                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 08 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

TRENDSETTAH USA, INC. and TREND                  Nos. 16-56823; 16-56827
SETTAH, INC.
                                                 D.C. No.
              Plaintiffs-Appellants / Cross-     8:14-cv-01664-JVS-DFM
              Appellees,

 v.                                              MEMORANDUM*

SWISHER INTERNATIONAL, INC.,

              Defendant-Appellee / Cross-
              Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                    Argued and Submitted November 16, 2018
                              Pasadena, California

Before: FLETCHER and PAEZ, Circuit Judges, and GLEASON,** District Judge.

      Following a jury verdict for Trendsettah USA, Inc. and Trend Settah, Inc.

(“TSI”) in TSI’s antitrust and breach of contract case against Swisher International,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
Inc. (“Swisher”), the district court granted Swisher’s motion for a new trial as to

TSI’s antitrust claims but not as to TSI’s contract claims. The district court

granted Swisher judgment as a matter of law (“JMOL”) as to TSI’s monopolization

claim but not as to TSI’s attempted monopolization claim. Later, following our

decision in Aerotec International, Inc. v. Honeywell International, Inc., 836 F.3d

1171 (9th Cir. 2016), the district court reconsidered its earlier summary judgment

order, this time granting Swisher summary judgment as to TSI’s antitrust claims.1

      1. We begin our analysis with the district court’s reconsideration of

summary judgment because, were we to affirm the district court’s post-trial grant

of summary judgment to Swisher, we would not reach many of the district court’s

rulings on the other issues.2 We review the district court’s decision to reconsider

summary judgment for abuse of discretion, and we review the district court’s

summary judgment determination de novo. See Smith v. Clark Cty. Sch. Dist., 727

F.3d 950, 954–55 (9th Cir. 2013).




      1
        Swisher properly cross-appealed as to the district court’s antitrust rulings.
See Fed. R. App. P. 28.1(c)(4); Schwartzmiller v. Gardner, 752 F.2d 1341, 1345
(9th Cir. 1984).
      2
         We need not decide whether the district court erred in denying Swisher a
new trial as to the breach of contract claims due to our disposition of other issues
as set forth in this memorandum.
                                           2
      The district court did not abuse its discretion in reconsidering summary

judgment in light of Aerotec’s holding that “there is only a duty not to refrain from

dealing where the only conceivable rationale or purpose is ‘to sacrifice short-term

benefits in order to obtain higher profits in the long run from the exclusion of

competition.’” 836 F.3d at 1184 (quoting MetroNet Servs. Corp. v. Qwest Corp.,

383 F.3d 1124, 1132 (9th Cir. 2004)). Aerotec’s holding addressed a question of

law that Swisher had raised prior to trial regarding what constitutes anticompetitive

conduct. See F.B.T. Prods., LLC v. Aftermath Records, 621 F.3d 958, 962–63 (9th

Cir. 2010) (holding that a court may reconsider a question of law that was raised

“at some point before the judge submitted the case to the jury” where argument

does not rest on the sufficiency of the evidence); see also Williams v. Gaye, 895

F.3d 1106, 1122 (9th Cir. 2018) (discussing Ortiz v. Jordan, 562 U.S. 180 (2011)).

      However, in reconsidering summary judgment, the district court failed to

draw all reasonable inferences in favor of TSI, the nonmoving party. To the

contrary, the district court cited evidence that Swisher had introduced at trial to

support its assertion that it had legitimate business reasons for its conduct. But in

rendering its verdict, the jury clearly had rejected this evidence. See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (“[A]lthough the court

should review the record as a whole, it must disregard all evidence favorable to the


                                           3
moving party that the jury is not required to believe.”). Therefore, the district

court’s post-trial grant of summary judgment to Swisher on the antitrust claims

must be reversed.

      2. We turn then to the jury instruction issue, which formed the basis of the

trial court’s granting of a new trial on the attempted monopolization claim.

Swisher adequately preserved its objection to the trial court’s failure to give

Swisher’s proposed Jury Instruction 29. See Hunter v. Cty. of Sacramento, 652

F.3d 1225, 1230–31 (9th Cir. 2011). Swisher’s “claim of error relating to the jury

instructions, preserved by way of objection at trial, is subject to harmless-error

analysis.” United States v. DeJarnette, 741 F.3d 971, 983 (9th Cir. 2013).

However, on the merits, we hold that the jury instruction that was given adequately

and accurately instructed the jury on the applicable law. Although the precise

wording of the proposed instruction was different, the principle in the instruction

that was given is the same: in order for Swisher to have violated the antitrust laws,

its only purpose must have been to harm TSI.3 Therefore, the district court erred in

granting a new trial as to the attempted monopolization claim.



      3
       Jury Instruction 29, which was given, states in relevant part: “Thus, if
Swisher’s conduct harmed TSI’s independent interests and made sense only to
maintain monopoly power, it was not based on legitimate business purposes.” Cf.
Aerotec, 836 F.3d at 1184.
                                           4
      3. We turn next to the district court’s JMOL rulings. The district court erred

in granting JMOL to Swisher as to TSI’s monopolization claim because the jury

could agree with Swisher’s expert that the relevant market was national, and agree

with TSI’s expert that Swisher was liable for national damages. See Zhang v. Am.

Gem Seafoods, Inc., 339 F.3d 1020, 1038 (9th Cir. 2003) (“We must accept any

reasonable interpretation of the jury’s actions, reconciling the jury’s findings ‘by

exegesis if necessary[.]’” (quoting Gallick v. Baltimore & Ohio R.R. Co., 372 U.S.

108, 119 (1963))).

      The district court did not err in denying Swisher’s JMOL motion as to

attempted monopolization because “a reasonable jury could find that Swisher

attempted to monopolize a national market, but was successful in monopolizing

only some regional markets.” See Estate of Diaz v. City of Anaheim, 840 F.3d 592,

604 (9th Cir. 2016) (“The test is whether ‘the evidence, construed in the light most

favorable to the nonmoving party, permits only one reasonable conclusion, and that

conclusion is contrary to that of the jury.’” (quoting White v. Ford Motor Co., 312

F.3d 998, 1010 (9th Cir. 2002), opinion amended on denial of reh’g, 335 F.3d 833

(9th Cir. 2003))), cert. denied sub nom. City of Anaheim, Cal. v. Estate of Diaz,

137 S. Ct. 2098 (2017).




                                           5
      The district court also properly rejected Swisher’s assertion in its JMOL

motion that TSI had failed to show antitrust injury. “Swisher failed to rebut” TSI’s

evidence that “Swisher failed to timely deliver approximately 200 million

cigarillos under the private label agreements.” The district court correctly held that

“a reasonable jury could find that the restricted market output for cigarillos harmed

competition.” See Ohio v. Am. Express Co., 138 S. Ct. 2274, 2288 (2018) (“[We]

‘will not infer competitive injury from price and output data absent some evidence

that tends to prove that output was restricted or prices were above a competitive

level.’” (emphasis added) (quoting Brooke Group Ltd. v. Brown & Williamson

Tobacco Corp., 509 U.S. 209, 237 (1993))).




                                          6
      We hold as follows: the district court’s decision to reconsider its summary

judgment ruling is AFFIRMED. The district court’s grant of summary judgment

to Swisher as to its antitrust claims is REVERSED. The district court’s grant of a

new trial to Swisher as to the attempted monopolization claim is REVERSED.

The district court’s grant of JMOL to Swisher as to the monopolization claim is

REVERSED. The district court’s denial of JMOL to Swisher as to the attempted

monopolization claim is AFFIRMED. On remand, the district court is directed to

reinstate the jury’s verdict in its entirety. We award costs to TSI. See Fed. R. App.

P. 39(a)(4).

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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