                        United States Court of Appeals,

                               Eleventh Circuit.

                                 No. 96-6080.

FLORIDA SEED COMPANY, INC., a corporation, Frit Industries, Inc.,
a corporation, Plaintiffs-Counter-Defendants-Appellants,

                                        v.

   MONSANTO COMPANY, a corporation, Defendant-Counter-Claimant-
Appellee.

                                Feb. 18, 1997.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-94-D-514-N), Ira De Ment, Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior
District Judge.

     DUBINA, Circuit Judge:

     Plaintiffs/Appellants Florida Seed Company, Inc. ("Florida

Seed") and Frit Industries ("Frit") appeal the district court's

judgment        dismissing     their     Sherman    Act     claim    against

Defendant/Appellee Monsanto Company ("Monsanto").               The district

court    held    that    Plaintiffs    lacked   standing   to   assert   their

antitrust claims.         We affirm.

                                 I. BACKGROUND

     This case arises out of Monsanto's 1993 acquisition of the

Chevron Corporation's Ortho lawn and garden business ("Ortho").

Ortho markets some 200 lawn and garden products.            Florida Seed is

engaged in wholesale distribution and marketing of lawn and garden

products.       Prior to Monsanto's acquisition of Ortho, Florida Seed

handled the product lines of both Monsanto and Ortho.


     *
      Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
     The Federal Trade Commission ("FTC") believed that Monsanto's

acquisition of Ortho created competitive issues as to one of

Ortho's   products,     a    nonselective     herbicide   called    "Kleenup."

Kleenup is based on glyphosate, a patented ingredient that Ortho

purchases from Monsanto.             Monsanto also uses glyphosate in its

nonselective herbicide called "Roundup."             Monsanto entered into a

consent decree with the FTC agreeing to divest to a suitable

purchaser the trademark "Kleenup."               The agreement also provided

that Monsanto would sell a significant volume of glyphosate, plus

manufacturing       know-how    and    certain    regulatory   approvals   and

filings, on a time schedule acceptable to the FTC.                 The consent

decree does not contain any reference to the distribution channels

for Kleenup.

     After acquiring Ortho, Monsanto notified Florida Seed that its

distributorship agreement for Ortho products would not be renewed

following its expiration.            Monsanto stated that the decision was

part of a broader strategic decision to use fewer distributors.

Following expiration of the distributorship relationship, Florida

Seed refused to pay Monsanto certain amounts owed.                    Monsanto

therefore demanded payment from Frit, which had guaranteed Florida

Seed's debt. Florida Seed and Frit then filed this antitrust suit.

     Plaintiffs allege that Monsanto engaged in monopolization and

attempted monopolization of the residential nonselective herbicide

market in violation of Section 2 of the Sherman Act by its

acquisition    of    Ortho     and    its   termination   of   Florida   Seed's
distributorship.1      Plaintiffs contend that Monsanto's decision was

aimed at damaging the value of Kleenup prior to its divestiture

under the FTC consent decree.

                                   II. ISSUE

     Whether the district court properly dismissed Plaintiffs'

Sherman Act claim because they lacked standing to assert such

claim.

                          III. STANDARD OF REVIEW

         "The question of standing is one of law."              Todorov v. DCH

Healthcare Auth.,         921     F.2d    1438,     1448     (11th    Cir.1991).

Accordingly, we review      de novo the district court's judgment of

dismissal.    DeLong Equip. Co. v. Washington Mills Electro Minerals

Corp., 990 F.2d 1186, 1194 (11th Cir.), cert. denied, 510 U.S.

1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993).

                                IV. DISCUSSION

         A private plaintiff seeking damages under the antitrust laws

must establish standing to sue.           Antitrust standing requires more

than the "injury in fact" and the "case or controversy" required by

Article III of the Constitution.                 Todorov, 921 F.2d at 1448.

Rather, the doctrine of antitrust standing reflects prudential

concerns    and   is   designed   to     avoid   burdening    the    courts   with

speculative or remote claims.              Associated Gen. Contractors of

California, Inc. v. California State Council of Carpenters, 459

U.S. 519, 545, 103 S.Ct. 897, 912, 74 L.Ed.2d 723 (1983).               See also

     1
      Plaintiffs also brought a claim under the Clayton Act,
which the district court dismissed. Plaintiffs do not contest
this ruling on appeal. Moreover, Plaintiffs asserted various
claims under state law that were not ruled on by the district
court and have been stayed pending this appeal.
Todorov, 921 F.2d at 1448 ("Antitrust standing is best understood

in a general sense as a search for the proper plaintiff to enforce

the antitrust laws.");           PHILIP AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶
334.2 at 409 (1993 Supp.).

      We follow a two-pronged approach in deciding whether a

plaintiff    has       antitrust    standing.         Municipal    Utils.     Bd.    of

Albertville       v.   Alabama     Power    Co.,    934   F.2d   1493,   1499   (11th

Cir.1991).        First,    the    plaintiff       must   establish   that    it    has

suffered "antitrust injury."               Id.     As the Supreme Court has made

clear, to have standing antitrust plaintiffs "must prove more than

injury casually linked to an illegal presence in the market [i.e.,

but for causation].         Plaintiffs must prove antitrust injury, which

is to say injury of the type that the antitrust laws were intended

to prevent and that flows from that which makes the defendants'

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

U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977).

      Second, the plaintiff must establish that it is an efficient

enforcer     of    the    antitrust        laws.      Municipal    Utils.    Bd.     of

Albertville, 934 F.2d at 1499. This determination is predicated on

the "target area test."             Austin v. Blue Cross & Blue Shield of

Ala., 903 F.2d 1385, 1388 (11th Cir.1990).                  The target area test

requires that an antitrust plaintiff both "prove that he is within

that sector of the economy endangered by a breakdown of competitive

conditions in a particular industry" and that he is "the target

against which anticompetitive activity is directed."                         National

Indep. Theatre Exhibitors, Inc. v. Buena Vista Distribution Co.,

748 F.2d 602, 608 (11th Cir.1984), cert. denied sub nom., Patterson
v. Buena Vista Distribution Co., 474 U.S. 1013, 106 S.Ct. 544, 88

L.Ed.2d 473 (1985).       Basically, a plaintiff must show that it is a

customer     or   competitor    in     the   relevant      antitrust       market.

Associated General Contractors, 459 U.S. at 539, 103 S.Ct. at 909.

                         A. Standing of Florida Seed

      Plaintiffs' complaint relates to Florida Seed's inability to

purchase nonselective herbicides from Monsanto, not to an increase

in prices or to a lessening of competition.              At one time, Florida

Seed was both a customer and a distributor of Kleenup.                       Now,

Florida Seed is neither.        In fact, Florida Seed admits that the

"termination of [its] distributorship is at the heart of this

case." Plaintiffs-Appellants Brief at 5. Nevertheless, Plaintiffs

argue that they may maintain an antitrust action based on the

terminated    distributorship        because,      in   their    view,   Monsanto

violated the Sherman Act "by dealing with its own distributor in

furtherance of an anticompetitive purpose."                     Id. at 26.      We

disagree.

     The Supreme Court pointed out in              Brunswick Corp. v. Pueblo

Bowl-o-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701

(1977), that "[e]very merger of two existing entities into one,

whether    lawful   or    unlawful,    has   the    potential     for    producing

economic readjustments that adversely affect some persons.                    But

Congress has not condemned mergers on that account;                        it has

condemned them only when they may produce anticompetitive effects."

Id. at 487, 97 S.Ct. at 696.          "The objective in preventing certain

mergers is ... to prevent [the acquiring party] from obtaining

sufficient market power to raise prices...."                    Tugboat, Inc. v.
Mobile Towing Co., 534 F.2d 1172, 1176 (5th Cir.1976).2   Obviously,

mergers often have an adverse impact on those employees, suppliers,

or distributors made redundant by a merger.      In many instances,

those displaced by a merger suffer an economic loss. However, this

loss is not an antitrust injury because it does not flow from that

which makes a merger unlawful.     Injuries like that suffered by

Florida Seed do not "coincide[ ] with the public detriment tending

to result from the alleged violation."   Todorov, 921 F.2d at 1450;

see also Kenneth L. Glazer and Abbot B. Lipky, Jr., Unilateral

Refusals to Deal Under Section 2 of the Sherman Act, 63 ANTIT. L.J.

749, 787-90 (1995) (suggesting "per se legality" for manufacturer's

efforts to vertically integrate distribution of its own products).

     Relying on Brunswick, courts have consistently denied standing

to distributors who were terminated, or whose contracts were not

renewed, following a merger.     See Atlantic Richfield Co. v. USA

Petroleum Co., 495 U.S. 328, 345, 110 S.Ct. 1884, 1895, 109 L.Ed.2d

333 (1990);   G.K.A. Beverage Corp. v. Honickman, 55 F.3d 762 (2nd

Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 381, 133 L.Ed.2d 304

(1995);   Sierra Wine & Liquor Co. v. Heublein, Inc., 626 F.2d 129

(9th Cir.1980);   John Lenore & Co. v. Olympia Brewing Co., 550 F.2d

495 (9th Cir.1977); Universal Brands, Inc. v. Philip Morris, Inc.,

546 F.2d 30 (5th Cir.1977);    Return on Inv. Systems v. TransLogic

Corp., 702 F.Supp. 677 (N.D.Ill.1988);       Bryant Heating & Air

Conditioning Corp., Inc. v. Carrier Corp., 597 F.Supp. 1045, 1051-


     2
      In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc), the Eleventh Circuit Court of Appeals
adopted as binding precedent the decisions of the former Fifth
Circuit issued before October 1, 1981.
53 (S.D.Fla.1984);     A.G.S. Elecs., Ltd. v. B.S.R. (U.S.A.), Ltd.,

460 F.Supp. 707, 710 (S.D.N.Y.),              aff'd,   591   F.2d   1329   (2nd

Cir.1978). The teaching of these cases is clear: distributors who

are terminated following a merger suffer no antitrust injury.

Plaintiffs    have   not   shown   why   we   should   treat   Florida     Seed

differently.     Florida Seed complains not about higher prices or

about injury to competition, but about injury to itself.                   Thus,

Florida Seed has suffered no antitrust injury.3

         Because we hold that Florida Seed has suffered no antitrust

injury, we need not address whether Florida Seed would be an

efficient enforcer of the antitrust laws as required by the second

prong of our standing analysis.          However, it is clear from the

     3
      Two leading antitrust commentators have addressed whether
those displaced by a merger have standing to sue under the
antitrust laws.

             Many mergers have been challenged by suppliers
             (including dealers, franchisees, and employees
             providing the merging firms with distribution and other
             services) displaced as a result of the merger.
             Injury-in-fact may be doubtful when equivalent
             opportunities are available elsewhere. If other
             opportunities do not exist [as alleged by Florida
             Seed], displaced suppliers made redundant by a merger
             suffer actual losses but not antitrust injury, for the
             rationale for condemning a merger lies in its potential
             for supracompetitive pricing, not in its potential for
             cost savings and other efficiencies. A merger that
             actually brings about supracompetitive prices and
             diminished output reduces the need for inputs and can
             therefore injure suppliers. Although such an injury
             connects more closely with the rationale for finding a
             violation, it is still not antitrust injury because it
             is neither the means by which output is restricted nor
             the direct concern of antitrust rules protecting
             product market competition.

     PHILIP AREEDA & HERBERT HOVENKAMP, Antitrust Law ¶ 381 (rev. ed.
     1995) (emphasis added). Professors Areeda and Hovenkamp
     support our view that Florida Seed has suffered no antitrust
     injury from Monsanto's acquisition of Ortho.
record that Florida Seed is not an efficient enforcer.             Florida

Seed cannot allege any nexus between the injury it has suffered and

a lessening of competition in the United States.       In this case, if

the injury the antitrust laws address—the power to raise prices and

reduce    output—has   occurred,   the   proper   parties   to   challenge

Monsanto's acquisition of Ortho are direct purchasers in the

nonselective herbicide market.

                          B. Standing of Frit

        Frit is not a customer or competitor in any relevant market,

but merely the sole shareholder of Florida Seed and a guarantor of

its debt.     Plaintiffs allege injury to Florida Seed only, not to

Frit.     The only injuries allegedly suffered by Frit are as a

shareholder and guarantor.     Thus, Frit has suffered no antitrust

injury.     Courts uniformly have held that stockholders, even sole

stockholders such as Frit, lack standing to bring an antitrust suit

for injury to their corporations.         See, e.g., Lovett v. General

Motors Corp., 975 F.2d 518 (8th Cir.1992), rev'd in part, 998 F.2d

575 (1993), cert. denied, 510 U.S. 1113, 114 S.Ct. 1058, 127

L.Ed.2d 378 (1994); Rand v. Anaconda-Ericsson, Inc., 794 F.2d 843,

849 (2nd Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 519, 93

L.Ed.2d 582 (1986);    Bubar v. Ampco Foods, Inc., 752 F.2d 445, 450

(9th Cir.), cert. denied, 472 U.S. 1018, 105 S.Ct. 3481, 87 L.Ed.2d

616 (1985);     Midwestern Waffles, Inc. v. Waffle House, Inc., 734

F.2d 705, 710 (11th Cir.1984);           Harris v. Shell Oil Co., 371

F.Supp. 376, 377 (M.D.Ala.1974). We agree with the foregoing cases

and hold that Frit has suffered no antitrust injury.        Accordingly,

the district court properly concluded that Frit did not have
standing     under     the    antitrust   laws     to   challenge    Monsanto's

acquisition of Ortho.

                                 V. CONCLUSION

     In a recent Seventh Circuit case, Judge Easterbrook wrote that

"this is a mundane commercial case, in which a buyer has used the

antitrust laws to postpone paying its debts."               Digital Equipment

Corp. v. Unig Digital Technologies, Inc., 73 F.3d 756, 763 (7th

Cir.1996).      The same is true here.           Simply put, this is not an

antitrust case but rather a breach of contract case.                Plaintiffs'

pursuit    of   this   case    has   forestalled    for   almost    three   years

Monsanto's efforts to collect the debt owed it by Plaintiffs.                 In

the words of Judge Easterbrook, the "[t]ime for payment is at

hand."    Id.

     We affirm the district court's judgment of dismissal.

     AFFIRMED.
