manufacturing level and that of the dealers in General Motors automobiles at the retail level, and holds that the latter is susceptible of illegal restraint by the manufacturer.
Likewise it was long ago held in O'Halloran v. American Sea Green Slate Co., 207 F. 187, 193-194 (D.C.1913) that "Sea Green Slate" is a specifically identifiable commodity, susceptible of restraint or monopolization, even if it meets competition from black slate from Pennsylvania and Maine and other places, and also a variety of other roofing materials.
Similarly it has been held by this Court that Pennsylvania crude oil is of a particular quality and is distinguishable from other oils. United States v. Pennzoil Co., 252 F. Supp. 962, 973 (W.D.Pa.1965).
The essence of monopoly being power to control prices and exclude competition, Lessig v. Tidewater Oil Co., 327 F.2d 459, 474 (C.A. 9, 1964), there may exist situations in which such power cannot be effectively established if fungible substitute products are available in the market. United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 392-395, 76 S. Ct. 994, 100 L. Ed. 1264 (1956), This would seem to be the situation in the case at bar.
Product differentiation through advertising, styling, and other features is common in the automobile industry. There has been testimony in the case indicating that much of the business of a dealership consists in selling new cars of the same make to loyal customers. It is common knowledge, however, that there is a limit to the brand loyalty of automobile purchasers. When cheap and available transportation is made available through a competitive product, it is certain that many purchasers will deviate from their traditional loyalty to particular brands. This is illustrated by the experience of Henry Ford in introducing the original "tin Lizzie" and also by the large sale of compact foreign cars such as Volkswagen and Volvo.
Thus it seems clear that no effective price control by Chrysler or exclusion of competition, amounting to monopolization, could be effective in the Allegheny County market in face of the competition of General Motors, Ford, and other manufacturers. The brand loyalty of Dodge owners would undoubtedly dissipate in the face of price increases to a monopolistic level. No successful monopolizing of the Allegheny County Market for Dodges could be achieved without collusive or coercive arrangements to render ineffective the competition of other makes, and no evidence of any such arrangements is in the record in the case at bar. We therefore must grant the motion for directed verdict with respect to the charge of monopolizing, under Section 2.
With respect to the second offense under Section 2, attempt to monopolize, the situation is different. Here "The acts of attempted monopolization condemned by § 2 of the Sherman Act are those performed with the specific intent to unlawfully monopolize, but falling short of the goal." United States v. Charles Pfizer & Co., 245 F. Supp. 737, 739 (E.D.N.Y.1965). As there said: "The gravamen of attempt is the specific intent to commit an illegal act, but falling short of completion."
"Because the antitrust laws strike equally at nascent and accomplished restraints of trade, monopolistic designs as well as results are reached by the prohibitions of the Sherman Act." Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 622-623, 73 S. Ct. 872, 888, 97 L. Ed. 1277 (1953).
An attempt is, as the term indicates, a conative effort to achieve a result. The mere failure to succeed, or the impossibility of success, does not negative an attempt. When the Memorial Day races are held in Indianapolis, there is only one victor, but all the entrants attempt to win.
The mental or volitional element is significant in the case of an attempt. Specific intent is a necessary ingredient of an attempt when the acts performed fall short of the results condemned by the Act. United States v. Griffith, 334 U.S. 100, 105, 68 S. Ct. 941, 92 L. Ed. 1236 (1948); Lorain Journal Co. v. United States, 342 U.S. 143, 153, 72 S. Ct. 181, 96 L. Ed. 162 (1951); Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S. Ct. 872, 97 L. Ed. 1277 (1953). Cf. the comments of Judge Learned Hand in United States v. Aluminum Co. of America, 148 F.2d 416, 431-432 (C.C.A. 2, 1945).
Likewise with respect to the third offense under Section 2 of the Sherman Act, conspiracy to monopolize, intent, as evinced in concerted action, rather than possibility of success, is the crucial factor. For this offense the existence of a conspiracy is essential; whereas the cognate offenses of monopolizing or attempting to monopolize can be performed unilaterally by a single party. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 709, 82 S. Ct. 1404, 8 L. Ed. 2d 777 (1962).
as well as conspiracy,
may properly be inferred from circumstantial evidence and acts performed, as well as from explicit declarations of purpose or words uttered by the parties involved. What has been said previously with respect to the adequacy of proof of combination between separate legal persons under Section 1 of the Act is also applicable with respect to the charge of conspiracy under Section 2.
Accordingly, the motion for directed verdict will be denied with respect to the charges of attempt to monopolize and conspiracy to monopolize.