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Posted By: Peter Spaeth

The Topps court appears to have found that Fleer did not meet its burden of showing a baseball card market, but went on (seemingly arbitrarily) to nevertheless find a baseball card "submarket" which Topps had monopolized. The findings from the opinion are interesting, and perhaps somewhat dated.

74. There is insufficient evidence on the record to determine whether Topps's competitors consider baseball cards to be a separate market or submarket. Fleer has therefore failed to prove that the industry recognizes baseball cards as a separate market.

75. Baseball cards do not have distinctive prices. They are priced at about the same level as candy bars and many different types of chewing and bubble gum.

76. Sales of Bubble Yum, a soft bubble gum introduced nationally by Lifesavers, Inc. in 1976, had a huge adverse impact on the sales of traditional hard bubble gums, such as Topps's "Bazooka" and Fleer's "Dubble Bubble."

77. Close substitutes should show reciprocal sales movement.

78. Sales of baseball cards are not affected by sales of editorial (non-sports) cards. Editorial cards are not meaningful substitutes for baseball cards.

79. Topps often sells its editorial cards at a lower price than its sports cards.

80. Topps introduced into evidence an elaborate market study conducted by Child Research Service, Inc., a child marketing research firm headed by June Esserman. Mrs. Esserman testified as an expert at trial. The study consisted of an analysis of the results of interviews with boys ages 7-12 conducted during successive weeks outside of candy and convenience stores in three separate cities (Rochester, Cincinnati and Minneapolis). The children were asked *497 a great variety of questions about what they had considered purchasing, what they actually purchased, what they paid, etc.

81. During the first week of the Esserman study, the price of Topps's baseball cards was 20 cents. During the second week, the price of baseball cards was raised to 40 cents. Baseball cards suffered a precipitous drop in sales during the second week. A large percentage of those boys who considered baseball cards but did not buy them "bought something else instead"-largely because the price was too high.

82. The Esserman study was designed to show (and did show to an extent) the existence of price cross-elasticity among the items on a typical candy rack.

83. Sales of baseball cards were shown to be sensitive to a price increase of 100%. The Esserman study showed that a rise in price from 20 cents to 40 cents caused an 88% decline in sales of baseball cards. (DT 5381, Tables 1 & 4).

84. There is little evidence in the record to show whether sales of baseball cards are sensitive to small changes in price. In 1974, the price per card in the standard package rose about 4% (adjusted for approximately 6% inflation) over the 1973 price, and sales rose about 35% (adjusted for inflation). In 1975, the price per card in the standard package rose about 17% (adjusted for inflation) over the 1974 price, and sales fell about 17% (adjusted for inflation). In 1978, the price per card in the standard package fell about 12% (adjusted for inflation) compared to the 1977 price, and sales rose about 32% (adjusted for inflation). (P-182 through P-187; DT 5431R; stipulation of counsel).

85. Baseball cards are unique. For decades, they have been an important and distinctive part of many childhoods. Baseball cards have achieved a type of public recognition that distinguishes them from such items as other trading cards, bubble gum and candy. Cardboard, wallet-size pictures of active major league players have existed for generations. Even if the product was merely a casual idea of a long-forgotten promoter in the 1880's, and even if there are hundreds of variations and substitutes which logically might exist, the concept is now so embedded that baseball cards literally define themselves. The permanence of those cardboard pictures is a market reality which the Court must recognize.

86. The baseball cards themselves are the part of Topps's package that are primarily sought by children. The gum is of lower quality than Topps's normal bubble gum, and is offered simply as a premium for the cards. In fact, many children do not chew it. A number of low cost (perhaps baseball related) non-confectionary products would also serve as potentially attractive premiums, among them felt insignia, plastic novelties or emblems, magnets in the form of team logos, a batting average calculator (cf. DT 267), or iron-on patches.

87. The relevant economic submarket in which baseball cards are sold consists of all pocket-size pictures of active major league players, sold alone or in combination with a low cost premium, in packages priced from 15 cents to 50 cents.