Trixler Brokerage Company, a California Corporation v. Ralston Purina Company, a Corporation

505 F.2d 1045 1974-2 Trade Cases 75,357 TRIXLER BROKERAGE COMPANY, a California corporation, Appellant, v. RALSTON PURINA COMPANY, a corporation, Appellee. No. 73-1197. United States Court of Appeals, Ninth Circuit. Nov. 5, 1974. Stuart R. Pollak (argued), Howard, Prim, Rice, Nemerovski, Canady & Pollak, San Francisco, Cal., for appellant. Noble K. Gregory (argued), Pillsbury, Madison & Sutro, San Francisco, Cal., for appellee. Before MERRILL and KILKENNY, Circuit Judges, and CRARY, * District judge. OPINION KILKENNY, Circuit Judge: 1 Appellant appeals from an adverse judgment in a non-jury trial, in an action against appellee for alleged violations of Sections 1 and 2 of the Sherman Act (15 U.S.C. 1 and 2), bad faith, breach of contract and misrepresentation. Appellant is a corporation engaged in the food brokerage business, acting as an independent sales agent in northern California for various food processors and manufacturers. Appellee, among other things, is a corporation engaged in processing and manufacturing food. FACTUAL BACKGROUND 2 A summary of the facts, stated favorably for appellee, is as follows: In 1952 when Van Camp Sea Food Company, a predecessor of…

Appellant appeals from an adverse judgment in a non-jury trial, in an action against appellee for alleged violations of Sections 1 and 2 of the Sherman Act ( 15 U.S.C. §§ 1 and 2), bad faith, breach of contract and misrepresentation. Appellant is a corporation engaged in the food brokerage business, acting as an independent sales agent in northern California for various food processors and manufacturers. Appel-lee, among other things, is a corporation engaged in processing and manufacturing food.

FACTUAL BACKGROUND

A summary of the facts, stated favorably for appellee, is as follows: In 1952 when Van Camp Sea Food Company, a predecessor of appellant, decided to change its marketing scheme from direct sales' to brokerage, J. Thomas Trixler, president of appellant, resigned as an employee of Van Camp and became its broker and a broker for other food processors. Trixler then incorporated his business, and his company was orally appointed by Van Camp as broker for northern California. Later, the appellant company was formed and took over the California operations of its predecessor. Since that time it has been managed by Trixler, its president and principal shareholder.

In…

(concurring) :

I concur in Judge Kilkenny’s opinion.

In addition to the facts recited by him I would note that the offer of equivalent brokerage was conditioned upon appellant not representing products which ap-pellee considered “competitive” with its tuna products; that the offer further provided that appellant would be free to begin representing competitive brands at any time and would nevertheless be entitled to receive equivalent brokerage for such time during the two-month period as it did not represent competitive brands.

I understand Judge Kilkenny to hold that the basic issue here presented under § 1 of the Sherman Act is whether, in light of the e'ourse of dealing between the parties, this offer of equivalent brokerage conditioned on this covenant not to compete was, as matter of law, reasonable or unreasonable. On this I agree with Judge Kilkenny that as matter of law it was reasonable.