Reply Brief — Moore v. Mead Service Co.

; Ww

mitted by Petitioner in his brief before the Court of

Appeals at page os

By the time of the trial they (Respondent) lad

revained eight ef the eleven retail oytlets they lial in

Santa Rosa on September 2 day CT. 90-4, ttt

4

The position of Petitioner is not tenable on this point.

Petitioner contends that there was no intent to violute

the law on his part anck that the conspiracy Was 4 matter

of civie pride, We fail to find wherein intent is an essential

cloment.> United States V. Columbia Steel Company. 0

Ss. Ct. 1107, 8654 vv. S. 495, 92 L. Kd. 1538; State v. (rurley

(supra). Nor ts vood motives an excuse, Paramawe

Famous Lasky Corporation \. United States, 01S. C4, 4,

oa US. 30, 79 L. Kd. 145, affirming D. ©. 46°F. (2). OS

Thomsen ¥. Gayser, az 3 ¢4. far, 243 U. 8. 66, 41 LL. Ral.

NOT: U'ypited Stales Vv. (rele ral Mators. 699 9 O).435) wih,

Certiorart Denied, 62 5. ct. 105, 314 . S. 618, 86 1. Feb

47, Rehearing Denied, 62 5. Cts, 314 U:~ —S F710, Sb

L.. Kd. 566.

The admitted purpose of accepting the offer of monopoly

was not one of public spirit on the part of Petitioner,

He stated that he needed the monepely se he could main

tryin bis plant om Santi Rosa. THis motive was mioney and

profit for his business (BR. 12, 13. & 14). fle was not inter

cated in the welfare of the community beeause he wae wou:

fo forsake it for another where profits would be better.

Thus we think eontentiop-et Petitioner fails on this pei.

Petitioner eriticizes the application of the term ‘hey-

cott’' to the acts of himself and the others. Though his

criticism is not well founded, we doubt that it matters by

what name it shall bear, for the real question ts whether

or not suel acts amounted te an attempt to monopolize er

were in restraint of trade,

—

11

In answer to the contention that there was an absence

of proof of threat, we point out that

“The word ‘boyeott’, in itself, has been said te

imply a threat, and it has been held that the distribution

of eireulars, containing a notice to ‘boycott’ a deste

nated firm is in itself an aet of intimidation and im-

parts that the customers of the firm will be treated in

like manner if they continue to patronize - ataage

C, dS. p. 1099,

Parr Il

The Court of Appeals Did Not Err in Finding Petitioner a

Party to the Combination in Restraint of Trade or Indi-

vidually Attempting to Monopolize Trade.

The Petitioner states that he admitted that he knew of

the petition to beyeott and was willing to accept its bene-

fits and met with the business men who proposed to circu-

late it, but that he @icret-saegestit amd took no part in

securing signatures (Petition p. 8). This is not all of

ie Petitioner's testimony. On pages 12, 18 and 14 of the

Record he testified that he felt thot there was not enough

business in Santa Rosa fe. aim and an outside bakery,

amd after thinking if ver, tolehis landlord in Santa Rosa

of his plan tome: o. The landlord got some of the *t fellows”

towether and they asked the Petitioner what it would take

to keep him in Santa Rosa and not move his plant. They

asked Whether or not he would stay if all of the merehants

in town agreed to patronize him alone. After thinking

it over two or three days he decided that if all of the mer-

chants wanted ‘him to stay that bad, he would remain if

—ther would support hin ** 100) per cent’. He knew about

the petition and was willing to accept and take advantage

of the benefits therefrom, and that it was done with his

consent and fer his benefit (R. 45 & 46). He further

testified that the only way the people could keep him in

—_

14

matter whieh legislative enactment petitioner violated. ip

the application of the doctrines of **clean hands** or rari

delicto"’. We think net. The iNewal act of Petitioner ts

more closely related to the thing or matter of- which he

complains than in the Morton Salt Co, case and other patent

eases cited by the Court of Appeals. ( Mortoar Salt Coy,

Suppiace Co. 62 8. Ct. $02, 314 UL S488, 86-1. Bd. 03:

Keustone Driller Co, ¥. Excavator Co. 54 S.Ct. 146, 21)

U.S. 2a is L. Ed. 293). Petitioner ts net in the position

of the illegal dealer in: liquor suing to recover am inheri-

tunee; or the landlord in an action to collect renits on a

building leased by him for an illegal purpose. Gellelow vy.

Porter, 161 SW (2) 14.

The Respondent cevks to avoid the consequence of his

act by contending (1) that he was under ‘oCOnaTLE CORT

cion’? and therefore should not be held accountable for lis

acts, (2) that he should not be held accountable because

he was no longer a party to the conspiracy to Honopolize

the bread business in Santa Rosa, We shall discuss cael

of these points in the order stated.

With reference to economic coercion m Which Petitioner

cooks to clothe himself, he relies upon Ring v. Spina.

I. (2) 647, wherein it was held that where a party Wir

compelled under economic stress to join with other- in an

avreement or conspiracy in violation of the Sherman Aut

Trust Act, the party should he held to be a vietim rather

than a participant in the Anti-Trust violation. But, Pott-

tioner fails to point out the * economic coercion” that wa-

brought to bear upen him fo compel him te attempt te

nionepoelize or conspire with his landlord and the ** fellows”

to monopolize the trade and business in Santa Rosa. Ile

makes no complaint of the Respondent's business practices

prior to the date of the boycott. THe says that his only

offense “was a natural desire to save his floundering bret

ness from disaster”, (petition p. §) which we assume meats

oy 15

that, prior to the boycott, his business was not as profitable

as he thought it should have been. (A difficulty not un-

common to business as a whole.) Sueh unfortunate cream.

stances do not Jicense the Petitioner to violate the Anti

Trust Laws of his State and Nation and injure other peo-

ple any. UOTE than it would license robbery, We had no

part in bringing about his difficulty, and, since Petitioner

leaves the record’ to advise this court that he has, since the

trial, closed his business, we feel compelled to point out

that it appears that Petitioner must have departed a profit

able market, for others were eager to and did immediately

* suffered

hy Petitioner before the boycott was a result of something

take his place. Perhiips the ‘economic coercion

other than market conditions,

Petitioner contends that he should not be held accountable

because he says that he ‘teeased his improper practice

at the very out-set of the price discrimination complained

af. (see petition page 10).

The record in this case is utterly barren of an abandon-

ment or mere utterance of disavowal of the beyeett. On

the contrary, he confessed parenthood when he testified that

he accepted the offer of a monopoly in Santa Rosa and

agreed fo keep his business there (RL1S). At ne point in his

testimony does he say he ever asked his co-conspirators to

end the beyeott. On the contrary he was still accepting the

henelits of a beveott that was 27 per cent effective on tHe

very day this cause was tried in the District Court. (See

pave 3 of Petitioner's brief before the Court of Appeals

Wherein he admits that at the time of the trial in the Dis

trict Court three of Respondent soriwinal eleven customers

were still hoveetting the Respondent.) May it be said now

that he had **eeased his improper practice—at the very out

set’ merely because a few of the conspirators abandoned

the Hegal combination in faver of an open and free market

in their community unhampered by the pitfalls and dan

16

vers of a monopoly, He should pursue his action againet

the deserters, not the Respondent,

His action is nothing more than a mer complaint thet

his only compe fitors should not be allowed to compete wil

him on equal terms, A recovery on such a basis lias been

denied by this Court in First National Pictures ¥. Robes

72 F. (2) 37 (see p. 40), certiorari denied, 55'S, Ct, 141, 25

U.S, 631, 79 L. Bd. 716,

Petitioner gives added reason to apply the doctrine of

pari delicto in this ease. He admits that his actions were

the cause of the price reduction,

‘and when I told him Candlord) about leaving, well,

he got up in the air and told some others and none

of them wanted me to leave, and that is what started this

petition, and that is what started the price entting.”

(R15).

Pant IV

The Dispute Involved Is of a Local Character and Had

No Impact Upon Interstate Commerce.

'The situation presented: by this action is wholly local in

character. The parties were direct competitors in 6) retail

outlets in Santa Rosa and a number of other towns and

communities in the area (R. 69). There were a number of

outlets that were Pétitioner’s eustomers amd never ets

tomers of Respondent (R. oe4?), OF the GO retail out

lets in which both parties sold their bakery products, 11 of

them were in the Town of Santa Rosa (page 3, Petitioner's

Brief before Court of Appeals). The boycott ecenrred 1

Santa Rosa only and the prices were redueed only in tht

town. (R. 43). No price change oceurred outside of Santa

Atosa (R. 43). Respondent's bread was shipped from its

plant inv Clovis, New Mexico, to.Santa Rosa, New Mexico,

and did not pass in interstate commerce CR, 12). As pointed

out in the Court of Appeals’ opinion the only commerce i

17

volved were some sales in Farwell, Texas, which is on the

Texas-New Mexico line.

The Robinson-Patman Aet (15 U.S, C. 4.13) provides:

“ (a) Ht shall be unlawful for any person engaged

in commerce, in the course of such commerce, either

directly or indirectly, to diseriminate in price between

different purchasers of commodities of like grade and

quality, where cither or any of the purchases involved

in-such discrimination are in commerce, DT ee

phasis ours)

It will be noted that under the Sherman Anti-Trust Aet

it is only required that the combination or attempt to mo

nopolize ‘affect ’* interstate commerce and such effect must

be direct. Schechter Poultry Corp. v. United States, 55

S. C(t, 837, 295, U. S. 495, 79 L. Ed. 1570; Coronade Coal

Co. ¥. United Mine Workers, 45 S. Ct. 551, 268 U.S. 299,

60 L. Bel. 965.

The Robinson-Patman Act requires (1) that the aceused

he engaged in commerce ‘either directly on indireetly”’,

and (2) that cither or any of the purchasers on such dis-

crimination be in commerce. Something more than just

‘effect is required, The purchases invelved in the al-

leved diserimination must be in interstate commeres or be a

dircet interference with or restraint on sueh commerce,

Schechter Poultry Corp, ¥. United States (Supra); Coron

alo Coal Co. vy. United Mine Workers (Supra); Atlantic

Co. v. Citizens Toe && Cold Storage Co.,, 178 FF. (2) 408,

Certiorav?’ Denied, 70S. Ct, S41, 339 UL 8, 953; Lipsow v,

Soconm-Vacuum Corp. (Supra); Abouat vy. Npreckels Coa.

26 F. Supp. 833.

Mach and every sale, of which Petitioner complains, was

made to eight loeal retail stores in the town of Santa Rosa,

New Mexico, Tlie bread was baked in Clovis, New Mexico,

wd delivered to Santa Rosa without passing in interstate

>

1s

ecommerce aml there was sold to the retail stores. “In

order for the sales here involved to come under the Clayton

Act, as amended by the Robingon-Patman Aet, they must

have been made in interstate commerce.”" Standard Oil Ca,

v. FTC. 718. Ct 20. The sales complained of lid wot aiid

could not have affected interstate commerce. The situ.

ation here is purely a jocal matter and ne burden was cast

upon such commeree.

Pant V

- There Must Be a Showing That a Price Discrimination

May Substantially Have the Effect of Lessening, Injuring,

Destroying or Preventing Competition or Tend to Create

a Monopoly.

The Robinson-Patman Act requires that

“the effect of sueh discrimination may be substantially

to lessen competition or tend to create a monepely i

any line of commerce, OF to injure, destroy, or prevent

competition with any person oF Se

The record in this case fails to reveal the slightest evi-

dence of an attempt on the part of Respondent te le@pertien,

injure, destroy oy prevent competition oe gain a monopoly

in any line of commerce, either in instrastate or interstate. ,

The Petitioner himself provided the defense to fris aevusa-

tions when he stated the price eutting resulted from the

petition (It. 1). Ile makes no complaint of the business

practices of Respondent prior to the boycott, ‘Te estab

lixh the effect of the se enlled diserimination in this cnse,

Petitioner must point to the restft of his own unlawful

acts,

There must be some showing that the discrimination hac

the effect substantially to lessen, injure, destroy or | revent

competition or tend to create a monopoly. A showing of a

mere price reduction is not enough. Corn Products Re

fining Cov. BOT. CC. 65 S.Ct. 961 at po 967, 324 U. 8.

726 at p. T38; Lipson v. Socony-Vacuum Corp, 76 BL (2)

215.

Parr VI

Action of Respondent Complained of Was In Response

to a Changed Condition Affecting the Marketability of

Respondent’s Bread.

Ae ‘

Article 18(a) (U.S. Code Title 15) provides that

“Ty shall be unlawful for any person engaged in

commeree, in the course of such commer e, either di-

rectly wr indirectly, to diseriminate in price between

different purchasers of commodities of like grade and

quality, where gither or any pf the purchases involved

in such discrimination are Ju commerce, where such

commodities are sold for ude, consumption, or resale

within the United States * *“Smynd where the effect of

such discrimination may be subst&atially to lessen com-

petition or tend to ereate a monopoly in any line of

commerce, or to injure, destroy or prevent competi

tien with any person who either grants or knowingly

receives the benefit of sueh discrimination, or with

customers of eithgs of them: Provided, * * *: Pro-

vided, however * *-. and Provided further * * °:

and Provided further, that nofhing contained in See-

fiows D2. 1. 14, 21, 22-27 of this title shall prevent

price changes from time to time where in respouse to

changing conditions affecting the market for or the

marketability of the qoods concerned, such as but not

limited to actual or imminent deterioration of perish

able goods, obsolescence of seasonal woods, distress

sales under court proeess, or sales in wood faith in

discontinuance of business in the goods concerned.”

(emphasis supplied)

The foregoing article first deseribes what shall consti

tute an wnloefel “diserimination’’, then specifieally sets

< 6

juring, destroying or preventing competition or tending to

create a monopoly, firere ean be no recovery under the

Robinson-Patman Act. me

Paw VI

The testimony of Petitioner establishes conclusively that

the price reduction was made by Respondent in respense to

an utter destruction of the market for and marketability ot

ifs products; therefore, the price reduction Was not action-

able as a price discrimination under the Robinson-Patman

Act.

Parr Vil

The Petitioner and Brief do not disclose any Peison for

review of this case by Writ of Certiorari.

Pant I

The Court of Appeals Properly Held That Petitioner Vio-

lated the Anti-Trust Laws of the State of New Mexice and

Declared Policy of the United States.

Petitioner brought this action under the Robinson-Pat-

man Aet (15 US.C.A. Ia) for treble damages alleging 4

price discrimination on the part » of Respondent. The

United States District Court for the State of New Mexico

at the close Ure Petitioner's (plaintiff's) testimony in-

structed a verdict favorable to Respondent basins its

action upon the conclusion that the price reductions ¢oMm-

plained of were made in response to a changed condition

affecting the market for and marketability of Respondent's

bread and therefore nofiactionable under the Rohinsen-

Patman Act (R. 80-90),

The Court of Appeals, without comment upon the cet

clusion reached by the trial court, found Petitioner in vie-

lation of the Anti-Trust Laws of the State of New Mexico

“

and declared policy of the United States and affirmed the

Distriet Court's decision applying the doctrines of ‘clea

hands’? and ‘tpari delicto’’ because of boycott to which

Petitioner was a party, We shall net at this point restate

the particular testimony establishing the ilegal acts of

Petitioners. Such testimony appears in’ Respondent's

SraTeMENT and restated sexgral times throughout this

brief. FW AR

The Petitioner takes the position that the boycott was _

a common undertaking for the benefit of the home town,

-and that it was merely a ¢fmpaign to induce citizens to

patronize home town merchants and points out that the-e

campaigns sometimes take the form of newspaper adter-

tising and editorials and are frequently Spousored by the

Chamber of Commeree, We are inclined to agree with the

Petitioner that sometimes such eafipaigns are carried on,

but such is not the case at hay In this cause Petitioner

sought to monopolize and couspired with others to gain

a monopoly in Santa Rosa by boycott.

The Petition as well as its application was a violation of

the statutes of the State of New Mexico prohibiting mo-

nopoly and acts in restraint of trade.

Article 51-1101 New Mexico Statute (1941) pro-

vides that ‘*Everv contract or combination between

individuals, associations or corporations having for its

object or whieh shall operate to restriet trade or com-

merece or control the quantity, price or exchange of any

_article of manufacture or product of the soil or mine

is hereby deelared to be illegal * * 7".

Article 51-1102 provides:

‘‘Every person who shall monopolize orattempt te

monopolize or combine or conspire with any -other

person or persons to monopolize any part of the trade

or commerce of this State shall be deemed guilty of

a misdemeanor, ee hd

ny

-

al .

5

In State v. Gurley (25 N. M, 2838, 180 DP. 288) the highest

eourt of the State of New Mexico found great similarity

between the Anti-Prust Law of that State and the Anti-

Trust Laws of Federal Government,

The article first quoted above finds its genus in the com

sion law, as does Article 1 of Title 15, UL S.C. A. and at

least incorporates in the codification Common law mono)

olies and agreements in restraint of trade, The State of

New Mexico adopted the comainon law (Article 19-303, New

Mexieo Statutes, 141) in 1876 in the following words:

‘In all of the courts in this state the common lav

as recognized in the United States of America shal!

be the rule of practice and decision.”

At common law a combination in restraint of trade or

monopoly wal unlawful because of their restriction upon

individual freedom of contract and their injury to the

public. Standard Oil Company of New Jersey %. United

States. 31S. Ct. 402, 221 U.S. 1,55 L. Rd, 619. To render

a combination unlawful at common law it is net necessary

that the monopoly be complete. Addyston Pipe avd Steel

Company V. United States, 20 8, Ct. 06, at page 106, et

U. S. 211, 44 LL. Ed, 136: United States v. B.C. Kuialt

Company, 1a. Ct. 240 at page 259, 156 U.S. 1.5 Nor wae

intent essential (State ¥. Gurley, 24 N. M. 258, sv) TV’.

oss) and good motives would not save the combination frou

condemnation at common law, oS C.J. S8.. page 971.

While it is true that the court=oh New Mexico have cot-

strued their statutes but few times the words ‘used by the

lewislature are not susceptible to serions misunderstandins

when applied to ‘Potitioner’s acts. The statute says that

every contract ot combination between individuals ** having

for its object or which shall operate to restrict trade or cour

meree’’ is declared to be egal. In this case we have an ad.

titted’ combination and an application of the combination

9

\ to drive out and exclude all competition from the City of

Santa Rosa. Certainly such a combination and its resulting

effect would restrict trade and had for its object and ad

mitted purpose the restriction of the bakery trade in Santa

Rose to the exclusive use of Petitioner,

We think that in addition to the violation of the first

article quoted, the Petitioner was in violation of Article

51-1102 quoted above,

He entered into an agreement with all the merchants

in Santa Rosa, save one, to keep his plant in Santa Rosa,

providedball competition be excluded from the market, This

was aimed directly at Respondent because it was his only

competitor (R. 44). Petitioner's. testimony alone estab-

lishes an attempt by him to monopolize the bread industry

in Santa Rosa. That it was a violation of these acts of

the legislature of the State of New Mexico there can be

no doubt,

Petitioner contends that the Court of Appeals improp-

erly interprets this court's opinion in U.S. v. Griffith (68

8. Ct. 941, 354 U.S. 100, 92 L. Ed. 1256) in its eitation

thereof as authority for their conclusions with reference

to the poliey of the United States toward monopolies and

combinations in restraint of trade. He quotes a portion

of the opinion to support his contention that the ase ot

the power to monopolize only ts unlawful, Such is not

Mie case. In the same paragraph ¢p. 107, UL S.3 p. o40

S. Ct.) the court stated that the power to monopolize may

he condemned “even though it) remains unexercised.”’

But, in the instant case the power was present by reason

of the agreement and that power was used, and used suc

cessfully. All merchants but one refused to buy Respond.

ent’s products (R. 33); and at the time of the trial in thi-

case in the Distriet Court, the power was still being used

and was 27 per cent effective on that date. This was ad

12

Santa Rosa was to deliver him all of the business, and

that be knew that the petition had the effect of running

Meads Fine Bread Company out of town (R. 45 & 46).

Ile admitted attending the meeting held. to fix the effec-

tive date of the agreed hoyeott AR. ney & ol).

“A formal contract is not necessary t6 constitute an il-

lows’ combination. "If one be required, then the offer on

the part of Petitioner's landlord and the ‘fellows’ to de-

liver him all of the business in Santa Rosa and his ae-

ceptance and agreement to remain there would vertatily

constitute a contract, At least the essential clements of

offer, acceptance and consideration are present, However,

a formal agreement or contract ix not neeessary to con-

stitute a combination, either at common law or under the

Sherman Aet, or under the statutes of the State of New

Mexico. A combination has been defined as a design in

the minds ‘of Lwo or wore persons to aceomplisl by and

through a concerted plan a common purpose, Uvite!

States vo American Colvmn & Lumber Compas, 265 t.

147.-affirmed, 42 8. Cte 114, bay 17. S. 377, 66 LL. Bd. 284

a8 CULS., page ie Ns pointed out in T'nited: States v.

Kissel (31S. Ct. 124, 218 U.S, 601, 54 DB. Fal. 1168), at

py, 126, 31°S, Ch: 3

A conspiracy in restraint of trade sis different from

and more than a contract ™ restramt of trade, «\

COTS PPaey is constituted hy mn awreement, it is true,

but it is the result of the agreement, rather than the

* a » oF

agreement itself; ; i: BoeY

rom a reading of the testimony of the Petitioner alone

ne conelision could be reached other than that he wae at thie

ininimum a party to the conspiracy, if not the principal

and moving factor,

Setting aside the fact of cireulating the petition, the

Petitioner individnally gattempted ‘to monopolize the mir

15

ket; and by so doing violated the laws of his State and the

policy of the United States, including the common law.

Parr Ill

The Court of Appeals Properly Applied Doctrines of

“Clean Hands” and “‘Pari Delicto”.

The Honorable Court of Appeals based its judgment upon

the sound doctrines of both ‘telean hands’? and ‘pari

delieto’’.. The several cases cited by the court fully sup-

ported the view,

The Petitioner apparently is seeking to avoid the doc-

trines by assuming that his guilt is im no manner con-t

nected with his complaint against Respondent. His au

thorities do not support his pesifion. The unlawtul act of

whieh he acenses Respondent is in short an attempt to

lessen, destroy or injure competition in the bakery trade

in Santa Rosa. Was not the hoveott an attempt to dessen,

destroy or injure competition in identically the same nar

ket amd a wiolation of Article 61-1102 New Mexico Statutes

(141) which makes it unlawful for

tw

‘Every person who shall monopolize or attempt

iionopolize any part of the trade or conunerce of this

state, * Sane

| The hoveott was further made illegal by Article 51-1101

New Mexico Statutes (1941) which makes unlawful

Every contract or combination between individuals,

associations, or corporations, having for its object or

whieh shall operate to restrict trade or eon

merce apnapeyl .

* :

The practices condemned by the New Mexico Statutes

are-the same as those practices condemned under the Fed

eral Anti-Trust Acts. State v. Gurley (supra). Does it

ay

* das ,

a period of eight months and twenty-two-days, managed to

re-establish its market in eight of the original eleven out.

lets, at which time tt raised the price of bread. (Petition.

er’s Brief before the Court of Appeals, p. 3). The market

for its products was still substantially impaired—-the ce

structive plan was still effective.

The reduction in price was in response fo a changed con-

dition affeetthg the market for and marketability of Re-

spondent’s woods, No other conclusion could be reached

from the testimony of tne Petitioner, Respondent reduced

its prices only after its market wis destroyed and then onl)

in that part of the market so destroyed.

‘The fourth proviso Was intended to save harmless trom

the operation of the statute manufacturers, distributors

and merehants that find themselves and their goods in a

market dffienlt or impossible to cope with, The market

in question*¢hanged over night from oa thriving inarkel

to a market in ruins. Whatever the cause, it had changed

it coused to exist.

The purpose of the Robinson-Patinan amendment was te

strengthen the Clayton Act. Tt was not the purpose of

the amendment to paralyze trade by making ever) price

reduetion an unlawful diserimination. “Tt Wisely included

the proviso beeatire it was impossible to Torsee everything

that could happen toa market.

tespondent submits that it veduced its prices solely tor

the purpose of staying Ina market in whiel it had the lawtul

right to enter and remain. On September 2nd it had a

thriving market. On September 3rd the market hard

changed to nothing. This was a changed market condition.

Petitioner would complain that Respondent yiciously

cut its price too much and too long. To determine. whether

this is true or not, we must examine the market. It was a

rathless market with a death dealing impaet upon Respon-

dent. Who eould know what would be necessary to cope

with tis vielence! Time proved that the Respondent's ae

dion fell ‘short of success. The market was still 27) per

cont closed to itat the time of trial.

Kven the Petitioner does not contend that Respondent

had any other alternative than to withdraw from the mar

ket amd find comfort and satisfaetion in the single small

store that refused to join in the conspiracy and permit

Petitioner’s scheme to monopolize the market to succeed

(Rn. 46-47).

The Petitioner is asking this Court to close its eyes to

his wrong and lay the Respondent upon the courtroom table

o that he may extract an alleged damage three-fold. To do

this in this case would license loca merchants and manufae

turers throughout the country to use boycotts, blacklists ane

other vestricting mensures against those engaged in and

waking sales imeommmerce anddaring them to defend then:

elves, Without the right of self defense by reducing prices

the offended party has but the alternative of doing nothing

and permitting the conspiracy to succeed; or he may bring

anaction in court against those with whom he expects to be

his customers, accusing them of a violation ef the State

Ami-Trust Laws, and subjecting them to fines, imprison

ment and payment of damages, Following such an action,

though successful, it would be difficult to visualize them re

waining good customers unchanged by the strife, Business

is built on good will and kind feelings between tradesiien,

not the results of Anti-Trust suits. The Respondent took

the only course open to it. A suit to dissolve the conspiracy

would have served no purpose other than to make mortal

tnemtes of Respondent's former customers.

2+

In a very recent case decided by this Court (during the

past week) Justice Harold Burton in Standard Od Cow-

pany of Indiana v. FTC. (Supra) is reported to have

stated:

“Congress did not seck by the Robinson-Patiman Act

either to abolish competition or so radically toe cur-

tnil it that a seller would have no substantial right of

self-defense against a price raid by a competitor © ‘

the seller may wel} find if essential, as a matter of lnusi-

ness survival, to meet the price rather than lose the cus-

tomer.”

” ?

We do not think it material that the fMtitioner chose the

boycott rather than a price cut t6 drive Respondent frou

the market. He had the choice of either, and each of qhem

would have constituted a changed’ market condition<te

which Respondent could respond.

It is respectfully submitted that the price reduction

complained of was made in response to a changing ‘condi

tion affecting the market for and the marketability of Re-

spondent 's woods, and for this reason Petitioner's case is

not actionable.

Past Vil

The Petition and Brief Fail to Disclose Any Reason for

Review By Certiorari.

There has been no showing of a departure from applicable

decisions of this Court or a conflict with any decision of

another United States Court of Appeals. Nor are the

questions presented of a veneral importance to call for an

exereise of this Honorable Court’s power of supervision.

Conclusion

The Respondent respectfully submits that the Petitioner

hax wholly failed to establish grounds for a review of the

decision of the Court of Appeals and that his petition for

Writ of Certiorari should be denied.

Respeetfully sulmuitted,

Epwarnp W. Napier,

Afforuey for Ri sponds yl.

Howarp F. Tou,

Lesur Hempiurry

(2560)