MULLIGAN, Circuit Judge:
This action claiming various antitrust violations and breach of contract was brought by plaintiff International Railways of Central America (IRCA) against United Brands Co., successor in interest to United Fruit Co. (UF),
Of plaintiff's antitrust claims against UF, three survive (numbered as they were in the lower court): First, that UF, by requiring IRCA to discriminate in its rates and practices (such as preferential use of railroad equipment), prevented other prospective banana shippers from using IRCA's rail facilities from February 16, 1961 to December 31, 1961,
The Fifth claim against UF, and the only claim against CAG, was for breach by CAG of certain 1948 contracts by failing to maintain a substantial volume of banana shipments from western Guatemala on IRCA's lines.
I. PRIOR PROCEEDINGS
In 1949 dissatisfied minority stockholders of IRCA instituted a derivative suit against UF in the Supreme Court of the State of New York, alleging that UF, as controlling shareholder of IRCA, breached its fiduciary duty to the latter by using its dominant position to procure from IRCA unfairly low rates for its banana shipments. An award of damages (totalling, with interest, some $8.5 million) to IRCA and a mandated increase in freight rates between the parties was eventually affirmed by the New York Court of Appeals, Ripley v. IRCA, 8 N.Y.2d 430, 209 N.Y.S.2d 289, 171 N.E.2d 443 (1960). Approximately four years later the instant antitrust and contract action was commenced, with plaintiff retaining the same attorneys who had won success in Ripley.
In 1966 UF moved to dismiss the instant suit on the theory that IRCA's claims were barred by the prohibition against splitting causes of action between Ripley and the instant suit, and by the statute of limitations. A granting of the motion on the first ground (254 F.Supp. 233 (S.D.N.Y. 1966)) was reversed, 373 F.2d 408 (2d Cir. 1967). However, this court agreed with the district court that the statute of limitations barred claims for alleged antitrust violations committed before February 16, 1961.
Thereafter, UF made a motion for summary judgment in the trial court, on two grounds: one, that the plaintiff lacked standing to sue under the antitrust laws, and two, that the contract claim had to be dismissed because there was neither an express nor an implied obligation on CAG's part to ship any particular volume of bananas
A trial without a jury was then held before District Court Judge Murray I. Gurfein on the issues of liability. The trial proceedings consumed fourteen days, with both sides producing a great deal of documentary and testimonial evidence; seven witnesses were heard, and their testimony consumed 2045 pages of transcript. On January 29, 1975, Judge Gurfein, now a Circuit Court judge sitting by designation, filed an extensive and comprehensive opinion to which was appended 245 findings of fact (some of them from the prior Ripley litigation) and twenty-one conclusions of law, dismissing the complaint and finding for defendants in all respects. From this opinion, and Judge Gurfein's earlier partial dismissal of IRCA's contract claim, the plaintiff appeals. For the reasons that follow, we affirm.
Since IRCA on appeal raises numerous factual as well as legal issues, it will be necessary to recite the facts in some detail.
The relationship between IRCA and UF extends back practically to the turn of the century. By the late twenties, UF, through stock control, dominated the affairs of IRCA. By 1936, UF was able to control the election of IRCA's nine directors, although for many years the extent of UF's dominance was concealed.
UF desired to exercise its control over IRCA to insure for itself low freight rates and special services for the shipment of its fruit, while at the same time denying them to its competitors. For example, on banana shipments from Western Guatemala, UF paid IRCA only $60 per railroad car, performing wharfage services and loading at Port Barrios with its own labor, whereas its competitors paid $130 per car, and an additional $72 to IRCA for wharfage and loading, upon which IRCA made a profit. This disparity in freight rates was provided in a 1933 contract between UF and IRCA. In 1936, these rates were reaffirmed, and additional provisions added; for example, CAG agreed to buy new locomotives and cars for use on IRCA tracks and agreed not to build a port on Guatemala's west coast to insure that the fruit produced at Tiquisate would be carried on IRCA's lines to east coast ports. In separate agreements, CAG was given the right to operate its banana cars over IRCA's lines, and IRCA agreed to operate CAG's trains and to maintain CAG's rolling stock.
In 1948 CAG and IRCA entered into new agreements, which in essence reaffirmed and extended the 1936 contracts. The main contract was to continue until December 31, 1962, and the supplemental trackage and operating agreements until five years thereafter.
As we have noted, the Ripley litigation commenced in state court in 1949, and the decree there fixed the subsequent rate for future banana shipments by UF over IRCA
The court below also found as a fact that UF-CAG at all material times exported most or all of the bananas sent to the United States from Guatemala. However, what once was a profitable banana business began to deteriorate during the 1950's. UF's net earnings from its banana operations declined from $58.6 million per year in 1950 to $7.2 million in 1959. The Tiquisate plantation became plagued by Panama disease which rendered the area unsuitable for the cultivation of the more common type of banana (Gros Michel or Cocos type), and in addition was subject to excessive "blowdowns," or storms, which destroyed vast areas of plantings. As a consequence, UF's management was forced to take some sort of affirmative action.
As the lower court found, "[b]efore and after February 16, 1961 United officials informed IRCA that unless the Ripley judgment required rate of $130 per banana carload was reduced to $90, the Tiquisate operations might have to be liquidated. IRCA refused to reduce the $130 Ripley -decreed rate."
It was found as a fact below
In an attempt to cope with the ravages of Panama disease and "blowdowns" on the more conventional strains of bananas, UF, in the early sixties, successfully developed a new type of banana, the Valery. It was found below that the Valery, besides being resistant to the disease, and less susceptible to tropical windstorms because of its shorter height, also required less land for cultivation, thus rendering some of UF's land holdings superfluous. On the other hand, its thinner skin made it less able to withstand long railroad hauls, such as the trek over the mountains from Tiquisate to Port Barrios.
A sharp disagreement arose between the parties as to whether Tiquisate was a logical area for UF to abandon when the decision to put the Valery into production was reached. Even on this appeal the parties buttress their contrary positions with masses of agronomic data. However, the lower court credited defendants' testimony and documentary evidence
Plaintiff further alleged that UF, in closing down Tiquisate, did so in such a way as to forestall its competition from moving in. Besides the unfavorable agronomic factors already mentioned, the only other banana producer of note in Guatemala, Standard Fruit, by this time had already closed down its Guatemalan plantation as the result of a hurricane striking its west coast plantations in November 1961. The court below found that UF's decision to "phase out" Tiquisate was not taken until September 1962 at the earliest.
While a few leases granted by UF on Tiquisate land did contain restrictive covenants prohibiting the use of the land for banana growing, the lower court found this not to be a general policy on UF's part.
The Tiquisate banana operation was closed down by August, 1964, and the land sold by CAG.
III. THE ANTITRUST CLAIMS
(a)(1) The Third Claim — The Law
The appellant argues that even if UF had legitimate business reasons to abandon the Tiquisate operation, as was found below, the closing nonetheless violated both sections 1 and 2 of the Sherman Act. The violation of section 2 is premised on the theory that UF abused its monopoly power by refusing to deal with IRCA. Appellant relies upon cases such as Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951) and Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927) which do stand for the proposition that where a single trader refuses to deal in order to enhance its monopoly position, a section 2 violation may be found. Appellant further relies upon Judge Learned Hand's comment in United States v. Aluminum Company of America (Alcoa), 148 F.2d 416, 432 (2d Cir. 1945) that "no monopolist monopolizes unconscious of what he is doing." From these cases appellant concludes that UF, no matter how legitimate its reasons for giving up the Tiquisate operation, was in violation of section 2 of the Sherman Act.
While we agree that a specific intent to monopolize need only be found in a case where a defendant is charged with a conspiracy or attempt to monopolize, United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236, 1242 (1948); United States v. Aluminum Company of America, supra, 148 F.2d at 431-32, it does not follow that any act of the alleged monopolist irrespective of intent constitutes a section 2 violation. Judge Hand's comment was that no monopolist "monopolizes" unconscious of what he is doing. The action alleged to offend section 2 must be one which is monopolistic. The Supreme Court has clearly indicated that in order to establish such a section 2 violation, the plaintiff must establish that the defendant had a deliberate or willful purpose to exercise monopoly power. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778, 785-86 (1966); American Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S.Ct. 1125, 1138, 90 L.Ed. 1575, 1593 (1946). Monopoly power is well understood as "`the power to control prices or exclude competition.'" United States v. Grinnell Corp., supra, 384 U.S. at 571, 86 S.Ct. at 1704, 16 L.Ed.2d at 786; United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1004, 100 L.Ed. 1264, 1278 (1956).
In view of these cases construing section 2 of the Sherman Act we cannot sensibly characterize the closing of Tiquisate as a use of monopoly power if we accept the findings of fact made below. While the court below assumed arguendo that "UF by the 1960's was a monopoly or close to a monopoly," 405 F.Supp. at 897, the court further found that IRCA, which had the only railroad providing a viable system to transport UF-CAG bananas from the west coast to Barrios was "itself a monopoly, armed with a judicial decree on rates." 405 F.Supp. at 895. It cannot be reasonably argued, as appellant does, that "as a matter of law" UF's abandonment of Tiquisate constituted a violation of section 2. The rebuff of IRCA to UF's request to reduce rates and its refusal to deal with UF except on its own terms, albeit judicially sanctioned ones, is indicative of its own strength and independence. UF in fact had no reasonable business alternative but to abandon an unprofitable and uncomfortable operation. This cannot possibly be characterized as an act of monopolization, which is the exercise of a power to fix prices or to exclude competition. Appellant's proposition boils down to the argument that a defendant which has a monopolistic position can never abandon an unprofitable operation but must continue to lose money because
We have assumed, as the court below did arguendo, that UF was at this point in the possession of monopoly power. This is a dubious proposition at best.
With respect to section 1, appellant argues that a joint boycott or refusal to deal is a per se violation of section 1 of the Sherman Act. This of course has been an accepted tenet of antitrust law since Fashion Originators' Guild of America v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941) (FOGA). See Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed.2d 358 (1961); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). The initial question is whether or not the conspiracy or combination alleged here to be between UF and its wholly-owned subsidiary, CAG, is prohibited by section 1 of the Sherman Act. Appellant relies upon Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951) for authority that the so-called "intracorporate conspiracy" doctrine will support a conspiracy or agreement between a parent and its wholly-owned subsidiary. The appellees urge with equal vigor that Kiefer-Stewart involved a price-fixing scheme between two commonly owned enterprises which were held out to be and were in fact competitors, that CAG was here in fact the only customer of IRCA, and that UF only dealt with IRCA through its subsidiary, and therefore Kiefer-Stewart cannot be sensibly extended to cover what in essence is a unilateral action. See Beckman v. Walter Kidde & Co., 316 F.Supp. 1321, 1325-26 (E.D.N.Y. 1970), aff'd per curiam, 451 F.2d 593 (2d Cir. 1971), cert. denied, 408 U.S. 922, 92 S.Ct. 2488, 33 L.Ed.2d 333 (1972). Tempting though it is to become enmeshed in this thicket,
It is basic again in antitrust law that violations such as horizontal price-fixing and group boycotts are illegal per se and are not saved by protestations that the motivation of the defendants was decent or morally justifiable. The reason for the per se approach is to spare the courts from an examination of the underlying justification of the economic or other business motivation which prompted certain pernicious practices that the courts have determined are always or "per se" violative of section 1 of the Sherman Act. E.g., Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545, 549 (1958). Thus in FOGA, upon which appellant places principal reliance, the F.T.C. was able to establish that the defendants, manufacturers of textiles and designers of original and exclusive women's dresses, had deliberately joined together to refuse to sell to those retailers who carried the wares of so-called "style pirates" who allegedly were copying defendants' original fabrics and designs and undercutting the prices of the defendants. The court found:
312 U.S. at 467-68, 61 S.Ct. at 708, 85 L.Ed. at 954. Having found the deliberate and intentional refusal to sell with the purpose and object of eliminating competition, the Court rejected the argument that the motivation of the Guild members was to protect themselves against "the devastating evils growing from the pirating of original designs . . .." The appellant here however has failed to establish the deliberate and intentional combination to refuse to deal. The court below has found, as we have indicated, that the abandonment of Tiquisate was dictated by legitimate business considerations. Once having made that decision UF and CAG had no reason further to use IRCA transportation. They were out of business. Appellant has not cited nor have we found any case that has held or even suggested that companies which abandon a business are guilty of Sherman Act violations simply because as a result of their decision a vendor or supplier or customer will lose trade. This would indeed be an intolerable application of the Sherman Act. Cases such as FOGA, Klor's, and United States v. Parke Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), relied upon by appellant, all involve joint refusals to deal by viable business entities which deliberately and intentionally refused to deal with a trader although otherwise able. In sum, on the findings below there was no such joint boycott and therefore the plaintiff cannot claim any benefits of the per se rule.
(a)(2) The Third Claim — The Facts
We conclude therefore that appellant's third claim can only succeed if it can establish that the findings of fact below are clearly erroneous. Under Rule 52(a) of the Federal Rules of Civil Procedure findings of fact in actions tried without a jury "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Moreover, in an antitrust case with a vast record where much depends upon the motive and intent of the defendants, the credibility of their live witnesses below is particularly significant. E.g., United States v. Oregon State Medical Society, 343 U.S. 326, 332, 72 S.Ct. 690, 695, 96 L.Ed. 978, 984 (1952). Appellant's thesis has been and remains that UF, which had clearly been guilty of predatory conduct in the past, had, since February 16, 1961 (the statutory damage cut-off date) deliberately cut down its traffic over IRCA
In addition to the facts we have noted before, Judge Gurfein's pertinent findings and conclusions are set forth in the margin.
The claim that UF had disposed of its property in such a way that no banana producer was able to utilize it and by expressly restricting the uses to which the property could be put, again is not supported by the record. The court below found that the plaintiff had failed to prove the existence of any purchaser who had the "intent, preparedness and capacity" to grow bananas at Tiquisate;
There can be no doubt that UF did pursue the Chalk negotiations by meetings and telephone calls over a six-month period. Neither is there any doubt that at a meeting in Boston on January 9, 1964 the Chalk negotiations were terminated by a unanimous vote of 17 of its top personnel. No minutes were kept and the only contemporaneous documentary evidence of what transpired was a memorandum entitled "Re: Consent Decree Problems," with Sunderland's hand-written statement, "All present were in favor of not selling to Roy Chalk." Appellant argues, without citation of authority, that it was reversible error for the court below to accept Sunderland's testimony as to reasons for rejecting Chalk which were inconsistent with other documentary evidence.
We have carefully examined the documentary evidence relied upon by appellant and cannot reasonably find it was inconsistent with the Sunderland testimony. Most pertinent to the issue is a letter from UF's executive vice president Fox to Chalk on January 10, 1964, advising him that only a few hundred acres of banana producing land remained which had not been sold or committed to others. While Fox's prior letter of December 23rd as well as a Sunderland-Fox-Chalk conference call of the same date had indicated that ample acreage was available or could be reacquired from purchasers, Fox on January 10th described the previous estimates as "overly optimistic." He further stated that the company could not renege on its commitments to Guatemalans, including employees with long service records who had planned on acquiring the property with their severance pay. He further explained that his present information was based on the report of UF's Guatemala manager, T. A. Holcombe, who flew to Boston to report the present status of the property on January 9th. There is nothing in any of the correspondence or documents relied upon by appellant which supports its position that UF failed to sell because Chalk would be a competitor. Had that been the posture of UF, one wonders why the long period of
To bolster its position that the closing of Tiquisate was justifiable, UF presented a large amount of agronomic and financial evidence to establish that this operation was financially unsound and was the worst of all the divisions in which to produce Valery bananas. Appellant urges as it did below that certain cost figures were inaccurately determined. UF produced expert testimony to support its conclusions and appellant produced none. Whether or not the data was precise in all respects is not here relevant. The district court, even though it assumed arguendo that the appellant's cost estimates were accurate, nonetheless found that at the time Sunderland received UF's figures he had no reason to question them and his reliance upon them was justified. There was no proof that they had been fabricated in order to provide a spurious basis for the action taken. The trial judge credited the testimony below that the action was taken on the basis of the reports and represented a legitimate business decision, not one based on contrived documents. We find no error in the findings below.
Reductions in shipments from Tiquisate after 1961 give no basis for antitrust liability. The court below found that Panama disease and blowdowns created whatever reductions occurred.
(b) The First Claim — Discriminatory Practices
The first antitrust claim made below was predicated on alleged violations of sections 1 and 2 of the Sherman Act by reason of the discriminatory and repressive practices
Appellant cites a variety of antitrust cases involving per se monopoly and restraints of trade, most of which seem to be completely irrelevant and shed little light on the issue. In any event, the findings below establish without question that after February 1961 IRCA could not be sensibly characterized as a captive of UF-CAG. From February 16, 1961 onward no UF employees or officers were on the IRCA board; UF had sold all but one hundred shares of its IRCA stock by January 1962 and had made diligent efforts to dispose of it prior to that date; UF did not even vote its stock at the IRCA stockholders' meeting on May 31, 1961. UF was of course required by the consent decree to divest itself of its IRCA stock and there is nothing in the record to indicate that it did anything violative of the letter or spirit of the decree. In sum, the argument that IRCA was a helpless pawn of UF during the recovery period is completely unpersuasive.
The 1958 consent decree also prohibited contracts which would require IRCA to discriminate against other shippers. Counsel for IRCA, UF and the Ripley plaintiffs studied the existing contracts and found no discriminatory provisions. Distinguished outside counsel for IRCA advised UF that there was no agreement between UF and IRCA which did not comply with the provisions of the decree prohibiting discrimination. However, appellant argues that the court below was in error in finding that IRCA was not contractually obligated to discriminate in favor of CAG and UF against their competitors because the court overlooked a letter supplement to the 1948 "operation of trains agreement" which obligated IRCA to utilize certain locomotives and banana cars primarily for the use of CAG and secondarily for UF and for general public use only thereafter. That agreement did not expire until 1968. Moreover, the findings below are inconsistent as to whether or not IRCA did give preference to CAG in the allocation of banana cars. In Finding of Fact 57 the court found that "IRCA did not discriminate in the allocation of banana cars." However, in the opinion the statement is made that "[t]here is no doubt that CAG was given preferential treatment over Standard in the transportation of bananas from the West Coast."
Assuming however that discrimination did exist, the question remains whether or not IRCA has established any injury. Appellant argues that under Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) no public injury need be established where a per se Sherman Act violation has occurred. But of course it does not follow that a private plaintiff can recover without proof that he has in fact been damaged. Even assuming that IRCA has standing to sue here (see Long Island Lighting Co. v. Standard Oil Co., 521 F.2d 1269, 1273-74 (2d Cir. 1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 855, 47 L.Ed.2d 83 (1976); Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292, 1295-96 (2d Cir. 1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1776, 32 L.Ed.2d 132 (1972)), plaintiff was not a competitor of UF-CAG and can only establish its damages if the allocation of cars precluded Standard from fuller use of IRCA equipment. In 1961, the only year during the recovery period when both Standard and CAG were competing, there was no proof of any shortage of banana cars; Standard never cancelled a cutting and never missed a ship.
Appellant's argument is totally "post hoc, ergo propter hoc": since in fact Standard did not expand and did eventually leave Guatemala in 1961, it must have been because UF-CAG had conspired to prevent expansion and to drive its only competitor out. There is no proof at all of this and in fact the court below found Standard left Guatemala "so far as the unrefuted evidence shows, only because a `blow-down' destroyed its plantations in 1961."
We conclude that even though a preferential banana car allocation clause remained unexcised despite the scrutiny of counsel, appellant has failed to prove any damage. In view of the chastening effect of the Ripley judgment and the terms of the consent decree, and the finding of the court below that UF was in good faith attempting to live up to the terms of the decree, it cannot be argued reasonably that UF-CAG through coercive means or by insistence on contract terms was demanding preferential treatment.
We have further reviewed appellant's other claims of discriminatory practices as to wharfage charges, practices and services at the pier, banana line haul rates and import line haul rates, all of which were discussed extensively below and rejected; we too find they are without merit and, for the most part, are based upon speculation rather than proof.
(c) The Sixth Claim — Section 7 of the Clayton Act
In this claim, plaintiff seeks the same damages sought under the first Sherman Act claim but on the theory that the acquisition of IRCA stock by UF in 1928 and 1936 constituted a violation of section 7 of the Clayton Act, 15 U.S.C § 18. Even though the acquisition here preceded by many years the recovery period, it is clear that section 7 is applicable. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957). In that case du Pont had acquired a twenty-three per cent stock interest in General Motors approximately thirty years before the United States brought an action under section 7 of the Clayton Act for equitable relief, alleging that because of the stock interest, du Pont had obtained an illegal preference over competitors in the sale of supplies to General Motors. That stock interest continued until the time of suit. The Court held:
Id. at 607, 77 S.Ct. at 884, 1 L.Ed.2d at 1074 (emphasis added).
The court below, applying the du Pont rule, noted that the suit here was commenced in 1965 and since UF had sold its stock in 1962, "[a]t the time of the suit there was no possibility" of a potential lessening of competition or monopoly by reason of the acquisition. Appellant seeks to get away from the emphasized phrase on the basis that since in the du Pont case the United States was seeking divestiture, the Court meant only that the action would have been moot if du Pont had already disposed of its stock. It claims that where, in contrast, the section 7 plaintiff is a private litigant seeking damages the four year statute of limitations of section 4B of the Clayton Act (15 U.S.C § 15b) is vitiated if the "time of suit" test is employed. In view of the Supreme Court's expressions that Congress intended private antitrust litigation to be one of the surest weapons for effective enforcement of the antitrust laws, e. g., Minnesota Mining & Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, 85 S.Ct. 1473, 1477, 14 L.Ed.2d
However, the mere fact that UF continued to hold IRCA stock during this period does not automatically impose section 7 damage liability. Gottesman v. General Motors Corp., supra, 414 F.2d at 961. Plaintiff must also show that between February 16, 1961 and January 1962, UF did in fact so use its stock ownership as to cause injury to the plaintiff as a result of the anticompetitive effects proscribed by section 7. Id. at 965.
The record is devoid of any evidence that UF used its stock position in IRCA during the period in question to influence IRCA in any way. As we have previously noted, there was no proof that United controlled any IRCA directors from 1961 on; any control over IRCA by UF had been dissipated after February 16, 1961 despite its continued ownership of shares, which it was diligently seeking to sell; it did not even vote its stock at the annual meeting of May 1961. We repeat that UF had already been the victim of a large damage verdict in a derivative stockholder action brought by minority IRCA stockholders. It had further entered into a consent decree in 1958 forbidding discriminatory practices and requiring partial divestiture. In view of the sanctions already applied UF's concern during the statutory period with its antitrust liabilities is obvious. We therefore see no merit in the section 7 claim since there is no evidence of the use of stock voting power by UF; to the contrary, there is in fact an abandonment of the tactics which had created its prior difficulties with the Department of Justice as well as with IRCA's minority stockholders.
IV. THE ZENITH CLAIM
Although this court has previously held that all claims under the antitrust laws arising prior to February 16, 1961 were timed barred, 373 F.2d at 416-17, the appellant claims that under Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (decided after our prior decision but before the opinion below), it may recover damages resulting from acts prior to February 16, 1961. Zenith holds in effect that even though the acts creating the injury preceded the February 16, 1961 cut-off date, damages may be recovered if in fact and as a result injury was incurred after that date and if prior proof of those damages would have been impossible because their accrual was speculative or their amount and nature unprovable. Id. at 339-40, 91 S.Ct. at 806, 28 L.Ed.2d at 92.
Zenith involved a conspiracy which continued into the damage period; as noted by the court below, it is not clear that the Zenith exception to the usual antitrust period
We need say nothing more about the third claim which is principally based on events occurring within the limitations period. With respect to the first claim, appellant urges that because of UF's prior monopolistic and discriminatory practices, other competitors were precluded from entering the banana production business in Guatemala, thus preventing IRCA from reaching "its maximum potential" by February 1961, and therefore its revenues were less than they should have been during the damage period. Moreover, this damage, it is argued, was purely speculative prior to the cut-off date, thus bringing it within the Zenith exception.
We agree with the court below that while this is a good antitrust theory, plaintiff nonetheless has the burden of establishing that either UF's competitor Standard was discouraged from expanding its holdings or that other potential competitors of UF were prevented from entering the field by UF's pre-1961 antitrust activity. IRCA, which offered no evidence whatever of Standard's frustration or independent entry preclusion by UF, again argues that since the pre-1961 violations were per se violative of the Sherman Act
V. REMAINING CLAIMS AND CONCLUSION
Appellant's contract claim is without merit and we affirm this point on Judge Gurfein's well-reasoned opinion below (358 F.Supp. 1363). Appellant also claims error in the exclusion of certain Ripley findings
We conclude that appellant's antitrust theories which would impose liability under sections 1 and 2 of the Sherman Act and section 7 of the Clayton Act are untenable given the findings of fact below. Even assuming standing, post-1961 monopoly, and the application of the intracorporate conspiracy doctrine, all of dubious validity here, it is clear that no liability exists. Appellant's only chance of success on this appeal depends upon a showing of clearly erroneous findings of fact. Our review shows that the findings are predominantly supported by the record and where they are not, cannot be termed clearly erroneous, particularly in view of the court's conviction that the UF officers' testimony was straightforward and credible. Plaintiff's case rests in sum primarily upon dubious and unsupported inferences. While the appellant has assiduously combed the extensive record here and extracted occasional comments which tend to serve its purpose, the errors uncovered are either harmless or in fact are overborne by the weight of the evidence.
The judgment below is therefore affirmed.
"(Third Claim) Sunderland [UF's former president] recommended closing Tiquisate for legitimate business reasons, no so that United could achieve monopoly power in the importation of bananas." (Conclusion of Law 11).
"Sunderland, who made all key decisions regarding the operation and closing of Tiquisate, as well as concerning United's relationship with IRCA, did not take any action with specific intent to monopolize; to the contrary, he took affirmative steps to assure that United complied both with the consent decree and the anti-trust laws." (Conclusion of Law 12).
We also note that equipment preferences or discrimination are not to be found in the usual litany of per se violations under the antitrust laws, e. g., Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545, 549 (1958).