# Petition for Writ of Certiorari — Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1313%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 956 ## Text Rp a gupreme Court, U.S QOD sl 7 rd FILED me. SEP 1 4 1992 IN THE | OFHOE OF THE CLERK Suprenw Court of the Wuited States OCTOBER TERM, 1992 COLORADO INTERSTATE GAS COMPANY, Petitioner, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, NGPL-TRAILBLAZER, INC., Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit PETITION FOR A WRIT OF CERTIORARI MICHAEL L. BEATTY REX E. LEE * REBECCA H. NOECKER CARTER G. PHILLIPS COLORADO INTERSTATE MarRK E. HADDAD GAS COMPANY RICHARD D. KLINGLER Post Office Box 1087 SIDLEY & AUSTIN Colorado Springs, CO 80944 1722 Eye Street, N.W. WILLIAM C. MCCLEARN Washington, D.C. 20006 JOSEPH W. HALPERN (202) 736-8000 ELIZABETH A. PHELAN J. KENT RUTLEDGE HOLLAND & HART LATHROP, RUTLEDGE & BOLEY Post Office Box 8749 Post Office Box 4068 Denver, CO 80201 Cheyenne, WY 82003 MARILYN S. KITE Counsel for Petitioner HOLLAND & HART 2020 Carey Avenue Suite 500 Cheyenne, WY 82001 September 14, 1992 * Counsel of Record aay WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 QUE Whether a jury verdict that defendant attempted monopolize, based on proof that defendant throug! Ga con cl excluded Its lower-priced competito} 5 | ) + 3n ” . » tnen charged s ipra-comipetitive prices, Can properly ' “thee ta er ! ion appeal solely because: \ 54 market share, though achieved through ; ; oes | )} na resu ne In Ssupra-competitive es 5: ) In Ul COUrtT S eStimation close enough 0 ti SUDD [ i verdict of attempted | monopolization; and mono} ower and supra-competitive profits i( 1 ¢ ab redatl VOU I { last 10} more ) siX\ \'é W het} er recovery oI aan TPS AW irded by special ict on a claim affirmed on appeal must be barred if rl . . +4 \« + ae 4) baal c rMne GQIStriect Cou Initially ellmina ec he Common } } L.7 es on ft Clan VOI aouple recove } } : } based on a second clain nd STIONS PRESENTED il PARTIES The parties to the proceeding below were: Colorado Interstate Gas Company, Natural Gas Pipe Line Com- pany of America, and NGPL-Trailblazer, Inc. The parent companies and subsidiaries ‘except wholly owned sub- sidiaries) of petitioner include: The Coastal Corpora- tion, Coastal Natural Gas Company, and Natural Fuels Corporation. TABLE OF CONTENTS Page QUESTIONS PRESENTED i PARTIES li TABLE OF AUTHORITIES iv OPINIONS BELOW l JURISDICTION 9 STATUTES INVOLVED 2 STATEMENT OF THE CASE 3 A. NGPL’s Anticompetitive and Tortious Conduct 4 B. The Proceedings Below 7 REASONS FOR GRANTING THE PETITION 1] CONCLUSION 26 a iv TABLE OF AUTHORITIES CASES Page ADP-Financial Computer Servs., Inc. Vv. First Nat’l Bank, 703 F.2d 1261 (11th Cir. 1983) 16 Albergo v. Reading Co., 372 F.2d 83 (3d Cir. 1966), cert. denied, 386 U.S. 983 (1967) .......... : 18 Associated Radio Serv. Co. Vv. Page Airways, Inc., 624 F.2d 1342 (5th Cir. 1980), cert. denied, 450 U.S. 1030 (1981) 14 Atlantic & Gulf Stevedores, Inc. Vv. Ellerman Lines, Ltd., 369 U.S. 355 (1962) 19 Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943 (3d Cir. 1985) 22 Beltran Vv. Myers, 701 F.2d 91 (9th Cir.), cert. de- nied, 462 U.S. 1134 (1983) . 4 Berkey Photo, Inc. Vv. Eastman Kodak Co., 603 F.2d 268 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980) 18 Board of Educ. Vv. Dowell, 111 S. Ct. 630 (1991) 24 Borchers Vv. Commissioner, 943 F.2d 22 (8th Cir. 1991) 22 Broadway Delivery Corp. Vv. United Parcel Serv., Inc., 651 F.2d 122 (2d Cir.), cert. denied, 454 U.S. 968 (1981) ’ Butler v. Eaton, 141 U.S. 240 (1891) aaa 25 Calamia v. City of New York, 879 F.2d 1025 (2d Cir. 1989) 18 Christianson V. Colt Indus. Operating Corp., 486 U.S. 800 (1988) 12 Exxon Corp. Vv. United States, 931 F.2d 874 (Fed. Cir. 1991) 22 Gainesville Utils. Dept. Vv. Florida Power & Light Co., 573 F.2d 292 (5th Cir. 1978) ..... 19 Gallick v. Baltimore & Ohio R.R., 372 U.S. 108 (1963) LP aad ten - 19 Jackson V. Jackson, 276 F.2d 501 (D.C. Cir.), cert. denied, 364 U.S. 849 (1960) 25 Jones V. Lewis, 957 F.2d 260 (6th Cir.), petition for cert. filed (U.S. May 26, 1992) (No. 91- 8404) 22 Jones V. Miles, 656 F.2d 103 (5th Cir. Unit B NS ane aso fees ae ata arn ack ae 18 Vv TABLE OF AUTHORITIES—Continued Page Lessig V. Tidewater Oil Co., 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 9383 (1964) . 13 Liljeberg Vv. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) 24 Luckey Vv. Miller, 929 F.2d 618 (11th Cir. 1991). 22 MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891 (1983) . ise ene et Maggard v. O’Connell, 703 F.2d 1284 (D.C. Cir. 1983) Paar reece, 22 Mercer Vv. Long Mfg. N .C., Inc., 671 F.2d 946 (5th Cir. Unit A 1982) ... iss ee a 17 Mercer V. Theriot, 377 U.S. 152 (1964) nes 12 In re Merritt Logan, Inc., 901 F.2d 349 (3d Cir. 1990) ‘ 17 Messenger V. Anderson, 225 U.S. 486 (1912) 12 Michigan Surety Co. v. Service Mach. Corp., 277 F.2d 531 (5th Cir. 1960) _. 25 Morris V. Pennsylvania R.R., 187 F.2d 837 (2d. Cir. 1951) 19 Newball v. Offshore Logistics Int'l, 803 F.2d 821 (5th Cir. 1986) a SPA aa 22 Panama Processes, S.A. Vv. Cities Serv. Co., 789 F.2d 991 (2d Cir. 1986) ...... 22,24 Panama R.R. Vv. Napier Shipping Co., 166 U.S. 280 (1897) . 12 Parts & Elec. Motors, Inc. Vv. Sterling Elec., Inc., 866 F.2d 228 (7th Cir. 1988), cert. denied, 493 U.S. 847 (1989) 22 Piambino V. Bailey, 757 F.2d 1112 (11th Cir. 1985), cert. denied, 476 U.S. 1169 (1986) ... 22 Pierce Oil Corp. v. United States, 9 F.R.D. 619 (E.D. Va. 1949) Re AO aR) oye ine 25 Pratt v. Brown Mach. Co., 855 F. 2d 1225 (6th Cir. 1988) 16 Pritchard. v. Liggett & Myers Tobacco Co., 370 F.2d 95 (3d Cir. 1966), cert. denied, 386 U.S. 1009 (1967) aN: isin 19 vi TABLE OF AUTHORITIES—Continued Quern V. Jordan, 440 U.S. 332 (1979) .. Reece V. Georgia, 350 U.S. 85 (1955) ............ Rheuport Vv. Ferguson, 819 F.2d 1459 (8th Cir. Robles v. Exxon Corp., 862 F.2d 1201 (5th Cir.), cert. denied, 490 U.S. 1051 (1989) .. Ryko Mfg. Co. v. Eden Servs., 823 F.2d 1215 (8th Cir. 1987), cert. denied, 484 U.S. 1026 (1988) Sherman Vv. Burke Contracting, Inc., 891 F.2d 1527 (lith Cir.), cert. denied, 111 S. Ct. 353 Gf RUPWOD oisaisniccnscinsssaxelaavectieneces chunaleenianiete lea eeeanens Smith v. Bounds, 813 F.2d 1299 (1987), reh’g, 841 F.2d 77 (4th Cir. 1988), cert. denied, 488 US. 869 (1988) . - Spectrum Sports, Ine. V. McQuillan, cert. “granted, 112 S. Ct. 1557 (1992) oe 3 Sprague Vv. Ticonic Nat’l Bank, 307 U.S. 161 (1939) aids cuiaoGncuacciaetaenaacaaee ata Standard Oil Co. v. United States, 429 U.S. 17 (1976) Stewart & Stevenson Servs., Inc. Vv. Pickard, 749 F.2d 635 (11th Cir. 1984) . Video Int'l Prod., Inc. Vv. Warner-Amex Cable Con munications, Inc., 858 F.2d 1075 (5th Cir. 1988), cert. denied, 491 U.S. 906 (1989) W.D. Lawson & Co. V. Penn Cent. Co., 456 F.2d 410 {G00 GUE, APPR) ocsieccceee Walker v. Pettit Constr. Co., 605 F.2d 128, reh’g, 611 F.2d 950 (4th Cir. 1979) ......... 7 Washington V. Washington State Commercial Pas- senger Fishing Vessel Ass’n, 443 U.S. 658 CE susan: 2sandeekecenesaens eee ee eee Werner V. Carbo, 731 F.2d 204 (4th Cir. 1984) Zant Vv. Stephens, 462 U.S. 862 (1983) 17, 16, 16 16 19 — [D> — S on Vil TABLE OF AUTHORITIES—Continue STATUTES AND RULES 49 (a) 60 (b) OTHER AUTHORITIES 7 a: Moore, Moore ’s Fe de ral Practice 60.26 (1992) IN THE Suprenw Court of the United States OCTOBER TERM, 1992 No. 92- COLORADO INTERSTATE GAS COMPANY, Pe titione Vv Ye NATURAL GAS PIPELINE COMPANY OF AMERICA. NGPL-TRAILBLAZER, INC.., Re sponde ii fs. Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit PETITION FOR A WRIT OF CERTIORARI Petitioner respectfully requests that a writ of certiorari issue to review the judgments and opinions of the United States Court of Appeals for the Tenth Cireuit in this case or, at a minimum, that this petition be held in abeyance pending this Court’s resolution of No. 91-10, Spectrum Sports, Ine. V. McQ villan. OPINIONS BELOW The opinion of the court of appeals is reported at 962 F.2d 1528, and is included in the Appendix at pp. la-14a. The order of the court of appeals denying rehearing is included in the Appendix at pp. 110a-1lla. The order of the district court appealed from is included in the Appendix at pp. 42a-53a. The earlier opinion of the court of appeals in this case is reported at 885 F.2d 683, and is ) included in the Appendix at pp. 15a-4ta. The opinion of the district court denying respondents’ ».0tion for judgment notwithstanding the verdict and fur a new trial is re- ported at 661 I. Supp. 1448, and is .neluded in the Ap- pendix at pp. Sia-L09a. Tor the assistance of the Court, the special verdict forms employed by the jury are in- cluded in the Appendix at 112a-119a. JURISDICTION The opinion and judgment of the court of appeals was entered on May 6, 1992. A timely petition for rehearing was denied on June 16, 1992. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254¢1). STATUTES INVOLVED Section 2 of the Sherman Act provides in pertinent part: “Every person who shall monopolize, or attempt to monopolize ... shall be deemed guilty of a felony ws 15 U.S.C. § 2. Section 4 of the Clayton Act provides in pertinent part: A|ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor... and shall recover threefold the damages by him sustained, and the cost of suit, in- x cluding a reasonable attorney's fee.” 15 U.S.C. $ Lota). Federal Rule of Civil Procedure 60(b) provides in rele- vant part: Qn motion and upon such terms as are just, the court may relieve a party or a party’s legal repre- sentative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has heen satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated ...; or (6) any other reason justifving relief from the operation of the judgment. Federal Rule of Civil Procedure 49(a) provides in rele- Vant part: The court may require a jury to return only a written find- ing upon each issue of so In that event the court ay submit to the jury written questions susceptibl of categorical or other brief answer or may ia written forms of the several we findings which might properly be made under the pleadings and evi- }" special verdict in the form of a special dence; or it may use such other etary of submitting the Issues and requiring the written findings thereon leems most approp ‘late. The court shall give to jury such explanation and instruction concerning natter thus submitted as may be necessary to enable the jury to make its findings upon each issue. STATEMENT OF THE CASE Petitioner, Colorado Interstate Gas Company (“CIG"), brought this case against respondents, Natural Gas Pipe- line Company of America (“NGPL’) and NGPL-Trail- blazer, Inc., alleging that NGPL had attempted to monop- olize the market for long-distance transportation of Wy- oming gas in violation of Section 2 of the Sherman Act. CIG also claimed that NGPL tortiously interfered with a CIG gas purchase contract and breached other duties. A jury found in favor of CIG on all counts. This case, which encompasses two appeals, presents two separate issues. The Tenth Cireuit on the first ap- peal affirmed CIG’s recovery on the tort claim and re- versed the jury’s antitrust verdict by relying upon an extreme standard for proving attempted monopolization claims under Section 2 of the oe Act. On the sec- ynd appeal, the Tenth Circuit limited CIG’s full recovery of damages on the seem affirmed tort claim, solely because damages common to the tort and antitrust awards had been allocated to the antitrust award, which had been reversed on the first appeal. The panel’s rule limit- ing recovery merits this Court’s review, and, at a mini- mum, this Court should hold the petition pending resolu- tion of a case currently before this Court, Spectrum Sports, Ine. V. McQuillan, No. 91-10. 4 A. NGPL’s Anticompetitive and Tortious Conduct. CIG is a pipeline company that buys, transports, and sells natural gas. CIG’s pipeline begins in southwest Wyoming and runs east across Wyoming and then south into the Oklahoma and Texas panhandles. There, CIG’s pipeline connects with other major “trunk” lines that can carry the gus to the Midwest. NGPL is also a pipeline company. It owns one of the trunklines that intersects with CIG’s in Oklahoma. That pipeline runs northeast from Oklahoma to Chicago, I]- linois, where NGPL. sells natural gas to consumers. For many years, NGPL has purchased gas from CIG that CIG bought in Wyoming and transported to Okla- homa, where it delivered the gas to NGPL’s trunkline. In 1982, CIG and NGPL entered into a seven-year con- tract that required CIG to deliver and NGPL to purchase substantial volumes of natural gas. NGPL also has the largest economic interest in the relatively new Trailblazer Pipeline System, which trans- ports gas from southwest Wyoming to the midwest. NGPL-Trailblazer, Inc., a wholly owned subsidiary of NGPL, together with two partners, owns one of three segments of the Trailblazer System. This pipeline runs from southwest Wyoming, parallel to CIG’s pipeline as far as Cheyenne, and then continues east, where it inter- sects the NGPL pipeline. The System thus provides an alternative to CIG’s pipeline for moving Wyoming gas to the midwest. FERC imposed an unusual rate structure upon the Trailblazer System in which revenues would increase sharply, but only as the amount of gas flowing through the system (“throughput”) increased, thereby placing on the pipeline owners the risk that either the supply or the demand projections would not materialize. The Trail- blazer System cost $500 million to build, 70 percent of which was financed through debt. NGPL assumed roughly 50 percent of this debt and received control over roughly 50 percent of the System’s capacity. App. <>a.' Soon after the Trailblazer System began transporting gas in late 1982, NGPL found that throughput and con- sequently revenues were far less than had been projected. Consumption patterns ensured that there was little pros- pect for increasing the flow of gas in the system. Indeed, NGPL saw that under ordinary competitive conditions the Trailblazer System could not draw business away from other pipelines because the System, a new pipeline built at higher cost, had to charge significantly higher trans- portation rates than those of older, fully amortized pipe- lines, such as CIG’s. NGPL responded to this economic predicament with “reprehensible conduct” (App. 32a! that lacked in legiti- mate busi.ess justification: It manipulated its gas pur- chases to exclude CIG from the market for transporting natural gas, leaving Wyoming producers no choice but to use the higher-priced Trailblazer System. /d. 63a-64a, Sla-82a. Beginning in July 1983, NGPL refused to pur- chase and accept delivery of gas from CIG. This re- fusal effectively tied up roughly half of CIG’s long- distance transportation capacity because both the Service Agreement and the Natural Gas Act (“NGA”) required CIG-to reserve this capacity for NGPL in the event NGPL resumed purchases.’ /d. at 36a. 1NGPL’s substantial capacity control gave it the chief interest in the Trailblazer Svstem. Although CIG owned one of the three segments of the System, App. 30a n.14, it assumed a much smaller percentage of the debt and therefore controlled far less of the System’s capacity than did NGPL. CIG had no control over any pipeline capacity east of Cheyenne, and no control whatsoever over NGPL’s use of its capacity, even on the segment owned by CIG “=NGPL then took additional steps to further its scheme to ex clude CIG from the market. NGPI. deliberately interrupted C1IG’ attempts to provide transportation for new customers by n strategically timed demands for vas from CIG ApT it 32 63a. NGPL also perpetuated the tie-up by refusing t NGPL’s refusal to aecept gas from CIG forced CIG to stop purchasing and ultimately to relinquish its rights to purchase gas from several suppliers, including its largest, Champlin Petroleum, which then had to use the higher- priced Trailblazer System. /d. at 82a. CIG had arranged facilities for transportation of the Champlin gas from the fields to CIG’s system in Colorado. When NGPL’s ac- tions forced CIG to relinquish its gas purchase rights, CIG remained obligated to pay “demand charges’ for . bo +4 ras wae 1a o rT’ ne &-. > . ese gas transport facilities. These obligations formed the basis for the jury’s subsequent finding of more than land charge damages stemming from th NGPL’s antitrust violation and NGPL’s tortious in- () ers tn empted to use CIG’s pipelin nte ed by NGPL’s strategically | it ¢ s( de} ands Vnie! I reed nen ) ist the er System. / 63a. B he time the filing of CIt Vsu ed NGPL’s nticompetitive tactics NGPL had managed to increase Trailblazer’s share of the rket for long-distance transportation of Wyoming gas 1] to 54°°, while CIG’s fell from 23% to 13 j ri \Vlore it NGPL’s predatory tactics left Trailblazer as the ‘‘one transportation alternative for Wyoming natural gas” ‘id. at 68a), because the other Wyoming pipelines were tied-up, or full-to-capacity as a result of CIG’s tie-up, or otherwise unavailable. /d. Con- sequently, NGPL’s actions harmed the market as well as CIG: suppliers and shippers that needed long-distance insportation were forced to pay ‘“supracompetitive CIG renominate” a lower minimun irchasé buyer in NGPL's position to deer x | Sla, 31 2a. Ana, by in diatel CIiG with } ) NGPI its { . iv rer (Tt " O hu t ' | | (8a-82:; 20. prices” (id. at 39a), which were then passed on to con- y , . a sumers. /d. at 64a-65a. B. The Proceedings Below. 1. CIG filed this lawsuit in the United States District Court for the District of Wyoming, alleging that NGPL had attempted to monopolize the market for long-distance interstate transportation of Wyoming natural gas, had + breached its contract, had breached its duty to perform on the contract in good faith, and had tortiously inter- fered with CIG’s contract with Champlin Petroleum. Af- ter an eight-week trial, the jury returned special verdicts for CIG on all counts. The tortious interference verdict included demand charge losses of approximately $15 million and more than $24 million (later reduced to approximately $8 million) in restitution. In the Judgment, ter{ed] judgment on... the tortious interference claim in the amount of $39,231,072.00.” Judgment, at 2 (Nov. 10, 1986; Doe. 578). The court also reduced judgment amount for the combined claims because the demend charge losses and certain future lost profits were common to both the tort and antitrust claims. /d. The court thereby avoided awarding a double recovery against NGPL. The court expressly stated, however, that it was permitting the jury throu lal i | } S| award demand charge damages as part of both the tor- ls nte rire re?) ( ePrdhl nd ne ? ) aT Ve rade ~ a) hat these damages would stand 1f either verdi Was al- Ty) y°?) ed r nN , ¢ I") RR4AQ-5? ~ Sf } a ¥ ‘ . » | , , , . , NGPL and CIG understood that the tort judgment was : . . : , , ; ; ; ‘ + . +ity1t) > ‘ . lamonr rh « - ‘ ‘ : Nased on vpotn restitution anda aen Md Chalrbee damages. I} TS Moto? TO) ldgme! I na ne?! ] Ss briel n ToT 1 ; \ |) 4 ! nere NU] | ‘ ? ~ ? al a. : | s | ] ind enarge | ~ Les ’ ‘ {v} ei | ‘ 1IST ) ( + , WY x , court denied NGPL’s n gme! + ] } + } @) ed ’ i ne ) y ‘ ’ y é ‘ | 5 | } bs t ; y ' ’ ~ t) ~ i res (17 ] \ On the attempted monopolization claim, the district court ruled that (1) “{tl{he jury could have concluded that competition actually diminished” (App. at 64a); (2) “a lower priced competitor was excluded in favor of a higher-priced competitor without a corresponding in- crease in allocative or productive efficiency” tid.) ; and (3) “CIG’s exclusion resulted in higher prices to producers, shippers, and consumers of natural gas.” /d. at 65a The district court also recognized that CIG had proven a dangerous probability of successful monopolization by showing that NGPL had in fact succeeded in exercising monopoly power: The weight of the evidence supports the jury's find- ine that NGPL possessed the power to control price s and exclude competition, That evidence showed NGPL’s aggressive conduct, CIG’s exclusion from the market, the market’s vulnerability to increases in transportation prices and that prices actually — in- creased, This constitutes sufficient evidence from Which the jury could conclude that CIG proved a dangerous probability of success by a preponderance of the evidence. Id. at 76a (emphasis added }.* 2. The court of appeals reversed on all but the tortious interference claim. The court held that the breach of con- tract claims were pre-empted. The court also reversed the jury’s verdict of attempted monopolization. The court recognized that NGPL’s predatory conduct had enabled NGPL both to increase the Trailblazer System’s market share to 54% and “to charge supracompetitive prices.” ‘Regarding the element of a dangerous probability that the at- tempt to monopolize would succeed, the jurv was instructed that “a firm must possess market strength—market strength that ap proaches monopoly power; that is, the ability to control prices anc exclude competition.” Jury Instr. No. 33 (Doc. 574). Id. at 36a, 39a.!| Nevertheless, the court of appeals held hat this evidence was insufficient to support a claim of attempted monopolization. Such a claim, the court held, requires a showing that the defendant is likely to achieve igher market share than 54%, typically “between 70 percent and 80 percent.” /d. at 34a-35a & n.18. The court also rejected the claim because “the Trailblazer System's ability to charge supracompetitive prices” would likely last only six vears, at which point “the Trailblazer System would be helpless to compete against the unused and inexpensive capacity of CIG’s system.” Jd. at 39a-40a. L The court of appeals affirmed the tort verdict despite NGPL’s continued argument on appeal that the tort judgment did not support demand charge damages.* At three points, without discussing damage issues, the court simply stated that it was affirming the tort “verdict.” App. 16a, 29a, 41a. CIG filed a petition for a writ of certiorari from this Court based in part on the conflict between the Ninth and Tenth Circuits over the standard for attempted monopoli- zation. After requesting the views of the Solicitor Gen- eral, 110 8S. Ct. 2164 (1990), this Court denied the peti- tion, 111 8. Ct. 441 (1990). ‘The court had no illusions about the reprehensible nature of NGPUL’s actions: Natural’s predatory conduct consisted of exercising its contract rights with CIG to prevent CIG from offering transportation services to long distance customers. Because Natural reserved a certain amount of space in CIG’s pipeline, CIG could not offer that space to others. By continuing to reserve large amounts of gas and taking gas when CIG threatened to sell Natural’s capacity, Natural insured that CIG could not offer Natural’s reserved capacit to the market *NGPL’s First Appeal Br. 46 n.387 (“The district court also rred in awarding future tort damage r the leyedly useles rights of CIG in Canyon Creek and Overthrust’”?) (emphasis added 10 3. On remand, the district court granted CIG’s motion to execute the tort judgment. The court held that the tort “verdict” as embodied in its Nov. 10, 1986 Judgment affirmed on appeal required the judgment to include both restitution and demand charge damages. App. 48a-50a. It concluded: ‘The jury awarded damages to CIG for de- mand charges under two different causes of action, anti- trust and tortious interference. CIG could only recover under one. Just because one of the causes of action fails does not inean the plaintiff is not entitled to recover under the remaining cause of action.” /d. at 50a. The court of appeals reversed this order. The panel 10ted that the initial panel had “affirmed the tortious interference part of the district court’s decision and judgment,” id. at 9a, but held that the affirmance limited the damages recoverable to those allocated solely to the tort award before the antitrust judqment was reversed. Id. at 9a-lla. Thus, CIG could not recover the damages in tort that state law mandated, simply because the trial court had allocated duplicative damages to an award later reversed on appeal. According to the court of appeals, CIG had defended an antitrust judgment that supported the demand charge damages and could not recover those damages even if they were damages caused by NGPL’s tortious conduct. /d. at 10a. The court reasoned that the district court had “originally deducted these demand damages because the jury duplicated them in both the tort and antitrust claim awards,” and, on remand, the district court was limited to the “ministerial” task of entering the truncated tort award of approximately $8 million in restitution damages, plus post-judgment interest. /d. at lla, 12a. The court also held that Rule 60(b) did not justify the district court’s remand order. It held that Rule 60(b) 16) could not be ‘used to alter the substantive content of a judgment once it has been affirmed on appeal except in 11 extraordinary situations.” Jd. at lla. The court held that this rule applied to bar full recovery on the tort claim even though the contemporaneous antitrust judg- ment had been reversed. REASONS FOR GRANTING THE PETITION This case presents two issues of broad importance whose resolution by the Tenth Circuit conflicts with deci- sions of this Court or other courts of appeals. First, the panel’s antitrust ruling sets forth an unprecedented and extreme standard regarding the proof required to estab- lish attempted monopolization under Section 2 of the Sherman Act. Because this Court has granted certiorari in another case to resolve this precise issue, see Spectrum Sports, Ine. Ve MeQuillan, No. 91-10, the petition should at least be held in abeyance pending resolution of that case. Second, the panel has crafted a rule that bars full recovery of damages for claims affirmed on appeal, when- ever a portion of those damages is allocated to other claims to avoid doubie recovery, and those other claims are re- versed on appeal. This rule conflicts with the established practice of several other circuits, as well as with broader principles mandating full recovery upon claims embodied in a judgment affirmed on appeal. The rule also is wholly inconsistent with Rule 49(a), which provides for the use of special verdicts in multiple claim cases in order to ensure complete recovery of damages awarded by a jury, while avoiding retrial in the event of a partial reversal on appeal. In addition, the panel’s decision marks an unwarranted and harmful departure from established practice under Fed. R. Civ. P. 6016115) and 60(b) (6). Except in the Tenth Circuit, affirmance of a judgment does not preclude relief otherwise available pursuant to Rule 60(b! (6), except for matters clearly resolved on appeal, and Rule 12 60(b)(5) provides for relief where, as here, recovery upon one claim is dependent upon another judgment later reversed on appeal. The rule that emerges from the Tenth Circuit’s decision creates great uncertainty and promises to produce unfair results in a broad range of cases, i. This case should be held pending the resolution of No. 91-10, Spectrum Sports, Inc. Vv. McQuillan, cert. granted, ll2 8. Ct. 1557 (1992), which addresses the precise issue of the standard for determining attempted monopolization that also underlies the Tenth Circuit’s antitrust deter- mination. The Tenth Circuit set aside an antitrust award in CIG’s favor on the ground that the jury and district court erred in determining that NGPL had violated the prohibition in Section 2 of the Sherman Act against at- tempted monopolization." In Spectrum Sports, this Court will address the standard to be applied in Section 2 at- tempted monopolization cases, The grant of certiorari is limited to a single question: Whether a manufacturer’s distributor expressly ab- If the rule of these cir- cuits had been applied in this case, CIG would have been able to recover the entire award of damages, including demand charge damages. The Tenth Circuit’s decision is also inconsistent with cases that hold that when one of several claims is set aside, full recovery must be allowed for damages attributable to the claim affirmed on appeal. The Fifth Circuit ordered a new trial after setting aside one of several claims because the original allocation of damages among the different claims would prevent the plaintiff’s full recovery on the claims that the court of appeals upheld. including an antitrust claim. See Video Int'l Prod., Ine. v. Warner- Amex Cable Communications, Inc., 858 F.2d 1075, 1080, 1085-86) (5th Cir. 1988), cert. denied, 491 U.S. 906 (1989); see also Mercer ve Long Mfg. N.C., Inc., 671 P.2d 946, 949 (5th Cir, Unit A 1982) (“Had the special interrogatories in the original trial been framed in such a manner that the assessment of damages had been segre- gated for each theory of liability, we would willingly affirm both the finding of liabilitv under strict liability and the award of damages”). In Ryko Manufacturing Co. v. Eden Services, 823 F.2d 1215 (8th Cir. 1987), cert. denied, 484 U.S. 1026 11988), a jury found liability on antitrust, fraud, and breach of contract claims, but awarded dam- ages only pursuant to the antitrust claim. On appeal, the Kighth Circuit reversed the antitrust claim, but directed retrial on the fraud and contract claims. The Court di- rected retrial on the contract claims because the judgment ~The Third Circuit has applied an even more aggressive rule: it upheld a damage award linked solely to a claim reversed on appeal, on the ground that the damages were supported by a related claim presented to, but not expressly passed upon by, the jury. See In re Merritt Logan, Inc., 901 F.2d 349, 353. 363-64 (3d Cir. 1990). 1s had contained no damages separately attributable to the contract claim. /d. at 1239. See also Berkey Photo, Inc. \ Bastman Kodak Co., 603 F.2d 268, 279-90, 299-304 (2d Cir, 1979) (Sherman Act Section 2 claim and related dam- age award set as:de. but retrial ordered to allow full recov- ery of damages on alternative, Section 1 claim upheld on appeali, cart. denied, 444 U.S. 1093 (1980) ." At bottom, these circuits would allow a plaintiff in CIG’s position to recover the full amount of damages attributable to conduct such as NGPL’s. Under the Tenth Circuit’s rule, plaintiffs in these cases would have re- covered only damages that had not been initially attrib- uted to the claim reversed on appeal. 2. The Tenth Circuit’s rule also marks an unjustified departure from other circuits’ treatment of Rule 49/a) and from their use of special verdicts. In this case, the jury found by special verdiet—which the trial court held Was supported by substantial evidence—that C'G suf- fered more than $23 million in damages from NGPL’s tortious interference with contract. Rule 49(a) pro- vides for special verdicts to operate in precisely these circumstances to allow the appellate court to set aside only that portion of the damage award attributable solely to the claim reversed on appeal. The purpose of a Rule 49(a! special verdict is to avoid confusion, appellate uncertainty and the need ® See also Calamia Vv. City of New York, 879 F.2d 1025, 1036 (2d Cir. 1989) (damage award set aside to allow full recovery on affirmed claims when one of multiple claims reversed, only because no spe- cial verdicts existed to allow affirmances of full award on remaining Claim); Jones V. Miles, ae 5 F.2d 103 (5th Cir. Unit B 1981) (same) ; Albergo Vv. Reading Co., 372 F.2d 83, 85-86 (3d Cir. 1966) (same), cert. denied, 386 US. 983 (1967); MCI Communications Corp. V. American Tel & Tel. Co., T08 F.2d 1081, 1168 (7th Cir.) (several of multiple monopolization counts found to be without basis, requir- ing retrial of damages to ensure recovery upon affirmed counts), cert. denied, 464 U.S. 891 (1983). 19 for additional proceedings by identifying the bases i Which the jury rendered its verdict. In cases such us this, involving multiple, alternative theories of recovery, the Rule 49(a) special verdict has been described as a ‘wonder to behold.’ Brown, Federa! Special Verdicts: The Doubt Eliminator, 44 F.R.D. bos, S44 (1967). This is so because the use of a special verdict in multiple theory of recovery cases eliminates the uncertainty as to whether the jury’s verdict was based wholly on an improper theory requiring retrial of the case, as with a general ver- dict, and ‘reveals the whole case for what it is, both ; fact and law, for complete and final acceptance of the correct legal theory by the reviewing Court.’ [?d. |, at 345. Stewart & Sfevenson Servs., Ine., 749 F.2d at 644 (cita- tions omitted! ; see Gainesville Utils. Dept. v. Florida Power & Light Co., 573 F.2d 292, 294 n.3 (5th Cir. 1978) (citing cases). Other circuits, too, have given this full effect to special verdicts in similar circumstances.'" The Tenth Circuit’s rule conflicts with this approach to special verdicts and entirely destroys their utility. See, e.g. Atlantic & Gulf Stevedores, Inc. Vv. Ellerman Lines, Ltd., 309 U.S. 355, 364 (1962) (appellate courts must give special verdicts full effect unless they are in ir- reconcilable conflict); Robles Vv. Ewvon Corp., 862 F.2d 1201, 1204 (5th Cir.) (citing cases!, cert. denied, 490 U.S. 1051 (1989); Morris v. Pennsylvania R.R., 187 F.2d &37, 840-41 (2d Cir. 1951) ‘citing cases): ef. Gallick Vv. Baltimore & Ohio R.R., 372 U.S. 108, 119-22 (1963). Here, the special verdicts returned permitted the court of appeals ‘or district court on remand) to assess precisely the full extent of CIG’s damages from 1 See, €.8., ‘pra, pp. 16-18; cf. Rheuport vo Ferguson, 819 F.2d 1459, 1464 (8th Cir. 1987): Walker vo Pettit Constr. Co., 605 F.2d 128, 131, rehk’g, 611 F.2d 950 Ith Cir. 1979): Pritehard \ Liggett & Myers Tobacco Co., 370 F.2d 95, 95-96 (3d Cir. 1966) cert, denied, 386 U.S. 1009 (196 7 7 99 _—_— ems only issues “directly in issue” and necessarily re- solved; “|wlhile a mandate is controlling as to matters Within its compass, on the remand 2 lower court is free as to other issues.”’ Spraque V. Ticonie Nat'l Bank. 307 U.S. 161, 168 (1939). “The doctrine of law of the case comes into play only with respect to issues previously Quern V. Jordan, 440 U.S. 332. 347 n.18 (19791. Until this ease, courts of appeals have consistently limited the mandate rule, and related doctrine of law of the case, to issues decided on appeal “expressly or by ‘9 determined. necessary Implication.” Piambino v. Bailey, 757 F.2d L112, 1120 (11th Cir. 1985), cert. denied. 476 U.S. 1169 (1986) : The Tenth Circuit’s treatment of the mandate abandons the great advantage of the Sprague rule, which is that the appellate opinion clearly communicates to al] parties and the district court which issues have been definitively resolved. In cases such as this, where the court of appeals reverses one of multiple claims, the parties and district court will act at their peril regarding the extent of recovery that the surviving claims wil] support. Even for simple affirmances of claims, the extent to Which the court See also. €:2.. Jones Yy. Leu . 957 F.2d 260). 26? Gth Cir. pet tion Pay CETT. filed Liss: May 26. 1992 (No. 4] R104 Borchers Vv. Commissioner, 942. F.2d 22, 23 (8th Cir. 1991): FB Co? Dp. y. Unite d Stite Ss, O31 I’ 2d S74. S77 ey (| Cir. 199] cl? qd cases cited); Luekey vo Mille r, 929 F.2d 618, 621 (11th Ci) 1991 (and cases cited); Parts & Elec. Motors, Ine. v. Sti rling Elec., Ine. 866 F.2d 228, 231-32 (7th Cir. 1988) (and cases cited), cert. de nied, 193 U.S. 847 (1989): Smith vy. Bounds, 813 F.2d 1299. 12306 (198% reh’g, 841 F.2d 77 | Ith Cir. 1988). cert. denis f, 488 U.S. 869 (1988 Newball vy. Offshore Logistics Int'l, 802 F.2d 821, 826 (Sth Cir L986); Panama Processes, S.A. Vv. Cities Serv. Co., 789 F.2d 99). JUG (2d iy 1986 ) ; Banke rs Trust Co. V. Bethlehe m Steel Cor i. 761 F.2d 943, 950 (3d Cir. 1985) (and cases cited): Megqgard \y O'Connell, 703. F.2d 1284, 1289 (D.C. Cir. 1983); Beltron vo Mayes 701 F.2d 91, 93 (9th Cir.). cert. de nied, 462 U.S. 1134 (1983) 23 of appeals has fixed damages or resolved related damage issues Will always remain in doubt. The panel’s decision also imposes what is in essence a novel federal election of remedies requirement upon the formulation and appeal of a judgment containiny multiple claims. The panel reasoned that CIG should not be al- lowed tort damage recovery because “CIG had the demand charges within the antitrust damages award” and “vigor- ously fought through that {initial appeai] to sustain that judgment and arrangement of the damage award.”’ App. 10a. This innovation is unsound: election of reme- dies requirements serve to prevent double recovery of damages—the very result directly obtained by the pro- cedure followed by the district court in this case and by other circuits generally. The panel’s newly crafted rule does nothing but unfairly deprive plaintiffs ‘including CIG) of damages granted by jury verdicts and approved in district court decisions affirmed as to that verdict on appeal. 4. Rule 60(b), relied upon by the panel, is relevant to fuil recovery upon the tort claim only to the extent that relief from the judgment is required: CIG argues, of course, that the affirmed verdict and judgment already support award of the demand charge damages. See supra pp. 15-23. Even so, the Tenth Circuit’s interpretation of Rule 60(b) also departs from the governing rules es- tablished by this Court and other courts of appeals, and the panel’s nove! requirement will bar full recovery in a broad range of cases. The panel’s decision reimposes a long-abandoned and improper restriction on the operation of Rule 60(b) (6). The panel determined that “Rule 60(b) (6) cannot be properly used to alter the substantive content of a judg- ment once it has been affirmed on appeal except in extraor-_ dinary situations,” and “{f]ollowing appellate disposition the judgment is no longer subject to district court 24 amendment beyond the ministerial dictates of the man- date.” App. lla-12a. Contrary to the panel’s decision, affirmance of a judg- ment does not restrict relief otherwise available pursuant to Rule 60(b). Prior to 1976, the courts of appeals were divided on the question whether leave must be had of the court of appeals before a district court could provide relief from an affirmed judgment. This Court resolved this issue by holding that leave was not required because affirmance of a judgment did not alter the availability of relief pursuant to Rule 60(b). Standard Oil Co. v. United States, 429 U.S. 17 (1976) (per curiam). The interest in finality was no greater after affirmance than before and, “{llike the original district court judgment, the appellate mandate relates to the record and issues then before the court, and does not purport to deal with pos- sible later events. Hence the district judge is not flouting the mandate by acting on the motion.” Jd. at 18. Since Standard Oil Co., courts have routinely applied the same Rule 60'b) standard to judgments affirmed by prior ap- peal that is applied to initial judgments." The panel’s conclusion that relief from judgment could be had, if at all, pursuant to Rule 60(b) (6) is also con- trary to the accepted operation of Rule 60(b1 (5). which requires relief in the circurnstances presented by this case.” Rule 60(b1 (5) supports relief from the tort judgment, to include the demand charge damages, because the 4 See, e.g., Lilieberg v. Health Servs. Acquisition Corp., 486 US 847 (1988); Panama Processes, S.A., 7839 F.2d at 993-99. Cf. Board of Educ. Vv. Dowell, 111 S. Ct. 680 (1991). ™ Rule 60(b)(5) provides for relief from judgment when “the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” 25 ‘ orior” antitrust judgment was reversed. In contrast to the Tenth Circuit panel, the Fourth Circuit has set forth the rule that a judgment is “prior” for purposes of Rule 60'bi(5! when it is legally precedent to or forms the basis of another judgment, even when the judgments are contemporaneous. See Werner v. Carbo, 731 F.2d 204, 207-08 (Ath Cir. 1984): Pierce Oil Corp. V. United States, 9 F.R.D. 619 (E.D. Va. 1949) (Rule 60(b) supported restoration of common damages to judgment after reversal! of contemporaneous judgment to which common damages were allocated). Several circuits have established that it is an abuse of discretion not to modify a dependent, con- temporaneous judgment once the predicate judgment has been reversed on appeal. See Werner, 731 F.2d at 206, 209; ef. Michigan Surety Co. Vv. Service Mach. Corp., 277 F.2d 531 (5th Cir. 1960): Jackson v. Jackson, 276 F.2d 501 (D.C. Cir.), cert. denied, 364 U.S. 849 (1960).'* The Tenth Circuit has now established that it is reversible error to modify the dependent judgment following re- versal of the predicate judgment. The Tenth Circuit’s treatment of Rules 60(b) (5) and 60(b) (6) directly affects plaintiffs’ ability to recover the full damages attributable to claims affirmed on appeal. Whenever a district court’s construction of damages makes full recovery under one claim dependent in any manner upon affirmance of another claim, the Tenth Cir- cuit rule will stand as a potential obstacle to the recovery mandated by the federal or state claim affirmed on appeal. The proper interpretation of a fundamental rule of civil procedure on which the courts of appeals disagree is the quintessential issue requiring review by this Court. 6 The usual practice is to adjust the dependent decision on appeal when the predicate judgment is altered, see, ¢.g., Butler v. Eaton, 141 U.S. 240 (1891), but the district court may make that adjust- ment upon remand if the court of appeals does not do so. See 7 J. Moore, Moore’s Federal Practice © 60.26[3). at 60-248 (1992). 96 CONCLUSION The petition for a writ of certiorari should be granted or, at a minimum, the petition should be held pending this Court's disposition of Spe ctrum Sports, Inc. Vv. Me- Quillan, No. 91-10. Respectfully submitted, MICHAEL L. BEATTY REX E. LEE * REBECCA H. NOECKER CARTER G. PHILLIPS COLORADO INTERSTATE MARK E. HADDAD GAS COMPANY RICHARD D. KLINGLER Post Office Box 1087 SIDLEY & AUSTIN Colorado Springs, CO 80944 1722 Eye Street, N.W. WILLIAM C. MCCLEARN Washington, D.C. 20006 JOSEPH W. HALPERN (202) 736-8000 ELIZABETH A. PHELAN J. KENT RUTLEDGE HOLLAND & HART LATHROP, RUTLEDGE & BOLEY Post Office Box 8749 Post Office Box 4068 Denver, CO 80201 Cheyenne, WY 82003 MARILYN S. KITE Counsel for Petitioner HOLLAND & HART 2020 Carey Avenue Suite 500 Cheyenne, WY 82001 September 14, 1992 * Counsel of Record APPENDICES \PPENDIX A Decision of the United States Court of Appeals fe the Tenth Circuit, Mav 6, 1992 Decision of the United States Court of Appeals f the Tenth Circu sep 1, 1989 \PPENDIX ( Order the United States District Court for t District of Wyoming, March 26, 1990 APPENDIX D Order of the United States District Court for l) ‘ fF WW ) Ma GQ 1OR7 \PPENDIX |] Verdict For ind Spe Interrogatorie yf th United States District Cour r the Distri W mine. Oct. BO. 1986 la APPENDIX A UNITED STATES CO URT OF APPEALS TENTH CI R’ .CUIT I No. 90-8045 COLORADO INTERSTATE GAS COMPANY. Plaintiff -c ‘ounte rclain Di fe nda nt-A ppe ‘lee, NATURAL GAS PIPELINE COMPANY OF AMERICA and NGPL-TRAILBLAZER, INC.. Di f ndants-Co ipite rclain ants- Appellants, WYOMING INTERSTATE COMPANY, LTD.. and the COASTAL CORPORATION, Counterclaim Defendants- Appellees. MIDCON VENTURES, INC.. (C‘ountercla ima nt May 6, 1992 Before HOLLOWAY and BARRETT, Circuit Judges, ind BROWN,* District Judge. * The Honorable Wesley E. Brown, Senior United St: Judge for the District of Kansas, sitting by designation 2a a © HOLLOWAY, Circuit Judge. This is the second appeal to this court by defendants, Natural Gas Pipeline Company of America and NGPL- Trailblazer ‘collectively Natural), following an order of the United States District Court, District of Wyoming, entering judgment in favor of the plaintiff, Colorado In- terstate Gas Company (CIG). See Colorado Interstate Gas Co. v. Natural Gas Pipeline Co., 661 F.Supp. 1448 (D. Wyo.1987 (CIG 1), rev'd in part and aff'd in part, 589 F.2d 683 (10th Cir.1989) (CIG /1). In this most recent appeal, Natursi argues, inter alia. that the district court erred on remand in determining that Colorado law. rather than Wyoming law governs CIG’s pendent state law tort claim against Natural. I. Background CIG and Natural are competing owners of pipelines Which transport natural gas. For many years, Natural has purchased gas from CIG transporting it to states in the midwest and east. In 1981-82 a new pipeline, the Trailblazer System, was constructed to transport newly discovered reserves of natural gas out of the Overthrust region of Wyoming. The Trailblazer System is composed of three connected segments of pipeline. CIG and its affiliates have ownership interests in the two westernmost segments, the Overthrust and the WIC pipelines. Natura! owns a one-third interest in the third, easternmost seg- ment of the Trailblazer System, the Trailblazer Pipeline. Under an existing contract, CIG had agreed to purchase gas from Champlin Petroleum’s Whitney Canyon reserves in the Overthrust region (the Whitney Canyon contract), CIG transported this gas through the two western pipeline sections in the Trailblazer System to its own offshoot pipe- line which intersects the system at a point west of Natu- ral’s Trailblazer pipeline. In July 1982, CIG and Natura] entered into a contract (the Service Agreement) which required CIG to deliver 3a and Natural io purchase specified quantities of natural gas from. the Overthrust area. The Service Agreement set forth how much gas Natural was required to purchase and also contained a minimum bill provision. Because the Service Agreement involved the interstate sale of nautral gas, the rates and terms specified required ap- proval by the Federal Energy Regulatory Commission (FERC). In a proceeding before that body, FERC modi- fied the terms of the Service Agreement to reduce the price Natural had to pay for unpurchased gas. In July 1983, Natural sharply reduced its gas purchases from CIG, choosing instead to pay CIG for the unpur- chased gas at the lower FERC mandated rate. Natural then purchased gas from other sources to replace lost volumes from CIG, often paying more for the gas. Under the Service Agreement, CIG was obligated to be ready to deliver volumes of gas requested by Natural. Thus, CIG could not use the pipeline capacity reserved for Natural to ship gas for other customers. Moreover, Natural oc- casionally resumed purchases of gas from CIG when CIG sought to sell gas to new customers, terminating these purchases after the new customers went elsewhere. Due to the oversupply of gas in CIG’s system created by Natural’s refusal to take gas, CIG was forced to stop purchasing gas from some of its suppliers. One of these suppliers was Champlin Petroleum (Champlin). Despite its refusal to purchase gas from CIG, Natural negotiated with Champlin to acquire the Whitney Canyon reserves, In the ensuing discussions, Natural agreed to an increase in the purchase price for Champlin gas if Champlin obtained a release of CIG’s rights to the gas under the Whitney Canyon contract. When CIG attempted to negotiate revisions to that contract because of its in- ability to take Champlin gas, Champlin insisted that CIG release its rights. CIG acceded. The next day, Natural bought Champlin’s Whitney Canyon gas, although it still da refused deliveries from CIG. Natura] shipped the Whit- ney Canyon gas through the Trailblazer Pipeline. IT. Prior Proceedings CIG brought this action alleging that Natural violated federal antitrust laws by attempting to monopolize the market for the long-distance transportation of Wyoming natural gas, that Natural conspired to monopolize that market, that Natural breached the Services Agreement and its duty of good faith and fair dealing, and that Natural tortiously interfered with CIG’s contractual rela- tions with Champlin. In CIG J, the jury awarded CIG $724,033,361 in dam- ages based on CIG’s antitrust, breach of contract and tortious interference with contractua] relations claims. Following deduction for duplicative awards, the district court reduced the total jury award to $412,237,972, and entered judgment for CIG on that amount. Natural appealed. In CIG IT, a panel of this court reversed the antitrust and breach of contract verdicts. See CIG II, 885 F.2d at 697. However, the panel affirmed the verdict for tortious interference with contractual relations, rejecting Natural’s assertion that the award interfered with FERC’s author- ity. See id. at 690-91. Accordingly, we remanded to the district court to enter judgment on the tort award alone. Our mandate, ex- pressed in our judgment and opinion, was that the district court’s judgment was affirmed in part and reversed in part, concluding: ‘|t]he cause is remanded to the United States District Court for the District of Wyoming to enter judgment in accordance with the opinion of this court.” III. On Remand Returning to the district court. CIG moved to have $15,204,555 in demand charges awarded by the jury in Da the original verdict reinstated in the new judgment re- quired by the remand. In C/G /, the district court had entered judgment on the tort award for $39,231,072, but reduced this award to $24,026,517 “because the jury awarded Colorade Interstate . .. demand charge losses (315,204,555) under the attempt to monopolize and torti- ous interference claims|.]” I R. Doc. 578 at 2.' CIG had apparentiv agreed to have the demand charges listed undex the antitrust award, thus benefitting from the treble damages permitted by the statute. Over Natural’s objections, the district court agreed to reinstate the demand charges cf $15,204,555 in the iudg- ment on the tort award. The court stated that its Judg- ment of November 10, 1986, “made it clear that the tortious interference award included damages for restitu- tion and for demand charges.” Order on Post Appeal Motions, IT R. Doe. 694 (Pleadings) at 12, 15 (“Remand Order”), The court noted that it had specifically with- held a jury instruction prohibiting duplicative awards “so that in the event any one count failed there could be 1 cmplete answer by the jury on the other counts!.]” //d. The court concluded that CIG was entitled to recover the demand charges because the jury intended that it should and the only reason for deducting them at all was “to avoid duplicative damages on two different causes of action|.|”’ /d. at 18, 15. ' Additionally, in C7G J, the district court further reduced the remaining $24,026,517 of restitution damages in the tort award (‘after deducting the demand charges) by two-thirds to reflect. the fact that Natural owned only one-third of the Trailblazer Pipeline Company and received only one-third of the funds in question. See CIG 7, 661 F.Supp. at 1479. Thus, in CJG IJ, the tort award ap- pealed to this court then totalled $8,008,839. See CIG II, 885 F.2d at 691 n. 12. Although this court’s original opinion incorrectly made reference to $8,000,839 In restitutionary tort damages, see CIG JI, 885 F.2d at 691 n. 12, the actual amount of tort damages awarded by the district court and affirmed by this court is $8,008,839. See CIG J, 601 F.Supp. at 1479. 6a By an opposing motion, Natural sought to have the tort judgment set aside in toto on the basis of an intervening decision by the Wyoming Supreme Court, Price v. Sorrell, 784 P.2d 614 (Wyo.1989), which was decided after C/G HT. Natural argued that Price required the district court to enter Judgment against CIG because Wyoming had now made clear that it refused to adopt § 766A of the Restate- ment (Second) of Torts (1979), the basis of CIG’s tort claim. Natural argued that since federal courts are obliged to apply the most recent controlling state court decision on state substantive law, Natural was entitled to judgment on the state law tort claim because the district court had found Wyoming daw to govern, and that law would not allow such tort recovery, The district court conceded that in CIG I it had stated that “Wyoming would recognize a cause of action under $ 766A.” Remand Order at 6 (quoting C/G I, 661 F.Supp. at 1449). The court also acknowledged that the Price case demonstrated that its C/G J “prediction proved wrong.”’ Id. at 7. Nevertheless, the court stated: this Court disputes Natural’s contention that Wyo- ming substantive law applies. This Court never care- fully considered whether Wyoming or Colorado law applied in this instance since, at that time, neither Colorado nor Wyoming courts had addressed the adoption or rejection of §$ 766A. So by default, this Court applied what it presumed Wyoming law would be. The situation has changed, however, with Wyo- ming rejecting § 766A in Price and Colorado adopting s 766A in Westfield Development Co. v. Rifle Invest- ment Associates, 1786 P.2d 1112 (Colo.1990) |, Remand Order at 7-8. Accordingly, the court conducted a choice of law analysis. The court observed that Wyoming applies the rule of lex loci delicti in tort cases. Which requires application of “the substantive law of the state Where the harm or fa ] , injury to the plaintiff occurs|.|” Jd. at 8. Assuming that the place of the wrong was ‘‘where the last event necessary to make an action liable for an alleged tort” took place, Restatement (First) of Conflicts § 377 (1934), the court held that: the last element of a tort cause of action is damages. . Ina physical injury tort claim, damages generally ave incurred in the state where the plaintiff is physi- cally injured by the defendant. In this instance, the injuries inflicted were financial. Defendants torti- ously interfered with CIG’s ability to conduct its business. ‘The “last event necessary” in this tort is the construction of plaintiff’s opportunities, and that occurs Where the plaintiff experiences it, i.e., his place of residence.’ Cesnik v. Chrysler Corp., 490 F.Supp. 859, 872-73 (M.D.Tenn.1980). . . . More- over, even if one were to look at the actions taken by the parties, the last event necessary for liability to be imposed upon Natural. was Natural’s agreement to purchase gas from Champlin Petroleum, the same eas Natural forced CIG to give up. This agreement took place in Colorado, not Wyoming. Under this analysis, the Court now finds that Colorado substantive law applies to CIG’s tortious in- terference with a contract claim. Colorado, as con- trasted with Wyoming, recognizes $ 766A causes of action. Accordingly, CIG’s tort claim is still valid. Remand Order at 9-10 (citations omitted). By an order filed March 26 1990, the district court entered judgment on the tort claim in favor of CIG for $23,215,594 in damages. The court added $4,827,129 in post-Judgment interest pursuant to the 5.75% rate set in the original November 10, 1986 judgment order. The court’s order set a new post-judgment interest rate of 8.56% to run from the date of its new judgment. By order of April 6, 1990, the court denied Natural’s motions for a new trial and JNOV. Natural then timely appealed. aaa Sa IV. Discussion Un appeal Natural makes a number of arguments: 1) the district court erred in its choice of law analysis; 2) the court improperly awarded demand charge damages because such damages are preempted by FERC’s authority, violate the filed rate doctrine, and are based on false evidence presented at trial; 3) the district court erred in applying post-judgment interest at two different rates; 4) the court erred by applying interest on the demand charges dating back to the original judgment. We need not reach these arguments, however, because the district court’s error Was more fundamental—the court acted beyond the scope of our mandate and accorded relief not available on post affirmance remand. On remand, both parties moved to have the district court alter the scope of the tort judgment which this court had affirmed in C/G IJ. We conclude that the dis- trict court could not properly act on either motion, and accordingly vacate and remand for an entry of ju .gment in favor of CIG on the tort award for $8,008,839, in ae- cord with our clear mandate and our judgment affirming that award. See 885 F.2d at 691 and n. 12. 697. A. CIG’s Motion to Revise the Tort Judgment Amount After this court’s decision in C/G II, CIG moved to have the district court declare that the tort judgment is for $23,213 394 plus post-judgment interest.: Although “CIG apparently also moved pursuant to Fed.R.Civ.P. 54(b) to have the tort judgment restated as a separate award. As indicated in the text above, however, we construe this motion as one actually brought pursuant to Rule 60(b)(6). Rule 54(b) was not a proper vehicle for this request because the rule is designed to permit a party to gain an immediate appeal of a severable portion of multi- ple claim litigation. Moreover, after our disposition in C/G JI, the precondition to use of Rule 54(b), that there be “more than one claim for relief” presented to the district court did not exist. Our decision in CIG IJ eliminated all of CIG’s causes of action except Ya not stylized as such, we must construe this motion to be pursuant to Fed.R.Civ.P. 60(b). In C/G II, we affirmed the tortious interference part of the district court’s deci- sion and judgment, and remanded with instructions “to enter judgment in accordance with the opinion of this court.” II R. Doe. 679 at 2. By this action, the tort portion of the district court’s original judgment became final, with only the ministerial function remaining of entry of a corrected judgment therefor. As a result, there were very few options available to CIG to have the district court’s judgment changed in any way.* CIG’s motion could not properly have come pursu- ant to Rule 59(e), to alter or amend the judgment, be- cause it was out of time. In our view, Rule 60(b) appears to provide the only vehicle by which CIG could have pos- sibly presented its request that the district court rein- state the demand charges into the tort judgment. Rule 60(b), however, only provides relief from judg- ment under certain specified conditions. The Rule pro- vides that: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, ete. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the follow- ing reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); the affirmed tort award. Thus, there was nothing from which the tort award could be declared separate. 3% As an aside, CIG could have, but did not, seek rehearing or to have this court recall its mandate for any correction it thought was necessary to the district court’s judgment. (IG, instead, filed a petition for certiorari in the Supreme Court. This petition was denied, 10a (3) fraud (whether heretofore denominated intrin- sic or extrinsic), misrepresentation, or other miscon- duct of an adverse party; (4) the judgment is void; (>! the judgment has been satisfied, released, or dis- charged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have pro- spective application: or (6) any other reason justify- ing relief from the operation of the judgment. Of the reasons listed, the only one possibly applicable to the facts of this case is number (6), which permits relief for “any other reason justifying relief.” In Collins v. City of Wichita, 254 F.2d 837 (10th Cir.1958), we noted that “in extraordinary situations. yelief from final judgment may be had under Rule 60‘b) (6), when such action is appropriate to accomplish justice.” Jd. at 839 femphasis added!. Based on the facts before us, We must conclude that the relief sought by CIG—a change in the content of the judgment affirmed by this court—is un- supported by an extraordinary reason to justify relief. Before the district court originaily imposed its jude- ment, the demand charges were removed from the tort portion of the judgment, with the result that CIG had this amount trebled as part of the antitrust damages under 15 U.S.C. $15 (1914). Thus. as the prior appeal came to us in C/G II, CIG had the demand charges within the antitrust damages award in its favor, with the benefit of trebling. CIG vigorously fought through that appeal in C/G IT to sustain that judgment and arrangement of the damage award, but unfortunately for CIG, it lost when the antitrust judgment was rejected by this court. C/G IT, 885 F.2d at 697. We cannot agree that these circum- stances furnish a basis for extraordinary relief from the judgment we affirmed. Additionally, we believe that concerns of finality die- tate that the district court must be circumscribed by our mandate. See Collins, 254 F.2d at 839 ‘noting that lla “{]]itigation must end sometime”). As we noted in Hicks v. Gates Rubber Co., 928 F.2d 966, 969 (10th Cir.1991), “ltlo decide whether the district court violated the man- date, it is necessary to examine the mandate and then look at what the district court did.” Here, the district court originally deducted these demand damages because the jury duplicated them in both the tort and antitrust claim awards. See I R.Doc. 578 at 2. In its later opinion denying Natural’s motion for JNOV, the court again stated that following CIG’s acceptance of the ordered remittitur, “/t]hé sum owed by [Natural] totals $8,008,839[,]” C/G I, 661 F.Supp. at 1479, this figure being the one-third of the $24,026,517 restitutionary tort award given to CIG of profits of Trailblazer Pipeline Company. Thus, we must ayree with Natural that “(tl]his Court never addressed the propriety of awarding the demand charge payments as tort damages.” Appel- lant’s Reply Brief at 19. Our mandate to the district court instructed it to enter judgement on the tort award that was before this court in CIG II, The rule is well established that a district court must comply strictly with the mandate rendered by the reviewing court. See Laffey v. Northivest Airlines, Ine., 642 F.2d 578, 584-85 (D.C.Cir.1980) (district court has “no power to reconsider issues laid to rest” on prior appeal). As a corollary to this rule, we are convinced that Rule 60(b) (6) cannot be properly used to alter the sub- stantive content of a judgment once it has been affirmed on appeal except in extraordinary situations. To hold otherwise would be to permit a district court to violate our mandate that a judgment be entered “in accordance with the opinion of this court.” II R.Doc. 679 at 2. Hav- ing thoroughly reviewed the briefs submitted in the first appeal and the careful decision in C/G IT, we believe the panel in C/G II intended to, and did, resolve all the issues presented to it. Accordingly, a second appeal should not now be entertained to challenge the affirmed tort award. 12a We are unable to find any authority for revision of a judgment as was made here, and none is cited. A suit is deemed “ ‘pending until the appeal is disposed of,’ and until disposition any judgment appealed from it is. still sub judice.” de Rodulfa v. United States, 461 F.2d 1240, 1253 (D.C.Cir.) (quoting Mackenzie v. A. Bngelhard & Sous Co., 266 U.S. 181, 142-43, 45 S.Ct. 68, 69, 69 L.Ed. 209 1192415, cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972): Nicastro v. United States, 206 F.2d 8, 92 (10th Cir.1953). Following appellate disposition, however, the judgment is no longer subject to district court amendment beyond the ministerial dictates of the mandate, which encompasses the full scope of jurisdic- tional power granted to the district court on remand. Accordingly, we vacate the district court’s decision to grant CIG’s motion to reinstate the demand charges re- moved from the tort judgment entered on November 10, 1986. B. Natural’s Motion to Apply Intervening State Law or similar reasons, we also reject Natural’s contention that the choice of law issue cannot be avoided. Natural argues that the district was required to apply Price v. Sorrell because the Supreme Court has declared that “until such time as a case is no longer sub Judice, the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then. controlling decision of the highest state court.” Vandenbark v. Owens-lilinois Glass Co, 311 U.S. 538. 943, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941). Sce also Huddleston v. Dwyer, 322 U.S. 232. 236, 64 S.Ct. 1015, 1017, 88 L.Ed, 1246 (1944). As mentioned above, how- ever, We conclude that the question of which state law properly applied was no longer sub judice after this court disposed of the appeal in C/G // and the time for a peti- tion for certiorari had passed. More importantly, for the same reasons that we believe CIG’s motion must come, if at all, under Rule 60(b) (6), 13a we also conclude that Natural’s motion is controlled by that vale! Over thirty vears ago, this court held in Collius that “lal change in the 'aw or in the judicial view of an established rule of law is not such an extraor- dinary circumstance which justifies relief” under Rule 6Orbi. Jd. at S893: but ef, Pierce ve. Cook & Co., 518 Ped 720, 722-23 (10th Cir.1975)' ten bane) ‘finding extraordinary circumstances where the change in law arose out of the same accident in which the plain- tiffs had been involved!, cert. denied, 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976). The Collins holding is still the rule in this circuit. See Van Shiver v. United States, 952 F.2d 1241, 1244-45 (10th Cir.1991). Thus, Natural had no basis on which it could have asked the district court to apply the Price case: this case was al- ready over for purposes of selecting the governing law. 'We note that Natural also argued to the district court on re mand that CIG had possibly perpetrated a frand or misrepresenta- tion on the court with respect to these demand charges. CIG = re- covered these charges because it proved at trial that it could not use its rights to the Canvon Creck and Overthrust facilities without the Champlin eas misappropriated by Natural. Natural alleged that immediately after trial, CIG began using these allegedly useless” facilities and profiting thereby. Natural apparently made this assertion to the district court after trial, and renewed it on remand, In its order on remand, the district court noted that Natural proffered an affidavit of CTG’s Vice President which stated that CTG had shipped some gas through the facilities. The court noted, however, that the same affidavit showed that the shipped gas be- longed to a third party, not CIG, and that the revenue received was minimal. The district court held that “/t]he evidence does not support Natural’s contention of inequity.” Remand Order at 15. To the extent that this motion properly comes within Rule HO;b).3)'s provision tor fraud, misrepresentation or misconduct of another . this argument on remand had there been demand charges remaining in the affirmed tort award. However, the elimi nation of the demand charge damage award in CIG J] mooted this issue so it need not have been reached either. arty, we beheve the district court could properly have id . t entertaines easier l4a Accordingly, the revised judgment of the district court entered March 26, 1990, now on appeal, must be ) } VACATED; the case is REMANDED with instructions for entry of judgment in favor of CIG on its tort award for $8,008,839, plus post-judgment interest to run from November 10, 1986. 15a APPENDIX B UNITED STATES COURT OF APPEALS TENTH CIRCUIT Nes. 87-2109, 87-2123 COLORADO INTERSTATE GAS COMPANY, Plaintiff Count rclaim- Defendant / Appellee, ie NATURAL GAS PIPELINE COMPANY OF AMERICA; NGPL-TRAILBLAZER INC.., Dr fe ndants Counte )- Claimants A pp llants. V. WYOMING INTERSTATE COMPANY, LTD.: the COASTAL CORPORATION, Counterclaim-Defendants / Appellees. MIDCON VENTURES, INC., Counterclaimant. FEDERAL ENERGY REGULATORY COMMISSION, Amicus Cunae. Sept. 11, 1989 Before MOORE, ANDERSON, and BALDOCK, Circuit Judges. JOHN P. MOORE, Circuit Judge. This is an appeal from an order of the district court refusing to grant judgment notwithstanding the verdict or a new trial for the defendants, Natural Gas Pipeline Company of America (Natural) and NGPL-Trailblazer. 16a 661 F.Supp. 1448. The jury awarded the plaintiff, Colo- rado Interstate Gas Company (CIG), $724,033,361 in damages based on CIG’s claim that Natural attempted to monopolize the market for long distance transportation of Wyoming gas, breached its contract with CIG, and tor- tiously interfered with CIG’s contractual relations. While the district court reduced the jury award to $412,237.972, Natural argues that the district court failed to rectify the underlying legal errors on which the judgment was based. Natural deploys a two-pronged attack against each of CIG’s claims. First, it asserts that the award of damages for conduct approved by the Federal [energy Regulatory Commission (FERC) impermissibly interferes with I ERC’s authority to regulate gas sales and transportation markets. Second, Natural argues, in the alternative, that the substantive law of contracts, torts, and antitrust, re- quires the reversal of the jury’s verdict on each claim. We hold that in light of FERC’s orders concerning the basic issues underlying the breach of contract dispute, deference to FERC authority requires that we reverse the breach of contract verdict. We further hold that CIG failed to establish there was a dangerous probability that Natural would monopolize the long distance transportation market. Therefore, we reverse the antitrust verdict. The claim for tortious interference with contractual relations neither interferes with FERC’s authority nor is substan- tively flawed; thus, the jury’s verdict on that claim wil] stand. I. Jntroduction CIG and Natural are owners of pipelines which trans- port natural gas. For many years, Natural has purchased ‘as from CIG and transported that gas to markets in the Midwest and East. In July 1982, CIG and Natural en- tered into a new contract (the Service Agreement or Avreement) which obliged CIG to deliver and Natural to purchase specified quantities of natural gas. CIG sold two types of gas to Natural. Field gas was sold at 2 lower rate (F-1 rate) than gas which was delivered from 17a CIG’s main transmission line (H-1 rate). The contract set forth how much gas Natural was required to purchase, both on an annual and on a daily basis. Like previous service agreements between Natural and CIG, the i982 Service Agreement also contained a minimum bill pro- vision which allowed CIG to bill Natural at a predeter- mined rate for gas which Natural reserved but did not purchase. Because CIG’s Service Agreement with Natural in- volved the interstate sale of natural gas, the rates and terms specified in the Agreement el approval by FERC. When, in 1982, CIG sought FERC approval, Nat- ural intervened to protest both the rate increase and its contractual obligation to pay CIG for gas it did not purchase. In response to Natural’s intervention, FERC modified the terms of the Service Agreement to reduce the price Natural was required to pay for unpurchased eas, In July 1983, Natural sharply reduced its gas pur. chases from CIG. Natural paid CIG what Natural de- termined to be the FERC modified rate for unpurchased gas. Natural’s decrease in purchases forced CIG to stop purchasing gas from some of its suppliers. One of those suppliers, Champlin Petroleum, supplied gas to CIG from the Whitney Canyon gas fields in southern Wyoming. Al- though Natural claimed that it quit purchasing gas from CIG because it had an oversupply of gas, the evidence made this claim problematical. As soon as CIG ceased purchasing Whitney Canyon gas, Natural made arrange- ments to purchase that gas directly from Champlin. In- deed, CIG presented evidence that Natural purchased gas from many sources to replace lost volumes from CIG. This substitute gas was often more expensive than CIG’s gas. On occasion, Natural resumed purchases of gas from CIG when CIG was attempting to sell gas to new cus- tomers. Natural’s decision to stop purchasing gas and the losses CIG experienced as a result of that decision form the basis of this litigation. 18a II. CIG’s Common Law Claims A. Breach of Contract The district court instructed the jury that it could find Natural breached the Service Agreement only if Natural failed to purchase gas and refused to pay CIG the rate that FERC decided was appropriate for volumes not pur- chased. Neither party disputes that Natural refused to purchase gas. The parties dispute the rate FERC deter- mined to be appropriate for gas not taken. Natural argues that the district court should have directed a verdict on the breach of contract claim in its favor because it paid CIG the FERC determined rate for gas not pur- chased. We agree. In order to apprehend the parties’ arguments on this issue, it is necessary to examine the long history of the dispute over Natural’s minimum purchase obligation be- fore FERC.' For many years the service agreements between CIG and Natural contained two provisions which, together, defined Natural’s minimum purchase obliga- tions.” Section 2 of the Service Agreement, the “minimum 'The difficulty that CIG and Natural faced with the minimum purchase obligation was not unique. Minimum purchase obligations in gas contracts became a problem for the industry in the early 1980’s, as u nationwide gas surplus forced many purchasers to curtail their takes. The huge liability incurred by purchasers forced FERC to take action on two procedural levels. First, FERC con- sidered purchasers’ objections to minimum purchase requirements on a case by case basis and modified service agreement provisions where necessary. Second, because minimum purchase obligations were wide-spread in the natural gas industry, FERC issued general orders that modified certain provisions in all gas contracts. Thus, the conflict between CIG and Natural was just a small part of a significant problem which required FERC’s continued attention. “For purposes of this opinion we are using the term “minimum purchase obligation” to refer to contract terms which seek to insure that gas buyers purchase a minimum volume of gas. These pro- visions are sometimes called ‘take or pay,” “minimum bill,” or “minimum take” provisions. Although the precise details or mecha- nisms of these provisions might differ, they have similar effects. pgm ance ere a 19a daily take provision,” required Natural to accept each day YO‘: of its General Daily entitlement.’ Section 4 of the Service Agreement, the “minimum annua] bill,” required Natural to purchase each year 90°: of its Total Annual Kntitlement, or pay CIG a predetermined rate for gas not purchased.' Natural first objected to the minimum purchase obliga- tion in the Service Agreement when CIG sought approval of the rates and terms of the Agreement from FERC in 1982. The reasonableness of the minimum purchase obli- gation was considered in administrative proceedings be- fore an administrative law judge in 1983. The judge found the “minimum bill provisions” to be unreasonable and ordered CIG to modify the Service Agreement so that CIG could collect from Natural only the fixed costs as- * Section 2 of the Service Agreement entitled “POINTS OF DE- LIVERY, MAXIMUM DAILY VOLUME OBLIGATIONS, AND PRESSURES” includes Natural’s daily purchase obligation. It states: Variations in daily takes may be made at Buyer’s election at H-1 delivery points to meet its varying load conditions, how- ever, Buyer shall not request total daily volumes on any day hereunder less than 90 percent of the General Daily Entitle- ment, * Section 4 entitled “MINIMUM BILL” states, in relevant part: The minimum bill shall be . . . determined by multiplying the Total Annual Entitlement by a factor of 90 percent, such volume hereinafter referred to as “Minimum Volume.” .. . Jn the event the Buyer's actual purchases for the fiscal year are less than the Minimum Volume, then any deficiency shall be billed at the unit fired cost component under Rate Schedule P-l.... (Emphasis added.) * Fixed costs are costs which CIG must incur regardless of the volume of gas it sells. The fixed cost component of the commoadity charge also includes a sum representing profits on CIG’s operations. The major nonfixed (variable) cost, which CIG was forced. to eliminate from the rate it could charge Natural, was the cost of gas. EE 20a sociated with the sale of gas. This decision was appealed to FERC, which, in response, modified the precise mecha- nism by which CIG could collect money for unpurchased gas but left unchanged the basic ruling that CIG could collect only fixed costs for unpurchased gas." In response to FERC’s ruling, CIG submitted to FERC a modification of its Service Agreement by which it sought to collect F-1 fixed costs for F-1 gas which Natural did not purchase and H-1 fixed costs for unpurchased H-1 gas. Since the fixed cost component of gas rates included profits on the sale of gas, CIG’s submitted rate would have insured full profits on unsold gas. However, FERC did not approve this rate for unpurchased gas.’ It ruled that CIG could collect only F-1 fixed costs for whichever type of gas Natural did not purchase. CIG appealed FERC’s order to this court asserting that it should collect full profits on unsold gas. We rejected this appeal. Colorado Interstate Gas Co. v. FERC, 791 F.2d 803 (10th Cir. 1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987). CIG now argues that these extensive proceedings only considered one aspect of the minimum purchase obliga- tion, namely, the minimum annual bill provision (Section 4) of the Service Agreement. It insists FERC simply overlooked the minimum daily take requirement (Section 2) in the individual proceedings. CIG asserts that the minimum daily take requirement was later modified by FERC’s Order No. 380-C which ruled that minimum take provisions were meant to be governed by Order No. 380. “On the same day, FERC issued Order No. 380 which required gas sellers to modify their minimum bill provisions to collect: only fixed costs for unpurchased gas. FERC explained that allowing CIG to collect only F-1 fixed costs for the more expensive H-1 gas would give CIG «a strong incentive to sell H-1 gas instead of merely collecting fees for un delivered gas. 2la Although FERC’s general orders treated minimum bill provisions identically with minimum take provisions, CIG argues that because FERC Order No. 380-C states sellers may collect fixed costs,* CIG may collect F-1 fixed costs fur unsold F-1 gas and H-1 fixed costs for unsold H-1 gas. If we Were to accept CIG’s argument, CIG could collect a higher rate for each year that Natural failed to purchase gas by adding up its compensation for Natural’s daily failure to take gas than it could by using the individually tailored FERC formula for determining CIG’s compensation for Natural’s annual failure to pur- chase gas. Aside from the irrationality of this result, we think it ignores the fact that FERC has plainly examined both the minimum annual bill and the minimum daily take vequirements in the Service Agreement since the original ALJ decision. As noted earlier, the ALJ stated that he found the minimum bill provisions to be unjust and unreasonable. CIG apparently assumes this reference to the minimum bill provisions meant that the ALJ only considered the minimum annual bill (Section 4) of the contract. Yet, the rest of the opinion makes clear that the ALJ con- sidered both Sections 2 and 4 of the Service Agreement. lor instance, in describing the Service Agreement the ALJ stated, “CIG’s mode of billing to Natural under the ’-1 and H-1 Rate Schedules is explained for the situation When the minimum bill provisions operate because Natural failed to take 90 percent of its daily or annual volumetric entitlements.” Colorado Interstate Gas Co., 3 F.E.RC. "© 63,012, 65,015 (Oct. 18, 1983) (emphasis added). The ALJ clearly understood that the Service Agreement pro- vided a single rate of compensation for failure to purchase gas on a daily or annual basis and that he was modifying that rate. ‘Since Order No, 380-C was a general order, it did not specify the precise value of the fixed cost CIG, or any other sellers, could collect for unsold gas. 22a This conclusion is confirmed by subsequent FERC or- ders. In its order of June 1985, FERC surveyed the entire history of CIG’s proceedings before the agency on the minimum purchase issue. FERC stated the ALJ found “Doth the minimum annual volume and the minimum daily take requirement in CIG’s Service Agreement” to be un- reasonable. Colorado Interstate Gas Co., 31 F.E.R.C. © 61,525 (June 19, 1985). FERC further noted that the individualized proceedings required CIG to modify both the minimum annual bill and the minimum daily take provisions to eliminate variable costs. Jd. The only formula for the elimination of variable costs approved in the individualized proceedings required CIG to charge F-1 fixed costs for failure to purchase either F-1 gas or H-1 gas. The inescapable conclusion is that FERC regarded this as the sole remedy for failure to purchase gas under either contractual provision. Finally, FERC’s amicus brief explains its current in- terpretation of the FERC proceedings on the minimum purchase issue. The amicus brief states: |T|he district court erred in holding that the Com- mission did not deal with the minimum _ purchase obligations and that therefore CIG may litigate that issue in this case . .. the Commission treated the minimum bill as the remedy for Natural’s failure to live up to its minimum purchase obligation .. . there- fore, the district court erred in its perception that the minimu:n bill and take provisions were separate and discrete matters establishing distinct remedies. In light of the deference we owe to FERC’s interpreta- tions of its own orders, Colorado Interstate Gas, 791 F.2d at 810; Distrigas of Massachusetts Corp. v. Boston Gas Co., 693 F.2d 11138, 1119 (1st Cir.1982), and the plain meaning of the orders themselves, there is simply no room for CIG’s assertion that FERC’s individualized proceed- ings left the minimum daily take provisions (Section 2) of the Service Agreement unaffected. 23a B. Breach of Duty of Good Faith and Fair Dealing Natural argues the jury’s verdict on bad faith breach of contract must be reversed because FERC’s modifica- tion of the rate Natural was required to pay CIG@ for unpurchased gas gave Natural the unqualified right to stop purchasing gas, provided it paid CIG the FERC established price for unpurchased gas. Natural insists that by awarding CIG damages for bad faith failure to purchase gas that were greater than FERC’s established rate for failure to purchase, the district court allowed state common law to impinge upon FERC’s regulatory authority. CIG asserts that Natural’s bad faith alters the character of Natural’s conduct so that the FERC rate for unpurchased gas does not apply. While we are unwilling to embrace Natural’s claim that FERC’s orders shield it from all liability for failure to purchase gas, we do agree that Natural is free from liability for failure to purchase gas based upon the implied duty of good faith and fair dealing in the Service Agreement. The Supreme Court is wary of attempts by parties, dissatisfied with determinations of federal agencies, to neutralize the effect of those determinations through com- monlaw actions for damages. Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 324, 101 S.Ct. 1124, 1133, 67 L.Ed.2d 258 (1981): Arkansas Louisiana Gas Co, v. Hall, 453 U.S. 571, 577 n. 6, 101 S.Ct. 2925, 2930 n. 6, 69 L.Ed.2d 856 (1981). These cases are bot- tomed on the principle that the Supremacy Clause re- quires state regulation not thwart federal policy. Kalo Brick & Tile, 450 U.S. at 326, 101 S.Ct. at 1134. Com- mon-law claims that seek to litigate matters already de- cided by a federal agency are therefore preempted. For instance, in Kalo Brick & Tile, 450 U.S. at 311, 101 S.Ct. at 1127, a shipper of goods by rail, sought to assert a state, common-law tort action for damages caused by a regulated rail carrier’s decision to eliminate service on a rail line. The Supreme Court unanimously held that 24a because the Interstate Commerce Commission had, in ap- proving the cessation of service in administrative pro- ceedings, ruled on all the issues underlying the shippers state-court suit, the common-law action was preempted. The Court stated: “It is difficult to escape the conclusion that the instant litigation represents little more than an attempt by a disappointed shipper to gain from the Iowa courts the relief it was denied by the commission.” Jd. at 324, 101 S.Ct. at 1133. Through its common-law claim of breach of the con- tractual duty of good faith and fair dealing, CIG obtained an award of damages that allowed it to collect H-1 fixed costs for unpurchased H-1 gas. FERC and this court have repeatedly denied CIG’s request to modify the minimum purchase obligation of the Service Agreement to allow it to collect this rate for failure to purchase gas. Colorado Interstate Gas, 791 F.2d at 808-09. By allowing CIG to press this claim, the district court gave CIG a second chance to which it was not entitled. Nevertheless, CIG argues that this case is distinguish- able from Kalo Brick & Tile” and is not a collateral at- tack upon FERC’s decision because FERC denied CIG H-1 fixed costs for unpurchased H-1 gas only if Natural decided not to purchase gas in good faith. CIG contends, once Natural decided to “shut in’ CIG’s gas in order to harm CIG, FERC’s remedy for failure to purchase gas, a remedy which did not allow collection of H-1 fixed costs, was no longer intended by FERC to apply. Essentially, CIG is asking us to imply a good faith limitation upon the scope of FERC’s remedy for failure to purchase gas. ® The Court in Kalo Brick & Tile emphasized that the ‘“commis- sion has actually addressed the matters [the customer! wishes to raise in state court.” 450 U.S. at 327, 101 S.Ct. at 1135. The Court reserved the question of whether “a state court suit is barred when the commission is empowered to rule on the underlying issues.” Id. In this case, FERC was not explicitly confronted with the question of whether Natural’s motive for not purchasing gas would be rele- vant to the rate CIG could collect for that gas. 25a While we find CIG’s argument forceful, we cannot ig- nore the Supreme Court’s vigorous effort to insure agency action is not blunted by state regulation. See, e.g., Nanta- hala Power and Liaht Co. v. Thornburg, 476, U.S. 953, 106 S.Ct. 2349, 90 L.Ed.2d 943 (1986) (state regulated rate for retail sale of gas did not give enough weight to FERC determined rate for wholesale gas sales); Kalo Brick & Tile, 450 U.S. at 326, 101 S.Ct. at 1134. We think that limiting the scope of the FERC developed rem- edy for failure to purchase gas in the manner suggested by CIG would permit circumvention of FERC authority through state contract law. In order for FERC’s remedy to be effective, it must have room to breathe. As the Supreme Court has stated, “Respondents’ theory of the case would give inordinate importance to the role of con- tracts between buyers and sellers in the federal scheme for regulating the sale of natural gas.” Arkansas Loui- siana Gas, 453 U.S. at 582, 101 S.Ct. ata 2932. We think this statement applies with equal force to this case. Further, the limited evidence we have suggests FERC intended the collection of F-1 fixed costs to be the exclu- sive contract remedy for failure to purchase gas. FERC’s amicus brief notes the jury awarded damages for anti- trust, tort, and breach of contract claims. Nevertheless, FERC only sought to have ihe damages for breach of contract reversed. FERC did not distinguish between the breach of contract damages awarded for bad faith failure to purchase gas and those awarded for failure to pur- chase gas under Section 2 of the Service Agreement.'’ 1 The district court did not ask the jury to award damages sepa- rately for breach of Section 2 of the Service Agreement and breach of the contractual obligation of good faith and fair dealing. This is troubling because we cannot determine what damages, if any, the jury intended to award for each breach. Further, the jury incorrectly found that Natural breached its obligation to purchase gas under Section 2 of the Service Agree- ment. Having found that Natural deliberately breached the Service Agreement by deciding not to purchase gas, it is difficult te see how 26a This interpretation of FERC’s intent mirrors FERC’s Interpretation of the scope of its actions in a close'y analovous context. During the vas shortage of the ear V 70's, FERC permitted sellers of gas to curtail their contractually agreed upon deliveries of gas, if the curtail- ment was carried out in accordance with plans on file with FERC. See, e.g., United Gas Pine Line Co. v. FERC. 824 F.2d 417, 421 (5th Cir.1987). Buyers who did not receive gas they contracted for sued sellers based upon breach of contract and various tort theories. Jd.; see also CF Industries vv. Transcontinental Gas Pipe Line, 614 F.2d 33 (4th Cir.1980). In response, sellers sought to have FERC modify their service agreements to exculpate them from liability for failure te deliver gas to buyers curtailed under curtailment plans. FERC declined to deny the purchasers all remedies for the sellers’ failure to de- liver gas stating: Claims that are essentially “breach of contract” in nature and arise because of curtailments initiated and conducted in accordance with effective curtail- ment tariffs are preempted by federal law, which nullifies them. But claims that require a finding of negligence to permit recovery remain unaffected. Transcontinental Gas Pipe Line, 35 F.E.R.C. °° 61.043. 61,080 (April 7, 1986) (emphasis added) .™ the jury could objectively consider the question of whether Natura! acted in good faith Thus, even if we were to find that the bad faith claim was not preempted, we would have to order a new trial. First. th jury would have to evaluate CIG’s bad faith claim in light of the fact that Natural did not breach Section 2 of the Service Agreement. Second, even if the jury still found that Natural breached its cor tractual obligation of good faith and fair dealing, it would have to determine the appropriate damages for this breach. 1! Significantly, one seller challenged FERC’s decision alleging that if buyers were permitted to sue based upon a seller’s necligent or willful misconduct, some state courts might conclude that actio for “breach of a good faith duty” were not pre mpted. United Ga 27a We believe FERC intended to draw the same line for failure to take gas as it drew for failure to purchase. Ac- tions based upon tort were not meant to be preempted by FERC’s modification of the contract, while actions based upon breach of contract were. Any other distinc- tion would impermissibly undermine the effectiveness of FERC orders. Thus, the jury’s verdict for bad faith breach of contract must be reversed. C. Tortious Interference with Contract The gravamen ot CIG’s tortious interference with con- tract claim is that Natural intentionally stopped taking gas from CIG in order to force CIG to relinquish its con- tractual right to purchase Whitney Canyon gas from Champlin Petroleum. CIG alleged Natural was moti- vated by a desire to acquire the rights to purchase Whitney Canyon gas. After CIG gave up its rights to the Whitney Canyon reserves, Natural did, in fact, acquire the gas. Natural argues that the jury’s verdict, awarding dam- ages for tortious conduct, must be reversed because CIG’s claim is preempted by FERC’s modification of the mini- mum purchase provisions. Natural also asserts that be- cause the Service Agreement allowed it to stop purchasing gas, it may not be held liable for tortious interference based on that conduct. We disagree. FERC’s modification of the contract remedy for failure to purchase gas does not limit CIG’s right to seek dam- ages for tortious interference with contract. As noted above, in an analogous situation, FERC decided that al- though it eliminated a gas seller’s contractual liability Pipe Line, 824 F.2d at 428. The Fifth Circuit rejected the sugges- tion that state courts could interpret FERC orders which allowed actions based upon negligence to permit actions for “breach of a good faith duty.” Thus, at least one other court has interpreted FERC orders prohibiting suits based upon breach of contract to also forbid suits based upon breach of the contractual obligation of good faith and fair dealing. a 28a for failure to sell gas to curtailed customers, buyers who did not receive contractually agreed upon volumes of gas wid maintain suits based upon a seller's negliqcnt or mill ful prisconduct, United Gas Pipe Line, 824 F.2d at 130. By not contesting tortious interference damages, FERC apparently made the same distinction in this ease. Although Kalo Brick & Tile requires preemption of tort actions which conflict with agenev orders, 450 U.S. at 326-27, 101 S.Ct. at 1184-35, we decline to find preemp- tion where FERC currently perceives no conflict. More difficult to evaluate is Natural’s assertion that its contractual right to choose between purchasing gas or paying CIG for gas not purchased immunized it from a tortious interference claim based upon failure to purchase. There is some support for the proposition that conduct which is otherwise lawful ought not form the basis of a tortious interference claim simply because the alleged tort-feasor is motivated by a desire to interfere with the plaintiff's contractual relations. See Circo v. Spanish Gardens Food Mfq. Co., 648 F.Supp. 51, 56 (W.D.Mo. 1985): Perlman, Interference with Contract and Other Economic Expectations: A Clash of Tort and Contract Doctrine, 49 U.Chi.L.Rev. 61, 128 (1982). Advocates of this position are reluctant to impose limitations on con- duct which is otherwise permitted in an economy based upon vigorous competition. Perlman, supra at 78. While we are sympathetic to this view and recognize that the law of tortious interference is evolving, see Re- statement (Second) of Torts, ch. 37, introductory note at 5 (1977), we believe that the better position is that taken by the Restatement and followed by many courts. This line of authority holds that motive can be a determinative factor in converting otherwise lawful behavior into “im- proper” conduct for which the defendant will be liable. Restatement (Second) of Torts $ 767 comment d (1977); Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Ine., 604 P.2d 1090, 1093 (Alaska 1979); see also Perlman, /iter- 29a ference with Contract, 49 U.Chi.L.Rev. 61, 78 (1982). Indeed, Professor Prosser has described the contours of the tort stating that “no specific conduct is prohibited and liability turns on the purpose for which the de- fendant acts.” W. Prosser, Law of Torts § 129, at 979 (5th ed. 1984). Natural’s interest in being free to adjust its purchases of gas is not so strong that it cannot be limited by a re- quirement not to exercise its discretion for the purpose of interfering with CIG’s contractual relationships. Alyeska Pipeline, 604 P.2d at 1093 (right to terminate contract at will did not prevent liability for tortious inter- ference based upon termination of that contract). The tortious interference verdict will stand.'* Ill. CIG’s Antitrust Claim CIG claims that in addition to being a violation of the Service Agreement and a means of stealing CIG’s custom- ers, Natural’s decision to stop purchasing gas was also the cornerstone of an attempt by Natural to monopolize the market for the long distance transportation of natural gas." Since an attempt to monopolize typically involves 12 Natural also asserts the award of $8,000,839 in restitutionary damages was Inappropriate. It argues that restitutionary damages are unavailable for tortious interference claims under Section 766A of the Restatement. While it cites one case to this effect, Mares, Stowell &@ Beye Gov't Sees., Inc. v. Jefferson Inv. Corp., 797 F.2d 227, 231-22 (5th Cir. 1986), the weight of authority holds that restitutionary damages are available for tortious interference with contract. See Zippertubing Co, v. Teleflex, Inc., 757 F.2d 1401, 1411-12 (3d Cir. 1985); Federal Sugar Ref. Co. v. United States Sugar Equalization Bd., 268 F. 575, 582 (D.C.N.Y. 1920 b> National Merchandising Corp. v. Leyden, 370 Mass. 425, 348 N.E.2d 771, 775-76 (1976): D. Dobbs, Remedies § 6, at 465 (1973). 13 Natural also asserted an antitrust counterclaim against CIG Natural alleged that CIG monopolized or attempted to monopolize the purchase of Wyoming natural gas by intervening and threaten- ing to intervene in FERC proceedings in which CIG’s competitors 30a an attempt by a firm which does not possess monopolistic control over a market to become a monopolist in that mar- ket, CIG’s claim is unusual because it does not allege that Natural was attempting to gain control of the transporta- tion market for itself. Rather, CIG alleges Natural stopped purchasing gas in order to give CIG’s chief com- petitor, the Trailblazer System,'* a monopoly in the long distance gas transportation market. Natural asserts that a party may not be held liable for attempting to give monopoly power to another party which it does not control. This is especially true, it as- serts, when the intended beneficiary of the monopolist is not a single entity but three separately operated entities owned in significant part by the alleged victim of the monopolistic scheme, Nevertheless, Section 2 of the Sherman Act does not explicitly state that a party can only monopolize for itself. We need not decide this thorny issue because even if we assume that it is possible to create a monopoly for the proposed building new pipelines leading out of Wyoming. The dis- trict court ruled that the Noerr-Pennington doctrine barred evi- dence of CIG’s activities before FERC. The Noerr-Pennington doctrine requires that attempts to in- fluence the government, including attempts to influence administra- tive agencies, be exempt from attack under the Sherman Act. Cali fornia Motor Transp. Ce, v, Trucking Unlimited, 404 U.S, 508, 511- 12, 92 S.Ct. 609, 612-13, 30 L.Ed.2d 642 (1972); Bright v. Moss Ambulance Serv., Inc., 824 F.2d 819 (10th Cir. 1987). We agree with the district court that nothing in CIG’s activities before FERC so corrupts the judicial or administrative process that those activi ties amount to a sham and therefore are exempted from the Noerr- Pennington doctrine. Hydro-Tech Corp. v. Sundstrand Corp., 673 F.2d 1171, 1176-77 & n. 7 (10th Cir. 1982). M4 Tt is important to distinguish between NGPL-Trailblazer, one of the defendants, and the Trailblazer System. The Trailblazer System is a series of three separately owned and operated pipelines joined end-to-end which stretches from Wyoming to Nebraska. When built in 1982, the Trailblazer System greatly expanded the capacity of producers to move their gas from Wyoming to eastern 3la benefit of a third party, CIG did not establish each of the elements of an attempted monopolization claim." CIG alleges that Natural attempted to monopolize the market by preventing CIG from offering gas transpor- tation services to customers who might choose between CIG and the Trailblazer System. Because CIJG was re- quired to maintain capacity in its pipeline for the volume of gas Natural chose to reserve under the Service Agree- ment, CIG was not able to replace lost income from Natural’s reduced purchases by offering “firm” ' trans- portation services to new customers. In the summer of 1984, after Natural had stopped taking gas from CIG, CIG offered Natural the opportunity to reduce the capacity it reserved on the CIG system. Instead of reducing its reservation, Natural chose to increase it. Thus, Natural markets. The westermost segment of the Trailblazer System, Over- thrust, is owned by CIG and Natural, as well as four other com- panies. The middle segment, WIC, is owned by CIG alone. The east- ernmost and longest segment of the system, Trailblazer, is owned jointly by NGPL-Trailblazer and two other companies. The Trail- blazer Svstem, the alleged beneficiary of Natural’s predatory con- duct, is not even a party to this case. 5 The difficulty with punishing a firm for attempting to create a monopoly for a third party which does not act as a single entity, is that the threat to competition after the monopoly is achieved is obscure. In a more typical case in which a firm is attempting through unfair means, to gain control of a market for itself, one can be quite certain the firm will not hesitate to exercise its newly acquired monopoly power. In this case, the alleged monopolist’s (Natural’s) conduct says little about its intended beneficiary’s (the Trailblazer Svstem’s) proclivity or ability to monopolize. Section 2 of the Sherman Act does not punish the mere possession of monop- oly power. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 62, 31 S.Ct. 502, 516, 55 L.Ed. 619 (1911). 16 Gas can be sold on either a firm or interruptible basis. Firm sales guarantee the purchaser that he will receive the volumes of gas he reserves, while interruptible sales only guarantee deliveries if customers with higher priority do not demand the gas. Since CIG had a firm obligation to sell gas to Natural, CIG could only offer to sell interruptible service to new customers. 32a continued to tie up CIG’s capacity, while refusing to purchase gas. Further, CIG attempted to offer interruptible service to new customers to utilize the capacity left vacant by Natural’s decreased purchases. Soon after CIG began to service the new customers, Natural resumed purchases of cas, forcing CIG to interrupt its service to the new customers. Beeause the Trailblazer System could offer inexpensive, uninterrupted service, CIG’s new customers switched to the Trailblazer System. While Natural’s alleged manipulation of its gas pur- chases in an effort to disrupt CIG’s ability to service new customers may be reprehensible conduct, the antitrust laws cannot be invoked to punish all forms of unseemly business activity. If a party does not have monopolistic control over a market, its unfair business conduct impli- cates the attempt provision of the antitrust laws only if that conduct threatens to create a monopoly. Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1413 (7th Cir.1989); cf. Continental T.V., Inc. v. GTE Sylvania, lie., 433 U.S. 86 54, 97 S.Ct. 2549, 2559, 53 L.Ed.2d 568 (1977) (“an antitrust policy divorced from market considerations would lack any objective bench- arks”), The defendant need face the added sanction of antitrust triple damages only if the plaintiff can establish each element of an antitrust offense. In this circuit, four elements must be proven to establish an attempt to monopolize under Section 2 of the Sherman Act: (1) relevant market (including geographic market and relevant product market) in which the alleged at- tempt occurred; (2) dangerous probability of success in monopolizing the relevant market; (3) specific intent to monopolize; and (4) conduct in furtherance of such an attempt. Shoppin’? Bag of Pueblo, Ine, v. Dillon Compa- nies, T83. F.2d 159, 161 (10th Cir.1986). In addition, any private plaintiff seeking treble damages under Section 4 of the Clayton Act must show antitrust injury. Bruns- 33a wick Corp v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701, cert. denied, 429 US. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977). While Nat- ural argues that CIG has failed to establish each element of the attempted monopolization claim, CIG’s failure to show a dangerous probability of successful monopolization reveals the fundamental difficulty in CIG’s claim." In order to satisfy the dangerous probability of success element of an attempt claim, the plaintiff must show that there was a dangerous probability the defendant would achieve monopoly status as the result of the predatory con- duct alleged by the plaintiff. Shoppin’ Bag, 783 F.2d at 162; Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 271 17 Several commentators have noted approvingly that the danger- ous probability of success element of the attempt to monopolize offense prevents courts from expanding the Sherman Act into a broad unfair competition statute. For instance, Handler & Steuer state: [T]here is ample reason for excluding single-firm behavior from the serious penalties of the antitrust laws when no dan- gerous probability of monopolization exists. When one firm monopolizes an economically significant market or threatens such a monopoly, competition is immediately and seriously jeopardized. It was largely to combat this peril that section 2 of the Sherman Act was passed, fortified with the formidable deterrent of treble damages and criminal penalties. Short of this situation, however, single firm behavior does not present so significant a threat to competition as to warrant such harsh consequences. Handler & Steuer, Attempts to Monopolize and No Fault Monop- alization, 129 U.Pa.L.Rev. 125, 175 (1980) (footnote omitted): see also 3 P. Areeda & D. Turner, Antitrust Law § 833 (1978) (here- inafter Areeda & Turner); cf. Cooper, Attempts Answer to the Prophylactic Riddle of Section Two, 72 Mich.L.Rev. 373, 454-55 (1974) (warning against expansion of the attempt provision into an unfair competition statute); but see Blecher, Attempt to Mo- nopolize Under Section 2 of the Sherman Act: “Dangerous Prob- ability” of Monopolization Within the “Relevant Market,” 38 Geo. Wash.L. Rev. 215, 222 (1969); Note, Attempt to Monopolize Under the Sherman Act: Defendant's Market Power as a Re quisite to a Prima Facie Case, 73 Colum.L.Rev. 1451, 1459-61 (1973). 34a (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Eed.2d 461 (1982). The likelihood of successful mo- nopolization is typically evaluated by examining the de- fendant’s share of the relevant market. Shoppin’ Bag, 783 i’.2d at 161. Reformulated in the terms of market share, the plaintiff must show that there was a dangerous proba- bility that the defendant’s conduct would propel it from a non-monopolistic share of the market to a share that would be large enough to constitute a monopoly for pur- poses of the monopolization offense.'* The higher the firm’s initial market share, the greater the likelihood that it will eventually gain monopolistic control over the market. Jd. at 162. CIG asserts the fact that the Trailblazer Svstem’s mar- ket share rose from 41% to 53° is sufficient evidence to support the jury’s finding that there was a dangerous probability that the Trailblazer System would attain a monopoly. If this were a typical attempted monopolization case In which the defendant was attempting to acquire a monopoly for itself through the use of economic coercion, we would have little difficulty in affirming the jury’s find- ing of dangerous probability. First, a market share at the commencement of the defendant’s predatory conduct of 41°: would show that the defendant would not have to acquire much additional market share in order to attain monopoly control over the market. More importantly, however, a 41° market share typi- cally indicates that a firm has substantial economic power in the market, and therefore, has the tools at its disposal to elevate its market share to monopolistic levels. In other words, a high market share indicates that the defendant has the economic capacity to monopolize the market. Jd. 18 While the Supreme Court has refused to specify a minimum market share necessary to indicate a defendant has monopoly power, lower courts generally require a minimum market share of between 70% and 80%. 2 E. Kintner, Federal Antitrust Law § 12.6 (1980) : Areeda & Turner, © 803. 35a However, proximity to monopolistic status is not enough; the defendant must also have the ability to propel itself to monopolistic control over the market. Jndiana Grocery, Ine. v. Super Valu Stores, Inc., 864 F.2d 1409 (7th Cir. 1989) (50° market share insufficient to show dangerous probability of successful monopolization); Richter Con- crete Corp. v. Hilltop Concrete Corp., 691 F.2d 818 827 (6th Cir.1982) (“the real test is whether [the defendant] possessed sufficient market power to achieve its aims’); United States v. Empire Gas Corp., 537 F.2d 296, 305 (8th Cir.1976), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572 (1977) (50° market share insufficient to show dangerous probability of successful monopolization). While the Trailblazer System’s substantial market share demonstrates its proximity to monopoly status, it does not indicate Natural’s capacity to raise the Trailblazer Sys- tem’s market share to a monopolistic level. CIG did not attempt to offer evidence of Natural’s share of the transportation market. One might initially imagine that evidence of a firm’s market share would be required in order to assess that firm’s ability to obtain or confer market power, but this is not necessarily true. In this case, Natural’s capacity to create a monopoly for the Trailblazer System cannot be measured by Natural’s mar- ket share because Natural did not use economic coercion in its attempt to monopolize. Rather, Natural took advan- tage of its contractual right to stop purchasing gas from CIG to magnify the Trailblazer System’s position in the market.'” In evaluating the probability of successful mpnopolization “we must consider the firm’s capacity to commit the offense, the scope of its objective, and the character of its conduct.” Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F.2d 579, 598 (7th Cir.1971), '° The record does not clearly disclose how much of the Trail- blazer System’s market share gain reflected increased transporta- tion volumes because CIG was unavailable as a competitor, and how much the market share gain simply resulted from the Trailblazer System’s constant sales level in comparison with CIG’s sales losses. 36a cert. denied, 405 U. 1066, 92 S.Ct. 1500. 31 L.Ed.2d 796 (1972). In this case ei of these factors is strictly deter- mined and ultimately limited by the Service Agreement between Natural and CIG. Natural’s predatory conduct consisted of exercising its contract rights with CIG to prevent CIG from offering transportation services to long distance customers. Be- cause Natural reserved a certain amount of space in CIG’s pipeline, CIG could not offer that space to others. By continuing to reserve large amounts of gas and tak- ing gas when CIG threatened to sell Natural’s reserved capacity, Natural insured that CIG could not offer Nat- ural’s reserved capacity to the market. Yet, Natural’s ability to exclude CIG was strictly limited by Natural’s ability to insure its reserved capacity went empty. By exercising al/ its rights under the Service Agreement to tie up the entire capacity it had reserved, Natural was still only able to raise the Trailblazer System’s market share to 54% Thus, from the beginning, Natural’s decision to quit purchasing gas presented no danger that Natural could do anything more than shift 13° of the market to the Trailblazer System. The necessarily limited scope of Natural’s objective leaves no room for speculation about the probability that the Trailblazer System would gain a monopoly. There was simply no reasonable chance, let alone a dangerous probability, that Natural, through the exercise of its contractual rights, could imbue the Trail- blazer System with sufficient market share to be a mo- nopolist.”” “0 We agree with the proposition that it is no defense to an at- tempted monopolization charge that the defendant's attempt. to monopolize proved to be unsuccessful. United States vo. American Airlines, Inc., 743 F.2d 1114, 1119 (5th Cir. 1984). Simply because a plan fails to succeed does not mean there was no probability that it could have succeeded. A flipped coin which lands heads still had a 50% chance of landing tails before it was flipped. The capacity 37a Further, market share statistics sometimes overesti- mate a firm’s market power. See, e.g., Ball Memorial Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1335 (7th Cir.1986)); Landes & Posner, Market Power in Antitrust Cases, 94 Harv.L.Rev. 937, 950 (1981). In this case, if we look beyond market share statistics, we are further convinced that Natural’s conduct did not threaten to give the Trailblazer System the degree of market power that would constitute a monopoly for purposes of the monopolization offense. One measure of the degree of market power is the persistence of a firm’s ability to profitably charge monopoly prices.*’ If the evidence dem- of the defendant to monopolize must be evaluated at the commence- ment of the predatory scheme. We also note our holding in this case does not require that in every instance where a party iatends to eliminate a competitor through unfair means, the elimination of the competitor must give the predator a monopolistic market share. For instance, when a party with a substantial market share eliminates a smaller com- petitor through economic coercion, increased market power will give it even greater coercive power to eliminate other competitors. There is no reason to wait until the predator attacks a competitor that would put it just over the brink of monopolization before it can be stopped, See Note, Attempt to Monopolize Under The Sherman Act: Defendants Market Power as a Requisite to a Prima Facie Case, 73 Colum.L.Rev. 1451, 1462-63 (1973 In this case, Natural sought to take advantage of a unique op- portunity its contract afforded to temporarily harm a competitor of an entity in which it had an economic stake. Unlike the ordinary situation in which a firm’s market share is crucial to the firm’s ability to engage in predatory conduct and every predatory act makes future predation easier, Natural’s ability to engage in preda- tory conduct would not be enhanced by conferring market share upon the Trailblazer System. 21 Although most courts do not explicitly discuss the persistence of a firm's ability to charge supracompetitive prices as a measure of a firm’s market power, courts indirectly consider the potential longevity of supracompcetitive pricing whenever they use market share to evaluate the degree of market power. Market share statis- tics are a useful measure of market power, in large part, because they indicate the relative durability of supracompetitive pricing 38a onstrates that a firm’s ability to charge monopoly prices will necessarily be temporary, the firm will not possess the degree of market power required for the monopoli- zation offense.-- 3 P. Areeda & D. Turner, Antitrust Law, capacity. The greater a firm’s market share, the longer it will be able to charge monopoly prices because it will take longer for its small competitors to increase their output enongh to discipline prices. See H. Hovencaump, Economics and Federal Antitrust Law $3.1, at 583 (1985). The durability of a firm’s ability to charge supracompetitive prices also underlies another factor used to evaluate the degree of market power. Barriers to entry are often used by courts to deter- mine whether an alleged monopolist has sufficient market power for purposes of the monopolization offense. 2 E, Kintner, Federal Anti- trust Law § 12.9 (1980). Barriers to entry are market characteris- tics Which make it difficult or time-consuming for new firms to enter a market. For instance, if market entry requires the construction of large manufacturing plants, Cargill, Inc. v. Monfort of Colarodo, Inc., 479 U.S. 104, 119, 107 S.Ct. 484, 494, 93 L.Ed.2d 427 (1986), or obtaining governmental approval to enter the market, United States v. Marine Bancorporation, Inc., 418 U.S. 602, 628-29, 94 S.Ct. 9856, 2873-74, 41 L.Ed.2d 978 (1974), the market is sald to have high barriers to entry. Often courts refuse to find a sufficient degree of market power for the monopolization offense when thes determine that a market has low barriers to entry. Sec, e.g., Ball Memorial Hosp., 784 F.2d at 1335. While a firm may have the capacity to charge supracompetitive prices in a market with low barriers to entry, that capacity is likely to be temporary. 22 Some courts and commentators label the deyree of market power necessary for the monopolization offense as “monopol) power.”” See L. Sullivan, Antitrust § 22, at 75 (1977) (“Monopoly power can be distinguished from a lesser amount of market power only in degree.”); Dimmitt Agri Indus., Inc. v. CPC Int'l, Inc., 679 F.2d 516, 529 (5th Cir. 1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 244 (1983). One commentator has suggested that in the future courts might more precisely define monopoly power by “focus[ing] on the permanence of market power, with mere market power sugyesting that supranormal profits wiil be quickly croded by new entry, and monopoly power suggesting significantly greater insulation from the long-run forces of entry.” G. Ilay, Single Firm Conduct, 57 Antitrust LJ. 75, 81 (1988) (emphasis added). While we do not adopt this commentator’s nomenclature, 39a at § 807; Williamsburg Wax Museum, Inc. v. Historic Figures, Ine., 810 F.2d 248, 252 (D.C.Cir.1987) ; Dim- mitt Agri Indus., Inc. v. CPC Int'l, Inc., 679 F.2d 516, 530 (5th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983); Metro Mobile CTS, Ine. v. Newvector Communications, Inc., 661 F.Supp. 1504, 1523- 24 (1987); cf. Copperweld v. Independence Tube Corp., 467 U.S. 752, 767-68, 104 S.Ct. 2731, 2739-40, 81 L.Ed.2d 628 (1984) ‘antitrust laws are only meant to condemn conduct with long-run anticompetitive effects). In this case, the Trailblazer System’s ability to charge supracompetitive prices could last only as long as Natural had the contractual right to tie up CIG’s pipeline ca- pacity. This right was strictly limited by the duration of the Service Agreement.** Once Natural’s control over we do agree with his assertion that market power must be persistent to make a firm a monopolist for purposes of the antitrust laws. “3 A sugyestion that unidentified market forces will eventually correct supracompetitive pricing will not suffice to show that market power will be temporary. Only when an alleged monopolist faces substantial competition from a known competitor who will enter the market in a definite period of time, ought courts to decline to find sufficient market power to satisfy the r [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_IA40386011_1313%3A1. Public record. Not legal advice.