Hartley & Parker, Inc. v. Florida Beverage Corporation
| Citation | 307 F.2d 916 |
| Decision Date | 19 November 1962 |
| Docket Number | No. 19123.,19123. |
| Parties | HARTLEY & PARKER, INC., Appellant, v. FLORIDA BEVERAGE CORPORATION and American Distilling Company, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
COPYRIGHT MATERIAL OMITTED
John B. Orr, Jr., Orr & Lazar, Miami Beach, Fla., for appellant.
Samuel W. Shapiro, Friedman & Shapiro, Miami, Fla., for appellee, Florida Beverage Corp., a Florida corporation.
Robert Ward, W. G. Ward, Miami, Fla., Edward S. King, New York City, Ward & Ward, Miami, Fla., for appellee, The American Distilling Co.
Before RIVES, JONES and GEWIN, Circuit Judges.
Hartley & Parker sued American Distilling Company, (hereafter American Distilling) and Florida Beverage Corporation (hereafter Florida Beverage) to recover treble damages for alleged violations of the Clayton Antitrust Act of October 15, 1914, 38 Stat. 730, as amended by the Robinson-Patman Price Discrimination Act of June 19, 1936, 49 Stat. 1526. The district court denied the motion to dismiss for lack of jurisdiction over American Distilling, but dismissed the action without prejudice on the motions of both defendants to dismiss for failure to state a claim on which relief can be granted.
American Distilling transacts business in interstate commerce, distilling, selling and shipping packaged alcoholic beverages throughout the United States. It maintains no plant or office in Florida. Continuously since prior to 1948 American Distilling, as a part of its interstate commerce, has shipped, sold and delivered into southeast Florida packaged alcoholic beverages for sale to and consumption by the public in Dade and other counties. Its sales to Hartley & Parker alone from January 1, 1956 through July 31, 1960 amounted to $2,874,530.28. American Distilling employs and has for a number of years employed three "missionary or good will" men, whose duties are to "associate with the distributor's salesmen, on occasion accompanying them on their calls to retail accounts, and attempt to promote the sale of American's products."1 Irrespective of these "missionary or good will" men, this Court is committed to the proposition that a corporation doing a purely interstate business, which ships into a judicial district and delivers and sells substantial quantities of its products, "transacts business" in that district within the meaning of 15 U.S.C.A. § 22.2 Green v. United States Chewing Gum Mfg. Co., 5 Cir., 1955, 224 F.2d 369; see also Pape Television Co. v. Associated Artists Production Corporation, 5 Cir., 1960, 277 F.2d 750; Brandt v. Renfield Importers, Ltd., 8 Cir., 1960, 278 F.2d 904. We conclude that the district court had jurisdiction over American Distilling.
Hartley & Parker and Florida Beverage are competitors in Dade County and other counties in southeast Florida as purchasers and wholesale distributors of packaged alcoholic beverages. During the twelve-year period from 1948 to August 1, 1960, Hartley & Parker was the sole and exclusive wholesale distributor of some, but not all, of the products of American Distilling in the southeast Florida market. Commencing August 1, 1960, American Distilling established a dual distributorship of its products in the southeast Florida market and appointed Florida Beverage as co-distributor with Hartley & Parker. The complaint attempted to charge three different discriminations in the prices or services of American Distilling as between Hartley & Parker and Florida Beverage.
Hartley & Parker learned from various retail liquor dealers in the area that Florida Beverage was wholesaling products of American Distilling at prices below those charged Hartley & Parker. After investigation, Hartley & Parker learned that American Distilling had established prices for its sales to Florida Beverage substantially below prices theretofore charged Hartley & Parker for like quantities of the same products. Hartley & Parker asked American Distilling for similar price concessions or else that it cease making discriminatory sales to Florida Beverage. American Distilling refused to modify or adjust the prices quoted Hartley & Parker and refused to correct the discriminatory treatment afforded to Florida Beverage. The complaint averred that:
a total amount of $2,874,530.38. There were no sales from August 1, 1960, up to and including the date of filing of this second amended complaint, by reason of the facts alleged herein."
Since August 1, 1960, American Distilling has sold its products to Florida Beverage at prices substantially lower than the prices then offered to Hartley & Parker, and at which Hartley & Parker had made purchases prior to August 1, 1960. As a result Florida Beverage resold the products to retail liquor dealers throughout the southeast Florida market at prices substantially lower than the prices and often below the cost of Hartley & Parker.
On their face, the averments of the complaint which we have paraphrased would seem to charge a violation of that part of 15 U.S.C.A. § 13(a) which reads:
"(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them * * *."
The complaint charges that the discriminatory prices were established by American Distilling for the purpose of destroying competition with Florida Beverage and eliminating Hartley & Parker as its sole competitor; that Florida Beverage conspired with American Distilling to that end and knowingly induced and received the price discriminations. Thus, on its face, the complaint charges a violation against Florida Beverage.
"(f) It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section." 15 U.S.C.A. § 13(f).
The defendants insist, however, that the complaint shows on its face that the alleged violations come within the exceptions or provisos to section 13(a), as follows:
"And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned."
Since all of Hartley & Parker's actual purchases were prior to August 1, 1960, and all of the purchases by Florida Beverage were after that date, the defendants insist that the complaint fails to show that there were two purchasers of the goods at or about the same time, and that one purchaser received discriminatory advantages which were denied to the other purchaser. In support of that insistence the defendants rely on Shaw's, Inc. v. Wilson-Jones Co., 3 Cir., 1939, 105 F.2d 331; Chicago Seating Co. v. S. Karpen & Bros., 7 Cir., 1949, 177 F.2d 863; Klein v. Lionel Corporation, 3 Cir., 1956, 237 F.2d 13; and Naifeh v. Ronson Art Metal Works, 10 Cir., 1954, 218 F.2d 202.
In Shaw's, Inc. v. Wilson-Jones Co., supra, the seller simply refused to quote prices to a former customer, and instead sold to its competitor. In Chicago Seating Co. v. S. Karpen & Bros., supra, the plaintiff predicated its action upon the defendant's refusal to furnish it a price list of specially designed items of furniture manufactured by the defendant, and upon its refusal to sell such items to the plaintiff. In Klein v. Lionel Corporation, supra, Lionel sold toy electric trains and accessories to jobbers, middlemen and to some retailers. Klein was a retailer to whom Lionel refused to sell, and Klein purchased from jobbers or middlemen. The court held that the necessary requisite of two purchasers from the same seller had not been met and therefore that Klein could not claim the protection of the Clayton Act and the Robinson-Patman Act. Of the cases relied on, Naifeh v. Ronson Art Metal Works, supra, is the only one bearing any resemblance to the present case.
In that case the plaintiff had been a distributor of cigarette lighters and lighter accessories manufactured by Ronson. Ronson changed to another distributor to whom it sold at the same prices and on the same terms theretofore charged the plaintiff. Ronson also offered to permit the plaintiff to return such items of his depleted stock as he did not wish to retain at the prices paid by plaintiff less a transportation and handling charge and depreciation on certain items, and the plaintiff rejected that offer. We...
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