# Appendix — American Electric Power Co. v. City of Mishawaka > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2630%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1096 ## Text — — eS 2? oe IN THE JUK 27 1980 Suprene Court of the WUnitfP States October Term, 1979 MICHAEL RODAK, JR, CLERM | No '%9-2059 AMERICAN ELECTRIC POWER COMPANY, INC., AMERICAN ELECTRIC POWER SERVICE CORPORATION, and INDIANA & MICHIGAN ELECTRIC COMPANY, Corporations, Petitioners, » - CITY OF MISHAWAKA, INDIANA, CITY OF NILES, MICHIGAN, CITY OF COLUMBIA CITY, INDIANA, CITY OF BLUFFTON, INDIANA, CITY OF GARRETT, INDIANA, CITY OF GAS CITY, INDIANA, TOWN OF FRANKTON, INDIANA, TOWN OF WARREN, INDIANA, TOWN OF NEW CARLISLE, INDIANA, and TOWN OF AVILLA, INDIANA, Municipal Corporations, Respondents. = — -— ———— — —_— ——— oe APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT J WuitNney NortH SEYMOUR Witu1aM J. MANNING Counsel for Petitioners One Battery Park Plaza New York, New York 10004 (212) 483-9000 Of Counsel: Simpson THACHER & BARTLETT One Battery Park Plaza New York, New York 10004 (212) 483-9000 Livincston, Dicpine, Haynie & YODER 425 Lincoln Bank Tower Fort Wayne, Indiana 46802 (219) 423-9411 June 27, 1980 INDEX TO APPENDIX PAGE Text of Constitutional Provision Relied On ............ ee Text of Statutes Relied On ......... folic seat Same la Order and Judgment of the Court of Appeals eee gg ___RRRRIRSTRR AEs ecenere teres nD «1 cel enn Tan eee oa Opinion of the Court of Appeals (February 21, 1980) 6a Order on Petition for Rehearing 0.0.0... 38a (BNE AA. Se SER nea BE aS Rr OO ne a ISON RRS ea 40a Judgment Order of District Court 0000000000... )=—42a Memorandum Opinion of the District Court, January alae pa mle Sep Oe ee RO DE ee Finding of Facts and Conclusions of Law ...... - 105a Order and J “aaiicn of the Court of semaine (August ICTS oe ance ce a Nolan Ten maaect ee Opinion of the Court of Appeals (August 17, 1977) 157a Order and Memorandum of the District Court (May 1, 31976) ..... eae Se ieee reat ene wath vatehs tein Sees a Order of the District Court, October 22, 1976 200a 8! | ee ee ee Text of Constitutional Provision Relied On Amendment I Freedom of religion, speech and press; peaceful assemblage; petition of grievances Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Text of Statutes Relied On Federal Power Act §205, 16 U.S.C. §824d: ‘*§824d. Rates and charges; schedules; suspension of new rates; automatic adjustment clauses (a) Just and reasonable rates ‘*All rates and charges made, demanded, or received by any public utility for or in connection with the transmis- sion or sale of electric energy subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges shall be just and rea- sonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful. (b) Preference or advantage unlawful ‘‘No public utility shall, with respect to any ltrans- mission or sale subject to the jurisdiction of the Commis- sion, (1) make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable differ- ence in rates, charges, service, facilities, or in any other respect, either as between localities or as between classes of service. (c) Schedules ‘‘Under such rules and regulations as the Commis- sion may prescribe, every public utility shall file with the Commission, within such time and in such form as the Com- mission may designate, and shall keep open in convenient form and place for public inspection schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, 2a Text of Statutes Relied On together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services. (d) Notice required for rate changes ‘*Unless the Commission otherwise orders, no change shall be made by any public utility in any such rate, charge, classification, or service, or in any rule, regulation, or con- tract relating thereto, except after sixty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the sixty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and pub- lished. (e) Suspension of new rates; hearings; five month period ‘‘Whenever any such new schedule is filed the Com- mission shall have authority, either upon complaint or upon its own initiative without complaint, at once, and, if it so orders, without answer or formal pleading by the public utility, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classifica- tion, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the public utility affected thereby a state- ment in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect; and after full hearings, either completed before or after the rate, charge, classifica- tion, or service goes into effect, the Commission may make such orders with reference thereto as would be proper ina proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of such five months, the proposed change of rate, charge, classification, or service shall go into effect at the 3a Text of Statutes Reed On end of such period, but in case of a proposed increased rate or charge, the Commission may by order require the inter- ested public utility or public utilities to keep accurate ac- count in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require such public utility or public utilities to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the public utility, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.’’ Federal Power Act §206(a); 16 U.S.C. 824e(a) : ‘¢4894e, Power of Commission to fix rates and charges; determination of cost of production or transmission ‘‘(a) Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affected such rate, charge, or classification is unjust, unreasonable, un- duly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classifica- tion, rule, regulation, practice, or contract to be thereafter observed and in foree, and shall fix the same by order.’’ Sherman Act §2, 15 U.S.C. §2: §2. Monopolizing trade a felony penalty ‘‘Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding one million dollars if a 4a Text of Statutes Relied On corporation, or if'any other person, one hundred thousand dollars, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.’ Clayton Act §4, 15 U.S.C. §15: ‘*§15. Suits by persons injured; amount of recovery ‘‘Any person whe shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”’ Jayton Act §15, 16 U.S.C. §26: ‘*§26, Injunctive relief for private parties; exception; costs ‘‘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, including sections 13, 14, 18, and 19 of this title, 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, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvi- dently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or asso- ciation, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of the Act to regulate commerce, approved Feb- ruary fourth, eighteen hundred and eighty-seven, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commis- sion. In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney’s fee, to such plaintiff.’’ 5a Order and Judgment of the Court of Appeals (February 21, 1980) Opinion by Judge Wood UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 February 21, 1980 Before Hon. Rosert A. Sprecuer, Circuit Judge Hon. Haruincton Woop, Jr., Circuit Judge Hon. Husert L. Witt, Senior District Judge” Nos. 79-1190, 79-1237, and 79-1354 See City oF MISHAWAKA, INDIANA, City oF NILES, MICHIGAN, CITY OF CotumBIA City, INDIANA, City oF BLUFFTON, INDIANA, CITY OF GARRETT, INDIANA, City oF Gas City, INDIANA, TOWN OF FRANK- TON, INDIANA, TOWN OF WARREN, INDIANA, TOWN OF NEw CAr- LISLE, INDIANA, and Town oF AviLLA, INDIANA, Municipal Corpo- rations, Plaintiffs-A ppellees, Cross-A ppellants, US. AMERICAN ELEctRIC Power CoMPANY, INc., AMERICAN ELECTRIC PoweER SERVICE CORPORATION, and INDIANA & MICHIGAN ELECTRIC Company, Corporations, Defendants-A ppellants, Cross-Appellees. Appeals from the United States District Court for the Northern District of Indiana, South Bend Division Nos. S-74-22, S-75-210, S-77-2U9 Allen Sharp, JUDGE re This cause came on to be heard on the transcript of the record from the United States District Court for the North- ern District of Indiana, South Bend Division, and was ar- gued by counsel. On consideration whereof, it is ordered and adjudged by this court that the judgment of the said District Court in this cause appealed from be, and the same is hereby, Ar- FIRMED IN Part. The damage and injunctive provisions are Vacatep and Remanvep for additional proceedings in ac- cordance with the opinion of this court filed this date. Each party to bear its own costs. *The Honorable Hubert L. Will, Senior District Judge of the United States District Court for the Northern District of illinois, is sitting by designation. 6a Opinion of the Court of Appeals (February 21, 1980) i Crry or MisHawaka, Iyprana, Crry or Nites, Micuican, Oury or Cotumsia City, Inprana, Crry or Buiurrron, [nprana, City or Garrett, [nprana, Crry or Gas Crry, Inprana, Town or Frankton, Inprana, Town or Warren, Inpiana, Town or New Caruisuz, Inpiana, and Town or Avuta, Inprana, Municipal Corporations, Plaintiff s-Appellees and Cross-Appellants, v. AMERICAN Execrric Power Company, Inc., AMERICAN ELLEc- TRIC Power Service Corporation, and Rens & MICHIGAN ELEctric Company, Corporations, . Defendants-Appellants and rr ea: Nos. 79-1190, 79-1237 and 79-1354. rr A iin United States Court of Appeals, Seventh Circuit. Argued June 6, 1979, Decided Feb. 21, 1980. Rehearing and Rehearing En Bane Denied March 31, 1980. Before Sprecuer and Woop, Circuit Judges, and Wiu, Senior District Judge.* * The Honorable Hubert L. Will, Senior District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. é 7a ‘> Opinion of the Court of Appeals (February 21, 1980) Haruincton Woop, Jr., Circuit Judge.! Involved is the application of the Sherman Act* to a vertically integrated investor-owned electric utility, found by the trial court to be a monopoly. The utility’s wholesale rates are subject to regulation by the federal Energy Reg- ulatory Commission® and its retail rates are subject to regulation either by the State Public Service Commission of Indiana in the instance of nine municipal plaintiffs or Michigan in the instance of one municipal plaintiff. The municipalities which own and operate local transmission systems for retail sale of electricity depend on defendants for their wholesale supply. Because the utility’s wholesale rates charged the municipalities during the period 1976- 1978 exceeded the retail rates charged to its own retail cus- tomers, the utility was found by the trial court to be guilty of a ‘‘price squeeze’”* and of related exclusionary acts cal- culated to force the municipalities out of the retail electric business resulting in the conversion of municipal retail cus- tomers into retail customers of the utility. Triple damages were awarded based on rate overcharges and an injunction issued.® A cross appeal by the municipalities is also before us questioning the failure of the district court to award the municipalities their litigation expenses before the federal 1. Judge Will made substantial contributions to this opinion and in particular to the section on damages. 2. 15 U.S.C. §2. 3. The Federal Energy Regulatory Commission was formerly known as the Federal Power Commission. 4. The term “price squeeze” as used in this context refers to a situation where the monopolist charges its wholesale customer a wholesale rate high enough to impede that customer’s competition with the monopolist in the retail market. 5. The opinion of Judge Sharp is reported in City of Mishawaka, Indiana v. American Electric Power Co., 405 F.Supp. 1320 (N.D.Ind. 1979), and is the subject of a recent Note, Antitrust Price Squeeze, 12 Ind.L.Rev. 637 (1979). 8a Opinion of the Court of Appeals (February 21, 1980) commission as an element of antitrust damages. Those commission proceedings involving these same parties con- sidered related issues. This case in its preliminary stages was before us on interlocutory appeal.’ In Mishawaka I, several issues were resolved. This court held that the util- ity was not immunized from Sherman Act attack and that the federal commission had neither exclusive nor primary jurisdiction over the utility faced with these antitrust charges. For the purposes of this case those issues are settled. Although this case was well briefed and argued, it re- mains complex factually and legally.” Dual regulation, fed- eral and state, of this electric utility, which is also subject to the Sherman Act, generates legal and practical problems in addition to electricity.’ The necessary resolution by the courts of the involved complexities does not render a totally satisfying result. We shall first consider a capsule of the facts found by the district court, and then the various issues which arise. 6. City of Mishawaka, Indiana v. Indiana & Michigan Electric Co., 560 F.2d 1314 (7th Cir. 1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978). 7. We have had the assistance of separate briefs filed by amici curiae Edison Electric Institute, Commonwealth Edison Company, and jointly by the cities of Anderson and Auburn, Indiana. 8. On the general subject of the application of antitrust laws to regulated industries the following articles may be of interest: Hale & Hale, The Otter Tail Power Case: Regulation by Commission or Antitrust Laws, 1973 Sup.Ct.Rev. 99; Hale & Hale, Competition or Control Vi: Application of Antitrust Laws to Regulated Industries, 111 U.Pa.L.Rev. 46 (1962) ; Jones, Marketing Strategy and Govern- ment Regulation in Dual Distribution Practices, 34 Geo.Wash.L.Rev. 456 (1966) ; Meeks, Concentration in the Electric Power Industry: The Impact of Antitrust Policy, 72 Colum.L.Rev. 64 (1972) ; Note, Regulated Industries and the Antitrust Laws: Substantive and Proce- dural Coordination, 58 Colum.L.Rev. 673 (1958) ; Note, Refusals to Deal by Vertically Integrated Monopolists, 87 Harv.L.Rev. 1720 (1974) ; Comment, Otter Tail and Its Import for Regulated Utilities, 9 Wake Forest L.Rev. 407 (1973). 9a Opinion of the Court of Appeals (February 21, 1980) THE FINDINGS OF THE TRIAL JUDGE The bench trial lasted three and one-half days sup- plemented by a lengthy stipulation of facts, numerous dep- ositions and over a thousand exhibits. Following trial the judge filed a Memorandum Opinion, Judgment Order, and Findings of Facts and Conclusions of Law. Those docu- ments, and the Findings of Facts in particular, are attacked by the utility as the work product of the municipal attorneys and not the trial judge. It is therefore argued that a broad- er scope of review is justified than the clearly erroneous standard ordinarily applied pursuant to Rule 52, Federal Rules of Civil Procedure. We bear that legitimate concern in mind as we consider this case, but after a review of the whole record including pretrial and post trial matters, we see no necessity in the circumstances of this case to aban- don our usual standard of review. United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.id.2d 12 (1964). Further, the utility argues that this is a ‘‘paper case’’ largely founded on the stipulation and other docu- ments in evidence. A broader review standard is therefore urged upon us. Yorke v. Thomas Iseri Produce Co., 418 F.2d 811, 814 (7th Cir. 1969). We more recently considered the prevailing rule in Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1284 (7th Cir. 1977). In applying a broader rule in that case we noted that the trial evidence consisted al- most entirely of the testimony of a single witness whose credibility was not challenged. In the present case nine witnesses were heard including the managing officials of the utility during the times in question. The trial judge in his findings expressed ‘‘serious reservations’’ about the cred- ibility of the utility officials. We cannot better judge the credibility of those witnesses unseen by us than the trial judge. Though the evidentiary documentation is volumi- 10a Opinion of the Court of Appeals (February 21, 1980) nous, we see no need in these circumstances to use that as an excuse to go behind the findings of the trial judge. The testimony of the witnesses and the inferences to be drawn had an obvious impact on the judge’s decision. After re- view of the case we do not have a ‘‘definite and firm con- viction’’ that the trial judge made erroneous findings. However, in reaching the conclusion we do about this case, we do not mean to imply that it results only from a strict application of the ‘‘clearly erroneous’’ standard. We would much prefer to be assured that what we review is the work product resulting from the judge’s personal consid- eration and resolution of the evidence in the case and that it is not merely the disguised product of the successful ad- vocate. We also realize, however, that asa practical matter in these times a busy trial judge may in some circumstances be properly assisted with some of the paper work resulting from his own determination of the issues. This appears to be such a case. FACTUAL BACKGROUND The three related defendant companies will be consid- ered as one for our purposes and referred to as the utility.® The utility generates, transmits and sells electricity at wholesale to the ten municipal plaintiffs, and also at retail to its own industrial, commercial and residential] customers. The plaintiff municipalities may be considered for practical purposes as purchasing all of their wholesale electricity from the utility which in turn they individually distribute at retail to their own local customers through their electric 9. Indiana & Michigan Electric Company generates, transmits and sells electricity. American Electric Power Company, Inc., is an investor-owned public holding company under the Public Utility Holding Company Act of 1935, 15 U.S.C. § 79 et seq. American Electric Power Service Corporation, also a subsidiary of American Electric Power, provides management, professional and_ technical services to Indiana & Michigan Electric. lia Opinion of the Court of Appeals (February 21, 1980) distribution systems. The wholesale rates charged by the utility are subject to federal regulation." The wholesale rates filed by the utility become effective, subject to refund, thirty days after filing or after a maximum five-month sus- pension ordered by the federal commission. However, the retail rates sought by the utility in both Indiana and Mich- igan under the respective statutes of those states do not go into effect automatically prior to approval, but must await an order of the particular state commission fixing the rates. In 1968, the municipalities individually entered into new full-requirements contracts with the utility for wholesale electricity. The utility during the period 1968-1978 filed for seven retail rate increases in Indiana, four in Michigan, and three federal requests for wholesale increases. The first of the three federal requests resulted in a refund to the municipalities settled by the utility for $1,678,511 plus about $300,000 interest. The latter two requests remain unresolved. Some of the state retail filings resulted in a degree of increase in retail rates. At least one state filing is undetermined. As explained by the utility, it anticipated a future ener- gy shortage, and therefore advised the municipalities that full-municipal requirements contracts would not be renewed. The municipalities were further advised to seek alternative sources of wholesale electricity which the utility offered to ‘‘wheel.’’! The utility has under development several nu- clear generators. No municipality has yet been terminated by the utility. The trial court found that the utility in its service area has a monopoly of retail sales of electricity as well as a monopoly of the supply of wholesale electric power upon 10. Federal Power Act, 16 U.S.C. § 824. 11. “Wheeling” is a convenient industry term for transmitting electricity from source to customer over the line facilities of a third party. 12a Opinion of the Court of Appeals (February 21, 1980) which the municipalities depend. Supported by the trial court’s findings, the municipalities further point out that the utility and the municipalities are in competition for the right to serve all the customers in a municipality, referred to as ‘‘franchise competition.’? The municipalities claim that the utility has misused its monopoly power and the system of dual regulation. The trial court found that by seeking and permitting the wholesale rates to be higher and out of balance with lower retail rates, the utility was ‘‘ price squeezing’’ the municipal systems into financial extinction and thereby was setting the stage for acquisition of munici- ipal retail customers as its own. The trial court further found that the utility’s rate program had been supple- mented by threats to the continuation of wholesale power to the municipalities. Further the trial court found that competition had in the past been crippled and some munic- ipal systems had been acquired by the utility. The municipalities contend therefore that the utility has monopolized and attempted to monopolize the distribution and sale of electric power at retail in violation of Section 2 of the Sherman Act. The trial court found that to be the case and assessed treble damages in the amount of $12,148,- 175.11 computed by using as a basis the excess of wholesale rates over retail rates. In addition to the money judgment, the utility was enjoined ‘‘from monopolizing or attempting to monopolize the distribution and sale of electric power,”’ from applying any different standard of energy curtailment on the municipalities than it apples to its own retail eus- tomers, and from charging a wholesale rate in excess of its retail rates unless any disparity is first approved by the federal commission. Some of those background facts will be considered in more detail as the legal issues are individ- ually examined. 13a Opinion of the Court of Appeals (February 21, 1980) APPLICABILITY OF NOERR-PENNiINGTON DOCTRINE The Noerr-Pennington doctrine is an outgrowth of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). It shields from the Sherman Act as a constitutionally protected right of petition a concerted effort to influence public officials, re- gardless of intent or purpose. Thus the utility argues that its wholesale rate filings with the federal commission are within its constitutional right of petition and therefore immune from the Sherman Act. It was said in Noerr, how- ever, that there may be instances of ‘‘mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.’’ 365 U.S. at 144, 81 S.Ct. at 533. The ‘‘mere sham’’ exception standing alone does not apply to this case. The trial court did not find that the federal tariff filings were ‘‘mere sham,’’ but found instead that the utility filed for the highest rate it thought it could justify without any regard for the adverse competitive impact the new wholesale rate would have on the utility’s wholesale municipal customers in competition with the utility at retail. The trial court found that to be a violation of Section 205 of the Federal Power Act,’* as interpreted in Federal Power Commission v. Conway Corp., 426 U.S. 271, 96 S.Ct. 1999, 48 L.Ed.2d 626 (1976). Conway notes that Section 205(b) forbids a utility from granting any undue preference, subjecting anyone to any undue prejudice or disadvantage or maintaining any unreasonable differences in rates or service between classes of services. The federal commission was found to have jurisdiction to 12. 16 U.S.C. § 824d. l4a Opinion of the Court of Appeals (February 21, 1980) weigh and correct discriminatory effects in rate proceed- ings. There isa utility responsibility to avoid unreasonable differences in rates between classes of service. In some contrast to that limited Conway finding is the trial court’s broader view that all of the utility’s acts and practices as a whole, its wholesale rate structure together with its statements threatening the power supply of the municipalities, its expressed preference in favor of its own retail customers and its policy of acquiring municipal dis- tribution systems in distress, evidenced a specific intent to capitalize on and increase its monopoly power at the ex- pense of the municipalities. The Noerr-Pennington doctrine underwent some modifi- cation in California Motor Transport Co. v. Trucking Un- lamited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). In that litigation between groups of competing highway car- riers, it was charged that one group conspired to monopolize the transportation of goods by instituting various state and federal proceedings in agencies and courts to resist and defeat applications by the other group to acquire or trans- fer operating rights. The Court discusses the ‘‘sham’’ ex- ception and its possible variations. The Court held that the conspirators sought not ‘‘to influence public officials,’’ but to bar their competitors from meaningful participation in the decision-making process. Jd. at 512, 92 S.Ct. at 612. The Court recognized that the allegedly conspiring group had a first amendment right of petition to be heard in agen- cies and courts in opposition to their competitors’ applica- tions, but that that right did not necessarily give the con- spirators immunity from antitrust laws. The Court further noted that first amendment rights are not immunized from regulation when used to violate a valid statute. Jd. at 514, 92 S.Ct. at 613. First amendment rights, the Court further explained, are not to be used as a means or pretext for achieving ‘‘substantive evils,’’ and ‘‘[i]f the end result is 15a Opinion of the Court of Appeals (February 21, 1980) unlawful, it matters not that the means used in violation may be lawful.’’ Jd. at 515, 92 S.Ct. at 614. One claim ... may go unnoticed; but a pattern of base- less, repetitive claims may emerge which leads the fact- finder to conclude that the administrative and judicial processes have been abused. That may be a difficult line to discern and draw. But once it is drawn, the case is established that abuse of those processes pro- duced an illegal result, viz., effectively barring respond- ents from access to the agencies and courts. Insofar as the administrative or judicial processes are in- volved, actions of that kind cannot acquire immunity by seeking refuge under the umbrella of ‘political ex- pression.’ Petitioners, of course, have the right of access to the agencies and courts to be heard on application sought by competitive highway carriers. That right, as indicated, is part of the right of petition protected by the First Amendment. Yet that does not necessarily give them immunity from the antitrust laws. Id. at 513, 92 S.Ct. at 613. In an opinion in which he concurred on other grounds, Justice Stewart, joined by Justice Brennan, declared the majority opinion in California Motor Transport to be a retreat from Noerr. Id. at 516, 92 S.Ct. at 614. It appears to us that the municipalities are not barred by Noerr-Pennington in the particular circum- stances. Were we to view it otherwise, the federal and state regulatory processes would provide the utility with a method of effectively advancing its illegal monopolistic pur- poses while maintaining an outward appearance of total innocence and shielded from the Sherman Act. The utility violated the Federal Power Act, at least by its own admis- sion in failing to weigh in advance the discriminatory ef- l6a Opinion of the Court of Appeals (February 21, 1980) fects of its differences in wholesale and retail rates. The utility was able to set its own wholesale rates for lengthy periods of time without regulatory interference. Before a prior wholesale rate had been adjudicated, the utility would, during the intervening period, file a new and higher super- seding wholesale tariff which likewise automatically went into effect before adjudication. Later, whenever the fed- eral commission managed to review a prior outdated tariff, it was found to be excessive and was reduced. No utility wholesale tariff yet filed by the utility has avoided reduc- tion by the federal commission. When federal regulation actually occurs, the abuse is mildly remedied by refunds. Meanwhile, the victim municipalities have been continually living with unregulated wholesale rates. That continuing situation appears to us to be an abuse of the administrative process tending to produce, with the other conduct of the utility, an illegal result. As in Cali- fornia Transyort, the municipalities as utility competitors are being denied effective access to timely consideration by the federal commission by the maneuverings of the utility. Fair and effective access to the regulatory process is vital to the existence of the municipal systems. The utility’s ac- tions, akin to those in California Transport, should not be permitted to ‘‘acquire immunity by seeking refuge under the umbrella of ‘political expression.’ ’’ Jd. at 513, 92 S.Ct. at 613. The utility cannot be heard to say that it does not know its wholesale rates will have an impact on the munic- ipalities in their retail competition. The dual regulatory process is being taken undue advantage of by the utility, thwarting the intended balance of federal and state regula- tion. The additional actions of the utility in threatening the continued future wholesale supply of the municipalities and expressing an intention to prefer its own retail customers over its wholesale municipal customers adds to the uncer- l7a Opinion of the Court of Appeals (February 21, 1980) tain plight of the municipal systems. That the utility threats were politely interlaced with unrealistic alterna- tives for sources of power suggested by the utility does not change their import. The evidence explored the possibili- ties of the municipalities avoiding the monopoly impact by constructing their own generating systems. It was found not to be economically feasible for the municipalities singly, nor even jointly to generate their own power in less than five years. Interconnecting and wheeling from other sources were considered, but no feasible municipal solution could be found. Utility monopoly power over the municipalities appears to be effective and complete. It is difficult to un- derstand how the utility argument, which it advances in justification, that it would conserve its possibly scarce pow- er by converting municipal retail customers into its own retail customers would remedy any power shortage. The utility deserves no credit for originality in these maneuvers. One commentator notes that it is not an un- common practice for a private electric company to refuse to sell bulk power to a municipally owned system because of competition from local distributing companies.’® An- other notes that a monopolist can evade regulation with ease by use of a ‘‘price squeeze.’’™ The utility in the past has shown some appetite for ae- quiring faltering municipal systems. The trial court in its opinion took note that the utility has had a policy of taking over municipal electric utilities and since 1957 had pur- chased or leased five in the area thereby converting munic- ipal retail customers into its own. Considering the combination of those utility activities this case is not precluded by Noerr-Pennington. 13. Comment, supra note 8, at 410. 14. Note, Refusals to Deal by Vertically Integrated Monopolists, supra note 8, at 1758. 18a Opinion of the Court of Appeals (February 21, 1980) THE ‘‘PRICE SQUEEZE”? CHARGE One of the principal issues of this case is the finding that the utility violated Section 2 of the Sherman Act by creating and maintaining a ‘‘price squeeze.’’ The utility disputes the legal and factual basis for that determination. First, the utility charges the trial court left ‘* price squeeze”’ undefined, but that even so there was no showing of a price squeeze or of an intent to create one. That the trial court did not specifically define ‘‘price squeeze”’ is not surprising as the parties used the term with familiarity throughout the proceedings, although they now differ about its application. The fault lies, if there is any, the utility argues, with the diverse regulatory procedures which preclude parity be- tween wholesale and retail rates. There is some substance to the utility regulatory argu- ment. As we have already noted, the wholesale rates under federal control go into effect automatically without agency approval, but the state retail rates must await state ap- proval. Behind the rate applications there are differing regulatory procedures, differing tests and standards to be applied, and differing accounting principles to be used in the computations. At best, a utility may find itself in a legal and practical maze, but for price squeezing the dual system also offers an obvious, ready made illegal opportu- nity with a legitimate gloss. The utility strongly argues that no ‘price squeeze’’ in- tent was shown as the court relied on the wrong retail rates for comparison with wholesale rates to find a disparity. The trial court compared the rates, wholesale and retail, actually in effect under dual regulation at a particular time. The utility urges that the retail rates which should have been used for the analysis were the proposed retail rates which the utility was seeking from time to time pending state approval. If proposed retail rates had been used, the utility argues, the retail rates would have been in excess of 19a Opinion of the Court of Appeals (February 21, 1980) wholesale rates and the municipalities would have shown a net benefit. The proposed retail rates not in effect reflect its intent, the utility claims, not the actual rates subsequent- ly fixed by the state. The trial judge looked at the approved retail rates actually in effect, not at what the utility claimed the rate should be in the future. It is apparent from this case that a higher rate is often- times sought which cannot be justified. To ask for more than one actually expecis to receive is not an uncommon technique, usually with the hope that, even when discounted, the final amount will be greater than what would have re- sulted from a more realistic initial request. We see no need to make possibly unrealistic rate requests even more useful to a utility by converting those requests into self- serving measurements of intent for price squeeze purposes. The federal commission for its purposes, which to some extent are different than ours, has recently changed its view. In Missouri Power Company, FERC Opinion No. 31, 16 F.P.S. 5 265 (1978), the federal commission abandoned its prior holding in Boston Edison Co., FPC Opinion No. 809 (1977), to the effect that the retail rate as filed could be used for comparison with the wholesale rate. Missouri Power holds that intent is irrelevant and that the retail rates actually in effect will be used for comparisons. The utility argues that the trial judge has done the same thing for antitrust purposes and in effect has held that intent is not a price squeeze necessity. We do not see the trial judge’s decision that way. We are considering a ‘‘price squeeze’’ allegation, but that is not all we are considering. The ‘‘price squeeze’’ is only a part of the utility’s conduct which as a whole was found to violate the Sherman Act. In his findings, the trial judge found that the utility had never adopted a policy that its wholesale rate filings should be tailored to prevent its wholesale rates from being higher than its actual retail rates in effect. Further, the court 20a Opinion of the Court of Appeals (February 21, 1980) found that the utility offered no evidence to justify the dis- parity in wholesale and retail rates nor did the utility ever seek to lower wholesale rates to parity with retail rates. Moreover, the court found that the utility monitored the operations of its wholesale municipal customers and ag- gressively pursued acquisition of faltering municipal util- ities. The utility recognized, the court found, that profit- able and efficient municipal utilities did not represent likely prospects for purchase. The utility remains interested in acquisitions the court found. It also found that the utility was aware of the importance of rate comparisons by munic- ipal voters considering the possible sale of their municipal utility. And, as might be expected, the court also found that the utility realized that its wholesale rates would in- evitably affect the municipal retail rates. The trial court determined that a Section 2 Sherman Act violation had been established when monopoly power was shown, even though lawfully acquired, along with only a general intent to abuse that power resulting in injury to the municipalities. Sargent-Welch Scientific Co. v. Ventron Corp., 567 F.2d 701 (7th Cir. 1977), cert. denied, 439 U.S. 822, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). The utility argues, however, that to prevail the municipalities must establish ‘‘predatory’’ practices. The trial court went further, how- ever, holding that even if specific intent were required, the evidence met that standard. The trial court inferred util- ity intent to impair plaintiffs’ competitive ability and the desire to preserve and expand its own existing monopoly from a corisideration of the evidence in its entirety, includ- ing in general the continuing wholesale and retail rate dis- parity, threats to the municipal wholesale power supplies, and the utility policy of acquisition of municipal systems. In Sargent-Welch, we relied on United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236 (1948). In Griffith, it was held that it is not always necessary to 21a Opinion of the Court of Appeals (February 21, 1980) find specific intent lest it crippled the Sherman Act. Id. at 105, 68 S.Ct. at 944. In the particular circumstances, how- ever, of a regulated utility struggling with dual regulation, bearing in mind that the utility is entitled to recover its cost of service and to provide its investors with a reason- able rate of return, we believe that something more than general intent should be required to establish a Sherman Act violation. The utility charges that the trial court in fact read the requirement of any intent out of the Sherman Act. We disagree. The trial court discerned from a con- sideration of all the evidence of the utility’s activities, not only a general intent which it considered to be adequate, but also a specific utility intent to serve its monopolistic pur- poses at municipal expense. We concur in that assessment of the evidence as a whole. In this case, we are considering an industry subject to both federal and state regulation. However, we do not be- lieve that that circumstance justifies an antitrust exemption on the basis that the utility is acting pursuant to mandates by a federal or state controlling body as urged by the util- ity in reliance on Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The evidence shows, the utility argues, that but for the state action in reducing the pro- posed retail rates there would have been no price squeeze. Parker v. Brown is inapposite. In that case a California producer of raisins brought suit in federal court to enjoin enforcement of a state agricultural proration program be- cause it allegedly violated the federal antitrust laws. The Court assumed that the program would violate the Sherman Act if it were organized and operated by private persons, but held that the Sherman Act’s purpose was not to restrain a state or its agents from activities directed by its own legislature. In contrast, it was pointed out, however, that a state cannot grant Sherman Act immunity by authorizing someone else to violate the Act, or by declaring other pre- 22a Opinion of the Court of Appeals (February 21, 1980) vious actions to be lawful. Id. at 351, 63 S.Ct. at 313. In the present case, Indiana and Michigan have not in any way attempted to create, approve or mandate a Sherman Act violation, nor has the federal agency. The utility has no basis to immunize its own activities with any Parker v. Brown type of exemption. Among other things the court found that the utility unlawfully jeopardized the supply of municipal wholesale power. The utility attacks that finding on several grounds. The utility argues that it could not terminate wholesale service without the approval of the commissior and it had never sought that approval. Nor did it have any obligation, it argues, to contract to supply municipalities with unlim- ited power in perpetuity. That those arguments may be factually correct does not change the impact of those utility warnings on the municipalities when considered in the con- text of all the evidence. There was no realistie substitute source of wholesale power for the municipalities to turn to. The utility warnings alone would not constitute an illegal act, but in the context of the whole case the utility threats may be seen in a different light. They appear to be another element of the utility’s monopoly enhancement program. Similar warnings of power curtailment were not given by the utility to its own retail customers nor to municipalities which were not the utility’s wholesale customers and in which the utility had retail customers. It was not shown how conversion of municipal retail customers to utility re- tail customers would conserve power. We see no need to set forth here in detail the evidentiary basis of the trial court’s findings with which we are in accord. 23a Opinion of the Court of Appeals (February 21, 1980) OTHER LEGAL ISSUES The municipalities had the burden of showing inju- rious anticompetitive conduct by the utility in violation of the Sherman Act in order to be entitled to treble damages under Section 4 of the Clayton Act, 15 U.S.C. § 15; Peller v. International Boxing Club, 227 F.2d 593 (7th Cir. 1955). The district court found that the utility and the municipal utilities competed for individual customers some of whom had the option of locating in the municipal area, or relocat- ing outside the area, or expanding. The court likewise found some competition in adjacent areas where the cus- tomer might have a choice, and also in areas into which the municipal utility might expand. There was also evidence of competition for established customers of the utility with- in the municipal area. The competition which the court found most significant, however, was franchise competition, that is, that the utility competed to acquire or replace the municipal distribution systems so as to become the retail supplier of their customers. The evidence shows in vary- ing degrees what the competition was for the various eat- egories. The finding of franchise competition is based on a history of acquisitions and leases of municipal systems by the utility beginning in 1957. There were also utility attempts to acquire certain municipal systems and also in- terest expressed by the utility in acquiring others in the relevant service area extending into 1977. Those findings are disputed. The utility argues that the takeovers were all ap- proved and in the public interest. It was the trial court’s view that the utility’s use of the diverse rate regulation structure and its other acts contributed to a municipal sys- tem’s vulnerability to utility takeover. Mere acquisition would not necessarily constituie a violation, but the viola- tion was found to come from the anticompetitive practices of the utility as a whole which helped produce the acquisi- | * | 24a Opinion of the Court of Appeals (February 21, 1980) tion opportunities. We believe the trial court was justified in coming to those conclusions based on the evidence and the reasonable inferences to be drawn therefrom. The trial court found that competition had suffered anti- trust injury in various ways. The municipalities had to increase their retail rates in some eases absorb portions of the increases without passing them on. Overall, the munic- ipalities were impaired in their ability to offer competitive rates and service to present and potential customers, and, in addition, municipal citizens were deprived of the full benefits normally expected to be derived from the opera- tion of their own facilities. The threats to power supply, it was found, inhibited growth and the attraction of new business ventures into their areas. We are not prepared to set those findings aside as clearly erroneous. The utility would have us consider each separate aspect of its conduct separately and in a vacuum. If we did, we might agree with the utility that no one aspect standing alone is illegal. It is the mix of the various ingredients of utility behavior in a monopoly broth that produces the un- savory flavor. We have recognized previously that ‘[t]here are kinds of acts which would be lawful in the absence of monopoly but, because of their tendency to fore- close competitors from access to markets or customers or some other inherently anticompetitive tendency, are unlaw- ful under § 2 if done by a monopolist ....? Sargent-Welch, 567 F.2d at 711-12. Injury need not be conclusively shown, but the evidence must be sufficient to sustain the inference of injury to some extent. Zenith Radio Corp v. Hazeltine Research, Inc., 395 U.S. 100, 114, 89 S.Ct. 1562, 1571, 23 L. Kd.2d 129 (1969). We believe that standard has been satis- fied here. The possibility of refunds if the wholesale rate is determined to be too high is not a complete cure for the illegal activities of the utility. 25a Opinion of the Court of Appeals (February 21, 1980) DAMAGES In awarding damages to the municipalities the trial court relied upon the analysis of monopolistic overcharges set forth in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 489, 88 S.Ct. 2224, 2229, 20 L.Ed.2d 1231 (1968), and found that the evidence established ‘‘two kinds’’ of monopolistic overcharges. First, the court found that the utility had charged the municipalities wholesale rates from 1972 to 1976 which were subsequently held to be unjust and unreasonable by the Federal Energy Regulatory Com- mission. Second, the court found that the municipalities had been overcharged by the amount the wholesale rates charged them exceeded the amounts which they would have been charged under the utility’s retail rates actually in ef- fect. The court proceeded to award damages based solely on a tripling of the difference between the higher wholesale rates paid by the municipalities and the lower retail rates which the ui lity actually charged its retail customers for the period from August 1976 through August 1978. Treble damages were found to exceed twelve million dollars. No other factor entered into the computation. The formula used by the trial court is recommended by its simplicity, but the computation of damages should not be expected to be quite that much easier than the rest of this case. While the municipalities argue that there is no other way to determine their damages, we are not satisfied that this is true. We recognize that the burden of proof of the munici- palities as to the amount of damages is less than that re- quired for proof of antitrust injury. It need not be precise. A just and reasonable estimate of damage based on relevant data may suffice even if also based upon probable or in- ferential proof. This standard does not, however, permit speculation or guesswork even though the defendant by its 26a Opinion of the Court of Appeals (February 21, 1980) own wrongdoing has made precision impossible. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. at 123-24, 89 S.Ct. at 1576-77 ; Bigelow v. RKO Pictures, Inc., 327 US. 291, 264, 66 S.Ct. 574, 579, 90 L.Ed. 652 (1946). The municipalities rely on Hanover Shoe, supra, both to support the trial court’s findings of injury and also to estab- lish a formula for determining the amount of the damages. Particularly, they rely, as did the trial court, on the follow- ing quotation from Hanover Shoe: |W ]hen a buyer shows that the price paid by him for materials purchased for use in his business is illegally high and also shows the amount of the overcharge, he has made out a prima facie case of injury and damage within the meaning of § 4. 392 U.S. at 489, 88 S.Ct. at 2229. In our view, Hanover Shoe is not fully applicable in either regard in the circumstances of this case, where the defendant is subject to dual regula- tion and any overcharge in wholesale rates later found to exist by the federal commission is to be refunded with 9% interest. As an initial matter, assuming arguendo that the Han- over Shoe monopolistic overcharge analysis is fully ap- plicable to the facts of this case, we find no justification for the trial court’s determination that the difference between the wholesale rates in effect prior to commission review and the retail rates actually charged is an accurate measure of the overcharge. As we have already observed, the state and federal regulatory schemes to which the utility is sub- ject utilize different accounting practices, as well as differ- ent formulae and criteria for determining what are fair and reasonable rates. Moreover, in all likelihood, the utility has dissimilar fixed and variable cost requirements which it must seek to cover in its respective wholesale and retail rates. Under these circumstances, we find the trial court’s 27a Opinion of the Court of Appeals (February 21, 1980) apparent assumption that, absent the monopolistic over- charge, there would be equivalent wholesale and retail rates actually in effect and that the monopolistic overcharge was therefore the difference between the unreviewed higher wholesale rates and the approved retail rates to be totally without foundation.” Assuming that an overcharge analysis is determinative of the measure of damages in this case, we conclude that the overcharge which the utility has received by its unilateral imposition of excessive wholesale rates prior to federal reg- ulatory review is, more accurately, the amount which the federal commission ultimately orders refunded based on its determination that the wholesale rate charged was un- reasonable and excessive. In recommending this method for calculating the overcharge, we recognize that the com- putation of antitrust damages is uniquely within the prov- ince of the federal courts. Conceivably, we could remand this case to the district court for a determination of that portion of the utility’s wholesale rate filings which is unreasonable and excessive. However, such a procedure might entail needless duplica- tion of effort by the district court where the federal com- mission is both already in the process of making the iden- tical determination and has substantially greater expertise in the area. It is clear after Conway, moreover, that the federal com- mission is required to consider any anticompetitive price squeeze resulting from jurisdictional whujesale rates and non-jurisdictional retail rates in fixing rates for interstate 15. The apparent lack of foundation for this assumption is con- firmed by the fact that for the period 1972-1976, after the utility’s wholesale rates were reviewed by an ALJ for the federal commission and found to be excessive, the ultimate adjustment reached by the utility and the municipalities was such that the aggregate amount paid by the municipalities under the wholesale rates was substantially less than the amounts they would have paid under the utility’s retail rates. 28a Opinion of the Court of Appeals (February 21, 1980) wholesale sales, Given these considerations, we would con- clude that the commission’s ultimate refund is the most ac- curate measure of the overcharge which the utility has been able to gather as a result of its unlawful activities.’° On the other hand, if it does not desire to await a determination by the federal commission, the court might properly con- sider the overcharge which the commission found for the period 1972-1976 and endeavor to estimate the probable overcharge for the later period. More fundamentally, however, we find the trial court’s and the municipalities’ reliance upon the Hanover Shoe overcharge analysis to be unsupportable in the instant case. In Hanover Shoe, a shoe manufacturer prevailed on its claim that its supplier, a manufacturer of shoe-making machinery, had monopolized the shoe machinery industry and that the policy of exclusively leasing, rather than sell- ing, the machinery was an instrument of the monopoliza- tion. Damages were awarded on a tripling of the difference 16. In this court’s earlier decision, we noted the possibility that a utility’s retail rates might be set so low that the commission would be without authority to correspondingly set the jurisdictional whole- sale rate sufficiently low to eliminate the price squeeze. 560 F.2d at 1323. This problem arises because the commission is without power to set wholesale rates below the lower boundary of the zone of reason- ableness and has no authority over the retail rates. Jd. at 1319. As- suming such possibility were present in this case, the ultimate refund awarded by the commission might not be equivalent to the utility’s monopolistic overcharge. There is no indication, however, that this is such a case. There is no suggestion that the utility deliberately depressed its retail rates to create a price squeeze; in fact, a substantial portion of the disparity between the utility’s retail and wholesale rates apparently arises from the fact that the utility did not receive favorable consideration by the state commissions on several of its retail rate filings. Under such circumstances, we would have great difficulty concluding that the utility is to be held accountable for any “overcharge” in its wholesale rates beyond the refund awarded by the commission. Anticompetitive effects from this portion of the price squeeze, absent evidence that the utility deliberately depressed its retail rates, must be attributed to the state regulatory commissions and not to the utility. 29a Opinion of the Court of Appeals (February 21, 1980) between what the manufacturer had to pay in rentals and what it would have paid had its supplier been willing to sell the machines. The monopolistic ‘‘overcharge’’ in I1anover Shoe was recoverable solely because the plaintiff had suc- cessfully proven its antitrust charges: absent the antitrust action, the plaintiff would have ’ontinuously suffered the overcharge arising from the defendant’s abuse of its mo- nopolistic position. Unlike Hanover Shoe, the utility here is not in a position to indefinitely retain the proceeds of any excessive whole- sale charges. The commission is required by statute to de- termine whether the utility’s filed wholesale rates are fair, just and reasonable. 16 U.S.C. § 824d(a). If it finds the filed wholesale rates to be excessive or unreasonable, the commission requires the utility to refund to its wholesale customers the exact amount which it has charged and col- lected in excess of that determined to be just and reasonable. These refunds include interest on the excess at the rate of 9%. Thus, the federal regulatory statute provides the mu- nicipalities with a system by which the utility’s overcharges are automatically and necessarily restored to them with interest. Given this federal regulatory system which is designed to curb the utility’s abuse of its monopoly power and which guarantees ultimate restoration to the wholesale customers of the ‘‘overcharge’’ unlawfully extracted from them, we are not convinced that the utility’s temporary monopolistic overcharge is an accurate measure of the antitrust damages which the municipalities have endured. Rather, under the sui generis circumstances of this case,'’ we believe that the 17. Amici Commonwealth Edison Co. and the Edison Electric In- stitute, relying primarily upon JCC v. United States ex rel. Campbell, 289 U.S. 385, 53 S.Ct. 607, 77 L.Ed. 1273 (1933), argued that this case should be analogized to a “price discrimination” rather than an “overcharge,” and that antitrust damages should consequently be (footnote continued on next page) 30a Opinion of the Court of Appeals (February 21, 1980) municipalities must establish their antitrust damages by proof of specific injuries they have suffered as a result of the utility’s overcharges and other monopolistic practices. This conclusion by no means narrowly limits the munici- palities’ ability to establish damages. Insofar as they have suffered injury in their ‘‘franchise competition’’ with the utility, the municipalities may be able to demonstrate, for example, that the 9% rate of interest fails to make them whole for the loss of the use of the monies which they were overcharged, or that the excessively high wholesale rates forced them to forego altogether or to secure less favorable terms for capital improvements to expand their municipal distribution facilities or to replace obsolete equipment, ete. Insofar as the municipalities have been injured in their ability to compete directly with the utility for the provision of service to retail customers in areas of overlapping ser- vice, the municipalities may be able to show a loss of cus- tomers, revenue and profits. Our discussion here is not meant to be exhaustive, but merely to illustrate that the measured by the municipalities’ business loss rather than by the dif- ference between retail and wholesale prices. Review of the cases cited by Amici, however, provides scant guidance in the instant situation. Campbell involved a shipper's effort to mandamus the Interstate Commerce Commission, where the Commission had refused to award the shipper damages in a situation where the shipper had paid rates determined by the Commission to be reasonable in amount but which, at the same time, were discriminatory. Under these circumstances, the Supreme Court distinguished between the damages arising from an overcharge and a discrimination: “When discrimination and that alone is the gist of the offense, the difference between one rate and another is not the measure of damages suffered by the shipper.” 289 U.S. 389, 53 S.Ct. 609. Apart from the fact that Campbell did not arise under the antitrust laws, we do not find its analysis helpful here where the utility can (and did) unilaterally impose excessive whole- sale rates, subject to future commission review and future refunds, in an effort to monopolize the distribution of power in its service area. No case cited by either party or any amicus provides substantial insight into how antitrust damages should be measured in this context of dual regulation of the utility’s wholesale and retail rates. dla Opinion of the Court of Appeals (February 21, 1980) municipalities on remand must introduce proof of damages which were caused by the utility’s monopolistic conduct. We also find that the municipalities are entitled to re- cover, as part of their antitrust damages, the expenses they incurred in litigating before the commission in their attempt to prevent the utility’s withdrawal of their wholesale supply as had been threatened. The litigation expenses sought are not for opposing utility rate applications. In the context of this antitrust violation, we do not believe that to allow litigation expenses to the municipalities for efforts to counteract the threats and to protect their municipal sys- tems runs afoul of Noerr-Pennington as claimed by the utility. It was not the utility petitioning for its own lawful purposes. It was the municipalities petitioning to prevent the utility’s allegedly unlawful conduct. Support for our award of these litigation expenses as a portion of antitrust damages may be found in this court’s earlier decisions awarding litigation expenses undertaken in defense of patent infringement litigation as an element of antitrust damages. In Dairy Foods, Inc. v. Dairy Maid Products Cooperative, 297 F.2d 805, 808-09 (7th Cir. 1961), we held that, where a patent ‘‘infringement suit was brought as part of and in furtherance of a combination and conspiracy which violates the antitrust laws and results in injury’’ such that the defendant was put to the choice of (1) foregoing use of the patented device, (2) accepting a discriminatory and restrictive license which increased the cost of production, or (3) defending expensive patent litiga- tion, the cost and expense of defending the suit was a com- ponent of antitrust damages which could be trebled. See also Locklin v. Day-Glo Color Corp., 429 F.2d 873, 878 & n. 13 (7th Cir. 1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 082, 27 L.Ed.2d 632 (1971); Hazeltine Research, Inc. v. Zenith Radio Corp., Inc., 388 F.2d 25, 35 (7th Cir. 1967), aff’d m part and rev’d in part, 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). 32a Opinion of the Court of Appeals (February 21, 1980) Similarly, in this case, the trial court found that the municipalities had no choice but to file an administrative action before the commission to prevent the loss of their wholesale power source and to establish their right to equal treatment with the utility’s retail customers whom the utility had indicated would receive preferences. Under these circumstances, we find no merit in the utility’s con- tention that the cases discussed above should be narrowly limited to situations where the prevailing antitrust plaintiff had been forced to defend patent infringement litigation. Accordingly, we vacate the award of damages and re- mand to the district court for such further proceedings as may be necessary to determine the municipalities’ damages. Whereas the trial court earlier found damages with refer- ence only to the period from August 1976 through August 1978, on remand the court may conside: damages suffered during the period covered by the complaint in which the utility’s unlawful activities occurred. On remand, the court shall also consider whether any portion of the municipal- ities’ damages is barred as a result of the negotiated settle- ment reached by the municipalities and the utility with re- spect to the utility’s wholesale rate schedule for the period from January 13, 1973 to July 27, 1976. INJUNCTIVE RELIEF In Mishawaka I, we anticipated the injunctive relief per- mitted under Section 16 of the Clayton Act, 15 U.S.C. § 26, provided it would not interfere with rates approved by the commission, cause conflict or preempt commission jurisdic- tion. That is not an easy task. The courts should not be in the rate fixing business. The court, however, is faced with indefinitely permitting a price squeeze or trying to cause some adjustment of the rates. As was argued in Mishawaka I, delay to determine what rates may be finally approved 33a Opinion of the Court of Appeals (February 21, 1980) by the commission may only result in authorizing ‘‘refunds to a corpse.’’ Even though the commission cannot afford complete antitrust relief, we repeat our expressed thoughts in Mishawaka I that though a stay of further proceedings need not be granted, the district court remains free to de- termine anew, in view of the substantial amount of time which has now passed in this litigation, whether or not in the immediate circumstances it may be beneficial to await and ascertain particular commission action in order to de- cide the exact scope of antitrust damages, or for other purposes. The trial court in its Judgment Order enjoined the utility in various respects to which the utility objects.’* The in- 18. The Judgment Order in pertinent part provides: 2. Defendants American Electric Power Company, Inc., American Electric Power Service Corporation, and Indiana & Michigan Electric Company, their officers, agents, successors and all persons acting in concert with them are hereby enjoined from monopolizing or attempting to monopolize the distribution and sale of electric power at retail within defendant I&M’s service area or within any of the plaintiff municipalities, in violation of 15 U.S.C. §2. 3. Defendant Indiana & Michigan Electric Company, its offi- cers, agents, successors and all persons acting in concert with it, are hereby enjoined from discriminating against 1&M’s wholesale municipal customers in rates, terms, or conditions of service ; from taking any action that will have the effect of singling out [&M’s wholesale municipal customers for the purpose of indicating di- rectly or indirectly that the continuity of service for only that class of customers may be in jeopardy or that the supply of electric power and energy to those municipal utilities and their customers may be curtailed on different terms from those applied to [&M’s retail customers; and from failing to perform I&M’s obligation to serve each of the plaintiffs, as well as its other customers, fairly, equitably and on a nondiscriminatory basis as long as I&M conducts a public utility business in their area. 4. Defendants American Electric Power Company, Inc., and American Electric Power Service Corporation, their officers, agents, successors and all persons acting in concert with them, (footnote continued on next page) 34a Opinion of the Court of Appeals (February 21, 1980) junction was drafted by municipal counsel and issued by the trial court without the benefit of a hearing as to its nature and scope. Particularly in the circumstances of this case we believe a hearing would have been beneficial. We agree with the utility that paragraph 2 of the injunction is too vague to identify any specific activity which may be subject to the contempt power. Paragraph 2 merely incorporates the broad language of Section 2 of the Sherman Act. Rule 65(d), Fed.R.Civ.P., provides that every injunction shall be specific in its terms and shall de- scribe in reasonable detail the acts sought to be restrained. The standard established by Rule 65(d) ‘‘is that an ordi- nary person reading the court’s order should be able to as- certain from the document itself exactly what conduct is are hereby enjoined from discriminating or causing I&M to dis- criminate against 1&M’s wholesale municipal customers in rates, terms, or conditions of service; from taking any action that will have the effect of singling out I&M’s wholesale municipal cus- tomers for the purpose of indicating directly or indirectly that the continuity of service for only that class of customers may be in jeopardy or that the supply of electric power and energy to those municipal utilities and their customers may be curtailed on different terms from those applied to I&M’s performance of its obligation to serve each of the plaintiffs, as well as I&M’s other customers, fairly, equitably and on a nondiscriminatory basis as long as I&M conducts a public utility business in their area. 5. In preparing and filing new wholesale rates for electric service to any of the plaintiff municipalities, the defendants (1) shail project the billing determinants for each plaintiff for the first year the new wholesale rate will be in effect, as requested by 1&M's wholesale rate filing, and (2) shall compare the projected billings to each plaintiff under the proposed wholesale rate against the amount that plaintiff would pay under I&M’s retail rates in effect at the time the wholesale rate is filed. The defendant I&M is enjoined from putting into effect or charging any of the plaintiffs a wholesale rate under which the projected billings to any plaintiff exceed the amount that plaintiff would pay under I&M’s retail rates in effect at the time the wholesale rate is filed, unless and until the Federal Energy Regulatory Commission de- termines that that wholesale rate is just and reasonable. 35a Opinion of the Court of Appeals (February 21, 1980) proscribed.’’ 11 C. Wright & A. Miller, /ederal Practice and Procedure § 2955 at 536-37 (1973). To enjoin in the lan- guage of the Sherman Act obviously fails to meet that test. This litigation demonstrates the difficulties of simply applying Sherman Act language to particular cireum- stances. We also agree that portions of paragraphs 3 and 4 of the injunction are properly subject to similar objec- tions. It would be difficult to ascertain in advance, for example, what conduct is proscribed in paragraphs 3 and 4 by the requirement that the utility treat all its customers fairly, equitably and on a nondiscriminatory basis. Paragraph 5 is attacked as being in conflict with See- tion 205 of the Federal Power Act governing rates and charges, as an intrusion by the court into the rate making process and also as being vague in some of its requirements. The thrust of paragraph 5 seems to be to impose certain requirements for new filings and in the meantime to roll back wholesale rates to the same level as the retail rates in effect. Rolling back the present wholesale rate may be seen as some temporary improvement in the rate structure, but unfortunately it is not the result of a knowledgeable effort to tailor the rates to bring them within some zone of reasonableness to achieve fair wholesale and retail competi- tion. See Federal Power Commission v. Conway Corp., 426 U.S. at 278, 96 S.Ct. at 2004. To set wholesale rates and retail rates at the same level for an extended length of time ignores the economic justification for the recog- nized distinction between wholesale and retail. On a short term interim basis to do so may alleviate, but will not solve the problem. Also, it may be, given the differing character- istics of the various regulating bodies, that for some rea- sonable time some excess of wholesale rates over retail rates may be justified in order for the utility to be able to achieve a proper rate balance through the normal func- tioning of the regulating bodies. We believe more flexibil- ity is required in the order so as to permit the utility an 36a Opinion of the Court of Appeals (February 21, 1980) opportunity to justify some short term variations. To require the utility to comply indefinitely with paragraph 5 of the injunction prohibiting it from charging a wholesale rate not actually approved by the federal commission amends the Federal Power Act. It is only the antitrust vio- lation found to exist in this case from a combination of circumstances which justifies temporary control of the wholesale rates by the court. When, however, assuming the absence of other anticompetitive activities, the utility demonstrates a good faith effort to comply with its Conway obligations so as to avoid anticompetitive effects, the court should return rate control to the regulating commissions established respectively by Congress and the state legis- latures for that purpose. It may also be feasible to require the parties to seek ex- pedited consideration of the rate filings from the federal commission and state agencies in view of the existing seri- ous antitrust complications found to exist in the combina- tion of circumstances in this case. Even though Sherman Act jurisdiction lies with the court, there is no prohibition against a common expedited effort by the parties and the other governmental agencies to cooperate and assist each other in an expeditious resolution of these mutual problems. Although the federal and state commissions are not parties to this litigation the court may require those who are parties to seek to bring together cooperative federal and state consideration and solution of these rate problems. The Federal Power Act makes it clear that the federal commission is not expected to function in isolation. Section 209(b), 16 U.S.C. § 824h(b), allows federal and state com- mission cooperation with regard to rate structures and other matters. Other sections of the Act also anticipate a working federal-state relationship." Conway Corp. v. Fed- i9. For example, section 311, 16 U.S.C. § 825j, pertains to inves- tigations of matters, in this case retail rates, not subject to federal jurisdiction, and section 202(a), 16 U.S.C. § 824a(a), provides for notice to state commissioners. 37a Opinion of the Court of Appeals (February 21, 1980) eral Power Commission, 167 U.S.App.D.C. 43, 51, 510 F.2d 1264, 1272 (D.C.Cir. 1975), aff'd, 426 U.S. 271, 96 S.Ct. 1999, 48 L.Ed.2d 626 (1976). It may be, pending some congres- sional or legislative adjustment in procedures, that only through an expeditious and cooperative effort by the fed- eral and state agencies to apply their expertise to this type of problem will the present regulatory systems have any reasonable chance of success. The injunction is vacated and upon remand the trial court may, after hearing, devise a more specific injunction being careful not to encroach any further on the rate mak- ing process than may be temporarily required by antitrust considerations. As we have already noted, the injunction was issued by the trial court without the benefit of a hear- ing. Therefore the ramifications and complications of the injunction are not explored in the record. We believe a hearing on the injunction will be most helpful to the trial court. We do not intend to inhibit or confine the trial court merely to some modification of the present injunction. It is expected that a new effort be made to fashion a suitable injunction in keeping with the general principles expressed in Mishawaka I and in this opinion. The trial court is affirmed in part. The damage and injunctive provisions are vacated and remanded for addi- tional proceedings in conformity with this opinion. The parties shall bear their own costs of this appeal. 38a Order on Petition for Rehearing UNITED STATES COURT OF APPEALS For tHE Seventu Circuit Chicago, Illinois 60604 March 31, 1980 Before: Hon. Roserr A. Sprecuer, Circuit Judge Hon. Harutneron Woop, Jr., Circuit Judge . Hon. Huserr L. Wii1, Senior District Judge* Nos. 79-1190, 79-1237 and 79-1354 oe City or Misnawaka, Inprana, ef al., Plaintiffs-Appellees and Cross-Appellants, vs. American Evecrric Power Company, Inc., et al., Defendants-A ppellants and Cross-Appellees. TT Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. 8-74-22, S-75-210, S-77-209 ALLEN Suarp, Judge. * The Honorable Hubert L. Will, Senior District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. 39a Order on Petition for Rehearing On consideration of the petition for rehearing and sug- gestion for rehearing, in banc filed in the above-entitled cause by counsel for the defendants-appellants, no judge in active service has requested a vote thereon,* and all of the judges on the original panel have voted to deny a rehear- ing. Accordingly, Ir Is Orverep that the aforesaid petition for rehearing be, and the same is hereby, Dentep. sage Richard D. Cudahy disqualified himself from any consid- eration of the petition for rehearing in banc filed in the above case. _ — 40a Judgment UNITED STATES DISTRICT COURT For tHe Norruern District or INDIANA Soutu Benp Drvision Consolidated Civil Action Numbers 874-72, 875-210, 877-209 —_—— City or Misnawaka, Inp., Crry or Nigs, Micn., Crry or Cotumsia Crry, Inp., Crry or Biurrton, Inp., Crry or Gar- RETT, Inp., Crry or Gas Crry, Inp., Town or FranxtTon, Inp., Town or Warren, Inpv., Town or New CaRLIsLe, Isp., and Town or Aviuia, Inp. v. AMERICAN ELectric Power Company, Inc., American Execrric Power Service Corporation, and Inpiana & Micuican EL ecrric ComMPAny, eon This action came on for trial before the Court, Honor- able Allen Sharp, United States District Judge, presiding, and the issues having been duly tried and a decision having been duly rendered, It is Ordered and Adjudged the Plaintiffs, Cities of Mishawaka, Ind., Niles, Mich., Columbia City, Ind., Bluff- ton, Ind., Garrett, Ind., Gas City, Ind., and Towns of Frank- ton, Ind., Warren, Ind., New Carlisle, Ind., and Avilla, Ind., recover of the Defendants American Electric Power Com- pany, Inc., American Electric Power Service Corporation, and Indiana & Michigan Electric Company, the sum of 4la Judgment $12,148,175.91, with each of the named municipalities re- ceiving the specific amount set forth in the Judgment Order, in addition to the Injunctive Relief Granren, and the recov- ery of costs by each of the Plaintiffs, including reasonable attorney fees in this case, all in accordance with and as more specifically set forth in the Judgment Order of this Court Enrerep this date, and It Is Further Ordered and Adjudged that the defendant Indiana & Michigan Electric Company take nothing by its First, Second, Third, Fourth or Fifth Counterclaims, and that its Counterclaims be Dismissep on the merits. Dated at South Bend, Indiana, this 30th day of January, 1979. Ricuarp EK. Timmons Clerk of Court by Evcene J. Szynsx1 Kugene J. Szynski Deputy 42a Judgment Order of District Court UNITED STATES DISTRICT COURT NortHerRN Disrricr or INDIANA Soutu Benp Drvision Consolidated Civil Action Numbers 874-72, 875-210, S77-209 _—_—_——— a Crry or MisHawaka, INDIANA Crry or Nites, Micwican Ciry or Cotumsia Crry, Inprana Ciry or Buurrron, Inprana City or Garrett, Inpiana Ciry or Gas Crry, Inpiana Town or Frankton, INDIANA Town or Warren, INDIANA Town or New Caruisiz, INDIANA and Town or Avinua, InpraNna, Municipal corporations, Le] Plaintiff's, v, American Evecrric Power Company, Inc., American Evecrric Power Servicer CorPoRATION, and Iyptana & Micuican Execrric Company, Corporations, Defendants. Pursuant to the Findings of Fact and Conclusions of Law entered this date, 43a Judgment Order of District Court iy Is Heresy Decuarep, Orperep, ApsupGED AND DEoREED : 1, That defendants American Electric Power Company, Inc., American Electric Power Service Corporation, and Indiana & Michigan Electric Company, and each of them, have violated 15 U.S.C. Section 2 by monopolizing and at- tempting to monopolize the distribution and sale of electric power at retail within defendant I&M’s service area and in the plaintiff municipalities. 2. Defendants American Electric Power Company, Inc., American Electric Power Service Corporation, and Indiana & Michigan Electric Company, their officers, agents, suc- cessors and all persons acting in concert with them are hereby enjoined from monopolizing or attempting to monop- olize the distribution and sale of electric power at retail within defendant I&M’s service area or within any of the plaintiff municipalities, in violation of 15 U.S.C. Section 2. 3. Defendant Indiana & Michigan Electric Company, its officers, agents, successors and all persons acting in concert with it, are hereby enjoined from discriminating against I&M’s wholesale municipal customers in rates, terms, or conditions of service; from taking any action that will have the effect of singling out I&M’s wholesale municipal cus- tomers for the purpose of indicating directly or indirectly that the continuity of service for only that class of cus- tomers may be in jeopardy or that the supply of electric power and energy to those municipal utilities and their ecus- tomers may be curtailed on different terms from those ap- plied to I&M’s retail customers; and from failing to perform I&M’s obligation to serve each of the plaintiffs, as well as its other customers, fairly, equitably and on a nondiscrim- inatory basis as long as I&M conducts a public utility busi- ness in their area. 44a Judgment Order of District Court 4. Defendants American Electric Power Company, Inc., and American Electric Power Service Corporation, their officers, agents, successors and all persons acting in concert with them, are hereby enjoined from discriminating or caus- ing I&M to discriminate against I&M’s wholesale municipal customers in rates, terms, or conditions of service; from taking any action that will have the effect of singling out I&M’s wholesale municipal customers for the purpose of indicating directly or indirectly that the continuity of serv- ice for only that class of customers may be in jeopardy or that the supply of electric power and energy to those mu- nicipal utilities and their customers may be curtailed on different terms from those applied to I&M’s direct retail customers; and from interfering with or preventing I&M’s performance of its obligation to serve each of the plaintiffs, as well as I&M’s other customers, fairly, equitably and on a nondiscriminatory basis as long as I&M conducts a public utility business in their area. 5. In preparing and filing new wholesale rates for elec- trie service to any of the plaintiff municipalities, the de- fendants (1) shall project the billing determinants for each plaintiff for the first year the new wholesale rate will be in effect, as requested by I&M’s wholesale rate filing, and (2) shall compare the projected billings to each plaintiff under the proposed wholesale rate against the amount that plaintiff would pay under I&M’s retail rates in effect at the time the wholesale rate is filed. The defendant I&M is en- joined from putting into effect or charging any of the plain- tiffs a wholesale rate under which the projected billings to any plaintiff exceed the amount that plaintiff would pay under I&M’s retail rates in effect at the time the wholesale rate is filed, unless and until the Federal Energy Regulatory Commission determines that that wholesale rate is just and reasonable, 45a Judgment Order of District Court 6. Each of the plaintiffs, City of Mishawaka, City of Niles, City of Columbia City, City of Bluffton, City of Gar- rett, City of Gas City, Town of Frankton, Town of Warren, Town of New Carlisle, and Town of Avilla recover of the defendants American Electric Power Company, Inc., Ameri- can Electric Power Service Corporation, Indiana & Michi- gan Electric Company, and each of them, the following amount, being treble the amount by which I&M’s wholesale charges to that plaintiff during the period August 1, 1976, through August 31, 1978 exceeded the amount the plaintiff would have paid under I&M’s retail rates then in effect: Avilla $ 50,416.50 Bluffton $ 1,937,155.95 Columbia City $ 1,934,730.93 Frankton $ 243,826.14 Garrett $ 635,690.46 Gas City $ 611,686.26 Mishawaka $ 4,027,529.67 New Carlisle $ 103,807.47 Niles $ 2,432,480.31 Warren $ 170,852.22 Tora. $12,148,175.91 7. The plaintiffs have sustained their burden of proof with those elements of a claim under Section 2 of the Sher- man Act as defined by the Court of Appeals im this case, in City of Mishawaka, Indiana et al v. Indiana & Michigan Electric Company et al, 560 F. 2d 1314 (7th Cir. 1977), cert. den. 98 S. Ct. 2274 (1978). 8. Ir Is FurtHer Orperep anp Apgupcep that the de- fendant Indiana & Michigan Electric Company take nothing by its First, Second, Third, Fourth or Fifth Counterclaims, and that its Counterclaims be dismissed on the merits. 46a Judgment Order of District Court 9. Each of the plaintiffs is entitled to recover of the de- fendants its costs of suit, including reasonable attorney fees in this case. In regard to costs and attorney fees, the plain- tiffs shall file full and complete affidavits in regard to the same no later than March 5, 1979, to which the defendants shall respond no later than April 15, 1979. Enter January 30, 1979. /3/ ALLEN SHarp Juper, Unitep Srares Disrricr Courr 47a Memorandum Opinion of the District Court, January 30, 1979 or > ee ——sit—t—t Crry or Misnawaka, Inpiana, Crry or Nixes, Micutaan, Crry or Cotumsia Crry, Inpiana, Crty or Buurrron, InpIana, Crry or Garrett, Inpiana, Crry or Gas Crry, Inprana, Town or Frankton, Inpiana, Town or Warren, Inpiana, Town or New Cak.isie, Inpiana, and Town or Avitia, INDIANA, Municipal Corporations, Plaintiffs, v. American Eectric Power Company, Inc., AMERICAN ELEC- TRIC Power Service Corporation, and Inprana & MICHIGAN Execrric Company, Corporations, Defendants. Nos. S 74-72, S 75-210 and S 77-209. EO United States District Court, N. D. Indiana, South Bend Division. Jan. 30, 1979. Thomas Ewald, Washington, D. C., James J. Olson, Mishawaka, Ind., Theodore L. Bendall, Huntington, Ind., Edward A. Chaphen South Bend, Ind., Gerald M. Stern and David R. Boyd, Washington, D. C., James R. Fleck, 48a Memorandum Opinion of the District Court, January 30, 1979 Columbia City, Ind., John M. Rigby, Niles, Mich., for plaintiffs. Thomas W. Yoder, Fort Wayne, Ind., Peter J. Schle- singer, Dennis G. Jacobs, Lawrence A. Levy, Kenneth R. Logan, Blair C. Fensterstock, and Kathleen Schaaf, New York City, for defendants. MEMORANDUM OPINION ALLEN Suarp, District Judge. This will state the legal basis for the separately entered findings of fact and conclusions of law. Plaintiffs are ten municipalities that operate their own electric utilities pursuant to State statutory authority. Each is located within the service area of defendant Indiana & Michigan Electric Company and each purchases its bulk electric power requirements from I & M. The evidence shows that I & M has a monopoly of retail sales of electric power within its service area, and that the company also controls the supply of electric power to all of the plaintiff municipalities while competing against their municipal elec- trical utilities for the right to serve all consumers within their corporate limits. I & M and the plaintiffs also com- pete for the right to serve individual customers located in or near each town or who might choose to locate either in the town or elsewhere in I & M’s area. The rates the plaintiffs pay I & M for electric service are the wholesale rates unilaterally set by the defendants in I & M’s filings before the Federal Energy Regulatory Com- mission. Under the Federal Power Act, as interpreted by the Supreme Court and the Federal Energy Regulatory Commission, in filing new wholesale rates, I & M must compare those rates against its retail rates, consider their possible anticompetitive impact, and not require any of 49a Memorandum Opinion of the District Court, January 30, 1979 the plaintiffs to pay more at wholesale than it would pay under I & M’s retail rates then in effect without justifying the higher wholesale rates. Defendants have ignored this obligation. Since July 1976, defendants I & M and Amer- ican Electric Power Service Corporation have unilaterally and without justification filed new wholesale rates that have required the plaintiff municipalities to pay over $4 million more than they would have paid under I & M’s retail rates then in effect. The evidence shows that the defend- ants made no attempt to compare their wholesale and retail rates, much less to consider the possible anticompetitive impact of that relationship and try to avoid or at least jus- tify these anticompetitive consequences. All three defend- ants—I & M, the Service Corporation, and their parent, American Electric Power Company, Inc.—have east doubt on the continuity of plaintiffs’ future supply of electric power by attempting to withdraw from the wholesale mar- ket and by seeking to impose time limits on I & M’s obliga- tion to serve plaintiffs and restrictions on the quantity of power they may purchase at current rates. Defendants I & M and Service Corporation also have filed and I & M has charged unjust and unreasonable rates which required the plaintiffs to pay over $1,600,000 in excess of reasonable rates for the period 1973-1976 and required the Cities of Niles and Columbia City to pay a total of over $285,000 more than they would have paid under I & M’s retail rates in effect during that same period. These practices are designed to promote defendants’ policy of taking over util- ities operated by municipalities. Plaintiffs’ consolidated complaint seeks relief from de- fendants’ monopolization of the sale of retail electric power within I & M’s service area and in each of the plaintiff municipalities, in violation of Section 2 of the Sherman Act. The evidence clearly shows that I & M has monopoly power, and that the defendants’ anticompetitive acts tend to 50a Memorandum Opinion of the District Court, January 30, 1979 exclude the plaintiff municipalities from the electric utility business. Damages and injunctive relief are necessary and appropriate. In order to establish a violation of the monopolization provision of Section 2, plaintiffs must demonstrate ‘*the existence of monopoly power, whether lawfully or unlaw- fully acquired, and the general intent to abuse that power.”’ Sargent-Welch Scientific Co.v. Ventron Corp., 567 F.2d 701, 709 (7th Cir. 1977), cert. den. —— U.S. , 99 S.Ct. 87, 98 L.Ed.2d 113 (1978) (Citations omitted). ‘‘A specific intent to monopolize need not be shown to establish the of- fense of monopolization when the monopolist undertakes anticompetitive actions.’? Jd. at 711 (Citations omitted). Nor is it necessary to establish that these anticompetitive actions are ‘‘predatory”’ in nature. In order to recover damages under Section 4 of the Clayton Act, the antitrust plaintiff must demonstrate that he has been injured in his business or property. Id. at 709; see 15 U.S.C. § 15. To obtain an injunction under Section 16 of the Clayton Act, however, the plaintiff need only demon- strate ‘‘threatened loss or damage by a violation of the antitrust laws . .. when and under the same conditions and principles as injunctive relief against threatened con- duet that will cause loss or damage is granted by courts of equity....’? 15 U.S.C. § 26. I. The Court’s initial determination of the issue of mono- poly power controls the standards to be applied thereafter. Where monopoly power is found to exist, a defendant’s conduct is assessed in accordance with the monopolization provision of Section 2. If monopoly power is not proved, a plaintiff must satisfy the more rigorous proof require- ments of the attempt to monopolize provision of Section 2. 5la Memorandum Opinion of the District Court, January 30, 1979 The record demonstrates that defendants possess mo- nopoly power in two respects. First, through defendant I & M, they presently have a monopoly of the retail sales of electricity in the geographic market occupied by I & M. I & M’s only competition in that market comes from the plaintiffs and I & M’s other wholesale customers. Second, defendants also have a monopoly of the supply of electric power and energy on which the plaintiffs depend to serve their customers and to compete with I & M for retail sales. Kstablishment of either monopoly brings the monopoliza- tion provision of Section 2 into operation. It is clear that the relevant product market is electric power and energy. There is no substitute for electric power which might be acceptable to industrial, commercial, and residential consumers in Northern Indiana and Southwest- ern Michigan. Defendants have offered no evidence sug- gesting that sufficient interchangeability exists between electricity and other forms of power and energy even to give rise to an issue on this point. Assessment of defendants’ monopoly in retail sale of electric power and energy involves definition of the geo- graphic market. In determining the relevant market, the Court must ‘‘delineate markets which conform to areas of effective competition and to the realities of competitive practice.’’ Sargent-Welch, supra, 567 F.2d at 710, quoting L. G. Balfour Co. v. F. T. C., 442 F.2d 1, 11 (7th Cir. 1971). Applying this practical approach to the geographic market in this case is relatively simple. As one very distinguished commentator has observed: ‘*The geographic location of the market is usually de- termined by an examination of the areas in which the particular firm actually competes or operates. If it concentrates its sales and service in one area, this area will normally be the relevant market.’’ E. Kintner An 52a Memorandum Opinion of the District Court, January 30, 1979 Antitrust Primer, A Guide to Antitrust And Trade Regulation Laws For Businessmen, pp. 102-103 (2d Ed. 1973). Here, defendant I & M has a clearly defined service area in Indiana and Michigan within which it sells electric power and energy at retail pursuant to franchises granted by the municipalities and townships. I & M has tariffs on file for those areas in the Public Service Commissions of Indiana and Michigan, pursuant to which it offers to sell electricity at retail to all interested buyers. Moreover, as the defend- ants have stated, no other public utility is allowed to sell electric energy at retail within this area. Using the method for identifying the nature and control of the relevant market approved and relied on by the Su- preme Court of the United States in Otter Tail Power Co. v. United States, 410 U.S. 366, 370, 93 S.Ct. 1022, 1026, 35 L.Ed.2d 359 (1973), the evidence indiesied that I & M serves 89% of the municipalities and townships located within its service area directly at retail. 'The remaining 11% are served at retail by the plainti‘fs and by other municipal wholesale customers of I & M. Defendants’ share of the relevant market in this case is comparable to the 91 % share found to constitute a monopoly by the Supreme Court of the United States in Otter Tail, id., and is substantially greater than the 75.6% that the District Court in Otter Tail deemed sufficient to support a conclusion of monopoly power. Umted States v. Otter Tail Power Co., 331 F.Supp. 04, 09 (D.Minn. 1971), aff’d 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Defendants’ monopoly of retail sales within the geo- graphic market is equally clear when measured in terms of the amount of electric power and energy sold there. The evidence shows that I & M made 85% of all the retail sales made by public utilities and municipalities in the relevant 53a Memorandum Opinion of the District Court, January 30, 1979 geographic market in the year 1977, and 80% of all retail sales if the retail sales of the seven rural electric coopera- tives that purchase all of their power at wholesale are included. By either standard, I & M possesses a monopoly in the retail sales of electric power within the geographic market in which it operates. These percentages are comparable to the 90% figure found to constitute a monopoly in Sar- gent-Welch, supra, 567 F.2d at 709, in addition to being far in excess of that found sufficient to give rise to a finding of monopoly power by the Otter Tai District Court. Other courts likewise have found monopoly power based on mark- er concentrations of a comparable or smaller nature. See, e.g., United States v. Grinnell Corp., 384 U.S. 570, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966) (Defendant’s con- trol of 87% of the accredited central station service busi- ness ‘‘leaves no donht that the congeries of these defend- ants have monopoly power’’). The evidence shows that each of the plaintiffs depends on I & M for between 95% to 100% of its bulk power supply of electric power and energy for its own use and for resale to its customers. Though the law imposes no obligation on the plaintiffs to build new generation facilities, to go into the business of generating electric power, or to build new transmission lines to other utility companies in an effort to resist defendants’ monopolization, the evidence shows that plaintiffs cannot become independent of I & M within any reasonable time by any of those methods. Demonstra- tion of the defendants’ complete monopoly of plaintiffs’ source of supply is—standing alone—sufficient to require the invocation of the monopolization standards of Section 2. The fact that the electric utility industry is a ‘‘highly regulated industry critical to the Nation’s welfare makes the play of competition not less important but more so.’’ 54a Memorandum Opinion of the District Court, January 30, 1979 Umted States v. Philadelphia Nat’l Bank, 374 U.S. 321, 372, 83 S.Ct. 1715, 1746, 10 L.Ed.2d 915 (1963). The plain- tiffs compete with I & M in a number of ways. Plaintiffs and I & M compete for retail sales in the rele- vant geographic market. Because no other public utility can engage in retail sales of electricity within I & M’s fran- chised service area, the plaintiffs and I & M’s other whole- sale customers offer the only source of effective competition for retail sales within this market. I & M also is in competition with each of the plaintiffs for all the customers presently served by the plaintiffs’ municipal utilities. The decision by the voters of any of the plaintiffs to discontinue operating their municipal util- ity inevitably will result in I & M’s serving all those cus- tomers directly at retail. That has been the experience of the municipalities that have sold their utilities to I & M since 1957. And, as Theodore Stichler testified, the uniform pattern in Indiana indicates that the public utility serving the community at wholesale expands into the retail market when the municipality decides to discontinue its electric utility. I & M, the only source of power to the plaintiff municipalities, has retail tariffs on file that encompass the plaintiffs’ territories. Since 1957, I & M has purchased or leased the facilities of five municipalities it formerly served at wholesale. As a result, the customers previously served by those munic- ipal utilities became direct retail customers of I & M im- mediately thereafter, and they remain I & M’s eustomers today. Defendants have had, and currently have, a policy of acquiring municipal utilities where possible and they presently are considering the purchase of the municipal utility of the Town of Avilla, a plaintiff in this case. The evidence shows that plaintiffs and I & M compete for customers of the municipal utilities in the same manner as that found by the Supreme Court of the United States in Otter Tail, supra. 5Dda Memorandum Opinion of the District Court, January 380, 1979 As the court there found: ‘*In towns where Otter Tail distributes at retail, it operates under municipally granted franchises which are limited from 10 to 20 years. Each town in Otter Tail’s service area generally can accommodate only one distribution system, making each town a natural mo- nopoly market for the distribution and sale of electric power at retail. The aggregate of ‘owns in Otter Tail’s service area is the geographic market in which Otter Tail competes for the right to serve the towns at retail. That competition is generally for the right to serve the entire retail market within the composite limits of a town, and that competition is generally between Otter Tail and a prospective or existing municipal system. These towns number 510 and of those Otter Tail serves 91%, or 465.’’ 410 U.S. at 369-370, 93 S.Ct. at 1025- 1026. This same kind of competition also was recognized and protected by the United States Court of Appeals for the District of Columbia in Conway Corporation v. Federal Power Commission, 167 U.S.App.D.C. 43, 510 F.2d 1264, 1268-1268 (1975), aff’d, 426 U.S. 271, 96 S.Ct. 1999, 48 L.Ed. 2d 626 (1976). See also Meeks, Concentration in the Elec- tric Power Industry: The Impact of Antitrust Policy, 72 Colum.L.Rec. 64 (1972) and Hearings on S. 218 Before the Senate Comm. on Commerce, 89th Cong., Ist Sess., ser. 89- 38, at 68 (1965), both of which are quoted in Conway, supra, 510 F.2d at 1268, and at 1268, n. 11. Actual and potential competition also exists between plaintiffs and I & M for certain customers presently located in some of the plaintiff municipalities. As the evidence shows, I & M serves nine large industrial customers at re- tail in the Cities of Mishawaka, Gas City and Niles, selling retail electric power to those customers at rates lower than its wholesale rates to the plaintiffs. Potential competition 56a Memorandum Opinion of the District Court, January 30, 1979 for those customers exists, and the relationship between I & M’s wholesale and retail rates is the major factor gov- erning that competition. The evidence also indicates that I & M has competed for other industrial and residential customers presently served at retail by plaintiff Niles, Michigan. Each of the plaintiffs is also in competition with I & M for customers in areas adjacent to their municipal bound- aries. In some cases, both I & M and the municipalities offer electric services to those customers. Each of the In- diana plaintiffs also is in competition for those customers in that each is authorized to annex: those areas, and thus to displace I & M as the electric utility that serves their customers at retail. The evidence shows that the Indiana plaintiffs have used their power of annexation to expand their boundaries, and consequently to expand their own retail market. These annexations by the plaintiffs result in their purchase of I & M’s distribution lines and facilities in that area and their takeover of I & M’s retail customers.’ 1. At the time of oral argument the defendants cited and provided to this Court a full copy of the unpublished opinion in SCM Corpora- tion v. Xerox Corporation, 463 F.Supp. 983 (D.Conn., No. 15,807, December 29, 1978, Newman, J.), a massive opinion in a massive case. Judge Newman has literally written a treatise in a wide ranging area of antitrust and patent law and the interrelationship between the two. The defendants appear to cite this case to demonstrate an analogy be- tween the public grant of patent rights there and the public authoriza- tion of utility rates here. It is also cited for its relevant market dis- cussion. The discussicn of Section 2 of the Sherman Act commences at page 1006 of the opinion in unpublished form and concludes on page 1015. At page 1011 Judge Newman states: “With respect to assets other than patents, there is authority that a monopolist’s unilateral refusal to deal violates the antitrust laws where the refusal is a part of an attempt to further monopoly power. E. g., Lorain Journal Co. v. United States [342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162], supra; Otter Tail Power Co. v. United States [410 U.S. 336, 93 S.Ct. 1022, 35 L.Ed.2d 359], supra.” The reasoning in SCM considered in its own factual setting, does not compel a result contrary to the one here announced. 57a Memorandum Opinion of the District Court, January 30, 1979 Il. The evidence in this case shows that, through I & M, the defendants have a monopoly of the retail sales of electric power within I & M’s service area, and that they have a complete monopoly of plaintiffs’ power supply. At issue in this case is the manner in which defendants have used the leverage afforded by this total monopoly over plaintiffs’ power supply to preserve and expand their monopoly of retail sales in I & M’s service area. The evidence shows that defendants have engaged in anticompetitive and exclu- sionary acts and practices having the purpose and effect of preserving and expanding I & M’s existing monopoly in re- tail sales of electric power. Beginning in 1972, defendants have forced the plaintiffs to purchase wholesale electric power pursuant to unregu- lated rates that are unjust and unreasonable and that, for substantial periods of time, have required the plaintiffs to pay more for their wholesale electric power than they would have paid if they had purchased the same electric power at retail. Under the Federal Power Act, defendants can put I & M’s wholesale rates into effect simply by filing a tariff. Thereafter, those rates remain in effect at the level set by defendants until the Federal Commission has adjudicated their justness and reasonableness or until they are super- seded by new rates. By filing higher superseding wholesale rates before the Commission has adjudicated I & M’s form- er tariffs, defendants have, since 1972, served plaintiffs pursuant to unregulated rates that have never been ap- proved at the levels filed and charged by I & M. Not only have defendants patterned I & M’s rate filings in a manner that effectively abrogates the protections that plaintiffs might expect from the Federal Commission, they themselves have ignored their own obligations under the Federal Power Act. The Act requires that public utilities charge only rates that are ‘‘just and reasonable’’ and 5Sa Memorandum Opinion of the District Court, January 30, 1979 specifically declares that any nonconforming rates are un- lawful. 16 U.S.C. § 824d(a). Not once during the entire period at issue have defendants charged a wholesale rate that the Commission has determined to be just and reason- able; on each occasion when a Commission Administrative Law Judge has examined I & M’s wholesale rates, he has concluded that they were excessive, unjust and unreason- able, and has ordered them lowered. The Federal Power Act also requires defendants to com- pare I & M’s wholesale rates against its retail rates, con- sider their possible anticompetitive impact, and not require any of the plaintiffs to pay more at wholesale than it would under I & M’s retail rates in effect without justifying the higher wholesale rates. Defendants have ignored this obli- gation as well. As the evidence clearly indicates, the de- fendants made no attempt to compare their wholesale and retail rates, much less to consider the possible anticompeti- tive impact of that relationship and try to avoid the anti- competitive consequences or, at a minimum, justify any anticompetitive consequences that the defendants claim can- not be avoided. I & M’s anticompetitive wholesale rates have been im- posed on the plaintiffs in disregard of these statutory obli- gations. Irom July 27, 1976 to August 31, 1978, defendants required the plaintiff municipalities to pay over $4 million more at wholesale than they would have paid under I & M’s retail rates then in effect. Defendants filed these excessive and discriminatory wholesale rates without giving proper consideration to their relationship to I & M’s retail rates or to the anticompetitive impact of that rate relationship. At no time while these rates were in effect did the defendants make a proper effort to justify the substantial disparity between I & M’s wholesale and retail rates, either to the Federal Energy Regulatory Commission or to this court. 59a Memorandum Opinion of the District Court, January 30, 1979 Defendants’ anticompetitive rate practices have been compounded by a number of other exclusionary acts. All three of the defendants made serious and repeated state- ments that they desire to withdraw from the wholesale mar- ket and that, in the event of power shortages, the plaintiffs’ power supply will be curtailed first while I & M continues to serve its retail customers. Similarly, defendants sought to impose a ‘‘day-to-day service limitation in its contract with the City of Mishawaka, to limit its contract to three years, and to impose discriminatory restrictions on the quantity of power that Mishawaka could purchase at cur- rent rates. Even after that contract was held to be unjust, unreasonable and discriminatory by an FERC Administra- tive Law Judge, I & M offered similar contracts to the other plaintiffs. Kach of the defendants’ anticompetitive acts is exclu- sionary and impairs the plaintiffs’ ability to continue to operate their municipal utilities and to continue to compete with I & M. I & M’s unjust and unreasonable wholesale rates, and in particular I & M’s imposition of wholesale rates that are in excess of its comparable retail rates, im- pair each plaintiff’s ability to offer competitive rates and service to present and potential customers and to offer its citizens the full range of benefits they otherwise would obtain from the ownership and operation of their municipal utility. Defendants’ deliberate statements threatening plaintiffs’ power supply cast doubt on the plaintiffs’ ability to offer adequate service to existing and potential custom- ers. All of defendants’ repeated anticompetitive practices together have left plaintiffs with no choice but to engage in constant time-consuming and costly litigation, thus di- verting the resources that should be committed to the opera- tion of their municipal utilities and to the provision of the benefits to those operations to attempting to secure just and equitable treatment in accordance with the antitrust laws and the Federal Power Act. 60a Memorandum Opinion of the District Court, January 30, 1979 The history of plaintiffs’ experience before the Federal Commission demonstrates that the relief it can offer in- variably comes too little and too late. Commission-ordered refunds take years to obtain, and even then are only ob- tained as the result of expensive and unreimbursed ad- ministrative litigation. As the Court of Appeals recog- nized, these refunds do not provide an antitrust damage remedy, City of Mishawaka, Indiana v. Indiana & Michi- gam Electric Co., 560 F.2d 1314, 1325 (7th Cir. 1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978), and the belated refunds do nothing to remedy or mitigate the anticompetitive impact of I & M’s excessive and discriminatory rates that plaintiffs suffer during the considerable periods of time that they are in effect. Finally, although the Power Act places the primary obligation on the defendants to charge only just and reasonable rates and, to consider and avoid anticompetitive discriminations between I & M’s wholesale and retail rates, the Power Act does not authorize the FERC to issue an injunction man- dating future compliance. Each successive violation of the Act must be considered by the Commission individually in lengthy and costly administrative adjudication. Each Com- mission remedy comes long after the fact, and always after the defendants have superseded one illegal wholesale rate with another, higher illegal rate. In August of 1977, the Court of Appeals for the Seventh Circuit made the following observation: ‘‘Thus far, the Commission has never rejected rate filing on price squeeze or other antitrust grounds, and there is no limit on the number of filed increases that may be in effect at the same time under Section 205. Simply by filing an anti-competitive increase and wait- ing for time to pass, a public utility like defendant can place a price squeeze on wholesale customers.’’ 560 F.2d 1325, 6la Memorandum Opinion of the District Court, January 30, 1979 The comprehensive opinion of Judge Cummings, joined by Judges Tone and Bauer is not only persuasive authority but it represents a significant part of the law of this case. Defendants’ anticompetitive practices continue to im- pair plaintiffs’ ability to serve their citizens and customers and to weaken their ability and resolve to continue operat- ing their municipal utilities and compete with I & M. As the Seventh Cireuit recognized in Sargent-Welch, supra, 567 F.2d at 710-711, the monopolization provision of Section 2 does not require that the defendant have acted with specific intent to monopolize; general intent is suffi- cient. General intent is simply ‘‘an intent to bring about the forbidden act,’’ United States v. Aluminum Co. of America, 148 F.2d 416, 432 (2d Cir. 1945) ; 7. e., the act that has the forbidden consequence. The specific intention to achieve that forbidden consequence need not be proved. ‘‘Tt is sufficient that a restraint of trade or monopoly results as the consequence of a defendant’s conduct or business arrangements.’’ United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236 (1948). ‘‘A business organization which has acquired monopoly power is guilty of monopolization if it undertakes a course of action the consequence of which would be to exclude competitors or prevent competition.’’ American Football League v. Na- tional Football League, 205 F.Supp. 60, 64 (D.Md.1962), aff’d, 323 F.2d 124 (4th Cir. 1963). The Supreme Court recognized in Griffith, supra, that ‘‘[t]he anti-trust laws are as much violated by the preven- tion of competition as by its destruction,’’ 334 U.S. 107, 68 S.Ct. at 945, citing United States v. Aluminum Co. of Amer- ica, supra. Accordingly, ‘‘the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is un- lawful.’’ Jd. See also Otter Tail Power Co. v. United States, 410 U.S. 366, 377, 93 S.Ct. 1022, 1029 (1973). Sub- 62a Memorandum Opinion of the District Court, January 30, 1979 sequently, in United States v. Grinnell Corp., 384 U.S. 563, 970-571, 86 S.Ct. 1698, 1704 (1966), the Court explained, ‘“The offense of monopoly ... has two elements: (1) the possession of monopoly power in the relevant mar- ket and (2) the willful acquisition or maintenance of that power as distinguished from growth or develop- ment as a consequence of a superior product, business acumen, or historie accident.’’ As Griffith indicates, a monopolist’s original acquisition of monopoly power by legitimate means is no defense to a charge that he has sought to maintain or extend that posi- tion by prohibited means. This is illustrated by Otter Tail, where the District Court noted that the plaintiff raised no challenge to the manner in which the defendant had ob- tained its monopoly. United States v. Otter Tail Co., supra, 331 F.Supp. at 58. Concluding that defendant possessed monopoly power, however, the District Court regarded the question then to be ‘‘whether Otter Tail has sought to maintain that power.’’ Id. at 59. (Emphasis in original.) One possessing monopoly power need not be found to have engaged in predatory conduct in order to have engaged in prohibited monopolivation. Frequently the offense of monopolization is based on the conclusion that the defend- ant has engaged in ‘‘exclusionary conduct’’—conduct that does not further competition on the merits or that tends to impair the opportunities on the merits or that tends to im- pair the opportunities of his rivals to compete. Thus, as the Seventh Circuit stated in Sargent-Welch, supra, 567 F. 2d at 711-712: ‘‘There are kinds of acts which would be lawful in the absence of monopoly but, because of their tendency to foreclose competitors from access to markets or cus- tomers or some other inherently anticompetitive tend- 63a Memorandum Opinion of the District Court, January 30, 1979 ency, are unlawful under § 2 if done by a monopolist, e. g., the leasing practices United States v. United States Machinery Corp., 110 F.Supp. 295, 343 (D.Mass. 1953), aff’d per curiam, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954); see also 1 von Kalinowski § 8.02[4] [b], p. 8-55.”’ See also EK. Kintner, An Antitrust Primer, A Guide To Antitrust Law And Trade Regulation Laws For Business- men, p. 106 (2d Ed. 1973). Defendants have repeatedly contended that plaintiffs cannot prevail unless they estab- lish that the challenged acts and practices are ‘*predatory’’ in nature. Indeed, they even have suggested that the Sev- enth Circuit’s opinion in Sargent-Welch supports that prop- osition. Although Sargent-Welch nowhere mentions ‘predatory acts,’’ the defendants’ ‘‘edited’’ quotation from that opinion is advanced in a manner that seems to suggest that such a finding is essential to recovery. The authorities discussed above demonstrate the error of defendants’ posi- tion. Moreover, it is significant to note that the Seventh Circuit supported its conclusion that a monopolist cannot engage in conduct that might be permissible for a non- monopolist by citing the United Shoe opinion—a case that found a violation of Section 2 on the basis of conduct that it specifically found was not predatory. Certainly the Sev- enth Circuit’s explicit reliance on United Shoe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2630%3A3. Public record. Not legal advice.