Caribe v. Bayerische ( 1994 )

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
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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
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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
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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
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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)
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(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
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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
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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
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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.
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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
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(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
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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
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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.,
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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
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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).
.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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