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September 11, 1952


The opinion of the court was delivered by: WEINFELD

In this action under the Sherman and Clayton Acts, 15 U.S.C.A. §§ 1-7, 15 note, 12 et seq., the plaintiffs move pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to strike affirmative defenses by four of the defendants as insufficient in law, impertinent and immaterial.

The plaintiffs seek an injunction restraining the defendants, publishers of newspapers in New York City, from refusing to sell them amusement advertising space and from refusing to sell them such space at rates which will extend to them the same financial advantages granted to other advertisers who purchase the same quantity of space as plaintiffs. No demand is made for money damages.

 The relief sought is based upon a complaint which in substance alleges: that plaintiffs own and operate theatres for the presentation of legitimate plays in New York City, which they lease to independent producers under contracts, whereby they share in the box office receipts and also bear a part of the expenses for advertising plays in New York City newspapers; that the advertising rates charged by the defendants are dependent upon the amount of space purchased by each individual advertiser, decreasing as the number of lines increases; that the plaintiffs, by reason of their ownership of fifteen theatres, are in a position to purchase more space than that purchased by individual producers and so to take advantage of the lower rates; that in the case of plays produced at plaintiffs' theatres, the defendants have engaged in a continuing conspiracy in restraint of trade by selling amusement advertising space exclusively to individual producers who lease plaintiffs' theatres and by refusing to sell such space to plaintiffs, thereby preventing them, as mass purchasers of space for the total attractions, from obtaining reduced rates.

 In addition to a general denial of the material allegations of the complaint, the four defendants have interposed substantially similar affirmative defenses which are under attack by the present motion. They allege that the plaintiffs have been, and are, engaged in a combination to monopolize and control the booking of plays in legitimate theatres in New York City; that by reason of their said monopoly and as a condition of leasing their theatres, they have required of, and forced upon, the producers of plays clauses in their agreements which prevent the said producers from advertising in media of their own selection and compel them to advertise only through agencies designated by plaintiffs, thus denying to the individual producer freedom of choice in these matters.

 Finally, it is claimed that the plaintiffs by this action are attempting to coerce and compel the defendants to discriminate in plaintiffs' favor and against their competitors with respect to rates charged for amusement advertising; that the relief sought would in effect foster the plaintiffs' monopoly and control over producers of plays and the advertising of plays in New York City and elsewhere. Although there are allegations by three of the four defendants that the illegal conspiracy charged to the plaintiffs has damaged them, no counterclaim has been interposed either for damages or injunctive relief.

 The claimed force of the affirmative defense is two-fold: first, that plaintiffs are precluded by reason of the doctrine of 'unclean hands' from obtaining relief in a court of equity; second, the defendants say that plaintiffs are in effect seeking a decree in equity which, if granted, would be in aid of a conspiracy violative of the antitrust laws and would strengthen plaintiffs' dominance and control over producers of legitimate plays and prevent the defendants from engaging in free enterprise and from offering advertising rates without discrimination.

 The decisions relied on by the parties appear to manifest a gradual development of a judicial attitude towards the defenses of 'unclean hands' and 'in pari delicto' in cases involving the public interest. They will here be considered in three groups.

 The early infringement suits by those who had a property right in patents or copyrights were not barred by plaintiff's violations of the antitrust laws. *fn1" The underlying rationale of most of these holdings was that the plaintiff's misconduct was not related closely enough to the subject matter of the suit to warrant the application of the doctrine of 'unclean hands.' *fn2" These were followed by a series of Supreme Court rulings in which the owner of a patent was denied relief against an infringer where, through the use of the patent, he restricted competition or created a monopoly in unpatented items. *fn3" The denial of relief did not turn on whether the particular defendant suffered from the misuse of the patent. It was the use, or misuse, of the patent grant contrary to the public interest which was the basis of withholding relief to the patentee by the courts of equity.

 Another group of cases involved actions on contract in which the defense was that the promisee was engaged in a conspiracy to violate the antitrust laws. Whether that defense was allowed depended upon the relationship of the contract in question to the illegal scheme. Here, as in the instance of infringement suits, if the violation was related closely enough to the subject matter of the action and the contract was part of the scheme, the defense of illegality was upheld. *fn4" But if the contract was wholly unconnected with the asserted conspiracy, plaintiff could maintain his suit. *fn5" It will be noted, however, that in those patent and contract cases in which the defense was allowed, defendant was not charged with combining in restraint of trade, but with infringement or breach of contract. He was not charged with offending the public interest, but, rather, with invading the individual rights of the plaintiff.

 Still a third group of cases involved actions charging antitrust violations, in which the fact that plaintiff had acquiesced in, or furthered, the conspiracy of which he now complained, was found to preclude suit. *fn6" Since plaintiff had participated in the very scheme with which he charged defendant, he was in no position to complain. The defense was upheld on the principle of 'in pari delicto.'

 It may be acknowledged that no sharply defined principle emerges from all these cases, some of which are not altogether consistent. What does appear, however, is that the defenses of 'unclean hands' and 'in pari delicto' were not considered solely within the framework of traditional equity concepts. In determining whether the defense should be permitted or denied, decisive weight was given to the necessity of vindicating the public interest in free competition -- a necessity overriding the particular equities which might exist between the immediate parties.

 The importance of giving paramount consideration to antitrust policy has been crystalized in two recent cases, which, in my opinion, require the granting of plaintiffs' motion. In the first of these, Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 1951, 340 U.S. 211, 71 S. Ct. 259, 95 L. Ed. 219, a treble damage action, the defendants had violated the Sherman Act by fixing maximum resale prices and refusing to sell to wholesalers unless they agreed to dictated maximum resale prices. The defendants introduced evidence to show that the plaintiff-wholesaler had violated the antitrust laws by agreeing with other wholesalers to fix minimum prices for the sale of liquor. The Supreme Court held that plaintiff's participation in such a conspiracy was not a defense.

'If [plaintiff] and others were guilty of infractions of the antitrust laws, they could be held responsible in appropriate proceedings brought against them by the Government or by injured private persons. The alleged illegal conduct of [plaintiff], however, could not legalize the unlawful combination by [defendants] nor immunize them against liability to those they injured. Cf. Fashion Originators' Guild v. Trade Comm., 312 U.S. 457, 668, 61 S. Ct. 703, 85 L. Ed. 949 * * *.' 340 U.S. at page 214, 71 S. Ct. at page 261, 95 L. Ed. 219.

 The second of the cases has an interesting history. A short time before the ruling in the Kiefer case, the Court of Appeals for the Tenth Circuit decided Moore v. Mead Service Co., 1950, 184 F.2d 338, 340. Plaintiff had conspired to prevent the sale in his city of all but his own products. To counteract the effects of this conspiracy, the defendants, competitors of plaintiff, reduced their prices only in that city, while maintaining them in others. Plaintiff thereupon instituted a treble damage action, charging the defendants with violating the Robinson-Patman Act, 15 U.S.C.A. § 13(a). The Court of Appeals held that since the plaintiff was 'actually in pari delicto' and his damages were the direct result of his participation in an unlawful combination to create a monopoly, he could not recover. *fn7" Subsequently, the Supreme Court vacated the judgment and remanded the case 'for further consideration in the light of' the Kiefer case. ...

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