* Circuit Judge Torruella participated in oral argument in this

case, but has since recused himself and has not participatedin the decision of the case. The remaining two panelists, pursuant to 28 U.S.C. § 46(d), issue this opinion. 

# United Stat es Court of Appeals

For the First C ircuit

No. 04-1922

ABLE SALES COMPANY, INC., Plaintiff, Appellee,

v. COMPAÑÍA DE AZÚCAR DE PUERTO RICO, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge ]

Before Selya and Lynch, Circuit Judges . * Gina Ismalia Gutiérrez-Galang , with whom Law Office Pedro E. Ortiz Álvarez was on brief, for appellant. Carlos A. Rodríguez Vidal , with whom Myriam Fernández González , and Goldman A ntonet ti & Cordova, P.S.C. were on brief, for appellee.

May 6, 2005-2- LYNCH, Circuit Judge . This case presents the is sue of the meaning of the j uris dictional "in commerce" requirement of § 2(a) of the Robinson-Patman Anti-Discrimination Act, 15 U.S. C. § 13. Judgment was entered under the Act for Able Sales ("Able") and against Compañía de Azúcar de Puerto Rico ("CAPR"), a corporation that is primarily engaged in the refining of raw sugar

an d th e subsequent sale of this sugar in the local Puerto Rico market. CAPR argues on appeal that the district court did not have subject matter jurisdiction to entertain the suit brought by Able because the "in co mmerce" r equirement was not met. Able is a corporation primarily engaged in the importation and distribution of refined sugar in the local Puerto Rico market and a competitor of CAPR. Specifically, CAPR argues that its sale of refined sugar to various local wholesalers and retailers in Puerto Rico does not satisfy the "in commerce" requirement of the statute. Able counters that any of three separate transactions -- (1) CAPR's importation of raw sugar into Puerto Rico for refinement and sale; (2) Able's importation of refined sugar from Flo rida; and/or (3) CAPR's sale of refined sugar to a local company which planned to export the sugar -- independently satisfy this requirement and thus provide a basis f or subject matter jurisdiction in the district court.1 Because we set aside the judgment awarded to Able, we do not

address CAPR's second argument on appeal: that the district court erred in the calculation of damages. -3- The district court agreed and after a two day bench trial foundthat CAPR hadviolated § 2(a) of the Robinson-Patman Act and awarded $1,949,259.00 in damages to Able.

We hold that the transactions do not satisfy the "in commerce" requirement, reverse the j udgmen t, and remand with directions that judgment be entered for CAPR. 1 I. We briefly recount the facts, largel y a s found by the district court. CAPR does not dispute the district court's characterization of the facts.

Until December of 2000, the Puerto Rico Sugar Corporation ("PRSC"), a public corporation created by a Resolution of the Board of Governors of the Puerto Ri co Land Authority in 1973, was the sole supplier of "Snow White" brand refined sugar in Puerto Rico. The Puerto Rico Department of Consumer Affairs ("DACO") established regulations which required PRSC to sell all o f its two and five pound bags of refined sugar to ten exclusive distributors, one of which was Able. These distributors then sold the bags to wholesalers and retailers; DACO fixed the maximum prices for sugar that the distributors could offer.

In January 2001, the Puerto Rico Legislature moved away fromgovernmental ownership and privatized the local sugar-4-

industry. See 5 P.R. Laws Ann. § 430(a). It transferred the operations and assets of the Mercedita Refinery to CAPR. Until September 2001, CAPR sold the existing inventory of refined sugar fromthe refinery to the distributors, including Able, at the price of $43.23 per hundredweight, as established by D ACO an d as previously offered by the PRSC.

By September 2 001, CAPR had sold all the Mercedita inventory and was unable to supply the local demand for refined sugar. Due to the lack of refined s ugar, Able and another distributor, in agre eme nt with DACO, imported refined sugar requiredf or l ocal consumption, with the expectation that CAPR wouldlater import raw sugar, refine it, and resume the previous distributor system. Because the cost of the imported refined sugar

was higher than the price established by DACO, DACO issued an order which allowed the importers to sell the refined sugar to other distributors and wholesalers at a higher price tha n h ad been previously permitted by regulation. The new, higher price for dist r ibutors was $46.10 per hundredweight; distributors sold to wholesalers at the price of $48.54 per hundredweight. This order

was vacated in January of 2002, and the lower prices were reinstated.

CAPR, having soldall of its inventory of refined sugar, neededa new source of supply if it wished to continue in the business. It chose to import raw sugar to refine. In a one-time-5-

purchase, CAPR importedapproximately 12,000 tons of raw sugar into Puerto Rico which it refined at its Mercedita facility. There is

no evidence of any further importation of raw sugar by CAPR. Able attempted to buy refined sugar from CAPR (apparently refined from this one-time importation of raw sugar) at the distributors' price ($43.23 per hundredweight), but on December 26, 2001, CAPR notified Able that it was cutting distributors from its sales strategy and wouldno longer be selling to distributors. Instead, CAPR would be selling directly to wholesalers and retailers: if Able wanted to buy CAPR's refined sugar, it could do so at the wholesalers' price (not the lower distributors' price). Unfortunately for Able, this price was also the maximum price that Able could, by law, sell to its clients.

Thus CAPR moved from being a supplier to Able, which was

a distributor, to being a direct competitor to Able, with CAPR also acting as a distributor and selling directly to wholesalers. Both CAPRand Able sold directly to wholesalers and retailers, all of which were local Puerto Rico entities. One wholesaler, Tropical, purchased refined sugar from CAPR for export.

In an effort to make a profit and compete with CAPR, from January to Febru ary of 2002, Able imported from Florida refined sugar at a cost of $44.63 per hundredweight under the trademark "Florida Crystal." In conformance with DACO guidelines, Able2 CAPRdoes point out that Able's chairman admittedat tr ial

that the other two and five pound bag sugar distributors ceased operations on Janu a ry 1, 2002, prior to the alleged

### predatory pricing period from February of 2002 to September of 2002. Th e district court's finding, however, has no bearing on whether or not there is subject matter jurisdiction; we me rely note the discrepancy. -6- antici patedselling the sugar to wholesale clients at $47.54 per hundredweight.

Shortly thereafter, CAPR reduced the price of the sugar it had refined for sale to wholesalers from $47.54 to $45.10 per hundredweight. This was the beginning of the alleged period of predatory pricing. Able was forced to reduce its price as well to compete with CAPR.

At the end of April 2002, CAPRagain reduced its price to wholesalers, this time to $43.3 0 p er hundredweight. This lower price was not enough to cover CAPR's costs, which consisted of the costs of refining the raw sugar, the sale of the now-refinedsugar, andthe excise tax of $14.00 per hundredweight which CAPR was obligatedto pay to the Puerto Rico Department of the Treasury. Throughout the time that CAPR was lowering its prices, it did not pay this excise tax as required by law.

Despite Able's efforts to compete with CAPR, it lost a number of its clients and its market share was reduced by between forty and fifty percent. The district court found that other distributors were eliminated from the market as a result of CAPR's pricing. 2 In September 2002, CAPRex hausted its inventories and-7-

didnot purchase any additiona l raw sugar. There is no further evidence in the record as to w hether CA PR has remained in the busine ss of selling refined sugar to wholesalers after it had exhausted the inventory of sugar it had refined from the one-time import of the 12,000 tons of raw sugar.

Able filed the verified complaint on May 22, 2002 averring its version of the facts and alleging that CAPR engaged in "predatory pricing" in violation of the Robinson-Patman Act, 15 U.S.C. § 13. Specifically, Able stated:

Defendant's practice consists of distributing sugar at prices lower than the costs of its inventory. The objective of said pricing structure is to eliminate Able Sales from the market, to al low CAPR to prevail upon the market as the sole sugar distributor in Puerto Rico . . . . [This] practice will then enable [CAPR] to recoup the losses sustained during its current scheme of predatory pricing. On June 5, 2002, the summons, a copy of the verified complaint, and Able's first set of interrogatories and requests for product ion were served on CAPR. On August 9, 2002, after two extensions of time, CAPR filed an answer. After CAPR's continual failure to comply with discovery orders, the d istr ict court, pursuant to an Order of October 28, 2003, struck CAPR's answer to the complaint and its affirmative defenses. CAPR does not appeal this order.

On November 12 and 13, 2003, a bench trial was held before t he dis trict judge. At trial, Able presented documentary3 In a footnote, the district court referencedthe transaction

between Tropical and CAPR as a basis for subjec t matt er jurisdiction and stated "CAPR did sell refi ned sugar for exportation." -8- evidence, testimony of the Chairman of the Board of Able Sales, and

an expert who testified as to Able's damages. CAPR was given an opportunity to present evidence and to cross examine witnesses. CAPRdeclined to present evidence, but did cross examine witnesses.

Having stricken the defendant's answers and affirmative defenses from the record, the court determined that CAPR engaged in primary line price discrimination in contravention of the RobinsonPatman Act. The court stated, "this case clearly entails a primary-line price discrimination, in which CAPR imported raw sugar fromsources outside of Puerto Rico, refined it at the Mercedita Refiner y, and sold the refined sugar at below cost so as t o eliminate its competitors."

CAPRchallenged the court's subject matter jurisdiction, contending the "in commerce" r equire ment was not satisfied. The court found that it did have subject matter jurisdiction based on either CAPR's importation of raw sugar which it found remained in the flow of commerce or Able's importation of refined sugar. 3 II. Price discrimina tion i s made unlawful by § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, which provides:

It shall be unlawful for any person engaged in commerce, in the course of such commerce,4 In general, primary line violation s invo lve a claim by the

injured party that "[a] business rival has priced its products in an unfair manner with an object to eliminate or retard

### competition and thereby gain and exercise control over prices in the relevant market." Brooke Group , 509 U.S. at 222 ; see also III Areeda & Hovenkamp, Antitrust Law ¶ 745e, at 477 (2d ed. 2002). We express no view as to whether the district court correctly determined that the facts alleged by Able establish a primary line violation of § 2(a) of the Robinson-Patman Act. This issue has not been raised on appeal. The only question before us is whether the "in commerce" requirement of the Robinson-Patman Act is satisfied. -9- 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) ; see Bro oke Group LTD v. Brown & Williamson Tobacco Corp. , 509 U.S. 209, 219-20 (1993). The statute

encom pass es two different types of violations: primary line violations and secondary line violations. Primary line violations

are directed at inj uring competition with the discriminating seller's direct competitors, whereas secondary line violations are directedat injuring competition among the discriminating seller's customers. See Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp. , 79 F .3d 182, 1 88 (1st Cir. 1996); IA Areeda & Hovenkamp, Antitrust Law ¶ 267c, at 329-30 (2d ed. 2000). In this case, the district court found that CAPR had committed a primary line violation by engaging in predatory pricing. 4-10- Whether the district court has subject matter jurisdiction over these types of violations is largely determined by the Supreme Court's decision construing § 2(a) of the RobinsonPatm an Act, 15 U.S.C. § 13(a), in Gulf Oil Corporation v. Copp Paving Company, Inc. , 419 U.S. 186 (1974). Gulf Oil , which involveda secondary line violation, held, as all pa rties agree, that § 2(a) of the Robinson-Patman Act did not extend jurisdiction to the full extent of Cong ress's constitutional power granted by the Commerce Clause. Id. at 199-200. The Court stated:

[T]he distinct "in comme r ce" language . . . appears to denote only persons or activities within the flow of interstate commerce . . . . [T]he jurisdictional requirements of these provisions cannot be satisfied merely by showing that allegedly anticompetitive acquisitions and activities affect commerce. Id. at 195. To satisfy the "in commerce" requirement, one of the dis criminatory sales must cross a state line. See Id. at 19 5 ; Coastal Fuels , 79 F.3d at 190. As this requirement is jurisdictional, see Gulf Oil , 419 U.S. at 195, the burden to prove the interstate character of the sales is on the party asserting subject matter jurisdiction. See Bull HN Info. Sys., Inc. v. Hutson , 229 F.3d 321, 328 (1st Cir. 2000) (the party asserting jurisdiction has the burden of proving it).

In an effort to meet this burden, Able points to three transactions which it argues satisfy the "in commerce" requirement of § 2(a): (1) CAPR's importation of raw sugar into Puerto Rico5 We have excluded l ang uage concerning the requirements as to

§ 7 of the Clayton Act, as no § 7 allegations are made here. -11- for re finement and sale; (2) Able's importation of refined sugar fromFlorida; and (3) CAPR's sale of refined sugar to Tropical with the knowledge that Tropical planned to export this sugar. A. Focus on Plaintiff's Activities

We first reject Able's argumen t th at the "in commerce" element may be satisfied by reviewing the interstate activities of th e plaintiff , whether or not the defendant has acted "i n commerce." Specifically, Able argues that it imports refined sugar fromFlorida for sale in Puerto Rico, and this transaction crosses state lines. We disagree that the plaintiff's sales can be used to satisfy the "in commerce" requirement of § 2(a) of the RobinsonPatman Act.

Following the language of the statute, the Supreme Court in Gulf Oil held 5 that in order to satisfy the "in commerce"

r equ irement of the § 2(a) of the Robinson-Patman Act, the defendant's activities must satisfy the following test:

Unless it appears . . . that the [defendant's] allegedexclusive-dealing arrangements and discriminatory sales occur in the course of its interstate activities . . . and . . . that at least one of [defendant's] allegedly discriminatory sales was made in interstate commerce . . . , plaintiff's claims must fail.6 To support the finding that Able's transactions could satisfy

the "in commerce" requirement, the district court erroneously read language in Gulf Oil that state s, "§ 2(a) applies where at least one of the two transactions w hic h, when compared, generate a discrimination . . . crosses a state line." Gulf Oil , 419 U.S. at 200 (internal citation and quotation marks omitted). Gulf Oil involveda secondary line violation which requires, among other things, the discriminating seller to sell to one buyer (the favored buyer) at a lower price than to another buyer (the disfavored buyer). The two transactions to be compared, as this court's opinion in Coastal Fuels explained, are "either the sale to the favoredbuyer or the sale to the buyer allegedly discriminated against." Coastal Fuels , 79 F.3d at 189. In either a primary line violation or a seconda ry line vi olation, it is the sales by the defendant which are the focus. -12- Gulf Oil , 419 U.S. at 195. 6 In other wor ds, "if one of the discriminatory sales is 'in commerce,' the se lle r is engaged in

commerce and discrimination has occurred in the course thereof." IAAreeda and Hovenkamp, Antitr ust Law ¶ 267c, at 329 (2d ed. 2000). The activities which must meet the in commerce requirements are the sales by the defendant seller.

Afocus on the defendant's sales is consistent with Congressional purpose. As the Supreme Court stated in Standard Oil Company v. FTC , 340 U.S. 231 (1951), "the recognized purpose of the Robinson-Patman Act [is] to reach the operations of large interstate businesses in com peti tion with small local concerns." Id. at 237-38. Congress was concerned with predatory pricing by defen dan ts who engaged in interstate commerce, not by those who actedpurely locally. See Gul f Oil , 419 U.S. at 200-01 (reading the clear language of § 2 to exclude from the reach of the statute7 CAPRsuggests in its re ply brief that the one-time

importation of raw sugar cannot satisfy the "in commerce" requirement of § 2(a) because CAPR did not regularly import products from across state lines and there was not a "constant flow" of raw sugar int o P uerto Rico. We express no view on the validity of this argument. -13- "a multitude of local activities that hitherto have been left to state and local regulation").

To impose liability on a defendant seller for activities within the sole control of a plaintiff competitor would itself be anti-competitive, and contrary to the purposes of the RobinsonPatman Act. A defe nda nt seller must be able to know when it is subj ect to Robinson-Patman Act liability in order to conform its behavior to the law. We f ocus therefore only on the defendant's behavior. We reject the argument that the sales acti vity of the plaintiff, Able's importation of refined sugar from Florida, can be the basis for satisfying the "in commerce" jurisdictional requirement of the statute. B. Defendant's Alleged Interstate Transactions 1. CAPR's Importation of Raw Sugar Across State Lines

Able argues that even though CAPR's sales of refined sugar did not cross state lines, these sales satisfy the "in commerce" requirement because CAPR imported 12,000 ton s of raw sugar, 7 and CAPR's refinement in Puerto Rico of this imported sugar didnot remove the sugar from the "flow of commerce." This is an aspect of the doctrine concerned with t he "fl ow backward into-14-

interstate transactions in raw materials." IA Areeda & Hovenkamp, Antitrust Law ¶ 267b, at 324 (2d ed. 2000).

Whatever the present contours of the in the "flow o f commerce" doctrine under the Robinson-Patman Act, it certainly does not apply when there are material differences between the product importedand the pr odu ct sold after undergoing processing. The fact that the raw materials were imported into Puerto Rico does not necessarily mean that the "in commerce" requirement of § 2(a) of the Robinson-Patman Act is met. See Belliston v. Texaco, Inc. , 455 F.2d175, 180 (5th Cir. 1972) (The production of gasoline from crude oil is a "highly complex process" which interrupts the flow of commerce). Indeed the "flow of commerce" ends when these raw mater ials or go ods are "transformed in a material way." See IA Areeda & Hovenkamp, Antitrust Law ¶ 267b, at 324 (2d ed. 2000) .

CAPR argues that the imported raw sugar was transformed in such a material way when it underwent refining into refined sugar. CAPR states that the raw sugar was "extensively processed within Puerto Rico, resulting in an alteration of the nature of the product" and that the refinement process "extract[s] molasses and other non-sugar minerals [from] the raw sugar."

We ag ree that the refinement of raw sugar into refin e d sugar has transformed this product so that it cannot be fairly said to continue to be in the flow of commerce. This case is distinguishable from cases where courts have found the flow of8 The district cou rt did not make a specific finding as to

whether the refinement process interrupted the flo w of commerce. In response to CAPR's argument that it did, the district court stated, "even if the CAPR's refined sugar is not considered to be in the flow of commerce, Able Sales' refined sugar, which does not undergo any processing, is undeniably within the flow of commerce." -15- commerce was not interrupted. This is not a case in which the same product was temporarily stored in the state of ultimate sale. See, e.g. , Standard Oil Co. , 340 U.S. at 237-38 (temporary storage of gasoline does not depr ive the gasoline of its interstate characteristic). Nor is it a ca se in which the resulting sold product was essentially the same as the imported product. See, e.g. , Dean Milk Co. v. FTC , 395 F.2d 696, 715 (7th Cir. 1968); Foremost Dairies, Inc. v. FTC , 348 F.2d 674, 678 (5th Cir. 1965) (both holding that the processing of milk imported from out of state before local resale is not enough to remove the milk from the flow of commerce).

Despite stating that the refin e ment of sugar involves "negligible processing" and that the processes involved in this

case are similar to those involved in the processing of milk as in the examples given above, the plaintiff does not seriously dispute CAPR's claim as to the nature of the refinement process. 8 Accordingly Able has not met its burden of showing that the importedraw sugar remained in the flow of commerce. This transaction does not satisfy the "in commerce" requirement.9 We do not understand Ab le to say it could not buy from CAPR

at the same price Tropical did for sugar, whether intended for export or not. Nor does Able say that it and Tropical compete with each other to export sugar from Puerto Rico. We understand Able's argument to be based on an overall theory of predatory pricing, that CAPR artificially lowered its price in order to drive Able, its competitor in the distribution of sugar, out of business. -16- 2. CAPR's Sale to Tropical for Export

In contrast with Able's previous argument concerned with backwardinterstate movement of materials, Able makes a forward fl ow ar gument as its final argument. See IA Areeda & Hovenkamp, Antitrust Law ¶ 267b, at 324 (2d ed. 2000). Whether CAPR's sale of sugar to Tropical, knowing that Tropical planned to export the sugar, can satisfy the "in commerce" requirement is a more complex question. Fromthe 2002 sales summary, it appears that CAPR apparently made six sales of an indeterminate number of two pound bags of refined sugar and four sales of five pound bags of refined sugar to Tropical in 2002. Two of those sales were in the $43 to $46 rang e per hundredweight, and the rest were in the $30 range. Anotation next to the sales to Tropical suggests that those sales receiveda special discount because Tropical intended to export the sugar, presumably outside of Puerto Rico. These sales were likely discountedbecause CAPR does not have to pay an excise tax on such sales, as explained by Able's counsel. 9

We take Able's argument to be a permutation of the "flow of commerce" theory: the initial sale between CAPR and Able took-17-

place intrastate, but the goods remained in the "flow of commerce" because they were to be exported by Tropical and CAPR's knowledge of that puts the goods into the flow of commerce. The interstate activity of the buyer is therefore attributed back to CAPR, the intrastate seller, under the theory.

This forward flow theory may be ar guable on certain facts. Cases under statutes based on the full scope of Congress' constitutional commerce power over certain types o f int rastate transactions have suggested "[s]o far as the [intrastate] sales are for shipment to other States or to foreign countries, it is idle to contend that they are not sales in interstate or foreign commerce and subject to congressional regulation." Currin v. Wallace , 306 U.S. 1, 10 (1939) (challenging the Tobacco Inspection Act of 1935); see also United States v. Rock Royal Co-Op. , 307 U.S. 533, 568-69 (1939) (challenging the Secretary's regulation of the handling of milk in the New York metropolitan are a unde r the Agricultural Marketing Agreement Act of 1937). But of course, the scope of the "in commerce" clause of the Robinson-Patman Act is less than the constitutional reach.

While Gulf Oil held that a mere nexus to i nterst ate

commerce was insufficient, it did not decide whether some intermediate definitions of "in commerce" to capture the "practical consequences" of a discriminatory sale on national markets might be within Congressional intent. Gulf Oil , 419 U.S. at 199. Indee d-18-

the Court specifically noted the absence of two claims: that the defendant made interstate sales or was "otherwise directly involved in national markets" or that the "local market . . . is an integral part of the interstate market in ot her component commodities or products." Id . at 195-96.

But the record before us doe s not establish and indeed the plaintiff does not argue that either of those situations apply. Ultimately, Able fails to prove that the "flow of commerce" test is satisfied. The only evidence that Able points to concerning the sale from CAPR to Tropical is a sales summary of the sale to Tropical which has the notation, "[s]pecial price for exportation of sugar, plus taxes," anda statement made by Able's trial counsel to the district court that "[a]mong the sales that [CAPR] was able to execute during that year, one of their clients, Tropical Distributors, was sold sugar at a special price because he was going to export sugar."

For several reasons this evid ence is insufficient to prove that the sale was "in commerce." The flow of commerce is thought to end when the goods "are stored in a [seller's] warehouse

or storage facility for general inventory purposes," subject to an exception for when the goods are purchased and then stored in the seller's wareh ouse in response to a particular customer's needs. See Zoslaw v. MCA Distributing Corp. , 693 F.2d 870, 878 (9th Cir. 1982). That exception does not apply here. There is no evidence-19-

that CAPR's sale to Tropical was anything other than final, with Tropical taking possession of the sugar. Indeed, there is no evidence whether Tropical actually ever expo rted t he sugar. But what Tropical, an independent company, intended to do with the sugar, in these circumstances, is not germane to the "in commerce" inquiry. While there is evidence of negotiation over price and that CAPR expected that Tropical would export the sugar, there is

no evidence that CAPR exercised any control of the management, busine ss, or distribution decisions of Tropical. In cases where the "flow of commerce" doctrine applied, the same entity has engagedin both the intrastate and interstate tran sactio n. See, e.g. , Standard Oil , 340 U.S. at 237 (intrastate sale was in the flow of commerce; both the intrastate and interstate transactions were conducted by the same entity); Foremost Dairies , 348 F.2d at 676-77 (same). And courts have held that to the extent that the purchasers are independe nt dis tributors in their pricing and marketing decisions, the "flow of commerce" is interrupted by the sale of the product. See Zoslaw , 693 F.2d at 880; cf. , Acme Refrigeration of Baton Rouge, Inc. v. Whirlpool Corp. , 78 5 F.2d 1240, 1243-44 (5th Cir. 1986) (a subsidiary's sales could not be imputedto its parent company if the parent company did not "control" the subsidiary).10 Areeda also warns against reliance on a party's intentions,

as opposed to actions, except to cover the situations of "evasions calculatedto keep illegal activities ent i rely intrastate while employing the chann els of interstate commerce." IA Areeda & Hovenkamp, Antitrust Law ¶ 267 b, at 324-327 (2d ed. 2000). -20- In a situation where a wholly independent buyer purchases fromthe defendant seller, and there is no evidence of collusion or control between the seller and the independent buyer, 10 the flow of

commerce has ended and the intrastate seller cannot be held to have been made "in commerce" as a result of the subsequent interstate sale made by the independent buyer. III. We hold that the district court did not have subject matter jurisdiction over this suit a s CAPR's allegedly discriminatory sales were not "in commerce." W e reverse the decision of the district court, set aside the award of damages against CAPR, and remand with instructions to dismiss the case for lack of jurisdiction. Costs are awarded to CAPR.