# Petition — David Orgell, Inc. v. Josiah Wedgwood & Sons, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 914

## Text

FILED
80-1706
Ts cendeninne

APR 20 1981

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

DAviD ORGELL, INC.,

Petitioner,
v.
JOSIAH WEDGWOOD & Sons, INC.,
Respondent,
and
GEARY’S STORES, INC.,
BACCARAT, INC., BUCCELATTI,
INc., and CERALENE, INC.,
Defendants.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT

ALLAN GABRIEL
Ervin, COHEN & JESSUP
9401 Wilshire Boulevard
Ninth Floor
Beverly Hills, California 90212
(213) 273-6333

BERNARD REICH
10100 Santa Monica Boulevard
Los Angeles, California 90067
(213) 272-4627

Counsel for Petitioner

PANDICK PRESS, WEST COAST, 1945 S. FIGUEROA, LOS ANGELES, CALIFORNIA (213) 747-4321

QUESTION PRESENTED

Whether summary judgment on the basis of the statute of
limitations may be granted in favor of a manufacturer of
products in the face of a continuing conspiracy and concerted
refusals to deal both prior to and within the limitations period
and absent any indication that plaintiff's business was immedi-
ately and permanently destroyed, on the theory that repeated
refusals to deal over ten years subsequent to the original refusal
were merely reaffirmations of the original refusal?

+.

TABLE OF CONTENTS
PAGE
re ir eRe IEP sncsntssninsiscccnnscnnbscnsodenstnseeceinindensabnmeitioks i
UU IND "sisi aha a celaen nied amo nedladichalainianiaeaniation 2
IIIT TITITET, ssnississtestsssnliisiiccssagiotnmateibiietidsgpioddahitenuadademsalecaniaubanmanian 2
STATUTORY PROVISIONS INVOLVED .....0.......ccccccccccesesceeeeee 2
EE AE BREE Gli inschscntssesincervesindestncidaaneninailesnsiuansbial 3
REASONS FOR GRANTING THE WRIT.............ccccccccccceeeceeeees 5

1. The Court of Appeals, In Affirming the Granting of
Summary Judgment by the District Court on the Basis of
the Statute of Limitations, May Have Ignored its Own
Precedents, and Misapplied the Limitations Statute to
Grant the Respondent an Interminable Immunity from
SD FNS BGs chiciceerecsttcinstessncsaresitcassansnipineminiienss 6

Il. The Ninth Circuit’s Application of the Statute of Limita-
tions Conflicts With Decisions of the Third, Fifth and
SEE TEUINUUID ickisunisnicssnintnhancasinnindaehanebbeiaaundagbisnsigeincath 10

Oa IES scnissvtcivnsvtetsinrebunsbnkapisentustaniaionanciiabiniaiandiadoevenminagans 11

TABLE OF AUTHORITIES
CASES PAGE
Braun v. Berenson, 432 F.2d 538 (Sth Cir. 1970) .....cccccccceceeeees 10
Hanover Shoe, Inc. v. United Shoe Mach. Corp., 329 U.S. 481
CIEE i sicchisidinindesessnschiitannaded cuisduiestaipndesesinbisoiaieteiaabaniiadalaniinainesaniban 9
Harold Friedman, Inc. v. Thorofare Markets, Inc, §87 F.2d 127
CE FeO eccnecenersinacicipimsieeciedladstaicesiingniadeeihesumpseonnes 10
Imperial Point Colonnades Condominius v. Mangurian, 549
F.2d 1029 ( Sth Cir. ), cert. denied 434 U.S. 859 (1977) ............ 10

In Re Multidistrict Vehicle Air Pollution v. General Motors Corp.,
591 F.2d 68 ( 9th Cir. ), cert. denied 444 U.S. 900 (1979)
sincaahieviatiaaispeiciaialdehaaideabibaindiiiaadibinaciaadatiamdaeanal 6, 7, 8,9, 10

Pioneer Co. Inc. v. Talon, Inc., 462 F.2d 1106 (8th Cir. 1972) .... 10

Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d

117 (Sth Cir.) cert. denied 423 U.S. 1054 (1976)........... 7, 8,9, 10
Program Engineering, Inc. v. Triangle Publications, Inc., 634
Fae COREE CU ele WIE PV citeuicnsesatsniciémscnanssiabiibaiiaberaittbedinsmnaiins 9
Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512 F.2d
Se GWOT SP anisseinicvicnsessieiianssianshsecaniniteniaiogenesannidiniaaiiessehinaiimiannti 9,10
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321
CPP E bicivcsissistcnunssiassinssenchsaabeiuianieishineiademumnciadiadsinaabpaiaahideeheaiaiotii 7
STATUTES
Clayton Act, Sections 4 and 16, U.S.C. §§ 15, 26........cccccceeeeee 1 4
Clayton Act, Section 4B, 15 U.S.C. § 150 B) occ eeceeteeeeeeeee 4,10
Sherman Act, Section 1, 15 U.S.C. § 1 ausaiaaibiaies i
Fe rien RE 8 P inissesschiiininnsttnasrntingunecnnapetunstnsensinisapiitnminiomesenbiods 2
RULES

Federal Rules of Civil Procedure, Rule 54( b).............cccccceeeeeees 2, 4

iv

INDEX TO APPENDIX

PAGE

CIRCUIT COURT’S MEMORANDUM OF JANUARY 19,
1981, AFFIRMING DISTRICT COURT’S ORDER AND
JUDGMENT OF JANUARY 10, 1979, GRANTING SUM-
BEATE Pe ePIN ETD cccecansconsncsssnssocanmniowstcnensaessonienecescensonsveseesaeee

CIRCUIT COURT’S ORDER OF MARCH 16, 1981 THAT
CIRCUIT COURT’S JANUARY 19, 1981 MEMO-
RANDUM BE PUBLISHED AS AN AUTHORED OPIN-

DISTRICT COURT’S ORDER OF OCTOBER 19, 1978
GRANTING WEDGWOOD’S MOTION FOR SUMMARY
PAPI IIES © ietstessetniiscsserenecnsnninteninmiantevinrestinuiamnienatanenmanneeens

DISTRICT COURT’S STIPULATION AND ORDER OF
EO REEIES By. BO Fi cessrsisesenccvcscnsnssnascooobionavscnseesenmbonpnaviooieotonsese

DISTRICT COURT’S ORDER AND JUDGMENT OF
JANUARY 9, 1979, DISMISSING THE COMPLAINT AS
TO WEDGWOOD WITH PREJUDICE ..........:cccceccccssesesseseeeees

CIRCUIT COURT’S JUDGMENT OF JANUARY 19, 1981,
AFFIRMING DISTRICT COURT’S ORDER AND JUDG-
DERIST GP SAPSUART 9, BSGD csessccecesscscsonsnsescscsuscssavssesetssonssooes

WEDGWOOD'S STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDG-
BERETS CF AUKSUBT 86, 1976 ...ccccocscocvesessccecsssconvcosevsesecoovensecese

4a

Sa

8a

IN THE

Supreme Court of the United States

OcToOBER TERM, 1980

Davip ORGELL, INC.,

Petitioner,
Vv.
Josiah WEDGWOOD & Sons, INC.,
Respondent,
and
Geary’s STORES, INC.,
BACCARAT, INC., BUCCELATTI,
Inc., and CERALENE, INC.,
Defendants.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT

Petitioner David Orgell, Inc. respectfully prays that a writ
of certiorari issue to review the judgment of the United States
Court of Appeals for the Ninth Circuit entered in this proceed-
ing on January 19, 1981, affirming the summary judgment of the
United States District Court for the Central District of Califor-
nia entered on January 10, 1979, dismissing, as time barred,
petitioner’s complaint as against respondent Josiah Wedgwood
& Sons, Inc. for violation of Sections 4 and 16 of the Clayton
Act, U.S.C. §§15, 26 and Section | of the Sherman Act, 15
U.S.C. §1, predicated upon respondent’s and defendants’ al-
leged continuing conspiracy and concerted refusal to deal with
petitioner.

2
OPINION BELOW

The January 19, 1981, unsigned memorandum of the court
of appeals announcing the judgment at issue appears in the
appendix hereto (“App.”) at la. The court of appeals
memorandum will be published as an opinion pursuant to an
order of the court of appeals filed on March 16, 1981, which
order appears at App. 4a. The unpublished order of the
district court entered October 20, 1978, granting respondent
Wedgwood’s motion for summary judgment appears at App.
5a. The unpublished stipulation and order of the district court
filed December 1, 1978, whereby the parties stipulated that
upon affirmance on appeal of the summary judgment the
district court shall dismiss the complaint with prejudice against
all defendants appears at App. 8a. The unpublished order and
judgment of the district court entered January 10, 1979, dis-
missing petitioner’s complaint with prejudice and entering final
judgment for respondent pursuant to Federal Rules of Civil
Procedure, Rule 54(b) appears at App. Ila.

JURISDICTION

The judgment of the court of appeals sought to be
reviewed by this petition was entered on January 19, 1981 and
appears at App. 13a. This Court’s jurisdiction is invoked under
28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED
Section 1 Sherman Act, 15 U.S.C. §1:

“Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce
among the several States, or with foreign nations, is declared to
be illegal. . .”

3

Section 4 Clayton Act, 15 U.S.C. §15:

Any person who shall be injured in his business or property
by 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. . .”

Section 4B Clayton Act, 15 U.S.C. §15b:

“Any action to enforce any cause of action under sections
15... of this title shall be forever barred unless commenced
within four years after the cause of action accrued. . .”

STATEMENT OF THE CASE

Petitioner David Orgell, Inc. (“Orgell”), owns several
retail stores which sell silver, china and crystal in the Los
Angeles, California area.1 Respondent Josiah Wedgwood &
Sons, Inc. (“Wedgwood”) is in the business of selling china,
dinnerware and jasperware to retail stores throughout the
world. The principal competitor of Orgell in the Beverly Hills,
California area, in which Orgell is located, is respondent
Geary’s Stores, Inc. (“Geary’s”’). Geary’s is a customer of
Wedgwood and of the other defendants.

Commencing in 1965, Wedgwood denied requests by
Orgell to purchase the Wedgwood line of products, which
refusal to deal was reiterated in 1968. In 1972, letters were
exchanged between counsel for Orgell and Wedgwood with
respect to said refusals to deal. During the years 1976-1978,
Wedgwood, on two additional occasions, refused to deal with
Orgell.

1 All facts herein are undisputed and are set forth in the court of appeals
opinion below. Citations in this statement of the case are provided only for
quoted portions of the opinion.

4

On April 16, 1978, Orgell filed a complaint against
Geary’s, Wedgwood and the other respondents in the United
States District Court for the Central District of California for
violation of Sections 4 and 16 of the Clayton Act, 15 U.S.C.
§§ 15, 26 and Section | of the Sherman Act, 15 U.S.C. §1,
alleging that respondent and defendants had conspired with
each other and with Geary’s not to sell their products to Orgell
and agreed to favor Geary’s in connection with the sale of their
products.

On August 18, 1978, Wedgwood filed a motion for sum-
mary judgment, invoking the provisions of Section 4B of the
Clayton Act, 15, U.S.C. § 15b and contending that Orgell had
not commenced suit within four years after the cause of action
accrued.2 On October 19, 1978, the district court granted
Wedgwood’s motion for summary judgment, finding that
“plaintiff, as a result of Wedgwood’s continuing refusals suf-
fered no new injury... [and]... that the last act causing injury
occurred as a result of Wedgwood’s initial 1965 refusal to deal
with the plaintiff, and that each time Wedgwood repeated the
refusal, it was a reaffirmation of the original decision not to deal
with the plaintiff.” App. 7a.

Pursuant to stipulation of the parties and order of the
district court, the district court indicated its intention to direct
entry of judgment against Orgell and in favor of Wedgwood
and, further, ordered that if said judgment shall be affirmed on
appeal and become final, that the complaint would be dis-
missed with prejudice against all defendants. App. 8a-10a. On
January 10, 1979, the district court entered an order and
judgment dismissing the complaint with prejudice as to Wedg-
wood and entering final judgment for Wedgwood pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure. App. | la-
12a.

2 In support of and for purposes of its motion, Wedgwood relied solely
upon and adopted the limited facts adduced through the deposition testimony
of David Orgell, President of petitioner, App. 14a-l6a, and affidavits of
attorneys regarding the above-described exchange of letters.

On January 19, 1981, the United States Court of Appeals
for the Ninth Circuit affirmed. App. la-3a. Said court held
that “any injury to Orgell resulted from Wedgwood’s 1965
refusal to sell,” App. 3a, and that, therefore, the district court
correctly concluded that Orgell’s action was time barred.

REASONS FOR GRANTING THE WRIT

This case involves matters of substantial importance con-
cerning the application of the antitrust laws, specifically, the
propriety of transforming the statute of limitations with respect
to admitted continuing conspiracy and refusals to deal from a
statute of repose to one of continued, interminable immunity.
By the judgment and opinion sought to be reviewed in this
petition, the Ninth Circuit has effectiveiy held that a plaintiff
which suffers continuing damage from a continued exclusicn
from the market is barred net only from proving violations and
damages more than four years old, but is barred forever from
complaining of this continuing unlawful conduct.

In so ruling, the Ninth Circuit may have placed itself
squarely in conflict with its own precedential opinions as well as
those of the Third, Fifth and Eighth Circuits, which have held
that continuing refusals to deal constitute claims under the
antitrust laws unless the pre-limitations refusal to deal results in
the immediate and permanent destruction of plaintiff's business.
Additionally, the opinion and judgment below ignores the
principle established by this Court that the antitrust laws were
enacted to redress antitrust harm and protect competition, not
competitors. Restoring a uniformity among the circuits and
reiterating this well established principle warrants this Court’s
plenary review of the ruling below.

6

1. The Court of Appeals, In Affirming the Granting of
Summary Judgment by the District Court on the Basis of
the Statute of Limitations, May Have Ignored its Own
Precedents, and Misapplied the Limitations Statute to
Grant the Respondent an Interminable Immunity from the
Anti-trust Laws.

The Ninth Circuit held below that “here, any injury to
Orgell resulted from Wedgwood’s 1965 refusal to sell.”’ App.
3a. As a basis for this ruling, the court of appeals, ignoring all
cases cited by the district court, cited and misapplied to this
proceeding only one case, Jn Re Multidistrict Vehicle Air
Pollution v. General Motors Corp., 591 F.2d 68 (9th Cir. ), cert.
denied 444 U.S. 900 (1979). In In Re Multidistrict, a manufac-
turer of air pollution control devices brought an action against
several gutcmobile manufacturers alleging a conspiracy to
refuse t» purchase plaintiffs product. Plaintiff alleged overt
acts on the part of defendants in furtherance of a conspiracy to
excivde it from the market both prior to and during the four
year limitations period. The court of appeals in Jn Re
Multidistrict found that “nothing in the record indicates other
than that the 1964 decisions [not to purchase after-burner
devices from plaintiff] were irrevocable, immutable, permanent
and final. For this reason, all injury to plaintiff necessarily
results fron the 1964 rejection from the Smog Burner.” 591
F.2d at 68.

At issue were smog control devices for the 1966 car model
year. The court of appeals listed numerous facts indicating that
plaintiff itself was convinced that it was out of the market for
that model year. “Appellees had indicated clearly and irrevo-
cably an intent to look to their own devices or modifications
thereof for the 1966 model year. ... The record indicates that
AMF itself was convinced by the last quarter of 1964 that it was
out of the market.” 591 F.2d at 72. Recognizing that the record
had demonstrated that plaintiffs opportunity to enter the
market was necessarily precluded by time and that plaintiffs
actions reflected that fact, the court of appeals concluded that

7

subsequent contacts by AMF were “forlorn inquiries by one all
of whose reasonable hopes had been previously dashed.” 591
F.2d at 72. The Ninth Circuit, in the opinion below, quoted this
identical language and reached the same conclusion. App. 3a.

In Jn Re Multidistrict, supra the court of appeals discussed
in detail and followed the well defined law on this issue as
articulated in several opinions of the Fifth Circuit Court of
Appeals. Specifically, the Ninth Circuit in Jn Re Multidistrict
quoted at length from Poster Exchange, Inc. v. National Screen
Service Corp. 517 F.2d 117 (Sth Cir.), cert. denied 423 US.
1054 (1976), wherein an alleged conspiracy had excluded
plainuff from access to supplies for a period stretching beyond
the four year limitations period. In Poster Exchange, supra the
Fifth Circuit stated:

*. . . Where the violation is final at its impact, for exam-
ple, where the plaintiffs business is immediately and
permanently destroyed, or where an actionable wrong is by
its nature permanent at initiation without further acts, then
the acts causing damage are unrepeated, and suit must be
brought within the limitations period and upon the initial
act.

” ” ”

‘. . . Here, Poster complains that during the four-year
period sued upon, it has been continually injured by
Columbia’s and National Screen’s conspiratorial fore-
closure of Poster from access to supplies. Under Zenith
| Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S.
321 (1971)] we are obliged to recognize Poster’s contin-
ually accruing cause of action during this period.

“Moreover, aside from the conclusive effect of these
authorities, any other result here would, we think, improp-
erly transform the limitations statute from one of repose to
one of continued immunity. For according to Columbia's
argument, a plaintiff who suffers continuing damage from
the continued invasion of a monopoly and exclusion from

8

the market is barred not only from proving violations and

damages more than four years old, but is barred forever

from complaining of the continuing excuse [sic] of the

unlawful conduct.” 517 F.2d at 126-127.

Accordingly, the Fifth Circuit remanded for a determination as
to “whether there was, during the period sued upon, a mere
absence of dealing, or whether there was some specific act or
word precluding [ plaintiff] from obtaining supplies from | de-
fendant].” Jd

The court below failed to recognize the crucial distinction
between the “irrevocable, immutable, permanent and final,”
refusal of Jn Re Multidistrict, and refusals, which “while
perhaps unequivocal [were] not of necessity permanent.....
Poster Exchange, supra at 127. Permanency with respect to
refusals to deal clearly does not refer to the emphatic nature of
the refusing party’s negative response, but rather situations
“where the violation is final at its impact, for example, where
the plaintiff's business is immediately and permanently de-
stroyed, or where an actionable wrong is by its nature per-
manent at initiation without further acts, ...” In Re
Multidistrict, supra at 72, quoting Poster Exchange, supra at
126-127.

The undisputed evidence before the district court in this
proceeding consisted solely of deposition testimony of Orgell
which Wedgwood adopted, for purposes of its summary judg-
ment motion, as a statement of undisputed facts. App. 14a-16a.
These “facts” merely set forth the continuing refusals to deal by
virtue of the continuing conspiracy between Wedgwood and
Geary’s. They in no manner demonstrate that the “violation is
final at its impact,” that “plaintiff's business | was] immediately
and permanently destroyed,” or that the “actionable wrong
{undertaken by Wedgwood and Geary’s] is by its nature
permanent at initiation without further acts, ...” In Re
Multidistrict, supra at 72. All that is demonstrated by these
facts is Wedgwood’s repeated negative response to Orgell’s
request to purchase products, not the permanent denial of a

3 As the undisputed facts demonstrate, far from conceding that it was out
of the market, Orgell continued to make requests to purchase and was met
with refusals within the limitations period. App. 14a-16a.

9

limited business opportunity or the destruction of Orgell’s
business. Quite clearly, the court of appeals’ reliance upon /n
Re Multidistrict, in which plaintiff had only a limited opportu-
nity to sell its goods which, when refused, was gone forever, is
misplaced and ignores the precedent set by the case and the
Poster Exchange decision upon which it is predicated. It leaves
Wedgwood free to continue the conspiracy into the inter-
minable future.

The instant case may also be contrary to the Ninth Circuit's
most recent ruling in Program Engineering, Inc. v. Triangle
Publications, Inc., 634 F.2d 1188 (9th Cir. 1980), on the
propriety of granting summary judgment on the basis of the
statute of limitations in a concerted refusal to deal situation.
Plaintiff in Program Engineering filed an antitrust action alleg-
ing restraint of trade, monopolization and improper refusals to
deal. The district court dismissed on the basis, inter alia, of the
statute of limitations. The Ninth Court reversed on that issue
and stated:

“Having established that [defendant] committed cer-
tain overt acts within the limitation period, the appellants
could avert a summary judgment by showing that there is a
genuine issue of material fact relevant to whether the acts
are antitrust violations.” 634 F.2d 1194.

See also, Twin City Sportservice, Inc. v. Charles O. Finley & Co.,
512 F.2d. 1264, 1270 (1975), wherein the Ninth Circuit
rejected the statute of limitations defense quoting this Court's
statement in Hanover Shoe, Inc. v. United Shoe Mach. Corp.,
329 U.S. 481 (1968), “We are not dealing with a violation
which, if it occurs at all must occur within some specific and
limited time span. [Citation omitted.] Rather, we are dealing
with conduct which constitutes & continuing violation of the
Sherman Act and which inflicted continuing and accumulating
harm. . .” Hanover Shoe, supra at 502 n.15.

Petitioner submits that while Jn Re Multidistrict, supra
cites and is consistent with the Fifth Circuit’s Poster Exchange,
supra decision, and while Poster Exchange unquestionably

10

supports petitioner, the court below ignored Poster Exchange,
decisions of other circuits and also its own Twin City, supra
opinion only to misapply the unique and limited facts of Jn Re
Multidistrict to the more mundane refusal to deal facts of this
case. Under such circumstances, summary judgment was
improperly affirmed by the court below.

Il. The Ninth Circuit's Application of the Statute of Limita-
tions Corflicts With Decisions of the Third, Fifth and
Eighth Circuits.

As set forth hereinabove, the Fifth Circuit Court of Ap-
peals has adopted the general rule that a new cause of action
accrues with each injurious act committed against an antitrust
plaintiff. Poster Exchange, supra; see also Imperial Point
Colonnades Condominium v. Mangurian, 549 F.2d 1029, 1042
& n. 22 (5th Cir. ), cert. denied 434 U.S. 859 (1977); Braun v.
Berenson, 432 F.2d 538 (Sth Cir. 1970). The Third Circuit
Court of Appeals in Harold Friedman, Inc. v. Thorofare
Markets, Inc., 587 F.2d 127 (3rd Cir. 1978) specifically
adopted the position of the Fifth Circuit and quoted at length
from the Poster Exchange and Imperial Point decisions. 587
F.2d at 139 & n. 44, 45,

In Pioneer Co., Inc. v. Talon, Inc. 462 F.2d 1106 (8th Cir.
1972), Associate Justice Tom C. Clark, sitting by designation,
authored an opinion which held that notwithstanding pre-
limitations period refusals to deal, the subsequent refusals of
two orders placed by plaintiff within the limitations period
“were a separate cause of action and in light of the continuing
conspiracy were not barred by the statute. . .” 462 F.2d at
1108.

It is evident that the court below in this proceeding may
have not only misapplied and ignored Ninth Circuit precedents,
but issued an opinion conflicting with the Third, Fifth and
Eighth Circuits regarding the application Section 4B, 15 U.S.C.
§15b of the Clayton Act to refusal to deal situations. The

impact of this section upon continuing conspiracies and refusals
to deal must not be permitted to vary from circuit to circuit,
since the inevitable result is a crazy-quilt application of the
antitrust laws throughout the nation. To achieve the requisite
minimum of n*tionwide uniformity among the circuits, this
Court should grant certiorari.

CONCLUSION

The court below, in a rather preemptory manner. affirmed
the dismissal of an antitrust complaint by its mechanical and
incorrect application of one recent case in the same circuit. By
so doing, the Ninth Circuit Court of Appeals ignored the
continuing antitrust violations resulting from the concerted
refusal to deal, .e., the continuing injury to competition, not
merely a continuing pecuniary injury to plaintiff. By giving the
statute of limitations provision of the Clayton Act an inter-
pretation contrary to its own precedents and that of other
circuits, the Ninth Circuit Court of Appeals left matters in a
posture clearly calling for this Court’s review. Moreover, by
employing the limitations statute to immunize repetition or
continuation of violations, the opinion of the court below not
only extends the statute beyond its purpose, but also conflicts
with the policies of vigorous enforcement of public rights
through private antitrust actions. For this reason, and for all
the foregoing reasons, David Orgell, Inc., prays that this
petition for writ of certiorari be granted.

Respectfully submitted,

ALLAN GABRIEL
Ervin, COHEN & Jessup
9401 Wilshire Boulevard
Ninth Floor
Beverly Hills, California 90021
(213) 273-6333

BERNARD REICH
10100 Santa Monica Boulevard
Los Angeles, California 90067
(213) 272-4627

Counsel for Petitioner
April 20, 1981.

la

No. 79-3108 D.C. No. 78-1349
[Stamped filed January 19, 1981]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Davib ORGELL, INC.
Appellant,
Vv.

Geary’s Stores, INC.:
BACCARAT, INC.; BUCCELATTI, INC.:

and CERALENE, INC.. MEMORANDUM
Defendants,
and
Josiah WepGwoop & Sons, INc.,
Appellee.

Appeal from the United States District Court
for the Central District of California
Harry Pregerson, District Judge, Presiding
Argued and submitted, December 5, 1980

Before: CHAMBERS and TANG, Circuit Judges, and
SOLOMON, * District Judge.

David Orgell, Inc. (Orgell) appeals from a summary
judgment for Josiah Wedgwood & Sons, Inc. (Wedgwood).
We affirm.

Orgell owns several retail stores which sell silver, china,
and crystal in the Los Angeles area. Wedgwood sells china,
dinnerware, and jasperware to retail stores in many parts of the
world. Orgell’s principal competitor in Beverly Hills is Geary’s
Stores, Inc. (Geary’s), one of Wedgwood’s customers. Orgell

* Honorable Gus J. Solomon, Senior United States District Judge for the
District of Oregon, sitting by designation.

2a

contends that Wedgwood refused to sell to Orgell as the result
of a conspiracy between Wedgwood and Geary’s.

Wedgwood first refused to sell to Orgell in 1965. It again
refused to sell to Orgell in 1968. In 1972, Orgell retained a
well-known Los Angeles law firm which wrote Wedgwood that
its refusal to sell to Orgell had antitrust implications. Wedg-
wood’s attorney denied that Orgell had any grounds for
complaint. On at least two occasions in 1976 and 1977. Orgell
requested the opportunity to buy the Wedgwood line, but both
times Wedgwood refused to sell.

On April 16, 1978, Orgell filed this action in the district
court. It alleged that Wedgwood together with Geary’s had
violated Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15,
26, and Section | of the Sherman Act, 15 U.S.C. § 1.

Wedgwood filed a motion for summary judgment. The
court granted the motion on the ground that Orgell had not
“commenced suit within four years after the cause of action
accrued.” Section 4B of the Clayton Act, 15 U.S.C. § 15b

In this appeal, Orgell concedes a four year statute of
limitations but it contends that this period had not elapsed
because each of Wedgwood’s refusals to sell was a separate
antitrust violation.

In In re Multidistrict Vehicle Air Pollution v. General
Motors Corp., 591 F.2d 68 (9th Cir. 1979), cert. denied, US.

(1980), a manufacturer of air pollution control devices
brought an action against several automobile manufacturers
alleging a conspiracy to refuse to purchase the plaintiff's
product. The plaintiff filed its action more than four years after
the initial refusal to deal but alleged that the statute of
limitations did not apply because each subsequent refusal
created a new cause of action. The court rejected that
argument, stating:

Nothing in the record indicates other than that the 1964
decisions, as to AMF, were irrevocable, immutable, per-

3a

manent and final. For this reason, all injury to AMF
necessarily resulted from the 1964 rejection of the Smog
Burner.

Id. at 72.

Here, any injury to Orgell resulted from Wedgwood’s 1965
refusal to sell. Orgell’s subsequent requests “were forlorn
inquiries by one all of whose reasonable hopes had been
previously dashed.” Jd. The district court’s order granting
summary judgment stated, “each time Wedgwood repeated the
refusal, it was a reaffirmation of the original decision not to deal
with the plaintiff. Since the original refusal pursuant to the
alleged conspiracy occurred over a dozen years ago. this action
is time-barred by the four year statute of limitations.” We
agree.

The district court’s order granting summary judgment on
the ground that Orgell’s action is time-barred is

AFFIRMED.

4a

No. 79-3108 D.C. No. 78-1349
[Stamped filed March 16, 1981]

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Davip ORGELL, INC.,
Appellant,
Vv.
GEary’s STORES, INC.:
BACCARAT. INC.:

BuUCCELATTI, INC., ORDER
and CERALENE, INC.,

Defendants,
and
JosiAH WEDGWOOD & Sons, INCc.,
Appellees.

Before: CHAMBERS and TANG, Circuit Judges, and
SOLOMON, * District Judge

Pursuant to a request of the panel, it is hereby ORDERED
that the Memorandum disposition entered herein on January
19, 1981, be published as an authored Opinion by Judge
Solomon.

* The Honorable Gus J. Solomon, Senior United States District Judge for the
District of Oregon, sitting by designation.

Sa

Civil No. 78-1349-HP
{Stamped filed October 19, 1978]

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

David ORGELL, INC., ORDER GRANTING
Plaintiff, DEFENDANT
: WEDGWOOD'S

MOTION FOR

Grary’s Stores, INC., et al., SUMMARY JUDGMENT

Defendants.

This matter is before the court on defendant Wedgwood’s
motion for summary judgment. Having considered the plead-
ings. the memoranda of law, and the oral argument of counsel
heard on September 18, 1978, the court concludes that Wedg-
wood’s motion for summary judgment should be granted.

The court notes that plaintiff did not comply with Local
Rule 3(g)(2) providing that any party opposing a motion for
summary judgment shall “serve and file a concise ‘statement of
genuine issues’ setting forth all material facts to which it is
contended there exists a genuine issue necessary to be liti-
gated.” Plaintiff, however, did file a statement asserting that
defendant's contentions of fact are insufficient to support its
motion.

In First National Bank v. Cities Service Co., 391 U.S. 253,
289-90 (1968), the Supreme Court stated that a plaintiff
opposing a motion for summary judgment in an antitrust action
cannot merely rest on the allegations contained in his com-
plaint; he must produce significant probative evidence to sup-
port his allegations. In addition, Local Rule 3(g)(3) provides:

In determining any motion for summary judgment, the
court may assume that the facts as claimed by the moving
party are admitted to exist without controversy except as
and to the extent that such facts are controverted by
affidavit filed in opposition to the motion.

6a

Plaintiff filed no affidavits contesting the facts set forth by
defendant. Therefore, this court, in the absence of contrary
factual assertions, will treat as true the facts asserted by
defendant,

Section 4B of the Clayton Act, 15 U.S.C. 15(b), provides
that any action to recover treble damages in a private antitrust
suit must be commenced within four years after the cause of
action has accrued. The accepted rule is that a cause of action
for civil conspiracy under the antitrust laws accrues on the date
the last act causing injury or damage was committed. Garelick
v. Goerlich’s, Inc., 323 F.2d 854 (6th Cir. 1963); Steiner v. 20th
Century-Fox Films Corp., 232 F.2d 190 (9th Cir. 1952); Manok
v. Southeast District Bowling Association, 306 F.Supp. 1215
(C.D. Cal. 1969). In Steiner, the court held that when a
plaintiff alleges a continuing conspiracy causing continuing
damage, the statute of limitations runs from the time “the blow
which caused the damage was struck.” Any injury occurring
after the “blow is struck” is not relevant to the issue of when the
statute of limitations commences to run, but rather affects only
the problem of how much should be allowed in damages.
Steiner, 232 F.2d at 194-95, The period of limitation 1s not
extended merely because damages from the injury may be
continuing. Saunders v. National Basketball Association, 348
F.Supp. 649 (N.D. Ill. 1972). Where the alleged antitrust
violation involves several refusals to deal, most courts, in
determining when the cause of action accrued, distinguish
between a final refusal that is subsequently reiterated and
subsequent refusals that themselves cause new injury. C. Hills,
Antitrust Adviser § 11.13, at 710 (2d ed. 1978).

In this action, plaintiff alleges that defendants conspired
not to sell their products to plaintiff but to favor Geary’s Stores.
Wedgwood’s initial refusal to sell to plaintiff pursuant to an
alleged conspiracy occurred in 1965. Plaintiff contends that at
least ten years ago, it again sought to acquire Wedgwood
products but was rebuffed. Moreover, in 1972, the law firm of
O'Melveny and Myers was retained by plaintiff to pursue its
alleged antitrust claim involving Geary’s and Wedgwood. The

7a

law firm wrote to Wedgwood and pointed out the possible
antitrust implications of its conduct. Wedgwood replied,
denying all charges. During the last two years, plaintiff on two
occasions sought the opportunity to buy products from Wedg-
wood and was again refused. Plaintiff undertook no further
action until April 16, 1978 when it filed its complaint. Plaintiff,
as a result of Wedgwood’s continuing refusals, suffered no new
injury. Rather, the amount of monetary loss allegedly sus-
tained by plaintiff from the original 1965 refusal simply in-
creased over the years.

The court finds that the last act causing injury occurred as
a result of Wedgwood’s initial 1965 refusal to deal with the
plaintiff, and that each time Wedgwood repeated the refusal, it
was a reaffirmation of the original decision not to deal with the
plaintiff. Since the original refusal pursuant to the alleged
conspiracy occurred over a dozen years ago, this action is time-
barred by the four year statute of limitations.

THEREFORE, IT IS ORDERED that defendant Wedg-
wood's motion for summary judgment be granted.

The Clerk of the Court shall serve copies of this Order, by
United States mail, upon the attorneys of record for the parties
appearing in this action,

Dated: October 19, 1978.
HARRY PREGERSON

Harry Pregerson
United States District Judge

No. 78-1349 HP
{Stamped filed December |, 1978}

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

David ORGELL, INC.,

Plaintiff. STIPULATION
VS. AND ORDER
GEARY'S STORES, "NC. ;
Defendants .
WHEREAS:

A. By Order entered October 20, 1978, the Court granted
defendant Josiah Wedgwood & Sons, Inc.’s Motion for Sum-
mary Judgment on the grounds that the claims asserted in the
Complaint against said defendant are barred by the Statuté of
Limitations;

B. Said Order is not appealable unless the Court makes
the determination required under Rule 54(b) of the Federal
Rules of Civil Procedure;

C. Plaintiff agrees to dismiss the Complaint with prejudice
against all defendants herein when, as and if the dismissal in
favor of Defendant Wedgwood becomes final. There is,
therefore, no just reason for delay because if the Court's Ord
entered October 20, 1978 is affirmed, plaintiff will dismiss thi
action with prejudice as to all defendants;

D. There is now pending plaintiffs motion re discovery
originally set for November 6, 1978, continued to November
20, 1978, and then to December 4, 1978.

E. Plaintiff has noticed its depositions to be taken in New
York in January, 1979 and has indicated that it intends to
obtain other discovery in aid of the said depositions against all

9a

defendants. There is pending and set for December 11. 1978. a
Pretrial Conference; but the parties have not completed their
discovery. a great deal of it on both sides remaining to be taken
if the cause is to be tried before appellate review of the
aforementioned Order;

F. The parties are desirous of saving themselves and the
Court a great deal of what may be unnecessary work and cost
and are desirous of having the Court certify an appeal of the
Court's Order under Rule 54(b) of the Federal Rules of Civil
Procedure, so there will be no further proceedings in this Court
until the appeal is decided.

NOW. THEREFORE. IT IS STIPLLATED by and
among the attorneys for the respective parties. and by David
Orgell. Inc. subject to the approval of the Court. as follows:

1. The Court, in a separate order, may make its express
determination that there is no just reason for delay and may
expressly direct the entry or judgment against the plainuff in
favor of the defendant Josiah Wedgwood & Sons, Inc.;

2. All proceedings in the trial court including but not
limited to depositions and other discovery shall be stayed
pending plaintiffs appeal from the said judgment duly and
timely made;

3. If the said judgment shall be affirmed on appeal and
become final, the Court shal! dismiss the Complaint herein with
prejudice against all defendants and each party shall bear its
OWN COStS.

4. In all other events the action shall proceed in the United
States District Court herein.

SCHWARTZ, ALSCHULER & GROSSMAN
MARSHALL B. GROSSMAN
Janis E. ADAMS

By JANIS E. ADAMS
Attorneys for Baccarat, Inc..

Buccelatti, Inc. and
Ceralene, Inc.

10a

LATHAM & WATKINS
PHiILip BELLEVILLE
ALAN CLARK

By ALAN B. CLARK

Alan Clark
Attorneys for Geary’s, Inc.

MITCHELL, SILBERBERG & KNUpP
EDWARD MEDVENE
Roy SHULTS

By Roy SKULTS

Roy Shults
Attorneys for Josiah Wedgwood
& Sons, Inc.

Law OrFFices OF BERNARD REICH
Davip OrRGELL, INC.
By Davio ORGELL

By BeRNarD REICH

Bernard Reich
Attorney for David Orgell, Inc.

IT IS SO ORDERED.

DATED: DEC. 1, 1978
HARRY PREGERSON

United States District Judge

No, 78-1349-HP
[Stamped filed January 9, 1979]

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Davip ORGELL, INC.,

Plaintiff,
Vs.
Grary’s Stores, INC.; ORDER AND
Josiah WepGwoop & Sons, INC., JUDGMENT

BACCARAT, INC,; BUCCELATTI,
INc.: and CERALENE, INC.,

Defendants.

This matter came on for hearing before the Court, the
Honorable Harry Pregerson, United States District Judge,
presiding, on the motion of defendant Josiah Wedgwood &
Sons, Inc. (“Wedgwood”) for summary judgment. The Court
having considered the pleadings, the memorandum of law, and
the oral argument of counsel heard on September 18, 1978, the
Court issued its order granting Wedgwood’s motion for sum-
mary judgment (“Order”) which was entered on October 20,
1978.

Pursuant to the stipulation executed by counsel for all
parties herein, filed with the Court on December 1, 1978, and
signed by the court on December 1, 1978, the Court finds that
there is no just reason for delay of the entry of a final judgment
as to defendant Wedgwood, and it is

ORDERED, ADJUDGED AND DECREED:

1. That piaintiff David Orgell, Inc. shall take nothing by its
complaint herein against defendant Wedgwood, and that the
complaint is dismissed with prejudice as to said defendant;

2. Each party shall bear its costs of suit herein; and

12a

3. The Court, expressly determining, under Rule 54(b)
FRCP, that there is no just reason for delay in entering final
judgment for defendant Wedgwood hereby expressly directs
that final judgment in favor of said defendant and against the
plaintiff be entered; and the same is hereby entered.

Dated: January 9, 1979

/s/ HARRY PREGERSON

HARRY PREGERSON
United States District Judge

JUDGMENT entered.
DATED:

Clerk

13a

No. 79-3108 DC CV 78-1349 HP
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Davibd ORGELL, INC.,
Appellant,
VS.

Grary’'s Stores, INC.; BACCARAT,
INc.; BUCCELATTI, INC.; and
CERALINE, INC.,

Defendants,
and
Josiah WepGwoop & Sons, INc.,
Appellee.

APPEAL from the United States District Court for the
CENTRAL District of CALIFORNIA.

THIS CAUSE came on to be heard on the Transcript of
the Record from the United States District Court for the
CENTRAL District of CALIFORNIA and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here or-
dered and adjudged by this Court, that the judgment of the said
District Court in this Cause be, and hereby is affirmed.

Filed and Entered January 19, 1981

l4a

No. 78-1349-HP
[Stamped filed August 18, 1978]

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Davip OrGELL, INC.,

Plaintiff,
we Hearing Date:
Geary’s Stores, INC., Sept. 11, 1978
Josiah WeDGwoop & Sons, INC., Time: 10:00 A.M.
BACCARAT, INC., BUCCELATTI,
Inc., and CERALENE, INC.,
Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
OF DEFENDANT JOSIAH WEDGWOOD & SONS, INC.

STATEMENT OF UNDISPUTED FACTS

Solely for the purposes of this motion, and without waiving
any of its rights, claims or factual positions in the event this
litigation should continue, Wedgwood will take as given the
testimony of plaintiffs principal, Mr. David Orgell. That
testimony has led to certain uncontradicted facts.

Orgell is“ . . . claiming that the defendants, Geary’s, are
conspiring with certain suppliers listed to exclude us from
purchasing directly from them and because of that we are
suffering damages.” (D. Orgell Depos., p. 45, lines 8-11).
Orgell originally sought the Wedgwood line“ . . . at least ten
years ago.” (/d., line 25.) On that occasion, Mr. David Orgell
spoke to a Mr. Thomas of Wedgwood, who reportedly told Mr.
Orgell that Wedgwood had “arrangements” in the vicinity. (D.
Orgell Depos., p. 47, lines 12-13). That is to say, Wedgwood
had another customer “very close to me...” and“...

15a

didn’t want another account right in that vicinity.” (/d., lines
15-16). Thus, Mr. Thomas refused Orgell the Wedgwood line.
Id., line 18.

Wedgwood’s initial refusal to deal with Orgell likely
occurred twelve or thirteen years ago, rather than ten. Mr.
Orgell testified that a Mr. Donald Rose. who was Wedgwood’s
salesman for the “Beverly Hills territory”, refused to supply Mr.
Orgell and his store in 1965-1966. Mr. Orgell testified that Mr.
Rose said: “Well, you know the relationship between Wedg-
wood and Geary’s. I only work for the company, and I have
been told not to sell you.” (D. Orgell Depos.. p. 134, line 28, to
p. 135, line 2.)

In early 1972. more than six years before this lawsuit was
filed, William J. Feis, Esq., of O'Melveny and Myers wrote a
letter to Wedgwood’s President, Mr. R. M. Smyth, on behalf of
Orgell. Affidavit of Raymond M. Smyth in Support of Motion
by Defendant Josiah Wedgwood & Sons, Inc. for Summary
Judgment, 92 and Exhibit A (“Smyth Affidavit’). 2 In that
letter, Mr. Feis asserted that Mr. Rose of Wedgwood had
“|, , stated that he will not sell the Wedgwood line to Mr.
Orgell because of an agreement with Geary’s not to do so.”
Adding that his firm was “ .. . unable to imagine a valid
business reason” for Wedgwood’s refusal to sell its line to
Orgell, Mr. Feis noted that“ . . . our attention has accordingly
been drawn to the possible antitrust implications of your
conduct.” He expressed his belief that it was in the interest of
all concerned “ . . . that this matter not be allowed to result in
litigation.” (Smyth Affidavit, Exhibit A).

Mr. Smyth referred Mr. Feis’s letter to Wedgwood’s
counsel, Mr. Leonard S. Sandweiss, for reply. Smyth Affidavit,
4 3; Affidavit of Leonard S. Sandweiss in Support of Motion by
Defendant Josiah Wedgwood & Sons, Inc. for Summary Judg-

2 The “affidavits” of Messrs. Smyth and Sandweiss are in fact declara-
tions proper under 28 U.S.C. § 1746. In the interest of time and after
telephonic consultation with the clerk of the court, the titles have been left as
they are. References to their “affidavits” should therefore be understood as
referring to what are in reality declarations.

l6a

ment, 92 and Exhibit A (‘“Sandweiss Affidavit”). Mr.
Sandweiss replied in writing to Mr. Feis’s letter on or about
March 6, 1972. Sandweiss Affidavit, §] 3 and Exhibit B. In his
letter he denied the charges made by Mr. Feis, even assuming
the accuracy of Mr. Feis’s factual representations. Sandweiss
Affidavit, Exhibit b, page 2. Yet, despite the litigation threat
contained in the letter from Mr. Feis to Mr. Smyth, neither Mr.
Sandweiss nor Wedgwood ever heard from Orgell or its counsel
O'Melveny and Myers again on these matters. See Sandweiss
Affidavit, 4; Smyth Affidavit, {| 4.

During the last two years ago, Orgell again sought the
opportunity to buy Wedgwood on two more occasions. (D.
Orgell Depos., p. 56, line 22 to p. 58, line 18; p. 48, line 17-p.50.
line 18.) Orgell contends that Wedgwood again refused to sell
its line to Orgell, at least in part because of Geary’s. (Jd., p.
52, lines 8-17; 53, line 28-p. 54, line 8; p. 51, lines 1-25.)

The harm Orgell allegedly has suffered as a result of the
actions of the defendants is that Orgell has“ . . . been denied
product, product that we would have made profits on, and the
customer that would have come to us for the product had to go
to Geary’s; thus, we suffered damage.” (D. Orgell Depos., p.
92, lines 6-9.) Approximately a year ago, Orgell began to
acquire Wedgwood’s bone china and jasperware from a source
other than Wedgwood, and to sell these items to its retail
customers. (D. Orgell Depos., p. 27, lines 1-14.) However,
Orgell has used its Wedgwood products as loss leading items
and has made literally no profit on its sales of Wedgwood. (D.
Orgell Depos., p. 106, lines 17-25.)

Orgell does not break down its gross sales or costs, or its
net sales on china, crystal or silver, classified as such. Rather,
Orgell has total sales, total gross and total net figures on its
overall business. (D. Orgell Depos., p. 116, line 12-p.117, line
12.) On its overall business, Orgell has shown a profit—an
increasing profit—in each of at least the last 10 years. (D.
Orgell Depo., p. 86, lines 16 p. 87, lines 3-7 and 20-21.)

3 See footnote 2.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2028%3A1. Public record. Not legal advice.