mariner
fo
657 F.2d 971
1981-2 Trade Cases 64,202
YAMAHA MOTOR CO., LTD., Petitioner,
v.
FEDERAL TRADE COMMISSION, Respondent.
BRUNSWICK CORP. and Mariner Corp., Petitioners,
v.
FEDERAL TRADE COMMISSION, Respondent.
Nos. 80-1760, 80-1913.
United States Court of Appeals,
Eighth Circuit.
Submitted May 18, 1981.
Decided July 29, 1981.
As Modified on Denial of Rehearing and Rehearing En Banc in
No. 80-1913 Sept.
11, 1981.
Page 973
John R. Ferguson, Janine H. Coward, Peabody, Rivlin, Lambert & Meyers, Washington, D. C., Henry Y. Ota, Shigeru Watanabe, Mori & Ota, Los Angeles, Cal., Thomas C. Walsh, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for petitioner Yamaha Motor Co., Ltd.
James H. Sneed, Gen. Counsel, Howard E. Shapiro, Deputy Gen. Counsel, W. Dennis Cross, Asst. Gen. Counsel, David M. Fitzgerald (argued), Leslie Rice Melman, Jack Schwartz, Attys., F. T. C., Washington, D. C., for respondent.
Patrick W. O'Brien (argued), Kenneth J. Jurek, Chicago, Ill., John C. Shepherd, St. Louis, Mo., for petitioners Brunswick Corp. and Mariner Corp.; Mayer, Brown & Platt, Chicago, Ill., Shepherd, Sandberg & Phoenix, St. Louis, Mo., William L. Niemann, James H. Wehrenberg, Skokie, Ill., of counsel.
Before LAY, Chief Judge, ARNOLD, Circuit Judge, and BECKER, * Senior District Judge.
ARNOLD, Circuit Judge.
These petitions for review challenge an order of the Federal Trade Commission holding that a joint-venture agreement entered into by petitioners for the manufacture and sale of outboard motors is unlawful under Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. The parties to the agreement were Yamaha Motor Company, Ltd., petitioner in No. 80-1760, and Brunswick Corporation and its subsidiary Mariner Corporation, petitioners in No. 80-1913. The principal question presented is whether the Federal Trade Commission had the support of substantial evidence on the record as a whole when it concluded, in the words of Section 7, that the effect of the joint venture "may be substantially to lessen competition." We think the answer to this question is yes, and we therefore affirm the order of the Commission, with some modifications of the remedy it imposed.
I. THE FACTS
The parties. Brunswick is a diversified manufacturer whose products include recreational items. Brunswick began making outboard motors in 1961, when it acquired what is now called its Mercury Marine Division (Mercury). Brunswick is the second largest seller of outboard motors in the United States. Between 1971 and 1973 its share of the outboard motor market fluctuated between 19.8% and 22.6% by unit volume and between 24.2% and 26% by dollar volume. Brunswick also sells its Mercury outboards in Canada, Australia, Europe, and Japan.
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