# Reply Brief — Moore v. Mead Service Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0458%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1951 - **Citation:** 340 U.S. 944 ## Text ; 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