Universal Brands, Inc. v. Philip Morris Inc.

TJOFLAT, Circuit Judge

(dissenting):

Respectfully, I must dissent. The majority has attempted to put the allegations of the plaintiff into the tidy box constructed by those cases which hold that a manufacturer who simply changes distributors works no violation of the antitrust laws.1 They do not fit.

Universal Brands, Inc., (Universal) does not solely complain of injury to itself. Indeed, the main thrust of the complaint is that Philip Morris, Inc., which wholly owns Miller Brewing Co. (Miller), and Lowenbrau-Munchen Aktiengesellschaft (Lowenbrau) have violated section 1 of the Sherman Act2 and section 7 of the Clayton Act.3 Universal attempts to restrain these alleged violations by utilizing section 16 of the *37Clayton Act.4 The issues before this court, then, are, first, whether an antitrust violation has been successfully asserted and, second, whether Universal has standing to enjoin such violations.

I. Antitrust Violations

It is no secret that the beer industry is one “marked by a steady trend toward economic concentration.” United States v. Pabst Brewing Co., 384 U.S. 546, 550, 86 S.Ct. 1665, 1668, 16 L.Ed.2d 765 (1966). See also United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973). According to Universal’s complaint, which has been accepted as true by the appellees in this summary judgment posture, the number of brewers producing and selling domestic beer in the United States has declined from 121 in 1964 to 58 in 1974. Moreover, while production has increased by 61% since 1950, the number of brewing plants has dwindled from 407 to 129, a 68% reduction. In 1974 the top three brewers made 64% of domestic beer sales, and the top five, including Miller, accounted for 77% of all domestic production.5 With this background in mind, we must determine whether the record before us presents a material question of fact as to the occurrence of an antitrust violation.

A. Section 1 of the Sherman Act

It is true, as the majority has indicated, that the Sherman Act “does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). The “Colgate doctrine” however, has been “narrowly limited.” United States v. Parke, Davis & Co., 362 U.S. 29, 42, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). See United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024 (1944); FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922); United States v. Schrader’s Son, 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471 (1920); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). See generally Areeda, Antitrust Analysis 11500-36 (2d ed. 1974). A seller may not “by contracts or combinations, express or implied, unduly hinder the free and natural flow of commerce in the channels of interstate trade” without violating the Sherman Act. Bausch & Lomb, 321 U.S. at 722, 64 S.Ct. at 813, quoting Beech-Nut, 257 U.S. at 453, 42 S.Ct. 150.

A case instructive on this point is Interphoto Corp. v. Minolta Corp., 295 F.Supp. 711 (S.D.N.Y.), aff’d in part, 417 F.2d 621 (2d Cir. 1969). In that case, Interphoto was a distributor of Minolta photographic equipment. The sales agreement between the parties stipulated thirteen states in which Interphoto could not sell. Moreover, when Interphoto sold cameras below the suggested prices of Minolta, Minolta put pressure on Interphoto and threatened to discontinue dealings. Minolta also informed all its distributors that they were not to sell any equipment to United States military ex*38changes. When Interphoto did not cooperate, Minolta refused to renew their sales agreement. Interphoto sought injunctive relief under section 16 of the Clayton Act, 15 U.S.C. § 26 (1970), and prevailed. The Court found the Colgate doctrine inapplicable due to Minolta’s price-fixing and territorial and customer restraints. 295 F.Supp. at 718-21.

Universal, however, does not allege similar practices by either Lowenbrau or Miller. Lowenbrau was not alleged to have tried to dictate resale prices to Miller nor Miller to its distributors. Neither customer nor territorial restraints nor illegal tying arrangements were alleged. • Thus, although summary judgment must be used sparingly in antitrust cases where motive and intent play important roles, Poller v. CBS, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5th Cir. 1965), I agree with the majority that no facts exist which would tend to show a Sherman Act violation and none have been alleged.6 Consequently, summary judgment as to the section one violation was in order. See Southern Concrete Co. v. United States Steel Corp., 535 F.2d 313, 318 (5th Cir. 1976).

B. Section 7 of the Clayton Act

To hold that no Sherman Act violation has been asserted does not require a similar conclusion as to section 7 of the Clayton Act, for that section is much broader than the Sherman Act. Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). As the Court stated in Brown Shoe,

[I]t is apparent that a keystone in the erection of a barrier to what Congress saw was the rising tide of economic concentration, was [section 7’s] provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency. Congress saw the process of concentration in American business as a dynamic force; it sought to assure the Federal Trade Commission and the courts the power to brake this force at its outset and before it gathered momentum. Id. at 317-18, 82 S.Ct. at 1520 (footnote omitted). See also id. at 318 n.32, 82 S.Ct. at 1520.

I have already noted the trend toward concentration in the beer industry. The application of section 7 has prevented the mergers of beer companies in the recent past. See Falstaff; Pabst. It seems clear to me that a disputed fact issue exists as to whether the acquisition7 of Lowenbrau by Miller amounts to a section 7 violation. Miller is the fifth largest brewer in the United States with over 6% of the market. Lowenbrau is the largest importer of beer into the United States. These facts alone should compel a court to question whether the acquisition of Lowenbrau by Miller runs counter to the policy expressed in section 7 *39by causing an unhealthy concentration of the beer market as a whole in the United States market.8 An even stronger case is presented when the asserted market area of southeastern Florida, where Miller is the third largest brewer, is considered.9

Universal also alleges that imported European beer is an appropriate line of commerce for purposes of section 7 analysis. European-style beer differs from domestic beer in many respects, among them being color, alcoholic content and, most importantly, taste. Such differences make European-style beer readily distinguishable from domestic beers. It costs more than domestic beers and provides a higher profit percentage to distributors. This is not to say, of course, that European-style beer must be imported. Indeed, it is Miller’s announced intention to brew Lowenbrau in domestic breweries. This graphically demonstrates that Miller, by acquiring all rights to process Lowenbrau in the United States and to use its trademark, has removed itself as a potential competitor of Lowenbrau in the European-style beer market.10 Such potential competition is also protected by section 7.11 United States v. General Dynamics Corp., 415 U.S. 486, 94 S.Ct. 1186, 39 L.Ed.2d 530 (1974); Falstaff; Pabst; United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964); United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964); United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964); United States v. Phillips Petroleum Co., 367 F.Supp. 1226 (C.D.Cal. 1973), aff’d, 418 U.S. 906, 94 S.Ct. 3199, 41 L.Ed.2d 1154 (1974).

I am not suggesting, of course, that Universal would be able to prove a sufficient section 7 violation to prevail on the merits. But this case is in a summary judgment posture, and allegations and statistics such as those presented here are adequate to demonstrate a prima facie violation of the Clayton Act. General Dynamics, 415 U.S. at 496, 94 S.Ct. 1186. A summary disposition of Universal’s claim is improper. Consequently, Universal is entitled to prosecute its claim provided it has standing.

*40II. Standing

Universal seeks injunctive relief under section 16 of the Clayton Act, 15 U.S.C. § 26 (1970), to restrain the alleged section 7 violation. The majority has held that Universal does not have standing to assert such a violation under the section. I disagree.

The majority correctly notes that the tests for standing under section 4 and section 16 of the Clayton Act are not identical, for equitable relief is frequently available when treble damages are not.12 See Hawaii v. Standard Oil Co., 405 U.S. 251, 260-64, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 130 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). Section 16 permits suit by any corporation threatened with loss or damage by a violation of the antitrust laws. This circuit has interpreted the statute to mean that the petitioner’s loss or damage must have been a proximate result of the antitrust violation. Jeffrey v. Southwestern Bell, 518 F.2d 1129 (5th Cir. 1975); Credit Bureau Reports, Inc. v. Retail Credit Co., 476 F.2d 989 (5th Cir. 1973).

I think it clear from Universal’s allegations and the evidence it was able to produce despite the district court’s stringent limitations on discovery that Universal’s injury was proximately caused by the alleged antitrust violation. Philip-Morris’ plan from the start was to acquire Lowenbrau and to add it to its Miller line of beers as its European-style product. To this end it would distribute its beers only to its Miller distributors. And that is exactly what happened. Miller took Lowenbrau out of Universal’s hands and placed it in those of its three existing distributors.

It has long been settled that one does not have to be in privity with an antitrust violator to have standing to bring suit against him. Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679 (8th Cir. 1966); South Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414 (4th Cir.), cert. denied, 385 U.S. 934, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966); Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955); Vines v. General Outdoor Advertising Co., 171 F.2d 487 (2d Cir. 1948). As was stated in Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 1006, 92 L.Ed. 1328 (1948),

The statute does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers. Nor does it immunize the outlawed acts because they are done by any of these. . . . The Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated.

In my view, Universal has successfully put in issue whether it has been victimized by a forbidden practice. It cannot be conclusively said on this record that Universal has been only “distantly” or “tenuously” injured. Thus, summary judgment is inappropriate. South Carolina Council of Milk Producers, 360 F.2d at 420.

The instant case is readily distinguishable from Jeffrey. There residential telephone subscribers were allegedly injured by rates made unnecessarily high because of the defendants’ attempts to monopolize the telephone equipment market. The plaintiffs lacked standing to enjoin such violations, however, because manufacturers of telecommunications equipment suffered the “first-line” injury13 and the city approved *41the rates as fair. 518 F.2d at 1132. Universal, on the other hand, directly deals with the product which is the subject of alleged antitrust violations. Moreover, no independent governmental authority has been involved.14

The Ninth Circuit’s decision in In re Multidistrict Vehicle Air Pollution graphically demonstrates the difference in standing under section 4 and section 16 and is cogent authority for finding standing in this case. In In re Multidistrict Vehicle Air Pollution several governmental entities and crop farmers alleged that the nation’s car manufacturers conspired to eliminate competition among themselves in the research, development, manufacture, installation and patenting of automotive air pollution control devices. The governmental entities claimed losses resulting from diminution in value of government property and other interests; the farmers claimed damage to crop yields. 481 F.2d at 124-25. Applying the “target area” test,15 the panel found that the farmers’ injuries were too remote to confer standing under section 4.16 Section 16 remedies were available to the plaintiffs, however. The court noted that section 16 “is far broader than § 4. Any person may secure injunctive relief against threatened loss or damage by violation of the antitrust laws.” Id. at 130, quoting Hawaii v. Standard Oil Co., 431 F.2d 1282, 1284-85 (9th Cir. 1970), aff’d 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). Accord, Jeffrey, 518 F.2d at 1132.

Universal’s loss is no more remote than that of the plaintiffs in In re Multidistrict Vehicle Air Pollution. It is a proximate result of the defendants’ alleged anticompetitive activity. To be entitled to relief under section 16, a plaintiff “need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.” Zenith, 395 U.S. at 130, 89 S.Ct. at 1580. Although the majority has noted the difference in the standing requirements between section 4 and section 16 in theory, it has failed to do so in practice. Universal should be allowed to go forward to demonstrate, if it can, an antitrust violation and to seek appropriate equitable relief.

I dissent.

. See Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245 (5th Cir. 1975); Adolph Coors Co. v. FTC, 497 F.2d 1178 (10th Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975); Alpha Distrib. Co. v. Jack Daniel Distillery, 454 F.2d 442 (9th Cir. 1972); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969); Scanlan v. Anheuser-Busch, Inc., 388 F.2d 918 (9th Cir.), cert. denied, 391 U.S. 916, 88 S.Ct. 1810, 20 L.Ed.2d 654 (1968); Ace Beer Distrib., Inc. v. Kohn, Inc., 318 F.2d 283 (6th Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963); cf. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). The critical inquiry in refusal to deal cases was well elucidated in Alpha Distributing Co.:

The critical inquiry in such “refusal to deal” cases is not whether there was a refusal to deal, or whether a refusal to deal was carried out by agreement with others, but rather whether the refusal to deal, manifested by a combination or conspiracy, is so anticompetitive, in purpose or effect, or both, as to be an unreasonable restraint of trade. . This inquiry is primarily a factual one, and its resolution often requires determination of motive or intent. 454 F.2d at 452.

. Section 1 states in relevant part, “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . . 15 U.S.C. § 1 (Supp. IV 1974).

. Section 7 states in relevant part,

No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. . . . Id. § 18 (1970).

. Section 16 states in relevant part,

Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue . . . . Id. § 26.

In United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966), the district found that “the number of breweries operating in the United States declined from 714 in 1934 to 229 in 1961, and the total number of different competitors selling beer had fallen from 206 in 1957 to 162 in 1961.” Id. at 550. In addition, between 1957 and 1961 the ten leading brewers increased their combined shares of sales from 45% to 53%. Id. at 551, 86 S.Ct. 1665.

. It is true that section 1 of the Sherman Act has been used in the past to prevent mergers. E. g., Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679 (1904). However, even assuming for the moment that Lowenbrau has merged with Miller, United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948), would appear to foreclose this avenue of attack by Universal. See also United States v. United States Steel Corp., 251 U.S. 417, 40 S.Ct. 293, 64 L.Ed. 343 (1920). The Columbia Steel decision proved to be a “powerful stimulus” motivating Congress to expand the Clayton Act’s coverage in 1950. Areeda, Antitrust Analysis fl 620 (2d ed. 1974).

. Under the terms of their contract, Lowenbrau granted Miller the sole and exclusive right to use its trademarks and import it beer. Record at 19-20. Provision was also made for the payment of royalties to Lowenbrau if and when the beer was manufactured by Miller in one of its own domestic breweries. Id. at 25-26. This, for all intents and purposes, amounts to a merger of the two companies in the United States and satisfies section 7’s requirement that there be an acquisition of “the whole or any part of the assets of another corporation.” United States v. Lever Bros. Co., 216 F.Supp. 887 (S.D.N.Y.1963) (trademark is sufficient asset to trigger section 7); see Western Geophysical Co. v. Bolt Assocs., 305 F.Supp. 1248 (D.Conn.1969) (exclusive patent license); United States v. Columbia Pictures Corp., 189 F.Supp. 153 (S.D.N.Y.1960) (film exhibition rights). See also United States v. ITT Continental Baking Co., 420 U.S. 223, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975).

. Contrary to the intimation of the majority, Universal alleges that competition is restrained in the nation as a whole as well as in southeastern Florida. Record at 8.

. As to an appropriate market area, the Supreme Court stated in Brown Shoe, “[Ajlthough the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area.” 370 U.S. at 337, 82 S.Ct. at 1530. It elucidated further in Pabst that the language of section 7

requires merely that the Government prove the merger may have a substantial anticompetitive effect somewhere in the United States — “in any section” of the United States. This phrase does not call for the delineation of a “section of the country” by metes and bounds as a surveyor would lay off a plot of ground. . Certainly the failure of the Government to prove by an army of expert witnesses what constitutes a relevant “economic” or “geographic” market is not an adequate ground on which to dismiss a § 7 case. Compare United States v. Continental Can Co., 378 U.S. 441, 458 [84 S.Ct. 1738, 12 L.Ed.2d 953], Congress did not seem to be troubled about the exact spot where competition might be lessened; it simply intended to outlaw mergers which threatened competition in any or all parts of the country. Proof of the section of the country where the anticompetitive effect exists is entirely subsidiary to the crucial question in this and every § 7 case which is whether a merger may substantially lessen competition anywhere in the United States. 384 U.S. at 549-50, 86 S.Ct. at 1667-68 (footnote omitted). See also United States v. Marine Bancorporation, Inc., 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978 (1974); United States v. Von’s Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966); United States v. Maryland & Virginia Milk Producers Ass’n, 167 F.Supp. 799 (D.D.C.1958), aff’d, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960).

. I realize, of course, that it is initially the task of the district court, and not the court of appeals, to determine whether European-style beer is a distinct line of commerce under section 7. The record before us, however, clearly discloses a fact issue on this point.

. Universal alleges in its complaint that, but for the agreement between Miller and Lowenbrau, “Philip Morris would have developed, produced, promoted, sold and distributed its own beer of sufficient quality, prestige and consumer acceptance to complete with Lowenbrau.” Record at 6.

. This more restrictive approach to standing in treble damages actions is due in large part to the nature of the relief itself. While “one injunction is as effective as 100, and, concomitantly, . . . 100 injunctions are no more effective than one,” if a “defendant is sued by 100 different persons . and each claim is for damages, the potential liability is obviously far greater than if only one of those persons sued on only one claim.” Hawaii v. Standard Oil Co., 405 U.S. 251, 261-62, 92 S.Ct. 885, 889, 31 L.Ed.2d 184 (1972); see Jeffrey v. Southwestern Bell, 518 F.2d 1129, 1132 (5th Cir. 1975).

. Perkins v. Standard Oil Co., 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969), warns against attaching any great significance to how *41far removed from the initial activity the plaintiff happens to be. The court of appeals had denied standing to a plaintiff under the Robinson-Patman Act because his was a “fourth level” injury. In reversing, the Court stated, “We conclude that this limitation is wholly an artificial one and is completely unwarranted by the language or purpose of the Act.” Id. at 647, 89 S.Ct. at 1874.

. Our decision in Buckley Towers Condominium, Inc. v. Buchwald, 533 F.2d 934 (5th Cir. 1976), is also of no help to the majority. There we denied standing to the plaintiff under both section 4 and section 16 because it could demonstrate no injury at all due to the alleged anticompetitive practices of the defendants. More to the point is our rejection in Credit Bureau Reports of the idea that the antitrust violations of the defendant and the threatened interest of the plaintiff must be in the same market. 476 F.2d at 993-94.

. This circuit has also adopted the “target area” approach for determining section 4 standing. See Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172 (1976); Dailey v. Quality School Plan, Inc., 380 F.2d 484 (5th Cir. 1967).

. The governmental entities were found not to have standing under section 4 because they alleged no injury to commercial ventures or enterprises as is required under that section, although not under section 16. 481 F.2d at 126, 130; see Hawaii, 405 U.S. at 264, 92 S.Ct. 885.