Perkins v. Standard Oil Company of California (395 U.S. 642)/Dissent Marshall

Mr. Justice MARSHALL, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.

I agree with the Court that the judgment of the Court of Appeals cannot be affirmed. But I cannot agree either with the broad, and somewhat vague, ground of decision chosen by the Court or with the conclusion that the jury verdict in this case must be reinstated.

As I view it, this case poses only a very narrow question. Respondent discriminated in price in favor f Signal Oil & Gas Co. Through a chain of majority-owned subsidiaries, Signal marketed this gasoline at stations which competed with petitioner's outlets. Since we are dealing with a chain of majority-owned subsidiaries, it seems quite likely that the discriminatory price given Signal would have a vital effect on the pricing decisions of the stations which eventually marketed Signal's gasoline. Even if the lower price were not passed on to the company marketing the gasoline, that company would be more willing to accept losses in a protracted price war if it knew that its 'grandfather' corporation were making some extra, and partially off-setting, profits. For this reason, and since in interpreting the antitrust laws '(w)e must look at the economic reality of the relevant transactions,' United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 208, 89 S.Ct. 361, 367, 21 L.Ed.2d 344 (1968), I would treat Signal, the beneficiary of the discriminatory price, as if it were directly competing with petitioner's stations. Respondent's price discrimination, on this view, in effect injured competition with a company which 'knowingly receive(d) the benefit of such discrimination,' Clayton Act § 2(a), 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a), and the case could properly go to the jury for determination of 'causation' and damages. Accordingly, I see no reason to intimate, even by indirection, what the result would be if wholly independent firms had intervened in the distribution chain. I would therefore explicitly limit the holding to the facts of the case before us.

Moreover, I see no reason for the Court to undertake the difficult task of sorting out all the other issues in this case. The Court of Appeals based its reversal solely on its view of the 'fourth line injury' problem. Other issues were treated on the assumption that the case would have to go back for trial. The record in this case is long and complicated and we have no idea what view the Court of Appeals would have taken about respondent's other allegations of error had the major prop for its decision been removed. The law under the Robinson-Patman Act is convoluted enough without the addition of numerous explicit and implicit holdings which may come back to bedevil us in future years. I would leave these other problems unresolved so that the Court of Appeals can look at them anew in the context of this Court's holding on the major issue of general importance presented by the petition for certiorari.