Turf Paradise, Inc., an Arizona Corporation v. Arizona Downs, an Arizona Corporation

Turf Paradise, Inc. (Turf), an Arizona corporation that owns and operates the Turf Paradise race track in Phoenix, Arizona, filed this private antitrust action against Arizona Downs (Downs), an Arizona corporation that leases and operates the Turf Paradise track for half of the racing season, alleging violation of section 1 of the Sherman Act, 15 U.S.C. § 1 , and sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26. Turf contended that a provision of the lease between Turf and Downs that sets forth the manner in which Turf and Downs *816 will apply to the Arizona Racing Commission for racing dates is a horizontal restraint of trade among competitors and, consequently, a per se violation of the federal antitrust laws. Turf sought declaratory and injunctive relief, as well as damages, costs, and attorney’s fees.

The district court on November 16, 1979 granted Downs’ motion for partial summary judgment finding that Turf, as an original participant to the two-party agreement, was barred from receiving damages under the defense of in pari delicto. On the same date the district court denied Turf’s motion for partial summary judgment which sought to have declared the date…

concurring specially:

I concur in parts I, II, III, and V of the majority opinion, but not in part IV.

Whether the allocation of racing dates under the somewhat unique facts here constitutes a potential per se violation of the Sherman Act because it amounts to a horizontal restraint between competitors on the same level — an impermissible division of territories — was not decided by the district court. Such a determination was apparently seen by the district judge as a complex and troublesome antitrust issue, the resolution of which became unnecessary because he found (although he did not articulate) an alternate and sufficient basis for dismissal of the action under Parker v. Brown, 317 U.S. 341 , 63 S.Ct. 307 , 87 L.Ed. 315 (1943). The majority here also finds that there is the same alternate ground upon which to rest its affirmance and I have concurred in that determination.

I would, however, postpone to another day the responsibility for deciding an issue whose disposition is not nearly as easy or as clear as the majority assumes and which we simply do not need to tackle at this time.

Were the holding on this point really to be taken as a live precedent, I would find it…

670 F.2d 813 1982-1 Trade Cases 64,460 TURF PARADISE, INC., an Arizona corporation, Plaintiff-Appellant, v. ARIZONA DOWNS, an Arizona corporation, Defendant-Appellee. No. 80-5185. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 12, 1981. Decided Jan. 7, 1982. As Amended Feb. 26, 1982. David L. White, Phoenix, Ariz., for plaintiff-appellant. Roger T. Hargrove, Phoenix, Ariz., argued, for defendant-appellee; Elias M. Romley, Phoenix, Ariz., on brief. Appeal from the United States District Court for the District of Arizona. Before WRIGHT, SNEED, and POOLE, Circuit Judges. SNEED, Circuit Judge: 1 Turf Paradise, Inc. (Turf), an Arizona corporation that owns and operates the Turf Paradise race track in Phoenix, Arizona, filed this private antitrust action against Arizona Downs (Downs), an Arizona corporation that leases and operates the Turf Paradise track for half of the racing season, alleging violation of section 1 of the Sherman Act, 15 U.S.C. § 1 , and sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26. Turf contended that a provision of the lease between Turf and Downs that sets forth the manner in which Turf and Downs will apply…