in Distributor’s purchasing Subsidiary’s units, Calnetics nonetheless may not recover from Distributor for sales lost to an innocent competitor (Delta).[1] The requirement that causation be proved for damages means that Calnetics may not recover on a calculation of lost sales in a given year exceeding sales made by Subsidiary to Distributor in that same year. Thus, for example, damages in 1970 may not be based on lost sales in excess of 2024 units—the number of units Subsidiary sold to Distributor.
VW and Subsidiary make an alternative argument that, even if causation was proved, the evidence of damages was too unreliable and speculative to allow recovery. Except as to the causation problems discussed supra, we believe that a discussion of the adequacy of evidence of damages is premature.[2]
The directed verdict was error. We vacate the judgment based on it, and remand the § 7 claim for a jury trial.
| C. | Summary Judgments in Favor of Calnetics on VW’s and Subsidiary’s Counterclaims. |
The defendants’ counterclaims had all been predicated on the commission arrangement between Christiansen (Distributor’s service manager) and Calnetics. In entering summary judgment in favor of Calnetics, the court found:
“* * * That the decision by defendant Volkswagen Pacific, Inc. [the Distributor] to discontinue the promotion of the * * * [Subsidiary] air-conditioning systems was not causally related in any way to the entering into a sales commission agreement between plaintiff and * * * [Christiansen].”
As was the case with Distributor’s decision to drop Calnetics as a supplier in 1970,[3] the facts surrounding the decision to drop Subsidiary in 1968 are complex and subject to various interpretations. The district court itself was apparently confused by the contradictory claims and conflicting evidence of the opposing parties. It was led into making two totally inconsistent findings as to the causal relationship between the agreement and Calnetics’ sales. The counterclaim finding quoted above cannot be reconciled with finding No. 31, entered on August 1, 1972, when the court dismissed Calnetics’ Sherman Act claims:[4]
“* * * As a direct and proximate consequence of the agreement between Christiansen and plaintiff and the payments made to Christiansen in accordance with its terms, competitive suppliers of air conditioners for Volkswagen automobiles, including [VW], were excluded during the 1969 model year from selling air conditioners.”
Considering the trial court’s own difficulty with this important factual dispute and viewing the evidence in a light most favorable to the parties opposing the summary judgment (VW and Subsidiary), we conclude that a genuine issue as to causation exists.
It is undisputed that Christiansen, who was Distributor’s service manager from 1967 to November 1969, entered into a written agreement in the fall of 1968 providing inter alia that his newly-formed company, RWC Sales Corporation, would receive a three percent commission on all sales of Calnetics’ units to Distributor. However, the exact sequence of events in the summer and fall of 1968 and the effect of the commission agreement are not so clearly established in the documents on file that a jury trial is unnecessary. Although credible evidence suggests that the agreement was not consummated until fall, 1968, and not until after the Calnetics order was placed by
- ↑ Delta has not been charged with nor connected in any way with a conspiracy in restraint of trade. Delta has instituted its own antitrust suit against defendants based on an alleged unlawful foreclosure from the air-conditioner market.
- ↑ Plaintiffs may base damages figures on 1969 model-year sales, even assuming arguendo that they were “illegal” sales. See Part I. D., infra.
- ↑ See Part I. A., supra.
- ↑ See Part I. D., infra.
