                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CONFEDERATED TRIBES OF SILETZ             
INDIANS OF OREGON; SMOKEY POINT
HARDWOOD, INC.,
                          Plaintiffs,          Nos. 03-35669
               and                                  03-35984
ROSS-SIMMONS HARDWOOD LUMBER                     D.C. No.
COMPANY, INC.,                                CV-00-01693-OMP
                 Plaintiff-Appellee,              OPINION
                v.
WEYERHAEUSER COMPANY,
             Defendant-Appellant.
                                          
       Appeal from the United States District Court
                for the District of Oregon
      Owen M. Panner, Senior District Judge, Presiding

                   Argued and Submitted
             December 6, 2004—Portland, Oregon

                       Filed May 31, 2005

    Before: Thomas G. Nelson and Johnnie B. Rawlinson,
         Circuit Judges, and William W Schwarzer,*
                    Senior District Judge.

                 Opinion by Judge T.G. Nelson



  *The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

                                5813
            ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                   5817
                             COUNSEL

Stephen V. Bomse, M. Laurence Popofsky and Heather N.
Leal, Heller Ehrman White & McAuliffe LLP, San Francisco,
California, for the appellant.

Michael E. Haglund, Haglund, Kelley, Horngren & Jones,
LLP, and Roy Pulvers, Lindsay, Hart, Neil & Weigler, LLP,
Portland, Oregon, for the appellee.


                              OPINION

T.G. NELSON, Circuit Judge:

   Ross-Simmons Hardwood Lumber Company brought this
action against Weyerhaeuser Company for antitrust violations
under Section 2 of the Sherman Act.1 Ross-Simmons alleged
that Weyerhaeuser monopolized and attempted to monopolize
the Pacific Northwest input market for alder sawlogs through
its purchases of sawlogs. Ross-Simmons prevailed in a jury
trial on both its monopolization and attempted monopoliza-
tion claims. After trebling the jury’s damages award, the court
entered judgment for Ross-Simmons and denied
Weyerhaeuser’s motion for judgment as a matter of law or for
a new trial. The court also awarded attorneys’ fees and costs
to Ross-Simmons. Weyerhaeuser appeals the court’s denial of
its motion for judgment as a matter of law or for a new trial,
and seeks reversal of the judgment. Weyerhaeuser also sepa-
rately appeals the district court’s award of attorneys’ fees and
costs to ensure that any reversal of the judgment or remand
for a new trial would also result in reversal of the award of
  1
   15 U.S.C. § 2. Section 2 of the Sherman Act provides, in relevant part,
that “[e]very person who shall monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to monopolize any
part of the trade or commerce among the several States, or with foreign
nations, shall be deemed guilty” of an antitrust violation. Id.
5818      ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
attorneys’ fees and costs. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.

                    I.   BACKGROUND

   The forests west of the Cascade Mountains in Oregon and
Washington contain sufficient hardwood to support the only
concentration of hardwood sawmills in the western United
States. These mills are part of what is often called the “alder
industry” after the area’s predominant hardwood species,
which accounts for 95% of the annual Pacific Northwest hard-
wood lumber production. The three principal players in the
alder portion of the hardwood industry are: (1) timberland
owners and loggers who supply alder sawlogs; (2) production
facilities, including sawmills, that buy sawlogs and process
them into finished alder lumber; and (3) purchasers who buy
hardwood lumber from production facilities. Both parties in
this case fall under the second category: they operate saw-
mills.

   The plaintiff-appellee, Ross-Simmons Hardwood Lumber
Company, was a pioneer in the alder lumber business, starting
in 1962. It operated its mill in Longview, Washington contin-
uously until it went out of business in 2001. From 1990 to
1997, Ross-Simmons experienced modest prosperity, but
from 1998 to 2001, its production declined. From 1998 to
2001, sawlog prices increased while finished lumber prices
decreased. This was unusual: historically, the price of alder
sawlogs fluctuated with the price of finished lumber. Because
its materials costs went up and its production went down,
Ross-Simmons incurred losses totaling nearly $4.5 million,
forcing it to shut down in 2001. Ross-Simmons blamed its
failure on Weyerhaeuser.

   The defendant-appellant, Weyerhaeuser Company, was
established in 1900. In 1980, it acquired Northwest Hard-
woods, Inc. (also “Weyerhaeuser”), and now owns six hard-
wood sawmills in the Pacific Northwest. Weyerhaeuser is one
          ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER           5819
of the largest manufacturers of hardwood lumber in the world.
From 1998 to 2001, the period in which Ross-Simmons’s
profits dropped, Weyerhaeuser’s share of the Pacific North-
west market for alder sawlogs was approximately 65%.

   Ross-Simmons alleged that Weyerhaeuser artificially
increased sawlog prices to drive Ross-Simmons and other
competitors out of business. At trial, Ross-Simmons offered
testimony and other evidence to prove that Weyerhaeuser
attempted to eliminate competitors by driving up sawlog
prices and restricting access to sawlogs through: (1) predatory
overbidding (i.e., paying a higher price for sawlogs than nec-
essary); (2) overbuying (i.e., buying more sawlogs than it
needed); (3) entering restrictive or exclusive agreements with
sawlog suppliers; and (4) making misrepresentations to state
officials in order to obtain sawlogs from state forests.
Weyerhaeuser attributed Ross-Simmons’s failure to substan-
dard equipment, inefficient operations, poor management, and
inadequate capital investment.

   The court instructed the jury on the applicable law, includ-
ing the elements of both monopoly and attempted monopoly,
the law regarding anticompetitive conduct in the form of
predatory overbidding, and the issue of damages. With respect
to overbidding, the court instructed the jury that, if it found
that Weyerhaeuser paid higher prices than necessary for saw-
logs, the jury could regard that as an anticompetitive act. The
jury found for Ross-Simmons on both the monopolization and
attempted monopolization claims, and awarded damages of
$26,256,406. After trebling the damages award, the court
entered judgment in the amount of $78,769,218 against
Weyerhaeuser. The court then denied Weyerhaeuser’s motion
for judgment as a matter of law or for a new trial, and
awarded attorneys’ fees and costs to Ross-Simmons.

  Weyerhaeuser appeals the judgment, arguing that: (1) it is
entitled to judgment as a matter of law because it had no mar-
ket power in the alder sawlog market and the alleged anticom-
5820        ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
petitive acts were not actionable under § 2 of the Sherman
Act, (2) it is entitled, in the alternative, to a new trial because
the jury instructions misstated the law of predatory overbid-
ding, and (3) it is entitled to reversal of the judgment because
Ross-Simmons’s damages theory was speculative.
Weyerhaeuser also appeals the court’s grant of attorneys’ fees
and costs to Ross-Simmons so that any reversal of the judg-
ment or remand for a new trial would also result in reversal
of the award of attorneys’ fees and costs.

                         II.   ANALYSIS

   Weyerhaeuser’s challenges to the court’s denial of its
motion for judgment as a matter of law or for a new trial pre-
sent us with a legal question of first impression: whether the
prerequisites set forth in Brooke Group Ltd. v. Brown & Wil-
liamson Tobacco Corp.2 for establishing liability in sell-side
predatory pricing cases apply in cases where a defendant
engages in buy-side predatory bidding by raising the cost of
inputs. We address this legal issue at the outset, applying a de
novo standard of review.3 For the reasons discussed below,
we conclude that Brooke Group does not control in the buy-
side predatory bidding context at issue here.

   Our conclusion that Brooke Group does not apply here dis-
poses of Weyerhaeuser’s challenge regarding a new trial due
to erroneous jury instructions in its entirety. The court prop-
erly instructed the jury regarding predatory overbidding. Our
holding that Brooke Group is inapplicable also partially
resolves Weyerhaeuser’s challenge regarding judgment as a
matter of law. Because Weyerhaeuser further contends that
the evidence was insufficient to support the jury’s verdict, we
must examine that contention, however. After doing so, we
  2
   509 U.S. 209 (1993).
  3
   Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 791
F.2d 1356, 1360 (9th Cir. 1986) (stating that we review questions of law
de novo).
            ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                    5821
conclude that substantial evidence did support the jury’s find-
ing of attempted monopolization. Thus, we affirm the court’s
denial of Weyerhaeuser’s motion for judgment as a matter of
law or for a new trial.

   Two issues remain unresolved after we address the issue
related to Brooke Group. They are: (1) damages, and (2) attor-
neys’ fees and costs. We resolve them as follows. First, we
uphold the jury’s award of damages because it was based
upon an appropriate estimate of damages. Second, we con-
clude that the court properly granted attorneys’ fees and costs
in favor of Ross-Simmons. Accordingly, we affirm.

A.     ISSUES RELATED TO BROOKE GROUP

  1.    Inapplicability of Brooke Group

   [1] Monopoly power exercised on the buy-side of the mar-
ket is called “monopsony” power, and can violate § 2 of the
Sherman Act.4 Both sides of the market affect allocative effi-
ciency, and hence consumer welfare.5 Antitrust laws are thus
concerned with competition on the buy-side of the market as
much as on the sell-side of the market.6
  4
     See United States v. Syufy Enters., 903 F.2d 659, 663 n.4 (9th Cir.
1990) (“Syufy II”); ROGER D. BLAIR & JEFFREY L. HARRISON, MONOPSONY:
ANTITRUST LAW AND ECONOMICS at 68-81 (1993) (discussing monopsonist
behavior that violates the Sherman Act).
   5
     See BLAIR & HARRISON, supra note 5, at 36-61 (explaining the social
welfare losses that result when a dominant buyer or collusive buyers set
a non-optimal price for inputs).
   6
     See, e.g., Mandeville Island Farms, Inc. v. Am. Crystal Sugar Co., 334
U.S. 219, 227, 235-36 (1948) (explaining that price fixing by a buyer’s
cartel violates §§ 1 and 2 of the Sherman Act); Am. Tobacco Co. v. United
States, 328 U.S. 781, 801-04 (1946) (stating that a conspiracy to increase
prices of cheaper tobacco and thereby drive out manufacturers of lower-
priced cigarettes violated § 2 of the Sherman Act); Reid Bros. Logging Co.
v. Ketchikan Pulp Co., 699 F.2d 1292, 1298 n.5 (9th Cir. 1983) (discuss-
ing that a conspiracy to bid more for logs to drive competitors out was
5822        ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
   [2] Weyerhaeuser argues that, regardless of whether a case
involves sell-side predatory pricing or buy-side predatory bid-
ding, the same standard of liability should apply.
Weyerhaeuser invites the court to borrow the standard of lia-
bility set forth in Brooke Group, a sell-side predatory pricing
case. In Brooke Group, the Court created a high standard of
liability, holding that a plaintiff bringing a claim under § 2 of
the Sherman Act based on predatory sell-side pricing must
show that: (1) “the prices complained of are below an appro-
priate measure of its rival’s costs,” and (2) “a dangerous prob-
ability” existed that the rival would later “recoup[ ] its
investment in below-cost prices” once it stopped such pricing.7
Thus, to establish liability under Brooke Group, a plaintiff
had to show that its competitor operated at a loss and was
likely to recoup its losses. Weyerhaeuser contends that the
same standard should apply in buy-side predatory bidding
cases. Specifically, Weyerhaeuser argues that the jury instruc-
tions were erroneous because the court did not instruct the
jury that overbidding for sawlogs could be anticompetitive
conduct only if Weyerhaeuser operated at a loss and a danger-
ous probability of its recoupment of losses existed.8 Similarly,
Weyerhaeuser argues that, as a matter of law,9 the alleged

anticompetitive conduct); Nat’l Macaroni Mfrs. Ass’n v. FTC, 345 F.2d
421, 426-27 (7th Cir. 1965) (holding that an agreement of macaroni pro-
ducers to reduce the amount of durum wheat purchased as an input for
pasta production was per se unlawful); see also Blair & Harrison, supra
note 5, at 68-81 (discussing cases).
  7
    Brooke Group, 509 U.S. at 222, 223-24.
  8
    The relevant jury instruction, as finally formulated, stated:
      One of Plaintiffs’ contentions in this case is that the Defendant
      purchased more logs than it needed or paid a higher price for logs
      than necessary, in order to prevent the Plaintiffs from obtaining
      the logs they needed at a fair price. If you find this to be true, you
      may regard it as an anti-competitive act.
   9
     Los Angeles Land Co. v. Brunswick Corp., 6 F.3d 1422, 1425 (9th Cir.
1993) (stating that the issue of “whether specific conduct is anticompeti-
tive in violation of the Sherman Act is one of law”).
             ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                     5823
predatory overbidding was           not actionable anticompetitive
conduct under the Sherman           Act because Ross-Simmons did
not satisfy the two Brooke          Group requirements. We reject
Weyerhaeuser’s arguments            regarding the applicability of
Brooke Group.

   The Brooke Group Court established a high liability stan-
dard for sell-side predatory pricing cases because of its con-
cern with the facts that consumers benefit from lower prices
and that cutting prices often fosters competition.10 The Court
stated that “[l]ow prices benefit consumers regardless of how
those prices are set, and so long as they are above predatory
levels, they do not threaten competition.”11 The Court further
recognized that above-cost pricing is either “competition on
the merits, or is beyond the practical ability of a judicial tribu-
nal to control without courting intolerable risks of chilling
legitimate price-cutting.”12 As a result, the Court did not want
to make the standard of liability “so low that antitrust suits
themselves became a tool for keeping prices high.”13

   [3] We recognize that in buy-side predatory bidding cases,
as in sell-side predatory pricing cases, the price level itself is
the anticompetitive weapon. However, an important factor
distinguishes predatory bidding cases from predatory pricing
cases: benefit to consumers and stimulation of competition do
not necessarily result from predatory bidding the way they do
from predatory pricing.14 We turn now to the short-term and
long-term effects of predatory bidding.
  10
      Brooke Group, 509 U.S. at 223, 226.
  11
      Id. at 223 (internal quotation marks and citation omitted).
   12
      Id. (citation omitted).
   13
      Id. at 226-27.
   14
      See Wash. Alder LLC v. Weyerhaeuser Co., 2004 WL 1717650, at *1
(D. Or. July 27, 2004) (“Consumers don’t benefit from higher raw mate-
rial prices, or by logs rotting in the lumber yard. Nor is deliberately driv-
ing log prices up, simply to deprive competitors of logs, likely to be
confused with legitimate competition.”); John B. Kirkwood, Buyer Power
5824         ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
   In a predatory bidding scheme, a firm pays more for mate-
rials in the short term, and thereby attempts to squeeze out
those competitors who cannot remain profitable when the
price of inputs increases.15 No consumer benefit results during
this predation period if the firm raises or maintains the same
price level for its finished products. Although consumers
might temporarily benefit if a firm lowered prices during the
predation period, a reduction in prices would place even
greater pressure on competitors, thereby increasing the threat
to competition arising from the predatory bidding.16 Thus,
even though a short-term benefit to consumers might occur in
some predatory bidding situations, serious concerns about the
threat to competition would concurrently arise in those situa-
tions. Moreover, predatory bidding claims do not directly

and Exclusionary Conduct: Should Brooke Group Set the Standards for
Buyer-Induced Price Discrimination and Predatory Bidding?, 72 ANTI-
TRUST L.J. 625, 655 (2005) (“[I]t seems indisputable that any negative
impact of a predatory bidding case on downstream price competition is
less direct and less certain than the impact of a predatory pricing case,
which is a direct assault on a seller’s decision to lower prices to its cus-
tomers.”); id. at 667 (stating that “because predatory bidding cases attack
a firm’s decision to increase prices, not reduce them, they do not represent
a direct assault on price cutting”); Richard O. Zerbe, Jr., Monopsony and
the Ross-Simmons Case: A Comment on Salop and Kirkwood, 72 ANTI-
TRUST L.J. 717, 724 (2005) (stating that consumer harm can be presumed
in the instant case because it involves “a limited, relatively inelastic,
resource-based input market [for alder logs] and a much broader output
market”). But see Steven C. Salop, Anticompetitive Overbuying by Power
Buyers, 72 ANTITRUST L.J. 669, 702 (2005) (stating that “[t]he difficulty
of distinguishing an anticompetitive overbuying strategy from a competi-
tive purchase expansion can be similar to the difficulties in predatory pric-
ing matters” and that in some situations, “it may be difficult for a court
to know whether the firm is attempting to predate or simply competing in
the input market with rivals who are also purchasing the inputs”).
   15
      Kirkwood, supra note 15, 72 ANTITRUST L.J. at 652.
   16
      In this case, the price of finished lumber decreased while the cost of
sawlogs increased during the alleged predation period. It is unclear from
the record whether lumber prices decreased because of a decision
Weyerhaeuser made, or for other reasons.
             ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                     5825
challenge a firm’s decision to cut prices; instead, they focus
on a firm’s decision to raise the cost of inputs. Therefore, the
concerns the Brooke Group Court expressed about depriving
consumers of the temporary benefit of low prices do not nec-
essarily apply when predatory bidding is at issue.17

   In the long run, to carry out a predatory bidding scheme
successfully, a firm would have to recoup the higher costs it
had paid for its materials. If it succeeded in driving out com-
petition, during this recoupment period the firm would likely
pay less for its materials while charging consumers a higher
price.18 The firm would have little incentive to pass on the
benefit of lower input prices to consumers when it possessed
greater market power and needed to recoup the higher costs
it had paid for its materials. Thus, the overall effect of a pred-
atory bidding scheme would result in harm to consumers.19

   [4] Although in some situations rising input prices might
encourage new companies to enter the supply side of the mar-
ket and expand output, thereby increasing innovation and effi-
ciency so that consumers benefit in the long run through price
decreases and product improvements, this is not such a situa-
tion. The nature of the input supply at issue here does not
readily allow for market expansion. The evidence shows that,
during the alleged predation period, the supply of alder saw-
logs remained relatively stable or declined. Nothing suggests
this situation will change — alder sawlogs are “a natural
resource of limited annual supply in a relatively inelastic mar-
ket.”20 Thus, at least in this case, predatory bidding is less
likely than predatory pricing to result in a benefit to consum-
  17
      See Brooke Group, 509 U.S. at 223, 226-27.
  18
      See Kirkwood, supra note 15, 72 ANTITRUST L.J. at 653.
   19
      We note that the recoupment phase of a predatory bidding scheme
mirrors the recoupment phase of a predatory pricing scheme. See id.
   20
      See Zerbe, supra note 15, 72 ANTITRUST L.J. at 722 (explaining that
the alder sawlog market is “highly inelastic,” in part because the alder har-
vest is a byproduct of the more important softwood harvest).
5826         ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
ers or the stimulation of competition. As a result, the concerns
that led the Brooke Group Court to establish a high standard
of liability in the predatory pricing context do not carry over
to this predatory bidding context with the same force. There-
fore, the standard for liability in this predatory bidding case
need not be as high as in predatory pricing cases. Accord-
ingly, we hold that the high standard of liability in Brooke
Group does not apply here because this case involves preda-
tory bidding in a relatively inelastic market, not predatory
pricing.

   Our decision in Reid Bros. Logging Co. v. Ketchikan Pulp
Co.21 provides further support for our holding today that the
prerequisites in Brooke Group do not apply here. Although
the Supreme Court decided Brooke Group after we decided
Reid Bros.,22 Brooke Group involved a different factual situa-
tion and did not overrule Reid Bros.23 In Reid Bros., we
affirmed a finding of liability under § 1 of the Sherman Act
that was based in part on a predatory buying claim.24 The
plaintiff in Reid Bros. argued that the defendants conspired to
bid preclusively on timber sales at higher prices than neces-
sary to block the plaintiff from buying necessary timber.25 The
defendants argued that the district court erred by finding pred-
atory bidding when there was no evidence that the high prices
paid for timber would prevent the defendants from covering
their marginal costs on the ultimate sale of the processed tim-
ber.26 We rejected the defendants’ argument and held that
  21
      699 F.2d 1292.
  22
      See United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992) (stating
that we must view our decisions in light of intervening Supreme Court
decisions closely on point).
   23
      See Brooke Group, 509 U.S. at 214-16.
   24
      Reid Bros., 699 F.2d at 1297-98. Section 1 of the Sherman Act prohib-
its “[e]very contract, combination . . . , or conspiracy[ ] in restraint of trade
or commerce.” 15 U.S.C. § 1.
   25
      See Reid Bros., 699 F.2d at 1297-98.
   26
      Id. at 1298 n.5.
             ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                     5827
such a “blind application of a numerical test would only frus-
trate the intent of the Sherman Act.”27 This statement that a
rigid, numerical test should not apply when a buy-side over-
bidding scheme was at issue further supports our holding that
Brooke Group is inapplicable here. Thus, our conclusion that
Brooke Group does not apply is consistent with our precedent.
We now turn to the effect our conclusion has on
Weyerhaeuser’s arguments for a new trial and for judgment
as a matter of law.

  2.    New Trial

   [5] We generally review a court’s ruling on a motion for a
new trial for an abuse of discretion.28 However, because
Weyerhaeuser’s motion for a new trial rested solely on the
ground that the jury instructions misstated the law regarding
Ross-Simmons’s overbidding claim, we review the court’s
denial of the motion for a new trial de novo.29 Because we
hold today that Brooke Group does not govern in this case,
the court did not need to instruct the jury that overbidding for
sawlogs could be anticompetitive conduct only if
Weyerhaeuser operated at a loss and a dangerous probability
of Weyerhaeuser’s recoupment of its losses existed. The
instructions as a whole provided sufficient guidance regarding
how to determine whether conduct was anticompetitive.30
  27
      Id.
  28
      Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 886 (9th Cir. 2002).
   29
      Costa v. Desert Palace, Inc., 299 F.3d 838, 858 (9th Cir. 2002) (en
banc) (stating that “we generally review the formulation of instructions for
an abuse of discretion, but whether an instruction misstates the law is a
legal issue reviewed de novo”), aff’d, 539 U.S. 90 (2003). Whether we
review the denial of a new trial under the abuse of discretion standard or
de novo standard matters little here because “ ‘[a] district court by defini-
tion abuses its discretion when it makes an error of law.’ ” See Del Monte
Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1426 (9th Cir.
1996) (quoting Koon v. United States, 517 U.S. 81, 100 (1996)), aff’d, 526
U.S. 687 (1999).
   30
      The court instructed the jury regarding anticompetitive conduct as fol-
lows:
5828            ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
Moreover, the instructions were consistent with Supreme
Court precedent stating that a defendant violates the Sherman
Act by using monopoly power “ ‘to foreclose competition, to
gain a competitive advantage, or to destroy a competitor.’ ”31
Thus, the jury instructions “fairly and adequately cover[ed]
the issues presented, correctly state[d] the law, and [we]re not
misleading.”32 Accordingly, we affirm the court’s denial of
Weyerhaeuser’s motion for a new trial.

          Anti-competitive conduct is conduct that has the effect of
       wrongly preventing or excluding competition, or frustrating or
       impairing the efforts of other firms to compete for customers
       within the relevant market, making it very difficult or impossible
       for competitors to engage in fair competition. Not everything that
       enables a company to gain or maintain a monopoly is anti-
       competitive.
          In deciding whether conduct is anti-competitive, you should
       consider whether the conduct lacks a valid business purpose, or
       unreasonably or unnecessarily impedes the efforts of other firms
       to compete for raw materials or customers, or if the anticipated
       benefits of the conduct flow primarily from its tendency to hinder
       or eliminate competition. Anti-competitive conduct does not
       include ordinary means of competition, such as offering better
       products or services, exercising superior skill or business judg-
       ment, utilizing more efficient technology, better marketing, or
       exercising natural competitive advantages such as unique geo-
       graphic access to raw materials or markets.
         ....
          One of Plaintiffs’ contentions in this case is that the Defendant
       purchased more logs than it needed or paid a higher price for logs
       than necessary, in order to prevent the Plaintiffs from obtaining
       the logs they needed at a fair price. If you find this to be true, you
       may regard it as an anti-competitive act.
  31
    Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 482-83
(1992) (quoting United States v. Griffith, 334 U.S. 100, 107 (1948)).
  32
     See Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir. 1998)
(internal quotation marks and citation omitted).
            ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                  5829
  3.   Judgment as a Matter of Law

   “We review [the] district court’s denial of [the] motion for
judgment as a matter of law de novo.”33 Our holding regard-
ing the inapplicability of Brooke Group resolves one of the
issues related to Weyerhaeuser’s challenge to the denial of
judgment as a matter of law: Weyerhaeuser’s contention that,
as a matter of law, the alleged predatory overbidding could
not be actionable anticompetitive conduct under § 2 of the
Sherman Act because Ross-Simmons did not show that
Weyerhaeuser operated at a loss and that a dangerous proba-
bility of Weyerhaeuser’s recoupment of its losses existed.
Because Brooke Group does not apply in this case, Ross-
Simmons did not have to meet the high standard of liability
in Brooke Group before relying upon predatory overbidding
to satisfy the anticompetitive conduct requirement. Our hold-
ing regarding Brooke Group does not resolve Weyerhaeuser’s
argument that Ross-Simmons’s evidence was insufficient to
support the jury’s verdict, however. Accordingly, we now
turn to the issue of whether substantial evidence supports the
jury’s verdict.34 We conclude that the record contains substan-
tial evidence.

   “Substantial evidence is such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion.”35
When reviewing the record as a whole, we must draw all rea-
sonable inferences in favor of the nonmoving party, keeping
in mind that “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”36 In reviewing
  33
     Janes, 279 F.3d at 886 (italics omitted).
  34
     To uphold the jury’s verdict, we must find that substantial evidence
supports it. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.
1999).
  35
     Syufy Enters. v. Am. Multicinema, Inc., 793 F.2d 990, 992 (9th Cir.
1986) (internal quotation marks and citation omitted) (“Syufy I”).
  36
     Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
5830         ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
a defendant’s entitlement to judgment as a matter of law in
the antitrust context, we presume that “a reasonable jury . . .
know[s] and understand[s] the law, the facts of the case, and
the realities of the market.”37

   [6] To establish attempted monopolization under § 2 of the
Sherman Act,38 Ross-Simmons had to demonstrate that
Weyerhaeuser: (1) engaged in predatory or anticompetitive
conduct, (2) had a specific intent to monopolize, and (3) a
dangerous probability of Weyerhaeuser’s achievement of
monopoly power in the relevant market existed.39 Addition-
ally, Ross-Simmons had to show causal antitrust injury.40 We
first examine whether the record contains substantial evidence
of anticompetitive conduct.

       a.   Anticompetitive conduct

   [7] Anticompetitive or predatory acts are those that tend to
exclude or restrict competition “on some basis other than effi-
ciency.”41 The record contains substantial evidence of over-
  37
      See Brooke Group, 509 U.S. at 243.
  38
      Because the court instructed the jury separately regarding monopoliza-
tion and attempted monopolization, and the jury entered separate liability
verdicts on each of the counts, we can affirm the judgment if substantial
evidence supports the jury’s verdict as to either claim. See Del Monte
Dunes, 95 F.3d at 1426 (stating that the court could affirm the judgment
on either of two alleged violations when the district court instructed the
jury that it should award damages to the plaintiff if it found for the plain-
tiff on any alleged violation). We conclude below that substantial evidence
supports the jury’s verdict on the attempted monopolization claim. There-
fore, we do not address the monopolization claim.
   39
      Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993); Rebel
Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1432-33 (9th Cir. 1995).
   40
      Rebel Oil, 51 F.3d at 1433. Weyerhaeuser does not address this ele-
ment, presumably because if Ross-Simmons’s theory that high sawlog
prices drove it out of business is viable, Ross-Simmons has satisfied the
injury element. Thus, we do not discuss it.
   41
      See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585,
605 (1985) (internal quotation marks and citation omitted).
             ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                    5831
bidding for sawlogs to support the jury’s finding of
anticompetitive conduct. The evidence shows that during the
period of alleged predation: (1) sawlog prices increased while
prices for finished lumber decreased, (2) Weyerhaeuser had a
dominant share of the market for alder sawlogs and an ability
to control alder sawlog prices, (3) Weyerhaeuser suffered
declining profits due to the high prices it was paying for raw
materials, and (4) Weyerhaeuser employed a strategy of rais-
ing sawlog prices. Based on this evidence, the jury could rea-
sonably have concluded that Weyerhaeuser engaged in
anticompetitive conduct by overbidding for sawlogs. We need
not analyze whether substantial evidence supports the other
alleged anticompetitive acts because the evidence of preda-
tory overbidding sufficiently supports the finding that
Weyerhaeuser engaged in anticompetitive conduct.42 We now
turn to the issue of whether substantial evidence supports the
jury’s finding of specific intent.

       b.   Specific intent

   Attempted monopolization requires proof of intent to
monopolize or eliminate competition.43 The record contains
substantial evidence of specific intent to eliminate competi-
tion based on: (1) Weyerhaeuser’s anticompetitive conduct
itself, (2) the testimony of Weyerhaeuser’s employees, and (3)
Weyerhaeuser’s business projections regarding sawlog prices.

   [8] Anticompetitive conduct alone can satisfy the specific
intent requirement if the conduct “form[s] the basis for a sub-
stantial claim of restraint of trade” or is “clearly threatening
  42
      See Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d
725, 736 (9th Cir. 1999) (affirming judgments of liability on defamation
claims where two of the three statements upon which jury verdicts were
based were not actionable as a matter of law). The other alleged anticom-
petitive acts were: overbuying sawlogs, entering into exclusive agreements
for sawlogs, and making misrepresentations to state officials to obtain
sawlogs from state forests.
   43
      Spectrum Sports, 506 U.S. at 456.
5832        ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
to competition or clearly exclusionary.”44 As discussed above,
Ross-Simmons offered evidence that Weyerhaeuser overpaid
for sawlogs while its profits declined. Weyerhaeuser’s over-
bidding for sawlogs clearly threatened competition because it
restricted competitors’ access to the limited supply of saw-
logs. Thus, Weyerhaeuser’s conduct on its own supports a
reasonable inference of specific intent to eliminate competi-
tion.

   [9] The testimony of Weyerhaeuser’s employees further
showed that Weyerhaeuser intended to control prices and
eliminate competition. One of Weyerhaeuser’s former senior
analysts, Eugene Novak, acknowledged on the stand that
Weyerhaeuser had the power — and was aware of its power
— to influence prices in the alder sawlog market. Novak also
authored a memorandum regarding the costs of sawlogs and
lumber in which he stated that the increase in sawlog prices
despite Weyerhaeuser’s predominant market share made no
sense. Novak estimated that, due to the excessive prices
Weyerhaeuser paid for sawlogs, it “had given up some $40 to
$60 million dollars in the last three years.” He testified that
his boss, Vicki McInnally, who was a member of the senior
management team, told him that “that was the strategy that
[Weyerhaeuser] designed.” A former sales manager for
Weyerhaeuser, Cliff Chulos, also testified that “it was taken
as a given by everyone that [Weyerhaeuser] could influence
price; that [Weyerhaeuser] had to be a major influence.”
Thus, the testimony in the record supports the finding that
Weyerhaeuser specifically intended to eliminate competition.

   [10] Moreover, Weyerhaeuser’s business projections about
sawlog prices indicated that it planned to lower the prices it
paid for sawlogs after acquiring a greater market share as a
result of decreased competition. Weyerhaeuser tracked com-
  44
    Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d
1291, 1309 (9th Cir. 1982); see Spectrum Sports, 506 U.S. at 459 (stating
that unfair tactics can suffice to prove intent to monopolize).
             ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                   5833
petitors’ profit margins and estimated the potential effects of
targeted increases in sawlog costs on the ability of low-
margin competitors to survive. Such evidence also supports
an inference that Weyerhaeuser sought to foreclose competi-
tion rather than simply to increase its own business.45 Thus,
when viewed in its entirety, the evidence sufficiently supports
a finding of specific intent to control prices and eliminate
competition. We now turn to the question of whether substan-
tial evidence supports the finding that a dangerous probability
of Weyerhaeuser’s achievement of monopoly power existed.

       c.   Dangerous probability of achieving monopoly power

   Monopoly power is the “power to control prices or exclude
competition.”46 In determining whether there is a dangerous
probability of monopolization, we consider “the relevant mar-
ket and the defendant’s ability to lessen or destroy competi-
tion in that market.”47 To control prices unilaterally,
Weyerhaeuser had to have obtained market power.48 Ross-
Simmons could demonstrate that Weyerhaeuser had market
power either by presenting direct evidence of the injurious
exercise of that power or by presenting circumstantial evi-
dence that: defined the relevant market, demonstrated that the
defendant held a dominant share of the market, and showed
that significant barriers to entry into and expansion within the
market exist.49 We hold that substantial evidence supports the
jury’s finding that a dangerous probability of Weyerhaeuser’s
achievement of monopoly power existed.
  45
      See IIIA AREEDA & HOVENKAMP, ANTITRUST LAW, ¶ 805b at 340 n.10
(2d ed. 2002) (“[I]n a perfectly competitive market[,] a firm makes price
and output decisions without regard to the likely responses of others.”).
   46
      United States v. Grinnell Corp., 384 U.S. 563, 571 (1966) (internal
quotation marks and citation omitted).
   47
      Spectrum Sports, 506 U.S. at 456. Weyerhaeuser does not dispute that
the relevant market consists of the market for alder sawlogs in the Pacific
Northwest.
   48
      See Rebel Oil, 51 F.3d at 1434.
   49
      Id.
5834          ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
   The record contains some direct evidence that could sup-
port the jury’s finding that a dangerous probability of
Weyerhaeuser’s achievement of monopoly power existed.
The testimony from Weyerhaeuser’s employees showed that
Weyerhaeuser had the power to influence prices and had used
its power to raise the price of sawlogs. This direct evidence
of Weyerhaeuser’s injurious exercise of market power is sub-
stantial enough by itself to support the jury’s finding of a dan-
gerous probability of achieving monopoly power. We
nonetheless examine the circumstantial evidence as well
because that evidence provides additional support for the
jury’s finding.

        (i)    Market share

   Weyerhaeuser does not dispute Ross-Simmons’s data that,
during the relevant time period, Weyerhaeuser’s share of the
relevant market was approximately 65%. Weyerhaeuser’s
business records showed that its share was 64% in 1998, with
projected increases. We have held a 44% market share suffi-
cient as a matter of law to support a finding of market power
for attempted monopolization.50 Thus, we conclude that
Weyerhaeuser’s approximately 65% market share supports a
finding of market power.

   Market share alone, however, does not raise an inference of
a dangerous probability of achieving monopoly power if there
are “low entry barriers or other evidence of a defendant’s
inability to control prices or exclude competitors.”51 We there-
fore turn to the issue of whether significant barriers to entry
and expansion existed.
  50
      Id. at 1438; see also Oahu Gas Serv., Inc. v. Pac. Res., Inc., 838 F.2d
360, 366-67 (9th Cir. 1988) (finding a declining 68% market share suffi-
cient to establish market power for an actual monopolization claim).
   51
      Syufy II, 903 F.2d at 664 (citations omitted).
               ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER               5835
        (ii)    Barriers to entry and expansion

   “Entry barriers are additional long-run costs that were not
incurred by incumbent firms but must be incurred by new
entrants, or factors in the market that deter entry while permit-
ting incumbent firms to earn monopoly returns.”52 Such barri-
ers may include legal license requirements, control of an
essential resource, entrenched buyer preferences, and higher
capital costs for new entrants.53 Entry barriers that justify a
finding of market power must “be capable of constraining the
normal operation of the market to the extent that the problem
is unlikely to be self-correcting.”54 We conclude that the high
capital costs new entrants faced and the limited availability of
sawlogs were barriers to entry that justified an inference of
monopoly power.

   At the outset, we address Weyerhaeuser’s argument that the
entry of four new mills during the alleged predation period
demonstrated a lack of barriers to entry. We have held that the
entry of new competitors does not necessarily demonstrate a
lack of barriers to entry.55 If new entrants are “insufficient to
take significant business away from the predator, they are
unlikely to represent a challenge to the predator’s market
power.”56 The evidence did not show that the four new
entrants took significant business from Weyerhaeuser or that
they had a significant market share. In fact, evidence suggests
that Weyerhaeuser’s market share actually increased even
though the four new mills entered the market.57 Moreover, the
   52
      Rebel Oil, 51 F.3d at 1439 (internal citations and quotation marks
omitted).
   53
      Id.; Brunswick, 6 F.3d at 1428.
   54
      Rebel Oil, 51 F.3d at 1439 (citation omitted).
   55
      Id. at 1440.
   56
      Id. (emphasis added).
   57
      This increase in Weyerhaeuser’s market share was likely due to the
fact that although four new mills opened to compete with Weyerhaeuser
during the alleged period of predation, thirty-one other competitors went
out of business.
5836        ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
evidence indicates that, as soon as the new entrants came into
the market, they had to pay the sawlog prices Weyerhaeuser
set. Thus, the evidence does not show that the four new
entrants could take enough business away from Weyerhaeuser
to allow the market to correct itself.58 As a result, the entry of
new competitors did not foreclose the possibility that barriers
to entry existed. We now turn to the issue of whether higher
capital costs and limited sawlog availability were barriers to
entry.

   Ross-Simmons offered expert testimony to support the
proposition that the higher capital costs associated with enter-
ing the market constituted a barrier to entry. The record con-
tains evidence that the advent of expensive new machines and
product-grading, which did not exist when Weyerhaeuser
entered the market, made market entry less feasible because
new entrants had difficulty matching the necessary technol-
ogy. The need for this new technology raised the cost of
entering the market to $20-$25 million. While Weyerhaeuser
also had to incur costs for machinery and product-grading, it
was able to do so over time without bearing the burden of
heavy front-end costs to gain entry into the market. Thus, sub-
stantial evidence supports the inference that higher capital
costs were a barrier to entry.

  With respect to the availability of raw materials,
Weyerhaeuser argues that there were sufficient sawlogs avail-
able for all competitors if they could afford to buy them.
However, Weyerhaeuser purchased approximately 65% of the
available sawlogs during the period of alleged predation. The
evidence further shows that Weyerhaeuser raised the price of
sawlogs and entered into exclusive agreements that restricted
competitors’ access to sawlogs. By thus controlling or influ-
encing a number of the available sawlog sources,
Weyerhaeuser restricted access to the already limited sawlog
  58
    See id. at 1439.
             ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                     5837
supply.59 Weyerhaeuser’s dominance in the market for saw-
logs, its overbidding practices, and its restrictive arrange-
ments together support the inference that the limited supply of
sawlogs was a barrier to entry.

   [11] The evidence shows that significant barriers to entry
existed in the sawlog market in the form of high capital costs
and limited raw materials, and that Weyerhaeuser had a domi-
nant share of the market. Moreover, the record contains direct
evidence of Weyerhaeuser’s injurious exercise of market
power. Therefore, we hold that substantial evidence supports
the jury’s finding that a dangerous probability of
Weyerhaeuser’s achievement of monopoly power existed.

   [12] Because substantial evidence shows that
Weyerhaeuser engaged in anticompetitive conduct through
predatory overbidding, intended specifically to eliminate
competition, and a dangerous probability of Weyerhaeuser’s
achievement of monopoly power existed, we uphold the
jury’s verdict against Weyerhaeuser on the attempted monop-
olization claim. Accordingly, we affirm the court’s denial of
Weyerhaeuser’s motion for judgment as a matter of law.

B.     REMAINING ISSUES

   Two issues remain for our consideration: (1) damages, and
(2) attorneys’ fees and costs. For the reasons stated below, we
uphold both the jury’s damages award and the court’s grant
of fees and costs to Ross-Simmons.

  1.     Damages

     We give substantial deference to a jury’s damages award.60
  59
      See Syufy II, 903 F.2d at 667 (stating that an incumbent’s control over
a scarce commodity might give it a “substantial structural advantage”).
   60
      Del Monte Dunes, 95 F.3d at 1435; see Los Angeles Mem’l, 791 F.2d
at 1360.
5838       ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER
In antitrust cases, we accept a degree of uncertainty when
evaluating damages awards because of the inherent “difficulty
of ascertaining business damages” when “[t]he vagaries of the
marketplace usually deny us sure knowledge of what [a]
plaintiff’s situation would have been in the absence of the
defendant’s antitrust violation.”61 We will affirm the jury’s
damages award if it is not based upon “speculation or guess-
work.”62 “It is sufficient if a reasonable basis of computation
is afforded, although the result be only approximate.”63 We
conclude that the jury based its award upon an appropriate
estimate of damages.

   [13] Ross-Simmons’s models for estimating damages prop-
erly relied upon the fundamental assumption that
Weyerhaeuser maintained artificially high costs in the sawlog
market during the damages period. Ross-Simmons’s estimates
were based either on testimony regarding Weyerhaeuser’s
annual loss in profits due to higher sawlog costs or on a
decade’s worth of data regarding Weyerhaeuser’s average
profit margin prior to the predatory period. The models
accounted for changing market conditions by: (1) using data
for actual sales and production of finished lumber, which took
into account any reduced market demand or decrease in mar-
ket prices for finished lumber, and (2) assuming that
Weyerhaeuser could have controlled sawlog costs to maintain
its previous profit margins relative to the price of lumber. The
evidence, as discussed above, supports the assumption that
Weyerhaeuser had such control. Thus, we conclude that Ross-
Simmons’s damages models were not speculative, but pro-
vided a reasonable basis for computing damages. Accord-
ingly, we uphold the jury’s award of damages.
  61
     J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 566-67
(1981); see Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-65
(1946); Eastman Kodak Co. v. S. Photo Materials Co., 273 U.S. 359, 379
(1927).
  62
     Bigelow, 327 U.S. at 264.
  63
     S. Photo, 273 U.S. at 379.
            ROSS-SIMMONS HARDWOOD v. WEYERHAEUSER                   5839
  2.   Attorneys’ Fees and Costs

  [14] We uphold a court’s award of attorneys’ fees unless it
abused its discretion or committed a clear error of law.64
Because we affirm the jury’s verdict of liability for attempted
monopolization, Ross-Simmons remains a prevailing party
entitled to attorneys’ fees and costs. Thus, the district court
properly granted attorneys’ fees and costs to Ross-Simmons.

                      III.   CONCLUSION

   We conclude that Brooke Group does not apply in this
predatory bidding case because benefit to consumers and
stimulation of competition are less likely to result here than
in predatory pricing cases. A plaintiff bringing a claim under
§ 2 of the Sherman Act based on predatory overbidding in a
relatively inelastic market need not show that the defendant
operated at a loss and that a dangerous probability of the
defendant’s recoupment of those losses existed to succeed on
its claim. Substantial evidence supports the jury’s finding that
Weyerhaeuser was liable for attempted monopolization.
Therefore, we affirm the court’s denial of Weyerhaeuser’s
motion for judgment as a matter of law or for a new trial. The
jury based its damages award upon a reasonable estimate of
damages. Therefore, we affirm the jury’s damages award.
Finally, because we affirm the jury’s verdict, we also affirm
the court’s award of attorneys’ fees and costs to Ross-
Simmons.

  AFFIRMED.




  64
    Hasbrouck v. Texaco, Inc., 879 F.2d 632, 635 (9th Cir. 1989).
