Full opinion text
HEANEY, Circuit Judge. This case involves reciprocal antitrust actions arising out of the often fierce competition in the Midwest milk industry during the late 1960s and early 1970s. The actions were tried in three phases, generating an extensive record more than 15,000 pages in length. See In Re Midwest Milk Monopolization Litigation, 510 F.Supp. 381 (W.D. Mo.1981) (hereinafter Midwest Milk). The district court found that none of the parties presented sufficient evidence to meet their respective burdens of proof and, therefore, denied relief on all substantive claims. We affirm the district court’s conclusion that the National Farmer’s Organization (NFO) has not violated the antitrust laws. NFO’s dairy organizing and marketing efforts fall within the Capper-Volstead exemption which permits farmers to band together for the purpose of collectively marketing their products. With respect to NFO’s claims against Mid-America Dairymen, Inc. (Mid-Am), Associated Milk Producers, Inc. (AMPI), Central Milk Producers Cooperative (CMPC) and Associated Reserve Standby Pool Cooperative (ARSPC), we affirm in part and reverse in part. Mid-Am, AMPI and CMPC did conspire to monopolize milk and eliminate competition through the use of predatory, anticompetitive and unlawful tactics. Such conduct falls outside the Capper-Volstead exemption and violates Sections 1 and 2 of the Sherman Act. The contrary conclusion below is reversed and the case is remanded for a determination of the amount of damages NFO may recover. We affirm the dismissal of NFO’s claim against ARSPC because the evidence does not establish that this entity participated in the unlawful conspiracy. I. Factual Background and Governing Law. The structure of supply and pricing in the Midwest milk industry may be summarized as follows. Minnesota, Wisconsin and part of Southwest Missouri are the principal areas of surplus production, accounting for approximately twenty-five percent of the nation’s total milk production. These areas supply milk to the midwest region and to regional markets in the south, southwest and southeast. Milk production is highest in the spring and early summer, while demand for fluid milk products is usually highest in the fall. Thus, some reserve capacity is generally necessary to balance fluctuations between supply and demand. Grade A milk is that milk which is approved for sale as fluid milk for human consumption (Class I products) and is produced under stricter sanitary conditions than Grade B milk, which may be used only for manufactured products such as cheese and butter (Class II products). Thus, only Grade A may be used for Class I products, while both Grades A and B may be used for Class II products. The USDA regulates the minimum price paid for Grade A milk, which is based upon a “blend price” formula that accounts for the proportion of such milk allocated to Class I and Class II uses in any given market order. Class I uses command a higher price to compensate producers for the added cost of producing milk for such uses and to ensure an adequate supply of wholesome fluid milk. The Class I price is not the same in each regulated local market, however. The minimum price for such milk generally increases from north to south, in part to reflect the transportation cost of shipping from the surplus areas of Minnesota and Wisconsin to the more distant markets. Individual dairy farmers have too little market power to affect the price paid for their milk. Midwest Milk, supra, 510 F.Supp. at 443. By representing numerous farmers, however, dairy cooperatives may achieve higher prices for their members (called a “premium” when it exceeds the minimum federal order price) and this, of course, is a major purpose of such co-ops. It is the competition between the NFO and certain of the large midwest co-ops which forms the basis of this action. NFO was formed in 1955 as a nonprofit corporation to engage in protest, lobbying and organizing activities on behalf of farmers. Since 1957, it has also engaged in collective bargaining on behalf of farmers, the, principal aim of which is to improve farm income by raising the commodity prices paid to farmers. In the 1960s, NFO pursued a series of programs aimed specifically at the dairy industry — including efforts to establish a common marketing agency, to bargain collectively with established dairy co-ops and, finally, to directly market dairy products. These programs generally were not supported by the large, established dairy cooperatives. Particularly from 1969 onward (when NFO commenced its direct marketing efforts), NFO and the established co-ops became vigorous competitors in the marketing of raw Grade A milk produced in the midwest. The late 1960s were also marked by a massive consolidation of many midwestern co-ops into a few, larger cooperatives. Mid-Am was formed in 1968, ultimately combining what earlier had been more than sixty independent co-ops and dairies from across the midwest. AMPI was formed in 1969 and is comprised of more than seventy such entities. CMPC is a federation of co-ops, including AMPI, which supplies milk solely to the Chicago market. ARSPC is also a cooperative federation, including Mid-Am and AMPI as members, engaged in standby pooling operations with its members and with certain proprietary dairies. The pattern of consolidation and use of certain marketing practices led the Justice Department to sue both Mid-Am and AMPI for antitrust violations, matters which were settled by consent decrees. They are not significant here except insofar as such decrees may affect any claim by NFO for injunctive relief. The present case is a private antitrust action. It began in 1971 when Mid-Am filed several claims against NFO, of which essentially two remain on appeal: that NFO violated Section 1 of the Sherman Act and Section 4 of the Clayton Act by (1) engaging in illegal price-fixing with respect to marketing of milk, and (2) promoting a group boycott of Mid-Am by enlisting Mid-Am members to breach their contracts and refuse to deal with Mid-Am. NFO counterclaimed against Mid-Am, AMPI, CMPC and ARSPC, alleging unlawful monopolization, attempted monopolization and conspiracy to monopolize milk marketing and to unlawfully eliminate NFO as a competitor. AMPI then counterclaimed against NFO, alleging essentially the same price-fixing claims asserted by Mid-Am and alleging violations of the Agricultural Fair Practices Act as well as an illegal conspiracy to “destroy” AMPI and to monopolize milk. The allegations of the parties include assertions of actual and attempted monopolization under Section 2 of the Sherman Act, conspiracies to monopolize under Section 2, conspiracies to eliminate competition through unlawful means under Sections 1 and 2 and certain per se violations under Section 1. The parties are not often clear on which factual allegations are linked to which of their legal theories, and the nature of legal liability is further complicated by the Capper-Yolstead Act, 7 U.S.C. § 291, which immunizes certain activities of farm cooperatives. Before turning to the specific claims of each party, a summary of the applicable law will be helpful. A Section 2 claim of actual monopolization generally requires, inter alia, a showing of monopoly power in the relevant product and geographic market. See, e.g., United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). An attempt to monopolize claim generally requires the specific intent to monopolize and a showing of a “dangerous probability” of success, the latter of which is also examined by reference to the offender’s share of the relevant market. See, e.g., Walker Process Equip., Inc. v. Food Machinery & Chem. Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 350, 15 L.Ed.2d 247 (1965); AgraShell, Inc. v. Hammons Products Co., 479 F.2d 269, 285-287 (8th Cir.), cert. denied, 414 U.S. 1022, 94 S.Ct. 445, -38 L.Ed.2d 313 (1973). The “relevant market” element is important because monopolization and attempt cases often stand or fall on the definition of the product and geographic market. See, e.g., Von Kalinowski, Antitrust Laws and Trade Regulation, §§ 8.02[3]c, 9.01[3] (1982) (collecting cases) (hereinafter, Von Kalinowski ). A Section 2 claim for conspiracy to monopolize, however, generally does not require proof of a relevant market, at least not in the manner required in actual and attempted monopolization cases. Cf. Unit ed States v. DuPont de Nemours & Co., 351 U.S. 377, 395 n.23, 76 S.Ct. 994, 1007 n.23, 100 L.Ed. 1264 (1956). This is because the essential elements of a Section 2 conspiracy claim are concerted action and specific intent to monopolize, such that it need only be further shown that the conspiracy affected “some appreciable part of interstate commerce.” United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2d Cir. 1971). Some commentators have argued, however, that relevant market should be considered a necessary element of Section 2 conspiracy claims, at least in civil cases. See, e.g., 3 Von Kalinowski, supra, § 9.02[4]. In our view, a civil Section 2 conspiracy claim, standing alone, does require a minimal showing of product and geographic context — upon what and where the alleged conspiracy is focused — to ensure that a claim is not based upon some abstract showing of unlawful intent. The nature of such proof, however, is simply to show the context of the conspiracy. It need not be as rigorous as the relevant market showing for other Section 2 claims, because actual attainment or “dangerous probability” of monopoly power is not at issue in a conspiracy claim. These general antitrust principles must be construed in light of the immunity afforded farm cooperatives under the Cap-per-Volstead Act, 7 U.S.C. § 291. Such entities are exempt from liability for price-fixing and other joint marketing efforts which seek to achieve the lawful aims of the cooperative movement, i.e., collective marketing of farm products so as to improve economic conditions for individual farmers. See, e.g., Maryland & Virginia Milk Producers Assoc, v. United States, 362 U.S. 458, 466, 80 S.Ct. 847, 853, 4 L.Ed.2d 880 (1960). Cooperatives may combine with each other to do together what they may lawfully do individually and, hence, they cannot be conspirators to the extent their concerted action is in pursuit of legitimate aims. See Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962) (Sunkist I). Similarly, cooperatives may, singly or in combination with other exempt cooperatives, obtain monopoly power in a given market so long as it is achieved through natural growth, voluntary confederation and without resort to predatory or anti-competitive practices. E.g., Fairdale Farms v. Yankee Milk, Inc., 635 F.2d 1037, 1044 (2d Cir. 1980). Capper-Volstead provides only limited immunity and co-ops have occasionally sought to extend their market power in ways not intended by Congress. Co-ops cannot, for example, conspire or combine with nonexempt entities to fix prices or control supply, even though such activities are lawful when engaged in by co-ops alone. See United States v. Borden, 308 U.S. 188, 207-208, 60 S.Ct. 182, 192, 84 L.Ed. 181 (1939). Similarly, the Capper-Volstead Act “did not leave cooperatives free to * * * restrain and suppress competition with the cooperatives.” Maryland & Virginia Milk Producers Assoc., supra, 362 U.S. at 467, 80 S.Ct. at 853. The scope of prohibited practices has been increasingly clarified through case law. There is no immunity, for example, for attempts to restrain competition through discriminatory pricing, Knuth v. Erie-Crawford Dairy Cooperative Assoc., 395 F.2d 420, 424 (2d Cir. 1968); coercion of persons to join the cooperative, Gulf Coast Shrimpers & Oystermans Assoc, v. United States, 236 F.2d 658, 665 (5th Cir. 1956); predatory harassment, Otto Milk Co. v. United Dairy Farmers Cooperative Assoc., 388 F.2d 789, 797 (3d Cir. 1967); or illegal boycotts, North Texas Producers Assoc. v. Metzger Dairies, Inc., 348 F.2d 189, 196 (5th Cir. 1956). In Maryland & Virginia Milk Producers Assoc., supra, 362 U.S. at 468, 80 S.Ct. at 854, the Supreme Court summarized a number of “anticompetitive activities which are so far outside the ‘legitimate objects’ of a cooperative that, if proved, they would constitute clear violations of Section 2 of the Sherman Act.” Included among such activities were a coop’s attempt to interfere with truck ship.ments of nonmembers’ milk and its use of prior debt to influence a dairy to buy only from the co-op. Id. Moreover, in reviewing an otherwise lawful dairy acquisition as part of an alleged attempt to eliminate competition, the same Court held that “even lawful contracts and business activities may help to make up a pattern of conduct unlawful under the Sherman Act.” Id. at 472, 80 S.Ct. at 856. Whether a co-op’s given business practice is unlawful thus is not merely a question of whether it is “predatory” in a strict sense, e.g., lacking a legitimate business justification. As the Sixth Circuit recently noted, “[a]n anti-competitive practice may have economic justification, but its use may be undertaken with unlawful intent and in the desire to achieve an unlawful goal.” United States v. Dairymen, Inc., 660 F.2d 192, 195 (6th Cir. 1981). That Court squarely rejected the argument that Section 2 prohibits co-ops only from engaging in narrowly defined “predatory practices.” Id. at 194. We agree. A cooperative may not use its position, no matter how lawfully acquired, “to stifle or smother competition.” Maryland & Virginia Milk Producers Assoc., supra, 362 U.S. at 463, 80 S.Ct. at 851. Where such an unlawful intent is clear, overt acts in furtherance of this purpose are not immunized simply because they might also have other justifications or because they are merely “anti-competitive” rather than “predatory.” These limited immunity principles must also be harmonized with the ordinary intent element of Section 2. Attempted monopolization and conspiracy to monopolize usually require a showing of specific intent to monopolize, see supra at 1179-1180, but as we have noted, a cooperative may form such an intent lawfully. The impermissible aim is to pursue monopoly power by eliminating or restraining competition with the co-op through predatory or anti-competitive practices. An intent to do so is, therefore, the proper intent element of an attempted monopolization or conspiracy claim under Section 2. Of course, a conspiracy or combination to eliminate competition through such unlawful means would also violate Section 1 as an unreasonable restraint of trade. See Maryland & Virginia Milk Producers Assoc., supra, 362 U.S. at 463, 80 S.Ct. at 851. With this background in hand, we turn to the specific claims at issue. II. Claims Against NFO. A. Price-fixing and the Capper-Volstead Exemption. Central to the antitrust claims of Mid-Am and AMPI is the contention that a number of NFO programs constituted horizontal price-fixing, a per se violation of the Sherman Act unless exempt. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Mid-Am and AMPI further argue that NFO cannot claim the Capper-Volstead exemption, principally because a small number of non-farmers were nominal members of NFO during certain periods at issue here. The district court did not rule on the Capper-Volstead question because it concluded that NFO’s activities did not constitute price-fixing. Midwest Milk, supra, 510 F.Supp. at 423-426. We cannot agree with this conclusion. In reviewing the district court’s decision, we note that most of the relevant facts are not in dispute. The parties stipulated to 3,206 facts with respect to Mid-Am’s Phase I claims against NFO and the district court noted: “[T]he real disputes in regard to Phase I * * * present legal questions and relate, on the facts, to questions of what inferences should be drawn from stipulated and undisputed underlying factual circumstances.” Id. at 386. The stipulated facts are that, initially, NFO did not market milk at all, but instead promoted a common marketing agency for co-ops and individual farmers — an organization that could bargain more effectively by collectively representing a larger share of milk producers. NFO later presented “Master Contracts” to cooperatives which, by their terms, would be activated once sixty percent of the milk supply in a particular area was subject to such agreements. One purpose of the Master Contracts was to enable NFO to bargain for the price paid to producers for their milk. These Master Contracts were never activated, however, because the sixty percent share level was never reached. NFO later began direct marketing of milk, pursuant to “supply contracts” with various processors. Under these agreements, the processor would pay a flat formula price for all “NFO milk” which, in turn, would be paid to the individual producers of such milk. The foregoing practices are the principal basis of the price-fixing allegations made by both Mid-Am and AMPI. It is arguable whether NFO’s efforts to promote a common marketing agency could constitute actionable price-fixing. Such an entity, if ever formed, presumably could have been structured to comply with the Capper-Volstead exemption for cooperatives. The price-fixing dimension of the NFO Master Contract program is also somewhat unclear because such contracts were never activated and their operation in practice, therefore, cannot be fully ascertained. The NFO Supply Contracts, however, involved direct milk marketing by NFO. Individual farmers signed supplemental agreements under which NFO would represent them for purposes of selling milk. Buyers of NFO milk entered into supply contracts that provided a fixed formula price to be paid to the NFO National Trust which, in turn, was paid on a patronage basis to the individual producers of such milk. This arrangement plainly reflects a horizontal combination of producers agreeing to have NFO fix the prices at which their product will be sold. Unless exempt from the antitrust laws, horizontal price-fixing is, of course, a per se violation of the Sherman Act. See, e.g., United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927). Because the stipulated facts make out a prima facie case of price-fixing, it was error for the district court to conclude otherwise without reaching the issue of NFO’s exemption. NFO is nonetheless not liable for price-fixing, however, because its milk marketing arrangements were exempt under the Capper-Volstead Act. The Capper-Volstead Act, 7 U.S.C. § 291, was adopted in 1922 to make clear that the antitrust laws would not prohibit farmers from organizing collectively for purposes of marketing their products. The Supreme Court has construed the exemption as permitting “farmer-producers to * * * fix prices at which their cooperative will sell their produce * * * without thereby violating the antitrust laws.” Maryland & Virginia Milk Producers Assoc., supra, 362 U.S. at 466, 80 S.Ct. at 853 (emphasis added). Thus, the milk marketing arrangements of NFO are clearly within the scope of activities contemplated under the Capper-Volstead exemption. The exemption is an affirmative defense and NFO introduced sufficient evidence to establish prima facie entitlement to the exemption. The stipulated facts show that NFO is a nonprofit, non-stock corporation which gives collective bargaining and marketing services exclusively to its members in connection with their agricultural commodities. The record further shows that in 1970, the Department of Agriculture deemed NFO to be a qualified cooperative marketing association, although the parties disputed that determination when it was made and do so here as well., The challenge to NFO’s exemption relates to (1) the corporate structure of its marketing program, and (2) certain non-farmers who appear to have been members of NFO at various periods. The structural issue arises because NFO’s bylaws prohibit distribution of income to its members. As a result, when it began to market milk, NFO created a separate legal entity — essentially a trust custodial account — that received payment for milk sales and, in turn, paid the producers. The Capper-Volstead Act requires that a cooperative be “operated for the mutual benefit of the members thereof, as such producers.” 7 U.S.C. § 291. Mid-Am argues that because NFO cannot distribute income, its marketing program cannot be considered to be “for the mutual benefit” of its members. This precise claim' was squarely rejected in Waters v. NFO, Inc., 328 F.Supp. 1229, 1245 (S.D.Ind.1971). We also find no merit in Mid-Am’s claim. Mid-Am concedes that the NFO Trust properly operates for the mutual benefit of producer-members who market through NFO. Mid-Am insists, however, that each entity must be considered entirely independent for Capper-Volstead purposes. Such reasoning is contrary to the facts and would defeat the purpose of the Capper-Volstead exemption. NFO members who sold milk were in fact paid on a patronage basis for their products and buyers of such milk who paid the NFO National Trust knew they were dealing with NFO as essentially one organization. Under less compelling circumstances, the Supreme Court has indicated that organizational distinctions should not be permitted to defeat the clear purposes of the Capper-Volstead exemption. In Sunkist I, supra, the Supreme Court was presented with three legally distinct entities formed by a huge group of citrus growers. The three entities were alleged to have illegally conspired with each other, although the actual activity was lawful if engaged in by any one cooperative. The Supreme Court held they must be considered as one organization for CapperVolstead purposes, noting: To hold otherwise would impose grave legal consequences upon organizational distinctions that are of de minimus meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts. Sunkist I, supra, 370 U.S. at 29, 82 S.Ct. at 1135. The Sunkist I rationale applies with special force where, as here, it is obvious that NFO’s milk marketing, through the mechanism of the Trust Account, was fairly operated for the mutual benefit of all dairy farmers who participated. The second and primary challenge to NFO’s exemption, made by both Mid-Am and AMPI, relates to a small number of persons who appear to have been non-farmer members of NFO for certain periods in the late 1960s and early 1970s. Although this issue is more serious than the structural claim raised by Mid-Am, we again are guided by the overriding purpose of the CapperVolstead Act which, in our view, supports upholding the exemption claimed by NFO. The unmistakeable purpose of the Capper-Volstead Act is to permit farmers and only farmers to band together and benefit economically from collective marketing of their products. See, e.g., Case-Swayne Co., Inc. v. Sunkist Growers, Inc., 389 U.S. 384, 391-393, 88 S.Ct. 528, 532-533, 19 L.Ed.2d 621 (1967) (Sunkist II). Here, this purpose unarguably has been served by NFO. There is no dispute that only dairy farmers — true producers — marketed milk through NFO. Only such farmers sold milk through NFO and only such farmers were paid for NFO’s sale of their milk products. Moreover, NFO complied with the requirement that non-farmers be excluded from membership by adopting bylaws in 1970 which make clear that any member who quits farming “shall automatically cease to be a member, and his or her membership agreement shall become null and void.” Such bylaws also restrict membership to those engaged in actual production of agricultural products. The non-farmer issue arises largely because of ignorance or sloppiness on the part of NFO in policing its membership rolls. The stipulated record includes letters from approximately twenty-five individuals which generally indicate they never were or no longer were farmers, had received membership dues billings from NFO and did not want to pay such dues. Mid-Am and AMPI assert that these letters are conclusive proof that NFO had non-farmer members and thus should be denied the Capper-Volstead exemption. On the unusual facts of this case, we disagree. The issue is a close one because of language in a 1978 Supreme Court decision which suggests that even one non-farmer member disqualifies a cooperative from claiming the Capper-Volstead exemption. See National Broiler Marketing Assoc, v. United States, 436 U.S. 816, 827-829, 98 S.Ct. 2122, 2129-2130, 56 L.Ed.2d 728 (1978). Although it was clear prior to National Broiler that only farmers were within the scope of the Capper-Volstead exemption, it was not at all clear that careless membership practices would, standing alone, preclude operation of the exemption. The district court read National Broiler as imposing a duty to police one’s membership to ensure that “not even one” non-farmer is a member. Midwest Milk, supra, 510 F.Supp. at 426. On this ground, the district court indicated that if it had reached the exemption question, it would have ruled that NFO was disqualified. The district court further indicated that, except for National Broiler, it would be inclined to sustain NFO’s exemption because the non-farmer issue was “factually predicated upon mere record-keeping formalities — the mere presence on the membership list of names of individuals who, by express bylaw provision, had been stripped of all vestiges of membership.” Id. at 425. The district court’s discussion of the exemption is, of course, only dicta because the Court expressly did not reach the issue. It is helpful here, however, because it confirms how different the NFO situation is from the non-farmer issue in National Broiler. National Broiler involved a marketing association of vertically integrated poultry producers. A number of the members were only processors in that they did not own or control breeder flocks, hatcheries or grow-out facilities. Id. at 822, 98 S.Ct. at 2127. The United States challenged the exemption because these members were essentially middlemen, not farmers, and the Supreme Court agreed that Congress did not intend to exempt “even one” such middleman. Id. at 826-828, 98 S.Ct. at 2129-2130. The Supreme Court’s rationale is consistent with its earlier decision in Sunkist II, supra, in which it denied the Capper-Volstead exemption to a citrus growers association because approximately fifteen percent of its members were non-farmer processors. Both cases make clear that no middlemen are to be permitted to “infiltrate” otherwise exempt cooperatives; and that vertical integration in agricultural industries cannot extend to a point where non-farmer middlemen can claim the Cap-per-Volstead shield. The “not even one” language in National Broiler cannot be divorced from that Court’s emphasis on the economic role of such middlemen and on the intent of Congress not to permit such middlemen to participate in price-fixing. National Broiler, supra, 436 U.S. at 827-829, 98 S.Ct. at 2129-2130. There is no suggestion here that dairy industry processors were members of NFO. On the contrary, the stipulated record shows that the non-farmers who were putative members of NFO included, for example, a car dealer, a truck driver, a fertilizer salesman, a school teacher, a retired farmer, a TV salesman and a telephone company employee. The letters in the record further indicate that many of these non-farmers never considered themselves NFO members. When they received dues’ billings, they typically wrote of having made “donations” to “help get things started” and of not wanting to continue doing so. It appears that NFO may have been overly broad in its solicitation of support, but receipt of twenty-five dollars in “dues” from a handful of individuals is hardly the same as shielding middlemen from price-fixing liability,, as in Sunkist II and National Broiler. Moreover, unlike the cooperatives in those two cases, NFO does not contend that the putative non-farmer members should be permitted to claim any exemption. Indeed, NFO’s bylaws prohibit such persons from asserting any membership interest and there is no contention that such persons bought or sold milk through NFO. We are not called upon to decide whether National Broiler requires a rigid rule for membership practices employed after that case was decided in 1978. The district court’s view on such a question may well be proper. The issue here only relates to the late 1960s and early 1970s and is much narrower. Simply put, the question is whether NFO can claim the exemption for its milk marketing activities during the period at issue here, when such activities were conducted exclusively for true dairy farmers, notwithstanding that a small number of non-farmers, unrelated to the dairy industry, apparently paid dues to NFO during that period. We think the answer is “yes” in light of the overriding purpose of the Capper-Volstead Act. As Justice Brennan noted, concurring in National Broiler, supra, 436 U.S. at 830, 98 S.Ct. at 2131, the Capper-Volstead Act was “populist legislation” designed to allow farmers to band together “in order to survive against the economically dominant manufacturing, supplier, and purchasing interests with which they had to interrelate.” NFO is the kind of populist farm organization contemplated by the Capper-Volstead Act. Regardless of the wisdom of its programs, NFO’s entry into milk marketing exclusively on behalf of dairy farmers is precisely the kind of cooperative endeavor that Congress intended not to be subject to antitrust attack. To hold otherwise would defeat the purpose of the Capper-Volstead Act. Moreover, it would be cruelly ironic to exempt large co-ops like Mid-Am and AMPI — -professionally managed and operated by many non-farmers — while denying exemption to the farmers who banded together in NFO. We decline to do so. Thus, we hold that the milk marketing contracts and programs promoted by NFO during the period at issue in this action do not constitute actionable price-fixing in light of the Capper-Volstead exemption. B. Mid-Am’s Boycott Claims. Mid-Am contends that NFO enlisted dairy farmers in a boycott of Mid-Am with the intent to force Mid-Am to sign an NFO milk supply contract. Mid-Am further argues that such a group boycott is a per se antitrust violation regardless of whether its promoter is exempt under the Capper-Volstead Act. We agree that the Capper-Volstead exemption does not shield a cooperative from liability for predatory trade practices, including group boycotts. See supra, at 1182-1183. Here, however, the district court rejected the crucial factual findings upon which Mid-Am’s claim is based. After close analysis of the record, we cannot say the district court’s findings are clearly erroneous. Mid-Am’s theory essentially is that virtually all of NFO’s milk marketing activity had the sole purpose of eliminating the established cooperatives. It construes NFO’s solicitation of producers as an attempt to induce such farmers to breach their agreements with Mid-Am. It argues that NFO’s entry into direct marketing was not as a bona fide competitor, but rather was only intended to pressure Mid-Am into signing an NFO Supply Contract. Similarly, it characterizes NFO’s sponsorship of milk withholding as coercion of the co-ops, again to pressure them into signing a supply contract. In this context, Mid-Am makes much out of a comment by an NFO official in a meeting with Mid-Am to the effect that “NFO had been a burr under the saddle of the co-ops and would just have to continue to be.” We have no doubt that NFO was such a “burr.” That alone, of course, does not violate the antitrust laws. More important, Mid-Am’s characterization of NFO’s activities was squarely rejected by the district court. It is true that many Mid-Am members were the object of NFO’s solicitations, but this was inevitable because in some regions, nearly all of the producers had been Mid-Am members. Indeed, prior to NFO’s entry into marketing in Missouri, some dairy farmers had no practical alternative to Mid-Am. Midwest Milk, supra, 510 F.Supp. at 469. Solicitation of business, however, is not the same as inducing a breach of contract; and Mid-Am failed to prove that NFO’s activities rose to the level of the latter. Mid-Am’s position would, on this record, employ the antitrust laws as a barrier to market entry — stifling the very competition which such laws are designed to encourage. We also note that Mid-Am lost and does not appeal its state law claim that NFO allegedly induced dairy farmers to breach their Mid-Am contracts. NFO’s sponsorship of a two-week milk withholding action was broad in scope and part of concerted demands for higher dairy prices. The court found that no individual farmer’s decision to withhold milk was coerced by NFO or otherwise. When not directed at the elimination of competition, this type of activity, as a general matter, is within the scope of the Capper-Volstead exemption. The court found that Mid-Am failed to show that the action was intended to eliminate co-ops and we cannot say this finding was clearly erroneous. Finally, we cannot agree with Mid-Am that NFO did not intend to be a bona fide competitor in milk marketing. We recognize that NFO’s marketing program was fraught with problems, but there is no merit in Mid-Am’s suggestion that it was just another “expedient” in attempting to eliminate the established co-ops. As the district court noted: [T]he record would come closer to supporting a set of findings that NFO became a victim of its own propaganda and that its ignorance and inexperience in the dairy field required it to experiment with one unsound idea after another. Midwest Milk, supra, 510 F.Supp. at 420. We affirm the district court’s conclusion that Mid-Am failed to carry its burden with respect to its claim that NFO engaged in predatory practices and an illegal boycott. C. AMPI’s Counterclaim. AMPI’s claims were tried in Phase III of the proceedings below. Its price-fixing claim, of course, is resolved by our holding above that NFO’s activity was shielded by the Capper-Yolstead Act, see supra, at 1186-1187. The gravamen of its other charges, as characterized by AMPI, is that NFO and others conspired to gain control of sufficient milk as to control the price of milk nationwide and employed the predatory practice of inducing AMPI members to breach their agreements with AMPI. The alleged conspiracy also was aimed at “destroying” AMPI, presumably as a competitor of NFO. AMPI also contends that NFO violated the Agricultural Fair Practices Act (AFPA), 7 U.S.C. § 2308. On this record, there can be no substantive claim of attempted monopolization under Section 2. A necessary element of such a claim is a showing of a “dangerous probability” of success, which no one asserts was ever posed by NFO. Indeed, AMPI characterizes NFO’s marketing programs as “grandiose” but “inept and incompetent” and the district court found them “quite unsuccessful.” Midwest Milk, supra, 510 F.Supp. at 419-420. The only issue then is an alleged conspiracy under Sections 1 and 2, which AMPI asserts operated at two levels. One alleged conspiracy was between NFO and certain nonexempt entities. Specifically, the alleged coconspirators were certain milk haulers, bottling plants and others that entered into various contracts with NFO in connection with its direct marketing efforts. The district court expressly found that these were normal business relationships and that such entities did not conspire with NFO in terms of any matters which might involve antitrust concerns. On appeal, AMPI has offered nothing which would show this conclusion to be erroneous. The other alleged conspiracy was internal, involving various officers and employees of NFO. AMPI contends that these individuals conspired to eliminate AMPI as a competitor and employed predatory practices toward this goal. The district court did not reach the question of whether NFO is legally capable of conspiracy in this manner, and there are unsettled questions in the law of so-called intra-corporate conspiracies. Cf. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969); Shoenberg Farms, Inc. v. Denver Milk Producers, Inc., 231 F.Supp. 266 (D.Colo.1964); 3 Von Kalinowski, supra, § 7.02[1]. We need not reach this legal issue, however, because AMPI’s claims fail as a factual matter. AMPI concedes that NFO’s attempt to achieve a common marketing agency, prior to its direct marketing efforts, was pursued by seeking to have the existing cooperatives join together. The record further shows that until 1969, NFO supported the concept of voluntarily merging co-ops to form stronger bargaining units. Thus, these efforts hardly reflect an intent to destroy the co-ops, as AMPI argues. AMPI’s more serious contention is that NFO employed unlawful, predatory practices once it commenced direct marketing — specifically, coercing farmers to leave AMPI, join NFO, or retain their membership in NFO and unlawfully inducing AMPI members to breach their marketing contracts. The coercion claim is also alleged as a violation of the AFPA, 7 U.S.C. § 2303. The district court, however, expressly found that NFO coerced no farmers, either its members or AMPI members, and nothing in the record would make this finding erroneous. See Midwest Milk, supra, 510 F.Supp. at 526-527. The inducement of breach contention is closely related to AMPI’s claim that NFO used fraudulent misrepresentations to induce AMPI members to “switch” to NFO, thereby violating the AFPA. These issues have been extensively litigated in a Wisconsin state court action initiated by AMPI, upon which NFO and AMPI now make assertions of collateral estoppel and res judicata. There is no doubt that by 1971, NFO and AMPI were in full-scale competition for milk producers. NFO solicited dairy farmers, including AMPI members, to ship through NFO’s direct marketing program. AMPI brought suit in Wisconsin state court to stop NFO’s activity, commencing litigation which has twice reached the Wisconsin Supreme Court and recently an intermediate appellate court as well. The Wisconsin trial court has adopted AMPI’s view and enjoined NFO three times and on all three occasions, it has been reversed and had its orders vacated. In Pure Milk Products Cooperative v. NFO, 64 Wis.2d 241, 219 N.W.2d 564 (1974) (Pure Milk I) the Wisconsin Supreme Court reversed a temporary injunction which had been entered against NFO. It found the injunction overly broad, indicating that legitimate competition would allow inducement of AMPI members to terminate their marketing agreements in accordance with the terms of such contracts. Id. at 572, 575. It also found the record inadequate with respect to any claim of fraudulent misrepresentations. Id. On remand, the trial court found that approximately 1,200 AMPI members had been induced by NFO to “switch” milk shipments to NFO and that such actions breached their marketing agreements with AMPI. It further found that NFO had made fraudulent misrepresentations in the course of soliciting AMPI members. On appeal, in Pure Milk Products Cooperative v. NFO, 90 Wis.2d 781, 280 N.W.2d 691 (1979) (Pure Milk II), the Wisconsin Supreme Court again reversed. The court emphasized AMPI’s practice of permitting its members to ship to plants of their choice without thereby breaching their AMPI contracts. Id., 280 N.W.2d at 696-698. On this basis, the Supreme Court squarely held that the mere “switching” of shipments to NFO, and NFO’s solicitation of such shipments, were not a breach of any contract. Id. at 697, 698. The Court also reversed the finding of fraudulent misrepresentations, directing that on remand such questions be considered only in the context of the approximately 160 AMPI members who had terminated their marketing agreement altogether. Id. at 701. On remand, the trial court reissued a broad injunction based on findings which were contrary to the Supreme Court’s mandate in Pure Milk II. This third order was recently reversed by an intermediate appellate court in an opinion which makes clear that the issue of fraudulent representations is still open upon appellate review. Pure Milk Products Cooperative v. NFO, 105 Wis.2d 758, 317 N.W.2d 510 (1981) (Pure Milk III). AMPI argues that because of the third decision of the Wisconsin trial court, collateral estoppel bars NFO from contesting whether it made fraudulent misrepresentations. This is plainly wrong. That trial court’s findings have been reversed three times and, in the last instance, its misrepresentation findings were expressly reserved for further review. Such determinations thus lack the finality required for collateral estoppel. NFO, on the other hand, argues that res judicata bars AMPI’s assertion of both its inducement of breach and misrepresentation claims. This too misses the mark. Res judicata involves claim preclusion, not issue preclusion. Here, AMPI’s claim under the AFPA is a different cause of action from its state law claim. Thus, AMPI’s assertion that NFO made “knowing misrepresentations” in violation of the AFPA is properly raised in the present action and must rest, not on collateral estoppel, but on the facts adduced below. It appears, however, that collateral estoppel would bar AMPI’s assertion that NFO’s solicitation of AMPI members constituted an inducement to breach their contracts. All of the elements of the collateral estoppel doctrine are present. The parties in the Wisconsin action are identical to the parties here. The issue — whether NFO’s solicitations induced a breach of contract by AMPI members — is identical to the issue here, although it is now cast as part of a predatory practice claim. The parties had a full and fair opportunity to litigate the issue, and the Wisconsin Supreme Court reached a final judgment. Its resolution of the issue was necessary to its judgment and was expressly reached. Collateral estoppel, therefore, seems applicable. See Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 973-974, 59 L.Ed.2d 210 (1979); Oldham v. Pritchett, 599 F.2d 274 (8th Cir. 1979). Indeed, AMPI argued vigorously in its brief that judicial economy and federalism principles weigh heavily in favor of precluding relitigation of issues settled in the Wisconsin litigation. The district court, however, rejected AMPI’s inducement of breach claims as a factual matter on the merits. Much of the evidence adduced below consisted of the evidence adduced in the Wisconsin litigation, where AMPI also lost its contention that “switching” members constituted a contract breach. After reviewing the record, we cannot find the district court’s conclusion clearly erroneous. The only remaining claim against NFO is that it made knowing misrepresentations in violation of the AFPA, 7 U.S.C. § 2303(c), (e) & (f). Whether a “knowing” violation requires intentional conduct or mere negligence is not clear under the Act and has not been addressed by any court. We find it unnecessary to reach this issue, however. The district court found both that there was insufficient evidence that false representations about AMPI were made and that, in any event, there were no “knowing” violations of the Act. Midwest Milk, supra, 510 F.Supp. at 526-527. Even reviewing these conclusions under a negligence standard, we cannot say they were clearly erroneous. For all of the foregoing reasons, we affirm the district court’s judgment against Mid-Am and AMPI in their Phase I and Phase III claims against NFO. III. NFO’s Claims Against Mid-Am, AMPI, CMPC and ARSPC. NFO’s claims were tried over an eighteen-month period, comprising the bulk of the record. NFO alleges that Mid-Am, AMPI, CMPC and ARSPC conspired to eliminate competition, in violation of Section 1 of the Sherman Act, and monopolized, attempted to monopolize and conspired to monopolize, in violation of Section 2 of the Sherman Act. The district court ruled that NFO failed to meet its burden of proof on any of its theories under Sections 1 and 2. Midwest Milk, supra, 510 F.Supp. at 434-435, 502-503. Review of this conclusion is difficult because of the paucity of the factual findings. On many of the crucial factual issues, the court’s findings consist only of seriatum rejections of findings proposed by NFO — in most instances, without explanation and without adoption of alternative findings. These “negative” findings are nonetheless against NFO on such issues, and we review all of the findings under the clearly erroneous standard. Based upon such findings, we affirm the district court’s dismissal of NFO’s actual and attempted monopolization claims. The district court’s affirmative factual findings and record evidence in support thereof, however, unmistakably show that AMPI, CMPC and Mid-Am illegally conspired to monopolize Grade A milk marketing and to eliminate competition in the marketing of such milk, and that NFO was a specific target of the conspiracy. This conspiracy violates Sections 1 and 2 of the Sherman Act, notwithstanding the CapperVolstead exemption, because it involved the concerted use of predatory and other unlawful, anti-competitive means to eliminate competition and pursue monopoly power. We affirm the dismissal of NFO’s claim against ARSPC, however, because the record does not clearly establish it was a participant in the conspiracy. A. Actual and Attempted Monopolization. One essential element of these claims is a showing of the relevant market within which the offender achieved either monopoly power or a “dangerous probability” of such power. See supra, at 1181. The district court ruled that NFO failed to establish relevant product or geographic markets or make a sufficient showing of market power within a properly defined market. Midwest Milk, supra, 510 F.Supp. at 502. In our view, NFO clearly established that raw Grade A milk is a relevant product market. The court’s affirmative findings are sufficient to prove this element, and it was legal error not to so conclude. Briefly, the findings show that only Grade A milk may be used for fluid products for human consumption; that Grade B milk, by definition, cannot be a substitute for or be interchanged with Grade A milk for Glass I uses; that demand for Grade A fluid products is relatively inelastic; that production of Grade A milk requires stricter sanitary methods and necessitates conversion costs and higher production costs than Grade B milk; that Grade A milk is supported by minimum federally regulated prices, while Grade B prices are established in the open market; and that “premium” prices negotiated by cooperatives primarily relate to Grade A milk used for Class I purposes. Midwest Milk, supra, 510 F.Supp. at 437-443. In any commercially meaningful sense, Grade A milk is thus a relevant product market for antitrust purposes and has been deemed such in other milk monopolization cases. See, e.g., United States v. Dairyman, Inc., 660 F.2d 192 (6th Cir. 1981). The relevant geographic market and market share evidence is more problematical, chiefly because it does not appear that NFO had a consistent theory of the geography underlying its actual and attempted monopolization claims. At trial and on appeal, NFO has variously asserted that the relevant geographic market is a ten-state region, or ten federal order markets therein, or a number of other submarkets, such as the regulated Chicago market (Order 30). The district court, however, found NFO’s market definitions and market share data inadequate. On this record, there is no doubt that AMPI, Mid-Am and CMPC are the major marketers of milk produced in the Midwest. CMPC’s control of supply in the Chicago market, for example, is so great that at least one Chicago dairy simply could not meet its full supply needs without turning to CMPC. See Midwest Milk, supra, 510 F.Supp. at 482. Similarly, prior to NFO’s entry into Grade A marketing in Missouri, “some of the Grade A milk producers in Southern Missouri had no practicable alternative other than to ship through Mid-Am.” Id. at 469. Moreover, the official USDA milk pooling statistics reported in the findings overwhelmingly establish the significant market position of AMPI, CMPC and Mid-Am — singly or together pooling from seventy percent to over ninety percent of all milk pooled in various of the major federal order markets at issue here. Id. at 448-449; see also id. at 488, 496. The defendants do not deny having such significant market power. Indeed, the record reveals public assertions by Mid-Am that it controls over eighty-five percent of the Grade A milk in a number of “strategic” metropolitan markets; and similar assertions by CMPC that it represents over ninety percent of the producers selling into the Chicago market, and supplies over ninety percent of that market’s fluid milk use. The defendants, however, dispute the sufficiency of NFO’s market definition and share data, arguing that it fails to account for milk which is pooled on one order but actually sold in another, or for certain unregulated milk supplies not reflected in the “pooling” statistics or for other milk movements between orders and across boundaries variously proposed as market definitions by NFO. This raises issues of fact which the district court resolved against NFO, albeit without explanation. We thus are presented with the certainty, on this record, that AMPI, CMPC and Mid-Am are the major marketers of raw milk produced in the Midwest, but with uncertainty as to monopoly power in a properly defined market or submarkets. The burden to show monopoly power or “dangerous probability” of it, however, is on NFO. We cannot say it was clearly erroneous for the district court to find that NFO’s statistical evidence was not sufficiently well defined to support its claims of actual and attempted monopolization. Accordingly, we affirm the dismissal of such claims. B. The Conspiracy to Monopolize and Eliminate Competition. NFO alleges that AMPI, Mid-Am, CMPC and ARSPC conspired to monopolize and eliminate competition in the marketing of raw Grade A milk. Moreover, it alleges that the conspiracy involved concerted use of predatory and other unlawful tactics and that NFO was a specific target of the conspiracy. Such a conspiracy would violate Section 2 of the Sherman Act to the extent its aim is to unlawfully acquire monopoly power; it would violate Section 1 to the extent its aim is to unlawfully eliminate competition. See Maryland & Virginia Milk Producers Assoc., supra, 362 U.S. at 463, 80 S.Ct. at 851 (Sections 1, 2 and 3 “closely overlap and the same kind of predatory practices may show violations of all.”). A threshold question is the nature of the relevant market and intent elements of this claim. The record evidence as to relevant market is clearly sufficient to support NFO’s Section 2 conspiracy claim. It is generally held that relevant market is not a necessary element of such a claim because actual attainment or “dangerous probability” of monopoly power are not at issue. See supra, at 1181-1182. In our view, a minimal showing must nonetheless be made as to the product and geographic context of the alleged conspiracy. Here, NFO made a more than adequate showing of the ten-state region within which the defendants engaged in concerted efforts to gain control over and eliminate NFO as a competitor in the marketing of raw Grade A milk. NFO has also demonstrated that the conspiracy affects a substantial amount of interstate commerce — -millions of pounds of Grade A milk shipments by NFO alone. See, e.g., Forgett v. Scharf, 181 F.2d 754, 787 (3d Cir.), cert. denied, 340 U.S. 825, 71 S.Ct. 59, 95 L.Ed. 606 (1950); 3 Von Kalinowski, supra, § 9.02[4]. Of course, an unlawful conspiracy under Section 2 necessarily violates Section 1 as an “unreasonable” restraint of trade. The more crucial issue is the element of intent. Here, the defendants do not seriously dispute, nor could they on this record, that they acted in concert with the intent to eliminate competition and gain sufficient control of milk to enable them to set higher prices. They properly argue that such intent is not unlawful, standing alone, because Capper-Volstead cooperatives may agree to eliminate competition between themselves and to pursue monopoly power through lawful means. The prohibited aim is to pursue such power or seek to eliminate competition through predatory, anticompetitive or other unlawful tactics. It is this unlawful intent which NFO must establish and which it has shown as to Mid-Am, AMPI and CMPC, but not as to ARSPC. We summarize below the defendants’ overt acts which NFO contends evidence the illegal conspiracy. Most of the actual conduct is not in dispute as much as is the inference of intent and conspiracy: whether the actions were in concert and were unlawfully intended to eliminate competition in general and NFO in particular; or whether they were unilateral actions taken for legitimate business reasons. The district court appears to have viewed the many incidents discussed below as isolated, self-contained actions. We recognize that when viewed in this manner, there is conflicting record evidence which could support findings that at least some of the conduct was not unlawful. When the conduct is viewed as a whole, however, there is only one conclusion that can be drawn. AMPI, Mid-Am and CMPC did conspire to monopolize and eliminate competition in the marketing of Grade A milk produced in the Midwest, through the use of discriminatory pricing, coercive supply disruptions and threats of similar conduct, as well as bad faith harassment and threats of litigation against independent buyers of NFO milk. Although some of the district court’s “negative findings” are clearly erroneous, as described below, it is in large measure the court’s affirmative findings — the actual conduct viewed as a whole — which establishes the unlawful conspiracy. The findings and record evidence, however, do not clearly show that ARSPC participated in the conspiracy and we therefore affirm the dismissal of NFO’s claim against this co-op. The specific overt acts of the defendants must be viewed in light of their concerted marketing practices as a whole. AMPI and Mid-Am contend they are vigorous competitors with each other, but while they have competed at various times, the concerted nature of their marketing activities is undeniable. AMPI became a member of Mid-Am and Mid-Am became a member of AMPI. They entered into consignment agreements which effectively divided up certain marketing territories in the Midwest, South and Southwest. Mid-Am consigned some of its members’ milk to AMPI for sale in the Oklahoma Metropolitan, North Texas, South Texas and Central Arkansas markets. Midwest Milk, supra, 510 F.Supp. at 452. Mid-Am and AMPI reached a similar consignment agreement covering the Wichita market “because there was a possibility that Mid-Am was going to begin making sales in Wichita.” Id. These reciprocal arrangements were extended to cover the St. Louis, Nebraska — Western Iowa, Des Moines, Kansas City and Twin Cities federal market orders, the result being that Mid-Am marketed AMPI milk in some areas, and AMPI marketed Mid-Am milk in others. Id. To help facilitate their joint activities, Mid-Am has since 1969, assigned staff as liason with AMPI “to eliminate problems which may develop between the two organizations.” Id. at 479. CMPC is a federation of cooperatives which exists to sell milk into the greater Chicago market. As CMPC characterizes its own federated structure, it could function only through persons employed by or representing its constituent co-ops. CMPC Br. at 50, n.168. AMPI is a member of CMPC and, moreover, serves as CMPC’s marketing agent for Chicago. Midwest Milk, supra, 510 F.Supp. at 476. An AMPI official, for example, was chairman of the CMPC price development committee. With these overlapping roles of AMPI and CMPC staff, it sometimes is difficult to distinguish which entity is responsible for specific actions in the Chicago market, but the generally concerted nature of CMPC and AMPI marketing efforts is obvious. NFO began to assemble a direct marketing program in 1969, and aggressive competition ensued between NFO and AMPI, Mid-Am and CMPC, both to garner farmers as producer-suppliers and to win supply contracts from proprietary dairies. As a new entrant, NFO sometimes offered milk at lower prices than the principal co-ops, but could initially pay its members competitive prices because its overhead apparently was not as great as that of the large, established co-ops. Id. at 457. NFO’s marketing efforts became a serious problem for Mid-Am, AMPI and CMPC. Mid-Am viewed NFO as a competitor in the raw milk supply business, and by 1970, “Mid-Am viewed NFO as a substantial threat to Mid-Am’s maintenance of its membership.” Id. at 457-458. AMPI, too, experienced significant membership problems from NFO and commenced extensive litigation in Wisconsin with the stated purpose of protecting marketing contracts with its members. See supra, at 1189-1190. Moreover, AMPI, CMPC’s marketing agent, was concerned that NFO’s price cutting would “undermine” the premiums being paid on the Chicago market. Midwest Milk, supra, 510 F.Supp. at 479. The Chicago price problems were of tremendous concern to CMPC and AMPI which sold directly in that market, and were also important to Mid-Am, as one of its officials testified, because Chicago essentially functioned like a base-pricing point for other markets served by Mid-Am. See id.-, Hanman Dep. at 180-181, 863-872. If there could be any doubt that CMPC, AMPI and Mid-Am jointly perceived NFO as a competitive threat, such doubt is removed by the district court’s express findings that Mid-Am and AMPI officials met from time to time to discuss their concerns regarding NFO and that senior officials of CMPC, Mid-Am and AMPI — during one of the more fierce stages of the competition— assembled a joint meeting specifically to discuss NFO’s “cut-rate” marketing and solicitation of their members. Midwest Milk, supra, 510 F.Supp. at 469, 480. Against this background, we turn to evidence of the overt acts of CMPC, AMPI and Mid-Am, largely as described in the district court’s affirmative findings of fact. 1. Attempt to block NFO’s qualification. To effectively compete in the marketing of milk, NFO had to become “qualified” by the USDA on various federal market orders. See id. at 439-441. Mid-Am, AMPI and CMPC engaged in a series of governmental contacts aimed at blocking NFO from becoming so “qualified.” Contacts were made with the Wisconsin Department of Agriculture, the Missouri attorney general, regional USDA administrators and more senior USDA officials. At one point, these defendants proposed an amendment to the definition of “cooperative association” which would have seriously hampered NFO’s efforts to become qualified. Some of the letters, requests and initiatives were made by Mid-Am or AMPI alone, although copies of such correspondence were typically circulated to the other co-op or co-ops. The effort clearly was a coordinated one joined in by CMPC, AMPI and Mid-Am, the purpose of which “was to foreclose NFO from the marketing of Grade A milk under Federal Orders as a qualified cooperative.” Id. at 458; see also id. at 469, 480-481. The three co-ops contend that they objected to NFO in good faith and that, in any event, their efforts cannot constitute an antitrust violation because of the NoerrPennington doctrine. Whether the objections to NFO were in good faith is arguable. When NFO became qualified to market milk in Chicago, for example, CMPC solicited NFO to