Page:Calnetics Corp. v. Volkswagen of America, Inc. (532 F.2d 674).pdf/15

 there having failed to cross-appeal from the dismissal of their Sherman Act claims.

The district court also based its summary dismissal of VW’s counterclaims on the alternative ground that VW could not establish any damages flowing from the alleged Christiansen-Distributor commission agreement. That ruling is amply supported by the unequivocal testimony of VW’s president, J. Stuart Perkins, that VW’s expenses in distributing Subsidiary units would “eat up” any anticipated profit resulting from buying the units at one price and reselling them at a higher price. Because this testimony is undisputed and credible, and because VW has failed to point to any evidence tending to show that a genuine issue exists as to VW’s damages, we affirm the summary judgment as to VW’s counterclaims. However, a genuine issue of material fact remains as to the amount, if any, of Subsidiary’s damages.

The summary judgment in favor of Calnetics on each of VW’s counterclaims is affirmed for lack of proof of injury to VW. The summary judgment in favor of Calnetics on Subsidiary’s counterclaim based on the Sherman Act is affirmed, but the summary judgment in favor of Calnetics on Subsidiary’s other counterclaims is vacated and those claims are remanded for trial.

The district court granted summary judgment against Calnetics on its Sherman Act claims because Calnetics had entered into an illegal commission agreement with Christiansen which resulted in sales by Calnetics to Distributor in 1969. The court held that these sales were inadmissible for the purpose of proving damages. Without the use of the 1969 sales figures, Calnetics was unable to frame a damages study to show anticipated sales for 1970 and 1971.

The district court committed both a factual and a legal error in granting this partial summary judgment. As noted, a genuine issue of material fact exists as to the cause-and-effect relationship between the Christiansen commission agreement and Calnetics’ sales to Distributor during the 1969 model year. More important, the district court erred in ruling that because the 1969 sales resulted from an unlawful agreement they could not be admitted in evidence as a basis for calculating Calnetics’ damages. Admissibility is one thing: weight and probative value another. The evidence may be weakened as to its value, but it is not categorically inadmissible.

Defendants’ challenge to Calnetics’ reliance on the 1969 sales figures is in effect an in pari delicto or “unclean hands” defense, which is not a defense in an action for treble damages. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 140, 88 S.Ct. 1981, 1985, 20 L.Ed.2d 982, 990 (1968); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951).

The Perma Life rule is firmly based on public policy grounds. As the Supreme Court stated:

“* * * [T]he purposes of the anti-trust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public