USA Petroleum Co. v. Atlantic Richfield Co.

Atlantic Richfield Co. (“ARCO”) is one of the “major” oil companies; USA Petroleum Co. (“USA”) is an “independent” gasoline marketer. USA alleges that ARCO and its dealers conspired to drive USA and other independents out of the retail gasoline market by agreeing to set retail gasoline prices below market levels. USA alleges that this vertical agreement to fix maximum resale prices violates section 1 of the Sherman Act, 15 U.S.C. § 1 .

USA appealed from the decision of the district court granting summary judgment in favor of defendant ARCO on the antitrust claims. We reversed, holding that USA had standing to challenge ARCO’s alleged vertical maximum resale price maintenance scheme. USA Petroleum v. Atlantic Richfield Co., 859 F.2d 687, 697 (9th Cir.1988). The Supreme Court in turn reversed the judgment of this court, holding that a competitor does not have standing to challenge such a scheme unless the prices fixed were predatory. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 339 , 110 S.Ct. 1884, 1891 , 109 L.Ed.2d 333 (1990)., On remand, USA argues that the grant of summary judgment still must be reversed on the alternative ground that the district court wrongly…

dissenting:

I respectfully dissent.

I would carry out the mandate of the United States Supreme Court and enter a brief order affirming the district court’s order.

I.

PREFATORY STATEMENT

The district court granted summary judgment in favor of the Atlantic Richfield Company (ARCO). It held that the USA Petroleum Company (USA) was not entitled to damages for a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 , because it had failed to demonstrate “antitrust injury.”

On October 7, 1988, Judges Nelson and Reinhardt reversed “the decision of the district court and remand[ed] the case for further proceedings consistent with this opinion.” USA Petroleum Co. v. Atlantic Richfield Co., 859 F.2d 687, 697 (9th Cir. 1988). Presumably the majority’s somewhat inscrutable mandate directed the district court to proceed to trial. The majority appeared to have ruled that USA demonstrated “antitrust injury,” entitling it to recover damages if it can meet the requisite standard of persuasion at trial. Id.

On May 14, 1990, the Supreme Court reversed this court’s decision. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 , 110 S.Ct. 1884 , 109 L.Ed.2d 333 (1990). The Court’s…

972 F.2d 1070 61 USLW 2142 , 1992-2 Trade Cases P 69,928 USA PETROLEUM CO., Plaintiff-Appellant, v. ATLANTIC RICHFIELD CO., Defendant-Appellee. No. 87-5681. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 16, 1992. Decided Aug. 12, 1992. Alicia Rosenberg, Blecher & Collins, Los Angeles, Cal., for plaintiff-appellant. Ronald Redcay, Arnold & Porter, Los Angeles, Cal., for defendant-appellee. Before: ALARCON, D.W. NELSON, and REINHARDT, Circuit Judges. D.W. NELSON, Circuit Judge: 1 Atlantic Richfield Co. ("ARCO") is one of the "major" oil companies; USA Petroleum Co. ("USA") is an "independent" gasoline marketer. USA alleges that ARCO and its dealers conspired to drive USA and other independents out of the retail gasoline market by agreeing to set retail gasoline prices below market levels. USA alleges that this vertical agreement to fix maximum resale prices violates section 1 of the Sherman Act, 15 U.S.C. § 1 . 2 USA appealed from the decision of the district court granting summary judgment in favor of defendant ARCO on the antitrust claims. We reversed, holding that USA had standing to challenge ARCO's alleged vertical maximum resale price…