
USCA1 Opinion

	




                            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  &            _________________              ____________________   ____________        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 &  Kolius,  Thomas R.  McDade,  and McDade  &  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 &  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  & Louis  Kaplow, Antitrust  Analysis               ____                                   ___________________             601(c) (4th ed. 1988); 3 Earl W. Kintner &  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 & 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 & Sons                     ___________________________     ____________________             Co., 129 F. Supp. 736, 739 (D. Mass. 1955) (same);  see also             ___                                                 ________             Kintner & 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 &  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 & 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  & 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                                                       ___  ____             &  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 & 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  & 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 & 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 & 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
