Harvey v. Fearless Farris Wholesale, Inc.
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)
Facts
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
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.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
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.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
and that accounting convenience and tax benefits were the original reasons for doing business through separate corporations.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
that it was Mr. Olson who advised plaintiffs that Wholesale would not make further deliveries of gasoline in 1973;
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
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.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
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.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
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
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
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.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
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.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not no-evidence
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.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
Mr. Olson’s subsequent implementation of this decision does not make him a participant in a conspiracy.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
it is fundamental that an agent cannot conspire with his principal.
- 1 Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers not law
However, that position is conceptually indistinguishable from the position that mere separate incorporation is alone determinative of the question of in-tra-enterprise conspiracy.