Kaufman and Mansfield, Circuit Judges, and Levet, District Judge.*fn* Levet, District Judge (dissenting).
MANSFIELD, Circuit Judge:
This appeal raises once again the question whether one who is not a "target" of an alleged antitrust conspiracy has standing under § 4 of the Clayton Act, 15 U.S.C. § 15, to sue for treble the amount of damages suffered by it incidentally. In this case, suit is brought by a non-operating landlord of theatres allegedly used by its tenant and various motion picture distributors and exhibitors in furtherance of an antitrust conspiracy to restrain the trade of competing distributors and exhibitors. We adhere to our prior decisions on the issue, see Fields Productions, Inc. v. United Artists Corp., 432 F.2d 1010 (2d Cir. 1970), affirming, 318 F. Supp. 87 (S.D.N.Y. 1969), cert. denied, 401 U.S. 949, 28 L. Ed. 2d 232, 91 S. Ct. 932 (1971); Billy Baxter, Inc. v. Coca-Cola Company, 431 F.2d 183 (2d Cir. 1970), cert. denied, 401 U.S. 923, 27 L. Ed. 2d 826, 91 S. Ct. 877, rehearing denied, 401 U.S. 1014, 28 L. Ed. 2d 553, 91 S. Ct. 1250 (1971); SCM Corp. v. Radio Corp. of America, 407 F.2d 166 (2d Cir.), cert. denied, 395 U.S. 943, 23 L. Ed. 2d 461, 89 S. Ct. 2014, rehearing denied, 396 U.S. 869, 24 L. Ed. 2d 125, 90 S. Ct. 38 (1969); Productive Inventions, Inc. v. Trico Products Corp., 224 F.2d 678 (2d Cir. 1955), cert. denied, 350 U.S. 936, 100 L. Ed. 818, 76 S. Ct. 301 (1956), and affirm the district court's dismissal of the complaint.
The action arises out of plaintiff's lease of three theatres located in Nassau County, New York (the Calderone, Rivoli and Cove) to defendant Metropolitan Playhouses, Inc., which, along with defendant United Artists Eastern Theatres, Inc., is a subsidiary of defendant United Artists Theatre Circuit, Inc. (all three of which are referred to collectively as UATC), for operation as motion picture theatres by UATC. The remaining defendants are engaged in the distribution of motion pictures to theatres throughout the United States, including those operated by UATC.
Invoking federal jurisdiction pursuant to the federal antitrust laws, plaintiff on April 16, 1970, filed its complaint containing six claims, the first three of which seek more than $7 million treble damages from all defendants, based upon their participation in an alleged antitrust conspiracy to restrain trade in the distribution and exhibition of motion pictures. The last three claims, predicated on pendent jurisdiction, seek $2,350,815 damages against UATC for breach of its lease of the three theatres. Each of the first three claims of the complaint alleges that plaintiff's predecessor leased one of the three theatres (the Calderone, Rivoli, or Cove), a high quality, first-class house, to UATC for an annual fixed minimum rental, plus an additional rental based upon a percentage of gross receipts realized annually from exhibition of motion pictures, the term of the lease being later extended to May 7, 1971. Plaintiff, as the landlord of the three theatres, did not reserve any right to participate in the operations or management of them. It alleges that the defendant-distributors, pursuant to a conspiracy with UATC and other motion picture theatre operators in violation of the federal antitrust laws, established a system of distributing motion pictures in the New York Metropolitan area called "Showcase." Under "Showcase" UATC and other exhibitors did not compete against one another for licenses from distributors to exhibit motion pictures on a first neighborhood run basis. Instead they divided all theatres suitable for such runs into groups known as "tracks" and allocated motion pictures for first neighborhood runs among the different "tracks." In the absence of such an arrangement, plaintiff alleges, better quality theatres such as the three leased by plaintiff to UATC would on a competitive basis exhibit pictures having the greatest box office appeal, thus realizing higher gross receipts than from less popular pictures. Under "Showcase," however, it is alleged that each of the three theatres was obligated to exhibit all features assigned to that theatre's "track," including inferior pictures that would not have been exhibited under normal competitive conditions, with the result that plaintiff's percentage of rental income was substantially less than it otherwise would have been and the market value of its fee interest in the theatres has been impaired. Plaintiff seeks treble the amount of the alleged loss in income and in value of the theatres.
The last three claims of the complaint seek single damages against the UATC defendants based on the charge that their exhibition of pictures in the three theatres pursuant to "Showcase" constituted a breach of their duty under the leases to refrain from willful acts which would have the effect of reducing gross receipts and percentage rentals of the three theatres.
The district court granted defendants' motion, pursuant to Rule 12(b)(6), F.R.C.P., to dismiss the first three counts on the ground that as a non-operating landlord of a motion picture theatre, plaintiff did not have standing under § 4 of the Clayton Act to recover damages allegedly caused by a combination of motion picture distributors and theatre operators to restrain trade in the exhibition of motion pictures in violation of the federal antitrust laws. Accordingly the three pendent state claims were also dismissed pursuant to the teaching of United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); see also O'Neill v. Maytag, 339 F.2d 764, 766 n. 3 (2d Cir. 1964).
In a series of decisions over the last 15 years, in all of which certiorari was denied by the Supreme Court, this court has committed itself to the principle that in order to have "standing" to sue for treble damages under § 4 of the Clayton Act, a person must be within the "target area" of the alleged antitrust conspiracy, i.e., a person against whom the conspiracy was aimed, such a competitor of the persons sued. Accordingly we have drawn a line excluding those who have suffered economic damage by virtue of their relationships with "targets" or with participants in an alleged antitrust conspiracy, rather than by being "targets" themselves. For example, standing has been denied to a patent owner claiming derivative harm as the result of a conspiracy directed against its licensees, Productive Inventions v. Trico Products Corp., supra ; SCM Corp. v. Radio Corp. of America, supra, a franchisor complaining of an antitrust combination directed at its franchisee, Billy Baxter, Inc. v. Coca-Cola Company, supra, and a motion picture producer seeking damages from its television distributor based upon the latter's distribution of films by "block booking" the films with a view to restraining the trade of television stations and other distributors but not producers, Fields Productions, Inc. v. United Artists Corp., supra.
The rationale behind the foregoing demarcation is simple, fair and reasonable. It respects the purpose of § 4 of the Clayton Act, which is to provide a private enforcement weapon that will deter violation of the federal antitrust laws by permitting any person injured in his business by reason of an antitrust violation to recover treble the damages actually suffered. It acknowledges that while many remotely situated persons may suffer damage in some degree as the result of an antitrust violation, their damage is usually much more speculative and difficult to prove than that of a competitor who is an immediate victim of the violation. Furthermore if the flood-gates were opened to permit treble damage suits by every creditor, stockholder, employee, subcontractor, or supplier of goods and services that might be affected, the lure of a treble recovery, implemented by the availability of the class suit as facilitated by the amendment of Rule 23 F.R.C.P., would result in an over-kill, due to an enlargement of the private weapon to a caliber far exceeding that contemplated by Congress. If the antitrust laws were precise and crystallized something might be said in favor of such an enormous expansion of potential treble damage liability, speculative as the damages might be. But the fact remains that because there are few "bright lines" in the area, even experts who have devoted their entire professional lives to the practice of antitrust law often find it impossible to advise a client with any degree of certainty whether his contemplated conduct will transgress lawful bounds.*fn1
Accordingly it is necessary to use a rule of reason in construing the requirements of § 4 of the Clayton Act as to standing, just as such a rule has been adopted by courts in determining whether restraints, other than per se violations, transgress §§ 1 and 2 of the Sherman Act. Northern Pacific Railway Co. v. United States, 356 U.S. 1, 4-5, 2 L. Ed. 2d 545, 78 S. Ct. 514 (1958); Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 55 L. Ed. 619, 31 S. Ct. 502 (1911). A line which limits standing to those against whom the antitrust violation is directed fulfills Congress' fundamental purpose and at the same time establishes a reasonable and easily identifiable cut-off that avoids the unfortunate consequences of opening the flood-gate to all, no matter how remote their interest or incidental their relationship.*fn2 Competitors who are within the target area of an alleged antitrust conspiracy usually have more incentive than others to avail themselves of § 4. In those cases where they fail to do so, the Government may, of course, seek injunctive or punitive relief under other sections of the antitrust laws. See, e.g., 15 U.S.C. §§ 1, 2, 4, 9.
Applying these established principles here, plaintiff, a non-operating landlord of a theatre leased to an exhibitor, is clearly outside of the target area of the alleged conspiracy of distributors and exhibitors, which was to restrain competition in the exhibition of motion pictures. The alleged conspiracy was admittedly not aimed at plaintiff, but at competing distributors and exhibitors.*fn3 Nor does the fact that the plaintiff's lessee was allegedly a party to the conspiracy materially distinguish this case from those where standing has been denied to one having a similar relationship to an innocent competitor victimized by a conspiracy, e.g., Billy Baxter, Inc. v. Coca-Cola Company, supra ; SCM Corp. v. Radio Corp. of America supra. Indeed, we have recently denied standing to one suing on the basis of a contract with a co-conspirator. Fields Productions, Inc. v. United Artists Corp., supra. In determining whether a plaintiff has standing under § 4 of the Clayton Act, the only relevant factor is whether the plaintiff is a "target" of the illegal activity. If the plaintiff is not within the "target area," then it is legally immaterial whether the person through whom the plaintiff derives his injury was a member of the conspiracy or was innocent of any wrongdoing. A plaintiff not a target of any antitrust violation does not become a target by virtue of the culpability of its lessee, patentee, franchisee, supplier, customer, or debtor.*fn4
Although Calderone does not have standing under § 4 of the Clayton Act, nothing precludes a distributor or exhibitor against whom the alleged conspiracy is directed from bringing a treble damage suit against defendants, and we have been advised that such actions by non-participating exhibitors are now pending in the United States District Court for the Southern District of New York. See e.g., Glen Cove Theatre, Inc. v. United Artists Corp., 66 Civ. 661.
We see no legally significant difference between plaintiff's position and that of the franchisor in Billy Baxter, Inc. v. Coca-Cola Company, supra, and the motion picture producer in Fields Productions, Inc. v. United Artists Corp., supra, both of whom were denied standing. Indeed respected courts have held that a non-operating landlord lacks standing to seek treble damages from its tenant and others for alleged antitrust violations which decreased its theatre rentals. See, e.g., Melrose Realty Co. v. Loew's, Inc., 234 F.2d 518 (3d Cir.), cert. denied, 352 U.S. 890, 1 L. Ed. 2d 85, 77 S. Ct. 128 (1956), motion for leave to file petition for rehearing denied, 355 U.S. 900, 2 L. Ed. 2d 198, 78 S. Ct. 259 (1957); Harrison v. Paramount Pictures, Inc., 115 F. Supp. 312 (E.D. Pa. 1953), affd., 211 F.2d 405 (3d Cir.), cert. denied, 348 U.S. 828, 99 L. Ed. 653, 75 S. Ct. 45 (1954); Skouras Theatres Corp. v. Radio-Keith-Orpheum Corp., 193 F. Supp. 401 (S.D.N.Y. 1961); Lieberthal v. North Country Lanes, Inc., 221 F. Supp. 685 (S.D.N.Y. 1963), affd. on other grounds, 332 F.2d 269 (2d Cir. 1964). We are not persuaded by the contrary decision of the Seventh Circuit in Congress Building Corp. v. Loew's Inc., 246 F.2d 587 (7th Cir. 1957), the soundness of which has been questioned by Judge Hastings of that court. See Sandidge v. Rogers, 256 F.2d 269, 278 (7th Cir. 1958). The Ninth Circuit's decision in Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (9th Cir. 1956), is clearly distinguishable from the present case for the reason that the plaintiff-landlord there alleged that her tenant and various motion picture distributors had conspired to destroy the value of plaintiff's theatre by threatening to withhold first-run motion pictures from it unless plaintiff agreed to reduce the fixed monthly rental and to grant options to renew the lease, which plaintiff was forced to do. Plaintiff there was thus a target of the alleged conspiracy.*fn5 No such allegation is made in the present case.
Our decision does not leave the plaintiff here without a remedy. Assuming plaintiff's claims to be meritorious, it is not precluded from recovering single damages from UATC in a state court suit for breach of the terms of the lease, which forms the basis of the three pendent claims asserted in the present action. Since the federally- based claims were properly dismissed prior to trial, however, the pendent state claims must also be dismissed and the plaintiff relegated to the state courts for relief. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); O'Neill v. Maytag, 339 F.2d 764, 766 n.3 (2d Cir. 1964).
LEVET, District Judge (dissenting):
I dissent and vote to reverse the determination of the District Court.
The issue presented in this appeal is whether appellant, Calderone Enterprises Corporation (hereinafter "Calderone"), an owner-lessor of motion picture theatres under a percentage lease agreement, has standing to sue its lessee, defendant, United Artists Theatre Circuit, Inc. (hereinafter "UATC"), and other alleged co-conspirators for antitrust violations under Section 4 of the Clayton Act, 15 U.S.C. § 15, which resulted in substantial financial damage to the appellant in terms of: (a) reduction in the amount of percentage rental received by appellant from its lessee; and (b) damage to appellant's reversionary and fee interest in the form of a present decline in the market value of the theatre.
In the majority opinion it is asserted that this question has been answered in the negative by the Second Circuit. I am forced to disagree with that conclusion. The issue has never been determined by this Court and the appellant does have standing to sue in this action.
I accept the facts in this case as recited in the majority opinion. In any event, since this action was appealed as a result of the granting of defendants' motion to dismiss for failure to state a claim upon which relief could be granted, pursuant to Rule 12(b)(6) Fed. R. Civ. P., I must assume that all the facts in the complaint are correct.
Section 4 of the Clayton Act, 15 U.S.C. § 15, provides in pertinent part:
"That any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover three-fold of the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."
Any natural or artificial person, i.e., corporation, organization or association, can bring an action under this section. However, there are three prerequisites for recovery. First, there must be in fact an injury. Plaintiff must plead with specificity the nature, character, and extent of his injury. Second, the injury complained of must be against plaintiff's business or property. Third, the injury must be proximately caused by the alleged violation, i.e., the plaintiff must show some causal connection between his injury and the illegal acts of the defendant.
Under this statutory scheme Calderone has standing to sue. Plaintiff has alleged an injury to his business and property resulting from an antitrust violation. However, judicial interpretation and application of the statute has imposed an additional requirement. It is no longer sufficient that a plaintiff establish merely that he was "injured" in his "business and property" "by reason of" an antitrust violation. Now, in order to satisfy the statute, a plaintiff must demonstrate that his loss was a result of a direct injury to him by the defendant or that he was within the "target area" of the violation.
This whole notion of directness was first enunciated in the 1910 case of Loeb v. Eastman Kodak Co., 183 Fed. 704 (3rd Cir. 1910). In Loeb plaintiff, a shareholder and creditor of the corporation, which was forced out of business by defendant's antitrust violations, brought an action under Section 7 of the Sherman Anti-Trust Act of 1890. The court reasoned that the injury complained of was directed at the corporation and not at the individual stockholders. The only relief, therefore, the plaintiff could obtain would be through a derivative suit in the name of the corporation. However, the individual stockholder in that case was bringing an ...