William Inglis & Sons Baking Co. v. Itt Continental Baking Company, Inc., William Inglis & Sons Baking Co. v. Itt Continental Baking Company, Inc.

668 F.2d 1014 1981-2 Trade Cases 64,229 , 1982-1 Trade Cases 64,545 , 1982-1 Trade Cases 64,546 WILLIAM INGLIS & SONS BAKING CO., et al., Plaintiffs-Appellees, v. ITT CONTINENTAL BAKING COMPANY, INC., et al., Defendants-Appellants. WILLIAM INGLIS & SONS BAKING CO., et al., Plaintiffs-Appellants, v. ITT CONTINENTAL BAKING COMPANY, INC., Defendant-Appellee. Nos. 79-4207, 78-3604. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1980. Decided Aug. 7, 1981. As Amended on Denial of Rehearing and Rehearing En Banc Feb. 10, 1982. John H. Schafer, Covington & Burling, Washington, D. C., for defendants-appellants. Michael N. Khourie, Broad, Khourie & Schulz, San Francisco, Cal., for plaintiffs-appellees. Appeal from the United States District Court for the Northern District of California. Before BROWNING, PECK * and SNEED, Circuit Judges. SNEED, Circuit Judge: 1 William Inglis & Sons Baking Co. (Inglis) brought this private antitrust suit to recover treble damages against ITT Continental Baking Co. (Continental), American Bakeries Co. (American), and Campbell-Taggart, Inc., alleging violations of sections 1 and 2 of the Sherman Act, 15 U.S.C.…

William Inglis & Sons Baking Co. (Inglis) brought this private antitrust suit to recover treble damages against ITT Continental Baking Co. (Continental), American Bakeries Co. (American), and Campbell-Taggart, Inc., alleging violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 , 2, section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13 (a), and the California Unfair Practices Act, Cal.Bus. & Prof.Code §§ 17000-17101. Inglis also charged that Continental had conspired with its parent corporation, International Telephone & Telegraph (ITT), and others in violation of sections 1 and 2 of the *1024 Sherman Act. Both Continental and American filed counterclaims against Inglis also alleging antitrust violations, although Continental dropped its counterclaim at trial. Before trial Campbell-Taggart settled with Inglis, and the district court granted summary judgment for Continental with respect to the alleged “vertical” conspiracy between Continental, ITT, and others. Later, Inglis voluntarily dropped its horizontal conspiracy claims under section 1 against the named defendants. Following a one month trial in 1978, the jury returned a verdict…

concurring in part and dissenting in part.

I concur in the majority’s judgment on all issues except the necessity of'a new trial of Inglis’s attempt-to-monopolize and Robinson-Patman causes of action. On these I would affirm the district court’s grant of judgment n. o. v.

As the majority notes, Inglis’s direct evidence of Continental’s specific intent to monopolize was inconclusive and legally insufficient. Inglis’s evidence of “predatory” conduct was likewise insufficient, even coupled with the purported direct evidence of intent, to permit inferences of intent to monopolize.and of dangerous probability of success.

The majority holds that “a new trial is warranted because the evidence upon which Inglis depended to prove predatory conduct was not based upon a calculation of which costs were fixed and which variable that was rooted in the particular facts of this case.” A plaintiff’s failing to present competent evidence does not warrant a new trial of the plaintiff’s cause. Inglis adopted a rigid definition of variable costs, with the result that its evidence of Continental’s supposed below-cost sales proved nothing. Inglis’s counsel adopted this definition through an utterly…

dissenting from denial to rehear en banc:

I dissent from the court’s refusal to rehear this case en bane. To prevent intracircuit conflict, panels of this court must follow precedent or urge the court’s active judges to overrule the precedent en banc. See, e.g., United States v. Smith, 645 F.2d 747, 748 (9th Cir. 1981) (Reinhardt, J., concurring specially), reheard en banc, No. 80-1380 (argued Dec. 18, 1981). Yet by failing to take this case en banc, we have sanctioned a decision which departs from the settled law of this Circuit. Through a strained and unpersuasive reading of prior cases, the majority seeks to harmonize the “novel” and “innovative” rule it invents, ante at 1058-1059 (Peck, J., dissenting), with the rule it, in effect, rejects. In addition, the majority’s holding is an unjustified departure from the economically-sound marginal cost rule. By permitting this result, the court not only approves the use of an amorphous, unpredictable test for predatory pricing, but also leaves district courts in the Circuit with no guidance as to which rule— the “marginal cost rule” or the Inglis reformulation — should apply to pretrial dismissal motions in antitrust cases.…