Opinion
No. 77-2515.
July 27, 1981.
David R. Aufdenspring, Gary G. Grindler, Atlanta, Ga., for plaintiffs-appellants.
Trammell E. Vickery, John C. Butters, Atlanta, Ga., for Tenneco Oil Co.
Charles L. Gowen, Joseph R. Gladden, Jr., Michael Eric Ross, Atlanta, Ga., for Marathon Oil Co.
Morton A. Sacks, Baltimore, Md., for Crown Central.
Charles Rippin, Edward T. Brennan, Savannah, Ga., for Colonial Oil Inc.
Appeal from the United States District Court For the Middle District of Georgia; Wilbur D. Owens, Jr., Chief Judge.
On Petitions for RehearingBefore GODBOLD, Chief Judge, and TUTTLE and HILL, Circuit Judges.
All defendants have petitioned for rehearing. We deny the petitions, 642 F.2d 845, 5 Cir. However, the petition of defendants Marathon Oil, Crown Central Petroleum and Tenneco reflects a misunderstanding of our opinion that we feel should be rectified.
Defendants argue that our opinion transforms the plaintiff's price-fixing allegations from a Sherman Act § 1 claim into a § 2 claim. As we noted in the panel opinion, Malcolm alleged that the defendants conspired to fix prices and used price cutting as an enforcement mechanism to gain compliance from recalcitrant retailers such as himself. The opinion merely holds that Malcolm submitted sufficient evidence of injury and damages stemming from this price cutting to avoid a directed verdict. Since the issue of whether Malcolm presented sufficient evidence of an antitrust violation was not before us, we did not decide that issue. Nor did we decide whether Malcolm's allegations of price cutting are more properly cognizable under § 1 or § 2 of the Sherman Act; this was neither briefed nor argued. We leave those issues to the district court on remand.
Nor should it have been, since the district court had not yet decided that question, cf. J. Truett Payne Co. v. Chrysler Motors Corp., ___ U.S. ___, ___, 101 S.Ct. 1923, 1929-1930, 68 L.Ed.2d 442 (1981).
The petitions for rehearing are DENIED.