United States District Court, Northern District of Illinois, E.D
November 28, 1972
SKIL CORPORATION, A CORPORATION, PLAINTIFF-COUNTER-DEFENDANT,
THE BLACK AND DECKER MANUFACTURING COMPANY, A CORPORATION, DEFENDANT-COUNTER-PLAINTIFF.
The opinion of the court was delivered by: McLAREN, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiff-counter-defendant's
motion to strike the third affirmative defense in the answer of
defendant-counter-plaintiff. The motion is granted.
The complaint alleges that defendant Black & Decker
Manufacturing Company ("Black & Decker") violated sections 1
and 2 of the Sherman Act, 15 U.S.C. § 1 and 2; sections 3 and
7 of the Clayton Act, 15 U.S.C. § 14 and 18; and subsections
(a), (c), (d) and (e) of section 2 of the Robinson-Patman Act,
15 U.S.C. § 13(a), (c), (d) and (e). Plaintiff seeks monetary
damages and an injunction that would bar defendants from
continuing the allegedly illegal course of conduct.
Black & Decker's third affirmative defense seeks to invoke
the doctrine of unclean hands as a bar to injunctive relief by
alleging that Skil Corporation
("Skil"), through its agents, made an unsuccessful attempt to
involve Black & Decker in a conspiracy to fix prices. It is
further alleged that Skil engaged in field price
discrimination and that this suit was brought for purposes of
harassment. Skil argues that since Black & Decker is charged
with antitrust violations, the doctrine of unclean hands is
not available to Black & Decker as a means of defeating Skil's
request for injunctive relief.
Courts have divided on the applicability of the unclean
hands doctrine in private antitrust actions seeking equitable
relief. Cases holding it applicable include Singer v. A.
Hollander & Son, 202 F.2d 55 (3d Cir. 1953); Graham v.
Triangle Publications, 233 F. Supp. 825 (E.D.Pa. 1964); and
Louisiana Petroleum Retail Dealers v. Texas Co., 148 F. Supp. 334
(W.D.La. 1956). Cases to the contrary include Hawaiian
Tuna Packers v. International L & W Union, 72 F. Supp. 562
(D.Haw. 1947); and Magna Pictures Corp. v. Paramount Pictures
Corp., 265 F. Supp. 144 (C.D.Cal. 1967). This Court is of the
view that the doctrine of unclean hands should not prevent a
plaintiff from seeking injunctive relief in a private
In reaching this conclusion, the Court has taken into
account the important role that private actions play in
anti-trust enforcement. As stated by the Supreme Court in
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,
130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969):
". . . [T]he purpose of giving private parties
treble damages and injunctive remedies was not
merely to provide private relief, but was to
serve as well the high purpose of enforcing the
antitrust laws. E. g., United States v. Borden
Co., 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98
L.Ed. 903 (1954)."
See also Perma Life Mufflers, Inc. v. International Parts
Corp., 392 U.S. 134
, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968).
Granting that, in treble damage actions, the in pari delicto
defense may retain some utility in discouraging participation
and preventing unjust enrichment of plaintiff-participants in
the violations complained of, different considerations govern
the unclean hands doctrine in equity cases. Here, the public
interest in terminating anticompetitive conduct takes
precedence, and any incidental benefit to the plaintiff may be
regarded as a worthwhile price therefor.
Black & Decker's third affirmative defense is accordingly
It is so ordered.
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