Page:Calnetics Corp. v. Volkswagen of America, Inc. (532 F.2d 674).pdf/14

 Distributor, the evidence is far from conclusive. Christiansen and a Calnetics executive did in fact meet during the summer of 1968, and a reasonable inference, considering the signing of the actual agreement just a few months later, is that the commission agreement was hammered out during the summer.

Further, a genuine fact issue exists as to the date on which Distributor made its decision to order Calnetics’ units for the 1969 model year. If that decision was made prior to the consummation of the Christiansen agreement, a causal gap exists in defendants’ facts. However, a jury might infer that the commission agreement and Distributor’s decision to purchase Calnetics’ products ripened together. And, even if initial 1969 orders were made prior to the Christiansen agreement, a jury might find that Calnetics maintained its position in the volatile air-conditioner market to Subsidiary’s detriment because of the commission agreement.

Subsidiary’s units, like those of the competing brands, were not completely satisfactory to Distributor, and Distributor may have dropped Subsidiary for purely independent business reasons. However, it is for the jury in a plenary trial, not the judge in a summary proceeding, to determine Distributor’s motivation and the sequence of events leading up to Distributor’s decision. For this reason, the counterclaim should not have been dismissed in its entirety. However, another ground does exist which compels partial dismissal.

An issue that may be renewed upon trial was raised by the summary judgment order against VW and Subsidiary. The court held that defendants’ first counterclaim failed to state a claim for relief under §§ 1 and 2 of the Sherman Act. We agree. VW’s and Subsidiary’s claim of commercial bribery, standing alone, does not constitute a violation of the Sherman Act. Sterling Nelson & Sons, Inc. v. Rangen, Inc., 235 F.Supp. 393, 400 (D.Idaho 1964), aff’d on other grounds, 351 F.2d 851 (9th Cir. 1965), ''cert. denied'', 383 U.S. 936, 86 S.Ct. 1067, 15 L.Ed.2d 853 (1966); cf. United States v. Boston & Maine R.R., 380 U.S. 157, 162, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965); Norville v. Globe Oil & Refining Co., 303 F.2d 281, 282–83 (7th Cir. 1962). As the district court stated in Sterling Nelson:

"“The evidence here proves only bribery of an influential state employee which had a detrimental restraining effect upon interstate commerce. This is not the type of misconduct within the purview of the concepts of a combination in restraint of trade or monopoly as used in the Sherman Act * * *. [T]he Sherman Act must be interpreted in the light of well understood common law doctrines relating to monopolies and restraints of trade such as contracts for the restriction or suppression of competition in the market, agreements to fix prices, divide marketing territories, apportion customers, restrict production and the like. Nothing of that kind occurred here. This is a simple case of buying influence, sometimes called commercial bribery * *.” 235 F.Supp. at 400."

VW’s and SubsidiarySubsidiary’s [sic] reliance on the Ninth Circuit opinion in Sterling Nelson for the proposition that antitrust claims may be based on commercial bribery is misplaced. This court decided merely that, according to congressional intent, a claim under § 2(c) of the Clayton Act could be based on commercial bribery. 351 F.2d at 858. The district court holding in Sterling Nelson that Sherman Act claims may not be predicated on commercial bribery was never presented to the Ninth Circuit for review, plaintiffs