(dissenting):
With due respect, I must dissent. This case is governed by well-settled antitrust law principles governing combinations and conspiracies designed to restrain competition on the part of of a specific competitor — in this case Oreck — which the majority chooses to disregard.
The evidence, viewed most favorably to plaintiff-appellee Oreck, as it must be after the jury’s verdict, Continental Ore Co. v. Union Carbide, 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962), reveals a classic per se restraint of competition of the type condemned by the Supreme Court in United States v. General Motors, 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). Whirlpool, a large manufacturer of appliances, *60including vacuum cleaners, combined with Sears, Roebuck, a merchandising giant which for 40 odd years had distributed the lion’s share of Whirlpool’s entire output, to stop plaintiff-appellee Oreck, the only other distributor of Whirlpool vacuum cleaners, from competing against Sears in the sale of Whirlpool-made machines. The motive was clear — to prevent Oreck’s price-cutting and other competitive practices from interfering with Sears’ higher prices and its sales of Whirlpool-made vacuum cleaners. When Oreck refused to knuckle under as requested, the combination agreed to have Whirlpool cut it off as a distributor of Whirlpool machines, which was done even though Oreck had dramatically increased its sales of Whirlpool vacuum cleaners from 8,384 units to 78,203 units over the preceding four years. As a result, the public lost the benefit of Oreck’s competition and particularly of its lower prices in the sale of Whirlpool vacuum cleaners. Thereafter, if customers wanted Whirlpool machines they would have to buy them from Sears and pay Sears’ higher prices. The principles governing such a case were summarized by the Supreme Court in United States v. General Motors, 384 U.S. at 146-47, 86 S.Ct. at 1331 (1966) as follows:
“The principle of these cases is that where businessmen concert their actions in order to deprive others of access to merchandise which the latter wish to sell to the public, we need not inquire into the economic motivation underlying their conduct. See Barber, Refusals to Deal Under the Federal Antitrust Laws, 103 U.Pa.L.Rev. 847, 872-885 (1955). Exclusion of traders from the market by means of combination or conspiracy is so inconsistent with the free-market principles embodied in the Sherman Act that it is not to be saved by reference to the need for preserving the collaborators’ profit margins or their system for distributing automobiles, any more than by reference to the allegedly tortious conduct against which a combination or conspiracy may be directed — as in Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n, supra [312 U.S. 457] at 468 [61 S.Ct. 703, 85 L.Ed. 949].
We note, moreover, that inherent in the success of the combination in this case was a substantial restraint upon price competition — a goal unlawful per se when sought to be effected by combination or conspiracy. E. g., United States v. Parke, Davis & Co., 362 U.S. 29, 47 [80 S.Ct. 503, 513, 4 L.Ed.2d 505]; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 [60 S.Ct. 811, 844, 84 L.Ed. 1129]. And the per se rule applies even when the effect upon prices is indirect. Simpson v. Union Oil Co., 377 U.S. 13, 16-22 [84 S.Ct. 1051,1057,12 L.Ed.2d 98]; Socony-Vacuum Oil Co., supra.”
The background of the conspiracy is instructive. Since 1925 Sears has been the principal distributor of Whirlpool products, currently purchasing more than two-thirds of Whirlpool’s total appliance production and, at the time of the events here involved, more than 90% of Whirlpool’s vacuum cleaner output for resale under Sears’ “Kenmore” label. In addition Sears, beginning in 1925, purchased a substantial block of Whirlpool’s common stock and by 1960 became its largest single shareholder, owning 251,192 shares and usually electing one or more of its executives to Whirlpool’s board of directors. Sears, therefore, has been in a position to exercise considerable leverage power over Whirlpool’s sales and distribution policies and decisions.
Prior to the formation of Oreck in 1963, Whirlpool had periodically attempted to broaden the sales if its vacuum cleaners by marketing them under its own brand name, but had found that its existing distribution network was inadequate and that Sears’ sales of Whirlpool-manufactured vacuum cleaners at higher retail prices posed a barrier to Whirlpool’s entry into price competition against other brands as long as it was restrained by its arrangement with Sears from competing price-wide against Sears in the sale of Whirlpool-made machines. As a result Whirlpool in 1961 discontinued efforts to sell its product independently under its own name and H. Thomas Stroop, a Whirlpool executive, prepared a report enti-*61tied “Appraisal of Vacuum Cleaner Business — RCA Whirlpool”. He concluded that “Unlike other appliances, Sears sells their [vacuum] cleaners for as high or higher prices than major brand competition.
“Sears becomes very unhappy if RCA WHIRLPOOL product [sic] is retailed for less than the Sears product manufactured by Whirlpool. For this reason, we understand that it has been decided that the RCA WHIRLPOOL brand should have retail prices comparable to Sears. “Our challenge then . . . ‘Can we sell cleaners in volume at high retail prices . . . and if so how?’ ” (PI. Ex. 160)
Thereafter, until the events giving rise to this case, Whirlpool-made vacuum cleaners were sold to the public only by Sears.
In April, 1963, Whirlpool’s interest in selling its vacuum cleaners under its own brand name was revived. Jack Sparks, Vice President of Whirlpool, approached David Oreck, who had prior to 1961 been in charge of Whirlpool vacuum cleaners sales for Bruno, New York and had been the most successful distributor of Whirlpool vacuum cleaners under its own brand name before Whirlpool discontinued such sales. The result was an agreement to the effect that the newly-formed Oreck Corporation, plaintiff-appellee, would function as the exclusive United States distributor of Whirlpool brand vacuum cleaners. Sparks advised Oreck that he was “not to conflict with Sears, Roebuck on price” and that an internal Whirlpool letter confirmed that Oreck’s prices would “emphasize specialty [i. e., high-priced] selling”.
Oreck soon found that it could not compete with Sears in selling Whirlpool-made vacuum cleaners at Sears’ prices and decided that it could distribute them profitably only by selling at lower prices and through direct mail or institutional supply houses, which would, by reducing or eliminating the middleman’s mark-up, enable Oreck to sell competitively and profitably at the lower price levels. Accordingly, in 1967 Oreck began a large-scale mail solicitation campaign which, dramatically increased its sales of Whirlpool machines from a low in 1967 of 8,384 units to an all-time high of 78,203 units in 1971, the year Whirlpool terminated its distributorship. The mail order campaign offered the vacuum cleaners to carefully selected groups of consumers at very low prices. Oreck planned to realize its profit from the sale of dust bags and accessories over the 10-15 year life of the product. Despite the prospects for increased sales, three Whirlpool executives, Jack Sparks, Sol Sweet and John Payne, Whirlpool’s primary contact with Oreck, all expressed disapproval of the mail order campaign, Payne advising Oreck that Whirlpool’s unhappiness was attributable to the company’s “other customer” (Sears), which did not like the mail solicitation. Payne also told Oreck that the “other customer got to the head of the company [Whirlpool]”.1
That a Whirlpool-Sears combination had been formed to stop Oreck’s competition against Sears is further evidenced by events during the preceding year, 1966, when David Oreck sought to obtain Whirlpool’s approval of Oreck’s plan to market in Canada, where Sears operated under the name of Simpson-Sears Ltd. Whirlpool refused to make the minor changes in the vacuum cleaner necessary to conform to Canadian Standards Association requirements, as they had done for Sears, and Payne later wired Oreck that it could not market in Canada because Whirlpool could not “obtain a waiver to the current franchise,” meaning approval by Sears. A concurrent Whirlpool internal memorandum criticized Oreck’s emphasis on low-priced sales, concluding that, “Needless to say, we should not eon-*62sider for a moment authorizing Oreck to operate in Canada.”
By 1968 the Whirlpool-Sears combination was continuing to put the screws on Oreck in an effort to force it to adhere to Sears’ prices, sales methods, and markets. In that year Whirlpool refused to manufacture private label vacuum cleaners for certain of Oreck’s large customers, and Payne attributed the refusal to “objections from our other customer. . . . ” In 1969 and 1970, Whirlpool refused to make minor changes in Oreck’s shipping carton to meet parcel post requirements and thereby avoid a penalty charge, even though Whirlpool had provided Sears with an acceptable box for its mail orders. Payne, who handled the matter, attributed the refusal not to .engineering difficulties but to a “corporate” decision.
On December 31, 1971, despite Oreck’s highest sales level since it had begun selling Whirlpool vacuum cleaners, Whirlpool terminated the Oreck distributorship.
The foregoing, together with other evidence and witnesses viewed by the jury, supported the jury’s inference that Whirlpool terminated Oreck as the result of the combined efforts of Sears and Whirlpool to put an end to Oreck’s competition against Sears in the sale of Whirlpool machines, including mail-order solicitation and low prices, to which Sears objected because of the possible adverse effect on its sale of Whirlpool vacuum cleaners under its own label at higher prices and without any Canadian Whirlpool competition. No substantial evidence was offered to show that Oreck was terminated for some possibly lawful reason, such as failure to increase Whirlpool sales or Whirlpool’s desire to protect its trade name, other than testimony of Jack D. Sparks and John Payne that Oreck had failed to market to “major accounts,” which was understandably rejected by the jury in view of Oreck’s tremendous increase in sale of Whirlpool cleaners from 1967 to 1971.
The law governing the case is clear and well-settled. A manufacturer may unilaterally choose his customers, United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), and unilaterally substitute one exclusive distributor for another, Alpha Distributing Co. v. Jack Daniels Distillery, 454 F.2d 442, 452 (9th Cir. 1972). However, it is elementary that a combination between a manufacturer and one or more of its customers which has as its sole object the restraint of another customer’s competition through purchase and resale of the manufacturer’s product is per se illegal. United States v. General Motors, 384 U.S. 127, 146-47, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); United States v. Parke-Davis & Co., 362 U.S. 29, 47, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); Klor’s Inc. v. Broadway-Hale Stores, 359 U.S. 207, 212, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); E. A. McQuade Tours, Inc. v. Consolidated Air Tour Manual Comm., 467 F.2d 178, 186-7 (5th Cir. 1972), cert. den., 409 U.S. 1109, 93 S.Ct. 912, 34 L.Ed.2d 690 (1973);. Barber, Refusals to Deal Under The Federal Antitrust Laws, 103 U.Pa.L.Rev. 847, 875 (1955).
In United States v. General Motors, supra, the manufacturer and a group of its Los Angeles area dealers agreed to discontinue selling Chevrolets through discount houses advertising discount prices and lower financing costs. The Court characterized the arrangement as a “classic conspiracy in restraint of trade,” explaining the application of the per se rule as follows:
“[I]nherent in the success of the combination . . . was a substantial restraint upon price competition — a goal illegal .per se when sought to be effected by combination and conspiracy. . And the per se rule applies even when the effect upon prices is indirect.” 384 U.S. at 147, 86 S.Ct. at 1331.
General Motors represented one more application of the basic principle established long ago in United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223-24, 60 S.Ct. 811, 844-45, 84 L.Ed. 1129 (1940) to the effect that
“Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce *63is illegal per se. Where the means for price-fixing are purchases or sales of the commodity in a market operation or, as here, purchases of a part of the supply of the commodity for the purpose of keeping it from having a depressive effect on the markets, such power may be found to exist though the combination does not control a substantial part of the commodity. . . . Price-fixing agreements may have utility to members of the group though the power possessed or exerted falls far short of domination and control. Monopoly power (United States v. Patten, 226 U.S. 525 [33 S.Ct. 141, 57 L.Ed. 333]) is not the only power which the Act strikes down, as we have said. Proof that a combination was formed for the purpose of fixing prices and that it caused them to be fixed or contributed to that result is proof of the completion of a price-fixing conspiracy under § 1 of the Act.”
Moreover, such a combination by agreement to restrain price competition or through refusal to deal with a customer is per se illegal whether it is horizontal, vertical or embraces participants from both levels. See, e. g., United States v. Arnold, Schwinn & Co., 388 U.S. at 375-76, 87 S.Ct. 1856, where the Supreme Court observed that a conspiracy embracing both levels is illegal per se, when it is “ancillary to price fixing” or “price fixing is ‘an integral part of the whole distribution system’,” 388 U.S. at 375, 87 S.Ct. at 1864, even if the effect on prices is “indirect,” United States v. General Motors, supra, 384 U.S. at 147, 86 S.Ct. 1321.
The majority further errs in stating that Oreck’s complaint fails to allege that “Whirlpool’s refusal to deal was aimed at eliminating intrabrand price competition.” The complaint alleges clearly an agreement between Sears and Whirlpool to restrain Oreck’s competition against Sears in the sale and distribution of Whirlpool-made vacuum cleaners. Plaintiff Oreck alleged, at IK 14-15 of the First Claim of its complaint, that when Oreck began “to compete seriously with Sears” in the sale and distribution of Whirlpool products — specifically “sales of ‘Kenmore’ vacuum cleaners” made by Whirlpool — Whirlpool terminated its distributorship to “eliminate any serious competition to Sears, Roebuck from Oreck.” These allegations were clearly broad enough to embrace restraint of price competition by Oreck against Sears in the sale of Whirlpool-made vacuum cleaners, an issue that was actually tried without objection. Par. 21 of the complaint, moreover, alleges that improvements in Whirlpool’s vacuum cleaner were withheld “with the intent and effect of reducing Oreck’s competition with Sears, Roebuck.” Although the complaint also alleged that the purpose and effect of the combination was to exclude Oreck generally from the vacuum cleaner market — a type of allegation not unusual in civil antitrust cases— the record, including the examinations of witnesses, summations of counsel and the court’s instructions, show that the case was tried and submitted to the jury on the claim that Whirlpool and Sears combined to restrain Oreck from competing against Sears, particularly on prices, in the sale of Whirlpool-made machines, as a result of which Oreck was ultimately cut off as a distributor of such machines. At trial and prior to the jury’s verdict, the court and counsel had no disagreement as to the applicable legal principles, as the following colloquy with respect to the Court’s proposed charge shows:
“The Court: I understand that, but it seems to me that if the jury were to conclude that Sears and Whirlpool had conspired to terminate Oreck to rid Sears of a competitor, they have gone all the farther that they need to go.
“Mr. Turoff [Whirlpool’s counsel]: I see now your Honor’s argument. I think what you are saying is that if the jury finds that we had a conspiracy for the purpose of getting rid of Oreck, that is an unreasonable restraint of trade. That is, I think, a correct statement of the law.”
Thus the evidence presented at trial to the effect that the termination culminated a Sears-Whirlpool conspiracy to eliminate Oreck’s competition against Sears, and par*64ticularly its price competition, established a per se violation of § 1 of the Sherman Act.2
Since a refusal to deal for the purpose of eliminating intrabrand price competition is thus per se unlawful, the majority errs in holding that plaintiff Oreck was required also to prove a restraint of trade in the .¿levant market. In General Motors, where the Supreme Court found per se unlawful a similar combination to restrain intrabrand price competition by refusing to deal with “discounters” of Chevrolet cars, the Court deemed it unnecessary to consider the effect of the intrabrand competition on the relevant market or the availability of alternative sources of supply to the discounters. Indeed, as early as FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922), the court condemned the boycott of price cutters, without regard to the availability of alternative products. See also Ford Motor Co. v. Webster’s Auto Sales Inc., 361 F.2d 874 (1st Cir. 1966) (per se rule applied without regard to alternative sources of supply available to plaintiff).
The dealer-termination cases relied upon by the majority, see, e. g., Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1972), Alpha Distributing Co. v. Jack Daniels Distillery, 454 F.2d 442, 452 (9th Cir. 1972), and Packard Motor Car Co. v. Webster Motor Car Co., 100 U.S.App.D.C. 161, 243 F.2d 418, cert. denied, 355 U.S. 822, 78 S.Ct. 29, 2 L.Ed.2d 38 (1957), are all clearly distinguishable and do not govern the facts of this case. They stand simply for the proposition that a manufacturer may unilaterally terminate or replace an exclusive distributor for legitimate business purposes without violating § 1 of the Sherman Act. The critical distinction is that in the cases relied upon by appellants, unlike the present case or General Motors, there was no evidence that the cutoff or substitution was pursuant to a combination to restrain competition by the victim against the conspirators in the sale of the product. Indeed, each of the dealer termination cases finding no violation of § 1, including the carefully reasoned opinion in Hawaiian Oke, recognize that a per se rule would apply to a dealer termination where the manufacturer had the “anticompetitive objective” of excluding “one or more so-called ‘discounters’ or ‘price cutters’ ”. 416 F.2d at 76. In Hawaiian Oke no such evidence of anticompetitive reason or effect was offered by the plaintiffs and the Court of Appeals understandably found reversible error in the district court’s instruction that a per se violation is made out by any agreement which “is bound to reduce another businessman’s opportunity to compete in the same market.” 416 F.2d at 75. However, the court was careful to distinguish the case from those, like the present case, where an objective was to restrain competition, stating;
“In other cases, there was concerted action by one group to put one or more of their competitors out of business, or to impair their ability to compete with the *65conspirators. See Silver v. New York Stock Exchange, 1963, 373 U.S. 341, 347, 83 S.Ct. 1246, 10 L.Ed.2d 389; Radiant Burners v. Peoples Gas Light & Coke Co., 1960, 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed.2d 358; Associated Press v. United States, supra [326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013]. ... In Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 1951, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219, there was an agreement between sellers to refuse to sell to wholesalers who would not agree to abide by maximum resale prices fixed by the sellers. Thus the boycott of the plaintiff to that case was part of a price-fixing scheme. .
“Here, plaintiff presented no evidence whatever that either Seagram or Barton had any anticompetitive motive for terminating plaintiff as their distributor. There were no price fixing or other similar motives or demands or activities.” Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d at 77-78.
The limitations of the Hawaiian Oke decision were further made clear by the Ninth Circuit in United States v. Hilton Hotels Corp., 467 F.2d 1000, 1003 (9th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 256 (1973), where the court held that a refusal to deal in order to coerce competitors or to exclude them from competition (which is the case here) is illegal per se. Hawaiian Oke was distinguished as a case in which the manufacturer’s “primary purpose” and “direct effect” was to achieve a “legitimate business objective.”3 A similar line of cases has held that, although a manufacturer may unilaterally terminate a distributor or for his own legitimate business reasons refuse to grant an exclusive distributorship, when a horizontal, intrabrand competitor exercises a veto power over plaintiff’s access to the manufacturer’s goods or trademark, as Sears did here, an inference of anticompetitive motive and effect is available and the per se rule becomes applicable. Quality Mercury Inc. v. Ford Motor Co., 542 F.2d 466, 470 (8th Cir. 1976); American Motor Inns v. Holiday Inns, Inc., 521 F.2d 1230, 1242 (3rd Cir. 1975).
Packard Motor Car Co. v. Webster Motor Car Co., 100 U.S.App.D.C. 161, 243 F.2d 418, cert. denied, 355 U.S. 822, 78 S.Ct. 29, 2 L.Ed.2d 38 (1957), relied upon by the majority, is the typical dealer termination case in which evidence was presented to show that the survival of Packard’s largest area franchise depended, in the business judgment of the company, upon its being given an exclusive franchise. No evidence was presented, as in General Motors and the present case, to show that the dealer was terminated because he was a price cutter or in order to maintain high intrabrand prices.
Similarly, the Supreme Court’s recent decision in Continental T.V., Inc. v. GTE Syl-vania Inc.,-U.S.-, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977), relied on by the majority, has no application to this case. Although the Court overruled a portion of United States v. Arnold Schwinn & Co., not involved here, it did not change any of the foregoing principles regarding price restraints. On the contrary, it reaffirmed them, restricting its application of the “rule of reason” to exclude vertically-imposed price restraints, - U.S. -, 97 S.Ct. 2549 n.18, and General Motors -type conspiracies, - U.S. -, 97 S.Ct. 2549 n.28.
The majority vainly seeks to get around General Motors and other Supreme Court decisions holding similar combinations to *66restrain competition illegal per se by pointing to the fact that more than one competing dealer was involved in the General Motors conspiracy and by suggesting that, if Sears had joined with another distributor rather than with Whirlpool to restrain Oreck’s price competition, perhaps General Motors might apply. The attempted distinction has no legal significance and ignores the substantive fact that Sears was not only the sole other distributor of Whirlpool machines but handled some 90% of the vacuum cleaners made by Whirlpool. Sears was the equivalent of many Whirlpool vacuum cleaner distributors. The effect of its combining with Whirlpool to stop Oreck’s price competition was just as harmful to Oreck and to the public as would be a combination between two small distributors to eliminate a discounter, which under the majority’s distinction would be per se illegal under General Motors. A combination to restrain intrabrand price competition cannot be condoned simply because it consists solely of the manufacturer of the product and its only distributor, a huge merchandising chain, without participation by a second distributor. The law looks to substance, not form, and condemns as per se illegal any combination or conspiracy of 2 or more persons to restrain price competition or to eliminate a competitor.
For the foregoing reasons I would affirm the judgment of the district court.4 The majority has in my view seriously erred in its concept of the antitrust principles that govern this case. The decision departs from basic principles established in numerous decisions of the Supreme Court. It will have mischievous results, since it will be seized upon by those who would otherwise be bound by established precedent to demand similar treatment. It weakens the private enforcement of the antitrust laws, upon which the Executive Branch heavily depends. I therefore dissent.
. Payne’s statements were never objected to by defendants as not within the scope of his employment by Whirlpool and are therefore admissible under Rule 801(d) of the Federal Rules of Evidence. Judge Owen also instructed the jury, without objection by defendants, that defendants’ failure to call Payne to the stand to explain or refute these statements, given his clear availability, may be taken to indicate that if called his testimony would have been unfavorable to defendants.
. The proof of a conspiracy between Whirlpool and Sears was more than sufficient. Indeed, a manufacturer may be held to violate § 1 of the Sherman Act “irrespective of monopoly or conspiracy,” when he refuses to deal with a distributor and thereby creates an “arrangement” in restraint of trade. Osborn v. Sinclair Refining Co., 324 F.2d 566, 573 (4th Cir. 1963). The existence of a conspiracy and Sears’ membership and participation could also be inferred from the totality of the course of conduct engaged in by the defendants, United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); United States v. A. Schrader’s Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471 (1920). The jury was entitled to rely, among other things, upon (1) Sears’ purchase of 90 per cent of Whirlpool’s annual production of vacuum cleaners and two-thirds of its production of all appliances, (2) Sears’ position on the Whirlpool board, (3) its use of its own brand name (which decreased its reliance on Whirlpool as a source) and (4) Sears’ traditional high price structure. This evidence of a motive to maintain high prices and leverage over Whirlpool coincided with Whirlpool’s irrational termination of an increasingly successful distributor,- Oreck’s entry into Sears’ mail order domain at discount prices, the fact that “an honorary director of Sears” placed Oreck’s mail order solicitation before the Whirlpool board, and Payne’s statements to David Oreck admitting that Sears had applied pressure on Whirlpool. Viewed as a whole the evidence clearly supported the jury’s finding of conspiracy.
. See also Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9th Cir. 1972) (per se rule applies to refusals to deal to eliminate price cutters); Bay-City Abrahams Bros. Inc. v. Estee Lauder Inc., 375 F.Supp. 1206, 1216 (S.D.N.Y.1974) (refusal to deal is per se illegal if the result is price fixing or the elimination of competition); Ace Beer Distributors Inc. v. Kohn, Inc., 318 F.2d 283, 286 (6th Cir.), cert. den., 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963) (same); E. A. McQuade Tours, Inc. v. Consolidated Air Tour Manual Comm., 467 F.2d 178, 186-7 (5th Cir. 1972), cert. den., 409 U.S. 1109, 93 S.Ct. 912, 34 L.Ed.2d 690 (1973) (combinations among traders at different marketing levels to exclude a competitor of some member of the combination is illegal per se); Barber, Refusals to Deal Under the Federal Antitrust Laws, 103 U.Pa.L.Rev. 847, 875 (1955).
. I would also find that Oreck’s proof of damages was sufficient to meet its burden of proof and to support the jury’s verdict since “damage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts,” Zenith Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969), and that in the absence of precise damage calculations “the wrongdoer should bear the risk of uncertainty that his own conduct has created.” Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556, 565 (2d Cir. 1970). Here plaintiff’s evidence of profit structure and sales performance over the years prior to termination and its projections by an expert witness as to future performance, clearly afforded the jury “a reasonable basis of computation.” Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684 (1929).