Ashmore v. Northeast Petroleum Division of Cargill, Inc.

MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS

This action was commenced by Plaintiffs Frederick Ashmore, David Boya, William Si *761 mone, and Richard Simeone alleging that they were dismissed from employment as sales representatives for Defendants 1 in retaliation for Plaintiffs’ refusal to implement a pricing system which allegedly violated the Robinson-Patman Antidiscrimination Act of 1936. 2 15 U.S.C. §§ 13, 13(a), and 22. The Complaint states five causes of action. In Count I, Plaintiffs seek treble damages for injury sustained due to violation of the Robinson-Patman Act in accordance with Section 4 of the Clayton Act. 15 U.S.C. § 15. Complaint (Docket No. 1) ¶¶ 12-37. Counts II, III, IV, and V state claims based on breach of contract, promissory estoppel, breach of implied duty of fair dealing, and tortious termination in violation of public policy, respectively. Id. ¶¶ 38-54. In Count VI, Plaintiff Ashmore seeks relief under the Maine “Whistleblowers’ Protection Act.” 26 M.R.S.A. §§ 831-840. Motion to Amend Complaint (Docket No. 11), Reply Memorandum in Support of Plaintiffs’ Motion for Leave to Amend Complaint (Docket No. 15) at 3-4.

Now pending before the Court is Defendant Cargill Inc.’s Motion to Dismiss Count I, for lack of standing, and Counts II, III, IV, and V for failure to state a claim. (Docket No. 4). Defendants seek dismissal of Count I because they contend that Plaintiffs lack standing to bring a private action under section 4 of the antitrust laws. 3 Id. Defendants also seek dismissal of Counts II, IV, and V as to Plaintiff Ashmore for failure to state a cause of action under Maine law, which Defendants contend governs this contract. Finally, Defendants seek dismissal of Count III for failure to state a claim of promissory estoppel.

To resolve Defendants’ Motion to Dismiss, the Court must accept as true all factual allegations in the Complaint, construe them in favor of Plaintiffs, and decide whether, as a matter of law, Plaintiffs could not prove any set of facts which would entitle them to relief. See Roeder v. Alpha Industries, Inc., 814 F.2d 22, 25 (1st Cir.1987); Gott v. Simpson, 745 F.Supp. 765, 768 (D.Me.1990).

I. The Factual Allegations

Plaintiffs were employed as sales representatives by Defendant Cargill’s Northeast Division. As sales representatives, Plaintiffs sold petroleum products to both small and large retailers in the northeastern United States. Plaintiff Ashmore worked out of Northeast Division’s Maine office. Plaintiffs Boya and Simone were based in Northeast’s Connecticut office, and Plaintiff Simeone was based in Massachusetts. All were trained at and received pricing instructions from the Chelsea, Massachusetts administrative offices of Northeast Division.

Plaintiffs allege that in 1991, Defendants adopted a discriminatory pricing system which violated the Robinson-Patman Act. Specifically they claim that:

Northeast implemented a company-wide program of assigning customers to pricing groups based on the characteristics of customer loyalty and the ability of each customer to ascertain a fair price (“price sensitivity”). Northeast then assigned different allowances (discounts) to each pricing group. The most generous allowances were assigned to customers in the group *762 considered to be the most able to ascertain a fair price, and the least loyal to Defendants; and the least generous allowance was granted to customers in the group considered to be the least price sensitive and the most loyal. Northeast determined the daily sale price of each product offered to a particular customer by subtracting from the rack price for the product the allowance assigned to the customer’s pricing group____ The scheme conferred favored status on large retailers and disfavored status on small retailers----

Plaintiffs’ Objection to Defendants Motion to Dismiss and Incorporated Memorandum of Law (Docket No. 7) at 2. Plaintiffs further allege that Northeast’s sales representatives were required to take an active role in implementing this policy and “based on their familiarity with their customers, they were required to assign each customer” to one of the pricing groups. Id. at 3. Plaintiff Ashmore refused to implement the pricing system. Complaint (Docket No. 1) ¶26. Plaintiffs Boya, Simeone, and Simone objected to the new pricing system but were allegedly “forced to implement the price grouping policy under threats of dire consequences.” Id. ¶27. Defendants terminated Plaintiffs’ employment at Northeast on May 29, 1992. Plaintiffs allege that this discharge was in retaliation for “their refusal to engage in criminal activity, and resistance to the unlawful” discriminatory pricing system and “to make an example of them” to other employees who resisted the allegedly illegal practice. Id. ¶¶ 34-35.

Plaintiffs further allege that “at all relevant times Defendants Cargill and Northeast Petroleum promised its employees, in writing, that ‘no employee will be asked or expected to compromise’ Cargill’s purported standard that ‘business transactions will be the result of legal, open, and honest competition.’ ” Id. ¶ 39. Plaintiffs allege that they relied on this promise to their detriment. Id. ¶ 10. Based on this written ■ promise and reliance, they allege that Defendants are liable under a theory of breach of contract or promissory estoppel.

II. Standing Under Section 4 of the Clayton Act

Defendants’ principal argument for dismissal of Count I is that Plaintiffs lack standing to sue under section 4 of the Clayton Act to recover for damages due to the alleged violation of the Robinson-Patman Act. 4 Defendants argue that the Robinson-Patman Act was intended to protect only competitors and purchasers and that because Plaintiffs do not allege that they were either competitors or purchasers, they lack standing. 5 Defendants further argue that section 4 provides a remedy only to those who suffer injury which flows from the “anticompetitive effects” of an *763 antitrust violation. Therefore, they contend that the injury which Plaintiffs suffered due to the allegedly retaliatory discharges was not the type of “antitrust injury” with which Congress was concerned when it enacted section 4 of the Clayton Act. In response to these arguments Plaintiffs contend that because they were “essential participants” in the anticompetitive scheme, and their discharge was a necessary step to achieve the antitrust violation, they have standing under section 4.

The issue of whether an employee has standing to sue under section 4 on a claim of retaliatory discharge for resisting the implementation of a policy which violates the federal antitrust laws has not been addressed by the Supreme Court and is a matter of first impression in this Circuit. As the parties point out, there is a split among federal courts on this issue. 6 The Court of Appeals for the Ninth Circuit has held that an employee subjected to retaliatory discharge for refusing to cooperate with a price-fixing conspiracy in violation of the Sherman Act has standing under section 4. Ostrofe v. H.S. Crocker Co., 740 F.2d 739 (9th Cir.1984), cert. dismissed at request of parties, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985). 7 The United States District Court for the Southern District of New York followed the Ninth Circuit’s Ostrofe II holding in Donar hue v. Pendleton Woolen Mills, Inc., 633 F.Supp. 1423 (S.D.N.Y.1986). On the other hand, courts in the Seventh, Third, and Tenth Circuits have held that employees who allege retaliatory discharge for refusal to cooperate with policies that violate the antitrust laws do not have standing under Section 4. Bichan v. Chemetron Corp., 681 F.2d 514 (7th Cir.1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983); Winther v. DEC International, Inc., 625 F.Supp. 100 (D.Colo.1985); McNulty v. Borden, Inc., 542 F.Supp. 655 (E.D.Pa.1982). 8 The Sixth Circuit has also denied standing to a sales representative who alleged his territory was reduced and later eliminated due to his refusal to cooperate in an antitrust violation. Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 211 (6th Cir.1989). 9

These different results have stemmed from varied interpretations of the Supreme Court’s holdings in three recent antitrust standing cases: Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982); and Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). In the most recent of this trilogy, the Supreme Court set out a comprehensive antitrust standing analysis, identifying factors which must be considered in determining whether a plaintiff may sue under section 4 of the Clayton Act. Associated General, 459 U.S. at 535-45, 103 S.Ct. at 907-12. It is in this framework that this Court must evaluate Plaintiffs’ claim to antitrust standing. *764 Therefore, the Court will review the Associated General approach before analyzing the matter sub judice.

A. Antitrust Standing under Associated General

Before Associated General, the various circuit courts had adopted different tests incorporating traditional common-law principles to limit the scope of the treble damages provision of the Clayton Act which provides standing to any person injured by reason of violations of the antitrust laws. 15 U.S.C.S. § 15(a). The three principal tests that emerged focused on the “directness” of a plaintiffs injury to the alleged violation; whether a plaintiff was in the “target area” of the anticompetitive activity; and whether a plaintiff was arguably within the zone of interests protected by the antitrust laws. Associated General, 459 U.S. at 536 n. 33, 103 S.Ct. at 907 n. 33 (citations omitted). In considering these tests, the Supreme Court concluded that Congress intended the availability of the remedy to be construed in light of traditional notions of common law. 10 Id. at 530-35, 103 S.Ct. at 904 — 07. However, the Court declined to adopt a single standard, observing that:

There is a similarity between the struggle of common-law judges to articulate a precise definition of the concept of “proximate cause,” and the struggle of federal judges to articulate a precise test to determine whether a party injured by an antitrust violation may recover treble damages. It is common ground that the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrongdoing. In both situations the infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case. Instead, previously decided cases identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances.

Id. at 535-36, 103 S.Ct. at 907 (footnotes omitted and emphasis added). 11 The Court then went on to identify the factors which are relevant to the issue of antitrust standing and apply them to the plaintiff’s claim for recovery. Both the identification of the factors and their application are instructive in this Court’s determination of whether Plaintiffs have standing in the present matter.

In Associated, General, two carpenters’ unions (“the Union”) alleged that the defendant, a multiemployer association of general contractors, coerced its members, other general contractors, and certain third parties (landowners and customers in the construction market) to divert business to nonunion firms. The Union alleged that the express purpose of the multiemployer association’s actions was to injure the Union. However, the first class of victims of the alleged conspiracy was the coerced contractors, the second the unionized firms, and then presumably the Union might have suffered injury through *765 loss of dues or collective bargaining agreements.

The Court considered each of the following factors in assessing the Union’s standing to sue for treble damages under section 4:

(1) the causal connection between the Union’s injury and Defendant’s violation of the antitrust law;

(2) the nature of the Union’s alleged injury and whether it was of the type that the antitrust laws were intended to forestall;

(3) the directness of the injury particularly as it related to the tenuous and speculative nature of the harm to the Union;

(4) the danger of duplicative recoveries or complex apportionment of damages; and

(5) the existence of more immediate classes of potential plaintiffs who could be expected to vindicate the violation of the antitrust laws.

Associated General, 459 U.S. at 536-45, 103 S.Ct. at 907-12. Of the five relevant factors, only the causal connection between the Union’s alleged injuries and the violation of the antitrust laws weighed in favor of standing. The Supreme Court, in denying the Union standing to sue under section 4, summarized the analytical path pursued at some length in the opinion, reaching the following conclusion:

[T]he Union’s allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors — the nature of the Union’s injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the Union’s alleged injury, the potential for duplicative recov-. ery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy — weigh heavily against judicial enforcement of the Union’s antitrust claim.

Id. at 545, 103 S.Ct. at 912.

Though Associated General outlined a comprehensive approach to the question of antitrust standing, it has engendered much confusion. The decision gives little guidance as to how to weigh the various factors and, more particularly, whether the absence of any one factor is fatal to standing in every instance. 12 It is this Court’s reading of Associated General that a proper standing analysis should include a review of all relevant factors outlined in that case. Accord, Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1086 (6th Cir.1983). While any of these factors may be controlling, each should be considered on a case-by-case basis in an effort to guard against “engraft[ing] artificial limitations on the § 4 remedy.” McCready, 457 U.S. at 472, 102 S.Ct. at 2544. This conclusion is based on the Supreme Court’s refusal in Associated General to adopt a single test, its emphasis on the impossibility of adopting a black letter rule of antitrust standing, and its application of each factor to the facts alleged by the Union.

B. Application of Associated General to Plaintiffs’ Case

At the outset, it is clear that the allegations made by Plaintiffs, if proven, satisfy four of the five factors identified in Associated General. As to the first factor, Plaintiffs’ allegations satisfy the causal connection required by section 4; that is, Plaintiffs allege that their employment was terminated in order for Northeast to accomplish a violation of the antitrust law. If not for the implementation of a discriminatory pricing system, Plaintiffs contend that they would not have had to resist the allegedly illegal scheme and, consequently, they would not have been discharged.

*766 The harm to Plaintiffs in this ease was direct also and, in this regard, does not implicate the concerns underlying the third factor which militated against standing in Associated General. In Associated General the Supreme Court noted that several “vague links” separated the defendant’s alleged antitrust violation from the Union’s harm. Associated General, 459 U.S. at 542, 103 S.Ct. at 910. Because of the attenuated link between the antitrust violation and the injury to the Union, the Union’s alleged injuries were “highly speculative.” Id. In that case, it was unclear what effect the alleged conspiracy had on the unionized firms. Id. It was even more difficult to determine whether the conspiracy, as opposed to other intervening causes, had caused any injury to the Union itself in the form of decreased membership revenues or termination of particular collective bargaining agreements. Id. Here, there is nothing that is either indirect or speculative about Plaintiffs’ claims. They allege that their injuries were the direct and intended result of Defendants intentional act in furtherance of an antitrust violation. The damages claimed are in the form of lost wages and benefits. These damages are easily quantifiable and are not speculative.

The fourth factor considered by the Supreme Court in Associated General was the danger of duplicative treble-damage awards, or problems of complex apportionment of damages. In Associated General, to the extent that the Union had suffered injury, it was derivative of the injury suffered by the coerced contractors and unionized firms. Therefore, there was a risk that the defendant could be exposed to multiple awards of treble damages or that the Court would have to engage in complex apportionment. Determining to what extent losses were absorbed at each level of the chain of distribution — the coerced contractors, the unionized firms, their employees, and finally the Union — was a task that was rejected by the Supreme Court in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Failure to make such a determination would lead inevitably to liability in treble damages to multiple parties for the same injury. 13 In contrast, Plaintiffs in the present case allege injuries in the form of lost compensation and benefits. These damages are wholly distinct from damages that could be claimed by other plaintiffs injured by the alleged antitrust violation. The injury is not derivative, but personal to Plaintiffs. Therefore, there is no danger of duplicative recovery.

As to the fifth factor, there is no other class more directly affected than Plaintiffs in the present case that is more likely to redress society’s interest in enforcement of the antitrust laws. In Associated General, the Supreme Court noted that both the coerced contractors and the union contractors were more directly affected then the Union and, therefore, “[d]enying the Union a remedy [was] not likely to leave a significant antitrust violation undetected or unremedied.” Associated General, 459 U.S. at 542, 103 S.Ct. at 911. As a general matter, however, a major challenge in antitrust law enforcement is that a violation “is usually a concealed crime and there is rarely an identifiable victim who is aware of the violation.” Statement of Former Assistant Attorney General Donald Baker Before Tenth New England Antitrust Conference, 790 Antitrust & Trade Reg.Rep. (BNA) D-1 (1976), cited in, Berger & Bernstein, An Analytical Framework for Antitrust Standing, 86 Yale L.J. 809, 847. This challenge to antitrust law enforcement is strongly implicated in the present case.

Here, although purchasers disadvantaged by the alleged discriminatory pricing system are also direct victims of the alleged antitrust violation, the very nature of the pricing system makes it unlikely that the victims will become aware of the price differentials unless sales representatives reveal the violation and risk discharge. The alleged pricing system discriminates against purchasers on the *767 basis of customer loyalty and lack of accurate pricing information. It relies for concealment of this discriminatory activity upon the loyalty, expertise, and perceived self-interest of its sales employees. Those victims directly damaged by the anticompetitive effect of the pricing system are the least informed purchasers in the market and are unlikely to discover the violation in a timely manner. 14

Plaintiffs, as sales representatives, were allegedly charged with implementing the discriminatory pricing system. They are alleged to have been made responsible for grouping clients according to the clients’ loyalty and lack of accurate price information. In this position Plaintiffs were more likely to recognize the antitrust violation at an earlier stage and to vindicate the public interest in prohibiting anticompetitive activities before any purchasers and consumers and before competition suffered extensive injury. Although the purpose of the discriminatory pricing system was not to injure Plaintiffs, discharging uncooperative sales representatives was a prerequisite to full implementation of the discriminatory pricing system from the standpoint of Defendants. Furthermore, Plaintiffs allege that their discharge was used to demonstrate to other sales representatives the consequences of challenging the pricing system.

These sales representatives were direct and necessary victims of the antitrust violations because they faced the options of exposing themselves to criminal liability or risking retaliatory discharge. There is no other class of plaintiffs which has any claim under which it can redress the harm Plaintiffs’ allegedly suffered by reason of their refusal to violate the antitrust laws. Nor could the purchasers affected by the allegedly discriminatory pricing system challenge the system at as early a stage as the employees charged with implementing the pricing system. Assuming, without deciding, that the allegations made by Plaintiffs are true, barring standing to Plaintiffs under these circumstances is “likely to leave a significant antitrust violation undetected or unremedied.” 15 Associated General, 459 U.S. at 542, 108 S.Ct. at 911.

These four factors favor antitrust standing for Plaintiffs in this case. Their injuries are the direct result of actions taken in furtherance of an alleged attempt to implement a discriminatory pricing system in violation of the Robinson-Patman Act. There is no other class of plaintiffs which is more directly effected by these actions, and Plaintiffs’ injuries are wholly distinct from the injuries suffered by any other class of victims; therefore, there is no danger of duplicative recoveries or complex apportionment. Finally, there is nothing speculative about the amount of damages suffered by these Plaintiffs.

*768 C. Antitrust Injury

The principal standing issues raised by the Plaintiffs’ claim relate to the second factor: whether the alleged injury is “antitrust injury”; that is, the type of injury that the antitrust laws were intended to forestall. In the context of the retaliatory discharge claim raised in this case, there are two relevant inquiries. First, whether the harm caused by retaliatory discharge is “antitrust injury.” And second, whether failure to demonstrate “antitrust injury” in the narrowest sense is fatal to standing in every case. The Court will address these questions in turn.

The concept of “antitrust injury” was first articulated in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). In that case, several small bowling centers sued Brunswick Corp. to challenge its acquisition of a number of failing bowling centers. The challenge was mounted under section 7 of the Clayton Act which proscribes mergers whose effect “may be substantially to lessen competition, or to tend to create a monopoly.” 15 U.S.C.A. § 18. The smaller bowling centers also sued to recover treble damages under section 4 for the profits lost due to the continued competition from the acquired bowling centers which they contended would have otherwise gone out of business. They did not prove that Brunswick had engaged in any of the predatory actions which section 7 was designed to prevent. Although the plaintiffs in Brunswick had standing to challenge the improper mergers, the Supreme Court unanimously held that they were not entitled to relief under section 4 of the Clayton Act because they had not proven “ ‘antitrust injury’ of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Id. at 489, 97 S.Ct. at 697.

[T]he antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for “the protection of competition, not competitors.” It is inimical to the purposes of these laws to award damages for the type of injury claimed here.

... [I]t is far from clear that the loss of windfall profits that would have accrued had the acquired centers failed even constitutes “injury” within the meaning of § 4. And it is quite clear that if respondents were injured it was not “by reason of anything forbidden in the antitrust laws”: while respondents’ loss occurred “by reason of’ the unlawful acquisitions, it did not occur “by reason of’ that which made the acquisitions unlawful.

Id. at 488, 97 S.Ct. at 697 (citations omitted and emphasis added). The Supreme Court found that the Brunswick plaintiffs were not entitled to a remedy under section 4 because their losses were due to an increase in competition and were not the result of predatory actions.

Five years later, in McCready, the Supreme Court addressed the issue of whether injury that occurred as a necessary step to accomplishing an antitrust violation was “antitrust injury.” Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982). In McCready, the plaintiff was a subscriber to the Blue Shield medical plan. She alleged that Blue Shield and an association of psychiatrists had engaged in an anticompetitive conspiracy to disadvantage psychologists. This conspiracy was accomplished by refusing reimbursement to Blue Shield subscribers for treatment rendered by psychologists while reimbursing subscribers for the same treatment received from psychiatrists or from psychologists acting under the supervision of a physician. McCready received treatment from a psychologist and Blue Shield refused to reimburse her for the treatment. The Court concluded that:

Although McCready was not a competitor of the conspirators, the injury she suffered was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy mar *769 ket. In light of the conspiracy here alleged we think that McCready’s injury “flows from that which makes defendants’ acts unlawful” within the meaning of Brunswick, and falls squarely within the area of congressional concern.

Id. at 483-84, 102 S.Ct. at 2551. 16 Blue Shields’ refusal to reimburse MeCready for therapy received from a psychologist was a means whereby it coerced her to either become an unwilling participant in its illegal campaign to boycott the services of psychologists or pay the costs for treatment from her own pocket in order to see the therapist of her choice. The injury that she suffered was due to her refusal to be manipulated and was not due to anticompetitive effect or a change of price in the market.

Here, Plaintiffs allegedly confronted a similar Hobson’s choice, though the consequences on either side were much more grave than in MeCready. They could capitulate to their employer’s pressure and participate in a violation of the antitrust laws or resist the discriminatory pricing system and face discipline or discharge. Here, however, Plaintiffs’ cooperation may also have exposed them to criminal liability. In Ostrofe I, the Court of Appeals for the Ninth Circuit concluded that injury suffered by an employee under these circumstances is within the “core of Congressional concern” which motivated the antitrust laws. Ostrofe I, 670 F.2d at 1387.

The central theme of Brunswick is that to be actionable under Section 4, plaintiffs injury should fall within the core of Congressional concern underlying the substantive provision of the antitrust laws allegedly violated. In outlawing price fixing and customer allocation under the Sherman Act, Congress was concerned with competitive conditions in the product market; hence competitors and perhaps consumers injured by the elimination of competition between the conspiring business concerns have standing to sue.

But Congress was also concerned with the conduct of individuals acting on behalf of conspiring economic entities! Congress imposed criminal liability upon individuals who violate the Sherman Act even though they act in a representative capacity and in discharge of the duties of the employment. It cannot be said that Ostrofe’s asserted loss was “of no concern to the antitrust laws.” Ostrofe was injured because of his efforts to comply with the mandate of the Sherman Act; he suffered an “antitrust injury ... of the type the antitrust laws were intended to prevent.”

Moreover, the loss did not result from increased competition, as did the asserted loss in Brunswick, but from a conspirator’s efforts to realize an anticompetitive purpose.

Ostrofe I, 670 F.2d at 1387-88 (footnotes omitted). On remand, application of Associated General and MeCready to the question of whether standing for an employee subjected to retaliatory discharge for refusing to participate in an antitrust violation did not undercut this conclusion. See Ostrofe II, 740 F.2d at 745-46 (affirming the reasoning in Ostrofe I and concluding that Ostrofe’s injury “was such an integral part of the scheme to eliminate competition in that market as to constitute ‘antitrust injury,’ ” id. at 746); see also Donahue v. Pendleton Woolen Mills, Inc., 633 F.Supp. 1423 (S.D.N.Y.1986) (following Ostrofe II). On similar reasoning, the Court of Appeals for the Sixth Circuit has found that antitrust standing does not require an allegation that one is a competitor *770 or consumer in the relevant market if a plaintiff was “manipulated or utilized by [defendant] as a fulcrum, conduit or market force to injure competitors.” Fallis, 866 F.2d at 211 (quoting Southaven, 715 F.2d at 1086). 17

Other courts have read the antitrust laws more narrowly, holding that Congress intended to provide a remedy for injuries suffered only by market participants when it enacted section 4. Bichan v. Chemetron Corp., 681 F.2d 514 (7th Cir.1982); Winther v. DEC International, Inc., 625 F.Supp. 100 (D.Colo.1985); McNulty v. Borden, Inc., 542 F.Supp. 655 (E.D.Pa.1982). These courts reason that because a discharged employee’s injury is not due to diminished competition in any market in which the employee is a consumer or competitor it is not “antitrust injury.” 18 In