In this suit against the corporate defendants Marquis1 alleged that the manner in which they terminated his Dodge dealership violated the Automobile Dealers' Day in Court Act (15 U.S.C. §§ 1221-1225), the Sherman Act (15 U.S.C. §§ 1-7), and the Robinson-Patman Act (15 U.S.C. §§ 13, 13a, 13b, 13c & 21a). The court directed verdicts for the defendants on all but the Dealers' Act claim, on which the jury returned a verdict of $116,097 for Marquis.

On appeal Marquis challenges the directed verdicts disposing of his Sherman Act claims. Chrysler Corporation and Chrysler Motors Corporation cross-appeal the Dealers' Act judgment and Chrysler Realty joins in a challenge to a $2,000 discovery sanction imposed against three of the defendants. Chrysler Financial Corporation is a party only as respondent to the Marquis appeal.

Marquis owned Don Marquis Dodge, an independent, franchised dealership in Concord, California, from 1960 to 1968, when Chrysler Motors terminated the dealership agreement.2 Under Chrysler Motors' marketing system for Dodge automobiles, the Marquis dealership had primary responsibility for selling cars and trucks in Sales Locality No. 31. That was part of the larger East Bay District, which in turn was part of the San Francisco Sales Region.3

Don Marquis Dodge operated under a standard franchise known as the Direct Dealer Agreement (the Agreement). During its early months the dealership operated under a temporary letter agreement. Marquis and Chrysler Motors executed formal Dealer Agreements in 1961 and 1963.

The Agreement gave Chrysler Motors the right to terminate the dealership on 90 days' notice upon the dealer's "failure . . . to perform fully any of the Direct Dealer's undertakings and obligations" under its terms. Among them was Marquis' duty to sell enough cars and trucks to meet or exceed his Minimum Sales Responsibility (MSR).

Marquis was obligated to satisfy separate MSR's for cars and trucks. The MSR was computed as the number of new Dodge cars (or trucks) registered in the sales region during a given period, divided by the total number of all new cars (or trucks) registered there during that period. Total registrations in the sales locality were multiplied by the regional ratio to obtain the dealer's MSR.4 Periodically, and some time after the expiration of the period to which the MSR applied, the dealer's sales were compared to MSR and his sales performance was analyzed.5

The Agreement provided that MSR would be adjusted to reflect available vehicle supplies, dealer sales trends, and local conditions affecting the dealer's ability to sell.6

In accordance with this scheme, the district sales manager for Chrysler Motors' Dodge Division visited the Marquis dealership regularly to conduct a "sales responsibility review." During these visits he presented Marquis with a sales review form which set forth the period's MSR and the dealership's sales. The form included a summary of recommendations to improve sales. Marquis signed the forms to verify the accuracy of their figures, to acknowledge that the review had taken place, and to indicate that he would act on the recommendations.

In addition to the sales review sessions Chrysler Motors reminded Marquis of the need to improve sales in other ways. In early 1966 Mr. King, who was then the Dodge regional sales manager, wrote to Marquis that "(n)either you nor Dodge can afford this loss of sales and resulting loss of profit." Later Mr. Loomis, who succeeded King, continued to counsel Marquis about his sales record. In 1963 and 1966 Chrysler Motors prepared special dealer surveys aimed at improving the dealership's sales record. Through these channels and the sales review sessions, Marquis was given numberous suggestions for sales improvement.7

Don Marquis Dodge consistently failed to meet its MSR. Only in 1966 was MSR attained, and then only for trucks. In other years sales amounted to approximately 51% to 80% of MSR.

Early in 1966 two Chrysler Motors representatives showed Marquis a three-acre lot in Concord and asked for his evaluation of it as a dealership site. Marquis told them he thought it lacked accessibility. He asked what the rent would be if the manufacturer acquired the site and leased it to a dealer. When he was told it would be about $9,000 or $10,000 a month, he expressed surprise at the figures. There was little further discussion and as they left the representatives told Marquis that they would "talk about it later."

In a month a Chrysler Motors representative again visited Marquis and asked if he had thought further about the new site. Marquis said he still considered it a poor location. On neither occasion was there an express request that Marquis relocate or a statement that his facility was inadequate.

In September 1966 Marquis read a newspaper account of Chrysler Motors' purchase of the Concord property and its request for a use permit to construct an auto dealership there.8 He made calls to Chrysler Motors officials and was assured that the land would not be developed for five to ten years. As it turned out, a corporate-owned Dodge retail facility was constructed on the site soon after the Marquis dealership was terminated.

In October 1967, Loomis offered Marquis the services of a Chrysler Motors employee to assist the sales effort, but Marquis declined the offer. Loomis told him that he would watch the dealership's sales figures "with interest." Unbeknown to Marquis, Loomis had already initiated a request for termination of the dealership.9

On January 5, 1968, Chrysler Motors informed Marquis that his dealership was to be terminated in 90 days. On January 11 he wrote to Mr. McCurry, a vice president of the Dodge Division, asking for reconsideration. McCurry refused by letter on February 6. Marquis wrote again on February 9 and received a similar response. Marquis met with Loomis in mid-February, but the meeting resulted in no change in the decision.

Marquis testified that while attending an auto dealers' convention in February he first learned of the Chrysler Motors Appeals Board, an intra-corporate body that reviews dealership termination decisions. Chrysler Motors maintained that all its dealers, including Marquis, were told of the board's creation and function when it was formed late in 1966. No letter to Marquis at the time of, or subsequent to, his termination mentioned his right to appeal to the board.

Marquis wrote McCurry a third letter on March 1, requesting that he forward an enclosed letter to the appeals board, explaining that he did not know the board's address. McCurry apparently forwarded the letter to the board because on March 7 the board's secretary wrote Marquis, explaining that, because his request for review was not filed within 31 days of the notice of termination, it was untimely and would not be considered.

There followed a series of letters between Marquis and Loomis and McCurry and at least one more meeting between Marquis and Loomis. All of Marquis' pleas for reconsideration proved unavailing and the dealership was terminated in April.

In the years 1966-1970 a number of independent Dodge dealers in the East Bay District went out of business. During the same period Chrysler Motors established five new corporate-owned facilities (Dealer Enterprise or D.E. outlets) there.

Chrysler contends that it is not a proper party defendant to Marquis' Dealers' Act suit. In addition, Chrysler and Chrysler Motors urge that we reverse the judgment because:

a. the claim was barred by the statute of limitations;b. the verdict was not supported by the evidence and was incorrect as a matter of law;

c. other errors, including improper jury instructions and evidentiary rulings, prejudiced the defense; and

d. the damages award was based on speculation and conjecture.

A. The Statute of Limitations.

The Dealers' Act includes its own three-year statute of limitations.10 Marquis received notice of termination on January 5, 1968, to be effective April 4, 1968. He sued on April 2, 1971, more than three years after the termination notice, but less than three years after actual termination.

The cross-appellants contend that the limitations period runs from the date Marquis received notice of the termination. Citing Emich Motors Corp. v. General Motors Corp., 229 F.2d 714, 720 (7th Cir. 1956), they argue that Marquis could have instituted suit on the day of notice and that the limitations period ran from that date.

Emich, however, is distinguishable and does not stand for the general proposition that the Dealers' Act limitations period runs from the date of the termination notice. In Emich the notice canceled the dealer's contract right to receive cars from the manufacturer. It coincided with actual injury to the dealer and, after giving such notice, "General Motors could not prevent (the dealer) bringing action at that time for the unlawful breach." 229 F.2d at 720.

There is no evidence that notice of termination immediately diminished Marquis' rights under the contract. Moreover, the existence of corporate termination review mechanisms belies the contention that after notice the termination decision was irreversible.

We hold that Marquis' cause of action accrued on April 4, 1968, the date termination was effective and that this suit was timely brought. Cf. Rea v. Ford Motor Co., 355 F. Supp. 842, 862 (W.D.Pa.1972), vacated on other grounds, 497 F.2d 577 (3rd Cir.), cert. denied, 419 U.S. 868, 95 S. Ct. 126, 42 L. Ed. 2d 106 (1974) (cause of action accrued on date of franchise cancellation).

B. Liability of Chrysler Corporation.

Chrysler Corporation contends that it cannot be liable on the Dealers' Act claim because it was not a party to the Direct Dealer Agreement. The Agreement was between Marquis and Chrysler Motors only.

Under the Act, "automobile dealers" may sue "automobile manufacturers" for failure to act in good faith in performing or complying with the franchise terms or in cancelling, not renewing, or terminating the franchise. 15 U.S.C. § 1222. Those manufacturing or assembling cars or trucks and the enterprises distributing them under their control are "automobile manufacturers" within the meaning of the statute. 15 U.S.C. § 1221(a).

Chrysler Corporation is clearly a statutory manufacturer and it is undisputed that Chrysler Motors is controlled by it and distributes automobiles so as to be a manufacturer also. The question remains, however, whether Chrysler Corporation can be liable for noncompliance with, or termination of, the franchise agreement in the absence of contractual privity or some dealing with Marquis.

In these circumstances the courts generally have held that one not a party to the agreement cannot be liable under the Act. See Lawrence Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 461 F.2d 608, 613 (7th Cir. 1972); York Chrysler-Plymouth v. Chrysler Credit Corp., 447 F.2d 786, 791 (5th Cir. 1971); Evanston Motor Co., Inc. v. Mid-Southern Toyota, 436 F. Supp. 1370, 1375 (N.D.Ill.1977); Joe Westbrook, Inc. v. Chrysler Corp., 419 F. Supp. 824, 831-32 (N.D.Ga.1976); Smith-Johnson Motors Corp. v. Hoffman Motors Corp., 411 F. Supp. 670, 673-74 (E.D.Va.1975).

A manufacturer may be liable notwithstanding it is not a party to the franchise if the party contracting with the dealer is the manufacturer's agent or merely a "straw man" erected to insulate it from statutory liability. Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 64 (9th Cir. 1973). Although Chrysler Motors is a subsidiary of Chrysler Corporation, there was no evidence that it was Chrysler Corporation's agent in dealing with Marquis. We think the Fifth Circuit's comments in York Chrysler-Plymouth v. Chrysler Credit Corporation are apposite:

Either (Chrysler Corporation or Chrysler Motors) could be sued for failure "to act in good faith in performing or complying with any of the terms or provisions of the franchise. However, there being no showing that would make either responsible for the acts of the other on an agency theory, and the facts indicating that they are separate legal entities each operating in its own sphere, only the one which has entered into a franchise agreement could be held accountable for performing or complying with it. Since Chrysler Corporation was not a party to the franchise and had no legal responsibility to plaintiffs for the acts of Chrysler Motors, which signed the franchise, it should have been dismissed from the suit and the judgment should not have been entered against it.

The verdict, insofar as it imposed liability on Chrysler Corporation, was clearly erroneous and is reversed.

C. Sufficiency of the Claim.

Chrysler Motors strenuously argues that Marquis' claim under the Dealers Act is legally insubstantial and unsupported by the evidence.12 It asserts that his repeated failure to satisfy MSR established that his sales representation was unsatisfactory and that termination of unsatisfactory dealers is permitted under the Act.13 Moreover, it stresses that the key to recovery under the Act is a manufacturer's failure to act in good faith and that such a failure is not demonstrated unless there has been coercion, intimidation, or threats of coercion or intimidation. For these reasons Chrysler Motors contends that the district court erred in denying its motion for a directed verdict.

At trial Marquis contended that he was the victim of a coercive and intimidating course of conduct. He claimed that the sales quotas assigned him were unfair and never adjusted to reflect local conditions. Although the reason for termination was ostensibly insufficient sales, Marquis contended that the defendants had ulterior motives (developing the newly acquired site in Concord and removing him from the market to establish a corporate-owned facility). He also argued that the defendants frustrated his attempt to obtain review of the termination decision in furtherance of their decision to take him out of business.

1. Standard of Review.

When we review a denial of a motion for a directed verdict or for judgment n. o. v., we consider

whether or not, viewing the evidence as a whole, there is substantial evidence present that could support a finding, by reasonable jurors, for the nonmoving party. Butte Copper & Zinc Co. v. Amerman, 157 F.2d 457, 458 (9th Cir. 1946). "Substantial evidence is more than a mere scintilla." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938); Butte Copper & Zinc Co., supra. The evidence must be examined in a light most favorable to the nonmovant, Continental Ore v. Union Carbide & Carbon Corp., 370 U.S. 690, 696 & n.6, 82 S. Ct. 1404, 8 L. Ed. 2d 777 (1962), and there can be no weighing of evidence. Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S. Ct. 409, 88 L. Ed. 520 (1944). Finally, appellant . . . is entitled to the benefit of all reasonable inferences that may be drawn from its evidence. Standard Oil Co. v. Moore, 251 F.2d 188, 198 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S. Ct. 1139, 2 L. Ed. 2d 1148 (1958).

Chisholm Bros. Farm Equipment Co. v. International Harvester, 498 F.2d 1137, 1140 (9th Cir.), cert. denied, 419 U.S. 1023, 95 S. Ct. 500, 42 L. Ed. 2d 298 (1974), quoted in Autohaus Brugger, Inc. v. Saab Motors, Inc., 567 F.2d 901, 909-10 (9th Cir. 1978).

2. Sub-MSR Sales as a Justification for Termination.

Chrysler Motors contends that Don Marquis Dodge inadequately marketed its products and that, far from being coercive or intimidating, the termination was justified, even compelled, by the dealership's consistently poor sales record. It points to seven years of sub-MSR sales as the sole reason for termination and relies upon its rights under the Agreement and the Act to absolve it from liability.

Chrysler Motors argues that MSR is a "self-adjusting formula which requires a dealer to perform at nothing more than the level of an average dealer in the region" and it cites Victory Motors of Savannah, Inc. v. Chrysler Motors Corp., 357 F.2d 429 (5th Cir. 1966). In Victory Motors the court refused to find MSR a coercive franchise provision and commented that use of the MSR formula is consistent with the manufacturer's right to terminate dealers providing inadequate market representation.

We do not think that the good faith requirement . . . prevents a manufacturer from terminating a contract . . . where the dealer has, over a long period of time, violated a valid and material clause of the contract and has failed to comply with the continuing insistence of the manufacturer upon performance.

357 F.2d at 432 (quoting Woodard v. General Motors, 298 F.2d 121 (5th Cir.), cert. denied, 369 U.S. 887, 82 S. Ct. 1161, 8 L. Ed. 2d 288 (1962). Chrysler Motors asserts that MSR "has consistently been upheld as a reasonable standard for sales performance."14

Cross-appellant places other reliance on the Dealers Act's legislative history which makes it clear that the Act was not intended to prevent a manufacturer from ending its relationship with a substandard sales representative.

The bill . . . does not prohibit the manufacturer from terminating or refusing to renew the franchise of a dealer who is not providing the manufacturer with adequate representation. Nor does the bill curtail the manufacturer's right to cancel or not to renew an inefficient or undesirable dealer's franchise.

H.R.Rep. No. 2850, 84th Cong., 2d Sess. (1956) (hereafter H.Rep.), reprinted in (1956) U.S.Code Cong. & Admin.News, pp. 4596, 4603.

We agree that the Dealers' Act did not extinguish automobile manufacturers' right to terminate franchised dealers who represent them inadequately and that a dealership may be lawfully terminated when the dealer consistently has violated "a valid and material clause of (his) contract and has failed to comply with . . . continuing insistence . . . upon performance." Victory Motors, 357 F.2d at 432 (emphasis added) (quoting Woodard, supra ). But we cannot say that in the circumstances presented here Marquis' failure to meet his MSR sales quota, taken alone, requires that Chrysler Motors' actions could not as a matter of law violate the statutory requirement of good faith.

The nature of MSR renders it suspect as the single indicator of satisfactory sales performance. Chrysler Motors itself describes MSR as requiring Dodge dealers to perform "at the level of an average dealer in the region." An "average" necessarily comprehends a range of numbers serving as the basis for computation. It follows that when dealers' sales figures are averaged, some dealers must have sales levels below that average.

The operation of MSR in dealer franchises which on their faces are terminable only for cause has the practical effect of transforming a large proportion of those agreements into franchises terminable at the pleasure of the manufacturer. This point was ably explained by Judge Will in Madsen v. Chrysler Corporation, 261 F. Supp. 488, 491-500 (N.D.Ill.1966), vacated as moot, 375 F.2d 773 (7th Cir. 1967). We recently acknowledged that selective enforcement of unrealistic sales quotas can rise to the level of a Dealers Act violation. Autohaus Brugger, 567 F.2d at 912 (citing Madsen, supra ) (dictum).

We do not hold that MSR is an inherently coercive or intimidating franchise term or that termination for sub-MSR sales is a per se violation of the Dealers' Act. We hold only that on these facts, where the dealership operated at sub-MSR levels for a considerable period, during which the sales requirement consistently was treated as a goal, and where there is evidence that termination was motivated by other reasons, the dealer's failure to satisfy MSR does not by itself establish that sales performance was so poor that termination could not violate the Act.15

3. The Statutory Duty of Good Faith.

Chrysler Motors stresses that to recover under the Act Marquis must show that it terminated his dealership without good faith within the "limited and restricted meaning" given the term in the statute, Autohaus Brugger, 567 F.2d at 911, and that the court is not to construe that standard liberally. Milos v. Ford Motor Co., 317 F.2d 712, 715 (3rd Cir.), cert. denied, 375 U.S. 896, 84 S. Ct. 172, 11 L. Ed. 2d 125 (1963).

The courts have held consistently that the Act creates a cause of action "an indispensable element of which is not the lack of good faith in the ordinary sense but a lack of good faith in which coercion, intimidation, or threats thereof, are at least implicit." Lawrence Chrysler Plymouth, Inc., 461 F.2d at 610. See also Autohaus Brugger, Inc. v. Saab Motors, Inc., 567 F.2d at 910-11; Fray Chevrolet Sales, Inc. v. General Motors Corp., 536 F.2d 683, 685 (6th Cir. 1976); Randy's Studebaker Sales, Inc. v. Nissan Motor Corp., 533 F.2d 510, 514-15 (10th Cir. 1976); Overseas Motors, Inc. v. Import Motors Ltd., 519 F.2d 119, 124-25 (6th Cir.), cert. denied, 423 U.S. 987, 96 S. Ct. 395, 46 L. Ed. 2d 304 (1975); Salco Corp. v. General Motors Corp., 517 F.2d 567, 571 (10th Cir. 1975); Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556 (2d Cir. 1970); Southern Rambler Sales, Inc. v. American Motors Corp., 375 F.2d 932, 935 (5th Cir.), cert. denied, 389 U.S. 832, 88 S. Ct. 105, 19 L. Ed. 2d 92 (1967).

Coercion or intimidation has been defined as " 'a wrongful demand which will result in sanctions if not complied with.' " Fray Chevrolet Sales, Inc. v. General Motors Corp., 536 F.2d at 685; Randy's Studebaker Sales, 533 F.2d at 515-16; Autowest, 434 F.2d at 561. Cross-appellants reason from this that because Marquis did not show that they expressly demanded something they had no right to demand, he cannot recover under the Act. Their theory is that a cause of action does not lie unless there is an express "wrongful demand enforced by threats of coercion." Diehl & Sons, Inc. v. Int'l Harvester, 426 F. Supp. 110, 124 (E.D.N.Y.1976). See also Autohaus Brugger, 567 F.2d at 911; Autowest, 434 F.2d at 561.

We recognize that the Act is drafted in restrictive terms, but its scope is not as limited as Chrysler Motors contends. "The existence of coercion or intimidation depends on the circumstances arising in each particular case and may be inferred from a course of conduct." H.Rep., (1956) U.S.Code Cong. & Admin.News at 4603 (emphasis added); Autohaus Brugger, 567 F.2d at 911. The manufacturer's wrongful demand can be implicit, inferable from "all the facts and circumstances without a showing of a formal demand." Diehl & Sons, 426 F. Supp. at 124.

The evidence showed that the Marquis dealership operated for more than seven years with sub-MSR sales. Marquis entered into two Direct Dealer Agreements at times when sales were below MSR. Although Chrysler Motors' sales representatives periodically critiqued the dealership's performance, these reviews stressed MSR as a goal to be attained through implementation of sales improvement suggestions.

The jury could have concluded that Chrysler Motors' representatives never informed Marquis that, as a result of sub-MSR sales, the dealership was subject to termination at any time.16 During this period Chrysler Motors encouraged Marquis to continue to expand and invest in his business.17 Unlike Victory Motors, supra, there was no "continuing insistence on performance" of the MSR provision.

Moreover, Marquis Dodge's MSR was never adjusted downward, although Marquis showed a variety of local conditions that he claimed inhibited his ability to sell cars. There was adequate evidence from which the jury could conclude that Chrysler Motors never intended to adjust MSR as the franchise stated it would.18

In 1966 Chrysler Motors acquired land for a new and larger dealership within Marquis' sales area and there is evidence that it resolved to take him out of business when he was unreceptive to relocating.19

In the fall of 1967, after Loomis had requested that the Marquis franchise be terminated, he met with Marquis but gave no indication that Chrysler Motors was then ready to stand on its right to terminate the dealership. There was evidence that Marquis' sales were improving at the time termination was effected and that Chrysler Motors was less than conscientious in processing Marquis' request for review of the termination decision.20

We think that Chrysler Motors breached the statutory duty of good faith. Rather than enforcing the MSR clause as written or adjusting it to excuse periods of sub-MSR sales, it permitted Marquis to continue in business with sales below MSR. Then, when it suited Chrysler Motors' purposes, it demanded compliance with MSR post facto and, pointing to the dealership history of sub-MSR sales, terminated the franchise.

The jury considered the motivation, timing and manner of termination to be intimidating and coercive in light of all the facts and circumstances. Chrysler Motors' conduct in this case was precisely the kind of intimidating and overbearing manufacturer conduct that the Act was designed to proscribe. E. g., Madsen v. Chrysler Corp., supra; Swartz v. Chrysler Motors, 297 F. Supp. 834 (D.N.J.1969) (preliminary injunction).21D. Jury Instructions.

Chrysler Motors contends that the court's instructions confused the statutory good faith standard with the more general doctrine of bad faith. It argues that this confused the jury and allowed it to return a verdict for Marquis based on conduct not violative of the statute. It complains particularly that the trial judge's deviations from the strict statutory language defining good faith hopelessly misled the jury and patently misstated the law.22

In support, it cites several recent cases that hold that erroneous instructions are not cured by correct ones in other portions of the charge but must be expressly corrected and "expunged" from the jurors' minds. Seltzer v. Chesley, 512 F.2d 1030, 1035 (9th Cir. 1975). See also Houston v. Herring, 562 F.2d 347, 348-49 (5th Cir. 1977); Pollock v. Koehring Co., 540 F.2d 425, 426-27 (9th Cir. 1976).

As the cited cases make clear, however, "(t)he test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." Houston, 562 F.2d at 349 (quoting Borel v. Fiberboard Paper Products Corp., 493 F.2d 1076, 1100 (5th Cir. 1978)). In Houston, the court found that the instructions "emphatically and erroneously" misstated the law, necessitating reversal. 562 F.2d at 349.

Similarly, in Pollock, a tort case, the trial judge twice instructed the jury clearly and incorrectly on the burden of proof and assumption of risk. Although other portions of the charge were correct, the instructions as a whole remained contradictory when the case went to the jury. 540 F.2d at 426.

Chesley also involved instructions that were clear misstatements of law and the appeals court held that the error had been cured only because the trial judge expressly corrected himself and ordered the jurors to disregard his earlier mistake. 512 F.2d at 1035-36.

This is a different case. The trial judge separately charged the jury as to the applicable law and counsel were then permitted to argue the question of liability. During the charge the judge emphasized the Act's restrictive definition of the good faith standard and read the appropriate statutory sections to the jury verbatim.

As he recapped the parties' allegations, the judge repeatedly referred to the necessity that there be coercion or intimidation before liability can be imposed. The occasional references to "bad faith" were not contradictory of other portions of the charge because when the term was used the judge often added "as defined in the Act," or he employed the term as part of his explanation of the statutory prerequisites to liability.

In short, although we recognize that erroneous instructions must be cured expressly, considering the charge as a whole, we are convinced that "the substance of the applicable law was fairly and correctly covered." Pollock, 540 F.2d at 426 (citing Bolden v. Kansas Southern Ry. Co., 468 F.2d 580 (5th Cir. 1972)).

E. Other Alleged Errors.

1. Plaintiff's Exhibit 1.

Chrysler Motors contends that it was error to admit in evidence its dealer prospectus given to Marquis in 1960. It argues that the prospectus was irrelevant to its good faith and that its admission invited the jury to consider liability based on a fraudulent inducement which occurred, if at all, eight years before termination of the Marquis dealership.

Under the Federal Rules of Evidence, questions of relevancy and admissibility are committed to the trial court's discretion. We will not overturn its ruling unless there has been an abuse that affects substantial rights. See generally 1 Weinstein's Evidence P 103(01), P 401(01) & (08), and Fed.R.Evid. 401, 402 & 403.

In suits arising under the Dealers' Act the trier of fact may properly consider the entire course of dealing between dealer and manufacturer. York Chrysler-Plymouth, 447 F.2d at 793; American Motors Sales Corp. v. Semke, 384 F.2d 192, 196 (10th Cir. 1967). See H.Rep., (1956) U.S.Code Cong. & Admin.News at 4603.

The prospectus was relevant to the course of dealings between the parties and had some bearing on Marquis' contention that the manufacturer's sales expectations had been treated from the outset as "goals" rather than as mandatory quotas.

Moreover, Chrysler Motors' complaint that the exhibit introduced elements of fraudulent inducement into the jury's consideration is not well taken. As we have said, the jury was properly instructed on the issues and there is no reason to conclude that it ignored the instructions to Chrysler Motors' prejudice.

The trial court's ruling was not an abuse of discretion.23

2. Failure To Inform The Jury Expressly That The Antitrust

Claims Were No Longer Before It.

Chrysler Motors argues that it was prejudiced by the trial court's refusal to inform the jury expressly that the plaintiff's antitrust claims had been eliminated from the case and by its failure to withdraw from evidence exhibits allegedly relevant solely to those claims.

It is the trial court's duty to clarify the issues for the jury. The trial judge did so here, instructing that the Dealers' Act claim was the "sole issue" to be considered and advising counsel to address only that claim in closing argument.

Moreover, the defendants did not submit a proposed instruction on the point and first mentioned it in chambers after the Dealers' Act charge had been given. At that point the court determined that the jury's task had been clearly explained. Because the evidence before the jury was for the most part relevant to the defendants' course of conduct and methods of doing business, the judge concluded that argument should not be delayed while all the evidence was reviewed so that a very small part of it could be excluded. Cf. York Chrysler-Plymouth, 447 F.2d at 792 n.6.

The judge ruled correctly under the circumstances and the jury's deliberations were clearly and accurately directed by the instructions given.

F. Damages.

The award of damages is attacked on the ground that it was based only on the speculative and conjectural testimony of Iles, the plaintiff's expert. He was a certified public accountant with expertise in automobile dealership finances who offered his opinion as to profits lost by the termination and as to the value of the business when it ceased operation.

He was confident that his estimate of the profits lost from termination throughout 1974 was accurate and conservative. The verdict of $116,097 reflected the jury's acceptance of that testimony, as the amount equalled Iles' estimates minus Marquis' earnings from other employment during that period.

Chrysler Motors maintains that Iles' testimony was purely speculative and was contradicted by evidence that the dealership had been consistently unprofitable. Although the dealership had cumulative losses of $21,000 prior to 1967, Iles testified that 1967 had been a profitable year. The defendants disagreed, pointing to a large unsecured indebtedness discharged by Marquis' post-termination bankruptcy. They contended that the indebtedness accrued during 1967 and that, in light of it, 1967 could not have been profitable. Iles testified that there was no evidence that the debts had been generated by the dealership in that year. We think that, given the conflicting theories, the jury could reasonably have found that there were dealership profits during 1967.

Using his 1967 figures as a base, and drawing on the dealership sales figures for early 1968, Iles projected his estimate of profits that would have accrued but for the termination. He explained the assumptions upon which the projections were based (including the assumption that the dealership would capture an increasing share of car sales in the locality) and described the data and documentation, including local and industry-wide sales trends, upon which his computations were based.

The defendants cross-examined him at length and exposed to the jury what they believed to be fatal flaws in his analysis. They offered no evidence of their own on the issue of damages.

The parties agree that lost profits are properly awardable in Dealers Act suits. Rea v. Ford Motor Co., 560 F.2d 554, 557 (3rd Cir. 1977); Randy's Studebaker Sales, 533 F.2d at 518-19; American Motors Sales Corp. v. Semke, 384 F.2d at 199-200.

Chrysler Motors argues, however, that there was so little sound evidence of lost profits that the matter should have been taken from the jury.

It is not enough, however, that several of (the expert's) assumptions may be open to question. Instead, the issue is whether the probative value of the expert's testimony was so slight that it should not have been submitted to the jury.

Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 999 (5th Cir. 1976). We have reviewed Iles' testimony and conclude that it cannot be characterized as so insubstantial as to justify removing the damage question from jury consideration.

Moreover, we conclude that the testimony provided a sufficient basis for the jury's award.

Damages must be actual, not speculative or conjectural. But they are not rendered speculative or conjectural merely because they cannot be calculated with mathematical exactness. It is sufficient if a reasonable basis of computation is afforded, even though the result may be only an approximation. . . . Ordinarily, it is the exclusive function of the jury to fix the amount of damages.

Loew's, Inc. v. Cinema Amusements, 210 F.2d 86, 95 (10th Cir. 1954) (citations omitted). See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 376-79, 47 S. Ct. 400, 71 L. Ed. 684 (1927).

The plaintiff here presented "data from which the amount of probable loss could be ascertained as a matter of reasonable inference." Cecil Corley Motor Co. v. General Motors Corp., 380 F. Supp. 819, 854 (M.D.Tenn.1974) (quoting Eastman Kodak Co., supra ). See also Hannigan v. Sears, Roebuck and Co., 410 F.2d 285, 293 (7th Cir. 1969).24

Iles' assumptions and estimates were not demonstrably false or unreasonable. Certainly some facets of his testimony were weak, but his opinion as a whole was well grounded in his investigation, inquiries, knowledge and non-frivolous assumptions. This method of computation was sufficient to present a jury question. See Autowest, 434 F.2d at 566.

We note further that the expert testimony here did not concern complex or sophisticated computations generating "an array of figures conveying a delusive impression of exactness in an area where a jury's common sense is less available than usual to protect it." Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 87 (9th Cir. 1969) (quoting Herman Schwabe, Inc. v. United Shoe Machinery Corp., 297 F.2d 906, 912 (2nd Cir. 1962)). The testimony instead was a straightforward projection of profits for a small business. Cf. Eastern Air Lines, Inc., 532 F.2d at 999-1000.

Marquis alleged that Chrysler Corporation, Chrysler Motors, Chrysler Realty, and Chrysler Financial conspired to eliminate him as an independent Dodge Dealer, unlawfully restraining trade in violation of § 1 of the Sherman Act, and that the defendants' conduct was an attempt to monopolize in violation of § 2. After both sides had rested, the district judge directed verdicts for the defendants. Marquis has appealed.

A. Standard of Review.

Marquis contends that directed verdicts in antitrust actions must be reviewed searchingly in light of the Supreme Court's admonition that "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles . . . ." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1962), quoted in Cornwell Quality Tools Co. v. C. T. S. Co., 446 F.2d 825, 832 (9th Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 715, 30 L. Ed. 2d 740 (1972).

We have followed that view and expressed our preference that summary procedures be employed with caution in such cases. See, e. g., Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 622, 624 (9th Cir. 1977); Timberlane Lumber Co. v. Bank of America N. T. & S. A., 549 F.2d 597, 602 (9th Cir. 1976); Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 280 (9th Cir. 1976). On several occasions we have assumed that the Poller admonition applies to directed antitrust verdicts. E. g., Chisholm Bros. Farm Equip. Co., 498 F.2d at 1139-40; Cornwell Quality Tools, 446 F.2d at 832.

Our recent cases, however, have applied the general review standard for directed verdicts in the context of complex antitrust litigation. That standard is whether, viewing the evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party and without weighing witnesses' credibility, a reasonable jury could have reached but one conclusion as to the verdict. See Fount-Wip, Inc. v. Reddi-Wip, Inc., 568 F.2d 1296, 1300 (9th Cir. 1978); Janich Bros. v. American Distilling Co., 570 F.2d 848, 852-53 (9th Cir. 1977); Greyhound Computer Corp., Inc. v. Int'l Business Machines, 559 F.2d 488, 492 (9th Cir. 1977); Santa Clara Valley Distributing Co., Inc. v. Pabst Brewing Co., 556 F.2d 942, 944 (9th Cir. 1977).25 We are convinced that these cases applied the correct standard of review and we shall apply it to Marquis' appeal.

B. The Section 1 Claim.

Marquis' theory under § 1 was that the corporate defendants acted in concert to terminate his dealership and to replace it with a D.E. facility and that the purpose and effect of their conduct was to restrain trade.

Assuming there was sufficient evidence that the defendants acted in concert, viewing the record as a whole, we conclude that a reasonable jury could not have returned a verdict for Marquis on the § 1 claim.

This circuit adheres to the rule that a corporation has the right to deal with whom it pleases and to select its customers, provided that there is no effect which contravenes the antitrust laws. See, e. g., Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1220 (9th Cir. 1977); Ricchetti v. Meister Brau, Inc., 431 F.2d 1211, 1214 (9th Cir. 1970), cert. denied, 401 U.S. 939, 91 S. Ct. 934, 28 L. Ed. 2d 219 (1971).

Mutual Fund Investors, 553 F.2d at 626.

A manufacturer's refusal to deal with a distributor or a dealer does not violate the antitrust laws merely because it adversely affects the entity refused. In fact, such effects are immaterial when the refusal is "for business reasons which are sufficient to the manufacturer . . . in the absence of any arrangement restraining trade." Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9th Cir. 1972) (quoting Ricchetti, 431 F.2d at 1214).26

Marquis did not show that the defendants' actions were conceived to restrain trade or that they resulted in anticompetitive market effects. They acted to improve their distribution system by eliminating a dealer they considered ineffective and replacing him with a more efficient outlet.

Uncontroverted evidence established that the defendants did not conspire to establish and maintain corporate-owned dealerships in the "major East Bay markets," as Marquis alleged.27 The defendants showed that corporate-owned facilities are established only as a last resort and that such dealerships are transferred to private, independent dealers as soon as possible. Furthermore, even if Marquis could show that his dealership was satisfactory, that would not compel a different result. Stenocord, 460 F.2d at 119-20.

This is a kind of dealer termination that we have in the past considered permissible under the Sherman Act. See, e. g., Knutsen v. Daily Review, 548 F.2d 795, 803 (9th Cir. 1976); Chisholm Bros. Farm Equipment Co., 498 F.2d at 1143; Stenocord, 460 F.2d at 119; Joseph E. Seagram & Sons, 416 F.2d at 76.

Although the manner in which termination was effected violated the Dealers' Act, the record is clear that it did not run afoul of § 1 of the Sherman Act.28 The district judge correctly directed a verdict for the defendants.

C. The Section 2 Claim.

Marquis' claim that the defendants' conduct was an attempt to monopolize in violation of § 2 of the Sherman Act was also resolved against him by directed verdict. Again we conclude that the district court correctly disposed of the issue.

We have said that to establish a prima facie case, a plaintiff must show (1) specific intent to control prices or destroy competition in a part of commerce; (2) predatory conduct directed to accomplishing the unlawful purpose; and (3) a dangerous probability of success. Janich Bros., 570 F.2d at 853.

The three elements are interrelated, and we have held that a dangerous probability of success may be inferred from proof of specific intent coupled with proof of predatory conduct, and that specific intent may sometimes be inferred from the predatory conduct. Id. (citing Hallmark Industry v. Reynolds Metals Co., 489 F.2d 8 (9th Cir. 1973), cert. denied, 417 U.S. 932, 94 S. Ct. 2643, 41 L. Ed. 2d 235 (1974), and Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 993, 84 S. Ct. 1920, 12 L. Ed. 2d 1046 (1964)).

Thus, while a plaintiff must present substantial evidence on all three elements of attempted monopolization to avoid a directed verdict, proof of predatory or anticompetitive conduct which can serve as the basis for a substantial claim of restraint of trade will, in some circumstances, permit an inference of specific intent and then in turn of dangerous probability. Thus, we may limit our initial task to a determination of whether a reasonable jury could conclude that (the defendants) engaged in such conduct.

Janich Bros., 570 F.2d at 854.

Marquis would have us infer specific intent and dangerous probability of success from the conduct underlying his successful Dealers' Act suit. But the Dealers' Act was intended to supplement the antitrust laws, and every Dealers' Act violation will not necessarily amount to an actionable antitrust violation. See, e. g., Autowest, 434 F.2d at 561.

In discussing the claim made under § 1 of the Sherman Act, we determined that a reasonable jury could not have concluded that the termination of Marquis' dealership constituted conduct that could serve as the basis for a substantial claim of restraint of trade. Our conclusion that the directed verdict was proper on the § 2 claim readily follows.29

The district court ordered Chrysler Corporation, Chrysler Motors, and Chrysler Realty to pay $2,000 to Marquis' attorney as compensation for expenses and fees incurred as a result of their failure to produce documents required by discovery. The judge based his order on the magistrate's finding that

(i)t does seem reasonably clear that defendants simply have not produced the documents. . . .

I believe the defendants' conduct regarding discovery in this case has required the plaintiff to bring motions to compel discovery that would otherwise have been unnecessary. There is no substantial justification for defendants' failure to comply with the Order in all respects or the . . . discovery requests.

The court ordered the sanction only after providing the defendants an opportunity to seek reconsideration by the magistrate, who refused to alter the recommended sanction.

When a party's conduct during discovery necessitates its opponent's bringing motions which otherwise would have been unnecessary, the court may properly order it to pay the moving party's expenses unless its conduct was "substantially justified" or other circumstances make the award "unjust." Fed.R.Civ.P. 37(a)(4). Recent amendments to the rule make it clear that such awards may be imposed more frequently to discourage unnecessary involvement of the court in discovery. See generally 4A Moore's Federal Practice P 37.02(10. 2) at 37-44 (1975).

Imposition of discovery sanctions is committed to the trial court's discretion. Von Brimer v. Whirlpool Corp., 536 F.2d 838, 844 (9th Cir. 1976). On review we do not consider whether we would have applied the sanction, but rather whether the court below abused its discretion in doing so. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976).

Although the failure to produce may not have been in bad faith, the presence or absence of bad faith is relevant to the choice of sanctions rather than to the question whether a sanction should have been imposed. In view of the range of sanctions available, even negligent failures to allow reasonable discovery may be punished. David v. Hooker, Ltd., 560 F.2d 412, 420 (9th Cir. 1977).

There was no abuse of discretion in the district court's imposition of a light sanction against these defendants.

The Dealer's Act judgment is affirmed as to Chrysler Motors but reversed as to Chrysler Corporation. The judgment for the defendants on the Sherman Act claims is affirmed, as is the order imposing discovery sanctions.