Catalano, Inc., on Behalf of Themselves and All Others Similarly Situated v. Target Sales, Inc.

605 F.2d 1097 1979-2 Trade Cases 62,805 CATALANO, INC., et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TARGET SALES, INC., et al., Defendants-Appellees. Nos. 77-2221, 77-2222. United States Court of Appeals, Ninth Circuit. Aug. 20, 1979. Rehearing Denied Oct. 23, 1979. James P. Samarco, Fresno, Cal., William L. Riley, Orrick, Herrington, Rowley & Sutcliffe, Jack B. Owens (argued), San Francisco, Cal., for plaintiffs-appellants. G. Richard Doty, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., J. Wallace Upton, Kimble, MacMichael, Jackson D. Upton, Fresno, Cal., Ted R. Frame, Frame & Courtney, Coalinga, Cal., for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Before WALLACE and SNEED, Circuit Judges, and BLUMENFELD * , District Judge. SNEED, Circuit Judge: 1 Plaintiffs, a conditionally certified class of beer retailers doing business within the Fresno area, appeal from a ruling that defendants' alleged credit fixing agreement was not Per se illegal, but rather must be proven illegal under the rule of reason standard. Catalano, Inc. and C & C Food Marts,…

Plaintiffs, a conditionally certified class of beer retailers doing business within the Fresno area, appeal from a ruling that defendants’ alleged credit fixing agreement was not per se illegal, but rather must be proven illegal under the rule of reason standard. Catalano, Inc. and C & C Food Marts, Inc. (hereinafter Catalano), two named plaintiffs, also appeal from a summary judgment of the district court adjudging that neither plaintiff had suffered injury in fact. Both appeals were consolidated. We affirm the district court’s ruling that credit fixing, standing alone, was not an agreement to fix prices subject to a per se rule of illegality. We reverse the district court’s entry of summary judgment against Catalano and remand Catalano’s claim for further proceedings.

I. FACTUAL BACKGROUND

Plaintiffs-appellants claim that defendants-appellees, various beer wholesalers, have engaged in a conspiracy to restrain trade violative of section 1 of the Sherman Act. 1 The class of plaintiff retailers sought to establish, inter alia, that the defendant wholesalers conspired to eliminate deferred payment terms, specifically short term trade credit formerly granted to them on beer…

(concurring and dissenting):

I am in agreement with the decision of the majority reversing the lower court’s grant of summary judgment against the plaintiffs on the issue of damages; however, contrary to the majority, I would hold that the alleged horizontal agreement among wholesalers to eliminate credit on sales of beer to retailers constitutes a per se violation of the antitrust laws.

It is clear enough by the citation to Northern Pac. Ry. v. United States, 356 U.S. 1, 5 , 78 S.Ct. 514 , 2 L.Ed.2d 545 (1958), 1 *1103 that the majority does not intend to change the established rule of law in antitrust cases that price fixing is a per se violation. See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218 , 60 S.Ct. 811 , 84 L.Ed. 1129 (1940). Although recognizing that price fixing may be accomplished directly or indirectly, the majority finds that the alleged agreement to fix credit terms does not amount to either direct or indirect price fixing. I disagree.

The purchase of goods creates an obligation to pay for them. Credit is one component of the overall price paid for a product. The cost to a retailer of purchasing goods consists of (1) the amount he has to pay to…