

               UNITED STATES COURT OF APPEALS

                   FOR THE FIRST CIRCUIT

                                        

No. 93-1653

                     CARIBE BMW, INC.,

                   Plaintiff, Appellant,

                             v.

    BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, ET AL.,

                   Defendants, Appellees.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF PUERTO RICO

       [Hon. Raymond L. Acosta, U.S. District Judge]                                                                

                                        

                           Before

                    Breyer, Chief Judge,                                                    
               Coffin, Senior Circuit Judge,                                                        
                 and Boudin, Circuit Judge.                                                       

                                        

Anne  M.  Rodgers  with  whom  William  R.  Pakalka,  Fulbright  &amp;                                                                              
Jaworski, L.L.P., Enrique J. Mendoza Mendez, Law Offices of Enrique J.                                                                              
Mendoza Mendez,  Randall A. Hopkins,  Randall A.  Hopkins, P.C.,  Dahr                                                                              
Jamail,  Jamail &amp;  Kolius,  Thomas R.  McDade,  and McDade  &amp;  Fogler,                                                                              
L.L.P., were on brief and reply brief for appellant.              
Irving Scher  and Manuel  A. Guzman  with whom  Bruce A.  Colbath,                                                                             
Weil,  Gotshal &amp;  Manges  and  McConnell  Valdes  were  on  brief  for                                                        
appellees.

                                        

                       March 25, 1994
                                        

          BREYER, Chief  Judge.    This  appeal  raises  two                                           

issues  of antitrust law.   First, do a  firm's wholly owned

subsidiary and the  firm itself amount to  a "single seller"

under the Robinson-Patman Act?  15 U.S.C.   13.  Second, can

a retailer's lost profit, brought  about by a maximum resale                                                                  

price  fixing  agreement  between  that  retailer   and  its

supplier, amount  to an "antitrust  injury," thereby  giving

that retailer "standing" to obtain treble damages?  Atlantic                                                                         

Richfield Co.  v. USA Petroleum  Co. ("ARCO"), 495  U.S. 328                                                        

(1990); Albrecht v.  Herald Co.,  390 U.S. 145  (1968).   We                                            

answer both these questions in the affirmative.  Because the

district  court's  dismissal  of the  plaintiff's  complaint

rested upon  negative answers to the same  questions, we set

its dismissal aside.

                             I

                         Background                                                

          From  1981   through   1990,  Caribe   BMW,   Inc.

("Caribe"),  through     contracts   with  the   German  BMW

manufacturer,  Bayerische  Motoren Werke  Aktiengesellschaft

("BMW AG"), bought  BMW automobiles from BMW AG  in Germany,

imported them into Puerto Rico, and sold them at retail.  In

February  1991,  Caribe (the  appellant  here) brought  this

lawsuit  against (the  appellees)  BMW AG  and BMW's  wholly

                            -2-                                          2

owned North American subsidiary,  BMW of North America, Inc.

("BMW  NA").    Caribe's  complaint  (actually,  its  second

amended complaint), with commendable simplicity, listed four

counts.

          Count I charged a violation of the Robinson-Patman

Act.  15 U.S.C.   13.  It said that BMW AG sold cars  to BMW

NA, which resold  those cars to other retailers who competed

with  Caribe,  at  prices  lower  than,  or  on  terms  more

favorable than, those at  which BMW AG sold similar  cars to

Caribe.  Count II charged a violation of   1  of the Sherman

Act.  15  U.S.C.   1.   It said that BMW AG  had set maximum

resale  prices  for  the cars  that  it  sold  to Caribe  by

"threaten[ing]  to  terminate  Caribe's   contracts"  unless

Caribe  would  agree,  in  effect, to  maintain  low  resale

prices.   Count III charged "breach of contract."  It listed

various  ways in which BMW AG had allegedly broken its word.

Count  IV charged  that,  in terminating  its contract  with

Caribe, BMW AG had violated Puerto Rico's Dealers' Contracts

Act, more familiarly known  as Act 75.  P.R.  Laws Ann. tit.

10,   278 et seq.                              

          The district court dismissed the complaint for two

related reasons.   First, it found that  the complaint's two

antitrust  counts  "fail[ed] to  state  a  claim upon  which

                            -3-                                          3

relief can be granted."  Fed.  R. Civ. P. 12(b)(6).  Second,

it  noted that  a forum  selection  clause in  the contracts

between   Caribe  and   BMW  AG   provided  for   "exclusive

jurisdiction" in  "Germany" to resolve "disputes"  about the

"termination of" or  "rights and duties arising  out of" the

agreement.  It found this clause applicable to the remaining

(non-antitrust) claims,  and it dismissed  those claims "for

improper venue" or, in the alternative, "on grounds of forum                                                                         

non  conveniens."   Caribe BMW,  Inc. v.  Bayerische Motoren                                                                         

Werke Aktiengesellschaft  , 821 F. Supp.  802 (D.P.R. 1993).                                     

Caribe appeals.

          When  reviewing  the  dismissal of  the  antitrust

claims  we  take  the  facts  basically  as  stated  in  the

complaint and make reasonable  inferences that will help the

plaintiff.   Garita  Hotel  Ltd. Partnership  v. Ponce  Fed.                                                                         

Bank,  F.S.B., 958  F.2d  15, 17  (1st  Cir. 1992).    After                          

examining those  facts,  in light  of the  relevant law,  we

conclude that  the district court should  not have dismissed

the  antitrust claims.   And,  that conclusion  requires the

district court to reexamine dismissal of the other claims as

well.

                             II

               The Robinson-Patman Act Claim                                                         

                            -4-                                          4

          The Robinson-Patman Act forbids "any person"                                                                   

          to   discriminate   in   price   between
          different  purchasers of  commodities of
          like grade  and quality . .  . where the
          effect of such discrimination may be . .
          .  to injure . . .  competition with any
          person who . . . grants  . . . the . . .
          discrimination,  or with  [that granting
          person's] customers . . . .

15 U.S.C.   13(a).   Caribe's complaint alleges most  of the

essentials  of a  violation.   It says  that a  "person" has                                                                    

"discriminate[d]  in  price  between  different  purchasers"

(namely, Caribe  and  other retailers  in  competition  with

Caribe)  of cars,  with the  effect that  "competition with"

that  person's "customer"  (namely, Caribe)  is "injure[d]."                         

See FTC v. Morton Salt Co., 334 U.S. 37, 45 (1948).  But, it                                       

embodies an ambiguity in respect to the "person" who did the                                                            

discriminating.  It says  that BMW AG sold cars  directly to                                                  

Caribe, which resold them at retail.  It then  says that BMW

NA sold cars to other retailers, who compete with Caribe, at               

lower  prices than BMW AG sold its  cars to Caribe.  At this                                      

point,  there appear  to be  two "persons"  selling BMWs  to

retailers,  namely, BMW AG (selling them  to Caribe) and BMW

NA (selling  them to  Caribe's competitors).   The complaint

adds, however, that BMW NA is the wholly owned subsidiary of                                       

BMW AG.  Thus, we must face the legal question of whether or                   

not  this last mentioned fact  is sufficient to  make of the

                            -5-                                          5

two  separately incorporated companies a single "person" for

Robinson-Patman Act purposes.  If so, the complaint properly

alleges that a single "person" has sold similar goods at two

different  prices (allegedly  with  the  required  statutory

effect).    If  not,  there  may  be  no  "person"  who  has

"discriminate[d]."   See  id. ("discrimination"  requires at                                          

least  two sales by a  single person at  different prices to

different customers  in competition  with  each other);  see                                                                         

also  Phillip Areeda  &amp; Louis  Kaplow, Antitrust  Analysis                                                                         

601(c) (4th ed. 1988); 3 Earl W. Kintner &amp;  Joseph P. Bauer,

Federal Antitrust Law   21.11, at 192-93 (1983).                                  

          So far,  when courts  have faced this  question --

whether or not a firm and its subsidiary amount to  a single

"person"  (or a "single seller") -- they have answered it by

examining  the extent of common ownership  and the degree of                                                           

control over pricing and  distribution policies that the one

exercises over the other.   See Acme Refrigeration of  Baton                                                                         

Rouge,  Inc. v.  Whirlpool Corp.,  785 F.2d 1240,  1243 (5th                                             

Cir.) (100% ownership, without control, not enough to create

a  "single  seller"), cert.  denied,  479  U.S. 848  (1986);                                                

Island Tobacco  Co. v.  R.J. Reynolds  Indus., Inc.,  513 F.                                                                

Supp. 726, 734 (D. Haw. 1981) (same); Baim &amp; Blank, Inc., v.                                                                     

Philco  Corp.,  148 F.  Supp.  541,  543-44 (E.D.N.Y.  1957)                          

                            -6-                                          6

(same); Massachusetts Brewers Ass'n  v. P. Ballantine &amp; Sons                                                                         

Co., 129 F. Supp. 736, 739 (D. Mass. 1955) (same);  see also                                                                         

Kintner &amp; Bauer,  supra,   21.16 at 212.   In this case, the                                    

extent  of ownership  is  100%;  Caribe's complaint  alleges

nothing about  actual control.   Thus,  we must  ask whether                    

100%   ownership,  by  itself,   amounts  to   a  sufficient

allegation  that the  "firm  plus subsidiary"  are a  single

Robinson-Patman Act "person."  We conclude, for reasons that

we shall now explain, that it does.

          For  purposes of  clarity, we  shall refer  in our

explanation to  hypothetical entities whom we  shall call 1)

the Manufacturer  (M), 2) its wholly  owned Distributor (D),

3)  the Retailer  (R1) who buys  from D,  and 4)  the Direct

Buying  Retailer (DBR),  who buys  directly from  M and  who

resells  in   competition  with   R1.     The   distribution

arrangement looks like the following:

                    M     

                    D                       

                    R1                    DBR  

                            -7-                                          7

In our case,  BMW AG holds  the position of  M; BMW NA,  the

position of  D; Caribe,  the position of  DBR; and  Caribe's

unspecified  retail competitors,  the position  of R1.   The

legal question, put in  terms of the diagram, is  whether or

not  M's 100%  ownership of  D  makes M  and D,  together, a

"single  seller,"  say  "MD."    If  so,  a single  "person"

(allegedly) "discriminates" in price.

          We now  return to the reasons  for our affirmative

answer, which are three.  First,  in 1984, after many of the

above-cited "single seller" cases  were decided, the Supreme

Court decided  Copperweld Corp. v. Independence  Tube Corp.,                                                                        

467 U.S. 752 (1984).   The Court there considered  the scope

of Sherman Act    1's word  "conspiracy."  It held  that the

word  did not  cover  an agreement  between  a wholly  owned

subsidiary and its parent, because a wholly owned subsidiary

could not "conspire" with the parent.  That, the Court said,

is because they have

          a  complete unity  of  interest.   Their
          objectives  are  common, not  disparate;
          their  general   corporate  actions  are
          guided or determined not by two separate
          corporate consciousnesses, but one.  . .
          .   [And] [t]hey share a  common purpose
          whether or not the parent keeps a  tight
          rein over the subsidiary . . . .

Id.  at  771.   The  Court  added  that  a "corporation  has                

complete  power to  maintain"  a portion  of the  enterprise

                            -8-                                          8

either  in the form of an unincorporated division, or in the

form of a separately incorporated subsidiary.  But, the

          economic, legal, or other considerations
          that lead corporate management to choose
          one  structure  over the  other  are not
          relevant  to  whether  the  enterprise's
          conduct seriously threatens competition.

Id. at 772.  For these reasons, the Court held,                

          the coordinated activity of a parent and
          its  wholly  owned  subsidiary  must  be
          viewed  as that  of a  single enterprise
          for purposes of   1 of the Sherman Act.

Id. at 771.                

          Although the Court spoke of Sherman Act   1 and of

"coordinated  activity,"  its reasoning  applies here.   See                                                                         

Areeda &amp;  Kaplow, supra,   601(c), at  929.  In essence, the                                    

Court saw  an identity  of economic interest  between parent

and wholly owned subsidiary that, considered in terms of the

economically  oriented  antitrust  laws, warrants  regarding

them as one.   See generally 7 Phillip E.  Areeda, Antitrust                                                                         

Law    1464   (1986).     Any  claimed  instance   of  truly                

"independent,"   owner-hostile,   subsidiary  decisionmaking

would  meet  with  the  skeptical  question,  "But,  if  the

subsidiary acts contrary to its parent's economic  interest,

why   does   the  parent   not   replace  the   subsidiary's

management?"   Given  the  strength of  that joint  economic

                            -9-                                          9

interest,  we  do  not  see  how  a  case-specific  judicial

examination of  "actual" parental control would help achieve

any  significant antitrust  objective.   Those instances  in

which a wholly owned subsidiary would intend to act contrary

to  the economic interests of  its owner are  likely few and

far between, and,  if they  ever exist, would  seem hard  to

prove.  Cf. Areeda &amp; Kaplow, supra,   215.                                               

          Second,  there does  not  seem to  be any  special

Robinson-Patman Act  purpose that a  case-specific "control"

inquiry  would further.  To the contrary, one would not want

a seller to be able to defeat the statute's clear objectives

by transforming unlawful,  into lawful, price discrimination

through the creation of a separately incorporated subsidiary

"distributor"  that  sells  to  the   disfavored  customers,

whether  or  not  the  parent retained  "control"  over  the

pricing decisions of the  subsidiary.  Suppose, for example,

that M violates the  Act by selling to one retailer (DBR) at

$10  and another competing retailer  (R1) at $12.   M should

not be  able to avoid  the law simply  by creating a  wholly

owned, but "independent" D, to whom it sells at $10, knowing

that  "independent"  D   will  (say,  for  profit-maximizing

reasons) "independently" resell to R1 at the same $12 price.

                            -10-                                          10

          We are aware that  this area of the law  is filled

with difficulty.   For  example, should Robinson-Patman  Act

liability attach in  the example just given  if (contrary to

our  assumption) the  wholly  owned  distributor, D,  really

fulfills  an important  distribution function,  necessary to

supply R1, but not needed in  the case of sales to DBR, such

that  DBR "ought" to  receive a lower price?   Or, suppose M

(perhaps  as here) sets a  higher price to  direct buyers in

order to  discourage direct  sales and thereby  to encourage

the creation of an  independent distribution network?  These

problems arise, however, in part, because it is difficult to

reconcile   the   Robinson-Patman   Act's  strictures   with

traditional practices  of  corporations that  seem  to  make

sense from a practical viewpoint.  See, e.g., Texaco Inc. v.                                                                      

Hasbrouck,  496 U.S.  543, 559-62  (1990); Kintner  &amp; Bauer,                      

supra,    22.14; James F. Rill,  Availability and Functional                                                                         

Discounts  Justifying  Discriminatory Pricing,  53 Antitrust                                                          

L.J. 929  (1985).  And the complexity of Robinson-Patman Act                               

law has increased as courts have tried to introduce a degree

of  flexibility into the Act as applied.  See, e.g., Kintner                                                                

&amp;  Bauer,   supra,     25.7,  at   454-460  (discussing  the                              

availability   defense);  Hasbrouck,   496   U.S.   at   561                                                

                            -11-                                          11

(discussing functional discounts);  15 U.S.C.   13(a)  (cost

justification defense); see also Rill, supra.                                                         

          For present  purposes, however, we need  only note

that these  same problems  exist,  in one  form or  another,

regardless of our holding in  this case.  That is to  say, a                       

contrary holding would nonetheless produce the same problems

wherever  M  does  "control"  the pricing  policies  of  its

wholly-owned  subsidiary D (i.e.,  in most cases).   And, in

the  remaining   cases  (where  wholly-owned  D  is  somehow

nonetheless   "independent"),    various   other,   related,

Robinson-Patman  Act  problems  would  often  arise  if  DBR

complained about differences in price between M's price to D

and M's price to DBR.   See pp. 12-14, infra.  Thus, we find                                                         

nothing  special in  the  Robinson-Patman Act  context  that

militates against Copperweld's reasoning or result.                                         

          Third,  applying  Copperweld  avoids  a  potential                                                   

anomaly.   A  majority  of courts,  using a  Copperweld-type                                                                    

analysis, have  held that  a firm  M's sale of  a good  to a

wholly  owned  subsidiary D  is not  a "sale"  for Robinson-

Patman  Act purposes; rather,  it is simply  a transfer; and

that is so whether D is, or D is  not, somehow "independent"

in  reality.  See City  of Mt. Pleasant  v. Associated Elec.                                                                         

Coop., Inc., 838 F.2d  268, 278 (8th Cir. 1988);  Russ' Kwik                                                                         

                            -12-                                          12

Car  Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 221                                                      

(6th Cir.  1985) (per curiam) (quoting  Copperweld, 467 U.S.                                                               

at 772 n.18);  O'Byrne v. Checker Oil Co., 727 F.2d 159, 164                                                      

(7th  Cir. 1984); Security Tire &amp; Rubber Co. v. Gates Rubber                                                                         

Co., 598 F.2d 962, 965-67 (5th Cir.), cert. denied, 444 U.S.                                                               

942  (1979).  These holdings mean that D, the transferee, is

not a "purchaser" from M,  and, for that reason, M does  not

violate the Act even if  he sells the same good to  a direct

buying  retailer (DBR), or even a direct competitor of D, at

a  higher price than the  price at which  he "transfers" the

good to  D.  Our holding  today means that  when the wholly-

owned subsidiary D resells the good  to R1, it must do so at

a "nondiscriminatory" price, i.e., at a price that would  be

permissible under the Act had D's sale to R1 been made by M.

Thus, if M sells to DBR at 14, D cannot sell  to R1 for less

than 14 (assuming, of course, that all other Robinson-Patman

Act  liability  conditions  are  met  and  no  defenses  are

available).

          But,  suppose  we  were  to   hold  the  contrary.

Suppose  that we were to hold that a wholly-owned subsidiary

D and  its owner M  were not a  "single seller" where  D was                                         

somehow  nonetheless  "independent."    Then,  an  anomalous

difficulty might  well prevent  DBR from bringing  an action

                            -13-                                          13

where M "transfers" to D at 10, D resells to R1 at 12, but M

insists  on  charging  DBR   14  (i.e.,  approximately   the

allegations before us).   The doctrine just  mentioned -- in

effect finding that M and D are a single entity for purposes

of  the transfer  between  them --  would  prevent DBR  from

complaining about  the effect of  the M-D  "transfer."   Cf.                                                                         

Hasbrouck,  496 U.S.  at  569-71.   At  the same  time,  our                      

(imagined) holding (the opposite of our actual holding) that

M and D were not a single entity for purposes of D's sale to                             

R1  would  likely prevent  DBR  from  complaining about  the

effect  of  that sale  because of  its  inability to  find a

single "person"  who discriminated (because M  does not sell

to R1, while D does not sell to DBR, see pp.  12-13, supra).                                                                       

          Perhaps  one could  somehow avoid this  anomaly in

other ways, but  it seems undesirable to invent epicycles in

an already  too complex area of  the law.  It  is simpler to

hold  in  parallel  fashion  that ownership  alone  makes  a

"single seller" of a firm and  its wholly owned distributor,

just  as ownership  alone  eliminates the  possibility of  a

Robinson-Patman Act "sale" between them.

          We   therefore  find   it  appropriate   to  apply

Copperweld's reasoning outside Sherman Act    1.  See, e.g.,                                                                        

                            -14-                                          14

City of Mt. Pleasant, 838 F.2d  at 278; Russ' Kwik Car Wash,                                                                        

772  F.2d at  221; cf.  United  States v.  Waste Management,                                                                         

Inc.,  743  F.2d  976,   979  (2d  Cir.  1984)  (attributing                 

subsidiary's activity to parent  for purposes of Clayton Act

  7).   We hold that BMW  AG's ownership of BMW  NA makes of

those two  entities,  for Robinson-Patman  Act  purposes,  a

single seller.

          We now  turn to  a second, independent  reason the

district court  gave for  concluding that the  complaint did

not adequately state a Robinson-Patman Act claim.  The court

correctly  noted that if a seller makes its favorable prices

and  terms  available to  an otherwise  disfavored customer,

that  customer has no legal  right to complain.   See, e.g.,                                                                        

Bouldis v.  U.S. Suzuki  Motor Corp.,  711 F.2d  1319, 1326,                                                 

1328-29 (6th Cir. 1983) (discussing availability defenses to

   2(a), 2(d), and 2(e)); Shreve Equip., Inc. v. Clay Equip.                                                                         

Corp.,  650   F.2d  101,   105-06  (6th   Cir.)  (discussing                  

availability  under    2(a)),  cert.  denied,  454 U.S.  897                                                         

(1981); Edward J. Sweeny  &amp; Sons, Inc. v. Texaco,  Inc., 637                                                                    

F.2d  105, 120-21 (3d  Cir. 1980) (same),  cert. denied, 451                                                                    

U.S.  911 (1981); see also  Kintner &amp; Bauer,  supra,   25.7.                                                                

The district court then concluded that Caribe, in a  portion

of  its complaint,  in  effect conceded  that  BMW made  its                                                    

                            -15-                                          15

favorable  prices  and  terms  available to  Caribe.    That                                                     

complaint portion says that in 1987

          despite Caribe's remarkable success, BMW
          attempted to convert  Caribe from  being
          an importer-retailer purchasing directly
          from  the factory to being a mere retail
          dealer purchasing from BMW N.A.

          We do not believe, however, that one can draw from

this   statement  the  "availability"  concession  that  the

district court found.  The complaint also says that

          [u]nbeknownst  to Caribe,  and beginning                                               
          by at least 1987, BMW began lowering its
          prices   for   BMWs  sold   to  Caribe's
          competitors    and     offering    those
          competitors  other  economic  advantages
          while maintaining its  prices to  Caribe
          at a discriminatorily high level and not
          making  the  other  economic  advantages
          available  to Caribe  on proportionately
          equal terms.

The emphasized language says  that Caribe did not  know that

its competitors  were receiving favored treatment.   And, we

do not  see how ordinarily one  could say that  a seller has

made favored treatment "available" to a disfavored  customer

if the disfavored  customer does not know  about the favored                                                      

treatment.  See, e.g., Alterman Foods, Inc. v. FTC, 497 F.2d                                                               

993, 1001 (5th Cir. 1974); Mueller Co.  v. FTC, 323 F.2d 44,                                                           

46-47  (7th Cir. 1963),  cert. denied, 377  U.S. 923 (1964);                                                  

Century Hardware  Corp. v. Acme  United Corp., 467  F. Supp.                                                          

350, 355-56 (E.D. Wis. 1979).                                         .

                            -16-                                          16

          Caribe  also argues that the favored treatment, as

a  practical  matter, was  not  "available"  because BMW  AG

insisted  that   it  give  up  various   advantages  of  its

importer's contract in order  to obtain it.  We  cannot tell

from the complaint, however, just what those advantages were

and how they related to the practical "availability"  of the

favorable treatment given other  retailers.  Thus, we cannot

say, at  this time, whether  or not Caribe  will be able  to

prove  that the  favorable price  and terms, as  a practical

matter, were not available.  At  this stage, however, Caribe

has sufficiently alleged that they were not.

          Our conclusion is that Caribe's complaint states a

valid  Robinson-Patman  Act  claim,  in  respect   to  price

discrimination  under Robinson-Patman  Act    2(a),  and for

similar reasons, under the Robinson-Patman Act sections that

deal with  payments for  services, furnishing services,  and

brokerage payments.  15 U.S.C.    13(b), (d)-(e).   Although

Caribe's pleadings regarding these other Robinson-Patman Act

sections are rather sparse, they are  sufficient to give BMW

AG and BMW NA notice of the substance of Caribe's complaint.

Caribe  also claimed  that  BMW NA  violated    2(f),  which

forbids  knowingly inducing or receiving a discrimination in

price.  15 U.S.C.   13(f).  In light of our holding that BMW

                            -17-                                          17

NA  is not a separate "person," however, that portion of the

complaint must be dismissed.

                            III

                      The Sherman Act                                                  

          Count Two of the Complaint says that 

          BMW  has for years  imposed as  a secret
          condition   of  Caribe's   contracts  an
          agreement  or understanding  that Caribe
          charge its customers  prices set by BMW.
          . . . More specifically,  BMW threatened
          to  terminate Caribe's  contracts unless
          Caribe agreed  not to raise  its margins
          (i.e., and thus its retail prices) above
          levels fixed and set  by BMW, and Caribe
          reluctantly agreed.

This complaint sets forth a claim that BMW and Caribe agreed

to  fix "maximum" resale prices.  The Supreme Court has held

that  Sherman Act   1  forbids this kind  of agreement.  See                                                                         

Albrecht  v. Herald Co., 390 U.S. 145 (1968).  The complaint                                    

also  alleges  that the  "agreement  caused  Caribe to  lose

additional  profits."   And,  Clayton Act     4 permits  any

"person"  whose  "business"  is  "injured"  by  "reason   of

anything forbidden in the  antitrust laws" to recover treble

damages.  15 U.S.C.   15.  

          The  district  court  nonetheless   dismissed  the

complaint in light of Clayton Act   4's requirement that the

injury must  result from an  action that the  antitrust laws

forbid.  The  courts have held  that this requirement  means

                            -18-                                          18

the  injury itself  must  be a  special "antitrust  injury,"

which is  to say that it  must amount to "the  type" of harm                                                                

"the antitrust laws  were intended to prevent,"  and it must

flow  "from   that  which   makes  [the]   defendants'  acts                                      

unlawful."  Brunswick Corp.  v. Pueblo Bowl-O-Mat, Inc., 429                                                                    

U.S.  477, 489 (1977) (emphasis added).   The district court

thought that Caribe's  lost profits were  not the "type"  of

harm that the anti-maximum-resale-price-fixing rule seeks to

prevent.  And, it rested that conclusion upon its reading of

a  Supreme  Court  case,   Atlantic  Richfield  Co.  v.  USA                                                                         

Petroleum Co. ("ARCO"), 495 U.S. 328 (1990).                                 

          As  the district  court pointed  out, in  ARCO the                                                                     

Supreme Court considered  the anticompetitive  possibilities

that  had earlier led the Court to find maximum resale price

agreements unlawful.   The Supreme Court  referred to three.

First,  the "maximum"  resale price  agreement might  be, in

reality, a  disguised "minimum"  resale price  agreement, in

which case  the agreement would  threaten the very  kinds of

harm that led the Court, in Dr. Miles Medical Co. v. John D.                                                                         

Park &amp; Sons Co., 220 U.S. 373 (1911), to find minimum resale                            

price  agreements unlawful per se.   ARCO, 495  U.S. at 336.                                                      

Second,  a maximum  resale price  agreement might  prevent a

dealer  from  providing  "services  and  conveniences"  that

                            -19-                                          19

customers would want to  the point that the  customers would

accept (if necessary) the  price increases needed to provide

them.  Id.  at 335-36.  If  so, a supplier's  judgment about                       

the  proper resale  price  (imposed  through the  supplier's

maximum resale price agreement) would prevent consumers from

obtaining  what  they  want  (higher  quality product)  from

retailers who  would  like to  supply  it.   Id.   Third,  a                                                             

"maximum   resale   price    agreement"   might    "'channel

distribution through  a few large or specifically advantaged

dealers,'"  the only  ones  able to  earn  a profit  at  the

mandated, low resale  price.  Id. at 336  (quoting Albrecht,                                                                        

390 U.S. at 153).

          The Supreme Court  went on to  hold that the  ARCO                                                                         

plaintiffs  had not  suffered  "antitrust injury."   But  it

noted, and we note, that, unlike Caribe, the ARCO plaintiffs                                                              

were not dealers  who themselves had  entered into (or  been

forced to enter into) such agreements; rather  they were the

competitors  of those  dealers.   They had claimed  that the                        

agreements had helped the ARCO dealers (who entered into the

agreements) obtain  more  sales, thereby  leaving them,  the

competitors  of  the  ARCO  dealers, with  fewer  sales  for

themselves.   The  Supreme  Court held  that, whatever  else

might be  wrong with the  plaintiffs' assertion, it  did not

                            -20-                                          20

allege harm of  the type  that Albrecht  sought to  prevent.                                                    

That kind of  harm would have  taken the form of  fewer ARCO                                                                    

dealers, or fewer sales for the dealers who had entered into                              

the  agreements  (because  those  customers  wanting  higher

prices and extra services could not get them), not more ARCO                                                                    

dealer  sales.    The  Supreme  Court  then  wrote that  the

plaintiffs, being rival dealers, were                                    

          benefited rather than harmed if [ARCO's]                                
          pricing  policies restricted  ARCO sales
          to  a  few  large dealers  or  prevented
          [ARCO's] dealers  from offering services
          desired by consumers such as credit card
          sales.

Id. at 336-37.  The Court added that if an agreement                

          lowers prices but  maintains them  above
          predatory levels, the  business lost  by                                                               
          rivals   cannot   be   viewed    as   an                             
          "anticompetitive"  consequence   of  the
          claimed violation.

Id. at 337 (emphasis added).                

          In this case,  Caribe is not in  the same position

as the ARCO plaintiffs, for Caribe is the very firm that the                        

alleged maximum resale price fixing agreement forced to keep

its price below the level it  preferred to set.  At least in

theory, if customers would have preferred a higher price and

consequently better product quality  or greater service, the

agreement forced Caribe to provide less of what they wanted;

the  agreement  thereby  might  have  led  to  lower  Caribe

                            -21-                                          21

profits.  And, at  least in theory, if the  agreement helped

other, larger  BMW dealers,  Caribe is the  firm that  would                               

have  suffered.    Thus,  Caribe's  complaint  here  alleges

antitrust harm of the "type" that Clayton Act   4 authorizes

it to assert.   ARCO  supports, it does  not deny,  Caribe's                                 

standing.

          We   recognize  that   Albrecht   has   proved   a                                                      

controversial case.  That  is, in part, because it  seems to

outlaw  not  only  anticompetitive  uses  of  maximum  price

fixing, but also procompetitive uses as well, namely, use of

a  maximum resale  price agreement  that protects  consumers                       

from  the exercise  of a  retailer's monopoly  power.   See,                                                                        

e.g., 8 Phillip E. Areeda Antitrust Law   1636 (1989).   And                                                    

insofar  as  Caribe's  claim  of "lost  profits"  refers  to

"losses"  that  occurred  because  the  agreement  prevented

Caribe from  raising prices above the  competitive level, it

is at  least arguable  that no "antitrust  injury" occurred.

See id.   1640;  Phillip E. Areeda, Antitrust Law    340.3b,                                                              

at  509-510 (Supp.  1993).    But,  at  this  stage  of  the

proceeding, we must view  Caribe's complaint in a favorable,

not an unfavorable, light.   We therefore read the complaint

as implying  that the agreement cost  Caribe profits because

it  inhibited Caribe  from  selling to  those potential  BMW

                            -22-                                          22

customers who would  have preferred higher  quality service,

even if that meant somewhat higher Caribe prices.

          We recognize  that one  might also wonder,  as did

the district court, how Caribe could have been injured  both                                                                         

by a Robinson-Patman  Act violation and by  a maximum resale

price agreement.  How could it have suffered  lost customers

attracted  by  the  lower  prices of  retailers  who  bought                                      

cheaply from  BMW  NA and  also have  suffered lost  profits

because  it could not increase its prices?  One might answer                                           

this question, however, by inferring from the complaint that

Caribe has two different  kinds of customers.  Some  want to

pay the  lowest possible  prices; others  would pay  more to

receive special services that Caribe would offer only if  it

could  charge  higher  prices.     At  least  in  principle,

possibilities  of this  sort  are not  outlandish.   And, it

seems  to us that  Caribe is entitled  to have a  court draw

these inferences at this  complaint stage of the proceeding.

Hospital  Bldg. Co.  v. Trustees  of Rex Hospital,  425 U.S.                                                              

738,  746  (1976);  Conley v.  Gibson,  355  U.S. 41,  45-46                                                  

(1957);  Tri-State Rubbish, Inc.  v. Waste Management, Inc.,                                                                        

998 F.2d 1073, 1081 (1st Cir. 1993).

          We conclude  that the  district  court should  not

have dismissed count II of the complaint.

                            -23-                                          23

                             IV

                Puerto Rico Antitrust Claims                                                         

          Caribe   asserted   claims  under   Puerto  Rico's

antitrust law  that parallel  its federal  antitrust claims.

As the parties seem to agree, courts interpret Puerto Rico's

laws as essentially embodying the jurisprudence  relevant to

the  parallel federal law.  For that reason we reinstate the

Commonwealth  antitrust claims  to the  same extent  that we

have reinstated the federal claims.  Cf. R.W. Int'l Corp. v.                                                                      

Welch Food, Inc., No.  93-1704, slip op. at 19-25  (1st Cir.                             

Jan. 20,  1994); Mitsubishi Motors Corp.  v. Soler Chrysler-                                                                         

Plymouth, 723 F.2d 155,  161 (1st Cir. 1983), aff'd  in part                                                                         

and rev'd in part, on other grounds, 473 U.S. 614 (1985).                                                

                             V

          The Contract Claims and the Act 75 Claim                                                               

          Our antitrust count decisions require the district

court to  reconsider its  remaining dismissals,  of Caribe's

breach of contact claims and its Act 75 claim.  The district

court dismissed  those counts  because of a  forum selection

clause in the Caribe contracts, which says

          the exclusive  jurisdiction for disputes
          concerning the . . . termination of this
          agreement  as well as all and any rights
          and duties arising out of this agreement
          is . . . Germany.

                            -24-                                          24

The  court  did not  decide,  however, whether  or  not this

clause covers  antitrust counts (for it  had dismissed those

counts for failure  to state a valid claim).  We cannot tell

from the wording  of the  clause alone whether  it does,  or

does  not, cover  antitrust  claims --  whether such  claims

"concern"  the  "termination"  of,  or  "rights  and  duties

arising out of," the "agreement."  And, it  seems to us that

the  parties  should  have  an opportunity  to  pursue  that

question further in the  district court.  Compare Mitsubishi                                                                         

Motors, 723 F.2d at 159-61 (analyzing numerous provisions in                   

contract to  determine intended  scope of a  forum selection

clause) with Bense v. Interstate  Battery Sys. of Am., Inc.,                                                                        

683  F.2d  718, 720  (2d  Cir. 1982)  (broadly  worded forum

selection clause includes antitrust claims).  

          The answer to  this question, depending  upon what

it  is,  might  add  strength  to  (or  weaken)  plaintiff's

argument that the forum selection clause cannot apply to the

Act 75 claim.  It also could affect  the arguments about the

comparative "convenience" of Puerto Rico for  a trial on the

contract  and Act  75  claims.   Were it  to  turn out,  for

example, that an antitrust trial had to take place anyway in

Puerto Rico, the  comparative balance of  conveniences might

well change.

                            -25-                                          25

          We do not  mean to express  any view, however,  on

the   merits  of   these   or  other   arguments  (such   as

jurisdictional arguments)  that the parties may  make as the

case  proceeds further.   We simply  hold that  the district

court should not have dismissed  the antitrust claims in the

complaint.   And, that holding, in  turn, requires the court

to reconsider its other dismissals.

          The judgment of the  district court is vacated and

the case is remanded for further proceedings.

          So ordered.                                  

                            -26-                                          26
