Case 2:18-cv-02222-CM-KGG Document 1 Filed 05/04/18 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CINETOPIA LLC,
Plaintiff,
v.
AMC ENTERTAINMENT HOLDINGS,
INC. and
AMERICAN MULTI-CINEMA, INC.,
Defendants.

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Case No. 18-cv-2222

COMPLAINT AND JURY DEMAND
Plaintiff, Cinetopia LLC, hereby states for its Complaint against AMC Entertainment
Holdings, Inc. and its subsidiary American Multi-Cinema, Inc. (collectively “AMC”) as follows:
NATURE OF THE ACTION
1.

This case is about AMC’s weaponization of clearances to insulate its older movie

theaters from competition and stifle its rivals’ efforts to introduce innovative new theater concepts
to consumers. AMC has violated federal antitrust law and state law with respect to the market for
exhibition of “first run,” feature-length motion pictures1 (“Movies”).
2.

AMC is the largest Movie theater operator in the United States. In the 1990s, AMC

achieved its dominant position by building megaplexes on top of its competitors, playing the same
Movies at the same times as them, and driving them out of business. By the 2000s, AMC possessed
an enormous circuit of aging theaters while new nimble competitors, like Cinetopia, were

1

Motions pictures are also known as “films.”

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introducing upscale cinematic entertainment destinations that used Movies in synergy with other
cultural offerings to increase the audiences of both.
3.

Threatened by these innovative competitors, AMC’s former Chief Executive

Officer, Gerry Lopez, said that AMC would use the “full weight and power” of AMC to prevent
them from building new theaters near AMC Theaters. AMC adopted a new “National Clearance
Position” and informed Movie distributors that AMC wanted “clearances” over any new theater
within three miles of an existing AMC theater. (“Clearance” means exclusivity – Movie
distributors could not simultaneously license the same Movies to AMC and to nearby competitors.)
4.

AMC adopted this new exclusivity policy to prevent or limit entry of innovative

theater concepts and to insulate AMC from competition.
5.

On May 23, 2014, Cinetopia opened a cutting-edge dine-in multiplex in Overland

Park, Kansas (“Cinetopia Overland Park 18”). Cinetopia was the anchor tenant of the Prairiefire
at Lionsgate development (“Prairiefire Development”), which was created and managed by MC
Prairiefire. The Prairiefire Development is located virtually next door to AMC’s headquarters and
amidst three AMC megaplexes.
6.

AMC immediately targeted Cinetopia Overland Park 18 with its new clearance

policy. AMC’s clearances prevented Cinetopia Overland Park 18 from showing many top Movies,
torpedoed its debut as a destination theater, injured its reputation, and caused it to incur substantial
operating losses. AMC’s clearances also undermined the debut of the Prairiefire Development,
reducing its attendance and revenues and limiting its growth and viability.
7.

In other words, AMC dealt a crippling blow to Cinetopia Overland Park 18 and the

Prairiefire Development at the critical moment of their launch.

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8.

Such patently anticompetitive conduct is precisely what the antitrust laws were

designed to punish and prevent.
9.

AMC has used its national market power, as well as its market power in Overland

Park, Kansas, to coerce Movie distributors into denying Cinetopia Overland Park 18 fair,
competitive access to Movies. This illegal conduct has restricted output in the relevant market,
limited the public’s freedom of theater choice, reduced the quality of Movie theaters offered to the
public, severely damaged competition in the relevant Movie market, and damaged Cinetopia’s
business and property.
10.

Cinetopia brings this action to obtain compensatory damages, treble/punitive

damages, injunctive relief, litigation costs, reasonable attorneys’ fees, and other relief from AMC.
JURISDICTION AND VENUE
11.

This Court has subject matter jurisdiction of this action pursuant to 15 U.S.C. §§ 4

and 15(a) and 28 U.S.C. §§ 1331 and 1337(a). Cinetopia alleges violations of the Sherman
Antitrust Act over which this Court has jurisdiction under 15 U.S.C. §§ 4 and 15 and 28 U.S.C.
§ 1337(a). This Court also has federal question jurisdiction over Plaintiffs’ federal antitrust claims
under 28 U.S.C. § 1331. The licensing and exhibition of Movies is a commercial activity that
substantially affects, and is in the flow of, interstate trade and commerce. In addition, the parties’
activities in purchasing equipment, services, and supplies substantially affect interstate commerce.
12.

This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s

state-law claims.
13.

This Court has personal jurisdiction over Defendants because (1) the corporate

headquarters of each Defendant is located in Kansas; (2) Defendants have systematic contacts with
Kansas because they have, either directly or through their agents, purposefully availed themselves
of the benefits and protections offered by the State of Kansas by conducting business in this State;
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and (3) Defendants have committed unlawful acts within Kansas that give rise to the causes of
action alleged herein.
14.

Venue is proper in this Court under 28 U.S.C. § 1391(b), as both Defendants reside

in Kansas and a substantial part of the events giving rise to the claims occurred in Kansas.
PARTIES
15.

Cinetopia LLC is a limited liability corporation formed under the laws of the State

of Washington and headquartered in Beaverton, Oregon. Cinetopia LLC owns and operates four
Movie theaters: (1) the Cinetopia Overland Park 18 in Overland Park, Kansas; (2) the Cinetopia
Progress Ridge 14 in Beaverton, Oregon; (3) the Cinetopia Vancouver Mall 23 in Vancouver,
Washington; and (4) the Cinteopia Mill Plain 8 in Vancouver, Washington.
16.

Defendant AMC Entertainment Holdings, Inc. is a Delaware corporation with its

headquarters at One AMC Way, 11500 Ash Street, Leawood, Kansas.
17.

Defendant American Multi-Cinema, Inc. is a Missouri corporation with its

headquarters at One AMC Way, 11500 Ash Street, Leawood, Kansas. American Multi-Cinema,
Inc. is an operating subsidiary of Defendant AMC Entertainment Holdings, Inc.
18.

AMC is the #1 Movie theater operator in the U.S. As of December 31, 2017, AMC

owned, operated, or held interests in 649 Movie theaters with a total of 8,224 screens in the United
States.
FACTUAL BACKGROUND
I.

DEFINITIONS AND MOVIE INDUSTRY STRUCTURE
19.

Movies are a unique form of entertainment. The experience of viewing a Movie in

a theater differs from live entertainment (e.g., a stage production), a sporting event, or viewing a
Movie at home (e.g., on a DVD or via pay-per-view).

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20.

Home viewing is not a reasonable substitute for viewing Movies in a theater. The

theater experience for Movies is not easily replicated in the home; theaters offer advanced sound
systems, larger screens, and a social experience. Additionally, most popular, newly released, “first
run” Movies are not readily available for home viewing.
21.

Differences in the pricing of various forms of entertainment also reflect their lack

of substitutability in the eyes of consumers. Ticket prices for Movies are generally different from
prices for other forms of entertainment.
22.

Tickets for most forms of live entertainment are typically much more expensive

than Movie tickets.
23.

Renting a Movie via DVD or pay-per-view is usually much less expensive than

viewing a Movie in a theater. Rental fees are generally lower than ticket prices. Viewing a Movie
in a theater also imposes additional costs on consumers in the form of driving costs (driving time,
gasoline, and vehicle depreciation) plus concession costs (in-theater prices for food and drinks are
higher than prices for the equivalent food and drinks purchased elsewhere).
24.

Movies come to the public through a three-step process: production, distribution,

and exhibition. These steps involve extensive activities affecting interstate commerce.
25.

Producers. Producers are persons or companies responsible for creating a Movie.

A producer gathers the writers, directors, actors, and other talent necessary to create a Movie. The
producer also arranges for financing and either distributes the Movie itself or engages a distributor
for that purpose.
26.

Distributors. Distributors are companies that arrange for the marketing, promotion,

and licensing of Movies for public exhibition in theaters throughout the United States and the
world.

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27.

Exhibitors. Exhibitors are persons or companies that operate one or more theaters

in which Movies are exhibited or shown to the public. When an exhibitor operates multiple
theaters, its theaters are collectively known as a “circuit.” Many theaters have multiple screens,
each of which is located in its own auditorium, thereby allowing more than one Movie to be
exhibited in the theater at the same time. Such theaters are known as multiplexes, megaplexes, or
theater complexes. Multiplexes are often located in malls, retail complexes, or entertainment
destinations. The most important driver of the economic success of an exhibitor is fair competitive
access to Movies.
28.

Movie Licenses. Distributors grant exhibitors licenses to show Movies for a

specified, unbroken period of time (a “run”). In return, exhibitors pay the distributor a Movie
rental fee, usually calculated as a percentage of the gross box office revenues from the sale of
tickets to view the Movie.
29.

First Run. First run means the initial period of time when a Movie may be exhibited

after its release date. A Movie’s theatrical exhibition life generally is no more than a few weeks.
For this reason, a Movie’s first run typically is its only theatrical run, except for a limited number
of Movies that are licensed for a second run or “sub run” in certain markets at discounted admission
prices. Most Movies are released in other entertainment formats (e.g., DVD and pay-per-view
television) approximately 90–120 days after they are released in theaters. An exhibitor who cannot
obtain license rights to a Movie’s first run will likely never have access to the Movie, or will have
access to it only after its theatrical exhibition value has been virtually exhausted.
30.

Day-and-Date. Given the short duration of first runs, distributors try to maximize

revenues by showing new Movies in as many locations as possible on their opening dates. This
strategy capitalizes on initial consumer demand, which usually substantially declines each week

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after a Movie’s opening date. Release date “screen count,” the number of screens on which a
Movie is exhibited on the date of its release, has become an important measure of a Movie’s
success from the distributors’ perspective. Distributors pressure exhibitors to increase opening
screen count by charging them higher rental prices for a Movie’s opening week. For these reasons,
distributors typically license their Movies to exhibitors on a “day-and-date” basis, meaning that
other exhibitors can show the Movie at the same time (i.e., on the same day and date).
31.

Film Zones. A “film zone” is a geographic or trade area in a city or other area of

significant population. Some film zones are “non-competitive” because the zone has only one
theater, which faces no competition for licensing or exhibiting films. Other film zones are
“competitive” because they have multiple theaters operated by more than one exhibitor.
32.

Clearances.

A “clearance” is an exclusivity agreement, express or implied,

between a distributor and a preferentially-treated exhibitor that applies to a film zone. When a
clearance is in effect, the distributor agrees that it will not license a Movie to play or run “day-anddate” (i.e., simultaneously) with any other theater in a “film zone.”
33.

AMC operates a substantial number of theaters across the United States in non-

competitive film zones. In these zones, AMC is a de facto monopolist exhibitor.
34.

Dominant exhibitor circuits like AMC derive substantial market power from their

ability to provide numerous exhibition locations simultaneously to distributors, including locations
in non-competitive film zones where a distributor has no other alternative exhibitor to play a
Movie.
35.

Circuit Deals.

“Circuit deals” are agreements or understandings, express or

implied, whereby dominant exhibitor circuits use their circuit and market power to obtain, among
other preferential Movie licensing treatment, clearance agreements that exclude other exhibitors

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from playing Movies day-and-date or at all on first run. Such clearance agreements are not in the
independent economic best interest of the distributors, who are coerced or induced to grant such
clearances.
36.

Circuit deals have long been illegal under antitrust law as set forth, inter alia, by

the United States Supreme Court decisions in United States v. Griffith, 334 U.S. 100 (1948), and
United States v. Crescent Amusement Co., 323 U.S. 173 (1944), and violate the antitrust
requirement that Movies be licensed on a theater-by-theater, film-by-film basis, as set forth in
United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948).
II.

RELEVANT MARKETS
A.

Relevant Product Market

37.

Cinetopia Overland Park 18 and AMC compete in a relevant product market for the

licensing and public exhibition of “first run,” feature-length Movies (“Movie Market”). The most
important Movie product is the blockbuster. Blockbusters are the subset of Movies that are (1) the
most expensive to make; (2) the most heavily advertised and promoted by producers, distributors,
and exhibitors; and (3) the most likely to generate significant box office revenues. Blockbusters
are frequently distributed in special formats (such as Premium Large-Screen Format or “PLF”) for
projection on special equipment (such as IMAX or GXL screens) to increase blockbuster
attendance and to maximize blockbuster revenues. Blockbusters are particularly important to
exhibitors, and many exhibitors depend upon access to blockbusters for their survival.
38.

The Movie Market is a mature market featuring little growth. Over the past ten

years, total U.S. and Canadian theater admissions declined while total box office revenues
remained relatively flat. For these reasons, Movie producers and distributors have been vocal

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supports of new upscale theater concepts like Cinetopia that hold potential to grow the Movie
Market.
39.

The Movie Market is also concentrated at both the distribution and exhibition

levels. At the distribution level, seven distributors earn over 90% of U.S. box office revenues: (1)
Disney; (2) 20th Century Fox; (3) Lionsgate; (4) Paramount; (5) Sony; (6) Universal; and (7)
Warner Brothers. Blockbusters account for a disproportionate share of these box office revenues.
40.

At the exhibition level, three circuits earn over 50% of U.S. box office revenues:

(1) AMC, (2) Regal Entertainment Group, and (3) Cinemark USA, Inc.
B.

Relevant Geographic Market

41.

The relevant geographic market for the exhibition of Movies is local because

patrons will travel only so far to see Movies. Approximately 52% of the U.S. population lives
within 10 miles of an AMC theater. Cinetopia Overland Park 18 performed a survey of weekend
patrons in 2014, which determined that 2,869 of the 2,934 respondents (98%) came from within a
10-mile radius.
42.

The relevant geographic area of the Movie Market is the area within a 10-mile

radius of Cinetopia Overland Park 18 (“Overland Park Movie Market”).
III.

COMPETITORS AND THEIR OFFERINGS IN THE OVERLAND PARK
MOVIE MARKET
A.

Cinetopia

43.

The Cinetopia Overland Park 18 theater complex is located in the Prairiefire

Development at 5724 West 136th Terrace in Overland Park, Kansas. The Prairefire Development
is located near AMC’s corporate headquarters and amidst three AMC multiplexes. MC Prairiefire
recruited Cinetopia to be its largest tenant. Cinetopia receives twice as many clicks as any other
attraction on the Prairiefire Development internet homepage.

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44.

Cinetopia Overland Park 18 is a unique, cutting-edge Movie venue in numerous

respects. It operates a restaurant, Vinotopia, on the premises. Vinotopia features multiple dining
experiences, including a sports bar with 11 LED screens, an upscale dining room, an outdoor
dining area, an outdoor lounge, and a wine-tasting cellar room available for unique events like
wine classes and wine-maker dinners. Vinotopia also offers a private dining room available by
reservation. Vinotopia offers haute cuisine, along with a full bar service including mixed drinks,
27 beer offerings, and 50 wines.
45.

A majority of Cinetopia Overland Park 18’s seats are located in three theaters

designed for the exhibition of blockbusters. These theaters contain giant-screen GXL theaters with
Dolby ATMOS 128 channel 360 degree sound, 4K projection, extra-wide rows and ultra-steep
VIP coliseum seating. GXL theaters, like IMAX theaters, are designed to show PLF Movies.
Cinetopia’s GXL screens are up to twice as large as commercial IMAX screens. Cinetopia also
offers an extensive restaurant and bar menu in its GXL theaters.
46.

Although PLFs comprise less than 20% of the total Movie releases in a given year,

Cinetopia has historically earned approximately 65% of its annual box office revenue from PLF
titles.
47.

Cinetopia Overland Park 18 also offers 10 Living Room Theaters, featuring a

proprietary tiered privacy box seating design, with full electric recliners, 6-8 wall-mounted LED
panels creating an immersive Movie experience, and full restaurant and bar service. Living Room
Theaters can be rented out for themed Movie parties, interactive high-definition gaming parties,
business presentations, birthdays, and other special events.
48.

Cinetopia Overland Park 18 also offers a proprietary Movie Parlor with a 30-foot

Movie screen, 20 additional immersive LED screens, and custom cuddle couches. Full premium

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concessions, including the restaurant and bar menu, are delivered to patron’s seats. The Movie
Parlor can be rented out for themed Movie parties, interactive high-definition gaming parties, live
high-definition sports events, business presentations, birthdays, and other special events.
49.

Virtually all of Cinetopia Overland Park 18’s theaters offer reserved seating. Each

auditorium is equipped with plush Ultra Leather extra wide seats, extra leg room, and stadium
viewing. Many of the theaters have restaurant service, private viewing space, and other luxury
accommodations. Cinetopia offers Movie-goers the opportunity to consume alcoholic beverages
before and during screenings.
50.

Cinetopia has found that a significant number of its patrons are not regular Movie-

goers and would likely not have purchased a Movie ticket but for Cinetopia’s unique amenities.
Cinetopia thus grows the Movie-going market.
B.

AMC

51.

AMC operates three megaplexes with a total of 62 screens within 10 miles of

Cinetopia Overland Park 18. AMC operates the AMC Town Center 20 at 11701 Nall Avenue in
Leawood, Kansas, approximately 2.7 miles from Cinetopia Overland Park 18. AMC operates the
Studio 28 at 12075 South Strang Line Road in Olathe, Kansas approximately 8.6 miles from
Cinetopia Overland Park 18. AMC operates the Ward Parkway 14 at 8600 Ward Parkway in
Kansas City, Missouri, approximately 8.9 miles from Cinetopia Overland Park 18.
52.

AMC’s nearby theaters purport to offer one or more of the following amenities:

recliner seating, reserved seating, dine-in service, bar service, 3D, Dolby sound, and IMAX
screens. But AMC’s amenities are materially different from Cinetopia’s amenities, in part because
AMC’s amenities are neither as innovative nor as luxurious as Cinetopia’s amenities.

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53.

AMC’s Town Center 20 multiplex, the closest AMC theater to Cinetopia Overland

Park 18, does not offer a restaurant or upscale dining menu or in-theater waiter and staff service.
Consumers have posted the following online reviews of AMC Town Center 20:
September 8, 2017 – As soon as I walked in the front door, there was trash littered
by the box office. Then the bathroom had some . . . issues. I won’t go into
specifics, but it was gross. And then in the theater there was a half eaten bag of
popcorn in my seat. The people next to me said it wasn’t theirs. I looked around
and notice LOTS of popcorn and bags scattered around, empty cups in cup holders,
candy boxes, etc. Clearly they hadn’t cleaned the theater after the last screening. .
..
August 15, 2017 -- . . . I really like the updated theater and appreciate being able to
buy tickets through the app, select seats, and avoid the ticket purchase line, but was
disappointed the popcorn machine and seat foot rest were both broken. I would
expect the theater to be better maintained.
April 1, 2017 – They never pick up the phone and I need to talk to an employee
about an issue from when I saw a Movie there. The experience was fine by their
customer service blows.
January 25, 2017 -- . . . This location is in a very “ritzy” shopping area – Town
Center – and is one of our newer theaters. Because of this we were expecting a
very clean theater, everything working as it should, no issues. Sadly this was not
the case.
. . . [T]he only seats that were available for this Movie were front row. That’s ok
though because the seats recline all the way back. Oh, wait, unless they are
BROKEN. Yup, both of our seats weren’t working. Seats A7 and A 8 in theater
15 in case you’re curious.
. . . Overall I’m very disappointed in both the theater and AMC in general.
August 11, 2016 . . . Popcorn isn’t scooped to order, it is more buffet style so it was
cold. Movie went out today for almost 10 minutes. Obviously everything is
overpriced as well.
January 9, 2016 . . . I’m glad the tickets were free. That’d be the only way I’d ever
go back and it’d still be a pretty tough decision.
C.

Regional Theaters

54.

Three other theaters operate a total of 24 screens within 10 miles of Cinetopia

Overland Park 18.

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1.
55.

B&B Theatres

A regional theater chain, B&B Theatres, operates the Overland Park 16 at 8601

West 135th Street in Overland Park, Kansas, approximately 2.2 miles from Cinetopia Overland
Park 18. The only amenities that B&B offers are stadium seating and 3D.
2.
56.

Glenwood Arts – Leawood Theatre

The Glenwood Arts - Leawood Theatre operates six screens at 3707 West 95th

Street in Overland Park, Kansas, approximately 6.5 miles from Cinetopia Overland Park 18. The
Leawood Theatre does not offer any of the above-listed amenities.
3.
57.

Standees Theatre

The Standees Theatre operates three screens at 3935 West 69th Terrace in Prairie

Village, Kansas, approximately 9.0 miles from Cinetopia Overland Park 18. The Standees Theatre
offers an upscale restaurant and bar and in-theater amenities.
IV.

AMC POSSESSES MARKET POWER IN THE OVERLAND PARK MOVIE
MARKET
58.

AMC exerts market power over the Overland Park Movie Market in two ways.

59.

First, AMC offers distributors the largest circuit for the exhibition of Movies in the

U.S. AMC boasts publicly about its “#1 or #2 position by market share” in 10 major cities. AMC
claims that, “[a]s of December 31, 2015, approximately 94% of our screens in the United States
were located in Movie licensing zones where we are the sole exhibitor.” Internal AMC documents
identify 200 AMC theaters with no competitors within three miles – the criterion AMC uses to
determine whether a rival’s prospective theater will compete with it.
60.

Second, AMC operates 62 of the 104 screens (60%) operating within a 10-mile

radius of Cinetopia Overland Park 18, and, according to Rentrak data, these theaters generate
approximately 70% of the box office revenues within that area.

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61.

AMC’s market power is further evidenced by its ability to force distributors to

exclude Cinetopia from the market, as detailed below, and the high barriers to entry into the
market.
V.

AMC’S ANTICOMPETITIVE CONDUCT AND ITS EFFECTS
62.

Prior to approximately 2009, AMC generally did not demand clearances over

nearby competing theaters throughout the United States. Instead, it competed on the merits.
A.

AMC’s Campaign To Exclude Competitors

63.

In 2009, AMC underwent a significant management restructuring.

Gerardo

(“Gerry”) Lopez was appointed the new President and CEO and elected to AMC’s board of
directors.
64.

As a result of the restructuring, AMC began a national exclusionary campaign to

prevent or limit competitive entry. AMC used its dominant circuit position and its monopoly
power in a substantial number of film zones to prevent or deter distributors and landlords from
dealing with AMC’s competitors. This strategy was built upon the assertion of clearances, or
exclusive dealing provisions, in Movie licenses.
65.

Around 2010, AMC developed a “National Clearance Position.” AMC eventually

articulated this new clearance policy as follows:
AMC asks distributors to grant clearances (i.e. allocate film) in situations where
competitors open/re-open in close proximity . . .




Within 3 driving miles of existing AMC location across the U.S.
Within 1.5 driving miles of existing AMC location where over 250,000 people live
within 3 miles of AMC location (densely populated)
Within 1 mile of existing AMC location in Manhattan (most densely populated).

66.

AMC discussed this policy with each distributor. AMC insisted on clearances to

protect any theater in its national circuit from “competitive encroachment.” AMC advised the

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distributors that it “had considered this position carefully” and would “stand behind it for the longterm health of our shared business.”
67.

AMC also discussed this policy with developers and landlords who were

considering potential theater developments near AMC theaters. AMC emphasized that clearances
would significantly impair the box office revenues of these new theater developments.
68.

Internally, AMC circulated “competitive encroachment film clearance” reports and

held “competitive encroachment meetings,” in which it would monitor new potential
developments, decide whether to exact clearances, and then monitor the outcomes.
69.

AMC enforced its exclusionary policy by concrete actions.

70.

In early 2010, AMC used its clearance policy to “bleed . . . dry” a Studio Movie

Grill dine-in theater in Kansas City, Missouri six months after it had opened, costing Studio Movie
Grill $6.5 million. Studio Movie Grill closed, leaving AMC’s Barrywoods 24 theater as the sole
theater in the zone.
71.

Shortly thereafter, AMC successfully asserted its clearance policy against a new

Cobb Theatre “CinéBistro” venue in Atlanta, Georgia. AMC’s then-CEO, Gerry Lopez, told Cobb
Theatres that AMC would use the “full weight and power” of AMC to prevent them from building
new theaters near AMC Theaters.
72.

Rich Boynton, then Senior Vice President and Head Film Buyer for the AMC

Phipps Plaza 14 and the AMC Fork & Screen Buckhead, sent a letter to the major film distributors
in which he stated:
[The Brookhaven CinéBistro] is 1.9 miles northeast of our AMC
PHIPPS 14 and 2.5 miles northeast of our AMC FORK & SCREEN
BUCKHEAD 6, and thus we will not play day-and-date with a
venue at this location. . . . We have played 100% of your wide
commercial releases and look forward to continuing that
arrangement going forward.

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73.

This letter operated as a de facto demand by AMC for preferential or exclusive

Movie licensing treatment over the Brookhaven CinéBistro—a demand that distributors (1) refuse
to license certain Movies to the Brookhaven CinéBistro or else risk being denied the grossing
potential of AMC’s Buckhead theaters and, implicitly, some or all of the theaters in its entire
circuit, and that they (2) allow AMC to play Movies at its two Buckhead theaters day-and-date but
refuse to license the Brookhaven CinéBistro for day-and-date play with those same theaters.
B.

AMC Targeted Cinetopia Overland Park 18

74.

In 2013, AMC learned that MC Prairiefire had recruited Cinetopia to be an anchor

tenant at the Prairiefire Development and that construction of the Cinetopia Overland Park 18’s
facilities was underway. AMC contacted Cinetopia, claimed to be interested in buying the
Cinetopia Overland Park 18 facility, and suggested some very attractive prices. Cinetopia met
with AMC in good faith, allowed AMC to tour its Overland Park facilities, and shared information
with AMC in furtherance of the purported deal. AMC used some of this information to improve
its own theaters. In the end, however, AMC told Cinetopia that it should simply transfer ownership
of Cinetopia Overland Park 18’s facilities for free.
75.

When Cinetopia declined this “offer,” AMC responded: “Okay, then I guess we

will see what happens next summer when you try to open.”
76.

AMC’s “offer” demonstrates that it had both the intent and the capability of

throttling Cinetopia in the Overland Park Movie Market. Theater margins are thin, and operating
costs are relatively predictable. AMC therefore knew that it did not need to cut off Cinetopia’s
access to every Movie in order to torpedo Cinetopia’s entry. AMC could accomplish the same
thing merely by denying Cinetopia’s access to a certain number of critical Movies.

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77.

Starting in May 2014, AMC successfully implemented clearances against Cinetopia

Overland Park 18, purportedly based upon its proximity to AMC’s Town Center 20 theater.
78.

Cinetopia Overland Park 18 opened on May 22, 2014. AMC’s clearances denied

Cinetopia access to the blockbuster Godzilla, so Cinetopia opened with the only other available
blockbuster, X-Men: Days of Future Past.
79.

In addition to blocking Cinteopia’s access to Godzilla, AMC further undermined

Cinetopia’s Prairiefire debut by blocking Cinetopia’s access to all of the other Movies that were
already playing at AMC Town Center 20. Because AMC Town Center 20 was already playing
virtually all of the desirable Movies that were available at the time, Cinetopia Overland Park 18
was unable to obtain enough desirable Movies to utilize all, or even most, of its screens. When
Cinetopia Overland Park 18 opened, it was only able to obtain access to four different Movies for
its 17 screens. Meanwhile, AMC blocked Cinetopia Overland Park 18’s access to 12 other Movies
that it wanted.
80.

These patterns continued through 2014 and in subsequent years.

81.

AMC continued to assert clearances that blocked Cinetopia Overland Park 18’s

access to numerous blockbusters. For example, in 2014, Cinetopia Overland Park 18 was denied
access to such Movies as Disney’s Captain America: Winter Soldier, Guardians of the Galaxy,
Million Dollar Arm, and Big Hero 6; Paramount’s Teenage Mutant Ninja Turtles and Interstellar;
Sony’s The Amazing Spider-Man 2 and The Equalizer; Universal’s Neighbors and Lucy; and
Warner Brothers’ Godzilla, Edge of Tomorrow, and Hobbit: The Battle of the Five Armies.
82.

In 2015, for example, Cinetopia Overland Park 18 was denied access to such

blockbusters as Disney’s Avengers: Age of Ultron, Ant-Man, and The Good Dinosaur; Lionsgate’s
The Hunger Games: Mockingjay Part 2, and Divergent Series: The Insurgent; Paramount’s

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Mission: Impossible Rogue Nation, SpongeBob Movie: The Sponge Out of Water, Terminator:
Genisys, and Daddy’s Home; Sony’s Spectre: 007 and Hotel Transylvania 2; and Universal’s
Jurassic World, Furious 7, Minions, Everest, and Pitch Perfect 2.
83.

AMC also continued to block Cinetopia Overland Park 18’s access to sufficient

numbers of desirable Movies to utilize all of its screens. The first time that Cinetopia Overland
Park 18 was able to exhibit at least 14 different Movies on its 17 screens was the week of
September 5, 2014. Even then, most of these were second-rate Movies whose box office
performances compared unfavorably to seven other Movies that Cinetopia could not acquire due
to AMC’s clearances.
84.

As of December 30, 2016, Cinetopia was still blocked from access to popular

Movies like La La Land, Lion, and Manchester by the Sea, even though Cinetopia could not obtain
enough desirable Movies to fill all of its 17 screens.
85.

If AMC had not demanded preferential treatment, distributors would not have

enforced clearances against Cinetopia Overland Park 18. Indeed, playing Movies day-and-date
with competitors is common in the industry, including among exhibitors that are located three
miles apart, or less. AMC itself plays day-and-date with competitors located three miles away, or
less. Distributors routinely grant licenses to AMC to play day-and-date with its own theaters
(including the AMC Town Center 20, AMC Studio 28, and AMC Ward Parkway 14 in Kansas)
and theaters of other dominant exhibitors. It would be in the independent best economic interest
of the distributors to license Movies to Cinetopia Overland Park 18 on a day-and-date basis with
AMC’s nearby theaters.
86.

AMC’s exclusionary demands, backed by AMC’s circuit and monopoly power,

were the reason distributors denied Cinetopia fair competitive access to Movies. These denials

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were not based on the distributors’ assessment of the quality and customer-drawing capacity of
Cinetopia Overland Park 18.
87.

But for AMC’s use of its market power to coerce distributors into granting these

clearances, the clearances would have been economically irrational for each distributor.
88.

Cinetopia offered distributors several advantages compared to AMC or other

competitors. First, Cinetopia offered a differentiated product that appealed to a segment of upscale
Moviegoers who were unlikely to use AMC. Cinetopia thus offered the prospect of expanding the
Movie-going public to include customers that AMC could not reach.
89.

Second, to the extent Cinetopia competed with AMC for the same customers,

Cinetopia offered better amenities and Movie-going experiences per consumer dollar spent than
AMC. Cinetopia also charged premium pricing that yielded higher average revenues per seat than
AMC for certain Movies.
90.

The clearances injured consumers. The clearances reduced output in the Overland

Park Movie Market by reducing the total number of screens and viewings. The clearances also
deprived consumers of the opportunity of seeing certain Movies with the unique and higher quality
amenities of Cinetopia Overland Park 18. Therefore, consumers were made worse off each time
AMC asserted clearances against Cinetopia Overland Park 18.
91.

The clearances also injured Cinetopia. In order to survive, an exhibitor needs fair

competitive access to a sufficient number of Movies to maximize its revenues and to utilize all of
its screens. This is especially true of cutting-edge multiplexes featuring extra-large theaters
devoted to blockbusters, like Cinetopia Overland Park 18, because these types of theaters rely
particularly heavily on blockbuster box office revenues. AMC’s clearances denied Cinetopia

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Overland Park 18 fair and competitive access to critical Movies and caused Cinetopia Overland
Park 18 to suffer substantial and ongoing operating losses.
92.

There is no efficiency or procompetitive justification for AMC’s clearances. The

sole purpose of the clearances was to reduce or eliminate competition and preserve or increase
AMC’s monopolistic share of the Overland Park Movie Market.
93.

Clearances were once justified on the ground that exclusive licenses would induce

exhibitors to invest in substantial extra promotion or advertising. Today, however, promotional
costs are borne almost exclusively by distributors, and exhibitors rarely engage in substantial
promotional expenditures. Before a Movie is released, distributors conduct extensive research,
audience tracking, and sophisticated modeling to estimate its likely range of revenues in order to,
among other things, determine promotional and advertising budgets. Distributors have wellinformed expectations about likely revenues, well before a Movie is licensed to exhibitors. AMC’s
clearances did not induce AMC to invest in any extra promotion or advertising of Movies.
94.

AMC’s conduct caused Cinetopia to lose millions of dollars in lost profits.

Cinetopia’s losses disrupted and impaired its ability to offer unique Movie experiences because
the clearances prevented Cinetopia Overland Park 18 from earning enough to sustain its higher
quality amenities.

AMC’s clearances made it extremely costly, inefficient, and virtually

impossible to operate a multiplex that was specially designed to feature all of the different types
of first-run Movies and to maximize revenues of blockbusters. The clearances thus created a
downward spiral from which Cinetopia has yet to recover. The losses substantially exceeded the
profits that Cinetopia earned on its operations in the Portland, Oregon area. As a result, Cinetopia
was forced to drop plans to open new theaters in several new markets and to delay capital

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expenditures on theater improvements that were necessary to maintain Cinetopia’s market
position.
C.

AMC Strung Along Cinetopia for the Purpose of Increasing Its Damages and
Forestalling This Lawsuit

95.

When AMC started using clearances to drive Cinetopia out of business in May

2014, AMC was the second largest Movie exhibitor in the United States. But it was pursuing an
acquisition of another large national theater circuit, Carmike Cinemas. Due to the size the Carmike
deal, AMC knew that it would be required to report the deal to the U.S. Department of Justice
(“DOJ”) and that the DOJ would be concerned about the potential anticompetitive effects of the
deal.
96.

In order to forestall legal action by Cinetopia to block AMC’s unlawful clearances

and to prevent the DOJ from learning about this exclusionary conduct, AMC once again pretended
to be interested in buying Cinetopia’s facilities at attractive prices.
97.

AMC announced its acquisition of Carmike Cinemas in December 2016. As a

result of the acquisition, AMC became the largest Movie exhibitor in the U.S. However, AMC
continued its charade of pretending to be interested in paying fair value for Cinetopia Overland
Park 18 while the DOJ reviewed the deal for anticompetitive effects.
98.

In February 2016, AMC delivered an indication of interest including a proposed

purchase price, but AMC advised Cinetopia that the proposed deal would be delayed due to the
DOJ’s investigation of the AMC-Carmike deal.
99.

AMC repeatedly assured Cinetopia in numerous private communications that it

would buy Cinteopia’s theaters at the original valuation, after the Carmike deal was finalized.
100.

In March 2017, the DOJ approved the Carmike acquisition, subject to certain

divestiture conditions.

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101.

On May 9, 2017, AMC provided a letter of intent for its proposed acquisition of the

Cinetopia theatres. The purchase price was substantially lower than it had previously offered.
102.

Shortly thereafter, AMC further reduced its offer, claiming that, due to its falling

stock price, AMC could no longer complete the deal because its board had imposed moratorium
on transactions valued at over $5 million that might last for up to two years. Cinetopia responded
constructively by offering an option to buy Cinetopia within 12 months. AMC countered with
materially worse terms and a new condition: that Cinetopia release all of its legal claims against
AMC as a condition of completing the deal.
103.

AMC thus revealed its true predatory intention. AMC engaged in these bad-faith

negotiations while continuing to assert clearances against Cinetopia Overland Park 18 in order to
inflict further injury on Cinetopia while simultaneously forestalling Cinetopia’s assertion of any
antitrust claims that might have jeopardized DOJ approval of the Carmike deal. In short, AMC
sought to eliminate a vigorous new competitor in AMC’s own backyard while avoiding federal
antitrust scrutiny.
VI.

IRREPARABLE INJURY
104.

AMC’s misconduct toward Cinetopia has suppressed, and continues to suppress,

Cinetopia’s value and jeopardizes its viability. Cinetopia will suffer irreparable injury and loss of
its business and property, for which there is no adequate remedy at law, unless the Court
permanently enjoins AMC from its anticompetitive and tortious conduct.
105.

To the extent that AMC has stopped asserting clearances against Cinetopia

Overland Park 18 as to any distributor, AMC is capable of renewing its assertion of clearances at
any time.
106.

Cinetopia is thus entitled to injunctive relief against AMC.

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COUNT I
Circuit Dealing: Violation of Sherman Act § 1 and/or § 2
107.

Plaintiff re-alleges the allegations contained in paragraphs 1 through 106 above.

108.

As the largest theater circuit in the United States, AMC possesses substantial circuit

109.

AMC undertook its anticompetitive conduct with the predatory intent to deprive

power.

Cinetopia of an opportunity to obtain the supply of Movies needed for effective competition. This
conduct constitutes unlawful circuit dealing in violation of Sections 1 and/or 2 of the Sherman Act,
15 U.S.C. §§ 1 and/or 2, and the long-established rule under antitrust case law that Movies be
licensed on a film-by-film, theater-by-theater basis without the discriminatory preferences in favor
of one or more dominant theater circuits.
110.

Like the formula deals and master agreements declared unlawful in Paramount,

AMC’s policy and practice of using and threatening to use its circuit power to enforce clearances
against competing theaters, including Cinetopia Overland Park 18, “eliminate the opportunity for
the small competitor to obtain the choice first runs, and put a premium on the size of the circuit”
and “are, therefore, devices for stifling competition and diverting the cream of the business to the
large operators.” 334 U.S. at 154. Like the formula deals and master agreements declared
unlawful in Paramount, AMC’s clearance practices also constitute “a misuse of monopoly power
insofar as [they] combine[] the theatres in closed towns with competitive situations.” Id. at 154–
55.
111.

As a direct and proximate result of the unlawful conduct of AMC in furtherance of

the violations alleged, Cinetopia has been injured in its business and property in an amount to be
proven at trial and automatically trebled, as provided by 15 U.S.C. § 15.

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COUNT II
Monopolization: Violation of Sherman Act § 2
112.

Plaintiff re-alleges the allegations contained in paragraphs 1 through 106 above.

113.

AMC possesses monopoly power in the Overland Park Movie Market due to its

national circuit power, its high share, and the high barriers to entry.
114.

AMC has used its monopoly power to coerce distributors into denying Cinetopia

Overland Park 18 the opportunity to compete fairly with AMC for Movie licenses and theater
customers, thereby having a direct adverse effect on competition by preventing Cinetopia Overland
Park 18 from competing with AMC on the merits.
115.

AMC has insulated itself from competition with Cinetopia for Movie licenses and

theater customers and thereby restrained trade in, and willfully maintained or expanded its
monopoly power in, the Overland Park Movie Market.
116.

AMC injured competition and consumers.

117.

AMC’s conduct has no efficiency or procompetitive benefit or justification. The

anticompetitive effects of its behavior outweigh any purported procompetitive justifications.
118.

AMC has engaged in a course of conduct that amounts to monopolization and/or

unlawful exercise of monopoly power in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2.
119.

As a direct and proximate result of the unlawful conduct of AMC in furtherance of

the violations alleged, Cinetopia has been injured in its business and property in an amount to be
proven at trial and to be automatically trebled, as provided by 15 U.S.C. § 15.
COUNT III
Attempted Monopolization: Violation of Sherman Act § 2
120.

Plaintiff re-alleges the allegations contained in paragraphs 1 through 106 above.

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121.

AMC asserted clearances against Cinetopia Overland Park 18 with the specific

intent to acquire, maintain, and/or expand its monopoly power in the Overland Park Movie Market.
122.

As evidenced by AMC’s high market share and dominant circuit power, there was

a dangerously high probability that AMC’s scheme to exclude Cinetopia Overland Park 18 and
monopolize the Overland Park Movie Market would succeed.
123.

AMC’s conduct constitutes attempted monopolization in violation of Section 2 of

the Sherman Act, 15 U.S.C. § 2.
124.

As a direct and proximate result of AMC’s unlawful conduct, Cinetopia has been

injured in its business and property by being foreclosed from fair competitive access to markets
for Movie licenses and exhibition in an amount to be proven at trial and to be automatically trebled,
as provided by 15 U.S.C. § 15.
COUNT IV
Agreements in Restraint of Trade: Violation of Sherman Act § 1
125.

Plaintiff re-alleges the allegations contained in paragraphs 1 through 106 above.

126.

AMC’s assertion of clearances against Cinetopia Overland Park 18, and

distributors’ acceptance of those clearances, constituted unreasonable agreements in restraint of
trade.
127.

AMC induced these agreements by abusing its market power in the Overland Park

Movie Market and its dominant national circuit power.
128.

AMC injured competition and consumers.

129.

AMC’s conduct has no efficiency or procompetitive benefit or justification. The

anticompetitive effects of these agreements outweigh any purported procompetitive justifications.
130.

AMC’s agreements with distributors are unlawful agreements in restraint of trade,

in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.
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131.

As a direct and proximate result of the unlawful conduct of AMC in furtherance of

the violations alleged, Cinetopia has been injured in its business and property by being foreclosed
from fair competitive access to markets for Movie licenses and exhibition in an amount to be
proven at trial and to be automatically trebled, as provided by 15 U.S.C. § 15.
COUNT V
Tortious Interference with Actual and/or Prospective Business Relations
132.

Plaintiff re-alleges the allegations contained in paragraphs 1 through 106 above.

133.

Cinetopia enjoyed and continues to enjoy relationships with patrons of its theaters

that include future economic benefits to Cinetopia from continuing patronage to view a wide
variety of Movies. At all relevant times herein, AMC had actual knowledge of these expected
future economic benefits to Cinetopia and knew that this expectancy constituted a valuable
business asset and form of revenue for Cinetopia.
134.

Cinetopia enjoyed and continues to enjoy relationships with distributors that

include future economic benefits to Cinetopia from the continued fair competitive access to the
licensing of Movies. At all relevant times herein, AMC had actual knowledge of these expected
future economic benefits to Cinetopia and knew that this expectancy constituted a valuable
business asset and form of revenue for Cinetopia.
135.

Cinetopia and the Prairiefire Development enjoyed and continue to enjoy a

relationship that includes future economic benefits related to the operation of a Movie theater at
the Prairiefire Development. At all relevant times herein, AMC had actual knowledge of these
expected future economic benefits to Cinetopia and the Prairiefire Development and knew that this
expectancy constituted a valuable business asset.

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136.

AMC acted intentionally, improperly, and without privilege or justification in its

tortious interference with Cinetopia’s business relationships with patrons and Movie distributors,
and the Prairiefire Development.
137.

AMC’s tortious interference with these business relationships include AMC’s

targeting of Cinetopia for exclusion from markets for Movie licenses, Movie exhibition, and
theater space.
138.

AMC acted purposely and with malice and specific intent to injure Cinetopia.

AMC disrupted and interfered with, and continues to disrupt and interfere with, the aforementioned
economic relationships.
139.

As a direct and proximate result of AMC’s wrongful actions, Cinetopia has been

injured and continues to suffer financial injury.
140.

As a direct and proximate result of AMC’s wrongful conduct, Cinetopia has lost

profits they would have otherwise earned but for AMC’s conduct.
141.

In doing the things alleged herein, AMC has acted willfully, maliciously,

oppressively, with full knowledge of the adverse effects of its actions on Cinetopia, with willful
and deliberate disregard of the consequences to Cinetopia, and with specific intent. As such,
Cinetopia seeks exemplary and punitive damages in an amount to be proven at trial.
COUNT VI
Estoppel
142.

Cinetopia re-alleges the allegations contained in paragraphs 1 through 106 above.

143.

When AMC promised to purchase Cinetopia Overland Park 18 for fair

consideration, Cinetopia reasonably and detrimentally relied upon the promise by making certain
expenditures that it otherwise would not have made and by incurring additional substantial
operating losses that it would not have incurred.
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144.

AMC made the promise with the intent to deceive Cinetopia and to forestall

Cinetopia from protecting its legal rights until after the DOJ approved AMC’s acquisition of
Carmike Cinemas.
145.

AMC’s breach of this promise has resulted in substantial injustice to Cinetopia.
PRAYER FOR RELIEF

WHEREFORE, Cinetopia prays for judgment as follows:
1.

Determine that AMC violated and continues to violate Sections 1 and 2 of the

Sherman Act, 15 U.S.C. §§ 1 and 2;
2.

Determine that AMC committed and continues to commit the tort of interference

with business relations willfully, with malice, fraud, wantonness, oppression, or entire want of
care, with specific intent to cause harm to Cinetopia, and in bad faith;
3.

Determine that AMC is barred by the doctrines of promissory estoppel and/or

equitable estoppel from reneging on its promise to purchase Cinetopia Overland Park 18 for fair
consideration;
4.

Enter judgment for Cinetopia against AMC for damages, including three times the

amount of damages sustained by Cinetopia on its antitrust claim, compensatory, exemplary, and
punitive damages on Cinetopia’s tortious interference claim, compensatory and consequential
damages on Cinetopi’s estoppel claim, together with Cinetopia’s expenses of litigation and cost of
this action, including a reasonable attorney’s fee, and such other relief as appropriate.
5.

Enjoin AMC from engaging in further anticompetitive and unlawful conduct,

including requesting clearances over Cinetopia Overland Park 18.
6.

Grant such other equitable relief, including disgorgement of all unlawfully obtained

profits, that the Court deems just and proper.

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DEMAND FOR JURY TRIAL
Cinetopia hereby demands a trial by jury in Kansas City, Kansas, pursuant to Federal
Rule of Civil Procedure 38 and Local Rule 40.2.

Dated: May 4, 2018

Respectfully submitted,
BERKOWITZ OLIVER LLP
By:

/s/ David F. Oliver
David F. Oliver (KS Bar #70731)
Christina M. Wahl (KS Bar #23406)
Carson M. Hinderks (KS Bar #25079)
2600 Grand Blvd., Suite 1200
Kansas City, Missouri 64108
Telephone: (816) 561-7007
Facsimile: (816) 561-1888
doliver@berkowitzoliver.com
cwahl@berkowitzoliver.com
chinderks@berkowitzoliver.com
Michael A. Lindsay (MN Bar #0163466)
(Pro Hac Vice pending)
lindsay.michael@dorsey.com
F. Matthew Ralph (MN Bar #0323202)
(Pro Hac Vice pending)
ralph.matthew@dorsey.com
Pro Hac Vice Motions to be Filed
DORSEY & WHITNEY LLP
50 South Sixth Street, Suite 1500
Minneapolis, Minnesota 55402-1498
Telephone: (612) 340-2600

ATTORNEYS FOR PLAINTIFF

29