In re Antibiotic Antitrust Actions

• Decision Date: 13 April 1971
• Docket Number: 70 Ci,69 Civ. 3899,69 Civ. 1557,69 Civ. 1558,70 Civ. 367,69 Civ. 4909,70 Civ. 1409,69 Civ. 3194,69 Civ. 3772,69 Civ. 1556,69 Civ. 4261,68 Civ. 4264,69 Civ. 1559,M 19-93A and the following actions: 68 Civ. 2370,69 Civ. 5684,69 Civ. 4026
• Parties: In re Coordinated Pretrial Proceedings in ANTIBIOTIC ANTITRUST ACTIONS.
• Court: U.S. District Court — Southern District of New York

333 F. Supp. 310

In re Coordinated Pretrial Proceedings in ANTIBIOTIC ANTITRUST ACTIONS.

M 19-93A and the following actions: 68 Civ. 2370, 68 Civ. 4264, 69 Civ. 1556, 69 Civ. 1558, 69 Civ. 1559, 69 Civ. 3194, 69 Civ. 4261, 70 Civ. 1409, 69 Civ. 3899, 69 Civ. 5684, 70 Civ. 367, 69 Civ. 1557, 69 Civ. 3772, 69 Civ. 4026, 69 Civ. 4909, 70 Civ. 5590, 69 Civ. 5032, 69 Civ. 5574, 69 Civ. 5683, 69 Civ. 5685, 70 Civ. 477, 70 Civ. 677 and 70 Civ. 1306.

United States District Court. S. D. New York.

April 13, 1971.

MISCELLANEOUS ORDER NO. 71-11

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO THOSE CLAIMS BASED ON PURCHASES OF FINISHED ANIMAL FEED PRODUCTS

MILES W. LORD, District Judge (By Assignment).

Pursuant to this court's order of February 19, 1971 (Misc. Order No. 71-6), the defendants have moved for dismissal, summary judgment, or partial summary judgment in several of the actions involved in this multidistrict litigation on the grounds that certain of the claims involved in them are too remote or that the parties asserting them lack standing to do so. The majority of these motions were filed in the "human consumption cases" but one such motion was filed in the "farm cases."

The defendants have moved for summary judgment with respect to all claims "which are based on the purchase of finished animal feed products not in the form originally sold by defendants." The motion was not directed to, nor is this order concerned with, claims resulting from purchases, however indirect or remote, of antibiotic drugs in a form substantially similar to that distributed by the defendants.

It is axiomatic that a district court must proceed with extreme caution in granting motions for summary judgment in private treble damage actions. Norfolk Monument Company v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 704, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1969). It is equally clear however where there are no material facts in dispute or where plaintiffs cannot recover on their claims as a matter of law, dismissal or summary judgment is appropriate. Daily Press v. United Press International, 412 F.2d 126 (6th Cir. 1969), Jones v. Borden Company, 430 F.2d 568 (5th Cir. 1970), Beckman v. Walter Kidde & Co., 316 F.Supp. 1321 (E.D.N.Y.1970), Flood v. Kuhn, 312 F. Supp. 404 (S.D.N.Y.1970).

At the hearing held in San Francisco on March 23, 1971, counsel for the affected farm plaintiffs argued strenuously that if they could establish that the alleged conspiracy had an impact, however remote or uncertain, on the price of finished animal feed products, their clients had a right to maintain their actions under the federal antitrust laws subject only to the requirement that they later establish the amount of their damages with the requisite degree of certainty.

When faced with a similar factual situation in the Plumbing Fixture Cases, Chief Judge John Lord and Judge Alexander Harvey II both held that persons who purchase the product involved in the alleged conspiracy as a minor component of an entirely different product (there plumbing fixtures and houses) lack standing or are too remote to maintain their antitrust actions unless it is clear that the higher persons in the chain of distribution "passed-on" the alleged overcharge through pre-existing cost-plus contracts or other analogous fixed markup arrangements. Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 50 F.R.D. 13 (E.D. Pa.1970); Maricopa County v. American Radiator & Standard Sanitary Corp., 323 F.Supp. 381 (E.D.Pa.1971). Judge Lord's decision dismissing the claims of homeowners who purchased homes containing plumbing fixtures has since been affirmed per curiam by the Third Circuit. Mangano v. American Radiator & Standard Sanitary Corp., 438 F.2d 1187 (3d Cir. 1971).

The plaintiffs' affidavits in the present case establish only (1) that some types of animal feed (therapeutic grade) contained as much as 200 grams of terramycin per ton of feed, (2) that the cost of the non-antibiotic ingredients in finished animal feed has remained fairly constant in the past seventeen years; and (3) that the price of finished animal feed varies with the amount of terramycin incorporated in it. These affidavits do not refute the fact that the plaintiffs asserting these claims did not purchase antibiotic drugs in the form sold by the defendants nor do they tend to establish that the manufacturers and distributors of medicated animal feed containing antibiotic drugs "passed along" any illegal "overcharge...