Poller v. Columbia Broadcasting System, Inc, No. 45

CourtUnited States Supreme Court
Writing for the CourtCLARK
Citation7 L.Ed.2d 458,82 S.Ct. 486,368 U.S. 464
Docket NumberNo. 45
Decision Date19 February 1962
PartiesLou POLLER, Petitioner, v. COLUMBIA BROADCASTING SYSTEM, INC., et al

368 U.S. 464
82 S.Ct. 486
7 L.Ed.2d 458
Lou POLLER, Petitioner,

v.

COLUMBIA BROADCASTING SYSTEM, INC., et al.

No. 45.
Argued Nov. 13 and 14, 1961.
Decided Feb. 19, 1962.

Page 465

Morris Wolf, Philadelphia, Pa., for petitioner.

Samuel I. Rosenman, New York City, for respondents.

Mr. Justice CLARK delivered the opinion of the Court.

The question involved here is whether this treble damage action based on alleged violations of the restraint of trade and monopoly sections of the Sherman Law1 was rightly terminated by a summary judgment of dismissal. The petitioner, Lou Poller, is the assignee of the Midwest Broadcasting Company, a dissolved corporation. In 1954 Midwest was the owner and operator of WCAN, an ultra high frequency (UHF)2 broadcasting station

Page 466

located in Milwaukee. The station was affiliated with the Columbia Broadcasting System network and was of the alleged value of $2,000,000. Poller charged that the respondents in 1954 entered into an unlawful conspiracy to eliminate WCAN from the broadcast field in Milwaukee.3 It was a part of the conspiracy that respondent Holt was to secure in his name an option to purchase WOKY, a competing but inferior UHF broadcaster in Milwaukee. When and if the Federal Communications Commission amended its multiple ownership rules, then under consideration, so as to permit CBS to own UHF stations in addition to its VHF ones, Holt was to assign his option to CBS if it so elected. In that event, it was agreed CBS would cancel its affiliation agreement with WCAN pursuant to its option in that contract and in due course consummate its purchase of WOKY. This would place WCAN in the precarious position of competing with the two major national networks with stations in Milwaukee. Being unable to survive such competition, its only course would be to liquidate at distressed prices its valuable equipment and facilities only recently acquired. CBS might then acquire them at its own price for use in its new operation which was necessary because of the inferior quality of those of WOKY. CBS would then have Midwest's superior facilities and equipment which with the WOKY license would enable it to start broadcasting at a minimum expense and the least possible delay. Poller further claimed that the overall purpose of CBS was to destroy UHF broadcasting, which had only been permitted to enter the field in 1952, in order to protect its vast interest in VHF stations throughout the United States. Finally, he alleged the conspiracy was so successful that CBS not only acquired WCAN at a loss of

Page 467

$1,450,000 to Midwest but that the latter was obliged to buy the facilities and equipment of WOKY at exorbitant prices and to agree to continue broadcasting from the latter's premises—which was done 'in order to pretend that there was no restraint of trade or elimination of competition * * *.' However, WCAN continued in business only 10 days after CBS started its broadcasts on February 17, 1955. CBS discontinued UHF broadcasting in 1959 when it became affiliated with a Milwaukee VHF station.

At the hearing on the motion for summary judgment the trial judge held that the injury suffered was damnum absque injuria, stating that CBS had a right to purchase WOKY, subject to Federal Communications Commission approval, and to cancel its affiliation contract with WCAN. 174 F.Supp 802. The Court of Appeals affirmed with Judge Washington dissenting, 109 U.S.App.D.C. 170, 284 F.2d 599, and we granted certiorari, 365 U.S. 840, 81 S.Ct. 804, 5 L.Ed.2d 807. We now conclude that there was a genuine issue as to material facts and that summary judgment was not therefore in order.

I.

Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case 'show that (except as to the amount of diamages) there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Rule 56(c), Fed.Rules Civ.Proc., 28 U.S.C.A. This rule authorizes summary judgment 'only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, * * * (and where) no genuine issue remains for trial * * * (for) the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.' Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944). We now examine the contentions of the parties to determine whether under the rule summary judgment was proper.

Page 468

II.

The respondents in their motion for summary judgment depended upon the affidavits of four persons. The first is Richard Salant, Vice President of CBS ; another, Jay Eliasberg, Director of its Research Division; a third, Lee Bartell, who made the sale of WOKY to CBS at a $50,000 profit; finally, Thad Holt, a codefendant who received $10,000 from the transaction. These were supplemented by material taken from petitioner's depositions of Salant and CBS President Stanton. It is readily apparent that each of these persons was an interested party.

Respondents appear to place most reliance on the Salant testimony, and we shall, therefore, take it up in some detail. It projects three defenses, the first being that there was no conspiracy for the following reasons: CBS—TV was not a separate entity but only a division of CBS, and therefore there could be no conspiracy between the two; Holt, the cover man in securing the option and purchase of WOKY, 'had been given the particular job' by CBS and therefore was not a conspirator; and Bartell never shared in any illegal purpose that would bring him into the conspiracy. Secondly, in any event, the only issue in the case is the legality of the cancellation of the affiliation agreement by CBS which was merely the legal exercise by CBS of 'the normal right of a producer to select the outlet for its product.' And, finally, the monopoly charges are entirely 'frivolous.' The trial judge accepted the second defense.

III.

It may be that CBS by independent action could have exercised its granted right to cancel WCAN's affiliation upon six months' notice and independently purchased its own outlet in Milwaukee. However, if such a cancellation and purchase were part and parcel of unlaw-

Page 469

ful conduct or agreement with others or were conceived in a purpose to unreasonably restrain trade, control a market, or monopolize, then such conduct might well run afoul of the Sherman Law. See Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 624—625, 73 S.Ct. 872, 889, 97 L.Ed. 1277 (1953); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 375, 47 S.Ct. 400, 404, 71 L.Ed. 684 (1927). Poller alleges and the affidavits, depositions, and exhibits indicate much more than the free exercise by CBS of the granted right of cancellation. A conspiracy is alleged to restrain trade in the Milwaukee television market; to eliminate WCAN from that market; to secure its facilities at depressed prices; and to occupy the UHF band in that market exclusively. The right of cancellation was merely one of the means used to effectuate this conspiracy. Moreover, 'in its wider sense' Poller claims that a part of their conspiracy was 'to wipe out the most outstanding UHF operator in the county (WCAN) and by wiping him out they destroyed the UHF industry, which was a threat to them, despite their protestations, because of the enormous economic investment they had in VHF.'

It is argued that CBS cannot conspire with itself. However, this begs the question for the allegation is that independent parties, i.e., Holt and Bartell, conspired with CBS and its officers.4 While respondents' affidavits assert that Holt acted in good faith as a special agent or employee for CBS and that Bartell was completely free of any evil motives directed toward WCAN, the trial judge indicated a belief that Holt was 'an independent actor' and would have submitted the question of his status to the jury had he not disposed of the case on other grounds. Furthermore, Poller submitted a deposition of Holt, an exhibit to which showed CBS had furnished Holt

Page 470

a complete analysis in writing of the Milwaukee market and the ownership and affiliation of the TV stations there, including WCAN. The deposition revealed that Holt had knowledge that the obvious purpose and necessary effect of the plan would be to eliminate independent UHF in Milwaukee and that he had a personal stake in its success. This included, inter alia, Holt's statements that he met with top CBS officials in New York for a briefing on his role, that he was a close friend of these officials, and that he would have retained the option for himself if unused by CBS. The latter admissions, when coupled with the uncertainty at that time of a Federal Communications Commission rule permitting CBS to purchase WCAN, suggest that the alternative plan was to let Holt exercise the option and take the affiliation if CBS could not. Likewise, Bartell's affidavit, barely a page and a half in the record, does not negative the allegations of conspiracy. Unquestionably, after knowing that Holt had in truth been acting for CBS and that the sale would prove disastrous to WCAN, he did file certain papers with the Federal Communications Commission requesting approval of the sale of WOKY. Poller had no opportunity to cross-examine him although he was a key witness to respondents' theory of the case. And it is noted that even though the transfer was uncontested before the Federal Communications Commission it received approval by a vote of only three Commissioners with the remaining two strongly dissenting.5 It might be that on a trial Poller could substantiate his claims of conspiracy even against Bartell, although this would not be necessary to his case.

Respondents' answer to the charge that one of the purposes of the alleged conspiracy was to exert a restraining...

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2545 practice notes
  • Napreljac v. John Q. Hammons Hotels, Inc., No. 4:05-cv-00160-JEG.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 8, 2006
    ...is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 Our circuit ......
  • Easley v. City of Riverside, No. 16-55941
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 18, 2018
    ...is not "to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys. , Inc. , 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp. , 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944) )......
  • Coors Brewing Co. v. Mendez–torres, Civil No. 06–2150(DRD).
    • United States
    • U.S. District Court — District of Puerto Rico
    • March 30, 2011
    ...judgment is inappropriate where there are issues of motive and intent as related to material facts. See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (summary judgment is to be issued “sparingly” in litigation “where motive and intent play leading rol......
  • Conan Properties, Inc. v. Mattel, Inc., No. 84 Civ. 5799 (RPP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 19, 1989
    ...F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985)); see Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962) ("It is only when the witnesses are present and subject to cross-examination that their credib......
  • Request a trial to view additional results
2539 cases
  • Napreljac v. John Q. Hammons Hotels, Inc., No. 4:05-cv-00160-JEG.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 8, 2006
    ...is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 Our circuit ......
  • Easley v. City of Riverside, No. 16-55941
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 18, 2018
    ...is not "to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys. , Inc. , 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp. , 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944) )......
  • Coors Brewing Co. v. Mendez–torres, Civil No. 06–2150(DRD).
    • United States
    • U.S. District Court — District of Puerto Rico
    • March 30, 2011
    ...judgment is inappropriate where there are issues of motive and intent as related to material facts. See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (summary judgment is to be issued “sparingly” in litigation “where motive and intent play leading rol......
  • Conan Properties, Inc. v. Mattel, Inc., No. 84 Civ. 5799 (RPP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 19, 1989
    ...F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985)); see Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962) ("It is only when the witnesses are present and subject to cross-examination that their credib......
  • Request a trial to view additional results
5 books & journal articles
  • The Bathtub Overflows: Conspiracy with Advertising Agents. Management Consultants, Commission Brokers and Other “Outside” Agencies under Section 1 of the Sherman Act
    • United States
    • Antitrust Bulletin Nbr. 22-4, December 1977
    • December 1, 1977
    ...Inc., 417F.2d203, 205-6 (5thCir. 1969); Joseph E. Seagram&- Sons, Inc. v. Hawaiian Oke&-Liquors, Ltd., supra. See Paller v. CBS, Inc., 368 U.S. 464, 469n.4 (1962).5Perma-Life Mufflers, Inc. v. International Parts Corp., supraat141.6Compare Joseph E. Seagram&-Sons, Inc. v. Hawaiian Oke&-Liqu......
  • Deterrence and Detection of Cartels: Using all the Tools and Sanctions
    • United States
    • Antitrust Bulletin Nbr. 56-2, June 2011
    • June 1, 2011
    ...inoriginal) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741(1975)).75 See Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962) (“Webelieve that summary procedures should be used sparingly in complexantitrust litigation where motive and intent play leading roles, ......
  • Antitrust and Liberalism
    • United States
    • Antitrust Bulletin Nbr. 40-1, March 1995
    • March 1, 1995
    ...payments in part becauseofthe fiscal and administrative burdens on the government).143 See Poller v. Columbia Broadcasting System, 368 U.S. 464, 473(1962) (cautioning the lower courts against granting summary judgmentfor defendants).144 See Calkins, The October 1992 Supreme CourtandAntitrus......
  • A “New” Rule of Reason from Justice Brandeis’ “Concentric Circles” and Other Changes in Law
    • United States
    • Antitrust Bulletin Nbr. 44-4, December 1999
    • December 1, 1999
    ...Corp. v. Catrett, 477 U.S. 317 (1986). See also Monsanto Co. v.Spray-Rite Service Corp., 465 U.S. 752 (1984).53 Poller v. CBS, 368 U.S. 464 "New"ruleofreason :897ment or mutual understanding [describe the price-fixing conspiracyalleged by plaintiffl.>These model jury instructions show why d......
  • Request a trial to view additional results

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