Petition for Writ of Certiorari — Hohensee v. Akron Beacon Journal Publishing Co. (No. 479)

= | Powe Bou 3

HE COPY . MLED

e JAMES ® BROWNING. Clerk

No. 4% Y

Ix Tne

Sipreme Court of the United States

Ocropen Teno, 1960

ae

ApoLtpuy Hlomensee, Petitioner,

¥o

Akron Beacon Jourxan Pupuisninxe Uo. Er ane -_

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

| FOR THE SIXTH CIRCUIT

James C. Newron

1934 Sth Street, NW.

Washington 1, D.C.

Attorneu for Petitioner

INDEX

OPINIONS BELOW

JURISDICTION |

HEESTIONS PRESEN PED

STATUTES INVOLVED

STATEMENT

REASONS FOR GRANTING WRIT

l. The decisions below violate the provisions of

Rule 15 (a) of the Rules of Civil procedure

IE. In ruling the complaint and amended complaint

must set forth allegations showing ** Public

Injury’* the lower Courts have departed from

the accepted tradition and are in confliet with

the general rule that a priviate party need only

allege violations of the Anti-Trust laws and:

injury thereby

CONCLUSION .

CITATIONS

Barth Ca. ve Mitchell, ete. 1 Cir. 57 F. 2d 96

Cityof Atlanta v. Chattanovga, ete..6 Cir. 127 F. 2d 23,

205 US. 390

F. dd. rsoem, ete. Vv. Ward, 10 Cir.. 1st) F. 2d O19

Gard. Mav. Chandler, 2 Cir. 172 F. 2d 402

Harty. B. F. Keitiv, ete., 2962 US. 271, 274

"Monarch. ete. ve American. el al. (D.C. Ky.) 164 Fed.

ted, tee

sae

-

>

°

’

National, ete., v. National Auto, etc., 91 U.S. App. Dc.

313, 200 Fed. 2d 359,.360 ‘ 6,7

Porter v. Mantaldo, 71 F. Supp. 372 20000.. k 4

Porter v. Mickelberry, 9 F. R. Serv. 12 E 54, Case 1 4.

Radovich v. National Football, ete. (1957) 352 U.S. 445, |

___ aL s es, ae

Roseland v. Phister, 7 Cir. 125 F. 2d 417 f

Van Dette v.’Aluminum Air, etc., 11 FP. R. D. 558 t

Wheeler v. Stenzel Ce.-3 Cir., 152 Fed. 874 8

Whittemoore v. Continental Mills, etc., 98 F. Supp. 387 4

No.

Ix T HE

Supreme Court of the United States

October Tera, 1960)

No.

ApoLpu HouEnsee, Petitioner, >

v,

Akron Bracex Journal PusiisHine Co., ET AL.

Respond nts.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

se

Petitioner respectfully prays that writ of certiorar! issue

to review a decision of the United States Court of Appeals

for the Sixth Circuit, holding that petitioner's complaint

and amended complaint failed to state .a cause of action

within the meaning of 15 U.S.C.. Sections 1, 2 and 15, com-

-. monly known as the ‘Sherman Act*’, and the ‘*Clayton

Act”’. » ;

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Circuit

»

-

is reported at 277 F.2d 359, and is also appended at page

of the appendix. .

The opinion of the District Court dismissing, the com-

plaint, and refusing leave to file a proffered amended com-

plaint, were affirmed by ‘the Court of Appeals, and is

reported at 171 F. Supp. 90, and 174 F. Supp. 450.

JURISDICTION

The judgment of the Court of Appeals was entered May

15, 1960, and is included in the appendix at page Jo, The

time for filing petition for writ of certiorari in this Court

Was extended to and including September 192 1960, by an

order of this court dated August 10, 1960 and‘ thereafter,

to and ineluding October 10, 1960,

Jurisdiction is invoked here under 28 U.S.C. 1254/1).

Jurisdiction below was based upon Sections 1, 2. and 15

of 28 ULS.C., the “SHERMAN ACT‘, as amended.

: QUESTIONS PRESENTED

1. Whether the refusal of the’ District Court to permit

petitioner to file his amended complaint contravened?

provisions of Rule 1a(a) of the Federal Rules of

Procedure? : ;

2. Whether a complaint for injury by a private party

under Section 4 of the Clayton Act is sufficient if it states

Violations-of the Anti-Trust laws and injury thereby!

STATUTES INVOLVED

The Statutory provisions are Sections ] and 2 of the

Sherman Act, 15 U.S.C. 1, 2 and Section 4 of the Clavton

Act, 15 U.S.C. 26, together with Rule 15(a) of the Federal

Rules of Civil Procedure. These are printed in the appendix.

' STATEMENT

Petitioner’s complaint was filed on October &. 1958, The |

respondents filed their respective-motions to dismiss

3

complaint, thereafter, and the Distriet Court entered its

judgment under date of February 20, 1950, granting the

respondents motions to, dismiss the original complain. The —

said judgment reserved to the petitioner the right to tile

‘a motion for leave to file an amended complaint accom-

panied by the proposed amended leading and a vertifiea-

ton showing that copies thereof had been served on the

defendants except defendant, Medical Association. The

opinion of the said Distriet Court in this respect is reported

at 171 F. Supp. 90. .

That pursuant to the directive of the Distriet Court peti-

toners, on March 9, 1959, filed his motion for leave to file

“Proposed amended complaint, with Amended Complaint

attached’, and served copies thereof on his adversaries as

directed. :

The proposed amended complaint alleges that the re-

-spondents, the various Medical Associations, Newspapers,

Publishers, Better Business Bureaus and others, consti-

tuted parties who hades a common interest in a design to

injure and destroy petitioner as an individual and as a

meaner of the public, by restraining the interstate trade .

and commerce of plaintiff in lecturing, public relations, the

sale and shipment of food products, and the sale and ship-

ment of other products. ;

The amended complaint details many of the conspira-

torial acts of the respondents and alleges consequential

damages to the petitioner as a member of the public and

ty his business. On June 9 1959, the District Court entered

judgment over-ruling petitioner's motion for leave to file

his amended complaint and dismissed the action, The

ovinion of the Court in this respect is reported at 174 F.

Supp. 450. . :

Thereupon an appeal was prosecuted to the Court of

Appeals for the Sixth Circuit. The Court of Appeals in

4

affirming the judgment of the District Court, made no |

reference to the latter Court's opinion reported at 174 F.

Supp. 450. The Court of Appeals therefore did not discuss

whether or not the Amended Complaint stated violations

of the Anti-Trust laws. It chose, rathér, to attempt if it

could to discover, without examination of the violations

charged, a prejudicial effect on the public. Failing in such

search, it prevented petitioner from obtaining a trial hy

jury under Section 4 of the ¢ ‘layton Act.

REASONS FOR GRANTING THE WRIT

. Rk “i j I

THE DECISIONS OF THE COURTS BELOW VIO.

LATE THE PROVISIONS OF RULE. 15 (a) OF THE -

FEDERAL RULES OF CIVIL PROCEDURE.

Since there wére no responsive pleadings filed “at the

tine petitioner proffered his amended complaint the Court,

he was entitled as a matter of right to file his: atiended

complaint, effective against all adversaries wha had»!

_filed responsive pleadings.

The Courts have held that Motions to Rains and motions

. for sammary fudgment are mot responsive pleadings wit! .

the meaning of said Rule 15(a). See, Whithwoore vo Conte

nental Mills-(D.C. Me. 1051), Os F, Supp. 387, Van Dette v.

Aluminum Air Seal Vio, Co. (DCLN.D. Ohi, 1851). 11

F.R.D. 558, Porter v. Mantaldo (D.C.N.D. Ohio, 1946), 71

F. Supp. 372 and: Porter vy. Mickelberra (D.CND. Ul).

O FLR. Sery. 12 54, Case-1. Ws ,

The refusal, therefore, of the lower Courts to’ permit

petitioner to file his amended complaint viol: ited Rule Tata)

of the Federal Rules of € ‘ivil Procedure,

| a ai : |

IN RULING THE COMPLAINT AND AMENDED,

. )

COMPLAINT MUST SET FORTH ALLEGATIONS

SHOWING “PUBLIC INJURY” THE LOWER COURTS

HAVE DEPARTED FROM THE ACCEPTED TRADI-

TION AND ARE IN CONFLICT WITH THE GENERAL

RULE THAT A PRIVATE PARTY NEED ONLY AL-

LEGE VIOLATIONS OF THE ANTI-TRUST LAWS

‘AND INJURY THEREBY. |

It is submitted that prior to 1950, and the case of Bider-

An Motors, Inc.. vo Ward, 10 Cir, 1950, 180 Ftd oT, ona

review of a’ motion to dismiss, that once it was established

that defendants were not exempt from the Anti-Trust Laws,

and that allegations of interstate Commerce were sufficient,

that the Court would determine if the complaint ailewed

violation of the Anti-Trust laws. ‘This is all that Section 4

of the Clayton Act says it should do. “Phat any person

who shall be injured in his business or property by reason.

of nnvthing forbidden in the. anti-trust laws .. 0°. The

Fidirson case, however, established an additional require:

went that the complaint convince the Court of an inherent

* prejidice to the public. But the great weight of authority

csinee ISO has held that the only requirements for a private

person under this section to state a cause of action are

(1) to allege violations and (2) to allege injury thereby.

AS early as.1907 the Third Cirenit stated in Wheeler

Steurl Cov. Nat'l Window Glass Dibbers ‘Ass’n, 12 Fed.

ST. that It is manifestly the correct understanding of the

Seventh. Section of the Aet fhat where a man is harmed in

his business’ or property by a violation of the Act, he

has suffered a lewal injury and is entitled to his action

therefor’, . ; :

And the First Ciretit in dlbert Peck Barth Co.v. Mitchell

Woodhury Corp., 57 F.2d 96, in 1932, stated: ‘*To const!

tute an offense under Section 1 of the Sherman Act, it is

not necessary, if a conspiracy is proven, the purpose ond

6

intent of which was to eliminate by unfair means a com

petitor in interstate commerce, to show the public was

affected and to what extent”’. |

In Monarch Tobacen Works v. A merican Tohaces ©

the Cireuit Court in Kentucky stated in 1908, 165. For

#74, 777: All that is necessary to support the action js tha

business or property of the coniplainant shall have beer y

some way injured by reason-of the illegal scheme”

And the Second Cireuit.in Gardella v. Chandler, 172 F 2c

402, held in 1949, that a baseball plaver was entitled +

trial by jury under the Sherman Act when the basehal,

league prevented the plaintiff from obtaininy employer

in its rank after. a flight to Mexico,

Indeed the instant opinion of the Sixth Cirenit is mete

in confliet with the foregoing deeisions of other eireujts sc

this court, but. it is in confhet with its own decision. Tin

Judge Lurton speaking for the Sixth Cirenit in Toe

Cituof Athanta v. Chattanooga Pipe and Foundru, V7 Boo

ae. afirned 208 ToS. 390) 27-8. Ct. 65, STL 241, -

© at's awl yg

“Congress evidently foresaw the Wholesome effect io

euniary responsibility for injuries resultine fron: sel ter

hedden combinations and the courts should not devital»

the remedy by strained interpretations caleulated too

age disregard of law. The act gives the remedy te

person injured in his business or property by any other

person or corporation by reason of anything forbidder o

declared ‘toe be unlawful by the aet.""

A dandmark private action case is that of “Ros len:

Phister, 7 Cir, 1942, 125 F.2d 417. where it Was beeld tha’

ou cause of action was stated by an agent of the defendant

principal who conspired to deprive him of his job ope

tuivities, |

That the cireuits are in clear eonfliet over the pew

trine of Public injury may be seen in National, ety. o Xo

tonal ute, ete., M1, Uist yop. Dc’, S13, 2 Ftd fot, tte,

where the Distriet of Columbia Cireuit stated: ** We think

jt might be determined as a’matter of law that the broad

trade boveott here alleged is reasonably caleulated te pregu

dice the public interest. Towever that may be. we think it

is hot necessary to take specitic allegations of proof of

public injury in order to show that a trade boycott of such

breadth violates the Sherman Aet. - cs%.

There is a elear contliet between the Sixth Cirenit and

the Distriet of Columbia Cirenit,

This Court has recently Set ait rest any misapprehension

as to what is the law. Thus in the case of Raderich v. Nat'l

Bo thal Leanne. B52 US. 44. 498 C1997 She Court in sus

taining the complaint said’: **The test as te suffieteney laid

down by Mr. Justies Holmes in Mort vo BoB. Neth. tes

Me TOS. 271 274 (ony. is whether the claim is wholly .

frivolous. While the complaint might be more precise th its

allegations concerning the purpose und effeet of the con

spiraiey, Wwe ure not prepared tor sain that mothing enh bye

extratted from this bill that falls under the Net of Con

gress, Petitioner’s claim need only he tested under the

Sherman Aet's general: prohibition on urireasonable re

straints of trade; Times Picannw Publishing Vows, Lo ppiteald

See MS TUS. 5940614 C1952). and med the requirement

that petitioner has thereby suffered fniury. Congress has

hy Jovislative fiat, determinéd that such prohibited activities

are tearions té the public. and has provided sanetions al

laving private enforeement of the anti-trust laws by an

averieved party. These laws proteet the victims of the for

hidden praetices as well as the publie’’.

. CONCLUSION

It Seetion 4 of the Clavton and Sections 1 and 2 of the

Sherman Aet are susceptible to such evisceration, ther be-

- ;

.

come a share for the dissipation of time and money br

unwary private litigants. If the Congressional -mandat

embodied in said ‘Sections is to retain vitality this Court’ .

attention is needed. A writ of Certiorari should Accord.

ingly be granted.’

Respectfully submitted,

, James C. Newtos

1934 Sth Street, NAW,

Washington 1, 1D. ¢

’ Atternen for Pr titiower

APPENDIX

"Civil No. 34,891

IN THE UNITED-STATES DISTRICT COURT

Fork tur Norracen: Distenet of Ofte

easTt iN Ly ES teeN,

.

Apotpiu Plomenxser.

Pliavnt se

AK EON Bs yCurN obt |

Ey A

J). wean

RELEVANT DOCKET ENTRIES

ae os Complaint tileed. SStpre teens tsstect. Do -

summets with 15 copies et

] Sn ee

» i | . bes

IP OS Motion of T

nine Te VI; ?

bees PReir<])- Mreoores Ne

wepuipers. In

? ‘ . - . °% ‘ . ’ , > ‘

ariel olevdey (rs. Caren te chiem == fide] Ceotetee—s PMbisietd’ Teo Pull

ofr te brief fil he eee ee ae

f ceo Deh ley tiled ' Poees root SP OOUITRiTai. Ofs ULF

} iv as Mati ath terval frills } re i

HPrsees nisibed 3 2 eee

= VMotion ot he Pe-tie ben

ef Akron,

YT +)e)

t Better Basiness Bur

Ine. to dismiss fiped. Copy mailed TD Ts os.

Ss Answer of Sumit County, Aledies! Society

dtd toemibers served filed. Copies mailed.

3 oe oe Special cupop eae renee and tfetiom «©

f Defendant.

trerienn Medienl Association to quash service and to dis

- .

1)

miss the complaint as to it. with affidavit and memo. 1:

port filed. Copy mailed 11/24 58.

2/25 59 Order granting motions to quash and distuissing

complain as to deft. A. M. A.; motions of all movant.

fendants to dismiss‘granted, leave file amended con plain’

denied; plaintiff granted 10 days to move for leave to Hi

amended complaint fled, McNamee, J. Copies te Hohens

MeDowell, Buckingham, Vodrey, Milligan, Lansdele, Vive

225050 Motion of Summit County Medical Soot

Members for a summary judgement filed. Copy me

2/24/00

39 59 Motion of plaintit? to file amended complain’ |

Copies matled 3 659.

69°50 Memeo. of Opinion filed, MeNarnee, Po Cretein’ w

motion for leave to fle ao amended Cony) laint Is evern

and detion ts distnissea at plarmtith’ ~ COodgeTiot ?

fondant Summit County Medical Society) for sn

jndygment is granted). Copies mailed te Tlohenses.

Dowell, Jr. Lansdale. Parsons, Myvery7Wndrey,

Millizan, Pr. :

614 59 Order granting: motion ef defendant So

Cunty Medieal Soc. for stinmary indement: thar

Y{

tiffs motion for leave te file an amended comumlan

rided and that th: eomplatnt is dismissed ato mia”

costs filed, MeNamee, J. Copies te plaintif? and Post

v/a ot} Notice of plartut? of appeal filed. Conver

(. Blake MeDowell, Jr. ohn Lansdale, .Ir.. Dwighs 2

sons, Robert LeMvyers, William Tl Vodrey, Jr. Leroy.

Contie 7/7/59.

7 14 59 Supplement te notice of appeal by plains?

Copies mailed to all counsel.

. COMPLAINT

(Filed Opt. 27, 1958.)

This action arises under the anti-trust law-

i

11 *

U. S., more particularly the Sherman -Anti-trust: Act, i)

US... Sec. 1,2 and the Clayton Act, Sec. 15, as hereinatter

more tully appears.

) The ground upon which the jurisdiction of this Court

depends is that this-is an action to protect trade and cor,

werce against restraints and manopolies.

2. The conspiracy herein complained of covers the period

“

beginning with June 1, Typos. te the date ot th filing of

he instant action.

: tu 6 > . e @ ; ‘ . A ee

$. Plaintiff is and at all time mentioned tn this Compliant

Was etiraved in interstate trade and cormtneree, ti Uh tel

° ,

lowing businesses :

a. Lecturime.

t Pubtie relations

™“ Nine ot focal prodnets

1 Selilny ot other mrectwyets

‘ iti

Pablishine. writing and distetbutine books) perrodredts

aniel other perablredat ths a

f Other Businesses.

Pyefeneants at cdl tire darine the stated periods beter

Indiented, ht aly teal ee Wsaaes sy ihits! 1! mtiti le

‘

straint of trade and cofumeree between the several st

Libel,

h Slander

COmcistine af thie follow Me overt anel raat te!

ce Destrnetion of businesses.

d. Other unlawful overt acts.

(Defendants, in. performance of said overt acts. In

ITLL

‘

furtheranee of the eonspiracy. unlawfully slandered

Hive) plaintif® on numeronsaerastettssnelitas the delih

erate erroneous distorted, earbled and libelous Newspaper

.

a

i

vrticles publistied in the: Canter, boeeprersi terns

MOS, pase 2h entithet— Yon Net a’ Machine. ft

On bine TP DOS, pate Dy entintedt * Pampbiler, in

Ress Brisk pane the artiol: published inthe Abe

-Jonrnah Oetober 1h, DOs, entitled "Nutrition <r |

With Law, AMA

Satbd otter unmlawtul overt ove

poreeens tie’, Tee reestusvter sumed bittrler sisted dnetenstaat

COTTE esibked Geitiowes 3 Dist ! '

Peet,

0. NS ce restilt of sanded constr cies Gry peste

;

CVobele: Sttbel Comite Pesvettett edoreatt

‘ roel as follows:

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ORDER GRANTING MOTIONS TO DISMISS

t Fuleed be!

pen }

\ prenee onsideration,

fe [5 hye epie that. thee reotienscet the Ate picgits Mevetieal

{esocjation te qinish amd te distuissare bereby ¢ Panitecd ane

te complammt os berebs ad atirissod sas tee DDete ted tAame

cath Meebieal Asscenatiar ;

Pocener. Pr Is Orteken that the motions of Defemesant

Preestore ti ehorrrnice! Prats hig rv © onterpocel Ger P Pentierenty PiseTbiered

Niner Besreor Setpenias! Publishinc @ Onranee bat =

Keoah.t. Beobeert © Beleticcarny Better Business Brrean of

Agror. ney Brust Meurer New spatper=, Pre. ob Ger Ceres

el AND. Dibba tee bison teguut tou ! ,

Ve i H " { ctniy: ! !

i tee, dr q-. © belt’ mm '

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‘ fia, ? rpece '

. { " Pree ie} eqial -% a 1) ’ \

MOTION FOR LEAVE TO FILF PROPCSED

AMENDED COMPLAINT WITH AMENDED

COMPLAINT ATTACHED.

(Bibel Mart 105003

Cone They pelsumnitit’. Nedootpe Phebe “4 ! ant! Fob eet

errant fe Bade Preba at the: Peefe rsd Bente - ‘ it

anedl flee order of this Comrty enter or Ketruntr

VO. arb prreve s thee ceotre Leer certs Toh re \

> 14

Complaint and attaches hereto and tenders to the Cl

proposed Amended Complaint:

Submitted without urgurment,

Apotper Ppa sans

Mivredy ti, }an4. :

.

AMENDED COMPLAINT

Comes snow Plaintitl, Adolph Hobensee, wit

court first sought and tenders to the court for its.

Hen and approval his Amended Coniplaint. as to

Jurisdiction

] Th - Aru rivtead c¢ ‘omyplatnt ts T! val cilyed the ™

Mugs «Els iristiftuted tig dist othe ribose Tisettiered

Utich ? seetions ibe 4 sited ri at tite Net oof C cotparrecce

TSH Seu 6a. SH Staats carneerttleed. eens

to Protect Trade and Commieres aeninet Doe!

=) foe? = stil Vonirpatios, ssid Net bi PPUGLY ChcoT egy cot

> ‘ . . ”

tis the Sherman i aa lo | AL, Seetiags l, “hy ait

2. Pinintntl. fora dong time prior to cdurine wa

Condes por Merlaer +] ile’ . his Ys Pisa tte ar 4 rtltneratee!, Mis

emtiven oof the Unitee States. and was ealn ts

eretiite Trade oneab caritriakee. ry the candy

ORTIT ER . a ‘

ES ae }

harms et feature. onerpbel redgity

rf w i etitiotis, side at Levee ‘

publention. writing. and the dist: hutier at te

thn rabother Gnterstate: trade aimed comiumeres

. :

Description of Defendants

The defendant, Beseon Journal pPublisioec ’

PUUN. ts a Corporation enwawed in the publieatiar

“ AKroy Beacon Journal’ published laity in OSSD

Counts at Akron. hie. and engaged im other pubes

ba The ake fenadant, elevhiny I Knight, Is a eltizes

‘

®

lo

United States and a resident of Summit County, Mhio.

) Defendant, Robert Feldkamp, is a citizen of the

United States, a resident of Summit County, Ohio.

id) Defendant, Summit ¢ ‘ounty Medical Society, by end

through its officers and members, the defendarts, Donald

‘Minning, Arthur Dobkin, Frank MeDonald and Millard

Baver, and also officers and members of the American Medi-

cul Association, are sued as a Class and as indjviduals. ,

) Defendant, Suninits County Medical Soviety, Ine.,

it cane ik a local’ medical society, doing business in

Summit Connty, Ohio, in Akron.

’) Defendant, Better Business Bureau of Akron, by and

eee its officers and members, the defendants, Potin Dow

lohn Doe 10, John Doe 11 and John Doe Tare residents

repos

of Summit County, Akron, Obie, and are sue «lias tl

sentatives of the class and in their inelivieluel capared ties,

iy) The defendant, Better Busines Bureau of ANikren,

lnc. i is ac orporation, ehiage dit 1 pour! Jhevcatieone cats ty

hess in Stirmmit County, at Akron, Obde,

i) Defendant. Brust Moore: Newspapers. Die. seed

port on, eng@ared in the publication of the ttt atten Pepa.

tory a daily newspaper published at Conmton, Ota, wt

the Eastern Division of the Northern DPstrict of en

Defendant, Gi Greene is ho err oof the |

Stitessa resident of Canton, Ohio,

Defehdant, W. od. Hine. is a eitizen af the Veriton

Sates a resident of Canton, OMiie,

iki That “e identities and Whiereaboants of Serbis Paw Neo

I theough John Doe No. 487. are mot new knewt te

rider, Plaintiff states that as ther identities and where:

Tie

‘ +) Peieal 4 94 e<fyes

. ray } e : ;

nhouts beeome Known to hin, prior ta thie baal Ot Thie

herein. de Will enuse stmimotis to be served: tpete then

"I 7h) the forewoiny defendants towethy r with ath YT ¢o-

(ay <P ITutoOTrs, fies well ss the o8 Veobiy [deren perfor rere tea 1) his

16

caption constitute parties who bhve combined Thiettise lives

toxether and have a common inte rest in a comsumina’

design to injure and tle ‘stroy this plaigtit’ as dn ined

widas a member of the publie, and his Use gia oe Mae

ie tublie, and tole strowv thie Feht of the pubdic otheltieling 1

rig of the, ! Harti’ as a member of : public tes

und engage in interstate trade and comm» yas ay

toere fully hereinafter, hus causing uit jury

the public, aa

Conspiratorial Offenses Charged

That during the period covering June tT4, Tos +

» OMe pais Zr, 1998, the above defendants, and enel of the

and other co-conspirators, lave been and mow are engaged

Ina combination ane comnts, amd im se deine hav

cornbined ane conspired towethier in Violation of seetions ]

ee doand Toot the said Sherman Apt

(a) Torestrain the interstate trade sane ‘onntnerer at the

public, and of this plaintit® as a member of said pubs]

" turing, public relations, the stile ane shipment of

products. the sale and shipment of other products.

(hd) The foregoing defendants together with other co.

consiprators have combined and conspired, Im Vielation of

the said Sherman Act to restrain the publie's rights. cod!

rights of this plaintit? as a member of the publle. trey

spealing in auditeriums and other places on nutrition, foots

vnd other products shipped throngh interstate: trade ond

commerce, by legally couspiring to sh: adow, screen, clister

una discredit: the speeches and leetnres te’ the porte!

cluding the speeches and lectures of this piaintitt. Ard

by performing the acts and engaging én conduet hereinatt

and hereinbefore alleged, the defeudants and their eo-con-

spirators have continuously planned and acted together

discourage and prevent members of the publie froty trave!

ine. both interstate and intrastate, from attending sneh lee

17

tures and speeches conducted by plaintiff, and from buying

said products sold by plaintiff. That the aforesaid: illegal

combination and conspiracy, and the acts, agreements, and

understanding which formed a part of, and were used in

-fectuation thereof, have been carried out by diverse means

aud methods including those hereinbefore enumerated and

others hereinafter described,

(¢) That for many vears prier to, and during the period

covering June 15, 1958, to Oetober OT WOSecand thereafter,

defendants had been engaged ina concerted effort to de-

stray all who dared te leeture on nutrition and the scate of

products, including this plaintiff as am ember of the publie,

and said defendants have confedernted in Various ane sun

dry methods to effectuate their purposes in the prevention

of members of the public’ from the attendance of} such

speeches and lectures. Al) in violation of the Sherman et

as aforesaid.

» That in purstlanes of, and in furthercanen of thee feore

going combination and conspiracy, agreements and under:

standings, each and all of the defendants sed their cen

conspirators have, With suneh malicions and unlawful intent,

during the period from June 14, Tos, te Oetober 27, 1s,

interfered with and prevented plaintiff from condneting his

leet ares, speeches, sale of produets ~ PT repre in Interstate

trade and commerce, tne that in Canton, OMiien clefeerebant.

WoT. Hine, and his co-conspirators lrrassed. tntineiderted

and threatened plaintiff, thereupon stating te plaintiit that

if he, the nlaintiff. did not discontinue dis leetures rine

speeches and sale of products shipped in interstate earn

merce, he. the said defendant, wonld throw him, the plain-

tiff. ont of Canton, Ohio. ‘That said defendant eontinned

to harass and threaten plaintiff and embarrass plaintiff's

andience, and as a result of same. plaintiff was eempelled

to discontinue his said lectures, speeches andl sale of prod

18

ucts in Canton, Ohio, all to the great damages of plainti?.

That thereupon plaintiff transferred his said lectures and

speeches to Akron, Ohio, where as a member. of the public

he sought to engage in his interstate trade and commerce,

of lecturing and speaking on nutrition and the sale of pred.

ucts shipped in interstate trade and commerce, together

with the distributions of literature shipped: ins iuterstar

trade and cominerce.

That in pursuance of the said combination pee col:

spiracy, and in furtherance: of the said) agreements an

understandings of the said defendants, and while the tlini

tiff was conducting a series of lectures, as aforesaid, th

said defendants continued to harass, enibarrass bili. saw

continued to threaten him; and did unlaw fully shadow,

screen and distort the true values of his said lectures, ati

did resort to unlawful and unfair methods in discouraging

the public from attending his said lectures, That in furth«:

ance of the said combination and conspiracy the sid le

fendants did slander and cause certain libelous articles te

be published and cireulated of and conce rodney. polsaintitt’s

evaluation of plaintiff's products shipped in interstate trad

anc commerce, tor the sole purpose of restraining the ul

“Te and the plaintiff as a member of the publie frome ship. +

ping in interstate trade and commerce products subject to

public comment, after shipme nt, as having value. All of the

foregoing was in violation of the said provisions of the said

Sherman Act. That thereafter, as a result thereof, plaint!?

“Was forced to discontinue. his lectures in Akron, Ohio.

7. As a result of the foregoing combination and con

spiraey in restraint of interstate trade and commerce: the

publie was directly and indirectly substantially injured and

damaged, and the plaintiff as a member of the publie was

injured and damaged:as follows:

a. Destruction of lecture business.

19

b. Destruction of products sale business.

ce. Destruction of health.

d. Loss of freedom and liberty.

e, Other bosses, injuries and damages.

all amounting to treble damages in the sum of ten million

* dollars ($10,000,000.00). ;

Wuenrerore, Plaintiff Prays:

1. That the acts of the defendants he relubefore dene ‘ribed

constitute a combination’ and Conspiracy in restraint of

trade and commerce in violation of sections 3 and 7 of the

said Sherman Act?

9 That the defendants and each of them; and each and

all of their respec tive officers, directors, managers, agents,

enplovees, and all persons acting er claiming to act on

behalf af them, or any of them, be perpetus ally enjoined,

individually and collectively, from further engaging in,

agreeing to perforth, or in fact performing, said conspiracy

orany part thereof, or any other conspiracy of like’ chatac-

ter or effect, or any of the acfs, agreements, undet ‘standing,

or concert of action described in this amended complaint,

9

3. For judgment of this Court against defendants, and

each of them, for treble damages in the sum of ten million

dollars ($10,000,000,00), with interest thereon from June

15.-1958, together with counsel fees and costs,

4. That the plaintiff have such other, further general,

"atid different relief as the case may require, and the court

may deem just and proper in the premises. .

ok Apourn Hournser, Pri se.

March 6, 1959.

| ORDER |

(Filed June 15, 1959.)

Upon consideration, :

Ir Is Orperep that the mofion of the defendant for sum-

1)

inary judgment, treated as a motion to dismiss, is here!

granted.

Ferner. Ip Ts Ornenep that plaintiil’s motion for

to tile an amended complaint is overrnled,

Ir Is. Tretrerone, Orperkp that the complaint: her

hereby dismissed at plaintith’s costs.

Cuseres J. McoNamer,

United Stat . Distrs x

UNITED STATES COURT OF APPEALS

For tHe Sixtu Creecir

Filed May 13. 1960, Cann W. Rervss. OC) rl

Apouru Llouwenser, App Mant,

Vs,

Akron Beacon Jovuxar Prerusnine Coupary,

App I, rex,

Appeal From tee Usrren States Disterer

For THE Norruetesx Disrreter of Ont

| Eastern’ Divistos

Decided Mav IS, 160

Before: Simons, Senior Judge, Wetek, Cirenit Jude:

Horranxp, District Judge.

x”

ry ‘

Per Crriam. The appellant, as plaintitf, wanted $10,-

000,000 in treble damages from numerous devendants, with

interest, counsel fees and costs, for injuries growing out

of an allgged conspiracy to violate the Sherman Anti-Trust

Act, as amended. He listed as defendants: the American

Medical Association, its officers and members, the Akron

Beacon Journal Publishing Company, John S. Knight and

Robert Feldeamp, the Summit County Medical Society, its

officers and members, the Better Business Bureau of Akron,

the Brush-Moore Newspapers, Ine. W. A. Pine. amd some

five hundred **John Does’. The asserted damages are

alleged to flow for libel, slander, destruction of husrhesses,

and other “tunlawful overt acts’*. The complaint recites,

vithout supporting facts, destruction of a lecture and

products* sule businesses, injuries to health, loss of freedom

and liberty, and other injuries.” The recitals of the come:

plaint alleged no more than vague conchisions, capable of

ne intelligent respomse. s

Upon examination of the complaint aud of vartous me-

tions to dismiss, the Court coneluded that it lacked) jurt-

diction of the subjeet matter snl that the coruplaint failed

to state a lelaim upon whieh relief could be granted. The

Court ordered the action dismissed as te abl clefondants

onthe grouml- that the plaintiff hid) fa lel ter gadleae Pret

from whieh it may reasonably be inferred that the public

has suffered injury, pointing ont that injury te the prblte

thust specifically lee started! tine constitnte norestraint. of

interstate commerce, Its Neagle 171 Fed. Supp. OO, is clear

and “up popte «l hy upp? ieable cases.

While the plaintiff's request for leave ter fide can smencded

complaint was overruled, he was permitted te file a motion

for leave to file an amended complaint sv ‘companied by the

proposed amemded pleading and a ecertifiention <Towing th:

copies thereof had been served npon all moving defendants

My “Want to thy vritntedt wy rIviisstoy)

purported to be an amended complaint. T)

Pertutission to file and supported the or

Inemorandum, filed Jurie & 159. not vet

from the order of elisnis amid thy rele

t¢ ! 1? yer { il «4 ’ ,

” orgrg | refi) tio< of ei orig

‘ ’ j ‘ q Tole

| cl nN Was sound | tl rtley

APPELLANT'S herp sang ye OF RECORD

(Fj 1? 1 (yest }

. e e

- — :

! rk of the United States Court of Apnents

. i

Sivtl { 7 nt will r,] simtthiununT trey, rir, ;

. ‘ it* ‘) Lt pit brie al t ai ! - | { i

rt? ~ (7) ~/ ror T? 17S NI y oy? Tifieor \ tf

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! ? . Qe { re ¢ Sw eto I PY

’ " ,

States ind nelude 4 SAicl traneerieyt } tor

. . . =~

2 Jnudement entre red Mav 1:3. TOF

O05) nior dated May 13. 1960

$ This designation of record.

The petition for Writ of ( rtiorari is beine filed in the

see. 1254 (1). 6? Stat. 9K,

The following question is presented on the petition

Writ of Certiorari: :

Did the (‘ourt of Apr eals for the Nixth Cirenit er? in iti