UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUPERMARKET OF MARLINTON,

INCORPORATED,

Plaintiff-Appellant,

v.

VALLEY RICH DAIRY; FLAV-O-RICH,

INCORPORATED; THE VALLEY OF

VIRGINIA COOPERATIVE MILK

No. 97-2314

PRODUCERS ASSOCIATION,

Defendants-Appellees,

and

MEADOW GOLD DAIRIES,

INCORPORATED; BORDEN,

INCORPORATED,

Defendants.

JOHN MILES, formerly doing business

as Central Market; RUTH C. MILES,

formerly doing business as Central

Market,

Plaintiffs-Appellants,

v.

No. 97-2315

VALLEY RICH DAIRY; FLAV-O-RICH,

INCORPORATED; THE VALLEY OF

VIRGINIA COOPERATIVE MILK

PRODUCERS ASSOCIATION,

Defendants-Appellees,

and
MEADOW GOLD DAIRIES,

INCORPORATED; BORDEN,

INCORPORATED,

Defendants.

Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CA-93-968-R, CA-96-407-R)

Argued: May 7, 1998

Decided: August 27, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

TRAXLER, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Charles Leonard Egan, FORT & SCHLEFER, L.L.P.,

Washington, D.C., for Appellants. Michael Francis Urbanski,

WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke, Virginia,

for Appellees. ON BRIEF: William C. Buckhold, FORT & SCHLEFER, L.L.P., Washington, D.C., for Appellants. Francis H. Casola,

WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke, Virginia;

William H. Cleaveland, RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN, P.C., Roanoke, Virginia, for Appellees.

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 2
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Supermarket of Marlinton, Inc. ("Marlinton") and the owners of

Central Market ("Central Market") filed class actions against several

large dairy companies, seeking treble damages for alleged violations

of federal antitrust laws. Specifically, the grocery stores claimed that

the dairy companies conspired to suppress competition by fixing, raising, and maintaining the price of milk at artificially high levels in violation of the Sherman Act. See 15 U.S.C.A.§ 1 (West 1997).

Marlinton and Central Market appeal the district court's order granting summary judgment to the dairy companies on the ground that they

failed to produce sufficient evidence of injury in fact, and, therefore,

lacked antitrust standing. We affirm.

I.

Marlinton and Central Market are two grocery stores located in

southeastern West Virginia and southwestern Virginia, respectively.

They instituted these private antitrust actions in the wake of a 1992

Department of Justice investigation into the milk industry, which led

to the indictment of Valley Rich Dairy ("Valley Rich"), Meadow

Gold Dairies, Inc. ("Meadow Gold"), Borden, Inc. ("Borden"), and

three Meadow Gold officials on charges that they had rigged school

milk bids. The dairy companies pled guilty while the Meadow Gold

officials proceeded to trial.

During the trial of the Meadow Gold officials, Paul French

("French"), the former General Manager of Valley Rich, testified

under a grant of use immunity that he had engaged in various pricefixing activities with officials from Meadow Gold, a competitor in

portions of Virginia and West Virginia. More specifically, French testified about meetings in which he and the Meadow Gold officials conspired to fix school milk bids and wholesale milk prices. He stated

 3
that these meetings were in person, prearranged, and conducted at

locations away from his office. French further testified that he filled

out his expense accounts in such a manner as to conceal these meetings. The trial resulted in a hung jury and the Government did not reprosecute the case. French's testimony, however, became the basis for

the present actions against the dairies.

In 1993, Marlinton filed a class action1 against Meadow Gold, Borden, Valley Rich, Flav-O-Rich, Inc. ("Flav-O-Rich"), and Valley of

Virginia Co-Operative Milk Producers Association ("Valley of

Virginia"),2 alleging that between 1984 and 1987 the dairies had conspired to fix the price of milk sold in the wholesale market where

Marlinton conducted business. The district court granted the dairies'

motion for summary judgment on the ground that the applicable statute of limitations barred Marlinton's claim.3 We reversed that ruling

in Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,4

holding that the district court had employed an incorrect standard for

the tolling of the statute of limitations under the fraudulent concealment doctrine. In addition, we recognized that on remand the district

court would have to resolve the question of whether Marlinton had

antitrust standing, an issue that the parties had not yet fully briefed.5

In April 1996, Marlinton's attorney filed an identical suit on behalf

of John and Ruth Miles, who owned and operated Central Market during the period of the alleged conspiracy. The district court consolidated these cases for discovery purposes. Thereafter, in April 1997,

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1 Marlinton purported to represent a class of similarly situated commercial milk purchasers in western Virginia and a portion of southeastern

West Virginia.

2 During the relevant period, Flav-O-Rich and Valley of Virginia were

joint venture partners of Valley Rich.

3 See Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,

874 F. Supp. 721 (W.D. Va. 1994).

4 71 F.3d 119 (4th Cir. 1995).

5 On remand, the dairies renewed their motion for summary judgment,

arguing that the action was both time-barred and that Marlinton lacked

antitrust standing to bring suit because it could not prove that it purchased a price-fixed product from any of the dairies during the relevant

period. The district court denied that motion.

 4
the grocery stores deposed French, who by then claimed to have a

poor recollection of his price-fixing discussions with Meadow Gold

officials. However, French did testify that his discussions with

Meadow Gold officials had "no application" when: (1) Valley Rich

faced competition from a third dairy competitor; (2) one of Valley

Rich's partners, such as Flav-O-Rich, controlled the account; (3) there

was guaranteed pricing; (4) the milk was sold to a customer under a

private label; or (5) the milk was purchased from a distributor to

whom Valley Rich sold milk.

Two developments relevant to this appeal occurred after French's

deposition. First, the district court approved a classwide settlement

between the grocery stores and Meadow Gold and Borden in the

amount of $100,000. Therefore, in the present appeal, Valley Rich,

Flav-O-Rich, and Valley of Virginia are the only defendants remaining in the case. Second, the non-settling dairies once again moved for

summary judgment, arguing that the grocery stores lacked antitrust

standing because the grocery stores could not prove that they were

injured by the price-fixing conspiracy. Although Marlinton and Central Market could show that a price-fixing conspiracy existed in the

general geographic areas where they conducted business, the district

court held they could not demonstrate that the products they purchased from the dairies were a subject of that conspiracy, i.e., Marlinton and Central Market failed to produce sufficient evidence of injury

in fact. Therefore, the district court found that Marlinton and Central

Market lacked antitrust standing, and granted the dairies' motion for

summary judgment. This appeal followed.

II.

We review the district court's grant of summary judgment de novo.6

Although permissible inferences from the underlying facts are to be

drawn in the light most favorable to the non-moving party, we have

noted that, "those inferences must, in every case, fall within the range

of reasonable probability and not be so tenuous as to amount to speculation or conjecture."7

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6 See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

7 Thompson Everett, Inc. v. National Cable Adver., L.P., 57 F.3d 1317,

1323 (4th Cir. 1995) (citation omitted).

 5
Section 4 of the Clayton Act ("§ 4"), which authorizes private

actions for treble damages, provides in pertinent part that, "any person

who shall be injured in his business or property by reason of anything

forbidden in the antitrust laws may sue . . . ." 8 The Supreme Court has

recognized that "[a] literal reading of the statute is broad enough to

encompass every harm that can be attributed directly or indirectly to

the consequences of an antitrust violation." 9 For this reason, "[t]he

federal courts . . . have not interpreted section 4 as expansively as its

literal language suggests."10 Rather, "[t]he voluminous case law on

[antitrust] standing to sue under section four reflects an effort by the

federal courts to narrow the scope of the broad statutory language so

as to prevent unfair and oppressive results." 11 "Judicial limitation of

the § 4 remedy . . . has proven to be less than an empirical judicial

science."12 "The Supreme Court, along with the lower federal courts,

has long struggled to develop a precise test to determine whether a

particular plaintiff is the proper party to bring an antitrust suit under

section 4 of the Clayton Act; in truth, `[t]he issue of antitrust standing

has become somewhat confused.'"13

Although federal courts have not developed a single precise test for

determining antitrust standing, they have gradually begun to conduct

§ 4 analysis in a uniform manner.14 In particular, courts have recog-

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8 15 U.S.C.A. § 15(a) (West 1997) (emphasis added).

9 Associated Gen. Contractors of California, Inc. v. California State

Council of Carpenters, 459 U.S. 519, 529 (1983).

10 Todorov v. DCH Healthcare Auth. , 921 F.2d 1438, 1448 (11th Cir.

1991).

11 Midwest Communications, Inc. v. Minnesota Twins, Inc., 779 F.2d

444, 450 (8th Cir. 1985).

12 Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1081

(6th Cir. 1983).

13 Todorov, 921 F.2d at 1449 (footnote omitted) (quoting Local Beauty

Supply, Inc. v. Lamaur, Inc., 787 F.2d 1197, 1201 (7th Cir. 1986)).

In Associated General, 459 U.S. at 535-36, the Supreme Court likened

the struggle of federal judges to fashion a precise test to determine antitrust standing to "the struggle of common-law judges to articulate a precise definition of the concept of `proximate cause.'"

14 See Sports Racing Serv., Inc. v. Sports Car Club of Am., Inc., 131

F.3d 874, 882 (10th Cir. 1997) (stating that "[t]o maintain standing to

 6
nized that an antitrust standing analysis should begin by examining

the plaintiff's alleged injury. As the Eighth Circuit has noted, in determining "whether a plaintiff has standing to sue under the antitrust

laws, the threshold inquiry must focus on the plaintiff's alleged

injury. This inquiry is potentially dispositive: if there is no showing

of injury . . . the plaintiff does not have a claim cognizable under the

antitrust laws."15 Indeed, we have noted that injury is the "crux" of

every private antitrust action.16 This threshold showing of injury,

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bring an antitrust claim under § 4 . . . a plaintiff must show (1) an `antitrust injury;' and (2) a direct causal connection between that injury and

a defendant's violation of the antitrust laws"); Doctor's Hosp. of Jefferson, Inc. v. Southeast Med. Alliance, Inc., 123 F.3d 301, 305 (5th Cir.

1997) (antitrust standing exists only if plaintiff shows: (1) injury in fact;

(2) antitrust injury; and (3) proper plaintiff status, "which assures that

other parties are not better situated to bring suit"); Barton & Pittinos, Inc.

v. Smithkline Beecham Corp., 118 F.3d 178, 182 (3d Cir. 1997) (explaining that antitrust standing requires a showing of antitrust injury and

proper plaintiff status); Serfecz v. Jewel Food Stores, 67 F.3d 591, 596-

97 (7th Cir. 1995) ("[i]n order to maintain an antitrust action, plaintiffs

must establish that they (1) have suffered an antitrust injury and (2) are

proper plaintiffs to maintain an antitrust action . . . ."); Balaklaw v.

Lovell, 14 F.3d 793, 797 n.9 (2d Cir. 1994) (noting that courts have

developed a two-pronged test for determining antitrust standing: (1)

whether the plaintiff suffered an antitrust injury; and (2) an analysis of

other factors "largely relating to the directness and identifiability of the

plaintiff's injury"); Todorov, 921 F.2d at 1449 (prescribing a twopronged test for determining antitrust standing: (1) whether the plaintiff

has suffered an antitrust injury; and (2) whether the plaintiff is an "efficient enforcer" of the antitrust laws); Adams v. Pan Am. World Airways,

Inc., 828 F.2d 24, 26 (D.C. Cir. 1987) (stating that the plaintiff must

show: (1) antitrust injury; and (2) proper plaintiff status).

15 Midwest Communications, 779 F.2d at 450 (footnote omitted). See

also Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir. 1997) (stating that

"the nature of the plaintiff's alleged injury is of `tremendous significance' in determining whether a plaintiff has antitrust standing") (quoting Bhan v. NME Hosp., Inc., 772 F.2d 1467, 1470 n.3 (9th Cir. 1985));

2 Phillip E. Areeda & Hebert Hovenkamp, Antitrust Law ¶ 363a, at 219

(rev. ed. 1995) (stating that "all courts demand a showing of injury-infact `caused' by an antitrust violation").

16 See Windham v. American Brands, Inc., 565 F.2d 59, 66 (4th Cir.

1977).

 7
sometimes labeled injury in fact,17 is satisfied if the plaintiff can produce sufficient evidence of an injury "proximately caused by the

defendants' conduct."18

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17 See Areeda & Hovenkamp,supra, ¶ 360e, at 201 (stating that"we

usually speak of `causation' or `injury-in-fact' when focusing on the

presence or absence of actual injury caused by an alleged antitrust violation").

We recognize that a majority of courts begin their antitrust standing

analysis by determining whether a plaintiff has suffered an "antitrust

injury." We see no substantive difference between those courts which

look first to whether the plaintiff has produced sufficient evidence of

injury in fact and those which begin by examining whether the plaintiff

has suffered an "antitrust injury." "The key point is that a plaintiff is generally denied relief unless he proves each element[for standing]. The

Supreme Court has made this clear in requiring a plaintiff to establish

both proximately caused injury-in-fact and antitrust injury as `essential'

elements of the plaintiff's case." Id.,¶ 360e, at 200 (citing Associated

General, 459 U.S. at 539, 542-44; Blue Shield of Virginia v. McCready,

457 U.S. 465, 478-79 (1982)).

We do note, however, that there is a distinction between the two concepts. On several occasions, the Supreme Court has declined to "equate

injury in fact with antitrust injury . . . [for] not every loss stemming from

a[n] [antitrust] violation counts as antitrust injury." Atlantic Richfield Co.

v. USA Petroleum Co., 495 U.S. 328, 339 n.8 (1990) (noting that the

Court declined to adopt such an approach in Brunswick Corp. v. Pueblo

Bowl-O-Mat, Inc., 429 U.S. 477 (1977), and Cargill, Inc. v. Monfort of

Colorado, Inc., 479 U.S. 104 (1986)). See also Areeda & Hovenkamp,

supra, ¶ 360e, at 201 n.53 (stating that"injury-in-fact is never defined to

include antitrust injury").

18 Doctor's Hosp., 123 F.3d at 305. See also Areeda & Hovenkamp,

supra, ¶ 360e, at 201 (stating that "[c]ausation, or injury-in-fact, requires

a showing that the injury of which the plaintiff complains actually

resulted from those acts of the defendant that violated the antitrust

laws"); M. Sean Royall, Disaggregation of Antitrust Damages, 65 Antitrust L.J. 311, 315 (1997) (noting that "in order to establish the fact of

injury, an antitrust plaintiff must demonstrate that it suffered `some damage' as a causal result of the defendant's violation") (footnote omitted).

As courts and commentators have observed, antitrust standing involves

more than the constitutional standing requirement of"case or controversy." "Harm to the antitrust plaintiff is sufficient to satisfy the constitu-

 8
However, the Supreme Court has held that the showing of an injury

causally linked to a defendant's alleged illegal conduct, by itself, is

insufficient to maintain an action for treble damages.19 Rather, in

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 20 the Court held that an

antitrust plaintiff must show that the alleged injury is an "antitrust

injury," which it defined as:

injury of the type the antitrust laws were intended to prevent

and that flows from that which makes defendants' acts

unlawful. The injury should reflect the anticompetitive

effect either of the violation or of anticompetitive acts made

possible by the violation. It should, in short, be"the type of

loss that the claimed violations . . . would be likely to cause."21

The purpose of such a requirement is two-fold: "It ensures that the

harm claimed by the plaintiff corresponds to the rationale for finding

a violation of the antitrust laws . . . and it prevents losses that stem

from competition from supporting suits by private plaintiffs for either

damages or equitable relief."22 We recently applied Brunswick's "antitrust injury" requirement in Thompson Everett, Inc. v. National Cable

Advertising, L.P.,23 and concluded that the plaintiff, "if injured at all,

had not been injured by anything forbidden by the antitrust laws."24

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tional requirement of injury in fact, but the court must make a further

determination whether the plaintiff is a proper party to bring a private

antitrust action." Associated General, 459 U.S. at 535 n.31; see also

Todorov, 921 F.2d at 1448 (stating that antitrust standing involves more

than the constitutional "case or controversy" requirement).

19 See Brunswick, 429 U.S. at 489.

20 429 U.S. 477 (1977).

21 Brunswick, 429 U.S. at 489 (quoting Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 124 (1969)).

22 Atlantic Richfield, 495 U.S. at 342 (discussing purpose of the "antitrust injury" requirement).

23 57 F.3d 1317 (4th Cir. 1995).

24 See Thompson Everett, 57 F.3d at 1320. In Thompson Everett, we

stated that, "[a] private person may not . . . recover damages simply by

establishing that his injury was causally linked to an illegal presence in

the market. Rather, the damages sought must flow from that conduct

which is proscribed by the antitrust laws." Id. at 1325 (citations and

internal quotation marks omitted).

 9
If a would-be antitrust claimant produces sufficient evidence of

"antitrust injury," the standing analysis continues. In Cargill, Inc. v.

Monfort, Inc.,25 the Supreme Court stated that, "[a] showing of antitrust injury is necessary, but not always sufficient, to establish standing under § 4, because a party may have suffered antitrust injury but

may not be a proper plaintiff under § 4 for other reasons."26 Identifying who is a "proper plaintiff" under § 4 involves an analysis of "other

factors in addition to antitrust injury."27 These factors help determine

whether a plaintiff is an efficient enforcer of the antitrust laws, and

helps "exclude as plaintiffs those whose suits might `undermine[ ] the

effectiveness of treble-damages suits.'"28

In Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp.,29 we

identified certain factors, enunciated by the Supreme Court in Blue

Shield of Virginia v. McCready30 and Associated General Contractors

of California, Inc. v. California State Council of Carpenters,31 which

are "designed in combination to put principled limits on the literally

unbounded reach of the threefold damage remedy authorized by § 4

of the Clayton Act."32 These factors, which are to be assessed on a

case-by-case basis, include:

the risk of duplicative recovery by multiple antitrust claimants; the extent to which the claim is based upon speculative, abstract, or impractical measures of damages; the

causal connection between the alleged violation and the

harm suffered; and the relationship of the injury alleged to

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25 479 U.S. 104 (1986).

26 Cargill, 479 U.S. at 110 n.5.

27 Id. at 111 n.6 (citingAssociated General, 459 U.S. at 544-45;Illinois

Brick Co. v. Illinois, 431 U.S. 720 (1977)).

28 Adams, 828 F.2d at 26 (quoting Associated General, 459 U.S. at

545).

29 828 F.2d 211 (4th Cir. 1987).

30 457 U.S. 465 (1982).

31 459 U.S. 519 (1983).

32 Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d

211, 219 (4th Cir. 1987).

 10
the forms of injury about which Congress was concerned

when it created a private remedy.33

In the instant case, the district court determined that Marlinton and

Central Market lacked antitrust standing because they failed to produce sufficient evidence that they purchased products affected by the

alleged price-fixing conspiracy, i.e., they failed to produce sufficient

evidence of injury in fact. Based on the following, we affirm.34

III.

Marlinton and Central Market base their claims entirely upon

French's testimony. They contend that French's testimony demonstrates that between 1984 and 1987 Valley Rich and Meadow Gold

agreed on joint responses to changes in the regulated cost of raw milk

in the geographic areas where the grocery stores conducted business,

in violation of the Sherman Act. See 15 U.S.C.A. § 1.35

In support of their argument, the grocery stores point specifically

to the agreement that whenever there was a significant change in the

price of raw milk, French and Meadow Gold officials would meet to

decide on the timing and amount of published price changes of key

items, such as gallons, half-gallons, quarts, and pints of milk. Marlinton and Central Market claim that they purchased milk affected by

these price changes. Therefore, the injury they assert is the increase

in prices that they and others paid over the price that would have been

charged in a competitive market.

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33 Id. (citations omitted).

34 Because we agree that Marlinton and Central Market have failed to

satisfy the threshold requirement of demonstrating injury in fact, we need

not address whether they produced sufficient evidence of "antitrust

injury" and whether they are considered "proper plaintiffs" under § 4.

35 Section 1 of the Sherman Act provides in pertinent part that "[e]very

contract, combination in the form of trust or otherwise, or conspiracy, in

restraint of trade or commerce among the several States, or with foreign

nations, is hereby declared to be illegal." 15 U.S.C.A. § 1 (West 1997).

 11
A.

Central Market claims to have direct evidence that beginning in

December 1986 it purchased milk affected by the alleged price-fixing

conspiracy. On September 1, 1986, the regulated cost of raw milk in

the relevant portions of southern West Virginia and southwestern Virginia rose $.60 per hundred weight. French testified that he and a

Meadow Gold official agreed on a joint response to this increase. At

the time of this joint response, Central Market was served by Alexander, Inc. ("Alexander"), one of Valley Rich's distributors. Central

Market does not contend that Alexander was a party to this pricefixing agreement, and indeed, French stated in his deposition that his

price-fixing discussions with Meadow Gold officials had "no application" when an independent distributor, such as Alexander, controlled

the pricing.

However, on December 12, 1986, Valley Rich acquired Alexander,

and as a result, Central Market began purchasing milk directly from

Valley Rich. Because the regulated cost of raw milk did not change

again until 1987, Central Market claims that the milk it began purchasing from Valley Rich in December 1986 was affected by the

alleged price-fixing conspiracy. We disagree.

As an initial matter, we will assume for purposes of our analysis

that the alleged conspiracy existed through 1987, as Marlinton and

Central Market contend. We note, however, that the district court

determined that the latest evidence of price-fixing was a discussion

between French and a Meadow Gold official concerning the September 1, 1986 regulated price increase of raw milk, and that there was

no evidence "of any collusion in prices in 1987."36 Additionally, in

analyzing Central Market's claim, the district court found that the evidence was "suggestive of the absence, not presence, of collusion

between Valley Rich and Meadow Gold"37 because the price Central

Market paid for milk did not change when Valley Rich acquired

Alexander.

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36 J.A. 354 n.4.

37 J.A. 353.

 12
We are mindful that, in order to prevail, "a private plaintiff must

establish both that (1) he has standing and (2) the defendant has violated the antitrust laws. Once it appears, whether early or late in the

litigation, that either requirement is lacking, the suit must be

dismissed."38 In the instant case, if there is no evidence that the

alleged conspiracy continued to exist in December 1986, then in reality Central Market's claim fails on its merits. 39 However, we limit our

discussion to antitrust standing, and in so doing, we will "assume the

existence of a violation and then [determine] whether the . . . standing

elements are shown."40 Applying this test, even assuming the alleged

conspiracy existed through 1987, we find that Central Market has not

produced sufficient evidence that it purchased price-fixed products.

As noted, Marlinton and Central Market allege that Valley Rich

and Meadow Gold agreed on joint responses to changes in the regulated cost of raw milk. Such joint responses would have resulted in

joint increases or decreases in the dairies' milk prices. However, the

pricing data for Central Market during the period it was allegedly

injured demonstrates that Valley Rich's and Meadow Gold's prices to

Central Market were not mutual. When Valley Rich acquired Alexander's account in December 1986, Valley Rich continued to charge

Central Market the same prices as had Alexander. These prices were

substantially lower than Meadow Gold's during this time. In addition,

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38 Areeda & Hovenkamp, supra , ¶ 360f, at 202.

39 See Todorov, 921 F.2d at 1459 (stating that "[b]ecause we find no

conspiracy, [the plaintiff's] section 1 claim must fail").

Commentators have stated that, "[a]n increasing number of courts,

unfortunately, deny standing when they really mean that no violation has

occurred." Areeda & Hovenkamp, supra,¶ 360f, at 203. But see Levine

v. Central Fla. Med. Affiliates, Inc. 72 F.3d 1538, 1545 (11th Cir.)

(agreeing with Areeda & Hovenkamp and deciding antitrust case on merits rather than standing), cert. denied, 117 S. Ct. 75 (1996); Sicor Ltd. v.

Cetus Corp., 51 F.3d 848, 855 n.10 (9th Cir. 1995) (deciding not to reach

appellants' standing contention because there was no proof of injury to

competition); Todorov, 921 F.2d at 1455 (addressing the merits of a § 1

claim even though the plaintiff lacked antitrust standing); McCormack v.

NCAA, 845 F.2d 1338, 1343 (5th Cir. 1988) (assuming standing and

addressing antitrust claim on its merits).

40 Areeda & Hovenkamp, supra , ¶ 360f, at 204.

 13
while Valley Rich did not change its gallon price for milk sold to

Central Market until July 1987, Meadow Gold changed Central Market's gallon price two times during this same period.

Even when there were changes in the regulated cost of raw milk,

which the grocery stores contend was the "triggering event" for price

increases, "the movement in milk prices charged by Valley Rich and

Meadow Gold to Central Market [was] anything but mutual."41 For

example, when the regulated cost of raw milk increased effective January 1, 1987, Meadow Gold's gallon price to Central Market

increased four cents, while Valley Rich's price did not increase. Similarly, when Meadow Gold, in response to a May 1987 regulated raw

milk change, lowered its price on half-gallons and quarts, Valley

Rich's prices remained unchanged.

As the Supreme Court has stated, "antitrust law limits the range of

permissible inferences from ambiguous evidence in a§ 1 case."42 In

light of the pricing data, we cannot agree with Central Market's contention that it has produced sufficient evidence that could support an

inference that it was injured by its purchases of milk from Valley

Rich. Because Central Market has not produced sufficient evidence

that it purchased products that were affected by the alleged pricefixing conspiracy, it has failed to satisfy the threshold requirement of

demonstrating injury in fact, and therefore, lacks antitrust standing.

B.

Both Marlinton and Central Market make the additional argument

that they have established a circumstantial evidentiary basis to infer

that they were injured by their purchases from Meadow Gold throughout the 1984-87 conspiracy period. Specifically, Marlinton and Central Market contend that French's testimony supports the existence of

a general conspiracy whose effect must flow through the pricing system of the two dairies. We disagree.

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41 J.A. 353.

42 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588

(1986).

 14
In his deposition testimony in this case, which focused upon

wholesale price fixing by the dairies, French specifically testified that

his discussions had "no application" when: (1) Valley Rich faced

competition from a third dairy competitor; (2) one of Valley Rich's

partners controlled the account; (3) there was guaranteed pricing; (4)

the milk was sold to a customer under a private label; or (5) the milk

was purchased from a distributor to whom Valley Rich sold milk.

When asked specifically about Marlinton and Central Market, French

testified that: (1) his discussions had "no application" to Marlinton

because a third dairy, Broughton's Foods, was present in the market

during the relevant period and set Marlinton's prices; and (2) his discussions had "no application" to Central Market because Alexander,

an independent distributor, controlled Central Market's prices.

French's deposition testimony is significant for several reasons.

First, it reveals the narrow scope of his price-fixing discussions and

the fact that the alleged conspiracy did not have the all-encompassing

effects which the grocery stores urge. Second, French's deposition

was the first time that he testified in great detail as to the alleged conspiracy to fix prices in the wholesale market, as opposed to the school

milk market at issue in the previous criminal proceedings. Finally,

French's deposition statements are consistent with his trial testimony

that "all bets were off" when a third party competitor was involved.

To reiterate the Supreme Court's instruction - "antitrust law limits

the range of permissible inferences from ambiguous evidence in a § 1

case."43 Because French's testimony is the grocery stores' only evidence indicating how Meadow Gold handled its pricing, we believe

that Marlinton and Central Market have failed to establish a circumstantial evidentiary basis to infer that they were injured by their purchases from Meadow Gold.

IV.

Based upon the foregoing, we hold that Marlinton and Central

Market have failed to produce sufficient evidence that the products

they purchased were affected by the alleged price-fixing conspiracy.

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43 Matsushita Elec., 475 U.S. at 588.

 15
As such, they have failed to satisfy the threshold requirement of demonstrating injury in fact, and therefore, lack antitrust standing.

Accordingly, the district court's grant of summary judgment in favor

of the dairy companies is affirmed.

AFFIRMED

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