finding that a claim in a secondary-line price discrimination case under the Robinson-Patman Act is supportable upon proof of a substantial price discrimination between competitors over time
How later courts described this case
- finding that a claim in a secondary-line price discrimination case under the Robinson-Patman Act is supportable upon proof of a substantial price discrimination between competitors over time
- reasoning that at the summary judgment stage, Courts may only consider hearsay statements that would be capable of admission at trial.
- rejecting challenge to admissibility of expert evidence of damages but holding that expert testimony was not legally sufficient to support damages award because expert did not provide evidence that lost sales were caused by defendant’s price discrimination
- declining to consider whether the plaintiff had offered sufficient proof of the amount of damages, since the plaintiffs' proof of loss in general was inadequate
Written by the judges who cited it.
The opinion
GARTH, Circuit Judge,
concurring.
I agree that Stelwagon’s antitrust verdict cannot stand and that Stelwagon is entitled to breach of contract damages. I write separately because I have some differences with Judge Lewis with respect to his analysis regarding Celotex Corporation. I am also of the opinion that the issue of damages as it arose from Stelwagon’s relations with Standard should be explained. Those differences and that explanation do not call for a difference in result.
I.
I agree with the majority that proof of actual competition is critical to proof of a Robinson-Patman second line price discrimination claim. Maj.Op. at 1271. As Judge Lewis’ opinion states, actual competition requires proof of both functional and geographic competition — proof that “the favored and disfavored purchasers competed at the same functional level, i.e., all wholesalers or all retailers, and within the same geographic market.” Id (quoting Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 584 (2d Cir.1987)).
I cannot agree however that Celotex competed with Stelwagon. Celotex sold private label MAPs, which were manufactured by Tarmac, in various parts of the east coast, including Philadelphia. But unlike Stelwag-on, Celotex sold to distributors, not to roofing contractors. Thus, Celotex sold to Stel-wagon’s competitors, not Stelwagon’s customers. That is to say, Celotex operated at a different functional level than Stelwagon, i.e. one functional level above Stelwagon.
Keenan, Stelwagoris President, testified that Celotex sold almost exclusively to other distributors and repeatedly offered to sell to Stelwagon. App. 299-300. Not one of the 163 Celotex customers identified at trial was proven or even alleged to be a roofing contractor. App. 138-46.
Despite this evidence, Stelwagon claims that it competed with Celotex based on Keenan’s hearsay testimony that Celotex had once sold directly to Alper Roofing, a contractor. App. 302-03. 1 Keenan had previ *1278 ously testified that manufacturers occasionally sold directly to contractors for large jobs. App. 300. I cannot agree that evidence of one sale sufficed to permit the jury to conclude that Celotex competed on a general basis with Stelwagon.
Nor does the record reveal that the price discount received by Celotex violated § 2(b) of the Clayton Act. See Texaco v. Hasbrouck, 496 U.S. 543, 571 , 110 S.Ct. 2535, 2550-51 , 110 L.Ed.2d 492 (1990). 2 The record here is devoid of evidence of Celotex’s costs as compared with any price discount received. There is no evidence of the prices Celotex charged its customers, and there is no evidence in the record that Celotex operated both as a distributor as well as a supplier in Philadelphia. This failure of proofs distinguishes Stelwagon’s claims from those discussed in Texaco . Hence, on this record, I could not hold that Celotex competed with Stelwagon.
Despite this disagreement with the majority, I concur in Judge Lewis’ opinion that Stelwagon failed to produce evidence of actual competitive injury — that is, evidence of actual lost sales. I therefore agree that we must reverse Stelwagon’s antitrust verdict on that account.
Even if I had not concluded that Stelwag-on had failed to prove actual antitrust injury, I would still vote to reverse Stelwagon’s verdict because Stelwagon failed to quantify its damages adequately. While the burden of proving damage in an antitrust case is reduced, see J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 565-67 , 101 S.Ct. 1923, 1928-30 , 68 L.Ed.2d 442 (1981), the damages alleged must arise from whatever injury to competition has been demonstrated.
Stelwagon’s proof at trial established that Standard Roofing Supply competed with Stelwagon only for sales out of Stelwagon’s Comly (North Philadelphia) and Camden, New Jersey warehouses. Despite this, Stel-wagon sought to quantify its damages only with respect to the combined sales of all six of its warehouses. Stelwagon never broke down its sales separately for the Comly and Camden locations. Given that Standard competed only with those two warehouses, however, Stelwagon’s combined sales figures could not and did not provide an adequate basis to quantify any damage which resulted from the favorable prices Standard received.
It would be impermissibly speculative to extrapolate from Stelwagon’s overall sales figures, which Stelwagon entered into evidence, the particular damage to Stelwagon that may have resulted from price discrimination at Stelwagon’s Comly and Camden locations.
II.
Having expressed my reservations about the majority’s opinion as to whether Celotex competed with Stelwagon and the quantification of damages, I nonetheless reach the same result as the majority has. Accordingly, I concur in the judgment reversing Stel-wagon’s verdict on the Robinson-Patman claim and affirming Stelwagon’s verdict on the contract claim.
PRESENT: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, SAROKIN and GARTH, * Circuit Judges.
. I understand footnotes 16 and 17 to state that Keenan's hearsay testimony was admissible at trial for the limited purpose of showing motive only. If indeed Stelwagon had produced at trial the customer who made the statement to Keenan, that testimony would certainly have been admissible. Short of producing the actual de-clarant at trial, however, Keenan's testimony was still hearsay and thus had to satisfy a hearsay exception (here Fed.R.Evid. 803(3)). It was ac *1278 cordingly admissible but limited to proof of motive.
Stelwagon introduced evidence that other contractors bought Celotex's product but Stelwagon did not produce evidence that those contractors purchased the MAPs directly from Celotex. The fact that a consumer may buy Dole canned goods from Foodtown does not mean that A & P, Food-town's competitor, is also Dole's competitor.
. In Texaco , Hasbrouck had purchased gasoline for his retail station at a price which exceeded that which Texaco had sold to two distributors. These distributors had then sold to retail stations which they owned and to independent retail stations. 496 U.S. at 547-51 , 110 S.Ct. at 2538 ^10. The Court concluded that the distributors' mixed functions, the evidence of intentional price discrimination by Texaco, and the amount of the discount as compared to the actual costs incurred by the distributors sufficed to prove a price discrimination claim. Id. at 572-73 , 110 S.Ct. at 2551-52 .