Simpson v. Union Oil Company of California
| Decision Date | 02 January 1963 |
| Docket Number | No. 17308.,17308. |
| Parties | Richard S. SIMPSON, Appellant, v. UNION OIL COMPANY OF CALIFORNIA, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Maxwell Keith, San Francisco, Cal., for appellant.
Brobeck, Phleger & Harrison, Moses Lasky and Richard Haas, San Francisco, Cal., for appellee.
Before JERTBERG, and DUNIWAY, Circuit Judges, and JAMES M. CARTER, District Judge.
This private antitrust case for damages was decided on motion for summary judgment in favor of appellee, Union Oil Company of California, hereinafter called Union, and against appellant, hereinafter called Simpson. Generally, it raises the issues of (1) interstate commerce, (2) violation of the antitrust laws and liability of Union, and (3) actionable damage suffered by the plaintiff.
We assume for the purpose of this decision, but expressly refrain from deciding, that there were triable issues of price fixing,1 exclusive dealing,2 the effect of the McGuire Act,3 the effect of a prior consent decree of June 1959, whether the consignment program was a device or facade,4 and inter-state commerce.5 We refrain from deciding these questions as a matter of law or fact because it appears clearly on the record that Simpson suffered no actionable damage.
The following statement of facts which are apparently not in dispute, are taken largely from the statement of the case in the brief of Union.
Union is a producer, refiner and marketer of gasoline. It owns a long term lease on a parcel of land in Fresno, California, improved with a gasoline service station. On May 23, 1956, by written lease, Simpson subleased the station from Union for a term of one year, subject to termination by Simpson (but not by Union) on 30 days notice. In 1957 Union gave Simpson a new one year lease, ending by its express provisions on May 22, 1958. Concurrently with the first lease, Simpson and Union executed a written Retail Dealer Consignment Agreement, terminable by either party at the end of any year and ceasing, under paragraph Eighth, upon any termination of Simpson's right to occupy the station.
In April 1958, Union notified Simpson that it was terminating the consignment agreement at the end of its year and would not offer him a further lease.
May 21, 1958, the day before the end of his term, Simpson brought this action to enjoin Union from taking possession of its property and from leasing the station to anyone else. On June 3, 1958, the court denied the requested relief. The trial court filed an opinion, Simpson v. Union Oil Company, D.C., 162 F.Supp. 746, holding that both the lease and the consignment agreement had expired, and that the court could not compel the making of a new lease.
Union then sued Simpson in the state court in Fresno for unlawful detainer of the property and obtained judgment, adjudicating that at all times after May 22, 1958, Union was entitled to possession of the service station. Simpson thereupon surrendered possession.
Union moved to dismiss the federal action. The motion was granted, but leave was given Simpson to amend. An amended complaint was filed seeking damages in lieu of equitable relief. After certain pretrial proceedings, Union moved for summary judgment.
Thereafter Simpson himself moved for summary judgment on the issue of liability. Simpson's motion was denied, and Union's was granted. The trial judge filed a memorandum, reported in 1961 Trade Cases, Para. 69,936 p. 77,693.
Union's consignment method
Prior to 1955, Union's merchandising method was by sale to retailers for resale by them. Union put its "consignment" program into effect in 1955, as a permanent measure. New dealers were taken on only as "consignees", and as rapidly as possible former dealers were converted to "consignees" or their leases not renewed. By the time Simpson sought to be a lessee, "consignment" was the only way in which Union would deal with new lessees.
Under this "consignment" method of marketing, Union purportedly remained the owner of the gasoline, and the "consignee", as its purported agent, sold Union's gasoline. The dealer received a guaranteed commission from Union. Since Union purportedly owned the gasoline and the dealer was merely its purported agent to sell, Union determined the price at which the gasoline was to be sold.
The written consignment agreement provided that Union would deliver to Simpson such quantities of its branded gasolines as the parties might from time to time mutually agree; that title to all gasoline delivered would remain in Union until sold by Simpson. Simpson agreed that he would sell "Consignor's gasoline" at prices authorized by it and Union agreed that it would pay Simpson a commission, computed pursuant to a stated formula.
Simpson had been a salaried employee for Union for about eight years, his last position being that of retail representative in the Santa Maria district. He was familiar with the "consignment" agreement and method; he was told by Union he might lease an available Union station and he decided upon a station in Fresno, California. In May of 1956, he secured his first lease, and by renewal his lease ran to May 23, 1958. Apparently until March of 1958 he complied with the terms of the "consignment" agreement and fixed prices accordingly.
On or about March 1958, competitors lowered the price of regular gasoline from 34.9 to 27.9. Union did not permit him to lower his price to 27.9 but insisted he maintain it at 29.9, 2 cents above competition.
Simpson then proceeded to set his own prices for gasoline and from March 1958 to the end of the lease fixed prices without reference to demands or suggestions of Union. He was told that if he did not comply with Union's suggested prices, his lease would not be renewed. Union stipulated in the trial court that when his lease expired it was not renewed because of his violation of the "consignment" agreement and that it was Union's purpose to lease its stations only to "consignees".
Simpson's amended complaint charged Union with effectuating contracts which unreasonably restrain trade and commerce, and with the intent and an attempt to monopolize the sale of gasoline in violation of the Anti-trust laws. The amended complaint charged price fixing, exclusive dealing and coercion in forcing the consignment program on independent service station operators.
Simpson claimed damage in the sum of $1000 for his inability to establish his own retailing prices during the period from May 1955 to March 1958, and claimed damages in the sum of $150,000 alleging he was "unable to obtain a lease from the defendant for a reasonable period of time, was unable to sell or transfer his proprietary interest as lessee to a successor of his own choosing, and was prevented from selling his `good will' and was prevented from obtaining the fair market value of his business".
The record is not an easy one to read. No written pretrial stipulation of facts was entered into nor was any formal pretrial order made. The trial judge however, filed a memorandum which was helpful.
The Record contains transcripts of proceedings at a pretrial conference on April 30, 1959; a further pretrial conference on May 21, 1959; transcript of proceedings on Union's motion for summary judgment on February 11, 1960; transcript of proceedings on Simpson's motion for pretrial summary judgment on September 16, 1960.
At the pretrial conference on May 21, 1959, the Court suggested that Simpson's counsel submit a statement of the case in factual detail. On June 5, 1959, Simpson filed a "Pretrial Statement for Pretrial Ruling" and an affidavit by Keith, attorney for Simpson, setting forth a series of documents. This statement was before the court on the hearings of the motions on February 11, 1960 and September 19, 1960.
The statement contained the charge that there was an exclusive dealing arrangement, and that lessees were in effect required to buy their gasoline supplies exclusively from the defendant. The statement also charged that the purpose of the defendant in instituting the consignment program was to control the prices at which independent service station dealers could sell their gasoline. However, there was no concession by Union that the pretrial statement was correct.
At these proceedings before the trial court there was considerable discussion about issues and, to say the least, plaintiff's contentions vacillated. Defendant's counsel was pursuing the customary practice in antitrust cases of segmenting the case into parts as small and precise as possible and then attempting to demonstrate there was nothing of merit in each particular part or segment.
The result of all this was to create a most unsatisfactory record in which plaintiff on one date may have indicated he was not seriously pressing a particular contention while at a later date we find the contention being made. Accordingly, in the briefs Union seeks to pin issues down, based upon some statement made in the transcript, and Simpson in the briefs attempts to argue the full extent of his claim, unbound by statements made during the proceedings.
If agreement as to facts or issues are reached in the discussions of the pretrial conference, the better practice is to reduce them to writing in the form of a pretrial stipulation and order. As the record now stands, it is almost impossible to determine what agreements, if any, were reached at pretrial.
We proceed to the question of damages which is dispositive of this case.
It is clear that the private litigant in a suit charging violation of the antitrust laws stands in a different position than the government in an antitrust action. In a government action, there need be present only a violation of the laws and damage to individuals need not be shown. The private litigant must not only show the violation of the...
To continue reading
Request your trial
-
In re Mid-Atlantic Toyota Antitrust Litigation
...State by an act or omission in the State." It is clear that a civil antitrust action is an action in tort. Simpson v. Union Oil Co. of California, 311 F.2d 764, 768 (9th Cir. 1963), rev'd on other grounds, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); Albert Levine Assoc. v. Bertoni and......
-
Texas Industries, Inc v. Radcliff Materials, Inc
...a plea of nolo contendere. 5 See, e. g., Solomon v. Houston Corrugated Box Co., 526 F.2d 389, 392, n. 4 (CA5 1976); Simpson v. Union Oil Co., 311 F.2d 764, 768 (CA9 1963); Northwestern Oil Co. v. Socony-Vacuum Oil Co., 138 F.2d 967, 970 (CA7), cert. denied, 321 U.S. 792, 64 S.Ct. 790, 88 L.......
-
Lessig v. Tidewater Oil Company
...in Treble Damage Actions under the Antitrust Laws, 30 Geo.Wash. L.Rev. 231, 277-83 (1961-1962). Whatever relevance Simpson v. Union Oil Co., 311 F.2d 764 (9th Cir. 1963), cert. granted April 29, 1963, 373 U.S. 901, 83 S.Ct. 1290, 10 L.Ed.2d 197, may have to Lessig's claim of damage from Tid......
-
Simpson v. Union Oil Company of California
...(hereafter Union) for summary judgment was granted. (1961 Trade Cas. Par. 69,936, p. 77,693). We affirmed. Simpson v. Union Oil Company of California, 9 Cir., 311 F.2d 764 (1963). Certiorari was granted and the Supreme Court reversed 5-3, and remanded for further proceedings. Simpson v. Uni......
-
Ai and Interdependent Pricing: Combination Without Conspiracy?
...individual, as opposed to common, proof."); Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005); Simpson v. Union Oil Co. of Cal., 311 F.2d 764, 767 (9th Cir. 1963), rev'd, 377 U.S. 13 (1964).46. Jonathan B. Baker & Daniel L. Rubinfeld, Empirical Methods in Antitrust Litigation: Revie......