Baim & Blank, Inc. v. Philco Corporation
| Decision Date | 24 January 1957 |
| Docket Number | Civ. A. No. 14083. |
| Citation | 148 F. Supp. 541 |
| Parties | BAIM & BLANK, Inc. and Baim & Blank Television Service, Inc., Plaintiffs, v. PHILCO CORPORATION and Philco Distributors, Inc., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
J. Robert Ellner, New York City, for plaintiffs.
Donovan, Leisure, Newton & Irvine, New York City, for defendants. Granville Whittlesey, Jr., New York City, of counsel.
This is a motion by defendants for an order, pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for summary judgment to dismiss the first cause of action as against Philco Corporation, and so much of the first cause of action as to Philco Distributors, Inc., as relates to matters which occurred prior to September 1, 1950.
The first cause of action alleges that from November 20, 1926 to July 3, 1952, plaintiff, Baim & Blank, Inc., operated a retail store in Brooklyn, selling radios, television sets and household appliances. The action has been discontinued as to plaintiff, Baim & Blank Television Service, Inc. It alleges further that defendant, Philco Corporation, is a Delaware corporation which manufactures or assembles "Philco" branded products; that defendant, Philco Distributors, Inc., a Delaware corporation, is a wholly owned subsidiary of Philco Corporation and the sole and exclusive distributor throughout the greater New York area of "Philco" branded products manufactured and assembled by its parent, and the "local instrumentality" for conducting the business of parent in the New York area; and that in this area, Philco Corporation "is found in the person of, and transacts business through its wholly owned subsidiaries and agents, Philco Distributors, Inc., and Philco International Corporation * * *." It also alleges that during the periods complained of, plaintiff and its competitor, Davega Stores Corporation, an organization of twenty-eight stores located in the greater New York area, were engaged in the business of selling, at retail, and servicing television sets, radios, refrigerators and other electrical appliances, including Philco branded products. It is then alleged that defendants have discriminated against plaintiff (1) by selling to Davega Stores Corporation at prices lower than those charged to and paid by plaintiff in violation of section 1, subsection (a) of the Robinson-Patman Act, 15 U.S.C.A. § 13 (a); (2) by making payments or granting credits to Davega in consideration for services or facilities furnished by Davega in connection with the sale of Philco products without offering to make such payments or credits available to plaintiff on proportionately equal terms, in violation of section 1, subsection (d) of the Robinson-Patman Act, 15 U.S. C.A. § 13(d); and (3) by furnishing services or facilities in connection with the sale of Philco products without offering to make such advantages available to plaintiff on proportionately equal terms, in violation of section 1, subsection (e) of the Robinson-Patman Act, 15 U.S. C.A. § 13(e). Plaintiff seeks treble damages for the alleged foregoing acts.
The second cause of action alleges that Philco, Philco Distributors, and Davega, some time prior to July 1, 1944, in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2, combined and conspired to grant to Davega the status of "associate distributor" of Philco products in the New York area, which enabled Davega to purchase Philco products from the Philco distributing organization or directly from Philco at prices substantially below those available to all other "nonfavored" retailers in the New York area, including plaintiff; and that as part of the said conspiracy, the "continuing arrangement" among the aforesaid corporations granted to Davega "certain competitive advantages which were not made available to plaintiffs," including the discriminations in price and terms of sale specifically alleged in the first cause of action.
The present motion is directed solely to the allegations of violations of the Robinson-Patman Act contained in the first cause of action. It is based on the pleadings and pre-trial testimony. in the form of depositions, taken by plaintiff of Jacob J. Harris, general manager of the New York Division of Philco Distributors, Harold Sheer, vice president and general manager of Philco Distributors, and John M. Otter, executive vice president of Philco.
The action has to do with transactions occurring between September 15, 1947 and July 3, 1952, the parties having stipulated that transactions prior thereto are barred...
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