Fall, N & R and Magazines Unlimited have never sought,
requested or demanded to deal in any way or at any time with
any of the national distributor defendants. Without such a
request, there can be no claim of a refusal to deal.
The plaintiffs do not refute this argument. They focus
instead on the notion that refusal to deal is but one of the
allegations set forth in Count II. They insist that the
crucial aspect involves the alleged conspiracy by the national
distributors in refusing to deliver products because the
plaintiffs are in competition with Levy for retail sales
It is well established that a "firm demand and refusal" are
necessary elements to establish an actionable refusal to deal.
Products Liability Insurance Agency, Inc., v. Crum & Forster
Insurance Co., 682 F.2d 660 (7th Cir. 1982); Gulliver
Periodicals, Ltd. v. Charles Levy Circulating Co., No. 77 C 547
(N.D.Ill. June 3, 1981), slip op. at 4. Unless the antitrust
claimant has actually sought to deal with someone and has been
turned down, there can be no cognizable claim for refusal to
deal. Only then may the court investigate allegations of
conspiracy. See Cleary v. National Distillers & Chemical Corp.,
505 F.2d 695 (9th Cir. 1974). Spring & Fall, N & R, and
Magazines Unlimited have set forth no facts to substantiate
their allegations of a refusal to deal. Their clains against
the national distributor defendants must, therefore, be
The national distributors also maintain that any
communications that occurred between them and Windy City could
not be construed as firm refusals to deal as provided under
Cleary, 505 F.2d at 697. Windy City apparently sent letters to
several of the national distributors seeking to do business
with them. Each letter referred to the fact that Windy City's
supplier, Hammond, had been purchased by a competitor of Windy
City's, Levy, so as to place Windy City "on much less favorable
terms" for purchasing products. Windy City noted that "[w]e
need your products shipped to us direct [sic] on the same terms
as . . . Levy . . . so that we have the same competitive nature
in the same region." The letters ended with the statement that
if there were no reply in ten days, Windy City would assume a
refusal to deal.
The responses from the defendants varied to a degree, but
the crux of each was essentially the same. In their letters,
the national distributors noted their satisfaction with their
present service but allowed for discussions on the possibility
and feasibility of a future business relationship. Some even
provided the names of contacts within their organizations.
Rather than follow up on these letters, Windy City brought
At best, this correspondence can be characterized as only
preliminary negotiations between the parties. There was no
firm offer, much less a refusal to deal. Preliminary
negotiations, such as these, are insufficient to support an
action for refusal to deal. See Cleary v. National Distillers &
Chemical Corp., 505 F.2d 695 (9th Cir. 1974).
Moreover, the fact that Windy City failed to answer or
follow up on the letters from the national distributors
further precludes its ability to claim relief. For a
"plaintiff has no antitrust claim where its failure to obtain
[products] is attributable to its own mistakes or failure to
request [the products]." Dahl, Inc. v. Roy Cooper Co.,
448 F.2d 17, 19 (9th Cir. 1971). See also Saunders v. National
Basketball Association, 348 F. Supp. 649 (N.D.Ill. 1972).
The defendants argue, in the alternative, that even if the
letters and the responses to them did amount to a firm demand
and refusal, the plaintiffs have failed to present sufficient
evidence to support an inference or finding of conspiracy or
concerted action by the defendants in refusing to deal with
the plaintiffs. They also maintain that the evidence is
insufficient to support a claim of attempted monopolization by
the national distributors and Levy.
"Group boycotts," or concerted refusals to deal are per se
illegal under the antitrust laws. Klor's, Inc. v. Broadway Hale
Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 9653 L.Ed.2d 741
In addition to evidence of a firm demand and refusal, there
must also be evidence of a conspiracy, concerted decision, or
agreement by the defendants not to deal with the plaintiffs.
Cleary v. National Distillers & Chemical Corp., 505 F.2d 695
(9th Cir. 1974); Gulliver's Periodicals, Ltd. v. Charles Levy
Circulating Co., No. 77 C 547 (N.D.Ill. June 3, 1981). "Mere
refusal by a group of defendants to deal with a plaintiff is
not itself sufficient evidence of a conspiracy or concerted
conduct." Id., slip op. at 4. At the very least, the plaintiffs
must offer evidence of some "joint collaborative action" by the
defendants, United States v. General Motors Corp.,
384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966), that they
affirmatively agreed among themselves not to deal with the
plaintiffs. See First National Bank of Arizona v. Cities
Service Co., 391 U.S. 253, 280, 88 S.Ct. 1575, 1588, 20 L.Ed.2d
The plaintiffs have failed to present any evidence from
which a finder of fact could infer an agreement among the
defendants. There is no evidence of any meetings,
conversations, memoranda or enforcement mechanisms. The only
"facts" offered by the plaintiffs consist of allegations of
parallelism, i.e., that the national distributor defendants
"acting in parallel" deal with Levy, but allegedly refuse to
deal with the plaintiffs.
The court has been unable to find any factual basis to
substantiate the plaintiffs' claims. One example offered by
the plaintiffs as evidence of a conspiracy refers specifically
to the memoranda offered in the context of this motion. The
plaintiffs maintain that the decisions of these defendants
cannot be construed as unilateral when several of them rely on
the affidavit of a vice president of Warner Publisher
Services, one of the defendants bringing this motion.
According to the plaintiffs, "an inference of conspiracy is
heightened" when several defendants adopt the motive and
intent testimony of an agent of a codefendant. The plaintiffs
propose other arguments of an equally conclusory nature.
Suffice it to say that these are not a foundation on which
to base an antitrust suit.
In addition to the plaintiffs' inability to present facts
sufficient to support the inference of a conspiracy, there are
facts supportive of the theory that each defendant could have
chosen not to do business with the plaintiffs because of
independent and valid business decisions. It is apparently
consistent with the nature of the periodical distribution
industry, where speed of delivery and accuracy of accounts are
essential, for a distributor to use one wholesaler in a given
region. See, e.g., Byars v. Bluff City News Co., 609 F.2d 843,
851-52 (6th Cir. 1979). The activities of these defendants
could indicate nothing more than parallel business behavior.
This, standing alone, is insufficient to give rise to an
inference of an agreement among the defendants. Weit v.
Continental Illinois National Bank & Trust Co., 467 F. Supp. 197,
209 (N.D.Ill. 1978), aff'd., 641 F.2d 457 (7th Cir. 1981),
cert. denied, 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847
(1982); Lamb's Patio Theatre, Inc. v. Universal Film Exchanges,
Inc., 582 F.2d 1068, 1070 (7th Cir. 1978). For these same
reasons, a unilateral refusal to deal cannot constitute a
"conspiracy to monopolize" or an "attempt to monopolize" under
section 2 of the Sherman Act.
Count III of the amended complaint alleges, inter alia, that
the defendants violated sections 2(a), 2(c), 2(d) and 2(e) of
the Robinson-Patman Act, 15 U.S.C. § 13(a), (c), (d) and (e),
by discriminating, in favor of Levy and against the plaintiffs,
in the price, terms and conditions of trade relating to the
sales and distribution of magazines and paperback books. Count
III alleges further that these acts constitute a conspiracy to
monopolize the wholesale distribution of these periodicals in
the greater Chicago metropolitan market, in violation of
sections 1 and 2 of the Sherman Act. See Amended Complaint,
Count III at ¶¶ 22, 23, 27 and 29.
Section 2(a) of the Robinson-Patman Act provides that "[i]t
shall be unlawful for any person . . . to discriminate in
price between different purchasers of commodities. . . ."
15 U.S.C. § 13(a). It is well established that there can be no
violation of section 2(a) unless there have been at least two
actual sales by the same seller to different purchasers at
different prices to persons in competition with each other with
resultant anti-competitive effects. Bruces's Juices, Inc. v.
American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1020, 91
L.Ed. 1219 (1947); Chicago Seating Co. v. Karpen & Brothers,
177 F.2d 863, 866-67 (7th Cir. 1949); H.A.B. Chemical Co. v.
Eastman Kodak Co., 1980-81 Trade Cas. (CCH) ¶ 63,912 (C.D.Cal.
The national distributor defendants maintain by affidavit
and deposition testimony that they have never sold their
products to the plaintiffs. Therefore, these defendants
assert, the plaintiffs cannot make out a claim under section
The plaintiffs offer several arguments in response. One of
the plaintiffs, Windy City, contends that it did at one time
secure an agreement with the Marvel Comics Group ("Marvel"),
a division of Curtis Circulation Company ("Curtis"), for the
direct purchase of comic books. Apparently, Marvel later
cancelled this agreement. On this basis, Windy City seeks to
be deemed a purchaser. See Harper Plastics, Inc. v. Amoco
Chemicals Corp., 617 F.2d 468 (7th Cir. 1980).
This argument must fail. Windy City does not allege that it
paid different prices than Levy paid for the same comics
during the period when Windy City was purchasing them from
Marvel. Nor does Windy City claim that any discrimination
occurred with respect to the sale of comics. According to
Windy City's argument, because Marvel ceased to sell it
comics, Curtis' failure to sell it magazines constitutes a
violation of the Robinson-Patman Act. We cannot accept this
reasoning. The allegations that Marvel's decision to stop
selling comics to Windy City and Curtis' failure to ever sell
to Windy City an entirely different product fail to set forth
the essential elements of a claim for price discrimination.
See Bruces's Juices, Inc. v. American Can Co., 330 U.S. 743, 67
S.Ct. 1015, 91 L.Ed. 1219 (1947).
The plaintiffs also seek to invoke the indirect purchaser
exception to the Robinson-Patman Act. See American News Co. v.
Federal Trade Commission, 300 F.2d 104 (2d Cir.), cert. denied,
371 U.S. 824, 83 S.Ct. 44, 9 L.Ed.2d 64 (1962). In American
News, the Second Circuit permitted purchasers discriminated
against through the agency of middlemen to sue the original
seller if they had dealt directly with the buyer and if the
original seller had controlled the terms of the sale. This
theory was sanctioned by the Supreme Court in Federal Trade
Commission v. Fred Meyer, Inc., 390 U.S. 341, 88 S.Ct. 904, 19
L.Ed.2d 1222 (1968). See also Littlejohn v. Shell Oil Co.,
483 F.2d 1140 (5th Cir.), cert. denied, 414 U.S. 1116, 94 S.Ct.
849, 38 L.Ed.2d 743 (1973).
This argument must also be rejected. In order to maintain
their claims under the Robinson-Patman Act, the plaintiffs
must establish their roles as indirect purchasers. To satisfy
this requirement, the plaintiffs need to show that the
national distributors controlled the purchase price paid by
the plaintiffs. FLM Collision Parts, Inc. v. Ford Motor Co.,
543 F.2d 1019, 1028 (2d Cir. 1976), cert. denied,
429 U.S. 1097, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977).
The plaintiffs purchased products, not from the national
distributors, but from the national distributors' wholesalers;
in this case, Levy. While there is evidence to suggest that at
least some of the national distributors require Levy to
provide information concerning draw, return and net sales for
accounts served, there is nothing to suggest, much less
establish, that these defendants control the price Levy
charges the plaintiffs for magazines and paperback books.
Indeed, the plaintiffs' theory falls in the wake of
uncontroverted affidavits filed by several of the defendants
swearing that their respective companies do not control Levy's
resale prices and terms of sale. See, e.g., Curtis Memo., Aff.
of Eisenberg at ¶ 18; International Circulation Distribution,
Inc. Memo., Aff. of Herrera at ¶ 5; Kable News Company, Inc.
Memo., Aff. of
Getson at ¶¶ 10b and 10c. For these reasons, therefore, the
court rejects the plaintiffs' application of the indirect
The national distributor defendants seek judgment in their
favor on the remaining Robinson-Patman claims for essentially
the same reasons previously articulated in the context of the
section 2(a) arguments. Nor do the plaintiffs offer any
additional arguments in support of their allegations.
With respect to the claim under section 2(c), the "brokerage
provision," the plaintiffs allege that the national
distributor defendants agreed to make certain payments to an
affiliate of Levy's for the transportation of periodicals, the
payments for which afford Levy "a further discriminatory price
discount or allowance" which is "disguised and concealed." See
Amended Complaint, Count III, at ¶ 25. The defendants contend
that these allegations fail to state a claim under section 2(c)
because, inter alia, the plaintiffs concede that these payments
were for transportation services only. Moreover, to the extent
that these allegations seek to support a claim of further price
discrimination, the defendants argue that the claim should be
dismissed because none of the plaintiffs have ever purchased
products from the defendants within the definition of the
Robinson-Patman Act. The court agrees with these defendants.
Moreover, the plaintiffs have no cause of action under
section 2(e) because that provision also requires that the
plaintiffs be deemed purchasers before they can bring an
action under that section. Harper Plastics, Inc. v. Amoco
Chemicals Corp., 617 F.2d 468 (7th Cir. 1980). See Chicago
Seating Co. v. Karpen & Brothers, 177 F.2d 863, 867 (7th Cir.
1949). We have already determined that the plaintiffs cannot be
characterized as purchasers within the meaning of the
Robinson-Patman Act. Furthermore, the term "customer" as it is
employed in section 2(d) has the same meaning as "purchaser" in
sections 2(a) and 2(e). See American News Co. v. Federal Trade
Commission, 300 F.2d 104, 109 (2d Cir.), cert. denied,
371 U.S. 824, 83 S.Ct. 44, 9 L.Ed.2d 64 (1962); Bay City-Abrahams Bros.
v. Estee Lauder, Inc., 375 F. Supp. 1206, 1218 (S.D.N.Y. 1974).
Finally, the plaintiffs conclude Count III of their amended
complaint by asserting that by virtue of their alleged
Robinson-Patman violations, the defendants have conspired to
monopolize or conspired to attempt to monopolize the
wholesaling and distribution of periodicals. To the extent
that Count III alleges a conspiracy to monopolize, we have
already determined that there is no allegation of fact from
which to infer a conspiracy among the national distributors
and Levy. The court also notes that while section 2 of the
Sherman Act creates causes of action for attempts to
monopolize and conspiracies to monopolize, it does not create
a cause of action based on an alleged conspiracy to attempt to
monopolize. Alabama v. Blue Bird Body Co., 71 F.R.D. 606, 609
(M.D.Ala. 1976), aff'd in part, rev'd in part, 573 F.2d 309
(5th Cir. 1978). See United States v. Dunham Concrete Products,
Inc., 501 F.2d 80, 82 (5th Cir. 1974), cert. denied,
421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975). For these reasons,
summary judgment is entered in favor of these defendants as to
the conspiracy claims in Count III.
In conclusion, the court notes that summary judgment is
available in antitrust cases just as it is available in all
other types of litigation. See, e.g., Weit v. Continental
Illinois National Bank & Trust Co., 641 F.2d 457, 464 (7th Cir.
1981). After reviewing the pleadings, affidavits, and
deposition testimony presented in the context of this motion,
we find that there are no material questions of fact with
respect to the national distributor defendants in Counts II and
III. We hereby enter judgment in favor of those defendants on
Counts II and III of the amended complaint.