Opinion · Supreme Court of the United States

Nynex Corp. v. Discon, Inc.

525 U.S. 128

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1998-12-14
Topic
general

How later courts describe this case

  • holding that a successful § 1 claim "must allege and prove harm, not just to a single competitor, but to the competitive process"
  • holding that per se rule in boycott context is limited to cases involving horizontal agreements among direct competitors
  • concluding that plaintiff “must allege and prove harm, not just to a single competitor, but to the competitive process, i.e., to competition itself”
  • holding that the plaintiff “could [not] succeed on [its Section 2 conspiracy to monopolize claim] without prevailing on its § 1 claim”
  • holding that the per se rule does not apply to a vertical agreement between a buyer and supplier, and noting that "precedent limits the per se rule in the boycott context to cases involving horizontal agreements among direct competitors"
  • stating that agreements that do not harm the competitive process do not amount to a conspiracy to monopolize
  • explaining that unless a defendants’ actions "harmed the competitive process, they did not amount to a conspiracy to monopolize” (emphasis added)
  • explaining that unless the defendants’ actions “harmed the competitive process, they did not amount to a conspiracy to monopolize” (emphasis added)

Citator

UpLaw has not yet analyzed Nynex Corp. v. Discon, Inc.. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
339 opinions

Headnotes

  1. Antitrust & Competition Law — Per Se Group Boycott Rule The per se rule that group boycotts are illegal does not apply to a single buyer's decision to purchase goods or services from one supplier rather than another, even where that decision cannot be justified in terms of ordinary competitive objectives. 525 U.S. 128 (1998)
  2. Antitrust & Competition Law — Per Se Rules — Reasonable Restraints Section 1 of the Sherman Act prohibits only agreements that unreasonably restrain trade; certain categories of agreements are unlawful per se because they so often prove harmful to competition and so rarely prove justified that no proof of anticompetitive effect in the particular circumstances is required. 525 U.S. 128 (1998)
  3. Antitrust & Competition Law — Group Boycotts The per se rule in the boycott context is limited to cases involving horizontal agreements among direct competitors; the rule does not apply where the case concerns only a vertical agreement and a vertical restraint, such as depriving a supplier of a potential customer. 525 U.S. 128 (1998)
  4. Antitrust & Competition Law — Vertical Restraints A vertical restraint is not illegal per se unless it includes some agreement on price or price levels. 525 U.S. 128 (1998)
  5. Antitrust & Competition Law — Per Se Rules — Improper Conduct Applying the per se rule to a buyer's decision that, though not made for competitive reasons, forms part of a regulatory fraud would improperly transform business behavior that is wrongful for various reasons into treble-damages antitrust cases and would discourage firms from changing suppliers even where the competitive process itself suffers no harm. 525 U.S. 128 (1998)
  6. Antitrust & Competition Law — Injury to Competition Consumer injury that flows not from a less competitive market but from the lawful exercise of monopoly power combined with a deception practiced upon a regulatory agency does not establish the competitive harm required to invoke the per se group boycott rule. 525 U.S. 128 (1998)
  7. Antitrust & Competition Law — Freedom to Switch Suppliers The freedom to switch suppliers lies close to the heart of the competitive process the antitrust laws seek to encourage. 525 U.S. 128 (1998)
  8. Antitrust & Competition Law — Anticompetitive Motive A defendant's special motive to drive a firm from the market, such as a desire to prevent that firm from revealing improper conduct to regulators, does not convert the defendant's purchasing decision into a boycott under the Court's precedents and does not warrant application of the per se rule. 525 U.S. 128 (1998)
  9. Antitrust & Competition Law — Injury to Competition — Presumption Allegations that a buyer is the largest purchaser of the relevant services in the State and that only one supplier competed for its business do not warrant a presumption of consequent harm to the competitive process itself, absent a horizontal agreement; the per se rule does not apply in the boycott context without such an agreement. 525 U.S. 128 (1998)
  10. Antitrust & Competition Law — Injury to Competition — Single Competitor An allegation of harm to a single competitor does not automatically show injury to competition; the presence of other actual or potential competitors that could provide similar checks on price and services argues against the likelihood of anticompetitive harm. 525 U.S. 128 (1998)
  11. Antitrust & Competition Law — Conspiracy to Monopolize Purchasing practices that do not harm the competitive process do not amount to a conspiracy to monopolize in violation of § 2 of the Sherman Act; a plaintiff cannot succeed on a § 2 conspiracy to monopolize claim based on those same practices without prevailing on its § 1 claim. 525 U.S. 128 (1998)
NYNEX CORP. v. DISCON, INC.,525 U.S. 128(1998)
119 S.Ct. 493
NYNEX CORP. ET AL.v. DISCON, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 96-1570.
Argued October 5, 1998
Decided December 14, 1998
Respondent Discon, Inc., sold "removal services" —i.e., the removal of obsolete telephone equipment — through petitioner Materiel Enterprises Company, a subsidiary of petitioner NYNEX Corporation, for the use of petitioner New York Telephone Company, another NYNEX subsidiary. After Materiel Enterprises began buying such services from ATT Technologies, rather than from Discon, Discon filed this suit, alleging that petitioners and others had engaged in unfair, improper, and anticompetitive activities. The District Court dismissed the complaint for failure to state a claim. The Second Circuit affirmed with an exception, holding that certain of Discon's allegations — that Materiel Enterprises paid ATT Technologies more than Discon would have charged because it could pass the higher prices on to New York Telephone, which could then pass them on to telephone consumers through higher regulatory-agency-approved service charges; that Materiel Enterprises would receive a year-end rebate from ATT Technologies and share it with NYNEX; that Materiel Enterprises would not buy from Discon because it refused to participate in this fraudulent scheme; and that Discon therefore went out of business — stated a claim under § 1 of the Sherman Act. Noting that the ordinary procompetitive rationale for discriminating in favor of one supplier over another was lacking in this case, and that, in fact, the complaint alleged that Materiel Enterprises' buying decision was anticompetitive, the court held that Discon may have alleged a cause of action under,inter alia, the antitrust rule set forth inKlor's,Inc. v.Broadway-Hale Stores, Inc.,359 U.S. 207,212, that group boycotts are illegalper se. For somewhat similar reasons the court believed the complaint stated a valid conspiracy to monopolize claim under § 2 of the Act.Held:Theper segroup boycott rule does not apply to a single buyer's decision to buy from one seller rather than another. Pp. 133-140.
(a) Precedent limits theper serule in the boycott context to cases involving horizontal agreements among direct competitors. See,e.g.,BusinessElectronics Corp. v.Sharp Electronics Corp.,485 U.S. 717,734. Theper serule is inapplicable here because this case concerns only a vertical agreement and a vertical restraint, in the form of depriving a supplier of a potential customer. Nor is there a special featurePage 129that could distinguish this case from such precedent. Although petitioners' behavior hurt consumers by raising telephone service rates, that consumer injury naturally flowed not so much from a less competitive market for removal services, as from the exercise of market power lawfully in the hands of a monopolist, New York Telephone, combined with a deception worked upon the regulatory agency that prevented the agency from controlling the exercise of monopoly power. Applying theper serule here would transform cases involving business behavior that is improper for various reasons into treble-damages antitrust cases and would discourage firms from changing suppliers — even where the competitive process itself does not suffer harm. Moreover, special anticompetitive motive cannot be found in Discon's claim that Materiel Enterprises hoped to drive Discon from the market lest Discon reveal its behavior to New York Telephone or to the relevant regulatory agency. That motive does not turn Materiel Enterprises' actions into a "boycott" under this Court's precedents, and Discon's reasons why the motive's presence should lead to the application of theper serule are unconvincing. Finally, Discon's allegations that New York Telephone (through Materiel Enterprises) was the largest buyer of removal services in the State, and that only ATT Technologies competed for New York Telephone's business, are not sufficient to warrant application of aper sepresumption of consequent harm to the competitive process itself, absent a horizontal agreement. Discon's complaint suggests that other actual or potential competitors might have provided roughly similar checks upon "equipment removal" prices and services with or without Discon, which argues against the likelihood of anticompetitive harm. Pp. 133-139.
(b) Unless petitioners' purchasing practices harmed the competitive process, they did not amount to a conspiracy to monopolize in violation of § 2, and Discon cannot succeed on this claim without prevailing on its § 1 claim. Pp. 139-140.
(c) Petitioners' argument that Discon's complaint should be dismissed because it fails to allege that petitioners' purchasing decisions harmed the competitive process itself lies outside the questions presented for certiorari, which were limited to the application of theper serule, and cannot be raised in this Court. P. 140.
93 F.3d 1055, vacated and remanded.

BREYER, J., delivered the opinion for a unanimous Court.
James R. Youngargued the cause for petitioners. With him on the briefs wereJohn Thorne, Richard G. Taranto, Guy Miller Struve, James D.Liss, andVincent T. Chang.Page 130Deputy Solicitor General Wallaceargued the cause for the United States asamicus curiae. With him on the brief wereSolicitor GeneralWaxman, Assistant Attorney General Klein, Deputy Assistant AttorneyGeneral Melamed, Barbara McDowell, Catherine G. O'Sullivan, Mark S.Popofsky, andDebra A. Valentine.Lawrence C. Brownargued the cause for respondent. With him on the brief wasJohn H. Ring III.fn*
JUSTICE BREYERdelivered the opinion of the Court.
In this case we ask whether the antitrust rule that group boycotts are illegalper seas set forth inKlor's, Inc. v.Broadway-Hale Stores,Inc.,359 U.S. 207,212(1959), applies to a buyer's decision to buy from one seller rather than another, when that decision cannot be justified in terms of ordinary competitive objectives. We hold that theper segroup boycott rule does not apply.
I
Before 1984 American Telephone and Telegraph Company (ATT) supplied most of the Nation's telephone service and, through wholly owned subsidiaries such as Western Electric, it also supplied much of the Nation's telephone equipment. In 1984 an antitrust consent decree took ATT out of thelocaltelephone service business and left ATT along-distancetelephone service provider, competing with such firms as MCI and Sprint. SeeM. Kellogg, J. Thorne, P. Huber, Federal Telecommunications Law § 4.6, p. 221Page 131(1992). The decree transformed ATT's formerly owned local telephone companies into independent firms. At the same time, the decree insisted that those local firms help assure competitive long-distance service by guaranteeing long-distance companies physical access to their systems and to their local customers. SeeUnited Statesv.American TelephoneTelegraph Co.,552 F. Supp. 131,225,227(DC 1982), aff'dsub nom.Marylandv.United States,460 U.S. 1001(1983). To guarantee that physical access, some local telephone firms had to install new call-switching equipment; and to install new call-switching equipment, they often had to remove old call-switching equipment. This case involves the business of removing that old switching equipment (and other obsolete telephone equipment) — a business called "removal services."

Discon, Inc., the respondent, sold removal services used by New York Telephone Company, a firm supplying local telephone service in much of New York State and parts of Connecticut. New York Telephone is a subsidiary of NYNEX Corporation. NYNEX also owns Materiel Enterprises Company, a purchasing entity that bought removal services for New York Telephone. Discon, in a lengthy detailed complaint, alleged that the NYNEX defendants (namely, NYNEX, New York Telephone, Materiel Enterprises, and several NYNEX related individuals) engaged in unfair, improper, and anticompetitive activities in order to hurt Discon and to benefit Discon's removal services competitor, ATT Technologies, a lineal descendant of Western Electric. The Federal District Court dismissed Discon's complaint for failure to state a claim. The Court of Appeals for the Second Circuit affirmed that dismissal with an exception, and that exception is before us for consideration.

The Second Circuit focused on one of Discon's specific claims, a claim that Materiel Enterprises had switched its purchases from Discon to Discon's competitor, ATT Technologies,Page 132as part of an attempt to defraud local telephone service customers by hoodwinking regulators. According to Discon, Materiel Enterprises would pay ATT Technologies more than Discon would have charged for similar removal services. It did so because it could pass the higher prices on to New York Telephone, which in turn could pass those prices on to telephone consumers in the form of higher regulatory-agency-approved telephone service charges. At the end of the year, Materiel Enterprises would receive a special rebate from ATT Technologies, which Materiel Enterprises would share with its parent, NYNEX. Discon added that it refused to participate in this fraudulent scheme, with the result that Materiel Enterprises would not buy from Discon, and Discon went out of business.

These allegations, the Second Circuit said, state a cause of action under § 1 of the Sherman Act, though under a "different legal theory" from the one articulated by Discon.93 F.3d 1055,1060(1996). The Second Circuit conceded that ordinarily "the decision to discriminate in favor of one supplier over another will have a pro-competitive intent and effect."Id., at 1061. But, it added, in this case, "no such pro-competitive rationale appears on the face of the complaint."Ibid. Rather, the complaint alleges Materiel Enterprises' decision to buy from ATT Technologies, rather than from Discon, was intended to be, and was, "anti-competitive."Ibid. Hence, "Discon has alleged a cause of action under, at least, the rule of reason, and possibly under theperserule applied to group boycotts inKlor's, if the restraint of trade `"has no purpose except stifling competition."'"Ibid. (quotingOreckCorp. v.Whirlpool Corp.,579 F.2d 126,131(CA2) (en banc) (in turn quotingWhite Motor Co. v.United States,372 U.S. 253,263(1963)), cert. denied,439 U.S. 946(1978)). For somewhat similar reasons the Second Circuit believed the complaint stated a valid claim of conspiracy to monopolize under § 2 of the Sherman Act. See93 F.3d, at 1061-1062.Page 133

The Second Circuit noted that the Courts of Appeals are uncertain as to whether, or when, theper segroup boycott rule applies to a decision by a purchaser to favor one supplier over another (which the Second Circuit called a "two-firm group boycott"). CompareCom-Tel, Inc. v.DuKane Corp.,669 F.2d 404,411-413, and nn. 13, 16 (CA6 1982);CascadeCabinet Co. v.Western Cabinet Millwork Inc.,710 F.2d 1366,1370-1371(CA9 1983), withConstruction Aggregate Transport, Inc. v.Florida RockIndustries, Inc.,710 F.2d 752,776-778(CA11 1983). We granted certiorari in order to consider the applicability of theper segroup boycott rule where a single buyer favors one seller over another, albeit for an improper reason.
II
As this Court has made clear, the Sherman Act's prohibition of "[e]very" agreement in "restraint of trade,"26 Stat. 209, as amended,15 U.S.C. § 1, prohibits only agreements thatunreasonablyrestrain trade. SeeBusiness Electronics Corp. v.Sharp Electronics Corp.,485 U.S. 717,723(1988) (citingNational Collegiate Athletic Assn. v.Board of Regents of Univ. of Okla.,468 U.S. 85,98(1984));Standard OilCo. of N.J. v.United States,221 U.S. 1,59-62(1911); 2P. Areeda H. Hovenkamp, Antitrust Law ¶ 320b, p. 49 (1995). Yet certain kinds of agreements will so often prove so harmful to competition and so rarely prove justified that the antitrust laws do not require proof that an agreement of that kind is, in fact, anticompetitive in the particular circumstances. SeeState Oil Co. v.Khan,522 U.S. 3,10(1997);Northwest Wholesale Stationers, Inc. v.Pacific Stationery PrintingCo.,472 U.S. 284,289-290(1985); 2 Areeda Hovenkamp,supra, ¶ 320b, at 49-52. An agreement of such a kind is unlawfulper se. See,e.g., United Statesv.Socony-Vacuum Oil Co.,310 U.S. 150,218(1940) (finding horizontal price-fixing agreementper seillegal);Dr. MilesMedical Co. v.John D. Park Sons Co.,220 U.S. 373,408(1911) (finding vertical price-fixing agreementper seillegal);Page 134Palmerv.BRG of Ga., Inc.,498 U.S. 46,49-50(1990)(per curiam)(finding horizontal market divisionper seillegal).

The Court has found theper serule applicable in certain group boycott cases. Thus, inFashion Originators' Guild of America, Inc. v.FTC,312 U.S. 457(1941), this Court considered a group boycott created by an agreement among a group of clothing designers, manufacturers, suppliers, and retailers. The defendant designers, manufacturers, and suppliers had promised not to sell their clothes to retailers who bought clothes from competing manufacturers and suppliers. The defendants wanted to present evidence that would show their agreement was justified because the boycotted competitors used "pira[ted]" fashion designs.Id., at 467. But the Court wrote that "it was not error to refuse to hear the evidence offered" — evidence that the agreement was reasonable and necessary to "protect . . . against the devastating evils" of design pirating — for that evidence "is no more material than would be the reasonableness of the prices fixed" by a price-fixing agreement.Id., at 467-468.

InKlor'sthe Court also applied theper serule. The Court considered a boycott created when a retail store, Broadway-Hale, and 10 household appliance manufacturers and their distributors agreed that the distributors would not sell, or would sell only at discriminatory prices, household appliances to Broadway-Hale's small, nearby competitor, namely, Klor's.359 U.S., at 208-209. The defendants had submitted undisputed evidence that their agreement hurt only one competitor (Klor's) and that so many other nearby appliance-selling competitors remained that competition in the marketplace continued to thrive.Id., at 209-210. The Court held that this evidence was beside the point. The conspiracy was "not to be tolerated merely because the victim is just one merchant."Id., at 213. The Court thereby inferred injury to the competitive process itself from the nature of the boycott agreement. And it forbade, as a matterPage 135of law, a defense based upon a claim that only one small firm, not competition itself, had suffered injury.

The case before us involvesKlor's. The Second Circuit did not forbid the defendants to introduce evidence of "justification." To the contrary, it invited the defendants to do so, for it said that the "perserule" would apply only if no "pro-competitive justification" were to be found.93 F.3d, at 1061; cf. 7 P. Areeda H. Hovenkamp, Antitrust Law ¶ 1510, p. 416 (1986) ("Boycotts are said to be unlawful per se but justifications are routinely considered in defining the forbidden category"). Thus, the specific legal question before us is whether an antitrust court considering an agreement by a buyer to purchase goods or services from one supplier rather than another should (after examining the buyer's reasons or justifications) apply theper serule if it finds no legitimate business reason for that purchasing decision. We conclude no boycott-relatedper serule applies and that the plaintiff here must allege and prove harm, not just to a single competitor, but to the competitive process,i.e., to competition itself.

Our conclusion rests in large part upon precedent, for precedent limits theper serule in the boycott context to cases involving horizontal agreements among direct competitors. The agreement inFashionOriginators' Guildinvolved what may be called a group boycott in the strongest sense: A group of competitors threatened to withhold business from third parties unless those third parties would help them injure their directly competing rivals. AlthoughKlor'sinvolved a threat made by asinglepowerful firm, it also involved a horizontal agreement among those threatened, namely, the appliance suppliers, to hurt a competitor of the retailer who made the threat. See359 U.S., at 208-209; see also P. Areeda L. Kaplow, Antitrust Analysis: Problems,Text, and Cases 333 (5th ed. 1997) (defining paradigmatic boycott as "collective action among a group of competitorsPage 136that may inhibit the competitive vitality of rivals"); 11 H. Hovenkamp, Antitrust Law¶ 1901e, pp. 189-190 (1998). This Court emphasized inKlor'sthat the agreement at issue was
"not a case of a single trader refusing to deal with another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship. Alleged in this complaint is a wide combination consisting of manufacturers, distributors and a retailer."359 U.S., at 212-213(footnote omitted).


This Court subsequently pointed out specifically thatKlor'swas a case involving not simply a "vertical" agreement between supplier and customer, but a case that also involved a "horizontal" agreement among competitors. SeeBusiness Electronics,485 U.S., at 734. And in doing so, the Court held that a "vertical restraint is not illegalper seunless it includes some agreement on price or price levels."Id., at 735-736. This precedent makes theper serule inapplicable, for the case before us concerns only a vertical agreement and a vertical restraint, a restraint that takes the form of depriving a supplier of a potential customer. See 11 Hovenkamp,supra,¶ 1902d, at 198.

We have not found any special feature of this case that could distinguish it from the precedent we have just discussed. We concede Discon's claim that the petitioners' behavior hurt consumers by raising telephone service rates. But that consumer injury naturally flowed not so much from a less competitive market for removal services, as from the exercise of market power that islawfullyin the hands of a monopolist, namely, New York Telephone, combined with a deception worked upon the regulatory agency that prevented the agency from controlling New York Telephone's exercise of its monopoly power.

To apply theper serule here — where the buyer's decision, though not made for competitive reasons, composesPage 137part of a regulatory fraud — would transform cases involving business behavior that is improper for various reasons, say, cases involving nepotism or personal pique, into treble-damages antitrust cases. And thatper serule would discourage firms from changing suppliers — even where the competitive process itself does not suffer harm. Cf.Pollerv.Columbia Broadcasting System, Inc.,368 U.S. 464,484(1962) (Harlan, J., dissenting) (citingPackard Motor Car Co. v.Webster Motor Car Co.,243 F.2d 418,421(CADC 1957)).

The freedom to switch suppliers lies close to the heart of the competitive process that the antitrust laws seek to encourage. Cf.Standard Oil,221 U.S., at 62(noting "the freedom of the individual right to contract when not unduly or improperly exercised [is] the most efficient means for the prevention of monopoly"). At the same time, other laws, for example, "unfair competition" laws, business tort laws, or regulatory laws, provide remedies for various "competitive practices thought to be offensive to proper standards of business morality." 3 P. Areeda H. Hovenkamp, Antitrust Law ¶ 651d, p. 78 (1996). Thus, this Court has refused to applyper sereasoning in cases involving that kind of activity. SeeBrooke Group Ltd. v.Brown Williamson Tobacco Corp.,509 U.S. 209,225(1993) ("Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws"); 3 Areeda Hovenkamp,supra, ¶ 651d, at 80 ("[I]n the presence of substantial market power, some kinds of tortious behavior could anticompetitively create or sustain a monopoly, [but] it is wrong categorically to condemn such practices . . . or categorically to excuse them").

Discon points to another special feature of its complaint, namely, its claim that Materiel Enterprises hoped to drive Discon from the market lest Discon reveal its behavior to New York Telephone or to the relevant regulatory agency. That hope, says Discon, amounts to a special anticompetitive motive.Page 138

We do not see how the presence of this special motive, however, could make a significant difference. That motive does not turn Materiel Enterprises' actions into a "boycott" within the meaning of this Court's precedents. Seesupra, at 135-136. Nor, for that matter, do we understand how Discon believes the motive affected Materiel Enterprises' behavior. Why would Discon's demise have made Discon's employees less likely, rather than more likely, to report the overcharge/rebate scheme to telephone regulators? Regardless, aper serule that would turn upon a showing that a defendant not only knew about but also hoped for a firm's demise would create a legal distinction — between corporate knowledge and corporate motive — that does not necessarily correspond to behavioral differences and which would be difficult to prove, making the resolution of already complex antitrust cases yet more difficult. We cannot find a convincing reason why the presence of this special motive should lead to the application of theper serule.

Finally, we shall consider an argument that is related tangentially to Discon'sper seclaims. The complaint alleges that New York Telephone (through Materiel Enterprises) was the largest buyer of removal services in New York State, see Amended Complaint ¶¶ 2, 29, 99, App. 75, 83, 110, and that only ATT Technologies competed for New York Telephone's business, see ¶¶ 2, 26, 29,id., at 75, 82-83. One might ask whether these accompanying allegations are sufficient to warrant application of aKlor's-type presumption of consequent harm to the competitive process itself.

We believe that these allegations do not do so, for, as we have said, seesupra, at 135-136, antitrust law does not permit the application of theper serule in the boycott context in the absence of a horizontal agreement, though in other contexts, say, vertical price fixing, conduct may fall within the scope of aper serule not at issue here, see,e.g.,Dr. Miles Medical Co.,220 U.S., at 408. The complaintPage 139itself explains why any such presumption would be particularly inappropriate here, for it suggests the presence of other potential or actual competitors, which fact, in the circumstances, could argue against the likelihood of anticompetitive harm. The complaint says, for example, that New York Telephone itself was a potential competitor in that New York Telephone considered removing its equipment by itself, and in fact did perform a few jobs itself. See ¶ 27, App. 83. The complaint also suggests that other nearby small local telephone companies needing removal services must have worked out some way to supply them. See ¶ 53,id., at 91. The complaint's description of the removal business suggests that entry was easy, perhaps to the point where other firms, employing workers who knew how to remove a switch and sell it for scrap, might have entered that business almost at will. Cf. ¶ 27,id., at 83. To that extent, the complaint suggests other actual or potential competitors might have provided roughly similar checks upon "equipment removal" prices and services with or without Discon. At the least, the complaint provides no sound basis for assuming the contrary. Its simple allegation of harm to Discon does not automatically show injury to competition.
III
The Court of Appeals also upheld the complaint's charge of a conspiracy to monopolize in violation of § 2 of the Sherman Act. It did so, however, on the understanding that the conspiracy in question consisted of the very same purchasing practices that we have previously discussed. Unless those agreements harmed the competitive process, they did not amount to a conspiracy to monopolize. We do not see, on the basis of the facts alleged, how Discon could succeed on this claim without prevailing on its § 1 claim. See 3 Areeda Hovenkamp,supra, ¶ 651e, at 81-82. Given our conclusion that Discon has not alleged a § 1per seviolation, we think it prudent to vacate this portion of the CourtPage 140of Appeals' decision and allow the court to reconsider its finding of a § 2 claim.
IV
Petitioners ask us to reach beyond the "per se" issues and to hold that Discon's complaint does not allege anywhere that their purchasing decisions harmed the competitive process itself and, for this reason, it should be dismissed. They note that Discon has not pointed to any paragraph of the complaint that alleges harm to the competitive process. This matter, however, lies outside the questions presented for certiorari. Those questions were limited to the application of theperserule. For that reason, we believe petitioners cannot raise that argument in this Court.
V
For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Page 141
  1. Briefs ofamici curiaeurging reversal were filed for the American Automobile Manufacturers Association byStephen M. Shapiro, Roy T.Englert, Jr., Donald M. Falk, andMark Slywynsky; for the Business Roundtable byThomas B. LearyandRobert C. Weinbaum; for GTE Corporation byChristopher Landau, Paul T. Cappuccio, William P. Barr, andM. EdwardWhelan III; and for the Association of the Bar of the City of New York byRichard M. Steuer.Mark R. PattersonandStephen F. Rossfiled a brief for Law Professors asamici curiaeurging affirmance. ↩