National Used Car M. Report v. NATIONAL AUTO. D. ASS'N

• Citation: 108 F. Supp. 692
• Decision Date: 06 November 1951
• Docket Number: Civ. No. 600-51.
• Parties: NATIONAL USED CAR MARKET REPORT, Inc. v. NATIONAL AUTO. DEALERS ASS'N et al.
• Court: U.S. District Court — District of Columbia

108 F. Supp. 692

NATIONAL USED CAR MARKET REPORT, Inc. v. NATIONAL AUTO. DEALERS ASS'N et al.

Civ. No. 600-51.

United States District Court District of Columbia.

November 6, 1951.

King & Nordlinger, Washington, D. C., for plaintiff.

James C. Moore, Washington, D. C., Gordon L. Eakle, Washington, D. C., Leo F. Tierney, Chicago, Ill., for defendants.

BASTIAN, District Judge.

Plaintiff has filed suit under Section 1 of the Sherman Act, 15 U.S.C.A. § 1, Section 2(a) of the Clayton Act, as amended, 15 U.S.C.A. § 13(a), and Section 3 of the Robinson-Patman Act, 15 U.S.C.A. § 13a. Defendants have moved to dismiss.

Plaintiff is the publisher of a used car guide known as the "Blue Book". One of the corporate defendants (National Automobile Dealers Used Car Guide Company) publishes a similar used car guide. The other corporate defendant (National Automobile Dealers Association) conducts studies and research for the benefit of those new car dealers who are its members. The two corporate defendants have interlocking managements. The individual defendants are officers of the corporate defendants. The corporate defendant publishing a used car guide similar to that published by the plaintiff distributes it to all dues-paying members of the other corporate defendant.

The first count, which relies upon Section 1 of the Sherman Act, 15 U.S.C.A. § 1, should be dismissed. It appears to the Court that before any action may be maintained under this Section there must be injury to the public. At the least, there must be facts alleged from which it can be determined as a matter of law that by reason of intent, tendency, or the inherent nature of the contemplated acts, the conspiracy, contract, or combination, etc., is reasonably calculated to prejudice the public interest by unduly restraining the free flow of commerce. Such is not the case here, and so dismissal must result. Feddersen Motors, Inc. v. Ward, et al., 10 Cir., 180 F.2d 519; District of Columbia Citizen Pub. Co. v. Merchants & Manufacturers Ass'n, Inc., D.C., 83 F.Supp. 994; Neumann v. Bastian-Blessing Co., D.C., 70 F.Supp. 447; Ruddy Brook Clothes, Inc., v. British Foreign & Marine Insurance Co., Ltd., D.C.N.D.Ill. 103 F.Supp. 290; decided by Judge Campbell in Apex Hosiery Co. v. Leader, 310 U.S. 469, 493, 500, 60 S.Ct. 982, 84 L.Ed. 1311; Arthur v. Kraft-Phenix Cheese Corp., D.C., 26 F.Supp. 824; Abouaf v. J. D. & A. B. Spreckels Co., D.C., 26 F.Supp. 830.

The Court is also of the opinion that the second count, which is brought under 15 U.S.C.A. § 13(a), must be dismissed. The plaintiff has apparently alleged both a sale and a gift of the guide which defendant National Automobile Dealers Used Car Guide Company publishes. If there was a gift, the count should be dismissed, because the statute requires a discrimination in price between different purchasers; and it is obvious that in such a case there would be no price and no purchasers. On the other hand, if a sale is claimed, the count should be dismissed because no price is set up, to either members or non-members, and the facts alleged afford no basis for inferring that the price paid by one in the form of dues is lower or higher than the price paid by the other in the form of the subscription price. The alleged discrimination apparently consists of differences between the defendants' methods of billing National Automobile Dealers Association members and non-members.

The statute involved here is applicable only "where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who...