

March 1, 1995
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 94-1711

                  SAS OF PUERTO RICO, INC.,

                    Plaintiff, Appellant,

                              v.

                PUERTO RICO TELEPHONE COMPANY,

                     Defendant, Appellee.

                                         

                         ERRATA SHEET                                     ERRATA SHEET

 The opinion of this Court issued on February 21, 1995, is amended
as follows:

 On page 8, line 18, the word "pendant" should be "supplemental".

 On  page 10, note 2,  the footnote should  read:  "Illinois Brick                                                                              
Co. v. Illinois, 431 U.S.  720 (1977).  Compare Hanover Shoe,  Inc. v.                                                                           
United Shoe Mach. Corp., 392 U.S. 481 (1968).".                               

 Page  10, note  4,  line  two  of  note,  "Brunswich"  should  be
"Brunswick".

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         
No. 94-1711

                  SAS OF PUERTO RICO, INC.,

                    Plaintiff, Appellant,

                              v.

                PUERTO RICO TELEPHONE COMPANY,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jose Antonio Fuste, U.S. District Judge]                                                                 

                                         

                            Before

                    Torruella, Chief Judge,                                                      

                    Boudin, Circuit Judge,                                                     

              and Boyle,* Senior District Judge.                                                           

                                         

Laurence  Z.  Shiekman  with  whom  M.  Duncan  Grant,  Frank   M.                                                                              
Rapoport,  Michael A. Ceramella and Pepper, Hamilton &amp; Scheetz were on                                                                      
brief for appellant.
Philip J. Mause with whom Joaquin A. Marquez and Drinker Biddle  &amp;                                                                              
Reath were on brief for appellee.             

                                         

                      February 21, 1995
                                         

                

*Of the District of Rhode Island, sitting by designation.

     BOUDIN,  Circuit  Judge.    SAS  of  Puerto  Rico,  Inc.                                        

("SAS"), brought an antitrust  suit in federal district court

in Delaware  against Puerto Rico  Telephone Company ("PRTC").

After  the  suit was  transferred  to the  district  court in

Puerto  Rico, the  district  court granted  PRTC's motion  to

dismiss  on the  ground  that SAS  did not  adequately assert

"antitrust injury."  We agree and affirm.

                              I.

     In  April  1993  SAS  filed its  original  complaint  in

Delaware district court.   After the case was  transferred to

Puerto Rico, the site of most of the events that underlie the

case,  an amended  complaint was  filed.   Since the  amended

complaint was later dismissed on the pleadings, we accept the

allegations as true  for purposes of this  appeal.  Berkovitz                                                                         

v. United States, 486 U.S. 531, 540 (1988).  What  follows is                            

SAS's version  of the facts, supplemented  by information not

reasonably disputable.

     PRTC is  a Delaware  corporation that provides  about 90

percent  of  the telephone  service  within  Puerto Rico  and

operates  over 95 percent of  the pay phones  in Puerto Rico.

Although once a subsidiary  of ITT, all of the  stock of PRTC

was  acquired about 20 years ago by the Puerto Rico Telephone

Authority   ("the  Authority"),  a   public  corporation  and

government   instrumentality  of   the  Commonwealth.     The

Authority   also  owns   the   stock  of   the  Puerto   Rico

                             -2-                                         -2-

Communications Corporation ("PRCC") which  provides telephone

service and operates pay phones in those areas of Puerto Rico

not served by PRTC.  (PRTC's brief says that it and PRCC have

now merged.)

     Long distance  service between Puerto Rico  and the U.S.

mainland was  for some years  provided by  an ITT  subsidiary

interconnecting on the  mainland with AT&amp;T, but in the 1980's

the  Federal   Communications   Commission  took   steps   to

facilitate  competition  for   Puerto  Rico's  long  distance

traffic.1    To  participate  in this  new  environment,  the

Authority  created yet another wholly owned subsidiary called

Telfonica Larga Distancia ("TLD").  In 1990, the Commonwealth

adopted  legislation designed  to facilitate  the Authority's

sale of TLD's stock.

     After its formation, TLD  rapidly became the carrier for

about 80 percent  of the long  distance telephone calls  made

from pay phones in  Puerto Rico.  Although the  mechanics are

not described in the complaint, they can readily be inferred.

Pay phones are  commonly located on  streets or other  public

property  by  the local  telephone  company  or  they may  be

located  on  private property  such as  in  a store  or hotel

lobby;  in the  latter  instance, the  instrument is  usually

                                                    

     1E.g., All America Cables &amp; Radio, Inc. v. FCC, 736 F.2d                                                               
752 (D.C.  Cir. 1984); Common  Carrier Facilities Off  of the                                                                         
Island  of Puerto Rico,  2 F.C.C.R. 6600  (1987), on recons.,                                                                        
FCC 92-529 (1992).

                             -3-                                         -3-

(although  not  always)  furnished  by  the  local  telephone

company by arrangement with the property owner.

     As  long distance  competition  developed over  the past

three  decades,  telephone subscribers  have  ordinarily been

able to select the long  distance carrier through which their

calls  would be  routed.   A small  percentage of  modern pay

phones  make it  easy for  the  caller to  select his  or her

preferred long  distance carrier by pushing  a single button;

but  in  many  pay  phones, a  pre-designated  long  distance

carrier automatically receives the traffic unless the  caller

"dials"  a complex access code to reach another long distance

carrier.  

     According to  the complaint, in Puerto Rico  many of the

pay phones used (or  were connected through) older technology

that prevented a caller from using a long  distance carrier--

other  than the pre-designated  one--except by the cumbersome

means of calling  an operator and  asking to  be routed to  a

different  long distance carrier.  The pre-designated carrier

for a pay phone  is normally selected by the  local telephone

company or the premises owner.   In short order TLD began  to

carry  most of the long  distance calls from  Puerto Rico pay

phones.

     SAS was formed as  a Puerto Rico corporation in  1991 in

the  hope  of  contracting  with  PRTC  and  PRCC to  upgrade

equipment and  maintain service at Puerto  Rico's pay phones.

                             -4-                                         -4-

The  complaint explains  that "[t]he  principals of  SAS were

experienced in the installation and operation of `intelligent

paystations'  and,  in  fact,  had  successfully  assisted in

improving the pay  phone system in  the United States  Virgin

Islands."   Such intelligent  pay phones, embodying  what are

effectively  computers,  can  provide various  advantages  to

callers  (e.g., speed  dialing)  and to  the local  telephone                          

company (e.g., remote diagnosis of failure).                         

     The intelligent pay phones  to be supplied by SAS  would

also increase competition among  long distance carriers.  SAS

expected  to negotiate with  such carriers, as  agent for the

local  telephone  company  or premises  owner,  presumably to

secure the  most favorable  terms  for the  position of  pre-

assigned long distance carrier at the pay phone.  In addition

the intelligent pay phone would greatly simplify the  task of

the caller who desired to route his or her own call through a

long distance carrier other than the pre-assigned carrier.

     On  January 31, 1992, after "substantial negotiation and

investment  of considerable  time and  money," SAS  signed an

"agency agreement"  with both  PRTC and PRCC  to provide  and

maintain  pay telephones  in Puerto  Rico.   As to  PRTC, the

agreement  provided for SAS to act as PRTC's agent to upgrade

a  minimum of  1,500  of PRTC's  pay  phones at  tourist  and

business centers.   The agreement included  authority for SAS

to negotiate  with  the  premises owner  to  alter  the  pre-

                             -5-                                         -5-

designated  long  distance carrier  for  the  intelligent pay

phones to  be installed on the premises.  SAS hoped to obtain

better terms from such carriers through competition.  

     Ten days  after the January 31  agreement, the Authority

reached  an   agreement  with   Telefonica  de  Espana,   the

international  subsidiary of  Spain's  telephone company,  to

sell it control of TLD.  Part  of the value of TLD lay in its

position as the pre-designated  long distance carrier at most

of Puerto Rico's pay phones.  This position was threatened by

the  SAS-PRTC agreement.   According  to the  complaint, PRTC

thereafter "engaged in a course of conduct designed to delay,

disrupt and derail the  installation of the 1,500 intelligent

paystations in Puerto Rico."

     The  complaint does  not  describe  this conduct  beyond

asserting generally that PRTC failed to carry out unspecified

obligations under  the contract  while making new  demands on

SAS.   On June 18,  1992, SAS  agreed with PRTC  and PRCC  to

modifications   in  the   original   agreement  and   shortly

thereafter PRTC told SAS  to proceed with installation.   SAS

then obtained a $500,000 line of credit and began to purchase

the new pay phone  equipment.  In October 1992  PRTC told SAS

to stop operations.  More negotiations followed and a  second

contract revision followed, but after further steps by SAS to

implement the program, SAS was again instructed to halt work.

                             -6-                                         -6-

     In  April  1993, SAS  began the  present lawsuit  in the

district  court in Delaware,  PRTC's state  of incorporation.

The complaint  (as later  amended) says  that after  the case

began, PRTC in late 1993 or early 1994 sought bids to replace

some  or all  of the  pay phones  that SAS had  contracted to

replace; PRTC  later  accepted  one  of the  bids;  and  PRTC

thereafter contracted for  pay phones with  some of the  same

manufacturers or suppliers who had  agreed to supply them  to

SAS when the latter  was seeking to fulfill its  own contract

with PRTC.

     The complaint  alleges, in its first  three counts, that

the acts  described constituted monopolization  and attempted

monopolization  of two  different markets  and conspiracy  to

restrain trade in the  same markets, all in violation  of the

Sherman Act.   15 U.S.C.     1-2.   PRTC was alleged  to have

monopoly  power in "the market for the provision of pay phone

service in Puerto Rico"; and PRTC, PRCC  and TLD as a "single

economic entity"  were alleged  to have  such  power in  "the

market for the  provision of long  distance service from  pay

phones in Puerto Rico."  

     In the  antitrust conspiracy count Telefonica  de Espana

was  named as a co-conspirator.   In addition  to the conduct

already described,  SAS alleged that PRTC  had discussed with

Telefonica de Espana the impact that the SAS upgrading of pay

phones would have and  that PRTC had impeded and  delayed the

                             -7-                                         -7-

agreement with SAS in order to avoid an adverse impact on the

value of TLD.

     Additional  counts of  the  complaint charged  PRTC with

fraud, breach  of contract,  and  tortious interference  with

contracts  between  SAS  and   makers  or  suppliers  of  pay

stations.   On  the  antitrust counts,  the complaint  sought

injunctive relief, treble damages and attorney's fees; on the

non-federal  counts,  it asked  for compensatory  damages and

attorney's fees.  In the injunctive relief request, SAS asked

that PRTC be required to complete its contract with SAS.

     After the transfer to Puerto Rico, SAS of Puerto Rico v.                                                                      

Puerto  Rico Tel. Co., 833 F.  Supp. 450 (D. Del. 1993), PRTC                                 

moved to dismiss the  antitrust claims on the ground  that it

was protected  by the  state action  doctrine, see  Parker v.                                                                      

Brown,  317 U.S.  341  (1943), or,  in the  alternative, that                 

antitrust  injury had not been  alleged.  PRTC also contended

that  it was  shielded  from damage  liability for  antitrust

violations by  the Local Government Antitrust Act of 1984, 15

U.S.C.     34-36.   In an  opinion and  order entered May  9,

1994,  the  district  court  rejected the  state  action  and

statutory arguments  but dismissed  the antitrust  claims for

lack of antitrust injury.

     Having  found that SAS had failed to state a claim under

the antitrust  laws, the district court  declined to exercise

supplemental jurisdiction  under state  law as to  the fraud,

                             -8-                                         -8-

contract and tortious interference  claims.  See 28  U.S.C.                                                              

1367.   An order  was entered dismissing  the complaint,  and

this  appeal followed.  Because we agree with the position on

antitrust injury  taken in  the district court's  opinion, we

confine our discussion to that issue.

                             -9-                                         -9-

                             II.

     Despite  its  statutory  framework,  antitrust   law  is

largely  the  handiwork  of  federal  judges  and   antitrust

enforcers, and the resulting case law offers much to  admire.

The  corner of antitrust law with which we are concerned here

is  an exception.    As one  commentator  has observed,  "the

courts have never  been able to create an intelligible theory

of private antitrust standing capable of being applied across

the full  range of potential  cases."  H.  Hovenkamp, Federal                                                                         

Antitrust  Policy   543  (1994).     Cf.  Associated  General                                                                         

Contractors v. Carpenters, 459 U.S. 519, 536 (1983) (no black                                     

letter rule).  

     The underlying  problem is not unique  to antitrust law.

Common law tort claims have  been limited by various slippery

rubrics  (e.g.,  proximate  cause),  so   that  not  everyone                          

remotely  harmed by a violation is entitled to recover.  From

the outset, federal antitrust courts have devised counterpart

limitations under various headings (e.g., standing, antitrust                                                    

injury)  and through  a variety  of subordinate  rules (e.g.,                                                                        

restrictions   on   suits   by   stockholders   or   indirect

purchasers),  metaphors  (e.g.,  "inextricably  intertwined,"                                          

"target area"), abstractions  (direct versus remote  injury),

and multi-factor tests.  See Associated  General Contractors,                                                                        

459 U.S. 519;  Sullivan v.  Tagliabue, 25 F.3d  43 (1st  Cir.                                                 

1994).  

                             -10-                                         -10-

     One reason for the confusion in  antitrust cases is that

courts  sometimes have difficulty,  well justified in certain

cases, in separating standing or antitrust injury issues from

two other  problems:   whether  there has  been an  antitrust

violation at all, and whether  the plaintiff has suffered any

injury  causally (in  the  "but for"  sense)  related to  the

challenged conduct.  Standing  or antitrust injury involves a

different concept:    even where  a  violation exists  and  a

plaintiff has  been damaged by it, the courts--for reasons of

prudence--have sought  to limit the right  of private parties

to sue for damages or injunctions.

     The prudential  concerns, however, are multiple, and the

variety of situations  endless.  One  set of limitations  has

been based  on fear  of duplicative recovery  and excessively

complex  litigation.2     Another  is   concerned  with   the

remoteness of the injury and the speculative character of the

injury  or   the  connection.3    Another   set  reflects  an

unwillingness to award antitrust  damages to one who suffered

from pro-competitive  or irrelevant  effects of an  otherwise

                                                    

     2Illinois Brick  Co. v.  Illinois, 431 U.S.  720 (1977).                                                  
Compare Hanover  Shoe, Inc. v.  United Shoe Mach.  Corp., 392                                                                    
U.S. 481 (1968). 

     3Associated General Contractors, 459 U.S. at 543; Hawaii                                                                         
v. Standard Oil Co., 405 U.S. 251, 262-63 n.14 (1972).                               

                             -11-                                         -11-

anticompetitive  transaction.4    These   elements  sometimes

overlap;  and  the  list  is  not  exhaustive.    It  is  not

surprising that no  simple rule has emerged  for choosing the

best   antitrust  plaintiff  and  deciding  when  second-best

plaintiffs should be barred.  

     Nevertheless,  there  are   patterns  in  the  antitrust

standing  cases that  offer  considerable guidance.   One  of

those patterns  involves the supplier who  suffers because an                                                 

antitrust violation curtails a business that  would otherwise

have purchased from the supplier.  In general such a supplier

(including an  employee who  supplies labor) is  held not  to

have  suffered  "antitrust  injury";  while there  may  be  a

violation  and  causal  harm  to  the  supplier,  the  failed

business is the immediate victim and the preferred plaintiff.

II P. Areeda  &amp; H. Hovenkamp,  Antitrust Law   375  (rev. ed.                                                        

1995) (collecting numerous cases). 

     This is not because suppliers are automatically improper

antitrust  plaintiffs; a  seller  may well  have  a claim  if

victimized  by a  price-fixing ring  composed of  buyers that

lowered  the market price:   in such  a case the  seller is a

participant in the very market where competition is impaired.

But if the supplier's customer fails because of an  antitrust                                          

violation,  usually  the  conduct  was  deemed  an  antitrust

                                                    

     4Cargill v.  Montfort of Colorado, 479  U.S. 104 (1986);                                                  
Brunswick  Corp. v.  Pueblo  Bowl-O-Mat, Inc.,  429 U.S.  477                                                         
(1977).

                             -12-                                         -12-

violation  because  of the  threat to  the customer,  not the

supplier.

     Here,  the situation is not quite parallel:  SAS was not

injured  because  its customer  failed  due  to an  antitrust

violation by  a third party;  rather, the customer  (PRTC) in

the  course  of  its  own violation  allegedly  breached  its

agreement to use SAS as a supplier.  But if the breach played

a part in an  antitrust violation, the conduct itself  was an

antitrust  violation because  of  the anticompetitive  threat

posed  to  other potential  plaintiffs,  not SAS.    Like the                            

happenstance supplier  to a  customer felled by  a violation,

SAS was coincidentally involved. 

     SAS's complaint  alleged that  PRTC's conduct  harmed or

threatened harm to competition  in two different markets: the

provision  of  pay  phone  service  in  Puerto  Rico and  the

provision  of long  distance  service from  such pay  phones.

Assuming arguendo that either or  both is a proper  "relevant                             

market" for antitrust purposes, Spectrum Sports v. McQuillan,                                                                        

113  S.  Ct.  884,  892 (1993),  the  presumptively  "proper"

plaintiff  is   a  customer  who  obtains   services  in  the

threatened market  or a  competitor who  seeks to  serve that

market.  Associated General  Contractors, 459 U.S. at 538-39.                                                    

SAS is not suing in either capacity.

     SAS was not a  premises owner aiming to obtain  a better

pay phone in  its hotel or restaurant, or a  caller who might

                             -13-                                         -13-

use such a pay  phone for ordinary or long  distance service.

Nor  was SAS a competitor  seeking access to  the network for

its  pay phones  in  competition with  the primary  provider,

PRTC;  SAS' aim  was to supply  such phones  to or  for PRTC.

Finally, despite  some vague allusions in  its brief, nothing

in  the  complaint suggests  that SAS  was,  or was  about to

become, a long  distance carrier who  might be benefitted  by

easier customer access.

     SAS argues that the district court failed to give it the

benefit  of a favorable reading of its complaint, and that it

is entitled to such a reading.   It says, in particular, that

the  district court  chose  to characterize  the  wrong as  a

simple contract  claim rather than viewing it  as a potential

antitrust claim  as well.   Certainly,  an individual  act of

misconduct can be  the gravamen of  more than one wrong  to a

single plaintiff.   Not every antitrust  claim in a  contract

case is simply a contract  claim masquerading as a  candidate

for treble damages.

     But  the  problem  here  is  not  that  a  plaintiff  is

automatically limited to one cause of action.  It is that the

central  conduct  here   involved--PRTC's  failing  to  carry

through  a plan to broaden access--is wrongful as to SAS only                                                                    

insofar as  it may be a common (or civil) law wrong.  Insofar

as  the same  conduct  is also  an antitrust  violation, that                                          

violation does not  infringe any interest of SAS protected by

                             -14-                                         -14-

the  antitrust laws.  This  is almost certainly  all that the

district  court meant in  saying that SAS's  claim was really

one for breach of contract.

     If competitors and  consumers are favored  plaintiffs in

antitrust cases, the list  of those presumptively  disfavored

is far longer.   The list  of those  who may be  derivatively

injured,  but are  usually  denied standing  to sue  includes

"employees  of  the  violator,  and  stockholders, creditors,

landlords, and  employees of victims."   Hovenkamp, supra, at                                                                     

554.   It is hardly surprising to afford similar treatment to

an incidentally injured supplier to a victim or, as here, the

supplier to  a supposed  violator.  But  "presumptively" does

not mean  always; there  can  be exceptions,  for good  cause

shown.  See generally Sullivan, 25 F.3d at 49.                                          

     The  most obvious  reason for  conferring standing  on a

second-best plaintiff  is that,  in some general  category of

cases,  there  may be  no first  best  with the  incentive or

ability to sue.  Cf. Associated General Contractors, 459 U.S.                                                               

at 542.  That is hardly likely here:  those threatened by the

market  injury  alleged  by  SAS  include  various  potential

plaintiffs,  above all,  long distance  carriers, who  should

have ample incentive and ability to challenge violations that

foreclose their access to  customers.  If there is  any other

reason for stretching to  confer standing in this case  on an

                             -15-                                         -15-

incidentally connected plaintiff like  SAS, it does not occur

to us.

     We have concerned ourselves  thus far primarily with the

question  whether  SAS is  a  competitor or  consumer  in the

market threatened by  the alleged violation or  has any other

protectable interest under the antitrust law.  But there is a

second  element in  the antitrust  standing cases  that works

against  SAS in  this case.   As  already noted,  one  of the

reasons  for  limiting   standing  concerns  the  speculative

character of  either the  injury or the  relationship between

the violation and injury.   This concern may operate  even in

cases,  like  this  one,  where no  duplicative  recovery  is

threatened.  Sullivan, 25 F.3d at 52.                                 

     At  first  blush it  may  seem  as if  PRTC's  antitrust

violation,  if  violation it  was,  clearly  deprived SAS  of

whatever  profits it might have  made by carrying through the

contract.    But  more  carefully  identifying  the  supposed

violation  raises substantial doubts.  Assuming arguendo that                                                                    

PRTC had or  assumed some  duty under the  antitrust laws  to

upgrade  its pay phones,  it is not clear  that the breach of

that duty is  meaningfully connected to the  failure to carry

through the contract with SAS.

     After all,  supposing that the antitrust  laws impose on

PRTC  a duty to upgrade,  they certainly do  not require that

the  upgrading be done by  SAS or any  other specific vendor.

                             -16-                                         -16-

SAS would have been no less damaged if PRTC  had breached the

contract  but installed improved pay phones of its own on the

same timetable, thereby  enhancing long distance competition.

Conversely, once SAS got the contract and PRTC then allegedly

breached  it, SAS  faced  injury--but the  injury would  have

existed even if no antitrust violation arose from the failure

to upgrade.   Thus,  the connection here  between "antitrust"

and "injury" is suspect in more ways than one.

     It remains  to say  something about the  Supreme Court's

decision  in Blue Shield v. McCready, 457 U.S. 465 (1982), on                                                

which SAS relies heavily  throughout its brief.  There,  by a

five-to-four decision, the Supreme Court held that a consumer

of health  services could  sue  under the  antitrust laws  to

redress a supposed conspiracy, between her insurance plan and

Virginia   psychiatrists,   to  exclude   psychologists  from

receiving  compensation under  the  plan.   Although not  the

immediate target of the supposed boycott, McCready herself--a

plan beneficiary  who had used a psychologist and been denied

reimbursement--was held  to have standing under the antitrust

laws.

     In language much stressed by SAS, the Supreme Court said

that McCready's injury "was inextricably intertwined with the

injury  the conspirators sought  to inflict  on psychologists

and the psychotherapy market."  457 U.S. at 484.  McCready is                                                                      

also useful to  SAS for a larger reason, namely,  that it may

                             -17-                                         -17-

be  an instance in which standing was extended to a plaintiff

who  was  only  derivatively  injured, there  by  an  alleged

boycott  directed against  psychologists  for the  benefit of

psychiatrists.  But  McCready can also  be read as a  case in                                         

which  the  plaintiff was  a  purchaser  in the  very  market

directly distorted  by the antitrust violation,  see Areeda &amp;                                                                

Hovenkamp, supra,   364f, something that cannot even arguably                            

be said of SAS.

     Thus,  the  only  real  link between  McCready  and  the                                                               

present case  is the very  general "inextricably intertwined"

language  of the former.  It is doubtful that this language--

if taken as physical image--was ever intended as a legal test

of standing.   Quite apart from  difficulties in application,

such a test  would certainly be very hard to  square with the

longstanding limitations on claims by stockholders, employees

and even  indirect purchasers.  Nothing  in McCready suggests                                                                

that it intended to overrule those limitations even though it

would be  very easy to describe such injuries as inextricably

intertwined in the ordinary suggestive sense of the phrase

     In all  events, the  Supreme Court  simply reinterpreted

the  phrase  as  a  legal conclusion  in  Associated  General                                                                         

Contractors, saying  (after a reference to the  phrase):  "In                       

this  case  [Associated  General  Contractors],  however, the                                                         

Union  was  neither  a  consumer  nor  a  competitor  in  the

[restrained] market  . . . ."   459 U.S. at 539.   It did the

                             -18-                                         -18-

same  thing  more  recently  in  Atlantic  Richfield  v.  USA                                                                         

Petroleum  Co.,   495  U.S.  328,  345   (1990)  (injury  not                          

"inextricably intertwined" because  competitor not injured by

"the anticompetitive effects" of the challenged conduct).  We                                

do  not think  that  anything more  need  be said  about  the

matter.

                             III.

     Having  assumed throughout  that an  antitrust violation

may  have  occurred,  it  is  prudent  to  stress  that  this

assumption  is  very  much  open  to  debate;  the  purported

"essential  facilities"  doctrine is  something  less than  a

self-executing  formula.5     We   have  also  supposed   the

existence  of causation  of harm "in  fact", see  Sullivan v.                                                                      

NFL,  34 F.3d  1091, 1103  (1st Cir.  1994); but  for reasons               

suggested at  the end of  our standing discussion,  a serious

question exists whether  the alleged "antitrust  violation"--

when more carefully defined--can  be described as the but-for

cause of the harm suffered by SAS.  

     In  all  events,  even  where there  is  a  harm-causing

antitrust violation,  not every injured party  is entitled to

claim under the antitrust  laws.  In this case,  supposing an

antitrust violation occurred, it was not a violation directed

against SAS and SAS is not an appropriate plaintiff to obtain

                                                    

     5See  generally Interface  Group, Inc.  v. Massachusetts                                                                         
Port  Auth., 816  F.2d 9,  12 (1st  Cir. 1987)  (Breyer, J.);                       
Hovenkamp, supra,   7 (critiquing the doctrine).                            

                             -19-                                         -19-

antitrust relief.  SAS's remedies, if  the allegations of the

complaint are true,  lie in contract and the  other pertinent

non-federal claims asserted in its complaint.

     Affirmed.                           

                             -20-                                         -20-
