Edward J. Sweeney & Sons, Inc., and Mission Gas Oil Company, Inc. And Petroleum Products Co. v. Texaco, Inc

SLOVITER, Before ALDISERT and Cir RAMBO, Judges, Judge.* cuit District * Sylvia Rambo, Pennsylvania, sitting designation. Honorable H. of the United States District District of Court for the Middle Texaco, Sweeney. fuel from THE defendant OF COURT

OPINION Inc., gasoline sells and other refines and ALDISERT, Judge. Circuit products. petroleum question for major decision consignee as a years several After an anti- plaintiffs in appeal by unsuccessful companies, Sweeney wholesaler other established a they trust action whether a Texaco wholesaler and distributor became “contract, combina- prima facie case of Texaco en- in 1958. In 1963 tion, conspiracy, in restraint trade ... agreement at tered into the distributor Act, ...” in violation of 1 of the Sherman agree- litigation. this' Part of the heart of Sweeney, a wholesale and 15 U.S.C. § Sweeney would haul its fuels, provided ment of Texaco two retail distributor fuel to own When it sells motor dis- attempted to fuel. of its wholesale customers conspired tributors, in- unlawfully charges prove that Texaco delivering product with other fuel and retailers distributors cludes the cost of price fix retail of Texaco motor fuel. plant. If the distribu- bulk distributor’s Determining appellants had failed to picks up plant, tor fuel at Texaco’s how- evidence from which a could introduce ever, did, it a Sweeney as receives discount conspiracy, the dis- infer the existence of equals hauling The discount allowance. in directed a verdict favor of trict court it would Texaco to the lowest amount cost Texaco. designated fuel distribu- deliver the point purchaser’s plant by tion bulk also a verdict The district court directed carrier, carrier, or contract Texaco common against appellants on their claims that Tex- designated company initially truck. Texaco Act, aco violated 2 of Sherman § Westville, in its terminal Jersey, New Act, as 2(a) Clayton and U.S.C. § Act, pick-up point. Accordingly, Sweeney’s Robinson-Patman amended addition, hauling 13(a). Sweeney equal received a allowance U.S.C. § damage against trips Tex- carrier for be- court dismissed claims to the common rate Company aco Gas plant raised Mission Oil tween Westville and its bulk located Company. Pottstown, Petroleum Products in Pennsylvania.

granted injunctive prayer for Sweeney hauling used the allowance to declaratory against Sweeney concern- relief advantage. Between 1965 and 1970 misrepresenting ing Sweeney’s practice acquired gasoline Sweeney several retail Sweeney, non-Texaco fuel as Texaco fuel. already it stations addition ones Mission, appeal and Petroleum Products newly acquired stations were owned. rulings. these adverse We conclude that twenty located within mile radius Tex- and, therefore, not err district court did Westville, Jersey, aco’s terminal. New we affirm. Sweeney picked up fuel Westville and transported directly it to these stations. I. practice Sweeney This to receive an enabled need recite those facts essential We hauling for fuel from Westville allowance appeal extensive because elab- miles, Pottstown, while roughly fifty already undertaken the district oration twenty it less Receiv- hauling than miles. Sons, Sweeney court. J. Inc. v. Edward & effectively greater allowance low- Inc., Texaco, (E.D. 249-51 Sweeney’s gasoline for which in ered cost Pa.1979). Appellant Sweeney J. Edward & Sweeney to its retail turn allowed lower Inc., Sons, a is wholesaler and distributor of prices. motor Pennsylva- fuels Eastern just hauling Use of the allowance Jersey. nia and New In addition Southern marketing part Sweeney’s one retail Sweeney to its wholesale owns business sev- major A was “no- gasoline strategy. part second eral retail stations. Mission Gas retailing. Sweeney’s Inc., Prior Company, Oil Products frills” Petroleum Company purchase complete are stations offered automobile distributors who retail services in repair change Macungie. and maintenance addition Texaco then 1965 or Sweeney to fuel. Swee- notified was terminating Sometime eliminating ney’s began hauling stations these serv- distributor and agree- ices, ments in go” sixty days, effective becoming “gas February outlets. The 1971. lowered overhead at these stations allowed prices Sweeney to reduce its retail further. notice, After it received the termination

Unlike gas other discount outlets sold Sweeney attempted but failed to obtain an names, Sweeney’s their own under stations supply. alternate source then fuel name. Sweeney sold under the Texaco negotiated As a with Texaco. result of the gasoline price offered at a between one and negotiations, Sweeney’s agree- distributor’s cents lower at three than which ment was parties not terminated and the major other retailers in area offered agreed on compromise hauling arrange- gasoline. Sweeney adopted brand After ment on March practice, this no-frills retail sales its retail Under hauling agreement, the new Swee- profits steadily. sales and increased ney up continued to pick Westville until augur did not prosperity well May and received the allowance it with competing Begin- Texaco retailers. getting had been distance from ning in these some of retailers com- Thereafter, Westville to Pottstown. Swee- plained to Texaco that discount ney picked up at Macungie fuel and re- pricing was their hurting businesses. ceived allowance based on the conspired contends that Texaco Macungie to Pottstown rate. Texaco also with these terminate Sweeney’s retailers to agreed May that after Sweeney distributorship hauling or to reduce al- pick location, could up fuel at either at thereby Sweeney lowance and force to raise although Sweeney’s option, hauling al- prices. Sweeney cites Texaco’s actions purchases lowance for all would be based on of alleged in and 1971 as evidence Macungie trip. to Pottstown This conspiracy. agreement mitigated the effect of change in hauling by permit- allowance The early evidence disclosed that as ting Sweeney to continue supplying its Texaco had reviewed status of southern Jersey New stations from nearby Sweeney’s agreement. hauling Texaco Westville. $2,158 found that it at least could save annually by Sweeney supplying from Ma- hauling agreement After this new be-

cungie, Pennsylvania, rather than from effective, Sweeney began came delivering Westville, Jersey, Macungie’s New due to Texaco non-Texaco fuel to brand stations Sweeney plant. proximity to the When it bearing trucks the Texaco trademark. learned of consideration of Texaco’s Sweeney’s Texaco learned of commingling change Macungie, Sweeney objected and thorough and investigation conducted a of postponed Texaco its decision on the mat- Sweeney’s operations using security Texaco ter. personnel. investigation The confirmed Sweeney’s pervasive Texaco’s suspicion of By supplying the economics of trademark violations. Sweeney changed out of Westville had $2,158, drastically. Texaco’s Instead of loss On December Daniel A. Doher- supplying Sweeney attributable from ty, Manager Texaco’s for the Philadelphia $58,000 more Westville had risen to than Region, told Texaco’s Vice President of annually. Sweeney Sales, Texaco informed De- States, United of decision to his ter- cember, 1970, changing it Swee- Sweeney’s minate hauling distributor and ney’s supply point Westville to Macun- agreements. Doherty based his decision gie provision hauling agree- under primarily Sweeney’s trademark viola- addition, permitting misrepresentations. ment to terminate the tions and Texaco agreement pick-up point. Doherty explained stations changé Nevertheless, go along integrity, failed to brand refused to maintain Texaco’s Sweeney basing mingling practices, its claims on var- prestige standards. image, quality, and subject state, federal, of law provi- were the an and common Sweeney’s stations ious complaints number of consumer inordinate The court dismissed Mission’s sions. users, particu- card Credit damage about service. claims on the and Petroleum’s market, segment of the com- larly valued plaintiffs improper were ground they irregularities of credit card plained directly fuel they purchase did not because Coupled with Swee- Sweeney’s stations. of the close the evi- from Texaco. After representing non-Texaco ney’s practice court directed verdict dence the district fuel, this evidence Swee- fuel as Texaco remaining denying appellants’ all claims ney’s to meet Texaco’s standards led failure injunctive prayer for granting Texaco’s Sweeney was dam- to believe that Doherty declaratory Appellants relief. chal- and im- aging valuable trademark lenge rulings. these adverse age. Sweeney that effective Texaco notified II. 29, 1972, it would terminate both February 1 contention before us is § agreement and the the 1963 distributor appellants’ that certain Texaco deal claim hauling agreement. Al- March conspired ers Texaco to have Texaco with though Sweeney again tried to obtain as a terminate distributor or supply, again source it was alternate Appellants’ hauling allowance.1 reduce its negotiations, various unsuccessful. After dealers com theory is these retail agreed supply Sweeney Texaco until practice plained to Texaco about gave day of its intention to a ten notice supply. retailing gasoline No termina- between one three discontinue given, tion has been and Texaco con- price, notice below their and that as result cents fuel. provide tinues to complaints reduced their Texaco Swee rate ney’s allowance to the set litigation followed these present March, 1971, Appellants agreement. Sweeney charged con- events. complain that the retailers’ contend acts spired in violation of of the Sherman complaints Texaco’s reaction to the Act, 1, with the dealers who § 15 U.S.C. of concerted action in restraint constituted complained Sweeney’s competitive about The court determined that trade. practices. alleged It also that Texaco vio- appellants failed offer sufficient evi Act, 2, lated 2 of Sherman 15 U.S.C. § § permit inference that dence to a reasonable monopolize by attempting to the sale of Sweeney’s Texaco terminated distributor Sweeney averred Finally, Texaco fuel. agreement changed Sweeney’s hauling or against it in the that Texaco discriminated competitors’ allowance because com thereby for fuel and charged Texaco 2(a) plaints. We error in this determi Clayton Act as find no violated § Moreover, Act, by the Robinson-Patman 15 we note that even if amended nation. 13(a). Company appellants U.S.C. Mission Gas Oil had demonstrated that Texaco’s § Company, and Petroleum Products two of response were to these com actions customers, joined in Sweeney’s wholesale plaints, such evidence alone would not show sought lawsuit. Plaintiffs dam- necessary concerted action. ages injunctive and relief. Texaco counter- action, matter its against Sweeney seeking injunctive Unilateral no what claimed motivation, United 1. declaratory and com- cannot violate § relief initially accept purposes argument Although we both 1. asserted antitrust termination, hauling damages change in al- based the termination and the bn 1971 alleged during parts single conspir- App. at lowance were acy. of a withdrew this claim trial. 1826a-27a; Argument Transcript of Oral 1971 termination was before relief, Only damages change plaintiff’s injunctive the claim of on the court on claim for based fact, sitting the court on with the court as the trier allowance was before verdict, therefore court’s denial of that is discussed motion for directed relief V, Nevertheless, section infra. that claim before us now.

m 300, Co., 307, Colgate v. & 250 ed Co., States U.S. States Mineral Products 521 F.2d 468, 465, (1919); 1309, 39 63 L.Ed. 992 (3d 1975). S.Ct. Ha 1312 Cir. Friedman, Co., Kroger rold Inc. v. 581 F.2d necessary step ap first toward 1068, (3d 1978); Tripoli 1072 Cir. Co. v. pellants’ proof prohibited of a 1 conspir § 264, Corp., (E.D.Pa. Wella 286 266 acy proof of a causal relationship be 1968), aff’d, (3d Cir.), 425 F.2d 932 cert. competitor tween complaints that Sweeney denied, 62, 400 91 27 L.Ed.2d selling gasoline Texaco several cents (1970). terms, By requires proof 1§ below price, their own and the reduction of “contract, conspir of a combination .... or Cernuto, hauling allowance. Inc. acy.” 15 1. We U.S.C. have noted that v. Corp., United Cabinet 595 F.2d statutory language presents a single (3d 1979). Cir. The mere reception of com action, concept about common three plaints by Texaco would be insufficient “ .. separate ones: ‘contract . combination prove this causal nexus. Nor would it suf conspiracy’ becomes an alliterative com prove only fice to that some Texaco employ noun, pound roughly translated to mean ” ees who knew of the complaints were also Bogosian ‘concerted action.’ v. Gulf Oil the ones who decided to terminate Swee Corp., (3d 1977), 561 F.2d 445-46 Cir. ney’s agreement distributor change denied, cert. 434 U.S. 98 S.Ct. hauling allowance.2 The evidence must (1978) (quoting Sullivan, L. permit the inference that the alleged con (1977)). Law of Antitrust 312 spirators unity purpose “had a or a com To establish the existence of con design mon and understanding, or a meet action, appellants certed had to submit evi ing of the minds.” American Tobacco Co. dence reasonably from which a could States, 781, 810, v. United infer that Texaco and others had a con (1946). 90 L.Ed. 1575 See Klein scious commitment to a common scheme Works, Inc., v. American Luggage 323 F.2d designed objective. to achieve an unlawful at 791. Works, Inc., Luggage Klein v. American Appellants they claim that sub 1963); 323 F.2d Cir. United mitted sufficient evidence to allow an infer States Standard Oil 316 F.2d illegal ence of They point concerted action. (7th 1963). proof express Direct of an testimony that beginning in 1966 or 1967 agreement required. is not the con On continuing through 1979 some lessees trary, plaintiff may rely on an inference complained stations owned of a understanding common drawn from the refiner that certain supplied by stations picture circumstantial evidence: “The Sweeney were marketing gasoline two or conspiracy meeting by twilight as a of a per three cents gallon lower than their persons pointed trio of sinister hats prices. To point, appellants establish their together close belongs age.” to a darker witnesses, testimony relied on the of several Loew’s, Inc., William Goldman Theatres v. especially Rodden, but that of James P. (3d 1945). 150 F.2d 743 n.15 Nevertheless, Doherty, Daniel A. Murray. and Glenn B. appellants had the burden of adducing sufficient evidence from which A. the illegal could find concerted action on the basis of reasonable inferences and Rodden is a repre- former Texaco sales speculation. not mere Corp. Venzie v. Unit sentative who part- left Texaco to become a special applying 2. There are reasons for terms of the statute. As Professor Areeda has precept explained, many to a case in which a manufacturer cut off dealers in this situation price cutting complaints competi- tempted suppliers receives tors of a from will be to harass their former particular permit damage Recognizing po- To customer. the with treble suits. the harassment, inference of concerted the action on basis of tential for courts should hesitate receiving complaints expose closely ambigu- alone and thus to supplier’s to scrutinize too liability damage Areeda, defendant to treble would ous refusal to sell. P. Anti-Trust Anal- management’s both pendent ysis 1974). inhibit exercise of its inde- ed. judgment business and emasculate the was that leading Sweeney A. I aware was D’Ippolito, a stock- of William ner marketing where Sweeney strategy in in a managing engaging officer holder and of those retail businesses. attraction products principal petroleum and other was if supplied primarily, he early that as or outlets that He testified complained exclusively, upon posting about retailers based some Texaco major Tex- supplied by price certain than brand pricing by generally stations lower explained that aco distributors. Rodden the areas. both stations complaints

these related App. at 1162a. sup- to stations supplied by and Q. into de- your What factors entered App. at plied by Texaco distributors. other Sweeney as dis- cision to terminate he was not 927a-95a. He testified that tributor? any aware within Texaco discussions Sweeney’s marketing strategy that A. hauling changing Sweeney’s allow- about consequences I of it observed and the March, that he did not ance that I observed .... App. discover the reduction until marketing Q. strategy Is that the re- 799a-801a. previously? ferred to testified he “believed” Texa- Rodden that elements of it. A. There other [were] changed Sweeney’s allowance co complaints because the retailer about the consequence A. As a of the kinds of retail loss of volume at Texaco’s stations. operations apparent- retail that admitted, however, his “belief” Rodden ly acquired wherein the .. . solicited surmise, just unsupported without fac- primary business builder locations App. at The district tual basis. 842a-46a. low, highly competitive price, was a retail surmise of Rod- determined concerning to a if not alarm- outlets law, “cannot, support as a matter of den ing degree did not meet standards contract, combination, jury finding of or service, housekeeping, service capabili- or Texaco and other Texa- conspiracy between that, ty. In addition to we received con- or 1971.” 478 co dealers either tinuing complaints customer from Texaco view, agree. We In our at 255. and, customers motorist customers testimony goes than Rodden’s no further alarmingly, cus- more the best class of merely identifying complaints. We retailer being impacted we tomer that had possible turn to other evidence of con- now heavily, and that was our credit card very certed action. customers, memory my because is that his retail outlets were involved credit card B. apparent irregularities and it was Appellants argue proof of concerted marketing ... relied strategy, forthcoming from the testi- action was also on lowest one of entirely having the mony Doherty, manager A. of Daniel prices, his entirely lowest Appellants Philadelphia region. prerogative, prerogative peo- of those Doherty assert made the actual deci- But, ple away he serviced. the trend distributorship, sion to terminate prestige that had been from service “basing partially his decision objectives of Texaco hallmark strategy.” Brief at marketing Appellants’ marketing, certainly en- my retail career, clear, adversely was was tire impacting, opinion, in our on the entire no testimony provides help Doherty’s integrity Texaco in area. brand theory. appel- Sweeney’s On June Id. deposition at 1602a-03a. following lants introduced testimony Doherty: open On in appearing June court,

Q. Doherty during cross you Sweeney was stated examina- Were aware that Sweeney’s price-cutter tion counsel: in the area? Now, Q. you Sweeney’s did discuss the fact Mr. marketing strategy grew out of Sweeney’s Sweeney failure meet price housekeeping, was a cutter with Mr. service, or capability service standards- Hicks, prior Sweeney’s termination? practices contrary prestige to “the service I point yesterday, A. made the Mr. . that had been the objective hallmark and Kramer, regarded Sweeney that I never marketing”-and Texaco retail resulting I price nothing as a cutter because knew Third, complaints. customer these concerns Sweeney’s I know pricing. about don’t Doherty led to the decision to terminate for, what he sold his retail so I couldn’t Sweeney’s distributorship. price characterize him nev- as a cutter. I Appellants maintain that the jury should er have. permitted have been to infer from this tes- that timony Doherty decided to terminate Q. Doherty, Now isn’t Mr. it a fact Sweeney because Texaco received com- your deposition you that at time of plaints Sweeney’s from competitors that one among many said that of the factors Sweeney was underselling them. This in- your .. . that entered into consideration is impermissible. ference depo- both his Sweeney to terminate was pricing court, sition Doherty testified that practices Sweeney supplied sta- although he generally was aware of Swee- tions? ney’s pricing policies, he did not consider policies these unacceptable except insofar as they adversely Sweeney’s affected customer No, A. sir. service. In his deposition he flatly stated So, Q. you’re saying still that pricing pricing that Sweeney’s prerogative. was your view had effect on deci- your no Appellants would jury have the infer that sion? Doherty’s explanation asserted was mere Yes, A. sir. pretense Doherty and that actually termi- 1593a, App. at Sweeney’s 1605a-06a. nated agreement part of an illegal scheme. sup- Absent some evidence Appellants suggest testimony this appellants’ porting theory, we will as- provided quantum of evidence neces- Doherty sume lied about his reasons. The Appel- to the sary get jury. their case correctly prevented district court Doherty’s deposition lants’ best case is speculating from on the existence of con- Sweeney’s distributorship statement on spiracy the basis of such meager evi- terminated because of mar- dence. keting strategy. strategy, Sweeney That maintains, was, words, Doherty’s “based C. upon posting than generally lower Appellants rely also on Glenn Murray’s B. major prices brand area.” But Do- testimony, arguing Murray’s belief herty immediately explained that he includ- “that had terminated be- ed “marketing other elements of the strate- of Sweeney’s competitive cause abilities as gy consequences empha- and the He it.” against other Texaco retailers and wholesal- sized hav- entirely “relied supports Appellants’ ers” their claim. prices, the lowest or one of the lowest portions Brief at 17. An examination of entirely [Sweeney’s] preroga- which is his by appellants the record relied on discloses tive, prerogative of he people those no evidence in support argument: added). (emphasis serviced.” Id. at 1162a Q. I your testimony take it you personal knowledge why have no light in the Viewed most favorable to Sweeney? Texaco wanted to terminate appellants, per- only three reasonable and knowledge, personal A. direct no. [N]o missible inferences relevant what, Q. Tell any, knowledge us if First, testimony. lawsuit flow from this have, you do direct indi- whether object Texaco did not low rect? prices. Pricing “entirely” Sweeney’s prerogative. Second, over Texaco’s concern hauling stantially. Clearly, by lowering the Well, just general it would A. allowance, interest, had Sweeney and self

feeling that J. Sons Texaco acted in its E. operation literally expanded contrary their proceeding to its and was not [to] up product they picking where were point change interests.” “own economic virtually delivering Westville $58,000 year on sales to Swee per saved it instances, within well door in some next undisputed negates fact an infer ney. This terminal, miles, 15, 20 miles ten might exist if of action that ence concerted for hauling allowances being granted satisfied. both factors of Venzie were And, aas up to Pottstown. distance [the] Moreover, the record indicates result, they much better com- were in a complaints began years five before have position than others would petitive until question, and continued the acts been. eight years after Texaco altered App. at 1347a-48a. Sweeney. There is no evi- agreements Murray’s testi- cannot conclude that We of showing frequency the com- dence that of conjunction with mony, alone or in changed frequency plaints or whether others, of case concerted made out strongly any These facts militate at time. testimony did not refer Murray’s action. the com- against a causal relation between of complaints price cutting of Furthermore, plaints and Texaco’s actions. complaints. testimo- response to such His allowance change admittedly personal knowl- ny, not based on per gallon.4 was than one cent It less edge, weight or no was entitled little accept appellants’ difficult to assertion feeling” he judge. “general the trial cost affecting an action Sweeney’s competi- expressed concerning response to of a cent was taken in fraction support an inference of tive cannot position complaints citing sev- price differentials of any buttress inferences concerted action or cents, taking eral even when into account testi- of concerted action drawn from other gallons the millions sold. mony. Cernuto, Appellants urge that Inc. Rodden, testimony of Putting aside the Corp., (3d 595 F.2d 164 Cir. United Cabinet Doherty, Murray and the others on 1979), agree requires result. We different rely,3 appellants appellants have failed with the it does not. show that Texaco’s actions contradicted Appellants argue Cernuto stands Speaking refiner’s economic self-interest. proposition that when a manufacturer Seitz, through Judge Chief our court supply terminates a distributor’s because of generally “two considered isolated elements complaints from other distributors concern- establishing evi conspiracy critical in cutting, these actions make out (1) a parallel business behavior: dence action. proof claim without concerted § in contradic showing of acts defendants reject Appellants’ Brief at 22-23. We this .. . tion their interests own economic interpretation. simply Cernuto decided a mo (2) satisfactory demonstration of that cut-off distributors in these circum- Venzie agreement.” tivation to enter an prove anti-competitive stances need not ef- Corp. v. Mineral Products United States 1309, 1314 prevail fects to in a 1 lawsuit. Such 1975) (cita F.2d unreasonably se” omitted). “per one action restrains tions Venzie sets forth circum trade. F.2d 170. establishing conspiracy means of at Rodden, complaints, Doherty, Murray, but 3. In addition to the conclusion appellants testimony objectionable. practices App. Paul B. also relied were not at Hicks, Sales, 1053a, 1078a-80a, United Texaco Vice President lII4a-I120a. Enstice, States, and C. Texaco assist- Edward regional manager. Appellants’ ant wholesale Prior to June received best, merely testimony Brief at 17-18. At repeats gallon. per $.0146 allowance After June testimony showing knew other per gallon, $.0069 or a the allowance concerning complaints of retailer 309a, App. $.0077. 497a. decrease of policies. pricing Investigation followed

115 question appellants retailers, contend Cer- other The Sweeney intro- resolved was not before the court. In nuto conspiracy duced no evidence between Cernuto, the district defend- granted court Texaco and retailers wholesalers. judgment, motion for con- summary ant’s the absence evidence that Texaco decided cluding plaintiffs prove could not to terminate because of competi- actions constituted unrea- defendants’ complaints tor and evidence of con- such a The restraint of trade. sonable would spiracy, improper have been for court, using Justice Black’s formulation in allow the jury speculate court to on v. Corp. Northern Pacific Railroad United the cause for action. States, 2 356 78 L.Ed.2d S.Ct. (1948), observed that the action 545 while D. “pernicious competi- have a on did effect” tion, “redeeming it was vir- not devoid teachings The of the Supreme Court are Corp., tue.” Cernuto v. United 448 Cabinet clear on may when matter be submitted (W.D.Pa.1978). 1334-37 The jury: actually enhanced manufacturer’s decision essentially The matter is be one to competition among manufactur- different particular worked out situations and noted, Thus, ers. district court types for particular of cases. Whatever prove necessary could ele- plaintiffs formulation, may general be the the es- Although of their case. this court ment requirement sential specula- that mere rejected Cernuto’s anti-com- prove need to tion duty not be allowed to do for proba- effects, petitive we did not obviate a show- facts, tive after making due allowance “unity purpose design or common reasonably possible for all inferences fa- Tobacco, understanding.” American voring party whose case is attacked. U.S. at 66 at In sum- 328 S.Ct. States, Galloway United 319 U.S. marizing the decision we said: 1077, 1089, 63 S.Ct. L.Ed. United, prove If Cernuto can at trial (1943). reviewing applies A court the same Lappin protect conspired Famous standard to decision judge a trial price Cernu- competition Famous granting a motion directed The verdict. to, and that terminat- Lappin United and appellate court must consider the record as ed Cernuto at and in request Famous’ light a whole and in the most favorable end, pursuit of a then it can related non-moving party, drawing all reasona theory prevail price-fixing on a notwith- support If ble inferences its contentions. standing any impact its failure to show conflicting no reasonable resolution of the competition involving kitchen cabinet evidence and inferences therefrom re could Pennsylvania. sales Western Of judgment non-moving sult in a for the course, may trial be defendants party, appellate court must affirm evidence able demonstrate that lower court’s decision. Metal See Columbia plaintiff not at does all conform to what Co., Inc. v. Kaiser Culvert Aluminum alleged. Corp., (3d Cir.), Chemical 579 F.2d 20 cert. added). (emphasis F.2d at 170 Cf. The denied, 214, 58 Enterprises, Film Inc. v. Paramount atre (1979). 537, 541, Distributing Corp., 346 U.S. (“Circum (1954) 98 L.Ed. 273 legal The role in our tradition jury’s prob parallel be consciously stantial evidence of ably represents unique modern America’s may heavy have inroads into havior made in the trial of civil Its characteristic cases. judicial con the traditional attitude toward minimized, be impor role nor its cannot spiracy; parallelism’ but ‘conscious has not dissipated tance one iota. Yet the limits yet conspiracy read act entire out jury’s always recognized. role must ly.”). conger as found jury translates fact agree ies of We with the district relevant evidence on controverted engage from the made does not complaints aside evidence of factual issues. permissible allow no of process until the inference the ulti- stage of this the final legal party. that It urged by opposing the critical decision the mate fact court makes to submit the person is evidence to could there sufficient that no reasonable decides resolving conflicts in purpose of jury for the on suggested conclusion the basis reach the permissibly or evidence inferences the resorting to of the hard evidence without evidence, In re the or both. drawn from guesswork conjecture. permit jury or To a the moving jury, case from the court to of ultimate fact draw an inference the “protecting the task of undertakes vital is to substitute under these circumstances powerful law from principles neutral of logical probability for experience the of scope law-compas the of the forces outside specula- “mere what the courts describe as Rutherford v. Illinois prejudice.” sion and States, v. Galloway tion.” United (5th Cir.), R.R., 278 F.2d Central 1089; at Metal S.Ct. at Columbia denied, 364 cert. Aluminum & Chemi- Culvert Co. Kaiser (1960). Corp., cal 579 F.2d at 25. when, especially The crucial court’s role is Logicians process one of reach- describe case, here, plaintiff’s and therefore as ing an ultimate fact from insufficient basic liability, solely is the defendant’s based post fallacy. cause or hoc facts as false illegal The action circumstantial evidence. reasoning se- fallacy consists of from at be inferred from the facts shown must is, assuming a quence consequence, that conclusions based on trial. Inferred factual two causal connection between events only are permitted circumstantial evidence follows the other. For merely because one when, that, expe- human and to extent fallacy this reason the is often referred probability rience that certain indicates a (after ofepost ergo propter hoc hoc that from the consequences can and do follow this), this in consequence and therefore of The inferences basic circumstantial facts. explains an the na- expression which itself permits the to educe in a jury that the court ture of the error. significantly not courtroom do differ Here, properly conclud- district court beings daily reach inferences rational ed that the basic facts adduced at trial were probability informally accepting or ar- jury insufficient to find for allow the riving presented when with conclusion appellants. basic record facts were hard, per- A court some or basic evidence. Sweeney’s competitors of com- that some jury mits the to draw inferences because plained undersold stations experience in endeavors. this shared human gallon, per one to three cents them McCormick, generally, Handbook See Texaco “guessed” did not know but 1972). Rodden Law edition of Evidence 289-96 acted to terminate because Perhaps only ex- distinction between complaints, Murray surmised tracting from circum- these factual conclusions daily evaluating Sweeney’s ability to stantial evidence in life and in the jury’s drawing or get long hauling courtroom is act allowances for short deliv- drawing preceded by not an is eries, consequences inference and that certain judge’s instruction. The instruction serves directly not marketing strategy guide jury through process of some competitive position related to The court ordered consideration. informs figured Doherty’s into decision terminate jury weigh that it or must narrative record, scanty Sweeney. Faced making credi- presented, historical evidence removed the is- properly bility findings appropriate, and when then jury. It sue concerted action from are reason- draw those inferences that or insufficient narrative determined that reaching able in a verdict. had been submitted evidence historical decision that Texaco’s permit the conclusion grants ver- When a trial court a directed complaints specific a reaction to the case, the dict in a circumstantial evidence Moreover, was devoid the record received. legal court makes a determination that among Swee- action proof concerted in evidence narrative historical matters cases, ney’s competitors attempt and Texaco. The court specifically repudiating the concluded that could not infer this possible Ninth view that Circuit to find ultimate fact from basic facts evi- attempt monopolize without such engaging pure post dence without hoc proof. Id. at 1348 n.17.

guesswork. We will fault the court for gasoline To establish that Texaco these determinations. alone constituted a relevant market or sub- market, appellants prove

III. had to that Texa gasoline co was not reasonably considered The district also court directed a verdict interchangeable gaso brands other for appellants’ Texaco on claims Texa- that gasoline by signifi line and non-branded co attempted conspired or to monopolize the large cantly number of consumers. Brown gasoline market in violation 2 § States, 294, v. 325, Shoe Co. United 370 U.S. Act, of the 15 Sherman U.S.C. 2. The § 1502, 1524, 82 (1962); S.Ct. 8 L.Ed.2d 510 explained court “Sweeney that has failed to United v. E. States I. duPont de Nemours & produce any from a jury evidence Co., 377, 393, 395, 399-400, 351 U.S. 76 S.Ct. gasoline could find that Texaco constitutes 994, 1006, 1007, 1009, (1956); 100 L.Ed. 1264 product for 2 purposes.” market 478 § Columbia Metal Culvert v. Kaiser Co. Alu appellants’ at 267. We find conten- minum Corp., & Chemical 579 F.2d at 26- tions on this devoid of issue merit. evidence, 27. There must be for example, First, plain hold an we antitrust “industry public recognition or tiff in appeal theory to the advanced at as separate submarket economic entity, There, Sweeney represented, trial. product’s peculiar characteristics and so, properly point any the focal uses, unique facilities, production distinct damage discussion of 2 is the claims § customers, prices, distinct sensitivity to By issue of market. dated relevant letter changes, and specialized vendors.” May Sweeney agreed that Shoe, 325, Brown 370 U.S. at 82 S.Ct. at if [Sweeney a court in v. and/or 1524; Metal, Columbia F.2d at Ap 579 27. a rele does not determine that Texaco] pellants offered no such evidence. product vant is lim market submarket gasoline,” ited to “Texaco then Texaco The evidence mandates conclu has not violated Section 2 of the Sherman range sion that the of commodities “reason Act. ably interchangeable by consumers for the permit appellants We will repudiate not purposes” same gaso includes all brands of agreement. Inns, American See Motor line and that product there are no submar Inns, Inc., 1230, Inc. v. Holiday 521 F.2d assertion, kets. By Sweeney’s own gasoline (“AMI (3d 1975) 1246 Cir. will be bound fungible is a commodity. Sweeney itself its own analysis open in court of issues continually bought gasoline from other re litigated.”). to be Moreover, finers. testimony uncontradicted Moreover, theory of Ninth Circuit indicated that Sweeney’s gas stations com by Sweeney support argu peted cases cited only stations, not with Texaco but Computer ment-Greyhound Corp. Inter also with other brand and non-brand sta Corp., national Machines Business 559 F.2d tions. Similarly, the record shows that (9th 1977), denied, 488 Cir. cert. Sweeney competed 434 U.S. with other wholesalers 782, (1978), 98 54 S.Ct. offering non-Texaco App. fuel. at 620a- Co., Lessig 31a, 735a-37a, 760a, v. Tidewater Oil 327 F.2d 855a-56a, 916a-18a, (9th denied, Cir.), 459 cert. 377 84 957a-62a. Paraphrasing the conclusion by (1964)-was 12 1046 Justice, L.Ed.2d re Judge, now Stevens in Mullis v. jected by this in Coleman Co. v. Motor Arco Corp., Petroleum F.2d 502 296-97 1975). Chrysler Corp., (7th 1974) (footnote F.2d 1338 525 Cir. omitted): “Under Coleman held that definition of expressly kind economic analysis employed by relevant market critical majority § both the and the dissent in United independent tion other refiners and & de Nemours v. E. I. duPont States ability severely limit Texaco’s L.Ed. dealers would Coleman, F.2d at 1348- prove that sales See clearly failed to to succeed. plaintiff area products petroleum [the

[Texaco] a relevant market.” constitute question] Accordingly, agree we with the district value of appellants produced contend no evidence Appellants court that gaso- gasoline establishes Texaco demonstrating Texaco trademark that Texaco separate relevant submarket. interchanged gasoline easily line with other sta- that because Texaco They separate product also contend market. and constituted product fuel a can sell Texaco tions intended Nor it be inferred that Texaco can Accepting for exists them. submarket monopolize gasoline entire market to the conclu- would lead arguments alleg- these Jersey. New claim southern of a trade- every manufacturer prevail sion monopolize cannot ing conspiracy to power over monopoly product marked appellants’ to establish a failure because legal precept stands product. No appel- Thus conspiracy, as discussed above. has Court proposition, Supreme as the this properly removed from lants’ 2 claim § emphatically held: jury’s the consideration. monopo that have can theorize we

[0]ne every nonstandard competition in listic IV. commodity with each manufacturer ized by alleged violations Tex Sweeney price production having of the and power Act, 2(a) Clayton of the as amend aco of § However, power this product. his own Act, 15 by ed Robinson-Patman U.S.C. the that, say, or soft-drink let us automobile damages 13(a), and for both and asked over their trade manufacturers have injunctive The direct relief.5 district court power is not the products marked Sweeney the dam against ed verdict on illegal Illegal power monopoly. makes an claim, concluding Sweeney age had com appraised in terms the must be prove In its role as damages. failed to product. the petitive market for factfinder, Sweeney the court found that v. duPont de Nemours & United States E.I. injunctive had its case for not established 393, (foot Co., at 351 at 1006 U.S. issue is relief. The Robinson-Patman also, Metal, omitted). Columbia note See us in two different con therefore before F.2d 27 579 n.11. texts, aspect by damage reviewable this the If, hand, applicable review relevant mar- court on the standard of on the other the verdicts, injunction the all and the motor fuel sold in area directed ket all stations, by court the stan aspect could not mo- reviewable Texaco Sweeney reviewing legal error. Because we by driving dard for nopolize that market court’s construction agree of Texaco with the district price of business. The retail out denying Act competitors by Sweeney’s the Robinson-Patman gasoline sold claim, injunction with its were deter- prices wholesale of Texaco fuel no Sweeney proved condi- viola large by extent market conclusion that mined act, we do reach the issue of involving all tion of the supply and demand tions gasoline. Competi- damages.6 and non-brand brand Philadelphia Enterprise v. Ter in Freedman 5. The Act claims asserted Robinson-Patman Co., Company (3d Prod- Mission Oil and Petroleum 301 833-34 Gas Auction F.2d minals V, Company Cir.), denied, in section infra. ucts are discussed 371 S.Ct. cert. 83 9 (1962). agree 67 We with the district L.Ed.2d Swee to submit refused district court illegal that the of the discrimina damages amount ney’s damages on the for claim quantify if tion Sweeney can ground com used to establish failed pur plaintiff Enterprise that the favored damages. In demonstrates pensable It relied on Cir.), dus., Co., prices in an amount chasers lowered their equivalent 457 240 F.2d Inc. Texaco illegal they denied, received. benefit cert. 353 U.S. S.Ct. analysis Enterprise, (1957). adopted 459-60. See 240 F.2d at We injunc (1974); either plaintiff seeking A Comments 816 Utah see Pie Co. damage tive Baking relief under Robinson v. Continental must that the Patman Act demonstrate de 18 L.Ed.2d price against (1967). proper fendant has discriminated in comparison deter- plaintiff mining and in favor of at least one of price whether a discrimination has It plaintiff’s competitors. also must occurred is prices charged between the prove “may .. . two discrimination different customers. therefore We re- ject lessen substantially competition.” Sweeney’s argument As we that it shown opinion, employed improper read the district court’s merely showing discrimination grounds, operating together, deny charged these that Texaco it a different effective ing Sweeney’s injunctive price points claim for relief. at two distinct in time. Although the district court sat as factfinder Sweeney argues that the formula for cal- claim, injunction on the its conclusion rest allowance, culating hauling though determination,7 ed not on but a factual on a equal distributors, available on terms to all construction statute. resulted in price discrimination because the

Although has never clarified the price gasoline effective pur- varied from theory underlying its Robinson-Patman Act purchaser. chaser to The variations in claim, in essence it chang- contends arose because Texaco calculated gasoline pickup point from West- differing allowance based on the distances Macungie, effectively ville to im- plant between each distributor’s bulk posed discriminatory price on it. Swee- point, Texaco’s pickup using the lowest rate ney alleges by comparing discrimination carrier, among common contract carri- price charged prices: it to two different er, delivery Complications or Texaco truck. price gasoline effective it before to arose frequently because distributors did change pickup points effective distance, not travel full but instead price gasoline to other distributors whose gasoline delivered the from directly Texa- storage bulk facilities were located farther co’s pickup point nearby to retail stations. points. Sweeney’s from pickup their claim distributors, practice This allowed including confusing more because it has not ex- Sweeney, to travel fewer than miles plained whether the attack is the haul- hauling compensated allowance them for. ing system as se per allowance a violation distributors, advantaged The most there- Act, of the Robinson-Patman or on the fore, plants ones were the with far bulk appliction system Sweeney. to Nei- pickup point, distant from the but with ther of these alternative theories recov- point. retail stations close to the pickup ery act. states a violation of the hauling indictment of the al- system apparently the Robinson-Patman lowance

Under concentrates on Act, price separate aspects. First, two requires Sweeney alleg- discrimination “at least completed by changing pickup point two sales same seller at es that its from prices purchasers.” Macungie, differential different Westville to Texaco eliminated Weston, Oppenheim S.C. Unfair advantage put & G. Trade its locational it at a Practices Consumer disadvantage respect Protection: Cases with to other distribu- point pursuant prove competitors failed the distribution to contractual that its lowered rely allowing prices, provision point their and thus on the use of the most eco- cannot Texaco, 158a, alleged illegal App. amount of the discrimination to at and that Tex- nomical to damages. changing savings by establish Swee- aco realized a cost Macungie. ney’s point Westville to Other from switch, conspir- relating to issues such explicitly 7. The court noted that it was not predatory acy competitors submitted, addressing, nor had Texaco a cost intent, justification in to the Sher- are considered relation defense. 478 at 283 n.3. claims, supra, parties for lack of and fail It relied on facts on in man Act which the were e., agreement, /. substantial that Texaco sufficient evidence. chose persuaded We are Second Second, Sweeney alleges that tors. Parts, reasoning FLMin Collision as calculated was inher- Circuit’s hauling allowance Ford Motor 543 F.2d 1019 discriminatory, replaced Inc. v. ently and should denied, 1976), hauling system “rational” allowance cert. with a (1977), altogether in favor of uniform scrapped or 51 L.Ed.2d reject position We both prices pickup point. supports uniform at arguments. applicable to all customers pricing formula price under the act.

is not a discrimination FLM, prices to charged Ford different A'. to the func parts according customers analysis, argument our the first Under tion, wholesale, retail, repair, such as merges not into the second. does In conclud performed. that each customer allege, no evidence to sub- and introduced price practice was not a dis stantiate, that Texaco deviated from crimination under the Robinson-Patman switching his hauling formula allowance Act, price the court reasoned that the dual Westville, from pickup point far available, theory but facility, Macungie, Sweeney’s storage fact, It concluded purchasers. to all are storage facility. We much closer to his equality Act of treat requires . .. therefore, faced, with a allowance purchasers, but does not among ment formula, applica- uniform structure and adopt single uniform require seller tion, ef- produces in the differentials price . under all . . This circumstances. dis- gasoline fective sold to Texaco principle applied in cases which has been alleg- argument first tributors. 2(a) pricing no of § found violation produced no formula es more than that the which, prices plans though varying ac higher price to him than to other effective sale, cording different terms of were cannot argument distributors. The first purchasers. equally administered all persuaded we are that uni- succeed unless application form the formula violates omitted). hold, (citations Id. We act. therefore, failed estab- the hauling

lish that allowance formula dis- criminates in violation of the Robinson-Pat- B. man Act. sys- allowance The attack on prior system holding tem that such a discrimi- Our is not inconsistent assumes merely Supreme in differ- decisions that have found nates because it results a Court pricing Al- formulas violative of the act. In price ent effective to each distributor. 37, though said 68 Supreme Court has that “a FTC v. Morton Salt 334 U.S. 822, (1948), price meaning within 92 L.Ed. 1196 the Court discrimination S.Ct. difference,” price quantity provision merely is held that Morton discount Salt’s Anheuser-Busch, Inc., 536, system largest FTC v. 363 U.S. violated act because 1267, 1274, actually 80 S.Ct. 4 L.Ed.2d 1385 discounts were unavailable to the (1960), reality distributing great majority of Morton’s customers. Id. the business 826; 42-43, large mi- 68 also Mueller gasoline geographic region over a at at see S.Ct. FTC, (7th 1963), against elevating pas- isolated Co. 323 F.2d 46 litates this v. denied, sage an definition.8 cert. 84 S.Ct. 12 all-inclusive U.S. Anheuser-Busch, parties harmed in In the Court addressed a Anheuser-Busch were com- Anheuser-Busch, problem petitors “primary-line price who be af- known as discrim- would Anheuser-Busch, ination,” regardless of whether in which a beer fected Anheuser-Busch manufacturer, equal price charged prices in sold at a lower to all its customers St. its beer case, equal it in other In St. Louis market than it sold Louis. this treatment of custom- price places country. alleged gasoline in the The FTC ers is the refiners, issue because other Texaco, competitors beer discrimination to of other the detriment are not before market, selling the St. Louis manufacturers the court. Supreme allegedly agreed. Court (1964). emphasized age The Court between the actual shipping point and major purpose that a of the Robinson-Pat- storage facility. the customer’s bulk man Act was to eliminate the competitive is formula therefore not discriminatory. advantage buyer large of a “over small Sweeney responds arguments. with two solely buyer large buyer’s because of the First, it notes get that customers of Texaco quantity purchasing ability.” 334 the benefit of the allowance on based dis- us, at 826. In the case it before tance from plant plant, their to Texaco’s distributors, Texaco, is the not who deter reality but in rarely travel the full distance. mine where to their place storage bulk Because Texaco is aware of the common distributors, plants, Texaco, it is practice delivering gasoline to retail sta- they who decide which retail stations will directly tions from plant rather supply. Texaco no control over those facilities, from storage than the bulk Swee- decisions; the hauling calculates allow ney argues, Texaco is in sanctioning fact solely plant’s ance on the bulk location discriminatory prices. Sweeney asks this pickup point. relation to the nearest On o. point mandate f. b. shipping record, this we cannot conclude that Texa pricing to eliminate this abuse of the haul- any co’s formula forecloses distributor from ing allowance. rejecting argument, In this advantageous hauling allowance. The rely we on teaching that the Robinson- buyers, record also fails to show small Patman Act should not be construed “in a whom act primarily was intended to manner which runs counter to the broad protect, disadvantaged are by the formula. goals which Congress intended it to effectu- Nor does Corn Co. Refining Products Inc., Meyer, ate.” FTC v. Fred 390 U.S. FTC, 65 S.Ct. L.Ed. 904, 908, 19 L.Ed.2d 1222 (1945), preclude the result we reach. (1968). Sweeney’s argument apparently price Corn operated Products delivered perceived based some duty of a manufac- system glucose for to all sold its customers turer assure that uniform discounts are throughout point” the midwest. The “base not abused customers. Even if we were for its calculation of the delivered was persuaded supervision that closer plant although its in Chicago, Corn Prod- hauling allowance would be better commer- actually glucose ucts delivered practice, impose cial we would decline to City plant Kansas to customers near particular pricing strategy on a market as plant. favoritism, The result a built-in complex gasoline as the merely market be- unjustified by delivery, the facts of system cause the may imper- current Chicago customers in the area. Corn Prod- Indeed, fect.9 support the record fails to ucts important differs from this case in an case, proposition competition respect. manufacturer market, as distinguished from utilizing points, particular shipping two but calcu- competitor, lating freight mandating would benefit charges using as if it were our only approach urged one. result was that customers inflexible by Sweeney. City plant close to the Kansas were arbi- Alternatively, Sweeney would have deprived trarily advantage locational require calculate, us Texaco to on a station by similar to the one held customers close to by basis, station mileage the actual Instead, trav Chicago plant. they were making elled placed great distributors their disadvantage in an indus- requirement impose deliveries. This try in which of a would “differences fraction a substantial administrative on cent ... sufficient to divert burden Tex business [were] aco, requiring adjust from one to it to manufacturer another....” the allowance on 742, case, Id. at 65 S.Ct. at 969. this all sale sale basis. It would also eliminate relevant allowances are calculated mile- ability hauling on Texaco’s to base allow rejected Refining FTC, 737, Congress 726, 9. an amendment to Rob- Co. v. 324 U.S. 65 S.Ct. 966, 961, (1945). required inson-Patman Act would f. 89 have L.Ed. 1320 shipping point pricing. o. b. See Corn Products 122 harmed, damages directly extent of its rates for the rates since on established

anee corresponding conclude, to each We points, allegation.11 to multiplicitous related this station, available. readily not be may therefore, retail insuffi- Sweeney produced application the evenhanded Given jury question, or cient evidence to create formula, do think the Robinson-Pat- we not injunction, to on this issue. justify an requires impose us to this burden man Act court’s order di- Accordingly, the district Moreover, Sweeney has failed on Texaco. Sweeney’s on recting a verdict for Texaco alleged fail Texaco’s demonstrate that damage Act claim and Robinson-Patman in the most its allowance ure calculate injunction claim will denying the order the substantial may have precise manner be affirmed. by the competition required act. effect on Bros., Distilling Inc. v. American Janich See 1977), 848, (9th Co., 855 n.6 Cir. 570 F.2d V. 103, denied, 829, 99 58 cert. 439 U.S. S.Ct. contentions We have considered other (1978); Air In International L.Ed.2d 122 presented by Sweeney, Mission Gas Oil dustries, Excelsior 517 Inc. American Compa- Products Company, and Petroleum 714, (5th 1975), cert. de 721-22 Cir. F.2d no in the ny. We there was error conclude nied, 47 L.Ed.2d 424 U.S. choice, legal or interpretation, application Manufacturing (1976); v. Tex M.C. Co. 349 by the do Foundries, Inc., (5th precepts12 517 F.2d 1066 as denied, 1975), 96 regard clearly Cir. cert. erroneous the district (1976); Lloyd A. plain- S.Ct. findings denying of fact in court’s FTC, Fry Roofing Co. v. 371 F.2d injunctive for relief. The tiffs’ claims 1966). Indeed, (7th allegations Cir. plaintiffs that Texaco failed demonstrate competitive effect are related adverse violated 1 and 2 of the Sherman Act. §§ pickup point change requests plaintiffs’ On this alone the basis Macungie. from Westville injunctive properly for relief were denied. which an failed to introduce evidence from granted, June the court On drawn that the allow inference could be part, partial summary motion for substantially per se has a ance formula Mission’s and Pe judgment dismissed competition, rather than effect on adverse damages. claims for The district troleum’s it, competi merely effect on an adverse correct. court’s decision was Neither tor. purchased companies these fuel from Texa response is Sweeney’s second that Texaco co, but were customers. Conse application has from uniform deviated Illinois, quently, under Illinois Brick Co. v. Only is cited formula. one instance 720, 97 52 L.Ed.2d 707 from the allegedly deviated (1977), Corp., and Klein v. Lionel 237 F.2d not address formula. We need 1956), they claims cannot assert deviation constituted a argument this 2 of the damages under Sher §§ of the act because violation 2(a) Act the Robinson-Patman man any way it was in prove failed both that and, deviation10 if were Act. affected 6, supra. Undisputed See trial 11. note evidence at indicated Company’s Oil Texaco increased Farm & Home Company tried specifically reject appellants’ allowance after Sun Oil 12. We assertion distributing Farm Home to cease to induce & refusal of error based the district court’s gasoline Voluntary Texaco to distribute Sun Temporary and instead of admit evidence Allow- gasoline. assuming reject (TVA’s). gave Even could its ances Texaco wholesalers competition meeting defense under order assist re- these allowances in to Texaco 2(b), 13(b), respect to meeting 15 with this price competition § § U.S.C. other tailers from transaction, Sweeney alleged trial, Sweeney neither nor retailers. Prior to conceded by proved particular nothing it was this harmed to do with the The TVA’s had case. correctly event. TVA evidence. district court excluded court, sitting

The district as trier of determining which inferences can rea- fact, sonably concluded that Texaco was entitled to be drawn from evidence before injunctive declaratory my disagreement and relief it. on But with the majority goes deeper alleged than whether counterclaims. Texaco that Swee the trial court overstepped gasoline ney commingled permissible boundary with non- Texaco case, this admittedly an ad hoc gasoline, gasoline Texaco sold non-Texaco determina- n significantly, tion. More I product disagree also and diesel fuel as Texaco and used majority interpre- in its restrictive carrying trucks the Texaco brand to deliver quantum tation to the of evidence need- fuel. it non-Texaco Texaco asserted that bring ed to action within 1 of the Sher- grounds. § was entitled to relief on various man Act. I the majority believe retreats presented Based on the court evidence court, prior decisions of this disre- concluded that conduct violated gards behavior, the realities of market and Act, 32(1) 43(a) of the Lanham §§ ignores produc- the virtual impossibility of 1125(a), 1114(1) U.S.C. 1 of the §§ § ing direct evidence unlawful combina- Jersey Competition Act, New N.J. .Unfair I fear tions. the majority’s decision 56.4-1, 201(g) Jersey S.A. the New § § unduly hamper will plaintiffs their abili- Act, Unfair Motor Fuels Practices N.J.S.A. ty to conduct type litiga- of antitrust 56:6-2(g), and the law § common of unfair tion. competition, and breached its distributor agreement. At re trial Richard I. fuel, peatedly commingling admitted infringement, the other evidence of unfair A. competition, and over breach contract is gasoline was a distributor of to whelming and uncontroverted. stat stations, discount some which he owned face, plain clear on utes are their and their operated, or usually referred to in market supported is meaning by case law. We jargon as “price-cutters.” price-cut- While affirm essentially court selling products ters are non-branded opinion. reasons set forth in its 478 well-regarded by competitors, their Swee- 277-82. reputation ney’s among competitors Accordingly, judgment we will affirm the even lower because and the stations to respects. of the district court in all it sold price-cut product, a branded gasoline. Under economic theo- SLOVITER, Judge, dissenting. ry based, Circuit upon which the laws antitrust are Sweeney’s competitors sought should have undisputed It is an tenet in the allocation its competition marketplace. meet in the judge/jury functions that trial matter, however, As practical know we pass upon weight court cannot credi- displeased competitors may attempt bility ruling of the evidence in on a motion thwart competition by discounter’s Brady for a directed verdict. v. Southern They much more direct route. seek may 476, 479-80, Railway, U.S. jugular at the competition by thrust (1943); 88 L.Ed. 239 Burchill v. Kear- complaints to supplier, their mutual ney-National Corp., 468 F.2d 384 attempt supplier induce the to take ac- 1972). fortiori, appellate A tion to control or coerce the “offensive” bound the same limitation review. market behavior or cut the discounter Continental Ore Co. Union Carbide & altogether out of the market terminat- 690, 696-97, Corp., Carbon ing its source of supply. (1962). 8 L.Ed.2d 777 I dissent majority’s from the affirmance of the di- case replete law is with instances of plaintiffs’ rected verdict on Act Sherman such action a discounter’s competitors. example, 1 count for two I believe that For reasons. franchised General Motors sought both have majority competition the trial court dealers avert arrogated jury’s themselves function from discount outlets General Motors

124 proceed- to the district courts for further resorting power” the “ultimate by cars supplier, enlisting ings. General Motors’ the and Corp., v. General Motors aid. United States Now, holding majority, directly the to the 16 86 S.Ct. appellants “that if had contrary, states even (1966). Another illustration were in demonstrated that actions appears Uniroyal, Inc. v. Jetco Auto Ser response complaints, to these such evidence vice, Inc., (S.D.N.Y. 354-55 F.Supp. 461 con- necessary would not show the alone 1978), complaints from franchised where affirms At 110. It the action.” certed price compe Uniroyal dealer of tires about “evidence of court which held that district competing from a franchised dealer tition standing competitors’ complaints alone can- the Uniroyal’s led to decision to terminate finding liability under 1 support § not price-cutter. F.Supp. of the Act.” 478 255. Sherman on the Most such cases have been decided sup authority no majority cites circumstances warrant issue whether the complaints proposition that and port the application per approach, se issue responsive cannot constitute a combi action However, appeal. not us on this before conspiracy under the nation or antitrust now, any not serious until there has been relied on four cases laws. The district court competitors’ question in circuit that the support acceptance proposi of that complaints supplier the the dis- about among purposes, For our central the tion. suppli- counter’s market behavior the is this court’s decision Klein v. cases cited response er’s thereto are sufficient action in Works, Inc., 323 Luggage American F.2d necessary constitute “combination”1 (3d 1963). citing In that case to 787 Cir. bring scope the matter within support proposition something Cernuto, 1 of the Sherman Act. In section more is needed to create a combination than Corp., Inc. United 595 F.2d 164 v. Cabinet action, complaints responsive mere recognized (3d 1979), we that when a Cir. court overlooked the fact at the behest of manufacturer takes action Klein decision turned on the circumstance customer, longer such action can no there was no evidence that the manu therefore considered unilateral and is sub- competitor’s facturer ever received the com ject prohibitions to the of the antitrust repre plaints, which were made to its sales Mills, Mannington Congole- Inc. v. laws. directly to it. Id. at 791. sentative Industries, Inc., um 1069-70 F.2d Under that circumstance there could be no 1979), allegations we held that Cir. Thus, combination with manufacturer. foreign plaintiff’s li- Congoleum terminated Corp. court in Products v. Carbon Steel response complaints by “in to” Con- censes Co., (S.D. Alan Wood Steel goleum’s foreign plaintiff’s about licensees N.Y.1968), another of the authorities cited competition foreign to the excessive case, by the district court in this erroneous own licensees’ threats to terminate their rejecting ly relied on the Klein decision claim under the

licenses stated sufficient inference of from the fact of conspiracy cases were decided on antitrust laws. Both complaints customer and the manufactur the manufactur- premise that action appel actions. Id. at The other er’s 588. complaints response er in to the customers’ court case relied on the district late “combination” needed would constitute the here, Westinghouse Corp. Electric v. jurisdictional predicate Sher- meet the Inc., Laboratories, Processing 523 F.2d had not CX postulate Act If that man (9th 1975), analysis no no also contains accepted, would have been been there us returning principal the cases of issue which concerns point judgments to our “contract, Parke, suggestion majority’s United States Davis & 1. The 29, 43-47, 511-13, conspiracy” 1 of 4 L.Ed.2d 505 under section combination or (1960), agree concept, between Act one instead where distinction the Sherman is terms, wrong. simply is was made. discrete It ments and combinations Supreme Court refuted discussion

125 here, showing complaints whether evidence turer complaints by reacts to its customers responsive action constitutes a Sher by cutting offending off the discounter or Westing man Act 1 combination. In the § hampering competition, otherwise this is case, house Electric there were no com not sufficient to a conspiracy establish or plaints plaintiff’s competitors about A long combination. and unbroken series Instead, practices. marketing the court of decisions has established that action expressly compet noted that the calls from which on the surface appears to be unilater- complaints not distributors were but part al behavior can be considered to be of a requests price arrange were for a favorable combination when in light viewed of the Westinghouse ment similar the one had See, surrounding g., circumstances. e. upon plaintiff. bestowed Id. at 674. Eastern States Retail Lumber Dealers’ As- Hence, case very per cannot serve as States, 600, sociation v. 234 United 34 authority proposition suasive for the 951, (1914); S.Ct. 58 L.Ed. 1490 Interstate it was cited the district court. Circuit, States, Inc. v. United 306 U.S. Instead, Ninth Circuit case where a 59 (1939); S.Ct. 83 L.Ed. 610 American presented fact situation similar to here States, Tobacco Co. v. United 328 U.S. considered, the court took a realistic (1946); 90 L.Ed. 1575 United impact complaints by view com- Parke, Co., v. States Davis & 80 petitors and the reaction the manufac- (1960). 4 L.Ed.2d 505 turer/supplier. In Girardi v. Gates Rubber undisputed Given evidence in this Division, Inc., Company Sales 325 F.2d 196 of competitor case complaints, it would be a 1963), (9th Cir. the court reversed the deci- fair complaints inference that such were granting sion district court in a di- designed to elicit some part action on the plaintiff’s after rected verdict evidence Judge Girardi., Texaco. As Pope stated in presented case, jury. to the In that as very “The act of complaining carries the here, plaintiff conspiracy based its claim of meaning: you T want something do the complaints competitor of a and the ” it.’ about 325 F.2d at 202. The district responsive action of the manufacturer here, however, refused to acknowl- cutting sup- price-cutter’s off the source of edge that complaints might such ply. The court constitute stated: the foundation of a Sherman Act combi- It seems us to clear that if the nation since be inequitable would here, appellant, “[i]t facts as claimed receipt mere complaint hold of a Oranges a competitor are that of Gir ardi, cutter, partici creates an inference of a induced and combination be- pated recipient complainant.” in action which resulted in Girardi tween and the being cut off supply Plaintiffs, from a mer F.Supp. course, at 257. do chandise, be precisely then the case would suggest receipt that mere of a com- within the rationale of United v. States plaint is enough passive manufac- turn Socony-Vacuum is supra, Oil for it conspirator. turer into a It is when normally competitor being who is responds the manufacturer com- such by price likely hurt who cutting is to seek taking plaints by qua action the sine against competitor coercive action non of a combination has been created by hurting likely who is to hurt him. We party. the addition of another Further- typical would of illegal think that a case more, the fact mere manufactur- conspiracy to prices fix would arise from er/supplier took some action will not suffice the desire of one dealer eliminate his requisite to establish the combination unless price cutting through competitor concert in response such action were taken to such action with ed the manufacturer. However, were, complaints. then if Id. components of combination have been proven. why Uniroyal,

It the ma- See United difficult to understand States jority Inc., seriously (S.D.N.Y.1969). that if a contends manufac- affecting prices adversely were his business.

B. Hicks, Sales, Jr., Vice of President Paul B. found, majority and the The district court U.S., Texaco, concerning was consulted who suffi- plaintiffs failed to offer agrees, that was also aware termination a infer- permit to reasonable cient evidence of com- attempted to the termination prior Sweeney’s haul- changed that Texaco ence Texaco retailers about plaints of other or its distributor ing allowance terminated Leffler, underselling. Carlos Sweeney’s competitors’ com- of agreement because Inc., wholesaler, complained a had Texaco testimony in plaints. Viewing plaintiffs’ by them, writing directly to Hicks letter dated we in to light most favorable Sweeney’s underpric- September 1971 about grant of directed reviewing on must verdict, ing. found jury have I believe a could complained competitors Sweeney’s

that retail P. was a former James Rodden and in policies vigorously its pricing about representative marketing supervisor and number, complaints were great these that Jersey Eastern Texaco in the and South that management, of concern to Pennsylvania region during pe- the relevant be- Sweeney’s pricing policies and market riod, charge capacity in was in of this part in Texaco’s decision played havior He testified that 60 to 70 Texaco stations. ultimately change allowance in numerous retailers had beginning arrangement. its distributor discontinue being to Texaco about under- complained case, the others this unlike some of In stations, by nearby Texaco which were sold has defend- manufacturer/supplier where Sweeney. where supplied by Unlike cases ground on of unilateral ed its actions inconclusive, testimony vague and such is action, undisputed that the evidence identify seven such Rodden was able complaints, they there were numerous Moreover, complainants. he testified that Texaco, and, even more were received regular meetings by Texaco’s in attended they came to the atten- significantly, staff, marketing manager and the who made of the Texaco officials tion marketing representatives proffered against to take the actions Swee- decisions competition Sweeney stations from to note the majority opinion The fails ney. of explanation for lost volume at some Tex- complaints. or of such Such extent volume Enstice, Finally, aco’s investment stations. from isolated. Nor did complaints were far above, the Texaco official referred also they stem from an individual dissatis- Texaco received com- testified in fact, complaints about competitor. In fied pricing prac- plaints regarding Sweeney’s Sweeney’s by several state- pricing policies retailers, wholesalers, tices from Texaco service station dealers wide associations of transmitted these and distributors. Enstice Texa- subject among of discussion were Smithwick, complaints to R. W. Texaco’s Furthermore, complaints about co officials. manager marketing general of sales to Texaco. directly were made result, headquarters. As a Smithwick sub- Doherty, A. who 1971 was the Daniel sequently Philadelphia travelled ex- Philadelphia Manager Texaco’s Regional of marketing Sweeney’s area first- amine to termi- region and who made the decision hand. distributorship, was aware nate majority that there no concludes complaints retailers and distribu- from jury from which a could credible evidence concerning price-cutting tors actions were permissibly infer that decision. tactics well before he made response complaints. to these draw- copy receiving he example, For admitted conclusion, majority excerpts by Edward C. a memorandum written testimony plaintiffs some of the on which Enstice, Regional Manager, Assistant rely through it to see what wholesale, and combs Texaco, W. A. stating that to it. weight credibility can attached Fluhr, Inc., one of Swee- Fluhr of W. A. course, issue, is not what pertinent had visited ney’s competitors, distributor low to be the reasonable majority deems complain that Enstice to from the tes- inferences that can be drawn decision majority terminate it. The timony jury but what the believes to be the places great Doherty’s stress assertion reasonable inferences that can be drawn Sweeney’s pricing prerogative his testimony. people that of the he serviced. But the standard, proper

When viewed I jury was entitled to discount the self-serv- believe that a reasonable could have ing portion Doherty’s testimony (particu- responsive drawn inference of action. larly light Doherty the fact that is still witnesses, plaintiffs’ Murray, One Glenn employed Texaco) and to draw the infer- significantly who had no connection with ence capitulated that Texaco had to the plaintiff (having either or defendant left pressure competitors. of Sweeney’s 1973), in Texaco testified to his belief that testimony The of these witnesses and the Texaco had terminated because of surrounding support circumstances would Sweeney’s competitive against abilities as jury’s inference that Texaco acted in re- other Texaco and retailers wholesalers. sponse Murray, the employee complaints a Texaco since to numerous was it had action,” to having sure, close the “center of the received. To be only that was not the as employed manager been the district sales permissible inference from the evidence. Philadelphia of the in and as attempted Texaco to show that the motiva- manager prior assistant district sales tion for against Sweeney its actions was the Murray responsible that time. was for complaints received, customer it had and “everything anything” in the Philadel- that commingled Texaco’s gaso- phia thoroughly district and was familiar line with other gasoline. refiners’ But Sweeney’s with exten- Murray’s business. arguments these are to the jury, directed experience knowledge sive at Texaco and of jury, and the acting the reasonable voice the in its way the realities of which busi- of community, the expla- must decide which are ness decisions made lends credence to nations the plausible. are more I doubt Sweeney’s his that marketing conclusion that we would not bound to sustain its strategy, complaints, customer was decision, ultimately however it came out. responsible Certainly for Texaco’s actions. permis- a similar inference the majority’s The statement that because sible, compelled. majority’s albeit not The change Sweeney’s hauling allowance disregard Murray’s of testimony because he per gallon, was less than one cent it “is not refer to complaints price “did of cut- accept” difficult Sweeney’s claim that ting,” at is surprising light .of the change response was taken in to com- Murray’s testimony that repre- Texaco sales plaints citing price differentials of several complained sentatives himto that Sweeney’s cents, illogical. is of The amount stations had “pricing structure ... lower Sweeney’s reduction of allowance does than own retailers were able to [Texaco’s] not go to the of it issue whether was re- ” price. ... sponsive competitors’ complaints. to the testimony Plaintiff also introduced the of Indeed, may Texaco have believed that Doherty, the Texaco official who made the some of Sweeney’s reduction on allowance decision to terminate distributor- part its would permit assuage it ship, who admitted he that was aware that complaints competitors while retain- upon post- attraction was “based ing Sweeney. of That business price major lower generally than may have wanted best both worlds areas,” brand in the its outlets possibility does not foreclose low, competi- were highly locations “a action, form, in whatever was taken in re- price”, tive retail that Sweeney’s “market- sponse complaints to the it received. The ing strategy” entirely having “relied majority’s patently treatment this fact prices”, lowest one the lowest and that usurping demonstrates that the jury’s “marketing strategy” among legitimate elements entered into his function. right in the con- testimony of true affidavits. The majority discounts front, impeach it cites ad-

Rodden, Doherty Murray which cross-examine Apparently it does so because is one of the most funda- in detail. verse witnesses they knew as a rights sought preserved by none of them testified mental to be against Texaco took actions provision fact Amendment Seventh response competitors’ Sweeney in jury trials civil cases. complaints. I that the reference assume & Adickes v. S. H. Kress in the “narrative or historical matters” major- II D the in Part learned discourse (1970) (concurring). opinion objective is to fact such ity’s may issue of whether a combination connection, and that it is intended a causal directly present- be inferred has been most But in- to contrast facts with inferences. produced plaintiff ed the cases where reasonably ferences are all that one can parallel action. In Inter- evidence expect in such cases. States, Circuit, state Inc. v. United Although majority purports take (1939), the 83 L.Ed. 610 difficulty proving cognizance of the finding parallel ac- Court affirmed a evidence, by the conspiracy antitrust direct picture tion motion distributors in re- by require effect will be to noth- of decision by of their lead- sponding to demand one ing than evidence of a causal less direct picture theatre with iden- motion chains competitors’ connection between permitted complex counteroffers tical and complaints The and Texaco’s actions. dis- the other conspiracy. the inference of a On point, fault- explicit trict court was on this hand, Enterprises, Inc. v. Para- in Theatre never ing plaintiff “Sweeney because even Distributing Corp., 346 mount Film U.S. attempted any to evidence that introduce (1954), 273 the 74 98 L.Ed. S.Ct. complain- to responded Texaco either the finding parallel affirmed a that ac- Court any or that it would take ants told producers dis- picture tion motion and response thereto.” 478 at action in refusing to a suburban grant tributors expect 257. It cannot be so naive as to that not theatre first-run features did constitute sophisticated business concern like Texaco conspiracy in violation of the antitrust will which make have maintained records significant What is about these laws. connection, such a causal or that direct our seemingly inconsistent decisions for officers, the of well trained in technicalities given is both cases were to purposes that laws, testify the antitrust will to that ef- respective juries juries their that the so “in recognized fect. The courts have that to could determine the inferences be drawn complex litigation where motive antitrust fact, parallel from the behavior. In in The- roles, leading proof is play and intent the Enterprises, specifically atre stat- Court largely alleged conspira- in the hands of ed, sure, “To be business behavior is admis- tors, plot.” hostile thicken the witnesses which sible circumstantial evidence from Broadcasting System, Poller v. Columbia agreement.” Id. may the fact finder infer Inc., 486, 491, 464, 473, 82 S.Ct. added). (emphasis 74 S.Ct. at (1962). also Norfolk Monu- See Gardens, ment v. Woodlawn Memorial Co. II. Inc., 700, 704, 89 As (1969). majority’s appears 22 L.Ed.2d 658 Justice Black decision to be analogous holdings stated in a different but context: that based on the alternative something competitors’ more than com- of a The existence nonexistence con- or plaints manufacturer/supplier action is essentially a factual issue that spiracy is to show a Sherman Act 1 combi- § needed judge, not should de- jury, the trial event, that, any may conspiracy, nation petitioner, cide. this have case plaintiff provide evi- did sufficient prove impeaching had her case to responsive was to the dence that Texaco’s action appealing store’s witnesses complaints. Part I of this dissent they said was to disbelieve all that if holding. with the Even acted in dealt latter its own self-interest in changing and the district court are correct majority Sweeney’s hauling vigorous- allowance was needed, is “something more” fair ly challenged by Sweeney. Texaco intro- discloses that there reading record is duced two calculating studies the sav- “something sufficient evidence of more” to ings Texaco would designating secure permit go jury. issue also Macungie, Pennsylvania rather than West- ville, “something Jersey The search for more” stems New Sweeney’s pick-up plaintiffs from the line of where the first, cases point. showing savings sought have the trier fact infer have $2,200, about prepared 1966. It is requisite conspiracy combination or unlikely study, made some four action, parallel usually from mere refusals years changed before pick-up Texaco deal, when no direct there is evidence rates, point freight and based on 1966 Sullivan, combined action. L. Antitrust See the basis of Texaco’s decision in 1970. The factor”, (1977). “plus This as it is second study, prepared on the eve called, par- sometimes been used in the request counsel, trial at of Texaco’s allel action cases even in the absence purported to show that Texaco would save evidence communication between the al- $58,000 change from a delivery point. It leged conspirators permit the inference is self-evident could not have of a combination from external factors.2 study relied on a 1979 in making a 1970 course, ease, Of in this there was direct decision. Texaco introduced no cost-saving communication, evidence and therefore studies contemporaneous that were with its requirement “plus of a factor” for that decision change delivery points, purpose superfluous. might a trier of fact conclude that event, In any “plus a sufficient factor” none argued exist. also Tex- by can be found evidence that the actions aco’s study failure to of possibility the re- in taken were contradiction of the actors’ ducing by changing pick-up’ its costs the own economic self-interest. Venzie See point Sweeney’s competitors suggests Corp. v. United Mineral States Products saving that cost was not Texaco’s motiva- 1309, 1314(3d 1975). 521 F.2d This tion. Certainly, a trier fact was entitled key is the to reconciliation of the Court’s to infer from the above that Texaco used decisions in Circuit and Interstate Theatre purported the cost for savings a cover its noted, Enterprises. previously As in both motivation, real was which to meet the permitted those cases the was to persistent pervasive complaints it had question subsidiary decide the what was received about market action. determining in the actors’ self-interest in the Even question ultimate fact if Texaco had known in 1970 that it whether there $58,000 was a combination. would save by changing Sweeney’s pick-up point, inescap- the is conclusion not case, majority In has this the itself decid- change able that such a was to Texaco’s issue, that, stating “Clearly, by ed that low- change Sweeney’s hauling benefit. A in allowance, ering the Texaco acted gas- allowance would reduce the amount of interest, proceeding in its self was not sold, oline Sweeney thereby reduce to contrary its ‘own economic interests.’ profits from Sweeney’s purchases. $58,000 change per year saved it Furthermore, it is not all clear that the at continues, Sweeney.” sales to “This It un- of Sweeney’s distributorship termination disputed negates fact an inference con- ” was in (emphasis certed At 114 Texaco’s self-interest. Texaco does action.... However, added). Sweeney fly-by- Texaco’s claim that not contend that was a explicit Congressional agreement” required by 1 of Sher- In the absence of section the Act, guidelines, unwilling although the man courts have been to such action creates anticom- consciously interdependent by petitive equivalent hold that action effects those from oligopolistic adequate explicit firms in a market is an combination. combination, “contract, for substitute the arranging in its distribution structure is contrary, To the night operator. determining the standard appropriate in wholesaler and distribu- a Texaco been action, joint, should be such if and, present to the prior tor since ample for ar- judged. may There basis relationship with controversy, general its arrangements vertical do guing such usually good, was Texaco per se always not lend themselves to discount on receiving prompt payment in approach, but must be evaluated addition, In Swee- purchases from Texaco. competition. This context of the effect on business, ney its very successful in Judge was considered Adams in issue both itself and Texaco. It the benefit of Cernuto, writing for this court in Inc. sponsored by Texaco won a contest Corp., supra. holding United Cabinet gallon- having greatest increase per approach warranted se age among wholesalers. area here, analogous alleged to those under facts very year And at 249. decision, wrote, marketing he “When a al- distributorship, terminated manufacturer, ostensibly taken though leading Sweeney was Texaco’s distributor of pressure is in fact result from anoth- Pennsylvania/Southern in the Southeastern customer, be scruti- er such decision must area, Jersey purchasing over 28 million New closely unilateral solely nized more than gasoline. gallons of might 595 F.2d at 168. He action be.” law, majority’s view of the Under continued, of a “if the action manufacturer factual issues critical there are two supplier or other is taken the direction finding as whether there was ultimate customer, primari- the restraint becomes conspiracy in case. combination or One ly horizontal in nature in that one customer response is Texaco acted in whether seeking suppress competition by complaints. The Sweeney’s competitors’ utilizing power supplier. of a common were Texaco’s actions con- other is whether Therefore, although the termination such majority sistent with its self-interest. itself, restraint, is, a vertical a situation adversely plaintiffs, decides both issues impact is horizontal and on the deal- desired province jury. invading thus er, manufacturer, Id. not the level.” His recognizes ostensibly discussion verti- III. may, cal and unilateral action on closer anticompetitive analysis, precisely have had plaintiffs In its decision that impact designed which the Sherman Act is produced permit sufficient evidence to I profess to avoid. do not decide wheth- conspiracy, of a combination or inference er fall Texaco’s actions in this case within majority failed to make the neces- was, course, the that mold. That ulti- sary analytic distinction between conduct jury precluded which question mate conspir- constitutes a combination or which deciding by the from directed verdict. hand, acy, one and combinations or con- laws, spiracies which violate the antitrust banc decision of this court In recent en Underlying majority’s on the other. alleging in another case an antitrust con rejection possibility out-of-hand spiracy, we reversed the action of the dis there was a combination in this case granted trict court which had a directed may does be its belief that such conduct based on its conclusion that the verdict or should not violate the antitrust laws. activity plaintiff proved which was unilat However, separate Muko, two issues: that confuses Larry v. eral. V. Inc. Southwestern fairly can whether there conduct that Pennsylvania Building & Construction joint Council, be have or concert- 1979). considered to been Trades 609 F.2d 1368 ed, which conduct looking standard such We reiterated at all cir cumstances, purposes be of anti- jury should evaluated for could have found the agreement liability. trust Consideration of whether which the district court was un liability imposed willing antitrust to infer. Columbia Metal Cul should v. Aluminum & Chemical decisions a manufacturer vert Co. Kaiser business made (3d Cir.), F.2d cert. Corp., 579 32-35

denied, 876, 99 UNITED STATES of America (1978), entry of we reversed the case directed verdict in another antitrust ALESSANDRELLO, Gaetano, where the district court had also deter Appellant in No. 79-2654. inadequate mined there was evidence to requisite allow a conspiracy. find the Appeal LACOGNATA, Salvatore, We noted that the evidence on which in No. 79-2699. challenged, court relied was 79-2654, Nos. 79-2699. Implicit hence was for the these jury. recognition decisions that a mechanis United Appeals, States Court of tic search for direct evidence a combina Third Circuit. away tion diverts consideration from the Argued July 1980. issue, significant appro more which is the Decided Nov. priate treatment of such conduct under the antitrust laws. statutes, designed

Certain such those produce equality opportunity to mi- women,

norities, persons, retarded on one

hand, designed open and those to insure an market, system

economic for all firms in the hand,

on the other stem from conscious

congressional policy judgments about

way in which our should be society ordered. not, can,

Courts but should frustrate those

public judgments by policy engaging ju- through

dicial interposition the imposition

of technical obstacles to achievement of the

legislatively goals. mandated need show that defendants’ ac- part conspir-

tions were of a combination of

acy which falls within 1 of the Sherman approached

Act realistically, must be understanding of the various threads which fabric of business decisions

are unwilling woven. If we are to allow

the jury, brings ex- community’s

perience finding process, to the fact to exer- judgment

cise its making own the rea- evidence,

sonable inferences from we

will unduly, unwisely, have I think

restricted its function in antitrust cases.

Case Details

Case Name: Edward J. Sweeney & Sons, Inc., and Mission Gas Oil Company, Inc. And Petroleum Products Co. v. Texaco, Inc

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 3, 1980

Citation: 637 F.2d 105

Docket Number: 79-2468

Court Abbreviation: 3rd Cir.