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

942 F.2d 1332 1991-2 Trade Cases P 69,524 WILLIAM INGLIS & SONS BAKING COMPANY, Plaintiff-Appellee, v. CONTINENTAL BAKING COMPANY, INC., Defendant-Appellant. WILLIAM INGLIS & SONS BAKING COMPANY, et al., Plaintiffs-Appellants, v. CONTINENTAL BAKING COMPANY, INC., et al., Defendants-Appellees. Nos. 89-15412, 89-15422. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 6, 1990. Decided Aug. 6, 1991. John H. Schafer, Covington & Burling, Washington, D.C., for defendant-appellant-cross-appellee. William A. Wineberg, Broad, Schultz, Larson & Wineberg, San Francisco, Cal., for plaintiff-appellee-cross-appellant. Appeal from the United States District Court for the Northern District of California. Before CANBY, NOONAN and RYMER, Circuit Judges. CANBY, Circuit Judge: 1 A jury found Continental liable to Inglis for violating federal and state antitrust statutes, and awarded damages. In No. 89-15412, Continental appeals the court's denial of its motions for judgment notwithstanding the verdict ("JNOV") and a new trial; we affirm in part and reverse in part. In No. 89-15422, Inglis appeals several of the court's rulings affecting the amount of damages;…

A jury found Continental liable to Inglis for violating federal and state antitrust statutes, and awarded damages. In No. 89-15412, Continental appeals the court’s denial of its motions for judgment notwithstanding the verdict (“JNOV”) and a new trial; we affirm in part and reverse in part. In No. 89-15422, Inglis appeals several of the court’s rulings affecting the amount of damages; we affirm in part and reverse in part.

I. FACTS

In the 1960s and early 1970s, William Inglis & Sons Baking Company and ITT Continental Baking Company were competing manufacturers of bread products in northern California. Both companies produced and sold, among other things, one-pound loaves of white pan bread that were marketed under the “private labels” of particular retailers. In 1971, Inglis filed this antitrust action, claiming that Continental was seeking to eliminate Inglis and other competitors by charging below-cost and discriminatory prices for private label bread.

Inglis alleged that Continental’s pricing conduct violated (i) sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 , 2; (ii) section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13 (a); and (iii)…

concurring and dissenting:

To understand this case one must begin with a description of the market as established by the evidence at trial.

THE MARKET

Geography. A given bakery can provide fresh bread for only a relatively small area, covering a radius of no more than 200 miles. See In the Matter of International Tel. & Tel. Corp., 104 F.T.C. 280 , 409 (1984). The San Francisco area, the Lake Tahoe area, and the Sacramento area were *1346 the principal loci of competition of the bakers involved here. Northern California is the relevant geographic area.

The Product. The product is bread— bread eventually to be consumed by the eaters of bread. Arguably all breads are interchangeable, and variety and heath-baked breads such as whole wheat, rye, pumpernickel, and raisin are part of the same market as white pan bread. However, this case was tried on the basis that the white pan loaf was the product, and this single kind of bread must be the focus of decision.

The white pan loaf was produced by bakeries in three ways: (1) advertised bread, as to which there was a brand name that was publicly advertised; (2) private label bread, bread that was not advertised under a brand name but…