Respondents, bowling centers in three distinct markets, brought
this antitrust action against petitioner, one of the two largest
bowling equipment manufacturers and the largest operator of bowling
centers, claiming that petitioner's acquisitions of competing
bowling centers that had defaulted in payments for bowling
equipment that they had purchased from petitioner might
substantially lessen competition or tend to create a monopoly in
violation of § 7 of the Clayton Act. Respondents sought treble
damages pursuant to § 4 of the Act, as well as injunctive and other
relief. At trial, they sought to prove that petitioner, because of
its size, had the capacity to lessen competition in the markets it
had entered by driving smaller competitors out of business. To
establish damages, respondents attempted to show that, had
petitioner allowed the defaulting centers to close, respondents'
profits would have increased. The jury returned a verdict for
damages in favor of respondents, which the District Court trebled
in accordance with § 4. The Court of Appeals, while endorsing the
legal theories upon which respondents' claim was based, reversed
the case and remanded for further proceedings because of errors in
the trial court's instructions to the jury. The court concluded
that a properly instructed jury could have found that a "giant"
like petitioner entering a market of "pygmies" might lessen
horizontal retail competition. The court also concluded that there
was sufficient evidence to permit a jury to find that, but for
petitioner's actions, the acquired centers would have gone out of
business. The court held that, if a jury were to make such
findings, respondents would be entitled to damages for threefold
the income they would have earned. Petitioner's petition for
certiorari challenged the theory that the Court of Appeals had
approved for awarding damages.
Held:
1. For plaintiffs in an antitrust action to recover treble
damages on account of § 7 violations, they must prove more than
that they suffered injury which was causally linked to an illegal
presence in the market; they must prove injury of the type that the
antitrust laws were intended to prevent and that flows from that
which makes the defendants' acts unlawful. The injury must reflect
the anticompetitive effect
Page 429 U. S. 478
of either the violation or of anticompetitive acts made possible
by the violation. Pp.
429 U. S.
484-489.
(a) Section 4 is essentially a remedial provision, and, to
recover damages, respondents must prove more than that petitioner
violated § 7. Pp.
429 U. S.
485-487.
(b) Congress has condemned mergers only when they may produce
anticompetitive effects; yet, under the Court of Appeals' holding,
once a merger is found to violate § 7, all dislocations that the
merger caused are actionable regardless of whether the dislocations
have anything to do with the reason the merger was condemned. Here,
if the acquisitions were unlawful it, is because they brought a
"deep pocket" parent into a market of "pygmies," but respondents'
injury is unrelated to the size of either the acquiring company or
its competitors; it would have suffered the identical loss, but
without any recourse had the acquired centers secured refinancing
or had they been bought by a "shallow pocket" parent. Pp.
429 U. S.
487-488.
2. Petitioner is entitled under Fed.Rule Civ.Proc. 50(b) to
judgment on the damages claim notwithstanding the verdict, since
respondents' case was based solely on their novel theory, rejected
herein, of damages ascribable to profits they would have received
had the acquired centers been closed, and since respondents have
not shown any reason to require a new trial. Pp.
429 U. S.
489-490.
3. Respondents remain free on remand to seek equitable relief.
P.
429 U. S.
491.
523 F.2d 262, vacated and remanded.
MARSHALL, J., delivered the opinion for a unanimous Court.
MR JUSTICE MARSHALL delivered the opinion of the Court.
This case raises important questions concerning the
interrelationship of the anti-merger and private damages action
provisions of the Clayton Antitrust Act.
Page 429 U. S. 479
Petitioner is one of the two largest manufacturers of bowling
equipment in the United States. Respondents are three of the 10
bowling centers owned by Treadway Companies, Inc. Since 1965,
petitioner has acquired and operated a large number of bowling
centers, including six in the markets in which respondents operate.
Respondents instituted this action contending that these
acquisitions violated various provisions of the antitrust laws.
In the late 1950's, the bowling industry expanded rapidly, and
petitioner's sales of lanes, automatic pinsetters, and ancillary
equipment rose accordingly. [
Footnote 1] Since this equipment requires a major capital
expenditure -- $12,600 for each lane and pinsetter, App. A1576 --
most of petitioner's sales were for secured credit.
In the early 1960's, the bowling industry went into a sharp
decline. Petitioner's sales quickly dropped to pre-boom levels.
Moreover, petitioner experienced great difficulty in collecting
money owed it; by the end of 1964, over $100,000,000, or more than
25%, of petitioner's accounts were more than 90 days delinquent.
Id. at A1884. Repossessions rose dramatically, but
attempts to sell or lease the repossessed equipment met with only
limited success. [
Footnote 2]
Because petitioner had borrowed close to $250,000,000 to finance
its credit sales,
id. at A1900, it was, as the Court of
Appeals concluded, "in serious financial difficulty."
NBO
Industries Treadway Cos., Inc. v. Brunswick Corp., 523 F.2d
262, 267 (CA3 1975).
To meet this difficulty, petitioner began acquiring and
Page 429 U. S. 480
operating defaulting bowling centers when their equipment could
not be resold and a positive cash flow could be expected from
operating the centers. During the seven years preceding the trial
in this case, petitioner acquired 222 centers, 54 of which it
either disposed of or closed.
Ibid. These acquisitions
made petitioner by far the largest operator of bowling centers,
with over five times as many centers as its next largest
competitor.
Ibid. Petitioner's net worth in 1965 was more
than eight times greater, and its gross revenue more than seven
times greater, than the total for the 11 next largest bowling
chains. App. A1675. Nevertheless, petitioner controlled only 2% of
the bowling centers in the United States.
Id. at
A1096.
At issue here are acquisitions by petitioner in the three
markets in which respondents are located: Pueblo, Colo.
Poughkeepsie, N.Y. and Paramus, N.J. In 1965, petitioner acquired
one defaulting center in Pueblo, one in Poughkeepsie, and two in
the Paramus area. In 1969, petitioner acquired a third defaulting
center in the Paramus market, and, in 1970, petitioner acquired a
fourth. Petitioner closed its Poughkeepsie center in 1969 after
three years of unsuccessful operation; the Paramus center acquired
in 1970 also proved unsuccessful, and in March, 1973, petitioner
gave notice that it would cease operating the center when its lease
expired. The other four centers were operational at the time of
trial.
Respondents initiated this action in June, 1966, alleging,
inter alia, that these acquisitions might substantially
lessen competition or tend to create a monopoly in violation of § 7
of the Clayton Act, 15 U.S.C. § 18. [
Footnote 3] Respondents sought
Page 429 U. S. 481
damages, pursuant to § 4 of the Act, 15 U.S.C. § 15, for three
times "the reasonably expectable profits to be made [by
respondents] from the operation of their bowling centers." App.
A24. Respondents also sought a divestiture order, an injunction
against future acquisitions, and such "other further and different
relief" as might be appropriate under § 16 of the Act, 15 U.S.C. §
26. App. A27.
Trial was held in the spring of 1973, following an initial
mistrial due to a hung jury. To establish a § 7 violation,
respondents sought to prove that, because of its size, petitioner
had the capacity to lessen competition in the markets it had
entered by driving smaller competitors out of business. To
establish damages, respondents attempted to show that, had
petitioner allowed the defaulting centers to close, respondents'
profits would have increased. At respondents' request, the jury was
instructed in accord with respondents' theory as to the nature of
the violation and the basis for damages. The jury returned a
verdict in favor of respondents in the amount of $2,358,030, which
represented the minimum estimate by respondents of the additional
income they would have realized had the acquired centers been
closed.
Id. at A1737. As required by law, the District
Court trebled the damages. [
Footnote 4] It also awarded respondents costs and
attorneys'
Page 429 U. S. 482
fees totaling $446,97.32, and, sitting as a court of equity, it
ordered petitioner to divest itself of the centers involved here,
Treadway Cos. v. Brunswick Corp., 389 F.
Supp. 996 (NJ 1974). Petitioner appealed. [
Footnote 5]
The Court of Appeals, while endorsing the legal theories upon
which respondents' claim was based, reversed the judgment and
remanded the case for further proceedings.
NBO Industries
Treadway Cos. v. Brunswick Corp., supra. The court found that
a properly instructed jury could have concluded that petitioner was
a "giant" whose entry into a "market of pygmies" might lessen
horizontal retail competition, because such a "giant"
"has greater ease of entry into the market, can accomplish cost
savings by investing in new equipment, can resort to low or below
cost sales to sustain itself against competition for a longer
period, and can obtain more favorable credit terms."
523 F.2d at 268. The court also found that there was sufficient
evidence to permit a jury to conclude that, but for petitioner's
actions, the acquired centers would have gone out of business.
Id.
Page 429 U. S. 483
at 273, 275-277, and the court held that, if jury were to make
such findings, respondents would be entitled to damages for
threefold the income they would have earned. After reviewing the
instructions on these issues, however, the court decided that the
jury had not been properly charged, and that therefore a new trial
was required.
Id. at 275-277. [
Footnote 6] It also decided that, since "an essential
predicate" for the District Court's grant of equitable relief as
the jury verdict on the § 7 claim, the equitable decree should be
vacated a well.
Id. at 277-278. And it concluded that, in
any event, equitable relief
"should be restricted to preventing those practice by which a
deep pocket market entrant harms
Page 429 U. S. 484
competition. . . . [D]ivestiture was simply inappropriate."
Id. at 279.
Both sides petitioned this Court for writs of certiorari.
Brunswick's petition challenged the theory the Court of Appeals had
approved for awarding damages; the plaintiffs' petition challenged
the Court of Appeals' conclusions with respect to the jury
instructions and the appropriateness of a divestiture order.
[
Footnote 7] We granted
Brunswick's petition. [
Footnote
8]
424 U. S. 90
(1976).
II
The issue for decision is a narrow one. Petitioner does not
presently contest the Court of Appeals' conclusion that a properly
instructed jury could have found the acquisitions unlawful. Nor
does petitioner challenge the Court of Appeals' determination that
the evidence would support a finding that had petitioner not
acquired these centers, they would have gone out of business and
respondents' income would have increased. Petitioner questions only
whether antitrust damages are available where the sole injury
alleged is that competitors were continued in business, thereby
denying respondents an anticipated increase in market shares.
[
Footnote 9]
Page 429 U. S. 485
To answer that question, it is necessary to examine the
anti-merger and treble damages provisions of the Clayton Act.
Section 7 of the Act proscribes mergers whose effect "
may
be substantially to lessen competition, or
to tend to
create a monopoly." (Emphasis added.) It is, as we have observed
many times, a prophylactic measure, intended "primarily to arrest
apprehended consequences of intercorporate relationships before
those relationships could work their evil. . . ."
United States
v. E. I. du Pont de Nemours & Co., 353 U.
S. 586,
353 U. S. 597
(1957).
See also Brown Shoe Co. v. United States,
370 U. S. 294,
370 U. S.
317-318 (1962);
United States v. Philadelphia Nat.
Bank, 374 U. S. 321,
374 U. S.
362-363 (1963);
United States v. Penn-Olin Chemical
Co., 378 U. S. 158,
378 U. S.
170-171 (1964);
United States v. Von's Grocery
Co., 384 U. S. 270,
384 U. S. 277
(1966);
FTC v. Procter & Gamble Co., 386 U.
S. 568,
386 U. S.
577-578 (1967);
Gulf Oil Corp. v. Copp Paving
Co., 419 U. S. 186,
419 U. S. 201
(1974).
Section 4, in contrast, is in essence a remedial provision. It
provides treble damages to "[a]ny person who shall be injured in
his business or property by reason of anything forbidden in the
antitrust laws. . . ." Of course, treble damages also play an
important role in penalizing wrongdoers and deterring wrongdoing,
as we also have frequently observed.
Perma Life Mufflers v.
International Parts Corp., 392 U. S. 134,
392 U. S. 139
(1968);
Fortner Enterprises v. United States Steel Corp.,
394 U. S. 495,
394 U. S. 502
(1969);
Zenith Radio Corp. v. Hazeltine Research,
395 U. S. 100,
395 U. S. 130
(1969);
Hawaii v. Standard Oil Co., 405 U.
S. 251,
405 U. S. 262
(1972). It nevertheless is true that the treble damages provision,
which makes awards available only to injured parties, and measures
the awards by a
Page 429 U. S. 486
multiple of the injury actually proved, is designed primarily a
a remedy. [
Footnote 10]
Intermeshing a statutory prohibition against acts that have a
potential to cause certain harms with a damages action intended to
remedy those harms is not without difficulty. Plainly, to recover
damages, respondents must prove more than that petitioner violated
§ 7, since such proof establishes only that injury may result.
Respondents contend that the only additional element they need
demonstrate is that they are in a worse position than they would
have been had petitioner not committed those acts. The Court of
Appeals agreed,
Page 429 U. S. 487
holding compensable any loss "causally linked" to "the mere
presence of the violator in the market." 523 F.2d at 272-273.
Because this holding divorces antitrust recovery from the purposes
of the antitrust laws without a clear statutory command to do so,
we cannot agree with it.
Every merger of two existing entities into one, whether lawful
or unlawful, has the potential for producing economic readjustments
that adversely affect some persons. But Congress has not condemned
mergers on that account; it has condemned them only when they may
produce anticompetitive effects. Yet, under the Court of Appeals'
holding, once a merger is found to violate § 7, all dislocations
caused by the merger are actionable, regardless of whether those
dislocations have anything to do with the reason the merger was
condemned. This holding would make § 4 recovery entirely
fortuitous, and would authorize damages for losses which are of no
concern to the antitrust laws. [
Footnote 11]
Both of these consequences are well illustrated by the facts of
this case. If the acquisitions here were unlawful, it is because
they brought a "deep pocket" parent into a market of "pygmies." Yet
respondents' injury -- the loss of income that would have accrued
had the acquired centers gone bankrupt -- bears no relationship to
the size of either the acquiring company or its competitors.
Respondents would have suffered the identical "loss" -- but no
compensable injury -- had the acquired centers instead obtained
refinancing or been purchased by "shallow pocket" parents, as the
Court of Appeals itself acknowledged, 523 F.2d at 279. [
Footnote 12] Thus, respondents'
injury was not of "the type that the statute was
Page 429 U. S. 488
intended to forestall,"
Wyandotte Co. v. United States,
389 U. S. 191,
389 U. S. 202
(1967). [
Footnote 13]
But the antitrust laws are not merely indifferent to the injury
claimed here. At base, respondents complain that, by acquiring the
failing centers petitioner preserved competition, thereby depriving
respondents of the benefits of increased concentration. The damages
respondents obtained are designed to provide them with the profits
they would have realized had competition been reduced. The
antitrust laws, however, were enacted for "the protection of
competition, not competitors,"
Brown Shoe Co. v. United
States, 370 U.S. at
370 U. S. 320.
It is inimical to the purposes of these laws to award damages for
the type of injury claimed here.
Of course, Congress is free, if it desires, to mandate damages
awards for all dislocations caused by unlawful mergers despite the
peculiar consequences of so doing. But because of these
consequences, "we should insist upon a clear expression of a
congressional purpose,"
Hawaii v. Standard Oil Co., 405
U.S. at
405 U. S. 264,
before attributing such an intent to Congress. We can find no such
expression in either the language or the legislative history of §
4. To the contrary, it is far from clear that the loss of windfall
profits that would have accrued had the acquired centers failed
even constitutes "injury" within the meaning of § 4. And it is
quite clear that, if respondents were injured, it was not "by
reason of anything forbidden in the antitrust laws": while
respondents' loss occurred "by reason of" the unlawful
acquisitions, it did not occur "by reason of" that which made the
acquisitions unlawful
Page 429 U. S. 489
We therefore hold that, for plaintiffs to recover treble damages
on account of § 7 violations, they must prove more than injury
causally linked to an illegal presence in the market. Plaintiffs
must prove
antitrust injury, which is to say injury of the
type the antitrust laws were intended to prevent and that flows
from that which makes defendants' acts unlawful. The injury should
reflect the anticompetitive effect either of the violation or of
anticompetitive acts made possible by the violation. It should, in
short, be "the type of loss that the claimed violations . . . would
be likely to cause."
Zenith Radio Corp. v. Hazeltine
Research, 395 U.S. at
395 U. S. 125. [
Footnote 14]
III
We come, then, to the question of appropriate disposition of
this case. At the very least, petitioner is entitled to a new
trial, not only because of the instructional errors noted by the
Court of Appeals that are at at issue here,
see n 6,
supra, but also because
the District Court's instruction
Page 429 U. S. 490
as to the basis for damages was inconsistent with our holding as
outlined above. Our review of the record, however, persuades us
that a new trial on the damages claim is unwarranted. Respondents
based their case solely' on their novel damages theory which we
have rejected. While they produced some conclusory testimony
suggesting that, in operating the acquired centers, petitioner had
abused its deep pocket by engaging in anticompetitive conduct,
[
Footnote 15] they made no
attempt to prove that they had lost any income as a result of such
predation. [
Footnote 16]
Rather, their entire proof of damages was based on their claim to
profits that would have been earned had the acquired centers
closed. Since respondents did not prove any cognizable damages, and
have not offered any justification for allowing respondents, after
two trials and over 10 years of litigation, yet a third opportunity
to do so, it follows that, petitioner is entitled, in accord with
its motion made pursuant to Rule 50(b), to judgment on the damages
claim notwithstanding the verdict.
Neely v. Eby Constr.
Co., 386 U. S. 317,
386 U. S. 326-
330 (1967);
United States v. Generes, 405 U. S.
93, 106-107(1972).
Page 429 U. S. 491
Respondents' complaint also prayed for equitable relief, and the
Court of Appeals held that, if respondents established a § 7
violation, they might be entitled to an injunction against "those
practices by which a deep pocket market entrant harms competition."
523 F.2d at 279. Because petitioner has not contested this holding,
respondents remain free, on remand, to seek such a decree.
The judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
Sales of automatic pinsetters, for example, went from 1,890 in
1956 to 16,288 in 1961. App. A1866.
[
Footnote 2]
Repossessions of pinsetters increased from 300 in 1961 to 5,996
in 1965.
Ibid. In 1963, petitioner resold over two-thirds
of the pinsetters repossessed; more typically, only one-third were
resold, and in 1965, less than one-quarter were resold.
Id. at A1879.
[
Footnote 3]
The complaint contained two additional counts. Count one alleged
that petitioner had violated § 1 of the Sherman Act, 15 U.S.C. § 1,
by fixing resale prices for bowling supplies sold by petitioner to
respondents. This count was abandoned prior to trial. Count two
alleged that, by virtue of the acquisitions and other acts,
petitioner was guilty of monopolization or an attempt to monopolize
in violation of § 2 of the Sherman Act, 15 U.S.C. § 2. The jury
found for petitioner on this count, and respondents did not
appeal.
The complaint also named as plaintiffs National Bowl-O-Mat, the
predecessor to Treadway Companies, and the seven other bowling
center subsidiaries of Treadway. These plaintiffs were unsuccessful
on all counts, however, and they did not appeal the judgments
entered against them.
[
Footnote 4]
Judgment ultimately was entered for $6,575,040, which is
$499,050 less than three times the jury's damages award, after
respondent Pueblo Bowl-O-Mat consented to a remittitur which the
District Court proposed as an alternative to a retrial on damages.
Treadway Cos. v. Brunswick Corp., 364 F.
Supp. 316, 324-326 (NJ 1973). The remittitur was deemed
necessary because the jury apparently awarded damages to that
respondent in accord with its minimum claim dating back to 1983,
when the alleged § 2 violation began, rather than back to 1965,
when the alleged § 7 violation began. The District Court thought
that the jury might have been confused by the instruction to use
the same methods for calculating damages under the two sections.
Ibid.
[
Footnote 5]
Petitioner's appeal and respondents' cross-appeal with respect
to the amount of the attorneys' fee award initially were dismissed
by the Court of Appeals for want of jurisdiction because the
District Court had neither disposed of respondents' equitable claim
nor certified the judgment entered on the legal claims pursuant to
Fed.Rule Civ.Proc. 54(b).
Treadway Cos. v. Brunswick
Corp., 500 F.2d 1400 (CA3 1974) (order reported); App.
A1563-A1566 (per curiam opinion reprinted). The District Court then
certified the previously entered judgment, and the parties
reappealed. While the appeals were pending, the District Court
granted equitable relief, and the appeal from that judgment was
consolidated with the pending appeals.
[
Footnote 6]
With respect to the instruction on the issue of liability, the
court concluded that, since petitioner's acquisitions "did not
increase concentration," the District Court had erred by focusing
on the size of the market shares acquired by petitioner, rather
than on "indicators of qualitative substantiality" such as the
"relative financial strength of Brunswick, Treadway, and other
competitors," or "any retail market advantage" enjoyed by
petitioner because of its status as financier and manufacturer.
NBO Industries Treadway Cos. v. Brunswick Corp., 523 F.2d
at 27275 (CA3 1975). With respect to the instruction on damages,
the Court of Appeals concluded that the District Court had failed
to direct the jury to decide whether petitioner's actions were
responsible for keeping the acquired centers in business before
considering how much additional income respondents would have
earned if the acquired centers had been closed.
Id. at
276-277.
The Court of Appeals also held,
id. at 275, that, in
instructing the jury on the statutory requirement that the acquired
company be "engaged . . . in commerce," the District Court had not
anticipated this Court's decision in
United States v. American
Bldg. Maint. Industries, 422 U. S. 271
(1975), which read the "in commerce" requirement more restrictively
than had the leading decision of the Third Circuit,
Transamerica Corp. v. Board of Governors, 206 F.2d 163,
cert. denied, 346 U.S. 901 (1953). Indeed, the court
indicated that there might not be sufficient evidence in the record
to satisfy the "in commerce" test. 523 F.2d at 271. The court
concluded, however, that, given the change in the law, it would be
"unjust" to find the evidence insufficient, and thereby deny
plaintiffs an opportunity to meet the new test on retrial.
[
Footnote 7]
Both petitions also questioned the Court of Appeals' decision to
require relitigation of the "in commerce" issue,
see
n 6,
supra. Brunswick
maintained it was entitled to a directed verdict on this issue;
plaintiffs argued that they had satisfied the new test, and that
therefore no new trial was required.
[
Footnote 8]
The grant of certiorari excluded the question Brunswick sought
to present concerning the sufficiency of the evidence that the
acquired companies were engaged "in commerce,"
see nn.
6 7 supra.
No action has been taken with respect to respondents'
petition.
[
Footnote 9]
Petitioner raises this issue directly through the first question
presented, and indirectly through the second, which asks:
"Does not the 'failing company' principle require dismissal of a
treble damage action based on alleged violations of Section 7 of
the Clayton Act where the plaintiffs' entire damage theory is based
on the premise that the 'acquired' businesses would have failed and
disappeared from the market had the defendant not kept them alive
by making the challenged 'acquisitions?'"
Pet. for Cert. 3. In light of our holding, we have no occasion
to consider the applicability of the failing company defense to the
conglomerate-like acquisitions involved here.
[
Footnote 10]
Treble damages antitrust actions were first authorized by § 7 of
the Sherman Act, 26 Stat. 210 (1890). The discussions of this
section on the floor of the Senate indicate that it was conceived
of primarily as a remedy for "[t]he people of the United States as
individuals," especially consumers. 21 Cong.Rec. 1767-1768 (1890)
(remarks of Sen. George);
see id. at 2612 (Sens. Teller
and Reagan), 2615 (Sen. Coke), 3146-3149. Treble damages were
provided in part for punitive purposes,
id. at 3147 (Sen.
George), but also to make the remedy meaningful by counterbalancing
"the difficulty of maintaining a private suit against a combination
such as is described" in the Act.
Id. at 2456 (Sen.
Sherman).
When Congress enacted the Clayton Act in 1914, it "extend[ed]
the remedy under section 7 of the Sherman Act" to persons injured
by virtue of any antitrust violation. H.R.Rep. No. 627, 63d Cong.,
2d Sess., 14 (1914). The initial House debates concerning
provisions related to private damages actions reveal that these
actions were conceived primarily as
"open[ing] the door of justice to every man, whenever he may be
injured by those who violate the antitrust laws, and giv[ing] the
injured party ample damages for the wrong suffered."
51 Cong.Rec. 9073 (1914) (remarks of Rep. Webb);
see, e.g.,
id. at 9079 (Rep. Volstead), 9270 (Rep. Carlin), 9414-9417,
9466-9467, 9487-9495. The House debates following the conference
committee report, however, indicate that the sponsors of the bill
also saw treble damages suits as an important means of enforcing
the law.
Id. at 16274-16275 (Rep. Webb), 16317-16319 (Rep.
Floyd). In the Senate, there was virtually no discussion of the
enforcement value of private actions, even though the bill was
attacked as lacking meaningful sanctions,
e.g., id. at
15818-15821 (Sen. Reed), 16042-16046 (Sen. Norris).
[
Footnote 11]
See Areeda, Antitrust Violations Without Damage
Recoveries, 89 Harv.L.Rev. 1127, 1130-1136 (1976); Symposium,
Private Enforcement of the Antimerger Laws, 31 Record of N.Y.C.B.A.
239, 260-261 (1976).
[
Footnote 12]
Conversely, had petitioner acquired thriving centers --
acquisitions at least as violative of § 7 as the instant
acquisitions -- respondents would not have lost any income that
they otherwise would have received.
[
Footnote 13]
For instances in which plaintiffs unsuccessfully sought damages
for injuries unrelated to the reason the merger was prohibited,
see Reibert v. Atlantic Richfield Co., 471 F.2d 727
(CA10),
cert. denied, 411 U.S. 938 (1973);
Peterson v.
Borden Co., 50 F.2d 644 (CA7 1931);
Kirihara v. Bendix
Corp., 306 F. Supp.
72 (Haw.1969);
Goldsmith v. St. Louis-San Francisco R.
Co., 201 F.
Supp. 867 (WDNC 1962).
[
Footnote 14]
See generally GAF Corp. v. Circle Floor Co., 463 F.2d
752 (CA2 1972),
cert. dismissed, 413 U.S. 901 (1973);
Comment, Section 7 of the Clayton Act: The Private Plaintiff's
Remedies, 7 B.C.Ind. & Comm.L.Rev. 333 (1966); Comment, Treble
Damage Actions for Violations of Section 7 of the Clayton Act, 38
U.Chi.L.Rev. 404 (1971).
This does not necessarily mean, as the Court of Appeals feared,
523 F.2d at 272, that § 4 plaintiffs must prove an actual lessening
of competition in order to recover. The short-term effect of
certain anticompetitive behavior -- predatory below-cost pricing,
for example -- may be to stimulate price competition. But
competitors may be able to prove antitrust injury before they
actually are driven from the market and competition is thereby
lessened. Of course, the case for relief will be strongest where
competition has been diminished.
See, e.g., Calnetics Corp. v.
Volkswagen of America, Inc., 532 F.2d 674 (CA9 1976);
Metric Hosiery Co. v. Spartans Industries, Inc., 50 F.R.D.
50 (SDNY 1970); Klingsberg, Bull's Eyes and Carom Shots:
Complications and Conflicts on Standing to Sue and Causation Under
Section 4 of the Clayton Act, 16 Antitrust Bull. 351, 364
(1971).
[
Footnote 15]
Respondents' testimony concerned price reduction at three
centers, App. A170, A420, A431; unjustified capital expenses at
three centers,
id. at A503-A506, A829-A830; and
extravagant "give-aways,"
id. at A169-A170, A222-A223,
A413-A414, A569. This testimony is rather unimpressive when viewed
against both petitioner's contemporaneous business records which
reveal that it did not lower prices when it took over the centers,
Defendant's Exhibits D-32, D-33, D-36, D-38, and respondents' own
exhibits, which demonstrate that petitioner made a profit at two
centers, App. A1700, generated a positive cash flow at three
others,
id. at A1717, A1720, and closed the two centers
that were unsuccessful,
id. at A1725, A1733.
[
Footnote 16]
One of respondents' witnesses did testify that he knew of one
bowling league in Pueblo that had shifted from a respondent to
petitioner after petitioner installed faster automatic pinsetters.
Id. at 508. Assuming,
arguendo, that such
installations were not cost-justified and constituted a form of
predation, respondents still made no attempt to quantify the
loss.