This Decision and Order supersedes a previous Decision and
Order filed with the Clerk of the Court on August 1, 1991.
This Court has jurisdiction over this lawsuit pursuant to
28 U.S.C. § 1331 and through exercise of its pendent
Before it went out of business in 1990, plaintiff operated a
GM truck dealership in Cheektowaga, New York; plaintiff was an
authorized dealer for Class 8 GM Brigadier model ("Brigadier")
trucks. Prior to and during 1987, plaintiff was one of four
dealers which supplied Brigadier trucks to Ryder Automotive
Carrier Division ("Ryder"). In the several years before 1987,
plaintiff's sales of Brigadier trucks to Ryder constituted a
significant portion of plaintiff's business. However, in 1987
plaintiff sold no Brigadier trucks to Ryder.
In Count One of the Complaint seeking declaratory and
injunctive relief and damages, the plaintiff alleges that the
defendants violated § 2 of the Clayton Act, as amended by the
Robinson-Patman Act, 15 U.S.C. § 13 ("§ 13").*fn3 Plaintiff
alleges that beginning in 1987, GM implemented and enforced a
discriminatory fleet discount policy with respect to dealer
sales of Brigadier trucks to Ryder. Plaintiff further alleges
that because GM denied plaintiff the same discount offered to
plaintiff's competitor dealers, plaintiff lost Ryder as a
customer and consequently went out of business.
With respect to VGM, plaintiff alleges that VGM is a joint
venture between GM and Volvo-White Truck Corporation created to
continue the manufacture and market of Brigadier trucks in
place of GM through an exclusive dealership after December 31,
1987. Plaintiff claims that before manufacturing Brigadier
trucks, VGM competed with Schule as a dealer of Brigadier
trucks manufactured by GM, and as a dealer, helped engineer and
receive discounts not made available to the plaintiff. In any
event, plaintiff alleges that VGM participated in enforcing the
alleged discriminatory discounts in 1987 and beyond.
In support of their cross-motions, the defendants advance
several arguments. Initially, the defendants argue that this
Court must dismiss the Robinson-Patman Act portions of Count
One because plaintiff cannot show that it purchased any trucks
from the defendants during the time of the alleged price
discrimination and, therefore, that the plaintiff has failed to
establish a prima facie Robinson-Patman Act violation. The
defendants also argue that the plaintiff has failed to
establish other elements of its prima facie Robinson-Patman Act
claim and that, nonetheless, they administered no
discriminatory discounts. Finally, GM moves to strike the
affidavits of Nelson Schule and F. James Kane, Esq.
In support of its motion, the plaintiff has submitted the
affidavit of Nelson Schule ("Schule"); the affidavit of James
Kane, Esq. with exhibits ("Kane"); a legal memorandum
("Plaintiff Memo."); a reply memorandum in response to GM
("Reply to GM"); a reply memorandum in response to VGM ("Reply
to VGM"); a letter brief dated
January 9, 1991 ("Plaintiff Letter Brief"); and statements of
In support of its cross-motion, GM has submitted a legal
memorandum ("GM Memo."); a letter brief dated February 7, 1991
("GM Letter Brief"); the affidavit of Thomas Wiswall, Esq. with
exhibits ("Wiswall"); the affidavit of Lawrence E. Bradford
("Bradford"); the affidavit of James R. Rossow ("Rossow");
several other evidentiary affidavits; and statements of
In support of its cross-motion, VGM has submitted a legal
memorandum ("VGM Memo."); a first supplemental legal memorandum
("VGM 1st Supp. Memo"); a second supplemental legal memorandum
("VGM 2d Supp. Memo."); the affidavit of Deborah Karalunas,
Esq. with an exhibit; and statements of material fact.
This Court has considered all these submissions and oral
argument held on February 26, 1991.
Conclusion: For the reasons set forth below, this Court finds
that the plaintiff fails to establish a prima facie
Robinson-Patman Act violation and therefore grants the
defendants' cross-motions for partial summary judgment as to
the Robinson-Patman Act claims contained in Count One.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment is appropriate where ". . . there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law." The burden is upon the
moving party to demonstrate the absence of a material factual
dispute. Fed.R.Civ.P. 56(e). Once that burden is met, the
non-moving party ". . . must set forth specific facts showing
that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
This Court must draw all reasonable inferences in favor of the
non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). However,
courts should not be reluctant to grant summary judgment in
appropriate cases since "[o]ne of the principal purposes of the
summary judgment rule is to isolate and dispose of factually
unsupported claims," Celotex Corp. v. Catrett, 477 U.S. 317,
323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), thereby
permitting courts to avoid ". . . protracted, expensive and
harassing trials." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74
Applying this standard, this Court concludes that there
exists no genuine issue of material fact as to the defendants'
Robinson-Patman Act liability under Count One.
The following material facts are not in dispute.
Before 1987, plaintiff was one of four GM dealers which
supplied Brigadier trucks to Ryder. (Rossow, ¶ 2). The other
three dealers were George Byers Sons, Inc. ("Byers"), Wink
Chevrolet ("Wink") and General GMC ("General"). According to an
Addendum to the Dealer Sales and Service Agreement between the
plaintiff and GM ("the Addendum"), GM granted plaintiff a
non-exclusive right to buy certain named models of GM heavy
duty trucks. (See, Memorandum and Order denying plaintiff's
motion for preliminary injunction, Hon. John T. Elfvin, filed
with the Clerk of the Court January 5, 1988.) From 1982 to
1986, the plaintiff supplied 251 Brigadier trucks to Ryder.
(Schule ¶ 11). Sales of Brigadier trucks to Ryder constituted a
significant portion of plaintiff's Class 8 heavy truck sales.
(Schule, ¶¶ 7, 11).
Competitive Equalization ("CE") is a discount from invoice
prices on the sale of heavy trucks such as the Brigadier.*fn4
discount is realized by the end user or ultimate purchaser of
the truck, such as Ryder. CE was designed to make GM heavy
trucks, such as the Brigadier, price competitive with other
makes of heavy trucks. (Bradford, ¶ 2).
Prior to 1987, GM did not make CE available for Brigadier
truck sales to car hauler companies such as Ryder. (Kane, Exh.
A; Bradford ¶ 4; Rossow ¶ 4). In May 1987, GM began offering CE
on Brigadier trucks ultimately supplied to Ryder. (Bradford, ¶
5). Schule's three competitor dealers, Wink, Byers and General,
supplied Brigadier trucks to Ryder in 1987. (Schule, ¶ 19;
Rossow ¶ 2). During 1987 plaintiff supplied no Brigadier trucks
to Ryder. (Schule ¶ 15; Rossow, ¶ 2).
On December 31, 1987, GM terminated the Addendum. (Schule,
A. GM's Motion To Strike Certain Affidavits
Initially, GM moves to strike the affidavits of Nelson Schule
and F. James Kane, Esq. arguing that these affidavits fail to
comply with Fed.R.Civ.P. 56(e) because, according to GM, they
are not based on personal knowledge. Briefly, this Court views
the Kane affidavit only as a "road map" with respect to the
documentary evidence attached to it and therefore finds no
personal knowledge deficiency. Moreover, as the Chief Executive
Officer of the plaintiff, Schule has personal knowledge of the
plaintiff's operations. For purposes of these motions, this
Court need not and does not rely on Schule's testimony
regarding the details of Ryder's relationship with the
plaintiff beyond the fact of whether any sales were made by the
plaintiff to Ryder at all.
Therefore, this Court denies GM's motion to strike.
B. Plaintiff's Prima Facie Robinson-Patman Act Case
Per Count One of the Complaint, the plaintiff contends that
where GM and VGM provided financial assistance to plaintiff's
three competitor dealers via the CE discount system but denied
plaintiff the same discount, a violation of Robinson-Patman has
occurred. (Complaint, ¶ 28; Plaintiff Memo., p. 7).*fn5
To establish its claim under § 13, the plaintiff must meet
certain threshold elements which constitute its prima facie
case. One of these elements is that the alleged price
discrimination occur between two purchasers. This element stems
directly from the statutory language which provides that, in
relevant part, "[i]t shall be unlawful for any person engaged
in commerce, in the course of such commerce . . . to
discriminate in price between different purchasers of
commodities of like grade and quality. . . ." 15 U.S.C. § 13(a).
(Emphasis added). See Terry's Floor Fashions, Inc. v.
Burlington Industries, Inc., 763 F.2d 604, 615 (4th Cir. 1985)
(where plaintiff failed to show or allege two comparable,
completed sales, plaintiff did not establish Robinson-Patman
Act claim pursuant to
15 U.S.C. § 13(a)); See also Bruce's Juices v. American Can Co.,
330 U.S. 743, 755, 67 S.Ct. 1015, 1021, 91 L.Ed. 1219 (1947)
(". . . no single sale can violate the Robinson-Patman Act. At
least two transactions must take place in order to constitute a
In this case, as the undisputed facts demonstrate, although
plaintiff alleges that defendants violated the Robinson-Patman
Act in 1987, plaintiff admits that it purchased no Brigadier
trucks*fn6 from defendants during that year.
Indeed, as a primary basis in support of their cross-motions,
the defendants argue that this Court must dismiss plaintiff's
Robinson-Patman Act claim because plaintiff cannot demonstrate
that it was a purchaser of Brigadier trucks during the relevant
time period, 1987. Defendants contend that to establish a right
to recovery under the Robinson-Patman Act, plaintiff must
demonstrate two contemporaneous sales of like commodities to
different purchasers at different prices during 1987 where the
plaintiff was at least one of the purchasers. Essentially,
then, although defendants concede that plaintiff's three
competitors purchased Brigadier trucks in 1987, they argue that
because plaintiff purchased no Brigadier trucks in 1987, that
it lacks standing to sue under the Robinson-Patman Act. (GM
Memo., p. 16-18; VGM Memo., p. 6).
Plaintiff responds to the defendants' position with two basic
arguments. First, plaintiff argues that there were 250 sales
during 1987 to plaintiff's three competitor dealers which more
than satisfies the "two purchaser" requirement of 15 U.S.C. § 13(a).
Second, plaintiff argues that the two purchaser
requirement only applies to cases where a ". . . direct
purchase violation of the Robinson-Patman Act is alleged . . ."
and that, in this case, plaintiff has not alleged a ". . .
direct purchase . . ." case but instead a discriminatory
discount case where plaintiff was purposefully ". . . deprived
of sales. . . ." (Plaintiff Letter Brief, p. 3).
Having considered these arguments, this Court holds that the
plaintiff has failed to establish a prima facie Robinson-Patman
claim because plaintiff cannot show that it purchased any
Brigadier trucks from the defendants in 1987, the time period
of the alleged Robinson-Patman Act violation. In so holding,
this Court rejects plaintiff's claims that it can establish a
Robinson-Patman Act claim through the purchaser status of
plaintiff's competitor dealers and that a "discriminatory
discount theory," as opposed to a "direct purchase violation,"
remains exempt from the purchaser requirement of the statute.
The problem here is that plaintiff has failed to show that it
has been discriminated against in its capacity as a purchaser
of commodities from the defendants. Plaintiff instead relies on
the purchaser status of its competitors to establish its own
prima facie case for discrimination. However, § 13(a) only
contemplates price discrimination". . . between different
purchasers . . ." (emphasis added). Since plaintiff admits, and
the evidence remains uncontradicted, that it was not a
purchaser during the time of the alleged discrimination,
plaintiff cannot show discrimination between two purchasers.
See Klein v. Lionel Corporation, 237 F.2d 13, 15 (3d Cir.
1956); United Banana Company v. United Fruit Company,
245 F. Supp. 161, 168 (D.Conn. 1965), affirmed, 362 F.2d 849 (2d
Cir. 1966). Of course, the plaintiff also lacks standing to
raise any price discrimination leveled by the defendants
against plaintiff's competitors.
This Court similarly rejects plaintiff's argument that,
because it alleges that the defendants' manipulation of CE
prevented plaintiff's purchase of Brigadier trucks, plaintiff
need not show that it purchased any Brigadier trucks from
defendants during the relevant time period. Section 13,
by its own terms, only affords a remedy to price discrimination
between purchasers. That threshold requirement is simply not
met in this case. In fact, courts have rejected the claim that
the Robinson-Patman Act's purchaser requirement is inapplicable
where the plaintiff's failure to purchase the relevant
commodity allegedly stems from a defendant's discriminatory
conduct. See Chatham Brass Co., Inc. v. Honeywell Inc.,
512 F. Supp. 108, 113-14 (S.D.N.Y. 1981) (and citations therein).
Furthermore, the fact that plaintiff calls the defendants'
alleged Robinson-Patman Act violation one of discriminatory
discount rather than one of direct purchase does not change the
plain statutory requirement that price discrimination occur
between two purchasers. See Highspire, Inc. v. UFK America,
Inc., 469 F. Supp. 1009 (S.D.N.Y. 1979) (two purchaser
requirement applied in lawsuit involving alleged discriminatory
discount). The plaintiff has cited no authority for its
proposition that a "discriminatory discount" case is exempt
from the two purchaser requirement. Although the plaintiff has
cited several cases involving discriminatory discounts, in
virtually all of those cases the plaintiff was indisputably a
purchaser of commodities or the Federal Trade Commission had
initiated an enforcement action where the two purchaser
requirement was clearly met. Plaintiff also cites Hartley &
Parker, Inc. v. Florida Beverage Corporation, 307 F.2d 916 (5th
Cir. 1962), where the Fifth Circuit reversed the lower court's
dismissal of a Robinson-Patman Act cause of action for failure
to state a claim. In rejecting the claim that the two purchaser
requirement had not been met, the Court found that although a
distributor had stopped making purchases from a distiller on a
certain date, the distributor still had the commodities in
stock which it had purchased from the distiller and continued
to sell to end users at a price disadvantage due to the
distiller's alleged discriminatory discounts. Essentially,
then, the court found that, under those circumstances, where
the distributor continued to sell the commodities after it had
purchased them from the distiller, the distributor was still a
purchaser within § 13(a). Id., at 921. In this case, however,
plaintiff has not supplied stock on hand to Ryder after
purchasing it from the defendants so that this Court could view
plaintiff as a purchaser within § 13(a) under the reasoning of
Hartley & Parker.
Finally, in its Letter Brief, for the first time the
plaintiff argues that, by virtue of the fact that VGM initially
competed with the plaintiff as a heavy truck dealer to Ryder,
that VGM has induced a price discrimination in violation of
15 U.S.C. § 13(f). That section provides that:
It shall be unlawful for any person engaged in
commerce, in the course of such commerce,
knowingly to induce or receive a discrimination in
price which is prohibited by this section.
However, because this Court has already held, above, that no
price discrimination prohibited by § 13(a) occurred because the
plaintiff has failed to establish the two purchaser element of
its prima facie case, it similarly holds that plaintiff cannot
establish a § 13(f) violation against VGM. Great Atlantic &
Pacific Tea Co., Inc. v. F.T.C., 440 U.S. 69, 76, 99 S.Ct. 925,
931, 59 L.Ed.2d 153 (1979) (buyer liability under 15 U.S.C. § 13(f)
dependent on seller liability under 15 U.S.C. § 13(a)).
Therefore, because the plaintiff has failed to meet a
threshold element of its prima facie Robinson-Patman Act claim
this Court must, therefore, dismiss that claim. Plaintiff must
pursue its antitrust claims under its remaining causes of
For the reasons set forth above, this Court holds that no
genuine issue of material fact exists with respect to the
defendants' Robinson-Patman Act liability under Count One of
the Complaint and, therefore, grants the defendants'
cross-motions for partial summary judgment.
IT HEREBY IS ORDERED, that this Court DENIES the plaintiff's
motion for partial summary judgment as to the Robinson-Patman
Act claims contained in Count One of the Complaint pursuant to
Fed. R.Civ.P. 56.
FURTHER, that this Court GRANTS the cross-motions for partial
summary judgment of General Motors Corporation, Volvo GM Heavy
Truck Corporation, Taige Berggren, Kenneth Kaczmarek and
Richard Gurley, as to the Robinson-Patman Act claims contained
in Count One of the complaint also pursuant to Fed.R.Civ.P. 56
and therefore DISMISSES the Robinson-Patman Act portions of
Count One as to those defendants.