Graham v. Hudgins, Thompson, Ball and Associates, Inc., Civ. No. 70-C-220.

• Decision Date: 23 November 1970
• Docket Number: Civ. No. 70-C-220.
• Parties: John A. GRAHAM, Plaintiff, v. HUDGINS, THOMPSON, BALL AND ASSOCIATES, INC., an Oklahoma Corporation, and the First National Bank and Trust Company, a National Banking Association, and Trustee of the Hudgins, Thompson, Ball and Associates, Inc. Employees' Profit Sharing Retirement Plan Trust, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

319 F. Supp. 1335

John A. GRAHAM, Plaintiff, v. HUDGINS, THOMPSON, BALL AND ASSOCIATES, INC., an Oklahoma Corporation, and the First National Bank and Trust Company, a National Banking Association, and Trustee of the Hudgins, Thompson, Ball and Associates, Inc. Employees' Profit Sharing Retirement Plan Trust, Defendants.

Civ. No. 70-C-220.

United States District Court, N. D. Oklahoma.

November 23, 1970.

William C. Anderson of Doerner, Stuart, Saunders, Daniels & Langenkamp, Tulsa, Okl., for plaintiff.

A. P. Murrah, Jr., of Andrews, Mosburg, Davis, Elam, Legg & Kornfeld, Oklahoma City, Okl., for defendants.

ORDER

DAUGHERTY, District Judge.

Defendants move for dismissal of Plaintiff's Complaint for failure to state a cause of action. Plaintiff was employed by Defendant Hudgins, Thompson, Ball and Associates, Inc. (HTB) and participated in its Employee Profit Sharing Retirement Plan (Plan), which is administered by Defendant The First National Bank and Trust Company of Oklahoma (FNB) as trustee under the Plan. The Plan contains a provision stipulating that should an employee leave HTB to accept employment with a local competitor of HTB, then the employee's rights in the Plan are forfeited and the accumulated sums standing in his name are redistributed among all of the remaining participants in the Plan. It appears that this Plan is of the noncontributory type, that is, no contribution is made by any employee, and no distributions to participants of the Plan are made until after their employment with HTB terminates by reason of death, retirement or resignation or discharge under certain conditions.

Plaintiff's first claim is based on 15 U.S.C.A. § 1 and § 15 and certain Oklahoma statutes relating to unlawful restraint of trade and unlawful contracts. As there is no diversity of citizenship between the parties in this case, the Federal claims also form the basis for Plaintiff's jurisdictional allegations as well. Three other claims stated by Plaintiff originate under state law.

Defendants contend that Plaintiff has failed to state a federal claim on which relief may be granted. Defendants rely on Austin v. House of Vision, 404 F.2d 401 (7th Cir. 1969), which they claim was decided adverse to the position of the Plaintiff herein on facts virtually identical to those alleged by Plaintiff. Plaintiff, in briefs, seems to tacitly admit the force of this decision, but contends that this Court should consider the adoption of the rule set out in Muggill v. Reuben H. Donnelley Corporation, 62 Cal.2d 239, 42 Cal.Rptr. 107, 398 P.2d 147, 18 A.L.R.3d 1241 (1965). There are important differences in the two cases. The Austin case was concerned with the application of the federal antitrust laws to a profit sharing plan under which the amounts claimed by the employee had been contributed entirely by the employer as is the case here. In the Muggill case, the controversy involved the application of a California State statute to a pension plan in which the employee's rights had vested by reason of his retirement. As the jurisdiction of this Court is dependent upon an actionable violation of the federal antitrust laws, the Court is vitally concerned with the federal antitrust laws and not alleged violations of state statutes. Also, under the Plan here in controversy, there appears to have been no vesting of the Plaintiff's interest in the funds of the Plan.¹ Thus, the employer's action in Muggill in terminating the employee's vested retirement benefits because of his acceptance of employment with a competing firm is markedly different from HTB's action here in refusing to pay Plaintiff funds in which no rights had vested in him.

The issue of primary importance to the Court is whether Plaintiff has stated a claim arising under 15 U.S.C.A. § 1 and § 15 as pleaded. In the Austin case, the court held proper the trial court's dismissal of a claim laid under 15 U.S. C.A. § 1 and § 15, but it also considered the antitrust laws generally. In its decision, the court stated that the employee had failed to make any showing of a per se violation of the "antitrust laws" or of a contract, combination or conspiracy between the employer and the trustees of the plan. The court observed that the trustees' duties were limited to administration of the plan, they were not engaged in the employer's business nor were they competitors of the employer. This is precisely the situation here.

Plaintiff's Complaint does not allege any of the traditional per se violations of 15 U.S.C.A. § 1, that is, it does not allege the existence of price fixing, tying arrangements, boycotts, division of markets or reciprocal dealings. See 1 Von Kalinowski, Antitrust Laws and Trade Regulations, Section 6.023, pp. 6-93 to 6-123. Even if the contract by which FNB as trustee agreed to administer the Plan could be regarded as a type of contract contemplated by 15 U.S. C.A. § 1, it is clear that FNB is not an active participant in any agreement to restrain trade in the market for Plaintiff's services. As trustee, it can only do that which...