Frank J. Ostrofe v. H. S. Crocker Company, Inc.

670 F.2d 1378, 1982 U.S. App. LEXIS 21196

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 1982
• Docket: 77-3985
• Status: Published

Opinions

BROWNING, Chief Judge:

The principal issue presented by this appeal is whether under the circumstances of this case a sales manager, forced to resign because he refused to participate in an alleged scheme by his employer and other manufacturers to fix prices, rig bids, and allocate markets, has standing to bring a private treble damages action against his employer under Section 4 of the Clayton Act. We hold that he does.

I.

Frank J. Ostrofe, former marketing director of H. S. Crocker Company, Inc., filed a complaint against Crocker seeking damages for injuries resulting from a violation of the Sherman Act. The complaint alleged the following: Crocker and other unnamed manufacturers of paper lithograph labels combined and conspired to unreasonably restrain interstate trade and commerce in labels in violation of Section 1 of the Act. The conspiracy consisted of a continuing agreement and concert of action among the manufacturers to fix and maintain label prices, submit rigged bids, allocate customers and territories, and “boycott those persons, including plaintiff, who have interfered or threatened to interfere with their illegal plan.” ¹ The conspiracy was effectuated in part by coercing Ostrofe, as Crock-er’s sales manager, to rig bids, fix prices, and allocate markets. When Ostrofe refused to cooperate Crocker’s co-conspirators complained to Crocker’s executive officers who warned Ostrofe that if he did not participate in the illegal scheme he would be discharged and prevented from participating in the label industry in the future. Ostrofe was repeatedly told he would not receive promised financial compensation dr a greater future share in Crocker’s management or income unless he stopped interfering with the unlawful scheme. He was forced by these threats to resign his position with Crocker, and was boycotted from further employment in the labels industiy.

Crocker moved to dismiss on the ground Ostrofe lacked “standing” to sue for damages under Section 4 of the Clayton Act. The district court granted the motion in part, holding Ostrofe could not attack the agreement to fix prices because he was not the “target” of that agreement. The court said, “[T]he conspiracy was directed not at plaintiff or other employees in any anti-competitive sense or even at his employer, but only at competitors of the conspirators in the lithograph 'label market. Any effect upon plaintiff was not an effect of the alleged anti-competitive conduct but at most an alleged incidental effect upon an employee who eventually refused to continue participation in the conspiracy.”

The court noted, however, that the complaint also alleged an understanding among Crocker and the other label manufacturers to boycott Ostrofe and others who interfered with the price fixing activities, and held that Ostrofe had standing to challenge this “separate” conspiracy. The court therefore denied the motion to dismiss with respect to this claim “without prejudice, however, to a properly documented motion for summary judgment presenting the [boycott] issue.”

Crocker filed a motion for summary judgment supported by depositions and affidavits negating the existence of any agreement among label manufacturers not to employ plaintiff. In opposition to the motion, Ostrofe offered affidavits supporting his allegations that other label manufacturers had complained to Crocker about Os-trofe’s failure to implement the price-fixing agreement, that Crocker had threatened Ostrofe with reprisals if he did not participate in the price-fixing scheme, and that these threats had forced Ostrofe’s resignation from Crocker. Crocker responded, in part, that Ostrofe’s evidence related to activities that had allegedly occurred prior to Ostrofe’s resignation, and therefore “do not relate to the claimed boycott but rather to the alleged price fixing conspiracy, as to which [Ostrofe] has no standing to complain.”

While the motion for summary judgment was pending, Ostrofe moved to amend the complaint to specifically allege a unilateral refusal by Crocker to deal with Ostrofe. The proposed amendment alleged that the “conspiracy to fix prices . . . and allocate markets has been effectuated in part by defendant [Crocker] terminating plaintiff as a national sales manager for paper labels when plaintiff failed to cooperate in the aforesaid conspiracy.” The district court denied the motion to amend, stating, “To allow the proposed amendment would, in effect, be to allow [Ostrofe] to complain of the alleged price-fixing conspiracy, since [Ostrofe] would be required to show at trial the existence of such a conspiracy in order to prove that the unilateral action was unlawful. If we were to allow the amendment, we would be granting [Ostrofe] standing to complain of the price-fixing conspiracy, which was previously denied.”

The district court later granted the motion for summary judgment without opinion, and dismissed the action.

II.

The district court erred in deciding Crocker’s motions to dismiss and for summary judgment as if Ostrofe’s claim consisted of two separate and unrelated lawsuits— one challenging a conspiracy to fix prices and allocate customers for paper lithograph labels, the other attacking an agreement to terminate and bar Ostrofe from employment in that industry.

It is axiomatic that the allegations of a complaint must “be read as a whole, and . . . viewed broadly and liberally.” Wright and Miller, 5 Fed.Practice and Procedure, 657. The same view must be taken of plaintiff’s proof: “In cases such as this, plaintiff should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. ‘. . . [T]he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.’ ” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1962)²

The fragmentation of Ostrofe’s pleading and proof lead to erroneous rulings on the motions to dismiss, to amend the complaint, and for summary judgment.

A. Motion to Dismiss

The court treated the motion to dismiss for lack of standing as if the question presented were whether a price fixing conspiracy could be challenged by an employee whose discharge was an incidental effect and not the object of that conspiracy. But the complaint alleged that Ostrofe was discharged and barred from further employment pursuant to a boycott agreement entered into as a part and in furtherance of the price-fixing conspiracy.

As the district court recognized, the boycott aimed at Ostrofe was a violation of the Sherman Act in itself, and Ostrofe had standing under Section 4 to seek damages for the injuries it allegedly caused him.³ The court cited no authority for denying Ostrofe the right, in pursuing his remedy, to establish the context of the larger conspiracy of which the boycott was allegedly a part and from which it drew its purpose. Persons injured by an agreed-upon refusal to deal employed as a part of a conspiracy to restrain or monopolize trade and commerce have been permitted to challenge the conspiracy as a whole even though their injuries did not result from the restraint on competition that was the principle object of the conspiracy. Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957); KieferStewart Co. v. E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951). Solinger v. A. & M. Records, Inc., 586 F.2d 1304 (9th Cir. 1978); Nichols v. Spencer International Press, Inc., 371 F.2d 332 (7th Cir. 1967); Standard Oil Co. of Calif. v. Moore, 251 F.2d 188 (9th Cir. 1957).⁴ Evidence of the underlying conspiracy is clearly probative of the existence of a boycott employed in furtherance of the conspiracy.

In Radovich plaintiff alleged that pursuant to an agreement among the defendants he was boycotted and blacklisted because he played for a professional football league competitive with defendant’s league. The boycott was alleged to have been part of a conspiracy to monopolize professional football in the United States in violation of Sections 1 and 2 of the Sherman Act. The player boycott was employed as a means of destroying the rival league. Plaintiff was allowed to challenge the conspiracy to monopolize of which the boycott was a part. The present case is indistinguishable from Radovich.

B. Denial of Leave to Amend the Complaint

It is a more difficult question whether Ostrofe also had standing to sue Crocker for damages under Section 4 on the theory of the case presented in Ostrofe’s proposed amendment; that is, that Crocker unilaterally discharged Ostrofe as a means of effectuating the scheme to fix prices and allocate customers.

Parties injured by unilateral conduct in furtherance of an unlawful restraint of trade have been permitted to challenge the overall scheme.⁵ But Crocker argues that it would extend liability too far to allow standing to sue for treble damages under Section 4 to persons injured only by a refusal to deal by a single conspirator in furtherance of a price-fixing conspiracy.

Section 4 limits standing in a private antitrust action for treble damages to a “person injured in his business or property by reason of anything forbidden in the antitrust laws.” The courts have devised various “tests” for standing to sue designed to limit the expansive liability that might flow from a literal interpretation of the statute.⁶ While not without utility, these “tests” have led to inconsistent, and unpredictable results.⁷ Although sufficient to resolve clear cases, less obvious cases require a balancing of competing policy interests, principally the interest in effective enforcement of the antitrust laws against the interest in avoiding vexatious litigation and excessive liability.⁸

On one hand, private treble damages actions under Section 4 constitutes a “bulwark of antitrust enforcement” by “insuring that the private action will be an ever-present threat to deter any one contemplating business behavior in violation of the antitrust laws.” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968).⁹ Thus Section 4 was “intended not merely to redress a personal injury, but to aid in achieving the broader purposes of the antitrust laws.” Comment, “Standing to Sue for Treble Damages Under Section 4 of the Clayton Act,” 64 Colum.L.Rev. 570, 571 (1964). The extent to which allowing a particular class of plaintiffs to bring suit for damages will further the enforcement purpose of Section 4 is an important factor in determining whether such plaintiffs should be allowed standing.

On the other hand, since the injurious consequences of antitrust violations may extend through large areas of the economy, the unfettered grant of standing might open the “floodgates of litigation” and “result in an over-kill, due to an enlargement of the private weapon to a caliber far exceeding that contemplated by Congress.” Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292, 1295 (2nd Cir. 1971). The extent to which these and other considerations affect the practicality and fairness of suits for treble damages by a particular class of plaintiffs must be balanced against the importance such suits may have in the enforcement of the antitrust laws.

It is unnecessary, and would be contrary to the purposes of Section 4, to erect an arbitrary and absolute bar to treble damage suits for injuries that result from a conspirator’s efforts to implement the anti-competitive aspects of the conspiracy. The interests counseling restriction of private treble damage actions may outweigh the interests of antitrust enforcement in some such cases. But the interests of antitrust enforcement may predominate in others. This is such a case.

It might be argued that such a balancing of the policy considerations will encourage litigation, burden the courts, and produce essentially ad hoc results, and that a bright-line approach, though imperfect, is therefore preferable. As the brief analysis that follows reflects, however, the significant factors are relatively few, simple, and capable of producing predictable results.

Allowing persons who are discharged for refusing to participate in antitrust violations by their employers to commence treble damage actions will advance Section 4’s purpose to further enforcement of the antitrust laws in a number of significant respects.

The agreement challenged by Ostrofe had as its purpose the fixing of prices and allocation of customers in a nationwide market. Such schemes are of grave concern to antitrust enforcement, yet they are invariably covert. Covert conspiracies in restraint of trade may go undetected by the intended victims.¹⁰ Exposure of such schemes may depend upon encouraging disclosure by insiders. Allowing suits for treble damages by employees discharged by their employers for refusing to cooperate in the illegal scheme will encourage such disclosure. Absent such a remedy, persons in Ostrofe’s position have little incentive to resist the unlawful scheme. If they take part they may be exposed to criminal liability, but detection is unlikely.¹¹ If they refuse to participate, however, discharge is virtually certain and, absent a remedy under Section 4, prospects for civil recovery are poor.¹²

No conspiracy to fix prices and allocate customers can be effective without the cooperation of responsible employees of each competitor. Discharge of those who refuse to participate is essential to success of the scheme. Affording discharged employees standing to sue for treble damages contributes to the enforcement of the antitrust laws by enhancing potential liability for a kind of conduct each business conspirator must engage in if it is to perform its role in the conspiracy.

Moreover, the grant of standing to such persons may prevent or mitigate injury to those who are the ultimate objects of the restraint. A timely suit by an employee discharged for resisting a price fixing scheme may prevent injury to the consumer or competitor who would otherwise have been its victims. Avoiding injury to the competitive structure itself is particularly important; once destroyed, competitive conditions may be difficult to restore. See Berger & Bernstein, An Analytical Framework for Antitrust Standing, 86 Yale L.J. 809, 847 (1977).

The harm to an employee discharged by his employer for refusing to participate in effectuating an antitrust conspiracy flows immediately, not remotely or indirectly, from the employer’s violation of the Act; it is neither incidental to nor derivative from injuries done to others.¹³ Thus, there is no more proximate victim who might be better qualified to bring suit for the damages sustained.¹⁴

These enforcement considerations offer strong support for allowing standing to persons discharged by their employer for refusing to participate in an antitrust violation.

On the other hand, allowing such persons to sue will have none of the negative consequences that might counsel denial of standing under Section 4.

Employees discharged by their employer for declining to take part in an antitrust violation are not so numerous that recognizing their claims would threaten a flood of litigation,¹⁵ or impose a ruinous financial burden on the industry.¹⁶ There is no danger of duplicative recovery. The damages done to such an employee are done to him alone; the damages he sustains are not passed on, nor possibly included in the losses of others.¹⁷

The complaint in this case alleges a deliberate and continuing understanding and course of conduct of a kind long and unequivocally condemned as per se illegal under the Sherman Act,¹⁸ and treble damages would not constitute an unfair penalty inflicted unjustifiably upon an unwary defendant.¹⁹

Suits for damages by persons wrongfully discharged are common; courts are accustomed to assessing such damages; they are neither unduly speculative nor difficult to calculate, obviating another source of judicial concern.²⁰

Treble damages would not be a windfall to persons discharged for refusing to take part in an anti-competitive scheme; their injury is directly and intimately related to the antitrust violation, and the remedial purpose for allowing the recovery of three times actual losses is satisfied.²¹

Since no limiting factor countervails the compelling reasons favoring standing, the balance of competing policy considerations strongly favors allowing employees who suffer loss inflicted in retaliation for opposition to anti-competitive schemes to maintain suit.

C. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)

Particular mention should be made of the Supreme Court’s decision in Brunswick in relation both to the motion to dismiss and the motion to amend.

In Brunswick, operators of bowling alleys brought suit for damages allegedly resulting from the acquisition by Brunswick Corporation of bowling centers that competed with plaintiffs. The acquisitions were claimed to violate Section 7 of the Clayton Act on the theory that “because of its size, [Brunswick] had the capacity to lessen competition in the markets it had entered by driving smaller competitors out of business.” 429 U.S. at 481, 97 S.Ct. at 694. Plaintiffs claimed injury on the theory that if Brunswick had not acquired the local bowling centers then local competitors would have gone out of business and plaintiffs’ profits would have increased. Ibid.

. The Supreme Court held that Section 4 did not authorize suit for damages for such injury. The Court pointed out that plaintiffs’ injury had nothing to do with the potential anticompetitive effects that made the merger unlawful. Plaintiff’s injury resulted from the preservation of competition rather than from the elimination of competition. To allow suit for such injury, the court said, “would make § 4 recovery entirely fortuitous, and would authorize damages for losses that are of no concern to the antitrust laws.” 429 U.S. at 487, 97 S.Ct. at 697. The damages plaintiffs sought would “provide them with the profits they would have realized had competition been reduced .... It is inimical to the purpose of this law to award damages for the type of injury claimed here.” 429 U.S. at 488, 97 S.Ct. at 697. The Court concluded:

it is quite clear that if respondents were injured, it was not “by reason of anything forbidden in the antitrust laws”: while respondents’ loss occurred “by reason of” the unlawful acquisitions, it did not occur “by reason of” that which made the acquisitions unlawful.

We therefore hold that for plaintiffs to recover treble damages on account of § 7 violations, they must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.

429 U.S. at 488-89, 97 S.Ct. at 697-98. (Emphasis in original.)

Whether Brunswick applies to suits brought under Sections 1 and 2 of the Sherman Act is unclear; ²² so too is the distinction between the concepts of standing and antitrust injury.²³ In. any event, the holding and rationale of Brunswick are entirely consistent with according standing to an employee discharged for interfering with the effectuation of an antitrust violation,

Brunswick could be read as limiting Section 4 to suits for damages caused by the anti-competitive effect of the particular antitrust violation. Similar language appears in lower court opinions.²⁴ So construed, Brunswick arguably would prevent suit by Ostrofe if his injury resulted only from unilateral conduct by Crocker in furtherance of the conspiracy rather than from the elimination of competition in the marketing of Ostrofe’s services or in the marketing of labels. But such a construction of Brunswick would not be justified.

The language of Brunswick must be read in light of the problem to which it was directed. Brunswick dealt with a claim based upon injury from the effect of an alleged antitrust violation upon competition. The Court was simply not concerned with a claim based upon injury stemming from conduct in furtherance of an antitrust violation.²⁵

The central theme of Brunswick is that to be actionable under Section 4, plaintiff’s injury should fall within the core of Congressional concern underlying the substantive provision of the antitrust laws allegedly violated.²⁶ In outlawing price fixing and customer allocation under the Sherman Act, Congress was concerned with competitive conditions in the product market; hence competitors and perhaps consumers injured by the elimination of competition between the conspiring business concerns have standing to sue.

But Congress was also concerned with the conduct of individuals acting on behalf of conspiring economic entitiés. Congress imposed criminal liability upon individuals who violate the Sherman Act even though they act in a representative capacity and in discharge of the duties of the employment.²⁷ It cannot be said that Ostrofe’s asserted loss was “of no concern to the antitrust laws.” Ostrofe was injured because of his efforts to comply with the mandate of the Sherman Act; he suffered an “antitrust injury ... of the type the antitrust laws were intended to prevent.”

Moreover, the loss did not result from' increased competition, as did the asserted loss in Brunswick, but from a conspirator’s efforts to realize an anticompetitive purpose. As sales manager of one of the conspiring companies, Ostrofe’s cooperation was necessary to effect the illegal restraint. Crocker demanded that Ostrofe engage in anticompetitive behavior, rig bids, sell at agreed-upon prices, and deal only with customers allocated to Crocker. ■ When Ostrofe refused, his removal was essential to the success of the scheme. These facts disclose the “intimate relationship between circumstances which make the wrongdoer’s conduct unlawful and the resulting harm which is the subject of the suit,” required by Brunswick. Handler, Changing Trends in Antitrust Doctrines: An Unprecedented Supreme Court Term—1977, 77 Colum.L. Rev. 979,990 (1977).²⁸

D. Motion for Summary Judgment

The court apparently treated the motion for summary judgment as if the question were whether, excluding evidence of an understanding among the manufacturers to fix prices and allocate customers and of the relationship between that understanding and Ostrofe’s discharge, there remained sufficient evidence to raise a genuine issue of fact as to the existence of an agreement among the manufacturers to boycott Os-trofe.

The result of the district court’s fragmentation of the scheme alleged in Ostrofe’s complaint was to deny Ostrofe the benefit of evidence clearly probative of the existence of a boycott.

A conspiracy between business entities to adhere to agreed-upon prices and sales territories can only be effective if the sales personnel of the participating companies adhere to the prices and territories agreed upon in making sales on behalf of their employers. Therefore a trier of fact might reasonably infer from evidence of the existence of such a conspiracy that each of the participating companies had also impliedly agreed that it would secure the adherence of its sales personnel to the prices and territories agreed upon; It would also be reasonable to infer an understanding that any non-cooperating employee who jeopardized implementation of the conspiracy would be removed from his or her position and would not be rehired.

These inferences draw further support from the evidence that employees of Crock-er’s co-conspirators complained to Ostrofe about sales he made in violation of the conspiracy, that “highly placed” executives of the competing manufacturers complained to Crocker regarding Ostrofe’s failure to adhere to the prices and territories agreed upon, and that Crocker then threatened to fire Ostrofe and bar him from future employment in the industry if he refused to cooperate.²⁹

Considering the evidence offered in opposition to the motion for summary judgment and the inferences that might be drawn from it in the light most favorable to Ostrofe,³⁰ we conclude that the evidence was sufficient to create a factual issue as to whether Ostrofe had been discharged pursuant to an implied understanding among conspiring label manufacturers. The motion for summary judgment should have been denied without weighing the evidence to the contrary.³¹

REVERSED.

1 . See United States v. H. S. Crocker Co., 1978 1 Trade Cases ¶ 61,883 (N.D.Cal.1976) and United States v. H. S. Crocker Co., 1975-2 Trade Cases ¶ 60,615 (N.D.Cal.1975).

2 . See also Lessig v. Tidewater Oil Co., 327 F.2d 459, 466 (9th Cir. 1964); Engine Specialties, Inc. v. Bombardier Ltd., 605 F.2d 1, 13-14 (1st Cir. 1979).

3 . The district court erred in concluding the alleged “conspiracy was [not] directed ... at plaintiff or other employees in any anti-competitive sense.” The complaint alleged that the boycott element of the overall conspiracy was specifically directed at barring Ostrofe from employment. The purpose and necessary effect of the boycott was to eliminate competition in the marketing of Ostrofe’s services in the industry. Thus, contrary to the district court’s conclusion, the alleged conduct of defendant and its coconspirators “injured [plaintiff’s] competitive position in the business in which he was engaged.” GAF v. Circle Floor Co., 463 F.2d 752, 758 (2d Cir. 1972). (Emphasis in original.) Group boycotts directed at a single trader or employee are illegal per se regardless of the overall effect on the economy. Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212-13, 79 S.Ct. 705, 709-10, 3 L.Ed.2d 741 (1959).

4 . See also Lee-Moore Oil Co. v. Union Oil Co., 599 F.2d 1299 (4th Cir. 1979); Hoopes v. Union Oil Co., 374 F.2d 480, 485 (9th Cir. 1967); Steiner v. Twentieth Century-Fox Film Corp., 232 F.2d 190, 193 (9th Cir. 1956); United Copper Securities Co. v. Amalgamated Copper Co., 232 F. 574 (2d Cir. 1916).

5 . Usually a unilateral refusal to deal has been involved. See Engine Specialties, supra, 605 F.2d 1; Lee-Moore Oil Co., supra, 599 F.2d at 1301-02. See also Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); Times-Picayune Publishing Co. v. U. S., 345 U.S. 594, 625-26, 73 S.Ct. 872, 889-90, 97 L.Ed. 1277 (1953). See generally 2 J. Von Kalinow-ski, Antitrust Laws and Trade Regulation, Ch. 6C, pp. 60-1 through 6C-31 (1981). In Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970) and Hoopes, supra, 374 F.2d 480, this court held plaintiffs injured by unilateral conduct in furtherance of an unlawful restraint not amounting to a refusal to deal had standing to sue.

6 . See Hawaii v. Standard Oil Co., 405 U.S. 251, 263 n.14, 92 S.Ct. 885, 891-92 n.14, 31 L.Ed.2d 184 (1972). See e.g., Reibert v. Atlantic Rich-field Co., 471 F.2d 727, 731 (10th Cir. 1973) (the “direct injury" test); Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 362 (9th Cir. 1955) (the “target area” test); Mulvey, supra, 433 F.2d at 1076 (the “reasonably forseeable” test); Malamud v. Sinclair Oil Corp., 521 F.2d 1142, 1151 (6th Cir. 1975) (the “zone of interest” test); Bravman v. Bassett Furn. Industries, Inc., 552 F.2d 90, 99-100 (3d Cir. 1977) (balance of factors test). See also California State Council v. Associated General Contractors, 648 F.2d 527, 537 38 & n.18 (9th Cir. 1980) (dictum approving zone of interests approach).

7 . See generally Berger & Bernstein, An Analytical Framework for Antitrust Standing, 86 Yale , 820 35 (1977); Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits — The Twenty-Third Annual Antitrust Review, 71 Colum.L.Rev. 1, 27 (1971).

Compare, for instance, Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir. 1971) with Congress Building Corp. v. Loew’s Inc., 246 F.2d 587 (7th Cir. 1957) and Steiner, supra, 232 F.2d 190; compare Karseal, supra, 221 F.2d at 364-65 with Billy Baxter, Inc. v. Coca-Cola Co., 431 F.2d 183, 189 (2d Cir. 1970). See In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122, 127 n.6 (9th Cir. 1973).

Contrary to the dissent’s contention, the rationale of this circuit’s line of precedent applying the “taiget area” test has not been clear and consistent. See Berger & Bernstein, supra, 86 Yale L.J. at 834 n.112. Compare Mulvey, supra, 433 F.2d at 1076 with Contreras v. Grower Shipper Vegetable Association of Central California, 484 F.2d 1346, 1347 (9th Cir. 1973). Some cases have embraced the notion of foreseeability, see Twentieth Century-Fox Film Corp. v. Goldwyn, 328 F.2d 190, 220 (9th Cir. 1964), while others have seemingly ignored it. See In re Multidistrict Vehicle Air Pollution MDL No. 31, supra, 481 F.2d at 129. Some have construed standing narrowly, Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51 (9th Cir. 1951); others have broadly interpreted standing to encompass plaintiffs who were not engaged in the market which was the object of the unlawful activity. See Hoopes, supra, 374 F.2d at 485; Steiner, supra, 232 F.2d at 193; Karseal, supra, 221 F.2d at 364-65.

8 . The Third Circuit has taken a similar approach, resolving standing by balancing various factors on a case by case basis. See Mid-West Paper Products Co. v. Continental Group, 596 F.2d 573, 581-87 (3d Cir. 1979); Bravman, supra, 552 F.2d at 99.

9 . See Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, 85 S.Ct. 1473, 1477, 14 L.Ed.2d 405 (1965); see generally Pollock, Standing to Sue, Remoteness of Injury, and the Passing-On Doctrine, 32 A.T. L.J. 5, 5 6 (1967); Berger, supra, 86 Yale L.J. at 809 n. 1.

10 . “[T]he detection rate of antitrust violations is much lower than that of other crimes because an antitrust violation ‘is usually a concealed crime and there is rarely an identifiable victim who is aware of the violation.’ ” Berger, supra, 86 Yale L.J. at 847 n.172. (Citation omitted.)

11 . See N. 10, supra.

12 . The rights of private employees without contractual protection against arbitrary or retaliatory discharge are tenuous. See e.g., Phillips v. Goodyear Tire & Rubber Co., 651 F.2d 1051, (5th Cir. 1981) (former employee alleging he was discharged in retaliation for giving truthful deposition testimony in antitrust litigation has no cause of action for wrongful discharge under state law.); Martin v. Platt, 386 N.E.2d 1026 (Ind.App.1979); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174, 178 79 (Pa.Supreme Court 1974); see generally 53 Am.Jur.2d, Master & Servant § 43 (1970); Annot. 62 A.L.R.3d 271 (1975); Annot. 51 A.L.R.2d 742, 745 47 (1957). Cf. Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981); Harless v. First National Bank, 246 S.E.2d 270 (W.Va.1978). See generally Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816, 1816-24 (1980).

The dissent argues Ostrofe has a wrongful discharge cause of action under California law. But the California doctrine is a minority rule. Effective enforcement of federal antitrust laws cannot be made to depend upon the availability of alternate remedies under varying local laws.

The dissent’s contention that allowing antitrust standing to an employee discharged for refusal to participate in an antitrust violation pretermits state employer-employee relations law “by heavy-handed interference from the federal courts” is specious. The overlap is minimal; our holding pertains only to employee terminations in furtherance of antitrust violations and not to the discharge of an employee for any other reason. As we demonstrate, infra, Ostrofe’s termination lies within the core of Congressional concern underlying the antitrust laws.

13 . Cf. California State Council, supra, 648 F.2d at 538-39; Martens v. Barrett, 245 F.2d 844 (5th Cir. 1957). Also compare Engine Specialties, supra, 605 F.2d at 17-18.

The Ninth Circuit has denied standing to employees, Solinger, supra, 586 F.2d at 1311-1312, not because of a per se “no-employee-standing-rule” but because employee injuries were found to be only incidental to an antitrust violation. See, e.g., Program Engineering, Inc. v. Triangle Publications, Inc., 634 F.2d 1188, 1191-92 (9th Cir. 1980). The shortcomings of a standing rule based on categorization (i.e. by status as “employee,” “distributor,” “lessor” etc.) have been noted by Berger, supra at 830-32. The Fifth and Seventh Circuits have granted standing to employees able to show direct injury. See, e.g., Dailey v. Quality School Plan, Inc., 380 F.2d 484 (5th Cir. 1967); Nichols, supra, 371 F.2d 332.

14 . See Areeda, supra, § 334 at p. 168; Lytle, supra, 25 Amer.Univ.L.Rev. at 801; Page, Antitrust Damages and Economic Efficiency: An Approach to Antitrust Injury, 47 U.Chi.L.Rev. 467, 500 (1980).

15 . See Hawaii v. Standard Oil, supra, 405 U.S. at 261 62, 92 S.Ct. at 890-91; Calderone Enterprises, supra, 454 F.2d 1295.

16 . See Jeffrey v. Southwestern Bell, 518 F.2d 1129, 1131 (5th Cir. 1975); Harrison v. Paramount Pictures, Inc., 115 F.Supp. 312, 317 (E.D.Pa.1953), aff’d, 211 F.2d 405 (3d Cir. 1954).

17 . Cf. Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); Loeb v. Eastman Kodak Co., 183 F. 704 (3d Cir. 1910).

18 . U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 842, 84 L.Ed. 1129 (1940); Timken Roller Bearing Co. v. U. S., 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); U. S. v. Topco Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133-34, 31 L.Ed.2d 515 (1972).

19 . See Lytle and Perdue, Antitrust Target Area Under Section 4 of the Clayton Act: Determination of Standing in Light of the Alleged Antitrust Violation, 25 Amer.Univ.L.Rev. 795, 798-800 (1976); P. Areeda & D. Turner, 2 Antitrust Law § 333, p. 162 (1978).

20 . See Calderone Enterprises, supra, 454 F.2d at 1295; see generally Areeda, supra, § 333, p. 162, §§ 335a-335c, pp. 170-176, §§ 337d-337e, pp. 187-194. Where the underlying facts and magnitude of damages are reasonably clear, the danger of meritless vexatious litigation is minimal. See Sherman, Antitrust Standing: From Loeb to Malamud, 51 N.Y.U.L.Rev. 374, 402-03 (1976).

21 . See Brunswick Corp. v. Pueblo Bowl-O-Mat Inc., 429 U.S. 477, 486, 97 S.Ct. 690, 696, 50 L.Ed.2d 701 (1977).

22 . Compare Solinger, supra, 586 F.2d at 1310; Engine Specialties, supra, 605 F.2d at 12-13; and Lee-Moore Oil, supra, 599 F.2d at 1302-03 with Bosse v. Crowell Collier & MacMillan, 565 F.2d 602, 606-07 (9th Cir. 1977).

23 . See John Lenore & Co. v. Olympia Brewing Co., 550 F.2d 495, 498-500 (9th Cir. 1977); see also CAF, supra, 463 F.2d 759. Cf. Engine Specialties, supra, 605 F.2d at 12 n.16. See generally Handler, Changing Trends in Antitrust Doctrines: An Unprecedented Supreme Court Term — 1977, 77 Colum.L.Rev. 979, 994-997 (1977); Berger, supra, 86 Yale L.J. 835-40; 13 J. Von Kalinowski, Antitrust Laws and Trade Regulation, Ch. 101, pp. 101-3 (1980); Page, supra, 47 U.Chi.L.Rev. at 497-500.

24 . See, e.g., GAF Corporation v. Circle Floor Co., supra, 463 F.2d at 758; In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, supra, 481 F.2d at 127, Conference of Studio Unions, supra, 193 F.2d at 54.

Even under this construction, Brunswick would not bar recovery of treble damages for injuries sustained by Ostrofe from the alleged boycott, since such injuries would result directly from the elimination of competition in the marketing of Ostrofe’s services. See N.3, supra.

25 . The same is true of In re Multidistrict Vehicle Air Pollution M. D. L. No. 31 and Conference of Studio Unions.

Notwithstanding the language in these opinions, this court has held plaintiffs injured by conduct in furtherance of an unlawful restraint and not by its ultimate effect may have standing to sue. See Mulvey, supra, 433 F.2d 1073; Hoopes, supra, 374 F.2d 480; Steiner, supra, 232 F.2d 190.

GAF Corp. v. Circle Floor Co., supra, 463 F.2d 752 relied upon by the district court does not compel a contrary result. Plaintiff GAF manufactured floortile. Defendant Circle Floor Co. installed floortile and was a customer of GAF. Circle Floor attempted to acquire working control of GAF to gain a competitive advantage over other manufacturers and contract installers. As a part of the attempt to take over, defendant reduced its purchases from GAF thereby depressing the market price of GAF’s stock. The court denied GAF standing to sue Circle Floor Co. under Section 4. The court held that the takeover would not have resulted in anticompetitive harm to GAF. Id. at 759. GAF did not allege that its position in the market was or would be affected. Unlike the instant case and those cited supra at N.5, GAF was not driven out of business, terminated, or forced to comply at its own economic expense with the anticompetitive demands by the defendants.

With regard to the reduction of Circle Floor Co.’s purchases from GAF, the court held Circle Floor Co. had not alleged that the “refusal to deal” was either concerted or that it had diminished GAF’s total sales or otherwise injured GAF. Id. at 759. The court did not suggest that an effective refusal to deal in furtherance of an anticompetitive goal would not have conferred standing had GAF in fact been injured thereby.

26 . This court has similarly stated standing under Section 4 is available “to those individuals whose protection is the fundamental purpose of the antitrust laws.” In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, supra, 481 F.2d at 122. See California State Council, supra, 648 F.2d at 538 n.18. See also Mid-West Paper Products, supra, 596 F.2d at 582-83.

27 . U. S. v. Wise, 370 U.S. 405, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962).

28 . See Engine Specialties, supra, 605 F.2d at 13, 18; Lee-Moore Oil, supra, 599 F.2d at 1301 1304.

29 . Crocker argues that evidence of a demand for employment, admittedly lacking here, was required to make out a cause of action for concerted refusal to deal, citing Cleary v. National Distillers and Chemical Corp., 505 F.2d 695, 697 (9th Cir. 1974) and similar cases. Assuming this to be the law, summary judgment would still have been inappropriate. There was a disputed issue of fact as to whether a demand would have been futile. See Hanover Shoe, Inc. v. United Shoe Machinery Corp., 377 F.2d 776, 781 (3d Cir. 1967), aff’d in part and rev’d in part, 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968).

30 . United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

31 . Scharf v. U. S. Attorney General, 597 F.2d 1240, 1243 (9th Cir. 1979); Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210-11 (8th Cir. 1976).