Full opinion text
ORIE L. PHILLIPS, Circuit Judge. Utah Pie Company brought this action against Continental Baking Company, Carnation Company, and Pet Milk Company under Title 15 U.S.C.A. §§ 15 and 26. The complaint charged that the appellants entered into a combination and conspiracy to restrain interstate commerce and monopolize such commerce in violation of §§ 1 and 2 of the Sherman Act (15 U.S.C.A. §§ 1 and 2), to be effected by destroying the competition of Utah Pie through the weakening of its capital structure and the destruction of its profits, and to violate § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act (15 U.S.C.A. § 13(a)), by price discrimination in the State of Utah, effected by selling their frozen pies at prices “below cost” in the State of Utah and at lower prices in such state than they charged for their frozen pies “in other western states.” The case came on for trial in February 1963. At the close of the evidence, each appellant duly moved for a directed verdict in its favor on the § 2(a) claims asserted by Utah Pie. Each motion was denied. The jury returned a verdict in favor of the appellants on the conspiracy claim and a verdict against each appellant on Utah Pie’s § 2(a) claims. Each appellant, in accordance with Rule 50(b) of the Federal Rules of Civil Procedure, duly made a timely motion to set aside the verdict against it and enter judgment n. o. v. in its favor on Utah Pie’s § 2(a) claims. Each motion was denied. On February 23, 1963, a consolidated judgment was entered in favor of Utah Pie and against each of the several appellants for treble the amount of the verdict returned against it and for attorneys’ fees and costs, and on the same day a decree was entered against each appellant permanently enjoining it from violating § 2(a). Each of the appellants separately appealed from such judgment and decree. Thereafter, the injunctive decree was stayed by this court by an order entered March 21, 1963. Each appellant, in its statement of points, urged several grounds for reversal. This is a second hearing of such appeals by this court. At the first hearing, we considered only one of the grounds urged by each of the appellants, that is, that the evidence against it was insufficient to warrant the jury in finding that it had engaged in price discrimination between purchasers of commodities of like grade and quality or in other acts, the effect of which had been, or the probable effect of which would be substantially to lessen competition or to tend to create a monopoly in any line of commerce. We concluded the evidence was insufficient to support such a finding and reversed the judgment and directed that the case be remanded, with instructions to enter a-judgment in favor of each of the appellants against Utah Pie on its § 2(a) claims. By a petition for a writ of certiorari, Utah Pie sought review in the Supreme Court. The Supreme Court granted the writ and held that the evidence as to each appellant was sufficient to sustain a finding of probable injury to competition by price discrimination by it, within the meaning of § 2(a), and reversed the judgment and remanded the case to this court for consideration of the other grounds urged by the appellants for reversal, expressly stating it did not intimate “any views” on such other grounds. See Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 87 S.Ct. 1326, 18 L.Ed.2d 406. Each of the appellants has filed a separate supplemental brief and a reply brief and Utah Pie has filed a consolidated supplemental answer brief. Such other grounds for reversal have been orally reargued and the case again submitted to this court. The jury also returned a verdict in favor of Continental on a counterclaim asserted by it, charging a § 2(a) violation by Utah Pie. On Utah Pie’s n. o. v. motion, the court set aside that verdict and entered judgment on the counterclaim in favor of Utah Pie, notwithstanding it had not moved for a directed verdict in its favor on the counterclaim. We held that the trial court erred in entering judgment n. o. v. in favor of Utah Pie, because it had not moved for a directed verdict in its favor on the counterclaim, but for reasons stated in our former opinion, we remanded the case for a new trial on the issues raised by the counterclaim. Continental and Utah Pie acquiesced in our decision with respect to the counterclaim. Hence, only a limited consideration of the counterclaim will be necessary. In our approach to the remaining issues presented by these appeals respecting Utah Pie’s § 2(a) claims, we start with two established premises: 1. That the evidence against each appellant was sufficient to support a finding by the jury of price discrimination by it, the probable effect of which would be injury to competition within the meaning of § 2(a); 2. Since the jury found in favor of the appellants on Utah Pie’s conspiracy claim and Utah Pie has not and does not challenge that finding, the case in its present posture presents a separate and distinct § 2(a) violation claim against each appellant, which must be separately considered. While claimed injury to competition and compensable damages to Utah Pie present separate issues, in that the former may be only probable and in the future, and the latter must have already occurred, we must keep in mind that the Supreme Court distinguished the instant case from the cases relied on by this court in its former opinion, for the reasons stated by the Supreme Court, that they involved no “long-term market price decline,” no “general decline in price structure,” and no “lasting impact upon prices.” In passing on the issue of probable injury to competition in our former opinion, we made what we regarded and still believe was an exhaustive and correct statement of the pertinent facts, in five parts. (See Continental Baking Company v. Utah Pie Company, 10 Cir., 349 F.2d 122.) Those five parts are: 1. A general statement of facts pertinent in all the appeals (349 F.2d 126-130, inclusive); 2. A statement of facts in the main pertinent only in the Pet Milk appeal (349 F.2d 130-137, inclusive); 3. A statement of facts in the main pertinent only in the Continental appeal (349 F.2d 137-142, inclusive); 4. A statement of facts in the main pertinent only in the Carnation appeal (349 F.2d 142-147, inclusive); 5. Tables and charts in the text of the opinion and in the appendices thereto, the latter appearing at 349 F.2d 157-165, inclusive. Reference is here made to the facts set forth in our former opinion and the appendices thereto, since in this opinion certain of the facts stated in our former opinion either will not be restated or will not be restated in as great detail as they were in such former opinion. Of course, we will undertake to supplement facts set forth in our former opinion by additional facts in the record pertinent to a proper consideration of the additional issues now before us for determination; and we will repeat facts stated in our former opinion where we deem it desirable so to do, or necessary to a clear and accurate reflection of the context in which such repeated facts appear in this opinion. I General Statement of Facts The evidence in these cases covers the period 1958 to 1961, both inclusive. It is free from substantial dispute, except for a few statements of opinions or conelusions not based on any substantial underlying proof. The facts stated with respect to the offering prices, selling prices, sales volume, percentage of market shares, earnings, and other like matters, the tables and charts which appear in this and our former opinion, and the appendices annexed to this and our former opinion are all based on uncontroverted documentary evidence, some of which was introduced by Utah Pie and some by the appellants. The phrase “frozen fruit pies” is sometimes used in the frozen pie industry in a broad sense and as including frozen apple, cherry, boysenberry, peach, pumpkin, and mince pies, although the last two are not, strictly speaking, fruit pies. In its broad sense, that phrase does not embrace frozen cream pies, such as lemon cream, chocolate cream, cocoanut cream, and the like. The frozen pies involved in these appeals are those embraced in the phrase “frozen fruit pies” in its broad sense. We will hereafter refer to them simply as “frozen pies.” The phrase “frozen fruit pies” is also used in a more narrow sense, as embracing only the strictly fruit pies, and not including mince or pumpkin pies. Frozen fruit pies in that narrow sense will be referred to herein as “frozen fruit pies.” Utah Pie, a Utah corporation, owned and operated by the Rigby family, was in the fresh pie business for nearly 30 years prior to 1957. It marketed its fresh pies in Salt Lake City and other points in Utah, in Las Vegas, Nevada, Grand Junction, Colorado, Farmington, New Mexico, Evanston, Wyoming, and at one other city in Nevada, the name of which does not appear in the record. Faced with a declining volume and a substantial loss in its fiscal year ended October 31, 1957, Utah Pie, in August of that year, entered the frozen pie business. It had much of the facilities needed for the frozen pie business in its old plant. It opened a new plant in 1958, which had a capacity, at least by 1961, on a three-shift basis of 40,000 frozen pies per day, or about one and one-half million cases of frozen pies per year. There are six pies in a case. It had adequate refrigeration for fruit, production facilities, and storage of frozen pies. Its frozen pie business was well managed and its sales and transportation costs were low. It had the only frozen pie plant located in the Salt Lake City market area, which enabled it to deliver to its customers frozen pies in both small and large quantities. The six western states of California, Washington, Oregon, Utah, Arizona, and Colorado embrace a portion of the Inter-Rocky Mountain and West Coast regions. In each of such states there are one or more separate and distinct frozen pie market areas, which comprise a large metropolitan center and the territory closely adjacent thereto. There are distinct frozen pie market areas in and adjacent to Los Angeles, San Francisco, Seattle, Portland, Spokane, Salt Lake City, Phoenix, and Denver. The periphery of each of such market areas is nearly the same as that of the area in which its metropolitan newspapers circulate; that, because retail advertising is the lifeblood of the frozen pie industry and crucial to volume sales. The current retail price in a particular market area at a particular time is generally fixed by the prices at which the chain stores and cooperative grocery organizations advertise their frozen pies in the Thursday and Friday editions of the local newspapers, published and circulated in that market area. The Salt Lake City market area involved in these appeals comprises most of the State of Utah, southern Idaho, and small areas adjacent to Utah in the States of Wyoming, Colorado, and Nevada. That market area developed its own competitive pattern. No brand seemed to enjoy a consumer’s loyalty, with the possible exception of Utah Pie’s "■“Utah” brand. Pies were purchased primarily on a price basis. The prevailing retail price was fixed by the advertised weekend specials appearing in the local newspaper advertisements of the retailers on Thursday and Friday. During the period 1958 to 1961, inclusive, retailers of frozen pies in the Salt Lake City market area advertised Utah Pie’s brands a great many more times than they did brands of each of the other manufacturers selling in that market area. At the beginning of the period here involved, the frozen pie business was comparatively new. But by that time it had become highly competitive and it remained so throughout such period. The price in a particular market area depends upon the number and identity of the competing manufacturers, the competitive factors in such market area, and the extent of the thrust or pressure of such factors at a particular time. A local manufacturer and seller, with his plant located in a particular market area, because of his low distribution and selling costs, preferences normally given to a local business, and his ability to sell and distribute frozen pies in either large or small quantities is in a position to assert a very substantial competitive thrust and pressure, not present where there is no local manufacturer and seller competing in the area. Another competitive factor, which affects prices and exists in some market areas, is the sale of private or controlled brands of frozen pies, which are usually sold by the large retail chains and members of cooperative grocery organizations, and are purchased by them in large quantities at preferential prices. A controlled label is owned by the manufacturer, but is sold by it only to one buyer in a particular market. A private brand is owned by the buyer and may be manufactured by one or more suppliers. In the first part of 1958, Utah Pie marketed its frozen pies in Utah and Jdqho, .It gradually extended its sales to other areas, so that by 1961 it was selling frozen pies in Utah, Idaho, Washington, Colorado, and Wyoming. However, its sales outside of Utah and southern Idaho during the period involved in these appeals, 1958 to 1961, were negligible. See Appendix I, annexed to our former opinion (349 F.2d 157-158). It affirmatively appears from uncontroverted evidence that it was Utah Pie’s intention, at the time it entered the frozen pie business in the Salt Lake City market area in August 1957, which was more than a year before there was any claimed or established price discrimination by any of the appellants in such market area, to obtain and retain a dominant position in the frozen pie business in such market area by there offering and selling its frozen pies at prices substantially below those at which its competitors there offered or sold their pies. The earliest month, during which comparative prices at which frozen pies were sold by Utah Pie and each of the appellants are shown in the record, was January 1958. In the following price comparisons, we will use frozen apple pie prices, because frozen apple pie is the most popular and the volume leader of the frozen pies, sells at the lowest prices, and is the most accurate price indicator. In January 1958, which was 23 months before there was any price discrimination by Pet in the Salt Lake City market area, it sold in such market area its frozen apple pie, “Pet-Ritz,” its then only brand, at prices ranging from a low of $4.84 per dozen to a high of $5 per dozen, and Utah Pie sold in such market area its frozen apple pie, “Utah,” its then only brand, at $4.15 per dozen, viz., 69 cents to 85 cents per dozen less than Pet’s price. In January 1958, in the Salt Lake City market area, Carnation sold its frozen apple pie, “Simple Simon,” for $4.82 per dozen and Utah Pie sold its “Utah” brand frozen apple pie for $4.16 per dozen. In October, November, and December, 1958, Carnation’s price for its frozen apple pie was $3.90 per dozen in Salt Lake City, San Francisco, Spokane, and Denver, and Utah Pie’s price for its “Utah” brand frozen apple pie was $4 per dozen in Salt Lake City. But it was not until February 1960 that there was any difference in Carnation’s prices for its frozen apple pies in those four cities. In that month, its price in San Francisco was $3.60 per dozen and its price in Salt Lake City, Spokane, and Denver was $3.30 per dozen. And in January 1958, which was more than two years before there was any claimed § 2(a) violation by Continental in the Salt Lake City market area, Continental sold in such market area its frozen apple pie, “Morton,” its only brand, at $4.94 per dozen and Utah Pie sold in such market area its frozen apple pie, “Utah,” its then only brand, at $4.16 per dozen. The following table, based on invoices of actual sales, copies of which appear in Pet’s Exhibit A-35, a “Market Share and Price Trend Study on 8” Frozen Fruit Pies in the Tntermountain Market’ ” by Drs. Anderson and Lambom of Utah State University, sets out the comparative median prices at which frozen pies were sold in the Salt Lake City market area by Utah Pie and each of the appellants in the months of January to December 1958, inclusive, and shows that during such period Utah Pie consistently kept its prices for its frozen pies substantially below the prices for frozen pies of each of the appellants. The prices in such table are for cases of six. The price per dozen was approximately double the price per case. January Utah Pie 2.08 2.08 ____ 2.08 — Pet Milk 2-47 2.62 2-44 2.84 — —£~ Carnation 2-42 2.51 — 2-75 2.87 — Continental 2.47 — — 2.77 2.77 2.62 February Utah Pie 2.15 2.15 2-15 ___- ----- Pet Milk 2.50 2-50 2-52 2.64 2.85 2.58 Carnation 2.54 2.53 2-60 — — 2.58 Continental 2.58 2.58 2.58 2.73 — 3.05 March Utah Pie 2.15 2.15 2.15 ---- — Pet Milk 2.50 2.50 2.53 2.55 ---- — Carnation 2.50 2.50 — 2.64 — — Continental 2.58 — — — ---- — — April Utah Pie 2.05 2.08 2.07 — — "et Milk 2.50 2.50 2.50 2.66 — ---- Carnation 2.50 2.50 — 2.65 — — Continental 2.58 2.58 — — --" ----- May Utah Pie 2.04 2.04 ---- 2.04 — — Pet Milk 2.51 2.53 2.54 2.69 — — Carnation 2.50 2.50 2.50 2.65 — — Continental 2.58 2.58 2.58 2.73 — 3.05 1958 \pple Cherry Peach Boysenberry Mince Pumpkin June Utah Pie 2.04 2-04 2.04 Pet Milk 2.54 2.54 2.54 2.69 Carnation 2.50 2.54 2.SO 2-65 Continental July Utah Pie 2.04 2.04 2.04 Pet Milk 2.55 2.55 2.55 2.70 Carnation 2.50 2.56 2.58 2.73 Continental 2.58 2.58 August Utah Pie 2.04 2.04 2.04 Pet Milk 2.52 2.49 2.54 2.68 Carnation 2.55 2.54 2.70 Continental September Utah Pie 2.04 2.04 2.04 2.00 2.00 Pet Milk 2-51 2.49 2.52 2 • 68 2.79 2.34 Carnation 2.51 2.52 2.65 Continental October Utah Pie 2.03 2.03 2.03 1.96 2.00 Pet Milk 2.52 2.52 2.55 2.70 2.67 2.43 Carnation 2.50 2.50 2.65 2.51 2.36 Continental 2.58 2.34 November Utah Pie 2-03 2.04 2.04 2-14 1.96 Pet Milk 2.52 2.52 2.52 2.67 2.64 2.35 Carnation 2.50 2.50 2.65 2.66 2.41 Continental 2.58 2.58 December Utah Pie 2.00 2.00 2.00 2.00 1.92 Pet Milk 2.50 2.50 2.50 2.65 2.66 2.38 Carnation 2.54 2.50 2.65 2.44 Continental Gaylen S. Rigby testified that the dates and amounts of the major changes made by Utah Pie in the price of its “Utah” brand pie were as follows: Prices of Utah Brand Pie Date Old New 4/14/58 $ 4.15 $ 4.00 8/10/59 4.00 3.70 6/23/61 3.70 2.75 12/1/61 2.75 2.90 But the record shows that Utah Pie’s price per dozen for its “Utah” brand frozen apple pie in August 1960 was 3.50 September 1960 was 3.16 January 1961 was 3.43 February 1961 was 3.50 March 1961 was 3.10 April 1961 was 3.50 Utah Pie’s prices for its frozen pies were f. o. b. the purchaser’s warehouse, if it was located in Salt Lake City, and if located outside of Salt Lake City, f. o. b. Utah Pie’s plant. The manufacturers and distributors of national brands, who sell throughout the United States, the manufacturers and distributors of regional brands, who sell in several local market areas, and sometimes a local manufacturer and distributor, whose single plant is located in a particular market area where his principal business is done,, but who also may sell in other market areas in the same region, usually make up the group competing in a local market area. More than 30 different brands are sold in the six western states referred to above, and the number of nation-wide manufacturers of frozen pies is over 200. The brands, or labels, used by the parties to these appeals were as follows: Utah Pie "Utah," "Frost 'N' Flame," "Mayfresh," and "Sonny Boy" Carnation "Simple Simon"; Continental "Morton's"; Pet "Pet-Ritz" and "Swiss Miss." Utah Pie and Pet also manufactured frozen pies for Safeway Stores, Inc., under the latter’s label, “Bel-air.” “Utah” was the label under which Utah Pie sold its frozen pies generally to retailers. “Frost ‘N’ Flame,” “May-fresh,” and “Sonny Boy” were controlled labels. “Bel-air” was a private label belonging to Safeway Stores, Inc. Utah Pie’s first customers for its frozen pies were Associated Grocers, Safeway, and Utah Wholesale Grocery. Associated Grocers was the largest and Safeway the second largest buyer of frozen pies in the Salt Lake City market area. From the latter part of 1957, when Utah Pie first entered the frozen pie business in the Salt Lake City market area, continuously to and including the year 1961, Utah Pie’s competitive emphasis was on price. Throughout that period, with the exception of a comparatively few instances hereinafter noted, it offered and sold its frozen pies to retail buyers in that market area at prices substantially lower than prices at which its competitors offered and sold their pies in such market area. As we read the Supreme Court decision in Utah Pie Co. v. Continental Baking Co., supra, Utah Pie had a legal right so to do, even though it captured the extraordinary market volume share of 66.5 per cent in 1958, which approached a monopolistic position, and thereafter was the dominant seller in such market area, with a market volume share of 34.3 per cent in 1959, 45.5 per cent in 1960, and 45.3 per cent in 1961, so long as in so doing it did not violate § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act (15 U.S.C.A. § 13(a)). In 1958, Utah Pie sold 75,939 cases of frozen pies; in 1959, 76,744 cases; in 1960, 167,788 cases; in 1961, 205,380 cases; and in 1962, 259,317 cases. During the period 1958 to 1961, inclusive, its volume increased 270.5 per cent and its dollar volume in sales of frozen pies increased from $139,306.24 in the fiscal year ended October 31, 1958, to $407,-841.25 in the fiscal year ended October 31, 1961, an increase of 292.8 per cent. During the same four-year period salaries paid the Rigby family engaged in the business increased by approximately $30,000 and net income before taxes, as adjusted, went from a loss of $1,264.51 in fiscal 1958 to a profit in fiscal 1961, before taxes, of $30,597.10. After taxes, it was $19,643.04, which was 28.5 per cent of its net worth. The following table is a composite picture of the total sales volume and the percentage of market shares of each of the parties hereto and the other competitors in the Salt Lake City market area in the years 1958 to 1961, inclusive. 1958 (Volume in dozens) Company Volume % of Market Carnation 5,863 10.3 Continental 754 1.3 Utah Pie 37,969-5 66.5 Pet 9,336-5 13-4 Others 3,137 5.5 Totals 57,060-0 100-0 1959 Company Volume % of Market Carnation 9,625 8-6 Continental 3,182 2.9 Utah Pie 38,372 34.3 Pet 39,639 35-5 Others 20,911 18.7 Totals 111,729 100.0 1960 Company Volume % of Market Carnation 22,371-5 12.1 Continental 3,350 1-8 Utah Pie 83,894 45.5 Pet 51,480 27-9 Others 23,473.5 12.7 Totals 184,569-0 100.0 1961 Company Volume % of Market Carnation 20,067 8-8 Continental 18,799.5 8.3 Utah Pie 102,690 45.3 Pet 66,786 29.4 Others 18,565-5 8-2 Totals 226,908-0 100.0 Associated Grocers, which served 150 to 175 retail stores out of its Salt Lake City headquarters, during the period here involved, was the largest buyer of frozen pies in the Salt Lake City market area during that period. Beginning late in 1959 and continuously thereafter, during the period here involved, Utah Pie sold Associated Grocers frozen pies under its controlled label, “Frost ‘N* Flame.” That pie, identical with the pie marketed by Utah Pie under its “Utah” brand, was exclusive with Associated Grocers and was sold to it at a price 50 to 60 cents per dozen less than Utah Pie charged nonfavored competing purchasers for its “Utah” brand. Associated Grocers’ tremendous competitive advantage, thus attained, caused it to support “Frost ‘N’ Flame” almost exclusively in its advertising. It also guaranteed Utah Pie’s dominant position in the market area by foreclosing effective competition by other frozen pie makers through sales to its largest buyer. “Frost ‘N’ Flame” quickly replaced “Utah” brand as the leading brand in the Salt Lake City market area. Utah Pie also produced pumpkin and mince pies for Safeway, the second largest buyer, under Safeway’s private label, “Bel-air,” at prices substantially below those it charged for its identical pie sold under the “Utah” label to non-favored competing stores. Utah Pie also continually offered Safeway a preferentially low price on its frozen fruit pies packed under its “Bel-air” label. Safeway rejected those offers, not because of price, but for other reasons fully set out hereinafter. In 1960, its first year of sales of “Bel-air” mince and pumpkin pies to Safeway, Utah Pie charged what it later said itself was a “rock bottom” price, with the hope that it would induce Safeway to drop its then supplier of frozen fruit pies, Pet Milk, in favor of Utah Pie. In 1961, Utah Pie began selling its controlled label “Mayfresh” pies to Grand Central-American Stores, another of the four largest buyers in the Salt Lake City market area. Early in 1962, Grand Central acquired American Food Stores, another chain, and thereafter Utah Pie sold its controlled label “Mayfresh” pies to American. It is abundantly clear from the evidence that a substantial part of Utah Pie’s constantly growing volume of frozen pies sold in the Salt Lake City market area from 1958 to 1961, inclusive, was due to its sales in such market area of its controlled label pies to Associated Grocers, Grand Central Stores, and American Food Stores, and its sales in such market area of private label “Belair” pies to Safeway, at prices substantially less than it charged for its identical “Utah” brand, sold to customers generally. In 1959, Utah Pie sold Associated Grocers 18,621 cases of frozen pies; in 1960, Utah Pie sold Associated Grocers 77,894 cases of controlled label “Frost ‘N’ Flame” frozen pies; and in 1961, Utah Pie sold Associated Grocers 102,834 cases of controlled label “Frost ‘N’ Flame” frozen pies; whereas the whole number of frozen pies sold in such market area in 1961 was only approximately double what it was in 1959. The volume of sales of frozen pies greatly increased throughout the period 1958 to 1961, inclusive, not only in the Salt Lake City market area, but in other market areas. Such sales growth was due in substantial part to advertisements by manufacturers of national brands prior to the beginning of such period, which acquainted housewives with the merits and advantages of frozen pies. As sales volume increased, production costs decreased, and reduction in price normally and naturally followed, apart from any other causes for price decreases. Over the objections of each of the appellants, Utah Pie introduced its Exhibit 95, which reads as follows: Over objections of each of the appellants, Utah Pie also introduced its Exhibits 62, 94, and 96 to 101, inclusive, upon which Exhibit 95 is based. Exhibits 62, 94, and 96 to 101, inclusive, are set forth in full in Appendix A, annexed hereto. The damages which Utah Pie attempted to prove it suffered, because of price discriminations by the appellants, are summarized in Utah Pie’s Exhibit 95. It is based on other exhibits set out in Appendix A, which we will hereafter discuss. Part (A) of Exhibit 95, which was prepared by a certified public accountant for Utah Pie, sets out estimated gross profits Utah Pie claims it would have realized from sales in the Salt Lake City area in 1959, 1960, and the first eight months of 1961 of its “Utah” brand frozen pie (sales of its controlled brands, “Frost ‘N’ Flame” and “Mayfresh” frozen pies and private brand “Bel-air” frozen pies being excluded), but for the price discriminations in such market area by the appellants. It sets forth separately the amount of such damages, if the selling price by Utah Pie was $4.30 per dozen, $4.10 per dozen, $3.90 per dozen, and $3.70 per dozen. The accountant also prepared Utah Pie’s Exhibit 96. He sets forth on page 1 thereof, in dozens, the number of frozen pies sold in the Salt Lake City market area, as shown by Utah Pie’s Exhibit 62, by Utah Pie and each of the appellants in 1958, 1959, 1960, and 1961, excluding therefrom, however, all of the controlled brands, “Frost ‘N’ Flame” and Mayfresh,” of frozen pies sold by Utah Pie, and all of Safeway’s private brand “Bel-air” frozen pies sold by Utah Pie and the appellants in such market area during such period. Basing his computation on the number of frozen pies sold in the Salt Lake City market area by Utah Pie and each of the appellants, set forth on page 1 of Exhibit 96 and derived from Exhibit 62, exclusive of controlled brand and “Bel-air” private brand frozen pies, in each of the years 1958, 1959, 1960, and 1961, the accountant computed and set forth the percentage of market share, respectively, of Utah Pie, Carnation, Continental, and Pet in such market area in each of such years, as follows: 1958 - % of total 1959 - % of total 1960 - % of total 1961 - % of total Carnation 10.87% 14.74% 24.51% 14.67% Continental 1.40% 4.87% 3.67% 13.75% Pet 17.32% 21.70% 31.54% 37.94% Utah Pie 70.41% 58.69% 40.28% 33.64% 100.00% 100.00% 100-00% 100.00% Using 1958 as the base year, the accountant also compiled and set forth in the lower part of page 1 of Exhibit 96, excluding controlled and private brand frozen pies, the increase or de- crease in percentage of market share in the Salt Lake City market area of Utah Pie and each of the appellants in the years 1959, 1960, and 1961, as follows: Year Carnation Continental Pet Utah Pie 1958 (Base Year) 10.87% 1.40% 17.32% 70-41% 1959 Increase (Decrease) 3.87% 3-47% 4.38% (11.72%) 1960 Increase (Decrease) 13.64% 2-27% 14.22% (30.13%) 1961 Increase (Decrease) 3.80% 12-35% 20-62% (35.77%) Since the computations of the accountant, the results of which are set forth on page 1 of Exhibit 96, were based solely on the sales in the Salt Lake City market area, exclusive of controlled and private brands, made by Utah Pie and the appellants, and do not include the sales of any other sellers in that market area, any decreases in the relative proportions of the “Utah” brand frozen pies sold in such market area in the years 1959, I960, and 1961 by Utah Pie would necessarily result in relatively proportionate increases in the frozen pies sold by the appellants in the years 1959, 1960, and 1961 in such market area. But that does not establish that such decreases in the proportion of “Utah” brand frozen pies sold in such market area in 1959, 1960, and 1961 were caused by the price discriminations of the appellants. We shall hereinafter undertake to show there was another reason for such decreases in 1960 and 1961. It should be noted that in the year 1958, used by the accountant as the base year, Utah Pie sold only “Utah” brand frozen pies, and no controlled or private brand frozen pies were sold by it or the appellants. In 1958, Utah Pie sold 37,969.5 dozen “Utah” brand frozen pies in the Salt Lake City market area and on the basis employed by the accountant had a market share percentage of the total frozen pies, exclusive of controlled brand and private brand frozen pies sold by it and the appellants in such market area, of 70.41 per cent. In 1959, Utah Pie sold in such market area 38,338 dozen “Utah” brand frozen pies and only 38 dozen “Frost ‘N’ Flame” controlled brand frozen pies. Utah Pie, Carnation, and Continental sold no Safeway private brand “Bel-air” pies in 1959. Pet sold Safeway 25,462.5 dozen “Bel-air” brand frozen pies in 1959. However, in 1960 a marked change took place. In that year, Utah Pie sold only 36,759.5 dozen “Utah” brand frozen pies in the Salt Lake City market area, and its market share percentage of “Utah” brand pies, on the basis employed by the accountant, decreased 30.13 per cent. But in that year, Utah Pie sold in such market area to Associated Grocers 37,189.5 dozen of its controlled brand “Frost ‘N’ Flame” frozen pies, and in that year Associated Grocers, which in 1958 and 1959 was a large volume purchaser of “Utah” brand pies, purchased only an insignificant number of “Utah” brand pies. In 1960, Utah Pie also sold in such market area 9,945 dozen “Bel-air” private brand pies to Safeway. It will be observed that in 1960, in such market area, Utah Pie’s sales of its controlled brand “Frost ‘N’ Flame” frozen pies exceeded its sales of its “Utah” brand frozen pies, and its sales of its controlled and private brand frozen pies exceeded its sales of its “Utah” brand pies by 10,375 dozen. An even greater change took place in 1961. In that year, a year of a very substantial increase in volume of the frozen pies sold in the Salt Lake City market area, Utah Pie sold 46,016 dozen of its “Utah” brand pie¿ and its market share percentage, on the basis employed by the accountant, decreased 36.77 per cent. In 1961, Associated Grocers purchased only an insignificant number of “Utah” brand pies. But in that year in such market area, Utah Pie sold 48,963.5 dozen of its controlled brand “Frost ‘N’ Flame” frozen pies to Associated Grocers and 1,177.5 dozen of its controlled brand “Mayfair” frozen pies to Grand CentralAmeriean Stores and 6,533 dozen private brand “Bel-air” frozen pies to Safeway, and the aggregate of Utah Pie’s sales of controlled and private brands exceeded its sales of “Utah” brand frozen pies by 10,658 dozen. Not only did Associated Grocers restrict its purchases from Utah Pie of frozen pies in 1960 and 1961 almost entirely to the “Frost ‘N’ Flame” controlled brand, its advertising of frozen pies in those years was almost entirely limited to “Frost ‘N’ Flame” frozen pies. Also, it will be noted from the table appearing at page 171 of this opinion that Utah Pie’s market share percentage of the total sales in the Salt Lake City market area of frozen pies, which was 66.5 per cent in 1958, fell to 34.3 per cent in 1959, then rose to 45.5 per cent in 1960 and 45.3 per cent in 1961, whereas the market share percentage of sellers of frozen pies in such market area, other than Utah Pie and the appellants, which was 5.5 per cent in 1958, was 18.7 per cent in 1959, 12.7 per cent in 1960, and 8.2 per cent in 1961. Notwithstanding the facts we have above recited, with respect to the changes that took place in 1960 and 1961, Gaylen S. Rigby testified it was his opinion that, but for the price discriminations of the appellants, the sales of 37,189.5 dozen in 1960 and 48,963.5 dozen in 1961 of “Frost ‘N’ Flame” brand frozen pies to Associated Grocers and the reduction of Associated Grocers’ purchases of “Utah” brand frozen pies to an insignificant number in each of those years would not have affected or decreased the sales of “Utah” brand pies in such market area in those years, and that Utah Pie would have continued to maintain a market share percentage of 70.41 per cent of the frozen pies sold by it and the appellants, exclusive of controlled and private brand frozen pies, through the sale of more “Utah” brand pies to other buyers in'such market area. Moreover, Rigby was assuming that, absent such discriminations, Utah Pie would have continued to sell “Utah” brand frozen pies at not less than $3.70 per dozen in 1960 and 1961, which would have made the prices of sellers in the market area, other than the appellants, more competitive, and they would undoubtedly have increased their sales of frozen pies. We believe the conclusion is inescapable that the failure of Utah Pie to maintain in 1960 and 1961 the market share percentage of frozen pies, exclusive of controlled and private brand frozen pies, sold by it and the appellants in the Salt Lake City market area in 1958, which on the basis employed by the accountant was 70.41 per cent, was due in a very large part to the fact that Associated Grocers, theretofore the largest purchaser of “Utah” brand frozen pies in such market area, purchased only an insignificant number of “Utah” brand pies in 1960 and 1961; and that it was not due in substantial part to any relative increase of sales in such market area in 1960 and 1961 by the appellants of their brands of frozen pies. The market share percentage decrease of only 11.72 per cent in 1959 of Utah Pie, when Associated Grocers was a large volume buyer of “Utah” brand pies and the much larger market share percentage decreases of 30.13 per cent in 1960 and 36.77 per cent in 1961, years in which Associated Grocers purchased only a very small number of “Utah” brand pies, bears out our conclusion. The fact is unescapable that Utah Pie’s “Utah” brand, which was the volume leader in such market area in 1958 and 1959, was supplanted by Utah Pie’s “Frost ‘N’ Flame,” which became the volume leader in 1960 and continued to be in 1961. The accountant, having determined that Utah Pie’s market share percentage of frozen pies sold in the Salt Lake City market area by it and the appellants in 1959, exclusive of controlled and private brand frozen pies, was 58.69 per cent, divided the total number of frozen pies, exclusive of controlled and private brand frozen pies, sold in such market area by Utah Pie in 1959, which was 47,127 dozens, by such percentage to ascertain the number of frozen pies in dozens which equalled one per cent. He then multiplied the quotient by 100 to ascertain 100 per cent in dozens, which was 80,298 dozens. He then multiplied 80,298 by 70.41 to ascertain the number of dozens of frozen pies, exclusive of controlled and private brand frozen pies, which Utah Pie would have sold in 1959 in such market area, had it maintained in 1959 the 70.41 per cent market share it had in 1958, which he found to be 56,538 dozens. By subtracting the actual number of dozens sold in 1959 from 56,538, he arrived at the number of sales in dozens of frozen pies Utah Pie claimed it lost in that year because of the price discriminations of the appellants, which was 9,411 dozens. By like calculation he found that the sales loss claimed by Utah Pie of “Utah” brand frozen pies in such market area in 1960 was 34,218 dozens, and in 1961 was 34,350 dozens. (See Exhibit 96, page 2.) Basing his calculations on a cost study of frozen pies sold by Utah Pie, made by a Mr. Zimmerman for the appellants, he arrived at what he said was a weighted average of Utah Pie’s “actual cost of manufacture” of “Utah” brand pies. He then computed the amount of gross profits Utah Pie would have realized, had it sold such additional frozen pies at prices of $4.30, $4.10, $3.90, and $3.70 per dozen, respectively, by deducting such cost of manufacture from such sales prices, and he then allocated a share of such gross profits as damages to each of the appellants. (See Exhibit 96, page 5 and Exhibit 95, part (A).) No deductions usually taken from gross profits in arriving at net profits were considered, since Gaylen S. Rigby testified that had Utah Pie made such additional sales there would have been no increase in its overhead. Gaylen S. Rigby testified that in his opinion Utah Pie, by reason of the price discriminations of the appellants, suffered damages for injury to its good will of $75,000. He gave no underlying facts, aside from hypothetical predictions of what would have happened, absent such discriminations, for his claim of damages for injury to good will, and gave no basis for allocating such claimed damages among appellants. Under instructions from counsel for Utah Pie, the accountant allocated such claimed damages equally among the appellants. (See Exhibit 95, part (G).) It will be observed that the jury returned a verdict against Carnation of $29,277, which is exactly $10,000 more than the $19,277 damages allocated to Carnation on the $3.70 per dozen sales price basis in part (A) of Exhibit 95; that it returned a verdict of $24,994 against Continental, which is exactly $10,000 more than the $14,994 damages allocated to Continental on the $3.70 per dozen sales price basis in part (A) of Exhibit 95; and that it returned a verdict of $44,197 against Pet, which is exactly $10,000 more than the $34,197 damages allocated to Pet on the $3.70 per dozen sales price basis in part (A) of Exhibit 95. (See also Exhibit 96, page 5.) The only damages allocated equally among the appellants were the claimed damages for injury to good will in part (G) of Exhibit 95. Hence, it is perfectly clear that the jury based its damages award for loss of sales on the last line of part (A) of Exhibit 95. In presenting its case for loss of profits in part (A) of Exhibit 95, Utah Pie treated all of the price discriminations of the several appellants as constituent parts of a single whole, or as joint acts of the appellants. That would have been proper, had Utah Pie established its conspiracy claim, but the jury returned a separate verdict against Utah Pie on its conspiracy claim against all three of the appellants. Hence, each appellant was liable only for the injuries caused by its first § 2(a) violation and its § 2(a) violations thereafter, and it was not liable for injuries caused by the § 2(a) violations of the other two appellants. From the foregoing and the charts set out in Appendices II, III, IV, V, VII, and VIII, annexed to our former opinion, and the tables which are set forth in that opinion at pages 134, 135, 137, and 144 of 349 F.2d, the following will appear: Utah Pie was the first and arch price cutter in the Salt Lake City market area; it engaged in price cutting to obtain and retain frozen pie customers in the Salt Lake City market area continuously from the time it entered the frozen pie business to the end of the period here involved; lower prices were the principal means it employed to obtain and hold customers, and it used such means very effectively. Through them it obtained the patronage of the three largest retailers in such market area. By the use of controlled labels, it effectively tied two of such major retailers to it as their sole supplier of frozen pies. It very substantially increased its sales volume in such market area from year to year, including the year 1962, and in each of the years 1958 to 1961, inclusive, it had a very high percentage share of the total sales volume in such market area. However, as we stated, supra, we understand the decision of the Supreme Court to hold that Utah Pie had the right so to reduce its prices for its frozen pies, so long as it did not violate § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. Utah Pie's claims of damages suffered by it, reflected in parts (B), (C), and (D) of Utah Pie’s Exhibit 95, require little discussion. They were based on conjecture and were highly speculative in character. Its proof, in our opinion, did not establish that it suffered any damages in the categories reflected in such items. The jury evidently so regarded Utah Pie’s proof with respect to those items, because it awarded no damages to Utah Pie on any of its claims reflected in parts (B), (C), and (D). Safeway did not purchase any “Belair” frozen fruit pies from Utah Pie in 1959, 1960, and 1961. That, because Safeway was not able to persuade Utah Pie to install means and procedures that would effect uniform quality control and insure that the specifications and standards Safeway required of a manufacturer with respect to its “Bel-air” frozen fruit pies would be met and that defective pies bearing the “Bel-air” label would not reach Safeway’s shelves. Safeway did purchase “Bel-air” frozen mince and pumpkin pies from Utah Pie in 1960 and 1961. During 1960, Safeway discovered that the “Bel-air” frozen pumpkin pies delivered to it by Utah Pie exceeded the maximum moisture content specified by Safeway and agreed to by Utah Pie and further discovered that the “Bel-air” frozen pumpkin and mince pies delivered to it by Utah Pie did not meet the requirements with respect to ingredients specified by Safeway and agreed to by Utah Pie. Safeway again, without avail, urged Utah Pie to install means and procedures in its plant that would insure quality control and the delivery to it of frozen pies that would meet the “Bel-air” quality standards insisted on by Safeway. Moreover, prior to December 1960, Safeway requested Utah Pie to install and Utah Pie agreed to install a coding device by which Safeway could pinpoint the date and time of production of defective pies delivered to it by Utah Pie, but Utah Pie failed to install such coding device, and as late as August 1961, advised Safeway it had not taken any steps so to do. The primary reason that Safeway was insisting on Utah Pie installing such means and procedures to insure quality control was that Safeway was unwilling to risk damage to the fine reputation it was building up for “Bel-air” frozen fruit pies by the maintenance of the continued high quality of such pies through unwitting sales by it of “Bel-air” pies, the quality of which fell below such high standards. In 1960, Safeway purchased 4,608.5 dozen “Bel-air” frozen mince pies and 5,336.5 dozen “Bel-air” frozen pumpkin pies from Utah Pie. However, in 1961, Safeway purchased only 50 dozen “Belair” frozen mince pies, but it purchased 6,483 dozen “Bel-air” frozen pumpkin pies from Utah Pie in that year. The reasons for the decrease in the number of frozen mince pies purchased in 1961 were these: Safeway requested Utah Pie to pack the frozen mince pies to be made by it for Safeway in 1961 in a new type of carton. Utah Pie advised Safeway it would not do so, unless it was given Safeway’s frozen fruit pie business, then going to Pet. That Safeway would not do, for the reasons indicated above. As a result, Safeway purchased only 50 dozen frozen mince pies from Utah Pie in 1961, just enough to permit it to use up the old cartons and shipping cases it had on hand. Thus, it will be seen that Safeway’s unwillingness to purchase frozen “Belair” pies from Utah Pie was due to Utah Pie’s refusal to meet Safeway’s requirements with respect to quality controls, coding device, and type of carton used. The facts stated above, with respect to the reasons Safeway did not purchase any frozen fruit pies from Utah Pie and purchased only a few frozen mince pies from it in 1961, in large part appear from the testimony of Alan W. Young, Manager of Safeway’s Frozen Food Department. But we do not rest our statement on his testimony. The facts we stated were clearly and fully established by written correspondence in the form of letters from Young to Utah Pie and Utah Pie to Young, introduced as exhibits in the trial below, and which Utah Pie wholly failed to show were in any particular either inaccurate or incomplete. While Safeway would not purchase frozen fruit pies packed under its “Belair” label from Utah Pie for the reasons stated above, it was a large purchaser of other frozen pies from Utah Pie. Utah Pie’s sales of other frozen pies to Safeway were approximately 31,500 dozen in 1958, 16,500 dozen in 1959, 22,000 dozen in 1960, and 18,000 dozen in 1961. With respect to Utah Pie’s claim for damages, reflected in part (E) of Exhibit 95, we think it quite clear that because Utah Pie was unwilling to meet Safeway’s requirements as to quality control and coding device, as stated above, Safeway would not have purchased from Utah Pie “Bel-air” frozen fruit pies at any price; and because “Bel-air” frozen pumpkin pies delivered to Safeway by Utah Pie at times did not meet Safeway’s requirements as to maximum moisture content, and “Bel-air” frozen mince pies delivered by Utah Pie to Safeway at times did not meet Safeway’s specifications as to ingredients, and Utah Pie’s unwillingness to install quality controls, Safeway would not have paid its contract price to Utah Pie for “Bel-air” frozen pumpkin and mince pies. The jury apparently reached the same conclusions, because it awarded no damages to Utah Pie on its part (E) claim. Utah Pie’s claim for damages, reflected in part (F) of Exhibit 95, is predicated on the assumption that Utah Pie would have sold as many “Utah” brand pies in the Salt Lake City market area at prices of $3.70 or more per dozen as it did at $3.10 to $3.60 per dozen. That assumption also is conjectural and speculative and the jury apparently so concluded, because it did not award Utah Pie any damages on its part (F) claim. We will refer further to Exhibit 95 and the exhibits on which it is based when we take up separately the appeals of each appellant. We shall next consider each of the several appeals separately. II No. 7306 — The Continental Appeals Continental’s counterclaim was based upon the differences between the prices for which Utah Pie systematically sold frozen pies to retail chain stores and the substantially higher prices for which it sold them to other customers in the Salt Lake City market area. Such differences resulted from the sales by Utah Pie under private and controlled labels to favored customers, which began late in 1959. Under those labels, Utah Pie sold its only size, grade, and quality of pies to the large favored buyers at substantially lower prices than other buyers were required to pay for Utah Pie’s regular “Utah” brand. For example, in mid-1960 Utah Pie was selling its “Utah” brand frozen pie for $3.60 per dozen, while it was selling an identical pie under its “Frost ‘N’ Flame” brand exclusively to Associated Grocers at $3 per dozen. And on April 4, 1960, Utah Pie by letter offered to sell Safeway, packed under its “Bel-air” label and delivered to its warehouse in Salt Lake City, frozen apple pies at $3 per dozen and frozen cherry and boysenberry pies at $3.30 per dozen. It was also selling at that time its “Sonny Boy” brand frozen pies for $2.88 per dozen, f. o. b. Salt Lake City, for delivery to buyers in Spokane. Beginning late in 1959 and continuing thereafter, during the period here involved, Utah Pie sold Associated Grocers frozen pies under its controlled label, “Frost ‘N’ Flame.” That pie, identical with the pie marketed by Utah Pie under its “Utah” brand, was exclusive with Associated Grocers and was sold at a price 50 to 60 cents per dozen less than Utah Pie charged nonfavored competing purchasers for its “Utah” brand. Associated Grocers’ tremendous competitive advantage, thus attained, caused it to support “Frost ‘N’ Flame” almost exclusively in its advertising. It also guaranteed Utah Pie’s dominant position in the market by foreclosing effective competition through sales by others to its largest buyer. “Frost ‘N’ Flame” quickly replaced “Utah” brand as the leading brand in the Salt Lake City market area. Utah Pie also produced pumpkin and mince pies for Safeway, the second largest buyer, under Safeway’s private label “Bel-air” brand, at prices substantially below those it charged for its identical pie sold under its “Utah” label to nonfavored competing stores. Utah Pie also continually offered Safeway a preferentially low price on its frozen fruit pies packed under its “Bel-air” label. Safeway rejected those offers, not because of price, but for the reasons fully set out, supra, in this opinion. In 1960, its first year of sales of “Bel-air” mince and pumpkin pies to Safeway, Utah Pie charged what it later said itself was a “rock bottom” price, with the hope that it would induce Safeway to drop its then supplier, Pet Milk, in favor of Utah Pie. In 1961, Utah Pie began selling its controlled label “Mayfresh” pies to Grand Central-American Stores, another of the four largest buyers in the Salt Lake City market area. The adverse impact on Utah Pie’s competitors was very substantial. From the time Utah Pie gave Associated Grocers its controlled label preference, Continental was unable to sell Associated Grocers a single pie. After Utah Pie began its controlled label sales to Grand Central Stores, Continental was unable to sell that company, and when the arrangement was extended early in 1962 to American Food Stores, which had been acquired by Grand Central, Continental lost the only chain that had been a more or less steady customer. Similarly, as to Safeway, Continental was unable to make a single sale to it until June 1961. In that month it made a sale to Safeway’s food stores in Salt Lake City, which we will deal with more particularly later. Continental enjoyed substantial sales in the Salt Lake City market area in 1957, but from 1958 to 1960, inclusive, it was a negligible competitor in that market area. With the advent of Utah Pie as a competitor in 1958, Continental’s volume in dozens fell to 754 and its market share to 1.3 per cent. In 1959, its volume of sales in dozens was 3,182 and its market share 2.9 per cent. In 1960, its volume of sales in dozens was 3,350 and its market share 1.8 per cent. In 1961, its sales increased and its total volume of sales in dozens in that year was 18,799.5 and its market share 8.3 per cent, but by the beginning of the fourth quarter of 1960, Continental had reduced the cost of its pies laid down in Salt Lake City to a point where it could more nearly compete with Utah Pie’s prices in the Salt Lake City market area. After the entry of Utah Pie into the Salt Lake City market in 1957, with its lower priced pies, Continental, because of its higher costs of production and transportation, was unable to keep its prices even for its smaller pie competitive with Utah Pie’s prices. In 1960, with the advent of Utah Pie’s controlled and private label prices, Continental ceased to maintain a sales representative in the Salt Lake City market area and was virtually out of that market. However, Continental continued in an effort to reduce its costs of production in order to become competitive. In 1960, it was successful in locating a “co-packing” operation in the heart of the California fruit growing region, which permitted fruit to be processed directly from the trees into the finished pie, without large intermediate packaging, storing, and shipping expenses. By such efforts, Continental was able to reduce its cost of apple pies laid down in Salt Lake City from approximately $3.75 per dozen in 1958 to approximately $2.80 per dozen in the second quarter of 1961. It was also able to reduce its costs of other flavors laid down in Salt Lake City in comparable amounts. Having thus reduced its costs, Continental was again in a position to offer its “Morton” brand pies to buyers in the Salt Lake City market area at prices which it hoped might prove to be competitive. In October 1960, Continental contracted with a Salt Lake City food broker in an effort to resume distribution of its full line of “Morton” brand frozen food products in the Salt Lake City market. For seven months, from November 1960 to June 1961, the broker attempted to sell Continental frozen pies at prices generally competitive with Utah Pie’s “Utah” brand. During that period the broker called on the trade throughout the Salt Lake City market area, offering various short-term price concessions in the form of advertising allowances on frozen pies, as well as other products in the Continental line. On the frozen pies, these price concessions ranged from $1.20 per dozen off the $4.50 list price on mince pies to 84 and 70 cents per dozen off the $4.00 list price on apple, cherry, and boysenberry pies, respectively. At these net prices, Continental was able to make only a total of seven sales to three small buyers in the outlying areas of Ogden, Boise, and Pocatello. It could not make sales to the major buyers, all located in Salt Lake City. The few sales it made did not adversely affect Utah Pie. During those seven months, Continental’s best price offers, made on the price-per-ounce basis used by professional buyers in comparing prices, were competitive with prices offered by Utah Pie on its “Utah” brand. By June 1961, it seemed apparent that if Continental was to recapture any portion of the market, it had to make better offers. Continental was unable to sell to small buyers in the Salt Lake City market area, because they lacked the refrigerated storage space necessary to buy direct from Continental. Continental could sell not less than a quarter of a truckload. Utah Pie, with its plant in Salt Lake City, was the only manufacturer who could feasibly sell directly to the small buyers. Of the largest buyers, Associated Grocers was handling “Frost ‘N’ Flame” brand at $3.10 per dozen, the lowest price on the market; Grand Central was about to close a deal with Utah Pie for its controlled label, “Mayfresh,” at the same prices charged Associated Grocers; and Safeway was buying its “Bel-air” brand frozen fruit pies exclusively from Pet Milk, from whom it could purchase three brands, including its own private label, in combined truckload shipments. Confronted with that situation, Continental’s broker recommended that it meet the price being charged to Associated Grocers and offered to Grand Central, by offering apple pies at $2.85 per dozen on full truck quantities. This was approximately the ounce-for-ounce equivalent of Utah Pie’s $3.10 per dozen price. Indeed, Continental’s price was 1.08 cents per ounce for its pies, and Utah Pie’s price for its pies was 1.07 cents per ounce. In comparing Continental’s prices with Utah Pie’s prices, the fact that Continental’s pies were 22 ounces in weight and Utah Pie’s pies were 24 ounces in weight should be taken into consideration. Professional buyers evaluate competing offers on a price-per-ounce basis, although retail purchasers do not always give attention to the difference in the size of pies. Moreover, Continental’s price was for full truck orders, only, while Utah Pie’s price applied to orders of any size, down to a few dozen. Continental approved the recommendation of its broker, and a $2.85 to $2.89 delivered price, depending on quantity ordered, for frozen apple pies was offered for a two-week period to a few buyers potentially able to buy from Continental. At the same time, Continental extended on a continuing basis for the Salt Lake City market area an offer of 30 cents per dozen freight allowance. At those prices, Continental made sales to American Food Stores in Ogden and to Associated Grocers, a small independent branch in Pocatello, both of which had previously purchased “Morton” pies, and at the time of the sales were not purchasing from Utah Pie. In June 1961, the merchandising manager for Safeway’s food stores in Salt Lake City purchased 6,250 dozen frozen apple pies, their requirement for five weeks, from Continental, and in July 1961, Grocers Wholesale of Salt Lake City, a small wholesaler just starting in business, ordered 1,000 dozen frozen pies from Continental. Utah Pie responded to Continental’s offer, which lasted only two weeks, and was once renewed a month later for the same period, by reducing its price on all of its 24-ounce apple pies, whatever the brand name, to $2.75 per dozen and offering all the customers unlimited quantities, to be delivered in lots of any size. It continued so to do until December 1, 1961, when it raised its price to $2.95 per dozen. Gaylen S. Rigby testified that Utah Pie realized a profit in its sales of frozen apple pies at $2.75 per dozen. When Continental learned of Utah Pie’s price reduction, and the merchandising manager for Safeway’s food stores in Salt Lake City urged it to further reduce its price, it agreed with him to cancel an order he had already placed at the $2.85 price; and also offered to cancel another order placed by American Food Stores, rather than reduce its price to Utah Pie’s offer, but American Food Stores did not elect to cancel its order. During the period 1958 to 1962, inclusive, in the Salt Lake City market area, Continental reached its highest sales volume in June and July 1961. Thereafter, its sales volume continuously decreased through 1962. In 1962, its sales volume was 8,685 dozen less than its 1961 volume. June and July 1961 were also high sales volume months for Utah Pie, higher than any of the five preceding months and many other earlier months; and from July 1961, on through 1962, its sales volume continued to increase. Its sales volume reached a new annual high in 1962, when it showed an in