represented a “depart[ure] from the statute’s plain meaning”), aff’d, 139 S. Ct. 22

18 (2018); Mark H. v. Lemahieu, 513 F.3d 922, 934 (9th Cir. 2008) (reversing district court opinion

19 interpreting statute based on legislative history instead of the plain language, and holding that

20 “[e]ven if the legislative history supported this conclusion, it could not overrule the statute’s plain

21 language . . .Given the absence of any ambiguity in the statute’s text, there is no need to examine

22 its legislative history.”)(emphasis added).

23 Here, the statutory language is crystal clear: “[i]t shall be unlawful for any person to enter
24 into, perform, or enforce a joint operating arrangement, not already in effect, except with the prior

25 written consent of the Attorney General of the United States.” 15 U.S.C. § 1803(b) (emphasis

26 added). It is difficult to imagine more clear and straightforward statutory language.

27 Interpreting this language is not a matter of discretion. The Supreme Court and Ninth
28 Circuit have emphasized repeatedly that the word “shall” is mandatory and cannot be interpreted

8
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1 as leaving the court any discretion. “Unlike the word ‘may,’ which implies discretion, the word

2 ‘shall’ usually connotes a requirement.” Kingdomware Techs., Inc. v. United States, 136 S. Ct.

3 1969, 1977 (2016) (reversing Federal Circuit opinion interpreting provision stating that the

4 Department of Veterans Affairs “shall award contracts” to veteran-owned small business as

5 discretionary); Miller v. French, 530 U.S. 327, 337 (2000) (“The mandatory ‘shall’ normally

6 creates an obligation impervious to judicial discretion”) (internal citations and punctuation

7 omitted); Hyatt v. Office of Mgmt. & Budget, 908 F.3d 1165, 1174 (9th Cir. 2018) (same). As the

8 Ninth Circuit put it, “The word ‘shall’ is ordinarily the language of command.” Serv. Emps. Int’l

9 Union v. United States, 598 F. 3d 1110, 1113 & n.14 (9th Cir. 2010) (citing multiple Supreme

10 Court cases for this proposition and holding that where the statute stated that “there shall be a fine

11 of $20 per day” for failure to file a tax return, the district court committed reversible error in

12 holding that it had discretion to reduce the penalty).

13
C. Because The 2005 JOA Is Unapproved, And Cannot Lawfully be Enforced, All
14 Of The Sun’s Claims Necessarily Fail.
15 Because all of the Sun’s claims depend on the false premise that the 2005 JOA is an
16 enforceable contract that can be lawfully performed, they all necessarily fail. The Sun’s first and

17 second claims for monopolization and attempted monopolization are based on allegations that

18 defendants “abused and maintained” their market power by breaching their obligations to the Sun

19 under the 2005 JOA, i.e., by “exploiting their powers and responsibilities under the 2005 JOA to

20 deprive the Sun of its Annual Profits Payments, by reducing the visibility of the Sun to consumers

21 in contravention of its obligations under the JOA, and by threatening to terminate the JOA.” Cplt.

22 ¶¶ 121, 130. However, because the 2005 JOA is unenforceable and cannot be lawfully performed,

23 it cannot possibly impose any legally-cognizable obligations or ramifications on the Review-

24 Journal, so these claims must fail. 15 U.S.C. § 1803(b).

25 The Sun’s third claim for conspiracy to monopolize fails for essentially the same reasons.
26 All of the “predatory and anticompetitive conduct” and “overt acts” allegedly committed in

27 furtherance of the conspiracy are either breaches of the Review-Journal’s supposed express or

28 implied obligations under the 2005 JOA, or its attempts to terminate the JOA due to the Sun’s

9
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1 material breaches. Cplt., ¶¶ 70-109. Likewise, the Sun’s fourth claim under the Clayton Act fails,

2 because it is based on the “proposed termination of the JOA,” Id. ¶ 150, which, again, cannot

3 violate the law since the JOA is unenforceable. 15 U.S.C. § 1803(b). Finally, the Sun’s Unfair

4 Trade Practices Act claim fails because it is derivative of the Sun’s antitrust claims and based on

5 the same alleged conduct—i.e., breaches of the JOA and attempts to terminate it. Id. ¶¶ 153-57.

6 It is not just that the Sun’s claims fail. Its requested relief—that the Court enjoin the
7 Review-Journal from terminating the 2005 JOA—is actually unlawful under the NPA. 15 U.S.C.

8 § 1803(b). By falsely representing that the JOA was approved, when in fact it was not and is

9 therefore unenforceable, the Sun is trying to deceive the Court into using its powers of compulsion

10 to convert the unenforceable 2005 JOA into a permanent and inescapable obligation, yoking the

11 Review-Journal to a contract that is unenforceable as a matter of federal law for the remainder of

12 its 20-year term. It is axiomatic that courts cannot enforce contractual obligations that would be

13 unlawful to perform. Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 79-83 (1982).5

14
D. The Court Should Reject Any Claim By The Sun That It Should Rely On
15 Obsolete, Disapproved Case Law to Avoid the Plain Meaning of the Statute.
16 The Review-Journal suspects that the Sun will urge this Court to follow Newspaper Guild
17 v. Levi, 539 F.2d 755 (D.C. Cir. 1976), a 43-year old case in which a split panel of the D.C. Circuit

18 refused to apply the NPA’s plain language and instead held, based on legislative history, that

19 notwithstanding what the statute says, the NPA does not actually make it unlawful to enter a joint

20 operating arrangement without the prior written approval of the Attorney General. Id. at 761. At

21 the time the Levi case was decided, the D.C. Circuit was bound by precedent that had “rejected a

22

23

24
5
As noted above, the Review-Journal’s current owners, who acquired the newspaper in December
25 2015, are its third owners since the 2005 JOA was entered. And, the fact that the NPA makes it
unlawful to perform or enforce the 2005 JOA is not something that can be waived by the passage
26 of time. See, e.g., WILLISTON ON CONTRACTS § 12:5 & n.6, Westlaw(database updated July 2019)
(collecting cases recognizing that defendants are not permitted to waive the defense of illegality,
27 even if they wish to do so); Hirschfield v. McKinley, 78 F.2d 124, 132 (9th Cir. 1935) (“But it is
practically universally held that a party to an illegal contract cannot, either at the time of the
28 execution of the contract or afterwards, waive his right to set up the defense of illegality in any
action thereon by the other party.”) (citing Coppell v. Hall, 74 U.S. 542, 558 (1868)).

10
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1 plain meaning rule which forbids consideration of legislative history when the language of the

2 statute is clear and unambiguous.” Id. at 761 n.1 (Tamm, J. dissenting).6

3 Today, following Levi is not an option. On multiple occasions, the Supreme Court has now
4 explicitly rejected the 1970s-era D.C. Circuit’s approach to statutory interpretation exemplified in

5 Levi. Significantly, just this year in Food Marketing Institute, the Supreme Court overruled a DC

6 Circuit case, also from the 1970s, applying exactly the same approach to statutory interpretation

7 as the majority in Levi. 139 S. Ct. at 2364. The Supreme Court explained that the D.C. Circuit’s

8 1970s-era approach to statutory analysis—in which it would “resort to legislative history before

9 consulting the statute’s text and structure”—was entirely inconsistent with modern interpretation

10 practices, where the court’s analysis ends if the statutory language is clear. Id. The D.C. Circuit’s

11 approach was, according to the Supreme Court, “a relic from a bygone era of statutory

12 construction.” Id. (internal quotes omitted). Levi typifies the D.C. Circuit’s antiquated and now

13 rejected approach—the Levi majority admitted that a plain-text reading of the NPA would compel

14 the result reached by the district court, but it nonetheless combed the legislative history for contrary

15 statements and then decided based on these statements that Congress did not mean what it wrote.

16 Levi, 539 F.2d at 757.

17 Again, the Supreme Court has been exceptionally clear in numerous opinions that courts
18 may not do what the Levi court did, i.e., ignore a statute’s plain language and seek out alternative

19 interpretations based on the Congressional record and statements of legislators. Food Mktg. Inst.,

20 139 S. Ct. at 2364 (“We cannot approve such a casual disregard for the rules of statutory

21 interpretation”). “[T]he authoritative statement is the statutory text, not the legislative history or

22 any other extrinsic material.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568

23 (2005); see also Garcia v. United States, 469 U.S. 70, 76 n.3 (1984) (“‘Resort to legislative history

24

25

26

27
6
In an unpublished decision, the Sixth Circuit subsequently adopted the conclusion reached in
28 Levi without conducting any of its own analysis. See News Weekly Sys., Inc. v. Chattanooga News-
Free Press, 986 F.2d 1422, 1993 WL 47197, at *2 (6th Cir. Feb. 23, 1993).

11
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1 is only justified where the face of the Act is inescapably ambiguous . . . .’”) (quoting Schwegmann

2 Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395-96 (1951) (Jackson, J., concurring)). 7

3 The Ninth Circuit, as it must, adheres faithfully to the Supreme Court’s guidance on this
4 issue and rejects any attempt by district courts or parties to use legislative history to alter a statute’s

5 plain language. See, e.g., Lambert v. Tesla, Inc., 923 F.3d 1246, 1251 (9th Cir. 2019) (when a

6 statute’s text is unambiguous, “we are precluded from considering legislative history”) (quotation

7 marks omitted) (citing numerous cases); Syed v. M-I, LLC, 853 F.3d 492, 502 n. 5 (9th Cir. 2017)

8 (“‘[I]t is well-settled that reference to legislative history is inappropriate when the text of the statute

9 is unambiguous’”) (quotation marks omitted) (quoting United States v. Sioux, 362 F.3d 1241, 1246

10 (9th Cir. 2004)); see also Steinle v. City & Cty. of S.F., 919 F.3d 1154, 1164 (9th Cir. 2019)

11 (“Further, we turn to extrinsic materials, like legislative history, only if the statutory text is

12 ambiguous.”). There is no question that presented with the issue today, the Ninth Circuit would

13 apply Section 1803(b) as plainly written.

14 The Sun may also try to rely on the regulation at issue in Levi, which conflicted with the
15 statute but is still technically on the books. The regulation at issue in Levi was a prefatory statement

16 in implementing regulations adopted by the DOJ stating that, notwithstanding the statute, the NPA

17 “does not require that all joint newspaper operating arrangements obtain the prior written consent

18 of the Attorney General[.]” In other words, the agency attempted to reverse the statute’s plain

19 language and rule that unapproved JOAs were legal after all.

20 However, under the approach to statutory interpretation now mandated by the Supreme
21 Court, and faithfully followed by the Ninth Circuit, the regulation at issue in Levi cannot conflict

22 with and must yield to the plain language of the statute. It is well-settled that regulations contrary

23 to the plain language of the statute are invalid. Microsoft Corp. v. Comm’r, 311 F. 3d 1178, 1189

24 (9th Cir. 2002) (“Because we conclude that the statute clearly expresses Congress’s intent, we do

25

26
7
The Supreme Court has noted that excerpts from committee hearings—on which the Levi
27 majority relied extensively—are “among the least illuminating forms of legislative history.”
Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652, 1661 (2017) (quotation marks
28 omitted); see also Kelly v. Robinson, 479 U.S. 36, 51 n.13 (1986) (declining to “accord any
significance” to “comments in [legislative] hearings”).

12
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1 not defer to the conflicting regulation”) (citing Dole v. United Steelworkers, 494 U.S. 26, 42-43

2 (1989), and numerous other Supreme Court and Ninth Circuit cases); Saldivar v. Sessions, 877

3 F.3d 812, 815 (9th Cir. 2017) (“Here, because the text of the INA unambiguously bars the BIA’s

4 interpretation, that is the end of the analysis.”) (quotation marks omitted); Schneider v. Chertoff,

5 450 F.3d 944, 954-56 (9th Cir. 2006) (invalidating a regulation that was contrary to the plain

6 language of the underlying statute); Bona v. Gonzales, 425 F.3d 663, 664 (9th Cir. 2006) (“We

7 hold . . . that the regulation is in conflict with the governing statute and is thus invalid.”).

8 In sum, because the 2005 JOA was not approved by the DOJ and is therefore
9 unenforceable, there is no set of facts on which the Sun can prevail. Its claims must be dismissed

10 with prejudice. Knievel, 393 F.3d at 1077-79 (affirming dismissal of lawsuit, because the

11 documents the defendant submitted with its motion to dismiss demonstrated that the plaintiff could

12 not succeed as a matter of law); Sprewell, 266 F.3d at 989 (affirming dismissal of plaintiff’s

13 discrimination claims because documents properly considered at the Rule 12 stage defeated the

14 claims as a matter of law).

15 IV. The Complaint Fails Because The Market Definition Is Facially Unsustainable.
16 In addition to being barred because the 2005 JOA is unenforceable, the Sun’s antitrust
17 claims fail as a matter of law for an independent reason: the complaint fails to identify a plausible

18 relevant market in which the supposed antitrust violations have occurred. Hicks v. PGA Tour, Inc.,

19 897 F.3d 1109, 1120 (9th Cir. 2018) (upholding dismissal of Sherman Act claims for failure to

20 adequately allege product market); Golden Gate Pharm. Servs., Inc. v. Pfizer, Inc., 433 F. App’x

21 598, 598-99 (9th Cir. 2011) (same as to Clayton Act Section 7 claim). “While plaintiffs need not

22 plead a relevant market with specificity . . . a complaint may be dismissed under Rule 12(b)(6) if

23 the complaint’s relevant market definition is facially unsustainable.” Hicks, 897 F.3d at 1120

24 (quotation marks omitted); Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1063-64 (9th Cir. 2001)

25 (affirming dismissal where the market definition pled was facially unsustainable).

26 The relevant market must include a product market and geographic market. Hicks, 897 F.3d
27 at 1120. Crucially, the product market “must encompass the product at issue as well as all

28 economic substitutes for the product.” Id. (emphasis added and quotation marks omitted).

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1 “Economic substitutes have a ‘reasonable interchangeability of use’ or sufficient ‘cross elasticity

2 of demand” with the relevant product.” Id. (quoting Brown Shoe v. United States, 370 U.S. 294,

3 325 (1962)). “Including economic substitutes ensures that the relevant product market

4 encompasses ‘the group or groups of sellers or producers who have actual or potential ability to

5 deprive each other of significant levels of business.’” Id. (emphasis added).

6 Importantly, in judging “facial unsustainability,” the Ninth Circuit instructs that a court
7 must bring its “judicial experience and common sense” to bear in assessing whether the product

8 market plead accounts for obvious substitutes. Id. at 1121 (quoting Ashcroft v. Iqbal, 556 U.S. 662,

9 679 (2008)). Put differently, “[i]n considering a motion to dismiss [in an antitrust case], the court

10 is not required to don blinders and to ignore commercial reality.” Car Carriers, Inc. v. Ford Motor

11 Co., 745 F.2d 1101, 1110 (7th Cir. 1984).

12 Courts in this Circuit routinely serve this gatekeeping function and dismiss complaints
13 under Rule 12 if the antitrust market definition is facially unsustainable or implausible. See Hicks,

14 897 F.3d at 1120; Tanaka, 252 F.3d at 1063-64 (affirming Rule 12 dismissal where plaintiff’s

15 definition of the relevant market—“UCLA’s women’s soccer program”—was facially

16 unsustainable because “nothing beyond [plaintiff’s] personal preferences suggest[] that UCLA was

17 the only potential option for women’s intercollegiate soccer players in her position.”); Brignac v.

18 Yelp Inc., Case No. 19-CV-01188-EMC, 2019 WL 2372251, at *4 (N.D. Cal. June 5, 2019)

19 (dismissing antitrust claim under Rule 12 because the complaint “says nothing about economic

20 substitutes for Google’s product, i.e., other online search engines on which users can look for

21 eviction legal services,” rendering plaintiff’s relevant market definition “facially unsustainable.”);

22 Colonial Med. Group, Inc. v. Catholic Healthcare W., Case No. C-09-2192 MMC, 2010 WL

23 2108123, at *4 (N.D. Cal. May 25, 2010) (dismissing plaintiff’s complaint under Rule 12 because

24 its market definition—“the provision of medical services to prison inmates at secure or guarded

25 hospital facilities”—clearly excluded “inmates incarcerated in city and county jails,” among

26 others).

27 Hicks illustrates the point. Professional golf caddies complained that the PGA’s
28 requirement that they wear bibs carrying advertising monopolized and restrained trade in purported

14
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1 markets for advertising to golf fans and advertising during live golf tournaments. 897 F.3d at 1115.

2 The Ninth Circuit upheld the dismissal of their complaint because, as a matter of common sense,

3 the proposed markets “omit many economic substitutes.” Id. at 1121. Companies seeking to reach

4 professional golf fans could do so by “airing commercials during golf-related television programs,

5 radio broadcasts, or podcasts”; advertising “on golf-related websites or social media pages”; or

6 “advertising through a search engine or social media platform that provides advertisers insights on

7 users’ online history.” Id. An antitrust complaint cannot rely on “artificial” market definitions that

8 are “contorted to meet their litigation needs.” Id. (quotation marks omitted).

9 Here, the Sun alleges that the relevant market is the “sale of local daily newspapers” in
10 Clark County, Nevada, Cplt. ¶¶ 37, 40, which it says “supply readers with national, state and local

11 news and sports information in a timely manner and in convenient, portable, hardcopy format,”

12 and features “such as local event calendars, movies and television listings, classified

13 advertisements, [and] commercial advertisements,” Cplt. ¶ 36. But common sense informs us the

14 Sun is ignoring the myriad of alternative sources of news, features, and entertainment available to

15 consumers in Clark County. It is common knowledge that Clark County has a robust media

16 marketplace with numerous local broadcast television stations (many of which have their own

17 news websites), local radio stations (same), local physical and online newspapers and magazines—

18 such as the Nevada Appeal and The Nevada Independent (which covers Las Vegas and other

19 areas), local cable television stations, and numerous local websites and blogs. And that does not

20 include the ability of consumers to create their own custom news feed through Google or other

21 internet providers, or to create, distribute, and receive content through Twitter, Facebook and other

22 social media. Yet the Sun’s proposed market definition excludes all of these.8 These are substitutes

23 to which consumers can and do turn, and these are substitutes that, by definition, have the ability

24 to, and do, deprive the printed JOA newspapers of substantial business.

25

26
8
27 Mr. Greenspun, who verified the Sun’s complaint in the present action, took a different view in
the federal action he filed in 2013: “online newspaper websites are considered adequate
28 substitutions for printed newspapers,” Cplt. ¶ 57, Greenspun v. Stephens Media LLC, Case No.
2:13-cv-01494-JCM-PAL (D. Nev. Aug. 20, 2013), ECF No. 1.

15
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1 The Sun’s half- hearted and implausible assertions in support of its proposed market
2 definition only prove the point. Local daily newspapers may be “convenient” and “portable,” Cplt.

3 ¶ 36, but so are mobile phones, laptops and tablets, which provide access to the internet, apps and

4 streaming content; TVs, radios, and computers are already present in most homes, and cars have

5 digital and satellite radio, and many have internet access. Print newspapers may be “inexpensive,”

6 but broadcast television and radio and many news websites are free. And it is easy to find local

7 event calendars, movies and television listings, etc. from other sources—and again, for free.

8 Moreover, there is no dearth of advertising vehicles directed to consumers.

9 In 2019, when most Americans routinely get their news from television, internet-enabled
10 mobile devices, or satellite radio (to name a few), it is facially unsustainable, and completely

11 implausible as a matter of common sense, for the Sun to allege the existence of a daily newspaper-

12 only market that faces no competition whatsoever from television, internet, or radio news. The

13 Sun’s gerrymandered market definition results in only one market participant: the joint Review-

14 Journal/Sun newspaper, which is precisely the type of “artificial” market definition “contorted to

15 meet [the Sun’s] litigation needs” that the Ninth Circuit rejected in Hicks. 897 F.3d at 1121.

16 V. The Sun’s Complaint Fails To Allege Antitrust Injury.

17 A private plaintiff may only seek relief under federal antitrust laws if it has “antitrust
18 standing” (in addition to constitutional standing), meaning it has suffered injury “that the antitrust

19 laws were intended to prevent,” also known as “antitrust injury.” Eagle v. Star-Kist Foods, Inc.,

20 812 F.2d 538, 539-40 (9th Cir. 1987) (holding that Section 4 of the Clayton Act, authorizing private

21 antitrust suits, is limited to plaintiffs who have suffered “antitrust injury”). To satisfy the antitrust

22 injury element, a plaintiff must plead “sufficient facts to state a plausible antitrust injury” meaning

23 an “injury of the type the antitrust laws were intended to prevent” —i.e., injury to competition.

24 Somers v. Apple, Inc., 729 F.3d 953, 963 (9th Cir. 2013) (quoting Brunswick Corp. v. Pueblo Bowl-

25 O-Mat, Inc., 429 U.S. 477, 489 (1977)). “The antitrust injury requirement ensures that a plaintiff

26 can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s

27 behavior.” Atl. Richfield Co. v. USA Petrol. Co., 495 U.S. 328, 344 (1990) (first emphasis added).

28 “Where the defendant’s conduct harms the plaintiff without adversely affecting competition

16
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1 generally, there is no antitrust injury.” Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145,

2 1158 (9th Cir. 2003); LiveUniverse, Inc. v. MySpace, Inc., 304 F. App’x 554, 557 (9th Cir. 2008)

3 (dismissing federal antitrust complaint under Rule 12 because plaintiff failed to allege facts

4 supporting antitrust injury—i.e., harm to competition—rather than facts supporting harm to the

5 defendant). For these reasons, the plaintiff must “be a participant in the same market” as the

6 defendant—i.e., “either a consumer . . . or a competitor.” Eagle, 812 F.2d at 540.

7 The Sun’s complaint must be dismissed because it fails to allege antitrust injury and, thus,
8 it has no standing to bring its claims. There cannot plausibly be any harm to competition in the

9 artificially gerrymandered relevant market claimed by the Sun—“the sale of local daily

10 newspapers in Clark County,” Cplt. ¶¶ 13, 37—for the simple reason that there is no competition

11 in the sale of local daily newspapers as between the Review-Journal and the Sun under the 2005

12 JOA. See Eagle, 812 F.2d at 541 (affirming dismissal of Sherman Act claims where complaint

13 failed to alleged that plaintiffs were either consumers or competitors in the relevant market).

14 As the Sun concedes, under the 2005 JOA, the Review-Journal and Sun are only sold
15 jointly in a single package. Cplt. ¶ 24, 41. A reader either buys a package that includes both printed

16 newspapers or the reader buys neither, whether by subscription or at a newsstand. There simply is

17 no competition between the Review-Journal and Sun for the sale of printed newspapers. Eagle,

18 812 F.2d at 541 (dismissing claims at pleading stage because plaintiff crewmembers on fishing

19 vessel failed to allege facts showing that they were “sellers” in the relevant market).

20 In its complaint, the Sun points to news and editorial competition between the Review-
21 Journal and Sun. But that is not competition “in the sale of local daily newspapers,” the narrow

22 market the Sun alleges the Review-Journal is monopolizing. So-called editorial competition,

23 without actual economic competition, is not even “trade or commerce” within the meaning of the

24 Sherman Act, and thus cannot be the basis of an antitrust claim. Apex Hosiery Co. v. Leader, 310

25 U.S. 469, 493-97 (1940) (labor strike was not restraint on “trade or commerce,” even though strike

26 could lead to higher costs and prices); Johnson v. Comm’n on Presidential Debates, 869 F.3d. 976,

27 983 (D.C. Cir 2017) (dismissing antitrust claims of presidential candidates who were excluded

28 from televised debates, because the exclusion did not involve “trade or commerce” under the

17
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1 Sherman Act; the presidential campaigns were “no more regulated by the antitrust laws than the

2 ‘marketplace of ideas’”) (emphasis added); Dedication & Everlasting Love to Animals v. Humane

3 Soc’y of U.S., 50 F.3d 710, 714 (9th Cir. 1995) (Sherman Act did not apply to charitable

4 fundraising); Freedom Watch Inc. v. Judicial Watch, Inc., 289 F. Supp. 3d 1270, 1274-76 (S.D.

5 Fla. 2018) (exclusion from conservative political conference was not actionable under antitrust

6 laws because conference was not commercial activity). Finally, the news and editorial competition

7 the Sun alleges can continue as it does now, through its vaunted online version.

8
VI. The Sun Cannot Use Federal Antitrust Law To “Force” The Review-Journal To Do
9 Business With The Sun.
10 A. There is No “Duty to Deal” Under Antitrust Law.
11 As discussed above, if the Court follows the Supreme Court’s and Ninth Circuit’s
12 precedent on statutory construction and finds the 2005 JOA unenforceable, then the Sun’s claims

13 fail, and the Court need not decide anything else. However, an additional the antitrust laws do not

14 create any sort of “independent” duty for the Review-Journal to do business with the Sun.

15 Yet, in an attempt to dodge the terms of the parties’ contract (assuming it were an
16 enforceable contract, which it is not), including the right of each party to terminate it, the Sun tries

17 to conjure a federal antitrust claim that would force the Review-Journal to perform under the

18 parties’ contract for 20 more years, even if the state court agrees that the Sun materially breached

19 the contract. Cplt. ¶ 127 (Count 1), ¶ 137 (Count 2), and ¶ 147 (Count 3). This turns antitrust law

20 on its head. The fundamental premise of antitrust law is that companies should compete, not

21 cooperate. There is generally “no duty” under the antitrust laws to deal or “to aid competitors.”

22 Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 411 (2004)

23 (“Trinko”); MetroNet Servs. Corp. v. Qwest Corp., 383 F.3d 1124, 1131 (9th Cir. 2004).

24 In Trinko, the plaintiff and defendant were governed by a federal telecommunications

25 statute which “obligat[ed]” incumbent carriers like the defendant to “share its network with

26 competitors” pursuant to a congressional policy which sought to “uproo[t] incumbent [carriers’]

27 monopoly and to introduce competition in its place.” 540 U.S. at 402. Yet despite this heightened

28 statutory duty, which was specifically intended to spur competition, the Supreme Court still held

18
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1 that the defendant had no antitrust law duty to deal with the plaintiff. Id. at 411-15. Likewise, even

2 where parties have contractually agreed to collaborate or deal, this does not create or impose an

3 independent duty to deal under federal antitrust law. See In re Adderall XR Antitrust Litig., 754

4 F.3d 128, 135 (2d Cir. 2014) (dismissing complaint and holding that “the mere existence of a

5 contractual duty to supply goods does not by itself give rise to an antitrust ‘duty to deal’”); see

6 also SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 841 F.3d 827, 843 (10th Cir. 2016), (“Even

7 though [defendant] refused to grant access to the toolkit . . . and the jury concluded [defendant]

8 breached the License Agreement by its refusal, [defendant] did not have an independent antitrust

9 duty to share its intellectual property with [plaintiff].”)

10 Because each of the Sun’s claims is premised on forcing the Review-Journal to deal with
11 a former rival, they should be dismissed. See Trinko, 540 U.S. at 416 (affirming dismissal);

12 LiveUniverse, 304 F. App’x at 556-57 (same).9

13 B. The Narrow Aspen Skiing Exception Does Not Apply Here.

14 The Supreme Court has only recognized one “limited” and narrow exception to the general
15 rule that there is no antitrust duty to deal.10 That “narrow exception” comes from Aspen Skiing Co.

16 v. Aspen Highlands Skiing Corp., which upheld a jury verdict of antitrust liability based on a ski

17 resort’s refusal to continue in a joint lift ticket program with a competitor. 472 U.S 585, 603-11

18 (1985). Under this narrow exception, a firm may have a duty to deal only when it “unilateral[ly]

19 terminat[es] . . . a voluntary and profitable course of dealing,” MetroNet, 383 F.3d at 1132

20 (emphasis added), and where “the only conceivable rationale or purpose [for that termination]

21 is ‘to sacrifice short-term benefits in order to obtain higher profits in the long run from the

22

23 9
Although the Supreme Court in Trinko expressly refrained from recognizing a parties’ duty to
deal even where it owns an essential facility, the Court noted that the essential facilities doctrine
24 would not apply where, as here, the plaintiff has not pled the unavailability of access to the
essential facilities. 540 U.S. at 411. Although the Sun conclusorily alleges that there are no local
25 printing facilities that can print the Sun as “efficiently and effectively” as the Review-Journal, it
tacitly admits that those facilities are still available.
26
10
See Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 448 (2009) (reiterating the
27 “limited” scope of the sole exception to the no-duty-to-deal rule); Authenticom, Inc. v. CDK
Global, LLC, 874 F.3d 1019, 1026 (7th Cir. 2017) (describing Trinko’s holding as “an order to
28 continue to do business with a firm is proper only if the case fits within the limited exception
recognized in Aspen Skiing”) (emphasis added; quotation marks omitted).

19
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1 exclusion of competition,” Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171, 1184 (9th

2 Cir. 2016) (citation omitted). In Aspen, “what the defendant refused to provide to its competitor

3 was a product that it already sold at retail—to oversimplify slightly, lift tickets representing a

4 bundle of services to skiers.” Trinko, 540 U.S. at 410. In other words, the defendant’s refusal to

5 deal must make no economic sense or be “irrational but for its anticompetitive effect.” Novell, Inc.

6 v. Microsoft Corp., 731 F.3d 1064, 1075 (10th Cir. 2013).

7 The Sun cannot invoke the “narrow exception” under Aspen Skiing because none of the
8 predicates for the exception exists here. First, the Review-Journal did not terminate a “profitable

9 course of dealing.” MetroNet, 383 F.3d at 1132. As alleged in the complaint the joint arrangement

10 was losing money. In 2017, it “recorded a negative EBITDA.”11 Cplt. ¶ 70. The Sun blames the

11 Review-Journal for these losses, and accuses it of mismanagement, but that is irrelevant. The Sun

12 concedes the arrangement was not a “profitable course of dealing” and thus it fails the first

13 requirement to fit within the Aspen Skiing exception. Second, unlike Aspen Skiing, the Review-

14 Journal is seeking to terminate the 2005 JOA because the Sun materially breached the contract.12

15 The Aspen Skiing exception does not force a party to deal with a party who has materially breached

16 the parties’ contract.

17 Third, the Review-Journal’s termination of the 2005 JOA has numerous “conceivable
18 rationale[s] or purpose[s]” aside “from the exclusion of competition.” Aerotec, 836 F.3d at 1184

19 (quoting MetroNet, 383 F.3d at 1132); see also Novell, 731 F.3d at 1075 (Section 2 liability for

20 refusal to deal requires that the refusal make no economic sense or be “irrational but for [the]

21 anticompetitive effect[s]”). The “conceivable” benefits that spring from the termination of the JOA

22 are self-evident. It is eminently procompetitive to end a financially burdensome business

23 arrangement that has been breached, depriving the Review-Journal of the benefit of its bargain.

24 Indeed, even if the Sun had not breached, it would be economically rational for the Review-Journal

25
11
26 “EBITDA” is a measure of cash flow stands for “earnings before interest, taxes, depreciation,
and amortization.” Steiner Corp. v. Benninghoff, 5 F. Supp. 2d 1117, 1130 (D. Nev. 1998).
27 12 The fact that the Review-Journal is seeking to terminate the JOA for material breach in a state
court proceeding is a proper subject for judicial notice. See Las Vegas Sun, Inc. v. News+Media
28 Cap. Grp. LLC, A-18-772591-B (9/30/19 Counterclaim ¶¶ 41-45); United States ex rel. Robinson
Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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1 to terminate the agreement simply to save money. And, unlike Aspen Skiing, the Review-Journal

2 is not “refus[ing] to provide” the Sun with newspaper publishing services that it provides to other

3 customers in a retail market. MetroNet, 383 F.3d at 1133; see Aspen Skiing 472 U.S. at 608-11

4 (defendant ski resort refused to sell ski tickets to the plaintiff ski resort even at the retail price at

5 which it sold them to the public).

6 VII. Any Claims Based On The State Court Action Are Barred By Noerr-Pennington.
7 The Noerr-Pennington doctrine—which is rooted in the First Amendment—protects “those
8 who petition any department of the government for redress” from “statutory liability for their

9 petitioning conduct.” Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1006-07 (9th

10 Cir. 2008). The Noerr-Pennington doctrine “exempts bringing a lawsuit—that is, petitioning a

11 court—from antitrust liability.” Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1183 (9th Cir.

12 2005). The Review-Journal’s “steps to terminate” the 2005 JOA in the State Court Action (Cplt.

13 ¶¶ 108-09) is clearly protected and exempt from antitrust scrutiny.

14 The limited “sham lawsuit” exception to the Noerr-Pennington doctrine does not apply.
15 See Cplt. ¶ 108. To be found a sham, “the lawsuit must be objectively baseless in the sense that no

16 reasonable litigant could realistically expect success on the merits.” Prof’l Real Estate Inv’rs, Inc.

17 v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-62 (1993). A plaintiff invoking the sham

18 exception must affirmatively allege specific grounds supporting the alleged sham, and a

19 heightened pleading standard applies. Boone v. Redev. Agency of City of San Jose, 841 F.2d 886,

20 894 (9th Cir. 1988); Or. Nat. Res. Council v. Mohla, 944 F.2d 531, 535 (9th Cir. 1991) (affirming

21 dismissal where counterclaimant “failed to plead with particularity that [plaintiff’s lawsuit] was a

22 sham”). Here, the Sun’s “sham lawsuit” allegations are wholly conclusory; they simply label the

23 Review-Journal’s state court counterclaims as a “sham,” “made-up,” “objectively baseless,”

24 “unreasonable,” and resting on “impermissible grounds.” Cplt. ¶ 108. But the Sun offers no factual

25 allegations—or any explanation at all—to support its characterization of the Review-Journal’s

26 counterclaims. See Boone, 841 F.2d at 894 (“Conclusory allegations are insufficient to strip

27 [Defendants] of their Noerr-Pennington protection.”). The Sun’s complaint does not even deny

28 that it breached the 2005 JOA. Therefore, the sham exception cannot apply here.

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1 VIII. The Section 7 Claim Fails Because Defendants Are Not Acquiring Stock Or Assets.

2 Section 7 of the Clayton Act, 15 U.S.C. § 18, makes it unlawful for any person to “acquire
3 . . . the stock or other share capital . . . or any part of the assets of another person . . . where . . . the

4 effect of such acquisition may be substantially to lessen competition or tend to create a monopoly.”

5 (emphasis added.) The Sun includes this claim, but never explains why. None of the defendants

6 are even alleged to be acquiring stock or assets, let alone in a manner that violates the antitrust

7 laws. The complaint refers to “Defendants’ plan to attempt to purchase the Sun,” but provides no

8 factual allegations to support any such plan, nor any allegation that the Sun has offered to sell the

9 Sun newspaper which it owns. Indeed, the entire complaint accuses the Review-Journal of trying

10 to destroy the Sun, not buy it. This claim fails, and the Court should dismiss the fourth claim.

11 IX. The Nevada Unfair Trade Practices Act Claim Is Meritless.

12 The Sun’s claim under the Nevada Unfair Trade Practices Act (UTPA) fails for the same
13 reasons as its Sherman Act claim. The UPTA “tracks the provisions of the Sherman Act.”

14 Furniture Royal, Inc. v. Schnadig Int’l Corp., Case No. 18-cv-318 JCM (CWH), 2018 WL

15 6574779, at *4 (D. Nev. Dec. 13, 2018) (citations omitted).

16 X. The Sun’s Conspiracy Claims Fail.

17 A necessary element of a claim for conspiracy to monopolize is “the existence of a
18 combination or conspiracy to monopolize.” Paladin, 328 F.3d at 1158. However, the Sun’s

19 complaint is devoid of a single factual allegation establishing any such conspiracy between or

20 among any of the defendants. Moreover, as discussed more fully in Sheldon Adelson and Patrick

21 Dumont’s concurrently filed motion to dismiss, the Supreme Court’s Copperweld Rule

22 categorically bars the Sun’s conspiracy claims because the law does not recognize conspiracies

23 between and among a company and its own executives and/or owners, all of whom have a unity

24 of interest. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771 (1984); see 3B

25 Areeda & Hovenkamp, Antitrust Law ¶ 809 n.2 (citing cases).

26 / / /

27 / / /

28 / / /

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1 XI. Conclusion.
2 For the reasons discussed above, the Sun’s First, Second, Third, Fourth, and Fifth Claims
3 all fail as a matter of law and should be dismissed with prejudice. Fed. R. Civ. Proc. 12(b)(6).

4 DATED October 30, 2019.

5 KEMP, JONES & COULTHARD, LLP
6
By: /s/ J. Randall Jones
7 J. RANDALL JONES, ESQ., SBN 1927
MICHAEL J. GAYAN, ESQ., SBN 11135
8 MONA KAVEH, ESQ., SBN 11825
3800 Howard Hughes Parkway, 17th Floor
9 Las Vegas, Nevada 89169

10 RICHARD L. STONE, ESQ. (pro hac to be filed)

AMY M. GALLEGOS, ESQ. (pro hac to be filed)
11 DAVID R. SINGER, ESQ. (pro hac to be filed)
JENNER & BLOCK LLP
12 633 West 5th Street, Suite 3600
Los Angeles, California 90071
13
Attorneys for Defendants
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1 PROOF OF SERVICE
2 I hereby certify that on the 30th day of October, 2019, I served a true and correct copy of
3 the foregoing LAS VEGAS REVIEW-JOURNAL, INC. AND NEWS+MEDIA CAPITAL

4 GROUP LLC’S MOTION TO DISMISS COMPLAINT (FRCP 12(b)(6)) via the United States

5 District Court’s CM/ECF electronic filing system to all parties on the e-service list.

6
/s/ Patty Pierson
7 An employee of Kemp, Jones & Coulthard, LLP
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