Appeal from the United States District Court for the Eastern District of Wisconsin. No. 72 C 240 - John W. Reynolds, Judge.
Fairchild, Chief Judge, Cummings, Circuit Judge, and Wilson Cowen, Judge.*fn*
In April 1972, plaintiff, a wholesale distributor of distilled spirits, wines and brandies, sued defendant, its former supplier of wines and brandies, for breaking off their relationship.
Count I of the April 1973 amended complaint was based on diversity of citizenship and alleged that defendant had breached an October 1, 1970, agreement under which the plaintiff was appointed the exclusive wholesale distributor of defendant's wines and brandies in certain Wisconsin counties. One of the obligations imposed sales performance levels or quotas on plaintiff "conditioned upon the [defendant's] prompt shipment of goods based on orders submitted by the [plaintiff] distributor to the [defendant] company." Plaintiff alleged that during the months of October, November and December 1971 defendant did not promptly ship goods to plaintiff as required by the agreement and yet terminated the agreement on January 25, 1972, for the reason that plaintiff had failed to meet its quotas. In Count I, plaintiff sought $2,500,000 in damages for breach of contract under Wisconsin law.*fn1
Count II was brought under Section 1 of the Sherman Act (15 U.S.C. § 1). Plaintiff alleged that defendant had violated that statute by limiting its wholesale distributors' sales of defendant's wines and brandies to prescribed geographical sales territories. Defendant assertedly terminated plaintiff on January 25, 1972, because plaintiff refused to confine its sales to its prescribed territories. Plaintiff claimed damages of $2,575,000 (before trebling) under Count II.
Count III of the amended complaint was brought to vindicate defendant's alleged violations of Sections 2(d) and 2(e) of the Robinson-Patman Act (15 U.S.C. §§ 13(d) and 13(e)). According to this Count, from August 1971 to January 1972 the defendant shipped goods more promptly to plaintiff's competitors than to plaintiff and granted them promotional allowances and services and facilities not available to plaintiff. For these violations of the Robinson-Patman Act plaintiff sought $2,500,000 (before trebling).
In its answer to Count I of the amended complaint, defendant denied that it breached the October 1, 1970, agreement with plaintiff, on the ground that said agreement provided for termination of plaintiff for its failure to meet quotas set by that agreement. As to Count II, defendant denied that it had imposed geographical sales territories on plaintiff and its competitors. As an affirmative defense to Count II, defendant charged that (1) plaintiff was in pari delicto ; (2) plaintiff was estopped because it had realized and accepted the benefits of the restrictions; and (3) plaintiff's claim was barred by the four-year statute of limitations (15 U.S.C. § 15b). With respect to Count III, defendant denied that it violated Sections 2(d) and 2(e) of the Robinson-Patman Act and reiterated the in pari delicto, estoppel and statute of limitations defenses asserted in Count II. Defendant also filed a counterclaim consisting of five causes of action.
In June 1975, the district judge denied plaintiff's motion to strike defendant's affirmative defenses and denied plaintiff's motion to dismiss defendant's second, third, fourth and fifth counterclaims.*fn2 On July 29, 1976, plaintiff sought to file a proposed second amended complaint*fn3 but leave was denied a month later because of "no need to amend." The jury trial commenced three weeks thereafter.
Although the district judge initially indicated that he would grant plaintiff's motion for a directed verdict on "that part of Count III which alleges * * * discriminatory promotional allowances" (Tr. 925) and that he would grant a motion for a directed verdict for the plaintiff on what appears to be only the issue of the territorial restrictions in Count II (Tr. 929-933), he eventually declined to grant those motions; we agree with that ultimate resolution. See Part III infra. After a 9-day trial, the cause was submitted to the jury which returned the following verdict on the same day:
"1. Did the defendant East Side Winery violate the antitrust laws of the United States?*fn4
"If your answer to question No. 1 is 'No,' then do not answer the following question numbered 2:
"2. Was the violation of the antitrust laws as found by you in question No. 1 a substantial and proximate cause of injury to the plaintiff's business or property?
"If your answer to question No. 2 is 'No,' then do not answer the following ...