Berning v. Gooding
| Decision Date | 02 June 1987 |
| Docket Number | No. 86-3596,86-3596 |
| Citation | 820 F.2d 1550 |
| Parties | , 1987-1 Trade Cases 67,627 Louis G. BERNING, Plaintiff-Appellant, v. Fred GOODING, Ray Obendorf, Peter Rooney, George Signoratti, Herman Goschie, Robert Coleman, Bill Gasseling, Harlin Shinn, Melvin Newhouse, Ken Desserault, Alcid Roy, Mike Koreski, Rip Riel, and Robert H. Eaton, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John F. Neupert, Portland, Or., for plaintiff-appellant.
Charles J. Merten and Paul T. Fortino, Portland, Or., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon.
Before ANDERSON, FARRIS and BRUNETTI, Circuit Judges.
Louis G. Berning (Berning) is an Oregon resident who was a producer of hops. When his business for producing and growing hops failed, he brought this antitrust suit against Fred Gooding and the other named defendants alleging the failure was the result of their price fixing scheme which caused hop prices to fall. Berning alleged violation of the Clayton Act and sought treble damages under 15 U.S.C. Sec. 15(a). He also sought relief on a pendent state claim.
The defendants are hop growers and members of the Hop Administrative Committee (HAC). (One defendant, Robert Eaton, was not a grower but was a manager of the HAC). Members of the HAC are selected by the Secretary of Agriculture (Secretary). 7 C.F.R. Sec. 991.25 (1985). The HAC was created pursuant to the Agricultural Adjustment Act (the Act), 7 U.S.C. Sec. 601 et seq. The Act empowers the Secretary to "establish and maintain ... orderly marketing conditions for agricultural commodities" so that farmers will receive "parity prices" for their commodities. 7 U.S.C. Sec. 602(1). The Act allows the Secretary to issue orders for certain commodities, including hops. 7 U.S.C. Secs. 608c(1) and (2). The orders regulate the production of the commodity. 7 U.S.C. Sec. 608c(1). Hop orders may contain terms "limiting ... the total quantity produced during any specific period or periods" and "apportioning ... the total quantity of hops of the then current calendar year permitted to be handled equitably among all producers...." 7 U.S.C. Sec. 608c(6)(G)(i) and (ii). In this, the Secretary has the power to enter into marketing agreements to adjust the acreage of hops in production. See 7 U.S.C. Secs. 608(2) and 608b. The duty of the HAC is to submit information to the Secretary and recommend a marketing policy to establish a salable quantity and allotment percentage for hop growers. 7 C.F.R. Sec. 991.36.
Berning's complaint alleged that members of the HAC met, agreed, and conspired to fix the price of hops and the quantity of hops to be produced. This was allegedly accomplished by the HAC agreeing to recommend to the Secretary high salable percentages without considering (1) the recommendation of the Hop Advisory Board; (2) the quantity of hops that should be made available for marketing to meet market requirements and to establish orderly marketing conditions; (3) the prospective carrying of producers, handlers, and brewers; (4) the desirable carryout; (5) the prospective imports; and (6) other factors affecting market conditions, as required by 7 C.F.R. Sec. 991.36. Berning also alleged an antitrust violation in that the defendants, as members of the HAC and as producers of hops, contracted above the salable percentages allowed by the orders and entered into these contracts for sale before their HAC recommendations were adopted by the Secretary.
The district court dismissed Berning's complaint with prejudice for failure to state a claim. 643 F.Supp. 26. Berning appeals that dismissal. We affirm.
We review de novo an order dismissing a complaint for failure to state a claim. Alonzo v. ACF Property Management, Inc., 643 F.2d 578, 579 (9th Cir.1981). A court may dismiss a complaint for failure to state a claim for relief under Fed.R.Civ.P. 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In an antitrust action, the complaint need only allege sufficient facts from which the court can discern the elements of an injury resulting from an act forbidden by the antitrust laws. Lucas v. Bechtel Corp., 633 F.2d 757, 760 (9th Cir.1980).
Berning's argument that the members of the HAC are liable for an antitrust violation is without merit. In Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986), consumers of services provided by motor carriers brought an antitrust action, Sherman Act, 15 U.S.C. Sec. 1, et seq., against the motor carriers and their tariff bureau. The tariff bureau engaged in collective ratemaking for rates approved by the ICC. The consumers alleged the carriers agreed to fix prices by filing illegal rates with the ICC, helping set illegal rates, and not complying with the approved rates. Id. at 1924.
The Supreme Court affirmed dismissal of the suit, finding that the ICC had approved the rates set and therefore established the lawfulness of the carrier's actions. Id. at 1927. The Court's reasoning was that antitrust injury implies violation of a legal right. Since the legal rights at issue, i.e., the shipping rates, were approved by the ICC, there was no violation of a legal right or antitrust injury. Id. at 1926 (quoting Keogh v. Chicago N.W.R. Co., 260 U.S. 156, 163, 43 S.Ct. 47, 49, 67 L.Ed. 183 (1922) ).
The Court in Square D specifically found that the issue of whether or not there was liability was improperly characterized as an issue of "immunity." Id. at 1929. Rather, the Court posed the rule as, "an award of treble damages is not an available remedy for a private shipper claiming the rate submitted to, and approved by, the ICC was the product of an antitrust violation." Id.
We...
To continue reading
Request your trial
-
Ice Cream Liquidation, Inc. v. Land O'Lakes, Inc.
...of antitrust laws. 390 F.Supp. at 699-700, but see Berning v. Gooding, 643 F.Supp. 26, 29 (D.Or.1985), aff'd on other grounds, 820 F.2d 1550 (9th Cir.1987) (holding that there was no substantial difference between the making of a marketing agreement and the issuance of a hop order and, thus......
-
ALASKA CARGO TRANSPORT v. Alaska RR Corp.
...proposition that a private shipper cannot maintain an antitrust cause of action based on rates approved by the ICC. Berning v. Gooding, 820 F.2d 1550, 1551 (9th Cir.1987). In Keogh, a shipper sought to recover antitrust treble damages for a claim that, but for an alleged conspiracy among ca......
-
Wileman Bros. & Elliott, Inc. v. Giannini, 88-15731
...and its effect on this action, should await a more fully developed record. 10 II. Secretarial Non-Disapproval In Berning v. Gooding, 820 F.2d 1550 (9th Cir.1987) ("Berning II" ), this court held that members of the Hop Administrative Committee could not be liable for treble damages for nonb......
- Sochin v. C.I.R.
-
Table of Cases
...Cir. 1964), 1224, 1260, 1263– 1264 Berlyn, Inc. v. Gazette Newspapers, 157 F. Supp. 2d 609 (D. Md. 2001), 538, 802 Berning v. Gooding, 820 F.2d 1550 (9th Cir. 1987), 1455 Berni v. Barilla S.p.A., 964 F.3d 141 (2d Cir. 2020), 915 Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maats......
-
Regulated Industries
...Farm v. Butz, 485 F.2d 1125, 1131 (5th Cir. 1973) (exemption also applies to marketing orders). See generally Berning v. Gooding, 820 F.2d 1550, 1552 (9th Cir. 1987) (administrative committee not liable under Clayton Act for its recommendations to Secretary of Agriculture pursuant to Agricu......