Full opinion text
OPINION OF THE COURT BECKER, Chief Judge: Prior to 1985, the retail sale of beer in the Pittsburgh area was conducted exclusively by “mom and pop”-type beer distributorships, such as those operated by plaintiff Michael W. Callahan and his fifteen co-plaintiffs. In that year, defendant David Troné opened the first “Beer World” store, a supermarket-style beer distributorship ten times the size of the traditional stores. He opened four more such stores in the Pittsburgh area between 1986 and 1988, offering a larger selection and lower prices. This case involves antitrust and RICO claims arising out of the manner in which Troné operated these stores. The Pennsylvania Liquor Code limits the ability of one entrepreneur to own or operate more than one beer distributorship. Troné apparently evaded these restrictions by placing the Beer World stores in the names of others, and, while acting as a “consultant,” effectively running the stores himself. According to the plaintiffs, Troné deceived the Pennsylvania Liquor Control Board (LCB) as to the true state of affairs by filing of false statements and affidavits. Troné negotiated purchases of beer from wholesalers for all of the Beer World stores collectively. By doing so, the stores were able to purchase at a wholesale price lower than they would have been able to obtain in individual purchases. Central to this case are Trone’s negotiations with defendant Frank Führer, the master distributor in the Pittsburgh area for Anheuser-Busch and Coors, in the course of which Troné allegedly forced Führer to agree to give a quantity discount to the Beer World stores based on their purchases as a group, but not to give this discount to any other retailers. Troné is said to have been able to do this because the Beer World stores held a substantial portion (at least 25%) of the Pittsburgh beer market, and because he threatened to place Fuhrer’s products poorly within the stores. The Beer World stores allegedly received this discount even though their orders in the aggregate did not always reach the 4500-case level Führer set for the discount. According to the plaintiffs, this discount was not disclosed to anyone else; it was not included on Fuhrer’s ordinary price list and was excluded from loading sheets posted at Fuhrer’s distribution center. Not surprisingly, the Beer World stores’ advantage in pricing, as well as other areas, cut sharply into the business of the smaller stores. This state of affairs has spawned this unusual antitrust and civil RICO case with state tort law claims appended, brought by the plaintiffs against Troné, the Beer World stores, and Führer. The plaintiffs’ antitrust theory is that Troné, his employees, and the separately incorporated stores have contracted, combined and conspired to restrain trade in beer in Allegheny County, by confronting wholesalers as a group and using their buying power and the threats described above to force the wholesalers to sell them beer at a price lower than that available to other retailers. The plaintiffs’ RICO theory is that Troné and others, by submitting false statements and affidavits to the LCB, as well as lying to a grand jury to cover up these false statements, were able to maintain illegal consolidated control of the Beer World stores. The plaintiffs submit that, as a result of this control, Troné and the Beer World stores obtained the advantages that enabled them to sell beer at prices below that of the plaintiffs. Although in a free market, these different approaches to operating a beer distributorship might not seem to offer grounds for a federal antitrust or civil RICO suit, in the context of Pennsylvania’s detailed malt and brewed beverages regulatory scheme, the plaintiffs have found grounds for a lawsuit. The District Court granted summary judgment for the defendants on all claims, including both the state tort law claims and the federal claims, and the plaintiffs have appealed. Strangely, antitrust liability issues are not presented in this appeal. The District Court, in deciding the defendants’ motion for summary judgment, did not consider antitrust liability issues at all; rather, the District Court disposed of the antitrust and RICO claims on the ground that the plaintiffs had not produced sufficient evidence that they suffered actual losses that were in fact a result of the defendants’ actions. Accordingly, and given the incomplete state of the record as presented to us by the parties, we do not intend to engage in an examination of the nature and scope of the plaintiffs’ theory or proof of antitrust violations (and, consequently, we express no view as to their correctness). Instead, we will assume, for the purposes of this appeal, that the plaintiffs can offer sufficient proof that the defendants engaged in antitrust violations throughout the relevant time periods. We will accordingly concentrate on the issues — actual loss and causation in fact (termed “fact of damage”) with respect to the antitrust claims, and proximate causation with respect to the RICO claim — that are fairly presented by this appeal. In order to prove that the plaintiffs suffered losses and that the defendants’ antitrust violations caused the injuries as a matter of fact, the plaintiffs offered (1) testimony that various customers no longer came to their stores and that the customers explained that this was because the Beer World stores offered cheaper prices, along with (2) the report of an expert who opined that the defendants’ actions had caused harm to the plaintiffs. The defendants contend that this evidence is insufficient to meet the plaintiffs’ burden of production. They first submit that the plaintiffs’ anecdotal evidence is inadmissible hearsay on which the plaintiffs cannot rely. We disagree. The plaintiffs themselves can testify that the customers are in fact no longer shopping at their stores. Furthermore, although the reports of the customers’ statements are hearsay, they are admissible as evidence of the customers’ states of mind, i.e., their reasons for no longer shopping at the plaintiffs’ stores. This combined evidence is sufficient to meet the plaintiffs’ burden of producing enough evidence of loss and causation with respect to the plaintiffs’ antitrust claims to overcome a motion for summary judgment. Also on the antitrust issues, the defendants argue that the plaintiffs’ proffered expert testimony is inadequate to prove fact of injury and causation because, inter alia, the expert failed to discuss numerous other possible causes of the plaintiffs’ losses. Furthermore, the defendants challenge the expert’s methodology for estimating the amount of damages. In spite of these flaws, we conclude that the expert’s testimony is sufficient to meet the plaintiffs’ burden of proof. At all events— taking into consideration both the customer evidence and the expert reports — we believe that the District Court erred in dismissing the plaintiffs’ antitrust claims on the ground that there was inadequate proof of fact of injury and causation in fact. With respect to the RICO claim, the defendants contend that the alleged causal connection between the defendants’ fraud and the plaintiffs’ losses is not sufficiently close to meet the requirement of proximate causation. The plaintiffs’ RICO claim runs as follows: If Troné and others associated with the Beer World stores had not defrauded the Pennsylvania Liquor Control Board by submitting sworn statements that Troné did not own and control all of the stores, the Liquor Control Board would have put Troné out of business. Since he stayed in business, Troné was able to use his control of several stores to obtain volume discounts by buying for the stores in the aggregate. The plaintiffs were then harmed by the defendants’ ability to sell at lower prices. We think this case is similar to Steamfitters Local Union No. 420 Welfare Fund v. Philip Moms, Inc., 171 F.3d 912 (3d Cir.1999), in which we recently held that the plaintiffs had failed to prove proximate causation. In Steamfitters, we recognized three factors the Supreme Court has identified for determining proximate causation in RICO cases: the directness of the injury, the difficulty of apportioning treble damages among potential plaintiffs, and the possibility of other plaintiffs vindicating the goals of RICO. Given that the plaintiffs are relatively remote third-party “victims” of the fraud and that the LCB itself, or the wholesalers, could take steps to counter the defendants’ allegedly illegal actions, we think the plaintiffs’ claim meets none of the factors. Accordingly, we believe that the District Court properly dismissed the plaintiffs’ RICO claim, although not for the appropriate reason. For these reasons, we will affirm the judgment of the District Court to the extent it dismissed the plaintiffs’ RICO claim, but reverse its judgment with respect to the antitrust claims. I. Facts and Procedural History A. The Pennsylvania Beer Sales Regulation Scheme Pennsylvania is a state in which temperance with respect to alcoholic beverages has always been an important policy, and statutory regulation of alcoholic beverage sales is extensive. The best known example, of course, is the “state store” system, under which liquor can only be sold in state-owned stores. With respect to malt and brewed beverages there is likewise a panoply of regulations. See, e.g., Pa. Stat. Ann. tit. 47, § 4 — 441(b) (West 19971) (prohibiting sales in units smaller than one case); § 4-447 (limiting sellers’ ability to change prices); § 4-492(2) (prohibiting sales by licensees for consumption on the premises); § 4-492(4) (prohibiting sales on Sunday); § 4-493(2) (prohibiting credit sales of alcoholic beverages other than by credit card); § 4-493(3) (prohibiting exchange of alcoholic beverages for goods or services); § 4-493(8) (prohibiting the use of labels or advertisements containing the alcoholic content of brewed or malt beverages). For present purposes, we are concerned with the regulation of beer sales. Under Pennsylvania law, beer sellers are divided into four classes for licensing purposes: manufacturers, master distributors, importing distributors and distributors. See Pa. Stat. Ann. tit. 47, § 4-431 (West 1997). The first category consists of breweries. An out-of-state brewer is required to designate a particular importing distributor as the master distributor for a particular geographic area within which only that master distributor is permitted to buy that brewer’s beer directly from the brewer. See § 4-431(b). Thus, any beer sold in a particular area must at some point pass through the master distributor designated for that brand in that area. A master distributor can sell beer to importing distributors, (ordinary) distributors or the public. An importing distributor can also sell beer either to other importing distributors, (ordinary) distributors or the public. A distributor can only sell beer to the public. The Beer World stores all have importing distributor licenses, and can therefore sell to each other and to the public. Only some of the plaintiffs have such licenses. Highly relevant here is the extent to which Pennsylvania law limits the ability of a participant — e.g., a partner, member or shareholder' — -in one beer distributor to participate in another. See § 4-438 (“No person shall possess more than one class of license .... ”); § 4-443 (prohibiting interlocking ownership in various forms). In particular, the law restricts the ability of an individual to participate in companies that operate at the same level, although the parties debate the extent to which the law does so. See § 4-438(b) (“No person shall possess or be issued more than one distributor’s or importing distributor’s license.”); § 4-436(e) (application for brewed or malt beverage license must state “[t]hat the applicant is not, or in case of a partnership or association, that the members are not, or in the case of a corporation, that the officers or directors are not, in any manner pecuniarily interested, either directly or indirectly, in the profits of any other class of business regulated under this article, except as hereinafter permitted”); § 4-436(f) (applicant must state “[t]hat applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed. ...”). B. Trone’s Beer Business Arrangements Trone’s family had been in the beer business in Harrisburg and Pittsburgh for some time. While a business student at the University of Pennsylvania’s Wharton School, Troné apparently came up with a plan for a new type of beer distributorship business. Prior to his plan, beer distributors were typically small, low-capitalization “mom-and-pop” stores of the kind operated by the plaintiffs. They usually had ordinary distributor licenses and operated relatively small stores, selling beer by having people come in and ask for a particular brand. Trone’s idea was to create much larger stores, roughly ten times the square footage of the plaintiffs’ stores, to be operated like a supermarket. The cases of beer would be set out on shelves so that shoppers could wander through the store picking out particular brands themselves. In addition, Troné planned to offer soda and snacks in addition to the beer. This business plan became the “Beer World” concept. We chronicle the history and management structure of the stores because it bears on the contention that Troné improperly controls all of the stores in violation of the Pennsylvania liquor control scheme, an important part of the plaintiffs’ antitrust and RICO claims. The first Beer World opened in the Pittsburgh area in 1985. Two more stores opened in Pittsburgh in 1986, followed by the last two in 1987 and 1988. The first store, incorporated as Jet Distributors, Inc., is apparently owned by Paul Piho, a childhood friend of Trone’s. Piho initially worked full-time in Chicago after the store opened. For a short time, he moved to Pittsburgh and managed the store. Currently, he works at a Delaware branch of a chain of liquor stores apparently owned by Troné. The second store is apparently owned by Trone’s wife, who for a time worked at the store, but presently spends less than five hours per week there. The third is apparently owned by Thomas Es-per, a retired schoolteacher who apparently knows little about either the store or the liquor business. The fourth store is apparently owned by Trone’s sister, who has been in school or working at other jobs for the relevant period. Before 1990 and since 1994, she has lived outside of Pennsylvania. The last store was apparently owned by Albert Vivió, the father of one of Trone’s employees. He stated that he did not pay anything to own the store, but that Troné asked him to put his name on a license. He testified that he had “no duties at the store,” pursuant to an “agreement with Mr. Troné.” Since the Beer World stores opened, Troné has been employed as a “consultant” for all of them. The plaintiffs allege, however, that Trone’s role in the stores is much greater. When the stores opened, he did much of the work in preparing the stores, choosing product line and layout, and selecting employees. He also set up purchasing and delivery systems. Since then, Troné has apparently controlled the day-to-day operations of the stores. He set the salaries for Beer World employees. Employees were routinely moved from store to store while remaining on the payroll of the store in which they began. Although each store maintains a separate bank account in the owner’s name, Troné has a stamp of each owner’s signature which he uses for checks. He also designed all the advertising for the stores, which included aggressive price advertising until July 1, 1987, when Pennsylvania banned it. And he determined purchasing and product placement within the stores. Finally, Troné purchased a single insurance policy and used one law firm for all of the stores. Of particular relevance to the plaintiffs’ claims are Trone’s efforts in coordinating purchasing. Troné negotiated purchases of beer from wholesalers for all of the Beer World stores at once, obtaining an agreement that the Beer World stores could order together in order to obtain substantial volume discounts. The parties focus particularly on the negotiations between Troné and Fuhrer, who was the master distributor in the Pittsburgh area for Anheuser-Busch and Coors. All of Fuhrer’s negotiations regarding the prices he would charge Beer World stores were conducted with Troné. Even before the Beer World stores opened, beer wholesalers offered various quantity discounts, although they were relatively small. From September 1, 1987, until the end of 1989, pursuant to an agreement with Troné, Fuhrer implemented a $.25 per case discount for purchases of 4500 or more cases, a purchase amount substantially larger than that required for other, smaller volume discounts wholesalers offered. The Beer World stores were the only ones ever able to achieve this level of purchasing, which they did by ordering as a unit. Although each store would place separate orders that were delivered separately, they were placed in the name of Jet Distributors, one of the stores, in order to aggregate the order size to reach the 4500 case level. Each store’s order was substantially less than this, usually in the range of 1000 cases. Although the plaintiffs attempted to take advantage of this discount, they were never able or permitted to do so. Although the parties focus primarily on these quantity discounts, the plaintiffs allege that Troné was also able to obtain other benefits for the Beer World stores from wholesalers. For example, Fuhrer allegedly gave the Beer World stores a full-time employee, paid by Fuhrer, who stocked shelves at all of the stores. The plaintiffs further contend that Troné forced Fuhrer to sell him out-of-code beer, i.e., beer past its expiration/freshness date, at a discount. Apparently state law prohibits this and requires wholesalers to give retailers new beer in exchange for out-of-code beer. Troné allegedly got such beer at a discount and sold it while concealing the fact that it had expired from customers and inspectors sent by the beer brewers. The plaintiffs criticize several aspects of these arrangements. First of all, they contend that Troné forced Fuhrer to agree not to give the discount to any other retailers. He allegedly could do so because, since the Beer World stores held a substantial portion (at least 25%) of the Pittsburgh beer market, Trone’s threat to place Fuhrer’s products in unfavorable locations within the stores carried force. Second, the plaintiffs point out that the Beer Worlds consistently received this discount even though their orders in the aggregate did not always reach the 4500-case level. In addition, many of the individual orders were fairly small: 29% were below 500 cases and 14% were below 200 cases, roughly the level at which the plaintiffs ordered. Finally, this discount was not disclosed to anyone else; it was not even included on Fuhrer’s ordinary price lists. In response to the defendants’ actions, the plaintiffs instituted a state lawsuit against the defendants and convinced the Commonwealth to commence criminal proceedings. Neither of these actions achieved their desired results. C. The Present Lawsuit The plaintiffs filed the present lawsuit in March of 1992. Their primary claims include price fixing, engaging in a group boycott, and attempting and conspiring to monopolize the beer market in Pittsburgh, all in violation of the Sherman Act, 15 U.S.C. §§ 1 & 2, and civil RICO claims predicated on money laundering and mail fraud in connection with the license applications to the LCB, said to be a violation of 18 U.S.C. §§ 1341, 1956, 1962. They also brought various other claims that have been dismissed and not appealed or that we may dispose of summarily. Although the plaintiffs moved for class certification, this motion was denied, at which point some additional plaintiffs joined the suit. The antitrust claims arise out of the joint operation of the Beer World stores. The plaintiffs contend that, by operating as a group, the Beer World stores were able to obtain an illegal competitive advantage. As evidence of such joint operation, they point to inter alia Trone’s collective control of the stores, the aggregated orders through Jet Distributing, and coordinated advertising. The plaintiffs contend that this conduct violated the antitrust laws in several ways. First, the “quantity” discounts the Beer World stores were able to obtain are said to have constituted unfair price fixing, i.e., the price for other beer distributors was fixed at a level $.25 higher than that for the Beer World stores. Second, the discounts are claimed to have resulted in a group boycott, i.e., Beer World convinced the wholesalers to sell to the other distributors only on unfairly disadvantageous terms. Finally, the plaintiffs allege that all of the actions of Troné and the Beer World stores constituted an effort to monopolize the beer retail market in Allegheny County, which includes Pittsburgh. These efforts were aggravated by the fact that, pursuant to the Pennsylvania Liquor Code, the plaintiffs could only purchase beer through the single, designated master distributor for each brand for Allegheny County. The RICO claim arises out of the various statements made during and concerning the Beer Worlds’ efforts to obtain licenses from the LCB. First, various of the defendants and others allegedly lied about the true ownership of the Beer World stores in affidavits and other documents filed with the LCB via mailings in order to obtain and retain their licenses. Second, Troné and others allegedly lied before a grand jury investigating their operation when asked about the ownership of the Beer World stores. The plaintiffs contend that, as a result of this fraud, the Beer World stores were able to remain in business illegally under the control of Troné. Furthermore, Troné is said to have engaged in transactions involving the proceeds of this fraud, i.e., the income of the stores, by reinvesting the money in the stores, allegedly in violation of the money laundering statute. The plaintiffs contend that these various activities violated RICO. D. The District Court’s Rulings Following extensive discovery, the parties each moved for summary judgment on various of the claims. The plaintiffs moved for summary judgment on their RICO claim relating to the Troné and Beer World defendants’ statements to the LCB. The District Court denied the plaintiffs’ motion because they did not “provide [any] substantive analysis of the meaning or application of § 1962 or its various subsections.” Dist. Ct. Op. I, at 3. The defendants moved for summary judgment on all of the plaintiffs’ claims. The District Court, in a series of orders, granted the defendants’ motions in part and denied them in part, and granted judgment in favor of the defendants on all of the plaintiffs’ claims. First, the District Court dismissed part of the plaintiffs’ RICO claim on statute of limitations grounds to the extent it was based on matters that occurred more than four years before the suit was filed. Second, the District Court dismissed all of the plaintiffs’ remaining claims — the antitrust and RICO claims — because it concluded that the plaintiffs had not offered sufficient evidence of fact of damage, i.e., loss and causation in fact. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Although the plaintiffs must prove loss, causation and specific damages, at the summary judgment stage, the court’s main concern should be with determining loss and causation in general, rather than proof of specific amounts of damages: At this procedural juncture, reviewing the district court’s grant of summary judgment, we are not, as we would be upon reviewing a jury verdict, determining whether a plaintiff has brought sufficient evidence to justify the actual damages awarded. Rather, here, all we are concerned with is whether Rossi has established that the defendants’ illegal conduct was a material cause of [his] injury. Rossi v. Standard Roofing, Inc., 156 F.3d 452, 484 (3d Cir.1998) (citation and quotations omitted); see also Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1276 n. 19 (3d Cir.1995) (declining to consider whether the plaintiff had offered sufficient proof of the amount of damages, since the plaintiffs’ proof of loss in general was inadequate). On appeal, our review of a District Court’s grant of summary judgment is plenary. See In re Baby Food Antitrust Litig., 166 F.3d 112, 123 (3d Cir.1999). “We evaluate the evidence using the same standard the District Court applied in reaching its decision.” 166 F.3d at 123-24. II. Antitrust Claims: Antitrust Liability In the ordinary case, liability is the first question that must be decided. Accordingly, we would usually begin our analysis of this case with a discussion of whether the plaintiffs have produced sufficient evidence to prove that the defendants violated the Sherman Act. Although that would appear to be an obvious question in this case, for the reasons set forth below we are not presently in a position to evaluate the plaintiffs’ theory of antitrust liability. We will, however, briefly summarize that theory and the defendants’ arguments against it in order to provide a background for our discussion of fact of damage, and for the benefit of the District Court and the parties on remand. The plaintiffs’ antitrust claims begin with the premise that Troné coordinated the activities of all of the Beer World stores. In support of this contention, they note that Troné dictated most aspects of store policy, was in charge of hiring and managing employees, and had sole control of the stores’ accounts. In addition, Troné coordinated the stores’ interactions with other people, including wholesalers and customers. He negotiated a single set of wholesale prices for all of the Beer World stores. When one wholesaler would not agree to a discount, he organized a joint advertising campaign among the stores against the wholesaler. He also published joint advertising for the stores. Furthermore, Troné and the stores allegedly conspired with wholesalers, Fuhrer in particular, so that the stores could obtain a competitive advantage over other retailers. Most prominently, the plaintiffs allege that Troné convinced Fuhrer to grant the stores a volume discount $.25/ case lower than that available to any other retailer. This discount was concealed from other customers and wholesalers in several ways, and denied to the customers when they requested it. The Beer World stores’ orders pursuant to the discount were placed jointly. Furthermore, the discount was always given even though the minimum order required for the discount was not always met by the Beer World stores in the aggregate. In addition, the plaintiffs contend that the evidence shows that Fuhrer granted the stores other advantages, including special delivery terms and assistance in placing beer in the stores. The plaintiffs contend that the advantages the Beer World stores obtained caused losses to the plaintiffs. As a result of the advantages, the Beer World stores were able to undersell the plaintiffs. Accordingly, the plaintiffs contend, they lost customers to the Beer World stores. The plaintiffs submit that these harms were particularly aggravated because of the geographical limitations the Liquor Code places on distributors. The Code requires that, for each brand of beer sold in a particular area, a specific wholesaler be designated as the master distributor. A beer retailer within that geographic area, must buy that brand either from the master distributor, or from someone who bought it from the master distributor. Since the plaintiffs allege that the defendants were conspiring with the master distributors, they were at a particular competitive disadvantage. Although, as noted above, the plaintiffs identify several antitrust liability theories, they focus on one in particular in their briefs. They argue that the aforementioned actions constitute a group boycott on the part of Troné, the Beer World stores, and Fuhrer. They contend that Troné convinced Fuhrer to agree to sell beer to the Beer World stores at a lower price than would be available to any other retailer. They rest their legal theory on, inter alia, Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), and Rossi v. Standard Roofing, Inc., 156 F.3d 452 (3d Cir.1998). The defendants contend that the plaintiffs’ theory of antitrust liability is untenable for several reasons. First, they argue that the plaintiffs’ theory is simply a Robinson-Patman Act price-discrimination claim recast as a Sherman Act claim. They note too that the plaintiffs did bring a Robinson-Patman Act claim that was dismissed on jurisdictional grounds. The defendants also submit that price discrimination without much more cannot be a violation of the Sherman Act. We agree that price discrimination simpliciter — even when it violates the Robinson-Patman Act — is usually not a Sherman Act violation. But we do not think this necessarily means that the plaintiffs are barred from bringing a price discrimination claim under the Sherman Act. The plaintiffs’ claims are unlike an ordinary price discrimination case, in which a single supplier offers different prices to different purchasers in order to advance its own interests. They allege that Fuhrer was convinced to offer different prices in order to advance the defendants’ — the plaintiffs’ competitors— interests. We see no reason why price discrimination, under appropriate circumstances, could not be part of an agreement in restraint of trade or a monopolization attempt. See, e.g., Black Gold, Ltd. v. Rockwool Indus., Inc., 729 F.2d 676, 683-84 (10th Cir.1984); Peelers Co. v. Wendt, 260 F.Supp. 193, 198 (W.D.Wash.1966); McKeon Constr. v. McClatchy Newspapers, Civ. No. 51627, 1969 WL 226 (N.D.Cal. Nov.24, 1969). So long as the price discrimination involves a conspiracy to restrain trade or create a monopoly in some market — along with a substantial effect on competition in the market, see J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1541 (3d Cir.1990) (quoting Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 887 (9th Cir.1982)); see also United States v. Arnold, Schwinn & Co., 388 U.S. 365, 375, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967)—it would violate the Sherman Act. The proper evidence in this case might support the conclusion that this constituted a conspiracy or agreement to restrain trade or create a monopoly, although we express no opinion as to whether the plaintiffs have produced such evidence. The defendants also contend that the plaintiffs cannot prove that they engaged in a group boycott. Relying on Klor’s and Rossi, they submit that a group boycott only exists where the defendants’ actions result in the product’s not being available to the plaintiffs at all, or only being available at highly unfavorable terms. Of course, when one thinks of a boycott, one ordinarily thinks of preventing access to something entirely. Moreover, the defendants contend that the putative quantity discount is modest. The plaintiffs respond, however, that the evidence here is sufficient to conclude that, as a result of the defendants’ actions, beer was only available to them on highly unfavorable terms, i.e., $.25/case more than their competitors were paying. Finally, the defendants contend that the antitrust violations were limited to a narrow array of conduct, specifically the $.25/ case discount discussed above. Plaintiffs contest this point vigorously. They suggest that, solely with respect to Führer, the evidence supports the conclusion that he engaged in other activities over a longer period of time, including delivery and product placement assistance, that gave the Beer World stores an advantage. Furthermore, the plaintiffs point to evidence that suggests that other wholesalers were giving the Beer World stores discounts and other benefits throughout a substantially broader time frame. The District Court did not address these questions of antitrust liability because it thought it could dispose of the case on other grounds. In part, this may have been because the Court came to the case late, upon transfer of the case from the docket of another judge. In addition, it undoubtedly seemed to it to be a more straightforward way in which to dispose of the case. We imply no criticism of the District Court’s approach. As discussed further below, however, liability is not an issue that ultimately can be avoided in this case. The defendants have suggested that it is an appropriate alternative grounds upon which we can rest our judgment, but we do not think so. Although the parties have set forth in their briefs their legal analyses of the liability questions, the record as presented to us is not sufficiently adequate for us to give the careful and thorough consideration these issues merit. Since the case must go back to the District Court, we think these issues would benefit from further elaboration there in the first instance. On remand, in determining whether the plaintiffs can prove that the defendants violated the Sherman Act, the District Court can answer the questions discussed above. The Court will be able to determine under which of their variegated antitrust theories the plaintiffs may proceed. In addition, the Court can clarify the precise temporal scope and nature of the defendants’ antitrust violations. Explication of this last issue in particular will provide a better framework for more precise analysis of the questions to which we turn next (and which will remain a matter in controversy on remand). At this juncture, because of the lack of clarity concerning the precise nature and scope of the plaintiffs’ antitrust liability proofs, we will assume that the plaintiffs can prove that the defendants engaged in antitrust violations throughout the relevant period. Based on this assumption, we turn to the issue upon which the District Court rested its decision: whether the plaintiffs have offered sufficient proof of fact of damage. III. Antitrust Claims: Fact of Damage The primary issue actually before us on the antitrust claims is whether the plaintiffs have proffered sufficient evidence to raise a genuine issue of material fact as to whether the defendants’ alleged antitrust violations caused harm to the plaintiffs. “[A] plaintiff must prove a causal connection between [the antitrust violation] and actual damage suffered.” Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1273 (3d Cir.1995); see also Rossi v. Standard Roofing, Inc., 156 F.3d 452, 483 (3d Cir.1998) (“To recover damages, an antitrust plaintiff must prove causation, described in our jurisprudence as ‘fact of damage or injury.’ ” (citations omitted)); II Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 360e2, at 195 (“The plaintiff must show actual injury that was ‘caused’ by the violation.”). Although we suspect our factual analysis of loss and causation would apply equally to both the plaintiffs’ antitrust and RICO claims, we will focus in this section only on the former. We can put the RICO claim to the side because, although we are unsure that the District Court’s reasons for dismissing it was correct, we think they should be dismissed for other reasons, i.e., lack of proximate causation. In brief, the plaintiffs’ theory of antitrust fact of damage is as follows: Troné, the Beer World stores, and Führer engaged in various joint actions, including but not limited to granting the Beer World stores secret discounts on wholesale purchases, which resulted in the plaintiffs’ losing business. In support of this theory of fact of damage, the plaintiffs offer two types of evidence: (1) testimony concerning customers who no longer shop at the plaintiffs’ stores and their statements about their reasons for not doing so; and (2) expert opinion testimony concerning the cause of the plaintiffs’ loss of income. We must decide whether the former type of evidence is admissible, and whether either is sufficient, individually or together, to establish actual injury and causation in fact. A. Customer Evidence 1. Summary of the Evidence: In opposition to the defendants’ motion for summary judgment, the plaintiffs offered deposition testimony concerning their customers. It included testimony of various plaintiffs that certain customers ceased purchasing beer from them after the Beer World stores opened, and that the customers stated that they had done so because the Beer World stores had cheaper beer. The District Court concluded that this testimony was inadmissible hearsay and therefore could not meet the plaintiffs’ burden of production to defeat the defendants’ motion for summary judgment. Five of the plaintiffs offered testimony concerning customers’ behavior and statements. This testimony can be divided into two categories. First, several of the plaintiffs testified that, during the time at issue in this litigation, some people who had formerly been their customers stopped coming to their stores. Carl Altenhof testified that, “Retail customers that I had as steady customers, I don’t have anymore when Beer World came in.... ” App. at 750. Likewise, Douglas J. Berthold stated in his deposition that, although he could not document his losses, he had “lost forty percent of [his] business, probably most of them are one case purchase customers, some of them two case purchase [sic].” App. at 754. Finally, Kathleen Kapres said that she lost customers, purportedly to Beer World. App. at 819. Second, several of the plaintiffs testified that various customers, some identified and some not, told them that they no longer shopped at the plaintiffs’ stores because of the Beer World stores’ operations. Berthold testified that one customer, David Begg, told him that he was going to shop at Beer World because “I like selection” and “money talks.” App. at 755. Kapres also stated that she “had quite a few customers come in and say they wanted the same deal [lower prices] from me or they were just going to buy their beer from [Beer World], and I said I just can’t give you that deal.” App. at 819. In addition, Paul Kelly identified by name three customers of his who began to buy from Beer World, and discussed at length conversations with one of them in which the customer revealed that he was going to Beer World because of the prices. App. at 822-27. As noted previously, the defendants contend that the plaintiffs have presented evidence of antitrust violations at most during a fairly brief period of time, for which only some of the customer evidence is relevant. The District Court did not consider this issue and, as we have stated, neither will we. Instead, we assume that the plaintiffs can establish antitrust violations throughout the relevant period. On remand, the District Court will have to analyze the extent of the defendants’ antitrust violations and then determine whether the plaintiffs’ evidence of loss and causation remains sufficient in light of the more specific temporal scope. If it appears that the defendants did not engage in antitrust violations during some of the relevant period, the District Court is free to revisit the question whether the plaintiffs’ proof of causation remains sufficient. 2. Admissibility: The District Court, rely ing on our decision in Stelwagon Manufacturing Co. v. Tarmac Roofing Systems, Inc., 63 F.3d 1267 (3d Cir.1995), held this evidence inadmissible, finding that the plaintiffs’ testimony concerning their customers’ statements was inadmissible hearsay. It also noted that, although this litigation has been proceeding for some six years, the plaintiffs had not taken the simple step of obtaining affidavits from customers concerning their reasons for ceasing to purchase beer from the plaintiffs. We disagree with the District Court’s reading of Stehvagon. In Stehvagon, the plaintiff proffered the testimony of its employees concerning the statements of their customers. The employees proposed to testify, based on “out-of-court conversations with Stelwagon customers ... that the customers could and did purchase Tarmac MAPs from Standard at prices lower than Stelwagon’s prices.” Stehvagon, 63 F.3d at 1274. The plaintiff argued that this testimony was admissible to prove fact of damage, i.e., both loss and causation, under Federal Rule of Evidence 803(3), which provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... A statement of declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. Fed.R.Evid. 803(3). In Stelwagon, the plaintiff offered the customers’ statements to prove, not only causation, i.e., the reason it lost business— for which purpose it would be admissible evidence of motive under Rule 803(3)—but also loss, i.e., the fact that it lost business to the defendants. We concluded that the customers’ statements about why they purchased from Standard was inadmissible to prove that they actually did so. See 63 F.3d at 1274 (“Statements that are considered under the exception to the hearsay rule found at Fed.R.Evid. 803(3) ... cannot be offered to prove the truth of the underlying facts asserted.” (footnote omitted)). As we have explained, “ ‘[statements of a customer as to his reasons for not dealing with a supplier are admissible for this limited purpose,’ i.e., the purpose of proving customer motive, but not as evidence of the facts recited as furnishing the motives.” J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1535 n. 11 (3d Cir.1990) (quoting Herman Schwabe, Inc. v. United Shoe Mach. Corp., 297 F.2d 906, 914 (2d Cir.1962)). We think that the District Court’s dismissal of the plaintiffs’ evidence on the basis of Stelwagon was inappropriate. The purpose for which the customers’ statements are offered in this case differs in substance from the purpose for which the court in Stehuagon found them inadmissible. In that case, the only evidence of actual loss, i.e., that customers stopped purchasing from the plaintiff, was the employees’ reports that customers had said that they were no longer buying from the plaintiff because the plaintiffs competitors had lower prices. We concluded that this evidence could not be used to prove such loss. While the plaintiffs here have also offered similar testimony that their customers told them that they were purchasing beer from the Beer World stores and not the plaintiffs, they offer it only for “the [limited] purpose of proving customer motive,” for which purpose we found such evidence admissible under Rule 803(3). Stelwagon, 63 F.3d at 1274. In addition, however, the record contains other non-hearsay evidence of a type not before the court in Stelwagon, that the plaintiffs offer to prove the fact of loss, the issue for which the court in Stelwagon found the customers’ statements inadmissible. Here, the plaintiffs themselves testified that they knew of customers who used to purchase beer from them, but no longer did. This is direct evidence of an actual loss of customers. Although in Stelwagon we held that customers’ hearsay statements were not admissible to prove lost business, the plaintiffs’ own testimony about the actual behavior of their customers is not hearsay. Rather, it is admissible evidence of lost business, although not of the reason therefore. Thus, in the present case, the plaintiffs’ testimony that certain customers no longer purchased beer from them, coupled with their testimony concerning the customers’ statements of them motive, which is admissible hearsay under Rule 803(3), are together evidence of the fact of damage. 3. Sufficiency of the Evidence to Prove Causation: The next question is whether this evidence is sufficient to defeat a motion for summary judgment. “[0]ur jurisprudence does not require the summary judgment opponent to match, item for item, each piece of evidence proffered by the movant, but rather he or she must only exceed the ’mere scintilla’ standard.” Rossi, 156 F.3d at 466 (citations and some quotations omitted). We recently confronted the question of the sufficiency of this sort of evidence of causation in antitrust cases. In Rossi the plaintiff offered, in opposition to the defendants’ motion for summary judgment, the testimony of several potential customers that they would have purchased a certain product from him if he had not been deprived of it in violation of the antitrust laws. We concluded that this evidence was sufficient evidence of fact of damage to defeat a motion for summary judgment: Rossi has proffered evidence from five specific customers that they would have purchased GAF product from Rossi if he had been able to sell it to them, and Rossi’s inability to consummate those sales (leading to a loss of business and therefore injury) is a direct result of the alleged antitrust violation — the group boycott. In addition, Richard Droesch, Rossi’s partner in the failed Rossi Florence venture, backed out of that venture at least in part based upon his understanding that the company would not be able to get the products it needed, particularly GAF product, to compete successfully in the market. For all these reasons, we believe that the record supports Rossi’s allegations that he suffered antitrust injury, and that it was caused by the defendant’s [sic] allegedly unlawful actions. 156 F.3d at 485. We think that Rossi supports the conclusion that the plaintiffs’ testimony concerning their customers’ actions and statements is sufficient to meet their burden to produce evidence of loss and causation. Initially, we reject the defendants’ attempt to distinguish Rossi on the ground that the customers there stated that they would have purchased product from Rossi but for circumstances that were the direct and intended result of the conspiracy. As noted previously, we have had to assume for the purposes of this appeal that the plaintiffs will be able to prove that the defendants violated the antitrust laws. The direct result of these violations would be the Beer World stores’ ability to sell beer at a lower price than the plaintiffs, the precise circumstance the customers cited as a reason for their actions. The defendants also submit that Rossi is distinguishable because in this case there was no admissible evidence that the customers purchased beer from the Beer World stores. Of course, the defendants are correct that the testimony at issue is not admissible to prove that the customers purchased beer from the defendants. See Stelwagon, 63 F.3d at 1274. But the plaintiffs do not need to prove that point; in order to establish antitrust liability and damages, all the plaintiffs must show is that they suffered an economic loss as a result of the defendants’ antitrust violations; not that the defendants benefitted from that loss directly. See Rossi 156 F.3d at 464-65 (plaintiff, in order to recover on an antitrust claim, must prove an antitrust violation and “that the plaintiffs were injured as a proximate result of that” violation (citation omitted)). As long as the plaintiffs can prove that they lost business, and that this loss was a result of the defendants’ antitrust violations, they can bring a successful antitrust claim. At all events, Rossi makes no mention of any evidence, or even any requirement, that the customers in that case purchased product from the defendants instead of the plaintiff. See Rossi, 156 F.3d at 485. For all we know, the customers who offered testimony in Rossi simply decided not to purchase GAF product at all, instead of buying it from the defendants. What the customers did instead of purchasing product from the plaintiff is irrelevant, so long as there is evidence that they did not purchase from the plaintiff because of the defendants’ antitrust violations. In addition to these points, we also find it significant that neither here nor in Rossi did the customer evidence purport to prove any specific amount of damages. Although the plaintiff in Rossi proffered the testimony of five customers, these customers gave no indication of exactly how much product they would have bought from him if they could. Yet we concluded that the evidence of causation was sufficient. This conclusion was driven by the principle that, on review of a grant of summary judgment, we should focus on whether there is sufficient evidence of fact of damage in general, not on the sufficiency of the evidence of a specific amount of damages. See Rossi, 156 F.3d at 484. Accordingly, just as in Rossi, the lack of specific evidence of the total amount of lost beer sales does not preclude our ultimate conclusion that the customer evidence, especially in conjunction with the expert evidence discussed next, is sufficient to meet the plaintiffs’ burden of producing evidence of fact of damage. B. Expert Evidence The plaintiffs also offered expert opinion evidence in support of their contention that the defendants’ alleged antitrust violations caused actual injuries to them. In particular, they offered the report and testimony of their primary expert, Garth Seidel, along with the report and testimony of their rebuttal expert, Brian Sullivan, to that effect. Neither the defendant nor the District Court raised a question about the admissibility of Seidel’s or Sullivan’s opinion. See Kumho Tire Co. v. Carmichael, — U.S. -, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The District Court concluded, however, that this evidence was insufficient as a matter of law to permit a finding of causation. In particular, the Court noted that Seidel’s opinion appeared to be based primarily on timing, and that he did not consider a number of possible alternative causes of the plaintiffs’ losses. It therefore concluded that Sei-del’s report was deficient under the standards we have set forth in previous cases. We disagree. 1. Seidel’s Report: Seidel concluded, base d on the facts provided to him, that “the plaintiffs experienced significant drops in gross profits in the period subsequent to the start of Beer World operations and which were caused by the Beer World Stores’ unique advantage.” App. at 830. He began by collecting data on gross profits of the sixteen plaintiffs from 1980 to 1995, although such information was not available from every plaintiff for every year, or even for many of the years. He then made two calculations. First, using the admittedly incomplete data he had, he calculated the plaintiffs’ average annual gross profits for the periods from 1980-84 and 1985-95. He then estimated that the plaintiffs’ damages were the difference between these two numbers, multiplied by eleven years and sixteen plaintiffs, or approximately $6.6 million. Second, he made a similar calculation, but using only data from the six plaintiffs for whom data was .available for most of the years. This method gave a damages estimate of $2 million. Next, he concluded that these lost profits “were caused by the Beer World Stores’ unique advantage.” App. at 830. He based this opinion initially on his conclusion that the Beer Worlds’ ability to purchase beer at a lower wholesale cost “must have had a significant impact on the market.” App. at 831. He also stated that the Beer World stores’ aggressive price advertising would have magnified the effect of the special discount. In addition, he examined Fuhrer’s profits between 1989 and 1994, and observed that they increased substantially during this period. Based on this, Seidel concluded that the malt-beverage market experienced no downturn during this time. Third, he noted that, beginning in 1991 — after the grand jury investigation of Troné began— the Beer World stores’ volume of business declined each year until 1995, while at the same time the plaintiffs’ gross profits increased. Finally, he noted that two other stores had opened using a “supermarket” approach similar to the Beer Worlds’. One of them opened shortly after the Beer World stores, but failed within a matter of months in spite of aggressive promotions. The other was open from the mid-1970’s to the mid-1990’s, but did not appear to have had any effect on the plaintiffs. App. at 829-32. The District Court found Seidel’s report inadequate to meet the plaintiffs’ burden of production because it failed to consider other market forces that could have explained the plaintiffs’ losses. The Court began with the proposition that “any analysis of antitrust, RICO or similar damage that fails to exclude or take account of any adverse effects caused by other factors, including lawful competition on the part of the defendants, is fatally flawed.” Dist. Ct. Op. IV, at 6. It observed that Seidel’s report did not include a comparison of costs and business practices, price advertising, the availability of pool-buying and other discounts, store size, purchasing capacity, or proximity to a Beer World store, any one of which might have provided an alternative explanation for the plaintiffs’ losses. Furthermore, it noted that Seidel had specifically failed to consider whether any other differences between the plaintiffs and the Beer World stores accounted for the plaintiffs’ loss of business to the latter. Given these omissions, the District Court concluded that Seidel’s report provided insufficient evidence of causation. The plaintiffs contend that we must reverse the judgment because the District Court relied, in its legal analysis, on the district court’s opinion in Rossi rejecting Rossi’s proffered expert evidence, which opinion we later reversed on these exact grounds, although not until well after the District Court in the present case had issued its opinions. See Rossi v. Standard Roofing, Inc., 958 F.Supp. 976 (D.N.J.1997), revd., 156 F.3d 452 (3d Cir.1998). As this question is before us on an appeal from a grant of summary judgment and our review is plenary, we will start from the premise that it is the defendants’s burden to show that Seidel’s report is inadequate to create a genuine issue of material fact as to causation. We begin with a review of our case law in this area, and then apply that law to the evidence before us. 2. Precedent: Stelwagon and Rossi: We have twice recently considered the sufficiency of expert evidence offered as proof of causation in antitrust cases. See Rossi, 156 F.3d at 485-87; Stelwagon, 63 F.3d at 1275-76. In addition to the customer evidence discussed above, the plaintiff in Stel-wagon offered expert opinion evidence to prove causation. In brief, “based on the assumption that but for Tarmac’s price discrimination, Stelwagon’s sales of MAPs would have tracked its sales of [other] products [not subject to anticompetitive practices], Dr. Perry concluded that Stel-wagon lost $257,000 in profits as a result of Tarmac’s illegal pricing policy.” Stelwagon, 63 F.3d at 1275. We concluded that the expert’s testimony, although admissible evidence, was insufficient by itself to prove that the antitrust violations had in fact caused Stel-wagon’s losses: Significantly, Dr. Perry’s analysis failed to sufficiently link any decline in Stel-wagon’s MAPs sales to price discrimination. The sales may have been lost for reasons apart from the price discrimination — reasons that Dr. Perry’s analysis apparently did not take into account. For example, the evidence showed that Stelwagon had higher overhead costs than his competitors. In addition, there was undisputed evidence that Stelwagon experienced other business complications during the relevant time period. In 1988, for example, Stelwagon terminated a vice-president, two territorial managers and three key employees for their part in an embezzlement scheme. Stelwagon, 63 F.3d at 1275. Given that Stelwagon had not offered any other evidence of loss — as discussed previously, its employees’ anecdotal testimony concerning lost customers was not admissible to prove that it actually lost customers, see Stelwagon, 63 F.3d at 1274-75 — we concluded that he could not meet his burden of proof, Stelwagon, 63 F.3d at 1275-76. In Rossi, by contrast, we considered an expert opinion and found it sufficient to prove loss and causation. The expert in Rossi rested his calculation of damages on two assumptions: First, he estimated that Rossi[’s businesses] would have achieved the same pattern of sales revenues (and revenue growth) beginning in 1989 and extending to 2008 that ABC’s Morristown sales branch actually achieved from 1990-93, operating out of the same location, with Rossi as branch manager.... The second major assumption in the Roekhill Report is that Rossi would have been able to manage [his proposed businesses] in the manner that he had run Standard’s Morristown branch from 1984-87. Roekhill used Standard’s Mor-ristown branch financial statements to develop 14-year averages for [costs] and applied them to the sales estimate. Rossi, 156 F.3d at 486 (footnote omitted). Based on these assumptions, the expert estimated Rossi’s losses as a result of the defendants’ antitrust violations. We determined that this expert evidence was sufficient proof of causation to defeat a motion for summary judgment. We began our analysis with the recognition that the expert’s opinion was a “but for” damage model — one that “aggregates the defendant’s alleged violations and creates a hypothetical calculation projecting the plaintiffs profits and losses ‘but for’ the defendant’s antitrust violations” — -which several courts have rejected. Rossi, 156 F.3d at 485 (citing Southern Pac. Com. Co. v. American Tel. & Tel. Co., 556 F.Supp. 825 (D.D.C.1982), aff'd., 740 F.2d 980 (D.C.Cir.1984)); Van Dyk Research Corp. v. Xerox Corp., 478 F.Supp. 1268 (D.N.J.1979), aff'd., 631 F.2d 251 (3d Cir.1980). We identified two key problems with the use of “but for” damage models: First, they do not attempt to measure the particularized effects of any specific alleged illegal activities, but rather rely on an aggregation of injury from all factors. Second, their hypothetical “but for” calculations usually rely upon unrealistic ex ante assumptions about the business environment, such as assumptions of perfect knowledge of future demand, future prices, and future costs that tend to overstate the plaintiffs damages claim. Thus, using a “but for” damage model arguably makes it impossible for the trier of fact to determine what, if any, injury derived from the defendant’s antitrust violations as opposed to other factors, and courts sometimes reject such models as the basis of either causation'or the amount of injury. Rossi, 156 F.3d at 486 (citations omitted). We concluded that, although the Rock-hill Report rested on a “but for” damage model, this did not mean it was inadequate proof of causation, because it did not have the usual problems of “but for” damage models. We noted that, since the Report was based on the actual performance of other businesses — the business Rossi managed instead of running his own and the business he formerly managed — it did not involve any “unrealistic ex ante assumptions about the business environment.” We conclude