Ford Motor Co. v. Webster's Auto Sales, Inc.

361 F.2d 874 (1966) United States Court of Appeals for the First Circuit 1966-06-13

civil treble-damages suit by excluded used-car dealer against manufacturer; jury verdicts for plaintiff (liability, then retrial on damages); defendant appeals denial of directed verdict and JNOV (result: claimant-won)

Facts

  1. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    He asked what defendant could do about seeing to it that no more factory Fords found their way to plaintiff’s Springfield lot.
  2. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    Mr. Boutelle acknowledged that the situation was not good for Automobile Sales and directed the officer in charge of distribution of factory Fords, Mr. Saunders, to “correct the situation.”
  3. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    We ask that a dealer not bid on these units for the purpose of reselling them to a wholesaler.
  4. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    Following the first mailing of this letter on September 22, 1960, Mr. Daniel Kossick discussed the letter with Mr. Saunders at the District Sales Office and stated that he was “in agreement” with its terms.
  5. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    the Court cautioned that when a manufacturer goes beyond a simple refusal to deal in attempting to effect compliance with announced policies, the necessary element of agreement may be found.
  6. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    As long as Colgate has any life in it, however, a simple announcement of policy followed by customer acquiescence based solely on the individual self-interest of the customer in continued dealings with the manufacturer is not an agreement within the reach of the Sherman Act.
  7. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    The essential fact is that defendant’s action in imposing the restrictions was not unilateral but was instigated by one of its dealers and cannot, therefore, be said to fall within the rule of Colgate.
  8. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    When defendant, at the instigation of one'of its dealers, sought to impose resale restrictions on all of its dealers, it entered the “announcement plus” area which, coupled with evidence in this record of dealer compliance, constitutes a wider agreement.
  9. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    The record further shows the return of bids by Ford dealers on the very letters which requested the resale restrictions, and in some cases actual discussions with dealers concerning the terms of the letter, though there is no evidence that the restrictions themselves were discussed specifically.
  10. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    Following defendant’s letter, which was repeated in three later mailings, several Ford dealers from whom plaintiff sought to obtain factory Fords either refused to sell to him or responded equivocally and evasively to his requests to buy.
  11. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    We cannot say on this record that a finding that these dealers acted pursuant to an agreement with defendant was clearly erroneous.
  12. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
    Clearly, there is no evidence here of a direct horizontal agreement among dealers.
  13. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
    Plaintiff, however, argues that a tacit horizontal agreement among dealers is implied from the vertical relationships existing between defendant and dealers individually.
  14. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
    At this stage we would be slow to infer a horizontal conspiracy from evidence of parallelism in this non-price-fixing context.
  15. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
    “Conscious parallelism” in business behavior has not yet been held to be per se conspiratorial conduct.
  16. 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers satisfied proved
    Plaintiff testified that when he asked Dow when the next factory Fords were to be sold Dow replied, “Perley, I am sorry I cannot sell you those cars any more. We received a letter with the bid which forbids us from selling them.”
  17. 7 Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) satisfied proved
    In the calendar years 1959 and 1960 slightly over half of plaintiff’s gross profit was derived from resale of factory Fords obtained from Ford dealers.
  18. 7 Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) satisfied proved
    Several months after the first mailing of defendant’s letter, plaintiff’s purchases of factory Fords declined sharply.
  19. 7 Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) satisfied proved
    That Haar purchased 54 factory Fords in 1960 and sold 50 of them to plaintiff, but purchased only 14 in 1961 (and sold 5 to plaintiff), and 10 in 1962 (and sold 6 to plaintiff), was the direct result, plaintiff concludes, of that participation.
  20. 7 Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) satisfied proved
    a plaintiff in an antitrust suit is not barred merely because factors other than defendant’s unlawful conduct may have contributed to its injury.
  21. 7 Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) satisfied proved
    On the basis of this record the jury was justified in concluding that with reasonable probability there was a substantial causal connection between defendant’s unlawful acts and the decline in plaintiff’s purchases of factory Fords.