Ashmore v. Northeast Petroleum, Civ. No. 93-199-P-C.

• Decision Date: 19 January 1994
• Docket Number: Civ. No. 93-199-P-C.
• Citation: 843 F. Supp. 759
• Parties: Frederick ASHMORE, David Boya, William Simone, and Richard Simeone, Plaintiffs, v. NORTHEAST PETROLEUM DIVISION OF CARGILL, INC., Northeast Petroleum Corporation of Maine, Northeast Petroleum Corporation of Cape Cod, d/b/a Northeast Petroleum, and Cargill, Inc., Defendants.
• Court: U.S. District Court — District of Maine

843 F. Supp. 759

Frederick ASHMORE, David Boya, William Simone, and Richard Simeone, Plaintiffs, v. NORTHEAST PETROLEUM DIVISION OF CARGILL, INC., Northeast Petroleum Corporation of Maine, Northeast Petroleum Corporation of Cape Cod, d/b/a Northeast Petroleum, and Cargill, Inc., Defendants.

Civ. No. 93-199-P-C.

United States District Court, D. Maine.

January 19, 1994.

Daniel W. Bates, Kenneth D. Keating, Petruccelli & Martin, Portland, ME, for plaintiffs.

John J. O'Leary Jr., Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, ME, Chriss B. Wetherington, Bernhardt K. Wruble, Verner, Liipfer, Bernard, McPherson & Hand, Washington, DC, for defendants.

MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS

GENE CARTER, Chief Judge.

This action was commenced by Plaintiffs Frederick Ashmore, David Boya, William Simone, and Richard Simeone alleging that they were dismissed from employment as sales representatives for Defendants¹ in retaliation for Plaintiffs' refusal to implement a pricing system which allegedly violated the Robinson-Patman Antidiscrimination Act of 1936.² 15 U.S.C. §§ 13, 13(a), and 22. The Complaint states five causes of action. In Count I, Plaintiffs seek treble damages for injury sustained due to violation of the Robinson-Patman Act in accordance with Section 4 of the Clayton Act. 15 U.S.C. § 15. Complaint (Docket No. 1) ¶¶ 12-37. Counts II, III, IV, and V state claims based on breach of contract, promissory estoppel, breach of implied duty of fair dealing, and tortious termination in violation of public policy, respectively. Id. ¶¶ 38-54. In Count VI, Plaintiff Ashmore seeks relief under the Maine "Whistleblowers' Protection Act." 26 M.R.S.A. §§ 831-840. Motion to Amend Complaint (Docket No. 11), Reply Memorandum in Support of Plaintiffs' Motion for Leave to Amend Complaint (Docket No. 15) at 3-4.

Now pending before the Court is Defendant Cargill Inc.'s Motion to Dismiss Count I, for lack of standing, and Counts II, III, IV, and V for failure to state a claim. (Docket No. 4). Defendants seek dismissal of Count I because they contend that Plaintiffs lack standing to bring a private action under section 4 of the antitrust laws.³ Id. Defendants also seek dismissal of Counts II, IV, and V as to Plaintiff Ashmore for failure to state a cause of action under Maine law, which Defendants contend governs this contract. Finally, Defendants seek dismissal of Count III for failure to state a claim of promissory estoppel.

To resolve Defendants' Motion to Dismiss, the Court must accept as true all factual allegations in the Complaint, construe them in favor of Plaintiffs, and decide whether, as a matter of law, Plaintiffs could not prove any set of facts which would entitle them to relief. See Roeder v. Alpha Industries, Inc., 814 F.2d 22, 25 (1st Cir.1987); Gott v. Simpson, 745 F.Supp. 765, 768 (D.Me.1990).

I. The Factual Allegations

Plaintiffs were employed as sales representatives by Defendant Cargill's Northeast Division. As sales representatives, Plaintiffs sold petroleum products to both small and large retailers in the northeastern United States. Plaintiff Ashmore worked out of Northeast Division's Maine office. Plaintiffs Boya and Simone were based in Northeast's Connecticut office, and Plaintiff Simeone was based in Massachusetts. All were trained at and received pricing instructions from the Chelsea, Massachusetts administrative offices of Northeast Division.

Plaintiffs allege that in 1991, Defendants adopted a discriminatory pricing system which violated the Robinson-Patman Act. Specifically they claim that:

Northeast implemented a company-wide program of assigning customers to pricing groups based on the characteristics of customer loyalty and the ability of each customer to ascertain a fair price ("price sensitivity"). Northeast then assigned different allowances (discounts) to each pricing group. The most generous allowances were assigned to customers in the group considered to be the most able to ascertain a fair price, and the least loyal to Defendants; and the least generous allowance was granted to customers in the group considered to be the least price sensitive and the most loyal. Northeast determined the daily sale price of each product offered to a particular customer by subtracting from the rack price for the product the allowance assigned to the customer's pricing group.... The scheme conferred favored status on large retailers and disfavored status on small retailers....

Plaintiffs' Objection to Defendants Motion to Dismiss and Incorporated Memorandum of Law (Docket No. 7) at 2. Plaintiffs further allege that Northeast's sales representatives were required to take an active role in implementing this policy and "based on their familiarity with their customers, they were required to assign each customer" to one of the pricing groups. Id. at 3. Plaintiff Ashmore refused to implement the pricing system. Complaint (Docket No. 1) ¶ 26. Plaintiffs Boya, Simeone, and Simone objected to the new pricing system but were allegedly "forced to implement the price grouping policy under threats of dire consequences." Id. ¶ 27. Defendants terminated Plaintiffs' employment at Northeast on May 29, 1992. Plaintiffs allege that this discharge was in retaliation for "their refusal to engage in criminal activity, and resistance to the unlawful" discriminatory pricing system and "to make an example of them" to other employees who resisted the allegedly illegal practice. Id. ¶¶ 34-35.

Plaintiffs further allege that "at all relevant times Defendants Cargill and Northeast Petroleum promised its employees, in writing, that `no employee will be asked or expected to compromise' Cargill's purported standard that `business transactions will be the result of legal, open, and honest competition.'" Id. ¶ 39. Plaintiff's allege that they relied on this promise to their detriment. Id. ¶ 10. Based on this written promise and reliance, they allege that Defendants are liable under a theory of breach of contract or promissory estoppel.

II. Standing Under Section 4 of the Clayton Act

Defendants' principal argument for dismissal of Count I is that Plaintiffs lack standing to sue under section 4 of the Clayton Act to recover for damages due to the alleged violation of the Robinson-Patman Act.⁴ Defendants argue that the Robinson-Patman Act was intended to protect only competitors and purchasers and that because Plaintiffs do not allege that they were either competitors or purchasers, they lack standing.⁵ Defendants further argue that section 4 provides a remedy only to those who suffer injury which flows from the "anticompetitive effects" of an antitrust violation. Therefore, they contend that the injury which Plaintiffs suffered due to the allegedly retaliatory discharges was not the type of "antitrust injury" with which Congress was concerned when it enacted section 4 of the Clayton Act. In response to these arguments Plaintiffs contend that because they were "essential participants" in the anticompetitive scheme, and their discharge was a necessary step to achieve the antitrust violation, they have standing under section 4.

The issue of whether an employee has standing to sue under section 4 on a claim of retaliatory discharge for resisting the implementation of a policy which violates the federal antitrust laws has not been addressed by the Supreme Court and is a matter of first impression in this Circuit. As the parties point out, there is a split among federal courts on this issue.⁶ The Court of Appeals for the Ninth Circuit has held that an employee subjected to retaliatory discharge for refusing to cooperate with a price-fixing conspiracy in violation of the Sherman Act has standing under section 4. Ostrofe v. H.S. Crocker Co., 740 F.2d 739 (9th Cir.1984), cert. dismissed at request of parties, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985).⁷ The United States District Court for the Southern District of New York followed the Ninth Circuit's Ostrofe II holding in Donahue v. Pendleton Woolen Mills, Inc., 633 F.Supp. 1423 (S.D.N.Y.1986). On the other hand, courts in the Seventh, Third, and Tenth Circuits have held that employees who allege retaliatory discharge for refusal to cooperate with policies that violate the antitrust laws do not have standing under Section 4. Bichan v. Chemetron Corp., 681 F.2d 514 (7th Cir.1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983); Winther v. DEC International, Inc., 625 F.Supp. 100 (D.Colo.1985); McNulty v. Borden, Inc., 542 F.Supp. 655 (E.D.Pa.1982).⁸ The Sixth Circuit has also denied standing to a sales representative who alleged his territory was reduced and later eliminated due to his refusal to cooperate in an antitrust violation. Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 211 (6th Cir.1989).⁹

These different results have stemmed from varied interpretations of the Supreme Court's holdings in three recent antitrust standing cases: Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982); and Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). In the most recent of this trilogy, the Supreme Court set out a comprehensive antitrust standing analysis, identifying factors which must be considered in determining whether a plaintiff may sue under section 4 of the Clayton Act. Associated General, 459 U.S. at 535-45, 103 S.Ct. at 907-12. It is in this framework that this Court must evaluate Plaintiffs' claim to antitrust standing. Therefore, the Court will review the Associated General approach before analyzing the matter sub judice.

A. Antitrust Standing under Associated General

Before Associated General, the various circuit courts had adopted different tests incorporating traditional common-law...