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September 15, 1994

W. & H. VOORTMAN, LTD., a Canadian corporation, Defendant.


The opinion of the court was delivered by: JAMES H. ALESIA

Before the Court is defendant W. & H. Voortman, Ltd.'s Motion to Dismiss Counts I, II, X, and XI of plaintiff Ronald Dawson's First Amended Complaint. FED. R. Civ. P. 12(b)(6). The background allegations in this case have been previously explained in Dawson v. W. & H. Voortman, Ltd., 853 F. Supp. 1038 (1994), dismissing portions of the original complaint. The court therefore will not repeat that background, but instead proceeds to the substance of defendant's attack on the instant complaint.


 Plaintiff asserts in Count X of his amended complaint a section one Sherman Antitrust Act claim. Section one bars a contract, combination or conspiracy in restraint of trade. 15 U.S.C. ┬ž 1; Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-69, 104 S. Ct. 2731, 2739-40, 81 L. Ed. 2d 628 (1984). Accordingly, joint conduct or concerted action is what is barred in section one, not independent action. Copperweld, 467 U.S. at 767-69, 104 S. Ct. at 2739-40.

 In assessing defendant's Rule 12(b)(6) attack on Count X, it is first necessary to assess what the count is alleging. Keeping in mind that it is a combination that is to be alleged, the question becomes, between whom is the combination? It is clear that what plaintiff complains of is being wronged by Voortman, not by a combination of other Voortman distributors. It is also clear that this is a claim of vertical price fixing. There is simply no other box to fit the count in to have it state a claim. Furthermore, several of the counts point directly to a claim of vertical price fixing. For example, paragraph 31 alleges that "the foregoing formula drastically and illegally limited, restricted and restrained the price for which a distributor could sell his territory." Since it is not problematic that Dawson himself is part of the claimed combination, see Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 142, 88 S. Ct. 1981, 20 L. Ed. 2d 982 (1968) ("Each petitioner can clearly charge a combination between [the supplier] and himself, as of the day he unwillingly complied with the restrictive franchise agreements."), this states a claim under the extremely relaxed federal pleading standards, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). *fn1"

 Only left for the court to consider is whether any special circumstances exist that would bring this case outside of section one. This, after all, is not a prototypical vertical price-fixing case, since the product involved is a one-time item, a business, which, under Voortman's Policy Manual, Dawson had the right to sell, and, again under the Policy Manual, in which Dawson had ownership rights. Can the exclusive right to sell for a supplier be the product the price of which is illegally fixed under a section one claim? Defendant does not point to any case or reasoning why it would not. And in NCAA v. Board of Regents, 468 U.S. 85, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984), television broadcasts were a product that could be price fixed (in that case horizontally, which makes no difference), so the price-fixed product need not be something tangible. Given that, there is no restriction on an antitrust claim of which the court is aware that would bar the claim here.

 All other arguments defendant makes go to the factual strength of the count, which are not properly brought on a Rule 12(b)(6) motion.

 Insofar as it attacks Count X, defendant's motion is denied.


 However, it is apparent that Count XI does not truly attempt to state an antitrust claim, and that therefore the reference to treble damages in the count should be stricken.

 Accordingly, insofar as it attacks Count XI, defendant's motion is granted in part and denied in part. The request for treble damages in Count XI is stricken.


 Counts I and II are brought pursuant to the Illinois Sales Representative Act, 820 ILCS 120/0.01 et seq. Defendant argues under these counts that the Act is a statutory penalty, and so a two-year statute of limitations applies. 735 ILCS 5/13-202. Plaintiff does not contest that if a two-year limitation applies then the Sales Representative Act claims are time-barred. Instead, plaintiff argues that the Act does not impose a statutory penalty, and therefore that the two-year statute is ...

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