This case involves an acrimonious disagreement between formerly harmonious associates in the aircraft outfitting business. Instead of more familiar antitrust allegations, such as price fixing or tying arrangements, plaintiffs in this case allege essentially that unfair business practices committed by defendants had such a negative impact on competition as to constitute illegal restraints of trade under section 1 of the Sherman Act1 and conspiracy or attempts to monopolize under section 2 of the Sherman Act.2 We shall first set out in some detail the nature of the aircraft outfitting business and the facts relevant to the alleged antitrust violations. We will then discuss why we feel that the jury verdicts and judgments in this case must be upheld, except those against defendant Edwin Hamilton.

After World War II, outfitting companies sprang up to convert surplus government aircraft to private use. These companies installed or modified avionics in the surplus aircraft and constructed new interiors. When aircraft manufacturers began post-war production of planes for private use, the outfitting companies also began to install original avionics and interiors3 in "green"4 aircraft delivered new from the factory. Today some twenty major outfitters throughout this country and a few in Europe outfit a variety of private aircraft. Outfitting work includes a mix of original installation in green aircraft and reoutfitting or refurbishing other aircraft for private or business use.

The plaintiffs in this case are Associated Radio Service Company ("Associated") and Associated Radio Company ("Radio"). The defendants are Page Airways, Inc. and its wholly owned subsidiary, Page Gulfstream, Inc. (collectively referred to as "Page"); Douglas Juston, an officer of Page; Ross C. Chapin, former president and director of both Associated and Radio and, at the time of trial, president of Page; and Edwin C. Hamilton, former assistant to Chapin and, at the time of trial, an officer of Page. Associated has been in the aircraft outfitting business under various names and with assorted business associates since 1948. For a time in the mid-1960's, Associated installed avionics in a variety of aircraft, for which Executive Aircraft provided the hangar space and interior installations. This arrangement terminated in 1968, and Associated at that time decided to open its own complete outfitting facility in Dallas. It continues to operate that facility today.

In 1953, Radio was formed to purchase equipment from manufacturers, to own the inventories, and to sell avionics equipment, primarily to Associated. Radio and Associated had common owners, officers, and directors, but Radio had no employees other than its executive officers. Its nonmanagement activities were performed by Associated's employees. After purchasing avionics equipment from manufacturers, Radio added between 10 and 25 percent to its costs in selling the equipment to Associated. In addition, Radio made some other sales of avionics equipment and supplies to third parties.

In 1967 or 1968, Page became a dealer for green Grumman Gulfstream II's (G-II's).5 The G-II is the largest and has the longest range of any business aircraft on the market. Its avionics is the most sophisticated, complex, and expensive in the industry. Capable of transoceanic flights, it requires inertial navigation systems (INS) in its avionics package. The Grumman Gulfstream II is always sold green. In the factory, a rudimentary flight package is installed to allow the plane to be ferried to the outfitting facility; after the plane has reached the facility, the flight package is removed, and the plane will no longer fly until it is outfitted with avionics. Grumman began production of this model in 1967, at a rate of about 20 per year. It had produced approximately 130 by mid-1973 and could be expected to produce no more than 270 G-II's before that model became obsolete.

Page and Associated entered into an agreement in 1968 whereby Page would sell the green G-II's, and Associated would design and install, in San Antonio, avionics in those planes for Page's customers. A third party was involved for a time in the installation of interiors in the San Antonio G-II facility, but the interior installation operation soon came to be financed and managed by Page and employees of Associated. The name of the interior facility was Associated Page Interiors, Inc. Associated moved its key G-II avionics installation employees to San Antonio and put in a G-II avionics facility that cost about $200,000, plus hangar costs and inventory. Under the contract, Page received as a sales commission ten percent of Associated's billings, except for 18 pending G-II avionics sales that Associated had been working on before its association with Page.

In the years between 1968 and 1973, the contractual arrangement between Page and Associated worked well for Associated. Associated climbed to a prominent position among all avionics outfitters of G-II's; by late 1972, it was installing avionics in just over 50 percent of all G-II's coming off the assembly line. Meanwhile, the number of companies able to compete effectively for G-II outfitting contracts dwindled from eight or nine in 1968 to about five in 1977.6

Before a company entering the avionics outfitting business can become profitable, it must overcome certain barriers. For example, its employees must ascend a learning curve during which they gain experience and efficiency in working on a certain type of aircraft. In the case of the G-II, this learning curve was estimated variously at one and one-half to two years.7 In addition, a company must acquire or create engineering diagrams and gain FAA approval, in the form of Supplemental Type Certificates (STC's), for its avionics package in a particular plane. There was evidence showing that it took Associated about two and one-half years after entry to attain a profitable position. Its average profit on its last nine sales before September 1973 was about $52,000 per plane.8

Plaintiffs allege that as early as 1971 Page made the decision to enter the avionics outfitting business itself. Plaintiffs further allege that Page entered into an unlawful conspiracy to eliminate plaintiffs as a competitor in the G-II avionics field by, among other things, bribing away plaintiffs' employees; causing the theft of plaintiffs' trade secrets, proprietary information, records, and documents; causing plaintiffs' employees to withhold information from plaintiffs and to work secretly for defendants; interfering with plaintiffs' mechanic's lien; and filing spurious lawsuits. The facts show that defendants did indeed hire away Ross Chapin, who was president and director of Associated and vice president and director of Radio, and Edwin Hamilton, Chapin's former assistant. These two men are now officers of Page. Page also copied or caused to be copied engineering diagrams of the avionics packages in several G-II's that had been outfitted by Associated. Some of these copies may have been made before the contractual arrangement came to an end.

In June 1972, Page notified Associated that Page wished to terminate the agreement effective June 20, 1973. It seems that everyone agrees that Page had every right to terminate at that time if it so wished. However, Chapin seems to have allowed contracts for the sale of avionics packages to be made in Page's name while serving as president of Associated and with the knowledge that the airplanes would not be delivered until after the termination of the joint venture. Plaintiffs contend that by copying Associated's engineering drawings and other data, defendants were able to acquire avionics estimated to cost about $250,000 to $350,000 to produce, thus eliminating the two years of effort required for the accumulation of a sufficient number of STC's to be competitive and eliminating the startup losses estimated to cover two and one-half years. By acquiring the avionics drawings and by hiring Associated's employees at the termination of the venture, the defendants were able to avoid the learning curve and to begin work immediately on the avionics packages that Chapin had sold in Page's name.

Associated also contends that an altercation over a debt owed it by Page led to Page filing several spurious lawsuits. In August 1973, Lee Juan Lanford, an officer of Associated, went to San Antonio and discovered that Associated would require several more days' work to complete its avionics installation in a plane belonging to the Republic of Gabon. Lanford advised Page that Associated would not relinquish possession of the plane after the completed installation without being paid the $660,000 sales price, and he parked his camper in front of the hangar door to prevent Page from removing the plane until the price was paid. Associated maintains that they were merely enforcing their mechanic's lien under Texas law. Page then filed a lawsuit based upon an allegedly false affidavit and obtained possession of the plane before the completion of the installation. They then amended their petition and filed an interpleader based upon, again, allegedly false statements and affidavits. Evidently Page also filed other lawsuits in both state and federal court. Through all this, defendants were partially successful in delaying payment of the money due plaintiffs, thus rendering plaintiffs' financial position precarious.

Plaintiffs' allegations of "dirty tricks" committed by Page included bribes or otherwise suspicious payments to various parties. For example, there was evidence that Joseph Anckner, Grumman's director of international sales, took his wife to Hawaii in 1974 for a vacation on money "loaned" to him by Page, although the loan had not been repaid at the time of Anckner's deposition in March 1977; nor had Anckner reported this loan to his employer.9 In 1975, after Associated had negotiated a contract for avionics installation10 in a G-II belonging to Kirby-American, Juston complained to Grumman, Anckner visited the customer, and Associated lost the contract to another installer, although not to Page. There was also documentary evidence and testimony showing that Chapin, after he began working for Page, was able to get an avionics customer to award its avionics work to Page at $10,000 over the highest bidder. Thus, Page was able to obtain the outfitting contract at a price of $834,000 at a time when the low bid, $759,000, had been submitted by Associated. There were three other bidders.

Defendants, after entering the avionics installation business, were singularly effective at obtaining contracts for the outfitting of airplanes belonging to foreign governments. In fact, no outfitter except Page sold and installed avionics in a green G-II for a foreign government customer between mid-1973 and mid-1977, the cutoff date for discovery. There were approximately fourteen of such sales during those years. There was evidence from which the jury could infer that payments had been made to officials of some foreign governments in return for their awarding the contracts to Page.

After the termination of the agreement between Page and Associated, Associated brought suit in federal district court in Texas in October 1973. Plaintiff pled violations of sections 1 and 2 of the Sherman Act, relying primarily on the per se rule found in the line of cases beginning with Albert Pick-Barth Co. v. Mitchell Woodbury, 57 F.2d 96 (1st Cir. 1932). The district judge rejected the application of the per se rule on the state of the record as of June 1976 and dismissed the complaint with leave to amend. See Associated Radio Service Co. v. Page Airways, Inc., 414 F. Supp. 1088 (N.D.Tex.1976). Plaintiffs' amended complaint survived defendants' motion to dismiss, and the suit proceeded to trial, which consumed twelve weeks of the summer of 1977. A jury returned a verdict favorable to plaintiffs on all issues. Among other things, the jury found that the relevant market was the sale and installation of avionics systems in Grumman Gulfstream II aircraft throughout the world, that the corporate and individual defendants conspired, combined, or agreed to restrain trade unreasonably in violation of section 1 of the Sherman Act, that the same defendants monopolized, attempted, or conspired to monopolize the sale and installation of avionics equipment and systems in Gulfstream II aircraft in violation of section 2 of the Sherman Act, and that Associated and Radio sustained injury to their business or property that was proximately caused by the antitrust violations. The jury assessed Associated's damages at $2,750,000 and Radio's damages at $550,000. The court trebled the damage award to Associated and added attorneys' fees, with the total award to Associated being $9,048,210. The court also entered judgment n.o.v. for defendants on the claims of Radio, based on the court's conclusion that Radio did not have standing to sue.

Since one of the necessary elements of a section 2 violation is the possession of or conspiracy or attempt to acquire monopoly power in a particular market, the jury's finding on the extent of the market must be upheld if we are to sustain the jury's verdict finding violations of that section of the Sherman Act. See Yoder Brothers v. California-Florida Plant Corp., 537 F.2d 1347, 1366 (5th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S. Ct. 1108, 51 L. Ed. 2d 540 (1977). See also United States v. Aluminum Company of America, 148 F.2d 416 (2d Cir. 1945). This court has also held, in a case involving section 1 of the Sherman Act and allegations of unfair competition, that the market power of defendant is crucial. See Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83 (5th Cir. 1978). Moreover, the trial court recognized in its charge to the jury that plaintiffs could not succeed under either section 1 or section 2 without a favorable jury finding on their market definition.

Relevant market is a question of fact, and findings concerning the market should be overturned on appeal only if clearly erroneous or where there is no evidence to support the finding below. Heatransfer Corp. v. Volkswagenwerk, A.G., 553 F.2d 964, 979 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978). Defendants contended vigorously throughout the trial, and now on appeal, that the relevant market was the sale and installation of avionics and interiors in all turbine-powered private aircraft. However, since defendants' contentions were before the jury, as was most of defendants' evidence, they essentially ask us to substitute our findings of fact for those of the jury. We think there was ample evidence of high entry barriers and of the difficulty outfitters encountered in switching back and forth from one model of aircraft to the next to allow the jury to find a relatively narrow market.11 The court's charge on this issue was clear and spelled out the relevant factors for the jury to consider,12 and we therefore hold that the jury's factual finding regarding Associated's claim is supported by the evidence.13

Defendants essentially make two arguments here. One is that plaintiffs only proved that defendants' conduct caused injury to plaintiffs, not to competition, and thus fell short of the proof necessary under section 1 and our case law. The second argument is that even if Associated attempted to prove injury to competition, it failed.

At the time this case was tried, it was not clear whether this circuit would adopt the per se rule found in the Pick-Barth line of cases. The trial judge recognized this uncertainty in our case law and dismissed plaintiffs' complaint in an order that reads, in pertinent part:

Plaintiffs have failed to plead a claim under Section One, although Plaintiff may replead within fifteen days of this order and must ultimately prove either that the particular conduct alleged in this case unreasonably restrains competition or, if Plaintiff wishes this Court to apply a per se analysis, that the alleged conduct is in general so anticompetitive that this Court would be correct in drawing an inference from it that anticompetitive effects will occur in most circumstances when such behavior recurs.

414 F.Supp. at 1090.

It can be seen that the district court at least left the door ajar on the per se doctrine, and plaintiffs may have proceeded on to trial under the assumption that they could prove enough to come in under a limited per se analysis. However, plaintiffs also attempted to prove that competition in the G-II market had been injured.

Since the district court entered judgment in this case, our court has spoken on the application of the antitrust laws to allegations of unfair competition. See Redwing Carriers, Inc. v. McKenzie Tank Lines, Inc., 594 F.2d 114 (5th Cir. 1979) (affirming 443 F. Supp. 639 (N.D.Fla.1977)); Northwest Power Products, Inc. v. Omark Industries, supra. These cases make clear that the Pick-Barth per se doctrine is not to apply and that a plaintiff who alleges unfair competition or other business torts must prove injury to competition.

Defendants advance the proposition that plaintiffs merely proved injury to themselves and claim that the jury verdict must be reversed as a matter of law. While we are extremely reluctant to allow an antitrust claim for treble damages to rest solely on allegations of business torts, we find, contrary to defendants' contention, that Associated's proof in this case was sufficient to withstand the test articulated, after this case was tried, in Northwest Power.

In Northwest Power, Omark Industries terminated Northwest Power as a distributor of Omark's power-actuated tools, substituting for it Bosco Fastening Service Center. Several of Northwest Power's employees defected to Bosco, and agents of Omark and Bosco made false and disparaging remarks to Northwest's customers in an attempt to eliminate Northwest from the market. 576 F.2d at 85-86. Before its termination, Northwest had been the number two firm in the market, with a 20 percent market share; Bosco held an 11.5 percent share after replacing Northwest, whose share plunged to 2 percent. Id. at 86. This court held that the foregoing facts tended to show that "defendants' conduct enhanced rivalry rather than reducing it." Id. at 91 (emphasis original). In addition, Northwest failed to prove that either Omark or Bosco earned an excessive profit on its business. Id.

We pointed out in Northwest Power that "a supplier may switch dealers and conspire with a new dealer to take the place of an established one" without violating the antitrust laws. Id. at 86. In fact, Omark probably could have eliminated all distributors of its products by vertical integration (i. e., by beginning distribution of its own products) without running afoul of the antitrust laws. See 3 P. Areeda & D. Turner, Antitrust Law PP 725-727, 828c (1978).

We now quote extensively from Northwest Power in order to spell out the pertinent law in our circuit on unfair competition as an antitrust violation:

The more modern courts examining the Pick-Barth rule have stated that it applies only when the defendant is a "significant existing competitor." Southland Reship, Inc. (v. Flegal, D.C.), 401 F.Supp. (339) at 346-347; see George R. Whitten, Jr., Inc. (v. Paddock Pool Builders, Inc., 1st Cir.), 508 F.2d (547) at 562; Tower Tire & Auto Center, Inc. (v. Atlantic Richfield Co., D.C.), 392 F.Supp. (1098) at 1108-1109. But see Atlantic Heel Co. (v. Allied Heel Co., 1st Cir.), 284 F.2d (879) at 881; Metal Lubricants Co. v. Engineered Lubricants Co., 411 F.2d 426, 430 (8th Cir. 1969). While this requirement begins to limit Pick-Barth to Sherman Act proportions, it fails to do the job entirely.

The Sherman Act was conceived as a weapon against monopolies, trusts, and conspiracies which used agreement instead of financial consolidation to achieve the same results. The market power of the defendant charged with a Pick-Barth violation is crucial, for two reasons.

First, absent some market impact comparable to that which would be forbidden by the law of mergers, the interests protected by the antitrust laws never arise. See, e. g., United States v. General Dynamics Corp., 415 U.S. 486, 494-498, 94 S. Ct. 1186 (1192-1194), 39 L. Ed. 2d 530 (1974). See generally, L. Sullivan, Antitrust § 204 (1977). If a defendant could achieve a desired result either by lawful merger or by engaging in unfair competition, the choice of the unfair competition route alone should not give rise to an antitrust violation.

Second, only if the defendant can gain an increment of monopoly through his unfair competition would the additional sanctions of the Sherman Act, including treble damages and criminal sanctions, be appropriately used to deter him. Single damages or equivalent injunctive relief is thought sufficient to compensate a firm for unfair competition. Cf. R. Posner, Economic Analysis of Law 28-29 (1973) (decrying remedies other than actual damages for breach of a restrictive covenant).

The "significant existing competitor" requirement misses the mark in several respects. By not aiming at market power, it omits a number of relevant considerations, including the defendant's market share before and after the unfair conduct, the number and relative size of firms in the market, the conditions of entry, the potential competition from firms outside the market, and whether a trend toward concentration exists. It also excludes cases in which a new entrant possesses such dramatic market power that his conduct, aimed at eliminating competition, threatens the values protected by the Sherman Act. Cf. United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S. Ct. 1096, 35 L. Ed. 2d 475 (1973) (certain market extension mergers illegal).

576 F.2d at 89. It thus can be seen that Northwest Power establishes for unfair competition cases under section 1 of the Sherman Act a two-part test: (1) a market effect that would be prohibited under the law of mergers; and (2) other conduct by defendant that threatens Sherman Act values. We shall now examine the facts of the case under consideration in light of this test.

We believe that the first prong of Northwest Power is met here. That is, Page's conduct in this case was prohibited by the law of mergers; therefore, the interests protected by the antitrust laws do come into play. Regarding merger law, we find guidance in FTC v. Proctor & Gamble Co., 386 U.S. 568, 87 S. Ct. 1224, 18 L. Ed. 2d 303 (1967) (often called the Clorox case), which holds that where a market is concentrated and where a powerful potential entrant attempts to buy out or merge with the most significant competitor in the market, the merger would have such a potential for lessening competition that it could be prevented by the Federal Trade Commission. In this case Page essentially took over, by horizontal entry, the most significant existing competitor in the market, in contrast to the vertical supplier-distributor relationship in Northwest Power. Given the jury definition of the relevant market, the evidence is overwhelming that the market was concentrated. From nine competitors for G-II avionics outfitting in 1968-69, the market dwindled in the early 1970's to five in 1977.14 When the Associated-Page agreement ended in mid-1973, Associated had approximately 50 percent of the market, and four firms were fighting over the other half. Upon Page's entry, its market share went dramatically from zero to 50 percent in one year and had risen to 64 percent15 at trial.

Additionally, there was conclusive evidence16 that Page was a potential entrant into the G-II avionics market. Page was exclusive worldwide dealer for the green G-II, it was already in the interior outfitting business through its venture with Associated, and it had the customer contacts, the capital, and the liquidity to be a viable new entrant.17 Since these facts are within the Proctor & Gamble ambit, we find that if Page had attempted to acquire Associated directly, the acquisition would have violated the antitrust laws. Thus, we hold that Associated has cleared the first hurdle in Northwest Power.

With regard to the second prong of Northwest Power, we note significant differences between it and the case under consideration, differences weighing in Associated's favor. The new distributor in Northwest Power held only slightly more than half of the market share that had been held by the previous distributor-plaintiff. In contrast, Page now enjoys at least the same18 market share as that formerly held by Associated. More important, there was evidence that the prices Page charged its customers, as well as its profits, went up dramatically from those prices charged and profits taken by Associated;19 plaintiff in Northwest Power proved no excessive profits or prices. The evidence of foreign bribery, the fact that Page was the only outfitter in 1973-77 to install avionics in the 14 new G-II's belonging to foreign governments, and the testimony that an outfitter requires two or three contracts per year to remain competitive in the market could allow the jury to infer that improper conduct by Page, not competition on the merits, effectively foreclosed a competitive market share to another G-II outfitter. In short, Associated demonstrated that Page has the kind of "dramatic market power,", 576 F.2d at 89, that was lacking in Northwest Power and that allows the jury to draw an inference of anticompetitive effect.

As additional support for our holding, we point out that the Northwest Power case distinguished the case of Cherokee Laboratories, Inc. v. Rotary Drilling Services, Inc., 383 F.2d 97 (5th Cir. 1967), cert. denied, 390 U.S. 904, 88 S. Ct. 816, 19 L. Ed. 2d 870 (1968). In Cherokee Laboratories, defendant, although a new entrant in the distribution market, possessed great market power because it had an exclusive dealing arrangement with the holder of a patent. This control of supply made defendant a potential monopolist, and defendant's market power was shown by its raising of prices to plaintiff. Here defendant Page had an exclusive dealing arrangement with Grumman and demonstrated its market power by raising prices to consumers.

Defendants complain about the court's charge to the jury, contending that it failed adequately to instruct them on the necessity of finding injury to competition. We believe the charge, some of which is set out in the margin,20 when viewed in its entirety was adequate to withstand a challenge under Northwest Power.

Since we hold that Page could not have acquired Associated legally under the antitrust laws and that the acquisition plus its anticompetitive conduct afterwards had the requisite anticompetitive effect, we need not reach the issue whether business torts,21 standing alone, can ever rise to the level of section 1 violations.

In their argument regarding the jury finding of section 2 violations, defendants state in their brief:The Pick-Barth per se doctrine has no more validity under section 2 than under section 1 (citing Cooper, Attempts and Monopolization: A Mildly Expansionary Answer to the Prophylactic Riddle of Section 2, 72 Mich.L.Rev. 373, 454-55 (1974); 3 P. Areeda & D. Turner, Antitrust Law PP 737, 828a, 828b (1978)). Section 2 offenses cannot be based solely on tortious harm to a single competitor; a plaintiff must show in addition "significant and more-than-temporary harmful effects on competition " (citing P. Areeda & D. Turner, id. P 737b at 278 (emphasis in original)).

Furthermore, defendants assert that "Page, whatever its share of a 'G-II outfitting market,' did not have and does not have monopoly power, and could not have remotely anticipated that the alleged torts would give it any power over price in the outfitting of G-II aircraft."

We think the discussion regarding section 1 violations, supra, refutes most of defendants' arguments here. We have held that there were significant and more-than-temporary harmful effects on competition, shown in part by the rise in prices charged to customers and the rise in Page's profits over the profits Associated took. We also note that this market was not infinite and that Grumman at the time of trial could be expected to produce only about 70 more aircraft, thus rendering new entry then almost impossible in light of the difficulties faced by such a new entrant in recouping startup costs and ascending the learning curve in the remaining four years of G-II production.

Moreover, we have examined the treatise cited by defendants' brief and reached the conclusion that some unfair business practices can be exclusionary.22 For example, the authors of the treatise state that influencing, inducing, or persuading buyers to specify features of a product that only one company can provide effectively forecloses rivals from competition but that generally there is no impropriety in such persuasion or influence. 3 P. Areeda & D. Turner, Antitrust Law P 738b at 279-80. The authors, however, go on to imply that if buyers were influenced or induced in an improper manner, through bribes or similar practices, this might constitute an exclusionary practice in violation of section 2. Id. at 280. Areeda and Turner seem to say that bribes and similar practices are somewhat different from mere misrepresentations of one's own or a rival's product. Id. Relevant here is the evidence of foreign bribes. Also pertinent is the domestic contract awarded to Page at $10,000 over the highest bid and the permissible inference that such a contract was the result of improper influence.

Areeda and Turner are adamant in their view that the mere hiring away of employees from a rival is per se legal under the antitrust laws and emphasize "the importance of protecting the employee's opportunities for marketing his talents." Id. at P 783d at 281; see also P 702. However, they go on to state, "No similar virtue would redeem efforts to induce such disloyal performance by a rival's employee as disclosure of trade secrets or other private information; (or) steering customers, researchers, or others away from his employer and to the monopolist." Id., P 738d at 281. The authors imply that such practices would be grounds for section 2 liability if the actual effect was significant. We believe that to be the case here, since the effect was to allow entry through absorption of the most significant competitor by one who possessed great economic power. We note defendants' contention that the engineering drawings and data were not trade secrets, since they could be obtained from Associated's customers, each of whom were required to keep at least one copy of the avionics diagram in the aircraft for servicing purposes. Without deciding this question, we note merely that the jury was presented with conflicting evidence on this point. Certainly, the evidence of Page's conduct concerning Associated employees, especially Chapin, allowed the jury to find that gross impropriety had occurred.

Again, in paragraph 738e of the treatise, the authors discuss the general proposition that it is not an antitrust offense to obtain information from a rival's supplier about "the quantity or nature of shipments to or from the rival." Nevertheless, there are again exceptions to the authors' general premise:

There may be instances in which the means used by the monopolist are unlawful or otherwise clearly improper. For example, . . . the monopolist might "bribe" the supplier's employee who is thus induced to act in his personal interest and not in his employer's interest. Such improprieties can be exclusionary for § 2 purposes whenever they have a significant impact upon the competitive vitality of the rival.

Id., P 783e at 282. Since there was evidence of a "loan" from Page to Grumman's director of international sales and of a later contact by a Page officer with the Grumman employee, after which a Grumman customer withdrew its outfitting contract from Associated, the jury could infer that the Grumman employee was bribed and that the employee acted in his own self interest. The loss of one outfitting contract when the evidence tended to show that as few as two contracts per year would keep a company in the market would have a significant impact upon Associated's competitive position.

There was evidence that tended to show that defendant Page, by filing allegedly sham suits in federal and state court, attempted to withhold from Associated money actually owed to it. The amounts owed were substantial and undoubtedly had a significant impact on Associated's financial situation. In their treatise, Areeda and Turner state that abuse of the litigation process can be an exclusionary practice in some instances. Id., P 738j at 284-85.

Finally, Areeda and Turner in their paragraph of concluding comments sum up their theories about unfair competition vis-a-vis the antitrust laws and reiterate several cautionary notes:

First, antitrust law must be sensitive to the monopolist's "right" to protect himself and to compete vigorously in ways generally allowed. Second, antitrust law must be concerned lest the mere possibility of an exclusionary tendency permit interminable lawsuits inquiring into the "reasonableness" of every utterance or "ordinary" act of the monopolist. Third, to keep analysis manageable, the courts should be willing to adopt presumptions of propriety with respect to some minor acts that might conceivably be exclusionary. To force the inquiry, the plaintiff must be required to make a significant preliminary showing of impropriety. Fourth, the concept of "exclusionary" practice would become totally unmanageable unless the judges are willing to adopt a de minimis test and to ignore those practices that seem unlikely to have made a substantial impact upon the achievement, maintenance, or expansion of monopoly power. Fifth, those who disagree with these observations are bound to reexamine the rationale for looking at so-called exclusionary practices at all. Intellectual honesty should compel antitrust law to acknowledge that it is either (1) looking for a significant causal connection between power and challenged behavior or (2) condemning monopoly power as such (with possible exceptions). If the latter is the law's object, it should do so cleanly without burdening plaintiffs, defendants, courts, and society with a meaningless but endless charade searching for bad practices.

Id., P 739 at 287 (footnote omitted). We agree with the authors that a de minimis rule should be applied by our courts, but we believe that Associated's evidence in this case, which the jury evidently believed, was probative of enough instances of exclusionary behavior on the part of defendants to constitute far more than de minimis violations of section 2. Moreover, Areeda and Turner recognize, in their discussion of the section 2 offense of attempting to monopolize, that conduct violative of section 5 of the FTC Act, proscribing unfair competition, can at times be exclusionary under section 2. See id., P 830b.

Probably no one of the instances of improper conduct,23 standing alone, would lead to section 2 liability. Taken together, however, they show a pattern of exclusionary behavior sufficient to support the jury's verdict. Certainly, the Sherman Act encourages even rough-and-tumble competition on the merits, but Associated's evidence would allow the jury to infer that Page's overall success was influenced by factors other than the superiority of its products and services.

The jury instructions24 on section 2 were substantially correct. Defendants argue that they could not be found guilty of monopolizing as a matter of law, since their market power was insufficient to support such a charge. They further contend that since the jury found that they had monopolized, attempted to monopolize or conspired to monopolize, the verdict under section 2 cannot stand because it cannot be ascertained whether it rests on an impermissible ground. To be sure, Page's market power did not rise to the level existing in some cases that find actual monopolization. See, e. g., United States v. Grinnell Corp., 384 U.S. 563, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966); Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911); United States v. Aluminum Company of America, 148 F.2d 416 (2d Cir. 1945). However, when Page's market share is viewed alongside the evidence of the number of actual competitors, the high barriers to entry, the limited number of G-II's remaining at the time of trial to be produced, and Page's power over price, we believe the court below correctly submitted the issue to the jury. See Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). "The relative effect of percentage command of a market varies with the setting in which that factor is placed." United States v. Columbia Steel Co., 334 U.S. 495, 528, 68 S. Ct. 1107, 1124, 92 L. Ed. 1533 (1948). See also L. Sullivan, Antitrust §§ 22-32 (1977).25

In conclusion, we wish to reiterate here our holding in Northwest Power: "Single damages or equivalent injunctive relief is thought sufficient to compensate a firm for unfair competition." 576 F.2d at 89. This opinion should not be read to encourage all who suffer injury to business or property through an alleged business tort to bring suit under section 1 or 2 of the Sherman Act. The holding of this case rests on a narrow foundation, and only those cases coming within the ambit of these particular facts should be considered.

Since we held in our foregoing discussion of section 2 violations that evidence of bribery of customers' representatives or of the employee of the supplier, viewed in the context of evidence of other exclusionary conduct, could be probative of a section 2 violation, we reject defendants' contention that this evidence was irrelevant. We think plaintiffs made the requisite preliminary showing that the bribes had an effect upon competition; thus, the trial court was correct in denying defendants' motion in limine. The fact that the evidence was highly inflammatory merely requires the trial court to employ the balancing test under Fed.R.Evid. 403. We are not convinced that the trial court abused its discretion here, and we sustain its rulings.

Defendants also attack the trial court's rulings regarding the admission of evidence of defendants' lawsuits against plaintiffs. This issue was fully considered by the trial court in its earlier opinion in this case. See 414 F. Supp. 1088, 1094-96. The gist of that opinion is that evidence of the lawsuits was relevant since plaintiffs alleged that they were brought not for a proper purpose but for the purpose of achieving an unlawful objective i. e., to destroy plaintiffs by strangling plaintiffs' source of funds. We agree with the district court that the Noerr-Pennington doctrine26 does not extend first amendment immunity to such abusive acts. See id. at 1096. It should be noted that the district court required plaintiff not only to show that the defendants had an illegal purpose in filing the lawsuits but that defendants also committed specific acts, other than those incidental to the normal use of the courts, directed at attaining the illegal objective. Id. We agree with that analysis and that requirement.

We are convinced from a careful reading of the entire charge that it was, in substance, correct. Defendants contend that the jury was given little or no guidance on how to evaluate the various allegations of improper conduct. We disagree. The pertinent parts of the charge27 adequately cover defendants', as well as plaintiffs', contentions regarding the improper conduct.

DamagesGiven our conclusion that defendants' hiring away of Associated's key employees and its copying of the engineering diagrams and STC's would have been illegal had it been attempted as a buyout or merger, we believe that Associated should be allowed to base its damage calculations on assumptions that included the continuing services of Ross Chapin and its continued exclusive use of the engineering drawings and STC's. There was evidence that plaintiffs' average profit per sale of avionics in 1973 was about $52,000. Plaintiffs' expert, Dr. Block, projected lost earnings based on Associated's retaining its 51.6 percent share of the market and on an average per plane profit of $55,000. It is defendants' view that the profit figures should have been based on Associated's experience in the years 1969-73. However, some of those years reflected the growing pains of a new business, and the jury was entitled to consider just the last year in which Associated installed G-II's before the contractual breakup. Furthermore, we consider Dr. Block's projections to be fairly conservative, since they were based on an assumption that Grumman would produce only 250 G-II's, while the evidence shows that Grumman now intends to produce about 270, and since plaintiffs' evidence showed that Page's avionics profits on nine aircraft it outfitted after 1973 averaged $117,667, more than double the per plane average profit figure espoused by Dr. Block.

In short, we think the jury verdict that was based on plaintiffs' damage projections was supported by relevant evidence. The damages were not based on mere speculation or guesswork, see Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264, 66 S. Ct. 574, 579, 90 L. Ed. 652 (1946), and the expert's assumptions were supported by the evidence introduced at trial. See Heatransfer Corp. v. Volkswagenwerk, A.G., 553 F.2d 964, 984 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978).

Defendants contend that the trial court erred in not telling the jury to examine carefully Dr. Block's assumption that Associated would continue to receive all its former share of the G-II outfitting business despite the lawful termination of the contract between it and Page and despite competition from Page. However, the fact of the termination of the contract was before the jury, as were Page's attempts to enter the market. The jury could have reasonably inferred that, absent the improper conduct by Page, Associated would have continued to receive approximately half of all G-II avionics outfitting contracts, in light of Ross Chapin's extensive customer contacts built up during the Associated-Page venture.

The trial court granted judgment n. o. v. in favor of defendants on the claim of Associated Radio Company ("Radio") based on Radio's lack of standing to sue, holding that Radio's injury flowed merely from its position as creditor and supplier to Associated. We agree with the trial court's action for two reasons. First, while there was ample evidence for the jury to infer that there was a separate market for the sale and installation of avionics equipment in G-II airplanes, there was no evidence that a market existed that was limited to the sale of G-II avionics equipment to companies like Associated. The fact that Radio tended to concentrate its sales to G-II installers (that is, Associated) is not probative of the existence of a separate market. It may only reflect a business choice made by Radio to so limit its business. We find no evidence concerning the companies with which Radio competed, the range of other products that these companies sell, or the identity or nature of their customers. In short, Radio totally failed to prove that there was a separate market for the sale of avionics to installers who concentrated on the G-II aircraft.

Second, we agree that the only damages Radio proved "resulted from the ripple effect caused by defendants' actions against plaintiff (Associated)." Radio showed only that it had lost business from its customer, Associated, which in turn was restrained in its sale and installation of G-II avionics. Under this proof, Radio lacked standing to sue. See Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172 (5th Cir. 1976); Jeffrey v. Southwestern Bell Telephone Co., 518 F.2d 1129 (5th Cir. 1975); Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383, 393-95 (6th Cir. 1962), cert. denied, 372 U.S. 907, 83 S. Ct. 721, 9 L. Ed. 2d 717 (1963).

Radio vigorously contends that it had standing to sue and suffered antitrust injury because some of defendants' actions were aimed directly at it. However, under the target area test, a plaintiff must show more than animus directed toward it and resulting injury; it must show that its business or property interests exist in the "area of the economy" that is endangered by a "breakdown of competitive conditions" caused by the defendant. Jeffrey v. Southwestern Bell Telephone Co., 518 F.2d at 1131. Here the affected area of the economy was the business of installing avionics systems in G-II aircraft. If any other area was affected, Radio failed to prove it. Since Radio did not function in the outfitting business but merely sold avionics equipment to outfitters, it cannot recover under the antitrust laws and our case law. Thus, we approve the trial court's granting of judgment n. o. v. for defendants with regard to Radio.

We find as a matter of law that the evidence of defendant Edwin Hamilton's conduct, even if entirely credible, will not support the judgment against him. The case against Hamilton rests on two alleged instances of misconduct. First, Hamilton accepted a Christmas bonus from Page in 1972 while he was still on Associated's payroll. Second, he assisted Page in its efforts to lease office space in San Antonio and in purchasing the office's furniture, obtaining a miniwarehouse for Page to store equipment, and setting up the telephone system. There was no evidence that Hamilton assisted with the copying of the engineering drawings that Associated had developed or with any other acts detrimental to competition. Moreover, Hamilton was not shown to have participated in any commercial bribery or allegedly sham lawsuits. We reiterate that all of this conduct, taken together, rose to the level of a section 2 violation and that isolated acts, standing alone, did not. Thus, the judgment against Hamilton is reversed.

AFFIRMED in part and REVERSED in part.