The Elder-Beerman Stores Corp. v. Federated Department Stores, Inc.

EDWARDS, and also asserted that Federated had violat- Before MILLER KENT, Judges. Act,2 ed the Robinson-Patman but this Circuit 1. 15 2. 13. § § U.S.C. U.S.C. judgment trial, dropped prior The lawsuit claim was commenced was based was case Court submitted sought damages period for the commenc- solely Sec- violation on the issues plaintiffs ing with 1962. Act.3

tions and 2 Sherman gross $26,500,000, and did business ruling upon the stated in gross $33,300,000. in 1965 business new motion for trial defendant’s plaintiffs The conceded that Federated justi- evidence to “there was insufficient fy damages the predecessor, claims under Rike-Kumler and its the Clayton However, on record Act.” Company, completely unsuccessful were damages appears any award of it monopolizing department the in store Clay- by 4 of the was virtue of Section lawsuits, Dayton.5 the in The business 1 and of ton for Sections Act4 violations of in first which was instituted of2 the Sherman Act. forcing suppliers, in the were successful has the Federated since 1959 been willingly unwillingly, to sell to Elder- Rike’s, leading department owner of the Beerman, since, plaintiffs’ in as stated generations. many Dayton store in brief, by time of trial “all but guiding and head Elder-Beerman agreed supplier defendants had to plaintiffs Beer- was Arthur sell to Elder-Beerman discrimi- clothing had in the busi- man who been from nation the suit and were dismissed years Dayton ness a number and Elder-Beerman dismissed two other opened when Beerman before 1945 he general Stores, defendants in whom had lost mer- Inc. for the sale of (Beerman) Subsequently the chandise. interest.” grew by expanded business theory liability Plaintiffs’ whole acquisi- opening and the of new stores conspiracy was that there was a between existing Dayton tion of storеs (and/or predecessor) Federated its During period area. from suppliers destroy- purpose for the through 1965, years involved ing plaintiffs’ ability compete on to question, lawsuits the total sales terms, purpose fair grew and for of at- the Elder-Beerman Stores 5a $10,440,000 $33,300,000. tempting monopoly to to obtain a 3. 15 1 & 2. U.S.C. §§ claim that Federated had succeeded achieving monopoly, a as would 4. 15 15. § U.S.C. put business, Elder-Beerman out of argument closing plaintiffs’ 5. In fortunately his counsel was Federated not suc- Jury, to the “We contend attempt, preven- stated in its cessful due things. One, by in this case several that Fed- Arthur tive measures taken Beer- trying get monopoly erated was to a man.” department conventional store business Thus, plaintiffs-ap- it is obvious that the They didn’t succeed area. but pellees any previously abandoned claimed 13886). trying.” (Tr. pg. theory that Bike’s ob- defendant had appeal plaintiffs-appel- brief on department monopoly tained a of the store page lees state 53: Dayton. business fortunately “Elder-Beerman was able 5a. In order to establish the existence of genius Arthur Beerman’s and use conspiracy absolutely is essential to capital prevent his tually achieving Federated from ac- to agreement prove be- was an monopoly elimi- conspirators. tween named “A con- nating Elder-Beerman as traditional agreement spiracy (or an understand- competitor. store Evidence ing) parties to between two or more do an showing was directed at Federated’s at- thing thing to unlawful do a lawful tempt conspiracy monopolize even manner.” and Phras- Words unlawful objective though its was attained.” es, Edition, “Conspir- Permanent Vol. 8A page And further at 62 : acy”, pg. (Emphasis supplied). monopolization charge on “The could prejudicial conspiracy complete not have been to Federated “The on the form- ing agreement plaintiff’s per- told of the criminal and the because the least act in counsel Elder-Beerman did formance of at one overt fur- presenting IN out show THE CONSPIRACY RESTRAINT per Rike’s had fact used coercion to THEORY OF TRADE grant suppliers to to Rike’s such suade alleged conspiracy To establish the right suppliers’ the exclusive to sell the might relied Elder-Beerman what thereby merchandise include described “rimless wheel” be alleged conspir suppliers as theory. theory of Elder- acy. Elder-Beerman offered volumes having evi- Beerman introduced hearsay testimony, much it from Rike’s, dence that AMC and AWC employees, alleged as to statements own what to as used refers supposed by repre made have been persuade “coercion” some including suppliers,7 some sentatives grant right exclusive defendants, original not named involved, sell the merchandise that Eld- interpreted should claims therefore, had, er-Beerman established Elder mean that the refusal sell to permitted and should of on Beerman was “coercion” because regard put proofs in in ex- evidence part granted of by the Federated.7a suppliers clusives other with- long (Emphasis we after supplied). And discussion therance thereof.” that, got shirts, the never Singer States, but we never 477, 208 United F.2d got (6th 1953) ; the merchandise. Cir. Poliafico v. United Now, budget the (6th 1956) ; that is for stores? States, Q. 237 F.2d 97 Cir. right. States, 499, A. That is Pinkerton v. 151 F.2d 1945). —8837— Cir. Now, 1966, up was Q. until June by 6. The term was “coercion” used the at- you willing to sell the Van- VanHeusen torneys for Elder-Beerman and is used budget for the stores? A. Heusen shirts opinion describing as the claimed No.” course of conduct which Elder-Beerman sought sup- used show Bike’s to cause testimony reading 7a. the of A careful of pliers to refuse to business with Elder- do Kenyon ranking Starling, former official Beerman refuse to continue do busi- Kike’s, understanding of establishes his with ness Elder-Beerman. merchandising general policies of following during employment. example appears his Kike’s the time of As an However, recognized page Appendix III, it that should 1219a of the —-Volume Starling testimony Gutmann, at time to the Max no testified as Execu- exclusive-dealing specific Elder-Beerman, tive existence Vice-President of inability arrangement agreement. relation to The testimo- to obtain VanHeu- ny Starling might well dis- sen’s shirts. have been Phillips. positive “And I Elder-Beerman met there with Mr. of the claim of you, attempting monopolize you if Q. Who recall? that Bike’s was was Day- Jay. A. Mr. Orden and believe Mr. business in store you Q. Whom did meet ton area. are not satisfied at We Van- testimony Phillips, Starling- Heusen A. Mr. es- office? both was sufficient to any conspiracy father and son. tablish the existence they? They excep- permit Q. A. Who were were which would the use of the principals hearsay relating the pany. of the Com- to state- VanHeusen tion to the rule by “co-conspirator” particularly ments company Q. Is the name of the Phil- where in such case one all-encom- as lips-VanHeusеn? right. A. That passing conspiracy is was claimed. happened exception hearsay And Q. tell us what there. has rule Well, generally recognized we met we office and been hands, proceeded exception cases, however, shook and we into a the extent larger room, office, carefully conference or a limited. Krulewitch v. United Phillips, Sr., States, Mr. L. VanHeusen —or Mr. walking ahead, ap- and I were and as we In Glasser v. United Ed. 790 proached chairs, said, “Well, you our he L.Ed. S.Ct. any problems Supreme (1942), know we wouldn’t have if at stated just page pages it wasn’t for Bike’s.” And then his 467: said, son,” “Hey, “However, father walked are ad- declarations said, objection alleged —his son in and “Dad don’t walked of an missible over say present co-conspirator, that.” was not who sell reveals to Elder-Beerman. There was also of the record An examination by ex- some evidence of an effort Rike’s evidence of an direct there was obtain an exclusive or a refusal relationship between Rike’s clusive suppliers buy certain many suppliers named defend- Rike’s who as hearsay sold to Elder-Beerman. There was ants. relationship to several. as the exclusive documentary Much of evidence re- us this Court the record before On lated to the of certain refusal there was conclusion reaches to sell to but little of evidence of exclusive circumstantial dignified setting could be as forth in the arrangement resulting from “coer- some correspondence sup- statement suppliers. There cion” as to six plier the refusal because might of what was direсt evidence coercion on the Rike’s and there suppliers. to four termed “coercion” was evidence of reasons for hearsay evidence, primarily There was heavy including sales Rike’s employees, from Elder-Beerman promotional activity lines arrange- gard in exclusive to “coercion” arrangement. had an exclusive suppliers.8 fifteen As ments as to Frigidaire refrig- example An of this is remaining defendants erators, Dayton. manufactured arrangement basic claimed evidence was Rike’s had an exclusive Frigidaire refrigerators or a the sale of an exclusive refusal made, only job product when if there markable with the proof feelings, aliunde that he is connected witli he he knew their wouldn’t conspiracy. selling store, even Minner a shoe the States, v. United consider let department Cir., 506; see F.2d and alone another store. again Burrows, So I visited Mr. with 23 L.Ed. Kuhnert Nudd hearsay Otherwise, people lift it- some at the would of our sales Colum- 286. year, bootstraps bus shoe show that and he was level self its own very competent and evidence.” courteous showed us [13251 exception and I called him over and shoes to the limitation on has carefully again him, in side “We a been adhered to this and told have Baking Company in lot calls for these shoes our stores. Continental v. United op- you missing big I think that a Cir. 281 F.2d portunity selling us,” said, 1960). and he all, “Well, I like to sell after shoes and you probably appreciate example I can well 8. An this is found in the testi- get shoes”; mony Silvestri, do for the but a lot of calls A. of John Vice-President only community said, Manager he “this isn’t the Merchandise the Bee-Gеe agreement pages Corp., we with.” at 275a Shoe found and 276a said, Appendix- He “We have the same I. situation of the —Volume Ohio, Columbus, spring again in with Well, Lazarus and “A. thing I the same with Shillito’s Cincin- at New show York also visited says, Boyd Spalding. nati.” he “You know how And Mr. I met a who was boys company, president mess these don’t around intro- are. You of the just them, him, shudder to myself with and I would told him I duced to where happen you requested if I think would sold He what from and shoes. was people territory the shoes.” the salesman said that Mr. responsible on Kuhn- I to call for the so And continued was distribution regularly New York ert each show at me he introduced to salesman— show, ap- Honor, may and we had— I and Columbus Your Mr. Gilliam: very always general proach again? In cour- he was of, might record.) I (Discussion me, and he sort teous off the my prob- say By with me consoled Mr. Goldman: him-—I would reiter- I introduc- lem. I would tell Q. So was Continue. meeting and he ate on the— ed Kuhnert knew of our each to Mr. questions. stores, said, operation Let’s ask he he our Court: By they long-standing a Mr. Goldman: me that had told Well, agreement these consolation Q. none of Rike-Kumler Com- with the anything pany, they only kind ever were the talks or and that store up you by Spalding Dayton, Ohio, carry sulted in sale area to in the No, they sir.” ’66? A. until said that did a re- June shoes. And he Dayton, although stores refusal sell such slacks appliance they were sold in area Elder-Beerman was stores. because of coercion appeared that Fri- on of Rike’s. The letter gidaire arrange- quoted quite light maintained exclusive casts different might to sell to this evidence ment with Rike’s refused fact con- bе Frigidaire excluding sidered because sufficient reason for alleged refrigera- hearsay testimony all concluded that if made its as to the raising to Elder-Beerman coercion of this tors available refriger- jury. Rike’s would take on additional substantial issue give lines, to it would sub- ator which regard to some lines of merchan- promotion, opinion stantial which in the dise there was evidence as to the availa- Frigidaire result in a definite would bility of items. An examina- alternative total unit of Fri- reduction sales tion record shows that little gidaire refrigerators Dayton area. given to no attention the suitabili- Manufacturing again as to And Farah ty lines, failure of of such alternative (maker slacks) Company of men’s proof this Court considers to be evidence, hearsay nature, of a some in the law- fundamental context P-ll-H, Appendix, V strictly Exhibit Volume my me that’s business. How- pp. point 32-38e. ever, the crucial this: April 2, strongly have no wish iden- Mftg. Farah Co. with line Beerman’s or the tified 3rd Cotton cheap carrying. This stores are Paso, El Texas say Rike’s would not is not Eph Krupp merely carry the at all. This is line why we are realize answer as say that Rike’s not lend their would cutting out several accounts was rather co-operation the FAR- whole-hearted day. vague more the other Have little . these . . under AH COMPANY explain time would like to ful- now and They probably would circumstances. ly. $15,000 $20,000 a to be a turn out you are familiar our situa- Since year as a whole. account for the store Dayton prove rep- tion this can rarely more, if ever would Further city any large ter- resentative be con- the line and would advertise ritory. strong stantly good for a on the look-out Dayton My objective primary in the is become identified. brand with which to largest possible consis- volume to do hand, ship not if we do On the other practices. tent honest business buy Beerman’s, minimum Rike’s will a large volume of busi- a Beerman’s have year $100,000 store and a for the eight stores, is ness in one of which selling other aid be a tremendous will price eatogories are Their down-town. Dayton, Dunhills fine stores consistently under best dollar our one Furthermore, Metropolitan. thinking retailing numbers. Their they in influ- be instrumental will also upgrade create is not but to this time throughout encing fine stores other by price promotion. larger If I volume country give all their co- FARAH Beerman’s, sell effort to made an all-out operation. opinion my vol- it is considered eight planning a series Rike’s are year. $15,000.00 a exceed ume would not Dayton (8) American —a ads using Billy present, the Kid At co-operative good paper. These will prestige numbers. their and Levi for Incidentally, repu- FARAH’S ads will enhance peo- give these Beerman’s considerably. Beerman’s were If tation carrying hand, ple On the other little. damn not line ads would these they give and other and Salant Salant run.. cheap firms a tremendous amount questions, I’d you have further If volume. at the BAMA this further to discuss like get very I like much While would Show. Beerman’s, $15,000 so from regards, personal I am kindest With very price paying a dear for would be Sincerely, prestige Rike’s is the that business. Irv department large The store /s/ town. Irv Skolnick buyers no wish to at Rike’s have es IS: or not to sell tell us what accounts fact, tells them to sell. 144 boycotts); admittedly, (1959) (group example: Eld- L.Ed.2d 741 аnAs suit. Bearing Simmons, and Timken Roller v. United Serta Co. er-Beerman sold 593, 971, L. did 95 States 341 U.S. 71 S.Ct. of mattresses and several lines (division (1951) very of markets Ed. 1199 volume of substantial business among competitors). As those re- an ar- exclusive field. Rike’s per not unreasona- rangement & straints which are se sale of for the Stearns question there is a the reasonable- There was ble Foster mattresses. arrangements. of the As great ness exclusive deal of relative evidence except Seagram mattresses, Sons, & v. stated Inc. merits several Liquors, Ltd., F.2d & 416 Hawaiian Oke & claimed Stearns 1969): 71, Cir., pre-eminent mattress 76 Foster evidence stores. No sold every agreement per “[1,2] Not relative markets to the offered as “in se of trade” within restraint of mat- brands these several served meaning 1. Mo- of section See White plain- accept tresses. cannot We States, 1963, U. tor Co. v. United 372 there was a restraint claim that tiff’s 253, 696, 261, L.Ed.2d 83 S.Ct. 9 S. because involved trade as to the articles Thus, it is well that it settled arrangements with Rike’s exclusive per not a se violation of the antitrust competent supplier to laws a manufacturer availability relating and suitabili- agree give with a distributor him ty lines. The fact alternative franchise, if this exclusive even lines desired sell the cutting means off another distributor. so the articles involved did make Arnold, See States Schwinn United v. unique the need as to eliminate Co., 376, 1967, 365, S. 388 87 & U.S. Corp. Hershey Chocolate such evidence. 1856, 1249; 18 L.Ed.2d Lawlor v. Ct. Commission, F.2d 121 Federal Trade v. 1957, Corp., 352 National Screen Serv. 1941).10 (3rd Cir., 968 992, 526, 1 L.Ed.2d 540 U.S. 77 S.Ct. 146, Cir., 1959, Supreme has see F.2d dealt with 3 270 [and 59, 65]; arrangements 152, 1956, question be- 238 of exclusive F.2d Co., v. seller as related States Steel United Columbia tween 495, 524-525, 1948, 68 522, trade 334 restraint of claimed 1107, 1533; field one occasion. In this 92 L.Ed. Scanlan v. on more than Inc., Cir., 1968, Anheuser-Busch, rea- down rule has been laid 918, 921; Company v. of New F.2d Co. Walker Distrib. son. Standard Oil 66, Brewing States, 1, Lucky Lager Co., Cir.,

Jersey v. 221 U.S. (1911); 1, 7; Beer L.Ed. F.2d Ace 31 S.Ct. Chicago Distribs., Inc., Cir., Kohn, Board of Trade United Inc. v. 283, 286-287; L.Ed. Packard 318 F.2d Railway (1918); Car Pacific Motor Co. Webster Motor 683 Northern Car v. 1, Co., Co., 1957, U.S.App.D.C. 161, al. 100 243 et v. United 356 U.S. 418; Interborough 5, 514, v. 2 F.2d News Co. 78 L.Ed.2d 545 S.Ct. 1955, recognize Publishing Co., Cir., are that certain restraints Curtis 2 We 293; 289, per se, v. F.2d Naif eh Ronson United States 225 v. unreasonable 150, Works, 1954, Socony-Vacuum Cir., Co., 60 Art Metal 10 218 U.S. Oil 310 202, 206-207; 811, (price Launder (1940) 1129 F.2d Bascom 84 L.Ed. S.Ct. Cir., 1953, Broadway-Hale Corp., fixing); Corp. Telecoin 2 Inc. v. v. Klor’s 334-335; 705, Fargo Stores, Inc., 207, 331, 3 F.2d 204 Glass 79 S.Ct. 359 U.S. Hershey readily vendors, largest dis- the three The facts trade tinguishable Hershey ar- because there was forced into a similar case, opinion, rangement.” page There was as stated at 970 of the no (Em- agreement “An between Lamont and situation case. vending operators,” phasis supplied.) three machine 970, keep page further at “To stated

145 tors, Inc., Corp., Kohn, 283 Inc. v. 318 F.2d v. American Paint & Co. Globe 534, 539-540; Cir., 1963), pages 287: Cir., 1953, 286, F.2d said 7 201 Schwing Motor v. Hudson Sales Co. “That, results without 899, Corp., D.Md., F.Supp. 1956, 138 by proscribed Act, is the Sherman curiam, Cir., 1956, per 4 239 F. aff’d A manufacturer Act. violation of the 176; v. Bausch & 2d United States right has a select customers its S.D.N.Y., Co., 1942, Optical 45 Lomb F.Supp. goods anyone, to refuse to sell 387, 398-399, by aff’d United sufficient to reasons itself. court, 1944, equally divided 321 U.S. 300, Colgate & 250 U.S. Co., v. States 707, 719, 805, L.Ed. 1024. 64 S.Ct. 88 465, A refusal 39 63 L.Ed. 992. S.Ct. Co., 1968, Albrecht Herald 390 v. Cf. illegal Act under becomes deal 869, 19 U.S. 88 S.Ct. L.Ed.2d only produces an unreasonable when it (concurring opinion). gener- 998 See trade, price fix such as restraint ally Report Attorney General’s competition ing, or the elimination Study An- National Committee to monopoly. States United creation of a (1955); Fulda, Laws In- titrust 27-29 32, 29, Co.,& 362 Parke, v. Davis U.S. to Deal: When Does dividual Refusals Single-Firm 505; 503, Kiefer- L.Ed.2d S.Ct. Become Vertical Conduct Seagram Joseph & Co. Stewart v. E. Restraint?, Contemp.Prob. 30 Law & Sons, 259, L. 211, 71 S.Ct. U.S. McLaren, (1965); Terri- 597-98 219; United Lorain Journal Ed. States, Co. Restrictions, Con- torial Customer 181, 96 143, 72 signments, Suggested Resale Prices & The fact a refusal L.Ed. 162. Deal, Refusals 37 Antitrust L.J. buyer particular deal with a (1968); Robinson, Providing for 137 Orderly more, an adverse effect Goods, Marketing ABA buyers make business does not Antitrust ‍​‌​​‌‌‌‌​‌​​‌​​​‌​‌​​​​​​​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​​​​‍Sections 286-88 of the Sher to deal a violation refusal (1959); Turner, The Definition Damage con man alone does not Act. Agreement the Sherman Act: under liability under Act.” stitute Conscious Parallelism & Refusals page 287: This Court further said at Deal, 75 Harv.L.Rev. 703-05 (1962).” can said that “Unless it had refusal to deal We are bound the rule laid to follow competition suppressing result of Supreme down the United States trade’ ‘restraint thus constituted Arnold, States v. meaning 1 of within of Section Co., Schwinn & Act, no violation Sherman (1967), 18 L.Ed.2d where do of the Act. We not think discussing legality of exclusive terri- Brewery Compa substitution ny Stroh tories and some im- customer limitations distributor for another one posed upon by manufacturer, dealers this result.” page page the Court at 87 S.Ct. at case, supra, involved While the Schwinn only 1863, said: language manufacturer, yet specif- “So here must look to the we U.S., at page 376 of 388 Court at challenged practices ics of the S.Ct., appropriate page of 87 seems impact upon marketplace their many in- of the lines of merchandise judgment order to make a volved in this case. whether the is or restraint is not ‘rea- extreme, manufacturer “At the other a spеcial in sonable’ the in sense which equivalent product of a other and 1 of the Sherman Act must be read § readily which are available brands of purposes type inquiry.” of of may custom- in market select his the ers, discussing purpose he In and for the of dis- effect exclusive whom, arrangements tribution in a dealers different ‘franchise’ certain goods. alone, Cf. Unit- sell his context this in he will Court Ace Beer Distribu- 146 group Co., Colgate must resell the heroin liafico & v. ed States profit; Po- and all associated with 465, 992 L.Ed. 63 39 S.Ct. heroin in the resale of the point liafico stops at that If restraint the —if buy it from Poliafico must knew that

nothing involved than vertical more is suppliers resales must be and that the manufacturer’s of ‘confinement’ profit.” at a select merchandise own sales of the products competitive dealers, if ed very words, by In of nature others, re readily available to everyone involved in al- business striction, alone, would on these facts leged conspiracy had to know that other is Act. the Sherman violate illegal persons performing would be acts boundary we lines that these within conspiracy. To furtherance of the present analyze case.” must the same effect States are United v. (2nd Tramaglino, Cir., any F.2d 928 197 in the absence record On this States, 1952); v. 74 F.2d Lefco United the alterna- more substantial evidence (3rd Cir., 1934); suitability v. United States their tive lines available (3rd 1960). Lester, 282 F.2d 750 say in Her- Cir. the decision cannot that we appears From these cases it that in or- shey Corp. Trade Federal Chocolate v. (based Cir., conspiracy der (3rd to establish such Commission, 121 F.2d 968 upon theory) the “rimless there wheel” 1941) applicable. there evi- Nor is is confronting (1) must be bring shown: situation dence to plan meaning overall-unlawful or “common de- v. of Klor’s us within sign” existence; knowledge (2) Inc., Broadway-Hale U.S. Stores, (1959).11 that others must be involved is inferable 705, L.Ed.2d 701 79 S.Ct. to each member because his knowl- forced to the this record we are On edge of the nature unlawful sub- conclusion that ject knowledge conspiracy but ar- trial all the exclusive court treated part of each member of the exact rangements existing defend- between the scope operation of the or the number suppliers ant and of its certain people (3) required, involved alleged Certainly, conspiracy. no alleged showing there must be each given sug- adequate instructions were participation. member’s gest it would be neces- interpret We the “rule of rea sary separate conspiracy be- find a granting meaning son” as tween named Rike’s and each selling rights acceptance exclusive arrange- with which it an exclusive had selling rights, such exclusive acts which justify ment order a verdict prohibited by are not law12 unless there plaintiff. resulting is a foreclosure of al market judge The trial relied Po cannot, proof ternatives of such liafico F.2d v. foreclosure, form the basis for (6th 1956), Cir., cert. den. 352 U.S. verdict the defendants entered 1 L.Ed.2d but conspiracy into a to restrain trade. subject that case the of the this case we find the evidence was narcotics and this said at arrangements exclusive between page 104 of 237 F.2d: Rike’s and in the named appellants conspir- “All knew sufficient to establish Elder-Beer- acy. suppliers knew that the Po- man was foreclosed market alter- from 11. In Klor’s selecting there was an find- affirmative cliandise commerce ing group boycott. of a This record is their own customers bona fide trans totally devoid of such evidence. actions and not restraint of trade Colgate Co., also United v. & See States 12. 15 U.S.C. § 63 L.Ed. 992 provided further, nothing “And That (1919) ; Distributors, prevent persons Ace Beer Inc. herein contained shall engaged selling goods, wares, Kohn, Inc., 1963). or mer- 318 F.2d 283 Cir.

147 view, single conspir- certainly was e. [i. natives and insufficient “This acy] throughout specifically conspiracy restrain embodied establish the instructions, obviously upon based the confuses trade which Elder-Beerman right purpose single the enter- common to recover. prise several, though similar, with the applicable in this More the facts purposes separate of numerous adven- case is decision of the United States tures of like character.” Supreme Court in Kotteakos v. 750, 1239, words, recognize 90 In other S.Ct. we against (1946). In there L.Ed. 1557 that case this case was tried Federat suppliers being ed evidence of obvious alone in violations without Housing provisions Act, in National volved justify the trial. But this could not 1703, 1715, hearsay 1731. U.S.C. admission evi §§ purpose accomplishing Numerous loans and dence for the were involved activity supplier fraudulent on of a the inclusion of a a co-con persons. describing spirator number of In with Federated first pages demonstrating evidence the Court said at that the in fact page knowledge 66 S.Ct. at had 1243: of such the existence conspiracy. permit To against de “The evidence the other hearsay to use the as a evidence offered fendants cases were whose submitted foundation for a based to the in similar character. theory the “rimless wheel” results They too had transacted business with acceptance damage offer and evidence relating Housing Brown National will the nature which be hereinafter Act loans. But no connection was therefore, We, discussed. hold petitioners, shown between them and this record Elder-Beerman failed of other than that Brown had been probative fer sufficient to es instrument for ob each instance alleged single conspiracy upon tablish the taining many cases the loans. damages. which it bases its claim for any other re defendants did not have Necessarily, conspir- another, since find lationship we with one acy in restraint of trade issue inade- than Brown’s each connection with quately supported, must the verdict transaction. Court of As Circuit Ry. fail. Baltimore and Pos- Appeals said, Ohio Co. v. “at there were least tom, U.S.App.D.C. 207, F.2d eight, more, perhaps separate As stated this Court Vo- independent groups, none of which Lloyd Fry lasco Products Roof- Co. v. any other, connection with ing Co., Cir., though 308 F.2d independently all dealt 1962): agent.” Brown their [United pattern States v. meeting we wheel to enclosethe As the Government was “that of at a common add without Lekacas,] spokes.” 151 F.2d separate spokes the rim center,” though puts ^[170] of the it, at plicable claims that the ‘two er cause of an error in the submission of “[5-7] The issues jury, Tennessee can properly plaintiff be no issue’ rule submitted to that, reversal be- Volascо if oth- ap- While there is much discussion issue. cites two cas- indicating possi- Circuit, support Kotteakos es decision from the Sixth bility theory. theory that such a “rimless wheel” Louisville & Nashville might though Rochelle, Company be used in a 252 F. civil case Railroad v. appropriate yet, case, 2d a criminal be- C.A. Coastline and Atlantic Company Smith, cause proofs of the Railroad 264 F.2d nature we are forced di- C.A. 6. cases are both conclusion as stated These Supreme versity where the Kotteakos case cases tried in Tennessee at page (Tennessee page prevails two-issue rule 1250: 148 Umenstetter, Simpson Company Ry. 155 in Union Oil v. stated v. Central Co. (9th 452) 235, California, 764, and under 311 F.2d

Tenn. 291 767 S.W. 64, 1963): Tompkins, Cir., 304 U.S. Erie R. v.Co. 1188, 817, the Dis 58 82 L.Ed. S.Ct. private the clear “[2] must substan trict Court follow litigant suit-charging in a violation Tennessee and tive of the state. law antitrust a different the position law stands only in the states Ohio are the Sixth government in an than the rule. This case Circuit to follow government antitrust In a ac- action. under federal law where is tried tion, present only need there viola- applicable. not ‘two rule is issue’ damage indi- tion of the laws and Mining Wilmington Co. v. Ful Star pri- need shown. The viduals not be 412, 60, 79, ton, 78, 27 S.Ct. 205 U.S. litigant only vate must not show 708; R. Baltimore O. 51 L.Ed. laws, but violation the antitrust 330, 329, Reeves, v. 10 C.A. Co. 6; Chicago F.2d impact show also the of the violations Ry. Co. v. Gar N. W. damage result- him to him 8; 848, 857, wood, C.A. Roth 167 F.2d ing from the antitrust violations 262, 269, v. 145 C.A. Swanson, F.2d laws.” 8.” language Similar is found Continental with the is in accord This conclusion Ore Co. v. Union Carbide Carbon by the States Su- laid down rule Corp., (9th 1961). Cir., 86, 289 F.2d 90 Growers, preme v. Inc. Sunkist (1962), Winckler & Smith damage As to the issue fact pages 29, plaintiff’s theory depart was the L.Ed.2d 305: ment store which unable obtain the brands of merchandise demanded theory hold erroneous one “Since we public will suffer lost sales both in the general liability upon which desired brand and items which verdict among have rested —a likely purchase customers would be Exchange Lem- petitioners and presence in because of the customers’ unnecessary explore us to on—it is for purchase de store to legality As of the other theories. sired brand. Elder-Beerman established Maryland was ... stated by the evidence could obtain Baldwin, 5 S.Ct. U.S. v. sold certain brands merchandise gen- (1884), ‘[I]ts L.Ed. joined defend erality perceiv- prevents us ants in this suit and claimed that ing upon plea which found. many could other brands which it If, therefore, upon one issue po not obtain. Elder-Beerman took the committed, error either having sition that established facts these charge or in the admission of evidence damage. it had established the fact of court, up- cannot be verdict ignored plaintiff’s theory virtually held . . necessity proof comparable for alternative brands were available. DAMAGES attempting An essential element damage Though necessary find it establish because fact of we reverse sup specified judgment exclusion from a plaintiff source for the compa ply stated, yet lack previously is the of an alternative feel reasons we mer compelled rable substitute the desired manner to discuss the Arnold, damage presented v. chandise. United States issue Co., Schwinn & jury. it is clear At the outset Hershey (1967); recovery by plaintiff 18 L.Ed.2d 1249 successful Corp. Com requires Chocolate Federal Trade private v. antitrust suit 1941); missiоn, (3rd Cir., 121 F.2d 968 three elements establish Kohn, Distributors, Ace predicates recovery. Beer necessary As Inc. Inc., 1963). all In of the 66 “unavailable” brands of F.2d Cir. Distributors, for Ace Beer Inc. Court merchandise. The the formu- this basis regard testimony page lae the ultimate said and 287: alleged loss sustained was infor- allegation conten- “There is no given plain- by mation to the witness that beer of other tion the breweries trial, prior tiffs’ counsel and not just as available in that area was not during the evidence offered and received change as it in distributors the after the course The of the trial. trial court before.” was damage made no effort to such confine evidence in the of An examination testimony to lines of the few merchan- plaintiff’s basic this case discloses “conspiracy” dise where evidence of a specif- for a theory “desire” that its was introduced, permit- had in fact been and was sufficient of ic merchandise brand plaintiffs’ expert ted the witness to tes- thereby was such brand establish tify to losses sustained because of unique, the withhold- and rendered ing availability many lack of brands violation constituted a of such brand plaintiff of merchandise the which had Testimony as to laws. of antitrust the purchase been unable for resale its primarily to uniqueness confined department stores. The evidence of Eld- employees testified who Elder-Beerman inability er-Beerman’s to obtain certain opinion Elder-Beerman their of brands merchandise was offered it had if more business could have done regard received whether the of brands and all each available record showed that the exclusive ar- lack of There it “desired.” which rangement barred Elder-Beerman from any independent to establish type the market for that of merchandise uniqueness in the brands factors of unavailability of because of alternative record question other The on basis. In brands. fact there was substantial question of the leaves availability unanswered evidence to demonstrate that alternative comparable alternative of brands were available and were handled Dayton appear that in It would brands. by arrange- Elder-Beerman. Exclusive uniqueness de- some of of brands ments between Rike’s and its by from resulted sired related brands of merchandise and advertising heavy promotional ac- type quality not to of merchandise. Rike’s, pre- tivity part of on the to which we formula have made willingness viously pointed out the very complicated reference was de- when specific promote Rike’s to advertise and by scribed the witness. essence in certain brands of merchandise expert’s theory was if Rike’s sold grant- specific reason for instances per specified “x” cent of exclusive right ing to sell to Rike’s the exclusive brand of merchandise then Elder-Beer- of merchandise. brands could, therefore, man have sold the same unnecessary we find it While percentage of the same merchandise had plaintiff judgment verse the for making it been able offer it. After grave basis, more than we do adjustments (subtracting portion some substantiality the evi- doubt as to the by Eld- for sales merchandise carried support offered dence not have been er-Beerman that would damages. aspect claim specified exclusive brand made had the something adding available, then been point Elder also out We “peripheral” sales termed testimony what expert toas offered Beerman departments resulting damages sus the amount of store) presence customer lack of the brands because of the tained expert amount the total determined expert of Plaintiffs’ desired. which it unavailability sales because of of lost theory the manner his fered as then reached exclusive brands damages should which the amount computed profits the loss as to conclusion almost as to formulae certain elementary conceptions theory appears damage. us “The most This evidence, require justice public policy questionable absent wrongdoer available, of shall bear the risk should be

which we assume uncertainty which his of such own sales merchandise effect of wrong Package had, during period created. See has Clo- stores which Sealright Co., Cir., Corp. question, of mer- sure taken on such lines v. principle place F.2d That of or addition to al- chandise in Delamirie, Armory one, previously ancient carried. ternative brands Strange 505, not restricted to and is recognize Supreme the We damage suits, proof in antitrust al- of pointed out on than one Court has more though is such fre- their character although proof of the occasion that quently application.” to call for its damage in a ease such as this amount of (Emphasis supplied.) uncertain, may plaintiff be somewhat To the see Zenith same effect Radio recovery precluded from unless the not Corporation Inc., Research, Hazeltine v. damage totally speculative. amount of 1562, 100, 395 U.S. 23 L.Ed.2d 89 S.Ct. Story Company Paterson v. Parchment (1969); Elyria-Lorain Broadcasting 129 Company, Paper Parchment Co., v. Lorain 358 F.2d 790 Co. Journal ; (1931) 248, 75 544 L.Ed. S.Ct. (6th 1966); Cir., Murray, Arthur Inc. Bigelow Pictures, Inc., RKO Radio v. Oliver, 1966). Cir., v. 364 F.2d 28 90 L.Ed. 652 S.Ct. U.S. Thus in we find ourselves accord with by Supreme pointed out the As McCleneghan the found in v. statement pages Bigelow at Omaha, Union Stock Yards 349 F.2d page S.Ct. 580: at 1965): (8th Cir., case, even where the de- “In such a * * “Plaintiff *. claims too much. wrong pre- by own his has fendant damage public Proof to or to precise computation, a more vented support others more not without will may jury verdict render damage finding of fact of caused speculation guesswork. based on wrongful defendants’ acts.” just But make damage reasonable estimate PRETRIAL CONFERENCES data, and its based on relevant render accordingly. verdict such circum- appellant complains The upon ‘juries are allowed act stances any “pretrial trial court failed to enter probable inferential, as well as di- orders” case. We proof.’ Story positive rect Parch- opinion litigation protracted Pa- Paterson ment Parchment v. Co. as this antitrust case it would be advisa per supra, 561-564, Co., U.S.] [282 hold ble for the trial one or court 248; Eastman Kodak Co. conferences, pretrial pro more formal supra, Co., Photo Material Southern vided Rule Rules of Civil Proce 377-379, [273 359] dure, appear It would U.S.C.A. Any would rule L.Ed. 684. pretrial resulting formal orders from wrongdoer profit by his enable the such conferences could have substantial expense wrongdoing his vic- at the ly required try reduced the time be an tim. It would inducement might case and well have eliminated wrongdoing so make effective time-consuming testimony some complete every preclude case as to prop which was irrelevant the issues any rendering recovery, by the mea- witnesses, erly The before the court. damages including expert plaintiff’s sure uncertain. Failure witness apply it would mean the more been damages, as to could have confined grievous wrong done, like- the less the court and issues before recovery. prevented lihood there would be could have been di-

X51 length regard gressing practices matters cies Elder-Beerman com- issues, response plains policies about standard unrelated questions both direct examination Rike’s which continued under the same managerial personnel and cross-examination. after Federat- purchase. ed The com- alleges plaint conspired CONCLUSION department various store Because of result reached the oth- goods monopo- to restrain and to trade allegations require er error do lize the ‍​‌​​‌‌‌‌​‌​​‌​​​‌​‌​​​​​​​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​​​​‍store market anticipate discussion. We re- Dayton alleged area. The device to have appropri- trial court hold mand the will employed been contract for pretrial ate conferences and enter orders whereby “exclusive” of a pursuant thereto will substantial- highly sup- favored “name” brand would ly necessary trial reduce the time of ply goods to Rike’s but not to this case. Dayton other store area —or at judgment is re- least not to Elder-Beerman. Elder-Beer- and case remanded to the versed is charges large man buying that Rike’s used its proceedings District Court for further (and power larg- later the much opinion. not with inconsistent this power Federated) buying er of to coerce agreements by into such Judge (concur- EDWARDS, Circuit threatening buy not from at them all dissenting ring part part). in in and they complied. unless Elder-Beerman, course, to seek court is claims dam- The tradition this ages opinion possible it a result of the viola- one wherever as antitrust But, principle it without sacrifice tions attributes Rike’s. at the achieve outset, by interesting accommodation to note that dur- years reasonable this, ing period dispute, In the face of all of the views others. writing opinion (and Rike’s) myself find still a third showed a my colleagues steady growth have al- busi- in ease wherein both volume of earnestly profit. ready this labored and ness lengthy complex the im- and record my colleagues’ posi- As I understand legal portant factual and and difficult tion, believe that the factual record both presents. which it issues lengthy developed in six-month trial this case, however, have support The issues of this variety not for of reasons does significance for all American business colleague, Judge jury My verdict. consumers like- for all American by feeling Kent, this result reaches They undeter- with thus far deal wise. proofs con- no one overall there were legal major two mined conflicts between hearsay spiracy, that much inadmissible right of the concepts. is the The first jury ver- was to condition allowed compete freely in the businessman dict, jury allowed take that the was desires. The second is damages market as he computing into account against monopoly and prohibition suppliers as to with some transactions in the anti- of trade contained any straint proof of no there direct which acts. trust illegal all on the at conduct in the instance defendant, Day- suit is an This antitrust (Eld- from were withheld Ohio, department brands ton, where store chain agreement de- bigger, plaintiff between er-Beerman) against older, supplier, no there and the fendant proof chain better established plaintiff damage to (Rike’s). During competitor from which store deduced, plaintiff did since litigation period of de- could be chain a national totally satis- bought (Federated) brands that other partment establish stores marketing factory were available for appears Federated also Rike’s. He reverse poli- would brought as substitutes. suit, the basic law generally gaged selling goods, wares, new trial with the restrictions or mer- selecting inferred above. chandise commerce from their own customers bona fide Judge colleague, Miller, My on the transactions not in restraint hand, devel- that the feels evidence ” trade: . . . conspiracy oped on the claim at trial inadequate policies to The antitrust at set restraint trade was issue are all; Acts, plaintiff Clayton support forth the Sherman and verdict retry applicable opportunity provisions an fol- not have of which should issue, in his view low: since appropriate failed muster evidence (26 1 of the Section Sherman Act given opportunity to do so fair amended) provides in rel- Stat. only trial, first that on remand the part: evant go is that issue which should “Every contract, combination in attempts monopolize. pertaining to otherwise, form of or con- trust Contrary positions, I to these spiracy, in restraint of trade . . . ” beginning felt from the of this case that illegal. is declared to . . . given eminently sides an fair both were 15 U.S.C. 1§ competent judge trial before able and (26 2 of Section the Sherman Act judge’s period, over a six-month that the amended) provides Stat. in rel- rulings under on admission part: evant the liberal rules which characterize “Every person monopolize, who shall appropriate, trial were attempt monopolize, or com- proofs any conspire per- bine or with other conspiracy, found overall could have one any persons, monopolize son or goes brand the substitute issue part of the trade or commerce damage than to the more the issue of among the several . . . States liability, of af- issue and that we should guilty of shall be deemed a misde- jury liability firm the as far as verdict ” meanor. . . . 15 U.S.C. § is concerned. (1970). damages of is con- As far as the issue Clayton (38 Act Stat. Section of the cerned, however, myself I have found amended) provides in relevant as beginning case in from the this of part: agreement colleagues my as to with any person in- “That who shall be principal mand. Plaintiff’s witness jured property in his business or damage to me to issue have seems anything of in reason forbidden indulged utterly specula- in inadmissible may sue therefor antitrust laws addition, tion. In I think that defend- threefold . . . and shall recover ant entitled to an instruction to the damages by sustained, him jury damages awarded that no could be including suit, the cost a reason- of . which the as to those exclusives attorney’s able fee.” 15 U.S.C. § legal jury found be ones unmotivated (1970). by any practices on the of coercive defendant. THE CONSPIRACY ISSUE impor-

The conflict between the two policies mir- tant I mentioned above is disagreement major points in specifically quite rored in laws of panel may in our discussed relation be this United States which underlie Judge question conspiracy. Mill- litigation. enterprise aspect is The free er record of finds no evidence this (1970) as set forth in fol- 15 U.S.C. 13§ Judge any Kent be- at all and lows: testimony there is lieves that while conspir- “‘providedfurther, nothing jury here- found That which the could have prevent acy, legally testimony persons en- should be contained shall Any figure pled guilty. establishing indi- tral number as read course, result, allowed conspiracies over- would have rather than one vidual persons to crimes of other be conspiracy. there was I believe that individual all against charge proof proper- proved buttress from which the could Kotteakos ly conspiracy. no each defendant. But found overall sup- precedent for this Here the case. Although at did not so I believe spokes, pliers, are not court all per- case, beginning of this now am pro- and the case trial, instant in the the most useful model suaded that charged against party the central ceeds considering conspiracy is the rimless par- conspiracy, hub this with According to Elder-Beerman’s wheel. of the exclu- Even if all ticular wheel. theory, con- was the hub of the found contracts which sive sup- spiratorial wheel exclusive regarded individual should have been pliers spokes. im- One conspiracies, result separate portant questions in this case is whether damages would have accumulation them) agreed (or any Hence, if Kotteakos the same. been Rike’s, other, well as with each conspir- total division of the commands My participate conspiracy. (a many conspiracies acy into several colleagues believe, believe, and I concede) the I do not Dis- result which there was no such this Judge’s instruct failure to favor trict short, no rim to record. there was separation would be harmless. wheel, put or to it in more conven- Berger v. See language, tional antitrust there was no L.Ed. proof conspiracy. of a horizontal appears the first instance This however, me, not seem to It does department suit antitrust of a store this fact is fatal either to the immediate against general character another liability jury’s result terms of the if store. There little verdict, to retrial of this issue. appears problem. on this law settled are, course, many There instances supplier can conceded where the criminal unilaterally law a central con purposes economic his own spiracy dispose goods exclusives, long contraband grant so as the result selling through has been carried out of trade or not constitute restraint does agents (who did Agreements also each oth know monopolization. er) might regarded spokes who not to consti- have been held exclusives conspiratorial wheel. Poliafico v. laws. tute the antitrust violations States, (6th United 237 F.2d 97 Cir. it has Elder-Beerman contends But 1956), denied, 1025, cert. 352 many U.S. 77 S. than instances demonstrated more 590, (1957); Ct. 1 L.Ed.2d 597 United prior much and with case Tramaglino, (2d po- States v. F.2d competitive 197 928 greater impact upon the Cir.), denied, 864, cert. 344 U.S. 73 parties. S.Ct. sition 105, (1952); 97 670 L.Ed. United States antitrust real issue of The Griffin, (3rd v. F.2d 1949), 176 727 Cir. Elder- case, however, concerns in this denied, 952, 478, 338 cert. U.S. 70 S.Ct. allegations re- Rike’s Beerman’s (1950). 94 L.Ed. 588 See also United compelling competition by ex- strained Kissel, 601, 607, v. States 218 U.S. 31 S. by economic “containments” clusives 124, (1910); Berger Ct. 54 L.Ed. 1168 and coercion. retaliation States, v. 78, United 295 55 S.Ct. U.S. appellee Elder-Beer this issue toAs 629, (1935). 79 L.Ed. 1314 Hershey upon primarily relies man C., case, F.2d 968 Corp. In a 121 somewhat T. similar Kotteakos v. F. Chocolate Broad 750, v. v. 1941), Inc. 328 66 S.Ct. Klor’s (3d U.S. Cir. 207, 1239, (1946), Supreme Stores, Inc., 79 U.S. 90 1557 359 way-Hale L.Ed. Appel joint (1957). 705, Court reversed the of the de- 741 trial 3 L.Ed.2d S.Ct. Joseph E. cen- fendants which occurred after relies lant Federated 154 Sons,

Seagram suppliers requests Inc. v. Hawaiian Oke & who resisted ex- Ltd., Liquors, 416 F.2d 71 Cir. clusives. denied, 1969), 1062, 396 U.S. 90 S. cert. Supreme The dis- United States (1970); 752, 24 755 Pack L.Ed.2d Ct. cussed in Simpson such coercion Un- v. Motor Car ard Motor Car v. Webster Co. Co., 13, 1051, ion Oil 377 U.S. 84 S.Ct. 161, 418, Co., U.S.App.D.C. 243 100 F.2d (1964): 12 L.Ed.2d 98 denied, 822, 29, 78 2 U.S. cert. S.Ct. wrong is actionable There whenever (1957); United States L.Ed.2d monopolistic the restraint of trade or 365, Co., 388 & U.S. v. Arnold Schwinn practice market; impact has an on the 1856, L.Ed.2d 1249 87 S.Ct. complain- and it matters not that Unfortunately, none these cases only ant See merchant. or a situa- stores deals Stores, Broadway-Hale Klor’s, v. Inc. retailer was tion where successful 705, seeking dealer- an exclusive to secure 741; L.Ed.2d Radiant Peo- Burners v. ship. ples Co., 660, 656, Gas 364 U.S. 365, S.Ct. 5 L.Ed.2d stat- conspir- 358. As we antitrust The essence of the ed in Radovich v. Fоotball charged by National acy Elder-Beerman violations League, 445, 453-454, using 352 U.S. 77 S. both of Rike’s consists Ct. 1 L.Ed.2d 456: purchasing power Federated’s economic by coercing competition im- to restrain “Congress has, by legislative fiat, portant brand name into either prohibited determined that such ac- giving Rike’s an exclusive their most injurious public tivities popular merchandise, at least restrict- provided allowing and has sanctions ing their to exclude Elder- sales so as private enforcement antitrust proofs Beerman. before the Dis- aggrieved party. laws These Judge jury appear trict and the to have protect laws the victims of the for- variety established of such instances. practices pub- bidden as well argument, lic.” At oral product of Rike’s number that the other exclusive complaint similar did that stantial acy jury sponse Rike’s straint stances where under where sives, stated I believe present there was from Rike’s. could have found could have could have found exclusives. the result of and that number of of exclusive coercive suggestion, trade, charges (as testimony from there were 115 instances agreed was evidence from claims found will practices Elder-Beerman policy entitled instances. coercion or But Elder-Beerman arrangements. contracts were suppliers’ policies, be were 50 other coercion in a most demonstrated) testimony to infer a substantial happened threatening had exclu- which the which the exclusives Since and conspir- argues that sub- in- in prices techniques retail on it agreement; effective device is. sumed to be no U.S., pliеr may not use coercion on its retail supra outlets to achieve resale nance. We reiterate that 992, Parke, Davis & We made clear ^[*] promises drugs. was a case where there was U.S. as it matters not at prices. at than were explained ^[*] 16-17, 37, 4 L.Ed.2d Simpson United States to be it 80 S.Ct. ^[*] fixing Here 39 S.Ct. is agreement maintaining 84 S.Ct. Co., in used equally in United what Parke, Davis, # v. Union Oil we have such monopoly coercively, Parke, Davis price view, if not more to maintain ^[*] that a 4 L.Ed.2d 63 States coercive gasoline Colgate, mainte- adding prices ^[*] L.Ed. and, sup- Co., as- an v. against L.Ed.2d 98. employing coercion economic Probably gallop.” the facts the closest case to full International Salt Co. v. Klor’s, Broadway- is Inc. v. of this one Stores, Inc., Klor’s, Hale 79 S.Ct. 92 L.Ed. 20. Inc. v. Broadway-Hale are, Stores, Inc., supra There 3 L.Ed.2d 741 course, 212-214, important in facts differences U.S. at at following (Footnotes omitted.) clear: as discussion makes Although argues it allegations Plainly of this com- supplier boycott, a was also a victim of boycott. is plaint a This disclose such panel already for the reasons stated our refusing single of a trader not a case agreement is the facts do not another, a nor even of deal support me, It seems to that conclusion. agreeing and a dealer manufacturer by however, parallel sup- conduct distributorship. Al- to an exclusive pliers by coercion induced Rike’s would leged complaint a wide in this bring just readily play prin- into consisting of manufac- combination ciples outlined above as would horizon- turers, and a retailer. distributors boycott.1 tal Klor’s takes from This combination Perhaps way easiest understand buy appliances in its freedom to upon the critical issue which case open competitive and market tried divides was now our which it of business deal- drives out as a testimony panel quote is to Ken- products. er de- It defendants’ yon Starling, long-time executive vice prives the manufacturers and distrib- president of Rike’s: freedom to sell to Klor’s

utors their business groups. economy. small thrive tion makes little difference to the is not to be tolerated the victim is can interstate at It interferes with the natural made available to selling “monopolistic some the same businessmen, to it on by the elimination “nature” driving is so small that instances commerce. Monopoly recognition just tendency.” prices any terms them out one Broadway-Hale forbids them merchant can as merely at “character,” of this fact his clearly has, whatsoever. As such time, conditions destruc- because flow surely whose large it business is yes. sers, you had motto which can Starling, if “Be Q. Q. Q. Q. ^[*] you pretty aggressive” Yes, insisted Now, Now it is In And want (cid:127)* sir. fact, hard? A. would they kind of a hard you, yourself, ‍​‌​​‌‌‌‌​‌​​‌​​​‌​‌​​​​​​​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​​​​‍at # put get should be ? A. fact, true, your ahead department-store your Yes, the Beerman merchandisers the one you aggressive? ^[*] merchandi- expression sir. business; not, have to say Rike’s, (cid:127)» thing Mr. so, consistently going Act has started into been Stores when Sherman department stores, all contracts and combi- because of their read forbid aggressive part, ‘tend to a mo- on their nations “which create attitude ” tendency something nopoly,’ “the is a was of concern whether which you officials, creeping proceeds “one that one” or Dayton and no one cited We have not found lias salesmen area knew testimony suggests thing happening to us a line of the same to others. against may that the exclusive whom It that is that this is all needed boycott. complains with consulted to constitute horizontal But any agreed point appears with each other about to gone case to have no thing. did, course, Each consult this far. But see United States v. agreed grant O’Connell, (2d 1948). Rike’s. Some exclusives 165 F.2d 697 Cir. being my colleagues, to Rike’s under the threat of de Like I am inclined to feel supply And nied its business. doubtless that more than this to is needed jury could have found that each of these rima for this wheel. because competitor; you watched isn’t that true, aggressive sir? A. Q. ^[*] It is ^[*****] also true, is it not, Mr. aggressive Starling, people that were the Rike watched all Yes. We Beerman’s, you competitors. as considered aware underselling it, cutting price tac- true, Q. it also that time And at is tics, familiar with what such and were you not, sure that were that is doing profit to Rike’s tactics were pressure used on methods were margin? A. Yes. suppliers, these various expressed Q. your policy Because of of meet- methods have been obtaining you purpose ing everybody’s price implied to meet your exclusivity, profit prices when was common their cut Very things leading happened? practice by A. A. all retailers? those your definitely. Pressure in that case was it, agreed word, Mr. and I Gold- Q. your buyers were And what man. trying necessi- to do to avoid that was ^[*] Q. And ->:(cid:127) it is ^[*] also ^[*] true, ^[*] it Rike’s, ^[*] not, gins; ty so as isn’t keep right, up their sir? A. profit mar- Yes, at Rike’s true. all ments; ling, minor buyers? A. because strong tactics, they by to certain amount own profit is. quire, certain methоds than isn’t it? A. selves? That’s should Q. Q. Q. Q. authority ^[*] departments buyers were your but which for their And the And That’s a fact And it was degree. secure advancement be, merchandisers isn’t ^[*] you in order to you own not, Very definitely. were Yes, authority departments and there- true, ^[*] who handle their buyers apt experience you that as and to stop also were true? A. To a aware freedom in how did ^[*] aggrandize you would have had true, it not? human anything were perhaps think that’s make a management given did ^[*] stronger in of certain for them- at charge Mr. object to, given depart- nature, A. ^[*] Star- their good they man. beat Yes. that, follows whatever true? A. sir. dise customers there would be of merchandise erally their A. That’s the fact that highest price operated didn’t Have Q. Well, now, Look at Q. Beginning Q. “Answer: Yes.” “Question: ^[******] managers and the And having on carry you because was page 28, your deposition? Very competition; under the your away very got page the same lines ? buyers necessary meet and were And definitely. didn’t cut a —“because if their divisional obvious, sir. less likelihood line 14: wanted very that’’—that were price principle that you testify running buyers upset about competition isn’t told to Mr. merchan- sir? get a line Gold- that, gen- was do A. you, wrong, sir? wouldn’t having Q. “Question: And that Yes, I would. buyers felt it would exclusive Q. you far as were con- And as maintain their for them to be easier cerned, willing you let markup?” these A. Yes. strong buyers to use these continue Q. answer, “Yes.” of, you isn’t were aware tactics that ****** right? A. Yes. Q. you question produced I read will coercive tactics con- exclusive tracts, was, again: my opinion, direct highest possible evidence au- “And it was not an uncоmmon thority in this case from which the suggest buyers or practice could have found the existence of ille- by implica- suggest say openly, or gal conspiracy. For I this reason tion, sup- suppliers, if the problem Judge’s no with the District ad- buyers pliers sold the line which hearsay mission of evidence as to the the com- as an desired exclusive employed by methods Rike’s to secure buyer petition, him- would Hearsay exclusives. state- longer buy An- line? no self by coconspirator ments made fur- : I think ill-advised swer it would be therance of the are admissi- buyer. on the there is ble when direct evidence to es- occur, “Question: Well, this did conspiracy. tablish the United States v. did it not? Gypsum Co., United States 333 U.S. you Well, have all “Answer: (1948); S.Ct. L.Ed. 746 buyers. kinds of Logan States, v. United “Question: Well, it is a fact (1892); 309, 12 L.Ed. occurred, isn’t that so? Brown v. United Probably, yes.” “Answer: 37 L.Ed. 1010 See Wigmore, (3d right, also 4 J. Evidence answer. § A. All we have the 1940). agree ed. I statement. will contracts. His withhold as acts were Mr. The indicating that Starling (cid:127)X- managerial policies taking place. business ^[*] countenanced testimony must be read -X- he compel ^[*] knew that such described ^[*] threats exclusive -X- by proached Volume stood care 161a-167a. The District admitting (and and followed I of fairness) problem illustrated Judge excluding established with which he in this case under- Appendix, hearsay. precedent pages The ap- hearsay testimony Illustrative my opinion It is threats of eco- (or quoting their named give nomic retaliation for failure to agents) pertaining to their reasons one al- an exclusive maintain Rike’s ready given selling product their to Elder-Beer- which the actions quotations. following are the man find in restraint of could to have been an Elder- each instance witness trade and hеnce violations Section giv- buyer quoting the reasons Beerman Act. threats could of the Sherman Such (usually supplier named him a en salesman) violative of also have been found to be why would as to against prohibition attempts Section 2’s not sell Elder-Beerman. (I monopolize. agree my col- leagues why, ease made out con- Skolnick no A. asked Mr. So cerning monopoly.) due consid- actual he told me that after company felt he felt and his eration Starling policies described not the store that Beerman’s was obviously long-standing applicable ones sell, the store that Rike-Kumler was periods pur- both Federated’s before sell, went into that when he filing chase of Rike’s and before the by Richard he was informed appeal. testi- now But his suit Meyers— up mony applicable must also be read Meyers, Q. man same well Richard to his retirement which occurred being beginning these period you cov- mentioned after meetings? Yes, A. sir. the case at ered issue. AMC By Starling’s testimony Q. Richard must also Go ahead. Since very conceding Meyers interested in that some of that he was be read Klinger that, buy evidently I did be- Mr. said said line, be- he and fore, getting he in- was he static from it there —that was I cause saw big Rike’s, objec- I line he would and asked what the and that terested man Stores seeing would that Rike’s—and er, Rike’s would buy set and (160a-161a). buy and he said it but * it, just it. So that I asked he -x- that sell couldn’t sell they be a better have the line them. him to * he did not want no, his his didn’t want company and * judgment please I was account, that was them, * if was reconsid- very up- felt he he us to so * Beer- that and felt he it. merchandise take Rikе’s tion carrying wanted ceived a sively dise (213a). Sometime the (cid:127)X- an extra dollar was liked to because this to and phone ^[*] that where Sioux-Mox. ^[*] carry Rike’s call from Mr. following week line fear ^[*] on the way they they the line exclu- any had with competition -X- felt like way they merchan- He said Pugh. -x- could I us boys’ us, me to sell manufactured He told that he wanted A. Abelson outerwear, living clothing, he made his on commissions suits gar- sales, bind, inwas but he in a their trade name which was Buddy, B-u-d-d-y, Buddy. Hooks was Mr. to have line for ment wanted resource, they very exclusively, not fine and did want And were wear. son. And Mr. son well man— again upstairs in this as the Rike-Kumler carried was And we carried resource, particular representative Ronnie boys’ area, my clothing Staller, Abelson, as for Abel- outer- Mr. sales- Abel- who tion. shoes line of Heath called on us So ^[*] Pugh (223a). boots, January ^[*] and he related to us that sell Bee-Gee Shoe ^[*] the Van Eli line of again ^{[*] [*]} year sell Corpora- -X- us a Mr. say your buyer, Q. salesman, he was he told You when the Rike Mr. Bob you line, you, Hooks, who called on the salesman that he sold us Yes, right, very upset the salesman mean? A. Mr. Hooks became profanity on me. in reference to himself that called used us, selling and in reference to our longer —told me he no could operation, stores, and our and told I sell me of the suits that was some through pay him that he would why buying. he I him asked couldn’t selling nose us shoes. explained sell he me the suits. And me that he had a discussion with And he also to me that he did stated Meyers of Richard Rike-Kumler from Rike- take a cut the orders Meyers did not Beer- that Mr. want (279a-280a). Kumler. Buddy, have the or Abelson man’s to * -x- * * * * line, after discussion he much Q. you meeting, do Where was this pleaded Meyers able was Mr. —he recall? A. I believe it was Chi- I could to offer me buy just concession that cago. And me Glick told Mr. that were numbers Dayton he came he called when being Rike-Kumler carried they put Rike-Kumler and decided words, any Company. num- In other shoes, and he— bought permit- I that he ber Q. Put A. what shoes? buy; anything left I could ted to over line. Bandolino buy. (168a). They carrying Q. already * * * # * (cid:127)x- Amalfi, is that it ? A. Yes. Q. place took there? What Q. Klinger Mr. had a conversa- A. And one of the Go ahead. again tried him to tion and I ask conditions would be the only carry line the shoes in the sell me his of merchandise. account to say anything time. continued said place? to service wouldn’t Rike-Kumler cut ue to sell the Stearns city. Company have to cut them an ultimatum that tresses ed to Q. Q. me told me that as ^{[******] [******]} do Will Did the So ; (293a). off, A. He it, they and that on that he was to sell he had you my account able to Company about man out. came Federated us relate pressure occasion? sorry I could much as who going sell us at (328a). would & Foster into spoke Rike-Kumler but what they not contin- to have to from the they continue he if A. He to would given three store mat- they took hat- just you there is much prevailing party Elder-Beerman’s cy sider the review of a 3 L.Ed.2d 1323 my judgment ly believed. Lavender v. 645, 652-653, for an ing trade and far & Error § 1958), aff’d, (1946); What The evidence from strongest evidence, liability has illegal conspiracy Pittsburgh most ‍​‌​​‌‌‌‌​‌​​‌​​​‌​‌​​​​​​​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​​​​‍attempt monopolize. 1562(4) (1958). conclusive, preceded 360 U.S. to possible presentation favorable evidence to on the 260 F.2d 397 we (1959); which the support S.Ct. verdict as to sufficien- case, are Plate Glass Co. v. 395, contrary. 740, required and, 5 C.J.S. record, Kurn, well sufficient 90 L.Ed. 916 to restrain jury’s S.Ct. of appellants represent (4th 327 U.S. obvious- But on to Appeal though course, 1237, find- con- Cir. during months, those three buy I I what needed

months could DAMAGES I end of three months could at the Although jury’s I would affirm the my place stock order to balance liability, verdict as to I concur in rever- or- the end of and that be our would damage sal award and in remand And ders with and Foster. Stearns rehearing of the case this issue (538-539a). way that’s ended. alone. interesting compare agree Judge fully this testi- It is I Kent with what language damage mony aspect a 1964 Rike’s with the has written as managerial per- Policy case, but I like to add some Statement would circulated, emphasis. statement was This sonnel. beginning course, well after admissibility expert witness period this case and covered testimony committed the discretion significant may found we have judge discretion as of the trial —a testimony there- tactics no coercive appellate find courts are loathe after : damage proofs Further, on abuse. be- in antitrust cases may, purchase an courts liberal at the time we We difficulty plaintiffs cause from resource do so on or line item securing figures. Story precise Parch- understanding have an that we Paper strictly ment Paterson Parchment Co. v. must be “exclusive”. This 248, understanding Co., 282 51 S.Ct. U.S. the resource between (1931). as this court 75 L.Ed. 544 But no circum- Under and ourselves. said in another antitrust specific case: that a we ask stances competitor not be sold. Judgments in anti-trust cases can- speculation not be rendered on protection an exclu- Whether guesswork, against party who otherwise, even our sive or wrong precluded any has his own managers understand must damages. precise computation of prevent more attempt influence or Pictures, Bigelow Radio any v. RKO selling merchandise sources 574, 251, dangerous 264, extremely 90 L.Ed. U.S. S.Ct. competitors 652; Lloyd Products Co. provoke Anti- v. very Volasco possibly could Roofing Co., Fry 308 F.2d investigation action. trust denied, unique (C.A. 6), as to cert. Rike’s “exclusives” were so sup- irreplaceable. Associated If Rike's kitchen 9 L.Ed.2d 717. Dayton Taft-Ingalls Corp., ply department had an Press 340 F.2d absolute Cir.), openers, monopoly denied, 382 on or its cert. area can monopo- 15 L.Ed.2d 66 hardware store had an absolute ly saws, power furnish- on or its home monopo- ing department had an absolute degree greater case, than to a In this ly mattresses, ra- then Friedlander’s damages appeal, have ever seen logical tio have a basis. Whoever would guess- “speculation rested saw, opener, power or a wanted a can a work.” go Rike’s. mattress would have to to during already all noted We have years here Elder-Beer- involved actually Elder-Beerman not But is increasing operations nota- man’s complaining not it could sell mat- profits. bly in total sales and net both It had mattresses and tresses. Simmons While fatal to Elder-Beer- this is not mattresses, only Serta to two. Its name recovering damages, it antitrust man complaint it is that did not have Stearns sugges- appellant’s support does lend to & Foster mattresses. Stearns & While injury proof specific of should tion that might might be more at- Foster required. Dayton tractive customers Sim- to than comparison or Serta, mons not of is computation relied for Elder-Beerman department the same order as where one damages, however, entirely upоn an store sells and the other can’t mattresses expert named witness Friedlander. get any mattresses at all to sell. compute dam- to Friedlander undertook ages by to me to formula which seems a judges male is Of more relevance to this basis either the shirt situation. Rike’s had exclu- reality. or in record Hathaway on Arrow shirts and on sives monopoly it a But did have damage computation shirts. Friedlander’s shirts; sold Manhat- specific the ratio between a started with argue tan shirts. isn’t to This had an exclu- which Rike’s not, Hathaway and Arrow exclusives compared total sive name brand damage have done to sales, Elder-Beerman. deducting sales, the exclusive after point monopoly The product monopoly is that comparable brand de- the total to partment sales entirely are different He then Elder-Beerman. irrepla- proofs and that absent of brand multiplied the exclusive Rike’s sales (which ceability, Friedlander’s ratio un- by of Elder-Beer- ratio name brand testimony) utterly derpins his entire sales minus total man’s sales figure without foundation. particular brand. The name this sales.” called “lost at he arrived thus true, course, that Friedlan- $14,309,632 cal- when amounted This recogni- gave der’s next calculation some against of the lines culated tion the fact Elder-Beerman’s employed. Friedlander might possibly be satisfied customers logic, it Friedlander’s I understand As a with a Manhattan shirt or Simmons Elder-Beerman’s ca- ratio of is that the appears this calculation mattress. But Dayton goods pacity customers to sell possible on even thin- rested if have properly compared shown to Rike’s is ner аir. Hence, Elder-Beer- comparison. “lost” a sim- be held have man should origin Friedlander described percentage ex- sales of the Rike’s ilar “sharing” formula on cross-ex- his thus denied had been brands which clusive amination : it. come from ? theory the total- did formula is founded Where This My ly unsupported assumption that each A. head. seeking top a name up tomers who were Q. made You the Elder-Beer- explain did not come into brand me

purpose? Let A. buy did not other man stores and hence you. that same visit. that store on items see, you trying to when You again, judgmental employed Here he a through problem situa- or a a think derived a mathematical for- curve and concept, you a come tion like this By it. added mula to fit this method he pictured concept often be can “peripheral for a total lost sales” lost pic- graph ais graph, see. $44,000,000 estimate sales your concept. ture of through years He then un- thinking. Now, this is in creative arbitrary dertook formulae Otherwise, you Q. when Yes. figure profits fi- to lost reduce this formulae, these curves with have all nally up wound estimate arcs, catenary all they represent some million odd dollars of such lost $7 thinking in creative stuff. But profits. you picture, you have jury obviously did not fol- While your mind, thought, concept way tes- low Friedlander all the on this paper piece pictured on a it can be justification timony, I cannot find for you picture it and graph. So go letting theory damage of this you develop describe a formula to then jury. picture finish it off to and get you you way And so want it. long Perhaps if there had been this puts curve, ev- nice, аnd that smooth controversy way relate Eld- no at all to orderly erything an basis. on damages to er-Beerman’s established give imprimatur, facts, opinions it an doesn’t That like those referred even know, holy it, you might make for it doesn’t admissible want to above writ. mind. pretty sir, curve? will I drew the That was A. That’s Q. Q. Q. Q. ^[*] express that You think? Do Then You close, yes. It substantiates X you is drew rough No. you just right. have ^[*] picture —That’s curve? said, of A. any X that curve curve first? What I data I had think that what X particular whatever formula X it first. my A. is. is prove course, ing suppliers the direct experience was withheld quent of But Beerman it would closed, Elder-Beerman’s held merchandise from subpoena sired brand was better. while years any these hardly to Rike’s they during result of But before this record Elder-Beerman proofs records except were experience serve which compare with subse- on its contesting liability, securing were available 12. Thus their all a desired brand Federated also. litigation years of the after shelves. Of damages purposes the with- of sales offend- Elder- had de- by damages represent an essential all. And Newton had no data about cen- any plaintiff’s case. sphere, ter of forces in a some- ' body up made him hold the mathemat- possible should be On remand years got ics for he two before it. It sug- proceedings through pretrial it, awas shame. He he knew it knew Judge stipulate gested by Kent way. worked that We all know suggested comparisons above. things. (1487-88a) (Page such num- Appendix.) bers refer to presented appellate con- issue No is Judge cerning of the District the failure Friedlander then undertook to calcu- jury pеripheral could not award late of sales —these instruct loss being arguably sales lost because cus- damages Elder-Beerman granted conspired wholly with one anoth- as were combined lawful exclusives boycott plaintiff. suppliers of their own er to effect a Thus by on basis charged jury: by specifically policies coercion the court unaffected sales restrain intent Rike’s charge plaintiffs also Judge monopolize. The District trade or have Rike’s and refused did, course, give careful instruction plaintiffs have to sell to combined and find jury could not on the fact that plain- conspired boycott effect a ex- liability the basis of Rike’s on tiffs in Act. violation Sherman policies clusives particu- you on instructed entirely responsible. solely is But meaning lar of the words “combina- possible on this record they tion”, “conspiracy” as- illegal conspiracy an between found used in cases. antitrust suppliers and and a dozen coerced boycott The definition of word damages testimony computed still may be stated: lating suppliers. The omission of to 63 agreement boycott “A between point specific on this instruction acting whereby togeth- manufacturers plain damages appears to to be error. me agree them er, that none of will important It is an Fed.R.Civ.P. 51. buyer particular deal retail- with a should be dealt omission which er.” damages. on retrial of boycott particular A is a kind reasons I For these believe conspiracy. It a collective refusal liability affirmed verdict should be agreement among compet- to deal dollar favor among ing buy- competing sellers or judgment damages should be vacated refusal ers. be a collective for retrial. and remanded buy particular from a manufacturer among agreement a an result of ADDENDUM buyers. competing Or it be a my on views affirmance Since particular a refusal to sell to collective liability proved jury to verdict as agreement as a result an customer colleagues, unpersuasive my this case to among competing sellers. intervention) (absent Supreme Court boycott, and What would be what retried. must be would a violation of the Sherman deviating opinions from the Without agreement among Act, would be an above, my expressed vote record now whereby several manufacturers conspiracy restrain include the agree all with each other that none of issue in the new trial. trade particular buyer. them will sell to a agreement among We manufac- call MILLER, Judge Circuit WILLIAM E. agreement, turers a because horizontal dissenting (concurring part among persons who are part). process. same the distribution level naught in this case sets at A reversal instructing you I am that a horizontal presided complex protracted trial a agreement among manufacturers Judge pa- District with over agrees whereby each with the others ability. tience, fairness and Neverthe- buyer particular to sell a would considering less, a whole the record as boycott. be unlawful the theories on which the case explanation I direct presented directions to with guide determining you what should general ap- verdict, a this result return al- whether a kind pears to to be inevitable. me leged by the has been established evi- theory plaintiff’s One such dence. proof of the that the under Sec. 1 claim appeal, a horizontal established Sherman Act On advances the suppliers boycott theory in that Rike’s and the same alternative there was

163 from which the sufficient evidence elimination Elder-Beerman as a com- petitor Dayton concluded that there was a in the market. could have sup- on the of the concert of action granted by suppliers Exclusives together Rike’s, boycott pliers, per are not se of the retailer violative therefore, argued is, Elder-Beerman. antitrust laws. United Arnold States v. liability per se with re- there was a Company, 388 U.S. Schwinn & alleged conspirators spect to all of the (1967). L.Ed.2d S.Ct. ruling Klor’s, Inc. the basis of the exclu The mere fact that a number of Broadway-Hales Stores, Inc., granted by separate sup sives were 3 L.Ed.2d 741 acting individually, pliers, to the same record, A careful examination though dealer, dom that dealer was even however, in this case fails sustain market, particular is not inant theory of a 1 violation. Sec. The enough un invalidate the exclusives only suppliers allegedly reference en- liability. theory The der a Sec. 1 gaged in such a concert of action were rely upon plaintiff and the district court suppliers, silver members the sil- 237 F.2d Poliafico v. United guild. evi- versmiths While there was Cir.1956), denied cert. sterling dence that a number of sil- L.Ed.2d plain- ver refused to sell to the support proposition (1957), tiff, is no substantial supplier did “the fact that one such there was communication dealings with another not have agreement In between them. Klor’s the clearly distin matter.” does complaint alleged that the manufactur- factor, however, guishing Po is that products ers distributors various knowledge conspirator had each liafico among conspired themselves and with plan con of the unlawful of the overall chain of either not to stores although narcotics, spiracy sell petitioner sell to or to do so at discrim- knowledge conspirators did not have inatory prices highly and on unfavorable the existence conduct or the actual defendant filed a motion for terms. The co-conspirators. In the case before their summary judgment and the factual alle- wholly insufficient us record is gations complaint were not dis- (even jury issue) to raise puted. consequence, held the court knowledge of an unlawful suppliers had complaint was sufficient to es- up sys one) (if plan to set there was boycott per tablish horizontal se with Rike’s which of exclusives tem liability part on the defendant. imposing purpose an un unlawful case, present noted, In the the evi- restraint trade. reasonable clearly dence is insufficient to sustain Judge agree that Kent I with Since theory liability any such or concert alleged 1 violation Sec. of action on the of the ei- general proved, follows that ver- it among ther or with themselves Rike’s to jury and that of no effect dict of the boycott plaintiff, to eliminate plaintiff judgment favor competitor as a in the market. & v. Winckler must be reversed. Sunkist Smith, 8 L. The most that the evidence in this (1962); Products Co. Volasco Ed.2d 305 justify finding case could would be a Roofing Co., Lloyd Fry F.2d v. separate agreements several and distinct (6th Cir.1962). 383, 390 sup- between Rike’s and one or more pliers (vertical confinements). Judge However, opin- But as- as I read Kent’s suming found, ion, plaintiff may per- that could have so remand the be on (possibly the case would fall short of still a Sec. 1 after amendments mitted some violation, complaint) retry since there is no the case on all substantial proof separate liability. that or distinct As we find theories of three. agreement purpose theory had as effect its was not estab- the Sec. my proof, unreasonable restraint trade or the lished view day on plaintiff in court has had permitted not be that it should issue and Also, we find that since trial. another monopoliza- abandoned right theory a retrial no tion it has my opinion issue. It is granted the judge should have district n.o.v. both

defendant’s motion alleged spect Sec. 1 violation monopolization under the claim of

as to

Sec. 2. the evidence

I believe further of at- take the issue

was sufficient tempt monopolize 2 of under Sec. Act to the

Sherman for re-trial remanded

case should agreed pretrial alone.1 that issue helpful prove should conferences delineating the the District Court during might questions arise

trial. PARKER, Appellant,

Lee Holden Warden, SWENSON,

Harold R. Missouri Penitentiary, Appellee. State

No. 71-1593. Appeals, States Court of Eighth Circuit.

Submitted March 1972. April

Decided 1972.

Rehearing May Denied theory. plaintiff’s monopolization 1. An examination almost in the brief Yet page page plaintiff argues breath in its reveals same position respect monop monopoliza charge with brief the Court’s prejudicial issue tion under and that Sec. Sherman olization was equivocal proof monopoliza Act is ‍​‌​​‌‌‌‌​‌​​‌​​​‌​‌​​​​​​​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​​​​‍at best and ambivalent. there was sufficient misleading. me it To brief tion and of the relevant market. these con quotations agree Judge Judge circumstances, tains the Kent referred to plaintiff opinion clearly Kent his should be held to have theory liability. appears abandoned the abandoned this

Case Details

Case Name: The Elder-Beerman Stores Corp. v. Federated Department Stores, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 11, 1972

Citation: 459 F.2d 138

Docket Number: 20716, 20762

Court Abbreviation: 6th Cir.