Page:Calnetics Corp. v. Volkswagen of America, Inc. (532 F.2d 674).pdf/23

 We suspect that Calnetics approaches the district court’s actual reason for denying Distributor’s motion to add the second counterclaim when it argues in its brief:

"“As the District Court pointed out to * * * [Distributor’s] counsel at the hearing on the motion for leave to amend, the proposed second count (Robinson-Patman claims) failed to state a claim for recoverable damages. In its antitrust claim, * * * [Distributor] did not assert the kind of injury which has been recognized and for which damages have been recovered in ‘commercial bribery’ cases under Section 2(c) of the Robinson-Patman Act. * * * [Distributor] did not claim that it had been overcharged and paid excessive prices for plaintiff’s products by reason of the alleged secret payments, as was the case in Fitch v. Kentucky-Tennessee Light & Power Co., 136 F.2d 12 (6th Cir. 1948) * * *. And * * * [Distributor] did not and, of course, could not claim that it was precluded by a competitor from the market (in this case, itself) because of commercial bribery, as was the case in Rangen, Inc. v. Sterling Nelson & Sons, Inc., 351 F.2d 851 (9th Cir. 1965) [cert. denied, 383 U.S. 936, 86 S.Ct. 1067, 15 L.Ed.2d 853 (1966)].”"

If this is in fact the reason why the district court refused to allow the amendment (and we think it is), we believe that both the court below and Calnetics have taken too narrow a reading of the Rangen and Fitch cases as to the relief available under § 2(c).

Both Fitch, 136 F.2d at 15, and Rangen, 351 F.2d at 856–58, have held that § 2(c)’s application is not limited to situations of price discrimination, but also encompasses commercial bribery. In Rangen this court held:

"“With regard to the legislative history, defendants cite excerpts which amply demonstrate that, in enacting section 2(c), the prime concern of Congress was to curtail price discriminations accomplished by pseudo-brokerage arrangements. The Supreme Court, in Federal Trade Comm’n v. Henry Broch & Co., 363 U.S. 166, 169, 88 S.Ct. 1158, 4 L.Ed.2d 1124, noted this principal legislative concern. But, in a footnote (page 169), the Court also expressed the view that the legislative history demonstrates a Congressional intent to proscribe other practices such as the bribing of a seller’s broker by the buyer * * * [footnote omitted].

“This view is further borne out by the statement in the House Report, quoted below, indicating that Congress was concerned with preserving the fiduciary relationship between a broker and his client * * * [footnote omitted].

“* * *

“* * * In our case the bribery not only undermined a fiduciary relationship which Congress sought to protect, but gave one seller a grossly unfair advantage over a competing seller. Where commercial bribery is associated with evils which a particular provision of the antitrust laws was designed to prevent, the fact that it was bribery rather than a more defensible arrangement ought not to preclude application of the statute.” 351 F.2d at 856–57."

The alleged violations in the instant case no less involve the undermining of fiduciary relationships than did those in Fitch or Rangen. We hold that, if distributor is able on remand to prove that counterdefendants indeed committed acts of commercial bribery in violation of § 2(c), then the defendants ought to be allowed any damages proximately caused by that violation.

The district court erred in denying Distributor’s motion to amend its answer to add the second counterclaim.

VI.&emsp;CONCLUSION.

The claims and counterclaims discussed above are remanded for further proceedings consistent with the views expressed herein.