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June 22, 1989


The opinion of the court was delivered by: HANNUM



 The issue before the Court is the extent of an export trade association's antitrust exemption under the Webb-Pomerene Act, 15 U.S.C. § 61 et seq. Plaintiff International Raw Materials, Ltd. ("IRM") operates a Port Longview, Washington terminal used for loading soda ash onto ocean-going vessels. Defendants are the American Natural Soda Ash Corporation, an export trade association registered with the Federal Trade Commission under the Webb-Pomerene Act, and all of the member organizations of this association ("ANSAC defendants or ANSAC"). In response to IRM's allegations of antitrust violations, *fn1" the ANSAC defendants have moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), claiming that, as a matter of law, provisions of the Webb-Pomerene Act exempt them from liability. With the submission of supporting affidavits, *fn2" this motion is properly treated as a motion for summary judgment under Fed. R. Civ. P. 56. See Carter v. Stanton, 405 U.S. 669, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972).

 By its complaint, IRM seeks remedy for ANSAC's horizontal price-fixing of domestic terminalling rates for the export of soda ash. There is no dispute that ANSAC acts as an independent marketing agent for its members -- arranging joint shipment and distribution of its members soda ash for export. Citing its registration under the Webb-Pomerene Act, ANSAC claims that their efforts to seek the most efficient terminalling rates for these shipments are exempt from Sherman Act provisions because these efforts are in the course of export trade. IRM opposes dismissal both on grounds that there are material factual disputes over whether ANSAC can avail itself of Webb-Pomerene and on grounds that Webb-Pomerene does not protect the kind of violations that IRM has alleged.


 Summary judgment must be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under the guidance of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), "for a dispute to be 'genuine', the evidence must be such that a reasonable jury could return a verdict for the non-moving party." Personal Touch, Inc. v. Lenox, Inc., 708 F. Supp 108 (E.D.Pa. 1989) (Reed, J.) (citing Anderson, 477 U.S. at 248). The Anderson Court explained that:

the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

 477 U.S. at 248 (citing 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725, pp. 93-95 (1983)). In considering ANSAC's motion, the Court views the evidence in a light most favorable to IRM, including the benefit of all reasonable inferences. See Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).

 IRM has urged that, in view of the novel issues of statutory interpretation, summary judgment is inappropriate on this limited record. See Docket No. 20 at 2-4; Docket No. 18 at 1-3 (quoting Bingham Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984) (reversing summary judgment); Security Pacific National Bank v. OL.s. Pacific Pride, 549 F. Supp. 53, 55 (W.D.Wash. 1982)). The ANSAC defendants counter that summary judgment is warranted because a narrow issue controls: ANSAC's antitrust exemption for its dealings with IRM and the terminalling industry. See Docket No. 21 at 5 (citing Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173 (3d Cir. 1988)). In Pepsico, the Third Circuit affirmed dismissal without stipulated facts and prior to discovery where the conduct charged in the complaint was subject to a statutory antitrust exemption under the Soft Drink Interbrand Competition Act of 1980, 15 U.S.C. §§ 3501-03. Pepsico, 836 F.2d at 181. While acknowledging that summary judgment is disfavored where novel questions are presented, this Court concludes that a more developed record is not required in view of the Court's dispositive interpretation of ANSAC's exemption for the conduct charged by IRM. See id.

 As the Court stated in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986), "the starting point in statutory construction is, of course, the language of the statute itself." Id. at 2502. Moreover, "absent a clearly expressed legislative intention to the contrary, that [statutory] language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). See also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 44 L. Ed. 2d 539, 95 S. Ct. 1917 (1975) (Powell, J., concurring). The statutory sections, in relevant part, provide:

§ 61. Export trade; definitions
The words "export trade" wherever used in sections 61 to 65 of this title mean solely trade or commerce in goods, wares, or merchandise exported, or in the course of being exported from the United States or any Territory thereof to any foreign nation; but the words "export trade" shall not be deemed to include the production, manufacture, or selling for consumption or resale, within the United States or any Territory thereof, of such goods, wares, ...

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