dissenting:
I would affirm summary judgment for the defendants on the narrow ground that plaintiffs have failed to adduce sufficient evidence of antitrust injury to raise a triable issue of fact. I cannot put it better than the district judge:
Defendants have produced overwhelming evidence about the failure of plaintiffs to come to terms with A.D.S. Coad, of A.D.S., noted that during the crucial time period for negotiation with the distributors, defendant Publishing Co. actually helped A.D.S. distribute Levitz preprints when Community Publications abandoned the A.D.S. program. Thereafter, A.D.S. distributed through its publication Happenings. That program ultimately fell through. A.D.S. also tried to use the Hollywood News carriers. Despite A.D.S.’s attempts to establish itself in the Portland market, it was unable to do so on a competitive basis. The major obstacle in negotiations with plaintiff distributors was the unrealistic prices proposed by plaintiffs. In short, A.D.S. and plaintiffs were never close to negotiating a contract or agreement for distribution ....
Plaintiffs argue that their prices were unrealistically high because of the anti-competitive activity of defendant Publishing Co. However, they have not produced any evidence to substantiate this claim. At best, the assertion is indirectly supported by plaintiffs’ speculation that their prices might have been lower had they not been concerned about their contracts with the Publishing Co. This speculation does not sufficiently rebut defendants’ evidence on this point. The fact remains that plaintiffs and A.D.S. never came close to agreeing on terms for distribution. The depositions of A.D.S. employees Coad and Wallstrom underscore the failure of the distributors to effectively present a viable competitive program for A.D.S.
I therefore respectfully dissent.