McGuire v. Columbia Broadcasting System, Inc.

• Decision Date: 05 September 1968
• Docket Number: No. 21643.,21643.
• Parties: Don McGUIRE, Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., Columbia Broadcasting System Films, Inc., and General Foods, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

399 F.2d 902 (1968)

Don McGUIRE, Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., Columbia Broadcasting System Films, Inc., and General Foods, Appellees.

No. 21643.

United States Court of Appeals Ninth Circuit.

September 5, 1968.

Thomas R. Sheridan (argued), of Simon, Sheridan, Murphy, Thornton & Medvene, Los Angeles, Cal., for appellant.

Philip K. Verleger (argued), of McCutchen, Black, Verleger & Shea, O'Melveny & Myers, Los Angeles, Cal., Kendall M. Cole, John W. Kuhnemund, White Plains, N. Y., for appellees.

Before BARNES and JERTBERG, Circuit Judges, and ^*PECKHAM, District Judge.

PECKHAM, District Judge:

This is an appeal from a summary judgment in favor of the appellee (General Foods) which is one of three named defendants in a private antitrust action.¹

The appellant Don McGuire (hereinafter McGuire) an independent writer, producer and director of television shows and series, filed a treble-damage antitrust action which alleges violations of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2) and Section 3 of the Clayton Act (15 U.S.C. § 14), and names as defendants, Columbia Broadcasting System, Inc., (hereinafter CBS), Columbia Broadcasting Films, Inc., (hereinafter CBS Films), and appellee General Foods.²

In the spring and summer of 1964, McGuire was requested by General Foods to make two pilot television films for possible use in the 1965-1966 prime time television season. (Prime time is the three and one-half hours between 7:30 and 11:00 P.M. each evening, seven days a week, excluding the summer season). General Foods, a Delaware Corporation, markets throughout the United States and many foreign countries a diversified line of packaged goods and grocery products, and as part of its several million dollar a year advertising program sponsors television series which are exhibited on the CBS television network, consisting of five wholly owned stations and two hundred affiliates. The two pilots that McGuire was requested to make were but two of eight separate pilots that General Foods had committed itself to finance at a cost of more than $800,000.00, with the expectation that one or more of them might prove acceptable for use in the 1965-1966 season. One of McGuire's pilot television films, "A Man Named McGhee" (hereinafter "McGhee") was selected by General Foods and its advertising agencies as being the best of the eight, and McGuire was told that conditioned upon network approval, General Foods intended to pick up the option, and sponsor "McGhee" during the oncoming season. Thereafter, in January of 1965, the "McGhee" pilot was shown to Mr. James Aubrey of the CBS television network; and although he was aware that it was the first choice of General Foods, nonetheless, the show was rejected, and in its place two CBS film series, "Hogan's Heroes" and "Country Cousins" were eventually selected as the new series to be sponsored by General Foods.

In his complaint McGuire alleges in part that beginning around 1960, the defendant CBS adopted and started to put into effect a policy and a course of action whereby it would not exhibit television shows or series over its network during prime time unless it had a financial interest in and control over the show or series; that this policy was effectuated by having national television advertisers sponsor only television shows and series produced by CBS' wholly owned subsidiary, CBS Films; that each year for the past five years the Defendant CBS has increased its financial control of the percentage of shows or series so exhibited so that for the 1965-1966 television broadcast year CBS had a financial interest in virtually every show exhibited on its network during prime time.

As a result of this alleged course of action, McGuire charged the defendants, CBS, CBS Films, and appellee General Foods, and the unnamed co-conspirators³ with the previously enumerated antitrust violations.

A motion for summary judgment was filed by General Foods and supported by affidavits. In opposition thereto McGuire filed affidavits and referred to CBS responses to his interrogatories. After a hearing by the Court the motion for summary judgment was granted and an appeal was filed, McGuire complaining that there were genuine issues of fact as to each of the claimed antitrust violations and that the Court erred in ruling that no oral testimony be allowed at the hearing on the summary judgment motion. We do not agree and affirm.

Rule 56(e) F.R.C.P. provides that "when a motion for summary judgment is made and supported * * * an adverse party may not rest upon the allegations or denials of his pleading, but his response * * * must set forth specific facts showing that there is a genuine issue for trial." However, the showing of a "genuine issue for trial" is predicated upon the existence of a legal theory which remains viable under the asserted version of the facts, and which would entitle the party opposing the motion (assuming his version to be true) to a judgment as a matter of law. The question to be resolved is whether there is "sufficient evidence supporting the claimed factual dispute * * * to require a jury or judge to resolve the parties' differing versions of the truth at trial", First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569, 592.

McGuire's contention that there is a genuine issue of fact as to the alleged violations of the Sherman Act necessitates evidence that would substantiate an inference of a combination or conspiracy. Although much of McGuire's affidavits consist of inadmissible hearsay, not competent under Rule 56(e), F.R. C.P., nonetheless a careful examination of the affidavits in their entirety does not supply the requisite evidence to defeat the motion for summary judgment. From appellant's own affidavits it appears that General Foods selected McGuire's pilot "as the number one choice", and thereafter attempted to persuade CBS to accept it. Upon the initial rejection of the pilot by CBS, a further meeting with CBS was set up in order to again try to convince them to accept the show. Prior to this meeting, the appellant's representative, Abe Lastfogel, met with the representatives of General Foods and its advertising agencies, and indicated in his affidavit that General Foods, with all of its tremendous buying power at CBS, was attempting to persuade CBS to accept McGuire's pilot film. This effort on the part of General Foods appears to contradict any theory of boycott or attempted boycott, and supports rather, an inference of cooperation in a mutual attempt to gain acceptance of the pilot by CBS. Moreover, the affidavits of General Foods provide legitimate reasons for its acceptance of the CBS Film television offering in the place of McGuire's pilot. General Food's affidavits indicate that James Aubrey of CBS declined to run "McGhee" at times...