Austin v. House of Vision, Inc., 16864.
| Decision Date | 09 January 1969 |
| Docket Number | No. 16864.,16864. |
| Citation | 404 F.2d 401 |
| Parties | Richard D. AUSTIN, Plaintiff-Appellant, v. The HOUSE OF VISION, INC., a corporation, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Leonard Rose, Mason, Albright, Stansbury & Rose, Chicago, Ill., for plaintiff-appellant.
Lawrence West, Leo Spira, Chicago, Ill., for defendants-appellees.
Before CASTLE, Chief Judge, and HASTINGS and FAIRCHILD, Circuit Judges.
This matter is before us on appeal for the second time. In Austin v. House of Vision, Inc., 7 Cir., 385 F.2d 171 (1967), plaintiff Austin appealed from the dismissal of his amended complaint and the denial of his motion for leave to file a second amended complaint. We concluded that plaintiff should be afforded an opportunity to further amend his complaint. Accordingly, we vacated the judgment of dismissal and remanded for this stated purpose.
On remand, the district court granted such leave and plaintiff filed his second amended complaint. On consideration thereof, the trial court granted defendants' motion to dismiss and the second amended complaint was dismissed. Plaintiff appealed.
Plaintiff on this appeal assumes that by dictum in our prior opinion we decided and fully disposed of the issues now before us on this second appeal. In disposing of the first appeal, we were concerned only with plaintiff's right to file a further amended complaint. Anything we stated in our opinion prior to our holding merely pointed in that direction. In 385 F.2d 171, supra, at 172, we expressly stated:
"Whether such an amended complaint will state a cause of action cannot be determined unless and until such an amended complaint is filed and tested."
Further, we said:
Plaintiff appropriately characterizes his claim as presenting a "novel theory of private antitrust law" and that his "allegations may create a first impression of novelty".
Plaintiff brings this action for treble damages pursuant to Title 15, U.S.C.A. § 15, allegedly resulting from defendants' conspiracy to reduce competition in the retail optical industry.
Plaintiff has been an optical technician and dispenser of optical lenses, according to prescription, to the public in the general metropolitan area of Cook County (Chicago), Illinois since about 1941.
Defendant The House of Vision, Inc. (defendant), a corporation, is engaged in the optical business in a number of states, with its principal office in Chicago, Illinois and has about 15 places of business in the Chicago area.
The five named individual defendants are the trustees of the House of Vision Employees' Benefit Trust (Trust), a defendant company sponsored employee benefit trust.
Plaintiff was employed by defendant about March, 1956. He worked continuously for defendant as a technician and a dispenser until June 15, 1966, when he voluntarily terminated his employment relationship with defendant. No written employment contract had ever existed between the parties.
Five days later, June 20, 1966, plaintiff was employed in the same capacity by Uhlemann Custom Opticians, Inc., a competitor of defendant, in its store (office) in Evanston, Illinois, just around the corner from one of defendant's stores where plaintiff had formerly worked for about eight years.
While an employee of defendant, plaintiff participated in the Trust. Under the terms of the Trust agreement employee contributions thereto were supplemented by contributions by the employer. Each party made such contributions during the period of plaintiff's employment.
The Trust was established November 15, 1938, and was amended thereafter from time to time, and has for its primary purpose the exclusive benefit of the employees. The Trust sets forth a profit-sharing plan for the participating employees. Participation in the Trust is entirely voluntary.
The Trust provides generally in Section 8(d) that a participant, who resigns his employment subsequent to his fourth year of participation, shall be paid by the trustees the total of his contributions to the Trust (less certain charges for hospital and insurance benefits), plus the amount of his vested interest in the balance of the trust (set out in the plan), in addition to his interest in his own contributions (in which his interest was fully vested).
However, the Trust provides in Section 8(h) that if one of defendant's participating employees leaves its employ and accepts a position with one of defendant's direct competitors, then such employee shall be paid "only the aggregate of his own contributions to the Trust", plus interest, less charges for prior benefits paid. In short, such an employee loses any vested interest in company contributions. We are advised that this is a common provision in employee profit-sharing pension plans.
It is clear and undisputed that five days after plaintiff voluntarily quit his job with defendant on June 15, 1966, he accepted a similar position with one of defendant's direct competitors. As a result, plaintiff was notified, as provided by the Trust, that his rights in the House of Vision Employees' Benefit Trust, beyond his own contributions, had been forfeited.
We have tried, as best we can, to pierce the rather nebulous conclusory allegations of plaintiff's second amended complaint to determine whether there is some rational basis on which it may be said that a claim for which relief can be granted under federal antitrust laws has been stated. We have been unable to do so.
As we read the allegations of the second amended complaint, the following seems clear. Plaintiff was not coerced or compelled in...
To continue reading
Request your trial
-
Rohler v. TRW, Inc., 77-1947
...the amendment. The court's conclusion is faulty. In Austin v. House of Vision, Inc., 385 F.2d 171 (7th Cir. 1967), appeal after remand 404 F.2d 401, where the plaintiff failed to make several allegations necessary to state a claim under the antitrust laws and the district court denied leave......
-
Motor Carriers Labor Adv. Coun. v. Trucking Mgt.
...in an antitrust conspiracy with the Funds. Golden v. Kentile Floors, Inc., 475 F.2d 288, 290 (5th Cir.1973); Austin v. House of Vision, Inc., 404 F.2d 401, 403 (7th Cir.1968); Beutler Sheetmetal, 616 F.Supp. at 457-58; Graham v. Hudgins, Thompson, Ball & Associates, Inc., 319 F.Supp. 1335, ......
-
Wegmann v. London, 80-3463
...Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies."3 But cf. Austin v. House of Vision, Inc., 404 F.2d 401 (7th Cir. 1968) (suit to invalidate under antitrust laws a profit-sharing plan provision calling for forfeiture of certain interest......
-
Garza v. Chicago Health Clubs, Inc., 71 C 643.
...claim, therefore, is well founded. Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 102, 2 L.Ed.2d 80 (1957). Cf. Austin v. House of Vision, Inc., 404 F.2d 401 (7th Cir. 1969). Section 125 of the Act grants the right of rescission to any person to whom credit is extended if a security inter......
-
The Bathtub Overflows: Conspiracy with Advertising Agents. Management Consultants, Commission Brokers and Other “Outside” Agencies under Section 1 of the Sherman Act
...representative generates no moremarket power than Bronner acting through its own hired em-ployees.11Austinv. HouseofVision, Inc., 404 F.2d 401, 403 (7th Cir.1968); Mastandrea v. Gurrentz Inft. Borp., 65 F.R.D.52,56(W.D.Pa. 1974). SeeGAl'Corp. v. Circle Floor Co., 329 F.Supp. 823, 827(S.D.N.......