Piedmont Label Company v. Sun Garden Packing Company

598 F.2d 491 1979-1 Trade Cases 62,719 PIEDMONT LABEL COMPANY, Appellant, v. SUN GARDEN PACKING COMPANY, Appellee. No. 77-2088. United States Court of Appeals, Ninth Circuit. June 5, 1979. Phyllis Kay Dryden, John R. Reese, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for appellant. Darrell Salomon, Alioto & Alioto, San Francisco, Cal., for appellee. Appeal from the United States District Court for the Northern District of California. Before BROWNING and HUFSTEDLER, Circuit Judges, and BARTELS, * District Judge. HUFSTEDLER, Circuit Judge: 1 The question presented is whether venue in a private antitrust suit may be founded solely on allegations that a defendant was a member of a conspiracy and that a co-conspirator performed acts in the forum district. This issue has been troublesome ever since the Supreme Court in Bankers Life & Casualty Co. v. Holland (1953) 346 U.S. 379 , 74 S.Ct. 145 , 98 L.Ed. 106 , disapproved an attempt to base venue on vicarious responsibility of one co-conspirator for the acts of another. Because Bankers Life has effectively undermined the co-conspirator theory of venue, we now expressly reject any implication in Giusti v.…

The question presented is whether venue in a private antitrust suit may be founded solely on allegations that a defendant was a member of a conspiracy and that a co-conspirator performed acts in the forum district. This issue has been troublesome ever since the Supreme Court in Bankers Life & Casualty Co. v. Holland (1953) 346 U.S. 379 , 74 S.Ct. 145 , 98 L.Ed. 106 , disapproved an attempt to base venue on vicarious responsibility of one co-conspirator for the acts of another. Because Bankers Life has effectively undermined the co-conspirator, theory of venue, we now expressly reject any implication in Giusti v. Pyrotechnic Industries (9th Cir. 1946) 156 F.2d 351 , that members of a conspiracy, as agents of one another, “transact business” for venue purposes in any district where one of them transacts business.

I

Piedmont Label Company (“Piedmont”) brings this interlocutory appeal, pursuant to 28 U.S.C. § 1292 (b), from the denial of a motion for summary judgment based on improper venue. Piedmont is one of the five producers of lithograph paper labels who are defendants in a private antitrust suit filed by Sun Garden Packing Company (“Sun Garden”) in the Northern District of…

concurring:

The district court rested the interlocutory order under review “solely on the authority of Giusti v. Pyrotechnic Industries, 156 F.2d 351 (9th Cir.) cert. denied 329 U.S. 787 (1946).” I agree that Bankers Life & Casualty Co. v. Holland, 346 U.S. 379 (1953), has undercut Giusti .

Both Giusti and Bankers Life interpreted and applied the venue provisions of the Clayton Act, 15 U.S.C. §§ 15 , 22. Appellee has chosen to rely solely upon these special venue provisions of the Clayton Act and upon Giusti both in this court and in the court below.

The general venue statute, 28 U.S.C. § 1391 , is also applicable to antitrust suits and may provide a basis for venue when the special venue provisions of the Clayton Act do not. See, e. g., Ballard v. Blue Shield of Southern West Virginia, Inc., 543 F.2d 1075, 1080 (4th Cir. 1976); Board of County Commissioners v. Wilshire Oil, 523 F.2d 125 , 129-30 (10th Cir. 1975); 15 Wright & Miller, Federal Practice & Procedure: Civil § 3818 at 109, 112 (1976); 1 Moore’s Federal Practice ¶ 0.144[14.-15] at 1562.

Subsection (b) of section 1391 was added to the statute in 1966, well after Giusti and Bankers Life & Casualty were decided. It…