*1 Judge. HARTIGAN, Circuit Plaintiff, Inc., CO., HEEL

ATLANTIC judgment of appeal This is an from a Appellant, for the United District Court States dismissing District of Massachusetts plaintiff’s complaint al., Inc., CO., ALLIED et HEEL for failure to state Appellees. Defendants, Act, 15 U.S. claim under the Sherman No. 5713. C.A. 1.§ Appeals Court States United Plaintiff-appellant, Heel Atlantic Circuit. First plain- alleging Inc., filed a 15, 1960. Dec. corporation en- a Massachusetts tiff is gaged and sale in the manufacture heels; that its leather and leatherboard Boston; suppliers plant its located in several

and are located customers leading sup- states; concern in the it is a heels, ply and of leather and leatherboard share substantial lines of merchan- in the related business dise. alleges that de- conspiring conspired and are

fendants plaintiff in interstate and restrain the foreign business, particularly that more destroy plaintiff conspired foreign business, in its interstate and (1) in furtherance of this and competitive with established a business originally operated plaintiff, partnership expanded operated presently Co., Inc., a Mas- Allied Heel as defendant (2) corporation; Ir- defendant sachusetts acting ving Keiter, for himself and J. for enticed defendants induced and the other factory plaintiff’s superintendent of key plaintiff employees leave and other Allied, and as a work defendant and consequence and volume production impaired,' and plaintiff’s expenditures make had to unnecessary; have been would otherwise Irving Keiter, (3) at the J. defendant Boston, Mass., Cross, B. with Claude instigation in behalf of all de- Withington, M. Reed John whom plaintiff’s plant fendants, without visited McCann, Boston, Mass., Cross, Park & acquiescence or consent plaintiff’s brief, appellant. obtaining valuable and con- LaVine, Boston, Mass., L. Edward secrets; (4) all the defend- fidential Markell, Joseph B. Abrams Samuel whom disparaged and ants Storrs, Boston, Mass., & Goulston intentionally products false state- appellees. brief, for financial ments relative standing persons WOODBURY, Judge, other matters to Chief Before including sup- customers and ALDRICH, established HARTIGAN Judges. pliers *2 fiduciary duty plaintiff’s plaintiff customers lated with relations damaged; (5) by performing suppliers director attribut- been acts during acting Keiter, for themselves able him his tenure director defendants as defendants, plaintiff. complaint sales- of al- and the solicited The other leges by repre- who of men had been commission course action undertaken induce, plaintiff and did has will ef- sentatives of had and have the defendants salesmen, repre- eliminating plaintiff of re- induce senting to cease fect from and two such repre- straining plaintiff plaintiff position as one and undertake in its leading supply sentation the of the of of defendant Allied with concerns in the heels; plaintiff lost leather and such has valuable leatherboai'd territories; (6) injure in business defend- elimination and restraint will those themselves, acting Keiter, public and interests ants for of and the trade removing supplier on of mate- information and belief behalf a substantial of industry defendants, instituted, in bad the other faith, rials for shoe in interstate against plain- plaintiff a suit commerce with a harmful resultant effect president pur- availability tiff’s pose with the intent and and on the of choice damaging plaintiff of alle- al- false the trade. Plaintiff customers gations damages leges as cor- to diversion and waste of has suffered porate request $250,000 judgment a re- funds and amount of and seeks ceiver, injunction, plaintiff damages, with the result that for treble costs damaged attorney’s in its with cus- relations and reasonable fees. suppliers; (7) tomers information Defendants filed a motion to dismiss and belief one more of defendants 12(b) (6) action under Rule F.R. Keiter, acting for themselves and be- Civ.P., 28 U.S.C. for failure state 1, instigation half and at the of the other a claim under Title 15 U.S.C.A. §§ plaintiff’s with interfered granted 26or relief could which materials, supply sources of ing delay of caus- raw by the district court. The district court filling plaintiff’s of orders in a brief memorandum decision held suppliers, ef- such with the intent and allegations that “the insuffi deemed rendering plaintiff fect unable meet of scope cient to the case within the resulting orders, its customers’ in the judg of laws” the federal antitrust by plaintiff’s of cus- cancellation orders of dismissal ment was entered on June business; future tomers loss their 8, 1960. (8) Keiter and Allied on in- defendants question presented appeal on this falsely represented formation and belief whether sufficient- that defendant Allied was branch ly alleges a violation of Section 1 of the otherwise affiliated with in order Act, amended, Stat. for defendant to obtain credit Allied 15 U.S.C.A. 1.§ others; (9) suppliers, utilities and one Woodbury Corp. In Mitchell v. Albert acting Keiter or more Co., Cir., 1930, Pick-Barth instigation and at the themselves held court sufficient a plaintiff’s plant other defendants visited alleged conspiracy to restrain the plain- times to interfere with various trade of interstate and to employees performance tiff’s of destroy equipment in kitchen making disparaging duties re- their said; This court and utensils. concerning plaintiff plaintiff’s marks “Here the intent of a con- president and statements intended to dis- spiracy between the defendants was employees or distract such turb from destroy regular functions, resulting in deprive plaintiff it of its inter- quantity loss of volume proven alleged, state business. If production profits; and attendant loss of purpose, it was an unlawful an undue Irving (10) J. Keiter in defendant behalf interference with com- merce, himself and the other injurious defendants vio- and to that extent is interest, Supreme en- Court held that the members in- who, titled to the and full flow labor union free unionizing subject trade, factory to such terstate the business of *3 effect natural and reasonable com- largely engaged interstate, which was may petition have it.” protracted sit-down forcing strike the alleged the suspension business, of the interstate defendant “was one of a combination explicitly requests who refused allow corporations of allied similar name and removal finished for ful- merchandise engaged interests in the same business orders, fillment of interstate were not larg- as the the and constituted engaged conspiracy in a in restraint of dominating est and in that factor meaning trade within the the Sherman ”*** throughout States; 'the United opinion Act. The contained the Court’s allegation page Although Id., at this following language: court, by it not is mentioned the does “ ** * analysis seem crucial to of the the court’s sought The end was gravamen alleged of the violation of prevention of com- restraints free antitrust laws. petition in business and commercial judgment merits, transactions which tended to After restrict trial production, raise plaintiff despite otherwise was finding special jury control the market to the detriment ac “the goods purchasers quisition consumers business did services, all of come which had not effect an unreasonable restraint regarded special appeal, to be form of trade.” On this court in Al said public injury.” Id., Woodbury page 310 bert Pick-Barth Co.v. Mitchell U.S. at 493, Corp., Cir., 102, 1 certiorari denied 286 52 U.S. S.Ct. “ ** * In the cases considered 76 L.Ed. 1288: Court since the Standard Oil “To constitute offense under Oil [Standard Co. v. United Act, section 1 of the is States, 221 31 U.S. S.Ct. 55 necessary, not if a is in 1911 L.Ed. of re- 619] form proven, and intent of competition straint commercial unfair was to eliminate qua been the sine non competitor in interstate means contracts, condemnation combina- trade, to show that the conspiracies tions or under the Sher- affected, and to is what extent. Nor general Act, and in man restraints necessary act, is under this as it upon competition have been con- any law, prove at common overt only demned when their acts in order constitute the offense was to raise or fix effect the market defined in section if overt price. inis this sense that it is proved acts are in furtherance of the restraints, actual or in- offense in section defined tended, prohibited the Sherman thereby injured one is busi- Act are those which are so sub- property, conspirators ness or prices. stantial to affect market under section 7 of the Act are liable Restraints on or on the therefor.” merchandising of trade in course Woodbury Corp. Since Mitchell is so moving of articles in interstate com- closely similar to the facts enough, merce the re- unless case, instant ing we are warranted in revers- straint shown to have is intend- per- the lower court unless there are upon prices have an ed to effect arguments repudiating suasive deprive the market or otherwise we held there. view purchasers or consumers of the ad- vantages Apex Hosiery Leader, 1940, In Co. derive from * * competition. Id., free S.Ct. D.C.D.Mass.1941, Ass’n, 500-501, v. Forward pages 60 S.Ct. at U.S. F.Supp. 294. page 996. “ * * * any case, re- And in Recently, however, Supreme Court seen, of is, straint here as we Stores, Broadway-Hale Klor’s, Inc. v. has not been different kind 3 L.Ed. S.Ct. any actual or intended .shownto have 2d alleged held sufficient n effecton competition.” price price retail 310 U.S. at partment chain, manu store and several page 998. facturers and of household distributors *4 appliances, among conspired them had “ * * Underlying implicit and appliances selves not to to either sell recognition that in all of them single lo store outlet retail to the not enacted Sherman Act was cated next door to one of department stores, chain’s the transportation, police or interstate or to sell to remedy wrongs, to afford a highly discriminatory at un and law, state actionable under terms, that favorable the defendant retail from combinations and con- monopolistic buying power chain used its short, spiracies fall both in situation, to about the above effect, any form their appliance business was in interstate commodity, (cid:127)of market control of commerce and the concerted refusal to ‘monopolize supply, as to such seriously deal with had handi price, or discriminate be- control capped plaintiff’s ability compete purchasers’. tween * * * would-be profits. caused loss of it " Court re 512, Id., page at 310 U.S. jected the basis of the lower court’s dis page 60 at 1002. S.Ct. missal, e., charge i. that “there was no proof by any Following or Apex Hosiery act case there price, quantity, quality several more or re cases which less offered the principles quoted lied on the above public affected, was nor that there was holdings support applied them in any change intent to effect a alleging conspiracies -complaints re in, on, prices, quantity or an influence interstate trade were insufficient strain quality.” Id., page 359 at U.S. 79 charge a the Sherman Act violation of S.Ct. 708. The Court stated: “allege there was a failure facts since “ * * * This combination takes be from which could determined buy appli- Klor's from its freedom to of law that a combination con matter open competitive in an brought ances market spiracy was' into which out of prices drives business as a in to the con .about increase products. in the suming dealer defendants’ public, a diminution in the vol deprives It the manufacturers competitive of merchandise ume markets, distributors freedom sell in a deterioration to Klor’s at the same and con- chan merchandise available (cid:127)of the Broadway- any ditions made available commerce, other like evil nels of n Hale and some instances forbids consequence in free flow of interstate n commerce.” selling from them to it on terms Shotkin General Electric whatsoever. It interferes Cir., 1948, 171 F.2d 10 flow of natural Ward, commerce. Motors v. 10 Feddersen See Cir., clearly has, by It 519; its ‘nature’ In 180 F.2d Schatte v. ‘character,’ ‘monopolistic tendency.’ Alliance, etc., Cir., 9 ternational it is As such merely to be tolerated 340 denied U.S. certiorari just 608; because victim is Klor’s, one Inc. 95 L.Ed. 71 S.Ct. whose Broadway-Hale merchant business is so small Stores, Cir., 9 destruction makes little dif- U.S. F.2d reversed 359 * * * economy. to the ference 705, L.Ed.2d Swartz S.Ct. and„ page 213, applies, rationale of the Klor’s allegations thus, no facts showing the basis of harm Hosiery case, regard Apex In consequent the re- unreasonableness of Supreme Court said: necessary.1 straint are heavily relied “The court below Leader, Hosiery Apex on Co. v. In Northern Pac. R. v. United Co. 84 L.Ed. U.S. 60 S.Ct. States, 1958, 514, 2 reaching While its conclusion. Supreme L.Ed.2d 545 the said in Court language can that case regard violation doctrine: position that supporting read as designed “The Sherman Act prohibited no by restraint trade is comprehensive be a charter eco- unless it Act of the Sherman § liberty preserving nomic aimed at an effect has or intended to have free and unfettered prices, such statements market the rule of trade. rests light of must be considered the premise that the unrestrained inter- in that case fact that the defendant competitive yield action of forces will *5 union. The Court was a labor the best allocation of our economic- recognized Apex the Act is resources, prices, the lowest the- primarily aimed at combinations highest quality greatest. and the having objectives and is commercial progress, material while at the same- only very applied to a limited extent providing time an environment con- unions, organizations, to like labor preservation ducive to the of our normally objec- have other political democratic and social insti- ”* * * Ibid., note 7. tives. tutions. open premise- But even were that following Thus insofar as the cases question, policy unequiv- to Apex requirement on a ocally relied broad of laid down the Act is com- prices, quantity petition. effect they pro- And to this end rejected. might noted, must It be ‘Every be contract, hibits combinationi * * * however, that the Klor’s case involved conspiracy, in restraint group boycott or concerted refusal to among of commerce the sev- deal. 359 U.S. Although The Court prohibi- eral States.’ S.Ct. at 709: literally all-encompassing, tion is the- preclud- courts have construed it as boycotts, “Group or concerted re- ing only those contracts or combina- fusals traders to deal with other restrain-, ‘unreasonably’ tions which long traders, have held to be in been * * * competition. category. They have the forbidden by allegations that been saved not “However, agree- there are certain specific they reasonable in the were practices ments or which because of circumstances, nor a failure pernicious competition- effect on regulated they ‘fixed show that any redeeming and lack of virtue are pro- prices, parcelled limited out or conclusively presumed be unrea- brought duction, a deterio- about illegal sonable and therefore without ”* * * quality.’ ration inquiry precise- elaborate as to the they harm question for is wheth- have caused our decision or the busi- allegation conspiracy prin- ness excuse for their of a use. This not the er or per alleged ciple destroy competitor of se here as unreasonableness not type makes per so that of restraints. se violation § concept public injury. Apex following Therefore, above as ref eases cited 1. The explicitly must erence be made Hosiery not hold that cases defin did per ing destroy se violations conspiracy a com see or restrain if there violation, persuasive authority contrary hut petitor to our- Woodbury. particular decision in Mitchell held that rather Hosiery Apex within the not come did performed with the proscribed entered into or legitimate the Sherman which are reasonably purpose for- benefit Act more certain warding personal everyone concerned, and de- interest incredibly contrary veloping trade, but, necessity an avoids the give complicated prolonged economic of such a character as history presumption investigation rise to the inference or into the entire involved, industry well had been entered into of the wrong industries, done the intent to do in an effort to related general large particular to right to limit the termine at whether restraining individuals, unreasonable— thus restraint has wholly inquiry fruitless tend- the free of commerce and so often flow Among ing prac evils, such as about the undertaken. when prices, hereto enhancement of tices which the courts against public in and unlawful considered to be policy. fore deemed to ** fixing, price Unit of themselves Co., Socony-VacuumOil v. ed States Viewing 150, 210, case, instant we believe markets, division destroying competitor by means Addyston Pipe & United States honest are not within the of fair and area 85 F. [6 Cir.] Steel clearly sub- is a 211, 20 L.R.A. affirmed goal verts the Act. boy 136; group 96, 44 L.Ed. constitutes an interference Originators’ cotts, Guild Fashion commerce natural flow *6 Comm’n,312 U.S. Federal Trade 668, under conditions which would exist L.Ed. buyer’s rivalry fair and honest arrangements, tying International Package Corporation Closure trade. See States, 332 U.S. United Co. v. Salt Sealright Co., Cir., 141 F.2d 20.” 92 L.Ed. 68 S.Ct. 972, 977-978. 4-5, pages at 78 S.Ct. Viewing expounding the the decisions page 517. per philosophy of the Sherman Act it, of we are convinced violations Oil often cited case Standard In the holding of this court in Mitchell States, United Co. v. ap- Woodbury is correct and should be plied to the instant ease. philosophy Sher- thus stated: man Act was complaint in the believe We alleges case instant stroy going detail, into “Without competitor means so inimical briefly surveying very but the whole and full of interstate “to free flow may accuracy field, it be with to constitute a se violation trade” as dread of enhancement of that prices 1 of the Sherman Act. See n of Section wrongs of other which it Basket D.C. also Cleavesv. Peterboro thought would flow from the D.N.H.1931, 54 F.2d 101. competitive limitation on undue con- vacating Judgment will be caused contracts-or other ditions judgment of the district court and re- corporations, of individuals acts manding proceedings led, public policy, a matter of opinion. this inconsistent with treating illegal prohibition or or acts which un- all contracts reasonably competitive WOODBURY, Judge, restrictive Chief conditions, Judge ALDRICH, (concurring). either from the nature of the contract or act or character Judge surrounding I ALDRICH and concur in the circum- where the stage justify see no occasion at this result but such as to stances express en- of the case wholehearted had not conclusion laid of the rule down dorsement Mitchell Pick-Barth Co.v. in Albert

court Woodbury Cir., Corp., 1 good may law the case is unique its facts in 1932 it was alone can determine it stands far as we so today. stage ease of the instant At this our- no for us to commit need definitely the Pick-Barth rule. selves CLARK, COUNTY STATE OF OF Appellant, NEVADA, America, UNITED STATES Appellee. No. 16739. Appeals States Court of United George Dickerson, M. Gordon L. Haw- Circuit. Ninth kins, Vegas, Nev., appellant. Las Nov. Acting Heffron, Atty. Howard A. Asst. Gen., Jackson, Lee A. Prescott, A. F. Buckley, Attys., Dept,

Helen A. of Jus- *7 tice, Washington, C., D. Howard W. Babcock, Vegas, Atty., Nev., U. S. Las for the United States. MERRILL,

Before CHAMBERS and Judges, BOWEN, District Judge. PER CURIAM. parties opposing assert The claims to a $52,000.00

fund in the amount of now in the hands of the District Court for the District Nevada and created District Court connection with bank- ruptcy proceedings. Each claim is based obligations upon bankrupt tax es- The United tate. States claim is found- perfected upon tax ed lien for sums due adjudication prior bankruptcy. The County claim is based taxes accru- during ing pendency bankrupt- cy proceedings. County contends sums these constitute costs of ad- preservation ministration of the es-