Auraria Student Housing at the Regency, LLC v Campus Village Apartments, LLC

Campus appealed a jury verdict against it for conspiracy to monopolize arguing Auraria should have bene required to prove the relevant market. The panel vacated and remanded for further proceedings. It acknowledged that at the time of the complaint, circuit precedent did not require plaintiffs alleging conspiracy to monopolize under 15 USC 2, but, held that the reasoning of a later United States Supreme Court, Spectrum Sports, undermined circuit precedent as it stated the case relied upon in the circuit precedent only meant no relevant market was needed to prove a connection to interstate commerce but relevant market proof was need to prove monopolization. The panel held that this requirement applied to all aspects of 15 USC 2 including conspiracy cases and thus the circuit precedent was flawed and was no longer binding. It held the requirement to prove a relevant market served to harmonize case brought under 15 USC 2 including the need to identify the geographic and distributive boundaries of the relevant market and served the policies of antirust by focusing on harms to competition not competitors. The panel noted requiring proof of the relevant market is the majority position among circuits and the majority increased after the Spectrum Sport decision. It also cautioned that proof of defendant’s power within the market may not be needed in every conspiracy case as the focus in on agreement, overt act and intent not necessarily ability to monopolize. The panel held Auraria failed to identify any relevant market as it focused only on the contract between Campus and a university not the market for student housing or rental properties in Denver. However, because of the then controlling circuit precedent, the case was remand to allow Auraria an opportunity to prove the relevant market. The district court was reminded that the relevant market element was part of plaintiff’s burden not an affirmative defense. The panel held the statute of limitations had not run as the decision each school year to exclude Auraria from offering apartments to incoming freshmen was new injury and the state action defense did not apply as the controlling Colorado statute did not evidence an intent to displace competition in higher education housing as all the powers granted there were also found in the private sector.

United States v Wells

Wells appealed his conviction for sexually exploiting a child. The panel affirmed. It held that whether the jury could have convicted Wells of a lesser offense of voyeurism was irrelevant as there was evidence to convict him of exploitation. It held that the child’s beliefs about the videoing were irrelevant as it Well’s response or purpose that was at issue. It held the videos here qualified as lascivious display of genitals as the camera angles made the victim’s genitals’ the center of the pictures, bathrooms and showers are settings for sexual fantasies, victim was nude, Wells kissed and fondled victim in other settings and watched her shower, and he asked victim for sex and testified at trial he hoped victim would eventually have sex with him demonstrating the videos which were put on a thumb drive and hidden were made for arousal.