UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUPERMARKET OF MARLINTON,
INCORPORATED,
Plaintiff-Appellant,

v.

VALLEY RICH DAIRY; FLAV-O-RICH,
INCORPORATED; THE VALLEY OF
VIRGINIA COOPERATIVE MILK
                                      No. 97-2314
PRODUCERS ASSOCIATION,
Defendants-Appellees,

and

MEADOW GOLD DAIRIES,
INCORPORATED; BORDEN,
INCORPORATED,
Defendants.

JOHN MILES, formerly doing business
as Central Market; RUTH C. MILES,
formerly doing business as Central
Market,
Plaintiffs-Appellants,

v.
                                      No. 97-2315
VALLEY RICH DAIRY; FLAV-O-RICH,
INCORPORATED; THE VALLEY OF
VIRGINIA COOPERATIVE MILK
PRODUCERS ASSOCIATION,
Defendants-Appellees,

and
MEADOW GOLD DAIRIES,
INCORPORATED; BORDEN,
INCORPORATED,
Defendants.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-93-968-R, CA-96-407-R)

Argued: May 7, 1998

Decided: August 27, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Charles Leonard Egan, FORT & SCHLEFER, L.L.P.,
Washington, D.C., for Appellants. Michael Francis Urbanski,
WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke, Virginia,
for Appellees. ON BRIEF: William C. Buckhold, FORT & SCHLE-
FER, L.L.P., Washington, D.C., for Appellants. Francis H. Casola,
WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke, Virginia;
William H. Cleaveland, RIDER, THOMAS, CLEAVELAND, FER-
RIS & EAKIN, P.C., Roanoke, Virginia, for Appellees.

_________________________________________________________________

                    2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Supermarket of Marlinton, Inc. ("Marlinton") and the owners of
Central Market ("Central Market") filed class actions against several
large dairy companies, seeking treble damages for alleged violations
of federal antitrust laws. Specifically, the grocery stores claimed that
the dairy companies conspired to suppress competition by fixing, rais-
ing, and maintaining the price of milk at artificially high levels in vio-
lation of the Sherman Act. See 15 U.S.C.A.§ 1 (West 1997).
Marlinton and Central Market appeal the district court's order grant-
ing summary judgment to the dairy companies on the ground that they
failed to produce sufficient evidence of injury in fact, and, therefore,
lacked antitrust standing. We affirm.

I.

Marlinton and Central Market are two grocery stores located in
southeastern West Virginia and southwestern Virginia, respectively.
They instituted these private antitrust actions in the wake of a 1992
Department of Justice investigation into the milk industry, which led
to the indictment of Valley Rich Dairy ("Valley Rich"), Meadow
Gold Dairies, Inc. ("Meadow Gold"), Borden, Inc. ("Borden"), and
three Meadow Gold officials on charges that they had rigged school
milk bids. The dairy companies pled guilty while the Meadow Gold
officials proceeded to trial.

During the trial of the Meadow Gold officials, Paul French
("French"), the former General Manager of Valley Rich, testified
under a grant of use immunity that he had engaged in various price-
fixing activities with officials from Meadow Gold, a competitor in
portions of Virginia and West Virginia. More specifically, French tes-
tified about meetings in which he and the Meadow Gold officials con-
spired to fix school milk bids and wholesale milk prices. He stated

                     3
that these meetings were in person, prearranged, and conducted at
locations away from his office. French further testified that he filled
out his expense accounts in such a manner as to conceal these meet-
ings. The trial resulted in a hung jury and the Government did not re-
prosecute the case. French's testimony, however, became the basis for
the present actions against the dairies.

In 1993, Marlinton filed a class action1 against Meadow Gold, Bor-
den, Valley Rich, Flav-O-Rich, Inc. ("Flav-O-Rich"), and Valley of
Virginia Co-Operative Milk Producers Association ("Valley of
Virginia"),2 alleging that between 1984 and 1987 the dairies had con-
spired to fix the price of milk sold in the wholesale market where
Marlinton conducted business. The district court granted the dairies'
motion for summary judgment on the ground that the applicable stat-
ute of limitations barred Marlinton's claim.3 We reversed that ruling
in Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,4
holding that the district court had employed an incorrect standard for
the tolling of the statute of limitations under the fraudulent conceal-
ment doctrine. In addition, we recognized that on remand the district
court would have to resolve the question of whether Marlinton had
antitrust standing, an issue that the parties had not yet fully briefed.5

In April 1996, Marlinton's attorney filed an identical suit on behalf
of John and Ruth Miles, who owned and operated Central Market dur-
ing the period of the alleged conspiracy. The district court consoli-
dated these cases for discovery purposes. Thereafter, in April 1997,
_________________________________________________________________
1 Marlinton purported to represent a class of similarly situated commer-
cial milk purchasers in western Virginia and a portion of southeastern
West Virginia.
2 During the relevant period, Flav-O-Rich and Valley of Virginia were
joint venture partners of Valley Rich.
3 See Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,
874 F. Supp. 721 (W.D. Va. 1994).
4 71 F.3d 119 (4th Cir. 1995).
5 On remand, the dairies renewed their motion for summary judgment,
arguing that the action was both time-barred and that Marlinton lacked
antitrust standing to bring suit because it could not prove that it pur-
chased a price-fixed product from any of the dairies during the relevant
period. The district court denied that motion.

                     4
the grocery stores deposed French, who by then claimed to have a
poor recollection of his price-fixing discussions with Meadow Gold
officials. However, French did testify that his discussions with
Meadow Gold officials had "no application" when: (1) Valley Rich
faced competition from a third dairy competitor; (2) one of Valley
Rich's partners, such as Flav-O-Rich, controlled the account; (3) there
was guaranteed pricing; (4) the milk was sold to a customer under a
private label; or (5) the milk was purchased from a distributor to
whom Valley Rich sold milk.

Two developments relevant to this appeal occurred after French's
deposition. First, the district court approved a classwide settlement
between the grocery stores and Meadow Gold and Borden in the
amount of $100,000. Therefore, in the present appeal, Valley Rich,
Flav-O-Rich, and Valley of Virginia are the only defendants remain-
ing in the case. Second, the non-settling dairies once again moved for
summary judgment, arguing that the grocery stores lacked antitrust
standing because the grocery stores could not prove that they were
injured by the price-fixing conspiracy. Although Marlinton and Cen-
tral Market could show that a price-fixing conspiracy existed in the
general geographic areas where they conducted business, the district
court held they could not demonstrate that the products they pur-
chased from the dairies were a subject of that conspiracy, i.e., Marlin-
ton and Central Market failed to produce sufficient evidence of injury
in fact. Therefore, the district court found that Marlinton and Central
Market lacked antitrust standing, and granted the dairies' motion for
summary judgment. This appeal followed.

II.

We review the district court's grant of summary judgment de novo.6
Although permissible inferences from the underlying facts are to be
drawn in the light most favorable to the non-moving party, we have
noted that, "those inferences must, in every case, fall within the range
of reasonable probability and not be so tenuous as to amount to specu-
lation or conjecture."7
_________________________________________________________________
6 See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
7 Thompson Everett, Inc. v. National Cable Adver., L.P., 57 F.3d 1317,
1323 (4th Cir. 1995) (citation omitted).

                    5
Section 4 of the Clayton Act ("§ 4"), which authorizes private
actions for treble damages, provides in pertinent part that, "any person
who shall be injured in his business or property by reason of anything
forbidden in the antitrust laws may sue . . . ." 8 The Supreme Court has
recognized that "[a] literal reading of the statute is broad enough to
encompass every harm that can be attributed directly or indirectly to
the consequences of an antitrust violation." 9 For this reason, "[t]he
federal courts . . . have not interpreted section 4 as expansively as its
literal language suggests."10 Rather, "[t]he voluminous case law on
[antitrust] standing to sue under section four reflects an effort by the
federal courts to narrow the scope of the broad statutory language so
as to prevent unfair and oppressive results." 11 "Judicial limitation of
the § 4 remedy . . . has proven to be less than an empirical judicial
science."12 "The Supreme Court, along with the lower federal courts,
has long struggled to develop a precise test to determine whether a
particular plaintiff is the proper party to bring an antitrust suit under
section 4 of the Clayton Act; in truth, `[t]he issue of antitrust standing
has become somewhat confused.'"13

Although federal courts have not developed a single precise test for
determining antitrust standing, they have gradually begun to conduct
§ 4 analysis in a uniform manner.14 In particular, courts have recog-
_________________________________________________________________
8 15 U.S.C.A. § 15(a) (West 1997) (emphasis added).
9 Associated Gen. Contractors of California, Inc. v. California State
Council of Carpenters, 459 U.S. 519, 529 (1983).
10 Todorov v. DCH Healthcare Auth. , 921 F.2d 1438, 1448 (11th Cir.
1991).
11 Midwest Communications, Inc. v. Minnesota Twins, Inc., 779 F.2d
444, 450 (8th Cir. 1985).
12 Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1081
(6th Cir. 1983).
13 Todorov, 921 F.2d at 1449 (footnote omitted) (quoting Local Beauty
Supply, Inc. v. Lamaur, Inc., 787 F.2d 1197, 1201 (7th Cir. 1986)).

In Associated General, 459 U.S. at 535-36, the Supreme Court likened
the struggle of federal judges to fashion a precise test to determine anti-
trust standing to "the struggle of common-law judges to articulate a pre-
cise definition of the concept of `proximate cause.'"
14 See Sports Racing Serv., Inc. v. Sports Car Club of Am., Inc., 131
F.3d 874, 882 (10th Cir. 1997) (stating that "[t]o maintain standing to

                     6
nized that an antitrust standing analysis should begin by examining
the plaintiff's alleged injury. As the Eighth Circuit has noted, in deter-
mining "whether a plaintiff has standing to sue under the antitrust
laws, the threshold inquiry must focus on the plaintiff's alleged
injury. This inquiry is potentially dispositive: if there is no showing
of injury . . . the plaintiff does not have a claim cognizable under the
antitrust laws."15 Indeed, we have noted that injury is the "crux" of
every private antitrust action.16 This threshold showing of injury,
_________________________________________________________________
bring an antitrust claim under § 4 . . . a plaintiff must show (1) an `anti-
trust injury;' and (2) a direct causal connection between that injury and
a defendant's violation of the antitrust laws"); Doctor's Hosp. of Jeffer-
son, Inc. v. Southeast Med. Alliance, Inc., 123 F.3d 301, 305 (5th Cir.
1997) (antitrust standing exists only if plaintiff shows: (1) injury in fact;
(2) antitrust injury; and (3) proper plaintiff status, "which assures that
other parties are not better situated to bring suit"); Barton & Pittinos, Inc.
v. Smithkline Beecham Corp., 118 F.3d 178, 182 (3d Cir. 1997) (explain-
ing that antitrust standing requires a showing of antitrust injury and
proper plaintiff status); Serfecz v. Jewel Food Stores, 67 F.3d 591, 596-
97 (7th Cir. 1995) ("[i]n order to maintain an antitrust action, plaintiffs
must establish that they (1) have suffered an antitrust injury and (2) are
proper plaintiffs to maintain an antitrust action . . . ."); Balaklaw v.
Lovell, 14 F.3d 793, 797 n.9 (2d Cir. 1994) (noting that courts have
developed a two-pronged test for determining antitrust standing: (1)
whether the plaintiff suffered an antitrust injury; and (2) an analysis of
other factors "largely relating to the directness and identifiability of the
plaintiff's injury"); Todorov, 921 F.2d at 1449 (prescribing a two-
pronged test for determining antitrust standing: (1) whether the plaintiff
has suffered an antitrust injury; and (2) whether the plaintiff is an "effi-
cient enforcer" of the antitrust laws); Adams v. Pan Am. World Airways,
Inc., 828 F.2d 24, 26 (D.C. Cir. 1987) (stating that the plaintiff must
show: (1) antitrust injury; and (2) proper plaintiff status).
15 Midwest Communications, 779 F.2d at 450 (footnote omitted). See
also Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir. 1997) (stating that
"the nature of the plaintiff's alleged injury is of `tremendous signifi-
cance' in determining whether a plaintiff has antitrust standing") (quot-
ing Bhan v. NME Hosp., Inc., 772 F.2d 1467, 1470 n.3 (9th Cir. 1985));
2 Phillip E. Areeda & Hebert Hovenkamp, Antitrust Law ¶ 363a, at 219
(rev. ed. 1995) (stating that "all courts demand a showing of injury-in-
fact `caused' by an antitrust violation").
16 See Windham v. American Brands, Inc., 565 F.2d 59, 66 (4th Cir.
1977).

                   7
sometimes labeled injury in fact,17 is satisfied if the plaintiff can pro-
duce sufficient evidence of an injury "proximately caused by the
defendants' conduct."18
_________________________________________________________________
17 See Areeda & Hovenkamp,supra, ¶ 360e, at 201 (stating that"we
usually speak of `causation' or `injury-in-fact' when focusing on the
presence or absence of actual injury caused by an alleged antitrust viola-
tion").

We recognize that a majority of courts begin their antitrust standing
analysis by determining whether a plaintiff has suffered an "antitrust
injury." We see no substantive difference between those courts which
look first to whether the plaintiff has produced sufficient evidence of
injury in fact and those which begin by examining whether the plaintiff
has suffered an "antitrust injury." "The key point is that a plaintiff is gen-
erally denied relief unless he proves each element[for standing]. The
Supreme Court has made this clear in requiring a plaintiff to establish
both proximately caused injury-in-fact and antitrust injury as `essential'
elements of the plaintiff's case." Id.,¶ 360e, at 200 (citing Associated
General, 459 U.S. at 539, 542-44; Blue Shield of Virginia v. McCready,
457 U.S. 465, 478-79 (1982)).

We do note, however, that there is a distinction between the two con-
cepts. On several occasions, the Supreme Court has declined to "equate
injury in fact with antitrust injury . . . [for] not every loss stemming from
a[n] [antitrust] violation counts as antitrust injury." Atlantic Richfield Co.
v. USA Petroleum Co., 495 U.S. 328, 339 n.8 (1990) (noting that the
Court declined to adopt such an approach in Brunswick Corp. v. Pueblo
Bowl-O-Mat, Inc., 429 U.S. 477 (1977), and Cargill, Inc. v. Monfort of
Colorado, Inc., 479 U.S. 104 (1986)). See also Areeda & Hovenkamp,
supra, ¶ 360e, at 201 n.53 (stating that"injury-in-fact is never defined to
include antitrust injury").
18 Doctor's Hosp., 123 F.3d at 305. See also Areeda & Hovenkamp,
supra, ¶ 360e, at 201 (stating that "[c]ausation, or injury-in-fact, requires
a showing that the injury of which the plaintiff complains actually
resulted from those acts of the defendant that violated the antitrust
laws"); M. Sean Royall, Disaggregation of Antitrust Damages, 65 Anti-
trust L.J. 311, 315 (1997) (noting that "in order to establish the fact of
injury, an antitrust plaintiff must demonstrate that it suffered `some dam-
age' as a causal result of the defendant's violation") (footnote omitted).

As courts and commentators have observed, antitrust standing involves
more than the constitutional standing requirement of"case or contro-
versy." "Harm to the antitrust plaintiff is sufficient to satisfy the constitu-

                     8
However, the Supreme Court has held that the showing of an injury
causally linked to a defendant's alleged illegal conduct, by itself, is
insufficient to maintain an action for treble damages.19 Rather, in
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 20 the Court held that an
antitrust plaintiff must show that the alleged injury is an "antitrust
injury," which it defined as:

         injury of the type the antitrust laws were intended to prevent
         and that flows from that which makes defendants' acts
         unlawful. The injury should reflect the anticompetitive
         effect either of the violation or of anticompetitive acts made
         possible by the violation. It should, in short, be"the type of
         loss that the claimed violations . . . would be likely to cause."21

The purpose of such a requirement is two-fold: "It ensures that the
harm claimed by the plaintiff corresponds to the rationale for finding
a violation of the antitrust laws . . . and it prevents losses that stem
from competition from supporting suits by private plaintiffs for either
damages or equitable relief."22 We recently applied Brunswick's "anti-
trust injury" requirement in Thompson Everett, Inc. v. National Cable
Advertising, L.P.,23 and concluded that the plaintiff, "if injured at all,
had not been injured by anything forbidden by the antitrust laws."24
_________________________________________________________________
tional requirement of injury in fact, but the court must make a further
determination whether the plaintiff is a proper party to bring a private
antitrust action." Associated General, 459 U.S. at 535 n.31; see also
Todorov, 921 F.2d at 1448 (stating that antitrust standing involves more
than the constitutional "case or controversy" requirement).
19 See Brunswick, 429 U.S. at 489.
20 429 U.S. 477 (1977).
21 Brunswick, 429 U.S. at 489 (quoting Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U.S. 100, 124 (1969)).
22 Atlantic Richfield, 495 U.S. at 342 (discussing purpose of the "anti-
trust injury" requirement).
23 57 F.3d 1317 (4th Cir. 1995).
24 See Thompson Everett, 57 F.3d at 1320. In Thompson Everett, we
stated that, "[a] private person may not . . . recover damages simply by
establishing that his injury was causally linked to an illegal presence in
the market. Rather, the damages sought must flow from that conduct
which is proscribed by the antitrust laws." Id. at 1325 (citations and
internal quotation marks omitted).

                   9
If a would-be antitrust claimant produces sufficient evidence of
"antitrust injury," the standing analysis continues. In Cargill, Inc. v.
Monfort, Inc.,25 the Supreme Court stated that, "[a] showing of anti-
trust injury is necessary, but not always sufficient, to establish stand-
ing under § 4, because a party may have suffered antitrust injury but
may not be a proper plaintiff under § 4 for other reasons."26 Identify-
ing who is a "proper plaintiff" under § 4 involves an analysis of "other
factors in addition to antitrust injury."27 These factors help determine
whether a plaintiff is an efficient enforcer of the antitrust laws, and
helps "exclude as plaintiffs those whose suits might `undermine[ ] the
effectiveness of treble-damages suits.'"28

In Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp.,29 we
identified certain factors, enunciated by the Supreme Court in Blue
Shield of Virginia v. McCready30 and Associated General Contractors
of California, Inc. v. California State Council of Carpenters,31 which
are "designed in combination to put principled limits on the literally
unbounded reach of the threefold damage remedy authorized by § 4
of the Clayton Act."32 These factors, which are to be assessed on a
case-by-case basis, include:

         the risk of duplicative recovery by multiple antitrust claim-
         ants; the extent to which the claim is based upon specula-
         tive, abstract, or impractical measures of damages; the
         causal connection between the alleged violation and the
         harm suffered; and the relationship of the injury alleged to
_________________________________________________________________
25 479 U.S. 104 (1986).

26 Cargill, 479 U.S. at 110 n.5.
27 Id. at 111 n.6 (citingAssociated General, 459 U.S. at 544-45;Illinois
Brick Co. v. Illinois, 431 U.S. 720 (1977)).
28 Adams, 828 F.2d at 26 (quoting Associated General, 459 U.S. at
545).
29 828 F.2d 211 (4th Cir. 1987).
30 457 U.S. 465 (1982).

31 459 U.S. 519 (1983).
32 Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d
211, 219 (4th Cir. 1987).

                     10
          the forms of injury about which Congress was concerned
          when it created a private remedy.33

In the instant case, the district court determined that Marlinton and
Central Market lacked antitrust standing because they failed to pro-
duce sufficient evidence that they purchased products affected by the
alleged price-fixing conspiracy, i.e., they failed to produce sufficient
evidence of injury in fact. Based on the following, we affirm.34

III.

Marlinton and Central Market base their claims entirely upon
French's testimony. They contend that French's testimony demon-
strates that between 1984 and 1987 Valley Rich and Meadow Gold
agreed on joint responses to changes in the regulated cost of raw milk
in the geographic areas where the grocery stores conducted business,
in violation of the Sherman Act. See 15 U.S.C.A. § 1.35

In support of their argument, the grocery stores point specifically
to the agreement that whenever there was a significant change in the
price of raw milk, French and Meadow Gold officials would meet to
decide on the timing and amount of published price changes of key
items, such as gallons, half-gallons, quarts, and pints of milk. Marlin-
ton and Central Market claim that they purchased milk affected by
these price changes. Therefore, the injury they assert is the increase
in prices that they and others paid over the price that would have been
charged in a competitive market.
_________________________________________________________________

33 Id. (citations omitted).

34 Because we agree that Marlinton and Central Market have failed to
satisfy the threshold requirement of demonstrating injury in fact, we need
not address whether they produced sufficient evidence of "antitrust
injury" and whether they are considered "proper plaintiffs" under § 4.

35 Section 1 of the Sherman Act provides in pertinent part that "[e]very
contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign
nations, is hereby declared to be illegal." 15 U.S.C.A. § 1 (West 1997).

                     11
A.

Central Market claims to have direct evidence that beginning in
December 1986 it purchased milk affected by the alleged price-fixing
conspiracy. On September 1, 1986, the regulated cost of raw milk in
the relevant portions of southern West Virginia and southwestern Vir-
ginia rose $.60 per hundred weight. French testified that he and a
Meadow Gold official agreed on a joint response to this increase. At
the time of this joint response, Central Market was served by Alexan-
der, Inc. ("Alexander"), one of Valley Rich's distributors. Central
Market does not contend that Alexander was a party to this price-
fixing agreement, and indeed, French stated in his deposition that his
price-fixing discussions with Meadow Gold officials had "no applica-
tion" when an independent distributor, such as Alexander, controlled
the pricing.

However, on December 12, 1986, Valley Rich acquired Alexander,
and as a result, Central Market began purchasing milk directly from
Valley Rich. Because the regulated cost of raw milk did not change
again until 1987, Central Market claims that the milk it began pur-
chasing from Valley Rich in December 1986 was affected by the
alleged price-fixing conspiracy. We disagree.

As an initial matter, we will assume for purposes of our analysis
that the alleged conspiracy existed through 1987, as Marlinton and
Central Market contend. We note, however, that the district court
determined that the latest evidence of price-fixing was a discussion
between French and a Meadow Gold official concerning the Septem-
ber 1, 1986 regulated price increase of raw milk, and that there was
no evidence "of any collusion in prices in 1987."36 Additionally, in
analyzing Central Market's claim, the district court found that the evi-
dence was "suggestive of the absence, not presence, of collusion
between Valley Rich and Meadow Gold"37 because the price Central
Market paid for milk did not change when Valley Rich acquired
Alexander.
_________________________________________________________________
36 J.A. 354 n.4.

37 J.A. 353.

                    12
We are mindful that, in order to prevail, "a private plaintiff must
establish both that (1) he has standing and (2) the defendant has vio-
lated the antitrust laws. Once it appears, whether early or late in the
litigation, that either requirement is lacking, the suit must be
dismissed."38 In the instant case, if there is no evidence that the
alleged conspiracy continued to exist in December 1986, then in real-
ity Central Market's claim fails on its merits. 39 However, we limit our
discussion to antitrust standing, and in so doing, we will "assume the
existence of a violation and then [determine] whether the . . . standing
elements are shown."40 Applying this test, even assuming the alleged
conspiracy existed through 1987, we find that Central Market has not
produced sufficient evidence that it purchased price-fixed products.

As noted, Marlinton and Central Market allege that Valley Rich
and Meadow Gold agreed on joint responses to changes in the regu-
lated cost of raw milk. Such joint responses would have resulted in
joint increases or decreases in the dairies' milk prices. However, the
pricing data for Central Market during the period it was allegedly
injured demonstrates that Valley Rich's and Meadow Gold's prices to
Central Market were not mutual. When Valley Rich acquired Alexan-
der's account in December 1986, Valley Rich continued to charge
Central Market the same prices as had Alexander. These prices were
substantially lower than Meadow Gold's during this time. In addition,
_________________________________________________________________
38 Areeda & Hovenkamp, supra , ¶ 360f, at 202.
39 See Todorov, 921 F.2d at 1459 (stating that "[b]ecause we find no
conspiracy, [the plaintiff's] section 1 claim must fail").

Commentators have stated that, "[a]n increasing number of courts,
unfortunately, deny standing when they really mean that no violation has
occurred." Areeda & Hovenkamp, supra,¶ 360f, at 203. But see Levine
v. Central Fla. Med. Affiliates, Inc. 72 F.3d 1538, 1545 (11th Cir.)
(agreeing with Areeda & Hovenkamp and deciding antitrust case on mer-
its rather than standing), cert. denied, 117 S. Ct. 75 (1996); Sicor Ltd. v.
Cetus Corp., 51 F.3d 848, 855 n.10 (9th Cir. 1995) (deciding not to reach
appellants' standing contention because there was no proof of injury to
competition); Todorov, 921 F.2d at 1455 (addressing the merits of a § 1
claim even though the plaintiff lacked antitrust standing); McCormack v.
NCAA, 845 F.2d 1338, 1343 (5th Cir. 1988) (assuming standing and
addressing antitrust claim on its merits).
40 Areeda & Hovenkamp, supra , ¶ 360f, at 204.

                    13
while Valley Rich did not change its gallon price for milk sold to
Central Market until July 1987, Meadow Gold changed Central Mar-
ket's gallon price two times during this same period.

Even when there were changes in the regulated cost of raw milk,
which the grocery stores contend was the "triggering event" for price
increases, "the movement in milk prices charged by Valley Rich and
Meadow Gold to Central Market [was] anything but mutual."41 For
example, when the regulated cost of raw milk increased effective Jan-
uary 1, 1987, Meadow Gold's gallon price to Central Market
increased four cents, while Valley Rich's price did not increase. Simi-
larly, when Meadow Gold, in response to a May 1987 regulated raw
milk change, lowered its price on half-gallons and quarts, Valley
Rich's prices remained unchanged.

As the Supreme Court has stated, "antitrust law limits the range of
permissible inferences from ambiguous evidence in a§ 1 case."42 In
light of the pricing data, we cannot agree with Central Market's con-
tention that it has produced sufficient evidence that could support an
inference that it was injured by its purchases of milk from Valley
Rich. Because Central Market has not produced sufficient evidence
that it purchased products that were affected by the alleged price-
fixing conspiracy, it has failed to satisfy the threshold requirement of
demonstrating injury in fact, and therefore, lacks antitrust standing.

B.

Both Marlinton and Central Market make the additional argument
that they have established a circumstantial evidentiary basis to infer
that they were injured by their purchases from Meadow Gold through-
out the 1984-87 conspiracy period. Specifically, Marlinton and Cen-
tral Market contend that French's testimony supports the existence of
a general conspiracy whose effect must flow through the pricing sys-
tem of the two dairies. We disagree.
_________________________________________________________________
41 J.A. 353.

42 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588
(1986).

                     14
In his deposition testimony in this case, which focused upon
wholesale price fixing by the dairies, French specifically testified that
his discussions had "no application" when: (1) Valley Rich faced
competition from a third dairy competitor; (2) one of Valley Rich's
partners controlled the account; (3) there was guaranteed pricing; (4)
the milk was sold to a customer under a private label; or (5) the milk
was purchased from a distributor to whom Valley Rich sold milk.
When asked specifically about Marlinton and Central Market, French
testified that: (1) his discussions had "no application" to Marlinton
because a third dairy, Broughton's Foods, was present in the market
during the relevant period and set Marlinton's prices; and (2) his dis-
cussions had "no application" to Central Market because Alexander,
an independent distributor, controlled Central Market's prices.

French's deposition testimony is significant for several reasons.
First, it reveals the narrow scope of his price-fixing discussions and
the fact that the alleged conspiracy did not have the all-encompassing
effects which the grocery stores urge. Second, French's deposition
was the first time that he testified in great detail as to the alleged con-
spiracy to fix prices in the wholesale market, as opposed to the school
milk market at issue in the previous criminal proceedings. Finally,
French's deposition statements are consistent with his trial testimony
that "all bets were off" when a third party competitor was involved.

To reiterate the Supreme Court's instruction - "antitrust law limits
the range of permissible inferences from ambiguous evidence in a § 1
case."43 Because French's testimony is the grocery stores' only evi-
dence indicating how Meadow Gold handled its pricing, we believe
that Marlinton and Central Market have failed to establish a circum-
stantial evidentiary basis to infer that they were injured by their pur-
chases from Meadow Gold.

IV.

Based upon the foregoing, we hold that Marlinton and Central
Market have failed to produce sufficient evidence that the products
they purchased were affected by the alleged price-fixing conspiracy.
_________________________________________________________________

43 Matsushita Elec., 475 U.S. at 588.

                     15
As such, they have failed to satisfy the threshold requirement of dem-
onstrating injury in fact, and therefore, lack antitrust standing.
Accordingly, the district court's grant of summary judgment in favor
of the dairy companies is affirmed.

AFFIRMED

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