Mannington Mills, Inc. v. Congoleum Industries, Inc.

ALDISERT, Circuit Judge,

concurring.

I join the majority opinion except the extensive discussion contained in Part III (B), Maj.Op. at 1069-1073, of whether Mannington stated a valid antitrust claim. The sole issue properly presented in that section is whether the court erred in granting summary judgment on the conspiracy issue. We hold that while the district court did not err in determining that the record before it contained insufficient evidence of a conspiracy to withstand an adverse summary judgment motion, it did err in ruling on the summary judgment motion before Mannington had fair opportunity to depose Congoleum officers and employees on the possible existence of an illegal agreement between Congoleum and its licensees. We reverse only to permit reasonable discovery to go forward.

Until faced with a genuine case or controversy established by a record, I would not meet the question whether an antitrust violation in this case can be made out, notwithstanding the impressive academic commentary relied upon by the majority. To acknowledge the possibility that upon remand appellant might be able to find support for its antitrust claim is one thing. It is quite another thing, however, to discuss at great length, on the basis of an incomplete record, what the possible result in this case should be. Unlike the majority, Maj.Op. at 1069 n.14, I think our pronouncement here should be based on specific facts; until we have the facts, any comment which does more than acknowledge the possibility of antitrust violation upon proof of an illegal conspiracy between ap-pellee and its licensees is simply advisory.

Moreover, although I note that summary judgment “should be used sparingly in complex antitrust litigation,” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 , 82 S.Ct. 486, 491 , 7 L.Ed.2d 458 (1962); Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164 , 165 n.2 (3d Cir. 1979) (emphasis added), this does not mean that district judges should hesitate to grant summary judgment in appropriate antitrust cases. The Supreme Court long ago rejected the argument suggesting “that Rule 56(e) should, in effect, be read out of antitrust cases and permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations. .’’ First National Bank v. Cities Service Co., 391 U.S. 253, 289-90 , 88 S.Ct. 1575 , 20 L.Ed.2d 569 (1968). A plaintiff is never “entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.” Id. at 290 , 88 S.Ct. at 1593 .

Although there is a tendency to wrap antitrust litigation in the tinsel and glitter of esotérica, the governing legal precepts are not too sophisticated; complexities usually emerge only when an innovative plaintiff or government prosecutor contrives a factual pattern to fit a given precept. Thus, over a vigorous dissent by Judge Freedman, this court, in banc, upheld a grant of summary judgment in Tripoli Co. v. Wella Corp., 425 F.2d 932 (3d Cir.), cert. denied, 400 U.S. 831 , 91 S.Ct. 62 , 27 L.Ed.2d 62 (1970). Speaking through Judge Gibbons, we noted that “[ejven in an antitrust case a party must . . . come forward with affidavits setting forth specific facts showing that there is a genuine issue for trial.” Id. at 935; Harold Friedman, Inc. v. Kroger Co., 581 F.2d 1068, 1080 (3d Cir. 1978).