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FIMEX CORP. v. BARMATIC PRODS. CO.

April 14, 1977

FIMEX CORP., Plaintiff,
v.
BARMATIC PRODUCTS CO., Defendant



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D.J.

 Fimex Corporation ("Fimex") is suing Barmatic Products Company ("Barmatic") for discriminatory pricing in violation of the Robinson-Patman Act, 15 U.S.C. § 13(a).

 The defendant Barmatic has moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment or, in the alternative, pursuant to Rule 12(b)(6) to dismiss the complaint on the grounds that the Robinson-Patman Act does not cover goods sold for export and that all the goods the defendant sold to the plaintiff were for export.

 Barmatic is an Ohio corporation which manufactures automobile parts. Fimex is a New York corporation which distributes automobile parts in the United States and abroad, and which, since about 1960, has purchased some of its parts from Barmatic. The plaintiff alleges that the defendant charged him a higher price than the defendant charged other customers purchasing the same products. The defendant alleges that all the sales to the plaintiff were sold for export.

 I

 The first issue raised by this case is whether the Robinson-Patman Act covers goods sold for export. That Act states (15 U.S.C. § 13(a)):

 
"It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States . . ."

 That statute clearly states that to be covered the commodities must be sold "for use, consumption, or resale within the United States." Thus, if all the sales between the defendant and the plaintiff were for resale abroad, this statute is inapplicable.

 The plaintiff argues that "the Robinson-Patman Act prohibits discrimination in prices between persons within the United States even if those persons purchased goods for export."

 On this point we quote Congressman Patman, co-author of the Act, in his book entitled The Robinson-Patman Act, at p. 208 (1938), (quoted in Baysoy v. Jessop Steel Co., 90 F. Supp. 303, 305 (W.D. Pa. 1950)):

 
"Therefore, in applying the Act to export sales, it is evident that no limit or regulation of price discrimination in such sales is intended, unless goods involved in such transactions are resold for use, consumption, or resale in any place under the jurisdiction of the United States. It is likewise apparent that the parties to any sales transaction, regardless of where the parties are located, are not subject to the price-discrimination provisions of the Act, unless such goods are sold for resale in, or are to be used or consumed in, any place under the jurisdiction of the United States." (Emphasis added)

 That quotation makes it clear that the focus of the Act is on where the goods are going, not on where the parties involved are located. This conclusion is supported by the leading case interpreting this section, Zenith Radio Corp. v. Matsushita Electric Industrial Co., Ltd., 402 F. Supp. 244 (E.D. Pa.), pet. denied, 521 F.2d 1399 (3d Cir. 1975). In that case the defendant was selling televisions at one price in Japan and at another in the United States. The Court held (402 F. Supp. at 248):

 
"The 'use, consumption, or resale' clause makes it equally clear that the commodities involved must eventually reach the United States. Hence, no cause of action arises under the Act unless both commodities involved in the alleged price discrimination are 'sold for use, consumption, or resale within the United States.' That, of course, is not the case here, for one 'leg' of the price discrimination alleged by plaintiffs involves commodities that are 'sold for use, consumption, or resale,' not within the United States, ...

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