The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Oberweis Dairy, Inc. ("Oberweis") has sued Associated Milk
Producers, Inc. ("AMPI") and Central Milk Producers
Cooperative ("CMPC")*fn1 alleging violations of the Sherman
Act, 15 U.S.C. § 1 and 2. Oberweis has moved for summary
judgment on the issue of liability, contending AMPI and CMPC
are collaterally estopped from litigating that issue as a
result of the holding in Alexander v. National Farmers
Organization, 687 F.2d 1173 (8th Cir. 1982). In turn AMPI and
CMPC have moved for "partial summary judgment" on certain
Oberweis claims. For the reasons stated in this memorandum
opinion and order:
1. This Court finds (a) certain facts and issues
have been determined with preclusive effect in
Alexander and (b) AMPI and CMPC are collaterally
estopped from relitigating those facts and issues in
2. This Court denies the AMPI-CMPC motion.
Oberweis is a dairy engaged in the business of buying raw
milk and marketing Grade A milk in the greater Chicago
area.*fn2 AMPI is a large dairy cooperative. CMPC is a
federation of cooperatives, including AMPI. Dairy cooperatives
operate to increase the market power of member dairy farmers
by various means.*fn3
Alexander was a private antitrust action begun in 1971 when a
large dairy cooperative, Mid-America Dairymen, Inc. ("Mid-Am")
sued National Farmers Organization ("NFO"), a rival
organization of dairy and other farmers. NFO counterclaimed
against Mid-Am, AMPI, CMPC and others, and AMPI counterclaimed
against NFO. At the District Court level all substantive
antitrust claims of the parties were rejected. In re Midwest
Milk Monopolization Litigation, 510 F. Supp. 381 (W.D.Mo. 1981)
By way of counterattack, AMPI and CMPC contend they are
entitled to "partial summary judgment" on Oberweis' claims for
damages arising from:
1. purchases of raw milk from suppliers not
controlled by AMPI or CMPC;
2. handling, hauling and premium charges for
certain raw milk in purchases from AMPI-CMPC; and
3. alleged AMPI-CMPC acts with co-conspirators.
AMPI and CMPC contend the first type of claim is barred under
the "indirect purchaser" doctrine of Illinois Brick Co. v.
Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977).
As for the other two types, they contend Oberweis (a) has not
produced in the discovery process, (b) is now precluded from
producing or (c) admittedly does not have any factual evidence
supporting those claims.
Oberweis has miscast its current motion as one seeking
summary judgment on AMPI-CMPC liability. As Oberweis' own Mem.
5-8 indicates, it rather wants a ruling that (1) certain
specific facts and issues have been determined in Alexander and
(2) AMPI and CMPC are precluded from relitigating those issues
here. Summary judgment "on the issue of liability alone" is
appropriate under Fed.R.Civ.P. ("Rule") 56(c) only when a party
has moved under Rule 56(a) or 56(b) and has established there
is no genuine issue of fact material to liability, but the
court does find a genuine issue as to the amount of damages.
Though the Rules provide no specific procedural vehicle for the
relief Oberweis seeks, Rule 16 comes closest to doing so. See
Wetherill v. University of Chicago, 548 F. Supp. 66, 67 & n. 3
Even apart from that procedural problem, Alexander could not
conceptually have determined AMPI-CMPC's liability to Oberweis.
"[B]efore the private plaintiff in an antitrust action can
recover damages, he must establish not only that the defendant
has violated the antitrust laws, but also that the violation
proximately caused injury to his business or property." 15 J.
Von Kalinowski, Antitrust Laws and Trade Regulation § 111.01,
at 111-1 (1981) ("Von Kalinowski"). Alexander did decide AMPI
and CMPC conspired in violation of the antitrust laws, but
their liability in that action necessarily depended on the
Court's also finding "that NFO was a specific target of the
conspiracy." 687 F.2d at 1191.
There was of course no corresponding finding in
Alexander that the AMPI-CMPC conspiracy "proximately caused
injury to" or targeted Oberweis' business. Oberweis cannot
therefore be put in a position where "only the issue as to the
amount of damages" remains in this action. Oberweis Motion at
1. That issue can be reached only after Oberweis satisfies its
burden as to causation. 15 Von Kalinowski § 111.01, at 111-1 to
111-2. Any collateral estoppel effect of Alexander cannot and
does not eliminate that burden.
Oberweis' mischaracterization of its motion has misdirected
the argument between the parties. Essentially three questions
are really presented:
1. What relevant facts and issues did
Alexander determine, with possibly preclusive
2. Can Oberweis satisfy the general
requirements for invocation of offensive
3. Are there specific reasons why collateral
estoppel should not be applied against AMPI and
CMPC in this action?
Those questions are addressed in turn.
1. Alexander's Relevant Holdings
Alexander found specifically (all these are direct quotes
from the Court of Appeals' opinion):
(a) In any commercially meaningful sense, Grade
A milk is . . . a relevant product market for
antitrust purposes. . . . 687 F.2d at 1191.
(b) [T]he record reveals public
assertions . . . by CMPC that it represents over
ninety percent of the producers selling into the
Chicago market, and supplies over ninety percent
of that market's fluid milk use. Id. at 1192.
(c) [T]he defendants do not seriously dispute,
nor could they on this record, that they acted in
concert with the intent to eliminate competition
and gain sufficient control of milk to enable
them to set higher prices. Id. at 1193.
(d) AMPI, Mid-Am and CMPC did conspire to
monopolize and eliminate competition in the
marketing of Grade A milk produced in the
Midwest, through the use of discriminatory
pricing, coercive supply disruptions and threats
of similar conduct, as well as bad faith
harassment and threats of litigation against
independent buyers of NFO milk. Id.
(e) This conspiracy violates Sections 1 and 2
of the Sherman Act, notwithstanding the
Capper-Volstead exemption [of cooperatives from
certain antitrust law liability], because it
involved the concerted use of predatory and other
unlawful, anti-competitive means to eliminate
competition and pursue monopoly power.
Id. at 1191.
Then the Court of Appeals surveyed the defendants' overt
acts, id. at 1194-1207, including some in the Chicago marketing
region, id. at 1196-99. All the activity cited in that survey
fell in the 1969-71 period, and there is nothing to indicate a
holding of illegality either before or after those years.*fn5
As AMPI points out (Ans. Mem. 13 n. 5) the Chicago-area overt
acts described in Alexander occurred only in 1970-71.
In this action Oberweis claims damages allegedly arising
from AMPI and CMPC conduct beginning in 1957 and continuing to
date, Complaint ¶ 21, insofar as those fall within the statute
of limitations, id. ¶ 26. But Oberweis has not responded to
AMPI's point on the time frame of Alexander's holding. Because
Alexander's findings relevant here ...