Swartz v. Forward Ass'n
| Decision Date | 08 October 1941 |
| Docket Number | Civil Action No. 247. |
| Parties | SWARTZ v. FORWARD ASS'N et al. |
| Court | U.S. District Court — District of Massachusetts |
Elbridge R. Anderson and Roberts B. Owen, both of Boston, Mass., for plaintiff.
George E. Roewer (Roewer & Reel), of Boston, Mass., for defendants Butkovitz and Anthony.
Jacob J. Kaplan (Nutter, McClennen & Fish), of Boston, Mass., for defendants Forward Ass'n and American Jewish Pub. Co.
This action was filed under authority of 15 U.S.C.A. § 15 for treble damages. Two of the defendants have filed a motion to dismiss for want of jurisdiction. The defendants' position is that the bill of complaint fails to disclose any violation of the antitrust laws within the meaning of the statute employed. The effect of this decision will be to dispose of the case as to all of the defendants since the question raised is a jurisdictional one. In passing upon the question raised, I am bound by the allegations of the bill of complaint, and cannot take into consideration such facts as might develop at a trial on the merits. See Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062.
In the light that is most favorable to the plaintiff, his bill alleges that he had an extensive and profitable interstate business in furs, and that the defendants conspired and combined amongst themselves to destroy his business by causing to be published false and malicious statements concerning labor conditions in the plaintiff's business, and that a boycott of his business was urged by the defendants. He then alleges that, as a result of this conspiracy and combination, he has lost a great deal of his trade, and that his interstate business has been seriously affected. He further alleges that his injuries result "by reason of said acts which are declared to be unlawful" by the Sherman Act, 15 U.S. C.A. §§ 1-7, 15 note and asks for treble damages.
The difficulty with the plaintiff's bill of complaint is that the specific acts that he relies upon to constitute a violation of the Sherman Act are not prohibited by that Act. In a recent case, decided by the Supreme Court of the United States, Apex Hosiery Company v. Leader, 310 U.S. 469, 60 S.Ct. 982, 992, 84 L.Ed. 1311, 128 A.L.R. 1044, the court reviewed many of its former decisions, and pointed out that the combinations and contracts in restraint of trade which were intended to be prohibited by the Sherman Act were combinations which were "directed to control of the...
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