Reply Brief — Haddad v. Crosby Corp.

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IN THE

Supreme Court of the Anited States

OCTOBER TERM 1978

No. 78-375

GENEVIEVE M. HaApDDapD,

Petitioner,

VS.

THE CROSBY CORPORATION, ET AL.,

Respondents.

REPLY BRIEF FOR PETITIONER

PURSUANT TO SUPREME COURT RULE 24(4)

Genevieve M. Haddad hereby respectfully submits

her reply brief pursuant to Supreme Court Rule 24(4) as

follows:

The respondents assert that: “This Case Does Not

Present a Question Suitable for the Granting of a Writ of

2

Certiorari.”” We demur, most emphatically. With the line

of cases of which United States v. National Association of

Securities Dealers, 422 U.S. 694 (1975) and Continential

T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977) are

characteristic, this Court has begun a careful, case-by-case

re-examination of the applicability of the per se doctrine to

vertical inter-relationships and, more fundamentally, the

competitive impact of various vertical arrangements there-

tofore wholly, and uncritically, beyond the pale.

Here, the lower courts have taken some Delphic

references to horizontal conduct in this Court’s N.A.S.D.

opinion and escalated them to carte[|] blanche for

industry horizontal anti-competitive conduct (per se or

no)1 despite a clear Congressional mandate to the con-

trary,2 when there is arguable regulatory agency jurisdic-

tion.

Petitioner notes with some surprise respondents’

apparent reversal in contention; now that the horizontal

restraints of the secondary markets, alleged in Count I of

1As this Court has noted in prior opinions, where courts of

appeal have misapplied, misconstrued or misconcieved a prior Su-

preme Court opinion, it is appropriate to grant the petition for writ of

certiorari. See Schlude v. Commissioner, 372 U.S. 128 (1963);

Wilkinson v. United States, 365 U.S. 399 (1961). Furthermore,

where, as here, the decision of the court of appeals is based upon a

point expressly reserved in a prior Supreme Court opinion or upon a

point in need of clarification, it is equally appropriate to grant the

petition. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543

(1976); S.E.C., v. United Benefit Life Ins. Co., 387 U.S. 202 (1967);

Federal Trade Commission v. Travelers Health Association, 362 US.

293 (1960); Ickes v. Virginia-Colorado Development Corp., 295 US.

639 (1935).

2 See 15 U.S.C. §780-3(b)(8).

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the Government Complaint in N.A.S.D., were not effec-

tively withdrawn? by the government. At the oral argu-

ment before this Court in N.A.S.D., respondents’ liaison

counsel argued forcefully that the Government’s Count I

claim was nothing more than a non-case.4

The distinction this Court has attempted to make

between permissible intra-product conduct which might

have a net pro-competitive impact and traditional com- .

binations, contracts, and conspiracies between competitors

has plainly not been observed. This case is a suitable

vehicle to that useful end.

WHEREFORE, for the foregoing reasons, as, well as

those already presented in our Petition for Writ of Certior-

ari, Haddad respectfully requests this Court to grant her

petition for a writ of certiorari.

Respectfully submitted,

Attorneys for the Petitioner

EUGENE J. METZGER

CaRL W. SCHWARZ

METZGER, SHADYAC &

SCHWARZ

One Farragut Square South

Washington, D.C. 20006

3 See Record at 50, United States y. National Association of

Securities Dealers, 422 U.S. 694 (1975) [hereinafter ““Record’’]

where respondents’ liaison counsel, Mr. Loevinger, stated that:

they [the Government] have now retreated from that allega-

tion [horizontal restraints by the brokers] and thereby

substantially withdrawn their count one charges.

He noted further that:

[t]here is a formal allegation to this effect [suppression of a

secondary market through brokers], but in fact it has been

largely abandoned.

Record at 49-50 .

4 Record at 50.