US Philips Corp. v. Windmere Corp.
| Decision Date | 08 June 1987 |
| Docket Number | No. 84-2508-CIV.,84-2508-CIV. |
| Citation | 680 F. Supp. 361 |
| Parties | U.S. PHILIPS CORPORATION and North American Philips Corporation, Plaintiffs, v. WINDMERE CORPORATION and Izumi Seimitsu Kogyo Kabushika Kaisha, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Forrest A. Hainline, III, Timothy A. Ngau, Swidler & Berlin, Washington, D.C., for plaintiffs U.S. Philips and N.A. Philips.
D. Dennis Allegretti, Allegretti, Newitt, Witcoff & McAndrews, Ltd., Chicago, Ill., for plaintiffs U.S. Philips and N.A. Philips.
Michael J. Cappucio, Fowler, White, Burnett, et al., Miami, Fla., for third party defendant N.V. Philips and plaintiffs U.S. Philips and N.A. Philips.
William E. Willis, Gerrard R. Beeney, Sullivan & Cromwell, New York City, for third party defendant N.V. Philips.
Edward Foote, James Vogler, Winston & Strawn, Chicago, Ill., for defendants Windmere and Izumi.
Gary Jones, Hornsby & Whisenand, Miami, Fla., for defendants Windmere and Izumi.
THIS CAUSE came before the Court during the course of a jury trial upon the motions of U.S. Philips Corporation ("USP"), North American Philips Corporation ("NAPC") and N.V. Philips Gloeilampen Fabrieken ("NVP") for a Directed Verdict as Counterdefendants (USP and NAPC) and Third Party Defendant (NVP) on Counts I and II of Windmere Corporation's ("Windmere") and Izumi Seimitsu Kogyo Kabushika Kaisha's ("Izumi") Counterclaim against USP and NAPC, and third party claim against NVP. On April 17, 1986, at the close of Windmere's antitrust case, USP, NAPC and NVP moved for a directed verdict on Windmere's counterclaim. At that time, Windmere withdrew its claims under the Robinson-Patman Act (Count III), Florida State Law (Count V) and the Clayton Act (Count VII). The Court heard oral argument on the remaining claims under Sections 1 and 2 of the Sherman Act on that date. Subsequently all parties submitted supplemental memoranda addressing the remaining counts, as well as questions raised by the Court at oral argument.
In their supplemental memorandum, USP and NAPC alleged that they were entitled to a directed verdict because Windmere had failed to offer substantial evidence that Norelco sold its Model 1320 and 1615 razors below average variable cost and that any evidence it had offered was insufficient to avoid a directed verdict. NVP alleged in its supplemental memorandum that Windmere had failed to offer substantial evidence that NVP had monopolized or attempted to monopolize any relevant market or that NVP and Norelco were separate entities capable of conspiring under § 1 of the Sherman Act. In response, Windmere claimed that it did not have to show that Norelco maintained its monopoly by predatory acts in order to prove its monopolization claim, or alternatively, that if proof of predatory acts was necessary, that Windmere had produced sufficient evidence of them to withstand a directed verdict motion. Reluctantly we found that Windmere had failed to present substantial evidence sufficient to create a jury question on at least one element of its antitrust claims — the willful acquisition or maintenance of monopoly power via predatory pricing1 — and accordingly we granted USP, NAPC and NVP's motions for a directed verdict in open court on April 22, 1986. On April 22, 1986, a jury returned a verdict for Plaintiffs on their patent infringement claim and for Defendants on the unfair competition claim. We revisit the directed verdict motions now to set forth our reasons for granting them in detail.
USP is a Delaware corporation which holds intellectual property rights. NAPC is a Delaware corporation which is engaged in a diversified line of commerce. It is a publicly held corporation with stock traded on the New York Stock Exchange. One of its divisions has been selling electric razors (foil) since 1948 and rotary electric razors since 1963. The brand name for the rotaries is Norelco. NVP is related to NAPC in the following way: NVP is a Netherlands corporation wholly owned by the shareholders of N.V. Gemeenschappelijk Bezit van Aandelen Philips' Gloeilampenfabricken ("Bezit"), a Netherlands corporation. Bezit is the beneficiary of United States Philips Trust, which holds 60% of the common stock of NAPC. Answer of NVP to Amended Third Party Complaint, at 2, Para. 4.
Windmere is a Florida corporation engaged in various lines of commerce in the United States. Windmere began marketing rotary razors under the Ronson trade name in 1984. Izumi is a Japanese corporation which manufactures and sells electric razors to Windmere.
This action was commenced in October 1984 with the filing of a Complaint by Plaintiffs USP and NAPC against Windmere and Izumi for patent infringement and unfair competition. The essence of the Complaint was that Windmere's Ronson rotary razors violated Plaintiffs' patents on Norelco rotaries, and that Windmere created confusion among consumers by marketing the Ronson razor to appear as if it were nearly identical to the Norelco rotaries. While the patent infringement claim was directed against both Windmere and Izumi, the unfair competition claims were directed only at Windmere.
Izumi counterclaimed against USP and NAPC seeking declaratory judgment concerning U.S. letters Patent No. 4,227,301, which was the patent purportedly infringed by Izumi. Izumi contended that the patent issued was invalid. Windmere counterclaimed against USP and NAPC, Plaintiffs, and against NVP as a third party defendant. The only remaining counts were Counts I and II. Count I was brought under Section 2 of the Sherman Act, 15 U.S.C. § 2, and alleged an unlawful attempt by USP, NAPC and NVP to monopolize, and monopolization of the electric shaver market and the rotary shaver submarket in the United States. Count II alleged a conspiracy to restrain trade in the electric shaver market and rotary submarket between NAPC, USP, and NVP.
The standard to be applied to a directed verdict motion has been stated by the Eleventh Circuit as follows:
On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover's case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
L.A. Draper & Son, Inc. v. Wheelabrator-Frye, Inc., 735 F.2d 414, 419-20 (11th Cir. 1984), aff'd in part and rev'd in part on other grounds, 813 F.2d 332 (11th Cir.1987) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1976) (en banc)).
In order to withstand a directed verdict motion, the non-moving party must present substantial evidence sufficient to create a jury question with respect to each element of its claim. Malcolm v. Marathon Oil Co., 642 F.2d 845, 848 (5th Cir.1981), cert. denied, 454 U.S. 1125 (1981). "Unsupported, self-serving testimony is not substantial evidence sufficient to create a jury question." Comfort Trane Air Conditioning Co. v. Trane Co., 592 F.2d 1373, 1383 (5th Cir.1979) (citations omitted). "Similarly, inferences cannot stand in the face of uncontradicted and substantial evidence to the contrary." Id. (citation omitted).
USP, NAPC, and NVP acknowledged the strict standard for a directed verdict yet strongly urged that a directed verdict was appropriate because Windmere had failed to present substantial evidence sufficient to create a jury question primarily on its predatory pricing allegations.
As we have noted, Counts I and II alleged a monopoly, an attempt to monopolize and restraint of trade against USP, NAPC and NVP. Windmere alleged that NVP was the parent of USP and NAPC and that the three corporations were really a single economic unit acting in violation of Section 2 of the Sherman Act. Alternatively, Windmere alleged that NVP conspired with USP and NAPC in violation of Section 1 of the Sherman Act. While NVP moved separately for a directed verdict in its favor, many of the same arguments advanced by USP and NAPC applied to NVP as well.2
In United States v. Grinnell Corp. the Supreme Court stated that a Section 2 Sherman Act violation consists of the following elements: "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-1704, 16 L.Ed.2d 778 (1966). Moreover, to establish an attempt to monopolize, the plaintiff must show a specific intent to monopolize and a dangerous probability of achieving a monopoly in the relevant market.
As we noted in our summary judgment Order of April 8, 1986, the crucial issue in antitrust analysis often is a determination of the alleged monopolists' market power. Furthermore, the threshold fact...
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U.S. Philips Corp. v. Sears Roebuck & Co., 93-1188
... ... We affirm the rulings here certified ... BACKGROUND ... The related litigation started in 1984 in the United States District Court for the Southern District of Florida. The parties were Philips, the Windmere Corporation, and Izumi. Philips complained of patent infringement and unfair competition, and Izumi and Windmere raised defenses and counterclaims of patent misuse and antitrust violations. The Florida case was tried in 1986 as to all issues, Windmere and Izumi successfully arguing that it was ... ...
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