USA Petroleum Company v. Atlantic Richfield Company

13 F.3d 1276 62 USLW 2466 , 1993-2 Trade Cases P 70,458 USA PETROLEUM COMPANY, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee. No. 87-5681. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 16, 1992. Filed Aug. 12, 1992. Withdrawn from Submission March 17, 1993. Resubmitted July 7, 1993. Opinion Withdrawn Jan. 6, 1994. Order and Opinion Decided Jan. 6, 1994. Alicia Rosenberg, Blecher & Collins, Los Angeles, CA, for plaintiff-appellant. Ronald Redcay, Arnold & Porter, Los Angeles, CA, for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before: ALARCON, NELSON, and REINHARDT, Circuit Judges. ORDER The Petition for Rehearing is granted. The opinion filed on August 12, 1992, is hereby withdrawn and the following opinion substituted in its place. The suggestion for reconsideration en banc is therefore moot. OPINION 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 alleged that ARCO and its dealers conspired to drive USA and other independents out of the…

ORDER

The Petition for Rehearing is granted. The opinion filed on August 12,1992, is hereby withdrawn and the following opinion substituted in its place. The suggestion for reconsideration en banc is therefore moot.

OPINION

Atlantic Richfield Co. (“ARCO”) is one of the “major” oil companies; USA Petroleum Co. (“USA”) is an “independent” gasoline marketer. USA alleged 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” and contends 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. See 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 it amounts to “predatory pricing.” Atlantic…

specially concurring:

I concur in the judgment of the court. Rather than discuss an issue not properly before this court, I would carry out the mandate of the United States Supreme Court and enter a brief order affirming the district court’s order. I would not discuss the predatory pricing issue that has now been resurrected by USA Petroleum Company, under the guise of a “motion for clarification,” because the Supreme Court has clearly instructed that USA failed to demonstrate antitrust standing on the only issue preserved for appeal.

I.

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, this court 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). The majority’s mandate directed the district court to proceed to trial because USA had demonstrated antitrust injury, entitling…

concurring and dissenting:

I concur only in Part III of Judge Nelson’s opinion, which concludes that we have jurisdiction to determine whether the district court applied the correct predatory pricing standard. 1 However, because I do not believe that USA abandoned its right to pres *1291 ent evidence of below-cost pricing, I dissent from the rest of her opinion.

I.

At the outset, it is important to understand exactly what issue we have been asked to decide here, and how we got to this point. In 1986, ARCO moved for summary judgment on USA’s claim of a Sherman Act section one violation. ARCO claimed that a competitor had no standing to challenge a conspiracy to set maximum prices unless those prices were predatory, and that USA had failed to show that ARCO’s prices were predatory because it had failed to show a dangerous probability of successful monopolization. Under its motion ARCO could prevail only if a dangerous probability of successful monopolization is an element of a section one violation. USA conceded that it could not show a dangerous probability of successful monopolization. It opposed the summary judgment motion on two purely legal grounds. First, USA argued that a…