Pacific Stationery & Printing Co., an Oregon Corporation v. Northwest Wholesale Stationers, Inc., an Oregon Cooperative Corporation

dissenting:

The majority holds that a nonprofit cooperative association commits a per se violation of the antitrust laws if it expels a member without giving notice of • the grounds for the expulsion and an opportunity to be heard. I find that ruling to be unprecedented and the rationale behind it remarkable.

After Northwest terminated Pacific’s membership, Pacific could have continued to purchase supplies from Northwest. But as a nonmember, it was not entitled to rebates. The termination of membership thus resulted in price discrimination against Pacific, which would normally constitute a violation of the Robinson-Patman Act, 15 U.S.C. § 13a (1976). As the majority concedes, however, the method of price discrimination at issue here is condoned by Congress, for an explicit exemption allows a cooperative to return

15 U.S.C. § 13b (1976). I see no ground for believing that Congress intended to qualify *1399 that exemption by requiring cooperatives to provide recipients of rebates with notice and a hearing before cutting off their entitlement to rebates by terminating their membership. The majority nevertheless declares that a cooperative that expels a member without affording…

Northwest Wholesale Stationers, Inc. (“Northwest”) is a non-profit cooperative association composed of retail office supply outlets in the Pacific Northwest. It operates as a purchasing cooperative, obtaining office supplies at substantial volume discounts, and operating warehousing facilities greater than individual outlets can maintain for themselves. Additionally, as a cooperative organized under the laws of Oregon, Northwest distributes its profits annually to its members in the form of refunds or rebates. Such practices by a cooperative association are exempt from price discrimination prohibitions under 15 U.S.C. § 13b and also under an Oregon statute, Or.Rev. Stat. § 646.030.

Pacific Stationery & Printing Co. (“Pacific”) operates a retail office supply store in Portland and also maintains some wholesale operations. Since June 1958 it had been a member in good standing of the Northwest *1395 cooperative; however, in September 1978, Pacific was expelled from the cooperative without notice of the grounds for its expulsion or an opportunity to be heard on the decision.

Pacific brought suit, alleging that its expulsion in the absence of any procedural safeguards was a per se…

715 F.2d 1393 1983-2 Trade Cases P 65,616 PACIFIC STATIONERY & PRINTING CO., an Oregon corporation, Plaintiff-Appellant, v. NORTHWEST WHOLESALE STATIONERS, INC., an Oregon cooperative corporation, Defendant-Appellee. No. 82-3049. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 4, 1983. Decided Sept. 16, 1983. George J. Cooper, III, Morrison, Dunn, Miller & Carney, Portland, Or., for plaintiff-appellant. Gregory A. Hartman, Willner, Bennett, Bobbitt & Hartman, Portland, Or., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before FERGUSON, BOOCHEVER and NORRIS, Circuit Judges. FERGUSON, Circuit Judge: 1 Northwest Wholesale Stationers, Inc. ("Northwest") is a non-profit cooperative association composed of retail office supply outlets in the Pacific Northwest. It operates as a purchasing cooperative, obtaining office supplies at substantial volume discounts, and operating warehousing facilities greater than individual outlets can maintain for themselves. Additionally, as a cooperative organized under the laws of Oregon, Northwest distributes its profits annually to its members in the form of refunds…