Opposition — Exhibitors Poster Exchange, Inc. v. National Screen Service Corp.

Supreme Cou, US x

“~FILEDQ:

MAY 11 i977

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

2D

No. 76-1392

EXHIBITORS POSTER EXCHANGE, INC.,

Petitioner,

versus

NATIONAL SCREEN SERVICE CORPORATION, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

LOUIS NIZER PHILLIP A. WITTMANN

WALTER S. BECK STONE, PIGMAN, WALTHER,

PHILLIPS, NIZER, BENJAMIN, WITTMANN & HUTCHINSON

KRIM & BALLON 1000 Whitney Bank Building

' 40 West 57 Street New Orleans, Louisiana 70130

New York, New York 10019 Counsel for all Respondents

Attorneys for Respondent - except National Screen

National Screen Service Corp. Service Corp.

SCOFIELDS’ QUALITY PRINTERS. P O BOX 53096. N O. LA 70153. 504/822 1611

TABLE OF CONTENTS

Page

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The Fifth Circuit Decision is Consistent

With This Court’s Decision in Lawlor v.

National Screen Service Corp. .................. 4

Petitioner's Contention That a Summary

Judgment Cannot Form the Basis for

Collateral Estoppel is Contrary to Settled

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TABLE OF AUTHORITIES

CASES:

Lawlor v. National Screen Service Corp., 349

PE SE 6 hon be ebereeneeeseedehhenscséusentecedeses 4

Napa Valley Electric Co. v. R.R. Commission

of California, 251 U.S. 366 (1920) ................ 5

OTHER:

Sherman Act, Sections land 2 ................... 2.4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-1392

EXHIBITORS POSTER EXCHANGE, INC.,

Petitioner,

versus

NATIONAL SCREEN SERVICE

CORPORATION, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

QUESTION PRESENTED

Whether Petitioner is barred by the doctrine of

collateral estoppel from maintaining this fifth suit!

against the Respondents, which is based solely upon a

continuation of the same facts alleged in the first four

cases, all of which were dismissed by summary judg-

1 543 F.2d 1106-107.

2

ment following a judicial determination? that the facts

brought forth by deposition, pre-trial conferences, and

other discovery devices did not show monopolization,

attempted monopolization or conspiracy under Sec-

tions 1 or 2 of the Sherman Act.

STATEMENT OF THE CASE

Respondents respectfully refer this Honorable

Court to the Fifth Circuit Court of Appeals’ statement

of the judicial history of Petitioner's prior four ac-

tions, which is set forth at 517 F.2d 110, pages 111

through 115, Cert. Denied, 423 U.S. 1054. The instant ac-

tion copied the allegations of the prior four actions in

every respect, except that the instant action purports

to cover the four-year period immediately following

the four-year period involved in its fourth action.

Respondents respectfully call this Court's attention

to the fact that Petitioner recently presented the iden-

tical question in its Petition No. 75-667 (October Term

1975) requesting review by this Court of the Fifth Cir-

cuit’s unanimous affirmance — under collateral es-

toppel principles — of summary judgment dismissals

of Petitioner’s 3rd and 4th actions based upon con-

tinuance of the same facts asserted in Petitioner's ist

and 2nd actions, which had also been judicially deter-

mined to be non-actionable and dismissed.

In its prior Petition, Docket No. 75-667, Petitioner

stated the “issue” as follows:

2 421 F.2d 1313, 1320; Cert. Den. 400 U.S. 991.

3

“Whether a summary judgment, dismiss-

ing a suit with prejudice, but without any trial

or findings of fact, can have any collateral es-

toppel effect on a subsequent suit between the

same parties, and based primarily on the same

course of alleged unlawful conduct, but in-

volving a new cause of action.”

This Court's denial of that Petition is reported at 423

U.S. 1054.

Conclusive confirmation by Petitioner's counsel

that Respondents’ acts charged by Petitioner in the in-

stant action, are the same as were going on during the

pendency of Petitioner's fourth action, was made by

Petitioner’s counsel in the argument of Respondents’

motion for summary judgment. We respectfully refer

to the following questions and responses:

The Court:

“But, the only difference you would have

then, is you say that the monopoly that was

begun earlier has continued?”’

Mr. Henican:

“Yes, Sir, We conceded, and in candor, must

concede that as far as! can now say, there is no

substantial difference in kind between the acts

that are now going on, and the acts that were

going on between the pendency of the last

suit.”

The Court:

“If those acts committed by defendants prior

to the decision or institution, whichever may

be the controlling date of the lawsuit, were

4

legal, then their continuation would be legal;

would they not?” (Emphasis added)

Mr. Henican:

“I don’t know that I can answer that.”

ARGUMENT

The Fifth Circuit Decision Is Consistent With

This Court’s Decision In Lawlor v. National

Screen Service Corp.

Petitioner’s Question No. “3’’ — “Whether the deci-

sion below is in conflict with the Opinion delivered by

this Court in the case of Lawlor v. National Screen

Service Corp., 349 U.S. 322” — was conclusively an-

swered by this Court in rejecting Petitioner's last peti-

tion for certiorari.

The facts, as well as the legal question in the instant

case, are crucially different from those in the Lawlor

case. The prior judgment in Lawlor was a consent

judgment based upon a settlement “priorto any trial.”

In the instant case, the prior judgments were based

upon judicial determination of facts brought forth by

deposition, pre-trial conferences, and other discovery

devices, from which the Court determined that neither

monopolization, attempted monopolization, nor con-

spiracy under Sections 1, 2, or both of the Sherman Act

were present. See 421 F.2d 1320.

Moreover, Lawlor did not deal with the principle of

collateral estoppel, as this Honorable Court noted at

page 326 of the Lawlor opinion:

“Recognizing this distinction, the court below

concluded that ‘No question of collateral es-

toppel by the former judgment is involved

because the case was never tried and there was

not, therefore, such finding of fact which will

preclude the parties to that litigation from

questioning the finding thereafter.’ ”

(Emphasis supplied)

The foregoing quotation from this Honorable

Court’s Opinion, has been previously quoted in refuta-

tion at page 7 of Respondents’ brief in Opposition to

Petitioner's identical contention in its prior Petition

No. 75-667, and we regret to burden this Court with this

repeated, but necessary response.

Petitioner’s Contention That A Summary

Judgment Cannot Form The Basis For

Collateral Estoppel Is Contrary To Settled

Law.

It is settled law that the formalities of atrial, attend-

ed with formal findings of fact, are not prerequisites to

the application of the doctrine of collateral estoppel.®

The Napa Valley case provides a good example of how

far this Honorable Court has gone to prevent

repetitive litigation. There the plaintiff utility had its

contract rates reduced by the Railroad Commission, in

spite of subsisting contracts at higher rates. Plaintiff

petitioned the California Supreme Court to issue a

Writ of Review of the Railroad Commission's decision

— but the California Supreme Court refused to issue

such a writ.

3 Napa Valley Electric Co. v. R.R. Commission of California, 251

U.S. 366 (1920).

Plaintiff then sued in the United States District

Court to enjoin the Commission from enforcing its or-

ders. The Commission moved to dismiss on the ground

that the subject matter had been judicially passed

upon the Supreme Court of California when it refused

to issue the writ, which refusal was pleaded in bar to

the motion in the United States District Court.

In affirming the District Court’s dismissal, this

Honorable Court said, at pages 372-373:

“And so with the denial of the petition of the

Electric Company, it had like effect and was

the exercise of the judicial powers of the court.

And we agree with the district court that ‘the

denial of the petition was necessarily a final

judicial determination, based on the identical

rights’, asserted in that court and repeated

here. Williams v. Bruffy, 102 U.S. 248, 255. And

further, to quote the district court ‘Such a

determination is as effectual as an estoppel as

would have been a formal judgment upon

issues of fact’... Calaf v. Fugural v. Calaf v.

Rivera, 232 U.S. 371; Hart Steel Co. v. Railroad

Supply Co., 244 U.S. 294, 299;

“The Court held, and we concur, that absence

of an opinion by the supreme court did not

affect the quality of its decision or detract

from its efficacy as a judgment upon the

questions presented, and its subsequent con-

clusive effect upon the rights of the Electric

Company. Therefore, the decree of the District

Court is affirmed.” (Emphasis supplied)

CONCLUSION

Respondents respéctfully submit that since the Peti-

tion fails to present any question of law or issue

requiring review by this Honorable Court,

Petitioner’s application for a Writ of Certiorari should

be denied.

Respectfully submitted,

Phillip A. Wittmann

Stone, Pigman, Walther,

Wittmann & Hutchinson

Counsel for all Respondents ex-

cept National Screen Service

Corp.

Louis Nizer

Walter S. Beck

Phillips, Nizer, Benjamin,

Krim & Ballon

Attorneys for Respondent -

National Screen Service Corp.

CERTIFICATE OF SERVICE

I certify that copies of the foregoing Opposition

have been served on the following counsel for

Petitioners, at the addresses following their names, by

United States mail, postage prepaid, on this ____ day of

May, 1977.

Francis T. Anderson

829 St. Louis Street

New Orleans, Louisiana 70112

Glen B. Hester

Commerce Building

Augusta, Georgia 30902

C. Ellis Henican, Jr.

Suite 4440

One Shell Square

New Orleans, Louisiana 70139

Phillip A. Wittmann