STEPHEN H. ANDERSON, Circuit Judge.
Appellant B-S Steel of Kansas, Inc., a Kansas corporation, brought suit against four steel manufacturers, Chaparral Steel Company ("CSC"), Chaparral Steel Texas, Inc., Texas Industries, Inc., and Chaparral Steel Midlothian, L.P. ("Midlothian") (collectively referred to as the "original defendants"), all related entities. Its complaint alleged price discrimination in violation of the Robinson-Patman Act, 15 U.S.C. § 13, and a number of state law claims. The district court referred the claims against one of the defendants, Midlothian, involving pre-April 3, 2001 transactions, to arbitration, and the arbitration panel concluded that B-S Steel could not show antitrust injury or prove an amount of damages on these claims. The district court confirmed the arbitration award and dismissed Midlothian as a party. The remaining three defendants moved for summary judgment, and the district court granted their motion, concluding that the arbitration award was entitled to preclusive effect and thus barred B-S Steel's claims for damages, and that B-S Steel lacked standing to pursue injunctive relief. B-S Steel appealed. We affirm for the reasons stated below.
B-S Steel is an independent distributor of wide flange steel beams ("WFB"), which it purchases from manufacturers and then sells to subcontractors for use in construction. In 1988, B-S Steel executed a Conditions of Sale agreement with and began purchasing WFB from CSC. In 1997, B-S Steel signed another Conditions of Sale document, issued by Midlothian, and continued purchasing WFB. A third Conditions of Sale document was executed on April 3, 2001.
In October 1999, while B-S Steel was purchasing WFB from the defendants, the defendants initiated a pilot incentive program with one of its largest customers, granting a $5 or $10 rebate per ton of WFB purchased. Similar incentives— including rebates, quick-pay discounts, and fixing prices in relation to those of foreign WFB suppliers—were extended to four other purchasers, not including B-S Steel, during the period 1999 through the end of 2001. These incentives were granted in secret, on condition that the favored purchasers use the savings for capital improvements rather than passing it on to their customers. However, B-S Steel discovered the incentives program in May 2001 and soon afterwards initiated the present lawsuit against the defendants in Kansas district court.
In its amended complaint, B-S Steel alleged that the defendants had engaged in price discrimination, in violation of the
Defendant Midlothian moved to stay the district court action and to refer all claims against it that concerned pre-April 3, 2001, transactions to arbitration, based on an arbitration clause in the 1997 Conditions of Sale document that Midlothian had issued and B-S Steel had signed. B-S Steel contested the validity of the 1997 document. However, in an order dated September 3, 2002, the district court, applying Texas law, held that the document was an enforceable contract based on Midlothian's partial performance in shipping 150 orders to B-S Steel during the applicable period. Further holding that B-S Steel's claims fell within the scope of the arbitration clause, the court granted Midlothian's motion to stay litigation of B-S Steel's pre-April 3, 2001, claims against it and to refer them to arbitration. In response to Midlothian's further motion, the court determined that the 2001 Conditions of Sale document was also enforceable and that B-S Steel's post-April 3, 2001, claims had to be dismissed for improper venue, pursuant to a forum selection clause in the 2001 document.
The other three defendants also moved to stay proceedings against them due to the arbitration provision. However, the district court denied their request on the basis that these three defendants were not parties to the contract containing the arbitration clause. The court observed that "arbitration [between B-S Steel and Midlothian] would not necessarily bind the other three defendants, nor necessarily adjudicate the claims and rights asserted against these three defendants." Appellant's App. Vol. I at 169.
While the arbitration process was underway between B-S Steel and Midlothian, the remaining parties in this lawsuit continued with the discovery process, having reached an agreement that discovery in the two proceedings would be conducted in parallel. Thus, B-S Steel filed the same report quantifying its damages, prepared by an expert witness, Lawrence Redler, both in district court, pursuant to Fed. R.Civ.P. 26(a)(2), and in the arbitration.
Following a nine-day hearing and the parties' submission of post-hearing briefs, the three-person arbitration panel issued a Reasoned Award in favor of Midlothian in November 2003. In its discussion of B-S Steel's Robinson-Patman Act claim, the panel indicated that B-S Steel had met its burden in establishing that Midlothian had engaged in prohibited discriminatory pricing through its incentive programs between October 1999 and the end of 2001. The panel further indicated that Midlothian could not justify the discrimination as a necessary allowance for differences in manufacturing, sales, or delivery costs, as permitted under section 2(a) of the Act, or as a response to a competitor's preexisting offer, as permitted under section 2(b) of the Act. However, the panel concluded that B-S Steel had failed to meet its burden of proving that it had suffered antitrust injury because it could not establish a causal connection between any incentives given to other buyers and any harm to B-S Steel.
The panel then considered whether, even assuming B-S Steel could establish the fact of antitrust injury, B-S Steel would be able to quantify its damages. In conducting this inquiry, the panel explained that "the quantum of proof required to quantify damages in a Clayton Act case is significantly relaxed," but that a factfinder "`may not render a verdict on the basis of speculation or guesswork.'" Reasoned Award at 21, Appellant's App. Vol. IV at 873 (quoting Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 580 (5th Cir.1980)). The panel then examined two damages models as presented in Redler's damages report. The first model, attempting to demonstrate lost profits due to margin squeeze, compared B-S Steel's pre-2000 overall profit margins with its post-June 2000 WFB profit margins, using three different time periods ending in April 2001, December 2001, and June 2003, respectively.
The panel therefore denied B-S Steel treble damages under § 4 of the Clayton Act. Applying Kansas law, the panel also determined that Midlothian had made fraudulent misrepresentations to B-S Steel but that, again, B-S Steel failed to prove it suffered any damages as a result. The panel therefore granted Midlothian's request for declaratory relief on these claims.
B-S Steel then filed a motion to vacate the arbitration award in Texas district court. Meanwhile, Midlothian filed a motion to confirm the arbitration award in the original Kansas district court proceeding. Presumably because it was no longer a party to that proceeding, Midlothian then voluntarily dismissed its motion and instead filed a new action, seeking an order confirming the arbitration award. The Kansas district court consolidated Midlothian's action with the original proceeding, and the Texas district court transferred B-S Steel's action there to its Kansas counterpart. Subsequently, on June 14, 2004, the District Court of Kansas confirmed the panel's arbitration award and denied B-S Steel's motion to vacate. B-S Steel of Kan., Inc. v. Tex. Indus., Inc. ("B-S Steel I"), 321 F.Supp.2d 1214, 1224 (D.Kan.2004). The court thus dismissed the case transferred from Texas while keeping before it the consolidated case, minus Midlothian as a party. Id.
In the final pretrial order, filed December 17, 2003, B-S Steel claimed that the defendants refused to allow it to make further purchases of WFB after it initiated the present lawsuit and that its last purchase thus occurred in August 2001. In accord with the arbitrators' conclusion that the incentives program ended in December 2001, B-S Steel acknowledged that the defendants had "terminated" their incentives program "[s]hortly after Plaintiff filed its lawsuit," but claimed that the defendants had "then replaced some of the Deals with Favored Buyers, including Steel & Pipe, on terms that were even more favorable to the Favored Buyers and more detrimental to Plaintiff and other service centers." Pretrial Order at 8, Appellant's App. Vol. XII at 3590.
The three remaining defendants in the litigation meanwhile moved for summary judgment, arguing that the arbitration award disposed of B-S Steel's claims for damages under the doctrines of res judicata and collateral estoppel, that any post-April 3, 2001, damages were de minimis, that Redler's damages report was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that B-S Steel lacked standing to seek injunctive relief. The district court agreed that the arbitration award should be given preclusive effect in this case "because the arbitration was akin to a full-blown trial." B-S Steel of Kan., Inc. v. Tex. Indus., Inc. ("B-S Steel II"), 327 F.Supp.2d 1252, 1258 (D.Kan.2004). It applied res judicata to preclude all of B-S Steel's pre-April 3,
B-S Steel appeals, arguing (1) that the district court erred in granting preclusive effect to the arbitration award because the original arbitration agreement was unenforceable, (2) that the district court further erred in applying collateral estoppel to B-S Steel's post-April 3, 2001, claims because the arbitration did not consider the same issues and did not provide a full and fair opportunity to litigate these claims, and (3) that the district court erred in ruling that B-S Steel lacked standing to seek injunctive relief under § 16 of the Clayton Act, 15 U.S.C. § 26.
"On appeal, we review the district court's grant of summary judgment de novo, applying the same legal standards as employed by the district court." Orr v. City of Albuquerque, 417 F.3d 1144, 1148 (10th Cir.2005). In doing so, we review the record in the light most favorable to the party opposing summary judgment. Neal v. Lewis, 414 F.3d 1244, 1247 (10th Cir.2005). "Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. We consider each of B-S Steel's arguments, listed above, in turn.
B-S Steel first argues that the district court could not properly accord the arbitration award preclusive effect because the arbitration agreement underlying the award was unenforceable. The appellees suggest that B-S Steel did not appeal the district court's orders confirming the arbitration award and refusing to vacate the award and that B-S Steel thus waived any arguments that might serve to undermine the arbitration award's validity. However, B-S Steel was precluded from appealing the district court's order confirming the arbitration award while the consolidated case remained pending. Trinity Broad. Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987) (adopting "the rule that a judgment in a consolidated action that does not dispose of all claims shall not operate as a final, appealable judgment under 28 U.S.C. § 1291"). B-S Steel did appeal from the district court's final judgment. Although it only listed the case number of the original case in its Notice of Appeal, as the district court observed, the case filed by Midlothian seeking confirmation of the award was "substantively consolidated with [the original case] so any argument that the cases should be treated separately is moot." Mem. and Order Denying Mot. to Dismiss (D.Kan. Apr. 28, 2004), Appellant's App. Vol. III at 712-13. Further, in its Docketing Statement, B-S Steel did list all three relevant case numbers and specifically indicated its intent to raise the validity of the arbitration agreement as an issue. Docketing Statement at 1, 5. Because this court "favors deciding cases on the merits as opposed to dismissing them because
However, we uphold the district court's determination that the arbitration agreement was valid. B-S Steel's sole argument to the contrary rests on the idea that because the earlier 1988 Conditions of Sale document required the signature of both parties to effect a modification, and because the 1997 Conditions of Sale document was not signed by Midlothian, the 1997 document was a failed modification of the 1988 document and thus never went into effect. This argument is flawed because it ignores the prerogative of contracting parties either to waive requirements regarding modification or to substitute an entirely new contract for a previous one, particularly where the modified or new contract is in writing and is valid in all other respects. E.g., Barbara Oil Co. v. Kan. Gas Supply Corp., 250 Kan. 438, 827 P.2d 24, 36 (1992); Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 652 (Tex.App.2003); Restatement (Second) of Contracts § 279.
B-S Steel next contends that the district court erred in applying the doctrine of collateral estoppel to prevent it from pursuing its post-April 3, 2001, claims against the appellees. In making this argument, B-S Steel invokes "the traditional `jurisdictional competence' limitation on" preclusion doctrine, suggesting that because the arbitration proceeding had no jurisdiction over claims regarding post-April 3, 2001, transactions, collateral estoppel cannot apply to bar those claims in district court. Appellant's Br. at 26. However, the cases cited by B-S Steel in support of this argument apply this limitation to the doctrine of res judicata, or claim preclusion, which normally bars not only claims that were actually raised in a prior proceeding but also claims that "could have been raised" but were not. Wolf v. Gruntal & Co., 45 F.3d 524, 527 (1st Cir.1995) (distinguishing res judicata from collateral estoppel on that basis).
In contrast to res judicata, the doctrine of collateral estoppel, also known as issue preclusion, "attaches only `[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.'" Arizona v. California, 530 U.S. 392, 414, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000) (quoting Restatement (Second) of Judgments § 27, at 250 (1982)). This circuit has previously applied collateral estoppel to a confirmed arbitration award. Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 927-28 (10th Cir.1992); see 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4475.1, at 514-18. The doctrine precludes a court from reconsidering an issue previously decided in a prior action where
Estate of True v. C.I.R., 390 F.3d 1210, 1232 (10th Cir.2004).
B-S Steel concedes the second and third requirements but argues that the first and fourth requirements are not met here. Specifically, it contends that because the arbitration was restricted to B-S Steel's pre-April 3, 2001, claims, the issues before the arbitration panel and in this lawsuit are not identical. Further, it maintains that it lacked "a full and fair opportunity to litigate issues critical to its post-April 3, 2001 claims." Appellant's Br. at 20. We disagree.
In order to satisfy the first prong, it is necessary, in the arbitration context, to determine "`with clarity and certainty' that the same issues were resolved." Bear Stearns & Co., Inc. v. 1109580 Ontario, Inc., 409 F.3d 87, 91 (2d Cir.2005). B-S Steel suggests that "[i]t is axiomatic that . . . issues involving conduct in one time period are different than . . . issues based on different conduct in a different time period." Appellant's Br. at 24. On the other hand, the appellees identify the issue in both the arbitration and the present lawsuit as follows: "[C]ould plaintiff prove [an amount of] damages for any month between October, 1999 and December, 2001 ([under a] "lost sales" [theory]) or October, 1999 and October, 2002 ([under a] "margin squeeze" [theory])." Appellee's Br. at 30. They argue that, because B-S Steel submitted Redler's damages report as evidence in both proceedings, the arbitrators' rejection of the report makes the report inadmissible in this case. They then suggest that Redler's report is the only evidence of an amount of damages available and its exclusion thus precludes any quantification of damages.
The district court determined that collateral estoppel was appropriate because "even though the arbitrators did not adjudicate B-S Steel's post April 2001 [Robinson-Patman] Act claim, they did decide that B-S Steel had suffered no damage[s], either before or after April 2001, from price discrimination." B-S Steel II, 327 F.Supp.2d at 1263. Indeed, the court suggested that the arbitrators had made this determination in respect to "transactions occurring before or after April 3, 2001." Id. The arbitrators, however, never indicated that this was the case. Rather, they explicitly recognized that "the scope of the
Other jurisdictions have recognized "the principle that matters adjudged as to one time period are not necessarily an estoppel to other time periods." Int'l Shoe Mach. Corp. v. United Shoe Mach. Corp., 315 F.2d 449, 455 (1st Cir.1963); see also Harkins Amusement Enters., Inc. v. Harry Nace Co., 890 F.2d 181, 183 (9th Cir.1989) (rejecting idea that collateral estoppel barred a suit for conspiracy where "the plaintiff alleges conduct that occurred in a different time period"). This is particularly true "when significant new facts grow out of a continuing course of conduct." Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 126 F.3d 461, 477 (3d Cir. 1997). At the same time, a different time period alone does not necessarily preclude application of collateral estoppel. See Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 2 (1st Cir.1983) (applying collateral estoppel in a false advertising case based on advertisements published after 1980 where the prior case involved nearly identical advertisements published prior to 1980). The Restatement of Judgments suggests a number of factors that are relevant in distinguishing between situations where collateral estoppel is and is not appropriate in this context:
Restatement (Second) of Judgments § 27 cmt. c. Where these questions can be answered in the affirmative, it is likely that the "issue" involved in the two proceedings is the same.
In the present case, we are concerned with the same claims alleging the same conduct over two consecutive time periods, arbitrarily separated by the effective end
B-S Steel does claim that the arbitration panel refused to consider evidence of transactions that occurred after April 3, 2001, arguing that "[s]ubstantial evidence of injury in the post-April 3, 2001 period was not presented [in the arbitration] because of objections by Midlothian, [and] the arbitrators['] unwillingness to hear or consider it." Appellant's Br. at 29. However, B-S Steel fails to specify any excluded evidence of post-April 3, 2001, damages sustained as a result of the discriminatory pricing program in effect until December 2001, during the period B-S Steel was undisputedly a purchaser of WFB from the defendants.
Along the same lines, B-S Steel also argues that new evidence has become available regarding "ongoing Deals" between the defendants and one of its competitors. Appellant's Br. at 33. The new evidence to which B-S Steel refers in its
However, in order to prove a violation of § 2 of the Robinson-Patman Act, 15 U.S.C. § 13, in regard to these new deals, B-S Steel would have to show that the deals granted more favorable prices than those granted to B-S Steel in its reasonably contemporaneous purchases. Motive Parts Warehouse v. Facet Enters., 774 F.2d 380, 389-90 (10th Cir.1985); see also A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1407 (7th Cir. 1989); Sec. Tire & Rubber Co. v. Gates Rubber Co., 598 F.2d 962, 964 (5th Cir. 1979). While B-S Steel disputes the appellees' claim that it only made a single purchase of 18.9 tons after April 3, 2001, the latest that it alleges making purchases is August 2001. B-S Steel has offered no basis for concluding that these purchases should be deemed reasonably contemporaneous with those made by B-S Steel's competitors after December 2001. See England v. Chrysler Corp., 493 F.2d 269, 272 (9th Cir.1974) (sixteen-month time span between promotional allowances for new or relocated car dealerships defeated Robinson-Patman Act claim); Atalanta Trading Corp. v. FTC, 258 F.2d 365, 371 (2d Cir.1958) (seven-month period between pork sales not contemporaneous); Maier-Schule GMC, Inc. v. Gen. Motors Corp., 780 F.Supp. 984, 989 (W.D.N.Y.1991) (no § 2(a) violation where plaintiff failed to show it made purchases in same year alleged violation occurred). But see Fred Meyer, Inc. v. FTC, 359 F.2d 351, 357 (9th Cir.1966) (concluding that there was substantial evidence supporting FTC's determination that sales over a number of years occurred during the same time period where "the sales are of a single, fairly standardized item, widely sold in the area, and recur frequently during the years involved"), rev'd in part on other grounds, 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968). This new evidence thus does not add anything significant to B-S Steel's claim for damages resulting from post-April 3, 2001, transactions.
Based on the considerations discussed above, we conclude the issue involved here is identical to the one decided in the arbitration. B-S Steel also argues that it did not have a full and fair opportunity to litigate the issue because of its inability to present to the arbitration panel the evidence of price discrimination that B-S Steel alleges occurred after December 2001. As explained above, however, this new evidence is not significant for purposes of B-S Steel's damages claim and thus did not affect B-S Steel's opportunity to litigate the issue.
B-S Steel's final argument opposing collateral estoppel concerns the nature of arbitration agreements. According to B-S Steel, "the contractual nature of the arbitrators' jurisdiction" should prevent the arbitrators' award from having preclusive effect on "issues and claims outside the Arbitration Period" when such an effect was not intended by the contracting parties. Appellant's Br. at 24. It also contends that because an arbitration is a
We therefore uphold the district court's summary judgment on B-S Steel's post-April 3, 2001, claims for damages.
Finally, B-S Steel argues that the district court erroneously determined that B-S Steel had no standing to seek injunctive relief against the appellees under § 16 of the Clayton Act, 15 U.S.C. § 26, in order to prevent them from "continuing and maintaining illegal WFB pricing conduct." Appellant's Br. at 34. The district court held that B-S Steel lacked standing to pursue injunctive relief because the arbitrators had already determined that it could not show antitrust injury for purposes of its pre-April 3, 2001, damages claim. B-S Steel II, 327 F.Supp.2d at 1264. B-S Steel argues that this holding is in error because the standards for obtaining treble damages under § 4 and for obtaining injunctive relief under § 16 are different. As discussed below, we agree that the district court's reliance on the arbitration award to resolve whether B-S Steel has antitrust standing for purposes of its request for injunctive relief was in error. However, because B-S Steel no longer purchases steel from the appellees, it has no claim for injunctive relief. We therefore affirm the district court's ruling on this alternative ground.
Designed to determine "whether the plaintiff is a proper party to bring a private antitrust action," the standing inquiry in antitrust law requires a court "to evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them." Associated Gen. Contractors v. Carpenters, 459 U.S. 519, 535 & n. 31, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (observing that "the focus of the doctrine of `antitrust standing' is somewhat different from that of standing as a constitutional doctrine"). The inquiry "applies to actions arising under both section 4 and section 16 of the Clayton Act." Cent. Nat'l Bank v. Rainbolt, 720 F.2d 1183, 1186 (10th Cir.1983); see Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 111, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986) ("[U]nder both § 16 and § 4 the plaintiff must . . . allege an injury of the type the antitrust laws were designed to prevent."). However, "[s]tanding analysis under section 16 is not identical to that for section 4." McCarthy v. Recordex Serv., Inc., 80 F.3d 842, 856 (3d Cir.1996). Rather, "[s]ection 16 has been applied more expansively, both because its language is less restrictive
The Supreme Court has expressly stated that injunctive relief under § 16 is "available even though the plaintiff has not yet suffered actual injury." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); see also Blue Cross & Blue Shield United of Wis. v. Marshfield Clinic, 152 F.3d 588, 592 (7th Cir.1998). Rather, a plaintiff "need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur." Zenith Radio Corp., 395 U.S. at 130, 89 S.Ct. 1562. Moreover, the Court has directed that "[§] 16 should be construed and applied," keeping in mind that its intent is "not merely to provide private relief, but . . . to serve as well the high purpose of enforcing the antitrust laws." Id. at 130-31, 89 S.Ct. 1562.
In order to make the necessary "threshold showing of entitlement to injunctive relief," a plaintiff must show "a threat of `antitrust injury,'" which is described as "injury `of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful.'" Consol. Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 257 (2d Cir.1989) (quoting Cargill, 479 U.S. at 113, 107 S.Ct. 484) (further quotation omitted); see also Glen Holly Entm't Inc. v. Tektronix Inc., 343 F.3d 1000, 1007 (9th Cir. 2003). "[T]he antitrust injury requirement. . . . ensures that the harm claimed by the plaintiff corresponds to the rationale for finding a violation of the antitrust laws in the first place, and it prevents losses that stem from competition from supporting suits by private plaintiffs for . . . equitable relief." Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 342, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990).
The showing of threatened antitrust injury is "not always sufficient to establish antitrust standing." Alberta Gas Chems. Ltd. v. E.I. Du Pont De Nemours & Co., 826 F.2d 1235, 1240 (3d Cir.1987). "Once [the threat of] antitrust injury has been demonstrated by a causal relationship between the [threatened] harm and the challenged aspect of the alleged violation, standing analysis is employed to search for the most effective plaintiff from among those who [may] suffer loss." Id.; see also Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 437 (2d Cir. 2005). However, "because standing under § 16 raises no threat of multiple lawsuits or duplicative recoveries," a court need not consider those dangers when making the determination. Cargill, 479 U.S. at 111 n. 6, 107 S.Ct. 484. Accordingly, as recognized by the district court, this circuit has specified a number of factors relevant to the inquiry, which, as concerns injunctive relief, include
In a summary judgment determination, the initial question is therefore "whether plaintiff has raised a genuine issue of material fact sufficient to show a threat of antitrust injury" if defendants engage in future violations of the type alleged. R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 107 (2d Cir.1989). The district court answered this question in the negative because the arbitrators had already determined that B-S Steel could not show actual injury based on pre-April 3, 2001, violations. B-S Steel II, 327 F.Supp.2d at 1264. The court reasoned that because no injury resulted from the pre-April 3, 2001, violations, the price discrimination for which B-S Steel sought an injunction was "not the type of injury that would entitle a plaintiff to compensation if the injury actually occurred." Id. at 1270. This conclusion is in error, however, because it ignores the distinction outlined above between showing that antitrust injury actually occurred in the past and showing that it might occur in the future. Indeed, as recognized above, B-S Steel offered different evidence regarding injury for the period after December 2001. Thus, simply because the arbitrators concluded that B-S Steel failed to meet its evidentiary burden in regard to past violations does not mean, as a matter of law, that it would be impossible for B-S Steel to show a threat of future injury. See H.L. Hayden Co. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1022 (2d Cir.1989) (holding that the court's determination that the "plaintiff failed to make a showing of antitrust injury adequate" to allow treble damages "does not provide a basis to dismiss plaintiffs' Robinson-Patman Act claim insofar as it seeks [injunctive] relief"). The arbitrators' Reasoned Award therefore cannot provide a basis for denying B-S Steel injunctive relief.
Nevertheless, we are precluded from reversing the district court's summary judgment on this ground because B-S Steel is no longer a purchaser of WFB from the appellees and has failed to show any possibility that it might resume such purchases in the future. As indicated above, a plaintiff must have made reasonably contemporaneous purchases in order to show a violation of § 2(a) of the Robinson-Patman Act. Without such purchases, there can be no causal connection between the threatened injury that B-S Steel alleges and a violation of § 2(a). Nor would any such injury be one that this provision could remedy in practice. A consideration of the factors listed above thus militates against recognizing standing here. See H.L. Hayden Co., 879 F.2d at 1022 (holding that "[s]ince [the defendant] is no longer selling to [plaintiffs], as is its right, there is no danger that it will sell to them on discriminatory terms in violation of 15 U.S.C. § 13 (1982), and accordingly no basis for a Robinson-Patman injunction").
B-S Steel points to an Eighth Circuit case as recognizing that a plaintiff can seek damages or injunctive relief after it ceases purchasing the defendant's product as long as the "plaintiff has purchaser status at some time while price discrimination is ongoing." Appellant's Reply Br. at 8. That case, Reeder-Simco GMC, Inc. v. Volvo GM Heavy Truck Corp., 374 F.3d 701 (8th Cir.2004), has subsequently been reversed by the Supreme Court on other grounds. Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., ___ U.S. ___, 126 S.Ct. 860, 163 L.Ed.2d 663 (2006). Moreover, to the extent that the Eighth Circuit's opinion remains good law, we do not believe it supports B-S Steel's contention. In Reeder-Simco, the plaintiff submitted a damages calculation that spanned the entire four-year period during which price discrimination was alleged to have
B-S Steel also points to a 1951 Fifth Circuit case, which held that the plaintiff was not required to make purchases "upon such [discriminatory] terms in order to attain the status of a competing purchaser under the [Robinson-Patman] Act, as its failure to do so was directly attributable to defendant's own discriminatory practice." Am. Can Co. v. Bruce's Juices, 187 F.2d 919, 924 (5th Cir.1951). We need not consider whether to adopt such a rule here, however, because B-S Steel has not alleged that it stopped purchasing WFB from the appellees due to their discriminatory pricing. Rather, the pretrial order indicates B-S Steel's contention that the appellees refused to sell to B-S Steel in retaliation for B-S Steel's initiation of this lawsuit.
B-S Steel finally argues that, if we fail to recognize that it has antitrust standing in these circumstances, "once a customer complains about price discrimination, Defendants can simply cease selling to that customer and effectively cut off its ability to seek injunctive relief." Appellant's Reply Br. at 6. However, we understand this to be the nature of § 2(a) of the Robinson-Patman Act. That provision states that "nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade." 15 U.S.C. § 13(a). It is well established that "a refusal to deal" simply "does not fall within the proscription of section 2(a)" of the Robinson-Patman Act. Black Gold, Ltd. v. Rockwool Indus., Inc., 729 F.2d 676, 682 (10th Cir.1984). B-S Steel has not alleged a violation of any other antitrust provision that might provide relief for a refusal to deal in certain circumstances. See id. (indicating that a refusal to deal "may be actionable under other antitrust provisions").
We therefore conclude that B-S Steel lacks antitrust standing to pursue injunctive relief in this case and affirm the district court's grant of summary judgment on this issue.
For the foregoing reasons, the district court's summary judgment order is AFFIRMED.
15 U.S.C. § 13(a). The provision contains a number of caveats, including "[t]hat nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade." Id. Subsection (b) also allows a defendant in a subsection (a) action to rebut the plaintiff's prima facie case "by showing that his lower price . . . was made in good faith to meet an equally low price of a competitor." Id. § 13(b).
15 U.S.C. § 26.