decided as amended april 5 1979.: March 26, 1979.
MID-WEST PAPER PRODUCTS COMPANY, APPELLANT
CONTINENTAL GROUP, INC., AMERICAN BAG AND PAPER CORPORATION, CHASE BAG COMPANY, HARLEY CORPORATION, ST. REGIS PAPER COMPANY; SHOPPING CART, INC., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANT V. CONTINENTAL GROUP, INC., AMERICAN BAG AND PAPER CORPORATION, CHASE BAG COMPANY, HARLEY CORPORATION, ST. REGIS PAPER COMPANY; 86TH STREET FOOD SPECIALTY, INC. C. G. DIARIES, INC. AND 3 J'S FARMS, INC., APPELLANTS V. CONTINENTAL GROUP, INC., AMERICAN BAG AND PAPER CORPORATION, CHASE BAG COMPANY, HARLEY CORPORATION, ST. REGIS PAPER COMPANY; MURRAY'S OF BAEDERWOOD, INC., ON BEHALF OF ITSELF AND ALL OTHERS SIMILAR SITUATED, APPELLANT V. CONTINENTAL GROUP, INC., AMERICAN BAG AND PAPER CORPORATION, CHASE BAG COMPANY, HARLEY CORPORATION, ST. REGIS PAPER COMPANY.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Nos. 76-3935, 76-3524, 76-3956, and 77-1516
Before Aldisert, Adams and Higginbotham, Circuit Judges.
Opinion OF THE COURT
In this appeal we are called upon to apply the teaching of Illinois Brick Co. v. State of Illinois, 431 U.S. 720, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977), to a number of settings, all in the context of a series of antitrust actions brought against manufacturers of consumer bags, alleging illegal price fixing under the Sherman Act and seeking both treble damages and injunctive relief. Because none of the plaintiffs purchased bags directly from the defendants, the district court relied on the holding in Illinois Brick that indirect purchasers from antitrust violators may not as a general matter sue for treble damages, granted defendants' motions for summary judgment, and dismissed the suits in their entirety.
With respect to all the plaintiffs, excepting only Mid-West Paper Products Company, we agree with the district court that Illinois Brick bars their claims for treble damages. But in our view such plaintiffs may still seek injunctive relief. We also believe that summary judgment on Mid-West's suit is inappropriate at least at this time.
I. FACTUAL AND PROCEDURAL HISTORY
These private antitrust actions were instituted in the wake of a grand jury indictment charging five corporations and seven individuals engaged in the manufacture of consumer bags with fixing prices in violation of section 1 of the Sherman Act.*fn1
The criminal indictment, the language of which was closely tracked in the complaints filed in the private civil actions, described consumer bags as single or multilayered paper bags that may also contain linings or coatings made from other materials and that are employed to prepackage products then marketed in them. Consumer bags are designed for capacities of less than twenty-five pounds. They often have printed exterior designs describing their contents and are used for packaging a variety of products, including pet foods, cookies, tea, coffee, and chemicals.
Plaintiffs in the civil actions fall into three categories: The first group, which includes Shopping Cart, Inc., 86th Street Food Specialty, Inc., C. G. Dairies, Inc. and 3 J's Farms, Inc., consists of supermarkets and retail grocery stores that do not purchase consumer bags directly from the defendants or from anyone else, but purchase products that are packaged in consumer bags for resale to their customers.
In the second category is Murray's of Baederwood, Inc. (Murray), a grocery store and delicatessen that sells products packaged in consumer bags, and also purchases empty consumer bags in which it packages its own brand of ice cream. The bags admittedly are not purchased directly from any of the defendants, but are for the most part bought from middlemen and wholesalers. However, one of Murray's officers suggested in a deposition that one of the firms from which Murray purchases bags "is a paper supplier and it's possible they manufacture. I don't know."*fn2 Together, the first two classifications will be referred to as the "supermarket plaintiffs."
Finally, there is Mid-West Paper Products Company (Mid-West), a middleman that purchases bags for resale to automobile manufacturers, which in turn put machine parts in the bags. Mid-West buys bags directly from various manufacturers, including Great Plains Bag Company (Great Plains), a subsidiary of defendant Continental Group, Inc. The parties are in dispute whether these bags are properly denominated consumer bags, rather than kraft bags.
Named as defendants in these actions are the five corporations listed in the criminal indictment: Continental Group, Inc., American Bag and Paper Corp., Chase Bag Co., Harley Corp., and St. Regis Paper Co. The cases involved in this appeal as well as other suits were consolidated for trial in the Eastern District of Pennsylvania, where plaintiffs sought certification to represent a class, and asked for treble damages and injunctive relief.
The district judge at first limited discovery to matters relevant to the class certification question. After the Supreme Court's decision in Illinois Brick, however, the judge requested the parties to show cause why the cases should not be dismissed because of that precedent. On April 5, 1978, summary judgment was granted in favor of the defendants on the authority of Illinois Brick. The order was not accompanied by an opinion. Plaintiffs filed a timely appeal.
II. Illinois Brick
According to Justice White, the author of the Illinois Brick opinion, the result there was logically compelled by the Court's earlier decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S. Ct. 2224, 20 L. Ed. 2d 1231 (1968). In Hanover Shoe, a company that had illegally overcharged its customers was sued by one of them for treble damages under § 4 of the Clayton Act.*fn3 It was determined there that as a matter of law an antitrust violator may not, as a general matter, interpose as a defense that the direct purchaser has not been injured because it had passed on the illegal overcharge to its own customers. As described in Illinois Brick, the Court in Hanover Shoe
held that except in certain limited circumstances, a direct purchaser suing for treble damages under § 4 of the Clayton Act is injured within the meaning of § 4 by the full amount of the overcharge paid by it and that the antitrust defendant is not permitted to introduce evidence that indirect purchasers were in fact injured by the illegal overcharge. 392 U.S., at 494, 88 S. Ct. at 2232. The first reason for the Court's rejection of this offer of proof was an unwillingness to complicate treble-damages actions with attempts to trace the effects of the overcharge on the purchaser's prices, sales, costs, and profits, and of showing that these variables would have behaved differently without the overcharge. Id., at 492-493, 88 S. Ct. at 2231. A second reason for barring the pass-on defense was the Court's concern that unless direct purchasers were allowed to sue for the portion of the overcharge arguably passed on to indirect purchasers, antitrust violators "would retain the fruits of their illegality" because indirect purchasers "would have only a tiny stake in the lawsuit" and hence little incentive to sue. Id., at 494, 88 S. Ct. at 2232.*fn4
With Hanover Shoe already foreclosing the defensive use of "pass-on" except in limited circumstances, the Court in Illinois Brick adopted a rule of symmetry with respect to the offensive use of "pass-on", thereby barring indirect purchasers from suing for treble damages whenever the antitrust defendant would be precluded from asserting the pass-on defense against a direct purchaser.
The Court reasoned that symmetry was required to protect defendants from the serious risk of multiple liability.*fn5 Also, it considered the "principal basis for the decision in Hanover Shoe " the perception that it would greatly complicate and reduce the effectiveness of treble damages proceedings if they were to include an analysis of the price and output decisions of a direct purchaser to determine how much of the illegal overcharge was absorbed by it and how much was passed on to be equally applicable to the assertion of pass-on theories by plaintiffs.*fn6 In sum, Illinois Brick concluded: "Permitting the use of pass-on theories under § 4 essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge from direct purchasers to middlemen to ultimate consumers."*fn7
Under Hanover Shoe and Illinois Brick, however, the pass-on theory may still be used, offensively or defensively, in the limited circumstances when tracing the interaction of market forces is unnecessary. Of relevance here, and the only situation clearly delimited by the Supreme Court,*fn8 is an exception carved out for the situation where there is a pre-existing, fixed-quantity, cost-plus contract between the direct purchaser and its customer, as well as between all other parties in the distribution chain from the direct purchaser to the plaintiff, so that the plaintiff has absorbed the illegal overcharge in its entirety.
In such a situation, the purchaser is insulated from any decrease in its sales as a result of attempting to pass on the overcharge, because its customer is committed to buying a fixed quantity regardless of price. The effect of the overcharge is essentially determined in advance, without reference to the interaction of supply and demand that complicates the determination in the general case.*fn9
Like many Supreme Court decisions that are the product of a system in which the cases to be reviewed are carefully selected, Illinois Brick not only addresses the immediate problem presented, it also serves as a guidepost for future litigation. Accordingly, we frame our response to the issues raised in this appeal with an eye toward blending with and complementing the themes that have been accentuated by the High Court. Thus, we must determine first, whether any of the supermarket plaintiffs qualify under the cost-plus contract exception so as to be in a position to sue defendants for treble damages. Second, although the Ratio decidendi in Illinois Brick focused upon the narrow issue of the necessity for symmetrical application of defensive and offensive use of the pass-on theory, defendants contend that that decision has broad implications regarding the general question of standing to sue. Therefore, we are required to assess whether Illinois Brick bars suits by purchasers from competitors of the antitrust defendants who allege that defendants' anticompetitive activity made it possible for their competitors to charge higher prices, thereby injuring plaintiffs. Third, it is necessary that we ascertain whether indirect purchasers, who may not sue for treble damages under § 4, may nonetheless seek injunctive relief under § 16.
III. TREBLE DAMAGE CLAIMS
A. Indirect Purchasers
It is evident that none of the plaintiffs grouped in the first category supermarkets that purchased consumer bags only indirectly from the defendant manufacturers may maintain actions for treble damages unless they can prove that there were pre-existing, fixed-quantity, cost-plus contracts at each level of distribution between the direct purchasers from the defendants and the plaintiffs, and that therefore they have absorbed the illegal overcharge in its entirety. Similarly, to prevail on one of its theories, Murray must establish the existence of cost-plus contracts at each level of distribution. The district court apparently concluded on the basis of the documents before it that the plaintiffs could not prove that such contracts existed and that since there was no genuine issue as to any material fact, the defendants were entitled to judgment as a matter of law. On appeal, the supermarkets argue that summary judgment was inappropriate inasmuch as discovery with respect to the merits of the controversy had not yet proceeded, and since it was still possible for them to prove that they qualify under the cost-plus exception.
Any review of the propriety of a grant of summary judgment at the early stages of discovery is instructed by an appreciation of the nature of the trial process in federal courts. The Federal Rules of Civil Procedure are designed "to put an end to the "sporting theory of justice,' by which the result depends on the fortuitous availability of evidence or the skill and strategy of counsel."*fn10 One cornerstone of this scheme is the discovery apparatus, through which the issues in dispute may be isolated, defined, and clarified before trial and through which a party may ascertain what evidence, if any, his opponent intends to introduce on each issue.*fn11 It has been recognized, however, that the liberal discovery devices still leave ample room for strategic maneuvering by counsel. Protracted discovery could be used by a wealthy party to coerce an adversary with limited resources into submission.*fn12 Also, as the Supreme Court has warned,
to the extent that (discovery) permits a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an In terrorem increment of the settlement value, rather than a reasonably founded hope that the process will reveal relevant evidence, it is a social cost rather than a benefit.*fn13
Often, there will be no easy solution to the problem presented by an overuse of discovery. But, at times, a remedy may be had through summary judgment, another cornerstone of civil procedure, by which the protracted pretrial process may be brought to a prompt adjudication "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."*fn14 This device has considerable utility, because although the non-moving party is entitled to the benefit of all reasonable doubts and inferences,*fn15 "(w)hen a motion for summary judgment is made and supported as provided in (Rule 56), an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."*fn16 Summary judgment, when appropriately granted, has been upheld even in antitrust actions,*fn17 where summary procedures traditionally are "sparingly" used.*fn18
In their effort to forestall final dismissal of their claims for treble damages, the supermarket plaintiffs are able to adduce only two sets of facts. First, they direct the Court's attention to the deposition of an officer of Shopping Cart, in which he stated that Shopping Cart acquires the bulk of its merchandise from its major supplier under a cost-plus arrangement. Second, the supermarket plaintiffs point out that Shopping Cart moved to compel defendants to answer interrogatories and to produce documents that were claimed to be necessary for Shopping Cart to establish that similar cost-plus arrangements existed at the other levels of distribution,*fn19 but that the district court dismissed the suits without deciding the motion.
However, in our view, the record amply demonstrates that there is no genuine issue regarding the material fact whether there are pre-existing, fixed-quantity, cost-plus contracts at each level of distribution. Shopping Cart, the only supermarket plaintiff that even purports to come within the cost-plus exception, conceded in a deposition of one of its officers that it does not have fixed-quantity contracts with its major supplier. Rather, it has only an informal oral arrangement, and its orders vary and are usually based on consumer demand during the prior week.*fn20 Indeed, the position taken by the supermarkets and admitted at oral argument is that it is sufficient for them to prove that there were pre-existing cost-plus arrangements, and that it is not necessary, nor are they prepared, to prove that any such arrangements were reduced to a formal contract or that they were for fixed quantities of goods. This stance is manifestly not in accordance with the dictate of Illinois Brick.*fn21 Under such circumstances, plaintiffs may not, consonant with the summary judgment procedure, insist upon taking a roundabout, lengthy, and costly discovery route before submitting to the inevitable conclusion that their actions for treble damages cannot prevail.*fn22
B. Murray's of Baederwood
In addition to arguing that it comes within the cost-plus exception,*fn23 Murray advances the theory that it may sue for treble damages because of injuries it suffered as a direct purchaser of consumer bags from competitors of the defendants,*fn24 who allegedly were able to charge artificially inflated prices as a consequence of defendants' price-fixing.*fn25 Murray concedes that State of Washington v. American Pipe and Construction Co., 280 F. Supp. 802 (W.D.Wash.1968), is the only case that supports this position. There, plaintiffs charged that "the alleged conspiracy raised the general price level in the market, and that non-conspirators sold their product under this umbrella at higher prices than would have prevailed absent the illegal activity."*fn26 The district court in State of Washington denied the defendant's motion to dismiss all claims based on transactions with non-conspirators for lack of standing to sue, holding that causation was a question to be resolved by the jury and that the alleged injury was not too remote to support recovery. Applying the "target area" test established by the Ninth Circuit for § 4 standing whether the injury occurred within the " "area (of economic activity) which it could reasonably be foreseen would be affected' by the anti-trust violation"*fn27 the district court concluded that the purpose and foreseeable consequence of the alleged conspiracy was to raise the market price of the commodity in question by eliminating competition among the conspirators.
A literal reading of § 4 might arguably support Murray's contention, because it affords treble damage relief to "(a)ny person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws." As the Supreme Court has noted, however, notwithstanding the apparent breadth of this provision, the district and circuit "courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation."*fn28 In addition, it has been recognized that "antitrust violations admittedly create many foreseeable ripples of injury to individuals, but the law has not allowed all of those merely affected by the ripples to sue for treble damages."*fn29 Therefore, a § 4 standing doctrine has been forged so as to confine the availability of treble damages "to those individuals whose protection is the fundamental purpose of the antitrust laws."*fn30 Traditionally, such parties have been identified under the alternative techniques of measuring the directness of the injury and asking whether they fall within the "target area" of the violation.*fn31
Judge Garth, in Cromar Co. v. Nuclear Materials and Equipment Corp., 543 F.2d 501 (3d Cir. 1973), carefully surveyed the development in this Court of the doctrine of standing to assert a claim for treble damages. He concluded that the cases previously decided "create no binding test that is determinative of standing." "Regardless of the name given to a particular test or standard," he continued, the precedents are to be understood as representing a functional analysis of the factual context presented in each case.
so as to preserve the effectiveness of the treble damage remedy without overextending its availability. The plaintiffs' relationship to the alleged violator of the antitrust laws the directness or indirectness of the injury as well as the plaintiff's position in the area of the economy threatened by the alleged anticompetitive acts are among the factors to be considered in resolving standing. No single formula captures the many considerations involved in determining whether the plaintiff is one "whose protection is the fundamental purpose of the antitrust laws." In re Multi-district Vehicle Air Pollution, supra (481 F.2d) at 125.*fn32
As Judge Gibbons observed on a later occasion, this approach "recognizes that § 4 standing analysis is essentially a balancing test comprised of many constant and variable factors and that there is no talismanic test capable of resolving all § 4 standing problems."*fn33
Although it would not be feasible to make a comprehensive list of the factors that must be considered in evaluating each standing problem, a number may be identified, particularly when attention is focused upon a concrete factual configuration. Indeed, in applying a functional analysis to determine whether Murray has standing in its role as a purchaser from a competitor of the defendants, we may beneficially rely upon considerations emphasized by the Supreme Court when dealing with two other matters. These issues, the definition of antitrust injury*fn34 and the use of pass-on theories,*fn35 although "analytically distinct" from standing,*fn36 are nevertheless related in that they, too, implicate the enforcement of the antitrust laws. For standing, pass-on, and antitrust injury each address different aspects of the problem of determining when a person is sufficiently "injured in his business or property by reason of anything forbidden in the antitrust laws," so as to be eligible to sue for treble damages. Together, they constitute the judicial gloss upon the words of § 4 by which the courts have patrolled the portals to a treble damage action.
Underlying the precepts that guard access to § 4 is the recognition that the treble damage action represents a congressional choice that the antitrust laws be enforced in large measure by "private attorneys general" who are encouraged to sue by the prospect of recovering three times their actual damages.*fn37 Accordingly, whether the issue is the definition of injury in § 4, or the use of pass-on theories, or the proper scope of the standing doctrine, the line-drawing that necessarily takes place is informed by an inquiry into what posture best effectuates the dual purposes of the treble damage remedy, namely, compensating victims of antitrust violations for their injuries and deterring violators by depriving them threefold of "the fruits of their illegality,"*fn38 while at the same time furthering the overriding goal of the antitrust laws preserving competition.*fn39 Aside from these basic objectives of antitrust enforcement, which occasionally are at odds with one another, additional concerns must be addressed in determining whether antitrust goals would be furthered by adopting a particular position. Among such concerns are whether a duplicative or ruinous recovery will result*fn40 and whether resolution of the claim will unduly complicate the trial by necessitating the pursuing of complex and conjectural economic lines of causation and effect.*fn41
Turning now to the situation presented by Murray whether a direct purchaser from a competitor of the defendants "is one whose protection is the fundamental purpose of the antitrust laws" so as to have standing to sue it may be assumed arguendo that Murray has been harmed in some way by the Economic impact of defendants' price-fixing conspiracy. In the same vein, viewing Murray's position in the area of the economy threatened by defendants' alleged anticompetitive acts, it may be that Murray is within that level of the economy, consisting of purchasers of consumer bags, threatened by the price-fixing conspiracy. Both these points find support in Murray's theory that the defendants created an "umbrella" under which their competitors were able to charge higher prices than otherwise. Their significance is questionable, however, in light of the tenuous line of causation between defendants' price-fixing and the prices paid by Murray. Moreover, other factors indicate that Murray is not among those "whose protection is the fundamental purpose of the antitrust laws."
Murray is not in a direct or immediate relationship to the antitrust violators: The defendants secured no illegal benefit at Murray's expense; their tainted gains were reaped from those firms to which they actually sold their products; and Murray's added costs, if any, were pocketed by defendants' competitors, who presumably were free to charge a lower price if they so desired. In that "the law has not allowed all of those merely affected by the ripples to sue for treble damages,"*fn42 we must inquire further whether Murray's injury should be held legally imputable to the defendants, and whether defendants should be required to pay damages for benefits derived by others and for an occurrence that did not advantage them.
The question whether Murray's injury should be legally attributable to the defendants depends in some measure on whether and how accurately*fn43 Murray's alleged injury is economically traceable to the defendants. That issue in turn parallels the pass-on issue raised in Illinois Brick because in both situations the plaintiff seeks to recover for higher prices set by, and paid by it to, parties other than the defendants. And the rationale underlying Illinois Brick that it would be almost impossible, and at the very least unwieldy, to attempt to trace the incidence of the anticompetitive effect of defendants' conduct bears even greater truth in the context of a purchaser from a competitor of the defendants. For, although the dissenting opinion apparently assumes otherwise, it cannot readily be said with any degree of economic certitude to what extent, if indeed at all, purchasers from a competitor of the price-fixers have been injured by the illegal overcharge.
The outcome of any attempt to ascertain what price the defendants' competitors would have charged had there not been a conspiracy would at the very least be highly conjectural. As noted in Hanover Shoe, "(a) wide range of factors influence a company's pricing policies. Normally the impact of a single change in the relevant conditions cannot be measured after the fact; indeed a businessman may be unable to state whether, had one fact been different . . ., he would have chosen a different price."*fn44 Insofar as cost of production is an element in arriving at a price, each manufacturer operates at a different level of efficiency and sustains at least slightly varying expenses, thereby incurring different costs in creating the finished product. And in addition to actual cost, pricing decisions are based on various other considerations, such as marketing strategy and elasticity of demand. Although in selecting a price for its product a manufacturer must also take into account the market price for comparable items, to some extent its pricing decisions remain unaffected by the prices charged by others. This is so because of entry and exit conditions in the industry, the degree of interchangeability among the products, and time lags in adjusting to changes in output, price and demand in the market, to name just a few factors. Thus, the competitors of the price-fixers may well have charged the same price notwithstanding the conspiracy, and purchasers such as Murray would be hard pressed to prove otherwise. Indeed, given the fact that economists have difficulty explaining the patterns of interdependence in any oligopolistic industry, which itself is invariably a necessary condition for successful price-fixing, it cannot be said that the noncompetitive pricing behavior of any manufacturer would not have taken place absent the conspiracy.*fn45
Apart from its speculative nature, any attempt to determine the effect of defendants' overcharges upon their competitors' prices would transform this antitrust litigation into the sort of complex economic proceeding that the Illinois Brick Court was desirous of avoiding if at all possible.*fn46 And as we read that decision, it is not only possible but imperative that such a transformation not occur in the present case. Illinois Brick represents in effect the proposition that when defendants have fixed prices above the competitive market price, where the benefit derived by them is readily ascertainable, the objectives of the treble damage action are fulfilled when the defendants are required to pay the direct purchasers three times the overcharge.*fn47 As explained in Illinois Brick, such an award not only deprives the violators of all the "fruits of their illegality" and deters further wrongdoing, it also compensates those victims who are most likely to assume the mantle of private attorneys general for the injuries they suffered. And by concentrating the entire award in the hands of the direct purchasers in all but unusual circumstances and thereby giving them an incentive to sue, effective and vigorous enforcement of the antitrust laws is, so far as the Supreme Court is concerned, for all practical purposes assured.*fn48 Once direct purchasers are singled out as the group " "whose protection is the fundamental purpose of the antitrust laws' " in such non-predatory price-fixing conspiracies and, through them, the objectives of the treble damage action are fulfilled, there appears to be little reason to expand the standing doctrine in a manner that would require complex and ultimately unrewarding economic analyses at trial, particularly where, as here, such analyses invariably are a prerequisite to establishing that the plaintiff has suffered compensable injury altogether.*fn49 In fact, given the result in Illinois Brick, it would be anomalous to permit purchasers from competitors of defendants who may not have been harmed at all to sue for the competitors' profits, when indirect purchasers, who always absorb part of defendants' overcharge,*fn50 may not sue the defendants.
Moreover, to permit a purchaser from a competitor of the defendants to sue for treble damages would appear to be incompatible with the antitrust goal of maintaining a competitive economy. Allowing recovery for injuries whose causal link to defendants' activities is as tenuous as it is here could subject antitrust violators to potentially ruinous liabilities, well in excess of their illegally-earned profits, because under the theory propounded by Murray, price fixers would be held accountable for higher prices that arguably ensued in the entire industry.*fn51 Notwithstanding the seriousness of the Per se violation present in this case, the judiciary should not be hasty to allow the treble damage action to become so destructive a force, when Congress intended only that it be used as a weapon to enforce the antitrust laws. In this regard, it should be noted that Congress has enacted relatively stiff criminal penalties to punish those who flout the antitrust laws,*fn52 that the Supreme Court has been especially reticent in sanctioning multiple treble damage recoveries for the same injury,*fn53 and that other courts have been wary of permitting "overkill" recoveries,*fn54 whose punitive impact may unduly cripple a defendant and lead to an overall deleterious effect upon competition.
For these reasons, we conclude that Murray, in its role as a purchaser of consumer bags from competitors of the defendants, has no standing to sue the defendants for treble damages allegedly resulting from such purchases. We recognize that an alternative approach to erecting a standing barrier would be to give an opportunity to purchasers from competitors of price fixers, who allege that they were harmed in some way by the antitrust violation, to attempt to prove such harm and to recover treble damages if they succeed. Implicit in the doctrine of standing, however, is the recognition that the benefits that would flow from such an alternative are outweighed by its practical consequences. Thus, the § 4 standing doctrine "acknowledges that while many remotely situated persons may suffer damage in some degree as the result of an antitrust violation, their damage is usually much more speculative and difficult to prove than that of (someone) who is an immediate victim of the violation," and that "if the flood-gates were opened to permit treble damage suits . . ., the lure of a treble recovery . . . would result in an overkill, due to an enlargement of the private weapon to a caliber far exceeding that contemplated by Congress."*fn55 These countervailing factors, which have prompted courts to close their doors to all but those "whose protection is the fundamental purpose of the antitrust laws," were emphasized by the Supreme Court though in a slightly different context in Illinois Brick, and we are not free to ignore the thrust of its decision.
C. Mid-West Paper Company
With respect to Mid-West, the district court order granted summary judgment on the ground that Mid-West "did not purchase consumer bags directly from the defendants . . . . See Illinois Brick Co. v. State of Illinois, 431 U.S. 720 ( 97 S. Ct. 2061, 52 L. Ed. 2d 707) (1977)." On appeal, defendants urge that this order be upheld for two reasons.
First, they maintain that the bags purchased by Mid-West from Great Plains, a subsidiary of one of the defendants, and resold by Mid-West for packaging automobile and machine parts, are not consumer bags. In support of this position, defendants submit that Great Plains does not manufacture consumer bags, and that Mid-West's purchase orders from Great Plains demonstrate such fact in that they describe the bags that were ordered either as kraft or as plain paper bags. Defendants also argue that because Mid-West admits that it is relying on the government indictment, it is bound by that indictment as well as by the government's bill of particulars that elaborates upon the indictment. And, defendants point out, neither of these documents mention the packaging of machine parts as a use of consumer bags.*fn56 Defendants further contend that Mid-West has not controverted their affidavits attesting that the bags in question are not consumer bags, but instead has rested on the unsupported allegations of its complaint. Accordingly, they assert, Mid-West has not shown that a dispute exists concerning a material fact so as to preclude summary judgment.
Whether the bags purchased by Mid-West are consumer bags is of course a question of fact. But the district judge's order does not indicate whether his grant of summary judgment was based upon a determination that the bags were not consumer bags. Indeed, particularly when the portion of the order addressing Mid-West's claim is compared with other portions of the order, the inference is that the judge dismissed Mid-West's claim on a legal rather than on a factual ground.*fn57 In such circumstances, we have no alternative but to remand the case so that the district court may make a finding as to the nature of the bags in question. We do not deem the fact that Great Plains is a subsidiary of Continental Group and describes its product as a kraft or paper bag to be determinative of the issue. Obviously, a manufacturer may not insulate its activities from scrutiny by compartmentalizing its corporate organization and then giving different names to its product, depending on the division that fabricates it. Nor do we regard Mid-West as being bound by the government's framing of its criminal case in its bill of particulars. Rather, so long as Mid-West is prepared to prove its charges, independent factual determinations must be made whether the bags bought by Mid-West bear the same characteristics as the bags described in the government indictment*fn58 and whether a price-fixing conspiracy existed with respect to the marketing of such bags.*fn59 Finally, inasmuch as samples of the bags were presented for In camera inspection by the district court, it cannot be said that Mid-West rested on the allegations in its complaint and pleadings and did not controvert defendants' affidavits.
Defendants' second line of argument is that even conceding that the bags bought by Mid-West are consumer bags, as a matter of law Mid-West may not sue for treble damages because it did not purchase the bags directly from any of the defendants. To the extent that Mid-West bases its claim upon purchases from competitors of the defendants, we agree that Mid-West has no standing to sue, for the reasons elaborated upon in our discussion of Murray's cause of action. But Mid-West also purchased bags from a subsidiary of one of the defendants, and the possibility therefore exists that it may be entitled to sue defendants for injuries that resulted from these purchases.
Superficially, Mid-West's situation seems analogous to that of the plaintiff in In re Sugar Industry Antitrust Litigation (Stotter v. Amstar), 579 F.2d 13 (3d Cir. 1978). In that case, the plaintiff, which was seeking treble damages from refiners of sugar that had engaged in a conspiracy to fix prices, purchased from a subsidiary of one of the defendants candy that incorporated such sugar. Mid-West maintains that it, too, may benefit from our conclusion in Stotter that "at least for this purpose and this context, the subsidiary should be treated as the alter ego of the parent."*fn60 However, a closer look at the problem presented in Stotter makes it apparent that no such inference may be made with respect to this case. For in Stotter we recognized that when a manufacturer sells its product to a subsidiary before making it available to the public, to bar the purchaser from the subsidiary from suing on the authority of Illinois Brick "would invite evasion (of the antitrust laws) by the simple expedient of inserting a subsidiary between the violator and the first noncontrolled purchaser."*fn61 In contrast, the manufacturer-price fixer in the present case would not be insulated from suit under the Illinois Brick rule, because Mid-West is a direct purchaser from Great Plains and may sue it if it participated in this or any other price-fixing conspiracy. Accordingly, the rationale that underlay our willingness to disregard the separate legal existence of the subsidiary in Stotter is not applicable here.
Nevertheless, under certain other circumstances, a court will regard a parent and subsidiary as one entity. This is so, for example, when the parent dominates and controls the subsidiary to such an extent that the subsidiary is deemed to be an agent of the parent.*fn62 If Mid-West can establish facts that warrant holding Continental Group legally accountable for Great Plains' activities in that as a consequence of Continental's domination the subsidiary's prices were determined in accordance with the general price-fixing conspiracy, Mid-West would be entitled to sue defendants for damages resulting from its purchases from Great Plains.
In sum, then, Mid-West's case must be remanded to the district court for further proceedings to determine whether the bags purchased by Mid-West are consumer bags and whether Continental is to be held accountable for Great Plains' alleged participation in the conspiracy.
IV. INJUNCTIVE RELIEF
Aside from seeking treble damages, the various plaintiffs requested the district court to enjoin the defendants from continuing to conspire to fix prices. This request was based on section 16 of the Clayton Act, 15 U.S.C. § 26, which states in 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, . . . 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 . . . .
The district court granted summary judgment in favor of the defendants, thus implicitly holding that injunctive relief was not available to the plaintiffs. Two lines of argument are now set forth by defendants to support this result with respect to the supermarket plaintiffs.*fn63
Defendants place primary reliance upon Illinois Brick. They interpret that case as defining who sustains judicially cognizable injury under the antitrust laws, and contend that if an indirect purchaser is considered not to have suffered actual injury for purposes of § 4, it also must be deemed not to be "threatened" with injury under § 16. Also, defendants assert that the requirement, found in both § 4 and § 16, that the injury or damage be proximately caused by the antitrust violation*fn64 is identical in each section, and that consequently Illinois Brick's ostensible holding that any injury sustained by indirect purchasers is not proximately caused by the antitrust violation, is equally relevant with respect to injunctive relief. Essentially, then, defendants maintain that in light of Illinois Brick the supermarket plaintiffs lack standing to seek injunctive relief.
For a secondary argument, defendants submit that the supermarket plaintiffs have not demonstrated the irreparable injury that defendants claim is necessary to sustain a grant of injunctive relief. In that a consumer bag is a relatively miniscule element of the product purchased by the supermarkets, defendants maintain that any damage to the supermarkets is too minute to warrant injunctive relief. Furthermore, they argue that the supermarkets will be adequately protected by the injunctive relief already being sought, though apparently not yet obtained, by direct purchasers and by the government.
As in our treatment of standing to sue for treble damages under § 4, we look to the policies underlying § 16 to determine whether a party has standing to sue for injunctive relief. A private action for relief under § 16 is one of the weapons, together with private treble damage actions and government criminal and civil suits, in the arsenal established by Congress for policing the antitrust laws*fn65 and for vindicating "the important public interest in free competition."*fn66 In addition, § 16 shares with § 4 the objective of providing private relief from anticompetitive conduct that is injurious, or that threatens to be injurious, to a plaintiff.*fn67 But in contrast to the treble damage action, a claim for injunctive relief does not present the countervailing considerations such as the risk of duplicative or ruinous recoveries and the spectre of a trial burdened with complex and conjectural economic analyses that the Supreme Court emphasized when limiting the availability of treble damages.*fn68
The difference between the two sections is reflected in their language as well as in their judicial construction. Thus, with respect to § 4, a body of law has developed that defines when a person is "injured . . . "by reason of anything forbidden in the antitrust laws,' "*fn69 and Illinois Brick is the latest major refinement of that definition. Similarly, other cases have expounded upon the requirement that the injury be to the "business or property" of the plaintiff.*fn70 And as already seen above, a complicated doctrine of standing, unique to § 4, has been applied to limit the availability of treble damage actions to those parties who further the policy goals of such remedy.
In contradistinction to § 4, § 16 does not ground injunctive relief upon a showing that "injury" has been already sustained, but instead makes it available "against Threatened loss or damage." Furthermore, § 16 does not state that the threat must be to the plaintiff's "business or property," and courts accordingly have held that noncommercial interests are also protected.*fn71 Most significantly, however, § 16 by its terms entitles a party to injunctive relief "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." Mindful of these distinctions, courts have held that for purposes of § 16 the complainant "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,"*fn72 and that a person may have standing to obtain injunctive relief even when he is denied standing to sue for treble damages.*fn73 Indeed, the test for standing under § 16 has been framed in terms of a proximate cause standard that is "less constrained" than that under § 4*fn74 and which might in fact be no more rigorous than the general rule of standing.*fn75
We begin our examination whether, for purposes of injunctive relief, the defendants' price-fixing conspiracy may have been the proximate cause of any damage or loss incurred by the indirect purchasers,*fn76 by observing that Illinois Brick does not control this inquiry. That case, which was explicitly decided on grounds other than standing*fn77 and in any event never mentions § 16, was determined earlier*fn78 to be relevant to the question whether a direct purchaser from a competitor of the defendants has standing to sue for treble damages. This conclusion was reached, however, only because similar policy considerations underlie the respective issues of standing to sue for treble damages and the use of pass-on theories in treble damage actions.
But no such common basis exists between the use of the pass-on theory in treble-damage actions and standing to obtain injunctive relief. The concerns that motivated the Supreme Court to bar offensive use of pass-on centered on problems created by the treble damage recovery. Obviously, the risk of exposure to multiple liability, the difficulty in tracing the allocation of the overcharge among different levels of purchasers, and the general desirability of symmetrical application of the pass-on theory to plaintiffs and defendants are wholly unrelated to the issue whether a party should be entitled to sue for injunctive relief. Nor does the position taken in Illinois Brick, that effective enforcement of the antitrust laws requires that only direct purchasers be permitted to sue for treble damages, have validity in the context of § 16. The Court in Illinois Brick concluded that the effectiveness of the treble damage action would be impaired by allocating the recovery among all those who paid the illegal overcharge rather than by concentrating the recovery in the hands of the direct purchasers for in that event no one group would have a sufficient incentive to sue.*fn79 With respect to injunctive relief, however, the entitlement of one group to sue does not diminish the incentive of another group to sue. In fact, enforcement of the antitrust laws is augmented by allowing any individual threatened by the anticompetitive activity to challenge it. In view of the markedly different policies upon which § 4 and § 16 are based, then, we cannot subscribe to defendants' broad assertion that Illinois Brick defined injury and proximate causation for purposes of both sections.
It should be noted that the element of causation is not at issue in resolving the question whether indirect purchasers have standing to obtain injunctive relief. As recognized by Illinois Brick, "in elevating direct purchasers to a preferred position as private attorneys general, the Hanover Shoe rule denies recovery to those indirect purchasers who may have been actually injured by antitrust violations."*fn80 Rather, the question is whether the line for proximate causation should be drawn at the same place as it was drawn for purposes of treble damage actions or not.
We have already seen that the reasons for adopting a constricted position with respect to proximate causation in the context of treble damage actions are inapposite in the context of injunctive relief and that at least one court has stated that a party may sue under § 16 so long as it satisfies the standing requirements generally applicable in the federal courts. We need not, however, measure the outer range of standing to sue under § 16 in order to decide this appeal. For unlike other potential plaintiffs, who may be only remotely affected by the ripples caused by the conspirators' tampering with the supply and demand curve, indirect purchasers can state unequivocally that under all circumstances prevalent in the real economic world,*fn81 money is passing from their hands into the pockets of the price fixers as a result of the conspiracy, and that no rational pricing decisions by any intermediary will erase this fact.*fn82
Moreover, the rule of standing urged by the defendants, which would completely bar indirect purchasers from seeking injunctive relief, would leave a serious gap in the antitrust enforcement scheme, as the fate of these injured parties, and of the competitive economy in an entire industry, would be made dependent upon the willingness of the government and the direct purchasers to assume the burdens of a lengthy lawsuit. Such a result would be inconsistent with the policies of assuring vigorous enforcement of the antitrust laws, preserving competition, and providing relief for those injured by anticompetitive conduct. Yet in contrast to treble damage suits, it would appear that no countervailing interests would be served*fn83 by placing all indirect purchasers in a straightjacket, so to speak, and preventing them from taking any legal action to protect themselves from injury, inasmuch as the equity principles that are to be considered under § 16 can effectively screen out those claimants that are undeserving of injunctive relief.
In determining that indirect purchasers have standing to sue for injunctive relief under § 16 but that each plaintiff must establish its entitlement to such equitable relief, we have endeavored to chart an approach that preserves the flexibility of that provision by making the relief it affords available when necessary to further antitrust policies, yet inaccessible to those who should not benefit from injunctive relief. Because when dealing with the Sherman Act we are expounding one of the fundamental laws governing the American economic system and because Congress has not evinced an intent that its goal of free competition be treated in an niggardly fashion by the judiciary, such flexibility appears salutary. Indeed, we believe these efforts to steer a middle ground in interpreting § 16 are in keeping with the Supreme Court's own attitude regarding the provision:
Section 16 should be construed and applied with this purpose (of enforcing the antitrust laws) in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice "adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S. Ct. 587, 592, 88 L. Ed. 754 (1944). Its availability should be "conditioned by the necessities of the public interest which Congress has sought to protect." Id., at 330, 64 S. Ct., at 592.*fn84
We conclude therefore that for purposes of § 16, the damages if any sustained by the supermarket plaintiffs, as indirect purchasers, are proximately caused by the price-fixers' violations. But although we hold that Illinois Brick does not preclude indirect purchasers from suing for injunctive relief and that they have standing to sue under § 16, they still must establish, as the statute requires, that equity principles entitle them to injunctive relief. Because the district court has not yet had occasion to determine whether the supermarket plaintiffs in the present case are entitled to injunctive relief under principles of equity, we shall remand the case for such a determination in the first instance by that court.*fn85
The judgment of the district court with respect to the supermarket plaintiffs will be affirmed insofar as it denies them treble damages, but reversed and remanded insofar as it precludes them from obtaining injunctive relief. With respect to Mid-West Paper Products Company, the judgment will be vacated and the case remanded for further proceedings consistent with this opinion.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting in part.
The majority would deny standing to Murray's of Baederwood and Mid-West Paper Products Co. insofar as they seek to sue defendants for allegedly excessive prices paid to defendants' competitors as a result of defendants' price-fixing. The question of how to properly limit antitrust standing has been a troubling one for courts and commentators alike. Although it has been suggested that the issue is really not one of "standing" at all,*fn1 the appellation is appropriate at least in that the question has produced an amount of confusion and uncertainty in the law commensurate with that produced by traditional standing questions. It is generally conceded that the decisions on antitrust standing are, in the words of one commentator, "discordant, with inconsistent rationales and no common premise."*fn2 This court has wisely chosen not to rely on any one test or formula to answer the question posed here. I agree with the majority that considerations of compensation for antitrust victims and deterrence of antitrust violators must be central to our analysis.*fn3 I agree also that we must not lose sight of the ultimate purpose of the antitrust laws preserving competition. I disagree, however, that denying standing to those who suffer injury as a result of their purchases from competitors of price-fixers will best serve these related goals of just compensation, vigorous enforcement and free competition. Therefore, I respectfully dissent as to this issue. In all other respects I join in the majority opinion. Although few courts or commentators have analyzed this exact problem, those that I have found who have addressed the issue have agreed that recovery of this sort should be permitted. See State of Washington v. American Pipe and Construction Co., 280 F. Supp. 802 (W.D.Wash.1968); Berger and Bernstein, An Analytical Framework for Antitrust Standing, 86 Yale L.J. 809, 879 (1977); Note, 82 Harv.L.Rev. 1374 (1969).
Since the determination of whether Murray's and Mid-West have standing must be arrived at pursuant to a balancing of factors, I will first discuss those factors that I believe weigh in favor of granting standing here and then analyze why I believe the factors potentially tilting the balance the other way are either not present or are outweighed. The first factor to be considered is that the injuries alleged here will go uncompensated if standing is denied. In other words, there is allegedly injury in fact. Also any recovery obtained would not be duplicative of any other recovery which might be obtained. Actual injury, of course, is only the starting place for standing analysis. It must not be forgotten, however, that the primary purpose of antitrust damage remedies is remedial rather than punitive. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-86, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977). Therefore, we must not lightly deny standing where actual injury is alleged.
Allowing standing would also encourage enforcement, and thereby deter violation, of the antitrust laws. In Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977), the Court held that plaintiffs who purchased indirectly from antitrust violators could not sue for their resulting injury.*fn4 The primary basis for this holding was that allowing multiple suits would dilute the recovery that any one plaintiff could receive and would inject complex issues that would make this diluted recovery more expensive to obtain.*fn5 Thus the court determined that the antitrust laws would be most effectively enforced if one party, the direct purchaser, were able to sue for the full amount of damages incurred by those in the defendants' chain of distribution.*fn6 Here, however, there is no question of apportionment. If these plaintiffs cannot sue for these damages, no one can. Also the Court recognized that, once recovery was concentrated in the hands of the direct purchaser, there is a risk that those purchasers will be unwilling to sue because they can avoid actual injury to themselves by passing on the added costs to their purchasers and, by suing, they will endanger their source of supply. 431 U.S. at 746, 97 S. Ct. 2061. Allowing recovery here is one way of preventing that risk of non-enforcement from becoming a reality. A plaintiff might well sue the competitor of his supplier where he would not risk suing his own supplier. Thus this situation is much different from that in Illinois Brick since allowing recovery here would not reduce the incentive for private parties to enforce the antitrust laws, and, moreover, would serve to encourage enforcement in situations where such enforcement is especially needed.
In deciding whether to allow standing in antitrust cases, courts have attempted to analyze the directness of the injury to the plaintiff. In its most restrictive form, this is essentially a privity test.*fn7 Such a narrow conception of directness has been generally rejected.*fn8 Instead, courts have utilized a proximate causation analysis. Indeed, on at least two occasions, this court has described the standing issue as one of proximate causation.*fn9 Although "proximate cause" is not much more definite in its meaning than "direct cause" or "standing" itself, one important indication of whether an injury is proximately caused by an act is whether its occurrence as a result of that act is reasonably foreseeable.*fn10 The injury here certainly meets this test. It is foreseeable if not inevitable that, when those with a substantial share of the market fix prices, their competitors will also raise prices under the anti-competitive umbrella established by the price-fixers.
Another factor to be considered is "the plaintiff's position in the area of the economy threatened by the alleged anticompetitive acts." See Cromar Co. v. Nuclear Materials & Equipment Corp., 543 F.2d at 508. This is essentially a phrasing of the "target area" test of standing. Thus, although the "target area" formulation is not the controlling test of antitrust standing in this circuit, it is to be considered in reaching a decision on this issue. As just mentioned, where prices are fixed in an oligopolistic market, the result is likely to be that non-price-fixing competitors will also raise their prices. Murray's and Mid-West as purchasers from these competitors are, therefore, well within the area of economy threatened by defendants' price-fixing activities.*fn11
Finally, the seriousness of the violation should also be considered in determining the extent of the violator's liability.*fn12 In U. S. v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 2875, 57 L. Ed. 2d 854 (1978), the Supreme Court recognized that "the behavior proscribed by the (antitrust laws) is often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct." The Court noted that some "conduct regarded as Per se illegal" is not difficult to distinguish from legal business behavior "because of its unquestionably anticompetitive effects." Id. The Court cited, on this point, U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940), which held that price-fixing agreements are Per se violations of the Sherman Act. Because it is often difficult to determine exactly what conduct violates the antitrust laws, the Court in Gypsum held that a person cannot be subjected to criminal liability for such violations without an inquiry into the intent with which the unlawful actions were taken.
I believe that a similar concern for those who may unwittingly violate the antitrust laws makes it proper for courts to consider this factor in determining to whom the antitrust defendant will be held liable. Thus where businesses engage in practices that might reasonably be considered not to violate the antitrust laws, it would seem proper for courts, as a matter of fairness, to be most cautious in extending the scope of their liability once a violation is found. Where, as here, however, defendants have fixed prices probably the clearest violation of the antitrust laws and the one most obnoxious to the underlying policy of free competition considerations of punishment and deterrence warrant the imposition of broad liability.
Among the factors that have led courts to deny standing are the possibility of duplicative, derivative or windfall recovery. Allowing standing here, however, would not result in any such recovery. The recovery sought here would not be duplicative since, as mentioned above, no other party could seek damages for part or all of the injury claimed here.*fn13 The recovery would not be derivative since the parties are not related to some other entity at which the illegal practices are most directly aimed and which could sue in its own right.*fn14 The recovery could not be properly characterized as "windfall" since the plaintiffs are complaining of actual out-of-pocket losses.
The majority contends that the recoveries even if not duplicative, derivative or windfall, may well be ruinous, I. e., that allowing treble damages to purchasers from competitors of antitrust violators might drive the violators out of business thereby injuring rather than protecting competition. I agree that this is a concern to be taken most seriously. Because undue reliance on this factor might seriously undercut enforcement of the antitrust laws, however, I do not believe that the standing decision should turn on this factor unless there is a very persuasive basis from which to conclude that competition would actually be hurt by the allowance of standing. Otherwise courts might unnecessarily prevent enforcement of the antitrust laws in the guise of protecting competition. I believe further that there is a strong basis on which to believe that competition would Not be injured by allowing standing in cases such as this. Only businesses with a substantial share of a market are likely, by fixing prices, to significantly affect the prices charged by competing businesses. Thus, it can reasonably be assumed that there will only be large recoveries against large companies or a large group of smaller companies who are best able to withstand such losses. Where companies with a small market share fix prices, the effect on their competitors would be small and the likelihood of a ruinous damages assessment would be correspondingly minimal. Thus, the operation of the market would tend to prevent recoveries in suits such as this from being of a ruinous or anticompetitive dimension. The majority also indicates that the fact that the defendants did not directly profit from the plaintiffs injuries here is a factor to be considered in denying standing. It is clear from the very nature of the treble damage remedy, however, that recoveries in antitrust cases, as in many other areas of the law, are not intended solely to force the disgorgement of tainted profits.*fn15 Therefore, I would accord little if any weight to this factor.
Finally, the majority adverts to the complexity of proving damages in this type of case and, closely related to this, the speculative nature of the inquiry into the amount of such damages. Complexity and speculativeness, however, are endemic to antitrust litigation. The length of many antitrust cases is ample indication of their complexity. It is also well established that damages in antitrust action need not be proved with the degree of certainty required in most other areas of the law. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123-24, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969).
The majority relies on Illinois Brick, however, to establish the importance of these factors to our decision today. Although the Court in Illinois Brick certainly focussed much of its attention on the added complexity that would result from allowing recovery to indirect purchasers, it is crucial to note the context of that discussion. The Court in Illinois Brick was concerned with allowing the injection of complex issues into antitrust actions because the injection of such complexity would increase the cost of litigation and thereby discourage the enforcement of the antitrust laws. Thus the Court states:
Permitting the use of pass-on theories under § 4 essentially would transform treble-damage actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damage suits and Seriously undermine their effectiveness.
431 U.S. at 737, 97 S. Ct. at 2070. (emphasis supplied).
As already discussed, allowing suits such as those here will encourage rather than undermine the effective enforcement of the antitrust laws. Where added complexity does not result in a disincentive to the enforcement of the antitrust laws, its potency as an argument against standing is seriously diminished.
Moreover, there is little reason to believe that proof of damages here will be significantly more complex or speculative than in a suit by a direct purchaser against a price-fixing defendant. In each case, the price actually charged is known. In each case, damages can only be assessed by determining what the market price would have been "but for" the price-fix. Of course in both cases, it is possible that the seller would have sold at a price above that of the market even without the price-fix and presumably the defendant would have an opportunity to present evidence of this. The only discernible difference is that the defendant is likely to have better access to proof regarding its own pricing policies than those of its competitors. This tactical problem of the defendants does not, however, persuade me that standing should be denied here.
Thus I am left with the conclusion that the antitrust policies of compensation and enforcement would be appreciably advanced by allowing recovery for the injuries alleged here. I am unconvinced that such recovery would drive antitrust violators out of the market and thus injure competition. I believe, therefore, that the balance here is properly struck in favor of granting standing to these appellants.*fn16