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c-Jun N-Terminal Kinases (JNKs) in Myocardial and Cerebral Ischemia/Reperfusion Injury [Electronic resource] / M. V. Shvedova [et al.] // Frontiers in Pharmacology. — 2018. — Vol. 9. — [715, 18 p.]. — Title screen. — Свободный доступ из сети Интернет.
Nitric oxide provides myocardial protection when added to the cardiopulmonary bypass circuit during cardiac surgery: Randomized trial [Electronic resource] / N. O. Kamenshchikov [et al.] // The Journal of Thoracic and Cardiovascular Surgery. — 2018. — Vol. ХХХ. — [10 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Anfinogenova, Yana Jonovna. Nanoparticles as agents targeting cholesterol crystallization in atherosclerosis [Electronic resource] / Ya. J. Anfinogenova, M. V. Shvedova, M. V. Popov // Medical Hypotheses. — 2017. — Vol. 102. — [P. 19–22]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Interdisciplinary approach to compensation of hypoglycemia in diabetic patients with chronic heart failure [Electronic resource] / Ya. J. Anfinogenova [et al.] // Heart Failure Reviews. — 2017. — Vol. 2017. — [17 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Novel targets for positron emission tomography (PET) radiopharmaceutical tracers for visualization of neuroinflammation [Electronic resource] / I. A. Shchepyotkin [et al.] // Journal of Physics: Conference Series [Electronic resource]. — 2017. — Vol. 886 : Magnetic resonance imaging in biomedical research. — [012015, 5 p.]. — Title screen. — Свободный доступ из сети Интернет.
Effects of pentoxifylline on hemodynamic, hemorheological, and microcirculatory parameters in young SHRs during arterial hypertension development [Electronic resource] / M. B. Plotnikov [et al.] // Clinical and Experimental Hypertension. — 2017. — Vol. 39, iss. 6. — [P. 570-578]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Was the 1908 Tunguska cosmic body a rubble pile asteroid? [Electronic resource] / J. Anfinogenov [et al.] // Meteoritics and Planetary Science. — 2017. — Vol. 52 : 80th Annual Meeting of the Meteoritical Society. — [6669, 2 p.]. — Title screen. — Свободный доступ из сети Интернет.
Physical Justification of an Increase in the Efficacy of Radiofrequency Systems for Myocardial Ablation [Electronic resource] / A. V. Evtushenko [et al.] // Key Engineering Materials : Scientific Journal. — 2016. — Vol. 685 : High Technology: Research and Applications 2015 (HTRA 2015). — [P. 432-435]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Nonpharmacological Correction of Hypersympatheticotonia in Patients with Chronic Coronary Insufficiency and Severe Left Ventricular Dysfunction [Electronic resource] / S. A. Afanasiev [et al.] // Annals of Noninvasive Electrocardiology. — 2016. — Online Version of Record published before inclusion in an issue. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Neuroprotective effects of p-tyrosol after the global cerebral ischemia in rats [Electronic resource] / D. N. Atochin [et al.] // Phytomedicine. — 2016. — Vol. 23, iss. 7. — [P. 784–792]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Digital Technologies in Providing Development of Algorithms Surgical Treatment of Supraventricular Arrhythmias [Electronic resource] / V. Evtushenko [et al.] // MATEC Web of Conferences. — Les Ulis: 2016. — Vol. 79 : Information-Measuring Equipment and Technologies (IME&T 2016). — [01063, 9 p.]. — Title screen. — Свободный доступ из сети Интернет.
Relationship between arterial blood pressure and blood viscosity in spontaneously hypertensive rats treated with pentoxifylline [Electronic resource] / M. B. Plotnikov [et al.] // Biorheology. — 2016. — Vol. 53, iss. 2. — [P. 93-107]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Anfinogenova, Yana Jonovna. Vagus nerve stimulation: Invasive or noninvasive? [Electronic resource] / Ya. J. Anfinogenova // The Anatolian Journal of Cardiology. — 2016. — Vol. 16, № 10. — [P. 811-812]. — Title screen. — Свободный доступ из сети Интернет.
Методы остеосинтеза грудины в лечении и профилактике осложнений срединной стернотомии [Электронный ресурс] = Approaches to sternal osteosynthesis in poststernotomy complications management / М. В. Шведова [и др.] // Сибирский медицинский журнал. — 2016. — Т. 31, № 3. — [С. 26-32]. — Заглавие с экрана. — Свободный доступ из сети Интернет.
С-jun-N-терминальные киназы и их модуляторы при ишемически-реперфузионном повреждении миокарда (обзор литературы) [Электронный ресурс] = С-jun-N-terminal kinases and their modulators in myocardial ischemia/reperfusion injury (review) / М. В. Шведова [и др.] // Сибирский медицинский журнал. — 2016. — Т. 31, № 3. — [С. 7-15]. — Заглавие с экрана. — Доступ по договору с организацией-держателем ресурса.
Geomorphological Features Potentially Associated with the 1908 Tunguska Catastrophe [Electronic resource] / Ya. J. Anfinogenova [et al.] // Meteoritics and Planetary Science. — 2016. — Vol. 51 : 79th Annual Meeting of the Meteoritical Society. — [6103, 1 p.]. — Title screen. — Свободный доступ из сети Интернет.
Origin of John’s Stone: A quartzitic boulder from the site of the 1908 Tunguska (Siberia) explosion [Electronic resource] / E. Bonatti [et al.] // Icarus : Scientific Journal. — 2015. — Vol. 258. — [P. 297-308]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Transdermal delivery of xenon from lipophilic solution and water [Electronic resource] / A. Yu. Verkhovsky [et al.] // Dermatology Aspects. — 2015. — Vol. 3. — [6 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Predictors of Renal Denervation Efficacy in the Treatment of Resistant Hypertension [Electronic resource] / T. M. Ripp [et al.] // Current Hypertension Reports : Scientific Journal. — 2015. — Vol. 18, iss. 120. — [P. 1-7]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
New technologies in treatment of atrial fibrillation in cardiosurgical patients [Electronic resource] / A. V. Evtushenko [et al.] // AIP Conference Proceedings. — 2015. — Vol. 1688 : New Operational Technologies. — [030008, 2 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Irrigated and non-irrigated radiofrequency ablation systems and ways of non-irrigated RF systems development [Electronic resource] / A. V. Evtushenko [et al.] // AIP Conference Proceedings. — 2015. — Vol. 1688 : New Operational Technologies. — [030007, 2 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Neurohumoral indicators of efficacy radiofrequency cardiac denervation [Electronic resource] / A. V. Evtushenko [et al.] // AIP Conference Proceedings. — 2015. — Vol. 1688 : New Operational Technologies. — [030021, 7 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Exercise and NO production: relevance and implications inthe cardiopulmonary system [Electronic resource] / A. V. Nosarev [et al.] // Frontiers in Cell and Developmental Biology. — 2014. — Vol. 2. — [P. 73]. — Title screen. — Свободный доступ из сети Интернет.
John’s Stone: A possible fragment of the 1908 Tunguska meteorite [Electronic resource] / J. Anfinogenov [et al.] // Icarus : Scientific Journal. — 2014. — Vol. 243. — [P. 139-147]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Platelet hemostasis in patients with metabolic syndrome and type 2 diabetes mellitus: cGMP- and NO-dependent mechanisms in the insulin-mediated platelet aggregation [Electronic resource] / T. E. Suslova [et al.] // Frontiers in Physiology. — 2014. — Vol. 5. — [article 501, 10 p.]. — Title screen. — Свободный доступ из сети Интернет.
Tunguska cosmic body of 1908: is it from planet Mars? [Electronic resource] / J. Anfinogenov [et al.] // Arxiv.org. — 2014. — Earth and Planetary Astrophysics. — Title screen. — Свободный доступ к препринту.
Identification of L- and T-type Ca2+ channels in rat cerebral arteries: role in myogenic tone development [Electronic resource] / R. R. Abd El-Rahman [et al.] // American Journal of Physiology - Heart and Circulatory Physiology : Scientific Journal. — 2013. — Vol. 304, № 1. — [14 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Do TRPC-like currents and G protein-coupled receptors interact to facilitate myogenic tone development? [Electronic resource] / Ya. J. Anfinogenova [et al.] // American Journal of Physiology - Heart and Circulatory Physiology : Scientific Journal. — 2011. — Vol. 301, № 4. — [11 p.]. — Title screen. — Доступ по договору с организацией-держателем ресурса.
Intravascular Pressure Augments Cerebral Arterial Constriction by Inducing Voltage-Insensitive Ca2+Waves [Electronic resource] / R. E. Mufti [et al.] // The Journal of Physiology : Scientific Journal. — 2010. — Vol. 588, iss. 20. — [P. 3983–4005]. — Title screen. — Свободный доступ из сети Интернет.
Physiologic Properties and Regulation of the Actin Cytoskeleton in Vascular Smooth Muscle [Electronic resource] / D. D. Tang, Ya. J. Anfinogenova // Journal of Cardiovascular Pharmacology and Therapeutics : Scientific Journal. — 2008. — Vol. 13, iss. 2. — [P. 130–140]. — Title screen. — Свободный доступ из сети Интернет.

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Okay, law students, gather ’round. This is how an appeals court uses dicta. For the unitiated, “dicta” is a term for the comments or observations of an appellate court that are not directly relevant to the case. They have no direct precedential value but may become “tea leaves” that provide hints of the court’s thinking. Check out Trousdale v. Tubbs, Case No. 2040744 (Ala. Civ. App. November 10, 2005).
The case involved post-divorce adjustment of child support and was generally unremarkable. The child had changed homes from the mother to the father and back to the mother, and the court observed that the parents had been in litigation “almost continuously” since their divorce. The issue on appeal was whether the mother was entitled to recover arrearage for past-due child support from the father.
The trial court had noted that it had not yet ruled on the issue of child support arrearage, but the mother appealed, arguing that the trial court had erred by refusing to consider the arrearage issue. The issue was not yet ripe for appeal, because the trial court’s order was expressly not yet final. The Appeals Court could have said so and left it at that. Its decision to have something to say anyway is where the dicta come in.
The Appeals Court (for no particular apparent reason) quoted Ex parte State ex rel. Lamon, 702 So. 2d 449 (Ala. 1997).
It is well settled that child support payments become final judgments on the day they are due and may be collected as any other judgment is collected; and that payments that mature or become due before the filing of a petition to modify are not modifiable. See State ex rel. Howard v. Howard, 671 So. 2d 83 (Ala. Civ. App. 1995); Cunningham v. Cunningham, 641 So. 2d 807 (Ala. Civ. App. 1994); Glenn v. Glenn, 626 So. 2d 638 (Ala. Civ. App. 1993); Frasemer v. Frasemer, 578 So. 2d 1346 (Ala. Civ. App. 1991); Barnes v. State ex rel. State of Virginia, 558 So. 2d 948 (Ala. Civ. App. 1990); Endress v. Jones, 534 So. 2d 307 (Ala. Civ. App. 1988). Furthermore, it is well settled that a trial court has no power to forgive an accrued arrearage. See, State ex rel. McDaniel v. Miller, 659 So. 2d 640 (Ala. Civ. App. 1995); Hardy v. Hardy, 600 So. 2d 1013 (Ala. Civ. App. 1992), cert. denied, Ex parte Hardy, 600 So. 2d 1016 (Ala. 1992).
Then it said what it could have said at the outset, that the mother’s appeal is premature and that therefore her appeal is due to be dismissed. In doing so it provided a perfect example of the Appeals Court’s use of pure dicta to telegraph to the trial court (and others similarly situated) how they should rule on cases like this. Get your wallet ready, Dad.
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In the Grand Chamber judgement Correia de Matos v. Portugal of 4 April 2018, the European Court of Human Rights (hereinafter: the Court) decided by a majority of nine votes to eight that the right to a fair trial was not violated with regards to the applicant, who was not allowed to conduct his own defence in the criminal proceedings against him. The blog focuses on how this judgement upholds fragmentation between the interpretation of human rights by the Court and the United Nations Human Rights Committee (hereinafter: HRC). It also develops arguments as to why harmony – instead of fragmentation – should have been the preferred option.
Carlos Correia de Matos – the applicant – is a lawyer by training. A Portuguese judge, alleging that he had been insulted by Mr. Correia de Matos, had lodged a complaint against him. In the course of the following criminal proceedings, Mr. Correia de Matos requested to conduct his own defence. The domestic courts denied this request and – on the basis of national rules of criminal procedure – required the applicant to be presented by counsel.
Mr. Correia de Matos lodged a complaint with the Court arguing a violation of Article 6 § 3 (c) ECHR, which provides that everyone charged with a criminal offence has the right “to defend himself in person or through legal assistance of his own choosing…”. The Court did not follow his argument. It took particular account of the fact that the domestic rule of mandatory legal representation had been the result of comprehensive legislation seeking to protect accused persons by securing an effective defence (para. 153). Bearing in mind Portugal’s margin of appreciation, the Court held that the reasons provided by the Government for the requirement to be assisted by a counsel had been both relevant and sufficient (paras. 143 and 159). There exists no cogent reason for the Court to doubt that the applicant’s defence by the court-appointed lawyer had been conducted properly or that the domestic proceedings had been in any way unfair (para. 166). Hence, the Grand Chamber concluded that the criminal proceedings involving the applicant did not violate Article 6 ECHR (para. 169). This conclusion was in line with an earlier decision (Correia de Matos v. Portugal, 15 November 2001, 48188/99) concerning a similar complaint lodged by the applicant, in which the Court had rejected the application as being manifestly ill-founded.
Mr. Correia de Matos had also submitted a Communication to the HRC in 2002, challenging the prohibition to conduct his own defence in criminal proceedings under Article 14 § 3 (d) of the International Covenant on Civil and Political Rights (hereinafter: ICCPR), which is similar to Article 6 § 3 (c) ECHR. In its Views of 28 March 2006, the HRC referred to the clear wording of the provision providing for a defence to be conducted in person “or” through legal assistance of one’s own choosing (para. 7.3.). It argued that the right to conduct one’s own defence is a cornerstone of justice, which allows restrictions only because of an objective and sufficiently serious purpose necessary to uphold the interests of justice (paras. 7.3. and 7.4). Each specific case thus requires an examination in concreto (para. 7.5). Under Portuguese legislation, an accused could never be released from the requirement to be represented by counsel in criminal proceedings. No objective and sufficiently serious reason could be found to explain why the absence of a court-appointed lawyer would have jeopardised the interests of justice (para. 7.5.). For these reasons, the HRC observed a breach of Article 14 § 3 (d) ICCPR.
In the Strasbourg case following Mr. Correia de Matos’ complaint, the Grand Chamber included a reference to the relevant provision of the ICCPR (para. 133). In this context, it cited Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties (hereinafter: VCLT), which provides that when interpreting a treaty, “[t]here shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties”. On that basis, the Court repeated its well-known phrase that the ECHR “cannot be interpreted in a vacuum and should as far as possible be interpreted in harmony with other rules of international law of which it forms part…” (para. 134). However, the Court also underlined that “even where the provisions of the Convention and those of the ICCPR are almost identical, the interpretation of the same fundamental right by the HRC and by this Court may not always correspond” (para. 135).
The Court cannot be reproached for a lack of transparency. It cites the relevant external instruments explicitly (paras. 133 et seq.), it mentions examples of previous judgements in which it had regard to the HRC’s Views (para. 134) and it stresses that international developments should be considered (para.137). However, the judgement in Correia de Matos v. Portugal does not make us wiser regarding the effects of considering such international developments. In casu, the Court, without providing any further explanation on this point, refrained from harmonising its interpretation with the one of the HRC, which offers a higher degree of protection. This adds force to the impression that the Court gives substantive weight to external instruments only when they pragmatically serve its pre-established position (‘cherry picking’).
The Dissenting Opinion of Judge Pinto de Albuquerque joined by Judge Sajó goes in a similar direction, encouraging a meaningful dialogue between the Court and the HRC as well as an alignment of their positions (para. 75).
I fully agree with these dissenting Judges. Besides the Court’s previous case-law favouring convergence in international human rights protection (see, for example, Demir and Baykara v. Turkey, Bayatyan v. Armenia, Sergey Zolotukhin v. Russia, Šilih v. Slovenia, Scoppola v. Italy (No. 2), Stanev v. Bulgaria, Konstantin Markin v. Russia) other arguments are relevant, too.
One argument builds on a human rights users’ approach, which puts those practically engaging with human rights, including the rights holders and duty bearers, in the centre of attention. From a rights holders’ perspective, it is important to stress that fundamental rights are based on shared moral values and must be provided equally to all. To achieve this ideal, the Court must avoid normative conflicts and integrate external instruments offering a higher protection, such as in casu the ICCPR as interpreted by the HRC. This would serve the universality of human rights as well as their consistent and fair administration. Harmonious integration is also defendable from a duty bearers’ perspective. By ratifying treaties such as the Convention and the ICCPR, States collectively work together to protect human rights and may not wish to see free riders in the field. The Portuguese decision not to bring its legislation in line with the HRC’s Views goes against such a collective spirit. Therefore, it is regrettable that the Court’s fragmented position offers Portugal ammunition to justify its inertia. Indeed, in a 2011 report submitted under the ICCPR, Portugal stressed the “very awkward position regarding the fulfilment of [Portugal’s] international human rights obligations” caused by the differences between the case-law of the Court and the Views of the HRC in respect of the same case (see para. 70).
Another argument in favour of harmonisation builds on some legal provisions pushing – and even obliging – the Court to align with international human rights law offering a higher protection. Let me start with Article 31 § 3 (c) VCLT. This provision aims at a systemic integration through harmonious interpretation of external norms applicable between the parties. This means that the Court is obliged to take into account other human rights instruments ratified by all the Member States of the Council of Europe, as is the case for the ICCPR. Although the Grand Chamber uses Article 31 § 3 (c) VCLT only seldom for this purpose (most often, the Court cites this provision to ensure a systemic integration between human rights law and general international law), it stressed in Correia de Matos v. Portugal that the ECHR “should as far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the international protection of human rights” (para 134; own emphasis).
Although the Court itself does not use it in this context, Article 53 ECHR can also be read as favouring an harmonious interpretation. This article provides that “[n]othing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party”. It offers a ‘human rights safeguard’ by ensuring a peaceful coexistence between the Convention and higher external standards. It may be argued that this provision does not only address the national authorities but also the Court’s interpretation process. This implies that the Court should safeguard the standards under the ICCPR, which are common to all Member States of the Council of Europe, and ensure their peaceful coexistence with the Convention.
Under the right to defend oneself in person, the HRC, a quasi-judicial body giving an ‘authoritative interpretation’ to the ICCPR, offers a higher level of protection than the Court. On the basis of Article 31 § 3 (c) VCLT and Article 53 ECHR, the Court – contrary to its current position – should align itself with the HRC’s Views. This means reducing the State’s margin of appreciation and not accepting an abstract domestic prohibition to defend oneself in person in criminal proceedings. In line with the HRC’s approach, the Court should examine in concreto whether the prohibition affected the right to a fair trial.
When we compare the pluralist normative context to a jungle, the Court should make use of the lianas to connect with other organisms, such as the HRC. Organisms are not isolated but part of a wider ecosystem. Within this system, the law of the jungle forces the organisms to live together in harmony. Harmony does not necessarily imply unity. Some diversity and fragmentation between protection mechanisms is inevitable and valuable. But, from the moment all Member States are obliged to respect a higher level of protection under an external mechanism, the law of the jungle and the interests of its inhabitants require the creation of harmony through convergence.
 See also: Brems E., “Should Pluriform Human Rights Become One? Exploring the Benefits of Human Rights Integration”, in E.J.H.R.–E.J.H.R., Vol. 4, 2014, pp. 447-470.
For an in-depth development of the arguments, see my PhD dissertation (“When the European Court of Human Rights refers to External Instruments. Mapping and Justifications”) defended at the Université Saint-Louis Bruxelles on 26 June 2018. For a specific analysis of the Court’s external references concerning the rights of persons with disabilities, see D. Staes and J. Damamme, “External referencing by the ECtHR and human rights integration: (Missed) opportunities for rights of persons with disabilities”, in Human Rights Tectonics. Global Perspectives on Integration and Fragmentation to be published by Intersentia in 2018.
 On a users’ perspective, Desmet E., “Analysing Users’ Trajectories in Human Rights: A Conceptual Exploration and Research Agenda”, in HR&ILD, Vol. 2, 2014, pp. 121-141.
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Section 16 of the Clayton Act entitles a private party to sue for injunctive relief against "threatened loss or damage by a violation of the antitrust laws." Respondent, the country's fifth-largest beef packer, brought an action in Federal District Court under § 16 to enjoin the proposed merger of petitioner Excel Corporation, the second-largest packer, and Spencer Beef, the third-largest packer. Respondent alleged that it was threatened with a loss of profits by the possibility that Excel, after the merger, would lower its prices to a level at or above its costs in an attempt to increase its market share. During trial, Excel moved for dismissal on the ground that respondent had failed to allege or show that it would suffer antitrust injury, but the District Court denied the motion. After trial, the District Court held that respondent's allegation of a "price-cost squeeze" that would severely narrow its profit margins constituted an allegation of antitrust injury. The Court of Appeals affirmed, holding that respondent's allegation of a "price-cost squeeze" was not simply one of injury from competition, but was a claim of injury by a form of predatory pricing in which Excel would drive other companies out of the market.
1. A private plaintiff seeking injunctive relief under § 16 must show a threat of injury "of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 429 U. S. 489. Pp. 479 U. S. 109-113.
2. The proposed merger does not constitute a threat of antitrust injury. A showing, as in this case, of loss or damage due merely to increased competition does not constitute such injury. And while predatory pricing is capable of inflicting antitrust injury, here respondent neither raised nor proved any claim of predatory pricing before the District Court, and thus the Court of Appeals erred in interpreting respondent's allegations as equivalent to allegations of injury from predatory conduct. Pp. 479 U. S. 113-119.
pricing theories. Nothing in the Clayton Act's language or legislative history suggests that Congress intended this Court to ignore injuries caused by such anticompetitive practices as predatory pricing. Pp. 479 U. S. 120-122.
761 F.2d 570, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and MARSHALL, POWELL, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 479 U. S. 122. BLACKMUN, J., took no part in the consideration or decision of the case.
Under § 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U.S.C. § 26, private parties "threatened [with] loss or damage by a violation of the antitrust laws" may seek injunctive relief. This case presents two questions: whether a plaintiff seeking relief under § 16 must prove a threat of antitrust injury, and, if so, whether loss or damage due to increased competition constitutes such injury.
Respondent Monfort of Colorado, Inc. (Monfort), the plaintiff below, owns and operates three integrated beef-packing plants, that is, plants for both the slaughter of cattle and the fabrication of beef. [Footnote 1] Monfort operates in both the market for fed cattle (the input market) and the market for fabricated beef (the output market). These markets are highly competitive, and the profit margins of the major beef packers are low. The current markets are a product of two decades of intense competition, during which time packers with modern integrated plants have gradually displaced packers with separate slaughter and fabrication plants.
Monfort is the country's fifth-largest beef packer. Petitioner Excel Corporation (Excel), one of the two defendants below, is the second-largest packer. Excel operates five integrated plants and one fabrication plant. It is a wholly owned subsidiary of Cargill, Inc., the other defendant below, a large privately owned corporation with more than 150 subsidiaries in at least 35 countries.
"violat[e] Section 7 of the Clayton Act because the effect of the proposed acquisition may be substantially to lessen competition or tend to create a monopoly in several different ways. . . ."
"(f) Impairment of plaintiff's ability to compete. The proposed acquisition will result in a concentration of economic power in the relevant markets which threatens Monfort's supply of fed cattle and its ability to compete in the boxed beef market."
on the merits. On the second day of trial, Excel moved for involuntary dismissal on the ground, inter alia, that Monfort had failed to allege or show that it would suffer antitrust injury as defined in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977). The District Court denied the motion. After the trial, the court entered a memorandum opinion and order enjoining the proposed merger. The court held that Monfort's allegation of "price-cost squeeze'" that would "severely narro[w]" Monfort's profit margins constituted an allegation of antitrust injury. 591 F. Supp. 683, 691-692 (Colo. 1983). It also held that Monfort had shown that the proposed merger would cause this profit squeeze to occur, and that the merger violated § 7 of the Clayton Act. [Footnote 4] Id. at 709-710.
"consider[ed] to be a form of predatory pricing in which Excel will drive other companies out of the market by paying more to its cattle suppliers and charging less for boxed beef that it sells to institutional buyers and consumers."
761 F.2d 570, 575 (CA10 1985). On the § 7 issue, the Court of Appeals held that the District Court's decision was not clearly erroneous. We granted certiorari, 474 U.S. 1049 (1985).
This case requires us to decide, at the outset, a question we have not previously addressed: whether a private plaintiff seeking an injunction under § 16 of the Clayton Act must show a threat of antitrust injury. To decide the question, we must look first to the source of the antitrust injury requirement, which lies in a related provision of the Clayton Act, § 4, 15 U.S.C. § 15.
"any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . , and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."
"plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful."
from continued competition. Id. at 429 U. S. 488. This reasoning in Brunswick was consistent with the principle that "the antitrust laws . . . were enacted for the protection of competition, not competitors.'" Ibid., quoting Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 320 (1962) (emphasis in original).
"as analyzed in Brunswick, is one factor to be considered in determining the redressability of a particular form of injury under § 4,"
"plain that McCready's injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws."
or damage by a violation of the antitrust laws. . . ."
15 U.S.C. § 26. It is plain that § 16 and § 4 do differ in various ways. For example, § 4 requires a plaintiff to show actual injury, but § 16 requires a showing only of "threatened" loss or damage; similarly, § 4 requires a showing of injury to "business or property," cf. Hawaii v. Standard Oil Co., 405 U. S. 251 (1972), while § 16 contains no such limitation. [Footnote 6] Although these differences do affect the nature of the injury cognizable under each section, the lower courts, including the courts below, have found that, under both § 16 and § 4, the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent. [Footnote 7] We agree.
The wording concerning the relationship of the injury to the violation of the antitrust laws in each section is comparable. Section 4 requires proof of injury "by reason of anything forbidden in the antitrust laws;" § 16 requires proof of "threatened loss or damage by a violation of the antitrust laws." It would be anomalous, we think, to read the Clayton Act to authorize a private plaintiff to secure an injunction against a threatened injury for which he would not be entitled to compensation if the injury actually occurred.
"Under section 7 of the act of July 2, 1890 [revised and incorporated into Clayton Act as § 4], a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law."
Sections 4 and 16 are thus best understood as providing complementary remedies for a single set of injuries. Accordingly, we conclude that, in order to seek injunctive relief under § 16, a private plaintiff must allege threatened loss or damage "of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful." Brunswick, 429 U.S. at 429 U. S. 489. We therefore turn to the question whether the proposed merger in this case threatened respondent with antitrust injury.
alleged therein -- "an impairment of plaintiff's ability to compete" -- is alleged to result from "a concentration of economic power." 1 App. 19. The pretrial order largely restates these general allegations. Record 37. At trial, however, Monfort did present testimony and other evidence that helped define the threatened loss. Monfort alleged that, after the merger, Excel would attempt to increase its market share at the expense of smaller rivals, such as Monfort. To that end, Monfort claimed, Excel would bid up the price it would pay for cattle, and reduce the price at which it sold boxed beef. Although such a strategy, which Monfort labeled a "price-cost squeeze," would reduce Excel's profits, Excel's parent corporation had the financial reserves to enable Excel to pursue such a strategy. Eventually, according to Monfort, smaller competitors lacking significant reserves and unable to match Excel's prices would be driven from the market; at this point, Excel would raise the price of its boxed beef to supracompetitive levels, and would more than recoup the profits it lost during the initial phase. 591 F. Supp., at 691-692.
From this scenario, two theories of injury to Monfort emerge: (1) a threat of a loss of profits stemming from the possibility that Excel, after the merger, would lower its prices to a level at or only slightly above its costs; (2) a threat of being driven out of business by the possibility that Excel, after the merger, would lower its prices to a level below its costs. [Footnote 9] We discuss each theory in turn.
Monfort's first claim is that, after the merger, Excel would lower its prices to some level at or slightly above its costs in order to compete with other packers for market share.
Excel would be in a position to do this because of the multi-plant efficiencies its acquisition of Spencer would provide, 1 App. 74-76, 369-370. To remain competitive, Monfort would have to lower its prices; as a result, Monfort would suffer a loss in profitability, but would not be driven out of business. [Footnote 10] The question is whether Monfort's loss of profits in such circumstances constitutes antitrust injury.
"[T]he antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that, by acquiring the failing centers, petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for the protection of competition, not competitors,' Brown Shoe Co. v. United States, 370 U.S. at 370 U. S. 320. It is inimical to the purposes of these laws to award damages for the type of injury claimed here."
Brunswick compels the conclusion that the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury.
The Court of Appeals held that Monfort had alleged "what we consider to be a form of predatory pricing. . . ." 761 F.2d at 575. The court also found that Monfort "could only be harmed by sustained predatory pricing," and that "it is impossible to tell in advance of the acquisition" whether Excel would in fact engage in such a course of conduct; because it could not rule out the possibility that Excel would engage in predatory pricing, it found that Monfort was threatened with antitrust injury. Id. at 576.
Although the Court of Appeals did not explicitly define what it meant by predatory pricing, two interpretations are plausible. First, the court can be understood to mean that Monfort's allegation of losses from the above-cost "price-cost squeeze" was equivalent to an allegation of injury from predatory conduct. If this is the proper interpretation, then the court's judgment is clearly erroneous because (a) Monfort made no allegation that Excel would act with predatory intent after the merger, and (b) price competition is not predatory activity, for the reasons discussed in Part III-A, supra.
on the basis of necessarily speculative claims of post-acquisition predatory pricing far outweighs the danger that any anticompetitive merger will go unchallenged."
Brief for United States as Amicus Curiae 25. On this basis, the United States invites the Court to adopt in effect a per se rule "denying competitors standing to challenge acquisitions on the basis of predatory pricing theories." Id. at 10.
the language or legislative history of the Clayton Act suggests that Congress intended this Court to ignore injuries caused by such anticompetitive practices as predatory pricing.
We hold that a plaintiff seeking injunctive relief under § 16 of the Clayton Act must show a threat of antitrust injury, and that a showing of loss or damage due merely to increased competition does not constitute such injury. The record below does not support a finding of antitrust injury, but only of threatened loss from increased competition. Because respondent has therefore failed to make the showing § 16 requires, we need not reach the question whether the proposed merger violates § 7. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
"'[f]abrication' is the process whereby the carcass is broken down into either whole cuts (referred to as 'primals,' 'subprimals' and 'portions') or ground beef."
591 F. Supp. 683, 690 (Colo. 1983). Whole cuts that are then vacuum packed before shipment are called "boxed beef"; the District Court found that "80% of all beef received at the retail supermarket level and at the hotel, restaurant, and institutional (HRI') level" is boxed beef. Ibid.
The District Court relied on the testimony of one of Monfort's witnesses in determining market share. Id. at 706-707. According to this testimony, Monfort's share of the cattle slaughter market was 5.5%, Excel's share was 13.3%, and IBP's was 24.4%. 1 App. 69. Monfort's share of the production market was 6.7%, Excel's share was 14.1%, and IBP's share was 27.3%. Id. at 64. After the merger, Excel's share of each market would increase to 20.4%. Id. at 64, 69; 761 F.2d 670, 677 (CA10 1986).
"Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of subtitle IV of title 49, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission. In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney's fee, to such plaintiff."
Section 7 prohibits mergers when the "the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly," 15 U.S.C. § 18.
A showing of antitrust injury is necessary, but not always sufficient, to establish standing under § 4, because a party may have suffered antitrust injury but may not be a proper plaintiff under § 4 for other reasons. See generally Page, The Scope of Liability for Antitrust Violations, 37 Stan.L.Rev. 1445, 1483-1485 (1985) (distinguishing concepts of antitrust injury and antitrust standing). Thus, in Associated General Contractors, we considered other factors in addition to antitrust injury to determine whether the petitioner was a proper plaintiff under § 4. 459 U.S. at 540. As we explain, n 6, infra, however, many of these other factors are not relevant to the standing inquiry under § 16.
Standing analysis under § 16 will not always be identical to standing analysis under § 4. For example, the difference in the remedy each section provides means that certain considerations relevant to a determination of standing under § 4 are not relevant under § 16. The treble-damages remedy, if afforded to "every person tangentially affected by an antitrust violation," Blue Shield of Virginia v. McCready, 457 U. S. 465, 457 U. S. 476-477 (1982), or for "all injuries that might conceivably be traced to an antitrust violation," Hawaii v. Standard Oil Co., 405 U.S. at 405 U. S. 263, n. 14, would "open the door to duplicative recoveries," id. at 405 U. S. 264, and to multiple lawsuits. In order to protect against multiple lawsuits and duplicative recoveries, courts should examine other factors in addition to antitrust injury, such as the potential for duplicative recovery, the complexity of apportioning damages, and the existence of other parties that have been more directly harmed, to determine whether a party is a proper plaintiff under § 4. See Associated General Contractors, 459 U.S. at 459 U. S. 544-545; Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977). Conversely, under § 16, the only remedy available is equitable in nature, and, as we recognized in Hawaii v. Standard Oil Co., "the fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one." 405 U.S. at 405 U. S. 261. Thus, because standing under § 16 raises no threat of multiple lawsuits or duplicative recoveries, some of the factors other than antitrust injury that are appropriate to a determination of standing under § 4 are not relevant under § 16.
See Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1334 (CA7 1986); Midwest Communications, Inc. v. Minnesota Twins, Inc., 779 F.2d 444, 452-453 (CA8 1985), cert. denied, 476 U.S. 1163 (1986); Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1358 (CA6), cert. dism'd, 469 U.S. 1200 (1985); Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F.2d 205, 210-211 (CA3 1980).
"Under the present law, any person injured in his business or property by acts in violation of the Sherman antitrust law may recover his damage. In fact, under the provisions of the law, he is entitled to recover three-fold damage whenever he is able to prove his case. There is no provision under the present law, however, to prevent threatened loss or damage, even though it be irreparable. The practical effect of this is that a man would have to sit by and see his business ruined before he could take advantage of his remedy. In what condition is such a man to take up a long and costly lawsuit to defend his rights?"
"The proposed bill solves this problem for the person, firm, or corporation threatened with loss or damage to property by providing injunctive relief against the threatened act that will cause such loss or damage. Under this most excellent provision, a man does not have to wait until he is ruined in his business before he has his remedy. Thus the bill not only protects the individual from loss or damage, but it relieves him of the tremendous burden of long and expensive litigation, often intolerable."
51 Cong.Rec. 9261 (1914) (emphasis added).
"In section 16 . . . is a provision that gives the litigant injured in his business an entirely new remedy."
". . . [S]ection 16 gives any individual, company, or corporation . . . or combination the right to go into court and enjoin the doing of these unlawful acts, instead of having to wait until the act is done and the business destroyed and then sue for damages. . . . [S]o that if a man is injured by a discriminatory contract, by a tying contract, by the unlawful acquisition of stock of competing corporations, or by reason of someone acting unlawfully as a director in two banks or other corporations, he can go into court and enjoin and restrain the party from committing such unlawful acts."
In its brief, Monfort also argues that it would be injured by "the trend toward oligopoly pricing" that could conceivably follow the merger. Brief for Respondent 18-20. There is no indication in the record that this claim was raised below, however, and so we do not address it here.
In this case, Monfort has conceded that its viability would not be threatened by Excel's decision to lower prices: "Because Monfort's operations were as efficient as those of Excel, only below-cost pricing could remove Monfort as an obstacle." Id. at 11-12; see also id. at 6, and n. 6 ("Monfort proved it was just as efficient as Excel"); id. at 18; 761 F.2d at 676 ("Monfort would only be harmed by sustained predatory pricing").
Respondent finds support in the legislative history of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 for the view that Congress intends the courts to apply § 7 so as to protect the viability of small competitors. The Senate Report, for example, cites with approval this Court's statement in United States v. Von's Grocery Co., 384 U. S. 270, 384 U. S. 275 (1966), that "the basic purpose of the 1950 Celler-Kefauver Act [amending § 7 of the Clayton Act] was to prevent economic concentration in the American economy by keeping a large number of small competitors in business." S. Rep. No. 94-803, p. 63 (1976). Even if respondent is correct that Congress intended the courts to apply § 7 so as to keep small competitors in business at the expense of efficiency, a proposition about which there is considerable disagreement, such congressional intent is of no use to Monfort, which has conceded that it will suffer only a loss of profits, and not be driven from the market, should Excel engage in a cost-price squeeze. See n 10, supra.
Most commentators reserve the term predatory pricing for pricing below some measure of cost, although they differ on the appropriate measure. See, e.g., Areeda & Turner, Predatory Pricing and Related Practices under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ. 289 (1980) (reviewing various proposed definitions). No consensus has yet been reached on the proper definition of predatory pricing in the antitrust context, however. For purposes of decision in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), for example, we defined predatory pricing as either "(i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost." Id. at 585, n. 8. Definitions of predatory pricing also vary among the Circuits. Compare Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 729 F.2d 1050, 1056-1057 (CA6) (pricing below marginal or average variable cost presumptively illegal, pricing above such cost presumptively legal), cert. denied, 469 U.S. 1036 (1984), with Transamerica Computer Co. v. International Business Machines Corp., 698 F.2d 1377 (CA9) (pricing above average total costs may be deemed predatory upon showing of predatory intent), cert. denied, 464 U.S. 955 (1983).
Although neither the District Court nor the Court of Appeals explicitly defined the term predatory pricing, their use of the term is consistent with a definition of pricing below cost. Such a definition is sufficient for purposes of this decision, because only below-cost pricing would threaten to drive Monfort from the market, see n 9, supra, and because Monfort made no allegation that Excel would act with predatory intent. Thus, in this case, as in Matsushita Electric Industrial Co. v. Zenith Radio Corp., supra, we find it unnecessary to "consider whether recovery should ever be available . . . when the pricing in question is above some measure of incremental cost," 475 U.S. at 475 U. S. 585, n. 9, or whether above-cost pricing coupled with predatory intent is ever sufficient to state a claim of predation. See n 11, supra.
See also Brunswick, 429 U.S. at 429 U. S. 489, n. 14 ("The short-term effect of certain anticompetitive behavior -- predatory below-cost pricing, for example -- may be to stimulate price competition. But competitors may be able to prove antitrust injury before they actually are driven from the market and competition is thereby lessened").
The Court of Appeals may have relied on the District Court's speculation that the merger raised "a distinct possibility . . . of predatory pricing." 591 F. Supp. at 710. This statement directly followed the District Court's second observation that Monfort did not raise such a claim, however, and thus was clearly dicta.
Even had Monfort actually advanced a claim of predatory pricing, we doubt whether the facts as found by the District Court would have supported it. Although Excel may have had the financial resources to absorb losses over an extended period, other factors, such as Excel's share of market capacity and the barriers to entry after competitors have been driven from the market, must also be considered.
In order to succeed in a sustained campaign of predatory pricing, a predator must be able to absorb the market shares of its rivals once prices have been cut. If it cannot do so, its attempt at predation will presumably fail, because there will remain in the market sufficient demand for the competitors' goods at a higher price, and the competitors will not be driven out of business. In this case, Excel's 20.4% market share after the merger suggests it would lack sufficient market power to engage in predatory pricing. See Williamson, Predatory Pricing: A Strategic and Welfare Analysis, 87 Yale L.J. 284, 292 (1977) (60% share necessary); Areeda & Turner, Williamson on Predatory Pricing, 87 Yale L.J. 1337, 1348 (1978) (60% share not enough). It is possible that a firm with a low market share might nevertheless have sufficient excess capacity to enable it rapidly to expand its output and absorb the market shares of its rivals. According to Monfort's expert witness, however, Excel's post-merger share of market capacity would be only 28.4%. 1 App. 66. Moreover, it appears that Excel, like the other large beef packers, operates at over 85% of capacity. Id. at 135-136. Thus Excel acting alone would clearly lack sufficient capacity after the merger to satisfy all or most of the demand for boxed beef. Although it is conceivable that Excel could act collusively with other large packers, such as IBP, in order to make the scheme work, the District Court found that Monfort did not "assert that Excel and IBP would act in collusion with each other in an effort to drive others out of the market," 591 F. Supp. at 692. With only a 28.4% share of market capacity and lacking a plan to collude, Excel would harm only itself by embarking on a sustained campaign of predatory pricing. Courts should not find allegations of predatory pricing credible when the alleged predator is incapable of successfully pursuing a predatory scheme. See n 17, infra.
It is also important to examine the barriers to entry into the market, because "without barriers to entry, it would presumably be impossible to maintain supracompetitive prices for an extended time." Matsushita, 475 U.S. at 475 U. S. 591, n. 15. In discussing the potential for oligopoly pricing in the beef-packing business following the merger, the District Court found significant barriers to entry due to the "costs and delays" of building new plants, and "the lack of [available] facilities and the cost [$20-40 million] associated with refurbishing old facilities." 591 F. Supp. at 707-708. Although the District Court concluded that these barriers would restrict entry following the merger, the court's analysis was premised on market conditions during the premerger period of competitive pricing. Ibid. In evaluating entry barriers in the context of a predatory pricing claim, however, a court should focus on whether significant entry barriers would exist after the merged firm had eliminated some of its rivals, because at that point the remaining firms would begin to charge supracompetitive prices, and the barriers that existed during competitive conditions might well prove insignificant. In this case, for example, although costs of entry into the current competitive market may be high, if Excel and others in fact succeeded in driving competitors out of the market, the facilities of the bankrupt competitors would then be available, and the record shows, without apparent contradiction, that shut-down plants could be producing efficiently in a matter of months and that equipment and a labor force could readily be obtained, 1 App. 95-96. Similarly, although the District Court determined that the high costs of building new plants and refurbishing old plants created a "formidable" barrier to entry given "the low profit margins in the beef industry," 591 F. Supp. at 707, this finding speaks neither to the likelihood of entry during a period of supracompetitive profitability nor to the potential return on investment in such a period.
See Koller, The Myth of Predatory Pricing: An Empirical Study, 4 Antitrust Law & Econ. Rev. 105 (1971); Miller, Comments on Baumol and Ordover, 28 J. Law & Econ. 267 (1985).
"inherently uncertain: the short-run loss [from pricing below cost] is definite, but the long-run gain depends on successfully neutralizing the competition . . . [and] on maintaining monopoly power for long enough both to recoup the predator's losses and to harvest some additional gain."
"cutting prices in order to increase business often is the very essence of competition . . . [;] mistaken inferences . . . are especially costly, because they chill the very conduct the antitrust laws are designed to protect."
Id. at 475 U. S. 594.
unless the plaintiff can prove a violation of the Sherman Act. Second, the Court might concentrate on the merger itself and grant relief if there is a significant probability that the merger will adversely affect competition in the market in which the plaintiff must compete. Today the Court takes a step down the former path; [Footnote 2/1] I believe that Congress has directed us to follow the latter path.
competitor in Monfort's position has standing to seek an injunction against the merger. Because Monfort must compete in the relevant market, proof establishing that the merger will have a sufficient probability of an adverse effect on competition to violate § 7 is also sufficient to authorize equitable relief.
"to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding."
"a prophylactic measure, intended 'primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil.' . . ."
429 U.S. at 429 U. S. 485 (quoting United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 597 (1957)).
"The principal danger against which the 1950 amendment was addressed was the erosion of competition through the cumulative centripetal effect of acquisitions by large corporations, none of which by itself might be sufficient to constitute a violation of the Sherman Act. Congress' immediate fear was that of large corporations buying out small companies. A major aspect of that fear was the perceived trend toward absentee ownership of local business. Another, more generalized, congressional purpose revealed by the legislative history was to protect small businessmen and to stem the rising tide of concentration in the economy. These goals, Congress thought, could be achieved by 'arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency.' Brown Shoe Co. v. United States, [370 U.S.] at 370 U. S. 317."
United States v. Von's Grocery Co., 384 U. S. 270, 384 U. S. 283-284 (1966) (dissenting).
"The evident premise for striking [the injunction at issue] was that Zenith's failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 15 U.S.C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of 'threatened' injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; . . . he 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. v. Hazeltine Research, Inc., 395 U. S. 100, 395 U. S. 130 (19B9) (citations omitted).
"Competition in the markets for the procurement of fed cattle and the sale of boxed beef will be substantially lessened and a monopoly may tend to be created in violation of Section 7 of the Clayton Act;"
"Concentration in those lines of commerce will be increased and the tendency towards concentration will be accelerated."
1 App. 21. More generally, given the statutory purposes to protect small businesses and to stem the rising tide of concentration in particular markets, a competitor trying to stay in business in a changing market must have standing to ask a court to set aside a merger that has changed the character of the market in an illegal way. Certainly the businesses -- small or large -- that must face competition in a market altered by an illegal merger are directly affected by that transaction. Their inability to prove exactly how or why they may be harmed does not place them outside the circle of interested parties whom the statute was enacted to protect.
the plaintiff with loss or damage, not that the violation cause the plaintiff actual "injur[y] in his business or property." 15 U.S.C. § 15.
In the Brunswick case, the Court set aside a damages award that was based on the estimated additional profits that the plaintiff would have earned if competing bowling alleys had gone out of business instead of being acquired by the defendant. We concluded "that the loss of windfall profits that would have accrued had the acquired centers failed" was not the kind of actual injury for which damages could be recovered under § 4. 429 U.S. at 429 U. S. 488. That injury "did not occur by reason of' that which made the acquisitions unlawful." Ibid.
In contrast, in this case it is the threatened harm -- to both competition and to the competitors in the relevant market -- that makes the acquisition unlawful under § 7. The Court's construction of the language of § 4 in Brunswick is plainly not controlling in this case. [Footnote 2/5] The concept of "antitrust injury," which is at the heart of the treble-damages action, is simply not an element of a cause of action for injunctive relief that depends on finding a reasonable threat that an incipient disease will poison an entire market.
a competitor of the merging firms will suffer some corresponding harm in due course. In my opinion, that reasonable probability gives the competitor an interest in the proceeding adequate to confer standing to challenge the merger. To hold otherwise is to frustrate § 7 and to read § 16 far too restrictively.
It would be a strange antitrust statute indeed which defined a violation enforceable by no private party. Effective enforcement of the antitrust laws has always depended largely on the work of private attorney generals, for whom Congress made special provision in the Clayton Act itself. [Footnote 2/6] As recently as 1976, Congress specifically indicated its intent to encourage private enforcement of § 16 by authorizing recovery of a reasonable attorney's fee by a plaintiff in an action for injunctive relief. The Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1396 (amending 15 U.S.C. § 26).
The Court misunderstands the message that Congress conveyed in 1914 and emphasized in 1950. If, as the District Court and the Court of Appeals held, the merger is illegal, it should be set aside. I respectfully dissent.
Whether or not it so intends, the Court in practical effect concludes that a private party may not obtain injunctive relief against a horizontal merger unless the actual or probable conduct of the merged firms would establish a violation of the Sherman Act. The Court suggests that, to support a claim of predatory pricing, a competitor must demonstrate that the merged entity is "able to absorb the market shares of its rivals once prices have been cut," either because it has a high market share or because it has "sufficient excess capacity to enable it rapidly to expand its output and absorb the market shares of its rivals." Ante at 479 U. S. 119-120, n. 16. The Court would also require a competitor to demonstrate that significant barriers to entry would exist after "the merged firm had eliminated some of its rivals . . . . " Ante at 479 U. S. 120, n. 15. Indeed, the Court expressly states that the antitrust laws "require the courts to protect small businesses . . . only against the loss of profits from practices forbidden by the antitrust laws." Ante at 479 U. S. 116 (emphasis added). By emphasizing postmerger conduct, the Court reduces to virtual irrelevance the related but distinct issue of the legality of the merger itself.
S.Rep. No. 698, 63d Cong., 2d Sess. 1 (1914).
"[I]t is apparent that a keystone in the erection of a barrier to what Congress saw was the rising tide of economic concentration was its provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency. Congress saw the process of concentration in American business as a dynamic force; it sought to assure the Federal Trade Commission and the courts the power to brake this force at its outset and before it gathered momentum."
Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 317-318 (1962) (footnote omitted).
"Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue. . . ."
"The issue for decision is a narrow one. . . . Petitioner questions only whether antitrust damages are available where the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares."
429 U.S. at 429 U. S. 484 (footnote omitted). Nor did we reach the issue of a competitor's standing to seek relief from a merger under § 16 in Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519 (1983). Id. at 459 U. S. 524, n. 5.
"[T]he purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws."
See also Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 392 U. S. 139 (1968); Fortner Enterprises, Inc. v. United States Steel Corp., 394 U. S. 495, 394 U. S. 502 (1969); Hawaii v. Standard Oil Co., 405 U. S. 251, 405 U. S. 262 (1972).


text:
COMMONWEALTH vs. JOSEPH A. CHAMBERLAIN (and a companion case [Note page49-1]).
TWO COMPLAINTS received and sworn to in the Fourth District Court of Plymouth on December 14, 1959.
Upon appeal to the Superior Court the cases were heard by Kirk, J., without jury.
Allan M. Hale, (Albert T. Maddigan with him,) for the defendants.
John R. Wheatley, District Attorney, for the Commonwealth.
WILKINS, C.J. Each defendant is charged in a complaint that on December 13, 1959, he "did on the Lord's day keep open his shop for the purpose of doing business or work. Ch. 136, Sec. 5." Waiving a jury, they were tried on a statement of agreed facts, were found guilty, and have appealed.
Each defendant "is the owner and operator of [a] coinoperated automatic laundry" in Middleboro. On Sunday, December 13, 1959, the "place of business" of each defendant was open, and the doors were unlocked. Neither defendant nor any employees were present. Washing machines and drying machines were available and in use by patrons. To operate, patrons place laundry in them and insert a coin. Power and water are supplied automatically. The patrons perform all the labor, and on Sundays, when no merchandise is sold or offered for sale, furnish their own washing materials.
"shop" within the meaning of Section 5. Commonwealth v. Moriarty, 311 Mass. 116, 119-121.
The defendants' shops were open for the doing of business, as alleged in the complaints. The furnishing of machines, water, and power in return for a consideration is doing business. "`Business' . . . is a word of extensive use and indefinite signification." Collector of Taxes of Boston v. New England Trust Co. 221 Mass. 384, 388. Boston & Providence R.R. v. Old Colony R.R. 269 Mass. 190, 197. See Hanson v. Culton, 269 Mass. 471, 476. The sweeping effect of the statute embraces the laundromat of which each defendant "is the owner and operator," again to quote a phrase from the agreed facts. There need not be a sale of goods. Commonwealth v. Dextra, 143 Mass. 28 (barber shop). In this day of automation the physical absence of the defendants or of employees was without significance.
The defendants' brief makes the assertion that "in allowing their establishments to remain open on Sunday to permit housewives and mothers or anyone else to launder their own or their family's clothes, there is nothing which adversely affects public safety, health, morals, or the general welfare of the public; nor is in any way inimical to the public interests. To legislate against this, whether the right to so legislate is to be interpreted broadly and liberally or with strictness, is an improper exercise of the police power." The defendants rely upon the Fourteenth Amendment to the Constitution of the United States and art. 1 of the Declaration of Rights.
the Div. on the Necessaries of Life, 319 Mass. 301, 305. The burden is not sustained by generalities, whether of law or fact. The presumption of constitutionality can be overcome only by specific allegations. None has been made. Id.
The reliance upon the Fourteenth Amendment is twofold: denial of due process and denial of the equal protection of the laws. At the time of the arguments before us a three-judge court in the United States District Court, District of Massachusetts, by majority vote had decided that our "so-called `Lord's day' statute" [Note page52-1] was unconstitutional as applied to the owner and customers of a Kosher market and as to rabbis having the duty of inspection. Crown Kosher Super Mkt. of Mass. Inc. v. Gallagher, 176 F. Supp. 466. The grounds given, all under the Fourteenth Amendment, were (1) violation of the due process clause by (a) denying the free exercise of religion and (b) depriving of property or liberty arbitrarily and (2) denial of the equal protection of the laws (see, particularly, pp. 471, 474-476).
Although no question of the Jewish Sabbath is directly presented in the cases before us, we have awaited the outcome of the Crown Kosher case upon appeal to the Supreme Court of the United States. That tribunal has now reversed the decision of the majority of the three-judge court, and has held that G. L. c. 136, Sections 5 and 6, are not violative of the Constitution of the United States. Gallagher v. Crown Kosher Super Mkt. of Mass. Inc. 366 U.S. 617. At the same time decisions were rendered upholding the Maryland and Pennsylvania Sunday closing laws. McGowan v. Maryland, 366 U.S. 420. Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582. Braunfeld v. Brown, 366 U.S. 599.
riddled with exceptions and limitations which are set forth in said c. 136, and for the most part are found in Section 6, that the result is the granting of undue favor and individual or class privilege for those covered by such exceptions and limitations. Such inequality of treatment of all persons bears no reasonable relationship to the objects is one for legislative determination. As matter of law, the defendants have not sustained the burden of showing that the Legislature had no rational basis for making the exceptions found elsewhere in c. 136, chiefly in Section 6. This has been so adjudicated in Gallagher v. Crown Kosher Super Mkt. of Mass. Inc. 366 U.S. 617, 622-624. See McGowan v. Maryland, 366 U.S. 420, 425-428.
[Note page49-1] The companion case is entitled Commonwealth vs. Anders Martenson, Junior.
[Note page52-1] See 176 F. Supp. at page 468, where the reference is to G. L. "c. 136, Section 1 et seq." The sections specifically discussed in the opinion are 5 and 6. See, for example, page 472.

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1. The court reaffirms the decision in Insurance Company v. Morse, 20 Wall. 445, that an agreement to abstain in all cases from resorting to the courts of the United States is void as against public policy and that a statute of Wisconsin requiring such an agreement is in conflict with the Constitution of the United States.
3. The Legislature of Wisconsin enacted that if any foreign insurance company transferred a suit brought against it from the state courts to the federal courts, the secretary of state should revoke and cancel its license to do business within the state. An injunction to restrain him from so doing because such a transfer is made cannot be sustained. The suggestion that the intent of the legislature is to accomplish an illegal result, to-wit the prevention of a resort to the federal courts, is not accurate. The effect of this decision is that the company must forego such resort or cease its business in the state. The latter result is here accomplished.
4. As the state has the right to exclude such company, the means by which she causes such exclusion or the motives of her action are not the subject of judicial inquiry.
The bill of complaint alleges that the complainant, the Continental Insurance Company of the City of New York, is a corporation organized and existing under the laws of the State of Connecticut and a citizen of that state.
upon whom process of law could be served, complainant was compelled to add an agreement on its part not to remove into the federal courts suits brought against it in the state courts, which agreement to that effect was made. That after the decision of this Court in Insurance Company v. Paige, 20 Wall. 445, the complainant removed a suit brought on one of its policies against it in the state court into the federal court. That because of such removal, a demand was made upon the defendant Peter Doyle, as secretary of state, to revoke the certificate or license authorizing the complainant to do business in said State of Wisconsin.
That complainant had a large number of agencies in the state engaged in the conduct of its business, and a revocation of its license would work great and irreparable injury to the complainant in its business in said state, and the complainant feared that said defendant would revoke said license, unless restrained by injunction. A temporary injunction was issued restraining the defendant from revoking the license of the complainant because of the removal of said suit from the state to the federal court.
A demurrer to the bill was overruled and a decree entered making the injunction perpetual. From this decree the defendant appealed.
"That any fire insurance company, association, or partnership, incorporated by or organized under the laws of any other state of the United States, desiring to transact any such business as aforesaid by any agent or agents in this state shall first appoint an attorney in this state on whom process of law can be served, containing an agreement that such company will not remove the suit for trial in the United States circuit or federal courts, and file in the office of the secretary of state a written instrument, duly signed and sealed, certifying such appointment, which shall continue until another attorney be substituted."
court of the State of Wisconsin to the United States circuit or district court or to the federal court contrary to the provisions of any law of the State of Wisconsin or contrary to any agreement it has made and filed, or may make and file, as provided and required by section number twenty-two of chapter fifty-six of the General Laws of Wisconsin for the year A.D. 1870, or any provision of law now in force in said state, or may hereafter be enacted therein, it shall be the imperative duty of the secretary of state or other proper state officer to revoke and recall any authority or license to such company to do and transact any business in the State of Wisconsin, and no renewal or new license or certificate shall be granted to such company for three years after such revocation, and such company shall thereafter be prohibited from transacting any business in the State of Wisconsin until again duly licensed."
"SEC. 3. If any insurance company or association shall make application to remove any case from the state court into the United States circuit or district court or federal court contrary to the provisions of chapter fifty-six of the General Laws of Wisconsin for the year A.D. 1870, or any other state law, or contrary to any agreement which such company may have filed in pursuance of said chapter fifty-six of the General Laws of Wisconsin for the year A.D. 1870, or any other law of the State of Wisconsin, it shall be liable, in addition, to a penalty of not less than $100 or more than $500 for each application so made, or for each offense so committed for making such application, the same to be recovered by suit in the name of the State of Wisconsin, and it shall be the imperative duty of the Attorney-General of the State of Wisconsin to see and attend that all of the provisions of said chapter fifty-six of the General Laws of 1870 and the provisions of this act are duly enforced."
did take all the steps required by the United States statute of 1789 to remove its suit with Morse from the state court into the federal courts. Disregarding that action, the Supreme Court of Wisconsin allowed the action in the state court to proceed to judgment against the company as if no transfer had been made. When the judgment thus obtained was brought into this Court, we held it to be illegally obtained and reversed it. It was held first, upon the general principles of law, that although an individual may lawfully omit to exercise his right to transfer a particular case from the state courts to the federal courts, and may do this as often as he thinks fit in each recurring case, he cannot bind himself in advance by an agreement which may be specifically enforced thus to forfeit his rights. This was upon the principle that every man is entitled to resort to all the courts of the country, to invoke the protection which all the laws and all the courts may afford him, and that he cannot barter away his life, his freedom, or his constitutional rights.
"On this branch of the case, the conclusion is this:"
"1st, the Constitution of the United States secures to citizens of another state than that in which suit is brought an absolute right to remove their cases into the federal court upon compliance with the terms of the act of 1789."
"2d, the statute of Wisconsin is an obstruction to this right, is repugnant to the Constitution of the United States and the laws in pursuance thereof, and is illegal and void."
"3d, the agreement of the insurance company derives no support from an unconstitutional statute, and is void as it would be had no such statute been passed."
States. The decision was upon that portion of the statute only, and other portions thereof, when they are presented, must be judged of upon their merits.
We have not decided that the State of Wisconsin has not the power to impose terms and conditions as preliminary to the right of an insurance company to appoint agents, keep offices, and issue policies in that state. On the contrary, the case of Paul v. Virginia, 8 Wall. 168, where it is held that such conditions may be imposed, was cited with approval in Insurance Company v. Morse. That case arose upon a statute of Virginia, providing that no foreign insurance company should transact business within that state until it had taken out a license and had made a deposit with the state treasurer of bonds varying in amount from $30,000 to $50,000, according to the amount of its capital. This Court sustained the power of the legislature to impose such conditions, and sustained the judgment of the state court convicting Paul upon an indictment for violating the state law in issuing policies without having first complied with the conditions required.
Ducat v. Chicago, 10 Wall. 410, decided that the statute of the State of Illinois requiring a license to be taken out by foreign insurance companies, for which six dollars each should be paid, and the filing of an appointment of an attorney, with power to accept service of process, was a legal condition, and a requirement that when such company was located in the city of Chicago, it should also pay to the treasurer of that city two dollars upon the one hundred dollars upon the amount of all premiums received was held to be legal.
"A corporation created by Indiana can transact business in Ohio only with the consent, express or implied, of the latter state. 38 U. S. 13 Pet. 519. This consent may be accompanied by such conditions as Ohio may think fit to impose, and these conditions must be deemed valid and effectual by other states and by this Court, provided they are not repugnant to the Constitution or laws of the United States or inconsistent with those rules of public law which secure the jurisdiction and authority of each state from encroachment by all others or that principle of natural justice which forbids condemnation without opportunity for defense. "
Neither did Insurance Company v. Morse, supra, undertake to decide what are the powers of the State of Wisconsin, in revoking a license previously granted to an insurance company, for what causes or upon what grounds its action in that respect may be based. No such question arose upon the facts or was argued by counsel or referred to in the opinion of the Court.
The case now before us does present that point, and with distinctness.
The complainant alleges that a license had been granted to the Continental Insurance Company, upon its executing an agreement that it would not remove any suit against it from the tribunal of the state to the federal courts; that in the case of Drake it did, on the tenth day of March, 1875, transfer his suit from the Winnebago Circuit of the state to the circuit court of the United States; that Drake thereupon demanded that the defendant, who is Secretary of State of Wisconsin, should revoke and annul its license in accordance with the provisions of the act of 1872; that it is insisted that he has power to do so summarily, without notice or trial; that the complainant is fearful that he will do so, and that it will be done simply and only for the reason that the complainant transferred to the federal court the case of Drake, as above set forth.
The cases of Bank of Augusta v. Earle, Ducat v. Chicago, Paul v. Virginia, and Lafayette Insurance Co. v. French establish the principle that a state may impose upon a foreign corporation, as a condition of coming into or doing business within its territory, any terms, conditions, and restrictions it may think proper that are not repugnant to the Constitution or laws of the United States. The point is elaborated at great length by Chief Justice Taney in the case first named, any by MR. JUSTICE FIELD in the case last named.
The correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by a state is always revocable. Rector v. Philadelphia, 24 How. 300; People v. Roper, 55 N.Y. 629; People v. Commissioners, 47 N.Y. 50. The power to revoke can only be restrained, if at all, by an explicit contract upon good consideration to that effect. Humphrey v. Pegues, 16 Wall. 244; Tomlinson v. Jessup, 15 Wall. 454.
A license to a foreign corporation to enter a state does not involve a permanent right to remain, subject to the laws and Constitution of the United States. Full power and control over its territories, its citizens, and its business belong to the state.
If the state has the power to do an act, its intention or the reason by which it is influenced in doing it cannot be inquired into. Thus, the pleading before us alleges that the permission of the Continental Insurance Company to transact its business in Wisconsin is about to be revoked for the reason that it removed the case of Drake from the state to the federal courts.
If the act of an individual is within the terms of the law, whatever may be the reason which governs him or whatever may be the result, it cannot be impeached. The acts of a state are subject to still less inquiry, either as to the act itself or as to the reason for it. The State of Wisconsin, except so far as its connection with the Constitution and laws of the United States alters its position, is a sovereign state possessing all the powers of the most absolute government in the world.
The argument that the revocation in question is made for an unconstitutional reason cannot be sustained. The suggestion confounds an act with an emotion or a mental proceeding, which is not the subject of inquiry in determining the validity of a statute. An unconstitutional reason or intention is an impracticable suggestion which cannot be applied to the affairs of life. If the act done by the state is legal, is not in violation of the Constitution or laws of the United States, it is quite out of the power of any court to inquire what was the intention of those who enacted the law.
In all the cases where the litigation of a state has been declared void, such legislation has been based upon an act or a fact which was itself illegal. Thus, in Crandall v. Nevada, 6 Wall. 35, a tax was imposed and collected upon passengers in railroad and stage companies.
In Almy v. State of California, 24 How. 169, a stamp duty was imposed by the legislature upon bills of lading, for gold or silver transported from that state to any port or place out of the state.
In Brown v. State of Maryland, 12 Wheat. 419, a license, at an expense of $50, was required before an importer of goods could sell the same by the bale, package, or barrel.
In Henderson v. Mayor of New York, 92 U. S. 265, the statute required the master to give a bond of $300 for each passenger, conditioned that he should not become a public charge within four years, or to pay the sum of $1.50.
In the Passengers' Case, 7 How. 572, the requirement was of a like character.
In all these cases it was the act or fact complained of that was the subject of judicial injury, and upon the act was the judgment pronounced.
The statute of Wisconsin declares that if a foreign insurance company shall remove any case from its state court into the federal courts contrary to the provisions of the act of 1870, it shall be the duty of the secretary of state immediately to cancel its license to do business within the state. If the state has the power to cancel the license, it has the power to judge of the cases in which the cancellation shall be made. It has the power to determine for what causes and in what manner the revocation shall be made.
It is said that we thus indirectly sanction what we condemn when presented directly, to-wit that we enable the State of Wisconsin to enforce an agreement to abstain from the federal courts. This is an "inexact statement." The effect of our decision in this respect is that the state may compel the foreign company to abstain from the federal courts or to cease to do business in the state. It gives the company the option. This is justifiable because the complainant has no constitutional right to do business in that state; that state has authority at any time to declare that it shall not transact business there. This is the whole point of the case, and without reference to the injustice, the prejudice, or the wrong that is alleged to exist, must determine the question. No right of the complainant under the laws of Constitution of the United States by its exclusion from the state is infringed, and this is what the state now accomplishes. There is nothing, therefore, that will justify the interference of this Court.
Decree reversed, and cause remanded with instructions to dismiss the bill.
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE SWAYNE and MR. JUSTICE MILLER, dissenting.
I feel obliged to dissent from the judgment of the Court in this case.
Though a state may have the power, if it sees fit to subject its citizens to the inconvenience, of prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose unconstitutional conditions upon their doing so. Total prohibition may produce suffering and may manifest a spirit of unfriendliness towards sister states, but prohibition, except upon conditions derogatory to the jurisdiction and sovereignty of the United States, is mischievous and productive of hostility and disloyalty to the general government. If a state is unwise enough to legislate the one, it has no constitutional power to legislate the other. The citizens of the United States, whether as individuals or associations, corporate or incorporate, have a constitutional right in proper cases to resort to the courts of the United States. Any agreement, stipulation, or state law precluding them from this right is absolutely void -- just as void as would be an agreement not to resort to the state courts for redress of wrongs, or defense of unjust actions, or as would be a city ordinance prohibiting an appeal to the state courts from municipal prosecutions.
The questions arising upon these Wisconsin laws have already been considered by this Court in the case of Insurance Company v. Morse, and we held and adjudged that the agreement which the company was compelled to make not to remove a suit into the federal courts was absolutely void. In principle, this case does not differ a particle from that. The state legislation of 1872, under which and in obedience to which the license of the appellees is threatened to be revoked is just as unconstitutional and just as void as the agreement was in the former case.
sound. It is just as unsound as it would be for me to say that because I may without cause refuse to receive a man as my tenant, therefore I may make it a condition of his tenancy that he shall take the life of my enemy or rob my neighbor of his property.
The conditions of society and the modes of doing business in this country are such that a large part of its transactions is conducted through the agency of corporations. This is especially true with regard to the business of banking, insurance, and transportation. Individuals cannot safely engage in enterprises of this sort, requiring large capital. They can only be successfully carried out by corporations, in which individuals may safely join their small contributions without endangering their entire fortunes. To shut these institutions out of neighboring states would not only cripple their energies, but would deprive the people of these states of the benefits of heir enterprise. The business of insurance particularly can only be carried on with entire safety by scattering the risks over large areas of territory, so as to secure the benefits of the most extended average. The needs of the country require that corporations -- at least those of a commercial or financial character -- should be able to transact business in different states. If these states can, at will, deprive them of the right to resort to the courts of the United States, then in large portions of the country the government and laws of the United States may be nullified and rendered inoperative with regard to a large class of transactions constitutionally belonging to their jurisdiction.
The whole thing, however free from intentional disloyalty, is derogatory to that mutual comity and respect which ought to prevail between the state and general governments, and ought to meet the condemnation of the courts whenever brought within their proper cognizance.
In my judgment, the decree for injunction ought to be affirmed.

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This is an action for breach of contract and bad faith refusal to pay insurance benefits. Plaintiff originally filed this case in the Orangeburg County Court of Common Pleas. The defendant removed the case based on diversity of citizenship.
Defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on the basis that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e). Once the moving party makes the showing, however, the opposing party must respond to the motion with "specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. ( quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In this case, the defendant "bears the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick County Commrs, 845 F.2d 716, 718 (4th Cir. 1991) ( citing Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986)). If the defendant carries this burden, "the burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 ( citing Anderson, 477 U.S. at 247-48).
Moreover, "once the moving party has met its burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue for trial." Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The nonmoving party may not rely on beliefs, conjecture, speculation, of conclusory allegations to defeat a motion for summary judgment. Id. and Doyle v. Sentry, Inc., 877 F. Supp. 1002, 1005 (E.D. Va 1995). Rather, the nonmoving party is required to submit evidence of specific facts by way of affidavits ( see Fed.R.Civ.P. 56(e)), depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. Baber, 977 F.2d 872, citing Celotex Corp., supra.
Summary judgment should only be granted in those cases where there is no issue of fact involved and inquiry into the facts is not necessary to clarify application of the law. McKinney v. Board of Trustees Maryland Community College, 995 F.2d 92 (4th Cir. 1991). A district court should not grant summary judgment "unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under the circumstances." Campbell v. Hewitt, Coleman Assoc., 21 F.3d 52, 55 (4th Cir. 1994).
Generally, the issue whether a contract has been breached is a question of fact. See 23 Williston on Contracts, § 63:15;King v. North River Ins. Co., 278 S.C. 411, 297 S.E.2d 637 (1982); Watson v. American Colony Insurance Co. of New York, 179 S.C. 149, 183 S.E. 692 (1936). Issues of bad faith normally present jury issues. Smith v. Maryland Casualty Ins. Co., 742 F.2d 167, 168 (4th Cir. 1984), citing Tyger River Pine Co. v. Maryland Casualty Co., 170 S.C. 286, 293, 170 S.E. 346 348 (1933).
Based on the briefs and information submitted, I find as a matter of law that there are genuine issues of material fact. At this stage, it is not the Court's function to weigh the evidence, but rather to determine whether there is a genuine issue of fact which justifies a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
For the foregoing reasons, the undersigned DENIES the defendant's motion for summary judgment.