The opinion of the court was delivered by: DIMOCK
The allegations of Count One of the indictment will first be summarized. Since these motions deal only with the face of the indictment, this opinion will deal only with the facts therein alleged without regard to actuality.
Newspaper and Mail Deliverers' Union of New York and Vicinity, hereinafter 'the Union', has labor contracts with the publishers of all of the principal New York City newspapers and all of the principal magazines published throughout the United States covering such of their employees as are engaged in the handling of newspapers and magazines. It is a provision of these contracts that such publishers can use as wholesalers only such distributors as are themselves under labor contractual relations with the Union. Suburban Wholesalers Assocation, Inc., hereinafter Suburban Wholesalers, is a New York membership corporation consisting of twelve members who are such distributors and in labor contractual relations with the Union. The necessity of keeping in labor contractual relations with the Union in order to retain the position of wholesaler to the publishers gives strikes and threats of strikes a coercive effect.
The twelve members of Suburban Wholesalers are alleged to distribute the newspapers and magazines in specified sub-areas of the so-called Suburban Area outside of New York City which do not overlap but there is no allegation that they are the sole distributors of the newspapers and magazines in those sub-areas.
Prominent in the list of defendants are officers and representatives of the Union. The rest of it is made up of defendant Bi-County News Corp., hereinafter 'Bi-County', and officers, employees and stockholders of various other corporations of undescribed purposes.
Defendants Irving Bitz, Charles Gordon and Bi-County are engaged in the wholesale distribution of newspapers and magazines. Bi-County is alleged to have its principal place of business in Westbury, Long Island. The place of business of the two individuals is not stated.
Count One of the indictment charges a combination and conspiracy, in restraint of the continuous and regular flow in interstate commerce of newspapers and magazines from various states to members of Suburban Wholesalers located in New York, New Jersey and Connecticut, in violation of Section 1 of the Act of Congress of July 2, 1890, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies' as amended, c. 647, 26 Stat. 209, 15 U.S.C. Section 1, commonly known as the Sherman Act.
The combination and conspiracy is alleged to have consisted in a continuing agreement and concert of action among defendants and co-conspirators. Its substantial terms have been and are:
'a. To restrain the members of Suburban Wholesalers in their wholesale distribution of newspapers and magazines by coercing and compelling said members to pay to the conspirators various sums of money, as a pre-requisite to obtaining labor contracts with the Union to avoid strikes or the continuation of strikes already called by said Union;
'b. To prevent the shipment of newspapers and magazines in interstate commerce to members of Suburban Wholesalers not acceding to the demands of the conspirators; and
'c. To hinder and exclude or attempt to hinder and exclude actual or potential competitors of defendants Irving Bitz, Charles Gordon and Bi-County.'
The combination and conspiracy is alleged to have had the following effects, 'among others':
'a. All the members of Suburban Wholesalers have been compelled to pay financial tribute as a condition for engaging in the aforesaid trade and commerce;
'b. Newspaper and magazine publishers have been hindered, restrained or prevented from distributing newspapers and magazines in the Suburban Area to their financial loss and detriment;
'c. Retail news dealers in the Suburban Area have been hindered, restrained or prevented from selling newspapers and magazines to their financial loss and detriment;
'd. Competitors of Irving Bitz, Charles Gordon and Bi-County have been deprived of an equal opportunity to obtain labor contracts with the Union and to compete with these defendants in the wholesale distribution of newspapers and magazines; and
'e. Interstate trade and commerce in the wholesale distribution of newspapers and magazines in the Suburban Area has been unreasonably restrained.'
The only allegation as to the means by which the combination and conspiracy has been effectuated is as follows:
'During the period covered by the indictment, the said combination and conspiracy has been effectuated by various means and methods including, but not limited to, the use of union influence, duress and threats of strikes or strikes to compel: (a) the payment of $ 25,000 by the members of Suburban Wholesalers to defendants Angelo Lospinuso, William Walsh and Harry Waltzer on or about January and February 1955, in connection with the negotiation of a labor contract between the Union and Suburban Wholesalers effective February 1, 1955; (b) the payment of $ 45,000 by Suburban Wholesalers to defendant Irving Bitz and to defendants Sam Feldman, Stanley J. Lehman, John J. Lawrence, Jr. and Harry Waltzer in connection with the ...