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July 1, 1975


The opinion of the court was delivered by: GORBEY


 The defendant, WHP, INC., pursuant to Rule 12 of the Federal Rules of Civil Procedure has moved the court to dismiss this action with prejudice or, alternatively, to dismiss without prejudice to its reinstitution upon the final conclusion of the proceedings now pending before the Federal Communications Commission and which involves the other defendant, CBS, INC., relying upon the doctrine of primary jurisdiction.

 In support of the motion to dismiss with prejudice, defendant refers to the complaint pointing out that in the first of the three major allegations to support the alleged antitrust violations, defendant CBS only is involved; in the second, both defendants; and in the third, only CBS. Defendant then proceeds to analyze and discuss each allegation separately and having concluded that none of them is actionable under the antitrust laws, further concludes that as a consequence an alleged conspiracy pursuant to which the overt acts were committed, states no cause of action. Such is a non sequitur. The obvious purpose of this approach to the problem is to avoid the impact of innumerable decisions in the antitrust field which have established the rule that overt acts in furtherance of a conspiracy need not themselves be unlawful, a principle equally applicable in a criminal prosecution for conspiracy, because "the function of the overt act is simply to manifest 'that the conspiracy is at work', . . .". YATES v. UNITED STATES, 354 U.S. 298, 334, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957). The same idea was expressed in a private treble damage antitrust action in which the court stated:

". . . It would be reversible error to instruct the jury that particular acts, alleged to be part of a conspiracy, were lawful, without adding the express qualification 'in the absence of conspiracy'." Lessig v. Tidewater Oil Company, 327 F.2d 459, 466 (9th Cir. 1964), cert denied, 377 U.S. 993, 84 S. Ct. 1920, 12 L. Ed. 2d 1046 (1964).

 Also, intent to monopolize renders unlawful a dominant or exclusive market position which is itself lawful. UNITED STATES v. GRINNELL CORPORATION, 384 U.S. 563, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966).

"There are two essential elements to any Section 1 offense: (1) a contract, combination or conspiracy, resulting in (2) an unreasonable restraint of trade. The second element may be established by proof that the contract, combination or conspiracy was of a type the law finds to be inherently unreasonable (per se violations), or it may rest upon a showing of anticompetitive motive or effect in the particular case." (Emphasis added)
"Section 1 of the Sherman Act is not concerned with individual conduct, no matter how anticompetitive. It requires some sort of deliberately coordinated or agreed upon behavior, though this need not take the form of an explicit, formalized agreement. It is enough that the plaintiff establish 'a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement'." Overseas Motors, Inc. v. Import Motors Limited, Inc., 375 F. Supp. 499 at 531 (E.D. Mich., S.D. 1974).
"Once the conspiracy is established, each conspirator is 'treated as if he had authorized each of his co-conspirators to do all things which further the conspiracy. This applies as well to verbal as to non-verbal conduct, to both non-assertive and assertive declarations . . .'". Id. at 538.

 All objections raised by WHP, INC. must be considered as they relate to plaintiff's contention that a conspiracy existed the purpose of which is to injure and eliminate by unfair means, the plaintiff as a business competitor of the defendant CBS, INC. thus giving the latter a monopoly position in its quest for the economic gains to be achieved from an interstate business as a consequence of having a license to broadcast on Channel 10.

 With respect to plaintiff's complaint we may say, as did Mr. Justice Holmes with respect to the bill in equity in a leading antitrust case, SWIFT & CO. v. UNITED STATES, 196 U.S. 375, 395, 49 L. Ed. 518, 25 S. Ct. 276 (1905):

". . . it is to be taken to mean what it fairly conveys to a dispassionate reader by a fairly exact use of English speech. Thus read this bill (complaint) seems to us intended to allege successive elements of a single connected scheme."
* * *
"The scheme as a whole seems to us to be within reach of the law. The constituent elements, as we have stated them, are enough to give to the scheme a body and, for all that we can say, to accomplish it. Moreover, whatever we may think of them separately, when we take them up as distinct charges, they are alleged sufficiently as elements of the scheme. It is suggested that the several acts charged are lawful, and that intent can make no difference. But they are bound together as the ...

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