## F I L E D United States Court of Appeals Tenth Circuit 

### February 28, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

B-S STEEL OF KANSAS, INC., a Kansas corporation,

Plaintiff - Appellant,

v. No. 04-3327 TEXAS INDUSTRIES, INC., a Delaware corporation, also known as TXI; CHAPARRAL STEEL COMPANY, a Delaware corporation, also known as TXI Chaparral; and CHAPARRAL STEEL TEXAS, INC., a Delaware corporation,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 01-CV-2410-JAR)

David A. Rameden, Shook, Hardy & Bacon, LLP, Overland Park, Kansas (Jerrod A. Westfahl, Shook, Hardy & Bacon, LLP, Ove rland Park, Kansas, and James R. Eiszner, Shook, Hardy & Bacon, LLP, Kansas City, Missouri, with him on the briefs), for Plaintiff - Appellant. George E. Leonard (Dennis D. Palmer with him on the brief), Shughart, Thomson & Kilroy, P.C., Kansas City, Missouri, for Defendants - Appellees.

Before LUCERO , ANDERSON , andMURPHY , Circuit Judges.-2-

ANDERSON , Circuit Judge.

Appellant B-S Steel of Kansas, Inc., a Kansas corpo ration, brought suit against four steel manufacturers, Chaparral Steel C ompany (“CSC”), Chaparral Steel Texas, Inc., Texas Industries, Inc., and Chap arral Steel Midlothian, L.P. (“Midlothian”) (collectively referred to as the “or iginal defendants”), all related entities. Its complaint alleged price discriminati on in violation of the RobinsonPatman Act, 15 U.S.C. § 13, and a number of state l aw claims. The district court referred the claims against one of the defendants, Midlothian, involving preApril 3, 2001 transactions, to arbitration, and the arbitration panel concluded that B-S Steel could not show antitrust injury or prove an amount of damages on these claims. The district court confirmed the arbitrati on award and dismissed Midlothian as a party. The remaining three defenda nts moved for summary judgment, and the district court granted their moti on, concluding that the arbitration award was entitled to preclusive effectand thus barred B-S Steel’s claims for damages, and that B-S Steel lacked stand ing to pursue injunctive relief. B-S Steel appealed. We affirm for the reasons stat ed below.

BACKGROUND-3-

B-S Steel is an independent distributor of wide flange steel beams (“WFB”), which it purchases from manufacturers and then sells to subcontractors for use in construction. In 1988, B-S Steel execut ed a Conditions of Sale agreement with and began purchasing WFB from CSC. In 1997, B-S Steel signed another Conditions of Sale document, issued by Midl othian, and continued purchasing WFB. A third Conditions of Sale document was executed on April 3,
2001. In October 1999, while B-S Steel was purchasing WFB from the defendants, the defendants initiated a pilot incent ive program with one of its largest customers, granting a $5 or $10 rebate per ton of WFB purchased. Similar incentives—including rebates, quick-pay discounts, and fixing prices in relation to those of foreign WFB suppliers—were extended to four other purchasers, not including B-S Steel, during the period 1999 throughthe end of 2001. These incentives were granted in secret, on condition that the favored purchasers use the savings for capital improvements rather than passin g it on to their customers. However, B-S Steel discovered the incentives program in May 2001 and soon afterwards initiated the present lawsuit against th e defendants in Kansas district

court. In its amended complaint, B-S Steel alleged that th e defendants had engaged in price discrimination, in violation of th e Robinson-Patman Act, 151 The Robinson-Patman Act provides: It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them[.] 15 U.S.C. § 13(a). The provision contains a numberof caveats, including “[t]hat nothing herein contained shall prevent pers ons engaged in selling goods, wares, or merchandise in commerce from selec ting their own customers in bona fide transactions and not in restraint of trade.” Id. Subsection (b) also allows a defendant in a subsect ion (a) action to rebut the plaintiff’s prima facie case “by showing that h is lower price . . . was made in good faith to meet an equally low price of a competitor.” Id. § 13(b).

2 A plaintiff who prevails in a suit alleging “injur[ y] in his business or property by reason of anything forbidden in the ant itrust laws,” which includes the Robinson-Patman Act, is entitled to “recover th reefold the damages by him sustained, and the cost of suit, including a reason able attorney’s fee.” 15 U.S.C. § 15(a).

3 Any person, firm, corporation, or association shall be (continued...) -4- U.S.C. § 13(a); 1 as well as fraud, misrepresentation, and intention al interference with prospective business advantage, in violation o f state law. B-S Steel sought damages, including treble damages under § 4 of the Clayton Act, id. § 15, 2 as well as injunctive relief, under § 16 of the Clayton Act , id. § 26, 3 for its alleged injury.3 (...continued) entitled to sue for and have injunctive relief . . . against threatened loss or damage by a violation of the ant itrust laws, including [the Robinson-Patman Act] . . . , w hen and under the same conditions and principles as injunctive relief against threatened conduct that w ill cause loss or damage is granted by courts of equity

. . . . In any action under this section in which the plain tiff substantially prevails, the court shall award the c ost of suit, including a reasonable attorney’s fee, to suc h plaintiff. 15 U.S.C. § 26. -5- Defendant Midlothian moved to stay the district cou rt action and to refer all claims against it that concerned pre-April 3, 2001, transactions to arbitration, based on an arbitration clause in the 1997 Conditio ns of Sale document that Midlothian had issued and B-S Steel had signed. B- S Steel contested the validity of the 1997 document. However, in an order dated S eptember 3, 2002, the district court, applying Texas law, held that the document w as an enforceable contract based on Midlothian’s partial performance in shippi ng 150 orders to B-S Steel during the applicable period. Further holding thatB-S Steel’s claims fell within the scope of the arbitration clause, the court gran ted Midlothian’s motion to stay litigation of B-S Steel’s pre-April 3, 2001, claims against it and to refer them to arbitration. In response to Midlothian’s further m otion, the court determined that the 2001 Conditions of Sale document was also enfor ceable and that B-S Steel’s4 B-S Steel later withdrew its tortious interference claim from the arbitration

panel’s review. -6- post-April 3, 2001, claims had to be dismissed for improper venue, pursuant to a forum selection clause in the 2001 document. The other three defendants also moved to stay proce edings against them due to the arbitration provision. However, the distric t court denied their request on the basis that these three defendants were not part ies to the contract containing the arbitration clause. The court observed that “a rbitration [between B-S Steel and Midlothian] would not necessarily bind the othe r three defendants, nor necessarily adjudicate the claims and rights assert ed against these three defendants.” Appellant’s App. Vol. I at 169. B-S Steel then voluntarily dismissed Midlothian as a defendant in the action and indicated that it would proceed with lit igation against the remaining three defendants but would not initiate arbitration with Midlothian. Midlothian, however, filed a Demand for Arbitration with the Am erican Arbitration Association, seeking a declaration that it was not liable to B-S Steel on the antitrust and state law claims that B-S Steel had a sserted in district court. In response, B-S Steel submitted counterclaims, which included the same allegations that had been asserted in its amended complaint. 4-7-

While the arbitration process was underway between B-S Steel and Midlothian, the remaining parties in this lawsuit c ontinued with the discovery process, having reached an agreement that discoveryin the two proceedings would be conducted in parallel. Thus, B-S Steel fi led the same report quantifying its damages, prepared by an expert witness, Lawrenc e Redler, both in district court, pursuant to Fed. R. Civ. P. 26(a)(2), and inthe arbitration. Following a nine-day hearing and the parties’ submi ssion of post-hearing briefs, the three-person arbitration panel issued aReasoned Award in favor of Midlothian in November 2003. In its discussion of B-S Steel’s Robinson-Patman Act claim, the panel indicated that B-S Steel had m et its burden in establishing that Midlothian had engaged in prohibited discrimin atory pricing through its incentive programs between October 1999 and the endof 2001. The panel further indicated that Midlothian could not justify the dis crimination as a necessary allowance for differences in manufacturing, sales, or delivery costs, as permitted under section 2(a) of the Act, or as a response to a competitor’s preexisting offer, as permitted under section 2(b) of the Act. Howeve r, the panel concluded that B-S Steel had failed to meet its burden of proving that it had suffered antitrust injury because it could not establish a causal conn ection between any incentives given to other buyers and any harm to B-S Steel.5 The panel explained that it had requested that the model use these three

alternative time periods “due to a question over th e permissible temporal scope of the Damage Period.” Reasoned Award at 22 n.13, Vol . IV at 874. -8- The panel then considered whether, even assuming B- S Steel could establish the fact of antitrust injury, B-S Steel w ould be able to quantify its damages. In conducting this inquiry, the panel exp lained that “the quantum of proof required to quantify damages in a Clayton Actcase is significantly relaxed,” but that a factfinder “‘may not render a verdict on the basis of speculation or guesswork.’” Reasoned Award at 21, Appellant’s App . Vol. IV at 873 (quoting Copper Liquor, Inc. v. Adolph Coors Co. , 624 F.2d 575, 580 (5th Cir. 1980)). The panel then examined two damages models as prese nted in Redler’s damages report. The first model, attempting to demonstrate lost profits due to margin squeeze, compared B-S Steel’s pre-2000 overall prof it margins with its post-June 2000 WFB profit margins, using three different time periods ending in April 2001, December 2001, and June 2003, respectively. 5 Citing a number of flaws, the panel concluded that the analysis using this mo del lacked “reliability and legitimacy.” Id. at 23, Vol. IV at 875. The second model, attempti ng to demonstrate lost sales over periods beginning in Oc tober 1999 and ending in April 2001, December 2001, and December 2002, invol ved a linear regression analysis based on the monthly sales of WFB by buyer s that received incentives, using the monthly purchases of WFB by these buyers as a proxy for that figure,6 The panel also granted Midlothian relief on B-S Ste el’s additional claim

under the Texas Deceptive Trade Practices Act. B-S Steel did not raise that claim in its amended complaint, and it is therefore not at issue here. -9- and B-S Steel’s monthly sales of WFB during the sam e periods. The panel considered the analysis under this model to be “inh erently flawed and totally unreliable.” Id. at 25, Vol. IV at 877. Accordingly, the panel con cluded that B-S Steel had “failed to meet its evidentiary burden[] on . . . quantification of damages.” Id. The panel therefore denied B-S Steel treble damages under § 4 of the Clayton Act. Applying Kansas law, the panel also d etermined that Midlothian had made fraudulent misrepresentations to B-S Steel but that, again, B-S Steel failed to prove it suffered any damages as a result . The panel therefore granted Midlothian’s request for declaratory relief on thes e claims. 6
B-S Steel then filed a motion to vacate the arbitration award in Texas district court. Meanwhile, Midlothian filed a moti on to confirm the arbitration award in the original Kansas district court proceed ing. Presumably because it was no longer a party to that proceeding, Midlothian th en voluntarily dismissed its motion and instead filed a new action, seeking an o rder confirming the arbitration award. The Kansas district court consolidated Midl othian’s action with the original proceeding, and the Texas district court t ransferred B-S Steel’s action there to its Kansas counterpart. Subsequently, on June 14, 2004, the District-10-

Court of Kansas confirmed the panel’s arbitration award and denied B-S Steel’s motion to vacate. B-S Steel of Kan., Inc. v. Tex. Indus., Inc. (“B-S Steel I ”), 321 F. Supp. 2d 1214, 1224 (D. Kan. 2004). The court thus dismissed the case transferred from Texas while keeping before it the consolidated case, minus Midlothian as a party. Id. In the final pretrial order, filed December 17, 200 3, B-S Steel claimed that the defendants refused to allow it to make further purchases of WFB after it initiated the present lawsuit and that its last pur chase thus occurred in August 2001. In accord with the arbitrators’ conclusion that the incentives program ended in December 2001, B-S Steel acknowledged thatthe defendants had “terminated” their incentives program “[s]hortly af ter Plaintiff filed its lawsuit,” but claimed that the defendants had “then replaced some of the Deals with Favored Buyers, including Steel & Pipe, on terms th at were even more favorable to the Favored Buyers and more detrimental to Plaintiff and other service centers.” Pretrial Order at 8, Appellant’s App. Vo l. XII at 3590. The three remaining defendants in the litigation me anwhile moved for summary judgment, arguing that the arbitration awar d disposed of B-S Steel’s claims for damages under the doctrines of res judic ata and collateral estoppel, that any post-April 3, 2001, damages were de minimis, th at Redler’s damages report was inadmissible under Daubert v. Merrell Dow Pharm aceuticals, Inc. , 509 U.S.7 The final order granting summary judgment on all cl aims was entered on

July 29, 2004. -11- 579 (1993), and that B-S Steel lacked standing to s eek injunctive relief. The district court agreed that the arbitration award sh ould be given preclusive effect in this case “because the arbitration was akin to a fu ll-blown trial.” B-S Steel of Kan., Inc. v. Tex. Indus., Inc. (“B-S Steel II ”), 327 F. Supp. 2d 1252, 1258 (D. Kan. 2004). It applied res judicata to preclude al l of B-S Steel’s pre-April 3, 2001, claims, including its tortious interference c laim, because they either were or could have been decided in the arbitration. Id. at 1260-61. The court then applied collateral estoppel to the arbitrators’ con clusion that B-S Steel had failed to prove an amount of damages, either “before or af ter April 3, 2001.” Id. at 1263. Finally, the court held that B-S Steel lacke d standing to proceed with its claim for injunctive relief because it had failed t o show “threatened loss or [injury] of the type the antitrust laws were design ed to prevent.” Id. at 1264. The court thus granted the defendants’ motion for summary judgment. 7Id. at 1265. B-S Steel appeals, arguing (1) that the district co urt erred in granting preclusive effect to the arbitration award because the original arbitration agreement was unenforceable, (2) that the district court further erred in applying collateral estoppel to B-S Steel’s post-April 3, 20 01, claims because the arbitration did not consider the same issues and di d not provide a full and fair-12-

opportunity to litigate these claims, and (3) that the district court erred in ruling that B-S Steel lacked standing to seek injunctive r elief under § 16 of the Clayton Act, 15 U.S.C. § 26.

DISCUSSION “On appeal, we review the district court's grant of summary judgment de

novo , applying the same legal standards as employed by the district court.” Orr v. City of Albuquerque , 417 F.3d 1144, 1148 (10th Cir. 2005). In doing s o, we review the record in the light most favorable to th e party opposing summary judgment. Neal v. Lewis , 414 F.3d 1244, 1247 (10th Cir. 2005). “Summary judgment is appropriate if there is no genuine issu e of material fact and the moving party is entitled to judgment as a matter of law.” Id. We consider each of B-S Steel’s arguments, listed above, in turn.

I. VALIDITY OF ARBITRATION AGREEMENT B-S Steel first argues that the district court coul d not properly accord the arbitration award preclusive effect because the arb itration agreement underlying the award was unenforceable. The appellees suggestthat B-S Steel did not appeal the district court’s orders confirming the arbitrat ion award and refusing to vacate the award and that B-S Steel thus waived any argume nts that might serve to-13-

undermine the arbitration award’s validity. Howeve r, B-S Steel was precluded from appealing the district court’s order confirmin g the arbitration award while the consolidated case remained pending. Trinity Br oad. Corp. v. Eller , 827 F.2d 673, 675 (10th Cir. 1987) (adopting “the rule that a judgment in a consolidated action that does not dispose of all claims shall no t operate as a final, appealable judgment under 28 U.S.C. § 1291”). B-S Steel did appeal from the district court’s final judgment. Although it only listed the case n umber of the original case in its Notice of Appeal, as the district court observed, the case filed by Midlothian seeking confirmation of the award was “substantivel y consolidated with [the original case] so any argument that the cases shoul d be treated separately is moot.” Mem. and Order Denying Mot. to Dismiss (D. Kan. Apr. 28, 2004), Appellant’s App. Vol. III at 712-13. Further, in i ts Docketing Statement, B-S Steel did list all three relevant case numbers and specifically indicated its intent to raise the validity of the arbitration agreement as an issue. Docketing Statement at 1, 5. Because this court “favors deciding cases on the merits as opposed to dismissing them because of minor technical defects, ” Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co. , 119 F.3d 847, 848 (10th Cir. 1997), and because8 We note that B-S Steel has not indicated that it is appealing the district

court’s order confirming the award. Thus, we need not determine whether this court has jurisdiction over such an appeal. See Denver & Rio Grande W. R.R. Co. , 119 F.3d at 848 (holding that this court has juri sdiction when the appellant has filed a docketing statement, indicating an inte nt to appeal a particular order, within the time for filing an appeal).

9 While the district court applied a Texas choice of law provision in the 1997 Conditions of Sale when construing the contrac tual validity of the arbitration agreement, the parties at times refer t o Kansas law, perhaps recognizing the logical flaw inherent in applying acontractual choice of law (continued...) -14- the appellees had fair notice that B-S Steel intend ed to raise this issue, we do not deem it waived. 8 However, we uphold the district court’s determinati on that the arbitration agreement was valid. B-S Steel’s sole argument to the contrary rests on the idea that because the earlier 1988 Conditions of Sale do cument required the signature of both parties to effect a modification, and becau se the 1997 Conditions of Sale document was not signed by Midlothian, the 1997 doc ument was a failed modification of the 1988 document and thus never we nt into effect. This argument is flawed because it ignores the prerogati ve of contracting parties either to waive requirements regarding modification or to substitute an entirely new contract for a previous one, particularly where the modified or new contract is in writing and is valid in all other respects. E.g. , Barbara Oil Co. v. Kan. Gas Supply Corp. , 827 P.2d 24, 36 (Kan. 1992); Beal Bank, S.S.B. v. Schleider , 124 S.W.3d 640, 652 (Tex. App. 2003); Restatement (Seco nd) of Contracts § 279. 99 (...continued)

provision before determining whether the underlying contract is valid. We need not consider the matter further, however, as our co nclusion would be the same under either Kansas or Texas law. -15- Here, it is undisputed that the 1997 Conditions of Sale document contained an integration clause and was signed by B-S Steel, andthat both parties adhered to that document in regard to Midlothian’s subsequent shipments. We reject the notion that B-S Steel may contest the validity of t he 1997 document under these circumstances. Thus, we affirm that the arbitratio n agreement in the 1997 document is valid and, accordingly, that the distri ct court was not precluded on that basis from applying res judicata and collatera l estoppel to the arbitration award.

II. APPLICATION OF COLLATERAL ESTOPPEL TO POST-APRIL 3, 2001, CLAIMS B-S Steel next contends that the district court err ed in applying the doctrine of collateral estoppel to prevent it from pursuing its post-April 3, 2001, claims against the appellees. In making this argument, B- S Steel invokes “the traditional ‘jurisdictional competence’ limitation on” preclusi on doctrine, suggesting that because the arbitration proceeding had no jurisdict ion over claims regarding postApril 3, 2001, transactions, collateral estoppel ca nnot apply to bar those claims in district court. Appellant’s Br. at 26. However, t he cases cited by B-S Steel in-16-

support of this argument apply this limitation to the doctrine of res judicata, or claim preclusion, which normally bars not only clai ms that were actually raised in a prior proceeding but also claims that “could have been raised ” but were not. Wolf v. Gruntal & Co. , 45 F.3d 524, 527 (1st Cir. 1995) (distinguishing res judicata from collateral estoppel on that basis). The concept of jurisdictional competence simply recognizes that a particular clai m could not have been raised in the prior proceeding and that res judicata is th erefore inapplicable. In contrast to res judicata, the doctrine of collat eral estoppel, also known as issue preclusion, “attaches only ‘[w]hen an issue o f fact or law is actually litigated and determined by a valid and final judgm ent, and the determination is essential to the judgment.’” Arizona v. California , 530 U.S. 392, 414 (2000) (quoting Restatement (Second) of Judgments § 27, at250 (1982)). This circuit has previously applied collateral estoppel to a con firmed arbitration award. Coffey v. Dean Witter Reynolds Inc. , 961 F.2d 922, 927-28 (10th Cir. 1992); see 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4475.1, at 514-18. The doctrine precludes a cou rt from reconsidering an issue previously decided in a prio r action where (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has be en finally adjudicated on the merits, (3) the party against wh om the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the do ctrine is raised-17-

had a full and fair opportunity to litigate the iss ue in the prior action. Estate of True v. C.I.R. , 390 F.3d 1210, 1232 (10th Cir. 2004). B-S Steel concedes the second and third requirement s but argues that the first and fourth requirements are not met here. Sp ecifically, it contends that because the arbitration was restricted to B-S Steel ’s pre-April 3, 2001, claims, the issues before the arbitration panel and in this law suit are not identical. Further, it maintains that it lacked “a full and fair opportuni ty to litigate issues critical to its post-April 3, 2001 claims.” Appellant’s Br. at 20. We disagree. In order to satisfy the first prong, it is necessary, in the arbitration context, to determine “‘with clarity and certainty’ that the same issues were resolved.” Bear Stearns & Co., Inc. v. 1109580 Ontario, Inc. , 409 F.3d 87, 91 (2d Cir. 2005). B-S Steel suggests that “[i]t is axiomatic that . . . issues involving conduct in one time period are different than . . . issues based o n differentconduct in a different time period.” Appellant’s Br. at 24. On the otherhand, the appellees identify the issue in both the arbitration and the present lawsu it as follows: “[C]ould plaintiff prove [an amount of] damages for anymonth between October, 1999 and December, 2001 ([under a] “lost sales” [theory]) orOctober, 1999 and October, 2002 ([under a] “margin squeeze” [theory]).” Appel lee’s Br. at 30. They argue that, because B-S Steel submitted Redler’s damages report as evidence in both proceedings, the arbitrators’ rejection of the repo rt makes the report inadmissible-18-

in this case. They then suggest that Redler’s repo rt is the only evidence of an amount of damages available and its exclusion thus precludes any quantification of damages. The district court determined that collateral estop pel was appropriate because “even though the arbitrators did not adjudi cate B-S Steel’s post April 2001 [Robinson-Patman] Act claim, they did decide that B-S Steel had suffered no damage[s], either before or after April 2001, fr om price discrimination.” B-S Steel II , 327 F. Supp. 2d at 1263. Indeed, the court sugge sted that the arbitrators had made this determination in respect to “transact ions occurring before or after April 3, 2001.” Id. The arbitrators, however, never indicated that th is was the case. Rather, they explicitly recognized that “the scope of the claims before the panel [is] limited to transactions occurring betwee n the fourth quarter of 1999 and April 3, 2001.” Reasoned Award at 7, Appellant’s App. Vol. IV at 859. Thus, the “price discrimination” to which their decisions refer must be that which occurred before April 3, 2001. In other words, the arbitrators’ finding was that B-S Steel had suffered no damages after April 3, 20 01, as a result of Midlothian’s pre-April 3, 2001, violations, not that B-S Steel s uffered no damages after April 3, 2001, as a result of any violation by Midl othian or the appellees at any10 The district court’s mischaracterization appears to result from the

assumption that the calculation of damages for a ce rtain month took into account Midlothian’s sales either to B-S Steel or to its co mpetitors during that month. This assumption is unwarranted because, as discusse d above, the damages models presented measured the latter companies’ overall sa les and profits during the applicable time period, not their purchases from a particular supplier during that time period. The latter figure was simply not invo lved in the calculation.

11 See 18 Wright, Miller & Cooper, Federal Practice & Pro cedure § 4417, at 429 (observing that in the situation of “basically continuing activity,” where the first action addressed the activity within a specif ic time period, “[p]reclusion can be justified only by concluding that the first fail ure to show the facts should prevent a second attempt even as to [a] later [peri od],” and deeming “the question thus framed . . . one of the most difficult of all issue preclusion questions”). -19- time. 10 The question is whether this distinction is signi ficant for purposes of a collateral estoppel analysis. 11 Other jurisdictions have recognized “the principle that matters adjudged as to one time period are not necessarily an estoppel to other time periods.” Int’l Shoe Mach. Corp. v. United Shoe Mach. Corp. , 315 F.2d 449, 455 (1st Cir. 1963); see also Harkins Amusement Enters., Inc. v. Harry Nace Co. , 890 F.2d 181, 183 (9th Cir. 1989) (rejecting idea that collateral est oppel barred a suit for conspiracy where “the plaintiff alleges conduct that occurred in a different time period”). This is particularly true “when significant new fac ts grow out of a continuing course of conduct.” Hawksbill Sea Turtle v. Fed. E mergency Mgmt. Agency , 126 F.3d 461, 477 (3d Cir. 1997). At the same time, a different time period alone does not necessarily preclude application of collat eral estoppel. See Pignons S.A. de Macanique v. Polaroid Corp. , 701 F.2d 1, 2 (1st Cir. 1983) (applying collatera l-20-

estoppel in a false advertising case based on advertisements published after 1980 where the prior case involved nearly identical adve rtisements published prior to 1980). The Restatement of Judgments suggests a num ber of factors that are relevant in distinguishing between situations where collateral estoppel is and is not appropriate in this context: Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advancedin the first? Does the new evidence or argument involve applicati on of the same rule of law as that involved in the prior proceedin g? Could pretrial preparation and discovery relating to the matter pr esented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? How closely related ar e the claims involved in the two proceedings? Restatement (Second) of Judgments § 27 cmt. c. Whe re these questions can be answered in the affirmative, it is likely that the “issue” involved in the two proceedings is the same. In the present case, we are concerned with the same claims alleging the same conduct over two consecutive time periods, arb itrarily separated by the effective end date of an arbitration agreement betw een the parties. It is not necessarily true that the amount of damages sustain ed as a result of ongoing conduct must remain uniform over the entire period of time the conduct continues. Thus, conceivably, the evidence of dama ges may differ for different time periods. Here, however, as indicated above, B -S Steel conducted discovery simultaneously in the two proceedings at issue and submitted Redler’s damages-21-

report as evidence of the amount of damages both inthe arbitration and in district court. Redler’s report made no attempt to disaggre gate the damages that it calculated according to whether they were caused byincentive sales that occurred before or after April 3, 2001. Indeed, B-S Steel h as not suggested that the damages amounts for the two claims would be differe nt, or, if different, that the disaggregation would require anything beyond dividi ng the total amount among the number of months in each period. For example, B-S Steel does not contend that the cumulative impact of ongoing incentives to its competitors has exacerbated the damages that it may have sustained as a result of the defendants’ post-April 3, 2001, violations, nor does it point t o any specific result of postApril 3, 2001, violations that could have led to a type of injury that could not have been contemplated as resulting from pre-April 3, 2001, violations. Cf. Ritchie v. Landau , 475 F.2d 151, 154-55 (2d Cir. 1973) (applying col lateral estoppel to preclude the plaintiff from seeking a b onus directly from a company’s president where he had failed to obtain the bonus i n arbitration with the company and he sought the entire amount of the bonus in both proceedings). B-S Steel does claim that the arbitration panel ref used to consider evidence of transactions that occurred after April 3, 2001, arguing that “[s]ubstantial evidence of injury in the post-April 3, 2001 periodwas not presented [in the arbitration] because of objections by Midlothian, [ and] the arbitrators[’]12 Indeed, it is clear from the Reasoned Award that th e arbitrators did allow

some evidence, including testimony of two customers , that covered this postApril 3, 2001 period. Reasoned Award at 18-19, App ellant’s App. Vol. IV at 870-71 (describing customer evidence). Significant ly, the arbitrators observed that B-S Steel simply “did not develop, to any sign ificant degree, empirical data or evidence obtained from either competing steel se rvice centers or from customers, choosing instead to develop its case thr ough” its alternative damages models. Id. at 17, Appellant’s App. Vol. IV at 869. The arbit rators indicated that B-S Steel had the necessary data available but sugg ested that its choice not to use this data might be the result of “‘real world’ busi ness considerations . . . trump[ing] the litigation process.” Id. at 17 n.9. Nevertheless, the arbitrators viewed this omission as raising the “negative infer ence that, by having evidence available to it and not using it, such evidence mig ht have undermined or defeated its claim.” Id. at 18 n.9, Appellant’s App. Vol. IV at 870. Here as well, B-S Steel does not suggest that it wishes to present any actual data from the Favored Buyers or any additional evidence from customers inregard to the period at issue. -22- unwillingness to hear or consider it.” Appellant’s Br. at 29. However, B-S Steel fails to specify any excluded evidence of post-Apri l 3, 2001, damages sustained as a result of the discriminatory pricing program in e ffect until December 2001, during the period B-S Steel was undisputedly a purc haser of WFB from the defendants. 12 Rather, it focuses on the arbitrators’ exclusion of evidence in connection with new rebate programs that allegedly went into effect after December 2001. Along the same lines, B-S Steel also argues that ne w evidence has become available regarding “ongoing Deals” between the def endants and one of its competitors. Appellant’s Br. at 33. The new evide nce to which B-S Steel refers in its brief all relates to post-December 2001 deal s in which the defendants13 This evidence includes deposition testimony from on e of its competitors,

Favored Buyer Steel & Pipe Supply Co., that it cont inued to receive a 3% discount beginning in early 2002, after the appelle es terminated the earlier incentives program, because it threatened to cease purchases unless it received the discount. It also includes an affidavit from one o f B-S Steel’s customers that it has increased purchases from Steel & Pipe during th is period, and thus decreased purchases from B-S Steel, because of Steel & Pipe’s lower prices. -23- allegedly engaged in further discriminatory pricing

. 13 B-S Steel included the claim that these new deals also violated the Robins on-Patman Act in the district court’s final pretrial order. However, in order to prove a violation of § 2 of th e Robinson-Patman Act, 15 U.S.C. § 13, in regard to these new deals, B-S S teel would have to show that the deals granted more favorable prices than those granted to B-S Steel in its reasonably contemporaneous purchases. Motive Parts Warehouse v. Facet
Enters. , 774 F.2d 380, 389-90 (10th Cir. 1985); see also A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc. , 881 F.2d 1396, 1407 (7th Cir. 1989); Sec. Tire & Rubber Co. v. Gates Rubber Co. , 598 F.2d 962, 964 (5th Cir. 1979). While B-S Steel disputes the appellees’ claim that it only ma de a single purchase of 18.9 tons after April 3, 2001, the latest that it allege s making purchases is August 2001. B-S Steel has offered no basis for concludin g that these purchases should be deemed reasonably contemporaneous with those mad e by B-S Steel’s competitors after December 2001. See England v. Chrysler Corp. , 493 F.2d 269, 272 (9th Cir. 1974) (sixteen-month time span betwee n promotional allowances for-24-

new or relocated car dealerships defeated Robinson- Patman Act claim); Atalanta Trading Corp. v. FTC , 258 F.2d 365, 371 (2d Cir. 1958) (seven-month per iod between pork sales not contemporaneous); Maier-Schu le GMC, Inc. v. Gen. Motors Corp. , 780 F. Supp. 984, 989 (W.D.N.Y. 1991) (no § 2(a) violation where plaintiff failed to show it made purchases in same year alleged violation occurred). But see Fred Meyer, Inc. v. FTC , 359 F.2d 351, 357 (9th Cir. 1966) (concluding that there was substantial evidence sup porting FTC’s determination that sales over a number of years occurred during the same time period where “the sales are of a single, fairly standardized item, wi dely sold in the area, and recur frequently during the years involved”), rev’d in part on other grounds , 390 U.S. 341 (1968). This new evidence thus does not add anything significant to B-S Steel’s claim for damages resulting from post-April 3, 2001, transactions. Based on the considerations discussed above, we con clude the issue involved here is identical to the one decided in th e arbitration. B-S Steel also argues that it did not have a full and fair opportu nity to litigate the issue because of its inability to present to the arbitration pane l the evidence of price discrimination that B-S Steel alleges occurred afte r December 2001. As explained above, however, this new evidence is not significant for purposes of B-S Steel’s damages claim and thus did not affect B -S Steel’s opportunity to litigate the issue.14 See G. Richard Shell, Res Judicata and Collateral Esto ppel Effects of

Commercial Arbitration , 35 UCLA L. Rev. 623, 668 (1988). -25- B-S Steel’s final argument opposing collateral esto ppel concerns the nature of arbitration agreements. According to B-S Steel, “the contractual nature of the arbitrators’ jurisdiction” should prevent the arbitrators’ award from having preclusive effect on “issues and claims outside the Arbitration Period” when such an effect was not intended by the contracting parti es. Appellant’s Br. at 24. It also contends that because an arbitration is a priv ate rather than a judicial process, the application of doctrines of preclusiondoes not serve the same interests in judicial economy and avoidance of piec emeal litigation. We do not believe, however, that parties to an arbitration ag reement could reasonably intend to allow the losing party to have a second chance t o win in court on the very issue that he lost in arbitration. Such a result would u ndermine the legitimacy of the arbitration award itself, and of the arbitration pr ocess. Where, as here, the parties have invested considerable time and resources arbitrating an issue identical to that before a court, and the arbitration panel clearly a rticulates its findings on that issue, the court may consider this evidence that th e parties intended the arbitration to have preclusive effect. 14 We therefore uphold the district court’s summary ju dgment on B-S Steel’s post-April 3, 2001, claims for damages.15 See Miller v. Auto. Club of N.M., Inc. , 420 F.3d 1098, 1127-28 (10th Cir.

2005) (“[W]e may affirm the judgment of the distric t court on any grounds for which there is a record sufficient to permit conclu sions of law, even grounds not relied upon by the district court.” (internal quotation omitted)). -26- III. STANDING TO CLAIM INJUNCTIVE RELIEF Finally, B-S Steel argues that the district court e rroneously determined that B-S Steel had no standing to seek injunctive relief against the appellees under § 16 of the Clayton Act, 15 U.S.C. § 26, in order t o prevent them from “continuing and maintaining illegal WFB pricing conduct.” Appellant’s Br. at 34. The district court held that B-S Steel lacked stand ing to pursue injunctive relief because the arbitrators had already determined thatit could not show antitrust injury for purposes of its pre-April 3, 2001, damag es claim. B-S Steel II , 327 F. Supp. 2d at 1264. B-S Steel argues that this holdi ng is in error because the standards for obtaining treble damages under § 4 an d for obtaining injunctive relief under § 16 are different. As discussed belo w, we agree that the district court’s reliance on the arbitration award to resolv e whether B-S Steel has antitrust standing for purposes of its request for injunctive relief was in error. However, because B-S Steel no longer purchases steel from th e appellees, it has no claim for injunctive relief. We therefore affirm the dis trict court’s ruling on this alternative ground. 15-27-

Designed to determine “whether the plaintiff is a p roper party to bring a private antitrust action,” the standing inquiry in antitrust law requires a court “to evaluate the plaintiff’s harm, the alleged wrongdoi ng by the defendants, and the relationship between them.” Associated Gen. Contra ctors v. Carpenters , 459 U.S. 519, 535 & n.31 (1983) (observing that “the focus o f the doctrine of ‘antitrust standing’ is somewhat different from that of standi ng as a constitutional doctrine”). The inquiry “applies to actions arisin g under both section 4 and section 16 of the Clayton Act.” Cent. Nat’l Bank v . Rainbolt , 720 F.2d 1183, 1186 (10th Cir. 1983); see Cargill, Inc. v. Monfort of Colo., Inc. , 479 U.S. 104, 111 (1986) (“[U]nder both § 16 and § 4 the plaintif f must . . . allege an injury of the type the antitrust laws were designed to prevent.”). However, “[s]tanding analysis under section 16 is not identical to that for section 4.” McCarthy v. Recordex Serv., Inc. , 80 F.3d 842, 856 (3d Cir. 1996). Rather, “[s]ect ion 16 has been applied more expansively, both because its lan guage is less restrictive than that of § 4 . . . and because the injunctive remedy is a more flexible and adaptable tool for enforcing the antitrust laws than the dama ge remedy.” Id. (internal quotation omitted); see also Campos v. Ticketmaster Corp. , 140 F.3d 1166, 1172 (8th Cir. 1998) (rejecting the notion of “an inflex ible rule that no antitrust plaintiff may seek injunctive relief unless he may also seek damages”).-28-

The Supreme Court has expressly stated that injunct ive relief under § 16 is “available even though the plaintiff has not yet su ffered actual injury.” Zenith Radio Corp. v. Hazeltine Research, Inc. , 395 U.S. 100, 130 (1969); see also Blue Cross & Blue Shield United of Wis. v. Marshfield Cl inic , 152 F.3d 588, 592 (7th Cir. 1998). Rather, a plaintiff “need only demonst rate a significant threat of injury from an impending violation of the antitrustlaws or from a contemporary violation likely to continue or recur.” Zenith Rad io Corp. , 395 U.S. at 130. Moreover, the Court has directed that “[§] 16 shoul d be construed and applied,” keeping in mind that its intent is “not merely to p rovide private relief, but . . . to serve as well the high purpose of enforcing the ant itrust laws.” Id. at 130-31. In order to make the necessary “threshold showing o f entitlement to injunctive relief,” a plaintiff must show “a threatof ‘antitrust injury,’” which is described as “injury ‘of the type the antitrust law s were designed to prevent and that flows from that which makes defendants’ acts u nlawful.’” Consol. Gold Fields PLC v. Minorco, S.A. , 871 F.2d 252, 257 (2d Cir. 1989) (quoting Cargill , 479 U.S. at 113) (further quotation omitted); see a lso Glen Holly Entm’t Inc. v. Tektronix Inc. , 343 F.3d 1000, 1007 (9th Cir. 2003). “[T]he anti trust injury requirement . . . . ensures that the harm claimed b y the plaintiff corresponds to the rationale for finding a violation of the antitrust laws in the first place, and it prevents losses that stem from competition from sup porting suits by private-29-

plaintiffs for . . . equitable relief.” Atlantic R ichfield Co. v. USA Petroleum Co. , 495 U.S. 328, 342 (1990). The showing of threatened antitrust injury is “not always sufficient to establish antitrust standing.” Alberta Gas Chems. Ltd. v. E.I. Du Pont de
Nemours & Co. , 826 F.2d 1235, 1240 (3d Cir. 1987). “Once [the threat of] antitrust injury has been demonstrated by a causal relationship between the [threatened] harm and the challenged aspect of the alleged violation, standing analysis is employed to search for the most effecti ve plaintiff from among those who [may] suffer[] loss.” Id. ; see also Daniel v. Am. Bd. of Emergency Med. , 428 F.3d 408, 437 (2d Cir. 2005). However, “becaus e standing under § 16 raises no threat of multiple lawsuits or duplicative recov eries,” a court need not consider those dangers when making the determination. Cargi ll , 479 U.S. at 111 n.6. Accordingly, as recognized by the district court, t his circuit has specified a number of factors relevant to the inquiry, which, a s concerns injunctive relief, include (1) the causal connection between the antitrust vio lation and the plaintiff’s [potential] injury; (2) the defendant’s intent or motivation; (3) the nature of the plaintiff’s [potential] injury—i.e., whether it is one intended to be redressed by the antitrust laws; (4) the directness or the indirectness of the connection between the p laintiff’s [potential] injury and the market restraint resulti ng from the alleged antitrust violation.-30-

Roman v. Cessna Aircraft Co. , 55 F.3d 542, 543 (10th Cir. 1995) (citing Sharp v

. United Airlines, Inc. , 967 F.2d 404, 406-07 (10th Cir. 1992)). In a summary judgment determination, the initial qu estion is therefore “whether plaintiff has raised a genuine issue of material fact sufficient to show a threat of antitrust injury” if defendants engage in future violations of the type alleged. R.C. Bigelow, Inc. v. Unilever N.V. , 867 F.2d 102, 107 (2d Cir. 1989). The district court answered this question in the ne gative because the arbitrators had already determined that B-S Steel could not sho w actual injury based on preApril 3, 2001, violations. B-S Steel II , 327 F. Supp. 2d at 1264. The court reasoned that because no injury resulted from the p re-April 3, 2001, violations, the price discrimination for which B-S Steel soughtan injunction was “not the type of injury that would entitle a plaintiff to co mpensation if the injury actually occurred.” Id. at 1270. This conclusion is in error, however, be cause it ignores the distinction outlined above between showing thatantitrust injury actually occurred in the past and showing that it might occu r in the future. Indeed, as recognized above, B-S Steel offered different evide nce regarding injury for the period after December 2001. Thus, simply because the arbitrators concluded that B-S Steel failed to meet its evidentiary burden in regard to past violations does not mean, as a matter of law, that it would be impo ssible for B-S Steel to show a threat of future injury. See H.L. Hayden Co. v. Siemens Med. Sys., Inc. , 879 F.2d-31-

1005, 1022 (2d Cir. 1989) (holding that the court’s determination that the “plaintiff failed to make a showing of antitrust in jury adequate” to allow treble damages “does not provide a basis to dismiss plaint iffs’ Robinson-Patman Act claim insofar as it seeks [injunctive] relief”). T he arbitrators’ Reasoned Award therefore cannot provide a basis for denying B-S St eel injunctive relief. Nevertheless, we are precluded from reversing the d istrict court’s summary judgment on this ground because B-S Steel is no lon ger a purchaser of WFB from the appellees and has failed to show any possibility that it might resume such purchases in the future. As indicated above, a pla intiff must have made reasonably contemporaneous purchases in order to sh ow a violation of § 2(a) of the Robinson-Patman Act. Without such purchases, there can be no causal connection between the threatened injury that B-S S teel alleges and a violation of § 2(a). Nor would any such injury be one that this provision could remedy in practice. A consideration of the factors listed ab ove thus militates against recognizing standing here. See H.L. Hayden Co. , 879 F.2d at 1022 (holding that “[s]ince [the defendant] is no longer selling to [p laintiffs], as is its right, there is no danger that it will sell to them on discriminato ry terms in violation of 15 U.S.C. § 13 (1982), and accordingly no basis for a Robinson-Patman injunction”). B-S Steel points to an Eighth Circuit case as recog nizing that a plaintiff can seek damages or injunctive relief after it ceases p urchasing the defendant’s-32-

product as long as the “plaintiff has purchaser status at some time while price discrimination is ongoing.” Appellant’s Reply Br. at 8. That case, Reeder-Simco GMC, Inc. v. Volvo GM Heavy Truck Corp. , 374 F.3d 701 (8th Cir. 2004), has subsequently been reversed by the Supreme Court on other grounds. Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc. , 126 S. Ct. 860 (2006). Moreover, to the extent that the Eighth Circuit’s o pinion remains good law, we do not believe it supports B-S Steel’s contention. InReeder-Simco , the plaintiff submitted a damages calculation that spanned the en tire four-year period during which price discrimination was alleged to have occu rred, even though it had made only one three-item purchase from the defendant in the first year of that period. 374 F.3d at 710-11, 715. The court rejected the de fendant’s challenge to the jury’s damages award on that basis, citing the Supr eme Court for the proposition that a damages determination is not calculated mere ly in relation to the excess a plaintiff paid for its purchase, over the amount pa id by a favored buyer. Id. at 714 (citing J. Truett Payne Co. v. Chrysler Motors Corp. , 451 U.S. 557, 565 (1981)). In our view, the Eighth Circuit’s holding on that issue merely approves the use of a lost sales damages model in order to c alculate damages. It has no evident implication for a plaintiff’s standing to s eek injunctive relief where there is no indication the plaintiff will continue purcha sing from the defendant.16 As B-S Steel’s counsel at oral argument recognized, the testimony in the

record is conflicting in regard to whether B-S Stee l or Midlothian first refused to deal with the other. However, B-S Steel’s counsel also conceded that B-S Steel submitted orders to Midlothian that Midlothian refu sed to fill. In any case, our perception of B-S Steel’s claims must be governed b y the pretrial order. See Fed. R. Civ. P. 16(e); McKenzie v. Benton , 388 F.3d 1342, 1349 n.2 (10th Cir. 2004). -33- B-S Steel also points to a 1951 Fifth Circuit case, which held that the plaintiff was not required to make purchases “upon such [discriminatory] terms in order to attain the status of a competing purchaserunder the [Robinson-Patman] Act, as its failure to do so was directly attributa ble to defendant’s own discriminatory practice.” Am. Can Co. v. Bruce’s J uices , 187 F.2d 919, 924 (5th Cir. 1951). We need not consider whether to adopt such a rule here, however, because B-S Steel has not alleged that it stopped p urchasing WFB from the appellees due to their discriminatory pricing. Rat her, the pretrial order indicates B-S Steel’s contention that the appellees refused t o sell to B-S Steel in retaliation for B-S Steel’s initiation of this lawsuit. 16 B-S Steel finally argues that, if we fail to recogn ize that it has antitrust standing in these circumstances, “once a customer c omplains about price discrimination, Defendants can simply cease selling to that customer and effectively cut off its ability to seek injunctive relief.” Appellant’s Reply Br. at 6. However, we understand this to be the nature of§ 2(a) of the RobinsonPatman Act. That provision states that “nothing he rein contained shall prevent-34-

persons engaged in selling goods, wares, or merchan dise in commerce from selecting their own customers in bona fide transact ions and not in restraint of trade.” 15 U.S.C. § 13(a). It is well established that “a refusal to deal” simply “does not fall within the proscription of section 2 (a)” of the Robinson-Patman Act. Black Gold, Ltd. v. Rockwool Indus., Inc. , 729 F.2d 676, 682 (10th Cir. 1984). B-S Steel has not alleged a violation of any other antitrust provision that might provide relief for a refusal to deal in certa in circumstances. See id. (indicating that a refusal to deal “may be actionab le under other antitrust provisions”). We therefore conclude that B-S Steel lacks antitrus t standing to pursue injunctive relief in this case and affirm the distr ict court’s grant of summary judgment on this issue.

CONCLUSION For the foregoing reasons, the district court’s sum mary judgment order is
AFFIRMED.