J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557 (1981)

JUSTICE POWELL, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting in part.

I concur in Part I of the Court’s opinion, but simply would affirm the judgment of the Court of Appeals.

The Court of Appeals concluded that petitioner

failed to introduce substantial evidence of injury attributable to [respondent’s program], much less substantial evidence of the amount of such injury.

607 F.2d 1133, 1135. In Part II of its opinion, the Court today reviews the evidence, vacates the judgment of the Court of Appeals, and remands the case for a resifting of the evidence and determination of whether respondent violated the Clayton Act as amended by the Robinson-Patman Act. The Court identifies no error of fact or law in the judgment of the Court of Appeals, but vacates that judgment only because the Court finds it "unclear" whether there is sufficient evidence. I find no basis for this Court undertaking to second-guess the Court of Appeals as to the sufficiency of evidence.

Even if there were some satisfactory reason for us to review the evidence in this relatively uncomplicated case, I think the Court of Appeals was plainly correct in finding petitioner’s evidence insufficient to show a competitive injury of the kind that the antitrust laws were enacted to prevent. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488-489 (1977). Section 2(a) is a prophylactic statute that makes unlawful price discrimination that "may . . . lessen competition." Thus, a court cannot infer from the fact of a violation that defendant’s behavior has caused plaintiff any injury. A plaintiff must show, to recover damages for violation of § 2(a), that unlawful discrimination in price allowed a favored competitor to draw sales or profits from him the unfavored competitor. See Enterprise Industries, Inc. v. Texas Co., 240 F.2d 457, 458 (CA2), cert. denied, 353 U.S. 965 (1957). Petitioner’s evidence, which the Court concedes to be "weak," ante at 565, amounts to nothing more than a showing that its market share declined temporarily 4% in 1972. Petitioner presented no substantial evidence that respondent’s incentive program caused its market share to shrink. Indeed, over the 4-year period of the challenged programs, its market share increased 1%. Rather, petitioner relied on its president’s conclusory testimony, which consisted in major part of hearsay statements from petitioner’s automobile salesmen. Hypothetical analysis of the "predicted effects" of respondent’s program by an economics professor also was relied upon by petitioner to prove the actual cause of injury. One hardly would expect this Court to reject a Court of Appeals judgment that evidence as flimsy as this was insufficient to go to the jury.

My concern with the Court’s opinion, however, goes beyond its reviewing the evidence. I have understood that, in a Robinson-Patman Act case, the plaintiff has the burden of proving the fact of antitrust injury by a preponderance of the evidence. See Perkins v. Standard Oil Co., 395 U.S. 642, 648 (1969). Only when this fact has been proved may a court properly be lenient in the evidence it requires to prove the amount of damages. See Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562 (1931). It is not at all apparent that the Court adequately recognizes this distinction.

It seems to me that today’s remand measurably increases the uncertainty inherent in the generalities of the Robinson-Patman Act. Accordingly, I dissent.