Marsann Company, a Sole Proprietorship v. Brammall, Inc., a Corporation

788 F.2d 611, 1986 U.S. App. LEXIS 24646, 54 U.S.L.W. 2573
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 28, 1986
Docket85-1580
StatusPublished
Cited by19 cases

This text of 788 F.2d 611 (Marsann Company, a Sole Proprietorship v. Brammall, Inc., a Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marsann Company, a Sole Proprietorship v. Brammall, Inc., a Corporation, 788 F.2d 611, 1986 U.S. App. LEXIS 24646, 54 U.S.L.W. 2573 (9th Cir. 1986).

Opinions

SNEED, Circuit Judge:

In this case, we must decide what is a plaintiff's burden of proof for establishing the element of predation in a predatory pricing claim when the alleged predatory price is afforded only to a select customer. The principal question presented is whether the average variable cost of a product, the standard against which a price is compared to establish predation, must be determined from costs uniquely incurred in the production of the particular items purchased at the allegedly predatory price, or from costs associated with the production of the total output of the product. We hold that the relevant costs are the former, viz. those uniquely incurred to produce the items sold at the challenged price. However, for another reason we reverse and remand for further proceedings.

I.

Plaintiff Marsann Company and defendant Brammall, Inc. provide on-site roll-straightening services to companies that handle large rolls of various materials such as paper, steel, and tin. Essentially, Mar-sann and Brammall fix the damaged central core of these rolls so that they will fit onto processing machines. Brammall is a large corporation, a division of which performs roll-straightening services nationwide. Marsann is a sole proprietorship that competes for business with Brammall in several western states.

Before September 1, 1983, Marsann performed roll-straightening work at the United States Steel mill in Pittsburg, California, charging 1.5 cents per pound, with a minimum charge of $275 per roll. Brammall then acquired the United States Steel account, charging 1 cent per pound.

Marsann brought suit under section 2 of the Sherman Act, 15 U.S.C. § 2, alleging that Brammall had attempted to monopolize the roll-straightening business in the western region by offering selected customers a predatory price for those services. Marsann contends that the 1 cent per pound charged to United States Steel was a predatory price. Marsann relies primarily on a report prepared by its expert, Mr. Cropper, which found that the 1 cent price was .514 cents below Brammall’s average variable cost (AVC) and thus presumed to be predatory under the law of this circuit. See Transamerica Computer Co. v. IBM Corp., 698 F.2d 1377, 1386 (9th Cir.), cert. denied, 464 U.S. 955, 104 S.Ct. 370, 78 L.Ed.2d 329 (1983). Cropper determined Brammall’s AVC by studying costs of the company’s entire roll-straightening division over the four-month period in which Brammall performed its work at United States [613]*613Steel. He then classified costs as fixed or variable, dividing the total variable costs by output to produce the AYC figure. In effect, he assumed that the variable costs attributable to each unit of production were the same without regard to the particular circumstances under which that unit of production took place. Marsann admits that Cropper did not examine the actual costs of the United States Steel job alone. Indeed, it claims that the cost figures per job would be impossible to ascertain because of the nature of Brammall’s accounting system.

Brammall moved for summary judgment, asserting that Marsann had failed to meet its burden of proof because it had not established marginal costs uniquely incurred by Brammall at the United States Steel plant. Marsann argued that it need only establish average variable cost for the product overall, rather than costs specifically related to the United States Steel job. The district court entered summary judgment in favor of Brammall, stating that despite the “harsh results,” plaintiffs burden of proof was to measure “the variable costs of performing services at U.S.S. only.” Marsann appeals the burden of proof standard applied by the distinct court. For a reason stated hereafter, we reverse and remand.

II.

Under a claim of attempted monopolization by predatory pricing, a plaintiff must prove four elements: (1) specific intent to control prices or destroy competition in some part of commerce; (2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; (3) a dangerous probability of success; and (4) causal antitrust injury. See William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1027 (9th Cir.1981), cert. denied, 459 U.S. 825, 103 S.Ct. 58, 74 L.Ed.2d 61 (1982); California Computer Products, Inc. v. IBM, 613 F.2d 727, 736 (9th Cir.1979).1 Because it is unreasonable to expect plaintiffs in most cases to produce evidence of anticompeti-tive intent by sophisticated defendants, see Inglis, 688 F.2d at 1028 & n. 6, we have allowed juries to infer the requisite intent from evidence of “the relationship between the defendant’s prices and costs.” Id. at 1034. While price generally is known in a predatory pricing case, the usually more troublesome issue is that of costs. That is, what costs must be compared with the alleged predatory price to establish predation?

Obviously the method used to determine “cost” will affect its amount. Each additional unit of production will have a cost when, in determining cost, all costs of production are divided by the total number of units produced. On the other hand, an additional unit of production might entail no costs that would not have been incurred in any event by the production of all units other than this last additional unit. Under those circumstances the “marginal cost” of that last unit is zero. Usually common sense tells us that the marginal cost of an additional unit is greater than zero even if we can not fix that cost precisely through accepted accounting methods.

Average variable cost functions as a surrogate for marginal cost. It is arrived at by apportioning to that product, which if priced predatorily would tend to eliminate competition, those costs that would not be incurred were that product not produced. This case presents not only the problem of determining average variable costs but also of fixing the identity of the “product” for which we seek to establish average variable costs. Marsann’s theory of recovery in effect assumes that the “product” is roll-straightening services whenever and for [614]*614whomever performed. In our view the district court correctly identified the “product” as being straightening work at the United States Steel mill in Pittsburg, California.

The governing precedent in this circuit on product definition in predatory pricing cases is Janich Bros. v. American Distilling Co., 570 F.2d 848, 856-57 (9th Cir.), cert. denied, 439 U.S. 829, 99 S.Ct. 103, 58 L.Ed.2d 122 (1978). In that case, we analyzed charges that a distiller had attempted to drive competitors out of the market by charging predatorily low prices on half-gallon size bottles of private label gin and vodka.

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788 F.2d 611, 1986 U.S. App. LEXIS 24646, 54 U.S.L.W. 2573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsann-company-a-sole-proprietorship-v-brammall-inc-a-corporation-ca9-1986.