IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-1715

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GREAT WESTERN DIRECTORIES, INC.,

Plaintiff-AppelleeCross-Appellant,

versus

SOUTHWESTERN BELL TELEPHONE COMPANY, ET AL.,

Defendants-AppellantsCross Appellees.

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CANYON DIRECTORIES, INC.,

Plaintiff-AppelleeCross-Appellant,

versus

SOUTHWESTERN BELL TELEPHONE

COMPANY, ET AL.,

Defendants-AppellantsCross Appellees.

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Appeals from the United States District Court for the

Northern District of Texas

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ON PETITIONS FOR REHEARING AND REHEARING EN BANC OF GREAT WESTERN

DIRECTORIES, INC ., AND ON SUGGESTION FOR REHEARING EN BANC OF

SOUTHWESTERN BELL TELEPHONE COMPANY, ET AL.

January 26, 19962

Before WISDOM, REYNALDO G. GARZA, and GARWOOD, Circuit Judges.

BY THE COURT:

We acknowledge receipt of the Petition for Rehearing of Great

Western Directories, Inc., et al, as well as their Suggestion for

Rehearing En Banc and the Suggestion for Rehearing En Banc of

Southwestern Bell Telephone Company, et al.

At our request, Great Western Directories, Inc. has answered

Southwestern Bell Telephone Company's Suggestion for Rehearing En

Banc and Southwestern Bell Telephone Company has answered the

Petition for Rehearing En Banc of Great Western Directories, Inc.,

et al. Amicus Curiae for the Association of Directory Publishers

also filed an answer to the request of Southwestern Bell Telephone

Company's Suggestion for Rehearing En Banc.

The Petition for Rehearing of Great Western Directories, Inc.

is DENIED.

Treating the Suggestion for Rehearing En Banc by Southwestern

Bell Telephone Company, et al, as a Petition for Rehearing we GRANT

THE SAME IN PART.

In our original opinion we allowed the jury to grant damages

to Great Western Directories, Inc. for their decision to withdraw

from the Richardson Market. It is our view that the damages

received by Great Western Directories for Richardson were based on

anticipated illegal actions by Southwestern Bell Telephone Company.

The sole basis for Great Western's claim of lost future profits

from not entering Richardson was its subjective expectation that,

in the future, Southwestern Bell might raise DLI prices so much3

that the Richardson market would become unprofitable. We now hold

that antitrust damages cannot be predicated on such future illegal

acts.

Courts have refused to permit damage claims based on the fear

of future illegal acts, recognizing that such acts may never occur.

Bailey's Bakery, Ltd. v. Continental Baking Co.

, 235 F. Supp. 705,

716-717 (D. Hawai i 1964) ("[A]ny damages claimed for prospective

restraint of trade would be purely speculative, and a plaintiff

cannot recover money damages for anticipated but unimplemented acts

of restraint which may invade its interests."), cert. denied , 393

U.S. 1086 (1969); C onnecticut Importing Co. v. Frankfort

Distilleries, Inc.

, 101 F.2d 79, 81 (2nd Cir. 1939) ( denying

recovery for future refusals to deal).

What Great Western alleges amounts to fear of future illegal

acts. Southwestern Bell has not committed the acts forming the

basis for Great Western's claim of lost future profits in the

Richardson market, since it has not increased DLI prices to make

Richardson presently unprofitable. That it might or will do so

does not establish present antitrust liab ility for a

monopolization-based violation, since the lost-profits injury

giving ri se to antitrust damages cannot exist until Southwestern

Bell actually raises prices. Great Western has no antitrust

damages with regard to Richardson.

One of the judges of our court having pointed out to us that

it is not necessary to decide the issue of whether competition is

an element of section 2 in this case, we withdraw the second full4

paragraph on page 1385 of the original opinion, which can be found

at 63 F.3d 1378, and in its place insert the following:

"Appellants contend that in order for appellees to succeed in

a Section 2 antitrust claim they must present evidence of injury to

competition. The court below did instruct the jury that it had to

find injury to competition to find that Southwestern Bell Telephone

committed a monopolization-based offense: '[A]n antitrust

violation requires a showing of an actual adverse effect on

competition, not simply an effect on individual competitors. If an

adverse impact on overall competition has not been shown by the

plaintiffs, you may not find that a violation of the antitrust laws

has occurred.' The jury found a violation and the court recognized

in its amended Findings of Fact and Conclusions of Law that,

'[i]nherent in the jury's verdict and damage findings is a finding

of an adverse effect on competition legally caused by the acts of

defendants.' Additionaly, evidence of injury to competition

supports a finding of exclusionary conduct. The proper inquiry is

whether appellants engaged in exclusionary, anticompetitive, or

predatory conduct."

We therefore again find that Southwestern Bell Telephone has

violated the Antitrust Laws and we remand the case for the court to

determine the damages to be awarded Great Western Directories, Inc.

for such antitrust violation, but with the caveat that they should

receive no damages for their deci sion to withdraw from the

Richardson market or for their failure to enter the Little Rock

market.5

Since the damages in this case have been altered, the court

below may wish to take another look at the injunction against

Southwestern Bell that it had entered. It may want to keep the

same in place, modify, and as modified enter a new injunction, or

remove the injunction as a whole. This we leave to the judgment of

the court below.

In all other respects, the judgments of the court below are

affirmed, including the award of damages to Canyon Directories,

Inc.

No member of the court in active service having requested the

Court be polled on rehearing en banc, (FRAP and Local Rule 35) the

Suggestions for Rehearing En Banc are also DENIED.

ENTERED FOR THE COURT:

____________________________ United States Circuit Judge