SIMPSON, Circuit Judge:

I. PRELIMINARY STATEMENT

This appeal has generated a record of giant proportions. We are presented with 37 volumes of transcript, nine appendix volumes of abbreviated transcript, six briefs totalling 409 pages (with 83 pages of appendices), over 1600 exhibits, and considerable correspondence to this Court from the parties. We have done our best to pare down the issues and arguments presented on appeal, and the discussion and disposition of those issues and arguments, to the greatest extent possible consistent with reasoned resolution of the controlling questions presented. The result is an opinion still regrettably overlong.

II. NATURE AND DISPOSITION OF THE CASE

Plaintiff-appellee Heatransfer Corporation filed a private antitrust suit, pursuant to Section 4 of the Clayton Act, 15 U.S. Code, Section 15, against defendants-appellants Volkswagenwerk Aktiengesellschaft (VWAG); its wholly-owned subsidiary, Volkswagen of America, Inc. (VWoA); and two wholly-owned subsidiaries of VWoA, Volkswagen South Central Distributor, Inc. (VWSC) and Volkswagen Products Corporation (VPC). Heatransfer's complaint alleged multiple violations of Sections 1 and 2 of the Sherman Act, 15 U.S. Code, Sections 1-2, and Section 7 of the Clayton Act, 15 U.S. Code, Section 18.

The case was tried before a six-person jury, and was submitted for special verdict under Rule 49(a), Federal Rules of Civil Procedure, with 15 written Questions to be answered by the jury.

The jury's findings, in response to the written questions submitted may be summarized as follows:

(1) The provisions of the Volkswagen dealer and distributor franchise agreements constitute tying agreements, in violation of Section 1 of the Sherman Act.

(2) VWAG, VWoA (or VWSC), and VPC each (a) engaged in a conspiracy, combination, or agreement to restrain trade unreasonably, in violation of Section 1 of the Sherman Act; and (b) conspired or attempted to monopolize, or monopolized, the sale of air-conditioners for Volkswagen, Porsche, and Audi automobiles throughout the world, in violation of Section 2 of the Sherman Act.

(3) The acquisition by VWoA of Inter Continental Motors Corp. may substantially lessen competition in the sale of air-conditioners for Volkswagen, Porsche, and Audi automobiles, in violation of Section 7 of the Clayton Act.

(4) Delanair Engineering Co. was not a failing company, and VWoA's acquisition of Delanair may substantially lessen competition in the sale of air-conditioners for Volkswagen, Porsche, and Audi automobiles, in violation of Section 7 of the Clayton Act.

(5) Heatransfer sustained injury to its business or property that was directly and proximately caused by one or more of the violations found, and its damages were $5 million.

The damage award was trebled pursuant to 15 U.S.C. § 15, and an attorney's fee of $350,000 was added to the judgment, making a total judgment of $15,350,000.

III. THE FACTS

The facts as we state them were largely uncontroverted at trial, although sometimes subject to contrary inferences. As to facts in dispute, we state them in a manner consistent with the jury's Special Verdict, and as supported thereby.

A. Background

The distribution system of Volkswagen products in the United States is essentially VWoA. VWoA buys automobiles and parts from VWAG for resale in this country. During the relevant time period, VWoA sold four basic types of Volkswagen vehicles: Type I — the "Beetle"; Type II — the "VW bus", a large station wagon, which is also available as a camper; Type III — a squareback, which is also available as a small station wagon; and Type IV — a larger, more powerful, version of the Type III. All of the above models have air-cooled engines mounted in the rear of the car, although in 1973, the Type III was replaced by the Dasher, which has a front-mounted, water-cooled engine.

Since 1969, VWoA has also imported the Porsche 911 — an expensive sports car manufactured by Porsche; and the Porsche 914, an economy sports car manufactured jointly by VWAG and Porsche. Both Porsche models have air-cooled engines. In 1970, VWoA began importing the Audi, a medium-sized car with a front-mounted, liquid cooled engine.

From its inception in 1956 until the early 1960s VWoA distributed the products it imported to 14 independent Volkswagen distributors in the continental United States. These distributors were independently owned wholesale operations which purchased Volkswagen, Porsche, and Audi cars, parts, and accessories from VWoA, and purchased some parts and accessories from other suppliers as well. The distributors resold these products to the automobile dealers. Beginning in the 1960s, VWoA began purchasing these distributorship operations, and by the time of trial of this case it had acquired 8 of the original 14 distributorships.

By 1968, VWoA was selling more than a half million new Volkswagens per year in the United States, which amounted to just over 55% of all imported car sales, and 5.5% of the total United States car market. By 1970, Volkswagen sales mounted to 6.8% of total automobile sales in the United States, with approximately 570,000 Volkswagens sold that year. Its percentage of the foreign car market for 1970 was 46.2%. By 1973, due to much stronger competition from other importers, VWoA (Volkswagen, Porsche and Audi) maintained 31.3% of the imported car market, and the Volkswagen percentage of the total car market had fallen to 4.1%. These figures were still very impressive considering the increase of sales among domestic and foreign manufacturers of cars in direct competition with VWoA imports.

None of these cars imported by VWoA had factory-installed air-conditioners. Since air-conditioning was becoming almost a standard item in the United States by the end of the 1960s, there appeared to be a waiting market for an air-conditioner that would function satisfactorily in the VWoA imports.

VWAG first attempted in 1973 to install factory air-conditioning in automobiles for export to the United States. One thousand Audi cars were equipped with factory installed air-conditioners before being shipped to the United States. The results were not impressive. T.R., pp. 3674-3676.

B. Automobile Air-Conditioning

The basic components of an automobile air-conditioner are: the compressor; a pump, powered by the automobile engine, which circulates the coolant; the condenser, which uses the car's airflow, supplied principally by the car's movement and the radiator fan, to condense the coolant gas into liquid form; and the evaporator, where the liquid evaporates and is blown as cold air into the car.

In water-cooled cars, the condenser is placed in front of the radiator, so that outside air, "ramming" through the front of the car, can help to supply the condenser with its need for a flow of air coming over it. The main airflow, however, is supplied by the radiator fan.

In the air cooled, rear engine Beetle Volkswagen, this technique was not practicable. Ramming of outside air over the condenser would be impossible with the condenser in the rear with the engine. And, of course there was no radiator fan to provide the necessary constant airflow.

To overcome these problems, Don P. Dixon, founder of the DPD Manufacturing Company, designed a condenser that would fit behind the spare tire in the front compartment of the Beetle, and a separate fan that would provide independent airflow for the condenser. He also designed a compressor to fit in the rear engine compartment next to the engine, and an evaporator to fit partially in the front end of the car and partially under the dashboard in the passenger compartment. Because of the scattered placement of the component parts of the air-conditioning unit, it was necessary to run hoses and electrical wires underneath the floorboard to make the component parts function as a working unit.

Delanair Engineering Company, which became VWoA's approved supplier in 1963, had also designed a compressor to fit in the rear engine compartment next to the engine. The condenser system designed by Delanair, however, was markedly different from the DPD front-located condenser system. Delanair designed two condensers which were to be placed under the rear of the car. They were connected by tubing with a propeller fan blowing air over one of the condensers. The evaporator was placed entirely under the dash in the passenger compartment. The main defect with the Delanair unit was that the condensers were constantly exposed to damage because of their proximity to the road surface. Aside from the difficulties associated with the DPD and the Delanair units, both offered at least some solution to the Beetle's lack of a radiator fan by providing independent airflow within the condenser system.

In 1963, Henry Willard Lende, Jr., formed a company, Heatransfer Corporation, for the purpose of selling the DPD units to Volkswagen dealers. Lende testified at trial that the main obstacle to his sales efforts were the problems encountered installing the unit:

"Those fellows [working for the dealers] didn't know how to install an air conditioner, because it was a new product, and it was an involved complicated product. You had mechanics putting mechanical things in a car, and then you had some chemistry in it, and you had to know how to put freon in, and you had to pull the air out of this, it's called pulling a vacuum before you put the freon, because if you have air in with the freon the thing won't work. You had to use a vacuum pump to pull all the air out, and you had to use gauges to put the freon in. You had to do a little electrical work, and then check it and know how to troubleshoot it.

But before I would get out the door, he would say, `Does my mechanic know how to fix this thing? Sure, it runs now, but if that customer comes back in, what are we going to do, I'm the fellow that's in the soup.'

So, I teach the fellow how to troubleshoot and service that air conditioner, if it came in and wasn't working, what to look for first, was it out of freon, had a belt that slipped. Then, I go up and teach the salesmen how to sell it. They didn't know what knob did what, whether it was high, medium low fan, or what, and they didn't know what the thermostat did and all these things. It was a brand new industry. And if you didn't do this, didn't get the whole dealership squared away, they couldn't do a job of selling it." T.R., pp. 141-142.

With Lende's Heatransfer Corporation as its sales company, DPD's sales increased from 200 VW Beetle air-conditioning units in 1963 to 7000 units in 1968. During 1968, however, Lende learned of another unit being sold to Volkswagen dealers with the VWoA stamp of approval (manufactured by Overseas Motors Corporation of Fort Worth, Texas — later Delanair Engineering Company), which was selling far more units to Volkswagen dealers than was DPD. Approval by VWoA meant that VWoA would purchase large quantities of the approved Delanair unit and sell them to Volkswagen dealers. Efforts by Lende and Dixon to secure VWoA approval of the DPD unit were unsuccessful.

Since a distributorship allowed the dealer the opportunity of ordering all of his parts and accessories from one central location rather than from a number of suppliers, Lende recognized that it would be advantageous to approach these distributors, rather than the individual dealers, concerning the purchase of DPD units. Because his unit was not approved by VWoA, he met with opposition, aggravated by VWoA's promotion of the Delanair unit.

In 1968, however, Lende's efforts were rewarded when the second largest seller of air-conditioners among the Volkswagen distributors, International Auto Sales in New Orleans, agreed to purchase units from DPD. Lende found this to be a particularly significant and encouraging development because it was the first time in his experience that a Volkswagen distributor had been willing to abandon an approved VWoA part or accessory for one that had not been approved. To Lende this indicated that other distributors might be willing to consider an alternative to the Delanair unit.

After securing the New Orleans business for DPD, Lende severed his relationship with that company. He had been developing his own concept of an air-conditioner for the Beetle, and decided that the time was ripe to produce and market that concept.

C. The Heatransfer Unit

In the Heatransfer unit all major component parts were located in the rear of the vehicle by placing the condenser and the evaporator in a box which was installed behind the back seat of the Beetle with a small opening in the floor pan behind the back seat which allowed the condenser to remove heat and further allowed the condenser-evaporator module to be connected by hoses to the engine compartment where the compressor was located. The unit was designed to feed cold air into the car's passenger compartment in a constant flow, along the roofline from the back of the car to the front of the car. The new unit was particularly distinctive for two reasons. It was relatively easy to install as compared with other units, and the location of the condenser reduced significantly the chance of damage to it.

As Lende began marketing Heatransfer units in early 1969, he approached Guenter Kittel, at the time VWoA's Vice President of Parts (he is presently President of a VWAG affiliate), concerning approval of the Heatransfer unit. Because Delanair was having severe problems at about this time, Lende had grounds for hope that his unit would get VWoA approval. At this same time, Lende was also soliciting Intercontinental Motors in San Antonio, Texas, the largest seller of air-conditioners among VWoA distributors. Intercontinental Motors agreed to purchase and sell the Heatransfer unit in June of 1969 even though it had not received the VWoA stamp of approval. By the end of the summer Heatransfer had sold 1800 units to Intercontinental.

At this time, Delanair was losing ground on other fronts. Delanair lost the business of the New Orleans distributorship to DPD, and the business of the California distributorship, Volkswagen Pacific, to Meierline, a California company. In the summer of 1969, distributor orders for the Delanair dropped drastically. VWoA had projected sales of 13,000 for the months of July, August, and September, but, in actuality, sales for those months amounted to 1280, 372 and 26 units respectively. Plaintiff's Exhibit (PX) — 7.

Delanair's English-based parent company, Delaney-Gallay, Ltd., decided not to expend the effort to rehabilitate Delanair, but rather to sell it. On September 29, 1969, it was announced that VWoA had acquired Delanair for a new wholly-owned subsidiary which VWoA named Volkswagen Products Corporation (VPC). During the three months following the purchase of Delanair, VPC sales increased markedly in comparison with Delanair's preceding three months. In October 1, 1,399 units were sold, in November, 1,193 units, and in December, 999 units.

In October of 1969, VWoA acquired the largest American Volkswagen distributorship, Intercontinental Motors of San Antonio, and renamed it Volkswagen South Central Distributor, Inc. (VWSC). Before the acquisition Heatransfer had had a 65%-35% advantage over Delanair in terms of unit sales by Intercontinental to dealers. By the end of the first year after the acquisition, the advantage had been reversed, 63%-37%, in favor of VPC. There were no sales by Heatransfer to VWSC of any Heatransfer units after June, 1971, when their relationship was terminated.

The last Volkswagen distributor in the United States to do business with Heatransfer was Import Motors in Grand Rapids, Michigan, but sales fell when the distributor refused to install Heatransfer units in Volkswagens at its port facility. The relationship with Import Motors was terminated in June, 1972. After this time, Heatransfer continued to do business with franchised dealers on a direct basis, but the lack of access to distributors made it increasingly difficult to sell to VWoA's franchised dealers.

Lende next attempted to develop the "after market" for Volkswagen air-conditioners. This term is used for the market consisting of cars originally sold by dealers without air-conditioners. There was little competition in this market for air-conditioners for Volkswagens and Lende received favorable response from both Sears Roebuck Company and J. C. Penney Company, two large retailing chains. The after market, however, was still not sufficient to sustain Heatransfer.

Lende also tried to push the Heatransfer unit on the foreign market, and met with some initial success. For example, he went to Brazil in late 1969, and secured an order for a shipment of Heatransfer units. After correspondence from VWAG to the purchaser, however, no additional Brazilian orders were forthcoming. We reproduce that correspondence in the margin.

The best foreign market for Volkswagen air-conditioners appeared to be Japan, where the Heatransfer unit could fit Japan's right-hand drive vehicles without any major design change. In 1971, the Volkswagen importers in Japan bought 400 units from Heatransfer, and this amount increased to 1200 units in 1972. In 1973, however, sales dropped by 50% when the Japanese importer began purchasing VPC's newly designed right-hand drive unit.

Because of the continuing marketing problems, Lende and his associates decided in 1974 to liquidate Heatransfer Corporation.

IV. UNLAWFUL TYING

A tying arrangement, generally stated, is an agreement by which one party agrees to sell a product (the tying product), but only upon condition that the buying party also purchases another product (the tied product) which the buyer would ordinarily not purchase, where the effect is to substantially lessen competition. Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545, 549-550 (1958). In Northern Pacific, the Supreme Court stated:

[Tying agreements] are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a "not insubstantial" amount of interstate commerce is affected. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Cf. United States v. Paramount Pictures, 334 U.S. 131, 156-159, 68 S.Ct. 915, 928-929, 92 L.Ed. 1260; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236. Of course where the seller has no control or dominance over the tying product so that it does not represent an effectual weapon to pressure buyers into taking the tied item any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.

356 U.S. at 6-7, 78 S.Ct. at 518-519, 2 L.Ed.2d at 550.

The Court then determined what was to be considered sufficient economic power of the seller to make the tying agreement an illegal one:

While there is some language in the Times-Picayune [ Publishing Co. v. U.S., 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277], opinion which speaks of "monopoly power" or "dominance" over the tying product as a necessary precondition for application of the rule of per se unreasonableness to tying arrangements, we do not construe this general language as requiring anything more than sufficient economic power to impose an appreciable restraint on free competition in the tied product (assuming all the time, of course, that a "not insubstantial" amount of interstate commerce is affected).

Id. at 11, 78 S.Ct. at 521, 2 L.Ed.2d at 553. See Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5th Cir. 1965).

Thus, for a tying arrangement to be a violation of Section 1 of the Sherman Act (as well as Section 3 of the Clayton Act, although a violation of that section of the Clayton Act is not presented to us on appeal) it must be shown that (1) the seller has sufficient economic power over the tying product, e. g., monopoly, market dominance, etc., to induce his customer, through economic leverage, to purchase the tied product along with the tying product, and (2) a not insubstantial amount of commerce in the tied product is restrained as a result. See Sulmeyer v. Coca Cola Company, 515 F.2d 835, 844 (5th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341.

In answers to written questions, the jury in the present case found, from what it believed to be a preponderance of the evidence, that the provisions of the Volkswagen dealer and distribution franchise agreements constituted tying agreements under Section 1 of the Sherman Act. It further found that such agreements were not necessary to preserve the goodwill of the defendants.

It is well established that tying arrangements are illegal per se. See, e. g., Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); Miller v. Granados, 529 F.2d 393 (5th Cir. 1976); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368 (5th Cir. 1977). That is to say, there are "certain categories of business arrangements . . [which] exhibit a high likelihood of anticompetitive impact and offer virtually no prospect at all of enhancing competition. With respect to such arrangements, antitrust plaintiffs need not demonstrate unreasonableness; the conduct constitutes a per se violation of the Sherman Act. . . . The per se label indicates that a plaintiff need not demonstrate that the effects of the tie are unreasonable. Indeed, not only is the plaintiff relieved from establishing that the effects are unreasonable, but in addition the defendant is not free to demonstrate that the effects are reasonable or even affirmatively desirable". Kentucky Fried Chicken, supra, at 374-375. Of course this is not to say that the plaintiff is relieved from establishing that a tie-in has actually occurred. Lawful arrangements by any other name do not thereby become unlawful.

Appellants assert that there is nothing in the best efforts clauses in their franchise agreements on which to base a finding of an illegal per se tying agreement. Those agreements contain provisions requiring the franchisee to use his "best efforts" to promote Volkswagen automobiles, parts, and accessories. Looking at the "best efforts" clauses in isolation, as appellants would have us do, we would tend to agree with this view. But our duty is to look at the circumstances surrounding the use of these clauses to determine if violations of the antitrust laws occurred. "The presence of the illegal condition may be inferred from an extrinsic course of conduct supplementing the written contract". Advance Business Systems Supply Co. v. S.C.M. Corporation, 415 F.2d 55, 64 (4th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101.

Initially, we reject appellant's argument that the court's charge to the jury allowed a finding of tying on the basis of the best efforts provisions standing alone. We view the court's tying arrangement instruction as sufficient to direct the jury to consider the means by which the provisions were enforced.

It is obvious that VWoA had sufficient economic power in the tying product, Volkswagen automobiles, to "strongly urge" Volkswagen distributors and dealers to purchase VWoA approved parts, the tied product. It is also obvious that more than an insubstantial amount of interstate commerce was affected. See Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 501-502, 89 S.Ct. 1252, 1258, 22 L.Ed.2d 495, 503-504 (1969).

We held in a recent case that "it is not enough to show that the seller has sufficient economic power and that two products were purchased together. In addition, it must be shown that the purchaser was coerced into purchasing an unwanted product." Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1327 (5th Cir. 1976). But Leasco involved a suit by franchisees against a franchisor claiming antitrust violations. In that type of action, a party to a contract is alleging that the contract is being illegally enforced against it or is illegal on its face. Courts are understandably reluctant to find such contracts to be illegal absent a fairly strong showing of coercion. In cases like the one at bar, on the other hand, an independent supplier to the franchisees asserts harm to it because of antitrust violations by the franchiser. The fact of coercion appears less important in this situation then the fact of foreclosure. If franchisees are coerced or "persuaded" to buy goods which they otherwise would not buy, with the result being tremendous lessening of the market in which a competitor sells his product, such a showing is sufficient to submit the question of a Section 1 antitrust violation to the jury.

We think the evidence as a whole, including correspondence and memoranda from Guenter Kittel, Vice President of VWoA at the time, and VPC records, provided ample basis for a jury to find that distributors and dealers, as a result of the best efforts clauses as enforced, were urged to stock the Delanair/VPC air-conditioner, even though the franchise agreement, on its face, allowed the purchase of other units. We indicate the source of this evidence in the margin. It is too voluminous to reproduce in full. That same evidence also appears to us a sufficient basis upon which a jury could reject the appellants' defense that the tying arrangement was necessary to preserve the goodwill of defendants.

It is of course not our holding that all best efforts clauses are violations per se of the antitrust laws, but we find that an inquiry into the circumstances surrounding the best efforts clauses and their implementation in the present case sufficiently raised in this respect significant questions for jury determination. We view the record as supporting the jury's finding that the best efforts clauses here, as implemented, were tying arrangements of the type which the antitrust laws were designed to prevent, and, as such, were per se violations of Section 1 of the Sherman Act.

V. CONSPIRACY IN RESTRAINT OF TRADE

In answer to written interrogatories the jury found that VWoA, VWAG and VPC were part of a conspiracy to restrain trade in violation of Section 1. We have already determined that there was sufficient evidence for the jury to find that the franchise agreement best efforts clauses of VWoA were tying arrangements that unreasonably restrained trade. In our discussion of the acquisition of Delanair, infra, we, likewise, find sufficient evidence to uphold the jury's finding of an antitrust violation which tended to restrain trade. These are two clear indicia of conspiring to restrain trade. In addition, the proof that VPC and VWoA arranged to pre-air condition a substantial percentage of cars at port installation centers before delivering those cars to dealers was evidence of a conspiracy to restrain trade. Further the evidence showed that certain dealers would not carry the Heatransfer unit because it was not approved by VWoA for reasons, it appeared, other than performance. Officials of VWAG and of VPC, the evidence showed, met several times to coordinate the development of the Volkswagen vehicles and the VPC air-conditioning unit. The competition was excluded from these meetings and was denied the information disclosed there.

Additionally, several memoranda were submitted in evidence, from which the jury could find attempts to restrain trade. However in view of the fact that we have found ample evidence in the record to show that the best efforts clause, as implemented, was a per se violation, it is unnecessary to further analyze the evidence to determine whether there was shown to have been an unreasonable restraint of trade. This is so since a per se violation is ipso facto an unreasonable restraint of trade.

VI. RELEVANT MARKET OFFENSES

A. Relevant Market

In United States v. E. I. duPont de Nemours Co., 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264 (1956), the Supreme Court stated that "[s]ection 2 requires the application of a reasonable approach in determining the existence of monopoly power . . . ." Thus, before it can be determined whether a monopoly exists it must be determined what the relevant market in the present case is.

Relevant market is essentially a question of fact, so that findings concerning this subject should be overturned on appeal only if clearly erroneous, or where there is a dearth of evidence to support the finding below. See Yoder Brothers, Inc. v. California-Florida Plant Corp., 537 F.2d 1347, 1366 (5th Cir. 1976); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 849 (5th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341; Telex Corporation v. International Business Machines Corp., 510 F.2d 894, 915 (10th Cir. 1975) cert. dismissed, 423 U.S. 802, 96 S.Ct. 8, 46 L.Ed.2d 244.

Relevant market may be defined on the basis of geographical boundaries of the market, Indiana Farmer's Guide Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356 (1934), and on the basis of product differentiation, United States v. E. I. duPont de Nemours Co., supra. We are concerned with the latter on this appeal. The Supreme Court has stated that "[t]he outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves constitute product markets for antitrust purposes. United States v. E. I. duPont de Nemours Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, [877-878], 1 L.Ed.2d 1057, [1066-1068]. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors." Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523-1524, 8 L.Ed.2d 510, 535-536 (1962).

If the relevant market is, as appellants argue, air-conditioners for all automobiles or, at the very least, for small foreign automobiles, the violations found by the jury, based on the relevant market encompassing only VWoA imported cars, must be overturned. If, however, appellees submitted sufficient evidence to support their view of what comprised the relevant market, we should not disturb that finding. We will attempt a brief review of the evidence submitted.

It seems from the record that the major competitors for the Volkswagen air-conditioning market were DPD, Meierline, Heatransfer, and Delanair/VPC. Indeed, this was found to be so when appellants conducted a study of Delanair shortly before that company was acquired by appellants. See Plaintiff's Exhibit 7, Acquisition Audit of Delanair Engineering Company, p. 7. With few exceptions, these companies produced air-conditioning units almost exclusively for VWoA import cars, concentrating on this market because of the distinct engineering problems associated with the Volkswagen imports. Further, up until the time of trial in this case, these four competitors were the sole suppliers of air-conditioners for VWoA.

While Heatransfer developed an air-conditioning unit for the Opel, it never sold units to any company save VWoA and VWAG, or their distributors. Meierline and DPD did sell units to other automobile manufacturers besides VWoA, but these sales were insignificant compared to sales to VWoA. During its first three years in business, Delanair sold some 2,670 air-conditioning units for installation in vehicles other than VWoA imports. This amounted to about 10% of Delanair's total sales during that period. By its third year in operation, however, from the time it first became profitable, Delanair "sold air-conditioners almost exclusively for installation in Volkswagen vehicles". Plaintiff's Exhibit 7, p. 5. VPC, although it made prototypes for other automobiles, has never actually sold air-conditioners to any other manufacturers. All these things are supportive, vis-a-vis Brown Shoe, of the jury's finding as to the relevant market.

Appellants argue that such cases as Telex Corp. v. International Business Machines Corp., supra, Twin City Sportservice, Inc. v. Charles O. Finley Co., 512 F.2d 1264 (9th Cir. 1975), and ITT Corp. v. GTE Corp., 518 F.2d 913 (9th Cir. 1975), support their argument that the relevant market should be broader than that determined by the jury. Those cases deal with the adaptability or substitutability of products, and contain nothing that persuades us to overturn the finding of the reply to Question 6 that the relevant market in considering Section 2 of the Sherman Act was the manufacture and sale of air-conditioners for only Volkswagen, Porsche and Audi automobiles throughout the world. We have carefully perused the briefs in this case and the relevant records and exhibits. As we understand the points of contention, we cannot find, as a matter of law, that the jury's factual finding as to relevant market was not supported by the evidence. See Sulmeyer v. Coca Cola Co., supra, 515 F.2d at 849.

B. Unlawful Monopolization, Attempt to Monopolize, and Conspiracy to Monopolize

Having approved the jury's finding as to the relevant market, we consider the proof as to the unlawful monopolization, attempt to monopolize, and conspiracy to monopolize charges. Under Section 2 of the Sherman Act the offense of monopoly has two elements: "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident". United States v. Grinnell Corporation, 384 U.S. 563, 570-571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778, 786. Once the relevant market has been determined, the existence of monopoly power "ordinarily may be inferred from the predominant share of the market". Id. at 571, 86 S.Ct. at 1704, 16 L.Ed.2d at 786. The evidence in the record appears to support appellee's estimate that appellants' market control was between 71%-76% during the years 1971-1973. See Plaintiff's Exhibits 9-10; R. pp. 1907-1912, 1929-1930. Such a share of the relevant market is sufficient to establish a monopoly power. See United States v. E. I. duPont de Nemours Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); United States v. United Show Machinery Corp., 110 F. Supp. 295 (D.Mass. 1953), aff'd per curiam, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954).

The willful acquisition or maintenance of the monopoly power can be demonstrated by "conduct designed to barricade access to markets or inhibit production . . ." Woods Exploration Producing Company, Inc. v. Aluminum Company of America, 438 F.2d 1286, 1307 (5th Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736. We have already upheld the jury's verdict finding the existence of a tying agreement. This in itself is substantial evidence of narrowing access and prohibiting production. Our affirmance, infra, of the violation of Section 7 of the Clayton Act, through the acquisition of Delanair and Intercontinental Motors, is further supportive of the finding by the jury that the monopoly power was willfully attained.

C. Acquisition of Delanair and Intercontinental Motors

The jury found that appellants violated Section 7 of the Clayton Act by acquiring Delanair and Intercontinental Motors. A violation of Section 7 occurs when a corporation acquires the whole or any part of another corporation also engaged in commerce, where "the effect of such acquisition may be substantially to lessen competition, or tend to create a monopoly."

The Supreme Court has stated that "[d]etermination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition `within the area of effective competition'. Substantiality can be determined only in terms of the market affected." United States v. E. I. duPont de Nemours Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057, 1067 (1957). We have already upheld the jury finding that relevant market in this case was air-conditioning units for Volkswagen vehicles. Our present task is only to determine whether there was sufficient evidence upon which a jury could find that the effect of the acquisition may have been substantially to lessen competition, or to tend to create a monopoly.

Volkswagen air-conditioning units were sold mainly through the efforts of VWoA and the regional distributors. By acquiring Delanair, one of the manufacturers competing for VWoA business, it was shown that VWoA, while not formally forbidding dealers and distributors from buying other air-conditioning units, had severely limited the chance of VWoA approval of any other unit, thus curtailing the marketability of those other units. It was further shown that following the acquisition of Delanair, that company, doing business as VPC, substantially increased its sales in a short period of time. See Plaintiff's Exhibits, 7, 8, 618A. Also, for times relevant to this trial, testimony and evidence was presented, already discussed, which supported a finding of VPC's subsequent dominance of the market to well over 70%. After the acquisition of Intercontinental Motors, sales of the VPC unit increased markedly (see discussion under The Facts, Part III of this opinion, supra), to the detriment of other suppliers. The composite effect of this evidence, together with other evidence substantiating the Section 7 violation, persuades us that there was sufficient evidence for the jury to conclude — as it did — that the acquisitions substantially foreclosed competition. See Ford Motor Company v. United States, 405 U.S. 562, 92 S.Ct. 1142, 31 L.Ed.2d 492 (1972).

VII. FAILING COMPANY DEFENSE

The jury rejected the appellants' defense that Delanair was a failing company and hence that the acquisition of it by VWoA did not violate Section 7, pursuant to International Shoe Co. v. FTC, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431 (1930). In International Shoe, the corporation involved had its "resources so depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure . . . ." Id. at 302, 50 S.Ct. at 93, 74 L.Ed. at 443. But in Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969), the Court added a further requirement to use of the failing company doctrine:

"The failing company doctrine plainly cannot be applied in a merger or in any other case unless it is established that the company that acquires the failing company or brings it under dominion is the only available purchaser. For if another person or group could be interested, a unit in the competitive system would be preserved and not lost to monopoly power."

Id. at 138, 89 S.Ct. at 931, 22 L.Ed.2d at 156.

Delaney-Gallay, the parent company of Delanair, made an attempt to sell Delanair to DPD, but that plan fell through. Subsequently, of course, Delanair was purchased by VWoA. There is nothing in the record that supports the theory that Delanair would collapse but for the acquisition. Indeed, the major reason for getting rid of Delanair appeared to be the desire of Delanair-Gallay to get it off the company books before the end of the fiscal year. This rush factor also discounts viewing VWoA as the only possible purchaser. The evidence disclosed no affirmative effort to sell Delanair on the open market.

We find nothing which persuades us to reverse the jury's verdict for appellee in this respect. Indeed, we find ample support in the record for the verdict's rejection of the failing company defense.

VIII. CAUSATION AND DAMAGES

A. Causation

Initially, we address the question of causation, for affirmance of the award of damages to appellee certainly cannot stand absent a finding that appellants' actions were the proximate cause of the damages sustained. The record supports the jury's finding that Heatransfer sustained injury to its business caused by appellants' violations of the antitrust laws, already discussed at length in this opinion. Appellants attempted to show that any damages suffered by appellee were suffered solely because of various shortcomings on the part of appellee, including less than adequate product, lack of perseverance, and haphazard sales efforts. But these contentions were amply rebutted in each particular by appellee's proof. Therefore, no basis exists for us to determine as a matter of law that the evidence did not support the jury's finding of causation. See Keogh v. Chicago N.W. Ry. Co., 260 U.S. 156, 165, 43 S.Ct. 47, 50, 67 L.Ed. 183, 188-189 (1922); M. C. Manufacturing Co. v. Texas Foundaries, Inc., 517 F.2d 1059 (5th Cir. 1975), cert. denied 424 U.S. 968, 96 S.Ct. 1466, 47 L.Ed.2d 736.

B. Damages

Appellee presented two theories at trial in an attempt to project its damages as a result of lost sales. Method I assumed that, absent any antitrust violations, Heatransfer would have had the same sales through the damage period, relative to VPC sales, as it experienced in the pre-damage, or base, period, relative to Delanair/VPC. The trial court instructed the jury to disregard Method I, for VPC sales would have included presumptively the sales lost by Heatransfer, Meierline, and DPD, because of appellants' antitrust violations.

Method II, the theory upon which the jury based its findings as to damages, relied on four assumptions relative to the finding of lost sales: (1) that plaintiff suffered damages; (2) that the damage period extended from November 1969, through December 1973; (3) that the base period, that is, the period when there was no impediment to competition, extended from June 1969, through October 1969; and (4) that Heatransfer would have produced and marketed air-conditioning units for Volkswagen Types 2, 3 and 4 and for the Audi during the damage period. Three further assumptions upon which Method II was premised, relative to the actual calculation of damages, were as follows: (1) Delanair sales would have declined at a constant rate but for the anti-competitive activity; (2) the relative market shares of Heatransfer, DPD, and Meierline would have remained constant; and (3) Heatransfer would have captured the same market shares for units manufactured for other types of Volkswagen vehicles.

This Court stated in Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690, 695 (5th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1412, 47 L.Ed.2d 349: "We recognize that leniency should be permitted in showing damages in private antitrust actions, however, a damage assessment based wholly on speculation and guesswork is improper." We do not find these assumptions so speculative as to render the damages judgment based upon them unfounded. All such assumptions were supported by the record as exemplified by the testimony and exhibits. Aside from the margin references and the evidence previously discussed, this opinion would be extended unnecessarily if we explored the evidence in detail and at further depth. We add simply that there was ample evidence to dispel any concern that the jury's determination, based on the given assumptions, was the result of guesswork and speculation.

Having concluded that the assumptions upon which the jury based its findings of damages were valid, it is appropriate to direct our scrutiny to that finding itself. Utilizing Method II, the already mentioned appellee's expert witness testified that he projected that Heatransfer would have sold 87,000 units over the damage period absent the antitrust violations. These sales, he testified, would have yielded approximately $2.1 million in net profits before taxes for Heatransfer. Thus, $2.1 million in profits were lost because of the antitrust violations. Further, because of loss of those net profits, the expert witness calculated that there would be a concomitant loss to capital value of approximately $3.5 million. It was from these figures that the jury fashioned its damage award of $5 million.

In Bigelow v. R. K. O. Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946), the Court observed that a plaintiff in a treble damage case need not prove damages with the exactness which would have been possible under freely competitive conditions. "The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created". Id. at 265, 66 S.Ct. at 580, 90 L.Ed. at 660. Once it has been shown that damages have resulted, it is only necessary that plaintiff present reasonable evidence as to the amount of those damages. Such a showing was made in the present case, and we are unwilling to substitute our concept of damages for the judgment made by the jury and upheld by the trial court. See Hobart Brothers Co. v. Malcolm T. Gilliland, Inc., 471 F.2d 894, 902 (5th Cir. 1973), cert. denied, 412 U.S. 923, 93 S.Ct. 2736, 37 L.Ed.2d 150.

In a recent Supreme Court decision, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), the question presented to the Court was "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." Id. at 484, 97 S.Ct. at 695, 50 L.Ed.2d at 709. In Brunswick, the petitioner, one of the two largest manufacturers and distributors of bowling equipment in the United States, found that it was owed more than $400 million for equipment supplied on extended credit terms. To get necessary cash, the corporation began to repossess some equipment and sell it to third parties. Where such sales were not feasible, petitioner would take over the bowling centers and operate them itself. Six of the bowling centers that petitioner began operating were in competition with respondents' bowling centers.

Respondents sued, alleging that the acquisitions by petitioner might substantially lessen competition or tend to create a monopoly in violation of Section 7 of the Clayton Act. Respondents' damage theory put forth the argument that but for Brunswick's acquisition of the six bowling centers, those centers would have gone out of business, leaving their customers to respondents. Respondents argued therefore that their injury was measured by the profits lost due to petitioner's acquisition of the six bowling centers.

The trial court allowed this theory to be submitted to the jury as a basis for finding damages. The Court of Appeals found no basic fault with the theory of damages but remanded stating that respondent must prove that the bowling centers would, in fact, have failed.

The Supreme Court saw some difficulty in "intermeshing" Section 7, which prohibits certain acts with a potential to cause harm, with Section 4, which attempts to remedy such harms.

Plainly, to recover damages respondents must prove more than that petitioner violated § 7, since such proof establishes only that injury may result. Respondents contend that the only additional element they need demonstrate is that they are in a worse position than they would have been had petitioner not committed those acts. The Court of Appeals agreed, holding compensable any loss "causally linked" to "the mere presence of the violator in the market." NBO Industries Treadway Companies v. Brunswick Corp., 523 F.2d [262], at 272-273 [3 Cir.]. Because this holding divorces antitrust recovery from the purposes of the antitrust laws without a clear statutory command to do so, we cannot agree with it.

Every merger of two existing entities into one, whether lawful or unlawful, has the potential for producing economic readjustments that adversely affect some persons. But Congress has not condemned mergers on that account; it has condemned them only when they may produce anticompetitive effects. Yet under the Court of Appeals' holding, once a merger is found to violate § 7, all dislocations caused by the merger are actionable, regardless of whether those dislocations have anything to do with the reason the merger was condemned. This holding would make § 4 recovery entirely fortuitous, and would authorize damages for losses which are of no concern to the antitrust laws.

Id. at 486-487, 97 S.Ct. at 696-697, 50 L.Ed.2d at 711.

The Supreme Court thus held that for respondents to recover treble damages because of a Section 7 violation, they must prove more than a causal link to an illegal presence in the market. They 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 defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation". Id. at 489, 97 S.Ct. at 697, 50 L.Ed.2d at 712.

In the present case, the violations allegedly caused by VWoA's acquisition of Delanair go beyond the causal link rejected by the Supreme Court in Brunswick. In Heatransfer, the acquisition of Delanair did more than merely keep Heatransfer and other competitors from gaining sales that would have resulted had Delanair continued to decline. There was substantial evidence presented that by acquiring Delanair, VWoA virtually precluded any of the competitors in the Volkswagen air-conditioning unit market from openly competing with the VWoA company. Theoretically, if Delanair had been acquired by any other company, save VWoA, the market would still be open to competition. By acquiring Delanair itself, VWoA had an uncontested financial interest in the success of the newly acquired company. It was to VWoA's advantage to deal as much as possible with VPC/Delanair to the exclusion of other competitors — and competition. Such a consequence is surely an antitrust injury that reflects "the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation". Brunswick, supra. It is "the type of loss that the claimed violations of the antitrust laws would be likely to cause". Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 125, 89 S.Ct. 1562, 1577, 23 L.Ed.2d 129, 149 (1969).

We come finally to appellants' contention that it is flagrantly inconsistent for appellee to argue that Delanair was not a failing company. Heatransfer counters that it "merely assumed that the acquired company had been fairly beaten and would continue to decline as a market force. It was absolutely not assumed that Delanair would somehow have evaporated or gone into liquidation as of the date of acquisition or anytime during the damage period". Appellee's Supp.Br., p. 14.

It is sound principle to require that a plaintiff seeking damages not put forth proof of damages inconsistent with the proof utilized to establish an antitrust violation. Thus, it would be inconsistent, and unacceptable, to allow a plaintiff to establish that a failing company defense was not applicable to the acquiring company, while at the same time proving, as a necessary element of some sort of damage claim, that the acquiring company would have failed but for the acquisition by defendant. See Areeda, Antitrust Violations Without Damage Recoveries, 89 Harv.L. Rev. 1127, 1132-1133, n. 4 (1976).

In this case, however, appellee did not argue, nor did it prove, that Delanair was a failing company. As we have discussed previously, a failing company, for the purposes of asserting that status as a defense to an otherwise illegal acquisition, is one where resources are so depleted and chances of rehabilitation so remote that business failure is all but a foregone conclusion. To defend the acquisition of such a company by a company which would otherwise be violating antitrust laws, it is further necessary to show that the acquiring company was the sole available purchaser. None of these elements was proved in the present case. Appellee merely asserts that Delanair's downward trend would have continued, to the advantage of other competitors. This is not inconsistent with a rejection of the failing company defense.

The damage computations were heatedly opposed and attacked by defendants in the several briefs they submitted to this Court. After careful review of their objections we find no basis for us to overturn the jury finding on the question of damages. The essential damage element questions not already addressed by us were substantially reviewed by the court below in its consideration of appellants' motion for judgment n. o. v. or for a new trial. We adopt those views and reproduce them in the margin.

IX. CONCLUSION

The issues presented in this case were complex, involving several sections of the antitrust laws. We have attempted to address ourselves to every issue raised by the litigants without being unnecessarily prolix, bearing in mind the role of an appellate court. We have dealt with some arguments only briefly, and have not discussed some others raised. This was not done through oversight, but was rather the result of our attempt at a careful selection of issues meriting discussion. We are confident that we have fairly responded to the arguments presented by the litigants.

The judgment appealed from is

AFFIRMED.

[ Plaintiff's Market Share]

[ New Products]

[ Damages After Quitting Business]

ELEMENTS OF DAMAGES RECOVERABLE AS A MATTER OF LAW Sales and Profits Allegedly Lost to DPD

Lost Capital Value

[ Interest]

Profits from the Sale of "Other Model" Units [ Preparedness and Intentions]