476 F.2d 989 (5th Cir. 1973), 72-1572, Credit Bureau Reports, Inc. v. Retail Credit Co.
|Citation:||476 F.2d 989|
|Party Name:||CREDIT BUREAU REPORTS, INC., Plaintiff-Appellee-Cross Appellant, v. RETALL CREDIT COMPANY et al., Defendants-Appellants-Cross Appellees. CREDIT MARKETING SERVICES, INC., Plaintiff-Appellant, v. CREDIT BUREAU REPORTS, INC., Defendant-Appellee.|
|Case Date:||June 07, 1973|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Rehearing and Rehearing En Banc Denied June 7, 1973.
[Copyrighted Material Omitted]
Leroy Jeffers, Charles T. Newton, Jr., Harry Reasoner, Houston, Tex., for Retail Credit and others.
John H. Boman, Jr., Kent E. Mast, Atlanta, Ga., for Credit Marketing and others.
William C. Harvin, Houston, Tex., King & Spalding, Atlanta, Ga., E. William Barnett, John L. Jeffers, Jr., William R. Burke, Jr., Houston, Tex., for appellee.
Before JONES, GODBOLD and INGRAHAM, Circuit Judges.
GODBOLD, Circuit Judge:
Credit Bureau Reports, Inc. (CBR) brought this anti-trust suit in the U. S. District Court for the Southern District of Texas, against Retail Credit Company (RCC) and its subsidiaries, seeking an injunction and a decree of divestiture under § 16 of the Clayton Act (15 U.S.C. § 26). CBR charged RCC with price fixing in the nonlocal credit reporting market 1 in violation of § 1 of the Sherman Act (15 U.S.C. § 1), with monopolization of the insurance reporting market 2 and attempted monoplization of the nonlocal credit reporting market in violation of § 2 of the Sherman Act (15 U.S.C.§ 2), and with having violated § 7 of the Clayton Act (15 U.S.C. § 18) by acquisition of more than 100 local credit bureaus, which tended to lessen competition in the reporting markets. 3 CBR alleges that these asserted violations significantly threatened its operations in the nonlocal credit reporting market and its potential entry into the insurance reporting market where it would be a competitor of RCC.
After CBR's complaint was filed, Credit Marketing Services, Inc. (CMS), a subsidiary of RCC, brought suit in the U. S. District Court for the Northern District of Georgia, charging CBR with price fixing and monopolization in nonlocal credit reporting in violation of §§ 1 and 2 of the Sherman Act and seeking injunctive relief under § 16 of the Clayton Act. The Georgia federal court transferred CMS's suit to the Southern District of Texas where it was consolidated with the action filed by CBR.
The District Court, sitting without a jury, found that RCC had not fixed prices in the nonlocal credit reporting market but had violated § 2 of the Sherman Act by monopolizing the insurance reporting market and by attempting to monopolize nonlocal credit reporting, and had violated § 7 of the Clayton Act by acquiring the local credit bureaus. The court enjoined RCC from (1) withdrawing its local bureaus from membership in CBR for three years; (2) from going forward in any manner to compete with CBR for the marketing of nonlocal credit reports for three years; and (3) from acquiring additional local bureaus for five years. The court refused to require divestiture of the local bureaus RCC had acquired. As to CMS's complaint, the court found that, while owned by the local bureaus which provided the information it sold, CBR was a sole entity merely selling its own product, credit reports. The court held that CBR, therefore, had not violated the Sherman Act by conspiring with any other entity to fix prices, allocate territory, or refuse to deal.
RCC appeals from the order enjoining its activities and CBR cross-appeals from the refusal to order divestiture. We affirm on the basis of the District Court's opinion, Credit Bureau Reports, Inc., v. Retail Credit Co. et al., 358 F.Supp. 780 (S.D.Tex.1971), and of the following discussion.
On appeal the parties have focused upon three issues: the "prematurity" of the interest of CBR which the District Court found to be threatened and for which CBR was granted injunctive protection, the requisites of the showing of a causal nexus between that interest and the antitrust law violations found by the District Court, and the claim that CBR has engaged in illegal territorial allocation.
Section 16 of the Clayton Act entitles private litigants to injunctive relief from threatened injury resulting from a violation of the antitrust laws. To obtain such relief the complaining party must prove that the alleged offender either already has violated the antitrust laws or that such violation is impending and that, because of this violation, he is threatened with loss or injury. Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 130, 89 S.Ct. 1562, 23 L.Ed.2d 129, 152 (1969). A mere showing by the private plaintiff of a violation of the antitrust laws has no actionable significance because, while in a government action there need be established only an antitrust violation, a private litigant "'must not only show the violation of the antitrust laws, but show also the impact of the violations upon him,' i. e., some injury (or threatened injury where injunctive relief only is sought) proximately resulting from the antitrust violation." McKeon Construction Co. v. McClatchy Newspapers, 1970 Trade Cas. ¶¶ 73, 212 (N.D.Cal.1969), quoting from Simpson v. Union Oil Company, 311 F.2d 764, 767 (9th Cir. 1963), rev'd on other grounds, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964).
The District Court's grant of injunctive relief here was carefully premised upon three related determinations. First, it found that RCC had violated the antitrust laws by monopolizing the insurance reporting market, by attempting to monopolize the nonlocal credit reporting market, and by acquiring local credit bureaus. Second, it determined that CBR was a potential entrant into the insurance reporting market and that...
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