Elizabeth Arden Sales Corporation v. Gus Blass Co.

RIDDICK, Circuit Judge

(dissenting).

I do not agree with the majority opinion. I am unable to find in the record either a clear claim or any proof of damage to the business or property of Blass. The Act under which the suit is brought authorizes only the recovery of damage to the business or property of the victim of a prohibited discrimination; and, as the majority opinion shows, Congress expressly *997 refused to sanction the rule for the measure of damages adopted by the court in this case, even where there is proof of actual damage to the business or property of the complainant, of which, in this case, there is none.

As I understand the opinion, the theory underlying it is that the Robinson-Patman Act not only permits, but requires the seller in interstate commerce, who makes payments to retailers of the character involved in this case, to make them upon proportionately equal terms; and that, where the victim of a prohibited discrimination is unable to prove any damage to his business or property as a proximate result of a discrimination against him, he should, nevertheless, be permitted to recover, under the guise of damages, the difference between the amount paid to him and such amount as would have made his payment in terms proportionately equal to that made to his competitor. Thus the court substitutes for the simple action for damages authorized by the Act a proceeding to restore equality of terms among competitors where it had been denied and to recover a penalty, since three times the sum necessary to restore equality is recovered.

There are, it seems to me, several insuperable objections to this interpretation of the statute. One is that it requires the court to read into the Act provisions which Congress expressly refused to include in it. Another is that damages which can not be established with reasonable certainty are not recoverable. And still another is that, if the action for damages authorized by the Act was intended as a means of establishing proportionate equality where discrimination had existed among competitors in the past, the provision for threefold recovery not only prevents that result, but makes of the Act an instrument for creating the discrimination which Congress sought to prevent.

Obviously, under the interpretation of the Act which is made in the majority opinion, the victim of an illegal discrimination may not be permitted to recover more than a sum sufficient to place him on terms of proportionate equality with his competitor. The result of such a recovery would be to substitute one violation of the Act for another. And such is the result of the present decision. Blass, the supposed victim of an illegal discrimination, now becomes the very definite beneficiary of it, while Cohn, the former beneficiary, is now the certain victim; and Arden reimburses Blass for damages to its business or property which it never sustained.