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/10/ As the court of appeals itself stated, private antitrust damage suits can be sustained only where the violations alleged are ones that cause competitive injury to the plaintiff (Pet.

anticompetitive acts are relevant to a private antitrust action only to the extent that they support claims of competitive injury; they are irrelevant if they suggest harm only to the business or property of some other class of persons. for example, the court of appeals recognized that an agreement among petitioners that fixed minimum prices for the united states market would tend to keep prices up and would "in isolation protect * * * competitors like respondents) from competition," so that respondents could not, in the absence of other circumstances, maintain this lawsuit "because they could not show the requisite injury to their business or property.
to prove antitrust injury under their theory, respondents were required to prove that petitioners agreed to set predatory prices. /11/ we agree with the court of appeals that direct evidence of some kinds of concert of action like price fixing in japan may be circumstantial evidence of a broader conspiracy" (pet. the issue here, however, is not whether the existence of such evidence bears circumstantially on respondents' charge; instead, it is whether introduction of that sort of circumstantial evidence changes the standard under which otherwise ambiguous parallel conduct is evaluated on motions for summary judgment.
to be sure, evidence of conspiracy must be considered as a whole. but the teaching of cities service would be in large part nullified if plaintiffs could find direct evidence of concerted action in one area, hypothesize the existence of a broader conspiracy of which that concerted action may be a part, and then use that evidence as direct proof of the existence of the hypothetical broader conspiracy. /12/ in determining whether there was any evidence to support respondents' predation theory, the court of appeals also should have considered factors other than price. in particular, the court should have examined the structural conditions in the industry to determine whether they made a predatory strategy plausible. in other words, the court should have considered the probable effect on such a strategy of respondent zenith's large market share, of the presence or absence of barriers to entry and the like. the court of appeals entirely failed to consider these matters, however.
they were just engaged in hard competition. /13/ such considerations have led the courts of appeals to conclude that strong evidence of below-cost pricing is vital to a determination that a low-price strategy amounts to unlawful predation that violates section 2 of the sherman act. the federal trade commission has reached a similar conclusion. /14/ indeed, the court of appeals never considered whether respondents had adduced any evidence that petitioners' prices were below any measure of cost. the district court's opinions indicate that respondents' evidence of "below cost" sales consisted solely of the testimony of their chief expert, dr.
depodwin, that four petitioners sometimes sold their products in the united states at prices below some measure of their costs. this court concluded, however, that the defense was not available because there was "no indication that (any) official within the * * * canadian government approved or would have approved of" the anticompetitive conduct, or that any canadian law otherwise compelled the conduct. the court had no occasion to discuss a situation in which, as here, the record includes a statement by a foreign government that it has compelled some or all of the allegedly anticompetitive conduct at issue.
watchmakers of switzerland information center, inc. texaco maracaibo is the only case in which the defense has been raised successfully. /17/ in establishing national policy for the steel industry, president reagan has directed the united states trade representative to negotiate restraint agreements with a number of exporting countries. /18/ the governments of , canada, france, japan, the republic of , spain, and the united kingdom have formally advised the department of of concerns about the potential impact of the court of ' decision. copies of communications have been lodged with clerk of court and provided to . /19/ we do not mean to , however, that sovereign compulsion defense should apply if to foreign state's action clearly is under recognized principles of international comity.. ..
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