# Reply Brief — Agency Holding Corp. v. Malley-Duff & Associates, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2187%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1984 - **Citation:** 469 U.S. 1072 ## Text Ottice-Supreme Court, US, | j FILED | OV 26 tes ny | Aeanoee . srvas No. 84-340 CLERK IN THE Supreme Court of the United States October Term, 1984 CROWN LIFE INSURANCE COMPANY, et al., Petitioners, v. MALLEY-DUFF & ASSOCIATES, INC., Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit PETITIONERS’ REPLY BRIEF ALEXANDER BLACK (Counsel of Record) ROBERT L. FRANTZ BUCHANAN INGERSOLL Professional Corporation 57th Floor, 600 Grant Street Pittsburgh, PA 15219 (412) 562-8800 Counsel for Petitioners Crown Life Insurance Company and Clarke Burton Lloyd November 1984 HERBICK & HELD PRINTING COMPANY, PITTSBURGH, PA. 15233 Table of Contents. TABLE OF CONTENTS ee ee eee aneoctee’ Petitioners’ Reply Brief There Is No Factual Foundation For Respon- dent’s Claim That It Was Put Out Of Business By The Termination Of Its General Agency EES oe cpu Ded os bk cahoots oo ode ee 990° See ARC: ae a ara ee TABLE OF AUTHORITIES CASES Copperweld Corp. v. Independent Tube Corp., 104 NE EE I Fe eee DeFillippo v. Ford Motor Co., 516 F.2d 1313 (3d Cir.), cert. denied, 423 U.S. 912 (1975) ......... Hood v. Tenneco Texas Life Insurance Co., 739 F.2d EE EE ne Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. ee eee a epee ade 5s Larry V. Muko, Inc. v. Southwest Pennsylvania Building and Construction Trades Council, 670 aa (3d Cir.), cert. denied, 459 U.S. 916 Marrese v. American Academy of Orthopedic Sur- geons, 726 F.2d 1150 (7th Cir.), cert. granted, 104 ee eee by heb sc ve eee ces eenes Poller v. Columbia Broadcasting System, Inc., 368 Ee ree Spray-Rite Service Corp. v. Monsanto Co., 684 F.2d 1226 (7th Cir. 1982), aff'd, 104 S. Ct. 1464 (1984) United States v. General Motors Corp., 384 U.S. 127 et a Re Sin at nk a seh we 0 0.0% ————EeEE ee PETITIONERS’ REPLY BRIEF There Is No Factual Foundation For Respondent’s Claim That It Was Put Out Of Business By The Termination Of Its General Agency Contract. In its effort to get away from the great weight of authority to the effect that there must be a price motiva- tion for an alleged group boycott to be given per se treatment, the Respondent argues for the first time that no price aspect is required if the purpose is to put the target out of business. That argument is not open to the Respondent in this case because there is no evidence to show that Malley-Duff was put out of business as a result of the alleged group boycott. The fact is that the only effect the termination of Malley-Duff’s general agency contract had on its business was that it could no longer sell Crown products through brokers. It was still entirely free to sell Crown products directly to consumers. The fact that it did not do so was purely the choice of Malley and Duff, its principals. It was also perfectly free to become general agent for any of the hundreds of life insurance companies doing business in Pennsylvania and in fact Mr. Duff did just that, but under a different corpo- rate name. Malley and Duff quite plainly let their corpo- ration die in order to enable them to claim that their corporation had been put out of business and thus to increase their claimed damages. The fact that Malley-Duff was still free to sell Crown insurance policies directly to policyholders makes such cases as United States v. General Motors Corp., 384 U.S. 127, 145-46 (1966), and Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 211 (1959) inapposite, as is also the boycott aspect of the Monsanto case in the Seventh Circuit: Spray-Rite Service Corp. v. Monsanto Co., 684 F.2d 1226 (1982), aff'd, 104 S. Ct. 1464 (1984). Respon- 2 Petitioner’s Reply Brief. dent’s reliance on Larry V. Muko, Inc. v. Southwest Pennsylvania Building and Construction Trades Coun- cil, 670 F.2d 421, 430 (3d Cir.), cert. denied, 459 U.S. 916 (1982) is misplaced for the same reason. The only case relied on by the Respondent, which it claims did not involve the price aspect, is Poller v. Co- lumbia Broadcasting System, Inc., 368 U.S. 464 (1962), and there by a five to four vote this Court reversed the granting of a summary judgment, the majority indicating that, particularly in antitrust cases, summary judgment should be granted very sparingly. In the case at bar, the defendant’s motion for summary judgment was refused and it was not until the plaintiff had had full opportunity to prove its case that a directed verdict on the antitrust counts was granted to the Petitioners, at trial after the Respondent had rested its case. More than that, Poller is not a boycott case—no boycott was claimed, and neither the majority opinion nor the dissent mentions boycott. Of course, in the case at bar a boycott is claimed to escape the McCarran-Ferguson exemption. The case of DeFillippo v. Ford Motor Co., 516 F.2d 1313 (3d Cir.), cert. denied, 423 U.S. 912 (1975), cannot be authority for the Respondent, because it was found that no boycott existed. Respondent misstates the holding in Marrese v. American Academy of Orthopedic Surgeons, 726 F.2d 1150 (7th Cir.), cert. granted, 104 S. Ct. 3553 (1984), as the following from the opinion (p. 1155) demonstrates: ...“‘boycotts are illegal per se only if used to enforce agreements that are themselves illegal per se—for example price-fixing agreements”... Petitioner’s Reply Brief. 3 The complaint in the present case charges either a conspiracy to fix prices or limit output, a per se offense under federal as under Illinois law, or, more likely, a non-price conspiracy to exclude rivals from a professional association, which under our precedents must be tested under the Rule of Reason —and the state law is again the same. Two other points the Respondent seeks to make de- serve brief mention. While it is true that this Court’s decision in Copperweld Corp. v. Independent Tube Corp., 104 S. Ct. 2731 (1984) was not urged upon the Court of Appeals for the Third Circuit, that is because the deci- sion had not been handed down until after the briefs were in and the case was argued. However, the argument was made that the requisite multiplicity of parties was not present. The statement on page 6 of Respondent’s brief that “Crown Life was not attempting to improve its competi- tive posture,” is untrue. That is demonstrated by the Respondent’s own exhibit, relevant portions of which are set forth in Appendix H1-3, which makes plain the rea- son for the Respondent’s termination as Crown’s general agent in Western Pennsylvania. Although Crown’s per- centage of the United States market in individual sales in 1977 reached a level of .53%, Malley-Duif’s percentage of the Western Pennsylvania market was only 11%. Even with the addition of the personal production of the Ehrman Agency, the total percentage of market sales came to less than .2%. Thus the Respondent’s own ex- hibit proved the justification for Crown’s termination of the Respondent; that is, that it had failed to make an adequate penetration of the Pittsburgh market. A decision by the United States Court of Appeals for the Fifth Circuit, that had not been reported when the 4 Conclusion. Petition for Writ of Certiorari was served, deserves men- tion. It is the case of Hood v. Tenneco Texas Life Insur- ance Co., 739 F.2d 1012 (5th Cir. 1984), where summary judgment was granted to the insurance company in the District Court and the Court of Appeals for the Fifth Circuit affirmed, relying on this Court’s opinion in Copperweld. CONCLUSION For the foregoing reasons, as well as the reasons advanced in the Petition For a Writ of Certiorari, Petitioners Crown Life Insurance Company and Clarke Burton Lloyd respectfully ask that the Petition For a Writ of Certiorari be granted. Respectfully submitted, November 1984 ALEXANDER BLACK (Counsel of Record) ROBERT L. FRANTZ BUCHANAN INGERSOLL Professional Corporation 57th Floor, 600 Grant Street Pittsburgh, PA 15219 (412) 562-8800 Counsel for Petitioners Crown Life Insurance Company and Clarke Burton Lloyd --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2187%3A4. Public record. Not legal advice.