
USCA1 Opinion

	




          March 1, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1711                              SAS OF PUERTO RICO, INC.,                                Plaintiff, Appellant,                                          v.                            PUERTO RICO TELEPHONE COMPANY,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET             The opinion of this Court issued on February 21, 1995, is amended        as follows:             On page 8, line 18, the word "pendant" should be "supplemental".             On  page 10, note 2,  the footnote should  read:  "Illinois Brick                                                                ______________        Co. v. Illinois, 431 U.S.  720 (1977).  Compare Hanover Shoe,  Inc. v.        ___    ________                         _______ ___________________        United Shoe Mach. Corp., 392 U.S. 481 (1968).".        _______________________             Page  10, note  4,  line  two  of  note,  "Brunswich"  should  be        "Brunswick".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1711                              SAS OF PUERTO RICO, INC.,                                Plaintiff, Appellant,                                          v.                            PUERTO RICO TELEPHONE COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                                Boudin, Circuit Judge,                                        _____________                          and Boyle,* Senior District Judge.                                      _____________________                                 ____________________            Laurence  Z.  Shiekman  with  whom  M.  Duncan  Grant,  Frank   M.            ______________________              _________________   __________        Rapoport,  Michael A. Ceramella and Pepper, Hamilton & Scheetz were on        ________   ____________________     __________________________        brief for appellant.            Philip J. Mause with whom Joaquin A. Marquez and Drinker Biddle  &            _______________           __________________     _________________        Reath were on brief for appellee.        _____                                 ____________________                                  February 21, 1995                                 ____________________        ____________________        *Of the District of Rhode Island, sitting by designation.                 BOUDIN,  Circuit  Judge.    SAS  of  Puerto  Rico,  Inc.                          ______________            ("SAS"), brought an antitrust  suit in federal district court            in Delaware  against Puerto Rico  Telephone Company ("PRTC").            After  the  suit was  transferred  to the  district  court in            Puerto  Rico, the  district  court granted  PRTC's motion  to            dismiss  on the  ground  that SAS  did not  adequately assert            "antitrust injury."  We agree and affirm.                                          I.                 In  April  1993  SAS  filed its  original  complaint  in            Delaware district court.   After the case was  transferred to            Puerto Rico, the site of most of the events that underlie the            case,  an amended  complaint was  filed.   Since the  amended            complaint was later dismissed on the pleadings, we accept the            allegations as true  for purposes of this  appeal.  Berkovitz                                                                _________            v. United States, 486 U.S. 531, 540 (1988).  What  follows is               _____________            SAS's version  of the facts, supplemented  by information not            reasonably disputable.                 PRTC is  a Delaware  corporation that provides  about 90            percent  of  the telephone  service  within  Puerto Rico  and            operates  over 95 percent of  the pay phones  in Puerto Rico.            Although once a subsidiary  of ITT, all of the  stock of PRTC            was  acquired about 20 years ago by the Puerto Rico Telephone            Authority   ("the  Authority"),  a   public  corporation  and            government   instrumentality  of   the  Commonwealth.     The            Authority   also  owns   the   stock  of   the  Puerto   Rico                                         -2-                                         -2-            Communications Corporation ("PRCC") which  provides telephone            service and operates pay phones in those areas of Puerto Rico            not served by PRTC.  (PRTC's brief says that it and PRCC have            now merged.)                 Long distance  service between Puerto Rico  and the U.S.            mainland was  for some years  provided by  an ITT  subsidiary            interconnecting on the  mainland with AT&T, but in the 1980's            the  Federal   Communications   Commission  took   steps   to            facilitate  competition  for   Puerto  Rico's  long  distance            traffic.1    To  participate  in this  new  environment,  the            Authority  created yet another wholly owned subsidiary called            Telfonica Larga Distancia ("TLD").  In 1990, the Commonwealth            adopted  legislation designed  to facilitate  the Authority's            sale of TLD's stock.                 After its formation, TLD  rapidly became the carrier for            about 80 percent  of the long  distance telephone calls  made            from pay phones in  Puerto Rico.  Although the  mechanics are            not described in the complaint, they can readily be inferred.            Pay phones are  commonly located on  streets or other  public            property  by  the local  telephone  company  or  they may  be            located  on  private property  such as  in  a store  or hotel            lobby;  in the  latter  instance, the  instrument is  usually                                            ____________________                 1E.g., All America Cables & Radio, Inc. v. FCC, 736 F.2d                  ____  ________________________________    ___            752 (D.C.  Cir. 1984); Common  Carrier Facilities Off  of the                                   ______________________________________            Island  of Puerto Rico,  2 F.C.C.R. 6600  (1987), on recons.,            ______________________                            __________            FCC 92-529 (1992).                                         -3-                                         -3-            (although  not  always)  furnished  by  the  local  telephone            company by arrangement with the property owner.                 As  long distance  competition  developed over  the past            three  decades,  telephone subscribers  have  ordinarily been            able to select the long  distance carrier through which their            calls  would be  routed.   A small  percentage of  modern pay            phones  make it  easy for  the  caller to  select his  or her            preferred long  distance carrier by pushing  a single button;            but  in  many  pay  phones, a  pre-designated  long  distance            carrier automatically receives the traffic unless the  caller            "dials"  a complex access code to reach another long distance            carrier.                   According to  the complaint, in Puerto Rico  many of the            pay phones used (or  were connected through) older technology            that prevented a caller from using a long  distance carrier--            other  than the pre-designated  one--except by the cumbersome            means of calling  an operator and  asking to  be routed to  a            different  long distance carrier.  The pre-designated carrier            for a pay phone  is normally selected by the  local telephone            company or the premises owner.   In short order TLD began  to            carry  most of the long  distance calls from  Puerto Rico pay            phones.                 SAS was formed as  a Puerto Rico corporation in  1991 in            the  hope  of  contracting  with  PRTC  and  PRCC to  upgrade            equipment and  maintain service at Puerto  Rico's pay phones.                                         -4-                                         -4-            The  complaint explains  that "[t]he  principals of  SAS were            experienced in the installation and operation of `intelligent            paystations'  and,  in  fact,  had  successfully  assisted in            improving the pay  phone system in  the United States  Virgin            Islands."   Such intelligent  pay phones, embodying  what are            effectively  computers,  can  provide various  advantages  to            callers  (e.g., speed  dialing)  and to  the local  telephone                      ____            company (e.g., remote diagnosis of failure).                     ____                 The intelligent pay phones  to be supplied by SAS  would            also increase competition among  long distance carriers.  SAS            expected  to negotiate with  such carriers, as  agent for the            local  telephone  company  or premises  owner,  presumably to            secure the  most favorable  terms  for the  position of  pre-            assigned long distance carrier at the pay phone.  In addition            the intelligent pay phone would greatly simplify the  task of            the caller who desired to route his or her own call through a            long distance carrier other than the pre-assigned carrier.                 On  January 31, 1992, after "substantial negotiation and            investment  of considerable  time and  money," SAS  signed an            "agency agreement"  with both  PRTC and PRCC  to provide  and            maintain  pay telephones  in Puerto  Rico.   As to  PRTC, the            agreement  provided for SAS to act as PRTC's agent to upgrade            a  minimum of  1,500  of PRTC's  pay  phones at  tourist  and            business centers.   The agreement included  authority for SAS            to negotiate  with  the  premises owner  to  alter  the  pre-                                         -5-                                         -5-            designated  long  distance carrier  for  the  intelligent pay            phones to  be installed on the premises.  SAS hoped to obtain            better terms from such carriers through competition.                   Ten days  after the January 31  agreement, the Authority            reached  an   agreement  with   Telefonica  de  Espana,   the            international  subsidiary of  Spain's  telephone company,  to            sell it control of TLD.  Part  of the value of TLD lay in its            position as the pre-designated  long distance carrier at most            of Puerto Rico's pay phones.  This position was threatened by            the  SAS-PRTC agreement.   According  to the  complaint, PRTC            thereafter "engaged in a course of conduct designed to delay,            disrupt and derail the  installation of the 1,500 intelligent            paystations in Puerto Rico."                 The  complaint does  not  describe  this conduct  beyond            asserting generally that PRTC failed to carry out unspecified            obligations under  the contract  while making new  demands on            SAS.   On June 18,  1992, SAS  agreed with PRTC  and PRCC  to            modifications   in  the   original   agreement  and   shortly            thereafter PRTC told SAS  to proceed with installation.   SAS            then obtained a $500,000 line of credit and began to purchase            the new pay phone  equipment.  In October 1992  PRTC told SAS            to stop operations.  More negotiations followed and a  second            contract revision followed, but after further steps by SAS to            implement the program, SAS was again instructed to halt work.                                         -6-                                         -6-                 In  April  1993, SAS  began the  present lawsuit  in the            district  court in Delaware,  PRTC's state  of incorporation.            The complaint  (as later  amended) says  that after  the case            began, PRTC in late 1993 or early 1994 sought bids to replace            some  or all  of the  pay phones  that SAS had  contracted to            replace; PRTC  later  accepted  one  of the  bids;  and  PRTC            thereafter contracted for  pay phones with  some of the  same            manufacturers or suppliers who had  agreed to supply them  to            SAS when the latter  was seeking to fulfill its  own contract            with PRTC.                 The complaint  alleges, in its first  three counts, that            the acts  described constituted monopolization  and attempted            monopolization  of two  different markets  and conspiracy  to            restrain trade in the  same markets, all in violation  of the            Sherman Act.   15 U.S.C.     1-2.   PRTC was alleged  to have            monopoly  power in "the market for the provision of pay phone            service in Puerto Rico"; and PRTC, PRCC  and TLD as a "single            economic entity"  were alleged  to have  such  power in  "the            market for the  provision of long  distance service from  pay            phones in Puerto Rico."                   In the  antitrust conspiracy count Telefonica  de Espana            was  named as a co-conspirator.   In addition  to the conduct            already described,  SAS alleged that PRTC  had discussed with            Telefonica de Espana the impact that the SAS upgrading of pay            phones would have and  that PRTC had impeded and  delayed the                                         -7-                                         -7-            agreement with SAS in order to avoid an adverse impact on the            value of TLD.                 Additional  counts of  the  complaint charged  PRTC with            fraud, breach  of contract,  and  tortious interference  with            contracts  between  SAS  and   makers  or  suppliers  of  pay            stations.   On  the  antitrust counts,  the complaint  sought            injunctive relief, treble damages and attorney's fees; on the            non-federal  counts,  it asked  for compensatory  damages and            attorney's fees.  In the injunctive relief request, SAS asked            that PRTC be required to complete its contract with SAS.                 After the transfer to Puerto Rico, SAS of Puerto Rico v.                                                    __________________            Puerto  Rico Tel. Co., 833 F.  Supp. 450 (D. Del. 1993), PRTC            _____________________            moved to dismiss the  antitrust claims on the ground  that it            was protected  by the  state action  doctrine, see  Parker v.                                                           ___  ______            Brown,  317 U.S.  341  (1943), or,  in the  alternative, that            _____            antitrust  injury had not been  alleged.  PRTC also contended            that  it was  shielded  from damage  liability for  antitrust            violations by  the Local Government Antitrust Act of 1984, 15            U.S.C.     34-36.   In an  opinion and  order entered May  9,            1994,  the  district  court  rejected the  state  action  and            statutory arguments  but dismissed  the antitrust  claims for            lack of antitrust injury.                 Having  found that SAS had failed to state a claim under            the antitrust  laws, the district court  declined to exercise            supplemental jurisdiction  under state  law as to  the fraud,                                         -8-                                         -8-            contract and tortious interference  claims.  See 28  U.S.C.                                                           ___            1367.   An order  was entered dismissing  the complaint,  and            this  appeal followed.  Because we agree with the position on            antitrust injury  taken in  the district court's  opinion, we            confine our discussion to that issue.                                         -9-                                         -9-                                         II.                 Despite  its  statutory  framework,  antitrust   law  is            largely  the  handiwork  of  federal  judges  and   antitrust            enforcers, and the resulting case law offers much to  admire.            The  corner of antitrust law with which we are concerned here            is  an exception.    As one  commentator  has observed,  "the            courts have never  been able to create an intelligible theory            of private antitrust standing capable of being applied across            the full  range of potential  cases."  H.  Hovenkamp, Federal                                                                  _______            Antitrust  Policy   543  (1994).     Cf.  Associated  General            _________________                    ___  ___________________            Contractors v. Carpenters, 459 U.S. 519, 536 (1983) (no black            ___________    __________            letter rule).                   The underlying  problem is not unique  to antitrust law.            Common law tort claims have  been limited by various slippery            rubrics  (e.g.,  proximate  cause),  so   that  not  everyone                      ____            remotely  harmed by a violation is entitled to recover.  From            the outset, federal antitrust courts have devised counterpart            limitations under various headings (e.g., standing, antitrust                                                ____            injury)  and through  a variety  of subordinate  rules (e.g.,                                                                    ____            restrictions   on   suits   by   stockholders   or   indirect            purchasers),  metaphors  (e.g.,  "inextricably  intertwined,"                                      ____            "target area"), abstractions  (direct versus remote  injury),            and multi-factor tests.  See Associated  General Contractors,                                     ___ _______________________________            459 U.S. 519;  Sullivan v.  Tagliabue, 25 F.3d  43 (1st  Cir.                           ________     _________            1994).                                           -10-                                         -10-                 One reason for the confusion in  antitrust cases is that            courts  sometimes have difficulty,  well justified in certain            cases, in separating standing or antitrust injury issues from            two other  problems:   whether  there has  been an  antitrust            violation at all, and whether  the plaintiff has suffered any            injury  causally (in  the  "but for"  sense)  related to  the            challenged conduct.  Standing  or antitrust injury involves a            different concept:    even where  a  violation exists  and  a            plaintiff has  been damaged by it, the courts--for reasons of            prudence--have sought  to limit the right  of private parties            to sue for damages or injunctions.                 The prudential  concerns, however, are multiple, and the            variety of situations  endless.  One  set of limitations  has            been based  on fear  of duplicative recovery  and excessively            complex  litigation.2     Another  is   concerned  with   the            remoteness of the injury and the speculative character of the            injury  or   the  connection.3    Another   set  reflects  an            unwillingness to award antitrust  damages to one who suffered            from pro-competitive  or irrelevant  effects of an  otherwise                                            ____________________                 2Illinois Brick  Co. v.  Illinois, 431 U.S.  720 (1977).                  ___________________     ________            Compare Hanover  Shoe, Inc. v.  United Shoe Mach.  Corp., 392            _______ ___________________     ________________________            U.S. 481 (1968).                  3Associated General Contractors, 459 U.S. at 543; Hawaii                  ______________________________                   ______            v. Standard Oil Co., 405 U.S. 251, 262-63 n.14 (1972).               ________________                                         -11-                                         -11-            anticompetitive  transaction.4    These   elements  sometimes            overlap;  and  the  list  is  not  exhaustive.    It  is  not            surprising that no  simple rule has emerged  for choosing the            best   antitrust  plaintiff  and  deciding  when  second-best            plaintiffs should be barred.                   Nevertheless,  there  are   patterns  in  the  antitrust            standing  cases that  offer  considerable guidance.   One  of            those patterns  involves the supplier who  suffers because an                                         ________            antitrust violation curtails a business that  would otherwise            have purchased from the supplier.  In general such a supplier            (including an  employee who  supplies labor) is  held not  to            have  suffered  "antitrust  injury";  while there  may  be  a            violation  and  causal  harm  to  the  supplier,  the  failed            business is the immediate victim and the preferred plaintiff.            II P. Areeda  & H. Hovenkamp,  Antitrust Law   375  (rev. ed.                                           _____________            1995) (collecting numerous cases).                  This is not because suppliers are automatically improper            antitrust  plaintiffs; a  seller  may well  have  a claim  if            victimized  by a  price-fixing ring  composed of  buyers that            lowered  the market price:   in such  a case the  seller is a            participant in the very market where competition is impaired.            But if the supplier's customer fails because of an  antitrust                                  ________            violation,  usually  the  conduct  was  deemed  an  antitrust                                            ____________________                 4Cargill v.  Montfort of Colorado, 479  U.S. 104 (1986);                  _______     ____________________            Brunswick  Corp. v.  Pueblo  Bowl-O-Mat, Inc.,  429 U.S.  477            ________________     ________________________            (1977).                                         -12-                                         -12-            violation  because  of the  threat to  the customer,  not the            supplier.                 Here,  the situation is not quite parallel:  SAS was not            injured  because  its customer  failed  due  to an  antitrust            violation by  a third party;  rather, the customer  (PRTC) in            the  course  of  its  own violation  allegedly  breached  its            agreement to use SAS as a supplier.  But if the breach played            a part in an  antitrust violation, the conduct itself  was an            antitrust  violation because  of  the anticompetitive  threat            posed  to  other potential  plaintiffs,  not SAS.    Like the                       _____            happenstance supplier  to a  customer felled by  a violation,            SAS was coincidentally involved.                  SAS's complaint  alleged that  PRTC's conduct  harmed or            threatened harm to competition  in two different markets: the            provision  of  pay  phone  service  in  Puerto  Rico and  the            provision  of long  distance  service from  such pay  phones.            Assuming arguendo that either or  both is a proper  "relevant                     ________            market" for antitrust purposes, Spectrum Sports v. McQuillan,                                            _______________    _________            113  S.  Ct.  884,  892 (1993),  the  presumptively  "proper"            plaintiff  is   a  customer  who  obtains   services  in  the            threatened market  or a  competitor who  seeks to  serve that            market.  Associated General  Contractors, 459 U.S. at 538-39.                     _______________________________            SAS is not suing in either capacity.                 SAS was not a  premises owner aiming to obtain  a better            pay phone in  its hotel or restaurant, or a  caller who might                                         -13-                                         -13-            use such a pay  phone for ordinary or long  distance service.            Nor  was SAS a competitor  seeking access to  the network for            its  pay phones  in  competition with  the primary  provider,            PRTC;  SAS' aim  was to supply  such phones  to or  for PRTC.            Finally, despite  some vague allusions in  its brief, nothing            in  the  complaint suggests  that SAS  was,  or was  about to            become, a long  distance carrier who  might be benefitted  by            easier customer access.                 SAS argues that the district court failed to give it the            benefit  of a favorable reading of its complaint, and that it            is entitled to such a reading.   It says, in particular, that            the  district court  chose  to characterize  the  wrong as  a            simple contract  claim rather than viewing it  as a potential            antitrust claim  as well.   Certainly,  an individual  act of            misconduct can be  the gravamen of  more than one wrong  to a            single plaintiff.   Not every antitrust  claim in a  contract            case is simply a contract  claim masquerading as a  candidate            for treble damages.                 But  the  problem  here  is  not  that  a  plaintiff  is            automatically limited to one cause of action.  It is that the            central  conduct  here   involved--PRTC's  failing  to  carry            through  a plan to broaden access--is wrongful as to SAS only                                                           _________            insofar as  it may be a common (or civil) law wrong.  Insofar            as  the same  conduct  is also  an antitrust  violation, that                                      ____            violation does not  infringe any interest of SAS protected by                                         -14-                                         -14-            the  antitrust laws.  This  is almost certainly  all that the            district  court meant in  saying that SAS's  claim was really            one for breach of contract.                 If competitors and  consumers are favored  plaintiffs in            antitrust cases, the list  of those presumptively  disfavored            is far longer.   The list  of those  who may be  derivatively            injured,  but are  usually  denied standing  to sue  includes            "employees  of  the  violator,  and  stockholders, creditors,            landlords, and  employees of victims."   Hovenkamp, supra, at                                                     _________  _____            554.   It is hardly surprising to afford similar treatment to            an incidentally injured supplier to a victim or, as here, the            supplier to  a supposed  violator.  But  "presumptively" does            not mean  always; there  can  be exceptions,  for good  cause            shown.  See generally Sullivan, 25 F.3d at 49.                    _____________ ________                 The  most obvious  reason for  conferring standing  on a            second-best plaintiff  is that,  in some general  category of            cases,  there  may be  no first  best  with the  incentive or            ability to sue.  Cf. Associated General Contractors, 459 U.S.                             ___ ______________________________            at 542.  That is hardly likely here:  those threatened by the            market  injury  alleged  by  SAS  include  various  potential            plaintiffs,  above all,  long distance  carriers, who  should            have ample incentive and ability to challenge violations that            foreclose their access to  customers.  If there is  any other            reason for stretching to  confer standing in this case  on an                                         -15-                                         -15-            incidentally connected plaintiff like  SAS, it does not occur            to us.                 We have concerned ourselves  thus far primarily with the            question  whether  SAS is  a  competitor or  consumer  in the            market threatened by  the alleged violation or  has any other            protectable interest under the antitrust law.  But there is a            second  element in  the antitrust  standing cases  that works            against  SAS in  this case.   As  already noted,  one  of the            reasons  for  limiting   standing  concerns  the  speculative            character of  either the  injury or the  relationship between            the violation and injury.   This concern may operate  even in            cases,  like  this  one,  where no  duplicative  recovery  is            threatened.  Sullivan, 25 F.3d at 52.                         ________                 At  first  blush it  may  seem  as if  PRTC's  antitrust            violation,  if  violation it  was,  clearly  deprived SAS  of            whatever  profits it might have  made by carrying through the            contract.    But  more  carefully  identifying  the  supposed            violation  raises substantial doubts.  Assuming arguendo that                                                            ________            PRTC had or  assumed some  duty under the  antitrust laws  to            upgrade  its pay phones,  it is not clear  that the breach of            that duty is  meaningfully connected to the  failure to carry            through the contract with SAS.                 After all,  supposing that the antitrust  laws impose on            PRTC  a duty to upgrade,  they certainly do  not require that            the  upgrading be done by  SAS or any  other specific vendor.                                         -16-                                         -16-            SAS would have been no less damaged if PRTC  had breached the            contract  but installed improved pay phones of its own on the            same timetable, thereby  enhancing long distance competition.            Conversely, once SAS got the contract and PRTC then allegedly            breached  it, SAS  faced  injury--but the  injury would  have            existed even if no antitrust violation arose from the failure            to upgrade.   Thus,  the connection here  between "antitrust"            and "injury" is suspect in more ways than one.                 It remains  to say  something about the  Supreme Court's            decision  in Blue Shield v. McCready, 457 U.S. 465 (1982), on                         ___________    ________            which SAS relies heavily  throughout its brief.  There,  by a            five-to-four decision, the Supreme Court held that a consumer            of health  services could  sue  under the  antitrust laws  to            redress a supposed conspiracy, between her insurance plan and            Virginia   psychiatrists,   to  exclude   psychologists  from            receiving  compensation under  the  plan.   Although not  the            immediate target of the supposed boycott, McCready herself--a            plan beneficiary  who had used a psychologist and been denied            reimbursement--was held  to have standing under the antitrust            laws.                 In language much stressed by SAS, the Supreme Court said            that McCready's injury "was inextricably intertwined with the            injury  the conspirators sought  to inflict  on psychologists            and the psychotherapy market."  457 U.S. at 484.  McCready is                                                              ________            also useful to  SAS for a larger reason, namely,  that it may                                         -17-                                         -17-            be  an instance in which standing was extended to a plaintiff            who  was  only  derivatively  injured, there  by  an  alleged            boycott  directed against  psychologists  for the  benefit of            psychiatrists.  But  McCready can also  be read as a  case in                                 ________            which  the  plaintiff was  a  purchaser  in the  very  market            directly distorted  by the antitrust violation,  see Areeda &                                                             ___            Hovenkamp, supra,   364f, something that cannot even arguably                       _____            be said of SAS.                 Thus,  the  only  real  link between  McCready  and  the                                                       ________            present case  is the very  general "inextricably intertwined"            language  of the former.  It is doubtful that this language--            if taken as physical image--was ever intended as a legal test            of standing.   Quite apart from  difficulties in application,            such a test  would certainly be very hard to  square with the            longstanding limitations on claims by stockholders, employees            and even  indirect purchasers.  Nothing  in McCready suggests                                                        ________            that it intended to overrule those limitations even though it            would be  very easy to describe such injuries as inextricably            intertwined in the ordinary suggestive sense of the phrase                 In all  events, the  Supreme Court  simply reinterpreted            the  phrase  as  a  legal conclusion  in  Associated  General                                                      ___________________            Contractors, saying  (after a reference to the  phrase):  "In            ___________            this  case  [Associated  General  Contractors],  however, the                         ________________________________            Union  was  neither  a  consumer  nor  a  competitor  in  the            [restrained] market  . . . ."   459 U.S. at 539.   It did the                                         -18-                                         -18-            same  thing  more  recently  in  Atlantic  Richfield  v.  USA                                             ___________________      ___            Petroleum  Co.,   495  U.S.  328,  345   (1990)  (injury  not            ______________            "inextricably intertwined" because  competitor not injured by            "the anticompetitive effects" of the challenged conduct).  We                 _______________            do  not think  that  anything more  need  be said  about  the            matter.                                         III.                 Having  assumed throughout  that an  antitrust violation            may  have  occurred,  it  is  prudent  to  stress  that  this            assumption  is  very  much  open  to  debate;  the  purported            "essential  facilities"  doctrine is  something  less than  a            self-executing  formula.5     We   have  also  supposed   the            existence  of causation  of harm "in  fact", see  Sullivan v.                                                         ___  ________            NFL,  34 F.3d  1091, 1103  (1st Cir.  1994); but  for reasons            ___            suggested at  the end of  our standing discussion,  a serious            question exists whether  the alleged "antitrust  violation"--            when more carefully defined--can  be described as the but-for            cause of the harm suffered by SAS.                   In  all  events,  even  where there  is  a  harm-causing            antitrust violation,  not every injured party  is entitled to            claim under the antitrust  laws.  In this case,  supposing an            antitrust violation occurred, it was not a violation directed            against SAS and SAS is not an appropriate plaintiff to obtain                                            ____________________                 5See  generally Interface  Group, Inc.  v. Massachusetts                  ______________ ______________________     _____________            Port  Auth., 816  F.2d 9,  12 (1st  Cir. 1987)  (Breyer, J.);            ___________            Hovenkamp, supra,   7 (critiquing the doctrine).                       _____                                         -19-                                         -19-            antitrust relief.  SAS's remedies, if  the allegations of the            complaint are true,  lie in contract and the  other pertinent            non-federal claims asserted in its complaint.                 Affirmed.                   ________                                         -20-                                         -20-
