The opinion of the court was delivered by: LUDWIG
Defendants Stolt-Nielsen, Inc. and Stolt Tank Containers, Inc. move for judgment on the pleadings as to count III of the complaint.
This action claims violations by defendants
of section 2 of the Sherman Act, 15 U.S.C. § 2; section 7 of the Clayton Act, 15 U.S.C. § 18; together with pendent state torts, Pennsylvania common law restraint of trade and interference with contractual relations. Only the Clayton Act count - count III - is challenged by defendants' motion. Jurisdiction is federal question. 28 U.S.C. § 1331.
The complaint alleges: In January, 1986 plaintiffs McTamney and Sullivan began negotiations with the principals of United American Tank Containers Inc. (UATC) and American Tank Container, Ltd. (ATC). These companies, which McTamney and Sullivan desired to acquire, were engaged in transporting specialty liquid products in tank containers worldwide. Until January of 1986, plaintiff Petralia was an officer of both movant corporations, which were major rivals of UATC and ATC in this highly concentrated and intensely competitive transportation market. In April, 1986 McTamney and Sullivan notified UATC and ATC that Petralia had joined them as a co-purchaser. On May 9, 1986 "a full and complete understanding [was reached] as to the sale . . . of the property and assets of UATC and ATC" to plaintiffs, who proceeded to obtain necessary financing. Complaint para. 22.
Meantime, according to the complaint, defendants, acting through their corporate officials, entered into a Sherman Act combination and conspiracy with the same principals of UATC and ATC as had dealt with plaintiffs. Their purpose was to eliminate competition in the industry and to prevent the contemplated sale of UATC and ATC. From June to August 1986, under defendants' direction, the activities of these companies were gradually wound down - and eventually were to be terminated. Defendants controlled the selective payment of their creditors. Upon termination, their principals were to receive preferential treatment. However, in mid-August, 1986 defendants withdrew from their agreement to buy UATC and ATC. As a result, UATC filed a voluntary petition in bankruptcy on September 18, 1986 in the bankruptcy court for the Southern District of Texas.
Defendants' motion for judgment on the pleadings,
Fed.R.Civ.P. 12(c), contests the applicability of section 7 of the Clayton Act, which provides:
No person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.
15 U.S.C.A. § 18 (West Supp. 1987).
Defendants' view of the breadth of section 7 of the Clayton Act is too narrow. The terms "acquisition" and "assets" have been interpreted broadly. See, e.g., Nelson v. Pacific Southwest Airlines, 399 F. Supp. 1025 (S.D. Cal.1975); United States v. Columbia Pictures Corp., 189 F. Supp. 153 (S.D.N.Y. 1960).
As used here, the words "acquire" and "assets" are not terms of art or technical legal language. In the context of this statute, they are generic, imprecise terms encompassing a broad spectrum of transactions whereby the acquiring person may accomplish the acquisition by means of purchase, assignment, lease, license, or otherwise.
The statute imposes no specific method of acquisition. It is primarily concerned with the end result of a transfer of a sufficient part of the bundle of legal rights and privileges from the transferring person to the acquiring person to give the ...