
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2153                                 CHARLES W. SULLIVAN,                                Plaintiff, Appellant,                                          v.                               PAUL TAGLIABUE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Torruella, Circuit Judge.                                           _____________                                 ____________________            Joseph L. Alioto with whom Angela  M. Alioto, Frederick P.  Furth,            ________________           _________________  ___________________        Bruce J.  Wecker, Michael P. Lehmann and Alan R. Hoffman were on brief        ________________  __________________     _______________        for appellant.            John  Vanderstar  with whom  Sonya  D.  Winner,  Ethan M.  Posner,            ________________             _________________   ________________        Jeremiah T. O'Sullivan, Sarah Chapin  Columbia, Joseph W. Cotchett and        ______________________  ______________________  __________________        Susan Illston were on brief for appellees.        _____________                                 ____________________                                     June 6, 1994                                 ____________________                                    ____________________        *Chief Judge Stephen Breyer heard oral argument in this matter but did        not  participate  in  the drafting  or  the  issuance  of the  panel's        opinion.   The remaining  two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).               COFFIN, Senior  Circuit Judge.   Plaintiff  Charles Sullivan                       _____________________          brought this action individually and as assignee of the assets of          Stadium Management Corporation  (SMC) challenging, as an  illegal          restraint  in  trade,  a  National  Football  League  (NFL)  Rule          prohibiting the sale of shares in an NFL franchise to any company          not  engaged  in  the   business  of  professional  football,  in          violation of  Sections 1  and  2 of  the Sherman  Act.1   See  15                                                                    ___          U.S.C.     1, 2.  The  district court held that  plaintiff lacked          standing to  bring this  claim and  granted summary  judgment for          defendants.2  After a review of the record, we affirm.                                        ____________________          1Sullivan also alleged supplemental state law claims of breach of          fiduciary obligations, interference with prospective advantageous          contract,  unfair trade practices,  and intentional infliction of          emotional  distress.   When  the district  court granted  summary          judgment on the federal antitrust claims, it declined to exercise          supplemental  jurisdiction  over  the  state  law  claims.    See                                                                        ___          Sullivan v. Tagliabue, 828 F. Supp. 114, 120 n.6 (D. Mass. 1993).          ________    _________          2Defendants  named  in  this  action are  the  NFL,  current  NFL          Commissioner  Paul Tagliabue  and his  predecessor Pete  Rozelle.          Paragraph  7  of  the  complaint  also  names  the  following  21          organizations  owning  NFL  franchises: The  Five  Smiths,  Inc.:          Indianapolis  Colts,  Inc.; Buffalo  Bills,  Inc.; Chicago  Bears          Football Club, Inc.; Cincinnati Bengals,  Inc.; Cleveland Browns,          Inc.;  Dallas Cowboys Football Club, Ltd.;  PDB Sports, Ltd.; The          Detroit  Lions, Inc.;  Green Bay  Packers, Inc.;  Houston Oilers,          Inc.; Los  Angeles Rams Football Co.;  Minnesota Vikings Football          Club, Inc.; New Orleans  Saints LP; New York Jets  Football Club,          Inc.;  B & B Holdings, Inc.; Pittsburgh Steelers, Inc.; Tampa Bay          Area  NFL Football,  Inc.; Pro-Football, Inc.;  Chargers Football          Co.; and Seattle Professional Football Club, Inc.               The  caption  of  plaintiff's  complaint  names  a  slightly          different set of defendants.  It fails to  include either the Los          Angeles  Rams  Football  Co.  or  the  Charges  Football  Co.  as          defendants,  and adds the New  York Football Giants,  Inc. to the          list.                                         -2-                               I.  Factual Background.                                   __________________               Charles  Sullivan   (plaintiff  or Sullivan)  is the  former          owner  and sole stockholder of SMC, which owned the stadium where          the New England Patriots  play their games.  His  father, William          Sullivan, was the Patriots' owner at all relevant times.               In 1987, William Sullivan  sought to sell a 49%  interest in          the Patriots to an investment banking firm not in the business of          football, which, in  turn, was to sell the shares  to the public.          Through  this transaction,  plaintiff, through  SMC, expected  to          obtain financing for his stadium.                 Under the terms of the  NFL Constitution and By-Laws, member          teams  are  not permitted  to sell  shares  to the  public unless          three-fourths  of  the members  approve.    William Sullivan  was          unable to persuade  the other  NFL owners to  allow his  proposed          deal, and in October 1988, he  instead sold the team to a private          buyer.   In February  1988, SMC  filed a  Chapter 11  petition in          bankruptcy,  and  the  stadium  subsequently  was  sold  for  the          "bargain basement price" of $25 million.                In May 1991,  William Sullivan sued  the NFL, alleging  that          its  policy  against   public  ownership  violated   the  federal          antitrust  laws  because  it  unreasonably  restrained  trade  in          ownership  interests in NFL teams.3   Charles Sullivan filed this          lawsuit  several months later  against the NFL  and other parties                                        ____________________          3On  October  22,  1993,  a  jury awarded  William  Sullivan  $38          million, which was reduced  by the district court upon  motion by          the  defendants  to  $17  million,  before  trebling.    The  NFL          defendants have appealed this verdict.                                           -3-          allegedly  responsible for  enforcing  the challenged  rule.   He          claims  that, had  the public  offering of  Patriots' stock  been          permitted, SMC would have received a $40 million dollar loan from          the  investment banking firm that would have been used to pay off          debts and to  make significant  renovations to the  stadium.   In          addition, in 1987,  the stadium  held a lease  with the  Patriots          which extended until 2002, which Sullivan alleges would have been          extended for  20 years had  the sale  of the Patriots  stock gone          through.    Finally, he  claims,  the  NFL policy  prevented  the          Patriots from  making their own investment in  the maintenance of          the stadium, thus undermining SMC's  ability to keep the Patriots          from  breaking  their  lease  with  SMC  and  moving  to  another          location.4                  As  damages, plaintiff  claims  the amount  of the  enhanced          market value of  the stadium  that would have  resulted from  the          planned renovations and the lease extension.                                        ____________________          4During   the  bankruptcy  proceedings,   plaintiff  received  an          assignment  of all SMC's causes of action in consideration of the          release of claims against SMC by plaintiff.                 The  NFL  argues  that   Sullivan,  as  SMC's  assignee,  is          precluded  from pursuing  its  antitrust claims  against the  NFL          defendants  because SMC did not disclose  these claims during the          course  of the  bankruptcy proceedings.    They contend  that, at          least by October, 1990,  when he entered into a  stipulation with          the  bankruptcy  trustee resolving  claims  by  and against  him,          Sullivan  was fully  aware of  all  of the  facts upon  which his          complaint is based and that his antitrust claims should have been          raised  in the  bankruptcy proceedings.   In  their view,  SMC is          therefore estopped  from bringing a  legal action to  enforce the          claims against the NFL defendants.               For  the  purposes  of  this decision,  we  assume,  without          deciding, that SMC is  not estopped from bringing a  legal action          to enforce these claims.                                          -4-               The district court granted  summary judgment for defendants,          holding  that  Sullivan lacked  antitrust  standing.   The  court          reached  this  conclusion  by  determining   that  the  materials          submitted indisputably showed that the injury  plaintiff suffered          was  not within the type contemplated by the antitrust laws; that          its  impact was too indirect;  and that the  damages claimed were          too speculative.  Plaintiff now appeals.                 Our  review  of a  grant  of  summary  judgment is  plenary.          Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994).           ______    _______________                    II.  General Principles of Antitrust Standing                         ________________________________________               Sullivan asserts that under Section 4 of the Clayton Act, 15          U.S.C.   15(a) (1994),  he has standing both individually  and on          behalf of SMC  to maintain  a private damage  action against  the          NFL.   Under Section 4, "[A]ny person who shall be injured in his          business  or property  by  reason of  anything  forbidden in  the          antitrust  laws may  sue therefor  in any  district court  of the          United States in the  district in which the defendant  resides or          is found . . . without  respect to the amount in controversy, and          shall  recover threefold  the damages by  him sustained,  and the          cost of the suit, including a reasonable attorney's fee."5                 This statutory  language is  broad, conferring the  right to          sue on "any  person" claiming  an injury causally  related to  an                                        ____________________          5It is  unquestioned that the requirements  of antitrust standing          exceed  those  of  standing  in  a  constitutional  sense.    See                                                                        ___          Associated General Contractors, Inc. v. California  State Council          ____________________________________    _________________________          of Carpenters, 459  U.S. 519,  535 n.31 (1977);  see also  Daniel          _____________                                    ___ ____          Berger &  Roger Bernstein, An Analytical  Framework for Antitrust                                     ______________________________________          Standing, 86 Yale L.J. 809, 813 n.11 (1977).          ________                                         -5-          antitrust injury.   However,  the  class of  persons entitled  to          recover  damages under  Section  4 has  been  limited by  caselaw          through  the doctrine  of "antitrust  standing."   See Associated                                                             ___ __________          General  Contractors  of  California,  Inc.  v. California  State          ___________________________________________     _________________          Council of Carpenters, 459 U.S.  519, 529-35 (1983); Blue  Shield          _____________________                                ____________          of Virginia v. McCready, 457 U.S. 465, 472-73 (1982).          ___________    ________               In  Associated  General   Contractors,  the  Supreme   Court                   _________________________________          outlined  a  series of factors to be evaluated  on a case-by-case          basis to determine whether  a plaintiff has standing to  bring an          antitrust action.6  These factors are: (1) the causal  connection          between  the   alleged  antitrust  violation  and   harm  to  the          plaintiff;  (2)  an  improper  motive;  (3)  the  nature  of  the          plaintiff's alleged injury and  whether the injury was of  a type          that  Congress   sought  to  redress  with   the  antitrust  laws          ("antitrust injury");  (4) the directness with  which the alleged          market restraint caused the  asserted injury; (5) the speculative                                        ____________________          6Prior  to  Associated  General Contractors,  circuit  courts had                      _______________________________          crafted a variety of  tests to determine whether a  party injured          by an antitrust  violation had  standing to bring  an action  for          treble damages under Section 4 of the Clayton Act.   The two most          commonly stated tests focused  on the "directness of the  injury"          to the alleged  antitrust violation, and whether  a plaintiff was          in the "target area" of the antitrust conspiracy.  See Associated                                                             ___ __________          General  Contractors,  459  U.S.  at  535-36  &  n.33  (citations          ____________________          omitted); Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law,                                                             _____________          334.1 (1993 Supp.).   A third test considered whether  the injury          was  "`arguably within  the zone  of interests  protected by  the          antitrust laws.'"   Associated  General Contractors, 459  U.S. at                              _______________________________          536 n.33 (citation omitted).   In Associated General Contractors,                                            ______________________________          the Court, noting that it was "virtually impossible to announce a          black-letter rule  that will dictate  the result in  every case,"          459  U.S. at  536, drew  on these  tests to  outline a  series of          factors  to guide courts in deciding  whether a private plaintiff          should   have  standing  to  pursue  an  antitrust  action  in  a          particular case.  See id. at 536-46.                            ___ ___                                         -6-          nature of the damages;  and (6) the risk of  duplicative recovery          or complex apportionment  of damages.   459 U.S.  at 537-45;  See                                                                        ___          also Lovett v. General Motors Corp., 975 F.2d  518, 520 (8th Cir.          ____ ______    ____________________          1992) (listing factors).               Though   Associated   General    Contractors   outlined    a                        ___________________________________          comprehensive approach to the  question of antitrust standing, it          gives little guidance as to how to weigh the various factors, and          whether  the absence  of a  particular factor  would be  fatal to          standing in  every instance.   In Associated  General Contractors                                            _______________________________          itself, the  Court found that two factors,  the causal connection          between the  Union's alleged  injuries and  the violation  of the          antitrust laws, and the  allegation of improper motive, supported          a grant of standing, 459 U.S. at 537, but that a consideration of          the remaining  relevant factors weighed heavily against standing,          id.  at 545.  The  Court concluded that,  in the circumstances of          ___          that  case, these  latter  factors were  controlling, and  denied          standing to the plaintiffs.  Id. at 545-46.                                       ___               We draw  from the  Court's discussion in  Associated General                                                         __________________          Contractors the  requirement that courts consider  the balance of          ___________          factors  in each case in an effort to guard against "engraft[ing]          artificial limitations on the   4 remedy."  McCready, 457 U.S. at                                                      ________          472.  See  also Los Angeles Memorial  Coliseum v. NFL, 791  F.2d,                _________ ______________________________    ___          1356,  1363 (9th Cir. 1986)  ("Most cases will  find some factors          tending in favor of standing . . . , and some against . . . , and          a   court  may  find  standing  if  the  balance  of  factors  so          instructs."); accord Southaven  Land Co. v. Malone &  Hyde, Inc.,                        ______ ___________________    ____________________                                         -7-          715 F.2d  1079, 1085-86  (6th  Cir. 1983);  Ashmore v.  Northeast                                                      _______     _________          Petroleum Corp. of Cape Cod, 843 F. Supp. 759, 765 (D. Me. 1994).          ___________________________                 III.  Application to Claims Brought on Behalf of SMC                       ______________________________________________          A.  Factors Supporting Standing              ___________________________               Sullivan argues  that the  district court was  correct when,          evaluating the relevant factors as they applied to claims brought          on  behalf of  SMC,  it found  that  plaintiff had  alleged,  and          presented evidence  of, a  causal connection between  the alleged          antitrust  violation  and  the  harm to  the  plaintiff,  and  an          improper motive on the part of  defendants; and when it found  no          significant  risk of  duplicate recoveries  or danger  of complex          apportionment  in this  case.   He  maintains, however,  that the          court  erred  in  its  determination  that  the  absence  of  the          remaining Associated  General  Contractors factors  required  the                    ________________________________          court  to deny standing.   He contends that  he has satisfied the          remaining factors, and  that the  court should  have granted  him          standing  to press his  antitrust suit, both  individually and on          behalf of SMC.               We  agree  that  the  district court  correctly  found  that          Sullivan's  complaint  met   three  of  the   Associated  General                                                        ___________________          Contractors factors.  Sullivan  alleged, and presented  evidence,          ___________          of  a causal connection between  the application of  the NFL Rule          and  SMC's inability to refinance the stadium because the sale of          Patriots' stock  to the  public was  prohibited.   Sullivan  also          alleged an improper motive on the part of defendants in that they          "sought  to  restrain  and  monopolize  interstate  commerce   in                                         -8-          professional  football"   and  took  the  actions   they  did  in          furtherance of that  goal.  In addition,  Sullivan indicated that          defendants intended  to block the  refinancing of the  stadium by          their  actions, or,  at the very  least, that  such a  harm was a          foreseeable  consequence of the  application of  the Rule  to the          Patriots.7   Nor does there  appear to be  a significant  risk of          duplicate  recovery or  danger of  complex apportionment  in this          case,   as  the   injuries  of   which  Sullivan   complains  are          sufficiently distinct from those alleged by William Sullivan, the          only other plausible litigant in this case.8          B.  Factors Defeating Standing              __________________________               We are  not persuaded, however, by  Sullivan's argument that          he   satisfies  the  remaining  Associated  General  Contractors'                                          _________________________________          factors.  The existence  of antitrust injury is a  central factor          in the standing calculus.9   In this case, its  absence, together                                        ____________________          7Of course, as  the Supreme Court has  noted, the presence of  an          improper motive on the part of the defendants is  not, by itself,          determinative  of  antitrust  standing.   See  Associated General                                                    ___  __________________          Contractors,  519  U.S.  at  537   &  n.37  (noting  that  "[t]he          ___________          availability of  the    4 remedy  to some  person who claims  its          benefit  is  not  a  question  of  the  specific  intent  of  the          conspirators") (quoting McCready, 457 U.S. at 479).                                  ________          8We  recognize that  there is  a risk  of duplicate  recovery and          complex  apportionment of  damages  as between  Sullivan, in  his          individual  capacity,  and  SMC,  in  light  of  their  seemingly          overlapping  injuries.   We  think  that  this  can  be  avoided,          however,  given  that plaintiff  brings  this  single action  for          damages suffered by both.          9Some  courts have  concluded that  a consideration  of antitrust          injury is of  threshold significance  in the  Section 4  standing          inquiry.  See,  e.g., Balaklaw v.  Lovell, 14 F.3d 793,  797-98 &                    ___   ____  ________     ______          n.9 (2d Cir. 1994); Todorov v. DCH Healthcare Authority, 921 F.2d                              _______    ________________________          1438, 1449 (11th  Cir. 1991); see also  State of South  Dakota v.                                        ___ ____  ______________________                                         -9-          with  the  indirectness  of  the  injury  to  Sullivan,  and  the          speculative  nature   of  the  claimed  damages,   outweighs  the          remaining factors.   We  therefore conclude that  plaintiff lacks          standing to pursue the claims brought on behalf of SMC.          1.  The Nature of the Injury: Is it Antitrust Injury?              _________________________________________________               Sullivan contends that  he has suffered  "antitrust injury,"          that is, the type of injury that the antitrust laws were designed          to prevent.  He relies principally  on McCready, 457 U.S. at 465,                                                 ________          and  Los  Angeles Coliseum,  791 F.2d  at  1356, to  support this               _____________________          claim.               The   Supreme  Court  first   articulated  the   concept  of          "antitrust injury"  in Brunswick Corp. v.  Pueblo Bowl-O-Mat, 429                                 _______________     _________________          U.S. 477  (1977).   In Brunswick,  several small bowling  centers                                 _________          brought  suit, challenging  the acquisition  of several  of their          competitors  by  the  much  larger Brunswick  Corporation  as  an          anticompetitive merger under  Section 7  of the  Clayton Act,  15          U.S.C.     18, and  seeking treble  damages  under Section  4 for                                        ____________________          Kansas  City Southern Industries, 880 F.2d 40, 46 (8th Cir. 1989)          ________________________________          (noting primacy  of antitrust injury requirement).   Cf. Cargill,                                                               ___ ________          Inc. v. Montfort of Colorado, Inc., 479 U.S. 104, 110, n.5 (1986)          ____    __________________________          (pointing  out, in  the  course of  considering antitrust  injury          requirement for  private plaintiffs  seeking an  injunction under          Section 16 of the Clayton Act, that a showing of antitrust injury          was  a  necessary  (though  not  always  sufficient)  element  of          standing to sue for damages under Section 4).                We agree  that the absence of antitrust injury weighs heavily          against  a grant  of standing.   We  need not  consider, however,          whether  this  should be  fatal  to standing  in  every instance,          because in the circumstances  of this case, we conclude  that the          balance of factors as a whole weighs against a grant of standing.                                         -10-          profits they would have made had the acquired centers gone out of          business.  Id. at 480-81.                       ___               Although plaintiffs had  alleged that Brunswick had  engaged          in  predatory practices  designed  to lessen  competition in  the          markets  it had entered,  they could prove  only that Brunswick's          acquisitions had  deprived them of  profits they would  have made          had the acquired firms closed.  Id. at 488, 490 & nn.15, 16.  The                                          ___          Court  noted that,  in essence,  plaintiffs were  not complaining          that Brunswick's  actions had reduced competition,  but preserved          it,  thereby depriving  plaintiffs of  the benefits  of increased          concentration.   Id. at 488.  Rejecting the lower court's holding                           ___          that  any loss  "causally linked"  to "the  mere presence  of the          violator in the market" was compensable, id. at 486-87, the Court                                                   ___          found  that  plaintiffs'  injury  was  not  of   "`the  type  the          [antitrust laws] were intended to forestall,'" 429 U.S. at 487-88          (citation  omitted).    The Court  held  that  to recover  treble          damages  under  Section  4,  a plaintiff  must  prove  "antitrust                                                                  _________          injury,  which is  to say injury  of the type  the antitrust laws          were intended to  prevent and  that flows from  that which  makes          defendants' acts unlawful."  Id. at 489 (emphasis in original).                                       ___               In Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982),                  _______________________    ________          the  first case  explicitly  to address  antitrust standing,  the          Court incorporated a focus on "antitrust injury" into its Section          4 standing inquiry.   The plaintiff in McCready was  a subscriber                                                 ________          of  Blue Shield,  a health  insurance plan  that did  not provide          reimbursement   for   psychotherapy    treatment   rendered    by                                         -11-          psychologists  (unless  "prescribed"  by  and  billed  through  a          medical  doctor),  while  providing reimbursement  for  the  same          treatment if given by a psychiatrist.  McCready  was treated by a          psychologist,  and Blue Shield refused  to reimburse her for this          treatment.  McCready brought suit, alleging that  Blue Shield and          an  association  of  psychiatrists  had engaged  in  an  unlawful          conspiracy "`to exclude and  boycott clinical psychologists  from          receiving compensation  under'" the  Blue Shield plans,  and that          Blue Shield's  failure to  reimburse was  in furtherance  of this          conspiracy.  McCready, 457 U.S. at 470.                       ________               The  defendants  argued  that  McCready  had   not  suffered          "antitrust  injury" because her injury did  not reflect the anti-          competitive effect of  the alleged antitrust  violation.  Id.  at                                                                    ___          481-82.  McCready had not paid inflated fees for psychotherapy to          psychiatrists, the supposed beneficiaries  of the conspiracy; nor          had she alleged  that her psychologists'  bills were higher  than          they would have been had the conspiracy not existed.  Id. at 481.                                                                ___               The Court, however, refused to so limit recovery.  While not          a competitor of the conspirators, the injury McCready suffered --          sanction in the form  of the unreimbursed psychologists' services          -- "was inextricably intertwined with the injury the conspirators          sought  to inflict"  on the  market.   Id.  at 483-84.   McCready                                                 ___          suffered injury by virtue of the role she played in Blue Shield's          anticompetitive scheme.    Denying reimbursement  to patients  of          psychologists was the  "very means" by which Blue  Shield coerced                                         -12-          her to choose  between becoming an  unwilling participant in  its          illegal campaign to boycott the  services of psychologists, or to          pay the costs of treatment  for the therapist of her choice  from          her own pocket.  The harm to McCready was thus  a "necessary step          in effecting the ends of the alleged illegal conspiracy."  Id. at                                                                     ___          479.  The Court therefore found that McCready's injury "`flow[ed]          from  that which  makes  defendants' acts  unlawful,' within  the          meaning  of  Brunswick," falling  "squarely  within  the area  of                       _________          congressional concern."  Id. at 484.                                   ___               Sullivan  argues that  the  logic of  McCready supports  his                                                     ________          standing.  In  Sullivan's view,  the NFL rule  at issue  affected          competition  in the market for football  stadia by preventing SMC          from obtaining refinancing to pay for renovations that would have          led the Patriots to  extend their lease, and by  interfering with          the Patriots'  capacity to  invest money  in  the maintenance  of          their  stadium,  thus  undermining  SMC's  ability  to  keep  the          Patriots from breaking their lease with SMC and moving to another          location.     Further,  the  injury  to   SMC  was  "inextricably          intertwined"  with that to the owner of the New England Patriots,          since SMC expected to benefit from a joint proposal to  conduct a          public offering of a minority ownership  in the team; and was  an          "integral  aspect" of  the conspiracy  against the  owner  of the          Patriots and was likely to result from the implementation of that          conspiracy.               Like McCready,  Sullivan claims,  neither the fact  that SMC          stood  in a vertical relationship  to the intended  victim of the                                         -13-          alleged antitrust  violation (purchasers of NFL  franchises), nor          the fact that SMC's injuries might be characterized as "indirect"          deprive SMC of standing.  Likewise, Sullivan's failure to show an          increase  in price or a lessening of supply in the stadia market,          and the fact that Sullivan's personal losses  might be derivative          of  those suffered by SMC  are not dispositive.   Sullivan points          out  that McCready's losses, for  example, were at  least in part          derivative of those suffered  by her employer, who as  the direct          purchaser  of  the  group  health  insurance  from  Blue  Shield,          presumably  did  not get  the benefit  of  its bargain  with Blue          Shield.                We disagree that McCready favors Sullivan's right to sue.                                   ________          Sullivan is correct  that McCready  did stand, in  part, for  the                                    ________          Court's refusal to limit recovery to those  whose injuries result          from the  anti-competitive effect of the violation, and to extend          available recovery at least to some parties who stand in vertical          relationship (such  as  customers) to  the  direct victim  of  an          antitrust  violation.10    Thus, the  fact  that  SMC  was not  a          competitor  in the  market for  professional football  teams, the          direct  victim of  the alleged  antitrust violation,  but in  the          related  market for football stadia, does not by itself mean that                                        ____________________          10In  this respect,  we disagree  with defendants'  argument that          SMC, merely by virtue of its status as the Patriots' landlord, is          necessarily barred  from bringing suit for injury  to its tenant.          Whether  a landlord has standing to sue  for injury to its tenant          depends,  in part,  on the  relationship of  the landlord  to the          relevant market and to  the antitrust violation.  For  example, a          landlord may have standing to sue for injuries to a  tenant based          on  its status  as a  competitor in an  adjacent market,  see Los                                                                    ___ ___          Angeles Coliseum, 791 F.2d at 1363-65.          ________________                                         -14-          he lacks standing here.  See McCready at 472 (refusing to engraft                                   ___ ________          artificial constraints  on Section 4, stating  that "`the statute          does  not confine its protection to  consumers, or to purchasers,          or to competitors, or  to sellers'") (internal citation omitted).               The  circuits  are  split,  however, over  the  question  of          whether  a plaintiff must be  either a consumer  or competitor in          the market harmed by the antitrust violation at issue in order to          establish  antitrust  injury.    Some courts  have  held  that  a          plaintiff may establish antitrust  injury by proof that he  was a          consumer or competitor in the relevant market, or by showing that                                                         __          his  injury was  "inextricably  intertwined" with  the injury  to          competition, in that the  plaintiff was "`manipulated or utilized          by  [d]efendant as a fulcrum,  conduit or market  force to injure          competitors  or   participants  in   the  relevant   product  and          geographic market.'"  Province  v. Cleveland Press Pub.  Co., 787                                ________     _________________________          F.2d 1047, 1052 (6th  Cir. 1986) (quoting Southaven, 715  F.2d at                                                    _________          1086); see  Ostrofe v. H.S. Crocker Co., Inc., 740 F.2d 739, 745-                 ___  _______    ______________________          46 (9th Cir. 1984)  (though neither a consumer nor  competitor in          the  relevant  market,  fact  that  injury  to  plaintiff  was  a          necessary  means  to  achieve   the  conspirators'  illegal   end          sufficient to  establish antitrust injury); Ashmore  v. Northeast                                                      _______     _________          Petroleum Division of Cargill, 843  F. Supp. 759, 769-70  (same);          _____________________________                                         -15-          Donahue  v. Pendleton  Woolen Mills, 633  F. Supp.  1423, 1435-39          _______     _______________________          (S.D.N.Y. 1986) (following Ostrofe).11                                     _______               Other courts have interpreted  Supreme Court caselaw and the          antitrust  laws more narrowly, holding that a plaintiff must be a          market participant in order to  establish antitrust injury.   See                                                                        ___          Bichan  v. Chemetron  Corp., 681  F.2d 514,  519 (7th  Cir. 1982)          ______     ________________          (Section  4  protects  only   parties  injured  as  customers  or          competitors in  a defined market,  or in  a discrete area  of the          economy); see  also Winther  v. DEC  International, Inc.,  625 F.                    ___  ____ _______     ________________________          Supp.  100, 102-03  (D. Colo.  1985).   We need not  resolve this          conflict, because  even under  a broad  reading of  McCready, SMC                                                              ________          cannot support its claim of antitrust injury.               Read broadly, McCready extends antitrust standing to parties                             ________          who  can establish that their  injury was a  "necessary step" and          the "means" employed by the conspirators to achieve their illegal          ends,  regardless of  the parties'  direct market  participation.          See McCready,  457 U.S. at  479, 484 n.21;  Ostrofe, 740  F.2d at          ___ ________                                _______          745-46; Ashmore,  843 F.  Supp. at  768-70 & nn.16,  18.   Unlike                  _______          McCready  and her  co-plaintiffs, neither  Sullivan nor  SMC were          "necessary" instruments  to  effectuate the  alleged  conspiracy.          Denying  stadium  refinancing  was  not  a  "necessary  step"  in                                        ____________________          11These  courts reason that  the injury  suffered by  a plaintiff          used as  a means to effect  an antitrust violation  is within the          core  of  Congressional concern  underlying  the  antitrust laws,          which is  "to create a  private enforcement mechanism  that would          deter violators and deprive  them of the fruits of  their illegal          actions and  would provide ample  compensation to the  victims of          antitrust violations."   Ashmore,  843 F. Supp.  at 770  (quoting                                   _______          McCready, 457 U.S. at 472); see also Ostrofe, 740 F.2d at 746-47.          ________                    ___ ____ _______                                         -16-          restraining competition  in the market for  professional football          franchises, nor the  "very means" by which  the defendants sought          to  do so.  Indeed,  according to plaintiff's  own complaint, the          purpose  of the NFL policy was to "exclude competitive entry into          the  business  of  professional  football  by  . .  .  television          companies, motion  picture producers, investment  bankers, owners          of other professional sports teams, home entertainment companies,          and  entertainment  companies  generally."   The  policy  is  not          alleged  to  have a  similar  anticompetitive  effect on  stadia.          Moreover, the instruments of the alleged conspiracy were the  NFL          and member club owners, not Sullivan or SMC.                    Nor does the Ninth Circuit's holding in Los Angeles Coliseum                                                       ____________________          bolster  Sullivan's claim that he  suffered antitrust injury.  In          that case,  the  Los Angeles  Coliseum  and the  Oakland  Raiders          attempted  to negotiate  a deal  to relocate  the Raiders  to Los          Angeles  to  play in  the Coliseum  (the  Rams' old  home field),          following the Rams' move to Anaheim.  In its effort to block this          move, the  NFL invoked a  league rule requiring  three-fourths of          the member  teams to  approve  a team's  relocation into  another          team's league  territory.  The  Coliseum and the  Raiders brought          suit, claiming that this  was an unlawful restraint of  trade, in          violation of Section 1 of the Sherman Act, 15 U.S.C.   1.  A jury          found  that the NFL rule violated the antitrust laws, and awarded          damages to both the Coliseum and the Raiders.                 In  holding  that the  Coliseum had  standing to  bring this          antitrust  action, the court found that the Coliseum had suffered                                         -17-          "antitrust injury," because the NFL had "restrained competition .          .  .  among football stadia by restraining the Raiders['] attempt          to move and operate in Los  Angeles."  791 F.2d at 1364 (emphasis                      _______          in  original).   Had the  Raiders been permitted  to move  to Los          Angeles,  the Coliseum would have been able to bid effectively to          have them  as a tenant.   The rule  restraining such a  move, the          court held, was  precisely of  the type that  the antitrust  laws          were designed to prevent.  Id.                                     ___               The rule at issue  here posed no similar restraint  on SMC's          capacity to compete  for a pro football team's tenancy.  In fact,          in 1987, the year of the attempted sale, SMC and the Patriots had          a lease that ran  until the year  2002, regardless of the  team's          ownership.                                         -18-          2. Directness of the Injury             ________________________               Sullivan argues that SMC suffered direct harm as a result of          the NFL's restraints on the stadia market.  He maintains that Los                                                                        ___          Angeles Coliseum  supports this claim, and  compares SMC's status          ________________          to that of the Coliseum.                 In  Los Angeles Coliseum, the Coliseum had been engaged in a                   ____________________          bidding  struggle with  a rival  stadium for  the tenancy  of the          Oakland  Raiders when  the  NFL's invocation  of its  restrictive          relocation rule  foreclosed further negotiations,  thus depriving          the  Coliseum of expected revenue for leasing the facility to the          Raiders for  their games.  791  F.2d at 1365.   The Ninth Circuit          concluded that the NFL's illegal territorial restraints  directly          and foreseeably  restrained competition in the  stadia market, in          which  the Coliseum participated,  and that the  harm it suffered          was a  direct result of the NFL's illegal territorial restraints.          Id.           ___               In an attempt to limit the reach of this  holding, the court          stated  that it  was "confident  that [this]  ruling will  not be          misinterpreted as being a broad endorsement of antitrust standing          for  all parties who might  have contracted with  the Raiders had          they not  been restrained in  their relocation  plans.   Football          stadia  constitute  a  special market  distinguished  from  those          comprised   by,  say,   hotels,  laundering   establishments,  or          limousine   services,  by   their   indispensable  and   intimate          connection  with professional  football and  football teams.   An          injury  such as that suffered by the Coliseum in the present case                                         -19-          cannot be  characterized fairly as an  indirect `ripple effect.'"          Id. at 1365.          ___               Sullivan  seems to argue that since  SMC, like the Coliseum,          is a participant  in the  market for football  stadia, it  enjoys          similar distinguished status by  virtue of its "indispensable and          intimate  connection  with  professional  football  and  football          teams," and  should be able likewise  to recover.   The injury to          SMC,  and its relation  to the rule  at issue in  this case, are,          however, clearly distinguishable.               The rule at issue  in Los Angeles Coliseum affected  where a                                     ____________________           _____          team could be located.  In precluding a team from relocating in a          particular area,  the rule necessarily  restrained competition in          the related market for football stadia.  Once the NFL invoked its          rule to block the  Raiders from moving into the  Rams' territory,          the Coliseum (and, indeed, all other stadia in that location) was          barred from competing with other stadia for the Raiders' tenancy.               The rule at issue in this case had no  similar direct effect          on  SMC,  nor  on  the market  in  which  it  was a  participant.          Plaintiff claims  that the NFL rule  restricting public ownership          of NFL teams was the "but for" cause of the loss of  his stadium,          injuring SMC as follows: the NFL rejected William Sullivan's plan          to  sell 49% of his stock to  an investment bank, which, in turn,          would sell the  stock to the public; as a result, SMC did not get          refinancing; SMC  therefore could not pay its debts, nor complete          renovations; SMC could not  get an extension on its  lease (which          was contingent on the sale of Patriots' stock), and was forced to                                         -20-          file for bankruptcy.  We think that any injury suffered by SMC as          a result of the NFL  rule was indirect, and a consequence  of the          direct injury inflicted on the Patriots' owner.               In addition, the  fact that William Sullivan, the party most          directly  harmed  by  the  alleged violation,  has  pursued  (and          indeed,  obtained   a  verdict  in)  his   own  antitrust  action          diminishes another  possible rationale  for allowing Sullivan  to          proceed  in this case.   See Associated  General Contractors, 459                                   ___ _______________________________          U.S.  at 542 (existence of an identifiable class of persons whose          self-interest  likely to  motivate them  to vindicate  the public          interest  in antitrust  enforcement diminishes  the justification          for allowing a more remote party to sue).12          3. Speculative Nature of the Damages             _________________________________                                        ____________________          12Contrary to plaintiff's assertion, the district court's finding          that there was no  significant risk of duplicative  recoveries or          danger  of complex apportionment of  damages is not  at odds with          its  determination  that  the  fact  that  William  Sullivan  was          pursuing  his own  antitrust action  weighed against  a  grant of          standing.  In considering the risk of duplicativeness and complex          apportionment  of  damages,  courts are  concerned  with  keeping          antitrust   actions  within   judicially  manageable   limits  by          curtailing litigation involving apportionment of damages among an          array  of  parties  claiming  injury.    See  Associated  General                                                   ___  ___________________          Contractors, 459 U.S. at  543-45 & nn.50-51; see  also Southaven,          ___________                                  ___  ____ _________          715  F.2d  at  1087.    In  considering  directness,  courts  are          concerned with the  question of which among the  affected parties          are  most likely to be  motivated to pursue  an antitrust action.          While  in the  usual  case, this  would  be those  most  directly          affected by the antitrust violation,  in some cases, more  remote          parties  might be more likely  to detect and  pursue an antitrust          action.  See Associated General Contractors, 459 U.S. at 542; see                   ___ ______________________________                   ___          also  Ashmore,  843 F.  Supp.  at  766-67 (appropriate  to  grant          ____  _______          standing  to  employees  discharged  for  refusal   to  implement          discriminatory   pricing   system,  because   purchasers,  though          directly  damaged by  anticompetitive  effect of  violation,  are          least likely to discover it).                                           -21-               The  district court  found  that "[g]iven  that an  extended          chain  of independent events would  have had to  have occurred to          give credence to the Plaintiff's damages claim on behalf of SMC,"          the  damages claims were "at  best, highly speculative."   828 F.          Supp. at 118.  Sullivan claims that damages to SMC are measurable          in terms of the enhanced market value of the  stadium which would          have resulted from the planned renovations,  the extension of the          lease with  the  Patriots,  and  the  potential  for  deals  with          promoters for  other entertainment and  sports events.   We think          that calculating these  damages would  "necessitate wide  ranging          speculation," Southaven  Land Co.,  715 F.2d  at 1088,  about the                        ___________________          future value of a refinanced, renovated, debt-free stadium with a          new lease.  Because the harm to SMC was indirect, and was caused,          in part,  by independent intervening factors  (notably, its prior          serious indebtedness, as well as its failure to secure additional          sources  of commercial  financing),  we agree  with the  district          court that SMC's damages claims are "highly speculative," and are          an additional factor weighing against a grant of standing in this          case.   See  Associated  General  Contractors,  459 U.S.  at  542                  ___  ________________________________          (finding   that  damages  were  speculative  because  injury  was          indirect, and  because it may  have been produced  by independent          intervening factors).               The Ninth Circuit's holding in  Los Angeles Coliseum is  not                                               ____________________          to the contrary.   In that case, the estimated damages claimed by          the Coliseum included  claims for  lost profits  that would  have          been earned had luxury  stadium boxes been built in  the Coliseum                                         -22-          and rented for the  1980 football season.  791 F.2d at 1366.  The          court noted these estimates  may have been unfounded due  to lack          of  proof of causation.   Id.  Nonetheless,  the court upheld the                                    ___          damages award, holding that even without considering the elements          in  question (lost  profits  from would-have-been  luxury boxes),          there  was  sufficient evidence,  including  attendance and  seat          price estimates offered by the Raiders, to uphold the total award          of damages.  Id.                       ___               Los Angeles Coliseum is distinguishable in several important               ____________________          respects.   As the  Ninth  Circuit found,  the Coliseum  suffered          direct harm as a result of the NFL's antitrust violation: but for          the NFL's interference in its negotiations with the  Raiders, the          Coliseum likely would have  secured their tenancy.  Id.  at 1365.                                                              ___          The damages suffered were therefore intimately connected with the          antitrust violation.   Moreover,  losses based on  attendance and          ticket  price  estimates were  the  foreseeable  result of  these          damages, and  are  precisely  the  type  of  damages  courts  can          calculate  easily.    By  contrast, the  asserted  harm  here  is          indirect, and likely the result, at least in part, of independent          intervening  factors;  nor is  the  enhanced  market value  of  a          refinanced, renovated, debt-free stadium with a new lease easy to          calculate.  It is the combination of  these factors that leads us          to conclude  that any damages to  SMC as a result  of the alleged          antitrust  violation  are  highly  speculative.   See  Associated                                                            ___  __________          General Contractors, 459 U.S. at 542.          ___________________                                         -23-               Having   considered   the   relevant    Associated   General                                                       ____________________          Contractors' factors, we  conclude that the balance  in this case          ____________          weighs against a grant  of standing.  We therefore  conclude that          Sullivan may not pursue an antitrust action on behalf of SMC.                IV.  Application to Sullivan's Personal Damages Claims                     _________________________________________________               Sullivan   also  claims  that  the  NFL's  restrictive  rule          directly damaged him in his individual  capacity, by charging him          with  an array  of expenses  arising out  of the  SMC bankruptcy,          including  the  payment  of  legal and  other  professional  fees          associated   with  the   bankruptcy   proceeding   itself,   lost          opportunity  to   purchase  debt  at  a   discounted  rate,  lost          compensation and  benefits, and anguish  and emotional  distress.          In  that, as the district court found, these damages "merely flow          from the  alleged injuries to SMC," 828 F. Supp. at 120, they are          that  much further removed from the injuries claimed on behalf of          SMC.  We therefore conclude, consistent  with our conclusion that          SMC did  not  suffer "antitrust  injury,"  and that  any  damages          suffered were too  indirect and speculative to  sustain an action          on its behalf, that Sullivan likewise lacks standing to pursue an          antitrust action for damages suffered in his individual capacity.          The decision of the district court is AFFIRMED.          ______________________________________________                                         -24-
