Utah Pie Co. v. Continental Baking Co.
386 U.S. 685 (1967)

Annotate this Case

U.S. Supreme Court

Utah Pie Co. v. Continental Baking Co., 386 U.S. 685 (1967)

Utah Pie Co. v. Continental Baking Co.

No. 18

Argued January 17, 1967

Decided April 24, 1967

386 U.S. 685

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

This suit for treble damages and an injunction by petitioner, a local bakery company in Salt Lake City, against three large companies each of which is a major factor in the frozen pie market in one or more regions of the country, charged a conspiracy under §§ 1 and 2 of the Sherman Act and violations by each respondent of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. The major competitive weapon in the Salt Lake City market was price, and, for most of the period, petitioner, which had the advantage of a local plant, had the lowest prices. Each respondent at some time engaged in discriminatory pricing, and thereby contributed to a deteriorating price structure during the relevant period. Respondent Pet Milk sold pies to Safeway under the latter's label at a price well below that for its proprietary label pies; it sold an economy pie in the Salt Lake City market at a price which was at times lower than that in other markets, and it sold its proprietary label quality pies in Salt Lake City for some months at prices lower than those in California, despite freight charges from its California plant. Pet admitted sending a spy into petitioner's plant during its negotiations with Safeway, but denied using what it learned. Pet did not deny that it suffered losses on its pies during the greater part of the period involved. In June, 1961, respondent Continental Baking cut its price in the Utah area to a level well below that applicable elsewhere, and less than its direct cost plus an allocation for overhead. Carnation Co., whose share of the market slipped in 1959, slashed its price in 1960, and, for eight months of that year, its Salt Lake City price was lower than that in other markets, and that trend continued in 1961. The jury found for respondents on the conspiracy charge and for petitioner on the price discrimination charge. Judgment was entered for petitioner for damages, but the Court of Appeals reversed, holding that the evidence was insufficient to support a finding of probable injury to competition within the meaning of § 2(a). The court concluded that Pet's price differential to Safeway was cost justified, and that Pet's

Page 386 U. S. 686

other discriminations did not provide sufficient basis on which the jury could have found a reasonably possible injury to petitioner as a competitive force or to competition generally. It concluded that the conduct of Continental and Carnation had only minimal effect, that it had not injured petitioner as a competitor, and that it had not substantially lessened competition.

Held:

1. Section 2(a) does not forbid price competition, but it does provide that sellers may not sell goods to different purchasers at different prices if the result may be to injure competition in either the sellers' or the buyers' market unless such discriminations are justified as permitted by the Act. P. 386 U. S. 702.

(a) There can be a reasonably possible injury to competition even though the volume of sales is rising and some of the competitors in the market continue to operate at a profit. P. 386 U. S. 702.

(b) Section 2(a) does not come into play solely to regulate the conduct of price discriminators who consistently undercut the prices of other competitors. P. 386 U. S. 702.

2. The existence of predatory intent bears on the likelihood of injury to competition. Pp. 386 U. S. 702-703.

(a) There was evidence of predatory intent with respect to each of the respondents, and there was other evidence upon which the jury could find the requisite injury to competition. Pp. 386 U. S. 702-703.

(b) Section 2(a) reaches price discrimination that erodes competition as much as it does price discrimination that is intended to have immediate destructive impact. P. 386 U. S. 703.

3. Since the statutory test is one that looks forward on the basis of proven past conduct, the jury was entitled to conclude that, where the evidence showed a drastically declining price structure which could be attributed to continued or sporadic price discrimination, "the effect of such discrimination" by respondents

"may be substantially to lessen competition . . . or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination. . . ."

P. 386 U. S. 703.

349 F.2d 122, reversed and remanded.

Page 386 U. S. 687

MR. JUSTICE WHITE delivered the opinion of the Court

This suit for treble damages and injunction under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, 15 U.S.C. §§ 15 and 26 [Footnote 1] was brought by petitioner, Utah Pie Company, against respondents, Continental Baking Company, Carnation Company and Pet Milk Company. The complaint charged a conspiracy under §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 and 2, and violations by each respondent of § 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a). [Footnote 2] The jury found for respondents on the conspiracy charge and

Page 386 U. S. 688

for petitioner on the price discrimination charge. [Footnote 3] Judgment was entered for petitioner for damages and attorneys' fees, and respondents appealed on several grounds. The Court of Appeals reversed, addressing itself to the single issue of whether the evidence against each of the respondents was sufficient to support a finding of probable injury to competition within the meaning of § 2(a), and holding that it was not. 349 F.2d 122. We granted certiorari. 382 U.S. 914. [Footnote 4] We reverse.

Page 386 U. S. 689

The product involved is frozen dessert pies -- apple, cherry, boysenberry, peach, pumpkin, and mince. The period covered by the suit comprised the years 1958, 1959, and 1960 and the first eight months of 1961. Petitioner is a Utah corporation which for 30 years has been baking pies in its plant in Salt Lake City and selling them in Utah and surrounding States. It entered the frozen pie business in late 1957. It was immediately successful with its new line and built a new plant in Salt Lake City in 1958. The frozen pie market was a rapidly expanding one: 57,060 dozen frozen pies were sold in the Salt Lake City market in 1958, 111,729 dozen in 1959, 184,569 dozen in 1960, and 266,908 dozen in 1961. Utah Pie's share of this market in those years was 66.5%, 34.3%, 45.5%, and 45.3% respectively, its sales volume steadily increasing over the four years. Its financial position also improved. Petitioner is not, however, a large company. At the time of the trial, petitioner operated with only 18 employees, nine of whom were members of the Rigby family, which controlled the business. Its net worth increased from $31,651.98 on October 31, 1957, to $68,802.13 on October 31, 1961. Total sales were $238,000 in the year ended October 31, 1957, $353,000 in 1958, $430,000 in 1959, $504,000 in 1960 and $589,000 in 1961. Its net income or loss for these same years was a loss of $6,461 in 1957, and net income in the remaining years of $7,090, $11,897, $7,636, and $9,216.

Each of the respondents is a large company and each of them is a major factor in the frozen pie market in one or more regions of the country. Each entered the Salt Lake City frozen pie market before petitioner began freezing dessert pies. None of them had a plant in Utah. By the end of the period involved in this suit, Pet had plants in Michigan, Pennsylvania, and California; Continental in Virginia, Iowa, and California, and Carnation in California. The Salt Lake City market was supplied

Page 386 U. S. 690

by respondents chiefly from their California operations. They sold primarily on a delivered price basis.

The "Utah" label was petitioner's proprietary brand. Beginning in 1960, it also sold pies of like grade and quality under the controlled label "Frost N' Flame" to Associated Grocers, and, in 1961, it began selling to American Food Stores under the "Mayfresh" label. [Footnote 5] It also, on a seasonal basis, sold pumpkin and mince frozen pies to Safeway under Safeway's own "Bel-air" label.

The major competitive weapon in the Utah market was price. The location of petitioner's plant gave it natural advantages in the Salt Lake City marketing area and it entered the market at a price below the then going prices for respondents' comparable pies. For most of the period involved here, its prices were the lowest in the Salt Lake City market. It was, however, challenged by each of the respondents at one time or another and for varying periods. There was ample evidence to show that each of the respondents contributed to what proved to be a deteriorating price structure over the period covered by this suit, and each of the respondents, in the course of the ongoing price competition, sold frozen pies in the Salt Lake market at prices lower than it sold pies of like grade and quality in other markets considerably closer to its plants. Utah Pie, which entered the market at a price of $4.15 per dozen at the beginning of the relevant period, was selling "Utah" and "Frost 'N' Flame" pies for $2.75 per dozen when the instant suit was filed some 44 months later. [Footnote 6] Pet, which was offering pies at $4.92 per dozen in February, 1958, was offering

Page 386 U. S. 691

"Pet-Ritz" and "Bel-air" pies at $3.56 and $3.46 per dozen respectively in March and April, 1961. Carnation's price in early 1958 was $4.82 per dozen, but it was selling at $3.46 per dozen at the conclusion of the period, meanwhile having been down as low as $3.30 per dozen. The price range experienced by Continental during the period covered by this suit ran from a 1958 high of over $5 per dozen to a 1961 low of $2.85 per dozen. [Footnote 7]

Page 386 U. S. 692

I

We deal first with petitioner's case against the Pet Milk Company. Pet entered the frozen pie business in 1955, acquired plants in Pennsylvania and California, and undertook a large advertising campaign to market its "Pet-Ritz" brand of frozen pies. Pet's initial emphasis was on quality, but, in the face of competition from regional and local companies and in an expanding market where price proved to be a crucial factor, Pet was forced to take steps to reduce the price of its pies to the ultimate consumer. These developments had consequences in the Salt Lake City market which are the substance of petitioner's case against Pet.

First, Pet successfully concluded an arrangement with Safeway, which is one of the three largest customers for frozen pies in the Salt Lake market, whereby it would sell frozen pies to Safeway under the latter's own "Belair" label at a price significantly lower than it was selling its comparable "Pet-Ritz" brand in the same Salt Lake market and elsewhere. [Footnote 8] The initial price on "Bel-air"

Page 386 U. S. 693

pies was slightly lower than Utah's price for its "Utah" brand of pies at the time, and, near the end of the period, the "Bel-air" price was comparable to the "Utah" price but higher than Utah's "Frost N' Flame" brand. Pet's Safeway business amounted to 22.8%, 12.3%, and 6.3% of the entire Salt Lake City market for the years 1959, 1960, and 1961, respectively, and to 64%, 44%, and 22% of Pet's own Salt Lake City sales for those same years.

Second, it introduced a 20-ounce economy pie under the "Swiss Miss" label and began selling the new pie in the Salt Lake market in August, 1960, at prices ranging from $3.25 to $3.30 for the remainder of the period. This pie was at times sold at a lower price in the Salt Lake City market than it was sold in other markets.

Third, Pet became more competitive with respect to the prices for its "Pet-Ritz" proprietary label. For 18 of the relevant 44 months, its offering price for Pet-Ritz pies was $4 per dozen or lower, and $3.70 or lower for six of these months. According to the Court of Appeals, in seven of the 44 months, Pet's prices in Salt Lake were lower than prices charged in the California markets. This was true although selling in Salt Lake involved a 30- to 35-cent freight cost.

The Court of Appeals first concluded that Pet's price differential on sales to Safeway must be put aside in considering injury to competition because, in its view of the evidence, the differential had been completely cost justified, and because Utah would not, in any event, have been able to enjoy the Safeway custom. Second, it concluded that the remaining discriminations on "Pet-Ritz" and "Swiss Miss" pies were an insufficient predicate on which the jury could have found a reasonably possible injury either to Utah Pie as a competitive force or to competition generally.

We disagree with the Court of Appeals in several respects. First, there was evidence from which the jury

Page 386 U. S. 694

could have found considerably more price discrimination by Pet with respect to "Pet-Ritz" and "Swiss Miss" pies than was considered by the Court of Appeals. In addition to the seven months during which Pet's prices in Salt Lake were lower than prices in the California markets, there was evidence from which the jury could reasonably have found that, in 10 additional months, the Salt Lake City prices for "Pet-Ritz" pies were discriminatory as compared with sales in western markets other than California. Likewise, with respect to "Swiss Miss" pies, there was evidence in the record from which the jury could have found that, in five of the 13 months during which the "Swiss Miss" pies were sold prior to the filing of this suit, prices in Salt Lake City were lower than those charged by Pet in either California or some other western market.

Second, with respect to Pet's Safeway business, the burden of proving cost justification was on Pet, [Footnote 9] and, in our view, reasonable men could have found that Pet's lower priced, "Bel-air" sales to Safeway were not cost justified in their entirety. Pet introduced cost data for 1961 indicating a cost saving on the Safeway business greater than the price advantage extended to that customer. These statistics were not particularized for the Salt Lake market, but, assuming that they were adequate to justify the 1961 sales, they related to only 24% of the Safeway sales over the relevant period. The evidence concerning the remaining 76% was, at best, incomplete and inferential. It was insufficient to take the

Page 386 U. S. 695

defense of cost justification from the jury, which reasonably could have found a greater incidence of unjustified price discrimination than that allowed by the Court of Appeals' view of the evidence. [Footnote 10]

With respect to whether Utah would have enjoyed Safeway's business absent the Pet contract with Safeway, it seems clear that, whatever the fact is in this regard, it is not determinative of the impact of that contract on competitors other than Utah and on competition generally. There were other companies seeking the Safeway business, including Continental and Carnation, whose pies may have been excluded from the Safeway shelves by what the jury could have found to be discriminatory sales to Safeway. [Footnote 11] What is more, Pet's evidence that Utah's unwillingness to install quality control equipment prevented Utah from enjoying Safeway's private label business is not the only evidence in the record relevant to that question. There was other evidence to the contrary.

Page 386 U. S. 696

The jury would not have been compelled to find that Utah Pie could not have gained more of the Safeway business.

Third, the Court of Appeals almost entirely ignored other evidence which provides material support for the jury's conclusion that Pet's behavior satisfied the statutory test regarding competitive injury. This evidence bore on the issue of Pet's predatory intent to injure Utah Pie. [Footnote 12] As an initial matter, the jury could have concluded

Page 386 U. S. 697

that Pet's discriminatory pricing was aimed at Utah Pie; Pet's own management, as early as 1959, identified Utah Pie as an "unfavorable factor," one which "d[u]g holes in our operation" and posed a constant "check" on Pet's performance in the Salt Lake City market. Moreover, Pet candidly admitted that, during the period when it was establishing its relationship with Safeway, it sent into Utah Pie's plant an industrial spy to seek information that would be of use to Pet in convincing Safeway that Utah Pie was not worthy of its custom. Pet denied that it ever, in fact, used what it had learned against Utah Pie in competing for Safeway's business. The parties, however, are not the ultimate judges of credibility. But even giving Pet's view of the incident a measure of weight does not mean the jury was foreclosed from considering the predatory intent underlying Pet's mode of competition. Finally, Pet does not deny that the evidence showed it suffered substantial losses on its frozen pie sales during the greater part of the time involved in this suit, and there was evidence from which the jury could have concluded that the losses Pet sustained in Salt Lake City were greater than those incurred elsewhere. It would not have been an irrational step if the jury concluded that there was a relationship between price and the losses.

It seems clear to us that the jury heard adequate evidence from which it could have concluded that Pet had engaged in predatory tactics in waging competitive warfare in the Salt Lake City market. Coupled with the incidence of price discrimination attributable to Pet,

Page 386 U. S. 698

the evidence as a whole established, rather than negated, the reasonable possibility that Pet's behavior produced a lessening of competition proscribed by the Act.

II

Petitioner's case against Continental is not complicated. Continental was a substantial factor in the market in 1957. But its sales of frozen 22-ounce dessert pies, sold under the "Morton" brand, amounted to only 1.3% of the market in 1958, 2.9% in 1959, and 1.8% in 1960. Its problems were primarily that of cost, and, in turn, that of price, the controlling factor in the market. In late 1960, it worked out a co-packing arrangement in California by which fruit would be processed directly from the trees into the finished pie without large intermediate packing, storing, and shipping expenses. Having improved its position, it attempted to increase its share of the Salt Lake City market by utilizing a local broker and offering short-term price concessions in varying amounts. Its efforts for seven months were not spectacularly successful. Then, in June, 1961, it took the steps which are the heart of petitioner's complaint against it. Effective for the last two weeks of June, it offered its 22-ounce frozen apple pies in the Utah area at $2.85 per dozen. It was then selling the same pies at substantially higher prices in other markets. The Salt Lake City price was less than its direct cost plus an allocation for overhead. Utah's going price at the time for its 24-ounce "Frost N' Flame" apple pie sold to Associated Grocers was $3.10 per dozen, and, for its "Utah" brand, $3.40 per dozen. At its new prices, Continental sold pies to American Grocers in Pocatello, Idaho, and to American Food Stores in Ogden, Utah. Safeway, one of the major buyers in Salt Lake City, also purchased 6,250 dozen, its requirements for about five weeks. Another purchaser ordered 1,000 dozen. Utah's response was immediate. It reduced

Page 386 U. S. 699

its price on all of its apple pies to $2.75 per dozen. Continental refused Safeway's request to match Utah's price, but renewed its offer at the same prices effective July 31 for another two-week period. Utah filed suit on September 8, 1961. Continental's total sales of frozen pies increased from 3,350 dozen in 1960 to 18,800 dozen in 1961. Its market share increased from 1.8% in 1960 to 8.3% in 1961. The Court of Appeals concluded that Continental's conduct had had only minimal effect, that it had not injured or weakened Utah Pie as a competitor, that it had not substantially lessened competition, and that there was no reasonable possibility that it would do so in the future.

We again differ with the Court of Appeals. Its opinion that Utah was not damaged as a competitive force apparently rested on the fact that Utah's sales volume continued to climb in 1961, and on the court's own factual conclusion that Utah was not deprived of any pie business which it otherwise might have had. But this retrospective assessment fails to note that Continental's discriminatory below-cost price caused Utah Pie to reduce its price to $2.75. The jury was entitled to consider the potential impact of Continental's price reduction absent any responsive price cut by Utah Pie. Price was a major factor in the Salt Lake City market. Safeway, which had been buying Utah brand pies, immediately reacted and purchased a five-week supply of frozen pies from Continental, thereby temporarily foreclosing the proprietary brands of Utah and other firms from the Salt Lake City Safeway market. The jury could rationally have concluded that, had Utah not lowered its price, Continental, which repeated its offer once, would have continued it, that Safeway would have continued to buy from Continental and that other buyers, large as well as small, would have followed suit. It could also have reasonably concluded that a competitor who is forced to

Page 386 U. S. 700

reduce his price to a new all-time low in a market of declining prices will, in time feel, the financial pinch, and will be a less effective competitive force.

Even if the impact on Utah Pie as a competitor was negligible, there remain the consequences to others in the market who had to compete not only with Continental's 22-ounce pie at $2.85, but with Utah's even lower price of $2.75 per dozen for both its proprietary and controlled labels. Petitioner and respondents were not the only sellers in the Salt Lake City market, although they did account for 91.8% of the sales in 1961. The evidence was that there were nine other sellers in 1960 who sold 23,473 dozen pies, 12.7% of the total market. In 1961, there were eight other sellers who sold less than the year before -- 18,565 dozen or 8.2% of the total -- although the total market had expanded from 184,569 dozen to 226,908 dozen. We think there was sufficient evidence from which the jury could find a violation of § 2(a) by Continental.

III

The Carnation Company entered the frozen dessert pie business in 1955 through the acquisition of "Mrs. Lee's Pies" which was then engaged in manufacturing and selling frozen pies in Utah and elsewhere under the "Simple Simon" label. Carnation also quickly found the market extremely sensitive to price. Carnation decided, however, not to enter an economy product in the market, and, during the period covered by this suit, it offered only its quality "Simple Simon" brand. Its primary method of meeting competition in its markets was to offer a variety of discounts and other reductions, and the technique was not unsuccessful. In 1958, for example, Carnation enjoyed 10.3% of the Salt Lake City market, and although its volume of pies sold in that market increased substantially in the next year, its percentage of the market temporarily slipped to 8.6%. However, 1960 was a turnaround year for Carnation in

Page 386 U. S. 701

the Salt Lake City market; it more than doubled its volume of sales over the preceding year, and thereby gained 12.1% of the market. And while the price structure in the market deteriorated rapidly in 1961, Carnation's position remained important.

We need not dwell long upon the case against Carnation, which, in some respects, is similar to that against Continental and in others more nearly resembles the case against Pet. After Carnation's temporary setback in 1959, it instituted a new pricing policy to regain business in the Salt Lake City market. The new policy involved a slash in price of 60

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