535 F.2d 1356 (2nd Cir. 1976), 987, Triebwasser & Katz v. American Tel. & Tel. Co.

Docket Nº:987, Docket 76-7095.
Citation:535 F.2d 1356
Party Name:TRIEBWASSER & KATZ, a partnership consisting of Jonah Triebwasser and William Katz, Plaintiffs-Appellees, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY, et al., Defendants-Appellants.
Case Date:May 17, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1356

535 F.2d 1356 (2nd Cir. 1976)

TRIEBWASSER & KATZ, a partnership consisting of Jonah

Triebwasser and William Katz, Plaintiffs-Appellees,

v.

AMERICAN TELEPHONE & TELEGRAPH COMPANY, et al., Defendants-Appellants.

No. 987, Docket 76-7095.

United States Court of Appeals, Second Circuit

May 17, 1976

Argued May 3, 1976.

Page 1357

John W. Finley, Jr., New York City (Brashich, Finley & Postel, Michael Blinick, New York City, of counsel), for plaintiffs-appellees.

James W. Lamberton, New York City (Cleary, Gottlieb, Steen & Hamilton, Stephen L. Cohen, James B. McHugh, New York City, of counsel, George E. Ashley, New York City, Co-counsel for New York Tel. Co.), for defendants-appellants.

Before MULLIGAN and MESKILL, Circuit Judges, and PALMIERI, District Judge. [*]

MULLIGAN, Circuit Judge:

This is an appeal pursuant to 28 U.S.C. § 1292(a)(1) from an order of Hon. John M. Cannella, Judge of the United States District Court for the Southern District of New York, entered February 26, 1976, granting the motion of the plaintiffs Triebwasser and Katz ("Katz"), a licensed private investigative agency, for a preliminary mandatory injunction against the named defendants, American Telephone and Telegraph Company ("AT&T"), the New York Telephone Company ("Telco"), and the Reuben H. Donnelley Corporation ("Donnelley"). On the argument on appeal this court stayed the injunction pending disposition of this appeal and now reverses the order granting it.

On February 17, 1976 Katz filed a complaint seeking injunctive relief and one million dollars in damages against the defendants. Telco publishes the classified telephone

Page 1358

directories, commonly known as the Yellow Pages, in the New York metropolitan area; its parent corporation is AT&T and Donnelley is an advertising sales representative for the Yellow Pages. Plaintiff by order to show cause moved for a temporary restraining order and a preliminary injunction enjoining the defendants from refusing to accept Katz's advertisement for publication in the Yellow Pages. A hearing was held on February 23, 1976 with William Katz the only witness for the plaintiffs. Defendants offered no witnesses.

The facts reveal that Katz is a detective agency which commenced business in New York City on December 4, 1975 and which attempted to insert an advertisement in the Queens County Yellow Pages with the following prominent legend: "We can detect and remove unwanted and illegal electronic listening devices from your telephone, home or office." The defendants Donnelley and Telco refused and rejected the advertisement, because it did not comply with their internal standards for such advertising. More specifically, Telco stated that it was concerned with the privacy of communication and that so-called "debugging" advertisements are consistently rejected since large segments of the public will assume that those who have the capability to "debug" can also furnish wire tapping and eavesdropping services and equipment. Telco said it would publish the Katz advertisement without the debugging legend. This action prompted the complaint below, which urged as a first cause of action that the refusal of the defendants to publish the Katz advertisement constituted a conspiracy to restrain competition in violation of the Sherman Act, 15 U.S.C. § 1 et seq. The...

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