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GRANITE PARTNERS, L.P. v. BEAR
July 26, 1999
GRANITE PARTNERS, L.P., GRANITE CORPORATION AND QUARTZ HEDGE FUND, BY AND THROUGH THE LITIGATION ADVISORY BOARD OF GRANITE PARTNERS, L.P., GRANITE CORPORATION AND QUARTZ HEDGE FUND, PLAINTIFFS,
BEAR, STEARNS & CO. INC., BEAR, STEARNS CAPITAL MARKETS INC., HOWARD RUBIN, DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION, ELIZABETH COMERFORD AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
Defendants Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ"), Elizabeth Comerford ("Comerford"), Bear,
Stearns & Co. Inc., Bear, Stearns Capital Markets Inc.
(collectively, "Bear Stearns"), Howard Rubin ("Rubin"), and
Merrill Lynch, Pierce, Fenner & Smith Inc. ("Merrill Lynch")
(together with DLJ, Comerford, Bear Stearns, and Rubin, the
"Brokers") have moved for partial dismissal of the Second Amended
Complaint ("Complaint") in this action pursuant to Rules 12(b)(6)
and 9(b) of the Federal Rules of Civil Procedure for failure to
state a claim upon which relief can be granted and for failure to
plead fraud with particularity. Specifically, the Brokers move to
dismiss the following claims: (1) breach of contract (Count III);
(2) common law fraud (Counts IV and V); (3) violations of the
Sherman and Donnelly Acts (Counts VI and VII); and (7) tortious
interference with contracts (Counts XI and XII).
The Brokers have also moved to dismiss Counts XIII through XXI
of the Second Amended Complaint, which have been reasserted
merely for the purposes of plaintiffs' contemplated appeal.
Plaintiffs have agreed, both in their papers and in
correspondence to the Court, (see Letter from Seiler to Judge
Sweet of 10/16/98, at 2), that these counts are deficient under
the logic of Granite Partners, L.P. v. Bear, Stearns & Co.,
17 F. Supp.2d 275 (S.D.N.Y. 1998) ("Granite II"), and that they
should therefore be summarily dismissed.
For the reasons set forth below, the Brokers' motions will be
granted in part and denied in part.
Plaintiff Granite Partners, L.P. ("Granite Partners"), a
Delaware limited partnership, was established in January 1990 as
an investment fund to invest primarily in mortgage-related
securities on behalf of individuals and entities subject to
United States taxation.
Plaintiff Granite Corporation ("Granite Corp."), a Cayman
Islands corporation, was organized in January 1990 to invest
primarily in mortgage-related securities on behalf of offshore
investors and domestic tax-exempt entities, including foundations
and pension funds.
Plaintiff Quartz Hedge Fund ("Quartz") (collectively with
Granite Partners and Granite Corp., the "Funds"), a Cayman
Islands corporation, was established in January 1994 as a vehicle
to invest primarily in mortgage-related securities on behalf of
offshore investors and others exempt from United States taxation.
The Funds bring this action by and through the Litigation
Advisory Board (the "LAB"), which was given the exclusive
authority on behalf of and in the name of the Funds' estates to
commence, prosecute, settle, or otherwise resolve all unresolved
claims and causes of action of the Funds' estates by order of the
United States Bankruptcy Court for the Southern District of New
DLJ, Bear Stearns, and Merrill Lynch, all Delaware corporations
with their principal places of business in New York City, are
broker-dealers that transacted business with the Funds.
Comerford, a resident of New York, was at all relevant times a
senior vice president of DLJ.
Rubin, a resident of New Jersey, was at all relevant times a
senior managing director and the head CMO trader at Bear Stearns.
David J. Askin ("Askin") is a resident of New Jersey.
At all times relevant to this action, non-party Askin Capital
Management, L.P. ("ACM"), a Delaware limited partnership, was a
registered investment advisor, whose principal place of business
was New York City. ACM was formed in January 1993 by Askin. Askin
also served as ACM's president, chief executive officer, and
chief financial officer. ACM became the investment advisor to
both Granite Corp. and Granite Partners (and Granite Partners'
sole general partner) on or about
January 26, 1993. ACM has been the investment advisor to Quartz
since its formation.
The facts and prior proceedings in this action are set forth in
prior opinions of this Court, familiarity with which is assumed.
See Granite II, 17 F. Supp.2d at 275; Granite Partners v. Bear,
Stearns & Co., 184 F.R.D. 49 (S.D.N.Y. 1999).
On April 7, 1994, the Funds filed petitions for relief under
chapter 11 of the United States Bankruptcy Code. The chapter 11
trustee for the Funds (the "Trustee") initially filed this action
in the United States Bankruptcy Court for the Southern District
of New York on September 12, 1996. The case was referred to this
Court on October 18, 1996. On consent, this Court withdrew the
reference from the Bankruptcy Court on December 3, 1996.
On January 27, 1997, the Trustee submitted a Third Amended
Joint Plan of Liquidation for the Funds (the "Plan"). Following
the Bankruptcy Court's confirmation of the chapter 11 Plan on
March 2, 1997, this action has been pursued by the LAB, appointed
pursuant to the Liquidation Plan.
The LAB filed its First Amended Complaint in this action on
August 4, 1997, naming, in addition to Bear Stearns, Rubin, DLJ,
Comerford, and Merrill Lynch as defendants.
In its First Amended Complaint, the LAB asserted the following
claims: breach of contract, inducing and participating in breach
of fiduciary duty, tortious interference with contracts,
rescission of unauthorized trades, breach of duty, conversion,
federal and state antitrust violations, prima facie tort,
common law fraud, negligent and innocent misrepresentation,
breach of express warranty, unjust enrichment, objection to
claims and interest, and equitable subordination.
On August 25, 1998, the lion's share of the LAB's claims were
dismissed in Granite II, 17 F. Supp.2d at 275. That decision
granted the LAB leave to replead.
On October 16, 1998, the LAB filed the Complaint that is the
subject of the Brokers' current motions to dismiss. Oral argument
was heard on the instant motions on April 29, 1999, at which time
the motions were deemed fully submitted. Additional materials
were received from the parties through June 2, 1999.
In considering a motion to dismiss, the facts alleged in the
complaint are presumed to be true and all factual inferences must
be drawn in the plaintiff's favor. See Mills v. Polar Molecular
Corp., 12 F.3d 1170, 1174 (2d Cir. 1993); Cosmas v. Hassett,
886 F.2d 8, 11 (2d Cir. 1989); Dwyer v. Regan, 777 F.2d 825,
828-29 (2d Cir. 1985), modified by, 793 F.2d 457 (2d Cir.
1986). Accordingly, the factual allegations considered here and
set forth below are taken primarily from the LAB's Complaint and
do not constitute findings of fact by the Court. They are
presumed to be true only for the purpose of deciding the present
Though the LAB's Complaint differs in significant respects from
its First Amended Complaint, the basic facts remain the same. As
was explained in more detail in Granite II, this case arises
out of the collapse in early 1994 of the Funds that were managed
by Askin and ACM. The Funds invested primarily in collateralized
mortgage obligations ("CMOs") created by the Brokers and other
broker-dealers. As the Complaint states, "CMOs are securities
created from and collateralized by mortgage-backed securities
formed from pools of residential mortgages or securities backed
by such mortgages." Compl. ¶ 26. ACM, through its president,
Askin, purchased the securities for the Funds. The advisory and
fiduciary relationships between ACM, or its predecessors, and the
Funds were governed by investment advisory agreements. Because
CMOs of the type purchased by the Funds vary in their sensitivity
to interest rate fluctuations, and
the Funds themselves had distinct investment strategies, ACM's
selection of the Funds' securities was critical.
Askin and ACM, the Funds' investment advisor, had fiduciary and
contractual obligations to the Funds to make investments with due
care and in accordance with the Funds' stated investment
objectives. Askin and ACM, however, did not fulfil those
obligations, and repeatedly breached their fiduciary and
contractual duties. As a result, the Funds acquired portfolios
that were full of bullish CMOs, esoteric and highly "toxic" CMOs,
and otherwise inappropriate securities. When short-term interest
rates rose in early 1994, these securities radically eroded in
The Complaint alleges that the Brokers took advantage of ACM
and Askin's shortcomings by recommending and selling to the Funds
inappropriate and, at times, highly toxic CMOs. The Complaint
also alleges that the Brokers deliberately supplied ACM and the
Funds with erroneous "marks" purportedly representing the
Brokers' own valuations of the Funds holdings — a claim not
explicitly made in the First Amended Complaint — despite
contracts between the Funds and the Brokers requiring the
provision of accurate and timely Broker marks. In their sales of
securities to the Funds, the Brokers recouped significant profits
— in part due to the Brokers' charging of excessive markups. The
LAB's claims concerning the Brokers' charging of excessive
markups were also not explicitly made in the First Amended
The Funds obtained the majority of their CMOs pursuant to
"repos," a financing mechanism that allowed the Funds to pay only
a fraction of the cost of each CMO in cash, borrowing the balance
from the Brokers. After the Funds' value began to erode in early
1994, the Funds' holdings were liquidated pursuant to Public
Securities Association Master Repurchase Agreements ("PSA
Agreements") between the Funds and the Brokers. Under these
agreements, the Brokers were allowed to make margin calls on the
Funds if the value of the securities held on "repo" fell below
the amount that the Funds had borrowed, plus an agreed-upon
"haircut."*fn1 Unable to meet margin calls issued by the
Brokers, the Funds' portfolios were liquidated.
The Complaint alleges that the Brokers once again took
advantage of the Funds during these liquidations. In particular,
the Brokers are alleged to have liquidated the Funds' holdings by
"deeming" sales of the Funds' securities to themselves at
unreasonable, below-market prices. The Brokers allegedly colluded
with each other to exchange sham bids, thus facilitating this
bad-faith liquidation. Having obtained the Funds' securities at
artificially low prices, the Brokers then proceeded to sell those
same securities on the open market — recovering profits far in
excess of those they would have obtained had they liquidated the
Funds' portfolios in a non-collusive manner.
The Brokers have moved to dismiss several repleaded claims that
were present in the First Amended Complaint, as well as a few
that were not. The Complaint realleges antitrust claims under the
Sherman and Donnelly Acts that were dismissed in Granite II
(Counts VI and VII). The Complaint also includes claims of common
law fraud (Count IV) and breach of contract (Count III), not
present in the LAB's First Amended Complaint, based upon the
Brokers' provision of erroneous marks, as well as a common law
fraud claim premised upon the Brokers' failures to disclose the
excessive markups they charged the Funds for securities (Count
V). Finally, the Complaint realleges claims for tortious
interference with contracts similar to those
that were dismissed in Granite II (Counts XI and XII). The
Brokers have moved to dismiss these claims, but not several
others that are not the subject of the instant opinion.
In deciding the merits of a motion to dismiss for failure to
state a claim, all material allegations composing the factual
predicate of the action are taken as true, for the court's task
is to "`assess the legal feasibility of the complaint, not to
assay the weight of the evidence which might be offered in
support thereof.'" Ryder Energy Distribution Corp. v. Merrill
Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)
(quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.
1980)). Thus, where it is beyond doubt that plaintiff can prove
no set of facts in support of his or her claim that would warrant
relief, a motion to dismiss must be granted. See H.J. Inc. v.
Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct.
2893, 106 L.Ed.2d 195 (1989); Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Additionally, on a Rule 12(b)(6) motion, consideration is
limited to the factual allegations in the complaint, "to
documents attached to the complaint as an exhibit or incorporated
in it by reference, to matters of which judicial notice may be
taken, or to documents either in plaintiff['s] possession or of
which plaintiff had knowledge and relied on in bringing suit."
Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.
1993) (citing Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47-48 (2d Cir. 1991)); Bissell v. Merrill Lynch & Co.,
937 F. Supp. 237, 239 (S.D.N.Y. 1996), aff'd, 157 F.3d 138 (2d Cir.
1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1039, 143 L.Ed.2d
The parties have submitted numerous exhibits, including
deposition transcripts, that could not appropriately be
considered on a motion to dismiss. Despite the voluminous nature
of these exhibits, and the alacrity with which the parties have
interwoven quarrels based upon these materials with contentions
based upon the LAB's actual pleadings, these exhibits have been
ignored. However, certain documents not attached to the Complaint
or explicitly incorporated by reference have been consulted where
appropriate under the above standard.
Federal Rules of Civil Procedure 9(b) requires that in all
allegations of fraud, the circumstances constituting the fraud
must be stated with particularity. See Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1127 (2d Cir. 1994); In re Time
Warner, Inc. Sec. Litig., 9 F.3d 259, 265 (2d Cir. 1993);
Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 445 (2d Cir.
1971). Allegations of fraud must adequately specify the
statements made that were false or misleading, give particulars
as to the respect in which it is contended that the statements
were fraudulent, and state the time and place the statements were
made and the identity of the person who made them. See
McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992);
Cosmas, 886 F.2d at 11.
II. The LAB Has Not Adequately Pleaded Violations of the
Sherman and Donnelly Acts (Counts VI and VII)
The LAB has brought suit against Bear Stearns, Rubin, DLJ, and
Merrill Lynch pursuant to section 4 of the Clayton Act, which
[A]ny person who shall be injured in his business or
property by reason of anything forbidden in the
antitrust laws may sue . . . and shall recover
threefold the damages by him sustained, and the cost
of suit, including a reasonable attorney's fee.
15 U.S.C. § 15(a) (1997). According to the LAB, the Brokers
committed underlying violations of section 1 of the Sherman Act,
15 U.S.C. § 1 (1997), by engaging in a conspiracy to exchange
"lowball," accommodation bids during the initial liquidation of
the Funds' holdings. These bids were then used by the Brokers to
justify deeming sales of those holdings to themselves at
below-market prices. The LAB alleges that by agreeing to
forestall a competitive auction the Brokers engaged in a
conspiracy in violation of the Sherman Act. The LAB also asserts
that the Brokers' collusive bidding scheme was illegal under New
York's Donnelly Act, N.Y. Gen. Bus. Law § 340 (McKinney's 1996).
Section 1 of the Sherman Act reads, in relevant part:
Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign
nations, is hereby declared to be illegal. Every
person who shall make any contract or engage in any
combination or conspiracy hereby declared to be
illegal shall be deemed guilty of a felony. . . .
While the Sherman Act, by its terms, prohibits any agreement or
combination "in restraint of trade or commerce," id., it has
long been recognized that the Act was only intended to outlaw
unreasonable restraints. See Bogan v. Hodgkins, 166 F.3d 509,
513 (2d Cir. 1999) ("[T]he Supreme Court has read the Act to
forbid only `unreasonable' restraints, as a literal reading would
absurdly bar all contracts. In particular not all cooperative
conduct has a deleterious effect on competition; indeed, some
cooperative arrangements foster rather than harm competition.")
(citations omitted). As a result, most antitrust claims are
evaluated under a "rule of reason," according to which "the
finder of fact must decide whether the questioned practice
imposes an unreasonable restraint on competition, taking into
account a variety of factors, including specific information
about the relevant business, its conditions before and after the
restraint was imposed, and the restraint's history, nature, and
effect." State Oil Co. v. Khan, 522 U.S. 3, 118 S.Ct. 275, 279,
139 L.Ed.2d 199 (1997); see Bogan, 166 F.3d at 513 n. 4. To
allege unreasonable restraint of trade, something more than a
private dispute must be alleged. The relevant product market must
be identified, and the plaintiff must "`allege how the net
economic effect of the alleged violation is to restrain trade in
the relevant market, and that no reasonable alternate source is
available' to consumers in that market." International
Television Productions Ltd. v. Twentieth Century-Fox Television,
622 F. Supp. 1532, 1534 (S.D.N.Y. 1985) (quoting Gianna Enters.
v. Miss World (Jersey) Ltd., 551 F. Supp. 1348, 1355 (S.D.N Y
1982)); see North Jersey Secretarial School, Inc. v. McKiernan,
713 F. Supp. 577, 583 (S.D.N.Y. 1989). The economic impact in the
relevant market must be specified, and the plaintiff must show
that "the alleged restraint on trade tends or is reasonably
calculated to prejudice the public interest." Larry R. George
Sales Co. v. Cool Attic Corp., 587 F.2d 266, 273 (5th Cir.
However, because certain types of restraints have both a
predictable and pernicious effect on competition, they are deemed
unlawful per se. In the motions considered in Granite II, the
Broker defendants maintained that the LAB had only alleged injury
to the Funds themselves, not injury to the relevant market, and
that this failure to plead restraint of trade required dismissal
of the LAB's antitrust claims. By contrast, the LAB sought to
neutralize the inadequacy of its pleadings by urging that the
Brokers' alleged bid-rigging conspiracy be considered a per se
violation of the antitrust laws. More specifically, the LAB
suggested that because a horizontal bid-rigging scheme had been
alleged, it was entitled to per se treatment and the LAB need
not meet the demands of rule-of-reason analysis. As
was explained in Granite II, however, because of the novel and
complex nature of the market and instruments at issue in this
case, the collusion alleged by the LAB did not constitute a per
se violation of the Sherman Act. See 17 F. Supp.2d at 297.
In its papers, the LAB has once again attempted to navigate a
shortcut around rule-of-reason analysis, pressing that the
so-called "quick look" rule of reason should be applied to its
antitrust claims. The LAB's entreaties notwithstanding, "quick
look" rule-of-reason analysis would not be appropriate in this
case. Abbreviated rule-of-reason analysis, as the Supreme Court
has recently had occasion to observe, is only appropriate where
"the great likelihood of anticompetitive effects can easily be
ascertained," and "an observer with even a rudimentary
understanding of economics could conclude that the arrangements
in question would have an anticompetitive effect on customers and
markets." California Dental Assoc. v. FTC, ___ U.S. ___, 119
S.Ct. 1604, 1612-13, 143 L.Ed.2d 935 (1999). It was emphatically
the holding of Granite II that the anticompetitive impact of
the Brokers' alleged bidding conspiracy was neither obvious nor
easily ascertainable, and that therefore the LAB could not
maintain its antitrust claims against the Brokers merely by
alleging per se violations of the Sherman Act. As California
Dental indicates, "quick look" rule-of-reason analysis is
inappropriate for similar reasons. See id. The LAB's request
that the Court merely engage in yet another form of truncated
antitrust analysis is thus meritless.
To withstand a motion to dismiss, a plaintiff making a Sherman
Act conspiracy claim must allege a concerted action by two or
more persons that unreasonably restrains interstate or foreign
trade or commerce. See In re Nasdaq Market-Makers Antitrust
Litig., 894 F. Supp. 703, 710 (S.D.N.Y. 1995); Three Crown Ltd.
Partnership v. Caxton Corp., 817 F. Supp. 1033, 1047 (S.D.N Y
1993); Broadcast Music, Inc. v. Hearst/ABC Viacom Entertainment
Servs., 746 F. Supp. 320, 325 (S.D.N.Y. 1990); accord
International Distrib. Ctrs., Inc. v. Walsh Trucking Co.,
812 F.2d 786, 793 (2d Cir. 1987). The plaintiff "must do more than
merely allege that a conspiracy exists, it must provide some
factual basis for that allegation." Fort Wayne Telsat v.
Entertainment & Sports Programming Network, 753 F. Supp. 109, 115
(S.D.N.Y. 1990); see Garshman v. Universal Resources Holding
Inc., 824 F.2d 223, 230 (3d Cir. 1987); Heart Disease Research
Found. v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972).
For example, the plaintiff must identify the relevant product
market, the co-conspirators, and describe the nature and effects
of the alleged conspiracy. See In re Nasdaq, 894 F. Supp. at
710-11; International Television Productions, 622 F. Supp. at
1537. While dismissal prior to giving a plaintiff ample
opportunity for discovery should be granted sparingly in
antitrust cases, see Hospital Bldg. Co. v. Trustees of Rex
Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338
(1976),*fn2 "`[i]t is not . . . proper to assume that the
[plaintiff] can prove facts that it has not alleged or that the
defendants have violated the antitrust laws in ways that have not
been alleged.'" George Haug Co. v. Rolls Royce Motor Cars Inc.,
148 F.3d 136, 139 (2d Cir. 1998) (quoting Associated Gen.
Contractors of California, Inc. v. California State Council of
Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723
As the Second Circuit has held, establishing an unreasonable
restraint of trade under the rule of reason involves three basic
"[P]laintiff bears the initial burden of showing that
the challenged action has had an actual adverse
effect on competition as a whole in the relevant
market. . . ." Capital Imaging Assocs. P.C. v.
Mohawk Valley Medical Assocs., 996 F.2d 537, 543 (2d
Cir.), cert. denied, 510 U.S. 947, 114 S.Ct. 388,
126 L.Ed.2d 337 (1993). If the plaintiff succeeds,
the burden shifts to the defendant to establish the
"pro-competitive `redeeming virtues'" of the action.
Id. Should the defendant carry this burden, the
plaintiff must then show that the same
pro-competitive effect could be achieved through an
alternate means that is less restrictive of
competition. Id.; Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1413 (9th Cir.), cert. denied,
502 U.S. 994, 112 S.Ct. 617, 116 L.Ed.2d 639 (1991).
K.M.B. Warehouse Distribs., Inc. v. Walker Mfg. Co.,
61 F.3d 123, 127 (2d Cir. 1995). To meet its initial burden a plaintiff
bringing suit under the Sherman Act must "show more than just
that he was harmed by defendants' conduct." Id. Rather, a
plaintiff must show that the alleged restraint of trade had an
actual adverse effect on competition as a whole in the relevant
market. See id.; see also Jefferson Parish Dist. No. 2 v. Hyde,
466 U.S. 2, 31, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984) ("Without a
showing of actual adverse effect on competition, respondent
cannot make out a case under the antitrust laws. . . ."). This is
so because the ultimate aim of the Sherman Act is to protect
competition, as opposed to competitors. See Brown Shoe Co. v.
United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 8 L.Ed.2d 510
(1962). As another Second Circuit decision, Capital Imaging
Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537
(2d Cir. 1993), has explained:
Under [the rule of reason test] . . . plaintiff bears
the initial burden of showing that the challenged
action has had an actual adverse effect on
competition as a whole in the relevant market; to
prove it has been harmed as an individual competitor
will not suffice. Insisting on proof of harm to the
whole market fulfills the broad purpose of the
antitrust law that was enacted to ensure competition
in general, not narrowly focused to protect
Additionally, it is well-settled that "[a] private plaintiff
may not recover damages under § 4 of the Clayton Act merely by
showing `injury causally linked to an illegal presence in the
market.'" Atlantic Richfield Co. [ARCO] v. USA Petroleum Co.,
495 U.S. 328, 334, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990)
(quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). Rather, a private
plaintiff must demonstrate the existence of "antitrust injury,
which is to say injury of the type the antitrust laws were
intended to prevent and that flows from that which makes
defendants' acts unlawful." Brunswick, 429 U.S. at 489, 97
S.Ct. 690; see George Haug, 148 F.3d at 139 ("The antitrust
injury requirement obligates a plaintiff to demonstrate, as a
threshold matter, `that the challenged action has had an actual
adverse effect on competition as a whole in the relevant market;
to prove it has been harmed as an individual competitor will not
suffice.'") (quoting Capital Imaging, 996 F.2d at 543);
Florida Seed Co. v. Monsanto Co., 105 F.3d 1372, 1375 (11th
Cir.) ("In many instances, those displaced by a merger suffer an
economic loss. However, this loss is not an antitrust injury
because it does not flow from that which makes a merger unlawful.
Injuries like that suffered by Florida Seed do not `coincide
with the public detriment tending to result from the alleged
violation.'") (quoting Todorov v. DCH Healthcare Auth.,
921 F.2d 1438, 1450 (11th Cir. 1991)), cert. denied, ___ U.S. ___,
118 S.Ct. 296, 139 L.Ed.2d 228 (1997). Even injuries with a
causal connection to antitrust violations will not qualify as
"antitrust injuries" unless they are "attributable to an
anticompetitive aspect of the practice under