The opinion of the court was delivered by: Campbell, District Judge.
This is a suit for injunctive relief, brought under the
provisions of Sections 2(a), 2(d), 2(e) and 16 of the Clayton
Act, as amended by the Robinson-Patman Act, 15 U.S.C.A. §§ 13(a),
13(d), 13(e), and 26. The complaint alleges, in substance, that
the defendant has secured the business of the plaintiff's
customers by offers of discriminatory prices or discounts, gifts
of merchandise or equipment, and interest-free loans. The
defendant has moved for summary judgment on the ground that none
of these alleged practices occurred in interstate commerce.
The case of Moore v. Mead's Fine Bread Company, 75 S.Ct. 148,
150, decided by the Supreme Court on December 6, 1954, dictates
that defendant's motion be denied. In the Moore case, the
plaintiff's activities were completely intrastate in character:
he assembled his raw materials in New Mexico, manufactured his
product in New Mexico, and sold to his customers in New Mexico.
On the other
hand, the defendant's activities reached into the neighboring
State of Texas. There was a vigorous price war between the two,
and, as a result, the plaintiff was forced to close his business.
The Supreme Court held that the plaintiff, the "purely local
competitor," might maintain an action against the defendant under
the provisions of the Clayton Act, saying
"We have here an interstate industry increasing its
domain through outlawed competitive practices. The
victim, to be sure, is only a local merchant; and no
interstate transactions are used to destroy him. But
the beneficiary is an interstate business; the
treasury used to finance the warfare is drawn from
interstate, as well as local, sources which include
not only the respondent but also a group of
inter-locked companies engaged in the same line of
business; and the prices on the interstate sales,
both by respondent and by the other Mead companies,
are kept high while the local prices are lowered. If
this method of competition were approved, the pattern
for growth of monopoly would be simple."
True, the facts of this case present the converse of the Moore
situation: if all issues presented by the motion for summary
judgment were resolved in defendant's favor, this suit would be
one brought against a dairy which does not sell its product in
interstate commerce. Since the affidavits filed in support of the
motion do not refer to the plaintiff's activities, the court
assumes that the plaintiff's product is sold in interstate
commerce. Under the Moore decision, therefore, the plaintiff
would be amenable to suit filed by the defendant under the
Clayton Act; and, in the opinion of the court, the plaintiff must
be accorded a corresponding right to file suit in its own behalf
under the Act. In this respect, it is well to note the words of
Congressman Utterback, manager of the Robinson-Patman Act in the
House, quoted by Mr. Justice Douglas in the Moore case:
"`Where, however, a manufacturer sells to customers
both within the State and beyond the State, he may
not favor either to the disadvantage of the other; he
may not use the privilege of interstate commerce to
the injury of his local trade, nor may he favor his
local trade to the injury of his interstate trade.
The Federal power to regulate interstate commerce is
the power both to limit its employment to the injury
of business within the State, and to protect
interstate commerce itself from injury by influences
within the State.' 80 Cong. Rec. 9417." (Emphasis
Those words certainly lend much support to the maintenance of
suits such as the one at bar.
It is the considered opinion of the court that the plaintiff
need not demonstrate that the defendant's activities are in
interstate commerce, and, for that reason, that the court need
not resolve any issue of fact or law which might have been raised
by the pending motion.
The defendant's motion for summary judgment is denied.
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