The opinion of the court was delivered by: HIGGINBOTHAM
A. The NUE Case, Civil Action No. 74-3247.
National Union Electric Corporation commenced this antitrust action against fourteen defendants in the District of New Jersey on December 21, 1970.
In its complaint, it alleged violations of the Antidumping Act of 1916, 15 U.S.C. § 72 (Count I); the Wilson Tariff Act, 15 U.S.C. § 8 (Count II); Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 (Counts III and IV); Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a) (Count V); and Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and Section 1 of the Sherman Act, 15 U.S.C. § 1 (Count VI).
On February 4, 1971, certain of the defendants
in the action filed, inter alia, a motion to dismiss Count V of the NUE complaint on the grounds that it failed to state a claim upon which relief may be granted. The issue was extensively briefed by opposing counsel, and argued by them before the Honorable Robert Shaw later in 1971. Due in large part, however, to the deaths of Judge Shaw and of his successor as judge in this case, the Honorable John J. Kitchen, the issue had not been decided as of November 25, 1974.
On September 20, 1974, Zenith filed a similar complaint in this antitrust action, charging twenty-one defendants with violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 (Counts I and II); § 7 of the Clayton Act, as amended, 15 U.S.C. § 18 (Count III); § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a) (Counts IV and V); the Wilson Tariff Act, 15 U.S.C. § 8 (Count VI); and the Antidumping Act of 1916, 15 U.S.C. § 72 (Count VII).
On October 29, 1974, certain of the defendants moved, pursuant to 28 U.S.C. § 1407, to transfer this action to the District of New Jersey and to consolidate it there for pre-trial purposes with the NUE case.
On November 25, 1974, the Judicial Panel on Multidistrict Litigation rendered its decision, transferring the NUE action to the Eastern District of Pennsylvania in order that its pre-trial proceedings might be consolidated with those in this action. On the same date, this Court, in Pre-trial Order Number 2, directed that defendants file whatever pleadings they intended to file with respect to the complaint herein on or before January 2, 1975.
On January 2, 1975, certain of the defendants herein
filed, inter alia, a motion to dismiss Count IV of the Zenith complaint for failure to state a claim upon which relief may be granted. Once again, opposing counsel thoroughly briefed the issue, which was then argued before this Court on February 17, 1975.
The respective moving defendants seek dismissal of Count V of the NUE complaint and of Count IV of the Zenith complaint on the ground that neither count states a claim upon which relief may be granted. In both counts, plaintiffs seek treble damages and related relief under §§ 4 alleged violations of § 2(a) of the Clayton Act of 1914, as amended by the Robinson-Patman Act of 1936, 15 U.S.C. § 13(a). In their respective complaints, plaintiffs allege that defendants have discriminated in price between different purchasers of commodities of like grade and quality by selling television receivers (in the NUE case) and consumer electronic products (in the Zenith case) to purchasers in the United States at prices less than those charged to purchasers of those same commodities in Japan. In their motions to dismiss, defendants argue that this alleged price discrimination does not satisfy the jurisdictional prerequisites of the Act, since the "commodities of like grade and quality" involved in one "leg" of the alleged discrimination are not "sold for use, consumption, or resale within the United States . . ." For reasons that will hereinafter appear, I have concluded that § 2(a) of the Robinson-Patman Act does not reach the transactions alleged by plaintiffs here. Defendants' motions to dismiss Count V of the NUE complaint and Count IV of the Zenith complaint must therefore be granted.
Neither the plaintiffs nor the defendants have referred me to any case which applies § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a), to a set of facts similar to those alleged in the NUE and Zenith complaints. Obviously, then, this is a case of first impression. Both plaintiffs and defendants agree that § 2(a) reaches geographical price discriminations and price discriminations in import transactions, and there is ample authority to support their view. See Utah Pie Company v. Continental Baking Co., 386 U.S. 685, 87 S. Ct. 1326, 18 L. Ed. 2d 406 (1967) (geographical price discrimination), and the authorities collected in Zenith Memorandum at 5-13 (import transactions). It would appear, however, that in the more than sixty years since the passage of the Clayton Act,
no one until the present plaintiffs has ever prosecuted an action under § 2(a) where the alleged ...