The principal contention upon which the plaintiff apparently
rests its complaint is that the leasing company and its parent,
the First National Bank of Chicago, have the financial power to
exclude competition. Plaintiff alleges, on information and
belief, that First Lease Inc. can acquire unlimited funds from
the First National Bank of Chicago without interest or finance
charges, whereas the plaintiff must pay in excess of 10% for the
financing which is necessary to operate an automobile leasing
business. Contrary to these allegations, however, the president
of First Lease Inc. states that his company paid 10.87% on its
borrowed funds through August 31, 1974, whereas the president of
the plaintiff corporation admitted that his company paid less
than 10% a year in interest. Therefore, although the defendants
might have the theoretical potential to finance an automobile
leasing business without interest costs, there is no evidence
they have done so or intend to do so. It would, of course,
violate the bank's obligations to its stockholders, depositors,
and Federal regulations to do so.
Plaintiff also contends that the defendants have reduced the
rental charges for automobiles, or intend to do so. However, this
is likewise unsupported by any facts in the record. The
defendant's affidavit states that its charges are based upon
costs and "the exigencies of the market place" and that it has
not reduced prices in order to exclude competition. There is no
evidence in the record concerning the rental charges of either
party or of their many competitors, and the deposition of the
plaintiff's president admits that the cost of leasing from the
plaintiff and the defendant First Lease Inc. is substantially the
same (Metnick deposition pp. 196-201 and 457-59).
A final requirement of an anti-trust violation is damage to the
plaintiff's business. Although it identified two customers
allegedly lost to the defendants, the causation for this minimal
damage, if any, has not been shown. Furthermore, the plaintiff
seems to concede that it has sustained no damages up to the
present but that it fears a possibility that this may occur in
the future (Metnick deposition p. 204). It also has admitted that
no leasing companies have been forced out of business by the
defendants' activities, although there are apparently 100 such
businesses in the relevant market area and they are constantly
entering and leaving the business (Metnick deposition p. 468-9).
The absence of damage is an additional ground for granting the
defendants' motion for summary judgment. See Kearney & Trecker
Corp. v. Giddings & Lewis, Inc., 452 F.2d 579, 599-600 (7th Cir.
1971); c.d. 405 U.S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972).
It is not uncommon for a conspiracy to exist between related
corporate entities, such as the defendants. See Kiefer-Stewart
Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct.
259, 95 L.Ed. 219 (1951). The charge of preferential or
non-existent charges between the two defendants is wholly
unsupported by any evidence, however, and this is the only type
of conspiracy which seems to be charged. Therefore, there is a
complete lack of any evidence of a conspiracy, a combination, or
an intent to monopolize, within the meaning of the Federal
statutes relied upon by the plaintiff.
Turning to the motion to dismiss Count Two, it is difficult to
understand plaintiff's theory on this count. It realleges the
same facts and circumstances as in Count One and claims a
"violation of the Fifth Amendment of the United States
Constitution", also citing 12 U.S.C. § 1843. The statutory
citation is not applicable to the defendant First National Bank
of Chicago, since it is not a bank holding company as defined in
§ 1841(a). However, 12 U.S.C. § 24 does define the proper scope
of activities of a national bank, and we will assume that this is
the statute which the plaintiff's attorney intended to cite.
The Comptroller of Currency regulates national banks and their
activities under the foregoing § 24 and may permit an operating
subsidiary to perform "any business function which the parent
bank is permitted to perform". 12 C.F.R. § 7.7376(b). If
plaintiff is seeking an injunction against an allegedly ultra
vires act of the defendant First National Bank, it may have a
justiciable complaint. See e.g., Arnold Tours, Inc. v. Camp,
472 F.2d 427 (1st Cir. 1972). However, plaintiff has not clearly and
concisely alleged such a cause of action and has not joined the
Comptroller of the Currency as a defendant. Plaintiff's prayer
seems to be primarily directed toward recovering damages for an
alleged deprivation of property without due process rather than
a declaratory judgment against a regulation or certificate
promulgated by the Comptroller.
Assuming that the plaintiff is complaining about deprivation of
its civil rights under 42 U.S.C. § 1983 by virtue of a violation
of 12 U.S.C. § 24, we fail to see how this is supported by the
Fifth Amendment to the Constitution of the United States. The
mere fact that national banking associations are regulated by the
Federal government does not make them subject to civil rights
actions. Moose Lodge No. 107 v. Irvis, et al., 407 U.S. 163, 92
S.Ct. 1965, 32 L.Ed.2d 627 (1972); Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). We cannot
see any invidious discrimination or arbitrary classification
resulting from the actions of the defendants or of the
Comptroller in this case as it now stands. See Johnson v.
Robison, 415 U.S. 361, 381-3, 94 S.Ct. 1160, 39 L.Ed.2d 389
Therefore, if the plaintiff does intend to allege any violation
of the Fifth Amendment or of the Federal Bank Act, it will have
to do so more specifically than has been done so far in Count
Two. Furthermore if plaintiff seeks an injunction under Count One
pursuant to 15 U.S.C. § 26, this should be pleaded also.
It is therefore ordered, adjudged and decreed that the
defendants' motion for summary judgment on Count One and their
motion to dismiss Count Two are granted.
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