Tunis Bros. v. Ford Motor Co.

JAMES HUNTER, III, Circuit Judge,

dissenting:

My disagreement with the majority opinion lies not with what the opinion recites, but with what the opinion omits. Because I believe that appellants have utterly failed to raise genuine issues of material fact to support a conspiracy in violation of section *1503 1 of the Sherman Act, I respectfully dissent.

The majority opinion states, and I agree, that: “[t]o establish the existence of concerted action as a matter of fact, the plaintiff must submit evidence from which a jury could reasonably infer that the defendants had a conscious commitment to a common scheme designed to achieve an unlawful objective____” Maj. op. typescript at 15. The majority opinion fails, however, to complete its paraphrase of this court’s opinion in Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 110-11 (3d Cir.1980), ce rt. denied, 451 U.S. 911 , 101 S.Ct. 1981 , 68 L.Ed.2d 300 (1981), and the Supreme Court’s opinion in Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984). Because this omission is critical to this case, the majority erred when it failed to complete the statement of the appellants’ burden.

In Monsanto, the Court held that an antitrust plaintiff in a refusal to deal case must establish, either by direct or circumstantial evidence, that the defendants “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” 104 S.Ct. at 1471 . As part of this burden, however, the Court stated that the antitrust plaintiff must produce evidence that “tends to exclude the possibility that the [defendants] were acting independently.” Id.; see Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911 , 101 S.Ct. 1981 , 68 L.Ed.2d 300 (1981). In this regard, “[e]videnee of an opportunity to conspire, although relevant, is not enough to sustain an antitrust plaintiff’s burden, and, without more, does not create a jury question on the issue of concerted action.” Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469 (3d Cir.1985).

By ignoring the necessity of disproving the likelihood of independent activity, the majority opinion allows appellants in this case to sidestep summary judgment on the basis of evidence, which, even if believed, would only establish that an opportunity to conspire existed. For ‘example, the majority correctly finds that the only possible section 1 conspiracy claim in this case involved alleged concerted action between Ford Motor Company and those Ford employees who also served as nominal directors of Wenner Ford. The facts recited by the majority to support this allegation of conspiracy, however, establish at the very most only that defendants were in a position to conspire. 1 Further, by not focusing on the possibility of independent action by Ford Motor Company in denying appellants their desired tractor franchise, the majority misses the critical teaching of both Monsanto and Sweeney: “A manufacturer of course generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently.” 104 S.Ct. at 1469 ; see Sweeney, 637 F.2d at 110-11 .

When the necessity that appellants must disprove the possibility of independent action is put into the case, as we submit it must, the undisputed facts are dispositive. These facts fully support Ford’s contention that it acted independently in denying appellants the tractor franchise in Kennett Square, Pennsylvania, and include: undisputed testimony that Ford, as part of a market strategy developed before Wenner Ford even existed, planned to combine its Rising Sun, Maryland and Kennett Square, Pennsylvania dealerships into one dealership in either Oxford or Cochranville, Pennsylvania (App. at 490-93, 2517-18); undisputed testimony that Ford representatives informed both the franchisee who sold to appellants and appellants themselves of this marketing strategy (App. at 491-92, 2517-18); undisputed evidence that Tunis Brothers had poor sales in recent years *1504 (App. at 503), and in fact averaged only nine tractors sold per year between 1978-80 (App. at 556); undisputed evidence that a declining market for tractors existed in the Kennett Square area (App. at 342-43, 361, 364); and, perhaps most importantly, undisputed evidence that appellants, although given an opportunity by Ford to obtain a franchise in Cochranville, never applied for the franchise (App. at 293-94, 1337).

I do not doubt that appellants are disappointed in Ford’s decision not to award them a franchise in Kennett Square. Disappointment over a unilateral decision not to deal, however, does not provide a claim for relief under the Sherman Act. I would affirm the district court’s order.

. The majority, for example, cites the following "material” facts: that Ford representatives met with appellants at Wenner Ford’s dealership; that the meeting continued over lunch at the Concordville Inn; that defendant Wenner possibly overheard the meeting participants’ conversation at lunch; and that the Ford Representatives told appellants that Ford did not want a tractor dealership in the locale that appellants desired. Maj. op., at 1492-1493.