Industrial Investment Development Corporation v. Mitsui & Co., Ltd.

This is an antitrust suit. The district court initially granted the defendants’ motion for summary judgment on the single ground that the action was barred by the act of state doctrine. We reversed. 594 F.2d 48 (5th Cir. 1979), cert. denied, 445 U.S. 903, 100 S.Ct. 1078, 63 L.Ed.2d 318 (1980). On remand, the district court turned back to the same motion of the defendants and granted summary judgment on the three remaining grounds: (1) that defendants’ conduct is beyond the extra-territorial scope of the antitrust laws; (2) that plaintiffs have no standing to sue under the antitrust laws; and (3) forum non conveniens. 1 The court declined to exercise pendent jurisdiction over plaintiffs’ nonfederal claims, and dismissed the suit. 2 Defendants *881 were not entitled to summary judgment on any of the grounds they invoked. We again reverse and remand.

I. Background

The plaintiffs are an American corporation, Industrial Investment Development Corporation (“Industrial Investment”), and its two Hong Kong subsidiaries, Indonesia Industrial Investment Corporation, Ltd. (“Indonesia Industrial”) and Forest Products Corporation, Ltd. (“FPC”). The defendants-appellees are a Japanese corporation, Mitsui & Co., Ltd. (“Mitsui-Japan”) and its American subsidiary, Mitsui & Co. (U.S.A.), Inc. (“Mitsui-U.S.A.”). A third defendant is an Indonesian corporation, P. T. Telaga Mas Kalimantan Company, Ltd. (“Telaga Mas”), which was served but has never appeared in this action.

Plaintiffs claim that the three defendants conspired to keep plaintiffs out of the business of harvesting trees in East Kalimantan (Borneo), Indonesia and exporting logs and lumber from Indonesia to the United States and other countries. Plaintiffs allege that defendants’ conspiracy was intended to and did unreasonably restrain and monopolize the foreign commerce of the United States, in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2. 3 Plaintiffs also claim that the two Mitsui defendants are liable for tortious interference with contractual relations. In our prior opinion, we detailed the plaintiffs’ allegations concerning the defendants’ efforts to deprive plaintiffs of their alleged contractual rights to a timber concession in East Kalimantan. See 594 F.2d at 50. We will not repeat those allegations here. We think it useful for the purposes of this appeal, however, to outline the procedural history of this case.

On June 19, 1975, plaintiffs- filed their complaint in this action, along with a set of interrogatories and a document request addressed to Mitsui-U.S.A. Response to the interrogatories and document request was made on October 1, 1975. On July 6, 1976, plaintiffs served a set of interrogatories and a document request on Mitsui-Japan, which did not respond until April 27, 1977. One month later, defendants served their motion for dismissal and summary judgment on grounds of standing, subject matter jurisdiction, and forum non conveniens. After replying to defendants’ voluminous motion papers on October 11, 1977, plaintiffs attempted to continue discovery. On November 4, 1977, plaintiffs served notice that they would take the deposition of Mitsui-Japan on December 15 in Houston, Tex *882 as. After securing a postponement, MitsuiJapan moved for a protective order on January 6, 1978, asking the court to stay all discovery on the ground that it had filed a dispositive motion and that “the questions raised in said motion are questions of law rather than questions of fact and involve, primarily, the insufficiency of plaintiffs’ legal theories under the facts as alleged by them.” 4 Responding to this motion, plaintiffs argued that it was “especially inappropriate” to stay the deposition of Mitsui-Japan while a summary judgment motion was pending, since plaintiffs were entitled to discover evidence establishing the existence of genuine issues of material fact.

The district court did not rule on the stay of Mitsui-Japan’s deposition; it granted summary judgment on the act of state ground on February 28, 1978. This court’s mandate reversing that judgment was not issued until September 4, 1979. When plaintiffs attempted to resume discovery by serving a notice of deposition of Mitsui-U. S.A. on September 7, 1979, defendants filed another motion to stay all discovery pending the court’s resolution of the remaining grounds in its motion, again averring that “the issues raised are questions of law rather than questions of fact and involve, primarily, the insufficiency of plaintiffs’ legal theories under the facts as alleged by them.” After this motion and two others were denied in November and December of 1979, 5 Mitsui-U. S.A. produced employees for deposition in December. Then, on March 7, 1980, plaintiffs filed a motion to compel discovery, asking the court to resolve the issues concerning the deposition of MitsuiJapan and also contending that Mitsui-U. 5. A. had failed to present for deposition representatives with knowledge of the matters involved in this litigation.

Thirteen months later, without resolving any of the outstanding discovery issues, the court again granted summary judgment against plaintiffs. The court explained only that it found “[t]he arguments in Defendants’ briefs” to be “meritorious” and “dispositive.” 6 Although the action *883 had been pending for almost six years, plaintiffs had not been allowed to depose one of the defendants, and claimed that the deposition of the other was insufficient. Almost four years had been consumed by defendants’ motion for dismissal and summary judgment and their attendant efforts to resist discovery on the ground that resolution of the motion could render further discovery unnecessary.

II. The Extraterritorial Scope of the Sherman Act

A. Effect on United States Commerce

A restraint that directly or substantially affects the flow of commerce into or out of the United States is within the scope of the Sherman Act. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704, 82 S.Ct. 1404, 1413, 8 L.Ed.2d 777 (1962); United States v. Aluminum Co. of America, 148 F.2d 416, 443-44 (2d Cir. 1945) (“Alcoa ”); 1 J. von Kalinowski, Antitrust Laws and Trade Regulation § 5.02[2][c] (1980); L. Sullivan, Antitrust 714-16 (1977). A review of the summary judgment submissions and evidence convinces us that defendants have not demonstrated that there is no genuine issue concerning the existence of a direct or substantial effect on United States foreign commerce. See Fed.R.Civ.P. 56(c); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157-61, 90 S.Ct. 1598, 1608-10, 26 L.Ed.2d 142 (1970) (burden on movant).

In their briefs prior to the first appeal, defendants’ attack on the existence of an effect on United States commerce was only an attack on plaintiffs’ pleadings. Defendants placed their own characterization on the complaint and declared that the case' involved only the tree-cutting business in Indonesia; thus, they concluded, their conduct had no effect on United States commerce. Plaintiffs had alleged, however, that Mitsui-U.S.A., an American corporation which imports a sizeable amount of lumber or lumber products into the United States, had conspired to keep them out of the business of harvesting trees and exporting logs and lumber from Indonesia to the United States. There was ample evidence in the record to show that Mitsui-U.S.A. had appropriated much of the business that plaintiffs claim they would have derived from the forestry concession: Mitsui-U.S.A. was purchasing the bulk of the logs from the concession and selling them for export to Mitsui-Japan at a substantial .profit.

The competition between two American importers to obtain a source of supply on foreign territory affects the foreign commerce of the United States. Timber-lane Lumber Co. v. Bank of America, 549 F.2d 597, 604-05, 615 (9th Cir. 1976); see Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 404 F.2d 804, 811-17 (D.C.Cir.1968), ce rt. denied, 393 U.S. 1093, 89 S.Ct. 872, 21 L.Ed.2d 784 (1969); cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 113 n.8, 89 S.Ct. 1562, 1571 n.8, 23 L.Ed.2d 129 (1969) (American corporation’s participation in foreign patent pools); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951) (division of foreign markets by American corporation and its foreign affiliates). Mitsui-Japan was allegedly a co-conspirator in this attempt to restrain competition between two American competitors. Thus, defendants’ attack on the pleadings did not make it “appear[] beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,102, 2 L.Ed.2d 80 (1957) (motion to dismiss for failure to state a claim), quoted in McLain v. Real Estate Board, 444 U.S. 232, 245,100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980) (challenge to “jurisdictional element” of a Sherman Act claim).

After we reversed the district court’s first grant of summary judgment, the defendants shifted to a factual attack by arguing that the single, undisputed fact that Mitsui-Japan exported all of the lumber, purchased from Mitsui-U.S.A. in Indonesia, to Japan demonstrated that there was no genuine issue concerning an effect on United States commerce. Mitsui-Japan argued — and this is the argument it ad *884 vanees most strenuously in this court — that when a Japanese business competes with an American business in Indonesia and exports the fruits of that competition solely to Japan, any effect on United States commerce is purely incidental, indirect, and unintentional. Even if defendants’ argument is correct — an issue we do not reach — it ignores the allegations in this case. Here, an American corporation with an interest in protection of its import business has allegedly conspired to eliminate a potential American competitor in both the business of purchasing logs in Indonesia and the business of importing lumber and lumber products into the United States.

Defendants’ showing did not demonstrate that there was no genuine fact issue for the simple reason that defendants’ showing was not responsive to plaintiffs’ allegations. That one co-conspirator — Mitsui-Japan — followed a course of business action that, in isolation, might not be considered a violation of the United States antitrust laws does not demonstrate either that the effect of the conspiracy as between the American competitors is not an effect on United States commerce or that the intent of the conspiracy was not to restrain competition between the American competitors. “[SJummary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles [and] the proof is largely in the hands of the alleged conspirators .... ” Poller v. CBS, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Summary judgment is even less appropriate here, where there is ample evidence of a conspiracy to keep plaintiffs from becoming a competitor, and plaintiffs have not had an opportunity to depose one of the conspirators on the effect and intent of their efforts.

B. Comity and International Conflicts

A district court should not apply the antitrust laws to foreign conduct or foreign actors if such application would violate principles of comity, conflicts of law, or international law. See Alcoa, 148 F.2d at 443; 1 J. von Kalinowski, supra, §§ 5.03 & 5.04. The act of state doctrine, which we rejected as a defense to this suit in the prior appeal, is an example of a principle of comity which, when applicable, prevents the court from entertaining a claim. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416-27, 84 S.Ct. 923, 934-40, 11 L.Ed.2d 804 (1964). Like the act of state doctrine, the question whether any other principle of comity, or of international law, or any conflicts of law analysis prevents the district court from entertaining the Suit is a question of law which is fully reviewable by this court on appeal. 7

*885 [II] Defendants invoke the conflicts of law analysis established in Timberlane Lumber Co. v. Bank of America, 549 F.2d at 613-15. But their attempt to satisfy the Timberlane test is a series of mere assertions, unsupported by the pleadings or by summary judgment evidence. For example, despite defendants’ slightly familiar arguments, they have not demonstrated any “conflict with [the] law or policy” of the Indonesian government or any potential difficulty in enforcing a district court decree. Timberlane, 549 F.2d at 614. Neither the Indonesian court’s nullification of plaintiffs’ joint venture agreement with Telaga Mas nor the Indonesian government’s action in cancelling its approval of plaintiffs’ joint venture — both described in our prior opinion, see 594 F.2d at 50 — has been shown to have been an approval "of defendants’ efforts to destroy the joint venture agreement or a determination that plaintiffs were not entitled to enforce their contractual rights or to do business in Indonesia. To the contrary, a second Indonesian court held that plaintiffs were not bound by the nullification order, and the Indonesian government invited plaintiffs and Telaga Mas to make a new agreement. See id. Moreover, the evidence in the present record more strongly supports the plaintiffs’ contention that prosecution of this suit is fully consistent with the laws and policy of Indonesia because defendants’ actions may have been torts or statutory violations under Indonesian law.

Defendants have demonstrated no basis for declii/ing to entertain this suit. The grant of summary judgment on this ground was error.

III. Standing

In their original motion papers, defendants argued that plaintiffs did not have antitrust standing because they were not within the “target area” of the alleged anti-competitive acts and because any injury they suffered was merely derivative injury suffered as shareholders of other corporations. After remand, and on this appeal, defendants have argued that plaintiffs lack standing because they have not alleged “antitrust injury,” invoking the italicized doctrine of Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). 8 We deal with these contentions in turn.

A. Target Area

Section 4 of the Clayton Act grants a cause of action to “[a]ny person . . . injured in his business or property by reason of anything forbidden in the antitrust laws.” 15 U.S.C. § 15. It does not list the requirements of standing. See Handler, The Shift From Substantive to Procedural Innovations in Antitrust Suits, 71 Colum.L.Rev. 1, 24 (1971). Rather, standing is a judicially created doctrine designed to foreclose recovery to some plaintiffs who, although within the literal terms of § 4, have suffered injuries that are too “remote” or “indirect.” See Jeffrey v. Southwestern Bell, 518 F.2d 1129, 1131 (5th Cir. 1975). Simply because an element of a private antitrust claim can be traced to the language of § 4 does not, as defendants seem to believe, make that element a component of “standing.” The standing inquiry involves neither “the violation issue” nor “the damages issue.” Yoder Bros. v. California-Florida Plant Corp., 537 F.2d 1347, 1359-60 (5th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 540 (1977).

What standing does involve is the application of this, circuit’s test for standing, the “target area” test:

To attain standing a person (whether corporation or individual) must be one against whom the conspiracy is aimed. Or, put in plutonomic terms, the complainant must show that he is within that *886 sector of the economy which is endangered by a breakdown of competitive conditions in a particular industry.

Jeffrey, 518 F.2d at 1131. Standing “is a preliminary [matter] to be answered only from an examination of the allegations of the complaint.” Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 547 (5th Cir. 1980) (emphasis added), cert. denied, - U.S. -, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981); accord, Yoder Bros., 537 F.2d at 1359. 9

Plaintiffs’ allegations are clearly sufficient to give them standing. All three plaintiffs allege that they were to be direct participants in the harvesting and exporting of logs and lumber products from Indonesia, and the importing and marketing of such materials in several markets, primarily the United States. They allege that defendants destroyed plaintiff FPC’s rights in the forestry concession in order to keep them out of harvesting, exporting, and marketing, businesses in which both defendants are allegedly engaged. Plaintiffs have also made detailed allegations concerning their intentions and preparations to enter these proposed businesses. See Martin v. Phillips Petroleum Co., 365 F.2d 629, 633 (5th Cir.), cert. denied, 385 U.S. 991, 87 S.Ct. 600, 17 L.Ed.2d 451 (1966).

Thus, plaintiffs have alleged that they were attempting to enter “that sector of the economy ... endangered by a breakdown of competitive conditions”; indeed, they were the very persons “against whom the conspiracy [was] aimed.” Jeffrey, 518 F.2d at 1131.

B. Derivative Injury

Defendants have constructed a “derivative injury” argument which is in part not a “standing” argument at all but a request for summary judgment on the factual issue of injury. First, they examine the relationship between the three corporate plaintiffs: plaintiff FPC, a Hong Kong corporation, was wholly owned by plaintiff Indonesia Industrial, another Hong Kong corporation; all of Indonesia Industrial’s stock was owned by two other Hong Kong companies which held the stock in trust for the American parent, plaintiff Industrial Investment. Next, defendants point out that the forestry concession was to be operated by a never-formed Indonesian corporation to be owned by FPC and Telaga Mas. Beginning their legal argument, defendants declare that the only possible restraint on commerce caused or intended by their destruction of the joint venture between FPC and Telaga Mas was a restraint on the tree-harvesting business in Indonesia. Invoking the rule that a corporate shareholder has no standing to sue for antitrust injury to the corporation, see Martens v. Barrett, 245 F.2d 844, 846 (5th Cir. 1957), defendants argue that FPC’s only injury was as a shareholder of the never-formed Indonesian corporation; that Indonesia Industrial’s only injury was as a shareholder of FPC; and that Industrial Investment’s only injury was as a shareholder of its Hong Kong subsidiaries. Finally, going beyond the pleadings, defendants question Indonesia Industrial’s and Industrial Investment’s claims that they would be directly involved in the export and marketing of logs and lumber products.

*887 We reject defendants’ argument for several reasons. First, defendants’ contention that the only restraint was on the Indonesian tree-harvesting business is simply their own revision of plaintiffs’ pleadings. Plaintiffs have alleged that defendants were attempting to restrain competition in the harvesting, acquisition, export and marketing of logs from Indonesia, business activities in which the defendants are allegedly involved. Defendants cannot determine the intent and effect of the alleged conspiracy by ipse dixit.

Second, defendants read Martens v. Barrett too broadly when they contend that it deprives FPC of standing to seek damages for defendants’ efforts to keep it out of the harvesting business. In Martens v. Barrett, two plaintiffs, the sole shareholders of a corporation that owned and operated a gas station, brought an antitrust action against the station’s former distributor. We held that “where the business or property allegedly interfered with by forbidden practices is that being done and carried on by a corporation, it is that corporation alone, and not its stockholders .. ., who has a right of recovery.” 245 F.2d at 846. 10 We do not question that holding; it is fully consistent with one of the purposes of the doctrine of antitrust standing: avoiding “the problems of double recovery.” Hawaii v. Standard Oil Co., 405 U.S. 251, 264, 92 S.Ct. 885, 892, 31 L.Ed.2d 184 (1972). Had we allowed the shareholders in Martens to recover, there would have been no assurance that the corporation would not later have sought damages in its own name. Moreover, there was no justification in Martens for not having the corporation bring suit.

The situation is vastly different when defendants’ own actions are alleged to have aborted the entity which defendants claim has sole standing to sue. The antitrust standing inquiry is not a search for labels; it is a search for the most direct targets of the anticompetitive acts. Jeffrey v. Southwestern Bell, 518 F.2d at 1131 (citing Martens); cf. Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172, 1176 (5th Cir. 1976) (“[t]he key question” is whether plaintiffs themselves are within the target area, not whether they are “employees” of a business within the target area). There was no more direct target of defendants’ alleged activity than FPC. Since the joint venture corporation was never formed, there is no possibility of double recovery. We hold that FPC has standing to challenge the alleged restraint in the harvesting business. 11

Third, neither Indonesia Industrial nor Industrial Investment claims damages for injury to the value of its interest in another corporation. Each alleges injury by reason of a restraint on a business activity it claims it was preparing to enter.

Fourth, even if some of the damages from lost business claimed by Indonesia Industrial or Industrial Investment could be viewed as “deriving” from their relationship with FPC, it would not defeat their standing in this case. Each plaintiff alleges that it was plaintiffs’ very competition that defendants were attempting to exclude. There is evidence in the record that supports these allegations, particularly the allegation that it was the American parent that defendants wanted to keep away from Indonesian timber. When a person is the direct target of an anticompetitive act, he has standing to sue for injury to his business. See Perkins v. Standard Oil Co., 395 U.S. 642, 649-50, 89 S.Ct. 1871, 1875, 23 L.Ed.2d 599 (1969); 12 Hayes v. Solomon, *888 597 F.2d 958, 981 (5th Cir. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). 13

Finally, defendants’ contention that plaintiffs would not have been engaged in the businesses they claim is not a “standing” argument; it is a request for summary judgment on the fact of injury. We simply note that even if defendants had asked for summary judgment on this ground, they would not be entitled to it. The evidence in the record is sufficient to raise a genuine issue of fact.

C. Antitrust Injury

Defendants’ argument that plaintiffs have no standing because they have not alleged “antitrust injury” misconceives both the holding of Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. at 489, 97 S.Ct. at 697, and the nature of standing. Brunswick is not a standing case. In Brunswick the Supreme Court was reviewing a jury’s award of damages after a full trial on the merits. Plaintiffs had alleged that defendant, a major manufacturer of bowling equipment, had violated the antimerger provisions of the Clayton Act, 15 U.S.C. § 18, by acquiring and operating bowling centers that had defaulted in paying for their equipment; plaintiffs’ sole proof of damages was the profits they would have made had the defaulting competitors gone out of business. The Supreme Court held this basis of damages “inimical to the purposes” of the antitrust laws; those laws were enacted to protect competition, while plaintiffs claimed injury because competition was not eliminated. Id. at 488, 97 S.Ct. at 697. The Court held that injury compensable under 15 U.S.C. § 15 must be

injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anti-competitive effect either of the violation or of anticompetitive acts made possible by the violation.

Id. at 489, 97 S.Ct. at 697. The Court did not hold, however, that plaintiffs had no standing; it simply held that plaintiffs had failed to offer proof of “antitrust injury.” 14 Indeed, the Court indicated that it would have remanded the case for a new trial had plaintiffs offered any proof of injury related to the anticompetitive effects of defendant’s acquisition and operation of the competing bowling centers. Id. at 489-90, 97 S.Ct. at 698.

It is analytically unsound, we think, to consider the requirement of antitrust injury an additional component of the standing inquiry. Under traditional standing analysis, the court does not reach the substantive issues in plaintiff’s complaint, see 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3531, at 175-76 (1975); instead, the court assumes arguendo that plaintiff has pleaded and could prove a violation of substantive law, and asks only whether plaintiff has alleged *889 a concrete injury and a sufficient causal relationship between the injury and the violation. See Warth v. Seldin, 422 U.S. 490, 498-502, 95 S.Ct. 2197, 2205-07, 45 L.Ed.2d 343 (1975). To be sure, the doctrine of antitrust standing requires a closer look at the nature of defendant’s alleged conduct and its relation to the alleged injury: the court must identify the affected area of the economy and determine whether the alleged injury occurred within that area. Yoder Bros., 537 F.2d at 1360. A person may suffer a causally related injury and still not have standing because the injury is too far removed from the area of commerce “endangered by a breakdown of competitive conditions.” Jeffrey, 518 F.2d at 1131. Like traditional standing analysis, however, the antitrust standing inquiry does not permit the court to resolve such substantive issues as whether plaintiff has alleged a violation of law and whether plaintiff has in fact suffered injury. See Yoder Bros., 537 F.2d at 1359-60.

The question whether plaintiff has alleged antitrust injury, by contrast, requires the court to look at the nature of the violation alleged and the injury that resulted and to determine whether that injury “flows from that which makes defendants’ acts unlawful.” Brunswick, 429 U.S. at 489, 97 S.Ct. at 697. This determination is one of substantive law; indeed, such an inquiry could encompass every substantive issue in the case. To call such an inquiry a determination of standing not only “invites confusion,” Handler, Changing Trends in Antitrust Doctrines: An Unprecedented Supreme Court Term — 1977, 77 Colum.L. Rev. 979, 996 (1977), but it drains the term “standing” of any meaning. 15

We think that this case illustrates the importance of keeping these doctrines distinct. “Standing” is generally understood as an issue to be resolved by the court which does not require the court to determine the legality of defendant’s alleged conduct. In this case the defendants moved for summary judgment only on grounds, such as standing, that apparently would not require the court to determine whether the defendants had violated the Sherman Act. In their original submissions, defendants argued that plaintiffs did not suffer “antitrust damages” because they were not in the “target area” of the alleged violation; after our first remand, and on this appeal, they have argued that plaintiffs did not suffer “antitrust injury” because they cannot prove a violation. 16 Thus, advancing an umbrella concept of standing, they have attempted to transform *890 the very nature of their motion for summary judgment.

Plaintiffs have standing to bring this suit.

IV. Forum Non Conveniens

The district court agreed with defendants’ contention that Indonesia was a more convenient forum for this Sherman Act suit. This conclusion was error. The common law doctrine of forum non conveniens is inapplicable to suits brought under the United States antitrust laws. United States v. National City Lines, Inc., 334 U.S. 573, 68 S.Ct. 1169, 92 L.Ed. 1584 (1948).

In National City Lines, the district court dismissed a case brought under §§ 1 and 2 of the Sherman Act on the ground that another United States district court was a more convenient forum. The Supreme Court reversed, holding that the venue provisions of 15 U.S.C. § 22 17 leave no room for judicial discretion to apply the common law doctrine of forum non conveniens. Id. at 588, 68 S.Ct. at 1177. Defendants argue that National City Lines is distinguishable because it dealt with forum non conveniens “in a purely venue-related context.” This argument is wrong for several reasons. First, it misstates the facts of National City Lines, which involved a dismissal, not a change-of-venue order.