Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., No. 74-1459

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TUTTLE, WISDOM and GOLDBERG; GOLDBERG
Citation517 F.2d 110
Parties1975-2 Trade Cases 60,425 EXHIBITORS POSTER EXCHANGE, INC., Plaintiff-Appellant, v. NATIONAL SCREEN SERVICE CORPORATION et al., Defendants-Appellees.
Docket NumberNo. 74-1459
Decision Date08 August 1975

Page 110

517 F.2d 110
1975-2 Trade Cases 60,425
EXHIBITORS POSTER EXCHANGE, INC., Plaintiff-Appellant,
v.
NATIONAL SCREEN SERVICE CORPORATION et al., Defendants-Appellees.
No. 74-1459.
United States Court of Appeals,
Fifth Circuit.
Aug. 8, 1975.

Page 111

Glenn B. Hester, Augusta, Ga., Francis T. Anderson, C. Ellis Henican, Jr., New Orleans, La., for plaintiff-appellant.

Phillip A. Wittmann, William D. Treeby, Anthony M. DiLeo, New Orleans, La., for Columbia Pictures et al.

James G. Burke, Jr., New Orleans, La., Walter S. Beck, New York City, for Nat. Screen Service.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

This antitrust case together with its judicial cousins decided today, Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1975, 517 F.2d 117 and Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1975, 517 F.2d 129 has proceeded toward its culmination with something less than the speed of light. These three cases grow out of the consolidation of the motion picture accessory business, under the dominance of National Screen Service Corp. (National Screen), a development which has generated more than a score of judicial opinions in the Third and Fifth Circuits and the Supreme Court, and covered a span of more than thirty years.

The case at hand concerns the movie poster industry in New Orleans. Plaintiff Exhibitors Poster Exchange, Inc. (Exhibitors) charges in this suit that defendant National Screen and seven movie

Page 112

production firms (Producers) 1 have combined to restrain free trade in movie posters in Exhibitors' market and to sustain a monopoly in the distribution of these posters for National Screen during the 1967-1971 period. We conclude that Exhibitors is collaterally estopped from proving its allegations by the effect of unappealed judgments against it in previous litigation against these defendants. In discussing the nature of the claim here alleged, we necessarily proceed to sketch the basic structure and history of the poster industry as it relates to all three cases resolved today.
I

Nearly all motion picture operators employ posters, or accessories, depicting copyrighted scenes from the films to advertise and promote their current and anticipated features, and such posters have been in use since early in the history of the motion picture industry. These posters were originally sold by the motion picture producers to theater operators; but in the Thirties, localized jobbers went into the business of acquiring an inventory of these posters and then renting them out for use and re-use by theater operators in the vicinity. The poster renting business flourished, and by 1940, independent poster renters were established throughout the United States. Plaintiff Exhibitors joined the industry in 1939 in New Orleans.

Early in the 1940's, three of the motion picture producers, Paramount, R.K.O. and M-G-M, each contracted with defendant National Screen regarding the production and nationwide distribution of their standard posters, thus apparently cutting off independent poster renters from access to new supplies of accessories for films produced by those companies. In response, a band of thirteen independents instituted an antitrust action in the Eastern District of Pennsylvania 2 against National Screen, Paramount, R.K.O., and M-G-M, which ended in a compromise settlement providing that National Screen would grant each plaintiff a license entitling it to purchase all necessary supplies of those producers' accessories (and the accessories of any other producers who might later contract similarly with National Screen) at specified prices. Subsequently National Screen entered into similar exclusive 3 contracts with the remaining five major film producers, Universal, Columbia, United Artists, Warner, and Fox; and a second suit was instituted in the federal district court in Philadelphia, this time against National Screen and all eight major producers. After winning a Supreme Court judgment that their present cause of action was not barred by res judicata because of its continuation after 1943, and because of the enlargement in scope of acts and defendants, Lawlor v. National Screen Service Corp., 1955, 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122, the independent-plaintiffs were ultimately defeated on the merits. Lawlor v. National Screen Service Corp., 3 Cir. 1959, 270 F.2d 146, cert. denied 1960, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742. Braced by this Third Circuit decision in its favor, National Screen proceeded in February, 1961, to notify Exhibitors and other jobbers throughout the country of its intention to discontinue supplying accessories to Exhibitors and the other jobbers (as it had been supplying them since 1943) as of May 16, 1961.

The day after the cut-off, May 17, 1961, Exhibitors initiated suit (Suit 1) against National Screen and six of the seven producers 4 here charged, alleging

Page 113

violations of Sherman Act, §§ 1 5 and 2, 6 15 U.S.C. §§ 1 and 2, through a conspiracy to restrain trade and to give National Screen a monopoly, and through National Screen's alleged monopolization and attempt to monopolize the accessory industry. Exhibitors sought treble damages and injunctive relief. 7 Exhibitors initially garnered a preliminary injunction against all defendants, but the injunction was dissolved following discovery, and summary judgment was entered in favor of the Producers. Plaintiff took no appeal.

National Screen remained as a party defendant in Suit 1. As trial approached, Exhibitors filed a second suit in 1964 (Suit 2) against National Screen and all Producers 8 to recover damages suffered since the entry of summary judgment in Suit 1 in 1961. Trial on the remaining aspects of Suit 1 was postponed, and the two suits were merged. Subsequently, in 1965, the district court entered summary judgment for each of the defendants. Again, Exhibitors took no appeal.

Undeterred, Exhibitors filed Suit 3 in 1967 against National Screen and the seven producers, asking for damages from the time of filing Suit 2. The district court entered summary judgment for each defendant on the basis of res judicata and collateral estoppel, and Exhibitors appealed. Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 421 F.2d 1313, cert. denied, 400 U.S. 991, 91 S.Ct. 454, 27 L.Ed.2d 439. Lending an indulgent reading to Exhibitors' pleadings in Suit 3 9 we concluded that they could be read to allege new claims based on significant post-1961 actions, and that res judicata did not entitle the defendants to summary judgment on that record. We observed further, however,

(a)lthough No. 3 would be a new cause of action and res judicata inapplicable thereto, Exhibitors might still be barred from further action on certain issues by collateral estoppel. The doctrine is classically stated by Mr. Justice Field in Cromwell v. County of Sac, 1877, 94 U.S. 351, 24 L.Ed. 195 when he says that in 'a second action between the same parties * * * upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' at 94 U.S. 353, 24 L.Ed. 198. It forecloses inquiry only as to those issues which were necessarily determined. United States v. Burch, 5 Cir. 1961, 294 F.2d 1, 5.

Thus it is necessary to determine what were the 'matters in issue or points controverted' in Suits No. 1 and No. 2. This determination is to be made on the basis of the prior records. The process was generally described by Mr. Justice Day: 'To answer these questions, we must look to the pleadings making the issues, and examine the record to determine the questions essential to the decision of the former controversy.' United Shoe Machinery

Page 114

Corp. v. United States, 1922, 258 U.S. 451, 459, 42 S.Ct. 363, 366, 66 L.Ed. 708, 718.

421 F.2d at 1319.

We then proceeded to identify the issues determined in Suits 1 and 2, and thereby precluded from re-litigation in Suit 3, as including the lawfulness under §§ 1 and 2 of the Sherman Act of the defendants' 1961...

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31 practice notes
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c). See Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 110, 115-16 (5th Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976). In McCord's criminal appeal we accepted all of Mc......
  • Neeld v. National Hockey League, Civ. No. 77-32.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 19, 1977
    ...lawful in the California action and thus they have a legal right to retain it. See, Exhibitors Poster Exch., Inc. v. National Screen S.C., 517 F.2d 110, 114 (5th Cir. 1974). Paragraph 31 of count III is hereby Paragraph 32 of count III alleges that defendants have maliciously contacted and ......
  • Poster Exchange, Inc. v. National Screen Service Corp., No. 74-1512
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 8, 1975
    ...and raises, among others, the same issues decided today in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 110, No. 74-1459 and Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 129, No. 74-2172, also decided today. Plaintiff here......
  • Piggly Wiggly Clarksville v. Interstate Brands, No. 3:96-CV-051.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • February 10, 2000
    ...Compl. at 6. 63. Pls.' Memo, at 30. 64. See Eagle Properties, 807 S.W.2d at 721. 65. 11 F.3d 1460 (9th Cir.1993). 66. See id. at 1464. 67. 517 F.2d 110, 116 (5th 68. See id. at 1463-64. 69. 890 F.2d 181 (9th Cir.1989). 70. See Harkins, 890 F.2d at 183. 71. Id. 72. Pls.' Memo. at 10-11. 73. ......
  • Request a trial to view additional results
31 cases
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c). See Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 110, 115-16 (5th Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976). In McCord's criminal appeal we accepted all of Mc......
  • Neeld v. National Hockey League, Civ. No. 77-32.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 19, 1977
    ...lawful in the California action and thus they have a legal right to retain it. See, Exhibitors Poster Exch., Inc. v. National Screen S.C., 517 F.2d 110, 114 (5th Cir. 1974). Paragraph 31 of count III is hereby Paragraph 32 of count III alleges that defendants have maliciously contacted and ......
  • Poster Exchange, Inc. v. National Screen Service Corp., No. 74-1512
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 8, 1975
    ...and raises, among others, the same issues decided today in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 110, No. 74-1459 and Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 129, No. 74-2172, also decided today. Plaintiff here......
  • Piggly Wiggly Clarksville v. Interstate Brands, No. 3:96-CV-051.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • February 10, 2000
    ...Compl. at 6. 63. Pls.' Memo, at 30. 64. See Eagle Properties, 807 S.W.2d at 721. 65. 11 F.3d 1460 (9th Cir.1993). 66. See id. at 1464. 67. 517 F.2d 110, 116 (5th 68. See id. at 1463-64. 69. 890 F.2d 181 (9th Cir.1989). 70. See Harkins, 890 F.2d at 183. 71. Id. 72. Pls.' Memo. at 10-11. 73. ......
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