Petition — Central Milk Producers Cooperative v. National Farmers' Organization, Inc.

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‘-eme Court, U.S.

IED

82 - 1582

MAR 29 1983

No. ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the Gnited States

October Term, 1982

CENTRAL MILK PRODUCERS COOPERATIVE,

Petitioner,

vs.

NATIONAL FARMERS ORGANIZATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SYDNEY BERDE

Counsel of Record

BERDE & HAGSTROM, P.A.

2602 American National

Bank Building

St. Paul, Minnesota 55101

(612) 291-8106

Counsel for Petitioner

224-7631 = Review Publishing Co., 287 E. 6th St., St. Paul, Mim. 55101 — 224-7631

QUESTIONS PRESENTED

1. Whether a non-profit collective bargaining association

of farmers which claims the right to bargain on a non-

pecuniary basis and engage in horizontal price fixing on behalf

of its members by reason of an antitrust exemption conferred

by §6 of the Clayton Act, 15 U.S.C. $17, and the Capper-Vol-

stead Act, 7 U.S.C. §291, has standing to sue for lost member-

ship dues and fees as antitrust damages pursuant to $4 of the

Clayton Act, 15 U.S.C. §15?

2. Whether proof of a relevant geographic market is a

necessary element to support a conspiracy to monopolize claim

under §2 of the Sherman Act or a non-per se conspiracy claim

in unreasonable restraint of trade under §1 of the Sherman

Act?

8. Whether, under §4 of the Clayton Act:

(a) Attorney’s fees awarded to a party who has prevailed

on appeal on a portion of its claim should be apportioned to

reflect the extent to which it has prevailed;

(b) Expenses of litigation, not specifically identified as

“costs” under Fed.R.Civ.P. 54(d) and 28 U.S.C. §1920, are

recoverable as “cost of suit’?

LIST OF PARTIES

Pursuant to Rule 21(b), Rules of the Supreme Court, Coun-

sel for Petitioner certifies that the following is a complete list

of all parties to the proceeding below:

Associated Milk Producers, Inc., Mid-American Dairymen,

Central Milk Producers Cooperative, National Farmers Or-

ganization and Associated Reserve Standby Pool Cooperative.

Petitioner Central Milk Producers Cooperative has no

parent or subsidiaries and has the following members as af-

filiates:

Alto Cooperative Creamery

Waupun, Wisconsin

Associated Milk Producers,

Inc.,

Mid-States Region

Schaumburg, Illinois

.Chaseburg Cooperative

Chaseburg, Wisconsin

Consolidated Badger

Cooperative

Shawano, Wisconsin

Golden Guernsey Dairy

Cooperative

Milwaukee, Wisconsin

Independent Milk Producers

Cooperative

Slinger, Wisconsin

Lake to Lake Dairy

Cooperative

Manitowoc, Wisconsin

Manitowoc Milk Producers

Cooperative

Manitowoc, Wisconsin

Mid-West Dairymen’s

Cooperative

Rockford, Illinois

Milwaukee Cooperative Milk

Producers

Brookfield, Wisconsin

Outagamie Producers

Cooperative

Black Creek, Wisconsin

Pine River Farmers Dairy

Cooperative

Merrill, Wisconsin

Wisconsin Dairies Cooperative

Baraboo, Wisconsin

Woodstock Progressive Milk

Producers

Woodstock, Illinois

TABLE OF CONTENTS

Questions Presented

List of Parties

Table of Contents edi

Tene GE Aumtmoritles . ccc

I oc gtr hoe av ce kee ca eae ae

Jurisdiction . Pat caie wit eke Bone beolbrerate

Statutes Involved AINE Pra Sh nae eeee

Statement of the Case | Chee iets wata hw we

The Proceedings Below

The Parties

Reasons For Granting The Writ

In Ruling That Respondent Has Section To Sue

For Lost Membership Dues And Fees, The Eighth

Circuit Follows A Rule Of Antitrust Standing

That Has Been Repudiated By This Court And

Other Courts Of Appeal.

A. The Eighth Circuit’s Opinion Patan $4 —

Act Damages To Be Recovered For The Kind Of

Abstract Injury Barred Py Controlling Decisions

Of This Court.

The Eighth Circuit's Decision Holding That Lost

Membership Dues Are Recoverable As Antitrust

Damages Is In Conflict With The Holding Of

Brunswick, Associated General Contractors, And

The Decisions Of Other Circuits.

The “Standing” Question Presented By This Pe-

tition Raises Issues Of Importance In The En-

forcement Of The Antitrust Laws Beyond The

Interests Of The Parties To This Case.

Page

iii

oawwnsnDN <

Page

II. The Eighth Circuit’s Holding That Proof Of A Rel-

evant Geographic Market Is Not A Necessary Ele-

ment In A “Rule Of Reason” Case Under §1 Of

The Sherman Act Or Conspiracy To Monopolize

Under §2 Is In Conflict With The Decisions Of

This Court And Other Circuits. 19

A. The Holding That Conspiracy To Monopolize Un-

der §2 Of The Sherman Act Requires Proof Only

Of A Concerted Specific Intent To Monopolize

“Some Appreciable Part Of Interstate Com-

merce” Is In Conflict With Decisions Of This

Court And Other Circuits. 20

B. In Holding That Business Conduct May Be —_

demned As “Unreasonable” In The Absence Of

A Defined Market, The Court Below Has Unset-

tled And Confused The Settled Course Of Deci-

sions In §1 Non Per Se Cases...._... 24

III. The Eighth Circuit’s Failure To Mauston Its

Award Of Attorney’s Fees And Costs On Appeal

To Reflect The Extent To Which NFO Failed To

Prevail Ignores The Statutory Language And Is

In Conflict With The Holding Of Other Circuits. 27

SR ace fl oe any en ory aaaeae aR 30

APPENDICES:

Petitioner’s Appendix A, Statutes Involved, Partial

Text. la

Petitioner’s Aeeieitn B, Order of Court pr

awarding expenses, attorney’s fees and miscella-

neous costs on appeal, December 13, 1982. __. 8a

TABLE OF AUTHORITIES

Page

Cases:

Advance Business Systems & Supply Co. v. SCM

Corp., 287 F.Supp. 143 (D. Md, 1968), aff'd,

415 F.2d 55 (4th Cir. 1969), cert. denied,

397 U.S. 920 (1970) LAvee 21, 28

ALW, Inc. v. United Airlines, Inc.,

510 F.2d 52 (9th Cir. 1975) | . 20

American Football League v. National Football

League, 205 F.Supp. 60 (D. Md. 1962),

aff'd, 323 F.2d 124 (4th Cir. 1963) 21

American Motors Inn, Inc. v. Holiday Inns, Inc.,

521 F.2d 1230 (3d Cir. 1975) ee 24

American Tobacco Co. v. United States,

828 U.S. 781 (1946) ............ 20

Associated General Contractors of California, Inc.

v. California State Council of Carpenters,

— U.S. ——, 51 U.S.L.W. 4139

(February 22, 1983) 9, 10, 11, 12, 18, 14, 16, 18, 20

Becker v. Safelite Glass Corporation,

244 F.Supp. 625 (D. Kan. 1965) 21, 22

Berkey Photo, Inc. v. Eastman Kodak Co.,

603 F.2d 263 (2d Cir. 1979), cert. denied,

444 U.S. 1093 (1980) | 29

Bigelow v. RKO Radio Pictures,

827 U.S. 251 (1946) ................... re © |

Billy Baxter, Inc. v. Coca-Cola Co.,

431 F.2d 183 (2d Cir. 1970), cert. denied,

401 U.S. 923 (1971) 18

Bill Beasely Farms, Inc. v. Hubbard Senin.

695 F.2d 1341 (11th Cir. 1983) 21

Page

Blue Shield of Virginia v. McCready,

US. , 102 S.Ct. 2540 (1982) 9, 10, 13, 14, 16, 17

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

429 U.S. 477 (1977) .. ae 9, 12, 13, 14, 18, 25

Chrysler Corp. v. Fedders Corp.,

643 F.2d 1229 (6th Cir.), cert. denied,

454 U.S. 893 (1981) ae te

Coleman Motor Co. v. Chrysler a ™

525 F.2d 1838 (38d Cir. 1975) ......... Bes

Conference of Studio Unions v. Loew’s, Inc.,

193 F.2d 51 (9th Cir. 1951), cert. denied,

342 U.S. 919 (1952) i8

Copper Liquor v. Adolph Coors Co.,

684 F.2d 1087 (5th Cir.), reh. gr., 1982-83 CCH

Trade Cas. {65,079 (1982) 29

Cornwell Quality Tools Co. v. C.T.S. Co.,

446 F.2d 825 (9th Cir. 1971), cert. denied,

404 U.S. 1049 (1972) .. 2

Dimmitt Agri Industries v. CPC ain. bibs. =

679 F.2d 516 (5th Cir. 1982) ............ er A ee

Fairdale Farms, Inc. v. Yankee Milk, Inc.,

635 F.2d 1037 (2d Cir. 1980), cert denied,

454 U.S. 818 (1981) . 15

Fleer Corp. v. Topps Chewing Gum, Inc.,

658 F.2d 139 (2d Cir. 1981), cert. denied,

— US. ——, 102 S.Ct. 1715 (1982) 21

FLM Collision Parts, Inc. v. Ford Motor Co.,

411 F.Supp. 627 (S.D.N.Y. 1976),

modified on other grds., 543 F.2d 1019 (2d Cir.

1976), cert. denied, 429 U.S. 1097 (1977) 28

‘ Page

GAF Corp. v. Eastman Kodak Co.,

519 F.Supp. 1208 (S.D.N.Y. 1981) ... ’ 10, 17

George R. Whitten, Jr. v. Paddock Pool Builders, Inc.,

508 F.2d 547 (1st Cir. 1974), cert. denied,

421 U.S. 1004 (1975) Si seke alee as . 19

Greyhound Computer Corp. v. IBM,

559 F.2d 488 (9th Cir. 1977), cert. denied,

434 U.S. 1040 (1978) ......... _ 20

Hanover Shoe, Inc. v. United Shoe Sbaitinns — i

gf eB ere 9,17, 18

Hawaii v. Standard Oil Co.,

405 U.S. 251 (1972) ....... Ree _ 9,10

Henley v. Eckerhart, No. 81-1227 (8th Cir. Suk. 28,

3981) (unpublished), cert. granted, 102 S.Ct.

1610 (1983) 28

Hudson Valley Asbestos — Vv. on H&P Co.

Inc., 510 F.2d 1140 (2d Cir.), cert. denied,

421 U.S. 1011 (1975) rata OAT eee

Illinois Brick Co. v. Illinois,

431 U.S. 720 (1977) a 9, 10, 12, 16, 17

Industrial Investment Development Corp. v. Mitsui

& Co., 671 F.2d 876 (5th Cir. 1982),

judgment vacated, ——- U.S. ——, 51 U.S.L.W.

3627 (February 28, 1983) RAPT Sy tass 18

In re Beef Industry Litigation

600 F.2d 1148 (5th Cir. 1979),

cert. denied, 449 U.S. 905 (1980) __. 17

In re Bristol Bay, Alaska Salmon Fishery Antitrust

Litigation, MDL No. 249, 530 F.Supp. 36

(W.D. Wash. 1981) ip 17

vii

In re Industrial Gas Litigation,

681 F.2d 6514 (7th Cir. 1982) .............0...5%

In re Midwest Milk Monopolization Litigation, M.D.L.

No. 83, 8379 F.Supp. 989 (J.P.M.L. 1974) ...

Kane v. Martin Paint Stores, Inc.,

439 F.Supp. 1054 (S.D.N.Y. 1977), aff'd,

578 F.2d 1368 (2d Cir. 1978) .....

Karlinsky v. New York Racing Association, Inc.,

517 F.2d 1010 (2d Cir. 1975) .

Kinnett Dairies, Inc. v. Dairymen, Inc.,

512 F.Supp. 608 (M.D. Ga. 1981) ..

Lektro-Vend Corp. v. Vendo Co.,

660 F.2d 255 (7th Cir. 1981), cert. denied,

102 S.Ct. 1277 (1982) ..

Lessig v. Tidewater Oil Co.,

327 F.2d 459 (9th Cir.), cert. denied,

Page

19, 20

377 U.S. 993 (1964) RELA Ey . .20, 22, 26

Liang v. Hunt,

477 F.Supp. 891 (N.D. Ill. 1979) .........

Lupia v. Stella D’Oro Biscuit Co.,

586 F.2d 1163 (7th Cir. 1978), cert.

denied, 440 U.S. 982 (1979)

Maryland & Virginia Milk Producers Ass’n v.

United States, 362 U.S. 458 (1960)

Merit Motors, Inc. v. Chrysler Corp.,

417 F.Supp. 263 (D.D.C. 1976), aff’d on other

grounds, 569 F.2d 666 (D.C. Cir. 1977)

Mid-West Paper Products Co. v. Continental Group,

Inc., 596 F.2d 573 (3d Cir. 1979) ... .. .....10,17

Page

Nassau County Ass’n of Ins. Agents, Inc. v. Aetna

Life & Cas. Co., 497 F.2d 1151 (2d Cir.),

cert. denied, 419 U.S. 968 (1974) ..... i 18

National Broiler Marketing Ass’n v. United Set,

436 U.S. 816 (1978) 4

Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co. bp

614 F.2d 882 (2d Cir. 1980) ............ cee. ee

Oreck Corp. v. Whirlpool Corp.,

579 F.2d 126 (2d Cir.), cert. denied,

439 U.S. 946 (1978) 24

Packard Motor Car Co. v. Webster Motor “ Co.,

243 F.2d 418 (D.C. Cir.), cert. denied,

855 U.S. 822 (1957) >. , 21

Radiant Burners v. Peoples Gas Co.,

364 U.S. 656 (1961) . Seale he eas 16

Reading Industries, Inc. v. Kennecott Cisne ¢ Corp.,

631 F.2d 10 (2d Cir. 1980), cert. denied,

452 U.S. 916 (1981) . Eee .. MALE

Salco Corp. v. General Motors Corp.,

517 F.2d 567 (10th Cir.1975) ........ 23

Santos v. Columbus-Cuneo-Cabrini Medical Caste,

684 F.2d 1346 (7th Cir. 1982)... ...... ora

Standard Oil Co. v. United States,

221 U.S. 1 (1911) ee oa rae. a. ae

State of Ulinois v. Sangamo Construction,

657 F.2d 855 (7th Cir. 1981) ..... . 29

Straus v. Victor Talking Machine Co.,

297 F. 791 (2d Cir. 1924) _. er 29

Sulmeyer v. Coca-Cola Company,

515 F.2d 835 (5th Cir. 1975), cert. denied,

424 U.S. 934 (1976) ; 21

Swift & Co. v. United States,

RR ee I ho a hee ce webb desea ssn 20

Times-Picayune Pub. Co. v. United States,

eS ere re ree errr 24

TV Signal Co. of Aberdeen v. American Telephone

and Telegraph, 617 F.2d 1302 (8th Cir. 1980) 24

Twentieth Century Fox Film Corp. v. Goldwyn,

328 F.2d 190 (9th Cir.), cert. denied,

879 U.S. 880 (1964) . ape 29

Twin City Sportservice, Inc. v. Charles 0. Finley &

Co., 512 F.2d 1264 (9th Cir. 1975) .............24, 28

Twin City Sportservice, Inc, v. Charies O. Finley &

Co., 676 F.2d 1291 (9th Cir.), cert. denied,

oe LE reer er eee i ee

United States v. AMPI,

394 F.Supp. 29 (W.D. Mo. 1975) 15

United States v. Borden Co.,

808 U.S. 188 (1939) .. Paces i . 15

United States v. Columbia Steel Co.,

334 U.S. 495 (1948) . ies Sr

United States v. Consolidated anndetes Corp.,

291 F.2d 568 (2d Cir. 1971) ............ 21, 22, 23

United States v. Dairymen, Inc.,

660 F.2d 192 (6th Cir. 1981) 15

United States v. duPont de Nemours & Co.,

851 U.S. 377 (1956) ....... 21, 22, 23

United States v. Grinnell Corp.,

884 U.S. 563 (1966) ......... ..19, 28

United States v. Mid-America Daleymen, Ine. -

1977-1 Trade Cas. 61,508 (W.D. Mo. 1977) 15

United States v. Johns-Manville Corporation,

Page

231 F.Supp. 690 (E.D. Pa. 1964) _.. .. 21,22

United States v. National City Lines, Inc.,

186 F.2d 562 (7th Cir.), cert. denied,

341 U.S, 916 (1951) Pir 23, 24

United States v. Paramount Pictures,

oe Se 8: Seer 20

United States v. Yellow Cab Co.,

332 U.S. 218 (1947) ee Oa 23

V & L Cicione, Inc. v. C. Schmidt & Sons, Inc.,

403 F.Supp. 643 (E.D. Pa. 1975), aff'd

without opinion, 565 F.2d 154 (3d Cir. 1977) 21

Weiss v. York Hospital,

548 F.Supp. 1048 (M.D. Pa. 1982) . 21

Statutes and Legislative Materials:

Agricultural Fair Practices Act

7 U.S.C. §§ 2301-2307 14

Agricultural Marketing Agreement Act a: 1937

7 U.S.C. §601 et seq. 4,8

Capper-Volstead Act, 7 U.S.C. §291 2, 8,14

Clayton Act

Section 4,

15 U.S.C. §15 i, 2, 8, 9, 12, 14, 15, 16, 17, 18, 27, 29

Section 6, 15 U.S.C. §17 ms FS

Internal Revenue Code, §501(c) (5) 13

Sherman Act

Section 1, 15 U.S.C. $1 ... re .i, 2, 24, 25

Section 2, 15 U.S.C. §2 . i, 2, 19, 20, 21, 22, 24, 25, 26

28 U.S.C. §1254(1) 2

28 U.S.C. §1920 i, 29, 30

Rules and Regulations:

Fed. R. Civ. P. G4(d) ...............

Sup. Ct. R. 21(b) ...... Teccnuuacaeee ces

ia ccccG hwhensesneaes compe stots sinee

Executive Order No. 12,022, 3 C.F.R. §155 (1977)

Executive Order No. 12,052, 43 F.R. 15,133 (1978)

Miscellaneous:

Areeda & Turner, Antitrust Law (1978 ed.) 23, 25

Cooper, Attempts and Monopolization: A Mildly Ex-

pansionary Answer To The Riddle Of Section Two,

72 Mich. L. Rev. 375 (1974)

P. Levine, Attempt To Monopolize Under the Shemee

Act: Defendant's Market Power As A Requisite To

A Prima Facie Case, 73 Colum. L. Rev. 1451

(1973) ..

Milk Production, _— re Board, Statistical

Reporting Service, United States Department of

Agriculture, February, 1983 nen

National Commission For The Review of Antitrust

Laws and Procedures, Report To The President

and the Attorney General (1979) ...

Sands, Sutherland Statutory Construction,

ES ices a cele aiden Cunweaie alae cane an

The Relevant Market Concept In Conspiracy to

Monopolize Cases Under Section 2 of the Sherman

Act, 44 U. Ch. L. Rev. 805 (1977) .

Turner, Antitrust Policy and the Céltesiuing Case,

70 Harv. L. Rev. 281 (1956) .

J. Von Kalinowski, Antitrust Laws and ey

Regulation (1982 ed.)

xii

IN THE

Supreme Court of the Anited States

No.__

October Term, 1982

CENTRAL MILK PRODUCERS COOPERATIVE,

Petitioner,

vs.

NATIONAL FARMERS ORGANIZATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner, Central Milk Producers Cooperative (“CMPC”)

respectfully requests that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for the

Eighth Circuit entered in this matter on August 31, 1982, re-

versing, in part, the January 29, 1981 judgment of the district

court in favor of CMPC, Associated Milk Producers, Ine.

(AMP1I) and Mid-America Dairymen, Inc. (Mid-Am).

OPINIONS BELOW

The opinion of the Court of Appeals (App. at la)* is re-

ported at 687 F.2d 1173. The opinion of the district court

(App. at 67a) ordering judgment against respondent on its

antitrust claims and in favor of petitioner is reported at 510

F.Supp. 881 (W.D. Mo. 1981). The order of the Court of Ap-

peals awarding costs and attorneys fees on appeal is reported

at 696 F.2d 1210 (8th Cir. 1983) and appears in Petitioner's

Appendix hereto (P. App. at 3a).

JURISDICTION

The judgment of the Court of Appeals for the Eighth Cir-

cuit was entered on August 31, 1982, The Court of Appeals

denied petitioner’s timely petition for rehearing en bane and

suggestions for rehearing on November 10, 1982** (App. at

876a). By this Court’s Order of February 25, 1983 the time

for filing this petition was extended to March 25, 1983, The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

STATUTES INVOLVED

The statutes involved in this petition include sections 1 and

2 of the Sherman Act, 15 U.S.C. §$1, 2, sections 4 and 6 of the

Clayton Act, 15 U.S.C. $$15, 17 and section 1 of the Capper-

Volstead Act, 7 U.S.C, §291, The pertinent portions appear

in Petitioner’s Appendix hereto (P. App at la).

*The reference “App.” is to the Appendix to the Petition for Writ

of Certiorari filed by National Farmers Organization, Inc, in

Docket No, 82-1324 on February 8, 1983,

** Judge Ross would have granted the petition.

—

STATEMENT OF THE CASE

This case presents the anomaly of a national organization

of farmers devoted to political action and collective price fix-

ing being granted the right to recover antitrust damages for

lost membership dues because of defendants “monopolizing”

conduct without ever having defined the “market” that defen-

dants are charged with conspiring to monopolize. The case also

raises the question whether the antitrust laws are intended

to provide a remedy for a speculative n.embership loss which

attenuates respondent’s power to fix prices or achieve the

monopoly power which it seeks.

The Proceedings Below

On March 12, 1971 Mid-Am, a cooperative marketing asso-

ciation of dairy farmers, filed an antitrust treble damage

action against the National Farmers Organization (NFO)

alleging that NFO violated §1 of the Sherman Act by pro-

moting a group boycott of Mid-Am and engaging in illegal price

fixing in the sale of its members’ raw milk. 687 F.2d at

1181; App. at 6a. Mid-Am claimed that NFO was not entitled

to the antitrust exemptions conferred by §6 of the Clayton

Act and the Capper-Volstead Act because NFO was not a

bona fide association of farmers within the meaning of those

acts. 687 F.2d at 1183; App. at lla. NFO filed an antitrust

counterclaim against Mid-Am and joined AMPI and there-

after CMPC and Associated Reserve Standby Pool Coopera-

tive (ARSPC), three dairy farmer cooperatives, as additional

counterclaim defendants. '

The NFO counterclaim alleged that CMPC, AMPI, ARSPC

and Mid-AM monopolized, attempted to monopolize and con-

'Mid-Am’s case against NFO (Phase 1) was separately tried to the

district court, See 510 F.Supp, at 385; App. at 7la, NFO's counter.

claim is referred to as Phase II of the litigation.

spired to monopolize the marketing of raw milk in violation

of the Sherman Act in “a ten state region” of the Midwest or

“ten federal order markets therein” * (687 F.2d at 1191, App.

at 26a) by conduct designed to depress the price received by

NFO members for their raw milk and to stifle NFO’s growth

by depriving its members of access to milk buyers. 687 F.2d

1193-94; App. at 3la-33a.

As to Mid-Am’s “Phase I” claim, the district court con-

cluded that NFO’s activities did not constitute price fixing

and, therefore, found it unnecessary to reach the merits of

NFO’s Capper-Volstead exemption defense. 687 F.2d at 1183;

510 F.Supp. at 423-426; * App. at lla, 150a-55a. The “Phase

II” counterclaim, tried to the district court over an eighteen

month period, resulted in entry of judgment dismissing NFO’s

§$1 and 2 Sherman Act claims on the basis of the court’s “‘ulti-

mate determination that . . . NFO failed to carry the burden

of proof in regard to all Phase II issues necessary to estab-

lish liability on the part of counterclaim defendants.” 510 F.

Supp. at 434; App. at 173a. The district court found specif-

ically that NFO failed to prove a properly defined relevant

geographic market or that the defendant cooperatives monopo-

lized, attempted to monopolize or conspired to monopolize the

marketing of milk in any properly defined market. 510 F.

Supp. at 502-03; App. at 318a-319a.

2A “federal order market” is a defined geographic area in which

the marketing of milk is regulated by the Secretary of Agriculture

pursuant to the Agricultural Marketing Agreement Act of 1937,

7 U.S.C. §601 et seq. See 510 F.Supp. at 442; App. at 190a.

§The district court noted, however, that in view of this Court's

holding in National Broiler Marketing Ass'n v. United States, 436

U.S. 816 (1978) “had we reached and decided the merits of the

question of [NFO's Capper-Volstead exemption], we would have

rejected NFO's Capper-Volstead [defense|". 510 F.Supp. at 426;

App. at 155a.

Though petitioner had urged from the outset that NFO

lacked standing to sue for alleged “price reduction” damages

suffered by its members or loss of membership dues,‘ the dis-

trict court concluded that it was unnecessary to reach the ques-

tion of whether NFO was injured in its business or property

or whether it had standing to maintain the action. 510 F.Supp.

at 503; App. at 320a.

On appeal, the Eighth Circuit affirmed the district court’s

dismissal of Mid-Am’s Phase I claim but on different grounds.

The Eighth Circuit concluded that NFO engaged in horizontal

price-fixing but held that its price-fixing on behalf of the

members was exempt conduct under the Capper-Volstead Act.

687 F.2d at 1183-84; App. at 1la-12a.

Dismissal of NFO’s Phase II claim was affirmed in part

and reversed in part. Though the Eighth Circuit concluded,

contrary to the district court, that CMPC, Mid-Am and AMPI

conspired to eliminate NFO as a competitor in the marketing

of raw milk by conduct unprotected by the Capper-Volstead

Act (687 F.2d at 1179; App. at 3a), it affirmed the district

court’s dismissal of NFO's actual and attempted monopoliza-

tion claims because of NFO’s failure to show that the defen-

dant cooperatives possessed “monopoly power in a properly

defined market or sub-markets.” ° 687 F.2d at 1192; App. at

29a.

4 NFO's damage claim of $14,064,068.76 included $12,851,000 of “lost

penetration damages” attributable to loss of member dues and

“checkoff"” and approximately $1,213,000 of “price reduction dam.-

ages” allegedly suffered by its members. 510 F. Supp. at 435, n. 27;

App. at 174a; see 687 F.2d at 1208-09; App. at 62a.

5“The burden to show monopoly power or ‘dangerous probability’

of it... is on NFO. We cannot say it was clearly erroneous for

the district court to find that NFO's statistical evidence was not

sufficiently well defined to support its claims of actual and at-

tempted monopolization, Accordingly, we affirm the dismissal of

such claims.” 687 F.2d at 1102; App. at 29a.

As to the conspiracy to monopolize claim, however, the

Eighth Circuit reversed. The Circuit Court held that a §2

Sherman Act conspiracy to monopolize claim does not require

proof of a relevant market because the essential elements of

the claim “are concerted action and specific intent to monopo-

lize, such that it need only be further shown that the con-

spiracy affected ‘some appreciable part of interstate commerce.’

United States v. Consolidated Laundries Corp., 291 F.2d 563,

573 (2d Cir 1971).” 687 F.2d at 1181-82; App. at 8a.

As to petitioner’s argument that NFO lacked standing to

maintain the action (which the district court failed to address),

the Eighth Circuit agreed that NFO cannot recover “price

reduction” damages suffered by its members (687 F.2d at

1208; App. at 62a) but held that NFO is entitled to recover

lost membership dues and fees because such losses “represent

direct injury to NFO in its ‘business or property’.” Jd. at 1209;

App. at 63a.

The Parties

Respondent NFO is a nationwide organization of farmers

incorporated as a non-stock, non-profit membership corpora-

tion under Iowa law. Originally organized in 1955 as a protest

movement against federal agriculture! policy, it amended its

articles of incorporation in 1957 to add as an object and pur-

pose collective bargaining “on a non-pecuniary basis for

prices, terms and conditions of gale” of its members’ farm

products. 510 F.Supp. at 388; 687 F.2d at 1180; App. at 5a,

78a. NFO’s members produce a general array of farm products

including milk, livestock and grain. As expressed in its By-

laws, NFO’s avowed purpose and principal aim is “to unite

into one organization . . . all farmers engaged in the produc-

tion of agricultural commodities” (510 F.Supp. at 388; App.

at 78a) in order to exercise sufficient market power to raise

the price of its members’ farm products above the level that

would obtain in a competitive market. 687 F.2d at 1180; App.

at 4a-5a. NFO’s announced objective is to “block or unite

enough production . . . under control of [its] members so,

that those members can . . . name their price, and if the price

wasn’t paid, to hold the production.” 510 F.Supp. at 408; App.

at 118a. To obtain the price it desires, NFO’s bargaining

strategy has included picketing and “holding actions” com-

parable to a strike in the labor field. 510 F.Supp. at 389; App.

at 80a."

NFO receives member dues and “checkoff” fees forwarded

to it from the proceeds of the sale of its members’ farm

products. In the case of milk such proceeds are paid by the

buyer to an “NFO Dairy Trust” which, in turn, deducts and

remits to NFO such dues and “checkoff” as the member has

authorized to defray NFO’s collective bargaining expenses.

510 F.Supp. 396, 407; see 687 F.24 1184, 1208-09; App. at 94a;

13a, 61a-62a.

® Respondent NFO does not itself sell any farm commodity. 510

F.Supp. at 389, 401; App. at 79a, 104a. “The stipulated facts show

that NFO... gives collective bargaining and marketing services

exclusively to its members in connection with their agricultural

commodities.” 687 F.2d at 1184; App. at 13a. The stipulated facts

also show that NFO is “forb'dden [by its By-Laws] to enter into,

or engage in any business in behalf of or in the name of the

organization, of the sort commonly engaged in by cooperatives

for profit” or from distributing any income to its members. 510

F.Supp. 388-89; 687 F.2d at 1184, 1208; App. at 79a; 13a. Hence,

NFO is organized in such a way that it has no earnings or net

income from the sale of its members’ milk, 510 F.Supp. at 389;

App. at 79a. In 1957, NFO was ruled to be exempt from federal

income tax as a non-profit membership organization pursuant to

LR.C, §501(c) (5).

Mid-Am and AMPI are both cooperative associations of

dairy farmers engaged in collectively marketing the milk of

their dairy farmer members to “handlers” ‘ who operate fluid

milk bottling plants throughout the midwestern region of the

United States.

Petitioner CMPC is a “common marketing agent” * for 15

dairy cooperatives whose dairy farmer members, located prin-

cipally in Wisconsin, supply milk solely to handlers regulated

under Federal Milk Order No. 30 (7 C.F.R. Part 1030) which

regulates the handling of milk in a geographic area described

as the “Chicago Regional Marketing Area”. 7 C.F.R. §1030.

687 F.2d at 1180, 1194; App. at 5a-6a, 32a.

REASONS FOR GRANTING THE WRIT

I. In Ruling That Respondent Has Standing To Sue For Lost

Membership Dues And Fees The Eighth Circuit Follows

A Rule Of Antitrust Standing That Has Been Repudiated

By This Court And Other Courts of Appeal.

The Eighth Circuit held that respondent NFO has standing

under §4 of the Clayton Act, 15 U.S.C. §15, to recover lost

membership dues and fees because it “was a direct target of

7 The Agricultural Marketing Agreement Act of 1937, 7 U.S.C. §601,

et seq., authorizes the Secretary of Agriculture to regulate

“handlers” of certain agricultural commodities, including milk,

under a federal marketing order.

8 The Capper-Volstead Act, 7 U.S.C. §291 provides in part that

“(P]jersons engaged in the production of agricultural products...

may act together in associations ... in collectively processing .. .

and marketing . . . such products of persons so engaged. Such

associations may have marketing agencies in common; and .. .

may make the necessary contracts and agreements to effect such

purposes. ...”

the unlawful conspiracy.” 687 F.2d at 1209; App. at 68a. That

conclusion ignores the teaching of Brunswick Corp. v. Pueblo

Bowl-O-Mat, Inc., 429 U.S. 477 (1977) and Illinois Brick Co.

v. Illinois, 431 U.S. 720 (1977), as more fully articulated by

this Court last term in Blue Shield of Virginia v. McCready,

U.S. , 102 S.Ct. 2540 (1982), and more recently in

Associated General Contractors of California, Inc. v. Cali-

fornia State Council of Carpenters, U.S. ——, §1

U.S.L.W. 4139, 4144 (February 22, 1983), that more must be

shown for recovery under §4 than the plaintiff was the “target”

of defendant’s unlawful conduct. Notwithstanding the broad

remedial purpose of §4, this Court noted in McCready that

“our cases have acknowledged two types of limitations on the

availability of the §4 remedy to particular classes of persons

and for redress of particular forms of injury.”, id. at 2545-46,

limitations derived from Hawaii v. Standard Oil Co., 405 U.S.

251 (1972), Illinois Brick and Brunswick.

A. The Eighth Circuit’s Opinion Permits §4 Clayton Act

Damages To Be Recovered For The Kind Of Abstract

Injury Barred By Controlling Decisions Of This Court.

In Illinois Brick, this Court held, on the basis of Hanover

Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481

(1968) that indirect purchasers were barred from recovering

damages under §4 of the Clayton Act because of the “evi-

dentiary complexities and uncertainties” (Jllinois Brick,

supra, 431 U.S. at 732) in determining the extent to which an

illegal overcharge was passed on through the distribution

chain.® In McCready, the Court again noted that the “feasi-

bility and consequences of implementing particular damage

theories may, in certain limited circumstances, be considered

in determining who is entitled to prosecute an action brought

under §4.” 102 S.Ct. at 2546-47, n. 11.

The Eighth Circuit’s failure to consider whether NFO’s

“claim rests at bottom on some abstract conception or specula-

tive measure of harm” (ibid.) collides squarely with the ra-

tionale of Jilinois Brick, applied in other contexts, barring §4

Clayton Act claims based on a “tenuous and speculative char-

acter of the relationship between the alleged antitrust viola-

tion and [NFO’s] alleged [loss of membership dues]”, As-

sociated General Contractors, supra, 51 U.S.L.W. at 4146,

which the judicial system cannot effectively accommodate.

Reading Industries, Inc. v. Kennecott Copper Corp., 631 F.2d

10, 14 (2d Cir. 1980), cert. denied, 452 U.S. 916 (1981) ; Mid-

West Paper Products Co. v. Continental Group, Inc., 596 F.2d

573, 584-85 (3d Cir. 1979); GAF Corp. v. Eastman Kodak

Co., 519 F.Supp. 1203, 1282-33 (S.D.N.Y. 1981).

NFO is more than a collective bargaining association. It is

a political and social action organization. 510 F.Supp. 388,

454; App. at 78a, 215a. Dairy farmers may leave or refrain

from joining NFO because of disagreement with its political

or economic policies rather than “by reason of” defendants

alleged anticompetitive conduct. Dairy farmers’ reasons for

®*The principal basis for the decision in Hanover Shoe was the

Court’s perception of the uncertainties and difficulties in analyz-

ing price and output decisions ‘in the real economic world rather

than an economists hypothetical model,’ 393 U.S. at 493, and of the

costs to the judicial system and the efficient enforcement of the

antitrust laws of attempting to reconstruct those decisions in the

courtroom,” Illinois Brick, supra, at 731-32; see id. at 741; see also

Hawaii v. Standard Oil, supra, 405 U.S. at 262-63, n, 14.

joining or leaving respondent are as varied as their number.'"

To establish a “causal link” between respondent's lost member-

ship dues and fees and defendants’ aileged anticompetitive

conduct would require probing of the minds and “actions of

innumerable individual decision-makers,” Reading Industries,

supra, 631 F.2d at 13, among the dairy farmers in the ten state

area of the Midwest in which respondent claims its member-

ship growth was stunted to determine why, as the record here-

in discloses, (1) some producers market the:y milk through

the defendant cooperatives but continue to pay dues to NFO;

(2) some producers continue to join NFO despite defendants’

alleged anticompetitive conduct; (3) some producers joined

as members of NFO though they received a lower price for

their milk; (4) some producers remained as members of NFO

but refused to pay their dues; (5) some producers market

grain or livestock through NFO but their milk through defen-

dants or; (6) why the investment in and loyalty of some

producers to defendant cooperatives acted as a bar to repon-

dent’s solicitation efforts. Cf. Associated General Contractors,

supra, 51 U.S.L.W. at 4146.''!

While the commodity “milk” may constitute a relevant

product market capable of being restrained or monopolized,

1®NFO's principal dairy operative in the Midwest testified that the

“pay price” received by NFO's members is “just one of” many

considerations “in terms of ... where they se] their milk” but “it

is not the main important factor.” He testified that other factors

of importance are “the goals and aspirations of the organization

that they belong to, the joyaity that they have to the organization,

the feeling and relationship that they have with individuals within

the organization... market style... the overall strategy in terms

of the farmer's total! income, not strictly his dairy income... . I

think of an organization that is involved in an all-commodity has

an effect on the producer as to whether he ships with one group

or another” (Tr. at 5465).

1! Justice Stevens noted that because the Union's alleged injury “may

have been produced by independent factors, the Union’s damages

claim is... highly speculative.” 51 U.S.L.W. at 4146.

dairy farmer membership in a politically active national farm

organization is another matter. A dairy farmer’s organiza-

tional affiliation is not a “product” capable of being restrained

or monopolized. The link between respondent’s unrealized

growth in membership and defendants’ conduct is based on

“conjectural theories of injury and attenuated economic

causality”, Reading Industries, supra, at 14, that are fraught

with too many “evidentiary complexities and uncertainties”

(Illinois Brick, supra, at 732) to support a claim for recovery

of lost membership dues and fees under §4 of the Clayton Act.

B. The Eighth Circuit’s Decision Holding That Lost Mem-

bership Dues Are Recoverable As Antitrust Damages

Under §4 Of The Clayton Act Is In Conflict With The

Holding Of Brunswick, Associated General Contractors

And The Decisions Of Other Circuits.

NFO is organized for the purpose of acquiring membership

sufficient to enable it to exercise the power to fix prices of the

commodities sold by its members. 687 F.2d at 1180, 1183-84;

App. at 5a, 1la-12a. The Eighth Circuit held, nonetheless that

NFO suffered compensable antitrust damages when its price-

fixing power was eroded by membership losses “attributable

to defendants’ unlawful conduct”, 687 F.2d at 1209; App. at

63a, because “NFO, as a competitor, was a direct target of the

unlawful conspiracy.” Ibid.

Such a result stands the Sherman Act on its head and col-

lides squarely with the holding in Brunswick Corp. v. Pueblo

Bowl-O-Mat, supra, “that for [respondent] to recover treble

damages ... [it] must prove more than injury causally linked

to an illegal presence in the market. [Respondent] must

prove antitrust injury which is to say injury of the type the

antitrust laws were intended to prevent. . . .” Jd. at 489 (em-

phasis in original). NFO’s claim of lost membership dues re-

sulting from members “who stopped marketing through

NFO”, 687 F.2d at 1209; App. at 62a, does not describe “com-

petitive”'* injury from an unlawful restraint of the market

for the sale of milk. It describes an indirect injury in the

“membership market” for the sale of NFO’s collective bar-

gaining services the purpose of which is to fix above a com-

petitive level through collective action the prices to be paid

to respondent’s members for the sale of their farm commodi-

ties. Cf. Associated General Contractors, supra, 51 U.S.L.W.

at 4145, nn. 41, 42 and text accompanying, To award antitrust

damages arising from a weakening of respondent’s price-

fixing power would be “inimical to the purposes of [the anti-

trust laws)”, Brunswick Corp., supra, at 488, for such “injury

[is] not of ‘the type that the [Sherman Act] was intended to

forestall,’ Wyandotte Co. v. United States, 389 U.S. 191, 202

(1967).” Id. at 487-88.

NFO’s claimed loss of membership dues is but an indirect

derivative result of whatever competitive injury NFO’s mem-

bers may have suffered directly in the sale of their milk as a

result of defendant’s alleged conspiracy. But it is not enough

that NFO alleges “a causal connection between an antitrust

violation and harm to [NFO] and... that the defendants

intended to cause that harm.” Associated General Contractors,

supra, 51 U.S.L.W. at 4144. The “appropriate . . . focus [is]

on the nature of plaintiff's alleged injury.” /bid. More impor-

tant even than “the physical and economic nexus between the

alleged violation and the harm to the plaintiff”, McCready,

supra, at 2548, is the concern of “the relationship of the injury

alleged with those forms of injury about which Congress was

likely to have been concerned in making defendants’ conduct

12 NFO is forbidden by its By-laws and tax exempt status under $501

(c)(5) of the Internal Revenue Code from engaging in business.

See n. 6, supra.

unlawful and in providing a private remedy under $4.”"'* Jbid.

To award antitrust damages for a loss that diminishes respon-

dent’s ability to achieve monopoly power or to fix prices is

fundamentally at odds with ‘“‘the general principal that treble-

damages recoveries should be linked to the pro-competition

policy of the antitrust laws”, id. at 2550, and “authorize[s]

damages for losses which are of no concern to the antitrust

laws.” Brunswick, supra, 429 U.S. at 487.

There is no danger that denial of a treble damage remedy

to plaintiffs such as NFO for lost membership dues and fees

will permit antitrust violators to go unpunished or leave their

victims without a remedy.'* In addition to governmental en-

forcement agencies, there are other classes of plaintiffs more

directly injured by defendants’ alleged competitive restraints

“whose self-interest would normally motivate them to vindi-

cate the public interest in antitrust enforcement”, Associated

General Contractors, supra, 51 U.S.L.W. at 4145-46, and

18 While respondent's fundamental purpose of organizing farmers

so as to eliminate competition among them in selling their com-

modities may be protected by §6 of the Clayton Act and the

Capper-Volstead Act from the sanctions of the Sherman Act, it

does not follow that respondent is entitled to the affirmative pro-

tections of that Act and the remedies of §4 for “injury” which

affects only its “organizational and representational activities.”

Associated General Contractors, supra, 51 U.S.L.W. 4141, n. 10 and

text accompanying; see also, id. at 4145. Petitioner does not con-

tend that a Capper-Volstead cooperative may not recover under

§4 for direct injury in the form of lost earnings from an unlawful

restraint in the market for the sale of its products. But that is not

this case.

14 The Agricultural Fair Practices Act, 7 U.S.C. §§ 2301-2307 affords

a remedy in the form of damages and attorneys fees to “[a]ny

person injured in his business or property by reason of any viola-

tion of, or combination or conspiracy to violate, any provision

of section 2303” of the Act which describes “prohibited practices”.

Among the “prohibited practices”, the section includes the con-

duct charged by NFO, against the defendants AMPI and Mid-Am

in their capacity as “handlers” subject to the Act's prohibitions.

whose losses can more efficiently be remedied by our judicial

system. Neither the Justice Department'® nor private treble

damage plaintiffs'" have shown any reluctance to monitor,

control, sanction and deter antitrust violations by dairy co-

operatives. Moreover, there was nothing to preclude NFO’s

members who are the direct competitive injury claimants from

suing as a class for such damages as NFO seeks to recover

on their behalf.'’ No policy objective of the antitrust laws

is served by expanding the availability of the §4 damage

remedy to allow membership dues recovery to an entity which

has as its principal aim “to unite into one organization .. .

all farmers engaged in the production of agricultural com-

modities”. 510 F.Supp. at 388, App. at 78a.

C. The “Standing” Question Presented By This Petition

Raises Issues Of Importance In The Enforcement Of

The Antitrust Laws Beyond The Interests Of The

Parties In This Case.

The question of who may sue for treble damages under §4

of the Clayton Act has been “characterized by doctrinal confu-

15 Maryland & Virginia Milk Producers Ass'n v. United States, 362

U.S, 458 (1960); United States v. Borden Co., 308 U.S. 188 (1939);

United States v. Dairymen, Inc., 660 F.2d 192 (6th Cir, 1981);

United States v. AMPI, 394 F.Supp. 29 (W.D. Mo. 1975); United

States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. 161,508

(W.D. Mo. 1977).

16 Fairdale Farms, Inc, v. Yankee Milk, Inc., 635 F.2d 1037 (2d Cir.

1980), cert. denied, 454 U.S, 818 (1981); In re Midwest Milk Mo-

nopolization Litigation, M.D.L. No. 83, 379 F.Supp. 989, 991

(J.P.M.L. 1974); Kinnett Dairies, Inc. v. Dairymen, Inc., 512

F.Supp. 608 (M.D. Ga. 1981); see also cases cited 687 F.2d at 1182;

App. at 9a,

17 NFO’s Phase II suit was brought, originally on behalf of a class

consisting of all farmers in the United States. The class was later

narrowed to all dairy farmers in the United States. NFO failed to

pursue certification of the class after its original motion to certify

was denied “without prejudice” by the district court.

sion”, In re Industrial Gas Litigation, 681 F.2d 614, 515 (7th

Cir. 1982), which McCready and Associated General Contrac-

tors do not fully resolve. While the Court’s opinion in

McCready cites with apparent approval the expansive lan-

guage of Radiant Burners v. Peoples Gas Co., 364 U.S. 656,

659-660 (1961) that “allegations adequate to show a violation

and, in a private treble damage action, that plaintiff was dam-

aged thereby are all the law requires”, McCready, supra, 102

S.Ct. at 2545, n. 9, the decision acknowledges “two types of

limitation on the availability of the $4 remedy to particular

classes of persons and for redress of particular forms of in-

jury.” Id, at 2545-46.'*

In holding that the plaintiff in McCready had standing to

recover damages, the Court relied, in part, on the “policies

identified in Hawaii and Illinois Brick [which] focused on the

risk of duplicate recovery. .. .” McCready, supra at 2546.

The Court relegated to a “subordinate” status, id. at 2546-47,

n. 11, as the basis for the decision in Jllinois Brick, “the evi-

dentiary complexities and uncertainties” of proof, Jllinois

Brick, supra, 481 U.S, at 732, which the Court in Jllinois Brick,

however, described as the “principal basis for decision in Han-

over Shoe.” Id. at 781.

Several lower courts have read Jllinois Brick to deny stand-

ing to plaintiffs who assert speculative theories of causation

and damages that would mire the courts “with massive evi-

18 In view of the acknowledged limitation barring the availability of

the §4 remedy to the “indirect purchaser” class described in

Illinois Brick v, Illinois, even though such persons suffer “injury”,

there would appear to be some question whether the reach of the

Sherman Act and the §4 remedy extends to “‘all who are made

victims of the forbidden practices by whomever they may be

perpetrated,’ Mandeville Farms v. Sugar Co,, 334 U.S, 219, 236... ."

McCready, supra, 102 S.Ct. at 2545, See, Illinois Brick Co., supra,

431 U.S, at 749 (Brennan J. dissenting).

dence and complicated theories.” Hanover Shoe, Inc., supra,

391 U.S. at 498. See, e.g., Reading Industries, Inc. v. Kennecott

Copper Corp., supra; Mid-West Paper Products v. Continental

Group, supra; GAF Corp, v. Eastman Kodak Co., supra;

Liang v. Hunt, 477 F.Supp. 891, 897 (N.D. Ill. 1979). But

see In re Beef Industry Litigation, 600 F.2d 1148, 1166 n, 24

(5th Cir, 1979), cert. denied, 449 U.S. 905 (1980); Jn re

Bristol Bay, Alaska Salmon Fishery Antitrust Litigation,

MDL No. 249, 580 F.Supp. 36 (W.D. Wash. 1981).

Because this case presents a typical example of “a claim

[which] rests at bottom on some abstract conception or specu-

lative measure of harm” rather than “tangible economic in-

jury”, McCready, supra, at 2547 n. 11, it affords the Court a

vehicle to develop further, for the instruction of the lower

courts and the antitrust bar, the role that “insuperable diffi-

culty” of proof, Illinois Brick, supra at 725 n. 3 (quoting Han-

over Shoe) will have in deciding questions of standing under

§4. To establish that NFO has lost or failed to attract members

by reason of defendants’ conduct would require an inquiry into

the basis for the associational preferences of some 100,000

dairy farmers who produce milk in a ten-state area of the Mid-

western United States'” in which respondent claims its mem-

bership growth was stunted by defendants’ conduct. Nothing

approaching a “reasonable estimate of the cause of injury and

of its amount”, Bigelow v. RKO Radio Pictures, 327 U.S. 251,

265 (1946), is possible save only by resort to an examination

of each producer in the region to determine which of them

refrained from associating as members of respondent by rea-

son of defendants’ unlawful conduct—by resort, that is, to the

19 Milk Production, Crop Reporting Board, Statistical Reporting Ser-

vice, United States Department of Agriculture, February, 1983,

p. 20.

kind of “massive evidence and complicated theories” rejected

in Hanover Shoe, supra, 392 U.S. at 493.°"

This case also affords the Court an opportunity to further

develop the concept of “antitrust injury” as an aspect of stand-

ing under $4 of the Clayton Act. Notwithstanding the teaching

of Brunswick that §4 is intended to remedy only injury of the

kind that the antitrust laws were designed to forestall, some

courts have read the case narrowly,*' while others have given

Brunswick a more expansive reading as merging the require-

ments of “antitrust injury” with the general concept of stand-

ing as a prerequisite to suit under §4.°* The writ should be

granted to instruct the lower courts that $4 of the Clayton Act

does not provide a remedy for losses which are unrelated to

the procompetition policy of the antitrust laws.

“If NFO lacks standing to recover damages for the direct competi-

tive injury suffered by its members, as the Eighth Circuit holds,

it is patent that NFO may not recover for indirect injury attrib-

utable to loss of membership dues and fees. NF'O's claim that dues

payments were affected adversely because dairy farmers were

reluctant to join due to defendants’ conduct is too remote, indirect

and speculative to support standing under §4, Associated Gencral

Contractors, 51 U.S.L.W. at 4145 n,. 46, See Nassau County Ass’n

of Ins, Agents, Inc. v, Aetna Life & Cas, Co., 497 F.2d) 1151, 1153

(2d Cir.), cert. denied, 419 U.S, 968 (1974); Conference of Studio

Unions v, Loew's, Inc., 193 F.2d 51, 54-55 (9th Cir, 1951), cert.

denied, 342 U.S, 919 (1952); Billy Baxter, Inc. v. Coca-Cola Co.,

431 F.2d 183, 189 (2d Cir. 1970), cert. denied, 401 U.S, 923 (1971).

21 See, e.g., Industrial Investment Development Corp. v. Mitsui &

Co,, 671 F.2d 876, 888-89 (5th Cir, 1982), judgment vacated, ——

U.S, ——, 51 U.S.L.W,. 3627 (February 28, 1983). This Court re-

manded the case “for further consideration in light of" Associated

General Contractors, Id, at 3633.

22 See, e.g., Chrysler Corp. v. Fedders Corp,, 643 F.2d 1229, 1234 (6th

Cir.), cert, denied, 454 U.S. 893 (1981); Lupia v. Stella D'Oro

Biscuit Co., 586 F.2d 1163, 1168-69 (7th Cir, 1978), cert. denied, 440

U.S. 982 (1979).

Il. The Eighth Circuit’s Decision Holding That Proof Of A

Relevant Geographic Market Is Not A Necessary Ele-

ment In A “Rule Of Reason” Case Under §1 Of The

Sherman Act Or Conspiracy To Monopolize Under §2 Is

In Conflict With The Decisions Of This Court And Other

Circuits.

Section 2 of the Sherman Act prohibits monopolization and

attempts and conspiracies to monopolize. The Eighth Circuit

affirmed the district court’s dismissal of respondent’s actual

and attempted monopolization claims for failure to properly

define a relevant geographic market or submarket, 687 F.2d

1192; App. at 29a, but reversed the dismissal of respondent's

conspiracy to monopolize claim on the ground that “relevant

market is not a necessary element of such a claim because ac-

tual attainment or ‘dangerous probability’ of monopoly power

are not at issue,” 687 F.2d at 1193; App. at 30a. Dismissal of

the actual and attempted monopolization claims was mandated

by the decisions of this Court and the prevailing rule in all cir-

cuits that definition of a proper “relevant market” is an es-

sential element of an actual monopolization®* and, except in

the Ninth Circuit, an attempt to monopolize case.**

24 United States v. Grinnell Corp., 384 U.S, 563, 570-71 (1966).

#4"An attempt to monopolize claim generally requires the specific

intent to monopolize and a showing of a ‘dangerous probability’ of

success, the latter of which is also examined by reference to the

offender's share of the relevant market. See, e.g., Walker Process

Equip., Inc. v, Food Machinery & Chem. Corp., 382 U.S. 172, 177

... (1965); Agra Shell, Inc. v. Hammons Products Co., 479 F.2d 269,

285-287 (8th Cir.), cert. denied, 414 U.S, 1022... (1973).” 687 F.2d

at 1181; App. at 7a, (footnote omitted). Accord, George R. Whitten,

Jr, v, Paddock Pool Builders, Inc., 508 F.2d 547, 550 (1st Cir. 1974),

cert. denied, 421 U.S, 1004 (1975); Nifty Foods Corp. v. Great

Atlantic & Pacific Tea Co., 614 F.2d 832, 840 (2d Cir, 1980); Cole-

man Motor Co, v, Chrysler Corp., 525 F.2d 1338, 1348 (3d Cir, 1975);

Dimmitt Agri Industries v. CPC Intern, Inc., 679 F.2d 516, 525-26

(Sth Cir, 1982); Lektro-Vend Corp. v. Vendo Co., G60 F.2d 255, 270

To hold unlawful under £2 of the Sherman Act joint efforts

to pursue an end which, because of the absence of market

power would be deemed lawful, is to defy logic and “the lan-

guage in the controlling statute.” Associated General Contrac-

tors, supra, at 4142, There is nothing in the languaye of §2 that

would permit it to be read to require relevant market proof

in actual and attempted monopolization cases but to dispense

with such proof in a conspiracy case. The petition should be

granted to resolve the question whether “conspiracy to mo-

nopolize” under §2 of the Sherman Act is nothing more than

an “attempt to monopolize” involving more than one actor.

United States v. Paramount Pictures, 334 U.S. 181, 171

(1948) ; American Tobacco Co. v, United States, 328 U.S. 781,

785, 809 (1946); Swift & Co. v. United States, 196 U.S. 375,

892, 398 (1905). If proof of a relevant market is an essential

element in a $2 attempt case involving single firm conduct,

there is no principled basis for dispensing with the require-

ment in a §2 conspiracy case.

A. The Eighth Circuit’s Holding That Conspiracy To

Monopolize Under §2 Of The Sherman Act Requires

Proof Only Of A Concerted Specific Intent To Monop-

olize Which Affects “Some Appreciable Part Of Inter-

state Commerce” Is In Conflict With Decisions Of This

Court And Other Circuits,

The Eighth Circuit holds that proof of a relevant market

is not a necessary element of a §2 conspiracy claim “because

(7th Cir, 1981), cert, denied, 102 S.Ct. 1277 (1982); but see Lessig

v, Tidewater Oil Co., 327 F.2d 459, 474-75 (9th Cir.), cert. denied,

377 U.S. 993 (1964); Greyhound Computer Corp. v, IBM, 559 F.2d

488, 504 (9th Cir. 1977), cert. denied, 434 U.S. 1040 (1978) and

compare, ALW, Inc, v, United Airlines, Inc,, 110 F.2d 52, 57

(9th Cir, 1975); Cornwell Quality Tools Co, v. C.7.S. Co., 446 F.2d

825, 832 (9th Cir. 1971), cert, denied, 404 U.S, 1049 (1972).

the essential elements of a Section 2 conspiracy claim are con-

certed action and specific intent to monopolize, such that it need

only be further shown that the conspiracy affected ‘some ap-

preciable part of interstate commerce’”, 687 F.2d at 1182;

App. at 8a, citing United States v. Consolidated Laundries

Corp., 291 F.2d 568, 573 (2d Cir. 1971) and United States v.

duPont de Nemours & Co., 351 U.S. 377, 395 n. 23 (1956).

While Consolidated Laundries does so hold, it has not been fol-

lowed in the Second Circuit*® and is in square conflict with

“the better reasoned view’, 3 J. Von Kalinowski, Antitrust

Laws and Trade Regulation, §9.02[4], adopted in the Third,

Fourth, Fifth, Eleventh and District of Columbia Circuits re-

quiring proof of relevant market in a §2 conspiracy case.*°

Reliance on duPont, as the basis for dispensing with rele-

vant market proof in a conspiracy to monopolize case is mis-

placed. Becker v. Safelite Glass Corporation, 244 F.Supp. 625,

637 (D. Kan. 1965) ; United States v. Johns-Manville Corpora-

25 Karlinsky v. New York Racing Association, Inc., 517 }°.2d 1010,

1012 (2d Cir. 1975); ef. Hudson Valley Asbestos Corp. v. Tougher

H&P Co., Inc., 510 F.2d 1140, 1144 (2d Cir.), cert. denied, 421 U.S,

1011 (1975).

28 Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 153-54 (3d

Cir, 1981), cert. denied, —— U.S, ——, 102 S.Ct. 1715 (1982); V & L

Cicione, Inc. v. C. Schmidt & Sons, Inc., 403 F.Supp. 643, 651-52

(E.D. Pa, 1975), aff'd without opinion, 565 F.2d 154 (3d Cir. 1977);

Weiss v. York Hospital, 548 F.Supp. 1048, 1056 (M.D. Pa, 1982);

United States v. Johns-Manville Corp., 231 F.Supp. 690, 699-700

(E.D, Pa. 1963); Advance Business Systems & Supply Co. v. SCM

Corp., 287 F.Supp. 143, 153 (D. Md, 1968), aff'd, 415 F.2d 55 (4th

Cir, 1969), cert. denied, 397 U.S. 920 (1970); American Football

League v. National Football League, 205 F.Supp, 60, 64-65 (D. Md,

1962), aff'd, 323 F.2d 124 (4th Cir. 1963); Sulmeyer v. Coca-Cola

Company, 515 F.2d 835, 850-51 (5th Cir, 1975), cert. denied, 424

U.S, 934 (1976); Bill Beasely Farms, Inc. v. Hubbard Farms, 695

F.2d 1341, 1343 (11th Cir. 1983); Packard Motor Car Co. v. Webster

Motor Car Co., 243 F.2d 418, 420 (D.C, Cir.), cert. denied, 355 U.S.

822 (1957); Merit Motors, Inc, v. Chrysler Corp., 417 F.Supp. 263,

269 (D.D.C. 1976), aff'd on other grounds, 569 F.2d 666 (D.C. Cir.

1977).

tion, 231 F.Supp. 690, 699 (E.D. Pa. 1964).** In Lessig v.

Tidewater Oil Co., 327 F.2d 594 (9th Cir.), cert denied, 377

U.S. 993 (1964) the Ninth Circuit similarly relied on the

duPont footnote 23 as the basis for its holding that proof of

relevant market is not essential in an attempt or conspiracy

to monopolize case. Jd. at 474. But as explained in Becker

and Johns-Manville, in the cases cited by the Court in the

duPont footnote, it was observed only that “scope of the

market was not in issue”, not that relevant market proof is

not essential in an attempt or conspiracy to monopolize case.

Becker, supra, at 637.°*

United States v. Consolidated Laundries, supra, on which

the Eighth Circuit also relies as to the basis for dispensing

with proof of relevant market in a §2 conspiracy case, held

that the government’s failure to prove dangerous probability

of achieving monopoly power in a relevant market did not

vitiate a conviction under §2 of the Sherman Act for con-

spiracy to monopolize because §2 makes it unlawful

to conspire to monopolize “any part” of interstate com-

merce, without specifying how large a part must be af-

fected. Hence, it is enough if some “appreciable part

of interstate commerce is the subject” of the conspiracy.

United States v. Yellow Cab Co. 382 U.S. 218, 225-226

.. ++ (291 F.2d at 573).

27In Johns-Manville, the district court rejected the Government's

reliance on the duPont footnote (cited here by the Eighth Circuit)

to support an argument that proot »f a relevant market was im-

material in a conspiracy to monopolize case, noting that “[t]o

adopt the Government’s position would be to disregard the ap-

proach of [decisions in the] Supreme Court and the language

concerning relevant market in such recent decisions as Jnter-

national Boxing Club of New York v. United States, 358 U.S. 242,

249-251 (1959)... .” Id. at 699.

28 As the Becker court pointed out, “we do not read duPont as

justifying such a statement; nor do we read any of the cases cited

in the duPont footnote as justifying such a statement.” Jd.

Accord, Saleo Corp. v. General Motors Corp., 517 F.2d 567,

576 (10th Cir. 1975); United States v. National City Lines,

Inc., 186 F.2d 562, 573 (7th Cir.), cert. denied, 341 U.S. 916

(1951).

But the “appreciable part of commerce” test was invoked

in Yellow Cab to determine that the jurisdictional reach of

the Sherman Act extended to an area involving less than the

entire United States, not to dispense with the requirement of

market definition in $2 cases. United States v. Columbia Steel

Co., 334 U.S. 495, 519-520 (1948).*" Any notion that the “any

part of . . . trade or commerce” language of §2 may be read

to embrace any “appreciable part of commerce”, whether

constituting an economic market or not, was laid to rest in

duPont, supra, at 404 and United States v. Grinnell Corp.,

384 U.S. 563, 570-71 (1966). See 3 Areeda & Turner Anti-

trust Law, 1811, 833c. See also, The Relevant Market Con-

cept In Conspiracy To Monopolize Cases Under Section 2 of

the Sherman Act, 44 U. Chi. L. Rev. 805, 809 (1977).*°

29 As explained by the Court in Columbia Steel: “We first lay to

one side a possible objection to measuring the injury to competi-

tion by reference to a market which is less than nation-wide in

area. The Sherman Act is not limited to eliminating restraints

whose effects cover the entire United States; we have consistently

held that where the relevant competitive market covers only a

small area the Sherman Act may be invoked to prevent unreason-

able restraints within that area. In United States v. Yellow Cab

Co., 332 U.S. 218, we sustained the validity of a complaint whici:

alleged that the defendants had monopolized the cab operating

business in four large cities... .”’ Jd. at 519-20, See id. at 521-522.

%0Commenting on the Second Circuit's reliance in United States v.

Consolidated Laundries Corp. on the “any part of trade or com-

merce” discussion in Yellow Cab, the author notes:

This rationale is wholly unpersuasive. The “any part” language

of section 2 is applicab!e to all three of the enumerated offenses.

If the “any part of the trade or commerce” language is held to

B. In Holding That Business Conduct May Be Condemned

As “Unreasonable” In The Absence Of A Defined Mar-

ket, The Court Below Has Unsettled And Confused The

Settled Course Of Decisions In §1 Non-Per Se Cases.

The Eighth Circuit’s holding that “an unlawful conspiracy

under Section 2 necessarily violates Section 1 as an ‘unrea-

sonable’ restraint of trade”, 687 F.2d at 1193; App. at 30a,

notwithstanding the absence of relevant market definition,

is in conflict with decisions of this Court, and every circuit

that has considered the question.*! Times-Picayune Pub. Co.

v. United States, 345 U.S. 594, 615 (1953); United States v.

Columbia Steel Co., 334 U.S. 495, 527 (1948). As explained

by the Court in Columbia Steel Co., in order to judge the rea-

sonableness of an alleged restraint in §1 non-per se case:

It is first necessary to delimit the market in which the

concerns compete and then determine the extent to which

the concerns are in competition in that market. . . . In

determining what constitutes unreasonable restraint,. . .

we look . . . to the percentage of business controlled, the

strength of the remaining competition ... and other

characteristics of the market. Jd. at 527.

obviate the need for market definition in section 2 conspiracy

cases, a similar conclusion would appear to be compelled for

actual and attempted monopolization cases. .. . The relevant

market requirement derives not from the “any part” language

of section 2 but rather from the term “monopolize”.

Id. at 809.

31 See, e.g., Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 133-34

(2d Cir.), cert. denied, 439 U.S. 946 (1978); American Motors Inn,

Ine. v. Holiday Inns, Inc., 521 F.2d 1230, 1247-48 (3d Cir. 1975);

Santos v. Columbus-Cuneo-Cabrini Medical Center, 684 F.2d 1346,

1352 (7th Cir. 1982); Twin City Sportservice, Inc. v. Charles O.

Finley & Co., 512 F.2d 1264, 1274-76 (9th Cir. 1975); TV Signal Co.

of Aberdeen v. American Telephone and Telegraph, 617 F.2d 1302,

1309, n. 8 (8th Cir. 1980) (“where the Rule of Reason governs in

§1 cases proof of relevant market is necessary to demonstrate the

unreasonableness of the restraint.”)

The effect of the Eighth Circuit’s decision is to convert the

Sherman Act into a catchall remedy to reach “unfair” or

“business tort’”’ conduct contrary to this Court’s admonition

that to amount to an unreasonable restraint of trade, “‘preda-

tory” conduct must have an effect greater than its effect upon

a plaintiff’s business because “the antitrust laws . . . were

enacted ‘for the protection of competition not competitors.’ ”

Brunswick Corp., supra, at 488 (emphasis in the original)

(quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320

(1962)).

The anamolous result of the Eighth Circuit’s analyses is

thus brought full circle. If ‘an unlawful conspiracy under Sec-

tion 2 necessarily violates Section 1 as an ‘unreasonable’ re-

straint of trade”, it is illogical and incongruous to hold that

the relevant market definition that this Court and all circuits

require in a non-per se $1 conspiracy case may be dispensed

with in a conspiracy case under $2. As one commentator notes:

[I]n those instances where power [in a defined market]

is a prerequisite to holding an agreement to be an unrea-

sonable restraint of trade ... it would make nv sense

to hold the same agreement to be offensive to §2 without

power. To require power under $1 before condemning a

particular agreement is necessarily to say that the ar-

rangement is ... not harmful in the absence of power.

That policy conclusion cannot sensibly be avoided or

negated by the simple trick of calling the agreement a

conspiracy to monopolize.

8 Areeda & Turner, Antitrust Law, 1839 at 359.

’ The Eighth Circuit’s decision reflects a conflict among the

circuits between the “classic” requirement of power in a de-

fined market to support a $2 attempt or conspiracy claim and

the “expansionist” role of §2 as a tool to control undesirable

business conduct. 3 Areeda & Turner Antitrust Law, 821,

831-833 ; Cooper, Attempts and Monopolization: A Mildly Ex-

pansionary Answer To The Riddle Of Section Two, 72 Mich.

L. Rev. 375, 418-430 (1974) ; Turner, Antitrust Policy and the

Cellophane Case, 70 Harv. L. Rev. 281, 305-07 (1956). With

respect to the “attempt to monopolize” offense, The National

Commission for the Review of Antitrust Laws and Proce-

dures*? noted that “particularly in certain areas of Sherman

Act Section 2 enforcement, unclear and somewhat confused

legal standards are an important contributing factor to unnec-

essary delay and ineffective remedies in antitrust litiga-

tion.” #8

The Commission’s comments with respect to “attempt to

monopolize” apply with equal force to “conspiracy to monopo-

lize” as the conflict among the circuits with respect to the re-

quirement of relevant market proof demonstrates. This case

should be reviewed to decide the question whether ‘“con-

spiracy” under §2 may be used, as suggested by the court be-

low, following Lessig v. Tidewater Oil Co., supra, and its

progeny, to “transform[] the character of section 2 from an

antitrust law to a general statutory prohibition of unfair com-

petition” ** to reach business conduct aimed at a single com-

petitor rather than competition in a defined market.

To hold, as the Eighth Circuit does here that a §2 conspiracy

claim may be supported by a “minimal showing .. . as to

%2 The Commission was convened by Executive Order in June 1978

to study methods of expediting complex antitrust litigation and

improving the effectiveness of antitrust remedies. Exec. Order

No. 12,022, 3 C.F.R. §155 (1977) as amended by Exec. Order No.

12052, 43 Fed. Reg. 15,133 (1978).

83 National Commission For The Review of Antitrust Laws and

Procedures, Report To The President and the Attorney General,

at 143-44 (1979).

*4P, Levine, Attempt To Monopolize Under the Sherman Act:

Defendant’s Market Power As A Requisite To A Prima Facie

Case, 73 Colum. L. Rev. 1451, 1457 (1973).

the product and geographic context of the alleged conspiracy”,

687 F.2d at 1193, App. at 30a, is to ignore this Court’s early

teaching that §2 is concerned with economic markets definable

in terms that have “both a geographic and distributive sig-

nificance.” Standard Oil Co. v. United States, 221 U.S. 1, 61

(1911). The Eighth Circuit's “product and geographic con-

text” standard is an amorphous concept devoid of definable

economic content. The petition should be granted to instruct

the lower courts faced with antitrust complaints that judicial

resources should be reserved for cases dealing with competi-

tive restraints affecting identifiable markets which constitute

“any part” of commerce.

Ill. The Eighth Circuit’s Failure To Apportion Its Award

Of Attorney’s Fees And Costs On Appeal To Reflect

The Extent To Which NFO Failed To Prevail Ignores

The Statutory Language And Is In Conflict With The

Holding Of Other Circuits.

Section 4 of the Clayton Act, 15 U.S.C. § 15 provides for an

allowance of “cost of suit including reasonable attorney’s fees”

to a plaintiff who has established injury and damages “by rea-

son of” a violation of the antitrust laws. The Eighth Circuit's

December 13, 1982 Order, 696 F.2d 1210 (8th Cir. 1983); P.

App. at 2a, awarded NFO $151,000 in attorney’s fees for work

done on appeal. The court refused to apportion the award of

attorney’s fees to reflect the extent to which NFO failed to

prevail on the merits. 696 F.2d at 1211-12; P. App. at 3a-4a.

NFO failed in its claim against ARSPC and the Eighth Cir-

cuit affirmed the district’s judgment of dismissal. 687 F.2d

at 1179; App. at 3a. NFO also failed to prevail in four of its

claims against the remaining defendants: claims numbered

III (Attempt to Monopolize), IV (Monopolizations), V (Mer-

gers and Monopoly-AMPI) and VI (Merger and Acquisitions

Tending to Lessen Competition and to Create a Monopoly-

Mid-Am). NFO pressed all of these unsuccessful claims, which

constituted a substantial and disproportionate aspect of its

case, at trial and on appeal. 687 F.2d at 1191-92, 1206; App.

at 27a-29a, 57a-59a. Yet the court herein refused to apportion

the award of attorney’s fees accordingly.

The Eighth Circuit’s approach encourages antitrust plain-

tiffs to assert and pursue every possible antitrust claim, know-

ing that they will be compensated for time spent on all claims,

if successful on any. Such a result overtaxes the entire judicial

system by encouraging complex litigation and expensive dis-

covery on claims unworthy of the cost. While the Ninth Circuit

has reached a conclusion similar to that of the Eighth Circuit

in this case, the Second and Fourth Circuits have held that

an award of attorney’s fees must be apportioned to reflect the

degree to which an antitrust plaintiff prevailed.**

The Eighth Circuit’s Order also awarded NFO certain “ex-

penses” ** which have previously been held by other circuits

85 Compare Kane v. Martin Paint Stores, Inc., 439 F.Supp. 1054

(S.D.N.Y. 1977), aff'd, 578 F.2d 1368 (2d Cir. 1978); FLM Collision

Parts, Inc. v. Ford Motor Co., 411 F.Supp. 627 (S.D.N.Y. 1976),

modified on other grds., 543 F.2d 1019 (2d Cir. 1976), cert. denied,

429 U.S. 1097 (1977); Advance Business Systems & Supply Co. v.

SCM Corp., 415 F.2d 55, 70 (4th Cir, 1969), cert. denied, 397 US.

920 (1970) with Twin City Sportservice, Inc. v. Finley, 676 F.2d

1291, 1312-1313 (9th Cir.), cert. denied, 103 S.Ct. 364 (1982). See

also Henley v. Eckerhart, No, 81-1227 (Sth Cir. Sept. 28, 1981)

(unpublished), cert. granted, 102 S.Ct. 1610 (1983).

*6The Eighth Circuit awarded $8,363.95 for the following items of

“recoverable expenses above the attorneys’ fees and court costs

previously awarded”; air fares, meals and lodging, telephone,

express mai! and Federal Express/Emery Air Freight. 696 F.2d

at 1212; P. App. at 4a.

to be non-taxable costs of litigation.** Under §4, a successful

antitrust plaintiff has the right to recover the “cost of suit.”

Properly interpreted, the phrase “cost of suit” means only

those statutory costs specifically identified in 28 U.S.C. $1920

and Federal Rule of Civil Procedure 54(d). If Congress had

intended the “cost of suit” under §4 to mean expenses of

litigation, there would have been no reason for adding the

words “including a reasonable attorney’s fee,” since an at-

torney’s fee would necessarily be a part of the expenses

incurred in conducting the lawsuit.**

Moreover, the same words or phrases used in two statutes

pertaining to the same subject matter should be construed in

the same sense. Sands, Sutherland Statutory Construction,

§51.02 at 290 (1973). There being no significant difference

between “cost of suit” in the Clayton Act and “cost of suit” in

Rule 54(d) and 28 U.S.C. §1920, there is simply no reasoned

basis for departing from the accepted interpretation under

Rule 54(d) for what are recoverable expenses. See, e.g., State

of Illinois v. Sangamo Construction Co., supra, at 866.

Virtually all courts have rejected the interpretation of $4

by the Eighth Circuit and have limited prevailing plaintiffs

37 Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 309 n. 75

(2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980); Straus v. Victor

Talking Machine Co., 297 F. 791, 806-807 (2d Cir. 1924); State of

Illinois v. Sangamo Construction, 657 F.2d 855, 866 (7th Cir. 1981);

Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 223-

224 (9th Cir.), cert. denied, 379 U.S. 880 (1964).

88 This interpretation of §4 of the Clayton Act was espoused in the

leading decision of Straus v. Victor Talking Machine Co., supra.

The Straus interpretation of §4 was, until recently, uniformly

followed. The exception is Copper Liquor v. Adolph Coors Co.,

681 F.2d 1087 (5th Cir.), reh. gr., 1982-83 CCH Trade Cas. 65,079

(1982), the only authority relied upon by the court below to

support its position.

to recovery of costs specifically identified in 28 U.S.C. §1920.

Such a ruling would integrate the rules regarding costs of

suit.

CONCLUSION

The decision of the court below raises questions of impor-

tance relating to the remedial purposes of the antitrust laws

that require answer for the instruction of the Federal judi-

ciary and the antitrust bar. Accordingly, the petition for writ

of certiorari should be granted.

Respectfully submitted,

SYDNEY BERDE

Counsel of Record

BERDE & HAGSTROM, P.A.

Suite 2602

American National Bank

Building

Saint Paul, Minnesota 55101

(612) 291-8106

PETITIONER’S APPENDI*¥ A

STATUTES INVOLVED, PARTIAL TEXT

1. Section 1 of the Sherman Act, 15 U.S.C. $1, as amended,

which provides in pertinent part:

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or com-

merce among the several States, or with foreign nations,

is declared to be illegal. ...

2. Section 2 of the Sherman Act, 15 U.S.C. §2, which pro-

vides in pertinent part:

Every person who shall monopolize or attempt to mo-

nopolize, or combine or conspire with another person...

to monopolize any part of the trade or commerce among

the several states, or with foreign nations, shall be deemed

guilty of a felony... .

8. Section 1 of the Capper-Volstead Act, 7 U.S.C. §291

which provides, in pertinent part:

Persons engaged in the production of agricultural

products as farmers, planters, ranchmen, dairymen, nut

or fruit growers may act together in associations, corpo-

rate or otherwise, with or without capital stock, in collec-

tively processing, preparing for market, handling, and

marketing in interstate and foreign commerce, such

products of person so engaged. Such associations may

have marketing agencies in common; and such associa-

tions and their members may make the necessary con-

tracts and agreements to effect such purposes... .

4. Section 4 of the Clayton Antitrust Act, 15 U.S.C. §15,

provides in pertinent part:

Any person who shall be injured in his business or

property by reason of anything forbidden in the anti-

trust laws may sue ... and shall recover threefold the

damages by him sustained, and the cost of suit, including

a reasonable attorney’s fee... .

5. Section 6 of the Clayton Antitrust Act, 15 U.S.C. §17,

provides in pertinent part:

The labor of a human being is not a commodity or

article of commerce. Nothing contained in the antitrust

laws shall be construed to forbid the existence and

operation of labor, agricultural, or horticultural organi-

zations ... nor shall such organizations, or the members

thereof, be held or construed to be illegal combinations or

conspiracies in restraint of trade, under the antitrust

laws.

PETITIONER’S APPENDIX B

Robert B. ALEXANDER, et al.,

NATIONAL FARMERS ORGANIZATION,

Appellant,

ASSOCIATED MILK PRODUCERS, INC.,

Mid-America Dairymen, Associated Reserve Standby

Pool Cooperative, Appellees.

Wesley Johnson, Gary Hanman, Harold S. Nelson and

David Parr, Central Milk Producers Cooperative,

Appellee.

Robert B. ALEXANDER, et al.,

NATIONAL FARMERS ORGANIZATION,

Appellee,

Vv.

ASSOCIATED MILK PRODUCERS, INC.,

Appellant.

Mid-America Dairymen; Associated Reserve Standby

Pool Cooperative; Wesley Johnson; Gary Hanman;

Harold S. Nelson; David Parr; Central Milk Producers

Cooperative.

Robert B. ALEXANDER, et al.,

NATIONAL FARMERS ORGANIZATION,

Appellee,

ASSOCIATED MILK PRODUCERS, INC.,

Mid-America Dairymen, Inc., Appellant.

Associated Reserve Standby Pool Cooperative;

Wesley Johnson; Gary Hanman; Harold S. Nelson;

David Parr; Central Milk Producers Cooperative.

Nos. 81-1235 to 81-1237.

United States Court of Appeals,

Eighth Circuit.

Dec. 13, 1982.

Before HEANEY and McMILLIAN, Circuit Judges, and

BENSON,* Chief Judge.

ORDER

Following our decision in Alexander v. National Farmers

Organization, 687 F.2d 1173 (8th Cir. 1982), the National

Farmers Organization (NFO) moved this Court for an award

of expenses on appeal, including attorneys’ fees, court costs,

and other miscellaneous costs.' We have reviewed NFO’s

motions, memoranda, and affidavits; the various defendants’

memoranda in opposition to NFO’s requests; and NFO’s re-

sponse to the defendants’ objections. We make awards based

on the reasoning below.

[1] On the issue of attorneys’ fees expended on appeal,

NFO requests the following amounts to pay for services

provided by the firm directing its appeal and other attorneys

involved:

* The Honorable PAUL BENSON, Chief Judge, United States District

Court for the District of North Dakota, sitting by designation.

1 We note that NFO only requests fees and costs connected to the

appeal of its antitrust counterclaim, styled “Phase II” of the appeal

in its schedule of fees and costs. We also treat NFO’s request as

seeking expenses from defendants found liable under its antitrust

counterclaim, thereby excluding any expense claims ogainst <As-

sociated Reserve Standby Pool Cooperative (ARSPC).

Total Phase II Hours

Firm/ Total Phase X Proposed Billing

Attorney Il Hours . Rates

Akin, Gump,

Strauss, Hauer

& Feld 2,348.70 $230,010.00

Marvin Beshore 333.30 19,998.00

Richard A. Green 42.45 6,367.50

TOTALS ...... 2,724.45 $256,375.50

NFO considers this total to be the basic, or “lodestar,” fee

to which it is entitled, representing a reasonable number of

hours expended on appeal multiplied by a reasonable legal

rate per hour. NFO further requests that we enhance this

award by fifty percent (applying a multiplier of 1.5 to the

lodestar figure) in consideration of the difficulty of this ap-

peal and the quality of NFO’s representation on appeal. Thus,

NFO’s total request for attorneys’ fees expended on appeal

is $384,562.

We have considered the nature of legal services provided

to NFO on this appeal, the quality of those services, the

myriad of legal and factual questions raised, and the outcome

of the case. We reduce the number of hours reasonably ex-

pended on NFO’s behalf to those necessary to pursue this

type of appeal without duplication of time and expertise. We

also find that $125 per hour is the maximum reasonable legal

rate applicable to any services provided, based on billing rates

in this Circuit over the time period taken to prepare this

appeal. We adjust the rates applied to the various services

provided in that preparation accordingly. Under this ap-

proach, we find that the lodestar figures applicable to NFO’s

representatives on appeal are:

Firm/ Reasonable Phase II Hours X

Attorney Reasonable Billing Rates

Akin, Gump, Strauss,

Hauer & Feld $130,000

Marvin Beshore 16,000

Richard A. Green 5,000

TOTAL $151,000

We refuse to enhance this total lodestar figure, as requested

by NFO, since we do not see this as an extraordinary case

meriting such enhancement. We do not detract from the im-

portance of the case, but NFO’s success here can be attributed

to long hours and meticulous preparation, which we feel have

been reasonably considered in our calculation of the lodestar

figure. We also decline to apportion the award of attorneys’

fees to NFO based on the defendants’ conceptions of the scope

of NFO’s victory, as suggested in opposing memoranda filed

by Associated Milk Producers, Inc. (AMPI) and Central

Milk Producers Cooperative (CMPC). The question of appor-

tioning attorneys’ fees based on the number of issues on which

a party prevails is pending before the Supreme Court in its

grant of certiorari in Hensley v. Eckerhart, —— U.S. —,

102 S.Ct. 1610, 71 L.Ed.2d 847 (U.S.1982). We do not reach

that apportionment question here, because the issues raised

on this appeal are so interrelated that we cannot say that any

of the services compensated out of this award were not part

of NFO’s success on appeal. Also, we have considered the

ultimate outcome of the appeal in our calculation of the lode-

star figure and our refusal to enhance that figure by the

suggested 1.5 multiplier. Therefore, we order attorneys’ fees

in favor of NFO in the amount of $151,000.

[2] NFO further requests its costs on appeal pursuant

to Fed.R.App.P. 39, in essence the costs of copying briefs and

the appendix in this case, in the amount of $11,510.50. See

Alexander v. National Farmers Organization, supra, 687 F.2d

at 1210. NFO bases this request on a copying cost of fifty cents

per page. We find this per page charge unreasonable in this

case, and order these court costs be paid by the defendants only

to the extent of twenty cents per page, for a total of $4,604.20.

[8] Finally, NFO seeks an award of expenses on appeal

totaling $17,195.05, covering disbursements allegedly attribut-

able to pursuing this appeal. NFO asserts these expenses are

recoverable under language in the Clayton Act, as amended,

authorizing awards of “the cost of suit, including a reasonable

attorney’s fee” in antitrust damages actions, 15 U.S.C. § 15

(Supp. V 1981), and in antitrust suits seeking injunctive re-

lief, 15 U.S.C. §26 (1976). NFO recognizes a split in the cir-

cuits on whether this language authorizes an award of expenses

beyond those normally considered as court costs. Compare State

of Illinois v. Sangamo Construction Co., 657 F.2d 855, 866 (7th

Cir. 1981) (“cost of suit” in Clayton Act same as “costs of

suit” in Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920 (1976 &

Supp. II 1978)) with Copper Liquor, Inc. v. Adolph Coors

Co., 684 F.2d 1087, 1100-1101 (5th Cir. 1982) (expenditures

not listed in 28 U.S.C. § 1920 (1976 & Supp. II 1978) re-

coverable under 15 U.S.C. § 15 (Supp. V. 1981)). We are

inclined to agree with a liberal interpretation of the Clayton

Act which allows an award of actual expenses incurred on

appeal, whether considered part of the “cost of suit” or part

of a “reasonable attorney’s fee.”” See Copper Liquor, Inc. v.

Adolph Coors Co., supra, 684 F.2d at 1101.

We do not agree, however, that all items listed in Schedule

C of the affidavit supporting NFO’s motion for a disbursements

award can be attributed solely to this appeal, as opposed to

being general overhead normally paid by law firms and law-

yers as a cost of doing business. We also reduce NFO’s claims

on some items which are attributable to this appeal to reflect

a reasonable amount of expenses necessary for an appeal of

this magnitude. We decide that only the following items are

recoverable expenses above the attorneys’ fees and court costs

previously awarded:

Item Firm/Attorney Amount

Air Fares, Meals & Akin, Gump, Strauss,

Lodging Hauer, & Feld $3,953.00

(Akin Firm)

Marvin Beshore 968.35

Telephone Akin Firm 1,529.00

Marvin Beshore 698.96

Express Mail Akin Firm 1,192.14

Federal Express/

Emory Air Freight Akin Firm 32.50

TOT... $8,363.95

This award of expenses is consistent with our allowing only

reasonable attorneys’ fees and court costs, and with the goal

of encouraging private enforcement of the antitrust statutes.

We therefore order awards in favor of NFO of $151,000 for

reasonable attorneys’ fees, $4,604.20 for court costs, and

$8,363.95 for reasonable excess expenses incurred in pursuing

this appeal, to be paid in equa! shares by defendants AMPI,

CMPC, and Mid-America Dairymen, Inc. (Mid-Am).

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