*2 gram products, notice thereof MAJOR, Before FINNEGAN and they given defendants and that Judges. SCHNACKENBERG, Circuit offering advertising, for sale or tinued Judge. SCHNACKENBERG, Circuit Seagram selling products at less judgment appeal from a Defendants prices, irreparable stipulated entered December damage of the 1955, will business of enjoined permanently that, plaintiff, unless defendants are selling offering for sale Sea- from enjoined, will further ir- suffer prices gram products less than the reparable in a decrease in its by plaintiff stipulated dealing time to time products in said and others sales Fair Trade Illinois Act1 and Uhe under comply fair with its trade fail to pursu- with contracts made accordance great contracts, all to thereto. plaintiff. ant loss of financial seq. Statutes, 121%, 188 et See. Illinois Revised Ch. challenged competition contract, jurisdiction was unfair Federal suit of defendants, answer is actionable both their damaged person thereby.” final the time a motion argue They hearing now on the merits. said that section “interferes *3 plaintiff federal establish that failed to [purchaser commodity] when he competent evi- that good sells the aid of the will of the prove that to dence was introduced vendor; and it interferes then to controversy, inter- of exclusive protect good against injury”. will $3,000. costs, of the sum est exceeded page U.S., page At of 198 of 299 146 S.Ct., 57 it added: a case must Plaintiff in such 1. " * * * purpose litigation of the sole carry throughout the bur legitimate present showing properly law is to afford a of it den remedy good injury Press, for an to the KVOS, Inc., Associated court. v. will which results use 197, from the of 269, 81 183. L.Ed. 299 57 S.Ct. trade-marks, names, allegations brands or *.” jurisdictional If its (Italics supplied.) adversary any ap challenged by its manner, support propriate must that, The district court did not note by proof. competent McNutt General $3,000 requisite when the for 178, Corp., Acceptance 298 U.S. Motors challenged brought 2 in an action 189, 780, 80 L.Ed. 1135. protection in a federal court for the right belonging plaintiff, burden, a attempt to there is an sustain its In an to important introducing, distinction plaintiff over between two class succeeded diversity objection es of cases. as to its defendants plaintiff which, competency, (which In one class we shall prove tends, the value its tended charges plaintiff A), wrong call class a Seagram products. Its will in the by defendant, by ful acts a or several de past “for the testified that witness Teece acting jointly, fendants have, which or years, $3,000,- excess of or two three injure will, or a for which by plaintiff spent in Illinois ad- 000 was plaintiff protection. case, seeks In a such vertising, promotion, and out- as well as plaintiff injury if shows signs.” district court Thereon the door by or or caused threatened a de finding of that the matter in made a fact fendant, acting or several defendants controversy, exclusive interest jointly, $3,000, amounts to at least $3,000. the sum jurisdiction. federal court has jurisdic- thereupon it had concluded that diversity class of In the other cases tion. plaintiff B), (which we call class shall Distributing Co. v. In Dearborn Old wrongful charges defendant, acts Corp., Seagram-Distillers 299 U.S. acting jointly, several or defendants 57 S.Ct. which, prevented, completely if upheld the constitution- L.Ed. destroy plain- deny for which Act, ality Illinois Fair Trade protection. case, In seeks tiff act, section referred court shows worth reads: $3,000, the federal least court Wilfully knowingly ad- 2. “§ jurisdiction. selling offering vertising, sale for apparent by is made This distinction commodity price any than the less we now refer. to which cases stipulated entered contract A. Class provisions pursuant into Accept Act, General Motors of this whether McNutt v. section offering Corp., advertising, person ance so selling party in fed- Motors sued not a General or is sale 2. 28 § U.S.C.A. enjoin proprietor of the enforce- trict court to restrain eral district court to gather- pirating news providing radio station from for the an act ment of regulation Indiana its use of purchasing Associated Press of the business F.Supp. court, 9 arising members. The district installment contracts of retail out require- sales, ground in- held that the the act was had Although complaint, ment under consideration show now valid. met, and dismissed the suit. jurisdiction, net been forth the set Cir., disagreed, 80 F. Appeals Court of in In- Motors’ business worth General Press 2d held that Associated other facts diana the act and covered jurisdic- requisite fact of tending had shown prove the value Supreme state, reversed

carry tion. *4 in that that business out, Appeals, pointing U.S. 181, page Court S.Ct. U.S. at page page that 57 S.Ct. at page 781, said: by attempt Press Associated “Respondent in- [General Motors] proof by competent show principle vokes the that pay- that was an affidavit effect by value of the ob- be tested by newspaper for members ments made against ject right protected or to be by Press Associated * * * news sold to in the in- But interference. month, upwards $8,000 per were case, not at- stant tempt the statute does “* * -x being imperilled ‘which is prevent respondent from by jeopardized acts of defendant and * conducting There is its business. greatly exceeds said and sum showing that it cannot obtain Dollars, ex- the sum of Three Thousand opera- proceed its license and com- and clusive of interest and plainant worth of the tions. The value or net danger losing mem- said respondent transacts business which berships payments and if defendant’s involved save to Indiana respect pirating practices news said may by it affected be extent that ” Court, enjoined.’ Supreme is not The regula- statutory incidence page page 57 S.Ct. 299 U.S. 201, pro- object or to be The tion. ju- rejecting attempt to show against in- unconstitutional tected given risdiction, said “no intimation is right to free of be terference is the character or extent of the they regulation. The value of that such would suffer [the members] loss, may measured be having respondent withdrawal. any, which would follow en- if allegations support as failed to prescribed. of the rules forcement controversy amount in the District allegations particular of re- The spondent’s have dismissed the bill.” should as to the extent or bill light B. business throw no Class value its subject. They fail to set Buck, In Gibbs showing any what, forth 83 L.Ed. a class suit was filed of business curtailment oh behalf of the of a members consequent loss the enforcement of against society attorney gen- the Florida would involve. The bill is the statute charged eral others with the en- any appropriate al- thus destitute forcement of a state act directed ganizations or- legation jurisdictional society. like the The com- general allegation that the save charged plaint that the act was unconsti- controversy matter deprived complainants tutional rights allegation put was 000. That is- process without due of law and the record discloses neither sue equal protection laws, without etc. finding nor evidence to sustain it.” By dismiss, a motion to the defendants urged KVOS, Inc., complaint Press, affirmatively v. Associated 197, 81 that the showed amount of $3,000 Associated Press sued in a dis- not involved. The deposed only right, ue of this it was U.S. at 59 S.Ct. at the Associated Press received said: $8,000 per more month essential matter contro- “The territory news in the served versy mem- here is the broadcasting station through bers, So- in association danger losing payments. ciety, of li- to conduct the business nonprofit Associated Press was censing public performance corporation, operated without profit copyrights. of their This profiting purpose of from its servic- combining method of for contracts equitably es to members and divid- interdicted Florida statute. ing among expenses them. The question It is taxation damage in the Associated Press regulation prohibition.* but Under case towas its members and this circumstances, ju- the issue on was not shown. Neither was al- risdiction is the value of this leged proved member to conduct the business free of the ** threatened to withdraw to reduce prohibition of the statute. payments.” (Italics supplied.) *5 In Brotherhood of Locomotive Fire pointing After plaint out the com- the Enginemen Pinkston, men & v. 293 U.S. relating right, to the value of this 96, 1, 219, widow, 55 S.Ct. 79 a L.Ed. page 75, the 307 U.S. S.Ct. purpose protecting right the of her to page 730, said: participation future in a fund from “ * * * facts, From these the pen which she was to entitled receive finding of the District Court that the monthly during payments sion in her controversy of value —the long lifetime as as she remained unmar aggregate rights the of all members brought ried, a suit ain federal district through to conduct their business court which the dismissed suit on the Society $3,000 the in value —exceeds ground requisite $3,- that the of amount fully supported.” (Italics sup- Supreme 000 was not involved. The plied.) Court, page 99, 293 U.S. at 55 S.Ct. at page treated the of value the widow's pointed The court out that the test was juris interest in fund test of different in McNutt and Associated pointed It out that life diction. her ex cases, supra, Press stating, 307 U.S. at bring pectancy shown to was value of page 75, page 59 S.Ct. at 730: pension installments future to sum “McNutt v. General Motors Ac- despite $3,000 of the contin Corp., ceptance There the differs. remarriage. gency of The her court held passed State of Indiana had an act jurisdiction federal that existed. regulating, prohibiting, Berryman Board of Acceptance In v. Corpo- Trustees of of business College, right protec- Whitman S.Ct. ration. The for which college sought 56 L.Ed. sued in a tion was was the to be enjoin regulation. circuit court to the col- free of It was to be property loss, on taxes its lection if measured follow- ground perpetual ing regulation. contract of ex- enforcement emption alleged proved. from taxation involved the This was not In juris- KVOS, Inc., Press, amount essential sustain federal Associated re- v. diction, sought enjoin where the contract exceed- lief was pirating, amount, although in value radio, fur- news taxes assessed current levied were nished its the Associated Press to pro- sum. The less defendants chal- members. lenged jurisdiction. Supreme sought tection ‘the was was lower enterprises court had that the conduct of’ in- held those free thing value of On terference. the issue of the val- because issue. Acceptance Corp., right, U.S. the Motors exceeded value the contract requirement then pointed the claimed ex- 000. It out improper, absence It emption tax covered, a current evidence of the sus amount $946.32, tax- to all future but extended threatened, tained or at the to look evi es. building spent dence of what was there is no evi- record us before then, the amount be substan monetary value dence that tial, to surmise that the good will, injury $3,000 is, loss is or more. Yet this by defendants’ sustained acts, threatened effect, the method appears $3,000. that its starting theory action, of this evi- to furnish Lind was about witness jurisd reached the conclusion that it had might relevant on have been dence which reasoning iction.3 A similar method general point. counsel for He was disapproved Supreme Court in permitted, ob- and he over KVOS, Inc., Press, Associated price testify jection, war in that in subject product liquor “our market 200, 81 L.Ed. 183: loss, has been in- and our business “ * * * Dealing peti- with the it, jured, because can measure because tioner’s insistence that the amount every happens to see what us we can controversy was not shown to ex- price is a where there ceed three thousand dollars the court (Italics supplied.) The meas- break.” * * * Appeals] [Court held was not which he referred other- ure to *6 that ‘The several millions of dollars produced in or court. wise identified alleged here to be invested in the the measure was accurate do Whether * * * may Association’s business to it indi- Lind’s reference not .know. damaged well to be the extent of lawyer he, a and business man cates pirating practices the de- affairs, plaintiff’s acquainted with rec- referring scribed.’ After the to ognized injury claimed to.result that the. scope respond- character and the of price .plaintiff’s in business break to the ent’s activities ‘It court states: susceptible pecuniary measure- of gath- is could, obvious that the business of adduced an effort ment be which ering distributing members, jurisdiction.. prove that issue com- On profitable publication, could petent of the character and ex- before good damage conceivably damaged will be the would of to the extent tent $3,000 misappropriation relevant. have been of the premature publication of the prevent plain- Defendants’ acts did To material. hold news otherwise using good will the con- from tiff would warrant the no inference that damage The of its business. duct damaged corporation could be will caused threatened wrongful business, attack on its subject of is the acts .con- defendants’ happened when that business to be troversy Plaintiff in this case. has failed profit Also, run at no loss. showing what, prove unable to hold we are irrational the consequent of business curtailment piracy $3,000 that the caused a claim likely to from or are result have been loss damage quasi to the Association’s acts. McNutt General defendants’ prices, substantially colloquy that is following of the cut occurred: 3. The plaintiff, position theory it? is The of ac- “The Court: [plaintiff’s attorney] deciding motion, Kohn Yes. “Mr. bat am tion—I attorney] here, practice [defendants’ “Mr. Schultz defendant of in this jurisdiction complaint, has unless This Court loss as they prove damage $3,000 probably of result, can and a loss resulted nn - advertisement, and more.” because because page 201: page 200: and in 299 U.S. priate where the # support ble quate, tent respondent property which the jected lenged by tion is nothing in excess ics eral dollars in 299 “ * “ * ^[*] supplied allegations statement *» because ** ** given manner, and the amount to the respondent is having except * * allegations controversy defendant in purpose by competent as to amount that the the character sum. * allegation the news.’ complaint contains of three failed to word ** wholly save * * * But “before”.) involved being damage to no intima- an thousand 57 S.Ct. at *. The support in con- appro- inade- or ex- possi- proof. (Ital- must chal- gen- sub- troversy herein, that he was he felt marks of the district ent on the Lind tion should be used on offered not relied court, stances make this clear. It was ed in the mine anew ments To finding judgment Not judicata.” conducted the the same preliminary hearing appeal final counsel that all exceeds the sum of but that court §§ case. hearing that his judgment hearing. Teece, establish on was taken. Several was the rule fact that the matter under the ruling This included effect, by plaintiff for a ruling it had exclusive hearing which in pp. jurisdiction. He the same see judge proceeded to deter- 15 and jurisdiction, when doctrine thereupon 50 C.J.S. was correct testimony large $3,000 final indicate that testimony interest and res way upon culminat- part stipulat- judicata hearing circum- and he district injunc- Judg- taken res pres- re- entered a troversy conclusion of law that the District Court should subject court had mat- have dismissed the bill.” ter of the action. apparent court *7 holding frankly in the matter in erred brief isit stated: troversy herein exceeds the sum “Upon appeal defendants’ from juris- district had 000. The court preliminary injunction the entered of this case. Illinois courts are diction cause, in this this Court held that plaintiff. open to finding the District Court’s fact was existed us, the record before we 2. On (221 supported the evidence F.2d principle with the not concerned 819). on the trial judicata. in After Neither this court nor res finding the same was made merits upon urge plaintiff court did district in the ” * * * same evidence. applied principle to the district that that (Italics supplied.) jurisdic- finding in favor of its court’s tion, its order for the contained is- as show These circumstances that no one injunction. preliminary a suance of hearing in the final contended v. Stock Growers’ In Murrell Nat. preliminary injunc- order for court’s Cheyenne, Cir., 74 F.2d Bank making, from not that it tion barred the court said: make, independent adjudica- an did may party waive his on the matter “A tion hearing.4 We, final or bar of time there- conclusiveness assert the 815, 819, prior appeal, was received so that 221 F.2d The evidence 4. On the might opportunity an have to ex- court said: we its discretion the motion for considerable re- ercise “While injunction. temporary final the district hear- ceived place. ing upon the issues did take fore, appeal have re- in the or to the dates mentioned large complaint expended view the deci- of the latter sums correctness money advertising Seagram prod- sion. during past and ucts several For reasons hereinabove set forth years plaintiff expended judgment re- court is district purpose an of Five versed. ($500,- Hundred 000.00) Dollars Thousand Judgment reversed. alone, and the Illinois trade-marks, un- names brands or Judge (dissent- FINNEGAN, Circuit Seagram products der which are sold ing). favorably widely have become Seagram Actually this is an action gen- public known to the trade and Corp. enjoin multiple to advertising, de- Distillers erally has Illinois and offering fendants from large quantities sold of each of said selling Seagram products at less sale Chicago throughout products in stipulated prices than the time Illinois. Trade the Fair time accordance with in. continuously, “Plaintiff is and Seagram-Dis- entered contracts into long prior men- since dates Corporation of Illi- State tillers complaint, in the been tioned injunction nois. A pro- person sole authorized granted affirmed that re- below Seagram products to sell ducers of straining After 221 F.2d 815. order. products Il- and distribute said parties stipulated in our remand during linois, and has all of time said court:- products to vari- sales said is, men “Plaintiff and at all times through- wholesale ous distributors complaint has been en tioned out Illinois. throughout gaged States the United so-called “Plaintiff has executed Illinois, in of deal the business large Trade Fair contracts with distributing ing selling in, alco of alcoholic numbers beverages retailers beverages quality holic of standard copy of A Illinois. Seagram by Joseph produced & E. contracts is form said executed Seagram Joseph Sons, Ltd., & E. hereto Exhibit A.” attached Sons, Inc., corporations affiliated my judgment, merely That, in is not corporations. bever with said Said juris- stipulation to confer ineffectual an (sometimes .ages hereinafter re the district but rather diction on ‘Seagram products’) in ferred to as stipulation of contro- Seagram’s Seagram’s O., clude V. vice-president, Teece, versy. Plaintiff’s *8 Whiskey and Crown Blended Seven charge Division of Central of Sea- Seagram Gin, Ancient Bottle and are gram-Distillers Corporation testified in bottles, la in various sized sold during injunc- substance bear or containers of which bels hearings company spent that his tion trade-marks, of Jo or names brands advertising pro- $300,000 for Seagram Sons, Ltd., seph & Jo E. signs Illinois, outdoor and all motion Seagram Inc., Sons, seph or of E. & Seagram products. with in connection corporations cor affiliated with said of that first record was Use authorized producers poration, which are the par- by this on the order of court based beverages is, Each of the thereof. agreement. ties’ during all of times mention brought free, protect complaint was, fair action to Plaintiff this paragraph open competition commodi will manifested under with 3 stipulation, general class, pro quoted above. But of the same I ties refrain, purposes by others, for the and dis dissent sold duced reaching throughout by points raised Plain other Illinois. de- tributed incidently appeal years pri- fendant’s which herein has tiff several

461 alleged by with an the short treat- invasion more the defend- far serious majority. plaintiff. ants of a If asserted accorded them ment fails because “The district 28 1332 Under U.S.C.A. § of some in the Illinois Fair Trade defect original jurisdiction of courts shall have something Act else and should is matter in con all civil actions where stop be faced. But to short and reverse $3,- troversy or value of the sum this case on the mechanical basis exclusive interest jurisdic- tenuous determination of the (1) of different is Citizens between: sign approach tional dollar * is an I refuse “By matter in dis States pursue. pute,” wrote Mr. Field Smith Justice Adams, 1889, 167, 175, 9 v. 566, 569, meant the sub 32 L.Ed. “is litigation ject matter —the brought joined, issue is the action is which, if the issue be and in relation to testimony fact, taken. one of pecuniary value of the

conceded that the dispute may determined, not be MAUPIN, Plaintiff-Appellant, Hollis W. prayed, only by money judgment v. case, in some cases where such but COMPANY, ERIE RAILROAD Defend- value the increased or diminished ant-Appellee. property directly re affected * Docket No. 24186. Starting prayed *.” lief Light v.Co. Mutual Glenwood & Water Appeals United Court of States Light, Co., 1915, Heat & Power Circuit. Second there is a 60 L.Ed. Argued May 1957. in various line decisions May Decided 1957. jurisdictional courts, permitting “the amount is to be on the calculated basis being injur property Lehigh Kelly, Inc., B. ed.” John v. Nav. Cir., 746; Co., 151 F.2d Coal English First Lutheran Church of Okla City Evangelical homa v. Lutheran

Synod, Cir., 1953, 701; 135 F.2d Pur Summers, Cir., 1942, v.

cell F.2d judges 390. And several of the district thought

in our own circuit have Fair Trade cases is measured the value of the protected. g., See, be e. Calvert Corp. D.C.Ill.1953, Rosen,

Distillers F.Supp. *9 Acceptance

McNutt v. General Motors

Corp., 1936, rests an attack directed regulatory

aat statute. There General sought Motors to restrain enforcement regulating

of an Indiana Act the busi- purchasing arising

ness of contracts out retail installment sales. the case dealing us

before state regulatory authority or its taxation but