Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979

United States Court of Appeals for the Ninth Circuit · 1979-01-10

15usc1: author: Fable · not independently reviewed

Original case on neochart.com

Case and law context

15 U.S.C. § 1

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; claim:

Uncertainty

None recorded

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.

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.

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.

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.

Source text has an OCR artifact at the end of the held sentence ("implementation.I"); quoted as-is.

Later-superseded context: decided before Copperweld (1984), which resolved the parent/wholly-owned-subsidiary question the court here reserved; no way to mark doctrine as later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.

B · Case × element grid

Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.

Elements 1–6 of 11

15 U.S.C. § 1
CaseConcerted action ("contract, combination ... or conspiracy") between separate economic decisionmakersUnreasonable restraint of trade (Standard Oil Co. v. United States)Restraint of trade or commerce among the several States or with foreign nationsPrivate antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat)Antitrust standing / efficient enforcer test (Associated General Contractors; Illinois Brick)Parker v. Brown state-action immunity (Midcal two-prong test: clearly articulated state policy + active state supervision)
Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 (15usc1: author: Fable · not independently reviewed)
✗ not · lawNot counted: applied/alternative
○ not reached · basis not recordedNot counted: applied/merits
○ not reached · basis not recordedNot counted: applied/merits
○ not reached · basis not recordedNot counted: applied/merits
· not addressed· not addressed

Elements 7–11 of 11

15 U.S.C. § 1
CaseStatute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282)Law-of-the-case doctrine in consolidated/MDL antitrust proceedingsCriminal mens rea: knowing participation in the conspiracy or intent to restrain tradeAncillary restraints doctrine (restraint subordinate and collateral to a legitimate productive integration)Horizontal cartel / hub-and-spoke conspiracy operating through vertical or dual-distribution arrangements
Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 (15usc1: author: Fable · not independently reviewed)· not addressed· not addressed· not addressed· not addressed· not addressed

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopePatternExact source quotations
Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 — not · law (15usc1: author: Fable · not independently reviewed)Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakersnot
Excluded from merits counts
applied / alternative

basis: law; party: Lind and Olson; neither named as a defendant; theory: even if two individual minds had met; subject: party=Lind and Olson; neither named as a defendant; theory=even if two individual minds had met

"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.
officers-acting-for-the-same-corporations
The “two or more minds” that meet in conspiracy must be minds representing the respective business interests of two or more corporations.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [16118:16255] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Had the two individuals conspired, both would have been acting on behalf of the same corporations.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [16572:16670] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 — not · law (15usc1: author: Fable · not independently reviewed)Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakersnot
Counted merits instance
applied / merits

basis: law; theory: "constructive plurality": the sole owner embodies six corporations; subject: theory="constructive plurality": the sole owner embodies six corporations

separate-incorporation-alone
and that accounting convenience and tax benefits were the original reasons for doing business through separate corporations.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [4662:4786] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [12624:12802] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

However, that position is conceptually indistinguishable from the position that mere separate incorporation is alone determinative of the question of in-tra-enterprise conspiracy.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [15379:15558] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 — not · law (15usc1: author: Fable · not independently reviewed)Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakersnot
Counted merits instance
applied / merits

basis: law; party: Lind (sole owner) and Olson (general manager); neither named as a defendant; theory: owner and his general manager as the co-conspirators; subject: party=Lind (sole owner) and Olson (general manager); neither named as a defendant; theory=owner and his general manager as the co-conspirators

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.
agent-implementing-principals-decision
that it was Mr. Olson who advised plaintiffs that Wholesale would not make further deliveries of gasoline in 1973;
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [6303:6417] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

it is fundamental that an agent cannot conspire with his principal.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [14913:14980] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Mr. Olson’s subsequent implementation of this decision does not make him a participant in a conspiracy.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [14720:14823] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 — not · no-evidence (15usc1: author: Fable · not independently reviewed)Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakersnot
Counted merits instance
applied / merits

basis: no-evidence; party: Fearless Farris Wholesale and the five Retail Companies (the only defendants); theory: conspiracy in fact among the commonly owned corporations; subject: party=Fearless Farris Wholesale and the five Retail Companies (the only defendants); theory=conspiracy in fact among the commonly owned corporations

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.
commonly-owned-corporations-single-decisionmaker
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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [862:1152] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [1308:1534] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [9066:9229] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [10420:10701] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [11362:11517] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [14274:14474] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [10850:11081] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 — not reached (15usc1: author: Fable · not independently reviewed)Restraint of trade or commerce among the several States or with foreign nationsnot_reached
Excluded from merits counts
applied / merits

Unspecified routeNo source quotation recorded for this block.
Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 — not reached (15usc1: author: Fable · not independently reviewed)Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat)not_reached
Excluded from merits counts
applied / merits

Unspecified routeNo source quotation recorded for this block.
Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 — not reached (15usc1: author: Fable · not independently reviewed)Unreasonable restraint of trade (Standard Oil Co. v. United States)not_reached
Excluded from merits counts
applied / merits

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.
Unspecified routeNo source quotation recorded for this block.

Court interpretations recorded from this case

interpretation

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.

Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 (15usc1: author: Fable · not independently reviewed)

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.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [11362:11517] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Encompasses two distinct sub-inquiries: (1) capacity/plurality of actors (Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984); American Needle), and (2) existence/proof of an actual agreement rather than unilateral conduct (United States v. Colgate & Co., 250 U.S. 300 (1919)) or mere conscious parallelism (Twombly; Matsushita). The Copperweld / American Needle "single entity" argument is this element, route capacity-to-conspire, not a separate defense (it was modelled twice until taxonomy v1.2: also as `defense x-single-entity`). Mirror image of `agreement` plurality: a parent corporation and its wholly owned subsidiary (Copperweld, 467 U.S. 752 (1984)), or a corporation and its officers/employees/agents acting on its behalf (Harvey v. Fearless Farris), are a single economic actor incapable of conspiring under § 1; however, legally single joint ventures controlled by separate potential competitors acting on separate economic interests are not immune (American Needle).

interpretation

it is fundamental that an agent cannot conspire with his principal.

Harvey v. Fearless Farris Wholesale, Inc. — 589 F.2d 451 (1979) · United States Court of Appeals for the Ninth Circuit · 1979 (15usc1: author: Fable · not independently reviewed)

it is fundamental that an agent cannot conspire with his principal.
Source: docroot/ir/caselaw/f2d_589.jsonl#/f2d/589/0451-01; Unicode character offsets [14913:14980] (end exclusive); SHA-256 dcc78648ee790f3f401c028b44fe4ccb6eb64e28866b5287e4b953cef8dfebb4.

Encompasses two distinct sub-inquiries: (1) capacity/plurality of actors (Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984); American Needle), and (2) existence/proof of an actual agreement rather than unilateral conduct (United States v. Colgate & Co., 250 U.S. 300 (1919)) or mere conscious parallelism (Twombly; Matsushita). The Copperweld / American Needle "single entity" argument is this element, route capacity-to-conspire, not a separate defense (it was modelled twice until taxonomy v1.2: also as `defense x-single-entity`). Mirror image of `agreement` plurality: a parent corporation and its wholly owned subsidiary (Copperweld, 467 U.S. 752 (1984)), or a corporation and its officers/employees/agents acting on its behalf (Harvey v. Fearless Farris), are a single economic actor incapable of conspiring under § 1; however, legally single joint ventures controlled by separate potential competitors acting on separate economic interests are not immune (American Needle).