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GEORGE W. WARNER & CO. v. BLACK & DECKER MFG. CO.

April 16, 1959

GEORGE W. WARNER & CO., Inc., Plaintiff,
v.
BLACK & DECKER MANUFACTURING COMPANY, Inc., and Gus F. Fischer, Defendants



The opinion of the court was delivered by: BYERS

This is a defendants' motion addressed to the amended complaint filed January 7, 1959 following the decision of this court of December 1, 1958, reported in D.C., 167 F.Supp. 860.

The relief sought is a dismissal of the three causes as now pleaded (F.R.Civ.P. 12(b), 28 U.S.C.A.), or for summary judgment on the third cause for lack of a genuine issue as to any material fact; and for such other relief, etc.

 It is not proposed to rehearse what has been already written concerning the general nature and apparent scope of the controversy between these parties, and reference to the said opinion will be confined to the plain necessities of this motion.

 The plaintiff's present brief contains the following:

 'The core of the case: illegal and predatory price fixing

 'The basic challenge of the complaint is to the vertical and discriminatory price fixing plan and scheme by defendant Black & Decker (called 'B&D' herein), whereby B&D not only illegally maintains and controls the resale prices charged to the regular trade by certain of its named distributors of its industrial line of tools, equipment and parts, but also dictates and manipulates the resale prices charged by those distributors on government purchases of B&D products.'

 The brief continues for some thirty pages to argue the merits of the plaintiff's claim for relief.

 The present task of the court is to examine the pleading as such, to ascertain if it is adequate to present triable issues.

 The first paragraph asserts the filing of the complaint under the Clayton Act, 15 U.S.C.A. § 12 et seq., the Sherman Act, 15 U.S.C.A. § et seq., and the Robinson-Patman Act, 15 U.S.C.A. § 13 et seq. The next seven paragraphs purport to describe the corporate defendant, its plant and several officers (incidentally that it proclaims itself, and on information and belief that it is 'the world's largest and predominant manufacturer portable electric power tools, equipment and accessories' *fn1" ).

 Also comprehended is the description of the defendant Fischer as a District Manager of its New York office; the widespread use of the defendants' products, and its sale thereof to distributors, and the resale thereof; and the place that appliances, parts and equipment occupied in the business of the defendant. That the B & D two-inch portable electric hammers with self-contained electric motor are alone manufactured by the defendant. That would seem to be an obvious thing, and free from any taint of illegality.

 The next three paragraphs recite the plaintiff's corporate status, and its business activities; also its relations to defendant prior to August 6, 1958.

 The foregoing may be thought of as descriptive and as introductory to the controversy.

 Paragraph 12 refers to the 30% discount to wholesale distributors in general, in the New York and Newark areas, among which was the plaintiff, until the date last mentioned.

 Paragraph 13 contains a list of seven distributors other than plaintiff, followed by the words '(The above designated distributors are hereinafter called 'competing distributors').'

 The asserted first cause of action is found in paragraphs 15 to 23 inclusive.

 15 alleges bidding for purchases by governmental agencies of such devices, the specifications 'for descriptive or other like purposes,' (a cryptic expression) 'often expressly designate products and accessories of Black & Decker by name as being the kind and quality of tools, etc. required by them.'

 16 alleges that the course of such trade 'has been predicated upon free, competitive and non-collusive bidding by the prospective sellers thereof, the government contracts to purchase the same being awarded to the responsible bidder offering to sell and deliver the required articles at the lowest price.'

 17 alleges that in June 1957 the defendants in order to control and restrain competition between 'competing distributors' including plaintiff, devised etc. a plan and scheme artificially fixing and controlling minimum sales ...


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