KOS on and for Behalf of Sourdough Freight Lines, Inc. v. Alyeska Pipeline Service Co., 6278
| Decision Date | 30 September 1983 |
| Docket Number | No. 6278,6278 |
| Citation | 676 P.2d 1069 |
| Parties | KOS f/k/a Boks, a partnership and Secured Creditor on and for the Behalf of SOURDOUGH FREIGHT LINES, INC., Appellant, v. ALYESKA PIPELINE SERVICE COMPANY acting as agent for Amerada Hess Corporation, Arco Pipe Line Company, Exxon Pipeline Company, Mobil Alaska Pipeline Company, Phillips Petroleum Company, Sohio Pipe Line Company and Union Alaska Pipeline Company, Appellee. KOS f/k/a Boks, a partnership and Secured Creditor on and for the Behalf of SOURDOUGH FREIGHT LINES, INC., Appellant, v. BRITISH PETROLEUM OF ALASKA COMPANY, Appellee. KOS f/k/a Boks, a partnership and Secured Creditor on and for the Behalf of SOURDOUGH FREIGHT LINES, INC., Appellant, v. ATLANTIC RICHFIELD COMPANY, Appellee. |
| Court | Alaska Supreme Court |
Joseph W. Sheehan, Fairbanks, for appellant.
Alfred Toulon Smith, Anchorage, William H. Grady, Seattle, and Mary A. Nordale, Fairbanks, for appellee Alyeska Pipeline Service Co.
David H. Bundy, Ely, Guess & Rudd, Anchorage, for appellee Sohio Alaska Petroleum Co.
Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice. *
This is an appeal from a superior court order granting the defendants partial summary judgment on the antitrust claims of the plaintiff's third amended complaint. For the reasons that follow, we affirm the superior court's decision.
KOS, plaintiff below and appellant herein, is a secured creditor of Sourdough Freight Lines, Inc., ("Sourdough"). Sourdough is a common motor carrier subject to regulation by both the Alaska Transportation Commission and the Interstate Commerce Commission. Between 1974 and 1978, Sourdough transported cargo to the North Slope for defendants Alyeska Pipeline Service Co. ("Alyeska"), Atlantic Richfield Co. ("ARCO") and BP Alaska, Inc. Sohio Alaska Petroleum Co. ("Sohio") is defending this case as successor in interest to BP Alaska, Inc.
Alyeska, ARCO and Sohio paid all of the original invoices and bills of lading submitted by Sourdough for its services. In 1978, however, they received readjusted or rerated billings from Sourdough claiming additional amounts due under the tariffs. They audited the supplemental billings, and in some cases determined that valid undercharges existed. For the most part, however, they decided that the additional charges were unjustified. They did not pay the disputed tariffs.
Sourdough filed suit against Alyeska alleging that Sourdough had undercharged Alyeska for services rendered pursuant to the applicable tariff, that Alyeska had refused to pay the revised billings, and that Alyeska had breached its contract with Sourdough. Alyeska counterclaimed that Sourdough had collected an amount in excess of the applicable tariff rate, that the tariff rates published by Sourdough were "unfair, unjust, and unreasonable," and that any determination of reasonableness was within the exclusive primary jurisdiction of the Interstate Commerce Commission and the Alaska Transportation Commission.
Sourdough amended its complaint against Alyeska, alleging the same action for breach of contract, but substituting its creditor, KOS, for Sourdough as plaintiff. KOS subsequently amended the complaint to add a second count, alleging violations of the state antitrust laws against Alyeska. The complaint was amended yet again to add as defendants Atlantic Richfield Company and the British Petroleum of Alaska Company.
KOS has drafted its antitrust claims in terms that implicate nearly every actionable provision of the Alaska antitrust statutes. On appeal, however, the only statutes at issue are AS 45.50.562 () and AS 45.50.564 (prohibiting monopolies). In the superior court, KOS contended that Alyeska, alone and in concert with Sohio and ARCO, engaged in a price fixing scheme to control rates for motor carrier services in northern Alaska during the period from 1974 to 1978. In support of its contention, KOS alleged the following facts: first, that the defendants jointly refused to pay Sourdough the sums due it under tariff terms, intending to establish a pricing scheme; second, that they told Sourdough they would stop doing business with it if Sourdough insisted on its interpretation of the tariff; and third, that Sourdough relied on a request by Alyeska to increase its fleet of equipment, whereupon Alyeska decided that it no longer needed the additional equipment. KOS contends that by this conduct the defendants attempted to dictate "service, rates and tariff changes" to Sourdough. KOS also alleged that the defendants further violated the antitrust laws by entering into certain agreements with other equipment leasing companies.
Alyeska, ARCO and Sohio denied all of KOS's allegations. In response to the cause of action for breach of contract, the defendants contended that they paid all charges that were due to Sourdough under any reasonable interpretation of the applicable tariffs. The superior court stayed proceedings on this claim, referring all tariff disputes to the appropriate administrative agencies. The court's order is not at issue in this appeal.
The defendants moved for summary judgment on the antitrust cause of action, contending that KOS had failed to state a claim upon which relief could be granted. This motion was granted. KOS appeals from the judgment for the defendants entered by the court.
We are called upon to decide whether a common motor carrier may recover treble damages for violation of AS 45.50.562, which prohibits conspiracies to fix prices, when shippers have jointly discussed tariff terms and have refused to pay some of the same charges in bills submitted by the carrier. The classic price fixing situation involves an agreement among competing sellers to regulate the price at which they will sell their product. Competing purchasers, however, when acting in concert to affect prices, may also violate the prohibition against conspiracies in restraint of trade. Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 235, 68 S.Ct. 996, 1005, 92 L.Ed. 1328, 1340 (1948); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940).
KOS contends, under two different theories, that the defendants conspired against it in restraint of trade. The first theory is that Alyeska, Sohio and ARCO agreed on a common plan or course of action to refuse payment of bills submitted by KOS pursuant to the tariff. The second theory is that Alyeska, as agent for the owner corporations of the pipeline, effected a conspiracy among the oil companies to fix the price of transportation services.
KOS points to no evidence that would sustain its allegation that the pipeline owners actively conspired to withhold payment due for services rendered by Sourdough. With regard to KOS's first conspiracy theory, there is some evidence to indicate that the transportation managers of Alyeska, ARCO and Sohio did discuss questions of tariff interpretation with each other. There is also evidence from which it might be inferred that Sohio and ARCO had agreed to adopt similar reasons for refusing to pay certain items billed by Sourdough. As we have had occasion to note, however:
[T]he existence of such a question of fact will not prevent entry of summary judgment unless the fact in issue is material. And the factual question will be considered material only if as a matter of law, assuming the factual situation to be as appellant contends, appellant would then have a basis for a claim for relief against appellee.
Whaley v. State, 438 P.2d 718, 720 (Alaska 1968). See also Alaska Civil Rule 56(c).
We are aware of the United States Supreme Court's admonition that summary judgment should be used sparingly in antitrust litigation. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458, 464 (1962). When an antitrust plaintiff has arguably established a prima facie case, we agree that they should be afforded an opportunity to discover and prove the necessary supporting facts at trial. In the present case, however, there is a more fundamental reason for finding that KOS lacks a basis for its claim. Accepting KOS's allegations as true, we conclude that its claims of a conspiracy to fix prices must fail as a matter of law for lack of antitrust standing.
Alyeska correctly observes that this case only involves disputed tariffs and simply does not involve any antitrust issues. A private litigant seeking treble damages for violation of the antitrust laws must establish that it has standing to bring suit. Radiant Burners, Inc. v. Peoples Gas Light and Coke Co., 364 U.S. 656, 660, 81 S.Ct. 365, 367, 5 L.Ed.2d 358, 361 (1961). Section 4 of the Clayton Act states that "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C.A. § 15 (1983) (emphasis added). The language of the Alaska statute similarly limits recovery to persons injured in their business or property by reason of a violation of the antitrust laws. 1
Until recently, establishing some damage resulting from an unlawful conspiracy was all that was required to establish standing to bring suit for treble damages. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114, 89 S.Ct. 1562, 1571, 23 L.Ed.2d 129, 143 (1969). In its decision in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), however, the Supreme Court announced an additional standing requirement. A plaintiff must show not only the fact of injury from the alleged violation, but that the injury is "of...
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Spence v. SOUTHEASTERN ALASKA PILOTS'ASS'N
...comparable state act are similar. The Alaska courts look to federal precedent in applying the state statute. See KOS v. Alyeska Pipeline Service Co., 676 P.2d 1069 (Alaska 1983). The court's discussion of the federal law applies equally to plaintiff's state law claims under the comparable s......
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Alaska. Practice Text
...Pilots’ Ass’n, 789 F. Supp. 1014, 1020 n.1 (D. Alaska 1992) (citing KOS ex rel. Sourdough Freight Lines v. Alyeska Pipeline Serv. Co . , 676 P.2d 1069 (Alaska 1983)) (“The Alaska courts look to federal precedent in applying the state [antitrust] statute.”). 7. See, e.g. , Gunderson v. Univ.......