Continental Baking Co. v. Utah Pie Co.

396 F.2d 161
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 7, 1968
DocketNos. 7306, 7308, 7309
StatusPublished
Cited by3 cases

This text of 396 F.2d 161 (Continental Baking Co. v. Utah Pie Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Baking Co. v. Utah Pie Co., 396 F.2d 161 (10th Cir. 1968).

Opinion

ORIE L. PHILLIPS, Circuit Judge.

Utah Pie Company1 brought this action against Continental Baking Company,2 Carnation Company,3 and Pet Milk Company4 under Title 15 U.S.C.A. §§ 15 and 26.5

The complaint charged that the appellants entered into a combination and conspiracy to restrain interstate commerce and monopolize such commerce in violation of §§ 1 and 2 of the Sherman Act (15 U.S.C.A. §§ 1 and 2), to be effected by destroying the competition of Utah Pie through the weakening of its capital structure and the destruction of its profits, and to violate § 2(a) of the Clayton [163]*163Act, as amended by the Robinson-Patman Act (15 U.S.C.A. § 13(a)), by price discrimination in the State of Utah, effected by selling their frozen pies at prices “below cost” in the State of Utah and at lower prices in such state than they charged for their frozen pies “in other western states.” 6

The case came on for trial in February 1963. At the close of the evidence, each appellant duly moved for a directed verdict in its favor on the § 2(a) claims asserted by Utah Pie. Each motion was denied.

The jury returned a verdict in favor of the appellants on the conspiracy claim and a verdict against each appellant on Utah Pie’s § 2(a) claims. Each appellant, in accordance with Rule 50(b) of the Federal Rules of Civil Procedure, duly made a timely motion to set aside the verdict against it and enter judgment n. o. v. in its favor on Utah Pie’s § 2(a) claims. Each motion was denied.

On February 23, 1963, a consolidated judgment was entered in favor of Utah Pie and against each of the several appellants for treble the amount of the verdict returned against it and for attorneys’ fees and costs, and on the same day a decree was entered against each appellant permanently enjoining it from violating § 2(a).

Each of the appellants separately appealed from such judgment and decree. Thereafter, the injunctive decree was stayed by this court by an order entered March 21, 1963.

Each appellant, in its statement of points, urged several grounds for reversal. This is a second hearing of such appeals by this court. At the first hearing, we considered only one of the grounds urged by each of the appellants, that is, that the evidence against it was insufficient to warrant the jury in finding that it had engaged in price discrimination between purchasers of commodities of like grade and quality or in other acts, the effect of which had been, or the probable effect of which would be substantially to lessen competition or to tend to create a monopoly in any line of commerce. We concluded the evidence was insufficient to support such a finding and reversed the judgment and directed that the case be remanded, with instructions to enter a-judgment in favor of each of the appellants against Utah Pie on its § 2(a) claims.

By a petition for a writ of certiorari, Utah Pie sought review in the Supreme Court. The Supreme Court granted the writ and held that the evidence as to each appellant was sufficient to sustain a finding of probable injury to competition by price discrimination by it, within the meaning of § 2(a), and reversed the judgment and remanded the case to this court for consideration of the other grounds urged by the appellants for reversal, expressly stating it did not intimate “any views” on such other grounds. See Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 87 S.Ct. 1326, 18 L.Ed.2d 406.

Each of the appellants has filed a separate supplemental brief and a reply brief and Utah Pie has filed a consolidated supplemental answer brief. Such other grounds for reversal have been orally reargued and the case again submitted to this court.

The jury also returned a verdict in favor of Continental on a counterclaim asserted by it, charging a § 2(a) violation by Utah Pie. On Utah Pie’s n. o. v. [164]*164motion, the court set aside that verdict and entered judgment on the counterclaim in favor of Utah Pie, notwithstanding it had not moved for a directed verdict in its favor on the counterclaim.

We held that the trial court erred in entering judgment n. o. v. in favor of Utah Pie, because it had not moved for a directed verdict in its favor on the counterclaim, but for reasons stated in our former opinion, we remanded the case for a new trial on the issues raised by the counterclaim. Continental and Utah Pie acquiesced in our decision with respect to the counterclaim. Hence, only a limited consideration of the counterclaim will be necessary.

In our approach to the remaining issues presented by these appeals respecting Utah Pie’s § 2(a) claims, we start with two established premises:

1. That the evidence against each appellant was sufficient to support a finding by the jury of price discrimination by it, the probable effect of which would be injury to competition within the meaning of § 2(a);

2. Since the jury found in favor of the appellants on Utah Pie’s conspiracy claim and Utah Pie has not and does not challenge that finding, the case in its present posture presents a separate and distinct § 2(a) violation claim against each appellant, which must be separately considered.

While claimed injury to competition and compensable damages to Utah Pie present separate issues, in that the former may be only probable and in the future, and the latter must have already occurred, we must keep in mind that the Supreme Court distinguished the instant case from the cases relied on by this court in its former opinion, for the reasons stated by the Supreme Court, that they involved no “long-term market price decline,” no “general decline in price structure,” and no “lasting impact upon prices.”

In passing on the issue of probable injury to competition in our former opinion, we made what we regarded and still believe was an exhaustive and correct statement of the pertinent facts, in five parts. (See Continental Baking Company v. Utah Pie Company, 10 Cir., 349 F.2d 122.) Those five parts are:

1. A general statement of facts pertinent in all the appeals (349 F.2d 126-130, inclusive);

2. A statement of facts in the main pertinent only in the Pet Milk appeal (349 F.2d 130-137, inclusive);

3. A statement of facts in the main pertinent only in the Continental appeal (349 F.2d 137-142, inclusive);

4. A statement of facts in the main pertinent only in the Carnation appeal (349 F.2d 142-147, inclusive);

5. Tables and charts in the text of the opinion and in the appendices thereto, the latter appearing at 349 F.2d 157-165, inclusive.

Reference is here made to the facts set forth in our former opinion and the appendices thereto, since in this opinion certain of the facts stated in our former opinion either will not be restated or will not be restated in as great detail as they were in such former opinion.

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