The opinion of the court was delivered by: TROUTMAN
TROUTMAN, District Judge.
This is an anti-trust cause of action under the Sherman Act and Clayton Act, as amended by the Robinson-Patman Act, alleging in three counts that (1) defendant entered into a conspiracy in restraint of trade in violation of 15 U.S.C. § 1; (2) defendant with its co-conspirators attempted to monopolize and did in fact monopolize trade or commerce regarding the resale of admission tickets to various sports and entertainment events in violation of 15 U.S.C. § 2; and (3) defendant discriminated in price in the resale of admission tickets in violation of 15 U.S.C. § 13(a), (d), (e) and (f). Before the Court is defendant's motion, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Count III of the complaint.
Briefly stated, the alleged facts pertinent to this motion are as follows: Plaintiffs are licensed, independent ticket brokers, who have brought this suit on their own behalf and on behalf of all others similarly situated.
The defendant is a corporation engaged in the sale of tickets for all types of reserved seat attractions where an admission fee is charged. The system, as operated by defendant, is a computer-control communications enterprise, comprised of remote terminals capable of issuing tickets for one or more events and of transmitting information to defendant's central computer facilities. The remote terminal operation is capable of displaying information as to the availability of seat reservations for events and issuing tickets. Once a ticket is purchased in this manner, the system removes the selected seats from the computer's memory bank of unsold seats and issues a printed card in the form of a ticket. Defendant has entered into contracts with a number of franchisees who have agreed to the installation and operation of remote terminal units to sell admission tickets. In addition, defendant has entered into contracts with a number of professional organizations engaged in the business of promoting various entertainment events.
Under the agreements between defendant and the franchisees, plaintiffs allege that defendant receives certain benefits which are not generally available to plaintiffs. Plaintiffs charge that under the contracts defendant is granted a discount in purchase price on each ticket sold; defendant is permitted to return unsold tickets; defendant is granted extensive allotments; defendant is permitted to use the name of the subscriber, the events, facilities and the performers, artists and other persons associated with the event in promoting and advertising the event; in advertising, the promoter informs the public that tickets are available through defendant's outlets; and, finally, defendant is permitted to collect a service charge for each ticket sold, in addition to receiving compensation for each sale from the subscriber. In so far as these benefits are not equally available to the independent ticket brokers, plaintiffs allege that such benefits constitute discrimination in violation of subsections (a), (d), (e) and (f) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a), (d), (e) and (f), (the Act).
"'The jurisdictional determination turns on these basic statutory requirements: a discrimination must arise from (A) consummated contemporaneous sales transactions (B) by the same seller to different purchasers, (C) involve "commodities" of (D) "like grade and quality," and (E) occur "in commerce."'" 241 F. Supp. at 498.
The initial issue, which faces the Court, is whether defendant is a "purchaser" within the meaning of Sections 2(a) and 2(e) of the Robinson-Patman Act, 15 U.S.C. § 13 (a) and (e), or a "customer" within the meaning of Section 2(d) of the Act, 15 U.S.C. § 13(d). Initially, it should be noted that the term "customer" in Section 2(d) and the term "purchaser" in Section 2(a) and (e) are synonymous, American News Co. v. F.T.C., 300 F.2d 104, 109 (2d Cir.), cert. denied, 371 U.S. 824, 9 L. Ed. 2d 64, 83 S. Ct. 44 (1962), and the term "purchaser" has been defined as meaning "* * * simply one who purchases, a buyer, a vendee", Sorrentino v. Glen-Gery Shale Brick Corp., 46 F. Supp. 709, 712 (E.D. Pa. 1942). In the cases dealing with the issue whether a sale has occurred within the meaning of the Act, the courts have generally looked to the indicia of sales law and transfer of title. See e.g. Students Book Co. v. Washington Law Book Co., 98 U.S. App. D.C. 49, 232 F.2d 49 (1955), cert. denied, 350 U.S. 988, 100 L. Ed. 854, 76 S. Ct. 474 (1956) (upholding jury finding of consignment); Loren Specialty Mfg. Co. v. Clark Mfg. Co., supra. But c.f. Simpson v. Union Oil Co., 377 U.S. 13, 12 L. Ed. 2d 98, 84 S. Ct. 1051 (1964).
Defendant argues that the transactions involved constitute a consignment in that defendant is acting as an agent on behalf of principal; defendant obtains no title to the admission tickets; defendant remits to his principals all money collected; and no consideration passes from defendant to his principals upon the transfer of the right to create and sell the admission tickets. Defendant further argues that since it is a consignment agent on behalf of its principals, it is not a purchaser or customer within the purview of Section 2 of the Act, and Count III of the complaint, therefore, should be dismissed.
We must reject defendant's contentions at this time for the following reason: The Court is by no means bound by the characterization of the transaction as presented by defendant, for it is substance rather than form which governs the issue whether defendant is a purchaser within the meaning of the Act. Reines Distributors, Inc. v. Admiral Corp., 256 F. Supp. 581 (S.D.N.Y. 1966). Since plaintiffs have not had adequate time to complete discovery to meet defendant's contentions on this issue, we conclude that defendant's motion is premature at this time.
The second issue before the Court is whether the right to create and sell admission tickets for entertainment attractions is a "commodity" within the meaning of subsections 2(a), 2(d) and 2(e) of the Act. Plaintiff, however, argues that it is not the right to sell the tickets which is here in question, but the sale of the tickets themselves. In making our determination of this question, we will, for the purpose of this motion, accept plaintiff's characterization of the issue. The question, therefore, is whether an ...