United States Court of Appeals for the First Circuit · 1966-06-13
Case and law context
Role: applied; posture: 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; claim:
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Variant | Exact source quotations |
|---|---|---|---|---|
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers | satisfied Counted merits instance applied / merits basis: proved; party: Ford and Automobile Sales Company (the complaining Springfield dealer); subject: party=Ford and Automobile Sales Company (the complaining Springfield dealer) Complaint by a competing dealer -> manufacturer acts on it -> dealer says he is "in agreement": the instigation takes the policy outside Colgate. | vertical-agreement/resale-restriction-instigated-by-complaining-dealer | He asked what defendant could do about seeing to it that no more factory Fords found their way to plaintiff’s Springfield lot.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [2281:2407] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.”Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [2408:2597] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.We ask that a dealer not bid on these units for the purpose of reselling them to a wholesaler.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [4017:4111] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [4319:4525] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [11025:11300] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [12790:12991] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers | satisfied Counted merits instance applied / merits basis: proved; party: Ford and each of its other complying dealers; theory: series of vertical agreements ("announcement plus" dealer compliance); subject: party=Ford and each of its other complying dealers; theory=series of vertical agreements ("announcement plus" dealer compliance) Defendant's conscious-parallelism / independent-self-interest explanation was a jury question; the principal supplier (Harr/Haar Motor) at first refused to comply and was found to have joined later. | vertical-agreement/announcement-plus-dealer-compliance | 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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [13603:13899] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [13900:14138] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.”Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [28061:28290] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [10757:10947] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [13216:13470] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.We cannot say on this record that a finding that these dealers acted pursuant to an agreement with defendant was clearly erroneous.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [14750:14881] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers | not Counted merits instance applied / merits basis: no-evidence; party: the Ford dealers among themselves; theory: tacit horizontal agreement implied from the vertical agreements; subject: party=the Ford dealers among themselves; theory=tacit horizontal agreement implied from the vertical agreements Court refuses to turn a hub of vertical agreements into a rimmed horizontal conspiracy outside the price-fixing context: no direct evidence, and the inference from parallelism is not permitted. An appellate ruling that the record cannot support the theory, not a jury finding; the verdict stands on the vertical agreements. | parallel-conduct/dealer-compliance-with-vertical-restriction | Plaintiff, however, argues that a tacit horizontal agreement among dealers is implied from the vertical relationships existing between defendant and dealers individually.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [15983:16153] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.“Conscious parallelism” in business behavior has not yet been held to be per se conspiratorial conduct.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [18778:18881] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.Clearly, there is no evidence here of a direct horizontal agreement among dealers.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [15900:15982] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.At this stage we would be slow to infer a horizontal conspiracy from evidence of parallelism in this non-price-fixing context.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [18651:18777] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Restraint of trade or commerce among the several States or with foreign nations | not_reached Excluded from merits counts applied / merits | Unspecified variant | No source quotation recorded for this block. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) | satisfied Counted merits instance applied / merits basis: proved Defendant's alternative causes (fewer cars offered, new bidders, changed bidding procedure) went to the jury; substantial-contribution causation suffices. | fact-of-damage/lost-supply-from-principal-supplier-joining-boycott | Several months after the first mailing of defendant’s letter, plaintiff’s purchases of factory Fords declined sharply.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [5404:5522] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [30037:30281] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [938:1089] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.a plaintiff in an antitrust suit is not barred merely because factors other than defendant’s unlawful conduct may have contributed to its injury.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [32593:32738] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.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.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [33085:33317] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Quantum / reasonable estimate of antitrust damages once fact of damage is established | satisfied Counted merits instance applied / merits basis: proved | amount-of-damages/lost-profits-estimated-from-past-earnings | The evidence showed net profits in 1959 and 1960 of approximately $129 and $6,421 respectively, a net loss of $4,817 in 1961, and a net profit of $1,385 in 1962.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [34753:34914] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.Once the fact of damage has been established, reasonable evidence from which the trier of fact might rationally infer the amount of that damage is all that is required.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [33417:33585] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.The jury’s finding of actual damage in the amount of $4000 has a rational basis in this record.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [37087:37182] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Per se illegality for naked restraints manifestly anticompetitive and lacking redeeming virtue | satisfied Counted merits instance applied / merits basis: law; party: Ford and its collaborating dealers (the vertical agreements found above); subject: party=Ford and its collaborating dealers (the vertical agreements found above) Extends United States v. General Motors (1966) boycott rule to a purely vertical series of agreements; protecting the franchised distribution system is no justification. Plaintiff offered no rule-of-reason evidence, so per se classification was outcome-determinative. | per-se/vertical-agreements-to-exclude-class-of-resellers | It has been brought to our attention that large quantities of units have been resold to used car dealers in towns other than that of the purchasing dealer. In the future, this situation cannot be tolerated.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [4112:4318] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.The agreements here, however, go beyond the attempt to keep dealers geographically in their place and have as their objective the total elimination of one class of Ford competitor.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [21624:21804] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.To permit a used car dealer to sell these nearly new Fords, defendant contends, would amount practically to the operation of an unfranchised Ford dealership in competition with franchised dealers and, thus, disrupt its established system of distribution.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [22169:22423] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.we find no controlling significance in the fact that such a boycott takes its shape and strength from a series of vertical agreements rather than from a single vertical-horizontal agreement.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [23978:24168] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.We hold the agreements between defendant and its collaborating dealers to be per se violations of the Sherman Act.Source: docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [24552:24666] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Presumptive Rule of Reason burden-shifting analysis (antitrust market + anticompetitive effect vs procompetitive justification) | not_reached Excluded from merits counts applied / merits | Unspecified variant | No source quotation recorded for this block. |
| /f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966 | Antitrust standing / efficient enforcer test (Associated General Contractors; Illinois Brick) | not_reached Excluded from merits counts applied / merits | Unspecified variant | No source quotation recorded for this block. |
Court interpretations recorded from this case
interpretation
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.
/f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966
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.Source:
docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [11025:11300] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.This is a conditional evidentiary inference used when the alleged agreement is proved circumstantially; it is not a universal additional element where direct agreement evidence is offered. Under Monsanto (465 U.S. at 764) and Matsushita (475 U.S. at 588), circumstantial evidence must tend to exclude independent action.
interpretation
a plaintiff in an antitrust suit is not barred merely because factors other than defendant’s unlawful conduct may have contributed to its injury.
/f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966
a plaintiff in an antitrust suit is not barred merely because factors other than defendant’s unlawful conduct may have contributed to its injury.Source:
docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [32593:32738] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.Under Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. (429 U.S. 477, 489 (1977)), plaintiff must prove "antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful" — harm to competition, not merely harm to an individual competitor.
interpretation
Once the fact of damage has been established, reasonable evidence from which the trier of fact might rationally infer the amount of that damage is all that is required.
/f2d/361/0874-01 — United States Court of Appeals for the First Circuit · 1966
Once the fact of damage has been established, reasonable evidence from which the trier of fact might rationally infer the amount of that damage is all that is required.Source:
docroot/ir/caselaw/f2d_361.jsonl#/f2d/361/0874-01; Unicode character offsets [33417:33585] (end exclusive); SHA-256 3e8e08a932e895de43a7032f3e31321a87a2b612988a02f8668089d2496e25d3.Courts distinguish between the strict burden of proving the *fact* of antitrust injury/damage and the more relaxed standard for estimating the *amount* of damages (Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931); Bigelow v. RKO Radio Pictures, 327 U.S. 251 (1946)).