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December 2, 1971

Minersville Coal Co., Inc., et al., Plaintiffs
Anthracite Export Association, et al., Defendants

Muir, District Judge.

The opinion of the court was delivered by: MUIR

This matter is before the Court on Defendants' Motion for summary judgment against four plaintiffs *fn1" in this private antitrust action to obtain injunctive relief and recover treble damages for alleged violations of the Sherman and Clayton Acts. *fn2"

 A summary judgment may be rendered only if the record, which, for this purpose, consists of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits, shows that (1) "there is no genuine issue as to any material fact" and (2) "the moving party is entitled to a judgment as a matter of law." F.R. Civ. P. 56(c).

 While "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of alleged conspirators, and hostile witnesses thicken the plot," Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962), the considerations which compel that approach are not present in the issue presented in the instant case.

 The Defendants contend that four of the named Plaintiffs, West Coal Co., H & P Coal Co., Woratyla Coal Co. and J. & C. Coal Co. lack standing to sue, as a matter of law, because any injury to them flowing from Defendants' alleged unlawful activities was "indirect, remote, and consequential." *fn3"

 The Plaintiffs in this action are a group of corporations, partnerships and individuals which, between 1961 and 1968, were engaged in the business of mining, preparing, selling and exporting anthracite coal from coal fields in a ten-county area of northeastern Pennsylvania which contains 95% of United States anthracite reserves. The Defendants are nine companies which, during the period in question, were likewise engaged in some phase or phases of anthracite production and distribution and the Anthracite Export Association, an unincorporated association of coal producers formed in 1952 ostensibly for the purpose of promoting export trade in anthracite in accordance with the Webb-Pomerene Act. *fn4"

 Prior to November 16, 1960, the solid fuel requirements of United States armed forces in Europe were met principally by procurement of coal and coke from European sources. In response to a Presidential Balance of Payments Directive of November 16, 1970, a radical shift in military procurement policies led to the re-examination of eligibility criteria for the solid fuel requirements of United States military installations in West Germany. During 1961 tests were conducted to determine whether domestic anthracite could be used in the equipment at such installations as a substitute for European solid fuel, and, at length, Pennsylvania anthracite meeting certain specifications *fn5" became an eligible fuel under the Army Program. Thereafter, beginning with fiscal year 1962, the United States Army purchased substantial quantities of Pennsylvania anthracite from European importers for its military installations in West Germany.

 The complaint charges all of the Defendants with conspiracy to fix the prices of anthracite supplied by the Defendants under the Army Program, to divide and allocate among themselves the relevant Army procurement market and to limit participation in the Army Program to the Defendants and certain companies selected by them, to the exclusion of other producers, exporters, and importers, including Plaintiffs.

 The Defendants contend that the four plaintiff companies against which they have moved for summary judgment, unlike the other plaintiffs, are mining companies, which, in the period in question, lacked the preparation facilities necessary to convert the raw coal mined by them into the types of processed coal which the Army purchased. They further contend that the injury, if any, to these mining companies stemming from Defendants' alleged violations of the Sherman and Clayton Acts could only have resulted from a diminution in these Plaintiffs' sales of raw coal to coal companies which possessed the necessary preparation facilities to produce coal meeting the Army's specifications. They argue that the preparation companies, who alone were in a position to compete with Defendants for the Army contracts, would have standing to sue under the antitrust laws for damages of a direct and immediate nature, but that any injury suffered by the four mining companies in question is remote and indirect because they were mere suppliers of the parties directly injured.

 There is no genuine issue as to any fact material to a decision concerning this summary judgment. Although officials of the companies in question assert in their affidavits that H & P Coal Co., *fn6" West Coal Co., Inc., *fn7" J & C Coal Co., *fn8" and Woratyla Coal Co. *fn9" all possess rudimentary preparation facilities, it is undisputed that coal leaving these four companies' facilities must undergo further preparation processes before meeting the specifications of the Army Program.

 We turn, therefore, to the state of the law in this Circuit on the question of standing to sue in antitrust cases. *fn10"

 Section 4 of the Clayton Act, 15 U.S.C. ยง 15, provides as follows:

 In Loeb v. Eastman Kodak Co., 183 Fed. 704 (3d Cir. 1910) a plaintiff who was a creditor, and shareholder of a photographic supply house forced out of business by defendant's illegal conduct was denied standing to sue. In this landmark case, the court stated that prior to the passage of section 7 of the Sherman Act, *fn11" a shareholder in a corporation was without a direct remedy for an injury to his stock by reason of a wrong to the corporation, since the remedy in the first instance resided solely in the corporation, and the court interpreted the statute narrowly as one in derogation of common law, disallowing the plaintiff's suit qua shareholder. As an alternative ground for the same result, the court noted that no conspiracy or combination against the plaintiff stockholder was alleged and declared that "the injury complained of was directed at the corporation, and not the individual stockholder," adding that any injury to a stockholder was "indirect, remote, and consequential." In his role as creditor of the corporation, the plaintiff in Loeb fared no better. The court held that a creditor "would apparently be injured in the same way and to the same extent as a stockholder," which, presumably, means the creditor lacks standing to sue because any injury to him is likewise "indirect, remote, and consequential." The latter holding, however, contradicts the alternative holding in the next paragraph of the opinion that the cause of action for injury to the ...

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