O'Connell v. Citrus Bowl, Inc.

99 F.R.D. 117, 1983 U.S. Dist. LEXIS 13949
District Court, E.D. New York·Decided September 9, 1983·No. No. 81 CV 4054 (ERN)·Published·Cited by 10 cases

Opinion

MEMORANDUM OF DECISION AND ORDER

NEAHER, District Judge.

In this action under the Robinson-Patman Price Discrimination Act (the “RobinsonPatman Act”), 15 U.S.C. § 13 et seq., plaintiffs challenge the legality of certain business practices utilized in marketing and distributing citrus fruit products sold under the generic name of “Tropicana Product Sales, Inc.” (“Tropicana”) in the New York-New Jersey-Connecticut metropolitan region. According to the complaint, plaintiffs John O’Connell and John Governale, as well as the membership of the plaintiff corporation, Metropolitan Juice Distributors Association, Inc. (“MJDA”), are independent distributors of Tropicana products who service small retail grocery stores along individual routes throughout the metropolitan region. They complain that the defendant-suppliers,1 acting in concert or individually, have discriminated against them and all other independent Tropicana routemen in violation of the Robinson-Patman Act by: (1) precluding the independent distributors from utilizing distribution terminals available to other favored customers; (2) requiring the independent distributors to pay certain operating costs not levied against these same favored customers; and (3) employing promotional, discount and rebate policies which favor customers other than the independent distributors. Plaintiffs seek treble damages under section 4 of the Clayton Act, and an order pursuant to section 16 of the Clayton Act, 15 U.S.C. § 26, enjoining the alleged discriminatory practices.

Following a year of extensive discovery, plaintiffs have now moved to certify a class of plaintiff-distributors pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. The class proposed by plaintiffs consists of all persons, corporations and other entities purchasing Tropicana products from the defendants for resale in the metropolitan region. According to plaintiffs, the number of putative class members is approximately 80, including both O’Connell and Governale as class representatives, the other 53 members of the MJDA, and an estimated 25 non-MJDA-affiliated Tropicana routemen. In response, defendants have raised numerous objections, the principal one being the difficulty of adjudicating Robinson-Patman Act claims on a class-wide basis. For the reasons set forth below, the Court agrees with this contention and accordingly plaintiffs’ motion must be denied.

Rule 23 Requirements

To maintain a class action, plaintiffs have the burden of proving that they meet all the elements of Rule 23(a) and the requirements of at least one of the subsections of Rule 23(b). Free World Foreign Cars, Inc. v. Alfa Romeo, 55 F.R.D. 26 (S.D. N.Y.1972); 3B Moore’s Federal Practice ¶ 23.02, at p. 23-96 (2d ed. 1978). While defendants claim that plaintiffs have failed to establish compliance with the elements of Rule 23(a), for purposes of this motion, Rule 23(b) presents a more formidable and fun[120]*120damental obstacle to certification of the proposed class. In the interests of efficiency and judicial economy, only the requirements of Rule 23(b)(3) will be discussed.

A class action may be maintained under Rule 23(b)(3) only if

the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

F.R.Civ.P. 23(b)(3). In this instance defendants contend that if the proposed class is certified, individual rather than common issues will predominate with respect to both liability and damages. Consideration of that contention requires examination of the claims raised by plaintiffs’ complaint in some detail. Shaw v. Mobile Oil Corp., 60 F.R.D. 566, 568 (D.N.H.1973); Abercrombie v. Lum’s, Inc., 345 F.Supp. 387, 390 (S.D. Fla.1972).

The Robinson-Patman Act

As noted above, the focus of plaintiffs’ complaint concerns defendants’ purported discrimination against the independent distributors. Unfortunately, neither the complaint nor plaintiffs’ moving papers clearly set forth the statutory foundation for plaintiffs’ claims or even the precise nature of their injuries. In paragraph 1 of the complaint, plaintiffs assert that defendants’ business practices violate “section 2(e) of the Robinson-Patman Price Discrimination Act.” In the same breath, however, plaintiffs also invoke all the other subsections of section 2 as well as the criminal proscriptions of section 3 of the Act. Adding to the confusion, plaintiffs then go on to assert in the three separate substantive counts of the complaint that defendants’ business practices “result in price discrimination,” an allegation actionable under section 2(a) of the Act.

Given the somewhat opaque language of the Robinson-Patman Act, plaintiffs’ lack of precision in drafting their complaint is perhaps understandable. Nevertheless, since each portion of the Act is directed at distinct wrongs with different jurisdictional and evidentiary requirements, see Hansen, Robinson-Patman Law: A Review and Analysis, 51 Fordham L.Rev. 1113, 1124-25 (1983), our analysis requires a more precise definition of the allegations. In this respect, plaintiffs’ citation to section 3 of the Act can be readily omitted. Courts have long held that the proscriptions of that section can only be enforced by the Attorney General and thus no private cause of action exists for its violation. Safeway Stores, Inc. v. Vance, 355 U.S. 389, 78 S.Ct. 358, 2 L.Ed.2d 350 (1958); Steel Slides, Inc. v. Walter Kidde & Co., 321 F.Supp. 613 (S.D. N.Y.1970). Similarly, neither section 2(c), which pertains to “dummy-brokerage” cases, FTC v. Henry Broch & Co., 363 U.S. 166, 168-69, 80 S.Ct. 1158, 1160-61, 4 L.Ed.2d 1124 (1960), nor section 2(f), which prohibits the knowing inducement or acceptance of price discrimination, 15 U.S.C. § 13(f), are germane to plaintiffs’ allegations.

Sections 2(a), 2(d) and 2(e) reach related but distinct forms of business discrimination. Section 2(a) prohibits any form of price discrimination in the sale of commodities of like grade and quality when the effect may be to injure competition at either the seller or customer levels. 15 U.S.C. § 13(a). Sections 2(d) and 2(e), on the other hand, preclude more subtle forms of discriminatory favoritism. Section 2(d) prohibits a seller from paying its customer for “any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by [the seller]” unless such reimbursement is available to all competing customers on a proportionally equal basis. Id., § 13(d) (emphasis supplied).

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O'Connell v. Citrus Bowl, Inc., 99 F.R.D. 117, 1983 U.S. Dist. LEXIS 13949 (E.D.N.Y. 1983).

99 F.R.D. 117 (O'Connell v. Citrus Bowl, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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