Simpson v. United Oil Company of California, 87

• Decision Date: 20 April 1964
• Docket Number: No. 87,87
• Citation: 84 S.Ct. 1051,12 L.Ed.2d 98,377 U.S. 13
• Parties: Richard S. SIMPSON, Petitioner, v. UNITED OIL COMPANY OF CALIFORNIA
• Court: U.S. Supreme Court

377 U.S. 13

84 S.Ct. 1051

12 L.Ed.2d 98

Richard S. SIMPSON, Petitioner,

v UNITED OIL COMPANY OF CALIFORNIA.

No. 87.

Argued Jan. 15 and 16, 1964.

Decided April 20, 1964.

Rehearing Denied May 25, 1964.

See 377 U.S. 949, 84 S.Ct. 1349.

Maxwell Keith, San Francisco, Cal., for petitioner.

Moses Lasky, San Francisco, Cal., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

This is a suit for damages under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, for violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 50 Stat. 693, 15 U.S.C. §§ 1, 2. The complaint grows out of so-called retail dealer 'consignment' agreement which, it is alleged, Union Oil requires lessees of its retail outlets to sign, of which Simpson was one. The 'consignment' agreement is for one year and thereafter until canceled, is terminable by either party at the end of any year and, by its terms, ceases upon any termination of the lease. The lease is also for one year; and it is alleged that it is used to police the retail prices charged by the consignees, renewals not being made if the conditions prescribed by the company are not met. The company, pursuant to the 'consignment' agreement, sets the prices at which the retailer sells the gasoline. While 'title' to the consigned gasoline 'shall remain in Consignor until sold by Consignee,' and while the company pays all property taxes on all gasoline in possession of Simpson, he must carry personal liability and property damage insurance by reason of the 'consigned' gasoline and is responsible for all losses of the 'consigned' gasoline in his possession, save for specified acts of God. Simpson is compensated by a minimum commission and pays all the costs of operation in the familiar manner.

The retail price fixed by the company for the gasoline during the period in question was 29.9 cents per gallon; and Simpson, despite the company's demand that he adhere to the authorized price, sold it at 27.9 cents, allegedly to meet a competitive price. Solely because Simpson sold gasoline below the fixed price, Union Oil refused to renew the lease; termination of the 'consignment' agreement ensued; and this suit was filed. The terms of the lease and 'consignment' agreement are not in dispute nor the method of their application in this case. The interstate character of Union Oil's business is conceded, as is the extensive use by it of the lease-consignment agreement in eight western States.¹

After two pretrial hearings, the company moved for a summary judgment. Simpson moved for a partial summary judgment—that the consignment lease program is in violation of §§ 1 and 2 of the Sherman Act. The District Court, concluding that 'all the factual disputes' had been eliminated from the case, entertained the motions. The District Court granted the company's motion and denied Simpson's, holding as to the latter that he had not established a violation of the Sherman Act and, even assuming such a violation, that he had not suffered any actionable damage. The Court of Appeals affirmed. While it assumed that there were triable issues of law, it concluded that Simpson suffered no actionable wrong or damage, 9 Cir., 311 F.2d 764. The case is here on a writ of certiorari. 373 U.S. 901, 83 S.Ct. 1290, 10 L.Ed.2d 197.

We disagree with the Court of Appeals that there is no actionable wrong or damage if a Sherman Act violation is assumed. If the 'consignment' agreement achieves resale price maintenance in violation of the Sherman Act, it and the lease are being used to injure interstate commerce by depriving independent dealers of the exercise of free judgment whether to become consignees at all, or remain consignees, and, in any event, to sell at competitive prices. The fact that a retailer can refuse to deal does not give the supplier immunity if the arrangement is one of those schemes condemned by the antitrust laws.

There is actionable wrong whenever the restraint of trade or monopolistic practice has an impact on the market; and it matters not that the complainant may be only one merchant. See Klor's Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213, 79 S.Ct. 705, 3 L.Ed.2d 741; Radiant Burners, Inc. v. Peoples Gas Co., 364 U.S. 656, 660, 81 S.Ct. 365, 5 L.Ed.2d 358. As we stated in Radovich v. National Football League, 352 U.S. 445, 453—454, 77 S.Ct. 390, 395, 1 L.Ed.2d 456:

'Congress has, by legislative fiat, determined that such prohibited activities are injurious to the public and has provided sanctions allowing private enforcement of the antitrust laws by an aggrieved party. These laws protect the victims of the forbidden practices as well as the public.'

The fact that, on failure to renew a lease, another dealer takes Simpson's place and renders the same service to the public is no more an answer here than it was in Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458. For Congress, not the oil distributor, is the arbiter of the public interest; and Congress has closely patrolled price fixing whether effected through resale price maintenance agreements or otherwise.² The exclusive requirements contracts struck down in Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, were not saved because dealers need not have agreed to them, but could have gone elsewhere. If that were a defense, a supplier could regiment thousands of otherwise competitive dealers in resale price maintenance programs merely by fear of nonrenewal of short-term leases.

We made clear in United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505, that a supplier may not use coercion on its retail outlets to achieve resale price maintenance. We reiterate that view, adding that it matters not what the coercive device is. United States v. Colgate, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, as explained in Parke, Davis, 362 U.S., at 37, 80 S.Ct. 503, 4 L.Ed.2d 505, was a case where there was assumed to be no agreement to maintain retail prices. Here we have such an agreement; it is used coercively, and, it promises to be equally if not more effective in maintaining gasoline prices than were the Parke, avis techniques in fixing monopoly prices on drugs.

Consignments perform an important function in trade and commerce, and their integrity has been recognized by many courts, including this one. See Ludvigh v. American Woolen Co., 231 U.S. 522, 34 S.Ct. 161, 58 L.Ed. 345. Yet consignments, though useful in allocating risks between the parties and determining their rights inter se, do not necessarily con- trol the rights of others, whether they be creditors or sovereigns. Thus the device has been extensively regulated by the States. 22 Am.Jur., Factors, § 8; Hartford Indemnity Co. v. Illinois, 298 U.S. 155, 56 S.Ct. 685, 80 L.Ed. 1099. Congress, too, has entered parts of the field, establishing by the Act of June 10, 1930, 46 Stat. 531, as amended, 7 U.S.C. § 499a et seq., a pervasive system of control over commission merchants dealing in perishable agricultural commodities.

One who sends a rug or a painting or other work of art to a merchant or a gallery for sale at a minimum price can, of course, hold the consignee to the bargain. A retail merchant may, indeed, have inventory on consignment, the terms of which bind the parties inter se. Yet the consignor does not always prevail over creditors in case of bankruptcy, where a recording statute or a 'traders act' or a 'sign statute' is in effect. 4 Collier, Bankruptcy (14th ed.), pp. 1090—1097, 1484—1486. The interests of the Government also frequently override agreements that private parties make. Here we have an antitrust policy expressed in Acts of Congress. Accordingly, a consignment, no matter how lawful it might be as a matter of private contract law, must give way before the federal antitrust policy. Thus a consignment is not allowed to be used as a cloak to avoid § 3 of the Clayton Act. See Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 353—356, 42 S.Ct. 360, 66 L.Ed. 653; cf. Straus v. Victor Talking Mach. Co., 243 U.S. 490, 500—501, 37 S.Ct. 412, 61 L.Ed. 866. Nor does § 1 of the Sherman Act Tolerate agreements for retail price maintenance. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221—222, 60 S.Ct. 811, 84 L.Ed. 1129; United States v. Parke, Davis & Co., supra.

We are enlightened on present-day marketing methods by recent congressional investigations. In the automobile field the price is 'the manufacturer's suggested retail price,'³ not a price coercively exacted; nor do automo- biles go on consignment; they are sold.⁴ Resale price maintenance of gasoline through the 'consignment' device is increasing.⁵ The 'consignment' device in the gasoline field is used for resale price maintenance. The theory and practice of gasoline price fixing in vogue under the 'consignment' agreement has been well exposed by Congress. A Union Oil official in recent testimony before a House Committee on Small Business explained the price mechanism:

'Mr. ROOSEVELT. Who sets the price in your consignment station, dealer consignment station?

'Mr. RATH. We do.

'Mr. ROOSEVELT. You do?

'Mr. RATH. Yes. We do it on this basis: You see, he is paid a co mission to sell these products for us. Now, we go out into the market area and find out what the competitive major price is, what that level is, and we set our house-brand price at that.'⁶

Dealers, like Simpson, are independent businessmen; and they have all or most of the indicia of entrepreneurs, except for price fixing. The risk of loss of the gasoline is on them, apart from acts of God. Their return is affected by the rise and fall in the market price, their commissions declining as retail prices drop.⁷ Prac- tically the only power they have to be wholly independent businessmen, whose service depends on their own initiative and enterprise, is taken from them by the proviso...