Source: cases/15usc1/f2d-589-451-harvey-v-fearless-farris.case
Case source: https://www.neochart.com/catalog/cases/f2d/volume_589/0451_01/index.html
It is fundamental that a single person or economic entity cannot combine or conspire in isolation: there must be concerted action by a plurality of actors.
For even if the defendant corporations, acting through their officers or agents, were deemed theoretically capable of conspiring, here in fact no conspiracy, no meeting of two or more minds, occurred.
Plaintiffs have failed to controvert the defendants’ showing that the decision to discontinue gasoline supplies was made by Mr. Lind alone, and that this decision was only subsequently communicated to Mr. Olson for implementation.I
it is fundamental that an agent cannot conspire with his principal.
Mr. Olson’s subsequent implementation of this decision does not make him a participant in a conspiracy.
The “two or more minds” that meet in conspiracy must be minds representing the respective business interests of two or more corporations.
Had the two individuals conspired, both would have been acting on behalf of the same corporations.
this court has in two recent cases taken the position that the mere formality of separate incorporation is not, without more, sufficient to provide the capability for conspiracy.
However, that position is conceptually indistinguishable from the position that mere separate incorporation is alone determinative of the question of in-tra-enterprise conspiracy.
casedsl 1
case /f2d/589/0451-01
name Harvey v. Fearless Farris Wholesale, Inc.
cite 589 F.2d 451 (1979)
court United States Court of Appeals for the Ninth Circuit
date 1979-01-10
url catalog/cases/f2d/volume_589/0451_01/index.html
source ir/caselaw/f2d_589.jsonl sha1=d8b801764d07324036cb778c5417f829a7658db9 chars=43581
law 15usc1
role applied
posture civil; cut-off retail gasoline customers v. wholesaler and five affiliated retail corporations all owned by one man; summary judgment for defendants on Sherman Act count; plaintiffs appeal
result claimant-lost
element agreement : not-satisfied [no-evidence]
variant capacity-to-conspire/commonly-owned-corporations-single-decisionmaker
party Fearless Farris Wholesale and the five Retail Companies (the only defendants)
theory conspiracy in fact among the commonly owned corporations
fact @862..1152 [cuts-against] | Defendant-appellee Fearless Farris Wholesale, Inc. (“Wholesale”) was a wholesaler of petroleum products and is wholly owned by Farris C. Lind. The other five named corporate defendants-appellees were retail gasoline service station companies (“Retail Companies”), also wholly owned by Lind.
fact @1308..1534 [supports] | Beginning in January 1973, Wholesale reduced deliveries to U-Serve; later in that year Wholesale completely cut off U-Serve and six other retail customers, which included J. C. Penney Co., the Seven-Eleven chain, and Circle K.
fact @9066..9229 [cuts-against] | Here the defendants have presented probative evidence that only a single person, Mr. Lind, made the decision to refuse to deal with certain customers of Wholesale.
fact @10420..10701 [cuts-against] | the most that can be plausibly inferred from the evidence presented is that Mr. Olson, in his capacity as general manager, carried out on a day-to-day basis the policy decisions of Farris C. Lind, the man who was sole owner and chief executive officer of Fearless Farris Wholesale.
rule @11362..11517 | It is fundamental that a single person or economic entity cannot combine or conspire in isolation: there must be concerted action by a plurality of actors.
held @14274..14474 | For even if the defendant corporations, acting through their officers or agents, were deemed theoretically capable of conspiring, here in fact no conspiracy, no meeting of two or more minds, occurred.
held @10850..11081 | Plaintiffs have failed to controvert the defendants’ showing that the decision to discontinue gasoline supplies was made by Mr. Lind alone, and that this decision was only subsequently communicated to Mr. Olson for implementation.I
gloss Decided on the facts (one mind decided), not on legal incapacity: the court expressly leaves open whether corporations wholly owned by one person can ever conspire. Pre-Copperweld treatment of intra-enterprise conspiracy.
element agreement : not-satisfied [law]
variant capacity-to-conspire/agent-implementing-principals-decision
party Lind (sole owner) and Olson (general manager); neither named as a defendant
theory owner and his general manager as the co-conspirators
fact @6303..6417 [supports] | that it was Mr. Olson who advised plaintiffs that Wholesale would not make further deliveries of gasoline in 1973;
rule @14913..14980 | it is fundamental that an agent cannot conspire with his principal.
held @14720..14823 | Mr. Olson’s subsequent implementation of this decision does not make him a participant in a conspiracy.
gloss An agent who merely implements his principal's already-made decision does not conspire with him. Kept [law]: the rule is applied to the undisputed fact (established in the first block for want of contrary evidence) that Lind alone decided.
element agreement : not-satisfied [law]
scope alternative
party Lind and Olson; neither named as a defendant
theory even if two individual minds had met
variant capacity-to-conspire/officers-acting-for-the-same-corporations
rule @16118..16255 | The “two or more minds” that meet in conspiracy must be minds representing the respective business interests of two or more corporations.
held @16572..16670 | Had the two individuals conspired, both would have been acting on behalf of the same corporations.
gloss "Moreover, even if plaintiffs could show ... a meeting of two or more individual minds": officers/agents of the same enterprise acting for it are not a plurality; the complaint alleged only that the corporations conspired.
element agreement : not-satisfied [law]
variant capacity-to-conspire/separate-incorporation-alone
theory "constructive plurality": the sole owner embodies six corporations
fact @4662..4786 [cuts-against] | and that accounting convenience and tax benefits were the original reasons for doing business through separate corporations.
rule @12624..12802 | this court has in two recent cases taken the position that the mere formality of separate incorporation is not, without more, sufficient to provide the capability for conspiracy.
held @15379..15558 | However, that position is conceptually indistinguishable from the position that mere separate incorporation is alone determinative of the question of in-tra-enterprise conspiracy.
element restraint : not-reached
gloss Court notes plaintiffs would ultimately have to prove an unreasonable restraint (refusal to supply during the 1973 gasoline shortage) but disposes of the claim at the conspiracy threshold.
element commerce : not-reached
element injury : not-reached
misfit Two layers on one element: capacity to conspire (question of law, expressly left open for commonly owned corporations) versus conspiracy in fact (decided). Without sub-ids (agreement.plurality vs agreement.meeting-of-minds) the blocks cannot show that the court ducked the first and decided the second; `theory` text is the only carrier.
misfit Burden-shifting rule for summary judgment in conspiracy cases (defendant's probative alternative explanation shifts the burden to plaintiff for "specific factual support") is the operative test but is quoted by the court from circuit precedent and was left out under the v0 no-quoted-text guidance; v1 would take it as `rule ... [quoted]`, but this migration adds no quote lines.
misfit The decisive "facts" are affidavit evidence and the absence of contrary evidence; several are stated by the court as summaries of undisputed facts inside one long semicolon-separated sentence, forcing clause-level quotes.
misfit Opinion also decides a state-law UCC § 2-615 allocation claim (Count II, roughly a third of the text); not expressible in a per-law file and irrelevant to § 1. A third count (tortious interference) was abandoned.
misfit Source text has an OCR artifact at the end of the held sentence ("implementation.I"); quoted as-is.
misfit Later-superseded context: decided before Copperweld (1984), which resolved the parent/wholly-owned-subsidiary question the court here reserved; no way to mark doctrine as later settled.