FORD WSLE. CO., INC. OF SJ v. FIBREBOARD PAPER PR. CORP., 72-2570.

• Decision Date: 20 February 1974
• Docket Number: No. 72-2570.,72-2570.
• Citation: 493 F.2d 1204
• Parties: FORD WHOLESALE COMPANY, INC. OF SAN JOSE, a corporation, Appellant, v. FIBREBOARD PAPER PRODUCTS CORPORATION et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

493 F.2d 1204 (1974)

FORD WHOLESALE COMPANY, INC. OF SAN JOSE, a corporation, Appellant, v. FIBREBOARD PAPER PRODUCTS CORPORATION et al., Appellees.

No. 72-2570.

United States Court of Appeals, Ninth Circuit.

February 20, 1974.

Maxwell M. Blecher (argued), of Blecher, Collins & Hoecker, Hansen & Dolle, Los Angeles, Cal., Joseph M. Alioto, Peter J. Donnici, San Francisco, Cal., for appellant.

E. Judge Elderkin (argued), Thomas A. Welch of Brobeck, Phleger & Harrison, San Francisco, Cal., for appellees.

Before CHAMBERS and KOELSCH, Circuit Judges, and EAST,^* District Judge.

OPINION

EAST, Senior District Judge:

The plaintiff-appellant (Ford) instituted this private antitrust action for damages under Section 4 of the Clayton Act 15 U.S.C. § 15 against the defendant-appellee Fibreboard Paper Products Corporation (Fibreboard) and the remaining above-named defendants alleging that Fibreboard and the other defendants "combined and conspired to monopolize, attempted to monopolize and did monopolize trade and commerce in the relevant market in violation of Sections 1 and 2 of the Sherman Act 15 U.S.C. §§ 1, 2."

The proceedings in the District Court progressed through a jury verdict in favor of Ford for a substantial amount.

Thereafter, the District Court, 344 F.Supp. 1323, upon various motions of Fibreboard concluded "that the evidence on the interstate issue was wholly insufficient, or at least so insubstantial and lacking in probative value, that there is no evidence whatsoever from which the jury might rationally have concluded that defendants restrained interstate commerce;", set aside the jury verdict and judgment thereon in favor of Ford and on May 30, 1972, entered judgment for Fibreboard that the action be dismissed with costs to neither party.

Ford appeals and Fibreboard makes no cross-appeal from various adverse orders.

Ford asserts and we agree that "the sole question before this court on appeal is whether the District Court was erroneous in ruling that interstate commerce was not involved in the defendants' anticompetitive conduct which otherwise constituted a violation of Section 1 of the Sherman Act. 15 U.S.C. § 1."

Assuming arguendo then that there was sufficient material evidence in the record to support the jury's finding on the substantive issue of Fibreboard's anticompetitive conduct, we turn to the jurisdictional issue of interstate commerce involvement of Fibreboard's anticompetitive conduct.

The record evidence on that issue is ably marshaled, surveyed and analyzed in the Memorandum of Decision of the District Court reported in Ford Wholesale Company, Inc. of San Jose v. Fibreboard Paper Products Corporation, et al., 344 F.Supp. 1323 (1972); and from our review of the record we are satisfied to refer to and rely upon that marshaling as a statement of facts herein.

We conclude for the same reasons and upon the same legal grounds set forth in the District Court's Memorandum of Decision that the judgment entered thereon is correct in fact and at law.

Also, we are satisfied that the rationale utilized by the District Court for its judgment is wholly compatible with and justified under the test of the independent jurisdictional interstate commerce issue under the Sherman Act as correlated from prior authority and delineated in Rosen v. Rossmoor Corporation, Golden Rain Foundation, Leisure World Foundation, and Crestmark Carpet and Drapery Company, 9th Cir., 487 F.2d 373, 1973.

"The jurisdictional issue under the Sherman Act is distinct from the substantive issue of whether a given defendant\'s conduct was of the kind prohibited by the Act. Rasmussen v. American Dairy Ass\'n, 472 F.2d 517, 521-524 (9th Cir. 1973). The jurisdictional issue is one of constitutional power. Congress intended to extend the substantive prohibitions of the Sherman Act to the farthest reaches of its power under the Commerce Clause, thereby mandating for this nation a competitive business economy to the full extent that Congress could do so under its constitutional power to regulate interstate and foreign commerce.

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