Replies to post #11777 on Rambus (RMBS)

[lolo]

Poolwater; You May Not Crosspost nor duplicate


worth a look. Go to findlaw , sign up for the free subscription,
and download it.
case number is 99-56933
file is 9956933p.pdf
Aug 3 2001 ninth circuit
some drivel omitted.
FN3 is not happy news, but the rest is
dy
no
might

AMDO, IANAL
LOLo
some tidbits;

"OVERVIEW
Plaintiffs-appellants Aqua Tri and Pool Water Products
("plaintiffs") allege that defendants-appellees Olin and Superior
Pool Products ("defendants") have engaged in a "whole
host" of anticompetitive activities, including the illegal acquisition
of a fellow dry chemical manufacturer, FMC. That
acquisition was deemed illegal by the Federal Trade Commission
in a separate proceeding. In a series of pretrial motions,
plaintiffs asked the district court to give the FTC decision
prima facie weight in this proceeding under Section 5 of the
Clayton Act, 15 U.S.C. § 16(a). Defendants moved to exclude
plaintiffs' expert from testifying and to dismiss the case
because plaintiffs lacked antitrust standing. The district courtdenied plaintiffs' motion and granted the defendants' motions.
We affirm and hold that plaintiffs failed to meet Section 5's
requirements for giving the FTC decision prima facie weight
and failed to establish that they suffered any antitrust injury."

here some missing drivel including the part which pointed to note1
_____________________________________________________________
Interesting footnote 1
1 For a more detailed description of Olin prior to 1987 and the FMC
acquisition see Olin Corp. v. FTC, 986 F.2d 1296 (9th Cir. 1993), and In
re Matter of Olin Corp., 113 F.T.C. 400 (1990).
__________________________________________________________
more stuff;"B. The FTC Proceedings
The FTC challenged Olin's acquisition of FMC in 1985.
After a 52-day hearing in 1987, an Administrative Law Judge
("ALJ") made 895 findings of fact and six conclusions of law
and ultimately held that the acquisition violated Section 7 of
the Clayton Act and Section 5 of the FTC Act and ordered
divestiture of the FMC assets. See In re Matter of Olin Corp.,
113 F.T.C. 400 (1990). The FTC substantially affirmed the
ALJ's order on June 13, 1990. We denied Olin's petition for
review in a published decision, Olin Corp. v. FTC, 986 F.2d
1295 (9th Cir. 1993), and the Supreme Court denied Olin's
petition for certiorari. 510 U.S. 1110 (1994). At that point
Olin began divesting itself of the FMC assets."

"D. The Proceedings in the District Court
Plaintiffs filed suit against Olin and SPP in 1992 alleging
that Olin and SPP attempted to dominate the dry chemical
pool sanitizer industry and destroy competition. In their Third
Amended Complaint, plaintiffs alleged Olin and SPP had
engaged in the following anticompetitive activities: (1) the
acquisition of FMC's assets, (2) price squeezing of repackagers,
(3) predatory pricing by SPP, (4) price discrimination
against repackagers and distributors, (5) refusal to deal with
Aqua Tri and PWP, (6) vertical integration, (7) exclusive distributorships
of Olin's products, (8) collusion between Olin
and other manufacturers and (9) collusion between Olin and
other distributors. Plaintiffs claim these anticompetitive acts
violated Sections 1 and 2 of the Sherman Act, Section 7 of the
Clayton Act and California law. They claim that Olin and SPP
monopolized or restrained trade in four different product markets:
(1) the sale of cal-hypos by manufacturers to wholesalers
across the entire United States; (2) the sale of isos by
manufacturers to wholesalers across the entire United States;
(3) the sale of branded cal-hypos to retailers in California,
Arizona and Nevada; and (4) the sale of branded isos to retailers
in California, Arizona and Nevada.
In preparation for trial, both plaintiffs and defendants filed
motions in limine to exclude various items of evidence. Plaintiffs
also moved to give prima facie weight to the FTC's judgment
and defendants moved to dismiss the lawsuit for lack of
antitrust injury. On October 28, 1999, the district court denied
plaintiffs' motion to give the FTC ruling prima facie weight
and granted defendants' motions to exclude plaintiffs' sanitizer
pricing study, evidence of below-cost pricing and the liability
and damage testimony of plaintiffs' expert, Dr. Kent
Anderson. After it made these preliminary rulings, the district
court held that plaintiffs had failed to put forward any evidence
that they had suffered antitrust injury. It denied the
remaining motions as moot and entered judgment in favor of
defendants.
DISCUSSION
A. Prima Facie Weight of Prior FTC Proceeding
Plaintiffs moved in the district court to give the findings of
fact and conclusions of law adopted by the FTC in its judgment
against Olin prima facie evidentiary weight pursuant to
Section 5 of the Clayton Act, 15 U.S.C. § 16(a).NOTE2 The district
court held that the judgment and findings could not be given
such evidentiary weight because the issues and facts in the
two proceedings are different. The court did allow the adjudicative
facts of the prior proceedings to be admitted -- i.e.,
documents showing there was an ALJ hearing, the Order
entered by the FTC requiring divestiture and the decision of
this Circuit affirming the FTC. Plaintiffs appeal the district
court's decision regarding the prima facie weight of the find-
_________________________________________________________________
2 This section provides:
A final judgment or decree heretofore or hereafter rendered in
any civil or criminal proceeding brought by or on behalf of the
United States under the antitrust laws to the effect that a defendant
has violated said laws shall be prima facie evidence against
such defendant in any action or proceeding brought by any other
party against such defendant under said laws as to all matters
respecting which said judgment or decree would be an estoppel
as between the parties thereto: Provided, That this section shall
not apply to consent judgments or decrees entered before any testimony
has been taken. Nothing contained in this section shall be
construed to impose any limitation on the application of collateral
estoppel, except that, in any action or proceeding brought under
the antitrust laws, collateral estoppel effect shall not be given to
any finding made by the Federal Trade Commission under the
antitrust laws or under section 45 of this title which could give
rise to a claim for relief under the antitrust laws.
15 U.S.C. § 16(a)."
_______________________________________________________________
"ings and conclusions. We review the district court's decision
de novo. Emich Motors Corp. v. General Motors Corp., 340
U.S. 558, 571 (1951).
Congress' intent in enacting the original version of Section
5 was "to minimize the burdens of litigation for injured
private suitors by making available to them all matters previously
established by the Government in antitrust actions." Id.
at 568. This benefit is not without limits, however. First, it
grants only prima facie weight, not collateral estoppel effect
to findings. Although Section 5 generally does not bar the
application of collateral estoppel, it does so when the FTC
itself makes the findings. See 15 U.S.C.§ 16(a). Second, Section
5 grants prima facie weight only to matters as to which
collateral estoppel would apply had the government itself
brought the suit. See id. This section makes available to a private
litigant as prima facie evidence "all matters respecting
which said judgment or decree would be an estoppel"
between the defendant and the United States. 15 U.S.C.
§ 16(a); Emich Motors, 340 U.S. at 568.NOTE3 Accordingly, the
"evidentiary use" of the prior judgment is"determined by reference
to the general doctrine of estoppel." Id. For that, we
look to Ninth Circuit law.
"Collateral estoppel, or issue preclusion, bars the relitigation
of issues actually adjudicated in previous litigation
between the same parties." Kamilche Co. v. United States, 53
F.3d 1059, 1062 (9th Cir. 1995), as amended, 75 F.3d 1391
(9th Cir. 1996) (internal quotation omitted). It precludes relitigation
of both issues of law and issues of fact. Steen v. John
Hancock Mut. Life Ins. Co., 106 F.3d 904, 910 (9th Cir.
1997). The party asserting collateral estoppel must show that
the estopped issue is identical to an issue actually litigated and
decided in the previous action. Kamilche, 53 F.3d at 1062.
_________________________________________________________________
3 We have previously held that an FTC order constitutes a final judgment
for purposes of Section 5. See Purex Corp., Ltd. v. Procter & Gamble
Co., 453 F.2d 288, 290-91 (9th Cir. 1971)."
__________________________________________________
Preclusive force attaches only to issues that were necessary to
support the judgement in the prior action. Resolution Trust
Corp., v. Keating, 186 F.3d 1110, 1115 (9th Cir. 1999). Litigants
are not precluded from relitigating an issue if its determination
was merely incidental to the judgment in the prior
action. Id.
Even then, not everything capable of collateral estoppel
effect is entitled to prima facie weight under Section 5. Only
those issues in the first proceeding that are relevant in the second
proceeding are admissible. See Twentieth Century Fox
Film Corp. v. Goldwyn, 328 F.2d 190, 225 (9th Cir. 1964).
The district court has the duty, as it does with the admission
of all evidence, to determine what is probative to the proceeding
at hand and can exclude matters that are irrelevant. See id.
Here, plaintiffs asked the district court to give given prima
facie weight to the FTC's findings of fact and conclusions of
law from its proceedings against Olin. The FTC itself acted
on an appeal from the ALJ's decision. See In re Matter of
Olin Corp., 113 F.T.C. 400 (1990). The ALJ held a 52-day
trial and made 895 findings of fact and six conclusions of law
leading up to his ultimate conclusion that Olin violated Section
7 of the Clayton Act and Section 5 of the Federal Trade
Commission Act because the "effect of [the FMC ] acquisition
has been or may be substantially to lessen competition or to
tend to create a monopoly in the aforesaid product and geographic
markets."4 The FTC affirmed the ALJ, concluding
that Olin's acquisition of FMC's assets "may substantially
_________________________________________________________________
4 Under Section 5, prima facie weight is given only to violations of the
"antitrust laws" as defined by the Clayton Act. This does not include violations
of the FTC Act. See Section 1(a) of the Clayton Act, 15 U.S.C.
§12(a); Nashville Milk Co. v. Carnation Co. , 355 U.S. 373, 375-76 (1958);
Yamaha Motor Co., Ltd. v. FTC, 657 F.2d 971, 982 (8th Cir. 1981).
Appellees did not raise the argument in the district court or on appeal that
the findings of fact and conclusions of law made in connection with the
violation of Section 5 of the FTC Act were not entitled to prima facie
weight. Accordingly, we do not address that issue.
____________________________________________________________

lessen competition" in two national markets: (a) the manufacture
and sale of chlorinated isocyanurate and calcium hypochlorite
dry swimming pool sanitizers; and (b) the
manufacture and sale of chlorinated isocyanurate dry swimming
pool sanitizers. (Emphasis added.) The FTC did not,
however, conclude that the FMC acquisition may tend to
create a monopoly, as the ALJ had expressly found. Importantly,
the FTC's judgment stated that it adopted the findings
of fact and initial decision of the ALJ that were not inconsistent
with the findings of fact and conclusions of law in its own
opinion. It did not identify which of the findings and conclusions
were consistent and which were not.
Plaintiffs moved the district court to give prima facie
weight to all of the ALJ's 895 findings of fact and six conclusions
of law. They did not identify for the district court which
findings and conclusions were consistent with the FTC's decision,
which were necessary to support the judgment or which
were identical and relevant to the issues that needed to be
resolved by the district court in this case. Plaintiffs simply
argued that they were entitled to the wholesale admission of
all of the ALJ's findings and conclusions.
Although the prior proceeding and this proceeding are similar
in that they both contend that Olin's acquisition of FMC
is illegal under the antitrust laws, the issues resolved in the
two proceedings are quite different. See Brunswick Corp. v.
Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-86 (1977)
(describing the differences between actions under Section 4
and Section 7 of the Clayton Act in their treatment of illegal
acquisitions). The FTC was attempting to predict the effects
of the FMC acquisition, not decide whether the acquisition
actually resulted in lessened competition, one of the ultimate
issues in this proceeding. See 15 U.S.C.§ 18; United States
v. Gen. Dynamics Corp., 415 U.S. 486, 505 (1974); Brunswick,
429 U.S. at 485-86. In making its determination, the
FTC relied upon the evidentiary findings of an ALJ who
heard testimony in 1987 and, who, as is advised, see General
Dynamics, 415 U.S. at 505-06, considered only pre acquisition
evidence. Ultimately, the FTC concluded that Olin's
acquisition of FMC assets "is likely substantially to lessen
competition in the markets for dry pool sanitizers and isocyanurates
in violation of Section 7 of the Clayton Act and Section
5 of the FTC Act."
In this proceeding, plaintiffs alleged and tried to prove
that "Olin's acquisition of FMC and its vertical integration
with distributors (including Superior) have substantially lessened
competition and/or tended to create a monopoly in some
or all of the Markets." (Emphasis added.) Unlike in the FTC's
action, plaintiffs here must show they were actually injured
by a lessening of competition. See Associated Gen. Contractors
v. California State Council of Carpenters, 459 U.S. 519,
535 (1983); Brunswick, 429 U.S. at 485-86. Further, the
"Markets," as defined by plaintiffs, are different from the
markets in the FTC proceeding. Here, they allege four markets:
(1) the sale of cal-hypos by manufacturers to wholesalers
across the entire United States; (2) the sale of isos by
manufacturers to wholesalers across the entire United States;
(3) the sale of branded cal-hypos to retailers in California,
Arizona and Nevada; and (4) the sale of branded isos to retailers
in California, Arizona and Nevada. The FTC found there
to be only two markets, only one of which matches any of the
relevant markets alleged in this proceeding. Moreover, the
time period at issue here is different from the period at issue
in the FTC proceeding. Here, the time period is the postacquisition
period (after 1985), as it must be because plaintiffs
must prove an actual lessening of competition. In short, not all
of the issues raised in the first proceedings are identical or relevant
to the issues raised in the second proceeding.
In addition, the great majority of the ALJ's findings of
fact were not necessary to the FTC's ultimate judgment that
the FMC acquisition was likely to substantially lessen competition.
Most of the findings dealt with mundane issues such as
the employment positions held by various witnesses and sum-
maries of documents. These findings cannot be deemed necessary
to whether Olin violated Section 7 of the Clayton Act.
See Keating, 186 F.3d at 1115-16. Lastly, not all of the ALJ's
findings and conclusions were adopted by the FTC. Some of
the ALJ's findings were likely directed to his conclusion that
the FMC acquisition might tend to create a monopoly, a conclusion
the FTC did not make. For all of these reasons, the
district court did not err in refusing to grant prima facie
weight to all of the findings of fact and conclusions of law.
It is probable that some of the ALJ's findings of fact the
FTC adopted were necessary to the FTC's judgment and
would have been identical and relevant to issues raised in the
proceedings here.NOTE5 Plaintiffs argue that the district court
should have admitted all of the findings and conclusions and
that defendants should have filed motions in limine to exclude
the impermissible findings. This misstates the parties' respective
burdens. It is up to the party seeking prima facie weight
to establish that it has met the requirements of Section 5 for
each issue as to which it seeks prima facie weight. See
Kamilche, 53 F.3d at 1062 (stating burden is on party seeking
collateral estoppel to establish that requirements of collateral
estoppel are met). Neither the district court nor the defendant
is required to engage in a "hunt and peck" exercise to ferret
out potentially relevant and necessary findings. Accordingly,
the district court did not err in refusing to give prima facie
weight to the FTC's findings and conclusions, because plaintiffs
failed to establish that the Section 5 requirements were
met for any of the findings and conclusions. Regardless, even
if these findings and conclusions were given prima facie
weight, plaintiffs would have failed to establish antitrust
injury, as we discuss below.
_________________________________________________________________
5 After reviewing the ALJ's conclusions of law, it is clear to us that none
of them is relevant or identical to issues raised in this proceeding for the
reasons discussed above.
______________________________________________________________

B. Antitrust Injury
Plaintiffs allege that defendants have engaged in multiple
acts in violation of the antitrust laws and that these acts have
caused them injury. Assuming defendants had engaged in
these acts and that they are all illegal, plaintiffs have failed to
prove "antitrust injury." All that plaintiffs have claimed is
that their alleged injuries are causally linked to defendants'
illegal activities. That is not enough to maintain a private antitrust
action. See Cargill, Inc. v. Monfort of Colorado, Inc.,
479 U.S. 104, 109 (1986); Brunswick Corp., 429 U.S. at 486-
87.
1. Procedural Posture of the Motion and Standard of
Review
Procedurally, there is an issue as to how the antitrust injury
issue was raised before the district court and how we should
review the district court's decision. Prior to trial, defendants
moved to dismiss the action for lack of antitrust injury. Both
plaintiffs and defendants submitted numerous trial exhibits
and other evidence in connection with the motion. In deciding
the motion, the district court considered materials outside the
pleadings, effectively treating the motion as one for summary
judgment. See Fed. R. Civ. P. 12(b); Am. Ad Mgmt, Inc. v.
Gen. Tel. Co. of California, 190 F.3d 1051, 1054 (9th Cir.
1999) (reviewing district court's dismissal of antitrust claim
on summary judgment); cf. R.C. Dick Geothermal Corp. v.
Thermogenics, Inc., 890 F.2d 139, 145 (9th Cir. 1989) (en
banc) (holding antitrust standing may be considered at any
stage of the litigation). Therefore, plaintiffs' burden to defeat
the motion was to "set forth specific facts showing there was
a genuine issue for trial." Fed. R. Civ. P. 56(e).
On appeal, we review the district court's decision de novo.
Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999)
(en banc); Am. Ad Mgmt., 190 F.3d at 1054. Summary judgment
is appropriate if, viewing the evidence in the light most
favorable to the non-moving party, (a) "the district court correctly
applied the relevant substantive law" and (b) there are
no genuine issues of material fact. Id. For purposes of analysis,
we assume that all the evidence contested in this case is
admissible. Our decision does not depend upon the outcome
of the motions in limine or on whether the FTC decision was
given prima facie weight.
2. Merits
In adopting the federal antitrust laws, Congress allowed
private parties to bring suit.NOTE6
See Section 4 of the Clayton Act,
15 U.S.C. § 15. In addition to the traditional limitations upon
standing imposed by the Constitution, Congress imposed
additional limitations upon those who can recover damages
under the antitrust laws. See Brunswick, 429 U.S. at 485-86;
2 Phillip E. Arreda & Herbert Hovenkamp, Antitrust Law
¶ 335 at 286-303 (2d ed. 2000). These limitations are sometimes
referred to as the antitrust standing requirements. See
Am. Ad Mgmt, 190 F.3d at 1054. The most important limitation
is that the private party "must prove the existence of
`antitrust injury.' " Atl. Richfield Co. v. USA Petroleum Co.,
495 U.S. 328, 334 (1990)("ARCO") (quoting Brunswick, 429
U.S. at 489).
Under Section 4, private plaintiffs can be compensated only
for injuries that the antitrust laws were intended to prevent. It
is not enough to show that one's injury was caused by illegal
behavior. See Cargill, 479 U.S. at 109; Brunswick, 429 U.S.
at 485-86. "To show antitrust injury, a plaintiff must prove
that his loss flows from an anticompetitive aspect or effect of
the defendant's behavior, since it is inimical to the antitrust
_________________________________________________________________
6 The requirements for maintaining an antitrust suit under California law
mirror the federal requirements. Kentmaster Mfg. Co. v. Jarvis Prods.
Corp., 146 F.3d 691, 695 (9th Cir. 1998), as amended 164 F.3d 1243 (9th
Cir. 1999)). Therefore, our resolution of the federal claims also resolves
the state law claims. Id.
____________________________________________________________
laws to award damages for losses stemming from acts that do
not hurt competition. If the injury flows from aspects of the
defendant's conduct that are beneficial or neutral to competition,
there is no antitrust injury, even if the defendant's conduct
is illegal per se." Rebel Oil Co. v. ARCO, 51 F.3d 1421,
1433 (9th Cir. 1995) ("Rebel I") (internal citation omitted)
(emphasis added).
"It is well established that the antitrust laws are only
intended to preserve competition for the benefit of consumers."
Am. Ad Mgmt, 190 F.3d at 1055."Consumer welfare is
maximized when economic resources are allocated to their
best use and when consumers are assured competitive price
and quality." Rebel I, 51 F.3d at 1433 (internal citation omitted).
Accordingly, the antitrust laws are only concerned with
acts that harm "allocative efficiency and raise[ ] the price of
goods above their competitive level or diminish[ ] their quality."
Id.; see also Nelson v. Monroe Reg'l Med. Ctr., 925 F.2d
1555, 1564 (7th Cir. 1991) (Antitrust injury "means injury
from higher prices or lower output, the principal vices proscribed
by the antitrust laws.").
Although defendants may have engaged in "a whole host of
anticompetitive practices," plaintiffs have only presented two
types of injury from those practices -- decreased prices and
decreased market share. Plaintiffs' theory of the case is that
defendants' ultimate goal was to raise prices in the dry swimming
pool sanitizer markets. To accomplish that, defendants
allegedly engaged in a series of anticompetitive actions starting
with the illegal acquisition of FMC's assets and the purchase
of Kern, then moving on to a refusal to deal with Aqua
Tri and predatory pricing by SPP. Defendants' alleged
scheme involved two phases. First, through these various
mechanisms they would increase their market power and
drive prices down. Second, once they had market power, they
would raise prices to supracompetitive levels. The fatal flaw
in plaintiffs' case is that defendants never reached the second
phase. Defendants managed only to drive prices down; they
were never able to raise prices to supracompetitive levels.
Plaintiffs' theory of their injury is that PWP lost profits
through SPP's reduction of the price of cal-hypos and isos and
PWP's loss of market share.
The Supreme Court has made clear, however, that a
decrease in profits from a reduction in a competitor's prices,
so long as the prices are not predatory, is not an antitrust
injury. Brooke Group Ltd v. Brown & Williamson Tobacco
Corp., 509 U.S. 209, 223-24 (1993). Absent proof of predation,
it is immaterial whether the price reduction is the result
of illegal price setting, illegal mergers and acquisitions, collusion,
price discrimination or any other antitrust violation.
"Low prices benefit consumers regardless of how those prices
are set, and so long as they are above predatory levels, they
do not threaten competition . . . . We have adhered to this
principle regardless of the type of antitrust claim involved."
Id. (holding low prices resulting from illegal price discrimination
did not amount to antitrust injury) (quoting ARCO, 495
U.S. at 340 (holding low prices set through an illegal vertical,
maximum price-fixing scheme did not amount to antitrust
injury)); Cargill, 479 U.S. at 114-117 (holding low prices
resulting from an illegal merger did not amount to antitrust
injury). "When prices are not predatory, any losses flowing
from them cannot be said to stem from an anticompetitive
aspect of the defendant's conduct." ARCO, 495 U.S. at 340-
41 (emphasis added).
Accordingly, unless plaintiffs can show that Olin's
prices were predatory -- i.e., "below an appropriate measure
of [SPP's] costs" -- they have failed to show antitrust injury
from the decrease in prices for isos and cal-hypos. Brooke
Group, 509 U.S. at 222. Neither the Supreme Court nor this
Circuit has answered the question of what "an appropriate
measure of costs" is, but we have clearly stated what is not
appropriate. See Rebel Oil Co. v. ARCO, 146 F.3d 1088, 1092
(9th Cir. 1998) ("Rebel II"). In Rebel II, we held that the price
paid from a wholly owned subsidiary to its parent for goods
was not an appropriate measure of costs. That price is considered
a "transfer price, not a sale." Id. at 1096. When there is
a wholly owned subsidiary, "the costs of [the parent] and [the
subsidiary] together must be considered, not simply [the subsidiary's]
costs versus its sales." 146 F.3d at 1096; see also
Volrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir.
1993) (stating that when entities are considered a combined
unit, "then the appropriate consideration is the costs of the
combined group to determine if the combined group sold
below its costs").
Plaintiffs' calculations of SPP's alleged below-cost
pricing did not consider the costs to Olin, the parent company,
in producing and transferring isos and cal-hypos to SPP, its
wholly owned subsidiary, and in some instances expressly
relied upon transfer prices. Nor did plaintiffs calculate any of
the competing measures of "appropriate costs" of isos and
cal-hypos for Olin and SPP -- e.g., marginal variable cost,
average variable cost or average total cost. See Rebel II, 146
F.3d at 1092-93 (describing competing measures of calculating
appropriate costs in determining whether prices are predatory).
Accordingly, plaintiffs have not presented any evidence
that SPP engaged in predatory pricing. See id. at 1096; Volrath,
9 F.3d at 1460. Plaintiffs' reduced profits attributable to
defendants' decrease in prices is therefore not an antitrust
injury. See Brooke Group, 509 U.S. at 222-23; ARCO, 495
U.S. at 340; Rebel II, 146 F.3d at 1096.
Plaintiffs' second alleged antitrust injury is that PWP's
market share decreased -- from about 60 percent of the market
to about 35 percent -- during the time period these
alleged anticompetitive activities occurred. A decrease in one
competitor's market share, however, affects competitors, not
competition. See Cargill, 479 U.S. at 116 ("The kind of competition
that [plaintiff] alleges here, competition for increased
market share, is not activity forbidden by the antitrust laws.").
Shifting PWP's sales to SPP and other competitors in the market
does not directly affect consumers and therefore does not
result in antitrust injury. Id. Increased concentration may
make anticompetitive activity more likely, but in and of itself
it does not amount to antitrust injury. See Brunswick, 429 U.S.
at 486-87.
Plaintiffs argue that they have at least proved antitrust
injury as a result of the FMC acquisition, because this acquisition
was determined to be illegal by the FTC and they suffered
injury from the anticompetitive acts that were made
possible by the acquisition. It is not enough, however, to show
that defendants violated the law and that the plaintiffs suffered
a causally related injury. The critical question for determining
whether there is antitrust injury is whether the harm
is of the kind the antitrust laws were meant to protect against.
See Cargill, 479 U.S. at 109; Brunswick, 429 U.S. at 485-86;
Rebel I, 51 F.3d at 1433. As stated above, reduced profits
from lower prices and decreased market share is not the type
of harm Section 4 was meant to protect against. Accordingly,
the district court did not err in holding plaintiffs failed to
establish antitrust injury.NOTE7
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.
_________________________________________________________________
7 Because our determination that plaintiffs have failed to establish antitrust
injury does not depend upon the admissibility of the disputed evidence,
we decline to address the motions in limine.