Petition — Topps Chewing Gum, Inc. v. Fleer Corp.

Supreme Court, U. S.

FILED

FEB 15 1978

, mare HAEL RODAK. JR., CLERK

Supreme Court of the United States

OcroBer TERM 1977

No @V-1157%

Topps CHEWING Gua, INc., Petitioner,

FLEER CorPporaTION, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SIDNEY TE arris

Dovenas G, GREEN

FreD NLEIN

Marc Gary

Arent, Fox, Kintner, Plorkin & KAHN

1815 II Street. N.W.

Washineton, D.C. 20006

(202) 857-6000

Epwitn P. Rome

Biank, Rome, Kiuavs & CoMISKY

Four Penn Center Plaza

Philadelphia, Pennsylvania 19103

(P15) 569-3700

Attorneys For Petitioner,

TOPPSCHEWING GUM,INC.

eens —

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D.C.

ER eM hate So

CONTENTS

Page

eR ee din daekuneusseuasseas 1

eh awe Se te eis 2

Tun Qumsrsen PRRGBWTED 2... cc cccccccccccccccccccs 2

Ne ed ie es ed eS 2

STATEMENT OF THB CaGB 2... ccccccccccccccccccccces 3

Reasons For GRANTING THE WRIT .............0-00: 6

a ia 6

2. The ‘‘Collateral Order’’ Doctrine in the

ED CEE cccnasknecensduwenncedeesees 7

3. The ‘‘Collateral Order’’ Doctrine in the Courts

_ f -_- RE eee ree 12

4. Importance of the Underlying Issue ......... 14

ES ne ry EN eae eer eA 15

TE ee la

I TN ae ed i Ol re) 2a

Ne ie le 9a

TABLE OF AUTHORITIES

CasEs:

Abney v. United States, 431 U.S. 651 (1977) ...... 2, 6, 7, 8,

9, 10, 11, 12, 13

American Surety Co. v. Baldwin, 287 U.S. 156 (1932) . 7

Ashe v. Swenson, 397 U.S. 436 (1970) ............ 7, 11,14

Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977) .... 10

Benton v. Maryland, 395 U.S. 784 (1969) ............ 11

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

ee ey 2, 6, 7, 8, 10, 12, 13

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) .... 10

ii Table of Authorities Continued

Page

Exhibitors Poster Exchange, Inc. v. National Screen

Service Corp., 517 F.2d 110 (5th Cir. 1975), cert.

dented, 423 U.S. 1054 (1976) ...........eceeeees 12

Ea Parte Lange, 85 U.5. 163 (1874) .............06. 11

Fayerweather v. Ritch, 195 U.S. 276 (1904) ......... 14

Fleer Corp. v. Topps Chewing Gum, Inc., 415 F.Supp.

See CE ie TEE 0655 65684065-506 056i seccuces 2,5

Gillespie v. United States Steel Corp., 379 U.S. 148

SEED. Kuduecudunhec6nescueussieescasencessuss 10

Greene v. Singer Co., 509 F.2d 750 (3d Cir. 1971) ..... 8

Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294

SPE £45 6V0sscnrseddensanetenssatnensecess 14

Herbst v. International Telephone and Telegraph

Corp., 495 F.2d 1308 (2d Cir. 1974) .............

Hoag v. New Jersey, 356 U.S. 464 (1958) ........ 9, 10, 12

In re Cessna Distributorship Antitrust Litigation, 532

Pe ee Ss 6.06 8065 6xnedéescveceses 13

In re Piper Aircraft Distribution System Antitrust

Litigation, 551 F.2d 213 (8th Cir. 1977) ......... 13

In the Matter of Topps Chewing Gum, Inc., 67 F.T.C.

ee ES SE Sedans xs cenupeededances acces 4,5, 14

Local 771, 1.A.7.8.E., AFL-CIO v. RKO General, Inc.,

WOR Division, 546 F.2d 1107 (2d Cir. 1977) ... 13

Mathews v. Eldridge, 424 U.S. 319 (1976) ........... 12

McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir.1975). 8

Milliken v. Meyer, 311 U.S. 457 (1940) ............. 9

Palma v. Powers, 295 F.Supp. 924 (N.D. Ill. 1969) ... 10

Partmar Corp. v. Paramount Pictures Theatres Corp.,

¢ € 5 RRR ETE om 10

Samuel v. University of Pittsburgh, 506 F.2d 355 (3d

Sh MEY Kidda addennnebaddadusccesndeandsocnd 8

Swift @ Co. Packers v. Compania Colombiana Del

Caribe, S.A., 339 U.S. 684 (1950) ............... 10

United States v. Barket, 530 F.2d 181 (8th Cir. 1975),

cert. denied, 429 U.S. 917 (1976) ............... 13

United States v. Jenkins, 490 F.2d 868 (2d Cir. 1973),

aff’d, 420 U.S. 358 (1975) ..........cceeeceeeee 11

United States v. Moser, 266 U.S. 236 (1924) ........ 9

United States v. Wood, 295 F.2d 772 (5th Cir. 1961),

cert. denied, 369 U.S. 850 (1962) ............... 8

Table of Authorities Continued ili

Page

STATUTES:

ie OO ed cu eudeeedanddedes seuesens 3

ee id ucesaddeeceenceceeeeee 2

ied ceedevedeasseedndedeun 2, 6, 8, 13

i i ed diag ees eeebaeneeaeeesaes 6

Federal Rules of Civil Procedure: Rule 13(g) ....... 13

Federal Rules of Appellate Procedure: Rule 41(b) ... 2

MISCELLANEOUS:

4 Blackstone, Commentaries on the Law of England

SS Gin DED concvccneedetneacccevecs 11

Comment, Nonparties and Preclusion By Judgment:

The Privity Rule Reconsidered, 56 Calif.L.Rev.

Se CE 605660440 ci canwanveéevedstsebetese 12

Note, Collateral Estoppel of Nonparties, 87 Harv.L.

ee air vonnaes 12

Note, Statutory Implementation of Double Jeopardy

Clauses: New Life For A Moribund Constitutional

Guarantee, 65 Yale L.J. 339 (1956) ............ 12

Perkins, Criminal Law and Procedure (1952) ....... 11

Sigler, A History of Double Jeopardy, 7 American

rere 11

IN THE

Supreme Court of the United States

OctToBER TERM 1977

No.

Topps CHEWING GuM, Inc., Petitioner,

v.

FLEER CorPoRATION, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Topps Chewing Gum, Inc. (hereafter ‘‘Topps’’) pe-

titions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Third

Circuit in this case.

OPINIONS BELOW

The order of the Court of Appeals for the Third

Circuit dismissing Topps’ appeal in this case is included

herein as Appendix * A and has not been officially re-

ported. The district court’s opinion and supplemental

opinion are included herein as Appendix B and Ap-

pendix C respectively and have not been officially re-

ported. An earlier opinion of the district court denying

* Citations to the Appendix are referred to as App. —.

2

Topps’ motion to dismiss is reported at 415 F.Supp.

176 (E.D. Pa. 1976).

JURISDICTION

The order of the Court of Appeals for the Third

Circuit dismissing Topps’ appeal in this case was en-

tered on December 1, 1977. A timely Petition For

Rehearing and Suggestions for Rehearing En Bane

was denied on January 3, 1978. On January 16, 1978

the court of appeals stayed the issuance of the man-

date, pursuant to Rule 41(b) of the Federal Rules of

Appellate Procedure, until February 23, 1978.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1) and under the doctrine of Abney v.

United States, 431 U.S. 651 (1977).

THE QUESTION PRESENTED

Whether a pretrial order denying a motion for sum-

mary judgment on collateral estoppel grounds and

thereby requiring a party to relitigate issues which

have already been tried and decided in its favor, is

appealable under 28 U.S.C. § 1291 as a ‘‘final decision”’

pursuant to the ‘‘collateral order’’ doctrine formulated

in Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

541 (1949) and applied in Abney v. United States, 431

U.S. 651 (1977).

STATUTE INVOLVED

28 U.S.C. § 1291 (1970) provides as follows:

The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district

courts of the United States, the United States

District Court for the District of the Canal Zone,

3

the District Court of Guam, and the District Court

of the Virgin Islands, except where a direct review

may be had in the Supreme Court.

STATEMENT OF THE CASE

Fleer Corporation (hereafter ‘‘Fleer’’) instituted

this antitrust action pursuant to 15 U.S.C. §§ 4 and 16

on June 24, 1975 in the Eastern District of Pennsylva-

nia charging the defendants Topps and Major League

Baseball Players Association (hereafter ‘‘ Associa-

tion’’) with having violated Sections 1 and 2 of the

Sherman Act, 15 U.S.C. §§1 and 2. Topps manufac-

tures and sells chewing gum and candy, as well as other

low cost play items appealing to children and young

teenagers. Many of its products comprise a package

which includes bubble gum together with picture cards

of a sports figure or other famous personality. Fleer

is also a manufacturer of bubble gum and candy, and

sells packages similar to those of Topps and in com-

petition with it.

The complaint alleges that Topps, acting unilaterally

and in combination with others including the Asso-

ciation, monopolized a six million dollar market for

baseball picture cards and restrained trade therein

essentially through the use of exclusive contracts be-

tween Topps and individual baseball players. These

contracts are for a five year term and provide for a

payment to the player for each year that the picture

is used or that the player is in the major leagues. In

all material respects, the contracts which Fleer chal-

lenges in this case are identical to those previously

approved by the Federal Trade Commission.

The issue sought to be litigated by Fleer in this case

(the legality of Topps’ contracts under the antitrust

4

laws) has previously been litigated in a lengthy pro-

ceeding against Topps in which Fleer had an oppor-

tunity to and actually did participate, wherein the issue

was decided in Topps’ favor. On January 30, 1962, after

at least three years of extensive investigation, the Fed-

eral Trade Commission (hereafter ‘‘FTC’’) instituted

an action against Topps charging it with monopoliza-

tion of the market for baseball picture cards and chal-

lenging Topps’ contracts with baseball players as anti-

competitive. In the Matter of Topps Chewing Gum,

Inc., 67 F.T.C, 744. After an additional three years of

pretrial and trial proceedings, an initial decision by

the Hearing Examiner was issued on August 7, 1964.

67 F.T.C. 747. In effect, Fleer litigated this case for

the FTC. It was Fleer’s letter to the Commission which

initiated the investigation and subsequent proceedings."

The FTC found that Fleer’s representatives were the

star witnesses and undertook the burden of making the

record in the proceedings by supplying a major portion

of the testimony in support of the complaint. 67 F.T.C.

at 756, 761, 777. Fleer filed legal briefs with the Hearing

Examiner through its legal representatives and sup-

plied much of the factual material for use by FTC

counsel. Fleer’s legal and corporate representatives

were in constant attendance throughout the entire pro-

ceeding. 67 F.T.C. at 777. Fleer, however, failed to

avail itself of its statutory right to intervene.

Both the FTC and Topps took cross appeals from

the Hearing Examiner’s initial decision which cul-

minated in an order and accompanying opinion by the

FTC dated April 30, 1965, dismissing the complaint.

* Many of the allegations in this letter, however, were subsequent-

ly rejected by the Hearing Examiner and the Commission.

5

67 F.T.C. 835. Basically, the FTC found that the market

in which Topps had allegedly restrained and mono-

polized trade was not a proper relevant market for

antitrust purposes because it was economically and

commercially meaningless, and additionally that the

contracts between Topps and baseball players were not

unlawful.’

Based upon these prior proceedings, Topps moved

to dismiss Fleer’s recent complaint on the grounds of

collateral estoppel, 1.e., since in a proceeding in which

Fleer had an opportunity to and did participate, a

finding was made by the FTC that Topps’ contracts

were lawful and that no legally cognizable relevant

market for baseball cards had been found to exist, Fleer

is now barred from relitigating these issues. Although

the district court agreed with Topps’ legal theory, the

motion was denied on the ground that Topps was re-

lying on facts not present in the complaint. /leer Corp.

v. Topps Chewing Gum, Inc., 415 F.Supp. 176, 183

(E.D. Pa. 1976). After discovery had been conducted,

limited inter alia to the issue of collateral estoppel,

Topps filed a motion for summary judgment on this

issue. This motion was also denied, although this time

on the ground that Topps’ legal reasoning (which was

2In its final decision, the FTC also found that Fleer had been

able to sign a large number of baseball players to non-exclusive

baseball picture contracts and specifically advised "leer to continue

competing with Topps for rights with baseball players. 67 F.T.C. at

842. Instead of heeding this advice and competing for baseball

player contracts, after the FTC decision Fleer sold all of its con-

tracts with baseball players to Topps for $395,000. Several years

later, by initiating this treble damage action, Fleer seeks to recover

more money from Topps.

6

identical to that used in its motion to dismiss and ap-

proved of by the court) was incorrect. App. B.*

Thereafter, Topps filed a timely notice of appeal on

the issue of collateral estoppel, seeking a ruling from

the Third Circuit that Topps would not have to reliti-

gate an issue already decided in its favor. Fleer moved

to dismiss the appeal on the grounds it was not taken

from a final decision and this motion was granted by the

Third Circuit. App. A. Finally, on January 3, 1978,

the court of appeals denied Topps’ petition for a re-

hearing and suggestion for a rehearing en banc.

REASONS FOR GRANTING THE WRIT

1. Introduction

This case squarely presents the question of whether

a pretrial order which rejects a collateral estoppel de-

fense, thereby requiring litigation of an issue claimed

to have already been litigated, is immediately appeal-

able as a final decision under 28 U.S.C. § 1291. The de-

cision below dismissing Topps’ appeal is a surprisingly

rapid departure from this Court’s recent decision in

Abney v. United States, 431 U.S. 651 (1977), which

held that similar orders rejecting the double jeopardy

defense are immediately appealable under the ‘‘collat-

eral order’’ doctrine formulated in Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949). It also

conflicts with decisions of other courts of appeals which

have found similar orders to be immediately appeal-

able under the same doctrine.

*The court refused to clarify this apparent inconsistency on

Topps’ motion for reconsideration, although it did certify the issue

of standing to the Third Circuit pursuant to 28 U.S.C. § 1292(b).

App. C. Subsequently, however, the court of appeals refused to hear

that interlocutory appeal.

7

If the decision of the Third Circuit in this case goes

unreviewed by this Court, and if a party must be sub-

ject to an entire lawsuit before an appellate determi-

nation of the right not to relitigate is obtained, it

would tend to effectively destroy the protection that

the doctrine of collateral estoppei affords against vex-

atious litigation, which this Court has identified as an

‘‘extremely important principle in our adversary sys-

tem of justice.’’ Ashe v. Swenson, 397 U.S. 436, 443

(1970).* Moreover, that decision has the effect of en-

dorsing a modification of the rule of appealability re-

cently announced by this Court in Abney, supra. The

case clearly involves an important question of federal

law which has been decided by the Third Circuit in a

manner that appears to conflict with decisions of this

Court and other courts of appeals and the writ must be

granted to remedy this situation.

2. The “Collateral Order” Doctrine In The Supreme Court

The ‘‘collateral order’’ doctrine, which is the basis

for Topps’ appeal in this case, was originally formu-

lated in Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949). In that case, the issue was

whether a state statute requiring a plaintiff to post

security for the costs of shareholder litigation applied

in a federal diversity suit. The district court denied

defendant’s motion to require such security and imme-

*In addition to the important principle of collateral estoppel,

failure of a federal court to give preclusive effect to issues already

decided in state litigation would amount to a violation of the con-

stitutional full faith and credit provision as well as federal statute.

American Surety Co. v. Baldwin, 287 U.S. 156, 166 (1932). Al-

though this case does not involve a state court judgment, the issue

does serve to highlight the overriding importance of the appeal-

ability question to the administration of justice in the federal

system.

8

diate appellate review was sought. Acceptance of ap-

pellate jurisdiction under section 1291 was affirmed

by the Supreme Court. The Court recognized that Con-

gress intended section 1291 to be given a ‘“‘practical

rather than a technical construction’’ and that it not

only applies to those decisions which terminate a cause

of action but also to those ‘‘[wJhich finally determine

claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied re-

view and too independent of the cause itself to require

that appellate consideration be deferred until the whole

ease is adjudicated.’’ 337 U.S. at 546. The Court rea-

soned that if review of the order was postponed until

after trial the statutory right defendant sought to pro-

tect, i.e., the assurance that it could recover the costs

of suit if it prevailed by requiring plaintiff to post

security for such costs beforehand, would be irrepar-

ably lost.°

Last term, on the basis of the doctrine formulated in

Cohen, supra, this Court recognized that the denial of

a motion to dismiss an indictment on double jeopardy

grounds is subject to an immediate appeal under sec-

tion 1291. Abney v. United States, 431 U.S. 651 (1977).

The Court relied entirely on the factors identified in

Cohen for its findings of appealability. These same

factors render appealable the district court’s order in

*Under this so-called ‘‘collateral order’’ doctrine, numerous

issues which do not terminate the litigation have been found by

the lower courts to be immediately appealable where delay would

result in abandonment of the asserted right. See, e.g., MeSurely v.

McClellan, 521 F.2d 1024, 1032 (D.C. Cir, 1975); Samuel v. Uni-

versity of Pittsburgh, 506 F.2d 355 (3d Cir. 1974); Greene v.

Singer Co., 509 F.2d 750, 751 (3d Cir. 1971); United States v.

Wood, 295 F.2d 772 (5th Cir. 1961), cert. denied, 369 U.S. 850

(1962).

9

this case, which denied summary judgment on collat-

eral estoppel grounds.

First, the order constitutes a final rejection by the

trial court of the collateral estoppel defense. It will

not be considered again by the district court until after

completion of the trial. Moreover, it is collateral to

and separate from the principle issue at the impend-

ing trial, t.e., whether or not defendants are guilty of

the antitrust violations alleged. The bar of collateral

estoppel is applied regardless of the merit in plain-

tiff’s complaint. Milliken v. Meyer, 311 U.S. 457, 462

(1940); United States v. Moser, 266 U.S. 236, 242

(1924). Finally, Topps’ collateral estoppel rights would

be irreparably undermined if appellate review were

postponed until after final judgment. Since the issue

will have already been litigated, even a verdict in Topps’

favor will not restore the right not to relitigate con-

ferred by the doctrine of collateral estoppel. Hoag v.

New Jersey, 356 U.S. 464, 470 (1958). As this Court

noted in Abney with respect to double jeopardy:

Obviously, these aspects of the guarantee’s pro-

tections [not to be forced to endure the personal

strain, public embarrassment, and expense of two

trials on the same issue] would be lost if the ac-

cused were forced to ‘‘run the gauntlet’’ a second

time before an appeal could be taken; even if the

accused is acquitted, or, if convicted, has his con-

viction ultimately reversed on double jeopardy

grounds, he has still been forced to endure a trial

that the Double Jeopardy Clause was designed to

prohibit. 431 U.S. at 662.

It is therefore clear that the holding in Abney con-

trols the issue presented to the Third Circuit in this

case and requires reversal of its order dismissing the

10

appeal. The fact that Abney involved a criminal mat-

ter while this case is civil in nature is irrelevant to

application of the ‘‘collateral order’’ doctrine. That

doctrine was originally formulated and applied in

Cohen, which was a civil ease.’ Moreover, Abney itself

recognized that the doctrine ‘‘is equally applicable in

both civil and criminal proceedings.’’ 431 U.S. at 659

n.4. Finally, adherence to the policy against interlocu-

tory appeals ‘‘has been particularly stringent in crim-

inal prosecutions.’’ Jd. at 657. Therefore, if the col-

lateral order doctrine can be applied in a criminal

proceeding to prevent relitigation a fortiori it should

be applied to foreclose relitigation of a civil matter.’

The fact that Abney involved the assertion of a con-

stitutional right is also irrelevant to application of the

‘‘collateral order’’ doctrine in this case. This Court has

consistently applied that doctrine to protect a litigant’s

rights which were not of constitutional dimensions.

See supra, n. 6. Moreover, the similarities between dou-

ble jeopardy on the one hand and res judicata and

collateral estoppel on the other,’ strip the constitutional

right distinction of any significance. The Double Jeop-

ardy Clause and the common law doctrines of collateral

* See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ;

Gillespie v. United States Steel Corp., 379 U.S, 148 (1946) ; Swift &

Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S.

684 (1950).

" Abney has subsequently been relied upon to render an otherwise

interlocutory order appealable in a civil case. See Ballard v. Sprad-

ley, 557 F.2d 476, 479 (5th Cir. 1977).

® Collateral estoppel is a part of the broader doctrine of res

judicata. Hoag v. New Jersey, 356 U.S, 464, 470 (1958) ; Partmar

Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 91 (1954) ;

Palma v. Powers, 295 F.Supp. 924, 932 n.1 (N.D. Ill. 1969).

11

estoppel and res judicata derive from common origins

and serve substantially the same purposes.

Double jeopardy and collateral estoppel are both

based on the same ancient maxim, nemo debdet bis

vexart pro eadem causa, i.e., no one should be twice

vexed for the same cause. Ex Parte Lange, 85 U.S.

163, 168-69 (1874) ; Sigler, A History of Double Jeop-

ardy, 7 American Journal of Legal History, 283, 298

(1963). This maxim found expression at common law

in the pleas of res judicata and collateral estoppel in

civil suits and in the pleas of autrefois acquit and

autrefois convict—pleas later embodied in the Double

Jeopardy Clause—in criminal prosecutions. Perkins,

Criminal Law and Procedure 650 (1952); 4 Black-

stone, Commentaries on the Law of England 335-36

(Sharswood ed., 1873).° The doctrine of collateral estop-

pel is even embodied in the Fifth Amendment guaran-

tee against double jeopardy. Ashe v. Swenson, 397 U.S.

436, 445 (1970).

In addition to their common origins, the doctrines

of collateral estoppel and double jeopardy serve sub-

stantially the same purposes. The policy of protecting

criminal defendants against the expense, anxiety and

insecurity of vexatious and repetitive prosecutions by

the government is embodied in the Double Jeopardy

Clause of the Fifth Amendment. Benton v. Maryland,

395 U.S. 784, 796 (1969). It protects the defendant

from multiple trials as well as multiple punishments.

Abney v. United States, supra, 431 U.S. at 660-62. It

also allows a defendant to plan his future without the

* The Greeks treated the concept of double jeopardy as part of

the rule of res judicata. United States v. Jenkins, 490 F.2d 868,

870 (2d Cir. 1973), aff’d, 420 U.S. 358 (1975).

12

threat of subsequent prosecution for the same conduct.

Note, Statutory Implementation of Double Jeopardy

Clauses: New Life For a Moribund Constitutional

Guarantee, 65 Yale L.J. 339, 339-41 (1956). These con-

siderations are also applicable to collateral estoppel

which is ‘‘[d]esigned to eliminate the expense, vexa-

tion, waste, and possible inconsistent results of dupli-

eatory litigation.’’ Hoag v. New Jersey, 356 U.S. 464,

470 (1958). It prohibits a plaintiff from assailing a

defendant for proceeding without change upon a course

of conduct previously held lawful against an identical

attack. Exhibitors Poster Exchange, Inc. v. National

Screen Service Corp., 517 F.2d 110, 114-15 (5th Cir.

1975), cert. denied, 423 U.S. 1054 (1976). Based upon

the above, it is clear that this case is controlled by both

Cohen and Abney and that the order of the Third Cir-

cuit, which conflicts with this binding authority, must

be reversed.”

3. The “Collateral Order” Doctrine in the Courts of Appeals

In addition to its failure to follow controlling au-

thority of this Court, the order of the Third Circuit

rejecting Topps’ attempt to assert its right to collateral

estoppel effect places it in a clear conflict with another

© See also Note, Collateral Estoppel of Nonparties, 87 Harv. L.

Rev. 1485, 1499 (1974) ; Comment, Nonparties and Preclusion By

Judgment: The Privity Rule Reconsidered, 56 Cauir. L. Rev. 1098,

1099 (1968).

**As this Court has most recently recognized, ‘‘[s]tatutorily

created finality requirements should, if possible, be construed so

as not to cause crucial collateral claims to be lost and potentially

irreparable injuries to be suffered. . . .’’ Mathews v. Eldridge, 424

U.S. 319, 331 n.11 (1976). Therefore, a strict construction of section

1291 which would conflict with the previous holding in Abney

should be avoided.

13

federal court of appeals on this issue. In two cases, the

Eighth Circuit has held that pretrial orders determin-

ing the collateral estoppel effect to be given prior

judicial proceedings are immediately appealable un-

der section 1291 pursuant to the ‘‘collateral order’’

doctrine. See In re Piper Aircraft Distribution Sys-

tem Antitrust Litigation, 551 F.2d 213 (8th Cir. 1977) ;

United States v. Barket, 530 F.2d 181 (8th Cir. 1975),

cert. denied, 429 U.S. 917 (1976). The principle estab-

lished by the order of the Third Circuit in this case

is directly contradictory to that announced by the

Eighth Cireuit. Given the clear split of authority, this

case represents an appropriate and necessary oppor-

tunity for the Court to ensure compliance with its con-

struction of section 1291 in Abney.

In several other appellate court decisions, the prin-

ciples of Cohen and Abney have been applied to issues

similar in effect to collateral estoppel to render them

immediately appealable. In Jn re Cessna Distributor-

ship Antitrust Litigation, 532 F.2d 64 (8th Cir. 1976)

the trial court denied defendant’s attempt to file a

cross-claim. In allowing an immediate appeal from this

denial, the court of appeals recognized that ‘‘[t]he

granting of the motion to amend in order to allow the

cross-claim would materially reduce the range and cost

of litigation, a primary purpose of Fed.R.Civ.P. 13

(gz). The potentially substantial saving in judicial time

gives added weight to the claim that the order appealed

from presents a question of special importance.”’ Id.

at 67. See also Herbst v. International Telephone and

Telegraph Corp., 495 F.2d 1308, 1313 (2d Cir. 1974).

In Local 771, 1.A.T.S.E., AFL-CIO v. RKO Gen-

eral, Inc., WOR Division, 546 F.2d 1107 (2d Cir. 1977)

defendant’s motion to dismiss, in which it was claimed

14

that arbitration was plaintiff’s exclusive remedy, was

denied. Comparing this issue to that presented by dou-

ble jeopardy, the court accepted jurisdiction of an im-

mediate appeal, holding that ‘‘[t]he Company’s right

to be relieved of the costs and delays of trial which it

claims to have gained through the contract’s arbitra-

tion provisions, will be lost irretrievably if proceed-

ings in the case go forward in the district court.’’ Id.

at 1112. Although not dealing with collateral estoppel,

these cases do recognize that legal issues whose very

purpose is to avoid the costs and time of trials are to

be immediately reviewable through appeal. As such,

when compared to the Third Circuit’s decision in this

ease, they represent a conflict among the federal courts

about the application of the ‘‘collateral order’’ doc-

trine which should be resolved by this Court.

4. Importance of the Underlying Issue

Collateral estoppel is a substantive right granted to

each litigant. It is not merely a matter of practice or

prudent judicial administration, but rather a ‘‘rule of

fundamental and substantial justice, of public policy

and of private peace, which should be cordially re-

garded and enforced by the courts.’’ Hart Steel Co. v.

Railroad Supply Co., 244 U.S. 294, 299 (1917). It isa

substantive right granted to each litigant, Fayer-

weather v. Ritch, 195 U.S. 276, 299 (1904), and is an

‘extremely important principle in our adversary sys-

tem of justice.’’ Ashe v. Swenson, 397 U.S. 436, 443

(1970). Moreover, orders of the Federal Trade Com-

mission are designed to protect the public interest and

to guide the future conduct of businessmen. In the

Matter of Topps Chewing Gum, Inc., 67 F.T.C. 835,

837 (F.T.C. 1965). If these purposes are to be achieved

15

immediate review is necessary in this case to protect

Topps and others from the risk of conflicting judg-

ments.

Therefore, collateral estoppel, like double jeopardy,

is a right which is ‘‘too important to be denied review”’

by requiring defendants to relitigate issues in a trial

before an appeal. The finality rule should not be ap-

plied in such a manner as to render appellate review

on this issue an empty ritual.

CONCLUSION

For the foregoing reasons, the petition fer a writ of

certiorari should be granted.

Respectfully submitted,

SIpNEY Harris

Dove.as G. GREEN

Frep KLEIN

Marc Gary

ARENT, Fox, KIntTNER, PLOTKIN & KAHN

1815 H Street. N.W.

Washington, D.C. 20006

(202) 857-6000

EpWIN P. RoME

Bank, RoE, Kiavus & CoMISKY

Four Penn Center Plaza

Philadelphia, Pennsylvania 19103

(215) 569-3700

Attorneys For Petitioner,

TOPPS CHEWING GUM, INC.

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

November 18, 1977

No. 77-2428

FLEER CoRPORATION

vs.

Toprs CHewine Guo, Inc., et al.

Mason LeacGue BaseBaLL Puayers’ ASsocIaTION

Topps Chewing Gum, Inc. and

Major League Baseball Players Association, Appellants

(D.C. Civil No. 75-1803)

Present: Grssons and Van Dusen, Circuit Judges.

1. Motion by appellee, Fleer Corporation, to dismiss

appeal taken from the Orders dated June 6, 1977 and

October 3, 1977 of the United States District Court

for the Eastern District of Pennsylvania, because the

orders appealed from are not final judgments and are

not final orders,

2. Appellants’ opposition to motion by appellee, Fleer

Corporation, to dismiss appeal,

in the above listed for Monday, November 28, 1977, or as

the Court decides.

Respectfully,

/8/ SIGNATURE NOT LEGIBLE

Clerk

enc.

fm

The foregoing Motion is granted.

By the Court,

/s/ Joun J. Grpsons

John J. Gibbons

Judge

Dated : December 1, 1977

2a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Crvm Action No. 75-1803

FLEER CoRPORATION

v.

Torrs Cuewi1ne Guo, Ino

and

Magor Leacuve BaseBaLL Piayers ASSOCIATION

Memorandum and Order

June 6, 1977.

In this antitrust action, Fleer Corporation (‘‘Fleer’’)

has charged Topps Chewing Gum, Inc. (‘‘Topps’’) and the

Major League Baseball Players Association with violations

of the antitrust laws in connection with the production and

sale of baseball trading cards and similar products. After

limited discovery, the defendants have moved for summary

judgment on three issues: 1) whether Fleer has standing

to sue; 2) whether Fleer’s action has been brought within

the statute of limitations period; and 3) whether Fleer’s

claim is barred by a prior Federal Trade Commission pro-

ceeding under the common law doctrine of collateral estop-

pel. We shall discuss each issue below, and for reasons set

forth therein, deny the motion for summary judgment.

Newcomer, J.

STANDING

Under 15 U.S.C. §15 (Section 4 of the Clayton Act), a

suit for treble damages may be brought by ‘‘any person

who shall be injured in his business or property’’ by an

antitrust violation. The courts have attempted to limit the

scope of this statute and ‘‘(i)n so doing, (they) have de-

veloped a standing doctrine ‘peculiar to antitrust actions.’ ’’

—

ea peer fee recta

3a

Bravman v. Basset Furniture Industries, Inc., C.A. No. 76-

1003, Slip. Op. at 13, (3d Cir., February 16, 1977), quoting

Malamud v. Sinclair Oil Corp., 521 F. 2d 1142, 1148 (6th

Cir. 1975). In the Bravman decision, the Third Circuit

reviewed its prior decisions on antitrust standing. In lieu

of endorsing any particular test for 415 standing, the

Court chose the balancing approach favored by Judge Garth

in The Cromar Company v. Nuclear Materials and Equip-

ment Corp., 543 F. 2d 501, 506 (3d Cir. 1976).

‘*Kach case, therefore, must be carefully analyzed in

terms of the particular factual matrix presented. In

making this factual determination courts must look to,

among other factors, the nature of the industry in

which the alleged antitrust violation exists, the rela-

tionship of the plaintiff to the alleged violator, and

the alleged effect of the antitrust violation upon the

plaintiff.’’

In Bravman, Judge Gibbons said the Cromar approach

resulted in the district court performing what is ‘‘essen-

tially the balancing test comprised of many constant and

variable factors ... (T)here is no talismanic test capable

of resolving all ($15) standing problems.’ Slip Op. at 19.

In viewing the case at bar under the summary judgment

constraints, we find that plaintiff does indeed have standing

to sue under the antitrust laws. In this arena of baseball

trading cards, as parties acknowledged on oral argument,

what is at issue is the contract rights for trading cards.

Topps holds most of these rights through exclusive con-

tracts with the individual players. Fleer sought to enter

the market in a variety of ways, including negotiation for

& group license with the Players’ Association. The nature

of such a market would mean that a party without contract

rights would be helpless, unable even to attempt to compete

through production. Therefore, an effort by Fleer to get

those contract rights would meet the standing requirements.

4a

The lack of any substantial financial investment in the

market by Fleer must be balanced against its expert’s

conclusion that it would cost Fleer $1.75 million to attempt

an unopposed entry into the market.

The relationship of the plaintiff to the alleged violator,

Topps, is one of potential competitor-to-competitor. This

case, therefore, is much more within the traditional scope

of the antitrust laws than Bravman, which gave standing

to sales agents of the defendant, or International Ass’n,

Etc. v. United Contractors, Etc., 483 F.2d 384 (3d Cir.

1973), which granted standing to employees to sue their

employers’ competitcrs. We have previously rejected de-

fendants’ proposal that a plaintiff must have an actual

going business in order to sue for treble damages, Fleer

Corp. v. Topps Chewing Gum, Inc., 415 F. Supp. 176, 180

(E.D. Pa. 1976). It would appear that even a potential

competitor who possesses all but one essential element for

entry into competition’ would have standing under the

balancing test. In Bravman and Cromar, supra, the Third

Circuit expressly rejected the ‘‘competitors only’’ standing

test. As we noted earlier, 415 F. Supp. at 180:

‘‘It would be inconsistent with one purpose of the

Clayton Act—to protect the business interests of the

victims of monopolistic practices—to require an anti-

trust plaintiff to pay a courtroom entrance fee in the

form of an expenditure of substantial resources in a

clearly futile effort.’’

In this case, the alleged effect of the antitrust violation is

to totally block Fleer from the market, rather than merely

to diminish its profits. Where attempted entry into the

1 Fleer has the manufacturing equipment to make the cards and

has the staff needed to bid for the contracts at this time. All that is

lacking is free access to the contract rights, they claim.

ee es ate saatabat eee eee

Jeail <2}

5a

market would be futile’, this Court cannot impose such a

prohibition to access to the courts.

CoLLATERAL EstTopPre.

Defendants claim that Fleer is bound by the common-law

doctrine of collateral estoppel from litigating this case. In

1965, the Federal Trade Commission issued an opinion

holding that there was no commercially meaningful market

in baseball cards. If Fleer is bound by this holding, the

action here is precluded by the earlier judgment, since the

market issue is an essential element of Fleer’s case, United

States v. E. I. Dupont de Nemours and Co., 353 U.S. 586

(1957) ; Fleer, supra at 182.

Defendants contend that Fleer is bound by this earlier

decision because it participated in the control of the earlier

litigation.

‘‘A person who is not a party but who controls an

action, individually or in cooperation with others, is

bound by the adjudications of litigated matters as if

he were a party if he has a proprietary or financial

interest in... the determination of a question of fact

of a question of law with reference to the same subject

matter or transaction; if the other party has notice of

his participation, the other party is equally bound.’’

Restatement of Judgments, § 84, quoted in Ransburg

Electro-coating Corp. v. Lansdale Finishers, Inc., 484

F. 2d 1037 (3d Cir. 1973).

The question of control is one of fact, Ransburg, supra,

and must be affirmatively proven by the party seeking to

invoke the judgment as an estoppel. Ransburgh v. Auto-

. The hearing examiner in the 1966 Federal Trade Commission

proceeding against Topps, noted that other potential competitors

had been kept out of the market by Topps’ extensive contracts, In

the Matter of Topps Chewing Gum, Inc., initial decision, Docket

No. 8643 at 45 (Slip Op. at 45, August 7, 1964).

6a

matic Finishing Suppliers, Inc., 412 F. Supp. 1357 (E.D.

Pa. 1976). After the Court has allowed extensive discovery

on this issue, defendants have failed to come forward with

any concrete evidence of Fleer’s controlling activity. De-

fendants rely in chief on a paragraph in the Hearing Exam-

iner’s report, which states:

‘‘Pleer’s representatives were star witnesses and, in

proportion, carried the burden of making the record

in this proceeding. They were in constant attendance

throughout the hearing. Even before the hearing, one

of the baseball players, in response to a question put

by [FTC] counsel during the taking of a deposition

said, referring to Fleer, ‘‘Well, a representative of

your (FTC’s] company asked me to get a copy of the

contract ... 1 am sorry, Fleer’s.’’ (CX 2, Cheney,

Page 25).* Docket No. 8463, Initial Decision (August

7, 1964)

These facts, alone, would not show that Fleer had control

over the litigation. It is inadequate evidence of control to

show ‘‘that the non-party provided counsel or procured

witnesses or evidence unless by such assistance he acquired

the requisite degree of control.’’ Ransburgh, 412 F. Supp.

at 1364. Here, plaintiff quotes the FTC Hearing Examiner

to rebut any inference of control which could be made from

Fleer’s assistance to the FTC:

’ Defendants misinterpret the rest of that paragraph as an admis-

sion hy the Examiner of Fleer’s de facto control of the case. The

Court does not read it that way. The Examiner merely points out

that, although competition in baseball cards is primarily limited to

a private Fleer-Topps battle (rather than involving a larger field

of competitors), the FTC might still wish to pursue its prosecution

of the case in the public interest. The Examiner has not been given

the Commission’s policy-making functions, but has only been dele-

gated its fact-finding role. Therefore, he cannot make these policy

decisions as to when to prosecute. It was this Commission-to-Exam-

iner delegation that is referred to rather than any delegation of

power to Fleer.

7a

*‘Mr. Harris (Topps’ counsel), I wish in the future

you would not treat this case as a case between Fleer

and Topps. If you want to treat it as a case between

Fleer and Topps, it could very easily be decided against

you very quickly.

‘‘T think that this is a case against Topp with the Fed-

eral Trade Commission being the complaintant, and we

are concerned with the public interest and not with

Fleer’s interest, except only to the extent that Fleer’s

might be a part of the public which should be pro-

tected.’’ (Tr. at 522-523).

Defendants contend that Fleer should be barred because

it could have intervened as a party, but did not do so. The

Court does not agree that this decision should bind Fleer

as if it had been a party. One who chooses to intervene is

bound by any resulting judgment, but even existence of an

absolute right of intervention does not subject a non-party

to estoppel. United States v. Cohen, 27

Fla. 1967). en, 271 F. Supp. 709 (S.D.

Defendants finally argue that plaintiff’s failure to exer-

cise its right to appeal under § 10(a) of the Administrative

Procedure Act, 5 U.S.C. § 702, requires that it be bound

by the Commission’s decision. In Pepsico, Inc. v. FTC.

472 F. 2d 179 (2d Cir. 1972), that court ruled that non.

parties to a FTC action could appeal a decision since they

were ‘‘adversely affected or aggreived by action agency’’

under the APA. In Ransburgh, Judge Ditter said:

‘The prerogative to decide whether or not to appeal

from an adverse [decision] is crucial to, and indicative

of, control.’’ 412 F. Supp. at 1364.

However, to bind persons for failin i

wever, : g to bring up an agenc

decision for review when they were not involved ry ad

to it in the first instance would be to broaden the scope of

collateral estoppel unduly. This would impose a tremendous

8a

burden on non-litigants to remain aware of all agency

actions which might pertain to their interests. This Court

does not believe that this right of appeal is indicative of

any control a non-party has over the agency litigation. The

‘‘eontrol’’? that Judge Ditter spoke of was the ability to

continue an on-going case. The APA ‘‘appeal’’ would con-

stitute a new case, brought by a new party, who may have

no role at all in the first action.

Since defendants have failed to produce any facts which

would be probative of Fleer’s de facto participation in the

control of the FTC litigation, this Court finds that it has

failed to meet its burden on this affirmative defense.

StTaTuTE OF LIMITATIONS

Defendants have argued that the plaintiff’s case is barred

by the statute of limitations. Plaintiff contends that activity

of the defendants within the four-year limitations period

violated the antitrust laws. The Court finds that, since

numerous material facts remain in issue on this topic,

summary judgment is not appropriate.

/s/ Cuarence C. Newcomer, J.

Clarence C. Newcomer, J.

(Caption OMITTED IN PRINTING)

Order

ANp now, to wit, this day of June, 1977, for reasons

set forth in the accompanying memorandum, the defend-

ants’ motion for summary judgment is hereby DENIED.

AND IT IS 80 ORDERED.

/s/ Cranence C. Newcomen, J.

Clarence C. Newcomer, J.

9a

APPENDIX C

(Caption Omitrep 1n Printine)

(Fitep Sepremser 30, 1977)

Memorendum and Order

September 22, 1977.

Defendants, in this antitrust case, have moved for recon-

sideration of this Court’s denial of their summary judg-

ment motion, or in the alternative, certification of one issue

for appeal under 28 U.S.C. § 1292. The Court has reviewed

its decision denying summary judgment and the briefs sub-

mitted in this proceeding. The motion for reconsideration

will be denied, but the request for certification will be

granted.

Newcomer, J.

The plaintiff, Fleer Corporation, contends that Topps

Chewing Gum, and the Major League Baseball Players

Association conspired together to allow Topps to obtain a

monopoly of the baseball trading card industry. In the

summary judgment motion, the defendants raised three

defenses for the Court’s consideration, after discovery had

been completed on the issues. First, defendants claimed

that Fleer’s suit is barred by the statute of limitations.

Second, they contended that the case is barred under the

doctrine of collateral estoppel by a 1966 proceeding against

Topps by the Federal Trade Commission. Finally, they

argued that Fleer lacks standing to bring a suit for treble

damages under Section 4 of the Clayton Act, 15 U.S.C. § 15.

On the issue of collateral estoppel, defendants now con-

tend that the Court erred in rejecting this defense. In its

opinion of July 6, 1977, the Court held that Fleer did not

“‘control’’ the Federal Trade Commission ( FTC) prosecu-

tion, and therefore could not be bound by it. Defendants

argue that the so-called ‘‘control’’ test, as enunciated in

Ransburg v. Automatic Finishing Systems, 412 F. Supp.

1357 (E. D. Pa. 1976), somehow is different from and con-

10a

flicts with the Court of Appeals opinion in Scooper Dooper

v. Kraftco, 494 F. 2d 840 (3rd Cir. 1974). In that case, the

appellate court held that collateral estoppel is available as

a defense if the party against whom it is asserted ‘‘has

had a full and fair opportunity to present his claim in the

the prior litigation . . .”” 494 F. 2d at 844. This Court be-

lieves that these two inquiries seek the same information

and reach the same conclusion. The ‘‘control’’ test is

merely a different way of framing the question. Therefore,

the Court sees no reason to change its decision on this is-

sue, since it believes it is consistent with the law in this

circuit.’

On the issue of the statute of limitations, defendants

contend that the Court failed to comply with a require-

ment of Fed. R. Civ. P. 56. If, after considering a summary

judgment motion, it is denied and a trial is needed, ‘‘the

court... shall if practicable ascertain what material facts

exist without substantial controversy and what material

facts are actually and in good faith controverted.’’ Rule

56(d) (Emphasis added). This is not mandatory under the

rule and is discretionary in any situation. In this case, res-

olution of the statute of limitations issue requires adjudi-

cation of much of the merits of the case, in order for the

Court to decide if activity within the time period was a

violation of the antitrust laws. Therefore, to attempt to

list the many facts still in controversy would be a heavy

burden on the Court at this time. Furthermore, such a list

would surely be incomplete and misleading to counsel, since

all the evidence to be presented at trial is not yet entirely

before the Court.

Finally, defendants contend tiat the Court erred in us-

ing the standing standard recently enunciated in Bravman

v. Basset Furniture Industries, Inc., CCH 1977 Trade

‘The defendants have stated to the Court that they intend to

seek direct review on this question before the Court of Appeals.

No certification has been requested on this issue.

OD» ela ko

» Mian camekl. de —~— po

lla

Cases, {61,380 (3d Cir. February 16, 1977). This Court

believes that the generalized Bravman test is applicable in

deciding if Fleer is able to sue for treble damages as an

injured party under Section 4. This Court believes that

this issue was properly decided, but is an appropriate one

for certification under 28 U.S.C. § 1292(b).

In the Third Circuit, the key case under §1292(b) is

Katz v. Carte Blanche Corp., 496 F. 2d 747 (3d Cir. 1974)

cert, denied, 419 U.S. 885 (1974). In that case, the ap-

peals court noted that the statute imposes three criteria

governing the district court’s exercise of discretion. The

first is that the issue to be certified must involve ‘‘a con-

trolling question of law.’’ The Court of Appeals has de-

fined that as ‘‘one which would result in reversal of a judg-

ment after a final hearing.’’ 496 F. 2d at 755. In Obron v.

Union Camp Corp., 477 F. 2d 342 (7th Cir. 1973), that

appellate court sustained a district court’s certification

of a similar standing issue in an antitrust case as a control-

ling question. The question certified by the district court

was whether appellant had suffered injury, since he had

passed on to his customers any artificially high prices. That

issue 18 very similar to the staading question presented

here, where defendants claim that Fleer has not been in-

jured because it had not actually entered into the market

in competition with Topps. Both of these issues pertain to

a plaintiff’s right to claim treble damage under Section 4 of

the Clayton Act. An erroneous decision by a district court

on an issue so central to the posture of the case would

result in reversal. Therefore, as did the Seventh Circuit

in Obron, this Court believes that standing is a ‘‘controll-

ing question’’ in antitrust cases

In Katz, the appellate court discussed the legislative his-

tory of §1292(b). Judge Maris, in his testimony before

Congress, suggested that ‘ ‘controlling’ means serious to

the conduct of the litigation, either practically or legally.’’

496 F.2d at 755. As explained above, the Section 4 standing

12a

issue has serious legal import in this antitrust case. It also

has significant practical impact on the duration of the case.

If plaintiff does not have the right to pursue treble dam-

ages, the trial in this case will undoubtedly be considerably

shorter. This is a very important consideration in a district

court’s decision to certify, as recognized in Katz. ‘‘ (S)av-

ing of time of the district court and of expense to the liti-

gants was deemed by the sponsor to be a highly relevant

factor (in certifying an appeal).’’ 496 F. 2d at 755. Since

this issue controls both the legal and practical facets of the

case, this Court holds that the first criterion of § 1292(b)

is satisfied.

Second, the statute states that the issue to be certified

must offer ‘‘substantial ground for difference of opinion’’

as to its correctness. 28 U.S.C. § 1292(b). As the Court of

Appeals noted this requirement presents ‘‘little difficulty”’

for the district court. 496 F. 2d at 754. Here, defendants

strenuously oppose the Court’s use of the Bravman analy-

sis, which has resulted in decision that Fleer has Section

4 standing. Plaintiff, of course, supports the Bravman an-

alysis. Since the Bravman opinion is based on different

facts and can arguably be limited to standing questions

different from the one at bar, application of tha: standard

to this case is a decision which offers grounds for substan-

tial divergence of opinion.

Finally, the last statutory criterion, that an immediate

appeal will ‘‘materially advance the ultimate termination

of the litigation,’’ 28 U.S.C. § 1292(b), is also satisfied in

the instant case. As noted above, a decision contrary to this

Court’s holding would significantly shorten the length of

trial, since the treble damages issue would then be excluded.

Furthermore, due to the defendants’ intent to take a direct

appeal on the collateral estoppel issue at this time, the trial

will be postponed in any event until that appeal is decided.

Therefore, this standing appeal, which could be heard at

the same time as the collateral estoppel issue, would cer-

tainly not add any further delay to the progress of trial.

13a

Since this issue of standing clearly satisfies the criteria

of § 1292(b), as the Seventh Circuit found in a similar case,

Obron v. Union Camp Corp., supra, it will be certified for

interlocutory appeal. In all other respects, defendants’ mo-

tion for reconsideration will be denied.

/8/ Cuarence C. Newcomer, J.

Clarence C. Newcomer, J.

(Caption Omitrep 1n Printina)

Order

Anp Now, to wit, this 22nd day of September, 1977, the

defendants’ motion for reconsideration of the Court’s June

6, 1977 memorandum and order is hereby Denrp. However,

their motion for certification under 28 U.S.C. §1292(b) is

Grantep. The following question is certified for appeal

under the provisions of that statute:

Whether plaintiff Fleer Corporation has standing to

sue under 15 U.S.C. § 15 for treble damages, under the

decision in Bravman v. Basset Furniture Industries,

Inc., CCH Trade Cases 1977, paragraph 61,300, (3d

Cir. February 16, 1977).

Anp It Is So Onpenep.

/8/ CuaRENcE C. Newcomer, J.

Clarence C. Newcomer, J.