Doug LOWELL, Mackey Nolte, et al., Plaintiffs-Appellants,
v.
AMERICAN CYANAMID COMPANY, a Corporation, Defendant-Appellee.
No. 98-6194.
United States Court of Appeals,
Eleventh Circuit.
June 9, 1999.
Appeal from the United States District Court for the Southern District of Alabama. (No. 97-0581-BH-M),
W.B. Hand, Judge.
Before EDMONDSON and BLACK, Circuit Judges, and RESTANI*, Judge.
EDMONDSON, Circuit Judge:
Plaintiffs, five Alabama farmers, have appealed a district court order dismissing an antitrust complaint
for failure to join middlemen dealers as defendants pursuant to Illinois Brick Co. v. Illinois,
431 U.S. 720,
97 S.Ct. 2061,
52 L.Ed.2d 707 (1977). We conclude that Illinois Brick has no application in a vertical
conspiracy with no allegations of "pass-on." The district court decision is vacated, and the case is remanded.
Background
Between 1989 and 1995, the defendant, American Cyanamid Company ("American Cyanamid"),
maintained two similar rebate programs for its independent retail dealers nationwide. Under the programs,
American Cyanamid entered into written contracts with its dealers whereby American Cyanamid would give
the dealer a rebate on each sale of designated crop-protection products but only if the dealer sold the product
at or above American Cyanamid's suggested resale price; the programs allegedly established a minimum
resale price. Under these contracts, the specified resale price was equal to the wholesale prices paid by the
*
Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation.
dealer. American Cyanamid's dealers overwhelmingly responded by selling the product at or above the
specified minimum resale price.1
In 1997, Plaintiffs filed a complaint, on behalf of themselves and all others similarly situated, alleging
American Cyanamid had violated section one of the Sherman Act (15 U.S.C. § 1) and section four of the
Clayton Act (
15 U.S.C. § 15). Plaintiffs later amended their complaint, but at no time did they join any of
the estimated 2,500 American Cyanamid distributors. American Cyanamid filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion with prejudice, holding
that the independent dealers, as direct purchasers, must be parties to the action under the doctrine of Illinois
Brick. Otherwise, Plaintiffs, according to the district court, lacked standing to maintain the suit. Plaintiffs
appealed.
Discussion
We review de novo a district court order dismissing a complaint for failure to state a claim,
construing the allegations in the complaint as true and in the light most favorable to the plaintiff. See Harper
v. Blockbuster Entertainment Corp.,
139 F.3d 1385, 1387 (11th Cir.1998).
Plaintiffs' complaint alleges that American Cyanamid engaged in a vertical price-fixing conspiracy
with the independent dealers in violation of section one of the Sherman Act and section four of the Clayton
Act. Plaintiffs claim that the district court erred in applying Illinois Brick to bar this complaint from
proceeding directly against American Cyanamid without joining the independent dealers.
Illinois Brick, so Plaintiffs' argument goes, does not apply to a vertical price-fixing scheme where
(1) a plaintiff buys directly from a dealer who combined with a manufacturer to fix the prices and (2) no
allegations are made of "pass-on." In other words, Plaintiffs claim they are not indirect purchasers at all under
Illinois Brick, but are direct purchasers from a conspiring party.
1
Although this act may be, by itself, unexceptional (as it is the only way to turn a profit on the
individual product), we will assume, due to the procedural posture of this case, that Plaintiffs have shown
a vertical price-fixing conspiracy.
American Cyanamid counters that the rule of Illinois Brick—that indirect purchasers cannot maintain
a suit without joining the appropriate middlemen—is on point and that the present case falls within neither
of its two enumerated exceptions.2 American Cyanamid also points out that the former Fifth Circuit applied
Illinois Brick to bar claims somewhat similar to this one in In re Beef Industry Antitrust Litigation,
600 F.2d
1148 (5th Cir.1979).
We agree with the Plaintiffs. Illinois Brick has no application in this case.
Illinois Brick was an extension of the Court's earlier prohibition against the defensive use of passing
on in Hanover Shoe, Inc. v. United Shoe Machinery Corp.,
392 U.S. 481, 491-94,
88 S.Ct. 2224,
20 L.Ed.2d
1231 (1968).3 In concluding that the indirect government purchasers of a product may not sue distant
manufacturers, Illinois Brick cited two underlying rationales. The first of these was that "allowing offensive
but not defensive use of pass-on would create a serious risk of multiple liability for defendants. Even though
an indirect purchaser had already recovered for all or part of an overcharge passed on to it, the direct
purchaser would still recover automatically the full amount of the overcharge that the indirect purchaser had
shown to be passed on[.]" Illinois Brick,
431 U.S. at 730,
97 S.Ct. 2061. Second, as in Hanover Shoe, the
Court was worried about the "uncertainties and difficulties in analyzing price and out-put decisions 'in the
real economic world rather than an economist's hypothetical model,' and of the costs to the judicial system
and the efficient enforcement of the antitrust laws of attempting to reconstruct those decisions in the
courtroom."
Id. at 731-32,
97 S.Ct. 2061 (quoting Hanover Shoe,
392 U.S. at 493,
88 S.Ct. 2224) (citations
omitted).
Neither of the rationales applies to the very different case of vertical conspiracy with no allegations
of passing on:
2
The two exceptions—neither of which apply here—are where there is a preexisting cost-plus contract
or where the direct purchaser is owned or controlled by its customer. See Illinois Brick,
431 U.S. at 735-
36 & n. 16,
97 S.Ct. 2061.
3
Hanover Shoe said that a manufacturer cannot assert a "passing-on" defense (that is, the defense that
the plaintiff has no damages when he passed the overcharge on down the production line) against a direct
purchaser of its product.
392 U.S. at 494,
88 S.Ct. 2224.
Illinois Brick does not limit suits by consumers against a manufacturer who illegally contracted with
its dealers to set the latter's resale price. The consumer plaintiff is a direct purchaser from the dealer
who, by hypothesis, has conspired illegally with the manufacturer with respect to the very price paid
by the consumer. There is no problem of duplication or apportionment because the consumer is the
only party who has paid any overcharge. Although the manufacturer did not sell directly to the
consumer, he is a fellow conspirator with the direct-selling dealer and therefore jointly and severally
liable with the dealer for the consumer's injury.
2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law 264 (rev. ed.1995) (footnotes omitted).
This case presents no problems of double recovery because only one illegal act (the vertical
conspiracy)4 is present and likely only one set of potential plaintiffs (the farmers) exists.5 Although Plaintiffs
may sue American Cyanamid alone for the full cost of the conspiracy with the dealers, that is the way
antitrust conspiracy liability works and does not go to the kind of duplicative recovery with which Illinois
Brick was concerned.6
Second, the economic and legal complexities outlined in Illinois Brick are absent here as well. For
the plaintiffs in a case like this one, proving what price would have existed in the absence of the unlawful
agreement is difficult; but it is no more difficult than the proof necessary in any vertical conspiracy case.
4
Considering the loose nature of notice pleadings, a potential plaintiff might allege only a vertical
conspiracy when there is in fact a horizontal conspiracy as well or some other kind of illegal conduct (for
example, tying or monopolistic behavior). By so doing, some clever plaintiff could elude a defendant's
12(b)(6) motion but then later recover in the lawsuit for the pass-on injury of a horizontal
conspiracy—the kind of injury for which a middleman could also recover. This circumstance could
present the Illinois Brick double-recovery problem. So, courts must be attentive in holding plaintiffs to
their pleadings or, if plaintiffs seek to amend their pleadings to add a kind of conduct from which pass-on
could be claimed, in forcing the plaintiffs to join the middlemen as well. Cf. Arizona v. Shamrock Foods
Co.,
729 F.2d 1208, 1211 (9th Cir.1984) (holding suit against somewhat distant defendant permissible
where plaintiffs changed their theory of recovery to one that does not involve pass-on).
5
Two other kinds of potential plaintiffs—intermediaries who could sue the manufacturer either (1) for
coerced participation in an unlawful scheme or (2) termination for refusing to adhere—may exist given
the occurrences alleged in this case. But these kinds of potential plaintiffs do not change the rule about
the need to join intermediaries in the case before us now. Such suits would result in a different measure
of damages: the damages would not be pass-on and would not factor into Plaintiffs' recovery. In the
event that a manufacturer might have to pay two sets of damages, it only means he committed two
different injuries; this circumstance is not the double recovery of Illinois Brick.
6
Illinois Brick faced the prospect of distant government plaintiffs and intermediate supplier-plaintiffs
or dealer-plaintiffs recovering repeatedly from the manufacturers for the same pass-on injury resulting
from the same horizontal conspiracy.
Furthermore, the task pales in comparison to the complexities contemplated in Illinois Brick:7 tracing the
pass-on through many steps in the production process and determining how much was absorbed, how much
was passed on, and by whom; moreover, all of the calculations would have to be made without any of the
intermediary parties asserting their interests, but merely with the aid of "elasticity studies introduced by expert
witnesses[.]" Illinois Brick,
431 U.S. at 742,
97 S.Ct. 2061.
The complexities Illinois Brick involved were legal ones as well. "[P]otential plaintiffs at each level
in the distribution chain are in a position to assert conflicting claims to a common fund the amount of the
alleged overcharge by contending that the entire overcharge was absorbed at that particular level in the
chain."
Id. at 737,
97 S.Ct. 2061. This creates the need for either statutory interpleader under
28 U.S.C. §
1335 or compulsory joinder under Rule 19(a). See
id. at 738,
97 S.Ct. 2061. And such efforts would create
as many problems as they would solve. See
id. at 738-41,
97 S.Ct. 2061.
But here, we have no such legal complexities. In all likelihood, the full extent of this litigation will
be a class-action suit by Plaintiffs against American Cyanamid. That is it. Plaintiffs do not want to join the
dealers, and American Cyanamid will have no incentive to bring the dealers in because it cannot seek
contribution. See Texas Industries, Inc., v. Radcliff Materials, Inc.,
451 U.S. 630,
101 S.Ct. 2061,
68 L.Ed.2d
500 (1981) (holding no right of contribution under Clayton and Sherman Acts). Also, suits, if any, by the
dealers against American Cyanamid (which seem unlikely)8 could be handled separately as "the damage
criteria are quite distinct and not overlapping for the dealer and the consumer." 7 Phillip E. Areeda, Antitrust
Law 183 (1986).
Today's vacation of the district court's decision to dismiss makes no new law. The inapplicability
of Illinois Brick to vertical conspiracies with no allegations of pass-on (what some have called the "vertical
7
See In re Mid-Atlantic Toyota Antitrust Litig.,
516 F.Supp. 1287, 1295 (D.Md.1981) ("While such a
calculation [of the price that would have prevailed in a non-pass-on case] would appear to be a simple
one, even if it is complex it would not be the type of complexity that the Illinois Brick Court was
concerned with.").
8
In this case, no dealers had sued American Cyanamid at the time of the appeal even though the statute
of limitations was running out.
conspiracy exception") has long been recognized. See Shamrock Foods, 729 F.2d at 1211-13; Fontana
Aviation, Inc. v. Cessna Aircraft Co., 617 F.2d 478, 480-82 (7th Cir.1980); Mid-Atlantic Toyota, 516 F.Supp.
at 1294-96; Reiter v. Sonotone Corp.,
486 F.Supp. 115, 119-21 (D.Minn.1980); Gas-A-Tron v. American
Oil Co., (D.Ariz.1977); Areeda, supra, at 182 ("[O]ther courts have correctly seen that Illinois Brick has no
bearing on [vertical price fixing.]"); Herbert Hovenkamp, Commentary, The Indirect-Purchaser Rule and
Cost-Plus Sales, 103 Harv. L.Rev. 1717, 1719 (1990) ("Some courts ... have held that Illinois Brick will not
bar an indirect-purchaser action if ... the dealer itself participated in the conspiracy.").
And the facts of the cases cited by American Cyanamid are materially different. In In re Beef, upon
which American Cyanamid relies most heavily, the complaint alleged a horizontal conspiracy between 25
retail food chains. On appeal, the plaintiffs (cattlemen, ranchers and feeders) also said that the district court
erred in not allowing them to amend their complaint to allege a vertical conspiracy between the retail chains
and the middlemen (meat packers and slaughterhouses).
The district court's refusal to allow amendments—a decision that is reviewed only for abuse of
discretion—was upheld on the basis of undue delay on the plaintiffs' part in moving to amend. "Absent any
apparent justification for this delay, we cannot hold that the district court abused its discretion." In re Beef,
600 F.2d at 1162. We went on to say that the decision not allowing amendments was "supportable" on
grounds of futility as well; in that paragraph, we observed that the proposed amendments did not fit the
"control" exception to Illinois Brick. Then we added another paragraph in which we said that we did not
"think" that the allegation of vertical conspiracy in In re Beef would get around Illinois Brick and its
prohibition against double liability.
In context, the discussion of Illinois Brick looks like dicta, given that the standard of review was
abuse of discretion and that the In re Beef court had already decided to affirm the denial of the amendments.
But even supposing that the Illinois Brick paragraph is binding in materially similar cases, it would have no
impact here, because here—unlike In re Beef—there is no allegation of both a vertical conspiracy as well as
a horizontal conspiracy one step removed from the plaintiffs. Put another way, In re Beef is consistent with
the rule we announce today. Not every vertical conspiracy allegation will get around the Illinois Brick
doctrine. An alleged vertical conspiracy on top of a horizontal conspiracy—like the situation in In re
Beef—does not, as the plaintiffs in In re Beef had hoped, "save" the overall conspiracy claims. Instead, the
Illinois Brick doctrine might apply even more strongly in a case like In re Beef.
Illinois Brick is not some formulaic "remoteness" doctrine wherein a plaintiff who proves he
purchased from a conspiring party—any conspiring party—automatically escapes the Illinois Brick bar.
Instead, Illinois Brick is a decision based on avoiding risks; and the same risks that were inherent in a
garden-variety horizontal conspiracy case with pass-on apply to a case like In re Beef: the risks of (1) double
liability; and (2) economic and legal complexity. The difference between In re Beef and the ordinary
horizontal conspiracy is that In re Beef takes all the same risks of the typical horizontal conspiracy and
compounds them by including another conspiracy (the vertical one) with a separate set of proofs and a
separate set of problems.
Second, Austin v. Blue Cross & Blue Shield, 903 F.2d 1385 (11th Cir.1990), is not on point either.
That case involved non-Blue Cross patients suing Blue Cross for overcharging by hospitals. The plaintiffs
did not allege vertical price-fixing between Blue Cross and the hospitals for non-Blue Cross patients; Blue
Cross was not even in the plaintiffs' chain of distribution. The plaintiffs only alleged that Blue Cross had a
special deal with the hospitals for Blue Cross patients.
Id. Because of what was, in effect, a lower rate
charged to these patients, the hospitals—the plaintiffs alleged—shifted the costs on to their non-Blue Cross
patients.
Id.
The Austin opinion set out several explanations for the court's decision that the non-Blue Cross
patients lacked standing to maintain the lawsuit. See
id. at 1393. At least two of those reasons were
independent of the others. See
id. at 1389 (observing that, apart from Illinois Brick, "[b]oth causation and
antitrust injury[, which were not proved,] are essential elements of antitrust standing."). The Illinois Brick
reasoning was therefore likely not critical to the decision in the case. Moreover, "[t]here is, of course, an
important difference between the holding in a case and the reasoning that supports that holding." Crawford-
El v. Britton,
523 U.S. 574,
118 S.Ct. 1584, 1590,
140 L.Ed.2d 759 (1998).
But, even faithfully adhering to the Illinois Brick section of the Austin opinion, we cannot say that
it contradicts today's decision. To the contrary, it too fits within the rule announced today: Illinois Brick does
not apply to a single vertical conspiracy where the plaintiff has purchased directly from a conspiring party
in the chain of distribution. We can accept that Illinois Brick prohibited the non-Blue Cross plaintiffs in
Austin from suing Blue Cross directly when the claims are purely derivative through the hospitals' alleged
"cost-shifting." Those facts are not the facts of this case, however: Plaintiffs' claims are not derivative or
reliant on cost-shifting theories. The claims are directly against a conspiring party in the chain of distribution.
Moreover, In re Brand Name Prescription Drugs Antitrust Litigation,
123 F.3d 599 (7th Cir.1997),
and Kansas v. UtiliCorp United, Inc.,
497 U.S. 199,
110 S.Ct. 2807,
111 L.Ed.2d 169 (1990), do not bear on
our decision. First, In re Brand Name is distinguishable for the same reasons as Austin and In re Beef.
Second, that the Supreme Court refused to carve out another exception to the Illinois Brick doctrine in
UtiliCorp—a case where the facts seemed ripe for an exception—is unremarkable. Plaintiffs here, unlike in
UtiliCorp, are not looking for an exception to Illinois Brick based on the facts of a particular market; Illinois
Brick simply does not apply to this kind of conspiracy.
Conclusion
We conclude that Illinois Brick is inapplicable to the present case where the complaint alleges a
vertical conspiracy with no pass-on. In such a case, Plaintiffs have standing to assert a claim against
American Cyanamid directly under the antitrust laws. The district court decision to dismiss the complaint
must be vacated. The case is remanded for further proceedings.
VACATED AND REMANDED.
