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LEVICOFF v. GMC

November 16, 1982

STANLEY LEVICOFF, Plaintiff
v.
GENERAL MOTORS CORPORATION, GENERAL MOTORS ACCEPTANCE CORPORATION and McKEAN OLDSMOBILE COMPANY, Defendants



The opinion of the court was delivered by: MANSMANN

 This matter is before the Court on Motions to Dismiss filed by Defendants General Motors Corporation ("GM"), General Motors Acceptance Corporation ("GMAC") and McKean Oldsmobile Company ("McKean" or "McKean Oldsmobile"). *fn1" Plaintiff, Stanley Levicoff, brought this action as a result of his purchase of a new GM automobile which was financed by GMAC. For the reasons set forth below, Defendants' Motions to Dismiss are granted. *fn2"

 * * *

 FACTUAL BACKGROUND

 The facts of this case, accepting the averments of the Complaint as stating the facts, *fn3" may be summarized as follows:

 A substantial portion of the sales of new GM automobiles involve the financing of a part of the total purchase price by a bank or other financial institution. GMAC, a wholly-owned subsidiary of GM, provides, inter alia, retail financing for the purchase of GM automobiles from authorized franchise dealers. In 1981, as part of GM's marketing activities relative to the introduction of the 1982 models, GMAC offered financing at an annual interest rate of 12.8% for certain of the new GM models as well as for all of the remaining 1981 GM automobiles. This credit rate was lower than the prevailing rate then offered by other lending institutions for retail automobile financing.

 Plaintiff periodically purchases a new automobile in order to carry on his business in Pennsylvania and Ohio as a manufacturer's representative. Plaintiff entered into an agreement with McKean Oldsmobile, an authorized franchise dealer for GM automobiles, for the purchase of a 1982 Oldsmobile Cutlass. *fn4" Plaintiff requested that GMAC finance the purchase at the rate of 12.8%. *fn5" GMAC, however, refused to finance the purchase at that rate since the 1982 Cutlass was not one of the models for which the 12.8% rate was available. Rather, GMAC would only offer a rate of 16.8% on the new Oldsmobile Cutlass. Nevertheless, Plaintiff purchased the Cutlass and obtained the financing from GMAC at the higher rate.

 Plaintiff filed the present action on April 26, 1982, alleging that Defendants have violated § 1 of the Sherman Act, 15 U.S.C. § 1. *fn6" The first count of the Complaint alleges that the Defendants have engaged in a per se violation of § 1 of the Sherman Act by forming an illegal tying arrangement. The second count of the Complaint alleges that GM and GMAC have violated § 1 by conspiring to unreasonably restrain trade. The third count alleges that all Defendants have engaged in a per se violation of § 1 by entering into an unlawful price-fixing agreement.

 Defendants have moved to dismiss the Complaint under Fed. R. Civ. P. 12(b) (6), contending that all three counts fail to state a claim for relief. This Court will consider the challenges to each count separately and will resolve them accordingly.

 * * *

 I.

 Defendants contend that Plaintiff has failed to state an illegal tying arrangement because in this case, the financial terms and the automobile constitute one product rather than the two separate products required for a tying arrangement.

 Plaintiff alleges that Defendants tied the availability of consumer financing at the rate of 12.8% to the purchase of only certain designated GM automobiles. According to Plaintiff, the financing or the alleged "tying" product, and the automobile, the alleged "tied" product, constitute two separate items.

 The terms of § 1 of the Sherman Act prohibit all agreements in restraint of trade. That statutory provision, however, has been interpreted to preclude only those agreements or conspiracies which "unreasonably" restrain trade. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 55 L. Ed. 619, 31 S. Ct. 502 (1911); ...


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