Frank J. Ostrofe v. H. S. Crocker Company, Inc.

670 F.2d 1378 1982-1 Trade Cases 64,643 Frank J. OSTROFE, Plaintiff-Appellant, v. H. S. CROCKER COMPANY, INC., Defendant-Appellee. No. 77-3985. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 20, 1980. Decided March 8, 1982. Darrell J. Salomon, San Francisco, Cal., argued, for plaintiff-appellant; Alioto & Alioto, San Francisco, Cal., on brief. James T. Fousekis, Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, Cal., argued, for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before BROWNING, Chief Judge, and KENNEDY and SKOPIL, Circuit Judges. BROWNING, Chief Judge: 1 The principal issue presented by this appeal is whether under the circumstances of this case a sales manager, forced to resign because he refused to participate in an alleged scheme by his employer and other manufacturers to fix prices, rig bids, and allocate markets, has standing to bring a private treble damages action against his employer under Section 4 of the Clayton Act. We hold that he does. I. 2 Frank J. Ostrofe, former marketing director of H. S. Crocker Company, Inc., filed a complaint against Crocker seeking…

The principal issue presented by this appeal is whether under the circumstances of this case a sales manager, forced to resign because he refused to participate in an alleged scheme by his employer and other manufacturers to fix prices, rig bids, and *1380 allocate markets, has standing to bring a private treble damages action against his employer under Section 4 of the Clayton Act. We hold that he does.

I.

Frank J. Ostrofe, former marketing director of H. S. Crocker Company, Inc., filed a complaint against Crocker seeking damages for injuries resulting from a violation of the Sherman Act. The complaint alleged the following: Crocker and other unnamed manufacturers of paper lithograph labels combined and conspired to unreasonably restrain interstate trade and commerce in labels in violation of Section 1 of the Act. The conspiracy consisted of a continuing agreement and concert of action among the manufacturers to fix and maintain label prices, submit rigged bids, allocate customers and territories, and “boycott those persons, including plaintiff, who have interfered or threatened to interfere with their illegal plan.” 1 The conspiracy was effectuated in part by coercing Ostrofe,…

dissenting:

Where policy arguments are bounced about in the freewheeling manner of the majority opinion, it is a sign that either no precedent exists to guide us, or that existing precedent is being ignored. In this case, it is the latter, but in any event the rule announced here is a departure from sound antitrust principles. I state my respectful dissent.

An appropriate starting point for the case is the Supreme Court’s decision in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 , 97 S.Ct. 690 , 50 L.Ed.2d 701 (1977). I submit Brunswick stands for the proposition that antitrust laws are aimed at protecting competition, and that antitrust actions under section 4 of the Clayton Act are limited to persons injured as competitors in a defined market or in a discrete area of the economy. Brunswick does not mandate this construction in so many words, but it is the fair and logical interpretation of the case; and I had thought, at least until today, this interpretation of Brunswick was established doctrine in this circuit. See Solinger v. A & M Records, Inc., 586 F.2d 1304, 1310, 1311 (citing Brunswick for propositions that “injury caused by the violation must be one the…