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JUSSUP v. AMERICAN KENNEL CLUB

September 12, 1994

H. PRICE JESSUP, LINDA VAUGHN, SALLY A. KELLY, SUSAN OWENS, ANNETTE WATKINS and NANCY HOPE LOVE, Plaintiffs,
v.
THE AMERICAN KENNEL CLUB, INC., and THE LABRADOR RETRIEVER CLUB, INC., Defendants.



The opinion of the court was delivered by: ALLEN G. SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 This is an action brought by six individuals on behalf of themselves and all other similarly situated owners, breeders and sellers of American Kennel Club, Inc. ("AKC") registered, pure-bred Championship Stock Labrador Retrievers (collectively, "Plaintiffs") who allege to have been and continue to be adversely affected as a result of The Labrador Retriever Club, Inc.'s ("LRC's") recommendation and the AKC's adoption of a new breed standard for the Labrador Retriever, that went into effect on March 31, 1994 (the "Revised Standard"). The Revised Standard is alleged, among other things, to adversely affect owners, breeders and sellers of dogs and bitches that deviate from the standard's height requirement. Plaintiffs allege that AKC and LRC (collectively, the "Defendants") violated antitrust laws and that LRC violated its fiduciary duty and N.Y. Not-For-Profit Corp. Law ยง 717(a) (McKinney 1970 & Supp. 1994). Plaintiffs move pursuant to Rule 65 of the Federal Rules of Civil Procedure for preliminary injunctive relief enjoining Defendants from implementing and/or enforcing the Revised Standard pending resolution of this action.

 The Court has considered the substantial written submissions of the parties (including numerous affidavits and declarations) and the arguments of counsel at a hearing held on August 16, 1994 (the "Hearing"). For the reasons set forth below, Plaintiffs' request for preliminary injunctive relief is denied.

 FACTS

 A. The Parties

 Plaintiffs are owners, breeders and sellers of AKC registered, pure-bred Championship Stock Labrador Retrievers allegedly adversely affected by the Revised Standard. Plaintiffs allege that as a result of the adoption and implementation of the Revised Standard they "will be eliminated in whole or in part from the market for the breeding and sale of Championship Stock Labrador Retrievers, and/or the breeding and sale of Championship Stock Show Dogs, and they have suffered and will continue to suffer substantial diminution in value of their Championship Stock Labrador Retrievers." Complaint at P 10. Furthermore, Plaintiffs maintain that since numerous of their dogs and bitches no longer conform to AKC's standard, they can no longer effectively participate in AKC-sponsored dog shows or conformation events. Plaintiffs further maintain that the ability to conform to AKC's standards and to compete in conformation events is essential to the breeding and sale of Championship Stock Labrador Retrievers. Certain Plaintiffs, though not all, are members of the LRC. Plaintiffs bring this action individually and as class representatives; however, to date Plaintiffs have not moved for class certification. See Fed. R. Civ. P. 23.

 The LRC is a not-for-profit corporation organized under the laws of the State of New York. In its role as the Parent Club for the Labrador Retriever breed, it has, from time to time, adopted and submitted recommendations to the AKC relating to the Labrador Retriever breed standard. LRC's constitution provides that amendments to its breed standards must be approved by its members, and that such amendments only become effective after their approval by the Board of Directors of the AKC.

 B. The Revised Standard

 Plaintiffs allege that the term "'Championship Stock Labrador Retrievers' refers to those dogs that are registered with Defendant AKC and that, by reason of lineage, breeding program, physical and behavioral characteristics, and most importantly, conformance to the AKC standard of the breed, are titled under AKC rules and are able to compete and win in AKC-sanctioned conformation events held periodically at dog shows throughout the country". Plaintiffs further allege that, as a result of the foregoing, the demand for "Championship Stock Labrador Retrievers is sufficiently great to cause prices for such dogs to exceed, by several times, the prices for non-Championship Stock Labrador Retrievers".

 Plaintiffs describe two categories of Labrador Retrievers: Show Dogs and Field Trial Dogs. Show Dogs, according to Plaintiffs, are comprised of two types of dogs (a) "Original" Labrador Retrievers (those owned, bred and sold by Plaintiffs), bred from blood lines established in England, and (b) "American" Labrador Retrievers (those owned, bred and sold by Plaintiffs' competitors), a narrower and taller version of the Labrador Retriever developed more recently in the United States. Field Trial dogs, according to Plaintiffs, are bred primarily from American Labrador Retrievers. Plaintiffs allege that more "Original" dogs are subject to disqualification under the Revised Standard than "American" Labrador Retrievers.

 Plaintiffs allege that annual sales of Show Dogs is in excess of $ 8,000,000. According to Defendants, the Labrador Retriever is currently the most popular breed of dog in the United States.

 A height standard has been in place for Labrador Retrievers since 1945. The standard is, as it has been for almost five decades, that adult male Labrador Retriever dogs are to be 22.5 to 24.5 inches tall at the shoulder, and adult females are to be 21.5 to 23.5 inches tall. Plaintiffs do not dispute the previous existence of height standards but, argue that "the height statement in the standard previously in effect was never even 'recommended' or described as 'ideal' -- it was merely provided at the end of the standard without any comment on the desirability of any particular height." Plaintiffs' Reply Memorandum at 9 (citing Affidavit of Joan Redmond Read *fn1" dated June 22, 1994 ("Read Affidavit") at P 5). Moreover, Plaintiffs argue that the previous standards were not enforced. See Affidavit of David Walter Schnare, past President and current Director of the Labrador Retriever Club of the Potomac dated June 23, 1994 ("Schnare Affidavit") at P 7; Read ...


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