Appendix — J. Truett Payne Co. v. Chrysler Motors Corp.

Supreme Court, U.S.

FILED

JUN 1@ 1980

IN THE RODAK, 38... CLERAS

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19__.

J. TRUETT PAYNE COMPANY, INC.,

a corporation,

Petitioner

Vs.

CHRYSLER MOTORS CORPORATION,

a corporation,

Respondent.

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES.COURT OF APPEALS

Morris K, SiroTE

2222 Arlington Avenue, South

Birmingham, Alabama 35205

(205) 933-7111

Counsel for Petitioner

Of Counsel:

SIROTE, PERMUTT, FRIEND, FRIEDMAN,

HeELp & Apo.insky, P.A.

2222 Arlington Avenue, South

Birmingham, Alabama 35205

(205) 933-7111

TABLE OF CONTENTS

Fifth Circuit Opinion

Fifth Circuit Denial of Rehearing

District Court Judgment

Charts

15 U.S.C. §13

15 U.S.C. §15

28

29

INTRODUCTION

The abbreviation used throughout

the Charts,

forth below:

C/L -

CEN. -

Diff. and

Difference-

El. -

JTP -

Obj. -

P.U. ~

Pur. -

Reb. °

ROE. ~

VEST .

W/S -

pages 10 through 27, are set

Car Line

Central Motors

Price Differential to J. Truett

Payne

Eligible

J. Truett Payne

Objective

Per Unit

Purchase

Rebate

Roebuck Chrysler-Plymouth

Vestavia Chrysler-Plymouth

Wholesale

CHRYSLER CREDIT CORP.

CHRYSLER CREDIT CORPORATION,

a corporation, Plaintiff,

v.

J. TRUETT PAYNE, INC., etc., et al.,

Defendants-Third Party

Plaintiffs-Appellees,

v.

CHRYSLER MOTORS CORPORA-

TION, a corporation, Third Party De-

fendant-Additional Party Defendant-

Appellant.

No. 77-2331.

United States Court of Appeals,

Fifth Circuits

Dec. 7, 1979.

Former automobile dealership

brought action against automobile

wholesaler alleging price discrimination

in violation of Robinson-Patman Act.

The United States District Court for

the Northern District of Alabama, Sey-

bourne H. Lynne, J., entered judgment

for dealership, and wholesaler appealed.

The Court of Appeals, Frank M. John-

son, Jr., Circuit Judge, held that since

dealership failed to introduce substantial

evidence of injury attributable to alleged

discriminatory incentive programs of

wholesaler, much less substantial evi-

detice of amount of such injury, dealer-

ship failed to establish case entitling it

to recover treble damages.

Reversed and remarded with di-

rections.

1. Monopolies @=28(9)

In order to recover treble damages

under provision of Clayton Act, plaintiff

a

v. J. TRUETT PAYNE, INC. 1530

must prove a violation of antitrust laws,

cognizable injury attributable to viola-

tion, and at least the approximate

amount of damage. Clayton Act, § 4, 15

U.S.C.A. § 15. ,

2. Trade Regulation #929

Former automobile dealership failed

to introduce substantial evidence of inju-

ry attributable to alleged discriminatory

incentive programs of automobile whole-

saler,. much less substantial evidence of

amount of such injury, in action against

automobile wholesaler for price discrimi-

nation in violation of Robinson-Patman

Act. Clayton Act, § 2(a) as amended by

Robinson-Patman Price Discrimination

Act, 15 U.S.C.A. § 18(a).

3. Monopolies *28(7.6)

Conclusory statements by plaintiff,

without evidentiary support, as to fect of

damage caused by alleged antitrust vio-

lation are nct sufficient ‘o entitle plain-

tiff to recover treble damages under

Clayton Act. Clayton Act, § 4, 15 U.S.

C.A. § 15.

4. Trade Regulation e929

Evidence of a slight decrease in

market share roughly coincident with al-

leged violation of Robinson-Patman Act

is not sufficient to entitle plaintiff to

recover treble damages under Clayton

Act. Clayton Act, § 2(a) as amended by

Robinson-Patman Price Discrimination

Act, 15 U.S.C.A. § 18a); Clayton Act,

§ 4, 15 U.S.C.A. § 15.

5. Trade Regulation e929

Mere proof of alleged price discrimi-

nation in violation of Robinson-Patman

Act is insufficient to establish injury by

reason of antitrust violation entitling

plaintiff to damages. Clayton Act,

§ 2(a) as amended by Robinson-Patman

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1979, by WEST PUBLISHING co.

1531

Price Discrimination Act, 15 U.S.C.A.

§ 13(a).

6. Monopolies e=28(9)

Antitrust laws do not provide a

damages remedy for all losses traceable

to conduct violating antitrust laws, only

for losses that are part of anticompeti-

tive effect of such conduct. Clayton

Act, § 4, 15 U.S.C.A. § 15.

7. Trade Regulation e913

Price discrimination which threatens

competition but which has not caused

any actual competitive injury may be

held to violate Robinson-Patman Act

even though it will not support an action

for damages. Clayton Act, § 2a) as

amended by Robinson-Patman Price Dis-

crimination Act, 15 U.S.C.A. § 13(a).

& Trade Regulation e=93)

In order to recover damages for vio-

lation of Robinson-Patman Act, plaintiff

must show more than just a threat of

antitrust injury. Clayton Act, § 2a) as

amended by Robinson-Patman Price Dis-

crimination Act, 15 U.S.C.A. § 12a).

9. Trade Regulation e929

In antitrust action for alleged viola-

tion of Robinson-Patman Act, burden of

proving amount of damages is less 3e-

vere than burden of proving cognizable

injury; however, plaintiff must put

forth substantial evidence and burden is

not satisfied by mere speculation or

guesswork. Clayton Act, § 2a) as

amended by Robinson-Patman Price Dis-

crimination Act, 15 U.S.C.A. § 13(a).

1. Section 2(a) of the Clayton Act, as amended

by the Robinson-Patman Act, 15 U.S.C.

§ 13(a), provides in part as follows:

“It shall be unlawful for any person engaged

in commerce, in the course of such commerce,

either directly or indirectly, to discriminate in

price between different purchasers of com-

= Dus

CHRYSLER CREDIT CORP. v. J. TRUETT PAYNE, INC.

10. Trade Regulation @=929

A price difference in violation of

Robinson-Patman Act, without more,

does not indicate amount of lost sales or

profits for purposes of recovery of dam-

ages. Clayton Act, § 2(a) as amended by

Robinson-Patman Price Discrimination

Act, 15 U.S.C.A. § 13a).

11. Trade Regulation e929

Self-serving or unsupported assump-

«tions cannot sustain a calculation of go-

ing concern value in an action for price

discrimination in violation of Robinson-

Patman Act. Clayton Act, § 2a) as

amended by Robinson-Patman Price Dis-

crimination Act, 15 U.S.C.A. § 13a).

Appeal from the United States Dis-

trict Court for the Northern District of

Alabama.

Before GODBOLD, RONEY and

FRANK M. JOHNSON, Jr., Circuit

Judges.

FRANK M. JOHNSON, Jr., Circuit

Judge:

This is an appeal from a treble dam-

ages judgment awarded against Chrysler

Motors Corporation for price discrimina-

tion in violation of section 2a) of the

Clayton Act, as amended by the Robin-

son-Patman Act.!

modities of like grade and quality . ,

where the effect of such discrimination may be

substantially to lessen competition or tend to

create a monopoly in any line of commerce, or

to injure, destroy, or prevent competition with

CHRYSLER CREDIT CORP. v. J. TRUETT PAYNE, INC.

From January 1970 through August

1974, the period at issue, Chrysler Motors

was a wholly owned subsidiary of Chrys-

ler Corporation, engaged in wholesaling

Chrysler-Plymouth automobiles to retail

dealerships throughout the country. J.

Truett Payne, Inc., was one of four such

‘dealerships in the Birmingham, Alabama,

area.

Payne went out of business in May

1974. In September 1974, Chrysler Cred-

it Corporation filed suit for the recovery

of certain unrepaid loans. Part of

Payne’s response was the filing of this

price discrimination claim against Chrys-

ler Motors.

Payne alleged that as a result of cer-

tain discriminatory sales incentive pro-

grams conducted by Chrysler Motors

among its dealerships in the Birmingham

‘area, Payne had been forced to pay high-

er prices for Chrysler automobiles than

had its competitors. Payne claimed that

because of the higher prices it lost sales

and profits, and was eventually forced

out of business. Payne sought treble

damages under section 4 of the Clayton

Act.?

. In defense, Chrysler Motors main-

tained that the sales incentive programs

were available on a non-discriminatory

basis to all Chrysler dealerships in the

Birmingham area, including Payne, and

denied that they had had an adverse ef-

fect on competition or that they had in-

jured Payne.

The district judge severed trial of this

Chrysler Motors issue from trial of the

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

provides as follows:

“Any person who shall be injured in his

business or property by reason of anything

forbidden in the antitrust laws may sue there-

for in any district court of the United States in

= Den

1532

Chrysler Credit issues. Testimony was

taken for six days. Chrysler’s motions

for a directed verdict made at the close

of Payne’s case and at the close of all

the evidence were denied. The jury

reached a verdict and award against

Chrysler of $111,247.48 (Payne had asked

for $180,000), which the court trebled.

Chrysler’s motion for judgment notwith-

standing the verdict or for a new trial

was denied, and Chrysler filed this ap-

peal.

[1] It is well established that in order

to recover treble damages under section

4 of the Clayton Act, a plaintiff most

prove (1) a violation of the antitrust

laws, (2) cognizable injury attributable

to the violation, and (3) at least the ap-

proximate amount of the damage. Lar-

ry R. George Sales Co. v. Cool Attic

Corp., 587 F.2d 266, 270 (5th Cir. 1979);

Kestenbaum v. Falstaff Brewing Corp.,

514 F.2d 690, 694 (5th Cir. 1975), cert.

denied, 424 U.S. 943, 96 S.Ct. 1412, 47

L.Ed.2d 349 (1976); Terrell v. Household

Goods Carriers’ Bureau, 494 F.2d 16, 20

(5th Cir.), cert. dismissed, 419 U.S. 987,

95 S.Ct. 246, 42 L.Ed.2d 260 (1974).

{2] We find it unnecessary to con-

sider whether Payne proved that the

Chrysler incentive programs violated the

Robinson-Patman Act. Because Payne

failed to introduce substantial evidence

of injury attributable to the programs,

much less substantial evidence of the

amount of such injury, the district court

the district in which the defendant resides or is

found or has an agent, without respect to the

‘amount in controversy, and shall recover

threefold the damages by him sustained, and

the cost of suit, including a reasonable attor-

ney’s fee.”

erred in refusing Chrysler’s motions for

directed verdict and in denying Chrys-

ler’s motion for judgment notwithstand-

ing the verdict.

I. “Cognizable Injury

To show that Chrysler’s incentive pro-

grams caused it to lose sales, Payne in- .

troduced the unsupported testimony of J.

Truett Payne, its owner, that customers

and salesmen had told him that the deal-

ership was being undersold, and that

some salesmen had quit as a result.

Payne also introduced evidence showing

that its share of retail Chrysler-Plym-

outh sales in the Birmingham area was

24% in 1970, 27% in 1971, 28% in 1972,

and 25% in 1978. Payne contends that it

was proper to infer that the 4% drop in

1972 was a result of the incentive pro-

gram.’

To show lost profits by reason of the

programs, Payne introduced only the un-

supported testimony of Mr. Payne that

he was forced to lower prices in order to

competition and that for the same

reason the dealership had to, or possibly

had to, give greater allowances on used-

car trade-ins.

In an effort to show that the pro-

grams forced the dealership out of busi-

ness, Payne relied on merely conclusory

statements to that effect by Mr. Payne

and an expert witness.‘

3. Payne also contends that the 2% increase in

1973 was the result of a 1973 revision of the

incentive programs that resulted in sales quo-

tas more favorable toward Payne. While it is

true that certain of the incentive programs

were so revised, none of these types of pro-

grams operated in 1973. The 1973 increase

cannot be attributed to their revision.

4. The expert prefaced his statement on the is-

sue with the comment, “I really can’t tell you

without having, you know—it’s a hypothetical

question.”

CHRYSLER CREDIT CORP. v. J. TRUETT PAYNE, INC.

(3,4] Under Boeing Co. v. Shipman,

411 F.2d 365, 373-77 (5th Cir. 1969) (en

banc) (standard for directed verdict and

judgment notwithstanding the verdict),

this showing was clearly not such as to

allow the case to go to the jury. In an

antitrust action, as noted above, the

plaintiff must show that the defendant’s

conduct materially contributed to his in-

jury. Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 114 n.9, 89

S.Ct. 1562, 23 L.Ed.2d 129 (1969). He

must do so “as a matter of fact and with

a fair degree of certainty.” Terrell v.

Household Goods Carriers’ Bureau, su-

pra, 494 F.2d at 20. Conclusory state-

ments by the plaintiff, without eviden-

tiary support, as to the fact of damage

caused by the alleged antitrust violation

are not sufficient. Evidence of a slight

decrease in market share roughly coinci-

dent with the alleged violation is not

sufficient either.’ The plaintiff must

put forth substantial evidence. If he

fails to do so, the defendant is entitled to

a directed verdict. See, e. g., Comfort-

Trane Air Conditioning Co. v. Trane Co.,

592 F.2d 1373, 1888 (5th Cir. 1979); Yo-

der Brothers, Inc. v. California-Florida

Plant Corp., 587 F.2d 1847, 1871 (5th Cir.

1976), cert. denied, 429 U.S. 1094, 97

S.Ct. 1108, 51 L.Ed.2d 540 (1977); Fore-

most-McKesson v. Instrumentation Labo-

ratory, 527 F.2d 417, 418-20 (5th Cir.

5. Cf. Feminist Women’s Health Center, Inc. v.

Mohammad, 586 F.2d 530, 547 (5th Cir. 1978),

cert. filed, —— U.S. ——, 100 S.Ct. ——, ——

L.Ed.2d —-— (1979) (decrease in income, with-

out more, does not establish fact of damage).

In this case, as Mr. Payne himself testified,

there was evidence that the material cause of

the 4% decrease in market share Payne expe-

rienced in 1972 was the relocation of a com-

peting Chrysler-Plymouth dealer into Payne's

immediate sales area, and not the Chrysler in-

centive programs.

CHRYSLER CREDIT CORP.

1976); Shumate & Co. v. National Ass’n

of Securities Dealers, Inc., 509 F.2d 147,

158 (5th Cir.), cert. denied, 423 U.S. 868,

96 S.Ct. 131, 46 L.Ed.2d 97 (1975).

[5,6] Payne maintains on this appeal

that in a section 2(a) case mere proof of

the alleged price discrimination is suffi-

cient to establish injury by reason of an

antitrust violation entitling the. plaintiff

to damages. This Robinson-Patman “au-

tomatic damages” concept, as it has

come to be called, has some precedential

support. See Fowler Manufacturing Co.

v. Gorlick, 415 F.2d 1248 (9th Cir. 1969),

cert. denied, 396 U.S. 1012, 90 S.Ct. 571,

24 L.Ed.2d 508 (1970); Elizabeth Arden

Sales Corp. v. Gus Blass Co., 150 F.2d

988, 996 (8th Cir.), cert. denied, 326 U.S.

778, 66 S.Ct. 231, 90 L.Ed. 467 (1945).

But we decline to follow it. As the Su-

preme Court ruled in Brunswick Corp. v.

Pueblo Bowl-O-Mat, Inc., 429 U.S. 477,

489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977),

the antitrust laws do not provide a dam-

ages remedy for all losses traceable to

conduct violating the antitrust laws, only

for losses that are part of the anticom-

petitive effect of such conduct. When a

seller charges different prices to differ-

ent purcnasers, us alleged here, injury to

competition does not necessarily result.

Both the statute and the courts recog-

nize this. 15 U.S.C. § 18(a). See, e. g-

United States v. United States Gypsum

Co., 488 U.S. 422, 450, 98 S.Ct. 2864, 57

L.Ed.2d 854 (1978). Competition is

harmed only to the extent that the fa-

vored purchaser, by use of the discrimi-

natory price difference, actually draws

sales or profits from his unfavored com-

petitor. See, e. g., Enterprise Industries,

Inc. v. Texas Co., 240 F.2d 457 (2d Cir.),

6. Section 2(a) of the Clayton Act, as amended

by the Robinson-Patman Act, 15 U.S.C.

§ 13(a), proscribes price discrimination “where

(Emphasis added).

a ae

v. J. TRUETT PAYNE, INC.

1534

cert. denied, 353 U.S. 965, 77 S.Ct. 1049,

1 L.Ed.2d 914 (1957); Uniroyal, Inc. v.

Jetco Auto Service, Inc., 461 F.Supp. 350,

357-59 (S.D.N.Y.1978); McCaskill v. Tex-

aco, Inc., 351 F.Supp. 1882, 1341 (S.D.

Ala.1972), aff'd sub nom. Harrelson v.

Texaco, Inc., 486 F.2d 1400 (5th Cir.

1973); Handler, Changing Trends in An-

titrust Doctrines, 77 Colum.L.Rev. 979,

992-93 (1977). See also Perkins v. Stan-

dard Oil Co., 395 U.S. 642, 648-49, 89

S.Ct. 1871, 23 L.Ed.2d 599 (1969) (imply-

ing that disfavored pu: :haser must show

more than mere price difference to re-

cover damages). As discussed above,

there is no evidence, much less substan-

tial evidence, that such was the case

here.

[7,8] Payne’s reliance on FTC v. Mor-

ton Salt Co., 384 U.S. 37, 68 S.Ct. 822, 92

L.Ed. 1196 (1948), and its progeny is mis-

placed. In Morton Salt, the Supreme

Court held that a violation of Robinson-

Patman Act § 2(a) may be inferred from

a substantial price difference. 334 U.S.

at 46-47, 68 S.Ct. 822. But the showing

necessary to establish a section 2(a) vio-

lation is not the same as the showing

necessary w support a private action for

The Robinson-Patman Act is

an incipiency statute.’ Price discrimina-

tion which threatens competition but

which has not caused any actual compet-

itive injury may be held to violate the

statute even though it will not support

an action for damages. See Areeda, An-

titrust Violations Without Damage Re-

coveries, 89 Harv.L.Rev. 1127, 1127-28

(1976). See also Gottesman v. General

Motors Corp., 436 F.2d 1205, 1210 (2d

Cir.), cert. denied, 408 U.S. 911, 91 S.Ct.

2208, 29 L.Ed.2d 689 (1971) (private inju-

the effect of such discrimination may be sub-

stantially to lessen competition . . ..”

1535

ry does not necessarily accompany public

injury). What Morton Salt found infera-

ble from a substantial price difference

was a threat to competition sufficient to

violate the statute. 334 U.S. at 46-47,

68 S.Ct. 822. Even assuming that Mor-

ton Salt is still viable, it is of no help to

Payne. In order to recover damages,

Payne had to show more than just a

threat of antitrust injury. As discussed

above, it failed to do so.

II. Amount of Damage

Our conclusion that Chrysler was enti-

tled to a directed verdict is buttressed by

Payne’s failure to adequately prove the

amount of its alleged injury. .

Payne relied on its calculation of the

alleged price discrimination to establish

the amount of its alleged lost sales and

profits. There is no necessary correla-

tion, however, and Payne failed to estab-

lish one.

To indicate the going concern value of

the dealership at the time it was alleged-

ly forced out of business, Payne relied on

two alternative methods of calculation.

Under the first, Payne’s expert assumed

a good will value for the dealership of

$52,000 in 1955 and appreciated this

amount over 20 years at an annual rate

of 4%. The expert testified that the

$52,000 figure was not based on an ex-

amination of Payne’s financial state-

ments. it represented an unsupported

estimate by Mr. Payne. The 4% rate

was a rough average of the prevailing

inflation and prime interest rates from

1955. until the time Payne folded. Under

the second method, Payne's expert dis-

counted projections of what the dealer-

ship’s profits would have been if it had

continued in business free of the incen-

tive programs. The expert testified that

he did not take into account local market

changes or conditions. The projections

=6-

CHRYSLER CREDIT CORP. v. J. TRUETT PAYNE, INC.

were apparently nothing more than some .

of Payne’s past earnings roughly adjust-

ed according to Chrysler’s performance

nationwide or the performance of the

automobile industry in general. If

Chrysler or the industry had a good year

it was assumed, without an explanation

why, that Payne would have a good year

also.

[9-11] As was the case with Payne’s

fact of damage evidence, this showing

was clearly not such as to allow the case

to go to the jury. In an antitrust dam-

ages action, as noted above, the plaintiff

must establish the amount as well as the

fact of damage. The burden of proving

the amount of damage is less severe

than the burden of proving the cogniza-

ble injury. See, e. g., Story Parchment

Co. v. Patterson Parchment Co., 282 U.S.

555, 562, 51 S.Ct. 248, 75 LEd. 544

(1981); Terrell v. Household Goods Car-

riers’ Bureau, supra, 494 F.2d at 23—24.

But the plaintiff must put forth substan-

tial evidence. The burden is not satis-

fied by mere speculation or guess work.

See, e. g., Bigelow v. RKO Radio Pic-

tures, Inc., 327 U.S. 251, 264, 66 S.Ct.

815, 90 L.Ed. 1040 (1946); Keener v.

Sizzler Family Steak Houses, 597 F.2d

453, 457 (5th Cir. 1979). Payne failed to

meet this burden. A price difference

without more does not indicate the

amount of lost sales or profits. Self-

serving and unsupported assumptions

cannot sustain a calculation of going

concern value. On this ground as well,

Chrysler was entitled to a directed ver-

dict. See, e. g., Kestenbaum v. Falstaff

Brewing Corp., supra, 514 F.2d at 695;

Copper Liquor, Inc. v. Adolph Coors Co.,

506 F.2d 934, 953-55 (5th Cir. 1975).

The district court is directed to enter

judgment for Chrysler.

REVERSED AND REMANDED

WITH DIRECTIONS.

~ =

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 77-2331

U.9. COURT OF 49@RALS

m0) =

ow

_-_—-—— ~

CHRYSLER CREDIT CORPORATION,

° A Corporation, “ano » 060

Plaintiff,

versus GILBERT, &. GANUCHEAU

. J. TRUETT PAYNE, INC., ETC., ET AL.

Defendants-Third Party Plaintiffs,

Appellees,

versus

CHRYSLER MOTORS CORPORATION,

A Corporation,

Third Party Defendanc-Additional

Party Defendanc-Appellant.

Appeal from che United States District Court for the

Northern District of Alabama

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion December 7, 1979, 5 Cir., 197_, F.2d )»

( March 18, 1980 )

of Before GODBOLD, RONEY and FRANK M. JOHNSON, JR., Circuit Judges.

PER CURIAM:

( My the Pecition for Rehearing is DENIED and the Court having been

polled at the request of one of the members of the Court and a majority of

the Circuit Judges who are in regular active service not having voted in

favor of it, (Rule 35 Federal Rules of Appellace Procedure; Local Fifth

Circuit Rule 16) the Pecition for Rehearing En Banc is also DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

—

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA. SOUTHERN DIVISTON

CHRYSLER CREDIT CORPORATION,

a corporation,

Plaintiff,

vs.

J. TRUETT PAYNE CO., INC.,

a corporation: J. TRUETT

PAYNE; BLANCHE P. PAYNE,

CIVIL ACTION

NO. 74-L-891-s

34 Party

Plaintiffs,

PRED W CLES OFFICE

CHRYSLER MOTORS CORPORATION, : NOMTWERN OIETREGT OF ALARAmA

a corporation,

34 Party Defendant APR 2 8 1977

Additional

a a meme

On March 23, 1977, the jury to which this action was

tried returned the following verdict:

“We, the jury, find for the defendants and third- _

party plaintiffs, J. Truett Payne Co., Inc., a corpora-

tion, J. Truett Payne, Blanche P. Payne, and against

the third-party defendant, Chrysler Motors Corporation,

@ corporation, and assess their damages at $111,247.48."*

Pursuant to the provisions of 15 U.S.C. § 15, the

single damages found by the jury are trebled.

Counsel stipulated that a reasonable attorney's fee vas

to be determined by the Court without the intervention of a jury.

By separate order on application of J. Truett Payne Co., Inc., for

attorneys’ fees and reimbursement of out-of-pocket expenses, the

Court has awarded to such applicant reasonable at*.:neys' fees in

the amount of $40,000.

Tt is accordingly ORDERED, ADJUDGED and DECREED by the

° In the course of the pleadings in this action, the Court

treated the third-party complaint against Chrysler Motors Corpora-

tion as a counterclaim against Chrysler Credit Corporation, the

original plaintiff, to which counterclaim Chrysler Motors Corpora-

tion was added as an additional defendant therein.

Court that the defendants and third-party plaintif£, J. Truett

Payne Co., Inc., a corporation, have and recover of the thicé-

party defendant, Chrysler Motors Corporation, a corporation,

the sum of THREE HUNDXED THIRTY-THREE THOUSAND, SEVEN SUNDRED

PORTY-TWO AND 44/100 DOLLARS ($333,742.44), together with a

reaso. \ble attorney's fee in the amount of $40,000, and the

2 costs of court incurred herein.

DOWE this 28th day of April, 1977.

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act: i8. &.S.C.aA. §213:

§ 13. Discrimination in price, services, or facilities—Price;

selection of customers

(a) It shall be unlawful for any person engaged in commerce, in

the course of such commerce. either directly or indirectly, to dis-

criminate in price between different purchasers of commouities of

like grade and quality, where either or any of the purchases involved

in such discrimination are in commerce, where such commodities are

sold for use, consumption, or resale within the Uniced States or any

Territory thereof or the District of Columbia or any insular posses-

sion or other place under the jurisdiction of the United States, and

where the effect of such discrimination may be substantially to lessen

competition or tend to create a monopoly in any line of commerce, or

to injure, destroy, or prevent competition with any person who either

grants or knowingly receives the benefit of such discrimination, or

with customers of either of them: Provided, That nothing herein con-

tained shall prevent differentials which make only due allowance

for differences in the cost of manuZacture, sale, or delivery result-

ing from the differing methods or quantities in which such com-

modities are to such purchasers sold or delivered: Provided, however,

That the Federal Trade Commission may, after due investigation

and hearing to all interested parties, fix and establish quantity lim-

its, and revise the same as it finds necessary, as to particular com-

modities or classes of commodities, where it finds that available pur-

chasers in greater quantities are so few as to render differentiais on

account thereof unjustly discriminatory or promotive of monopoly in

any line of commerce; and the foregoing shall then not be construed

to permit differentials based on differences in quantities greater than

those so fixed and established: And provided further, That nothing

herein contained shall prevent persons engaged in selling goods,

wares, or merchandise in commerce from selecting their own cus-

tomers in bona fide transactions and not in restraint of trade: and

provided further, That nothing herein contained shail prevent price

changes from time to time where in response to changing conditicns

atfecting the market for or the marketability of the goods concerned,

such as but not limited to actual or imminent deterioration of perish-

able goods, obsolescence of seasonal goods, distress sales ‘inder court

process, or sales in good faith in discontinuance of business in the

goods concerned.

BDurven ef rebutting prima-(ucie ene of dincrimination

(4) Upon proof being made, at any hearing on a complaint uncer

this section, that there has been discrimination in price or services

or facilities furnished, the burden of rebutting the prima-facie case

thus made by showing justification shall be upon the person charged

with a violation of this section, and unless justification shali be

affirmatively shown, the Commission is authorized to issue an order

terminating the discrimination: Provided, however, That nothing

herein contained shal! prevent a seller rebutting the prima-facie case

thus made by snowing that his lower price or the furnishing of serv-

ices or facilities to any purcnaser or purchasers was made in good

faith to meet an equaily low price of a competitor, or the services or

tacilities furnished by a competitor.

Payment or aceeptunce of comminsion. brokerue or

ether compensation

(ce) It shall be uniawful for any person engaged in commerce, in

the course of such commerce, to pay or grant. or to receive or accept,

anything of value as a commission, brokerage, 2r other compensaticn,

or any allowance or discount in lieu therecf, except for services

—

a a re

FOL OL I LT

9 at ST RT ne eee

-29-—

rendered in connection with the sale or purchase of sooris, wares, or

merchandise, either to the other party to such transaction or to an

agent, representative, or other .ntermediar; therein where such

intermediary is acting in fact for or in behalf, or is subject to the

direct or indirect control, of any party to such transaction other than

the person by whom such compensation is so stanted or paid,

Payment tor servieus of facilities for processing or saie

(d) It shall be unlawful for any person engaged in commerce to

pay or contract for the payment of anything of value to or for the

benefit of a customer of such person in the course of such commerce

as compensation or in consideration for any services or facilities

furnished by or through such customer in connection with the proc-

essing, handling, saic, or offering for sale of any products or com-

modities manufactured, solid, or offered for sale by.such person, un-

less such payment or consideration is available on proportionally

equal terms to all other customers competing in the distribution of

such products or commodities.

Furnishing services or facilities for Drewensing, handling, ete.

(e) It shall be unlawful for any person to discriminate in favor of

one purchaser against another purchaser or purchasers of a com-

modity bought for resale, with or without processing, by contracting

to furnish or furnishing, or by contributing to the furnishing of,

any services or facilities connected with the processing, handling,

sale, or offering for sale of such commodity so purchased upon terms

not accorded to al] purchasers on proportionally equal terms.

Kaewingiy iaducing or reeeiving discrimiaatery price

(f) It shall be unlawful for any person engaged in commerce, in

the course of suck commerce, knowingly to induce or receive a dis-

crimination in price which is prohibited by this section.

Oct, 15, 1914, c. 323, § 2 28 Stat. 730: June 19, 1936, ¢. 592, § 1, 49

Stat. 1326.

Section 4 of the Clayton Act, 15 U.S.C.A. 515:

§ 15. Suits by persons injured; amount of recovery |

i i is business or property oy

Any person who shall be injured in his f

reason of anything forbidden in the antitrust laws may sue therefor

in any district court of the United States in the district in which the

defendant resides or is found or has an agent, without respect to

the amount in controversy, and shall recover threefold che damages

by him sustained, and the cost of suit, including a rvasonatle at-

torney’s fee.

Oct. 15, 1914, ¢. 323, § 4, 38 Stat. 731..