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NATIONAL AUTO BROKERS CORP. v. GMC

June 17, 1971

National Auto Brokers Corp., et al., Plaintiffs
v.
General Motors Corp., et al., Defendants


Cooper, D. J.


The opinion of the court was delivered by: COOPER

COOPER, D. J.:

Defendants Citizens Bank and Trust Company of Maryland (Citizens), Wilmington Trust Company (Wilmington), Suburban Trust Company (Suburban) and News-Journal Company (News-Journal) move pursuant to Rule 12(b), F.R. Civ. P. and Section 12 of the Clayton Act, 15 U.S.C. § 22, to dismiss for lack of jurisdiction and improper venue. Motions denied with leave to renew (before the Judge sitting in the motion part) following discovery now being undertaken by plaintiffs. *fn1" Inquiries as to the nature, range, extent and dollar volume of activities (including but not limited to corresponding balances) of correspondent banks of Citizens, Wilmington and Suburban located in the Southern District of New York are proper.

 Wilmington and News-Journal are Delaware corporations; Citizens and Suburban are Maryland corporations. Each is not licensed to do business in New York; maintains no office or place of business in New York; does not own, lease or use any real or personal property in New York; and has no employees, officers or directors who reside in New York. Defendants' Joint Memorandum, p. 8; News-Journal Main Memorandum, p. 6.

 However, relatively few contacts are necessary to establish venue. A checklist of negated contacts combined with a failure to take notice of those present -- whatever the merits as advocacy strategy -- provides the Court with a distorted picture for analysis; it demonstrates that often it is the better part of wisdom to require broad discovery prior to making anti-trust venue determinations. U.S. v. Watchmakers of Switzerland Information Center, Inc., 133 F. Supp. 40, 43 (S.D.N.Y. 1955); Abrams v. Bendix Home Appliances, Inc., 96 F. Supp. 3 (S.D.N.Y. 1951); 37 N.Y.U.L. Rev. 268, 282 (1962).

 I

 The Clayton Act specifically provides venue requirements for corporate *fn2" defendants:

 
"Any suit, action, or proceeding under the anti-trust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business . . ."

 The term "transacts business" was intentionally added by Congress to broaden venue in anti-trust cases and to further the sound remedial policy of allowing an aggrieved party a larger number of available forums in which to litigate. It is undisputed that the "transacts business" test is broader than either local process or Clayton Act "found" or "doing business" tests. Eastman Kodak Co. of N.Y. v. Southern Photo Materials Co., (273 U.S. 359, 71 L. Ed. 684, 47 S. Ct. 400 (1927)); 1 Moore's Federal Practice, 0.144 [15] at 1668-1669; 37 N.Y.U.L. Rev. 268, 280-81, 283 n. 107.

 
"Thus by substituting practical business conceptions for the previous hair-splitting legal technicalities encrusted upon the 'found' -- 'present' -- 'carrying on business' sequence, the [ Eastman Kodak ], supra, Court yielded to and made effective Congress' remedial purpose. Thereby it relieved persons injured through corporate violations of the anti-trust laws from the 'often insuperable obstacles' of resorting to distant forums for redress of wrongs done in the places of their business or residence." United States v. Scophony Corp. of America, 333 U.S. 795, 808, 92 L. Ed. 1091, 68 S. Ct. 855 (1948).

 The essence of the "transacts business" test is that it is fair, just and proper to require a corporation to defend an action where it derives benefit of a "substantial character in a more or less permanent fashion," a "practical, factual concept which the court should determine by appraising the facts in their ordinary, untechnical meaning within the context of the unique circumstances of a particular situation." Scophony, supra, at 819 (concurring opinion of Frankfurter, J.); Albert Levine Associates v. Bertoni and Cotti et al., 309 F. Supp. 456 (S.D.N.Y. 1970); 1 Moore's Federal Practice para. 0.144 [15] at 1669.

 In determining the unique circumstances of a particular situation broad discovery is frequently essential. Where the law clearly requires ultimate inquiry into such circumstances, it is obvious that a searching inquiry cannot be foreclosed at the discovery stage. The courts have rejected numerous theories seeking to limit venue (and hence discovery) including the "hair-splitting legal technicalities" of the old "found -- present -- carrying-on business tests," Scophony, supra, at 807-08, and the passage of title, B.J. Semel Associates, Inc. v. United Fireworks Manufacturing Co., 122 U.S. App. D.C. 402, 355 F.2d 827 (1965); Sunbury Wire Rope Manufacturing Company v. United States Steel Corporation, 129 F. Supp. 425 (E.D. Pa. 1955); see generally, Raul International Corp. v. Nu-Era Gear Corp., 28 F.R.D. 368 (S.D.N.Y. 1961).

 The chief indicator of "transacts business" ordinarily has been whether the dollar volume of business benefit viewed objectively and without reference to the total volume of business of any particular corporation is substantial from the point of view of the average businessman. B.J. Semel Associates, Inc. v. United Fireworks Mfg. Co., 122 U.S. App. D.C. 402, 355 F.2d 827 (D.C. Cir. 1965); United States v. Burlington Industries, Inc. et al., 247 F. Supp. 185 (S.D.N.Y. 1965); Sunbury Wire Rope Mfg. Co. v. United States Steel Corp., 18 F.R.D. 13 (E.D. Pa. 1955), rev'd on other grounds, 230 F.2d 511 (3d Cir. 1956); Green v. United States Chewing Gum Mfg. Co., 224 F.2d 369 (5th Cir. 1955). The test does not require that the activities to be counted for venue purposes be among those which are within the subject matter of the suit. Burlington Industries, supra, at 187.

 Additionally, the test specifically has not depended on the size of the corporation or over-all activities or whether the relevant corporate activities comprise a large percentage of the market. To do so would ordinarily permit liberal venue placement as against small corporations but apply a stricter test more favorable to larger corporations which may in fact have greater power and thereby greater involvement or influence in the alleged illegal activity. Chewing Gum, supra; Burlington Industries, supra. The remedial policies of the antitrust ...


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