Loeb Industries, Inc. v. Sumitomo Corp.

interest, public this does render Indiana Code 36-7-3-11 was unconstitu- every aspect. unconstitutional tional on its statute face. The statute could be standard we can envi- constitutionally applied Under Salerno and the Constitu- scenarios where a com- tion plan prohibit sion several does not specific delegations with their comply statutory legislative mission could of state power. For these and proposed and allow a foregoing mandate covenant reasons we Affirm the in- junction in the public against vacation interest. For the Plan Commission from example, plan vacating commission could vacate the restrictive covenant of the if rationally a covenant it was related to a private Broadmoor Addition for a purpose, public already by legis- interest authorized but Reverse the district court decision Also, plan § lative enactment. commis- finding Ind.Code facially 36-7-3-11 un- sion could find that the vacation would constitutional. health,

substantially advance the safety community.

and welfare of the For exam- if

ple the commission found that an area

was under-served doctors’ or dentists’

offices, facilities, day care and the vaca- substantially

tion would serve to fill that

need, then the vacation could be found to Therefore, public

be interest. since potential

the covenant vacation statute has applications,

constitutional this facial at- Salerno,

tack fails. See 481 U.S. at conclusion, 107 S.Ct. 2095. In the Daniels INDUSTRIES, LOEB INCORPORAT have not shown that Indiana Code 36-7-3- ED, Angeles Scrap Los Iron Metal & 11 is unconstitutional because the statute Corporation, Prep Compa and Metal expressly requires that vacations be ny, Incorporated, Plaintiffs-Appel interest, public delegate and does not pub- lants, lic use determinations violation of the Federal Constitution. v.

IV. SUMITOMO CORPORATION Global Minerals and Metals Cor conclusion, properly the district court poration, Defendants-Appellees. subject jurisdiction asserted matter over claim, although the Daniels’ not under Pat- Industries, Incorporated, Loeb An Los sy, exempted but because were from geles Scrap Corporation, Iron & Metal County’s ripeness require- Williamson Prep Company, Incorporat and Metal futility. ments due to The district court ed, Plaintiffs-Appellants, properly also that Indiana concluded Code 36-7-3-11 was unconstitutionally applied against effectuating pub- Daniels taking JPMorgan Co.,*

lic for a private purpose. However Chase & Defendants- improperly Appellees. the district court found * Co., Inc., purposes opinion using Morgan For Morgan Guaranty of this we are & bank, JPMorgan current name of the which is Trust Co. of New York. entity & Chase Co. That includes J.P. both Incorporated, Capital, for View

Ocean Triangle &

merly Ca known as Wire Plaintiff-Appellant,

ble, Incorporated,

v. America, Corporation

Sumitomo Miner Corporation, Global

Sumitomo al., Corporation, et De Metals

als and

fendants-Appellees.

Viacom, Incorporated, as successor formerly Corporation,

merger to CBS Westinghouse Electric Cor

known as Emerson Electric Com

poration, and Plaintiffs-Appellants,

pany, Corpora and Metals Minerals

Global Lyonnais Rouse,

tion Credit

Ltd., Defendants-Appellees. 01-1148, 01-3229, 00-3979,

No.

01-3230, 01-3485. Appeals, Court of

United States Circuit.

Seventh 5, 2001.

Argued Sept. 13, 2001 **. Sept.

Submitted May 2002.

Argued Sept. 2002.

Decided ** Thus, appeals are submitted on the briefs and the those After an examination of 01-3230, the record. See fed. R. P. App. we have briefs and Nos. 01-3229 and record in 34(a)(2). unnecessary. argument that oral concluded (submitted), Houston,

Reginald R. Smith TX, Viacom, Elec. Inc. and Emerson Co. (submitted), Quarles R.

David Cross & Milwaukee, WI, Brady, for Sumitomo Corp. Haveles, (submitted),

H. Bruce Peter Jr. (submitted), Cadwalader, Birenboim Wick- Taft, City, ersham & New York for Global Corp. Minerals and Metals (submitted), James H. R. Windels Sarah (submitted), Davis, Stasford Polk & Ward- well, City, Morgan New York for J.P. & Morgan Guaranty Co. Inc. and Trust Co. of New York. (submitted), Goldwag

Celia Barenholtz Kronish, Lieb, Heilman, Weiner & New City, Corp. York for Sumitomo of America Corp. and Sumitomo (submitted), Mayer, Steven Wolowitz Brown, Maw, City, & Rowe New York Rouse, Lyonnais Ltd. Credit Foer, Albert A. American Antitrust In- stitute, DC, Bray, D. Washington, John DC, Bauer, Washington, P. Notre Joseph School, Dame, IN, Ami- Dame Law Notre Institute, cus Curiae American Antitrust Viacom, Inc., Elec. and Emerson Co. Gen- eral Elec. CUDAHY, ROVNER,

Before and WOOD, DIANE P. Judges. Circuit Barnow, Goldberg, Barnow & Chi- Ben (submitted), IL, H. Weinstein cago, David WOOD, P. Judge. DIANE Circuit Kitchenoff, Weinstein, & Gold- Scarlato cases, These which we have consolidated man, PA, R. Philadelphia, William Stein- purposes opinion, for of this all arise out of Boerner, Deuren, metz, Reinhart, Van alleged in the 1990s to fix conspiracy Milwaukee, WI, Rieselbach, Norris & artificially copper futures Industries, Inc., Angeles Scrap Loeb Los high exchange levels on the international Co., Corp. Prep Iron Metal and Metal & manipulation markets. This market nec- Inc. essarily directly and inflated the (submitted), P. Dumain Mil- products purchased by plaintiffs, Sanford Lerach, Weiss, Bershad, cathode, rod, Hynes & berg, buyers copper copper and City, Capital, scrap copper, New York for Ocean View who have sued for violations Act, RICO, Inc. of the Sherman and various (a Westinghouse court dismissed rated successor to Elec- The district state laws. either Corporation) each of the tric and Emerson Electric the claims of were their claims ground Company, copper on the turn cathode into wire purchaser rule of by the indirect purchased barred for resale to merchants. Each Illinois, 720, 431 U.S. Illinois Brick Co. pounds hundreds of millions of of cathode (1977), 2061, or on 52 L.Ed.2d 707 97 S.Ct. during period the relevant time from inte- too injuries their were ground grated producers, who smelt and refine under Associated speculative remote and copper from their own mines into cathode. Cal. Inc. v. Contractors General Califor- Capital plaintiff is the Ocean View 459 U.S. Carpenters, nia Council State Nos. 01-3229 and 01-3230. Until it went (1983) L.Ed.2d S.Ct. large out of business in it was a (AGC). pres- that Illinois Brick We find cop- Rhode Island-based manufacturer of plaintiffs’ of the ents no obstacle wire and cable. per Unlike Viacom scrap the claims of the claims but , Emerson, normally Ocean View did not precluded are under AGC. copper dealers cathode; instead, it purchase bought cop- hand, that the the other we conclude On already that had transformed per been have copper cathode and rod purchasers rod. of this rod was manufac- into Some injury independent a direct and suffered by integrated tured producers. Ocean . participants in are the best situated View also with semi- frequently contracted a law- physical copper bring market to fabricators, operate which own and rod We therefore affirm reverse part, suit. .mines, concentrators, mills but do own further part and remand part, smelters, Instead, or refineries. semi-fa- proceedings. typically purchase bricators cathode from producers copper traders fabricate I occasions, the cathode into rod. On some A. The Parties process by enter- Ocean View varied a com- production copper entails ing agreements into with its semi- tolling First, four-step process. plicated which it fabricators under from a mine producers extract ore producers own cathode from or traders mill it gravel-like and crush or into a sub- to con- paid and then semi-fabricator Second, known as concentrate. stance vert it into usable rod. out the nonferrous met- separate smelters in Loeb Industries plaintiffs The concentrate, producing one-me- als 01-1148, Sumitomo, and are Nos. 00-3979 anode, ap- which are square plates ter of (to whom we scrap three metal dealers Next, the anode proximately copper. 90% Dealers”). Each “Scrap pur- refer as the eleetrolytically refined to create sheets is ei- only scrap copper; buys chases none Finally, fed into of cathode. the cathode is pur- scrap ther or rod. The is cathode mill melted into rod or a furnace at a and sources, variety including chased from a manufacturing the course of ca- wire. and wire manufactur- integrated producers rod, pro- scrap copper thode and is also ers, and resold. repackaged and then duced, it too can be sold into the and market. Copper Market B. The large in these actions are plaintiffs in a copper fact that is sold Despite the companies occupying positions various forms, summary variety physical production chain. along copper (viewed Viacom, most 01-3485, light record Incorpo- judgment in No. plaintiffs 47 plaintiffs) indicates that period

favorable to relevant time from 2.75d:/tb copper through- is consistent pricing The record also indicates that 3.5<tflb. industry. many Like other com- increased, out the price when the base of copper modities, is traded on copper commodities premium tended to increase well. exchanges through warrants and futures bought Viacom over half pounds a billion Most futures are traded contracts. of cathode from Asarco. Asarco manufac- Exchange on the London Metals either cathode, tured most of this but some had (LME) Di- Exchange or the Commodities purchased been for resale from other mer- vision of the New York Mercantile Ex- up chants to make for production short- (known “Comex”). familiarly change as the falls. Because purchases records of these mature, they When futures contracts must were not kept, impossible is to tell by offsetting either closed out trade be whether particular pound of cathode by underlying deliveries of the satisfied sold to Viacom was manufactured Asar- If physical goods. a futures trader merely purchased co or for resale. The short, satisfy obligation her un- she must concede, however, defendants some by immediately der the futures contract in question being the cathode sold into delivering physical copper cathode to an the market for the first time. While there warehouse; LME if a or Comex trader is numbers, dispute is some as to the exact similarly long, may she call taking light the evidence in the most favor- copper cathode from a warehouse. Be- Viacom, able to Asarco sold it 510 million this, physical copper, cause of pounds peri- of cathode over the relevant rod, cathode, including scrap copper, frame, od. During this same time Asarco directly linked to the LME and Comex pounds refined 6.4 billion of cathode and futures, and dealers in all purchased pounds 153 million from third physical copper quote prices forms of Therefore, parties. even if one assumed rigid formulas related to' copper based every scrap previously of Asarco’s cathode futures. (in- sold cathode was shipped to Viacom While sales between six many stead of to one of its other custom- copper industry partici- numerous other ers), Viacom still 357 million involved, are we will pants illustrate this pounds never-before-purchased cathode. linkage by discussing only relationship only seeks this suit Viacom, plaintiffs, between one of the cathode that was sold for the first largest integrated producer, Asarco. integrated producers. time yearly supply Viacom entered into con- materials,’ Asarco pm-chased also raw Asarco, copies tracts with are which anode, such as concentrate and to supple- contracts, included in the record. In these ' ment production keep its own and its price paid the for cathode Asarco and running smelters refineries at full ca- First, up was made of two components. pacity. pounds At least 27 million of the price by the base was set “the arithmetic shipped cathode Asarco to Viacom consist- average position of the COMEX first set- materials, entirely ed of Asarco raw but during the copper tlements for high-grade may the rest well contain some percentage calendar month shipment.” of scheduled previously purchased of From 1990 to fluctuated materials. While price raw priced from to over materials are often in reference about Added $1.40/lb. 75d:/lb price premium” prices, only actually to the was a “cathode to Comex cathode base monthly quarterly on a the exchange. was set traded on Raw material premium prices incorporate basis. Asarco’s fluctuated over also significant and physical copper. Through the a series of discounts based on both widely varying into ca- transactions with defendant Global Miner- converting the materials cost of a smelting Corporation, copper als and Metals mer- refining current and thode and chant, Furthermore, supplies the it hoarded vast of defendants’ capacity. copper purpose-of restricting sup- of for the prices that while the experts testified ply, paper and it entered into transactions “may indirectly be affected raw materials a increased squeeze a or corner order to show false demand manipulations,” In directly particular, harm the for the metal. Sumitomo cathode could not long-term established sham contracts that pre-cathode of raw materials. purchasers purportedly required purchase it to vast scrap The of rod and are similar pricing quantities copper from Global aon premi- each contains further except that monthly a three period years. basis over off the cathode futures ums and discounts These sham contracts enabled Sumitomo variety a of additional price to reflect publicly justify its accumulation of ex- pricing Rod contains additional costs. positions cessive forward as a copper premium. Scrap copper shaping rod or hedge. By ap- June Sumitomo held only price are affected prices proximately long ten of the percent entire costs, freight sizing, sort- cathode but also position copper Comex futures. purity requirements. and ing, packaging, time, began At that to call in Sumitomo and custom- suppliers of Viacom’s Some shorts raise demand to inflated by pur- in strategic hedging ers engaged reap profits levels and to from its on the futures mar- chasing “put” options due, came sales. When these contracts right, put option kets. A has holder short futures traders were forced to cover obligation, not the to sell but positions by acquiring physical cop- their price. at an established “strike” contract per prices, cop- at inflated because no new price higher If than per entering was the warehouses thanks to (because, example, for price strike manipulations actions. These Sumitomo’s raised), price artificially has been price primary copper to rise caused the only expire will and its option holder’s two-year period. In more than 50% over Asar- option. cost will be the of the uncovered, 1996, the June scheme options hedge its out- purchased put co by a trading price copper dropped hedge against specific it did not put, but overnight. third almost transactions, by, example, purchasing rod, cathode, scrap physical copper to. a futures contract for each sale made (cid:127) comparably. crashed hedging activities were also Viacom. Its supply. limited to a fraction of its One States Commodities United Kennecott, (CFTC) did not suppliers, Viacom’s Trading and Futures Commission all, hedge at and Viacom itself never had violated determined Sumitomo hedged copper purchases. by raising Act Commodity Exchange futures and fixing Conspiracy

C. company with the reached a settlement is a n fine. pay it to million Corporation required $150 Defendant Sumitomo a number of attempt- finding spawned That has Japanese trading corporation defendants, in- against fix maintain the of antitrust suits ed to on behalf of cluding class action lawsuits artificially high September levels from copper futures and on eye all to those who traded 1993 to June with purchasers primary certain of capacity in as a seller of behalf of enriching itself 478 with the The court next examined the claim of Sumitomo settled its suit

copper. It approximately Scrap Dealers. denied their motion traders $134 certification, fundamentally be- have also settled for class million. The defendants the proposed cause concluded court class action a California state sue, plaintiffs named could not either for various state antitrust laws. brought under sellers, injuries their own or for those others including Many plaintiffs’ of the situated, Asarco, similarly in because fell within the lawsuit and re- participated copper pur- purchaser dollar of the ban on indirect suits estab- per ceived 0.15 cents Brick, by lished Illinois 97 chased. in S.Ct. 2061. The court decided addition Proceedings II. in the District Court unman- proposed that the class would be ageable, impossible because would be were all consolidated in These lawsuits membership. ascertain class It then the Western District Wisconsin 12(b)(6) motion turned to defendants’ Litigation. Judicial Panel on Multidistrict to dismiss. The court found only The defendants include not Sumitomo Scrap allegations Dealers’ bare-bones were Global, alleged co-conspira- also but claim, light sufficient to state a but that in Rouse, (CLR), Lyonnais Ltd. tors Credit deposition testimony and other facts Morgan Morgan Guaranty and J.P. during litigation adduced of the class certi- (which merged Trust have since to form question, it would nonetheless fication & Co. and to whom we JPMorgan Chase grant the again motion based once on the Chase). collectively JPMorgan refer perceived Illinois Brick flaw. The court case plaintiffs sought each not, ruling, did in so follow command allegedly overcharge for the inflated 12(b)(6) Rule to convert the motion to they had copper products pur- of the summary judg- dismiss into motion for chased, which was caused Sumitomo’s ment despite under Rule its reliance on The Scrap sought actions. Dealers also matters complaint. outside the The court of a under fed. R. P. certification class Civ. also Scrap dismissed the Dealers’ RICO consisting of all metals dealers who allegations grounds. on the same physical copper form quantities commercial between 1994 and grant- Soon thereafter the district court 1996. The defendants moved to dismiss JPMorgan ed Chase’s motion to dismiss all each of the actions. brought claims Dealers had against ground it on the that the first The district court denied the mo subject preclusion were to offensive issue tion on complaint to dismiss Ocean View’s pivotal question of their status as 9,May Copper 2000. In re Antitrust Li purchasers. indirect (W.D.Wis.2000). tig., F.Supp.2d court found that if discovery remaining district the facts After closed in the true, cases, alleged in the complaint summary were Ocean the defendants filed for 23, 2001, a proper party judgment. July View was to sue under the On the district principles espoused by granted summary judgment this court San court to all of (7th Trade, claims, ner Board 62 F.3d 918 the defendants on Ocean View’s Cir.1995). finding The court also denied motion that Ocean View had no right complaint to dismiss Viacom’s on similar sue under antitrust both laws because (Illinois grounds. proceed, purchaser It allowed both cases to it was an indirect Brick) discovery injuries but limited to the issue stand and because its were too (AGC). ing. remote (7th 200, 680, later, Dist. 15 F.3d grant- court School the district A month Cir.1994). and CLR summary judgment requirement to Global This reason ed In contrast to its con- mandatory, claim. to opportunity respond on Viacom’s able Vieiv, the in Loeb and Ocean clusions discretionary. Gray Corp. Edward argument that the rejected here the Co., court National Union Fire Ins. 94 F.3d Brick. In- by Illinois Cir.1996). claim was barred (7th stead, factors set forth applied it the case, In this the district court stated manipulation and determined that AGO that, only the bare considering pleadings, effects futures market would have of the Scrap it would find that the Dealers had to warrant re- complex” too “subtle and Notwithstanding stated a claim. this con- purchasers. The covery for these cathode clusion, relying on the materials and affi- fol- primarily court relied on the district for produced davits the earlier class certi- (1) huge the number of lowing factors: hearing, granted fication instead exchange-based pricing formulas available dismissing defendants’ motion the case. (2) Comex; premiums the various agree We with the Dealers that Scrap (3) industry; po- available discounts error, district and that court recovery pur- due to duplication tential in- given should have them notice of its cathode and raw materials chases of to opportunity respond tentions and to integrated producers who sold Via- beyond and produce going additional facts (4) com; duplication potential might have been appropriate whatever (5) hedging; complexity to due purposes. class certification calculation. For similar rea- sons, granted court also sum- the district however, question, is what the mary to the defendants on Via- judgment consequence of this error should be. The the federal com’s RICO claims. With Scrap Dealers assume that reversal should gone, finally claims dismissed Viacom’s automatic, overlooks position be but this' without prejudice. state law claims § which the command of 28 U.S.C. to the harm appellate apply directs courts 12(b)(6) Rule III. Use of anything that does not less error rule to turning important Before rights par of the affect the “substantial underlying ap all of these antitrust issues any not aware of case that ties.” We are with an issue of feder peals, we must deal 12(b)(6) Rule holds that the command of procedure unique appeal al civil into a convert a motion to dismiss sum Scrap They argue Dealers. that the mary judgment exempt is somehow motion committed reversible error district court § there question from 2111. The for us is by relying on outside materials evaluat error af fore' whether the district court’s ing giving the motion to dismiss without Scrap Dealers’ substantial fected the opportunity notice and an to submit them rights. they correctly additional materials. As we question, To answer 12(b) out, that if the point requires Rule Dealers must consider whether court wishes to consider material district raising a have shown us evidence pleadings ruling on a motion outside they would question of material fact dismiss, motion as one it must treat the court had have submitted to the district summary judgment provide each given proper notice of de been party opportunity notice and an to submit Burick v. Edward Rose conversion. affidavits or other additional forms facto Cir.1994). (7th Sons, If & 18 F.3d v. Directors proof. Fleischfresser 480 Inc., Mach., 672, Bridgeport material potential disputed

there are no 249 F.3d 677 (7th fact, Cir.2001). on issues of then court’s reliance It says nothing about is not pleadings may materials outside produced whether courts use evidence despite for reversal the fail ground itself prior hearing at a class certification procedures. Ri appropriate ure to follow purposes, including other for a decision on Airlines, Inc., 200 F.3d bando v. United summary judgment. We see no reason (7th Cir.1999). 507, Here, the dispute 510 why any these affidavits should be treated Scrap over whether Dealers were differently parts from other of the record to sue under the antitrust proper plaintiffs may rulings. which be considered in later hard-fought a issue in the class laws was 92, v. See Kochlacs Local Bd. No. 476 F.2d hearings, Scrap certification and the Deal Cir.1973). 557, (7th may 558 n. 1 We portions of ers devoted substantial both rely therefore on the materials and affida reply supplemental their brief and brief to vits submitted at the class certification Furthermore, the issue. the district court hearing determining whether the dis provided opportunity an after-the-fact trict court’s grant decision to the defen Scrap bring Dealers to additional ma Scrap dants’ motion Dealers’ action subsequent terials to its attention in the was correct. litigation against JPMorgan Chase. See (re Gray Corp., Edward 94 at 366 F.3d IV. Illinois Brick plaintiff opportunity where had no versing Clayton permits While the Act civil suits materials that did create a factu submit by “any person injured who shall be in his facts, light al these we are dispute). 4,§ or property,” business 15 U.S.C. a full Scrap confident Dealers had long acknowledged courts have that not bring all material factual opportunity every person, injured however tangentially disputes to the court’s attention. There violator, fore, may an antitrust recover tre- we will review dismissal of all of actions, damages. ble Blue v. ruling these as we would other Shield Va. 465, 477, summary judgment, drawing disput McCready, all 457 U.S. 102 S.Ct. 2540, (1982). ed factual potentially disputed infer 73 L.Ed.2d 149 Numerous plaintiffs deciding ences favor of the clarify doctrines have arisen to the circum- de novo whether the defendants were enti particular person stances under which a tled judgment on the law. Simmons v. may recover from an antitrust violator. Educ., 488, Chicago Bd. 289 F.3d 491 At times these doctrines are rather incau- (7th Cir.2002). tiously lumped together under the umbrel- However, standing.” la term of “antitrust Dealers also contend as a Supreme generally Court has been threshold matter that the district court’s question careful to limit the actual reliance on materials submitted for the to the standing simple inquiry of whether hearing against class certification to rule plaintiff inju- has a suffered redressable summary judgment them on violates the fact, ry in entitling the federal courts to Jacquelin, dictates of Eisen v. Carlisle & 2140, controversy” hear such a “case or under 94 40 U.S. S.Ct. L.Ed.2d 732 (1974). Eisen, Lujan Article III. See This over-reads in our Defenders of 555, 560, Wildlife, 504 S.Ct. opinion. merely Eisen indicates that (1992). certify court L.Ed.2d 351 There is no dis- may not refuse to class on ground pute it thinks the class will in these cases have injured eventually by paying lose on the merits. Id. at 177- been an inflated 2140; copper; standing 94 S.Ct. see also Szabo v. their Article III Brick does not stand for the is Illinois question The difficult secure. therefore the defendants would seem proposition, Act has statutory, because the Sherman it, sued have that a defendant cannot be determining “whether rules for additional by any plaintiff to bring a under the antitrust laws party to proper is the plaintiff the (or AGC, whom it whom it does not sell from 459 U.S. antitrust action.” private 31, not Such a rule would example, purchase). For does n. 103 S.Ct. 897. at 535 competitor fell all injury” swoop eliminate in one be an “antitrust injury the must exclusionary practices based on op- behavior as suits by anti-competitive caused —a antitrust theorists have step Brunswick some mere economic loss. posed to 477, Bowl-O-Mat, Inc., Supreme that the Court urged, step but a 429 U.S. v. Pueblo the 690, contrary, has never taken. To the 487-89, 50 L.Ed.2d 701 97 S.Ct. (1977). made it clear that it does not on which Court has Two other limitations in- broadly. Brick so For viola- read Illinois for antitrust parties may bring suit stance, McCready, pur- who plaintiff proximate here: are central tions AGC, chased the defendant’s health services 459 U.S. at requirements of cause conspir- 544-45, 897, employer, alleged from her pur- and the direct 103 S.Ct. Brick, psychia- acy at between the defendant 431 U.S. chaser rule of Illinois visiting a 729-30, increased her costs for trists 97 S.Ct. 2061. 468-70, at 102 psychologist. 457 U.S. holds that the direct Illinois Bnck 2540. The defendant contended S.Ct. antitrust viola alleged from the purchaser who only employer after Illinois Brick action; tor(s) right the one with the is plan per- the health should be purchased illegal from the ar further removed those sue, It disagreed. mitted to but the Court (under the an may not federal rangement inquiry chain-of-distribution held least) laws, ac bring at their own titrust only pre- meant in Illinois Brick was 729, at 97 S.Ct. 2061. tions. the em- recovery. While duplicate clude itself, Brick the defendants were Illinois economic have suffered some ployer might masonry con bricks to companies who sold high- (through, example, paying for injury allegedly prices. at inflated tractors in or- to attract skilled workers wages er on” allegedly “passed in turn contractors inferior illegally for the compensate der to plaintiffs who overcharges to those benefits), harm was distinct from buildings. Id. purchased their constructed out-of-pocket injury, her own plaintiffs In an earlier deci 2061. S.Ct. Id. services. payments psychological Shoe, sion, Inc. v. United Shoe Hanover 475,102 S.Ct. 2540. Corp., 88 S.Ct. Mach. 392 U.S. case, (1968), it not identical to this While Supreme 20 L.Ed.2d 1231 recog it insofar as McCready helpful that defendants could had decided Court injuries in distinct that different that the nizes liability ground on the escape anti single may be inflicted markets anticompetitive had on the plaintiff passed differently and thus that conspiracy, trust reasoning, overcharge. By parity to raise might be able plaintiffs situated Brick that decided Illinois Court cop injuries suffered anti claims. The sue under the persons authorized to purchased who inflated per traders type in this of case were trust laws are distinct Hence, from the defendants contracts the contractors purchasers. direct when any harm inflicted on Viacom in full from to sue and recover permitted were cathode, or on inflation, inflated cash any paid including “pass- for the View, the extent Ocean on.” Here, integrated producers. contrast, from copper rod the plaintiffs are not Other eases also demonstrate that the Su- indirect purchasers along supply chain. willing preme Court has been to entertain As far plaintiffs’ as the claims are con suits between and defendants not cerned, Global, CLR, and Sumitomo did other. privity with each Allied Tube & not sell cathode integrated producers Head, Inc., Corp. Conduit Indian who in turn sold to plaintiffs. 492, 1931, S.Ct. 100 L.Ed.2d 108 497 Instead, alleged the in conspiracy operated (1988) (plastic suing conduit manufacturer separate market, the but related futures manufacturer); competitor steel conduit through sought which it directly manip to Collegiate National Athletic Ass’n v. ulate the of copper plaintiffs the 85, Regents, Board 468 U.S. 104 S.Ct. (It were buying. is true that Sumitomo (1984) 2948, (university 82 L.Ed.2d 70 su- Corporation cathode, made some sales of ing prohibited association it from en- overseas, primarily reap the benefit of contract); tering a television Klor’s Inc. v. illegal its futures market scheme. None of Inc., Stores, 207, Broadway-Hale 359 U.S. however, the plaintiffs, is seeking recovery 705, (1959) (store 79 S.Ct. 3 L.Ed.2d 741 on the any basis of of these cash market deal). suing competitor over refusal to sales; solely all rest manipulation on the plaintiffs’ The reason the suit in Illinois sales of futures contracts. Sanner v. Brick failed was not because the. defen Trade, (7th 918, Board 62 F.3d 929 Rather, dants did not sell to them. it was Cir.1995), below, recognizes discussed such because defendants did sell to a third theory, why and we see no reason (after Shoe) party Hanover who could re mere separate existence of independent any injury they cover for claimed. The physical transactions way should paradigm applies same in all of the cases change analysis.) A, Party cited defendants: the anti violator, B, Party trust sells to and then repeatedly The defendants urge C, Party purchaser B, a down-stream from availability implicit recover the overcharges seeks to traders who bought and sold from the See, B passed e.g., on C. Kansas v. defendants that market should bar re- United, Inc., 199, 207, UtiliCorp 497 U.S. covery for any plaintiff in the cash market. (1990) 2807, 111 S.Ct. L.Ed.2d 169 But this kind of an absolutist approach is (public utilities not but residential custom Banner, ruled out which recognized at may ers to whom they gas sell sue natural least one situation in which the futures re Brand companies); Prescription In Name market must be eval- ugs Litig., Dr Antitrust 123 F.3d separately. uated question serious (7th Cir.1997) (drug wholesalers but here is whether pre- these have pharmacies they retail to whom sell sented another such instance. manufacturers); may recover from n Banner, a group soybean farmers Serv., Inc., McCarthy v. Recordex 80 F.3d the Chicago sued Board of Trade (3d Cir.1996) alleging (attorneys 852-54 may that the conspired Board with several indi- overcharges copies, recover but artificially viduals to lower they may clients whom offer services not); soybean futures. The farmers suffered In re Indus. Litig., Antitrust Beef (5th Cir.1983) damages they when were 710 F.2d forced to sell (packers soybeans who their into the grocers may sell to recover for their cash market at unlawful conduct feeders correspondingly prices. but who sell to low Id. at 921. not). packers may granted The district court a motion to Instead, they separate compen- form a dismiss, law that the a matter of finding as injury. sable indirect because the injuries were farmers’ in the futures not participate farmers did reading The defendants’ of Illinois market, that the causal chain between Brick is inconsistent with Sanner. Their attenuat- and futures was too cash contrary, claims to the there is no indica- ed, speculative. were too and that soybean that the plaintiff tion Sanner Id. at 926. privity farmers were with Board Trade, a factual and as matter the asser- court reversed the dismissal. On This surely wrong. The Board and tion is (given procedural pos- assumption soybeans did not sell members case) allega- the farmers’ ture of the farmers; like the defendants here between the cash about the relation tions If solely dealt with futures contracts. Illi- true, and that markets were and futures here, recovery nois Brick bars all it should to move in market “tendfed] those recovery in and have barred Sanner farmers that the lockstep,” we determined group boycott also bar in should injuries sufficiently direct had suffered settings. of trade and other restraint with their proceed to conspiracy from the Shoe, way, it another Hanover rejected put the To 929-80. case. Id. at We Brick, McCready plain make in the fu- Illinois and “participants that proposition create a injured,” system the antitrust laws directly tures market were more that, possible, permits in to the extent recov recovery by farmers to preclude so as ery rough proportion in to the actual harm the defen- market and denied the cash in unlawful conduct causes at the a defendant’s claim that we should assume dants’ complex damage ap without the market stage that motion to dismiss This scheme at times favors speculative. portionment. Id. 931. would be too (.Hanover Shoe) Brick, times the and plaintiffs of Illinois perspective the From (Illinois Brick), but it never that in the defendants expressly court found Sanner scheme, entirely preclude to market re manipulation operates context of a market covery injury. Applying prin for an those physical commod- damages inflicted on the in Sanner to this injuries ciples and decision were not derivative of ity market case, evidence viewed conclude that the Illinois we in the futures market. Unlike shows that dam Brick, favorably plaintiffs to the physical harms incurred felt conduct was age are from the defendants’ during manipulation a market the futures mar separate in two markets: arising from “secondary consequences not market.*** physical copper and the Id. at 929. ket injury party.” to a third *** jact tjjat and B are liable to Z for hoping to tion arises whether A defendants were market, overcharges paid. generally, ABA ultimately, See physical profit in the Law, Develop- Antitrust 1 Antitrust through manipulation separate Section of their of the (1997) (Fourth) market, & at 778-79 n. implications for their ments also has standing). (collecting umbrella cases arguments the so-called "umbrella related to Here, however, conspiracy rig a object we have standing” theory. defendants The market, physical accom- might respon- prices for entire possibility they held be manipulation plished through of the Comex copper prices throughout higher sible for market, analogy possible Another just futures market. physical rather than for the sales standards, rigging product might which ordinary be to they If this were an cartel made. case, everyone participate in a who tries to B affects in which cartel members A and sell case, Y, product market. In the latter particular X and then mem- customers and non-cartel manipulated the stan- who at or the en- defendants ber firm C makes sales near Z, they complain heard to ques- dards cannot be price to customer hanced cartel factor), may they argue recover fourth and Con- identified those who

We have redressing turn gress market and must now had no intention in the futures injury because it is indirect and question difficult of establish- sort to the more (the factor). physical speculative in the fifth We there- plaintiff ing proper (nobody) fore devote our attention to the other answer market. defendants’ factors, considering three the case of supported by not Illinois Brick —or eco- that, injury was indi- plaintiff fairness for matter. In- each whether its nomics or stead, duplicate risked guided inquiry by unpredictable, we must our rect and be recovery, speculative set and would lead to analytical framework factors damage We complex apportionment. out AGC. Scrap the claims of the Dealers. begin with Associated General Contractors V. (Loeb, Scrap A. Nos. Dealers requires a court to examine AGC 01-1148) 00-3979, link through case-by-case analysis problems harm Dealers face between defen- 535-36, all three of the contested fac wrongdoing. dant’s 459 U.S. at with AGC First, a num- whether or not were in 103 S.Ct. 897. We are to consider tors. (1) analysis, notably original purchasers ber of factors in this some sense copper, enough connection that fact alone the causal between the violation (2) harm; injury directly that their presence improp- and the the of establish flowed (3) motive; injury type manipu er the of from the defendants’ market if Congress sought injury whether it one lations. An is still indirect was (4) redress; injury; the directness of the fails to establish a chain of causa plaintiff (5) speculative damages; the nature of the tion between the harm it has suffered and (6) AGC, duplicate recovery wrongful the risk defendant’s acts. of the complex damage apportionment. Id. at 897. The directness S.Ct. 537-45, 897; Sanner, inquiry presence 103 S.Ct. 62 F.3d at further on the of focuses only 927. The defendants concede the sec- more immediate victims of an antitrust in they position ond factor: admit that each of the violation a better to maintain a damages has adduced evidence sufficient treble action. “The existence of summary judgment they persons to survive an identifiable class of whose self- artificially price normally intended to inflate the of interest would motivate them to both in in copper physical copper public futures and vindicate the interest antitrust reap justification order to of in enforcement diminishes the profits. dollars millions ... They points. allowing party contest each of the other a more remote attorney perform private the office of The first and third factors are discussed 542,103 general.” Id. S.Ct. 897. only cursorily by the defendants and can be dealt adequately parties the There are' numerous other who course with analysis injuries our remaining of the three. For have suffered more direct at the example, Scrap the claim that there of the than the defendants is hands defendants suing Among (though no causal connection between their Dealers here. them actions them) any plaintiffs’ explain of the harms because as we below not limited to (the plaintiffs’ injuries copper the indirect are the Comex futures traders who are level, prod- should be immune from for a now that we have clarified how the they open purchaser uct did not sell. We leave this direct rule and .the remoteness doc- issue exploration apply for further at the district court trine of AGC here. stage it litigation, as we must at this their claims filed and settled already

have they in the difficult to know whether have suf- But even is the defendants. with itself, Scrap economic loss at all as a result of market fered copper in- all, examples actions. After quintessential are the defendants’ Dealers injury. Al- Dealers, antitrust victims of Scrap direct middlemen who resell their ex- chain is copper it, distribution though copper they purchase after scrap soon simplest even ceedingly complex, alleging are defendants’ version, integrated producer possible manipulations price copper caused the into ca- copper will refíne such as Asarco steadily to increase from 1994 to 1996. manufacturer, it such thode and sell Therefore, on most or all the sales the Emerson, Viacom, View. The or Ocean frame, made in that time Scrap Dealers transform the will turn manufacturer inflexibly contend are linked to which product using copper cathode into some they should have prevailing prices, Comex In the retail level. it down to the and sell slight profit made a because Sumitomo’s scrap cop- unused may generate process, Only copper when the actions. Dealers final- Scrap per, point at which Scrap would the plummeted June 1996 buy scrap. scene ly appear in the Dealers have taken a bath resale purchases It for these last is much depending And on how market. damages. But to recover plaintiffs seek Dealers had on hand as have al- and manufacturers distributors to the number of transactions compared monetary into transactions ready entered they made as and indeed we copper, this same involving that some of them increasing, possible with suits filed very in this case are faced no true economic loss at may have suffered It of those manufacturers. by some short, the exact nature of the all. companies at the least that these apparent speculative. damages they have suffered is injuries than the suffered more direct have attempt Dealers to counter Scrap The stands plaintiffs. This Scrap Dealer can by arguing damages Sanner, problem this soy- where the marked contrast to the difference simply by computing direct- set clearly were the most be bean farmers copper of that should injured participants price the cash between the ly of they only given day were the cash sellers absent Sum- prevailed because have Sanner, at 927. soybeans. price 62 F.3d the actual manipulations and itomo’s copper transaction. This asser- every for damages nature of the speculative The tion, however, Scrap Dealers plunges sup- have suffered also Scrap Dealers with the sixth AGC headlong into conflict they cannot conclusion ports our factor, damage duplicate of problems 542-43, id. at maintain this action. See complex damage apportion- recovery and (denying a claim that rested 103 S.Ct. 897 argue that Scrap The Dealers ment. speculative conception on an “abstract purchasers all other commercial they^ harm”). Scrap Dealers’ of measure —and permitted be physical copper can experts have stated economic —should times the equal to three damages recover copper tie a in the rise scheme overcharge caused Sumitomo’s physical cop- directly increases for in the mid- sale of every single Defen- analysis. econometric per through ignores the proposition But 1990s. this contrary that a host of argue dants to the physical copper piece that the same fact play, destroying at other factors are also year in a many given times may be resold accepting link. Even any the closeness of distributed, refined, into turned it is point, on this Scrap position Dealers’ dealers, scrap Scrap any re-re- Dealers have.suffered real loss sold between scrap, at all. fined, scrap again. As men- and sold above, every scrap time a dealer tioned Scrap The fact that the Dealers here are during years the two scrap copper resold further down chain users issue, majority recouped vast at than others also will increase the economic per- defendants are not its losses. Since complexity apportioning damages. any recovery to mount sort of cost mitted marketing manager Even the of Loeb ad- lines, see along these Hanover defense costs, “freight mitted that such factors as 491-94,

Shoe, at 88 S.Ct. 392 U.S. sizing, sorting, packaging, purity re- Scrap Dealers to re- this would cause quirements, length of get time took to damages award far excess of ceive paid, getting paid” [and] the risk of all the defendants caused them. economic loss factored into pricing Loeb’s decisions. permitted farmers to recov- While Sanner it might possible While be for economists losses, it mil- soybean er their did not let to factor out each of these considerations lers, wholesalers, soybeans or retailers of prior for all sales involving copper, the signifi- also assert claims. It would be a Supreme simpler Court has decreed a so- cant extension of Sanner to allow these simply lution: right restrict the to recover sue, plaintiffs to and it is one we decline to directly to those who are more affected make. the defendants’ actions. UtiliCorp, 497 208-11, (noting poli- 110 S.Ct. 2807 repeatedly argue Dealers cy denying recovery rationales for even to damages duplicate there are no plaintiffs those whose could be pricing case because their decisions are calculated). easily description applies This exclusively based on Comex rather fully to the here. Because the than fail pass-on of historical costs. We Scrap Dealers have suffered an indirect why to see this fact should lead us to injury causing them at speculative best ignore Supreme command to Court’s damages that strong would lead to a possi- prevent duplicate of antitrust bility duplicative recovery, agree we AGC, injuries possible. wherever 459 U.S. with the they may district court that 897; 103 S.Ct. Greater Rockford pursue their claims. Co., Energy Corp. Tech. Oil & Shell Cir.1993). (7th F.2d The Scrap (No. 01-3485) B. and Viacom Emerson that a pass-on Dealers’ contention absent 1. injuries “sepa- historical costs their are reality. Many rate and distinct” defies economic arguments of the successful If a a scrap purchased copper by dealer ton of from Loeb are echoed the in defendants action, price artificially when the was in- the Comex but after a careful re Viacom $400, price subsequently flated and the of the view record we find that the facts of resale, it prior rose another to has the latter case a compel different result. $200 reaped gain, a not a argument loss. The defendants’ first for deny $200 $400 (to ing recovery Dealers’ own witnesses admitted to Viacom and Emerson pass-on only that no “if cur- there is the whom we will refer except as “Viacom” price rent Comex has moved in an adverse when compa distinctions between the two direction.” Yet the evidence that important) shows nies are is that Viacom has the Sumitomo’s actions caused Comex shown no evidence of direct and predicta price throughout period stemming to rise the at issue ble harm from the defendants’ case, earlier, in making skeptical this us that the' conduct. As we stated directness the copper through de minimis amount of there ex whether question to the relates earlier, a we described con- two-part between defen formula of causation ists a chain (in (1) equal a to the injury sisting price a or base and action dant’s contrast) copper settlement position is based instead Comex first if the connection (2) vaguely premium, negotiat- defined links.” a cathode only price, on “somewhat AGC, 540, 103 monthly quarterly S.Ct. 897. Glob basis. Over 459 U.S. ed on CLR, only here, remain the defendants settlement years al and the six at issue the 75$ in action after Sumitomo’s ing the Viacom fluctuated from about to price $1.40 settlement, by pointing begin their attack During years, per pound. same (Vi- on cathode prices 3.50$/lb. that the out 2.75 to premium ranged from diverged. LME often We and Comex recovery based on acom does not seek why this matters. Sumitomo fail to see prices; complaint changes premium up to drive futures on Comex only on caused variations is based those exchange arti particular that on price.) in the base prices paid Viacom ficially, and The district court ruled base directly based on Comex copper were “insepa- were premium and cathode also fact that Sumitomo prices. of the rec- rable.” After a careful review on the LME and sold futures bought to the light in the most favorable ord phys harms to may have caused additional agree are unable to with plaintiffs, we who based their purchasers ical All of the contracts characterization. impact no on LME has decisions on is deter- payment price specify recover under the AGC ability to Viacom’s de- by adding separately mined these two factors. and the values of both components, scribed Next, rely on the the defendants pe- the relevant time throughout numbers included not purchases fact Viacom’s discovery. through available riod should be variety but “a linked to Comex only price seems to have The district court also that, response premiums of discounts or premium could some thought that the demand, varied changes supply to price. the Comex be a discount off cases The de among suppliers.” over time and this; support evidence to There is no that, opined have experts fendants’ evidence, including contrary, all of the in re adjustments premiums through ar- at oral counsels’ concession defendants’ factors, and demand sponse supply premium indicates gument, mar physical copper impact actual on number. While always positive market activities illegal of their ket volume and have awarded been appears unpredictable. be indirect and likely instances, discounts in some payment cash that these discounts a theo- there is no indication might be so as While all of this conditions, and the matter, were tied to market summary judgment retical not focus on such discounts in defendants do the evidence the duty our to evaluate Furthermore, the cathode in their And that briefs. presented. record Viacom of the Co- a small fraction premium was starkly picture. a different paints evidence fact, the evidence shows price. mex In into the record has introduced Viacom increased, the price that as the Comex suppliers’ pub- and its both its contracts Thus, there is no also increased. premium careful review premiums. After a lished “off- components materials, that the two possibility convinced that of these we are somehow com- premium or that the injury. set” has established direct Viacom manipulated contracts, for the defendants’ pensated all but a (Even if, covery purchasers than the fact that some counter-factually, price inflation. prices cathode at might bought have example risen had for price the Comex or the LME. tied to those on either Comex and, price the base compensate, 65$ to repre- at this could best penny, a dropped reject the Similarly, we defen But damages. this mitigation a sent that because a number of argument dants’ direct.) injury any less make the would not per Viacom’s contracts contained clauses on this conclusion court’s district the base mitting parties renegotiate the mainly testimony the on which relied point, prices if that Comex price they believed had not even looked expert of an who market condi accurately did not reflect contracts, factually mis- is both Viacom’s tions, injuries are somehow re Viacom’s the evidence in the to take taken and fails that, undisputed and indirect. It is mote pres- favorable Viacom. light most of the defendants’ because of the success premium does not a cathode ence of small sup integrated and its conspiracy, Viacom of cathode prices fact that the negate the the artificial were never aware of pliers futures “tend to move lock- and cathode never took advan inflation and so Comex Instead, price reference Via- step.” Instead, Viacom based tage of this clause. just lockstep such supports com’s contracts for which it seeks purchases all of required law has never linkage. Our case directly on Comex. be identi- prices that the cash and that, contrary We also believe recovery. only It neces- is support cal to contentions, holding our defendants’ direct, relationship be as it is that the sary entirely consistent with the point this Sanner, F.3d at 929. here. See Reading In- decision Second Circuit’s dus., Copper Corp., Inc. v. Kennecott Furthermore, note experts (2d Cir.1980). There, F.2d 13-14 exchange 24 different quotes that Comex copper, alleged plaintiff, scrap refiner of time and that prices any given- defendant-integrated producers could have affected defendants’ actions conspired had refined keep differently. Accepting each of those in- conspiracy copper low and that statement, we do not see the truth of this jured by artificially raising it finding that Viacom’s compels why 12. The court found the scrap. Id. at to the record injury According indirect. injury “depend[ed] indirect because evidence, prices, menu of Via out of-this series of market inter- upon complicated (the just monthly one settlement com used actions,” including pricing the actions and all but a minuscule price) as the basis for fabricators, dealers, refiners, decisions of and Em purchases, its contract number of copper. Id. speculators, and consumers only While acknowl erson used two. injury “conjectural at 13. theories of Such this, defendants contend that edging causality” were and attenuated economic could have used purchasers other cathode Reading’s injury render indi- enough to systems. Per widely varying different or rect. Id. at 14. did, if haps they perhaps so Reading than the fact that both improper plaintiffs found to be Other should be laws, price-fixing present that is an and the case involve though under antitrust this, market, conspiracies fact does day. issue for another But similarity between them. chain be we find little not weaken the direct causal depend here does not on the injury and these The tween the defendants’ actions actions of innumerable speculative harm and is no more particular plaintiffs’ directly makers. It flows instead and Emerson re- decision deny reason to Viacom duplicate between Viacom and its claim would from the contracts Viacom’s Asarco’s hedged by because Asarco linkage, purchasing put It is this contractual suppliers. on In Reading, prevents options other addition to those absent Comex. points, a trier of three the court noted that Asarco miring market variables from has recovered in a fact here in “intricate efforts to recreate California action, state court class and it thought in the causes possible permutations preclude Id. this too should Viacom from re- price change.” and effects of covering. sum, oth- Viacom’s contracts and the begin We with the defendants’ claim evidence establish a direct rela- er record purchase materials, that Asarco’s of raw illegal tion between the defendants’ ore, concentrate, blister, such as and an- and Viacom’s harm. The contract scheme ode, all it of which transformed into ca- price paid suppliers thode, recovery. should bar This does not directly explicitly and based on the Comex Practically every product follow. is creat- monthly price, settlement and therefore through ed the use of some kind of raw manipulations directly and defendants’ materials, prevent but that fact does not predictably impact price. had an Connell, purchaser prod- the direct of the finished 102 F.3d Amarel (9th Cir.1997) suing uct from its manufacturer under the (injury price direct where laws, long pur- antitrust as the direct directly paddy rice affected milled Sanner, trying chaser is not to attack a rice); price-fixing Any 62 F.3d at 929. varia- at the raw arrangement materials level. in the cathode moved in the premium tions experts The defendants’ own testified that manipulation same direction as the prices “may while raw material be indi- mitigated have limited this could not or reasons, rectly by price affected” manipulations, harm. For these Viacom has es- squeeze or corner on only cathode—the tablished the element of directness AGC.

copper product traded on Comex and the harm directly purchas- LME' —would 2. Instead, ers of these raw materials. raw We turn next to the district prices vary widely material and contain major granting court’s other reason for various discounts off the Comex summary judgment: defendants its belief expected account for such factors as the opening the door to Viacom’s suit cathode, which in cost of conversion into inevitably would lead to either duplicate demand, supply, turn varies based on complex damage apportion refining smelting capacity. current AGC, 544, 103 ment. See 459 U.S. at S.Ct. agree proposition 897. The court cited at least three man We with the broad problem, involving party ifestations of this all that a cannot recover when others directly injured integrated suppliers, Viacom’s such as As- more are better able to First, AGC, 544-45, claim. arco. believed that Viacom’s state a 459 U.S. Indeed, duplicate just ap- claim As- we have would Asarco’s because 103 S.Ct. 897. plied very principle deny recovery arco could assert claims for its raw materi Dealers, al from to the who are farther purchases parties, third and those resale, though raw material are tied to down the chain of even Comex. Second, because too are tied to Comex. For scrap prices Asarco some reasons, purchasers it and raw materials parties, parallel cathode from third both permitted bring would to recover and are ill-suited to an antitrust be also Third, Permitting pur- claim. both raw materials duplicate damages. each other’s 490 in tell purchasers fungible, cathode is one cannot whether

chasers given purchase of consist- to recover would cathode same line of distribution damages previ- in violation of ed of cathode refined Asarco or duplicate lead to ously purchased product. Brick rule. The solution to the Illinois however, deny not to a problem, this do not believe the mere exis We everyone. a dra- to recover to Such right tence of cathode such third-party presents light a to give green rule would conian recovery justify a risk of to duplicate as prices to fix conspire seofflaws to antitrust recovery the extreme alto step denying market and create particular in a would gether. Had the Board of Trade in San- conspira- engage to antitrust incentives produced ner evidence that farmers on distribu- complicated cies markets with bought soybeans some rare occasions from Instead, proper tion structures. neighboring farms and then resold them recognize only the best of the course is to along soybeans they grew with the them plaintiffs who otherwise potential several selves, provided that would not have satisfy requirements bringing suit deny recovery entirely. to reason Similar antitrust laws. Because raw under the ly, if prove Viacom can at trial that 97.7% vary comparison will to prices materials of all cathode it Asarco sold was more than will the Comex much itself, had refined then Viacom should be cathode, physical cathode physical permitted proved to recover 97.7% of its purchasers such as.Viacom are better situ- damages from cathode Pa purchases. Cf. purchasers pur- ated than raw materials Co., per Sys., Inc. v. Nippon Paper Indus. sue a claim in the market. This (7th Cir.2002) 629, 281 F.3d 633 (carving raw logically implies pur- materials purchases leaving out indirect while still up chasers the chain from cathode sales open possibility recovery pur for direct AGC, just we found satisfy could not as chases). physical copper be the for the downstream case complicated, complicated but not so between, however, Dealers. lies the degree one cannot estimate to a reasonable at the heart of physical market transaction accuracy damage party the amount of purchase of the defendants’ scheme-—the certainly acceptable has sustained. It is parties than cathode. There are no better through expert testimony economic claim, and it purchasers pursue these ¡estimation make a reasonable of actual proper plaintiffs. are is therefore who damages through probability and infer argument lies in the ences. Corp. More bite See Zenith Radio v. Hazel Research, Inc., 124, 100, be denied should because tine 395 U.S. 1562, (1969). some of the cathode Asarco sold Viacom S.Ct. 23 L.Ed.2d 129 ‘Where before, although claim purchased the tort itself is of such a nature as to appear. strong might preclude is not as first the ascertainment of the amount noted, if not certainty As the district court some with it would be a pm-chased perversion principles most of the cathode Viacom had of fundamental justice deny injured never all purchased before been cathode 'to relief to the form. person.” Story Asarco sold Viacom 510 million Parchment Co. v. Pater Co., 555, pounds Paper cathode between 1990 and 1996. son Parchment U.S. (1931). frame, 248, During that time Asarco refined 6.4 51 S.Ct. 75 L.Ed. 544 pounds permitted billion of cathode and While we are not to make com pounds parties, plex damage apportionments 153 million from third in antitrust cases, AGC, output. 2.3% of Because about S.Ct. remand, calculations is inordi- sales to Emerson. On the district nothing about these only explore know two court should further whether nately complex. One need these the amount of ca- hedging of information: transactions would lead some pieces to by and the purchased duplicate recovery degree thode and corre- by purchased cathode and sold amount of need to reduce sponding damages. Never- theless, who cathode to Viacom. From those sold since our review of the record there, damages reasonable estimates of indicates that not all of Phelps Dodge’s day. the order of the Because this are hedged, sales were we conclude that Em- will overly complex not estimation is appropriate plaintiff erson is an for the provides duplicate damages, lead to not same reasons as Viacom. stage at this for the case a sufficient basis event, the kind of futures match- proceed

to to the merits. ing postulate the defendants’ does not re- way hedging flect the that most works in major next attack The defendants’ copper the futures market. Asarco did not hedging. exchanges rests on Commodities Instead, buy purchased put futures. participants in in a part protect function Put options. options strategic hedges are by shifting market some of the physical (and designed protect against general risk by caused fluctuations damage) risk declining prices. put cathode With a in the futures mar price participants option, right, Asarco had the but not the Extending Global and principle, ket. obligation, to sell a futures contract if the through extremely claim that CLR price price. fell below a certain “strike” interactions complicated set of economic Catalfo, markets, See United States 64 F.3d the cash and futures the between (7th Cir.1995). But the defendants damages experienced physical in the ca artificially inflating price were of ca- in their duplicated thode market will be here, throughout period thode issue fu entirety by damages suffered price never would have fallen below Therefore, only market. futures tures Therefore, price. the strike no sale ever traders, participants, market cash gone only would have forward and the to recover. permitted should be damages Asarco would have suffered from by advocated hedging theories conspiracy would have been the cost theory, defendants are based on economic or, put option, properly, more specific application theory no of that with put amount which the of the here that would correlate sales the cash option changed because the market. market and sales the futures artificially high. Notably, purchases Viacom’s individual experts and their have suppliers hedged. from its were not Nei- The defendants attempt a fu- made no to correlate the ther Viacom nor Asarco theoretically on the hedge every they as a time Asarco could recover tures contract so, options to the exchanged copper. put Had done for Viacom, here specific damages sought one be able to “match” perhaps might then intuitively a fu- is far from relationship each market transaction to Instead, po- trace the argue experts tures contract sale and obvious. hedging by parties numerous opportunity trader recover tential from Viacom overcharge pre- upstream in a federal lawsuit should and downstream many overcharged partici- and contend that because so physi- clude for the industry many in the use so participant. suppli- pants cal market Emerson’s er, hedging there will be Phelps Dodge, hedge did some of its different forms of duplicate recovery between the cash risk of for the same duplication

“inevitable” injury markets. under the same law and is thus no and futures recovery. bar to the plaintiffs’ See duplication bears potential This sort of Browning-Ferris Dispos Indus. v. Kelco rejected duplication to the no resemblance al, Inc., 2909, 257, 492 109 106 U.S. S.Ct. AGC, 544, 459 at in Illinois Brick and U.S. (1989) (upholding L.Ed.2d 219 award of 897, we think that nor do 103 S.Ct. both federal antitrust and state tort dam deny a reason to independently provides ages); Corp., v. ARC Am. 490 Brick, California any In to Viacom. Illinois recovery 93, 1661, 109 104 L.Ed.2d 86 S.Ct. (because of “pass-on” damages of would (1989) (permitting require states to offend Shoe) already be taken into ac- Hanover damages ers to both to indirect pay state recovery in the entirety in its to count purchasers damages and federal treble potential party, pur- the direct another purchasers). direct If the resolution of 737-38, 431 U.S. at 97 S.Ct. 2061. chaser. poses problem state court action at all to the case here. Asarco simply This is not in plaintiffs, these it would be the nature of hedged only about half its strategically claim preclusion. or issue See Matsushita poten- claim that output. The defendants Epstein, Electric Indus. Co. v. 516 U.S. by parties tial those to whom Via- hedging 367, 873, (1996); 116 S.Ct. 134 6 L.Ed.2d pur- com sold and from whom Asarco Acad, Orthopaed Marrese v. American relevant, materials also chased raw is but of 373, 1327, Surgeons, ic 470 U.S. 105 S.Ct. this cannot be so under Sanner. There we (1985). 84 L.Ed.2d 274 It possible in injuries held that incurred futures mar- right the defendants have waived their any particular linked to purchases ket defense; any assert such is not men purchases “duplicate” cash market did not in tioned them briefs before this court. not more “direct” than the cash and were Accordingly, express opinion we no at this injuries. market 62 F.3d 929-30. Be- argu time on the preclusion merits markets, separate are two cause there ment. injuries, compensable oppor- each with recovery in one market does

tunity sum, all in participants physical to alleviate the harm in the other. nothing market, purchasers Viacom other first reasons, For the fact that Comex similar only plaintiffs possibly of cathode are the money traders have received in a damages against situated to recover says nothing lawsuit about the now-settled the anti-competitive defendants for harms ability similarly or other situat- have inflicted on the ed in the cash market to recover. option cathode. with the Faced clear, permitting non-speculative harm Finally, the defendants note that go to the cash market to unremedied or of and three of the manufacturers’ Asarco forward, allowing plaintiffs’ go suit to other have recovered a lawsuit suppliers we elect the latter. As narrowed to first brought state court. This California purchases, danger duplica- there is no brought pursuant lawsuit was to California so, recovery, tion of under AGC and law, pur which indirect permits suit Sanner, proceed the claim should to trial. Superior Corp. chasers. Union Carbide Ct., Cal.Rptr. 36 Cal.3d 3. (1984). 14, 16 However, supposed P.2d from “duplication” here comes different The final broad claim of the system seeking damages bodies in federal defendants is that our remedy separate presents simply speculative harms. It no this case would be too allowing six-year this suit tract Viacom entered into over a complex to warrant AGC, proceed. span easy. 459 U.S. will not be But complex litiga- Cf. courts, on the evidence adduced hardly S.Ct. 897. Based tion is new for the federal however, Viacom, disagree. we antitrust, whether it in the field of envi- attempt- will from complication main come law, ronmental clean-ups, pension or ac- much ing to discern how of the Comex counting key here is that the frauds. given represented at a time inherently speculative are not the defendants’ ma- overcharge due to the sense AGC used that term. See and how much stemmed from nipulation Nor, 459 U.S. at 103 S.Ct. 897. difficulty, forces. This normal economic Shoe, Illinois Brick or Hanover a party however, in every price-fixing occurs case. asking jury or the per- district court to gauging It from the task of is no different form form analysis some of econometric fu- damages recoverable Comex all, some, deduce whether or none of an traders, tures whom defendants have con- overcharge passed a chain down Through proper plaintiffs. ceded to be Brick, distribution. Illinois 431 U.S. at can discovery, experts economic evaluate 727, Instead, only 97 S.Ct. 2061. one need illegal ac- impact of the defendants’ through determine available records what tions on the futures market and come to percentage bought by of cathode Sanner, reasoned conclusions. 62 F.3d Cf. represents purchases. first This is not (rejecting damages analy- at claim that speculative complex, only time-consum- manipulation “beyond in a market sis ing, parties and we are confident that the courts”). the ken of the federal At up and their are to the task. counsel could be calculated re- point, theory, ap- The defendants’ entire case (assum- viewing all of Viacom’s contracts here their parent only through not but also already in ing they are similar to the ones record) duplication hedging, discussion of and assessing damages based troubling one overcharge. seems to be the because already computed on the evil, in their scheme was so went undetected only Since the other factors involved cathode are much setting long, of Viacom’s for so and caused so economic market, have relation to the items which no Comex the cash that we throughout loss charges and cash price, freight such as simply give pass them a from the should discounts, payment premi and the cathode antitrust laws. This is not now and never um, for which Viacom does not seek to days has been the law. Since the of East- recover, problems there be no as a should man Kodak Co. v. Southern Photo Materi- making matter with these cal theoretical Co., 359, 379, als 47 S.Ct. U.S. culations. The mere fact that each individ (1927), it has established L.Ed. 684 been ual transaction relevant antitrust plain- cases complicated antitrust case-by- scheme must be examined on a permitted tiffs are to use estimates and case basis to assess does analysis to calculate a reasonable approxi- thereby damages speculative. render those damages. fully of their we mation While Tel. Mgmt., American Ad Inc. General not use the massive- agree we should (9th Cal., 1051, 1059 Co. 190 F.3d Cir. as an ex- conspiracy of defendants’ ness 1999). unduly (by, for exam- punish cuse to them permitting Dealers Loeb fully recognize perfecting ple, such

We duplicate that would analysis, tracking every economic to recover for harms pound Viacom), solution is to purchased by cathode refined or Viacom’s those of the sensible locating every purchasers cathode con- suppliers, only let one'—but one—level recover. serve as a more immediate victim of the physical in the intended to affect the available on antitrust violation all the evidence Based on (cid:127) markets cathode. in cash and futures plaintiff the best summary judgment, AGC, 541-42, 897; 459 U.S. 103 S.Ct. purchaser market is the first supra at 484-85. Semi-fabricators who cathode, and Emerson are and Viacom would in shoes purchased cathode stand plaintiffs. of such prototypical examples Viacom, purchasing similar to those of dismissing the erred in The district court reshape of cathode to large quantities and we must therefore stage, case at this wire. are well- sell as rod or Because judgment. reverse its any claim inflation in bring situated to 01-3230) (Nos. 01-3229, market, C. View Ocean there is no need for View, party, as a more remote Ocean final plaintiff, turn to the We public in “to vindicate the interest step already rejected the Ocean View. We have AGC, 459 antitrust enforcement.” argument for affirm principal defendants’ 542, 103 S.Ct. 897. case, in this ing summary judgment by the Illinois Brick a Additionally, granting the action is barred to both recovery purchase rule. For the same rea for its cathode purchaser direct semi-fabricator in with Viacom’s purchase sons discussed connection and View for its of that Ocean action, along is a chain of party reshaped there no same cathode as rod would lead recovery Ocean View and duplicate complex distribution between to either or recover for an of the defendants who can in damage apportionment violation Therefore, Illinois alleged overcharge. principles underlying AGC. U.S. Instead, inapplicable. already this case is We have re- Brick is 103 S.Ct. 897. Sanner, by premise jected copper controlled basic the claim that market 929-30, that a subject 62 F.3d at which holds cash to a ban on duplicate should not be injured by party’s participant recovery market copper pricing because decisions may, illegal in the futures a “pass actions are based on Comex and not on” of instances, costs, party in sue that under supra some historical at 486. To avoid controlling antitrust laws. The duplicate the federal such one must either in along in are those set out inquiry attempt apportion damages factors to AGC, 537-45, AGC, distribution, 103 S.Ct. 897. chain of forbidden analy an allege that under to all but one deny right plain- defendants sue factors, claim sis of Ocean View’s tiff the chain along these of distribution. while Ocean View precluded, should still be plaintiff The best-situated to recover it entitled to re contends that should be cathode, purchaser copper the first every copper cover rod has ever .it specific commodity target- the defendants or, alternative, in it purchased, conspiracy. ed in their futures market may those instances recover at least for it plaintiff, possible For such a both purchaser it first where was the duplicate recovery problems and at avoid in cathode form. time to ensure that antitrust same Dealers, perpetrated we must harm the cash market will As with the upon unremedied. Based on our reject proposition go that it can not Ocean View’s record, we are satisfied that recover for manufactured from ca- review of rod others, cases View did purchased by thode such as its at least some Ocean injury purchase by integrated cathode refined semi-fabricators. would be Such producers. pur- The existence of such indirect the semi-fabricator would because assume, get View in the um. enough chases is Ocean We since the defendants do door; otherwise, be recovery should not denied sim- contend like the ca may plaintiff premium, because a not receive thode the rod ply premium is a damages high as would like. small fraction of the paid total sales, quantity of such and thus the even- tends to increase as the Comex in creases, might get tual View if it Ocean so that it does not in way some case, manages prove the rest can offset the Comex inflation or render the Viacom, case, discovery. injury further Like indirect. In that await the similari will have the burden of ties Ocean View ascer- between cathode and rod are close that, what of the cathode taining percentage enough instances where the same producers by integrated was refined producer sold these refines raw materials par- rod, and not from third them into cathode and then shapes into If, fear, View, many of ties. as defendants these Ocean as the purchaser first after lost, cathode, fact will records are come out the materials are formed into can claim, discovery, they may regardless move for miss- state a of whether that ing perhaps evidence instruction or even is then in the form of cathode or summary judgment on the merits. rod. Sugar In re Indus. Antitrust Cf. (3d Cir.1978) Litig., 579 F.2d 17-18 already rejected have We most of (finding no purposes distinction for AGC other claims the defendants make for de- price-fixed sugar candy between incor nying recovery, including Ocean View porating price-fixed sugar that sold into proposition integrated producers’ that the time). the market for the first purchase copper raw materials should improper plaintiffs, somehow render them VI. 489, supra, hedging at and the claim that points addition to their under Illinois on the futures markets some AGC, Brick and the various make physical participants renders the arguments specific to their own cases. injury duplicative, supra indirect or procedural Most of these involve issues. Finally, 491-92. we have found that the turn, We consider these an points speculative claimed are not too issue-by-issue basis. complex, supra 492-93. point At this can think of only we one A. Law RICO State Claims possible distinction between Ocean View begin once with again We that deserves further com- Loeb Our that the action. determination ment. That is the fact that while Viacom prevent Scrap AGC factors Dealers cathode, bought View ca- Ocean pursuing from their antitrust claims dis thode that had been tolled into rod. The poses remaining against of their claims parties do not focus on this distinction Sumitomo and Global for violations of briefs,

much in their and the defendants RICO and law. It is also dispositive state concede that there is no differ- against of all claims JPMorgan Chase. between ence cathode and rod other than product’s shape. upon our re- Scrap Based The district court dismissed the record, ground view of the contracts in the that Dealers’ RICO claims on paid integrated pro- apply equally Ocean View its AGC factors RICO. Dealers, however, appears Scrap argue ducers for rod to be identical to The fails, paid by Viacom for cathode even if claim their except their antitrust the existence of an premi- proceed. additional rod RICO case should This claim claims, prejudice. though af state law without RICO was modeled Civil

lacks merit. 1367(c)(3); § v. Dis- Oates Act. Holmes Securities See U.S.C. Clayton ter the (7th Zone, covery 116 F.3d 1173 n. Corp., 503 U.S. Protection Investor Cir.1997). 1311, 117 L.Ed.2d 532 267-69, 112 S.Ct.

(1992). requirement prox satisfy To JPMorgan B. Issue Preclusion: Chase causation, Scrap Dealers must imate injury and between their allege a relation The district court dismissed neither violation the defendants’ Scrap against Dealers’ claims JPMor- Bhd. International indirect nor remote. preclusion grounds. on issue gan Chase Teamsters, Health & Local 734 Welfare applies, the prove preclusion To that issue Morris, Inc., 196 Philip Fund v. Trust (1) the plain defendant must establish that Cir.1999) (7th (applying AGC F.3d liti fully represented prior in the tiff was analysis). proximate causation factors to (2) are precluded the issues to be gation, already determined that the we have Since (3) prior litigation, identical to those injury is too indirect and Scrap Dealers’ actually and de litigated the issues were purposes, for antitrust remote under AGC (4) merits, and resolution of cided on the similarly conclude that the relation we necessary judgment. to the issue purposes. too remote for RICO of Educ., Bd. People Who Care v. Rockford Cir.1995). (7th 172, 178 Scrap 68 F.3d Dealers also assert that Scrap against JPMorgan claims Chase Dealers’ finding erred in the district court conspiracy between alleged arise from their state law claims. On had abandoned in which JPMorgan Chase and Sumitomo they appear to be correct. point, desk JPMorgan Chase’s metals somehow certainly no evidence the rec There is conspiracy through furthered the its own voluntarily that the Dealers dis ord LME. purchases on the The issue their various pursue or failed to missed that of sought preclude, the defendants argue The defendants state law claims. ability as a Scrap Dealers’ to recover abandoned when that these claims were laws, under the antitrust proper plaintiff certify a Scrap attempted to Dealers actually litigated and decided on federal antitrust claims but class for the against in their suit Sumitomo. merits But no inference not for the state claims. Dealers, Scrap to bind the enough That is flow from a limited of abandonment should court, day have now had their with who action; contrary, to the request for class JPMorgan as well. respect to Chase 23(c)(4)(A) specifically R. P. rec Crv. fed. however, argue, Dealers may brought Scrap that “an action be ognizes flawed, day they in court was because respect as a class action with their maintained litigate to entirely opportunity It would be did not have particular to issue's.” fully the district court. the rule to seek certifica these issues before with consistent law, contention only support Their for this governed issues federal tion on that the court turned Sum- particu to do so for more the fact district declining while Nevertheless, summary motion to dismiss into law issues. itomo’s larized state to them. judgment all of motion without.notice fact remains that we have dismissed noted, this action against already claims As we have Scrap Dealers’ federal error, court, while in did not Scrap Since the the district Sumitomo Global. The anti- prejudice Scrap Dealers. independent Dealers have asserted no ba counsel, subject jurisdiction, fully litigated by trust were for federal matter issues sis Be- stage. at the class certification entirely it is to dismiss the albeit appropriate this, sides the district gave court the Scrap at that stage. Co., Aviles Cornell Forge Dealers an opportunity (7th hearing prior Cir.1999). for F.3d 604-05 Be- cause dismissing CLR JPMorgan Chase claims raised this argument in an manner, untimely at which were bring invited forth district court should any arguments additional have ground call considered as a would summary judgment into question the district without prior court’s Viacom giving “notice and a fair grant opportunity judgment present to the defendants. The arguments and evidence in response.” Scrap produced Dealers Id. no new evidence By striking the materials Viacom submit- that time that would into question call ted, the district just court denied that op- the factual basis for that determination. portunity. course, Of since we are re- Therefore, affirm we the district court’s manding this case on other grounds, the decision to .dismiss all brought by claims may issue again resurface after further against Dealers JPMorgan n discovery. At that point, considering all Chase on preclusion issue grounds. record, evidence the district court may properly evaluate —after considering C. Against Statement of Claim CLR all record evidence—whether either Via- CLR advances one final argument com or Ocean View presented has enough support of the judgment in both Viacom to connect' CLR violation of the View, and Ocean which applies only to antitrust laws. reasons, For the foregoing itself and not to its co-defendants. The we also deny CLR’s motion to strike. district court stated in the Viacom action that, while would not “address the issue Aiding D. Abetting: detail,” in any it believed that Viacom had JPMorgan Chase made an inadequate showing that CLR’s Another minor crops issue up only activities in any way affected the View, in Ocean but it too can disposed be paid copper. urges CLR easily. JPMorgan Chase asserts as an ground alternate for affirmance. the district court incorrectly its mo denied The procedural history of this argument tion to' dismiss ground on the complex and seems to engendered have complaint failed to state a claim against it a great deal enmity parties. between the it only because and abetted aided the con parties filed cross-motions for sum- spiracy between Sumitomo and Global. mary judgment standing question in But View Ocean is not attempting to state the Viacom action. joint its lengthy an “aiding and case. abetting” allega Its Global, motion with argued CLR never tion is JPMorgan that partici Chase was a that its in conspiracy role the was too pant in the conspiracy to manipulate the attenuated have directly to affected the claim, market. To state such a Comex price. The issue was first in raised Ocean need only View prove that JPMor- response CLR’s to Viacom’s cross-motion. gan Chase knew Sumitomo intended to Viacom, in reply, pointed to evidence in the trade, restrain that intended trade be re record that addressed argument. new this strained, and materially contributed to The district court struck these submissions that Areeda, 7 Phillip restraint. E. Anti This, as untimely. however, was in error. trust Law: An Analysis Antitrust of Viacom had obligation produce no to spe- ¶ and Principles Application, Their 1474a cific evidence of CLR’s role to (1986); survive Poller v. Columbia Sys., Broad. CLR’s motion summary Inc., judgment 464, 470, 368 82 S.Ct. since the issue (1962). was never raised CLR L.Ed.2d A reading broad of was without dismissal that reflect It more. this and alleges complaint

the we Affirm respects In other all Chase, prejudice. that aware JPMorgan that states court. We the district of prices, judgment the futures manipulating Sumitomo No. 01-1148. in judgment above- the and loans well also Affirm services provided Viacom, hand, Sumito- we find and hide finance other to On the prices market al- also are not indirect JPMorgan Emerson, Chase View and Ocean mo’s activities. regulators Brick, then- lied to and and Illinois under legedly stonewalled purchasers in an at- unlikely helped direct, and Sumitomo predictable, otherwise injury and the while all investigations, specula- to avoid tempt duplicate produce to deal. Of its handsomely on 01-3229, Therefore, profiting in Nos. damages. tive may come discovery, course, after merits 01-3485, 01-3230, we and Reverse evidence lacks the View to Ocean pass and Remand district court of the judgment But ac- claims. these to establish proceedings. for further true, enti- it is as allegations cepting proceed. to tled in concurring CUDAHY, Judge, Circuit concurring and 01-1148 00-3979 Nos. of Claims E. Reinstatement 01-3485, 01-3229 in Nos. judgments in the housekeeping matters Only a brief few and 01-3230. View, and Ocean Viacom both remain. defen- granted the also the district court by the reached in the outcomes join I RICO on their summary judgment dants cases, but I write in the several majority contains RICO because fraud claims appropriateness question separately for identi- Act Clayton similar rules relationship be- “lockstep” finding International plaintiffs. fying proper mar- and cash futures tween Hav- Teamsters, F.3d 825. Bhd. Via- claims of analysis of kets in may pur- here ing found com, and Ocean View. Emerson claims, claims the RICO their antitrust sue and outcome Sanner analysis The same well. reinstated must be a com- (which allegations on the relied They were law claims. for the state goes record) judgment summary plaint, prejudice dismissed without futures thesis on were based had claims all federal only because tended market cash and the market Finally, Ocean of the case. dropped out Thus, relationship “lockstep.” move Ocean View, dismissed court the district on the Chica- soybeans of futures law state Rhode Island under claim View’s price of the cash Trade go Board im- law Island that Rhode ground on the could by farmers realized to be soybeans similar requirements standing posed abso- direct and simple, to be be assumed opin- no Expressing law. of federal those “The lutely predictable. determination, we of that ion on merits ... soybeans are cash market and the Ocean found that we have that since note be- distinction that the closely related’ ‘so some at least may proceed View anti- consequence no them is of tween law, of the dismissal federal claims under at 929. 62 F.3d standing analysis.” trust grounds similar claim on the Rhode Island be no there could complaint, the Based be reconsidered. must of manipulation given that a question VII. pro- precisely produced market futures cash mar- consequence Modify portionate dismissal summarize, we To ket. in No. 00-3979 claims law of the state hardly

This is the ease with the Comex outcome, Sanner. however, may be physical and the market for copper. Even justified insofar as there is sufficient evi- though majority attempts to minimize dence the defendants engaged in mas- departures fully from a direct relation- sive cathode transactions and in- ship between the futures and physicals tended to manipulate physical prices as (and takes issue with the more well as futures injure thus to analysis critical of these relationships by purchasers plaintiffs.- such as the See court), the district under either view “lock- Sanner, (“even 62 F.3d at 929 if we were step” slogan becomes more a than a fact. ... to assume that there is a distinction And, course, it was the existence of a between markets that is relevant to anti- “lockstep” relation apparently excused standing, trust the farmers here have al- Sanner from the strictures of Illinois leged that one of objectives the CBOT’s Illinois, 720, Brick v. 431 U.S. 97 S.Ct. adopting the Resolution was to prompt a 2061, (1977) 52 L.Ed.2d 707 squared it price decline in the cash soy- market for with Associated General Contractors beans.”). California, Inc. v. State Coun- California 519, Carpenters, cil 459 U.S. 103 S.Ct.

897, (1983). existence, L.Ed.2d 723 us,

in the case before of a negotiable pre- (or discount)

mium part

enough itself to remove this relationship And, the “lockstep”

from category. if the

language of United, Kansas v. UtiliCorp PANNELL, David Inc., 199, 216, Petitioner-Appellant, 110 S.Ct. (1990) L.Ed.2d 169 about the undesirabili- ty exceptions to Illinois Brick were to MCBRIDE, Daniel R. Superintendent, here, be applied might outcome be in Respondent-Appellee. doubt. respect No. 01-3784. With to the possibility dupli- recovery, cative Sanner is quite also dis- United States Court Appeals, tinguishable. There plaintiff-farmers Seventh Circuit. produced commodity, bought none of it * and there was no trade in precursor Sept. Submitted 2002. raw material. plaintiff-manufac- Here the Decided Sept. 2002. bought turers integrated from producers, which from others substantial

quantities of copper pre-ea- cathode and (the

thode raw material price of

which also tended follow the copper market). believe, therefore,

I that the case before

us, although it seeks to apply Sanner’s

principle, may major abe step beyond

* After an of the examination briefs submitted on the briefs and record. See record, we argu- have concluded that oral 34(a)(2). Appellate Federal Rule of Procedure Thus, ment is unnecessary. appeal

Case Details

Case Name: Loeb Industries, Inc. v. Sumitomo Corp.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 20, 2002

Citation: 306 F.3d 469

Docket Number: 00-3979, 01-1148, 01-3229, 01-3230, 01-3485

Court Abbreviation: 7th Cir.