# USA Petroleum Company v. Atlantic Richfield Company

> Court of Appeals for the Ninth Circuit · January 6, 1994 · 13 F.3d 1276

URL: https://www.frixlaw.com/law-library/cases/9486314

## Case

- **Full name:** USA PETROLEUM COMPANY, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 6, 1994
- **Citations:** 13 F.3d 1276; 94 Daily Journal DAR 304; 94 Cal. Daily Op. Serv. 160; 1994 U.S. App. LEXIS 131; 1994 WL 1944
- **Precedential status:** Published
- **Opinion:** Concurrence by Alarcon
- **Judges:** Alarcon, Nelson, Reinhardt
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486314

## How later opinions describe it (automated extraction)

- holding that only the record that was before the district court can be considered, and that the summary judgment record cannot be supplemented on appeal
- explaining the general rule that “a waiver will be excused if a new issue arises while appeal is pending because of a change in the law”
- finding waiver of a predatory-pricing theory under section 1 of the Sherman Act where the party only advanced a separate predatory-pricing theory before the district court
- holding that a doctor’s opinion one year after the ALJ decision was not probative to any issue on appeal

## Opinion text

ALARCÓN, Circuit Judge,
specially concurring:
I concur in the judgment of the court. Rather than discuss an issue not properly before this court, I would carry out the mandate of the United States Supreme Court and enter a brief order affirming the district court’s order. I would not discuss the predatory pricing issue that has now been resurrected by USA Petroleum Company, under the guise of a “motion for clarification,” because the Supreme Court has clearly instructed that USA failed to demonstrate antitrust standing on the only issue preserved for appeal.
I.
The district court granted summary judgment in favor of the Atlantic Richfield Company (ARCO). It held that the USA Petroleum Company (USA) was not entitled to damages for a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 , because it had failed to demonstrate “antitrust injury.”
On October 7, 1988, this court reversed “the decision of the district court and remand[ed] the case for further proceedings consistent with this opinion.” USA Petroleum Co. v. Atlantic Richfield Co., 859 F.2d 687, 697 (9th Cir.1988). The majority’s mandate directed the district court to proceed to trial because USA had demonstrated antitrust injury, entitling it to recover damages if it could meet the requisite standard of persuasion at trial. Id.
On May 14, 1990, the Supreme Court reversed this court’s decision. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 , 110 S.Ct. 1884 , 109 L.Ed.2d 333 (1990). The Court’s holding is stated in words that appear to be free from ambiguity:
Respondent argues that, as a competitor, it can show antitrust injury from a vertical conspiracy to fix maximum prices that is unlawful under § 1 of the Sherman Act, even if the prices were set above predatory levels. In addition, respondent maintains *1287 that any loss flowing from a per se violation of § 1 automatically satisfies the antitrust injury requirement. We reject both contentions and hold that respondent has failed to meet the antitrust injury test in this case. We therefore reverse the judgment of the Court of Appeals.
Id. at 335, 110 S.Ct. at 1889 .
Notwithstanding the clear direction of the Supreme Court to this court to enter an order upholding the district court’s dismissal of this action because USA failed to demonstrate antitrust injury, USA filed a document on November 13, 1991, styled as a “Motion for Clarification On Remand From Supreme Court,” in which it requested that this court “reverse the district court’s grant of summary judgment.” (emphasis added).
In its Motion for Clarification, USA asked this court to “clarify” the Supreme Court’s mandate that we- affirm the district court’s grant of summary judgment in this action because USA failed to demonstrate antitrust injury. USA seeks a review by this court of an issue it expressly abandoned in the district court, after acknowledging it had not presented any evidence to demonstrate that ARCO’s prices were predatory.
II.
USA alleged in its amended complaint that “ARCO and its co-conspirators have implemented severe and predatory price cuts” in violation of Section 1 of the Sherman Act. After almost three years of exhaustive discovery, ARCO filed a motion for a partial summary judgment on March 31, 1986. ARCO requested dismissal of USA’s Section 1 and Section 2 claims on the ground that USA could not satisfy the “antitrust injury” requirement of Section 4 of the Clayton Act because USA had failed to show that its prices were predatory. On April 28, 1986, USA entered into a stipulation for an order dismissing its Section 2 claim. On July 25, 1986, after the dismissal of its Section 2 claim, USA filed a document entitled “Statement of Genuine Issues.” USA stated the only issues in dispute were
“1. Whether ARCO has engaged in a vertical price fixing conspiracy with ARCO-branded distributors and ARCO-branded dealers to fix prices at artificially low levels?
2. Whether ARCO’s vertical price fixing conspiracy has caused USA injury and in what amount?”
USA did not 'contend that predatory pricing was a genuine issue of fact in dispute. USA relied instead on its theory that antitrust injury can be shown solely by proof of an unlawful conspiracy to fix below market retail gasoline prices. Thus, any factual issue concerning predatory pricing was abandoned by USA prior to the hearing on ARCO’s motion for a partial summary judgment on the Section 1 claim.
A hearing on ARCO’s motion for a summary judgment on the Section 1' claim was conducted on October 14, 1986. During his argument in opposition to the motion, USA’s counsel conceded that it could not prove predatory pricing on the remaining Section 1 claim “even by the most liberal standard.” USA accurately described the essence of the October 14, 1986 proceedings in its opening brief before this court dated July 6, 1987.
The district court granted ARCO’s motion on February 25, 1987. (CR 100, 103). The court held" that ARCO’s vertical conspiracy to fix below-market prices was pro-competitive and therefore could not produce the kind of injury that the antitrust laws were intended to prevent. The court ruled USA was required to prove that the conspiracy between ARCO and its dealers fixed “predatory” prices and that ARCO had a dangerous probability of successfully monopolizing the market in order to satisfy the antitrust injury requirements of Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 , 97 S.Ct. 690 , 50 L.Ed.2d 701 (1977). Plaintiff, already having abandoned its Section 2 Sherman Act claims, offered no proof on predatory pricing or dangerous probability of monopolization. The Court entered judgment for ARCO under Fed.R.Civ.P. 54(b). (CR 100, 103). USA appeals from that judgment,
(emphasis added).
Based on the-uncontroverted facts, the district court concluded that USA had failed to make a showing that ARCO’s prices were *1288 predatory. In its order dismissing the Section 1 claim, the district court summarized its legal conclusion as follows:
Even assuming that the plaintiff can establish a vertical conspiracy to maintain low prices, the plaintiff cannot satisfy the “antitrust injury” requirement of Clayton Act § 4, without showing such prices to be predatory.
The record unmistakably demonstrates that USA expressly abandoned its predatory pricing claim before the district court. USA offered no evidence of predatory pricing. USA conceded in its opening brief before this court that it had not demonstrated predatory pricing in its submission of evidence in opposition to ARCO’s partial motion for a summary judgment. USA represented to the district court that the only genuine issues of material fact in dispute to be decided on summary judgment were whether ARCO had engaged in a conspiracy to fix prices below market level; and, if so, whether USA was injured by this conduct.
III.
On the first page of its opening brief before this court, under the heading “Statement Of The Issue” USA represented as follows:
“The sole issue is whether USA Petroleum Company’s lost sales and reduced profits from the defendant’s per se unlawful resale price maintenance conspiracy to fix artificial, below-market retail gasoline prices constitutes antitrust injury.” (emphasis added). On page 5 of its opening brief, USA summarized the issue raised by ARCO’s partial motion for a summary judgment regarding the Section 1 claim as follows:
Even given the existence of the unlawful conspiracy and its conceded effect on retail gasoline prices, ARCO contended that USA, a competitor, could not suffer antitrust injury from this vertical price-fixing scheme.
The majority correctly identified the issue presented by USA as follows:
The question on appeal is whether in the absence of proof of predatory pricing a competitor can recover damages because of a maximum resale price maintenance agreement. Specifically, we must decide whether a competitor’s injuries resulting from vertical non-predatory, maximum price fixing fall within the category of “antitrust injury.”
859 F.2d at 689 . (emphasis added).
The majority’s characterization of the prices fixed by ARCO as “nonpredatory” is supported by the record and USA’s candid admission that it “offered no proof of predatory pricing.” Appellant’s Opening Brief at 6. In reversing the dismissal of the Section 1 claim, the majority concluded that “the purposes and policies of the antitrust laws are best effectuated by recognizing the ‘standing’ of competitors to enforce the antitrust laws against price-fixing conspiracies.” 859 F.2d at 697 .
In its petition for a rehearing, ARCO characterized the question presented by USA’s appeal as follows: “The majority and dissenting opinions agree that [this] appeal presents the single issue, ‘whether a competitor’s injuries resulting from vertical non-predatory, maximum price fixing fall within the category of “antitrust injury.” ’ ” USA, in its opposition to the petition for a rehearing, did not argue that ARCO’s conclusion that USA had presented only one issue to this court was erroneous.
In footnote 5 of its response to the petition for a rehearing, USA states that, “ARCO’s suggestion that the only anticompetitive effect of maximum vertical price-fixing in the setting of a predatory price is wrong. The Supreme Court has consistently condemned all price fixing because it artificially distorts the competitive process.” This argument demonstrates USA’s unyielding adherence to its mistaken notion that it was not required to show predatory price fixing to demonstrate antitrust injury.
IV.
The Supreme Court granted certiorari to resolve the sole issue raised in USA’s appeal to this court. Justice Brennan framed the issue before the Court as follows: “This case presents the question whether a firm incurs an ‘injury’ within the meaning of the anti *1289 trust laws when it loses sales to a competitor charging non-predatory prices pursuant to a vertical, maximum-price-fudng scheme.” 495 U.S. at 331 , 110 S.Ct. at 1887 (emphasis added).
The Court summarized the district court’s reasoning as follows:
The District Court granted summary judgment for ARCO on the § 1 claim. The court stated that “[ejven assuming that [respondent USA] can establish a vertical conspiracy to maintain low prices, [respondent] cannot satisfy the ‘antitrust injury’ requirement of Clayton Act § 4, without showing such prices to be predatory.” App. to Pet. for Cert. 3b. The court then concluded that respondent could make no such showing of predatory pricing because, given petitioner’s market share and the ease of entry into the market, petitioner was in no position to exercise market power.
Id. 495 U.S. at 333 , 110 S.Ct. at 1888 .
The Supreme Court reversed this court’s judgment. Id. at 335 , 110 S.Ct. at 1889 . The court rejected USA’s argument that:
[I]t is inappropriate to require a showing of predatory pricing before antitrust injury can be established when the asserted antitrust violation is an agreement in restraint of trade illegal under § 1 of the Sherman Act, rather than an attempt to monopolize prohibited by § 2.
Id. at 338, 110 S.Ct. at 1891 .
The Court held that “[although a vertical maximum-price-fixing agreement is unlawful under § 1 of the Sherman Act, it does not cause a competitor antitrust injury unless it results in predatory pricing.” Id. at 339, 110 S.Ct. at 1891 . The Court’s concluding paragraph reads as follows: “Respondent has failed to demonstrate that it has suffered any antitrust injury. The allegations of a per se violation does not obviate the need to satisfy this test.” Id. at 346 , 110 S.Ct. at 1895 . The principle announced by the Court in this ease is free from doubt. Where, as here, a competitor fails to present any evidence of predatory pricing, the district court must dismiss a Section 1 claim even though the evidence shows an illegal maximum-price-fixing conspiracy.
Having determined that the majority had erred in ruling that USA had demonstrated antitrust injury, the Court reversed the judgment of this court and remanded “for proceedings consistent with this opinion.” Id. In light of USA’s concession in its opening brief before this court that it had not presented any evidence of predatory pricing, I believe that this court was compelled by the Supreme Court’s mandate to enter an order stating simply: “In conformance with the mandate of the Supreme Court in this matter, 495 U.S. 328 , 110 S.Ct. 1884 , 109 L.Ed.2d 333 (1990), the judgment of the district court is affirmed.”
y.
The Supreme Court announced its decision in this matter on May 14, 1990. On November 13,1991, prior to any proceedings in this matter consistent with the Court’s mandate, USA filed its “Motion for Clarification on Remand from the Supreme Court.” Since no action had yet been taken to carry out the Supreme Court’s mandate by this court, there simply was no order or judgment from this court that required clarification. No rule was cited by USA authorizing a “clarification” by this court of the import of the Supreme Court’s mandate. This court is in no position to “clarify” a decision of the Supreme Court. USA’s request for a clarification of the remand order should have been directed to the Supreme Court;
VI.
The Supreme Court has instructed that once a motion for a summary judgment has been filed, the plaintiff must present evidence to support the factual allegations in the complaint. Lujan v. Defenders of Wildlife, - U.S. -, 112 S.Ct. 2130, 2137 , 119 L.Ed.2d 351 (1992). The Court set forth this principle in the following passage:
At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that. *1290 are necessary to support the claim,” [Lujan v.] National Wildlife Federation, supra, 497 U.S. [871], at 889, 110 S.Ct. [3177], at 3189 [ 111 L.Ed.2d 695 (1990) ]. In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed.Rule Civ.Proc. 56(e) which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial,” Gladstone [Realtors v. Village of Bellwood ], supra, 441 U.S. [91], at 115, n. 31, 99 S.Ct. [1601], at 1616, n. 31 [ 60 L.Ed.2d 66 (1979)].
Id. USA has acknowledged that it failed to present in the district court, any evidence of predatory pricing. It is boilerplate law that we must review a district court’s order granting or denying summary judgment independently, without deference to the district court’s legal rulings. Even if it were possible to ignore USA’s statement in its opening brief that the sole issue before this court is whether ARCO’s unlawful conspiracy to fix prices is sufficient to show antitrust injury without proof of predation, we would still be required to determine for ourselves whether the evidence presented by USA raised a genuine issue of material fact on the question of predatory pricing. In performing this task, we would be required to ignore the trial court’s legal pronouncements and search the record for evidence of predatory pricing. Performance of that task would be simple in this case because of USA’s admission in its opening brief before this court that it offered no proof of predatory pricing in response to the partial motion for a summary judgment to dismiss the Section 1 claim.
VII.
Under the law of this circuit, a party cannot assert one theory before this court and, upon losing, return again and assert an entirely different theory. In Nguyen v. United States, 792 F.2d 1500 (9th Cir.1986), we relied on the following principle in reversing an order granted upon a new theory that was inconsistent with our prior mandate:
Much of the value of summary judgment procedure in the cases for which it is appropriate ... would be dissipated if a party were free to rely on one theory in an attempt to defeat a motion for summary judgment and then, should that theory prove unsound, come back long thereafter and fight on the basis of some other theory.
Id. at 1503 (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469-70 (5th Cir.1967)).
In this matter, USA fought the good fight before this court for a ruling that proof of a conspiracy to fix maximum prices was sufficient to demonstrate antitrust injury without proof that the prices were predatory. The Supreme Court rejected that argument. Having lost that battle, USA now seeks to return to the district court to challenge ARCO’s motion for partial summary judgment on a factual theory it expressly abandoned.
I would not permit a litigant under the guise of a motion for clarification, to pursue a theory asserted in its complaint that it deliberately abandoned, in order to test the sufficiency of its evidence on a discrete theory. Our courts are too burdened with meritorious claims to permit skillful counsel to abuse their right of appeal by offering up successive claims until they finally find one that will persuade at least two judges of this court. This tactic is contrary to the mandate of the Supreme Court in this case, and violates this circuit’s prohibition against piecemeal review of motions for a summary judgment based on theories that could have been presented in a prior request for review. I would not discuss USA’s abandoned predatory pricing claim. Instead, I would enter an order affirming the district court pursuant to the Supreme Court’s ruling that USA has failed to demonstrate antitrust injury.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486314. Public record. Not legal advice.