LAY, Chief Judge.
On May 2, 1979, Messrs. McDonald, Hag-fors, and Jensen filed suit against Johnson & Johnson (J & J), a corporation whose subsidiaries compete in the prescription and over the counter drug markets, alleging violations of sections 1 and 2 of the Sherman Act, section 7 of the Clayton Act, breach of contract, and fraud. After a five and one-half month jury trial, a verdict was returned against J & J on all counts except the Clayton Act violation. The following alternative damages were awarded: $170.4 million (treble $56.8 million compensatory damages) under section 1 of the Sherman Act; $170.4 million (treble $56.8 million compensatory damages) under section 2 of the Sherman Act; $5.7 million for breach of contract; $6,275 million actual damages and $25 million punitive damages for fraud.
In an opinion denying J & J’s alternative motions for judgment notwithstanding the verdict or a new trial, District Judge Miles Lord summarized the facts and discussed the issues of law. McDonald v. Johnson & Johnson, 537 F.Supp. 1282 (D.Minn.1982). For purposes of appeal, we need only briefly summarize the historical facts.
Prior to 1974, McDonald, Hagfors, and Jensen (MH & J) (plaintiff-appellees) owned StimTech (ST), a corporation that manufactured TENS1 devices and pacemakers. Hagfors originally had worked for another company in the field of nerve stimulation for the treatment of pain and in the heart pacemaker field. After incorporating ST in 1970, he designed the first modern solid-state TENS device. McDonald and Jensen became stockholders and officers of ST shortly thereafter.
In 1973, J & J (defendant-appellant), purchased 37.1% of ST’s stock for $700,000. In 1974, after extensive negotiations, J & J purchased the remaining ST stock to make ST a wholly-owned subsidiary. The 1974 acquisition agreement provided that J & J would pay a minimum of $1.3 million for 63% of ST stock, and a maximum of $7 million based on the amount of ST’s profits during a five-year earnout period from 1975 through 1979. The stock purchase contract contained a provision that stated:
Stockholders and Johnson & Johnson agree that each will at all times act in respect to its dealings with the Company and its operations, and subject to the exercise of reasonable business judgment, act [sic] in such a way as to promote to the extent reasonably possible the successful operation and growth of the Company.
The three plaintiffs, MH & J, also entered into five-year noncompete agreements and three-year employment contracts. The employment contracts automatically renewed for successive one-year periods after the first three years, unless terminated by J & J, which it could do with three months notice at any time after the first three years.
When J & J took over ST in 1974, ST had lost, under the operation of the three plaintiffs, over $400,000. Between 1974 and 1979, J & J supplied ST with $10.9 million of working capital. In 1975, ST had net TENS sales of $780,000, about 25-30% of the infant industry’s sales; under J & J’s ownership, ST’s net TENS sales reached $5.4 million by 1979, which was also about 25-30% of industry sales.2 Between 1975 and 1979, ST had increased its sales sevenfold, but had aggregate operating losses of [1373]*1373$7.3 million. Because of the losses MH & J never received any more than the minimum payment of $1.3 million for their stock. While employed by J & J, McDonald was,' demoted. He then left the company in 1977. Hagfors was demoted and left in' 1977; Jensen was discharged in 1977. J & J claims the two demotions and the firing were due to incompetence.
On appeal, J & J attacks the sufficiency of the evidence to sustain plaintiffs’ recovery for the antitrust violations under sec-‘ tions 1 and 2 of the Sherman Act. Various objections are raised concerning the instructions given relating to the component proofs required to successfully sustain a, claim under the Sherman Act; in addition, the damage awards are attacked as being based on conjectural and speculative evidence. More significant to our decision, J &
J also challenges plaintiffs’ standing to sue for antitrust violation.
J & J similarly challenges the sufficiency of the evidence to sustain proof of fraud, and alternatively the verdict for breach of contract; in addition, it is argued that the damages are excessive and based upon spec-' ulative proof. The $25 million punitive damages award for the fraud claim is similarly challenged.
We find that sufficient evidence was provided to sustain the claim for fraud and damages causally related thereto. We therefore sustain the plaintiffs’ verdict for $6,275 million for actual damages; we find, however, that the $25 million verdict for punitive damages was based on prejudicial evidence and argument and a new trial must be held in this regard.
We vacate the judgment based on sections 1 and 2 of the Sherman Act antitrust claims for lack of standing. We hold that the antitrust laws were not designed to provide stockholders, who may have been defrauded in the sale of their stock, a remedy. Their loss is not causally related to the effects of lessening of competition and the law recognizes other remedies for these plaintiffs. In doing so, we only acknowledge that even if we assume standing, it is readily apparent that plaintiffs have a great burden to establish a per se violation of section 1 of the Sherman Act. To suggest plaintiffs’ proof of acquisition and suppression meets traditional tests of establishing a per se violation of restraint of trade under section 1, which would conclusively presume that the agreement and practices are so pernicious and harmful to competition that the precise harm or business excuse need not be studied, would indeed, under the circumstances, be an unusual and unprecedented decision. Gf. Worthen Bank & Trust Co. v. National BankAmericard, Inc., 485 F.2d 119 (8th Cir.1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974). We express no opinion whether J & J’s conduct was violative of the Sherman Act as tested by the “rule of reason.” We need not meet these difficult issues because we find plaintiffs did not demonstrate standing to sue for J & J’s alleged violations of the antitrust law.
I. STANDING
Standing for antitrust violations is governed by section 4 of the Clayton Act: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor .. .. ” In Associated General Contractors v. California State Council of Carpenters, - U.S. -, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) it is acknowledged that earlier Supreme Court cases have read the statute expansively. Id. at 904. See, e.g., Mandeville Farms v. Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328 (1948). However, Associated General now makes clear that the standing question requires an evaluation of the plaintiffs’ harm, the alleged wrongdoing by the defendants, and the relationship between them. 103 S.Ct. at 907.3 The Court further points out that antitrust standing goes beyond the constitutional standard of “injury in fact” [1374]*1374and includes a determination whether the plaintiff is a proper party to bring a private antitrust action. Id. n. 31.
Whether the plaintiffs are proper parties depends on the factors articulated in Associated General. These are: (1) The causal connection between the alleged antitrust violation and the harm to the plaintiff; (2) Improper motive; (3) Whether the injury was of a type that Congress sought to redress with the antitrust laws; (4) The directness between the injury and the market restraint; (5) The speculative nature of the damages; (6) The risk of duplicate recoveries or complex damage apportionment. The court is to weigh these factors in determining whether to enforce a plaintiff’s antitrust claim. Id. at 908-12.4
As we weigh these factors, the evidence will be viewed in the light most favorable to the jury verdict and therefore it will be assumed that J & J did suppress the TENS market.
Although there may be shown some causal link between “the mere presence of a violator in the market” and harm caused to a plaintiff, more must be shown. As the landmark decision of Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), makes clear, a mere causal connection between an antitrust violation and harm to a plaintiff cannot be the basis for antitrust compensation unless the injury is directly related to the harm the antitrust laws were designed to protect.
In the present case, it is insufficient for plaintiffs to simply assert that plaintiffs’ damages would not have been incurred without defendant’s suppression of the TENS market. Assuming the proof of such fact, assuming further that defendant acted with an improper motive, as the jury finding would seem to sustain, we find there was no proximate causation5 between plaintiffs’ harm and the alleged illegal market restraint. Assuming there was market restraint — that is, the suppression of competition — by defendant’s alleged violation of §§ 1 or 2, there is no showing that a harmful effect on TENS competition caused plaintiffs any antitrust injury. Furthermore, we deem it significant the damages awarded by the jury for the antitrust violation were entirely speculative, further corroborating the lack of antitrust injury. The bottom line is that the evidence clearly does not support a finding that plaintiffs’ injury was of a type Congress sought to redress by the antitrust laws.
First, we turn to the identity of the parties. Although plaintiffs initially represented the majority shareholders of ST and for purposes of discussion might be described as the sole representative of ST’s interests, it is clear that by selling their stock plaintiffs voluntarily withdrew individually and in their representative capacity from further competition in the TENS market. Cases are legion that preclude plaintiffs’ standing to bring suit for antitrust violations when they have voluntarily withdrawn from the market. See, e.g., Chrysler [1375]*1375Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981); A.D.M. Corp. v. Sigma Instruments, Inc., 628 F.2d 753 (1st Cir.1980); Peterson v. Borden Co., 50 F.2d 644 (7th Cir.1931); Snyco, Inc. v. Penn Central Corp., 551 F.Supp. 949 (E.D.Pa.1982); Turner v. Johnson & Johnson, 549 F.Supp. 807 (D.Mass.1982); VTR, Inc. v. Goodyear Tire & Rubber Co., 303 F.Supp. 773 (S.D.N.Y.1969).6
In Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981), for example, the court denied antitrust standing to a corporation that sold its assets and covenanted not to compete; the court’s de- ; cisión was based on the fact that no Bruns- j wick “antitrust injury” was alleged since the corporation had voluntarily withdrawn from the market. Chrysler Corp. had entered into a 76 page agreement to sell virtually all the assets of its Airtems Division to Fedders Corp. in return for cash, some Fed-ders’ stock, a note, and the assumption of ; certain liabilities. 540 F.Supp. 706, 708 (S.D.N.Y.1982) (connected case); see 643 F.2d at 1231.
Chrysler also covenanted, with certain exceptions, not to compete in the nonautomotive air conditioning market for a five-year period. 643 F.2d at 1231. Chrysler became ' dissatisfied with the agreement after Fed-ders allegedly failed to pay several million dollars due under the contract. Chrysler filed a claim for a violation of section 1 of the Sherman Act against Fedders and others, alleging they had conspired to manipulate the nonautomotive air conditioning market in a manner calculated to lessen competition by eliminating Chrysler as a competitor. Id. at 1231-32. The district court denied standing on this claim, characterizing Chrysler’s allegation as a “breach of contract action which lacked the element of antitrust injury required by Brunswick.” Id. at 1231. The Sixth Circuit affirmed the holding on this allegation, correctly foreseeing that Brunswick should be interpreted “to mean that the pleading of ‘antitrust injury’ is an essential component of standing under § 4 of the Clayton Act” (footnote omitted), and thus a court should “focus on the type of injury pleaded and its relationship to the alleged anticompetitive conduct.” Id. at 1234-35. As to Chrysler’s injury, the Court reasoned:
In the present case, Chrysler’s primary allegation is that it has been eliminated from competition with the defendants by the virtual destruction of the Airtemp Division and its affiliated foreign subsidiaries. Chrysler contends that Fedders’ failure to fulfill its obligations under the contract gave the Fedders defendants the financial power to effect this destruction. Chrysler does not suggest that the contract itself violates the antitrust laws; rather, it claims that Fedders’ subversion of that agreement was the anticompeti-[1376]*1376tive means of eliminating Chrysler from the market.
We hold that these alleged injuries do not constitute “anti-trust injury” within the meaning of Brunswick, supra. By contracting to sell virtually all the assets of the Airtemp Division and all but two of its foreign subsidiaries, Chrysler voluntarily withdrew from competition in the non-automotive air-conditioning market. It did not contemplate continuing to compete in that market and in fact covenanted not to do so except through the Australian and South African subsidiaries.
Even if a breakdown of competitive conditions in the market has indeed occurred, Chrysler’s loss is not attributable to that change. Chrysler would have suffered an identical loss if the defendants had failed to make payments under the contract for reasons unrelated to the alleged antitrust violations. Gf. Brunswick, supra, at 487, 97 S.Ct. at 696. Moreover, if the defendants had fulfilled their obligations as agreed, Chrysler would have no complaint, yet would still be divested of its assets and precluded from competing in the market. See A.D.M. Corp. v. Sigma Instruments, Inc., 628 F.2d 753 (1st Cir.1980). Therefore, to the extent that Chrysler alleges damages resulting from its elimination from competition with the defendants through the Airtemp Division and the subsidiaries included in the contract for sale, it lacks the “essential connection between injury and the aims of the antitrust laws” necessary to establish standing. A.D.M. Corp., supra, at 754.
643 F.2d at 1235.7
It should be clear here that if the sale of ST assets and the merger agreement (the primary basis of the § 7 Clayton Act claim and the § 1 Sherman Act claim) had an effect on competition within the market, it was completely unrelated to plaintiffs’ harm. Any resultant effect on competition by reason of the merger would have occurred whether or not plaintiffs were harmed. Thus, the indirectness of plaintiffs’ injury to any antitrust violation is made clearly visible. In the present case, the jury, in finding for the defendant under § 7 of the Clayton Act, necessarily found there was no effect on competition by the sale itself. Plaintiffs thus argue that it was the subsequent suppression that caused the lessening of the product competition. Assuming this to be so, we find plaintiffs’ harm is directly related to their contractual [1377]*1377agreement and only indirectly caused by J & J’s alleged suppression of ST in the TENS market.
Even if the injury to the plaintiffs is characterized as directly linked to any antitrust wrongdoing by J & J because the, “suppression of the plaintiffs individually was a necessary step for Johnson & Johnson to take in achieving the overall suppression of the TENS industry,” McDonald, 537 F.Supp. at 1325, the type of injury the plaintiffs suffered is not the type the antitrust laws were intended to redress. See Associated General, 103 S.Ct. at 910 n. 44 (“We ... need not decide whether the direct victim of a boycott, who suffers a type of injury unrelated to antitrust policy, may, recover damages when the ultimate purpose of the boycott is to restrain competition in the relevant economic market.”). In exchange for the guarantee of receiving $1.3 million for their stock, the $5.7 million contingent earnout, and the three-year employment contracts, the plaintiffs willingly surrendered their stock in ST and their status as actual or potential competitors of J & J for the next five years. Contrary to the district court’s portrayal of the situation that the plaintiffs “in no way intended to withdraw from the TENS industry,” 537, F.Supp. at 1329, the plaintiffs clearly intended to withdraw as competitors in the pacemaker and pain control markets by signing the noncompete agreements.8 The fact that the plaintiffs expected to work in the industry as employees of J & J for at least three years,9 and anticipated the contract earnout because of J & J’s representations does not permit them to successfully distinguish the A.D.M., Chrysler, Peterson, Snyco, Turner line of cases.
Snyco, 551 F.Supp. at 950, and presumably Turner, 549 F.Supp. at 809-11, see supra note 6, also involved contract payouts that were contingent on the profits of the company sold to the alleged violator; these courts did not accord any antitrust signifi-canee to the fraud or breach of contract involved in the sale price ultimately paid under the contracts. By agreeing to accept the earnout under the contract with J & J, McDonald, Hagfors, and Jensen were voluntarily functioning as mere contract creditors who were formerly market participants. Similar to the situations in Chrysler, A.D.M., Snyco, and Turner, had the plaintiffs received the full contingent earnout in the contract, they would not have been harmed and clearly could not sue. However, they would still be divested of their assets and precluded from competing for five years, even though an injury to the TENS industry may have occurred. If the sale of ST and its alleged subsequent suppression had a negative effect on competition in the TENS industry, it would have occurred whether or not the plaintiffs were harmed. See A.D.M., 628 F.2d at 754. Likewise, as in Chrysler, 643 F.2d at 1235, the plaintiffs would not have received the full earnout if J & J had failed to make payments because of a poor economy or a variety of other reasons unrelated to the alleged antitrust violation. The injuries to the plaintiffs flowed from the alleged fraud and breach of contract, not from suppressed competition in the TENS or other product markets; thus, the plaintiffs did not suffer a Brunswick “antitrust injury.”
Although none of the “market withdrawal” cases involved seller-plaintiffs who accepted employment contracts with the buyer-defendants, the fact that MH & J continued in the industry as employees of J & J under five-year noncompete contracts does not alter the fact that they voluntarily withdrew as competitors and thus lack “antitrust injury.” As employees, the only market the plaintiffs would have a personal stake in would be the labor market in that industry, not the TENS market at which the conspiracy was aimed. As employees, MH & J agreed to accept certain annual salaries and benefits. 537 F.Supp. at 1318. [1378]*1378Whether or not ST achieved the potential in the market the plaintiffs envisioned, the plaintiffs as employees were still subject to receiving such salaries and being discharged without cause after three years. Any competition restrained in the labor market by reason of the plaintiffs’ employment contracts and the agreements not to compete was only brought about by plaintiffs’ voluntary and negotiated contractual choice. Cf. Snyco, 551 F.Supp. at 952 (“the diminished number of competitors results from [corporate] plaintiff’s voluntary, contractual withdrawal from the market"). This is unlike the situation in which an employee challenges an alleged boycott in the employment market of his and other employees’ services. See Radovich v. National Football League, 352 U.S. 445, 448-49, 453-54, 77 S.Ct. 390, 392-393, 394-95, 1 L.Ed.2d 456 (1957) (alleged conspiracy among football teams to boycott players breaking standard contract is subject to antitrust damages claim by boycotted player); Ostrofe v. H.S. Crocker Co., 670 F.2d 1378, 1390-91 (9th Cir.1982) (Kennedy, J., dissenting).
Regarding the covenants not to compete in this case, we note that covenants not to compete have been used as parts of schemes to unlawfully restrain trade. Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 119, 68 S.Ct. 947, 952, 92 L.Ed. 1245 (1948); United States v. Crescent Amusement Co., 323 U.S. 173, 181, 65 S.Ct. 254, 258, 89 L.Ed. 160 (1944); United States v. American Tobacco Co., 221 U.S. 106, 183, 31 S.Ct. 632, 649, 55 L.Ed. 663 (1911). However, covenants not to compete generally are not violative of the antitrust laws. United States v. Empire Gas Corp., 537 F.2d 296, 307 (8th Cir.1976). When the goodwill of a business is sold along with its other assets, such a covenant, if reasonably limited in time and geography, is necessary to protect the buyer’s legitimate interests. See id.; Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 315 F.Supp. 45, 56-57 (S.D.N.Y.1970).
This case is not alleged to be a situation as in Schine, Crescent, or American Tobacco in which the United States brought suit against competitors who forced or attempted to force other competitors to sell out to them by threats or other predatory conduct, and extracted covenants not to compete through superior bargaining position. Nor is it alleged that the covenants themselves were unreasonable in scope or duration and should thus not be enforced. Rather, the plaintiffs point to the existence of the covenants as evidence of the underlying conspiracy to suppress the TENS industry. Such evidence would be admissible in a criminal antitrust suit brought by the United States against J & J or in an antitrust damages suit brought by actual or potential competitors in the TENS market or other product markets alleged to be injured by the suppression of ST and the TENS industry. However, the mere presence of such covenants ancillary to the voluntary sale of the plaintiffs’ business cannot be used to bootstrap fraud and contract claims into an antitrust suit. See Chrysler Corp. v. Fedders Corp., 643 F.2d at 1231-35; Snyco, Inc. v. Penn Central Corp., 551 F.Supp. at 950-53.
Finally, we think it clear that the damage award for this violation of the antitrust laws is not only speculative, but serves to corroborate the lack of plaintiffs’ direct injury from the alleged market restraints. The jury awarded plaintiffs $56.8 million as compensatory damage. Yet as plaintiffs have attempted to otherwise prove, their actual damage from the fraud or breach of contract was $5.7-6.2 million. Plaintiffs urge that $56 million is ST’s damage from not being allowed to survive and compete in the market; this figure would allegedly have been its projected profit. But this argument is not only conjectural in amount, it basically fails to recognize that had J & J successfully manufactured the TENS device, the profit would have been J & J’s and the only derivative share plaintiffs would have received was their contracted earnout compensation awarded in their suit for fraud.
Plaintiffs further urge that by the suppression, competition in the TENS industry was harmed. But surely plaintiffs cannot claim damages for the entire industry. In this regard, it is difficult to understand just how the competition in the TENS industry was harmed — ST’s competí-[1379]*1379tors arguably were better off by J & J’s suppression of its own TENS product. Even if the competitors were not better off, J & J had no duty to competitors „ or consumers to promote its own product. This is an internal, private business decision. Cf. GAF Corp. v. Eastman Kodak Co., 519 F.Supp. 1203, 1231 (S.D.N.Y. 1981) (firm’s failure to introduce a product is not anticompetitive). Nor can plaintiffs’ individual withdrawal from the market — separating themselves from ST (somewhat inconsistent with plaintiffs’ overall theory) — be the basis for projected profits. Another theory we inferentially glean from plaintiffs’ argument is that plaintiffs’ harm is based upon J & J’s further intrenehment in the analgesic market ¡ by removing ST and its competition in the [ related field of pain control. Assuming this ' true, plaintiffs’ harm clearly did not result from such alleged market restraints.
In sum, we find that (1) plaintiffs voluntarily withdrew themselves from competition; (2) there was no causal connection . between plaintiffs’ harm and the alleged market restraint; (3) there was only speculative damage shown; and (4) any injury plaintiffs have shown was not a type that Congress sought to redress under the antitrust laws.
Since the plaintiffs have not proven “antitrust injury,” a solid line of case law mandates a judgment notwithstanding the verdict to dismiss the plaintiffs’ antitrust claims for failure to prove damages cognizable under the antitrust laws. If consumers or competitors in the product markets suffered “antitrust injuries,” they should be the ones with capacity to sue under the antitrust laws for the violations alleged here. Cf. Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983).
We vacate the judgment on the antitrust claim and remand with directions to dismiss the counts dealing with these claims.
ll. THE FRAUD CLAIM
J & J challenges the fraud claim on several grounds. First, it argues that the alleged oral assurance that a full earnout would be returned to the plaintiffs was merely a prediction of a future event; second, that no credible evidence exists that such an assurance was made; third, that the alleged promises of generalized assistance to ST were not actionable; fourth, assuming a prima facie case of fraud was established, that no ascertainable damage was shown; last, that the trial court erred in failing to submit J & J’s in pari delicto defense. We discuss these claims seriatim.
J & J first alleges that a prediction of a future event cannot be the basis of an actionable misrepresentation. The evidence adduced at trial shows that J & J made assurances of what it was going to do for ST after the acquisition. These assurances were material promises to be performed in the future by the defendant. Under controlling Minnesota law, when such promises are made with the intent to defraud and without the intent to perform, this constitutes actionable fraud. Vandeputte v. Soderholm, 298 Minn. 505, 216 N.W.2d 144, 147 (1974); Wojtkowski v. Peterson, 234 Minn. 63, 47 N.W.2d 455, 458 (1951).
Second, J & J argues that no credible evidence exists that it assured plaintiffs of receiving a full earnout. We find this argument to be without merit because plaintiffs’ fraud claim did not rest on any “guarantees” of payment. Rather, plaintiffs’ theory was that J & J made material promises to be performed in the future which were made with the intent to defraud and which were never intended to be performed by J & J. These promises were related to the general promotion of ST.10
[1380]*1380Third, J & J urges that the supposed generalized promise to make “an effort” to promote ST cannot be a basis for the fraud claim and should have been dismissed because (a) the evidence contradicts the alleged promises, (b) even if the promises were made, J & J made the requisite effort, (c) any alleged promise to promote is contrary to the contractual good faith standard of conduct, and (d) whether the contract terms contradicted the alleged oral representations is a question of law and should not have been decided by the jury.
As to (a) and (b) above, there was sufficient evidence for the jury to find to the contrary.11
With regard to (c), we cannot find any inconsistency between the acquisition agreement and J & J’s alleged representations that J & J would provide marketing, financial, managerial, and other assistance to ST. The evidence shows representations that J & J would permit the plaintiffs to remain with ST and run the business; that the J & J name would be behind ST; and that J & J would do everything possible to assist ST so that it could produce sales and profits sufficient to generate the maximum earnout payments. Moreover, the court specifically instructed the jury that it could not return a verdict for the plaintiffs on the basis of any representations directly contradicted by the September 20, 1974, agreement. We must assume that the jury properly regarded these instructions, especially when there is evidence to support the jury’s findings.
J & J also argues that whether the contract terms contradicted the alleged oral representations is a question of law and should not have been decided by the jury. We respectfully disagree.
The district court instructed the jury that “where the parties’ contract contradicts the allegedly false representation, plaintiffs’ reliance on the representation is not reasonable under the circumstances.” J & J admits that this is a correct statement of law, but asserts that the jury was not the one to apply it. J & J relies on the principle that a contract must be interpreted and enforced according to its terms, and such interpretation is primarily a question of law. This argument fails for three reasons. First, although interpreting a contract may be a question of law, it does not follow that determining whether a representation contradicts a contract is also a question of law. To the contrary, whether a representation contradicts a contract is question of fact, or at best a mixed question of law and fact. Second, J & J made no objection to the applicable instruction at trial or in its post-trial motions. Third, even if the determination were a question of law, we find the representations do not contradict the contract.
J & J’s fourth challenge to the fraud claim is that even assuming that plaintiffs made out a prima facie case of fraud, they failed to prove any damages. The district court instructed that the appropriate measure of compensatory damages was the difference between the value of the plaintiffs’ stock in ST and what they actually received for it. Plaintiffs received $1.3 million; they testified that the stock was worth at least $7 million. Mr. Whitlock, vice chairman of J & J’s Executive Committee, admitted that he sought authority from the Executive Committee to purchase the ST [1381]*1381stock for $8 million because that is what he thought it was worth. We find that this is sufficient evidence to sustain the jury’s damage award on the fraud claim.
J & J stressed at oral argument that since the contract only provided the plain7l tiffs with a maximum of $5.7 million in addition to the $1.3 million already paid, the most the jury could award would be $5.7 million. J & J argues that the amount over $5.7 million is therefore excessive. We do not agree. There is evidence in the record that J & J made representations to plaintiffs to the effect that they would receive certain executive benefits in addition to the payout. The jury could have found these to equal the difference.
J & J’s final challenge to the fraud claim is that the district court erred in refusing to submit J & J’s in pari delicto defense. The essence of this defense is that plaintiffs concealed from J & J that their previous, employer had fired them for incompetence, and that J & J would not have bought ST had it known this fact. The district court allowed the defendants during trial to explore the area of nondisclosure on the part of the plaintiffs. However, the evidence revealed only that McDonald and Hagfors left the employment of their previous employer due to personality conflicts. J & J failed to provide evidence that plaintiffs were fired for incompetence. Moreover,! there was no evidence of any reliance upon this alleged nondisclosure.
Under the circumstances we find no prejudicial error in the district court’s refusal to submit an instruction on the in pari delicto defense.
Because we find no merit to J & J’s challenges of the fraud claim, we affirm the jury’s award of $6,275 million.
III. PUNITIVE DAMAGES
Based on the fraud count, the district court submitted the question of punitive damages to the jury. The jury returned a verdict for $25 million. J & J challenges the punitive damages award as being excessive and based upon prejudicial factors.
The district court instructed the jury: “If you decide to award punitive damages, then your award should be measured by such factors as the seriousness or degree of any damage defendant’s conduct caused to the general public.” This is a correct statement of Minnesota law with respect to punitive damages. The relevant statute states:
Any award of punitive damages shall be measured by those factors which justly bear upon the purpose of punitive damages, including the seriousness of hazard to the public arising from the defendant’s misconduct, the profitability of the misconduct to the defendant, the duration of the misconduct and any concealment of it, the degree of the defendant’s awareness of the hazard and of its excessiveness, the attitude and conduct of the defendant upon discovery of the misconduct, the number and level of employees involved in causing or concealing the misconduct, the financial condition of the defendant, and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards to the plaintiff and other similarly situated persons, and the severity of any criminal penalty to which the defendant may be subject.
Minn.Stat. § 549.20(3) (1982).
Punitive damages are designed to punish the offender for his malicious or oppressive conduct. Nye v. Blyth Eastman Dillion & Co., 588 F.2d 1189, 1200 (8th Cir.1978). In the present case, it is highly relevant that the malicious or oppressive conduct must have been related to the fraud, not the suppression. Punitive damages beyond the statutory trebled damages cannot be awarded for an antitrust violation. The enhancement of damages in an antitrust case is the damages trebled. See Clark Oil Co. v. Phillips Petroleum Co., 148 F.2d 580, 582 (8th Cir.) (antitrust damage provision embodies both punitive and compensatory damages), cert. denied, 326 U.S. 734, 66 S.Ct. 42, 90 L.Ed. 437 (1945). A separate award for punitive damages would at the very least become duplication.
The record makes clear that plaintiffs argued to the jury that it could punish [1382]*1382J & J for the suppression. Counsel used the court’s punitive damages charge to inject an inflammatory remark concerning “public damage” directly related to the alleged antitrust violation of suppression.
Plaintiffs’ counsel argued:
Before we go any further, “seriousness or degree of any damage the defendant’s conduct caused to the general public.” There is no amount of money that can any way, any way, satisfy that requirement — none. Because the seriousness and the degree of damage that they have caused to the general public is incalculable, even if it were but one person, one person, as you saw in this study when they were trying to evaluate in terms of money.
That’s the way you have to do it, in terms of money — evaluate what it is in the pain market.
They say it’s $50 billion it costs. But they say the pain itself to the patients is immeasurable. The amount there is immeasurable! You can never calculate that! You can never calculate that!
So how do we do this? I don’t know. I really don’t know. I will tell you what I do know and what we in this courtroom, we know, and J & J knows and all those people, all of the people, so-called chronic pain sufferers, every one of them.
The drugs — Tylenol with Codeine, Zo-max, whatever — are absolutely worthless to them. That is uncontested, that the drugs cannot do anything for those people — nothing!
Yet the chronic pain patients spend $800 million a year on this fake, on these pills that do nothing, because they’re looking for anything they can get their hands on to relieve their pain, and J & J above all of them knows that that [TENS] would help them!
We’re a $5 billion company. We can’t be fooling around with this small-time stuff [TENS]. Now, that — that is an obligation.
Tr. 13,159-60.12
Plaintiffs ultimately asked the jury for $300 million in punitive damages. This amount was based on the harm to the public — the chronic-pain patients that were denied access to TENS devices. Thus, we think it clear the jury was requested to punish defendants for suppression, nor, for fraud. This argument was clearly prejudicial. Although the fraud may have been tangentially related to the suppression, damages for suppression were to be awarded by the jury under the antitrust claim. Our finding that these plaintiffs do not have standing to punish for antitrust violations merely enhances the prejudicial effect of the argument.
We therefore find the jury’s $25 million punitive damages award to have been largely based upon plaintiffs’ prejudicial and legally unfounded arguments. Moreover, the long trial (nearly six months) and the evidence relating to the entire antitrust claim created a prejudicial atmosphere that was compounded by plaintiffs’ impermissible closing argument on punitive damages. This allowed the jury to punish the defendant as well for the antitrust violations.
In this regard, we vacate the award on punitive damages and remand to the district court for a new trial solely on the issue of punitive damages. We do not pass on the issue of whether, in the abstract, a $25 [1383]*1383million punitive damages award may be, excessive when based upon a $6 million1 fraud judgment.
We vacate the award of damages relating to the antitrust claim under §§ 1 and 2 of the Sherman Act with directions to dismiss plaintiffs’ complaint with prejudice as to these claims for lack of standing to bring the suit.
We affirm the judgment on the verdict of $6,275 million for fraud; we vacate the judgment on the verdict of $25 million for punitive damages and remand to the district court for a new trial on punitive damages only.
Each party shall pay own costs.