USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1653
CARIBE BMW, INC.,
Plaintiff, Appellant,
v.
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Anne M. Rodgers
_________________

with

whom

William R. Pakalka,
____________________

Fulbright
_________

Jaworski, L.L.P., Enrique J. Mendoza Mendez, Law Offices of Enrique

________________ _________________________ ______________________
Mendoza Mendez, Randall A. Hopkins, Randall A. Hopkins, P.C., D
______________
__________________
_________________________
_
Jamail, Jamail & Kolius, Thomas R. McDade, and McDade & Fogl
______
________________
_________________
_______________
L.L.P., were on brief and reply brief for appellant.
______
Irving Scher and Manuel A. Guzman with whom Bruce A. Colba
____________
_________________
_______________
Weil, Gotshal & Manges and McConnell Valdes were on brief
________________________
_________________
appellees.
____________________
March 25, 1994
____________________

BREYER, Chief Judge.

____________
issues

of antitrust law.

subsidiary and the

This

First, do a

firm itself amount to

under the Robinson-Patman Act?

15 U.S.C.

appeal

raises

two

firm's wholly owned

a "single seller"
13.

Second, can

a retailer's lost profit, brought

about by a maximum resale

_______

price

that

fixing

agreement

supplier, amount

between

to an "antitrust

retailer

injury," thereby

and

its

giving

that retailer "standing" to obtain treble damages?

Atlantic
________

Richfield Co.
_____________

U.S. 328

v. USA Petroleum Co. ("ARCO"), 495

__________________
____

(1990); Albrecht v.
________

Herald Co.,
__________

390 U.S. 145

(1968).

answer both these questions in the affirmative.

district

court's

rested upon

dismissal

of the

plaintiff's

negative answers to the same

We

Because the
complaint

questions, we set

its dismissal aside.

I
Background
__________
From
("Caribe"),

1981

through

through

manufacturer,

contracts

Bayerische

("BMW AG"), bought

1990,

Caribe

with

Motoren Werke

the

BMW,

Inc.

German

Aktiengesellschaft

BMW automobiles from BMW AG

in Germany,

imported them into Puerto Rico, and sold them at retail.

February
lawsuit

1991,

Caribe (the

against (the

appellant

appellees)
-22

BMW AG

BMW

here) brought
and BMW's

In
this

wholly

owned North American subsidiary,

("BMW

NA").

Caribe's

BMW of North America, Inc.

complaint

(actually,

its

second

amended complaint), with commendable simplicity, listed four

counts.
Count I charged a violation of the Robinson-Patman
Act.

15 U.S.C.

13.

NA, which resold

with

Caribe,

It said that BMW AG sold cars

those cars to other retailers who competed

at

prices

favorable than, those at

Caribe.
Act.
resale

U.S.C.
prices

"threaten[ing]
Caribe

would

prices.

than,

or

1.

terms

which BMW AG sold similar

1

It said that BMW AG

for

the cars

to

terminate

agree,

on

in

that

it

effect, to

cars to

had set maximum

sold

Caribe's

more

of the Sherman

to Caribe

contracts"
maintain

Count III charged "breach of contract."

various
Count

lower

Count II charged a violation of

15

to BMW

low

by

unless
resale

It listed

ways in which BMW AG had allegedly broken its word.

IV charged

that,

in terminating

its contract

with

Caribe, BMW AG had violated Puerto Rico's Dealers' Contracts

Act, more familiarly known
10,

as Act 75.

P.R.

Laws Ann. tit.

278 et seq.
__ ____
The district court dismissed the complaint for two

related reasons.

First, it found that

antitrust

"fail[ed] to

counts

-3-

state

the complaint's two

a

claim upon

which

relief can be granted."

Fed.

it

selection

noted that

between

a forum

Caribe

and

jurisdiction" in

AG

clause in
provided

Second,

the contracts

for

"exclusive

"Germany" to resolve "disputes"

"termination of" or
agreement.

BMW

R. Civ. P. 12(b)(6).

"rights and duties arising

about the
out of" the

It found this clause applicable to the remaining

(non-antitrust) claims,

and it dismissed

those claims "for

improper venue" or, in the alternative, "on grounds of forum

_____
non conveniens."
_______________

Caribe BMW, Inc. v.

_________________

Werke Aktiengesellschaft
________________________

, 821 F. Supp.

Bayerische Motoren
__________________
802 (D.P.R. 1993).

Caribe appeals.
When
claims

we

take

reviewing
the

the

facts

complaint and make reasonable

plaintiff.

dismissal of
basically

as

the
stated

antitrust
in

the

inferences that will help the

Garita Hotel Ltd. Partnership

_______________________________

v. Ponce Fed.
___________

Bank, F.S.B., 958

_____________
examining those
conclude that
the

F.2d

facts,

15, 17
in light

(1st

of the

the district court should

antitrust claims.

And,

Cir. 1992).

After

relevant law,

we

not have dismissed

that conclusion

requires the

district court to reexamine dismissal of the other claims as

well.
II
The Robinson-Patman Act Claim
_____________________________
-44

The Robinson-Patman Act forbids "any person"

______
to
discriminate
in
price
between
different purchasers of commodities of
like grade and quality . . . where the
effect of such discrimination may be . .
. to injure . . . competition with any
person who . . . grants . . . the . . .
discrimination, or with [that granting
person's] customers . . . .

15 U.S.C.

13(a).

essentials

of a

Caribe's complaint alleges most

violation.

"discriminate[d]

in

(namely, Caribe

and

Caribe)
that

of cars,

It says

price

between

other retailers

with the

person's "customer"
______

of the

that a

"person" has
______

different

purchasers"

in

effect that

competition

with

"competition with"

(namely, Caribe)

is "injure[d]."

See FTC v. Morton Salt Co., 334 U.S. 37, 45 (1948).

___ ___
_______________

But, it

embodies an ambiguity in respect to the "person" who did the

______
discriminating.

It says

that BMW AG sold cars

__

Caribe, which resold them at retail.

It then

directly to
says that BMW

NA sold cars to other retailers, who compete with Caribe, at

__
lower

prices than BMW AG sold its

__

point,

there appear

retailers,
NA (selling

to be

cars to Caribe.

two "persons"

namely, BMW AG (selling them

them to

At this

selling BMWs

to

to Caribe) and BMW

Caribe's competitors).

The complaint

adds, however, that BMW NA is the wholly owned subsidiary of

__
BMW AG.
__
not

Thus, we must face the legal question of whether or

this last mentioned fact

-55

is sufficient to

make of the

two

separately incorporated companies a single "person" for

Robinson-Patman Act purposes.

If so, the complaint properly

alleges that a single "person" has sold similar goods at two

different
effect).

prices (allegedly
If

not,

"discriminate[d]."
least

different customers
also
____

there
See
___

two sales by a

with
may

the
be

no

single person at

& Louis

So far,

with

each other);

see
___

Kaplow, Antitrust Analysis

___________________
Joseph P. Bauer,

21.11, at 192-93 (1983).

when courts

have faced this

question -a single

(or a "single seller") -- they have answered it by

examining

the extent of common ownership

control over pricing and

exercises over the other.
Rouge,

has

requires at

whether or not a firm and its subsidiary amount to

"person"

who

different prices to

601(c) (4th ed. 1988); 3 Earl W. Kintner &

Federal Antitrust Law
_____________________

statutory

"person"

id. ("discrimination"
___

in competition

Phillip Areeda

required

Inc. v.

and the degree of

___

distribution policies that the one

See Acme Refrigeration of Baton
___ ____________________________

Whirlpool Corp.,

785 F.2d 1240,

1243 (5th

____________

_______________

Cir.) (100% ownership, without control, not enough to create

a

"single

seller"), cert. denied,

_____________

Island Tobacco Co. v.

___________________

479

U.S. 848

(1986);

R.J. Reynolds Indus., Inc.,

___________________________

513 F.

Supp. 726, 734 (D. Haw. 1981) (same); Baim & Blank, Inc., v.
__________________
Philco Corp.,
_____________

148 F.

Supp.

541,

543-44 (E.D.N.Y.

1957)

-66

(same); Massachusetts Brewers Ass'n

___________________________

v. P. Ballantine & Sons

____________________

Co., 129 F. Supp. 736, 739 (D. Mass. 1955) (same);

___
Kintner & Bauer,
extent

of ownership

nothing about
_______
100%

supra,
_____
is

21.16 at 212.
100%;

actual control.

ownership,

by

itself,

see also
________

In this case, the

Caribe's complaint
Thus,
amounts

we must
to

alleges

ask whether
a

sufficient

allegation

that the

"firm

plus subsidiary"

Robinson-Patman Act "person."

are a

single

We conclude, for reasons that

we shall now explain, that it does.

For

purposes of

explanation to

clarity, we

hypothetical entities whom we

the Manufacturer

(M), 2) its wholly

3)

(R1) who buys

the Retailer

Buying
resells

Retailer (DBR),
in

shall refer

competition

who buys
with

and 4)

directly from
The

arrangement looks like the following:

M

R1

DBR

-77

shall call 1)

owned Distributor (D),

from D,

R1.

in our

the Direct
M and

who

distribution

In our case,

BMW AG holds

the position of

position of

D; Caribe,

the position of

unspecified

retail competitors,

legal question, put in

not

M's 100%

"single

DBR; and

the position

say

makes M

"MD."

If

and D,

so,

the

Caribe's

of R1.

terms of the diagram, is

ownership of

seller,"

M; BMW NA,

The

whether or
together, a

a single

"person"

(allegedly) "discriminates" in price.

We now

return to the reasons

answer, which are three.

First,

above-cited "single seller" cases

Court decided

of Sherman Act
did not

in 1984, after many of the

were decided, the Supreme

Copperweld Corp. v. Independence Tube Corp.,

________________
________________________

467 U.S. 752 (1984).

word

for our affirmative

The Court there considered

1's word
cover

"conspiracy."

an agreement

It held

between

the scope
that the

a wholly

owned

subsidiary and its parent, because a wholly owned subsidiary

could not "conspire" with the parent.

That, the Court said,

is because they have

a complete unity of interest.
Their
objectives are common, not disparate;
their general
corporate actions are
guided or determined not by two separate
corporate consciousnesses, but one. . .
.
[And] [t]hey share a common purpose
whether or not the parent keeps a tight
rein over the subsidiary . . . .
Id.
___

at

complete

771.

The

power to

Court

added

maintain"
-8-

that

a portion

a "corporation
of the

has

enterprise

either

in the form of an unincorporated division, or in the

form of a separately incorporated subsidiary.

But, the

economic, legal, or other considerations

that lead corporate management to choose
one structure over the other are not
relevant to whether the enterprise's
conduct seriously threatens competition.
Id. at 772.
___

For these reasons, the Court held,

the coordinated activity of a parent and

its wholly owned subsidiary must be
viewed as that of a single enterprise
for purposes of
1 of the Sherman Act.
Id. at 771.
___
Although the Court spoke of Sherman Act
"coordinated

activity,"

Areeda &

Kaplow, supra,
_____

Court saw

an identity

its reasoning
601(c), at

1 and of

applies here.
929.

of economic interest

See
___

In essence, the
between parent

and wholly owned subsidiary that, considered in terms of the

economically

oriented

them as one.
Law
___

(1986).

"independent,"
meet

laws, warrants

See generally 7 Phillip E.

_____________

1464

would

antitrust

Any

claimed

owner-hostile,

with

the

Areeda, Antitrust
_________

instance

subsidiary

skeptical

question,

of

does

the

management?"

parent

Given

not

the

replace

strength of

the

truly

decisionmaking
"But,

subsidiary acts contrary to its parent's economic

why

regarding

if

the

interest,

subsidiary's

that joint

economic

case-specific

judicial

-99

interest,

we

examination of
any

do

not

see

how

"actual" parental control would help achieve

significant antitrust

objective.

Those instances

in

which a wholly owned subsidiary would intend to act contrary

to

the economic interests of

far between, and,

if they

its owner are

ever exist, would

likely few and

seem hard

to

prove.

Cf. Areeda & Kaplow, supra,

___
_____
Second,

there does

Robinson-Patman Act
inquiry

not

215.
seem to

purpose that a

would further.

be any

special

case-specific "control"

To the contrary, one would not want

a seller to be able to defeat the statute's clear objectives

by transforming unlawful,

into lawful, price discrimination

through the creation of a separately incorporated subsidiary

"distributor"
whether

or

that
not

sells

the

$10

the

subsidiary.

"control"

customers,
over

the

Suppose, for example,

Act by selling to one retailer (DBR) at

and another competing retailer

not be

disfavored

parent retained

pricing decisions of the

that M violates the

to

able to avoid

the law simply

(R1) at $12.
by creating a

M should
wholly

owned, but "independent" D, to whom it sells at $10, knowing

that

"independent"

will

(say,

for

profit-maximizing

reasons) "independently" resell to R1 at the same $12 price.

-1010

We are aware that

with difficulty.

For

liability attach in
our

wholly

an important

DBR "ought" to

distributor, D,

as here) sets a

order to

discourage direct

really

necessary to

the case of sales to DBR, such

receive a lower price?

(perhaps

the creation of an

owned

Act

if (contrary to

distribution function,

supply R1, but not needed in

that

is filled

example, should Robinson-Patman

the example just given

assumption) the

fulfills

this area of the law

higher price to

Or, suppose M
direct buyers in

sales and thereby

to encourage

independent distribution network?

These

problems arise, however, in part, because it is difficult to

reconcile

the

Robinson-Patman

traditional practices

of

Act's

strictures

corporations that

seem

to

with
make

sense from a practical viewpoint.

See, e.g., Texaco Inc. v.

___ ____ ___________

Hasbrouck,
_________

(1990); Kintner

supra,
_____

496 U.S.

543, 559-62

22.14; James F. Rill,

Availability and Functional

___________________________

Discounts Justifying Discriminatory Pricing,

_____________________________________________
L.J. 929

(1985).

& Bauer,

53 Antitrust

And the complexity of Robinson-Patman Act

law has increased as courts have tried to introduce a degree

of
&

flexibility into the Act as applied.

Bauer,

availability

supra,
_____

25.7,

defense);

at

454-460

Hasbrouck,

496

See, e.g., Kintner

___ ____
(discussing
U.S.

at

the
561

_________

-1111

(discussing functional discounts);

15 U.S.C.

13(a)

(cost

justification defense); see also Rill, supra.

________
_____
For present
that these

purposes, however, we need

same problems

exist,

regardless of our holding in

__________

in one

this case.

only note

form or
That is to

another,
say, a

contrary holding would nonetheless produce the same problems

wherever

does

wholly-owned
the

the pricing

subsidiary D (i.e.,

remaining

nonetheless

"control"

cases

(where

"independent"),

Robinson-Patman

Act

problems

policies

in most cases).

wholly-owned
various
would

is

other,

often

arise

of

its

And, in
somehow
related,
if

DBR

complained about differences in price between M's price to D

and M's price to DBR.

See pp. 12-14, infra.

Thus, we find

___
nothing

special in

the

_____

Robinson-Patman Act

context

that

militates against Copperweld's reasoning or result.

__________
Third,
anomaly.

analysis, have

applying

majority

Copperweld
__________

of courts,

held that

owned

Patman

Act purposes; rather,

subsidiary D

reality.

a "sale"

it is simply

potential

Copperweld-type
__________
a good

to a

for Robinsona transfer; and

not, somehow "independent"

See City of Mt. Pleasant

___ _____________________

Coop., Inc., 838 F.2d

___________

M's sale of

is not

that is so whether D is, or D is

in

using a

a firm

wholly

avoids

v. Associated Elec.
________________

268, 278 (8th Cir. 1988);

Russ' Kwik
__________

-1212

Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 221
_______________
______________________
(6th Cir.

1985) (per curiam) (quoting

Copperweld, 467 U.S.

__________
at 772 n.18);
(7th

O'Byrne v. Checker Oil Co., 727 F.2d 159, 164

_______
_______________

Cir. 1984); Security Tire & Rubber Co. v. Gates Rubber

__________________________
____________

Co., 598 F.2d 962, 965-67 (5th Cir.), cert. denied, 444 U.S.
___
____________
942

(1979).

These holdings mean that D, the transferee, is

not a "purchaser" from M,

violate the Act even if
buying
a

and, for that reason, M does

he sells the same good to

a direct

retailer (DBR), or even a direct competitor of D, at

higher price than the

good to

not

D.

price at which

Our holding

he "transfers" the

today means that

owned subsidiary D resells the good

when the wholly-

to R1, it must do so at

a "nondiscriminatory" price, i.e., at a price that would

be

permissible under the Act had D's sale to R1 been made by M.

Thus, if M sells to DBR at 14, D cannot sell

to R1 for less

than 14 (assuming, of course, that all other Robinson-Patman

Act

liability

conditions

are

met

and

no

defenses

are

available).
But,
Suppose
D and
somehow

suppose

we

were

to

hold

the

contrary.

that we were to hold that a wholly-owned subsidiary

its owner M

were not a
___

nonetheless

difficulty might

"single seller" where

"independent."

well prevent
-1313

Then,

D was

an

anomalous

DBR from bringing

an action

where M "transfers" to D at 10, D resells to R1 at 12, but M

insists

on

charging

DBR

allegations before us).

14

(i.e.,

approximately

The doctrine just

the

mentioned -- in

effect finding that M and D are a single entity for purposes

of

the transfer

complaining about
Hasbrouck,
_________

between

them --

the effect of

496 U.S.

at

would

prevent DBR

from

the M-D

"transfer."

Cf.
___

569-71.

At

the same

time,

our

(imagined) holding (the opposite of our actual holding) that

M and D were not a single entity for purposes of D's sale to
___
R1

would

effect

of

likely prevent
that sale

single "person"

DBR

from

because of

its

complaining about
inability to

who discriminated (because M

to R1, while D does not sell to DBR, see pp.

___

Perhaps
other ways, but
an already

one could

the

find a

does not sell

12-13, supra).
_____

somehow avoid this

anomaly in

it seems undesirable to invent epicycles in

too complex area of

the law.

It

is simpler to

hold

in

parallel

fashion

that ownership

"single seller" of a firm and

just

as ownership

alone

alone

makes

its wholly owned distributor,

eliminates the

possibility of

Robinson-Patman Act "sale" between them.

We

therefore

find

it

appropriate

Copperweld's reasoning outside Sherman Act

__________

1.

to

apply

See, e.g.,
___ ____

-1414

City of Mt. Pleasant, 838 F.2d

____________________
772
Inc.,
____

F.2d at
743

221; cf.
___
F.2d

at 278; Russ' Kwik Car Wash,

___________________

United States v.
______________

976,

979

(2d

subsidiary's activity to parent

7).

We hold that BMW

those two

entities,

single seller.

Cir.

Waste Management,
_________________
1984)

(attributing

for purposes of Clayton Act

AG's ownership of BMW

for Robinson-Patman

Act

NA makes of
purposes,

We now
district court

turn to
gave for

a second, independent
concluding that the

reason the

complaint did

not adequately state a Robinson-Patman Act claim.

correctly
and

noted that if a seller makes its favorable prices

terms

that

The court

available to

an otherwise

customer has no legal

Bouldis v.
_______

disfavored customer,

right to complain.

U.S. Suzuki Motor Corp.,

________________________

711 F.2d

See, e.g.,
___ ____
1319, 1326,

1328-29 (6th Cir. 1983) (discussing availability defenses to

2(a), 2(d), and 2(e)); Shreve Equip., Inc. v. Clay Equip.
___________________
___________
Corp.,
_____

650

availability

F.2d

101,

under

105-06

2(a)),

(6th

Cir.)

cert. denied,
_____________

(discussing
454 U.S.

897

(1981); Edward J. Sweeny & Sons, Inc. v. Texaco, Inc., 637

______________________________
_____________
F.2d

105, 120-21 (3d

Cir. 1980) (same),

U.S.

911 (1981); see also

________

cert. denied, 451

____________

Kintner & Bauer,

supra,
_____

The district court then concluded that Caribe, in a

of

its complaint,

in

effect conceded
________
-1515

that

25.7.
portion

BMW made

its

favorable

prices

and

terms

available to
_________

Caribe.

That

complaint portion says that in 1987

despite Caribe's remarkable success, BMW
attempted to convert Caribe from being
an importer-retailer purchasing directly
from the factory to being a mere retail
dealer purchasing from BMW N.A.
We do not believe, however, that one can draw from
this

statement

the

district court found.

"availability"

concession

that

the

The complaint also says that

[u]nbeknownst to Caribe, and beginning

________________________
by at least 1987, BMW began lowering its
prices
for
BMWs sold
to Caribe's
competitors
and
offering
those
competitors other economic advantages
while maintaining its prices to Caribe
at a discriminatorily high level and not
making the other economic advantages
available to Caribe on proportionately
equal terms.
The emphasized language says
its competitors
do not

that Caribe did not

were receiving favored treatment.

see how ordinarily one

could say that

treatment.

customer does not know

_____________

And, we

a seller has

made favored treatment "available" to a disfavored

if the disfavored

know that

customer

about the favored

See, e.g., Alterman Foods, Inc. v. FTC, 497 F.2d

___ ____ ____________________
___

993, 1001 (5th Cir. 1974); Mueller Co.

v. FTC, 323 F.2d 44,

___________
46-47

(7th Cir. 1963),

___

cert. denied, 377

____________

U.S. 923 (1964);

Century Hardware Corp. v. Acme United Corp., 467

_______________________
__________________

F. Supp.

350, 355-56 (E.D. Wis. 1979).

.
-1616

Caribe
a

practical

insisted

also argues that the favored treatment, as

matter, was

that

it

give

not

"available"

up

importer's contract in order

various

because BMW

advantages

to obtain it.

We

of

AG
its

cannot tell

from the complaint, however, just what those advantages were

and how they related to the practical "availability"
favorable treatment given other
say, at
prove

this time, whether

that the

or not Caribe

favorable price

matter, were not available.

retailers.

At

of the

Thus, we cannot
will be able

and terms, as

to

a practical

this stage, however, Caribe

has sufficiently alleged that they were not.

Our conclusion is that Caribe's complaint states a

valid

Robinson-Patman

discrimination

Act

claim,

in

under Robinson-Patman

respect
Act

to

2(a),

price
and for

similar reasons, under the Robinson-Patman Act sections that

deal with

payments for

brokerage payments.

services, furnishing services,

15 U.S.C.

13(b), (d)-(e).

and

Although

Caribe's pleadings regarding these other Robinson-Patman Act

sections are rather sparse, they are

sufficient to give BMW

AG and BMW NA notice of the substance of Caribe's complaint.

Caribe
forbids
price.

also claimed

that

BMW NA

violated

2(f),

which

knowingly inducing or receiving a discrimination in

15 U.S.C.

13(f).

In light of our holding that BMW

-1717

NA

is not a separate "person," however, that portion of the

complaint must be dismissed.

III

The Sherman Act

_______________
Count Two of the Complaint says that
BMW has for years imposed as a secret
condition
of Caribe's
contracts an
agreement or understanding that Caribe
charge its customers prices set by BMW.
. . . More specifically, BMW threatened
to terminate Caribe's contracts unless
Caribe agreed not to raise its margins
(i.e., and thus its retail prices) above
levels fixed and set by BMW, and Caribe
reluctantly agreed.
This complaint sets forth a claim that BMW and Caribe agreed
to
that

fix "maximum" resale prices.

Sherman Act

Albrecht
________
also

forbids this kind

additional

that the

profits."
whose

"agreement
And,

"business"

anything forbidden in the

damages.

15 U.S.C.
The

injury must
The

caused

is

"injured"

See
___

The complaint
Caribe to

Clayton Act
by

lose

4 permits

any

"reason

of

antitrust laws" to recover treble

15.

district

court

nonetheless

complaint in light of Clayton Act

forbid.

of agreement.

v. Herald Co., 390 U.S. 145 (1968).

__________

alleges

"person"

The Supreme Court has held

result from an

-1818

the

4's requirement that the

action that the

courts have held

dismissed

antitrust laws

that this requirement

means

the

injury itself

which is

must

to say that it

"the antitrust laws

flow

"from

unlawful."
U.S.

be a

special "antitrust

must amount to "the

were intended to prevent,"

that which
___________

makes

Brunswick Corp.
_______________

[the]

type" of harm
____
and it must

defendants'

acts

v. Pueblo Bowl-O-Mat, Inc., 429

_______________________

477, 489 (1977) (emphasis added).

thought that Caribe's

injury,"

lost profits were

The district court

not the "type"

of

harm that the anti-maximum-resale-price-fixing rule seeks to

prevent.
a

And, it rested that conclusion upon its reading of

Supreme

Court

case,

Atlantic Richfield Co.

________________________

v.

USA
___

Petroleum Co. ("ARCO"), 495 U.S. 328 (1990).

_____________
____
As

the district

Supreme Court considered

that

court pointed

out, in

the anticompetitive

ARCO the
____

possibilities

had earlier led the Court to find maximum resale price

agreements unlawful.

The Supreme Court

First,

resale price

the "maximum"

referred to three.

agreement might

reality, a

disguised "minimum"

resale price

which case

the agreement would

threaten the very

be, in

agreement, in
kinds of

harm that led the Court, in Dr. Miles Medical Co. v. John D.
_____________________
_______
Park & Sons Co., 220 U.S. 373 (1911), to find minimum resale
_______________
price

agreements unlawful per se.

______

Second,

a maximum

dealer

from

resale price

providing

ARCO, 495
____

U.S. at 336.

agreement might

"services

and

prevent a

conveniences"

that

-1919

customers would want to

the point that the

accept (if necessary) the

them.
the

Id.
___

at 335-36.

proper resale

If

price

customers would

price increases needed to provide

so, a supplier's
(imposed

judgment about

through the

supplier's

maximum resale price agreement) would prevent consumers from

obtaining

what

retailers who
"maximum

they
would

resale

want
like to

price

(higher

quality product)

supply
agreement"

it.

Id.
___
might

from

Third,

"'channel

distribution through

a few large or specifically advantaged

dealers,'"

ones

the only

mandated, low resale

able to

price.

earn

Id. at 336
___

a profit

at

the

(quoting Albrecht,
________

390 U.S. at 153).

The Supreme Court
plaintiffs

had not

went on to

suffered

hold that the

"antitrust injury."

But

ARCO
____
it

noted, and we note, that, unlike Caribe, the ARCO plaintiffs

____
were not dealers

who themselves had

entered into (or

forced to enter into) such agreements; rather

competitors
___________

of those

dealers.

been

they were the

They had claimed

that the

agreements had helped the ARCO dealers (who entered into the
agreements) obtain
competitors
themselves.
might be

of
The

more

the

ARCO

Supreme

wrong with the

sales, thereby

leaving them,

dealers, with
Court held

fewer

sales

that, whatever

plaintiffs' assertion, it
-2020

the
for
else

did not

allege harm of
That kind of
____

the type
____

that Albrecht
________

harm would have

sought to

taken the form of

prevent.
fewer ARCO
_____

dealers, or fewer sales for the dealers who had entered into
_____
the

agreements

(because

those

customers

wanting

higher

prices and extra services could not get them), not more ARCO
____
dealer

sales.

The

Supreme

Court

then

wrote that

the

plaintiffs, being rival dealers, were

_____
benefited rather than harmed if [ARCO's]
_________
pricing policies restricted ARCO sales
to a few large dealers or prevented
[ARCO's] dealers from offering services
desired by consumers such as credit card
sales.
Id. at 336-37.
___

The Court added that if an agreement

lowers prices but maintains them above

predatory levels, the business lost by
__
rivals
cannot
be
viewed
as
an
______
"anticompetitive" consequence
of the
claimed violation.
Id. at 337 (emphasis added).
___
In this case,

Caribe is not in

the same position

as the ARCO plaintiffs, for Caribe is the very firm that the
____
alleged maximum resale price fixing agreement forced to keep
its price below the level it

preferred to set.

At least in

theory, if customers would have preferred a higher price and

consequently better product quality

or greater service, the

agreement forced Caribe to provide less of what they wanted;

the

agreement

thereby

might

have

led

to

lower

Caribe

-2121

profits.

And, at

other, larger
have

least in theory, if the

BMW dealers,
___

suffered.

Thus,

agreement helped

Caribe is the

Caribe's

firm that

complaint

here

antitrust harm of the "type" that Clayton Act

it to assert.

ARCO
____

supports, it does

would
alleges

4 authorizes

not deny,

Caribe's

standing.
We

recognize

controversial case.
outlaw

not

only

That

that

Albrecht
________

has

is, in part, because it

anticompetitive

uses

of

proved

seems to

maximum

price

fixing, but also procompetitive uses as well, namely, use of

a

maximum resale
_______

price agreement

that protects

consumers

from

the exercise

of a

retailer's monopoly

e.g., 8 Phillip E. Areeda Antitrust Law

____
_____________
insofar

as

"losses"

that

Caribe from
is at
See id.
___ ___
at

Caribe's

claim

occurred

the

1640;

profits"

refers

agreement

1993).

not an unfavorable, light.

But,

at

from

to

prevented

injury" occurred.

this

stage

340.3b,
of

the

Caribe's complaint in a favorable,

We therefore read the complaint

that the agreement cost

inhibited Caribe

And

competitive level, it

Phillip E. Areeda, Antitrust Law

_____________

509-510 (Supp.

See,
___

1636 (1989).

that no "antitrust

proceeding, we must view

it

because

raising prices above the

least arguable

as implying

of "lost

power.

selling to

Caribe profits because

those potential

BMW

-2222

customers who would

have preferred higher

quality service,

even if that meant somewhat higher Caribe prices.

We recognize

that one

might also wonder,

as did

the district court, how Caribe could have been injured

by a Robinson-Patman
price agreement.
attracted

by

cheaply from
because

Act violation and by

a maximum resale

How could it have suffered

the
BMW

both
____

lost customers

lower
_____

prices of

retailers

NA and

also have

suffered lost

it could not increase its prices?

________

who

bought
profits

One might answer

this question, however, by inferring from the complaint that

Caribe has two different

kinds of customers.

pay the

prices; others

lowest possible

Some

want to

would pay

more to

receive special services that Caribe would offer only if

could

charge

possibilities
seems

higher

prices.

of this

sort

to us that

Hospital Bldg. Co.

___________________
746

(1957);

(1976);

are not

Caribe is entitled

these inferences at this

738,

At

least

in

principle,

outlandish.
to have a

it

And, it
court draw

complaint stage of the proceeding.

v. Trustees of Rex Hospital,

_________________________
Conley v.
______

Gibson,
______

Tri-State Rubbish, Inc.

_______________________

355

425 U.S.

U.S. 41,

45-46

v. Waste Management, Inc.,

______________________

998 F.2d 1073, 1081 (1st Cir. 1993).

We conclude

that the

district

have dismissed count II of the complaint.

-2323

court should

not

IV
Puerto Rico Antitrust Claims
____________________________
Caribe
antitrust law

asserted

claims

that parallel

under

its federal

Puerto

Rico's

antitrust claims.

As the parties seem to agree, courts interpret Puerto Rico's

laws as essentially embodying the jurisprudence
the

parallel federal law.

Commonwealth

For that reason we reinstate the

antitrust claims

to the

have reinstated the federal claims.

Welch Food, Inc., No.
________________
Jan. 20,

same extent

that we

Cf. R.W. Int'l Corp. v.

___ ________________

93-1704, slip op. at 19-25

1994); Mitsubishi Motors Corp.

_______________________

Plymouth, 723 F.2d 155,

________

relevant to

(1st Cir.

v. Soler Chrysler_______________

161 (1st Cir. 1983), aff'd in part

______________

and rev'd in part, on other grounds, 473 U.S. 614 (1985).

___________________________________
V
The Contract Claims and the Act 75 Claim
________________________________________

Our antitrust count decisions require the district

court to

reconsider its

remaining dismissals,

breach of contact claims and its Act 75 claim.

court dismissed

those counts

because of a

of Caribe's
The district

forum selection

clause in the Caribe contracts, which says

the exclusive jurisdiction for disputes
concerning the . . . termination of this
agreement as well as all and any rights
and duties arising out of this agreement
is . . . Germany.
-2424

The

court

did not

clause covers

decide,

antitrust counts (for it

counts for failure

of the

does

antitrust

not, cover
the

or

We cannot tell

clause alone whether

"termination"

claims -of,

arising out of," the "agreement."

or

not this

had dismissed those

to state a valid claim).

from the wording

"concern"

however, whether

it does,

or

whether such

claims

"rights

duties

And, it

and

seems to us that

the

parties

should

have

question further in the

an opportunity

district court.

to

pursue

that

Compare Mitsubishi
_______ __________

Motors, 723 F.2d at 159-61 (analyzing numerous provisions in

______
contract to

determine intended

scope of a

forum selection

clause) with Bense v. Interstate Battery Sys. of Am., Inc.,

____ _____
_____________________________________
683

F.2d

718, 720

(2d

Cir. 1982)

(broadly

worded forum

selection clause includes antitrust claims).

The answer to
it

is,

might

add

this question, depending

strength

to

(or

weaken)

upon what
plaintiff's

argument that the forum selection clause cannot apply to the

Act 75 claim.

It also could affect

the arguments about the

comparative "convenience" of Puerto Rico for

a trial on the

contract

turn out,

and Act

75

claims.

Were it

to

for

example, that an antitrust trial had to take place anyway in

Puerto Rico, the

comparative balance of

well change.
-2525

conveniences might

We do not
the

merits

of

mean to express
these

jurisdictional arguments)
case

proceeds further.

or

other

arguments

that the parties may

We simply

court should not have dismissed

complaint.

any view, however,

hold that

(such

on
as

make as the
the district

the antitrust claims in the

And, that holding, in

turn, requires the court

to reconsider its other dismissals.

The judgment of the

district court is vacated and

the case is remanded for further proceedings.

So ordered.
___________

-2626