Judge limits expert testimony in Simon Property antitrust suit

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Expert witnesses for Indianapolis-based Simon Property Group Inc. and a competing shopping center developer will be barred from testifying on certain subjects in an antitrust lawsuit against Simon, a federal judge ruled Wednesday.

The litigation concerns allegations that Simon used unlawful means in 2006 to pressure tenants such as Ann Taylor into signing leases at University Park Mall in Mishawaka rather than at the newer Heritage Square a mile away in Granger.

Heritage Square developer Gumwood HP Shopping Partners discovered internal Simon emails in which executives discussed terminating leases for Ann Taylor stores at more lucrative malls if the women’s clothing retailer didn’t sign a lease at University Park. Some emails suggested that if Ann Taylor leased at Heritage, Simon would cancel the chain’s leases at shopping centers in New York and Miami, a tactic one executive described in an email as “Lose a pinky — take an arm!”

The anti-trust litigation was filed in 2011, with Heritage claiming Simon caused Ann Taylor to withdraw from a lease at its mall causing a snowball effect that cost it leases with other high-end retailers before the property reverted to the lender.

Judge Jon E. DeGuilio of the District Court for the Northern District of Indiana in South Bend Wednesday issued a 29-page order setting the parameters for expert witness testimony from economists on each side.

Both sides sought to strike the testimony of the opposing witnesses, and DeGuilio granted their requests in part and denied them in part.

The judge ruled Gumwood’s expert, economist H.E. Frech III, may not offer an opinion on whether Simon “tied” leases at University Park to other properties without evidentiary support. Frech may, however, testify about his opinions regarding Simon’s market power, but only in the Mishawaka, Miami and New York shopping center markets at issue in this litigation.

Simon’s expert economist, Michael R. Baye, may not testify about the necessary conditions Gumwood must establish for a tying arrangement to be considered anticompetitive. But DeGuilio ruled Baye may provide his opinion that the market in northern Indiana where the malls compete for tenants is larger and more diverse than Frech assumes.

The judge withheld ruling on the experts’ opinions on liability and damages and said those motions will be decided in a separate order.

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