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FLM COLLISION PARTS, INC. v. FORD MOTOR CO.

March 17, 1976

FLM Collision Parts, Inc., Plaintiff,
v.
Ford Motor Co. and Ford Marketing Corp., Defendant


Griesa, D.J.


The opinion of the court was delivered by: GRIESA

GRIESA, D.J.:

On December 19, 1975 I filed an opinion holding that plaintiff FLM Collision Parts, Inc. is entitled to injunctive relief and damages under Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Anti-discrimination Act, 15 U.S.C. § 13(a). I stated that a supplemental opinion would be issued on the amount of damages to be awarded following completion of the record on that subject.

 The record is now complete. This supplemental opinion contains my findings of fact and conclusions of law as to the amount of damages, and also as to the amount of the attorneys' fee to be awarded pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15.

 Damages

 There are five items of damages claimed by FLM which require specific discussion. Certain other damage claims have been made by FLM based upon its theories of Sherman Act violation. Since these Sherman Act theories were rejected in my earlier opinion on liability, I will not deal further with the related issues of damages.

 Wholesale Incentive Allowances

 FLM claims that it should recover the total amount of the wholesale incentive allowances which were denied by Ford commencing November 1, 1972.

 Ford, in its Post-Trial Brief (pp. 92-96), basically conceded that, if there were liability, FLM would be entitled to recover the amount of these wholesale incentive allowances, provided that such amounts were accurately proved. In further proceedings, Ford has advanced two contentions. Ford argues that there is no showing that the entire amount of these wholesale incentive allowances would have been "passed on" by the Ford dealers to FLM. Ford also contends that the amount of the award for such allowances should be diminished by the alleged additional bookkeeping costs which FLM would have been required to incur in order to claim the wholesale incentive allowances.

 FLM has accurately proved the amount of the wholesale incentive allowances which should have been granted on Ford crash parts purchased by it during the relevant period. This period runs from November 1, 1972 to early 1976, when the final evidence was being introduced on the subject of damages. For the sake of convenience, a reasonable cutoff date for the damage period was selected -- February 6, 1976. I find that FLM has proved wholesale incentive allowances withheld in the total amount of $246,766.

 I reject the contention that FLM has failed to show that the entire amount of these wholesale incentive allowances would have been passed on to FLM by the Ford dealers. Prior to the withdrawal by Ford of the wholesale incentive allowances on sales to FLM, these allowances were consistently passed on to FLM. *fn1" There is not the slightest reason to believe that this practice would not have continued had it not been for the action of Ford in halting the granting of the wholesale incentive allowances on crash parts sold to FLM.

 I also find no merit in Ford's contention that the amount of the award for wholesale incentive allowances withheld should be diminished to take into account alleged additional bookkeeping costs. Ford points to the allegation of FLM that about $46,000 was spent on accounting services rendered to FLM in the present litigation. Ford assumes quite reasonably that some portion of this $46,000 relates to the detailed review of invoices and other records necessary to reconstruct the amount of wholesale incentive allowances which should have been granted during the period November 1, 1972 to February 6, 1976, and argues that this indicates that there would have been additional bookkeeping expenses to calculate the wholesale incentive allowances even if allowance claims had been handled in the normal course of business.

 Ford's argument is unrealistic. There is a great difference between calculating wholesale incentive allowances in the normal course of business and reconstructing this calculation for the purpose of litigation. There is no sufficient indication that FLM would have incurred any appreciable additional expense in order to process the wholesale incentive allowance claims in normal course.

 For these reasons I find that FLM is entitled to damages in the amount of $246,766 representing wholesale incentive allowances which should have been granted.

 Lost Sales

 FLM claims that its sales were consistently growing at a rapid rate until the time that Ford denied the wholesale incentive allowance, and that its sales would have continued to grow at the same rate during the years following the cutoff of the wholesale incentive allowance. FLM contends that this growth was prevented by Ford's wrongdoing, and that damages should be awarded based upon the alleged loss of growth.

 I have concluded that this claim, as presented by FLM, is entirely too speculative to justify an award of damages.

 However, FLM is entitled to damages on a related, but somewhat different, theory. As described in my earlier opinion, FLM's sales grew steadily for several years from its commencement of business in 1965. During the fiscal year ending September 30, 1972 -- the last full fiscal year prior to the withdrawal of the wholesale incentive allowance -- FLM's ...


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