Beckers v. International Snowmobile Industry Ass'n

• Decision Date: 15 September 1978
• Docket Number: No. 78-1035,78-1035
• Citation: 581 F.2d 1308
• Parties: 1978-2 Trade Cases 62,191 Joseph L. BECKERS, and Daniel J. Miotke, on behalf of themselves and as representatives of a class of all other purchasers of snowmobiles and snowmobile supplies in the United States, Appellants, v. INTERNATIONAL SNOWMOBILE INDUSTRY ASSOCIATION, AMF, Inc., Arctic Enterprises, Inc., Boa-Ski Limited, Bombardier Limited, Coleman Co., Inc., Deere & Co., Kawasaki Motor Corp. U.S.A., Massey-Ferguson, Inc., Brunswick Corporation, Outboard Marine Corporation, Scorpion, Inc., Skiroule, Lt'ee, Sno-Jet, Inc., Textron, Inc., U. S. Suzuki Motor Corporation, Limited, Yamaha Motor Company Limited, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1308

581 F.2d 1308

1978-2 Trade Cases 62,191

Joseph L. BECKERS, and Daniel J. Miotke, on behalf of

themselves and as representatives of a class of

all other purchasers of snowmobiles and

snowmobile supplies in the

United States, Appellants, v. INTERNATIONAL SNOWMOBILE INDUSTRY ASSOCIATION, AMF, Inc.,

Arctic Enterprises, Inc., Boa-Ski Limited, Bombardier

Limited, Coleman Co., Inc., Deere & Co., Kawasaki Motor

Corp. U.S.A., Massey-Ferguson, Inc., Brunswick Corporation,

Outboard Marine Corporation, Scorpion, Inc., Skiroule,

Lt'ee, Sno-Jet, Inc., Textron, Inc., U. S. Suzuki Motor

Corporation, Limited, Yamaha Motor Company Limited, Appellees.

No. 78-1035.

United States Court of Appeals,

Eighth Circuit.

Submitted May 19, 1978.

Decided Aug. 21, 1978.

Rehearing and Rehearing En Banc Denied Sept. 15, 1978.

John E. Thomas of Cochrane & Bresnahan, St. Paul, Minn., for appellants.

Hugh Latimer of Bergson, Borkland, Margolis & Adler, Washington, D. C., for appellees.

Robert R. Weinstine, Steven C. Tourek, Oppenheimer, Wolff, Foster, Shepard and Donnelly, St. Paul, Minn., for defendant Arctic Enterprises, Inc.

Stuart W. Rider, Jr., Rider, Bennett, Egan, Johnson & Arundel, Minneapolis, Minn., John T. Loughlin, Robert W. Sheppy, Bell, Boyd, Lloyd, Haddad & Burns, Chicago, Ill., for defendant Deere & Co.

Frank Claybourne, Robert J. Schmit, Doherty, Rumble & Butler, St. Paul, Minn., for defendant Kawasaki Motor Corp. U. S. A.

Edward J. Parker, Timothy Butler, Lindquist & Vennum, Minneapolis, Minn., for defendant Brunswick Corp.

Frank Hammond, Briggs & Morgan, St. Paul, Minn., for defendant Outboard Marine Corp.

Irving R. Brand, Maslon, Kaplan, Edelman, Borman, Brand & McNulty, Minneapolis, Minn., for defendant Scorpion, Inc.

Elliot S. Kaplan, Robins, Davis & Lyons, Minneapolis, Minn., Henry P. Sailer, Covington & Burling, Washington, D. C., for defendant Textron, Inc.

Hugh Latimer, Robert W. DeVos, Jr., Bergson, Borkland, Margolis & Adler, Washington, D. C., for defendant AMF Inc. Gordon G. Busdicker, Gordon B. Conn, Jr., Faegre & Benson, Minneapolis, Minn., for defendants AMF Inc. and U. S. Suzuki Motor Corp., Limited.

Peter Dorsey, Robert A. Schwartzbauer, Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., for defendants International Snowmobile Industry Association, Bombardier Ltd. and Coleman Co., Inc.

Richard D. Allen, Richard D. Allen Ltd., Minneapolis, Minn., for Yamaha Motor Co. Limited.

Connor F. Schmid, Mackall, Crounse & Moore, Minneapolis, Minn., for defendant Massey-Ferguson, Inc.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Appellants, purchasers of snowmobiles, brought this antitrust class action alleging that appellees had engaged in several anticompetitive practices, including resale price maintenance. The district court ¹ held that as "indirect purchasers," appellants were precluded from maintaining their action under Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). The court granted appellees' motion for summary judgment. We affirm.

I.

Appellants, having purchased their snowmobiles for personal use, are ordinary consumers. It is conceded that the snowmobiles were purchased from retailers. None was purchased directly from any of the appellees, which include manufacturers, distributors, and a trade association.

In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), the Supreme Court held that, except in certain limited circumstances, antitrust defendants may not raise as a defense that plaintiff, who purchased directly from the defendants, had passed-on the illegal overcharge to other "indirect purchasers." In Illinois Brick Co. v. Illinois, supra, the Court merely extended the rationale of Hanover Shoe and held that indirect purchasers could not sue for treble damages claiming that the overcharge had been "passed-on" to them. In short, Illinois Brick held that "pass-on", which was not permitted to be used defensively in Hanover Shoe, could not be asserted offensively by indirect purchasers. See Illinois Brick Co. v. Illinois, supra, 431 U.S. at 735, 97 S.Ct. 2061. Thus, after Illinois Brick, only "the overcharged direct purchaser, and not others in the chain of manufacture or distribution" may sue for treble damages under section 4 of the Clayton Act. Id. at 729, 97 S.Ct. at 2066.

The Court in Illinois Brick noted, however, that Hanover Shoe, while stressing the narrow scope intended for any exception to the general rule, cited a preexisting cost-plus contract as a situation in which the defense of "pass-on" might be permitted. The Court then stated:

Another situation in which market forces have been superseded and the pass-on defense might be permitted is where the direct purchaser (from whom plaintiffs purchased) is owned or controlled by its customer.

Illinois Brick Co. v. Illinois, supra, 431 U.S. at 736 n. 16, 97 S.Ct. at 2070 n. 16.

Appellants argue in this appeal that appellees had controlled the sales practices of the retailers from whom they purchased and had engaged in resale price maintenance. This, they argue, falls within the exceptions to Illinois Brick articulated above. Thus, appellants argue, despite their status as indirect purchasers, they are not precluded from maintaining their action. Because of the procedural grounds upon which we base our disposition of this appeal, we need not decide this question.

II.

In support of their summary judgment motion, appellees filed affidavits with the district court. See Fed.R.Civ.P. 56(b). These affidavits controverted appellants' allegation that appellees had controlled the retailers from whom appellants had purchased their snowmobiles. Thus, as the district court found, the affidavits negated appellants' contention that appellees' alleged violations constituted an exception to Illinois Brick. The district court stated:

The facts (as) set forth in the affidavits supplied by the defendants are uncontroverted. . . . The persons from whom the named plaintiffs did make direct purchases neither controlled nor were controlled by either the plaintiffs or the defendants. In addition, neither the named plaintiffs nor the persons from whom these plaintiffs did make direct purchases made any direct purchases pursuant to a cost-plus contract.

Apparently resting upon the allegations set forth in their complaint, appellants did not file counter-affidavits or engage in or attempt to engage in any discovery. Fed.R.Civ.P. 56(e) provides that a party opposing a motion for summary judgment:

may not rest upon the mere allegations . . . of his pleading, but . . . by affidavits . . . (the party) must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In Wilmar Poultry Co. v. Morton-Norwich Products, Inc., 520 F.2d 289 (8th Cir. 1975), Cert. denied, 424 U.S. 915, 96 S.Ct. 1116, 47 L.Ed.2d 320 (1976), we held that summary...