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NATIONAL ASS'N OF COLLEGE BOOKSTORES, INC. v. CAMB

November 17, 1997

NATIONAL ASSOCIATION OF COLLEGE BOOKSTORES, INC., on behalf of itself and all its members, BOOKCRAFT, INC., d/b/a BEAVER BOOKSTORE, MICHIGAN COLLEGE BOOK COMPANY, INC., and SPARTAN SHOPS, INC., d/b/a SPARTAN BOOKSTORE, Plaintiffs, against CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC. and ADDISON WESLEY LONGMAN, INC., Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiffs filed a Complaint on July 23, 1997, alleging violations of 15 U.S.C. § 13 (the "Robinson-Patman Act" or "the Act"). Plaintiffs seek an order enjoining defendant publishing companies from continuing to sell books pursuant to certain allegedly unlawful discount policies. Defendants now move to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), asserting that plaintiff National Association of College Bookstores, Inc. ("NACS") lacks standing to bring the action and that the Complaint fails to state a claim upon which relief can be granted. For the reasons stated below, defendants' motion is denied.

 I. Factual Background

 For the purposes of this motion, the following allegations are assumed to be true. NACS is a non-profit trade organization whose membership consists of over 3,000 retail bookstores. Plaintiffs Bookcraft, Inc. (d/b/a Beaver Bookstore), Michigan College Book Company, Inc., and Spartan Shops, Inc. (d/b/a Spartan Bookstore) ("the individual plaintiffs") operate bookstores in Minnesota, Michigan and California, respectively. Like most NACS members, the individual plaintiffs serve primarily college students, staff and faculty. Complaint ("Cmplt.") at PP 5-9.

 Defendants Cambridge University Press ("Cambridge"), Oxford University Press ("Oxford"), and Addison Wesley Longman, Inc. ("Addison") are companies that publish, sell and distribute books to retail bookstores, including NACS members, throughout the United States. Cmplt. at PP 10-12, 16. At issue in this lawsuit are certain of the defendants' pricing policies. The result of these policies, according to the plaintiffs, is that they are charged more than their competitors for identical books in violation of the Robinson-Patman Act.

 Cambridge typically offers buyers volume discounts; i.e. the price it charges per book declines as the number of books ordered increases. In most situations, this discount ranges from 20 to 45%. However, when books are purchased for "classroom use," the discount is 20% regardless of the quantity purchased. Addison has adopted a plan under which it ordinarily offers discounts of 37% for professional, technical and reference books. However, when the same books are ordered for "classroom text adoption," the discount is reduced to 20%. Oxford offers what is effectively a "reverse" volume discount on certain books: The price it charges per book rises rather than falls as the number of books purchased increases. While the Oxford policy does not distinguish between books ordered for classroom use and those ordered for other purposes on its face, the plaintiffs contend that it achieves the same effect as the Cambridge and Addison policies: Because books are typically ordered in considerable volume when intended for classroom use, they cost more when used as textbooks than they do otherwise. Cmplt. at PP 19-23.

 The defendants also sell books to retailers that are rarely affected by the challenged discount policies, in that they are unaffiliated with any colleges or universities. Such retailers include national chains with thousands of stores like Crown Books, Waldenbooks, Borders, Barnes & Noble, and B. Dalton's, as well as internet-based companies such as Amazon.com. "Most" NACS members are alleged to be in competition with non-NACS retailers. Beaver Bookstore, for example, is in competition with a nearby Barnes & Noble, and Spartan Bookstore is in competition with Crown, Barnes & Noble, Borders, and Waldenbooks stores. Cmplt. at P 18, 24.

 II. Legal Standard for a Motion to Dismiss

 In deciding a 12(b)(6) motion to dismiss, the court must accept as true material facts alleged in the complaint and draw all reasonable inferences in the nonmovant's favor. See Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Such a motion cannot be granted simply because recovery appears remote or unlikely on the face of a complaint, because "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974)). Rather, dismissal can only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Bernheim, 79 F.3d at 321 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). "While this pleading standard is a liberal one, bald assertions and conclusions of law will not suffice." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

 III. Discussion

 A. Associational Standing

 The defendants first argue that NACS lacks standing to bring this action. "An association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Rent Stabilization Ass'n v. Dinkins, 5 F.3d 591, 596 (2d Cir. 1993) (quoting Hunt v. Washington State Advertising Comm'n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977)). The purpose of the associational standing doctrine is "to facilitate, in a fair and efficient manner, the collective adjudication of the common rights of an association's members," a goal which can be served by allowing a collective suit even in situations where a class action would be inappropriate. UAW v. Brock, 477 U.S. 274, 288, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986).

 The defendants concede that the first two elements of the Hunt test are satisfied. The third is not, they contend, for two independent reasons: First, because violations of the Robinson-Patman Act can only be proven by a showing of particularized facts, the claim NACS asserts requires the participation of each of its individual members. Second, NACS members are not unanimous in support of the organization's lawsuit and collective ...


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