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NOVA DESIGNS, INC. v. SCUBA RETAILERS ASS'N

No. 98-55358.

202 F.3d 1088 (2000)

NOVA DESIGNS, INC., dba Performance Diver, Plaintiff-Counter-Defendant-Appellant, v. SCUBA RETAILERS ASSOCIATION; Professional Association of Dive Instructors, Defendants, Electronic Instrumentation & Technology, Inc., Defendant-Counter-Claimant, EIT Manufacturing; Princeton Tectonics; Scuba Times; Beuchat USA, Inc.; Robert Holston; Harry Truitt; Sal Zammitti, Defendants, Performance, Inc., a North Carolina corporation, Counter-Defendant, and International PADI, Inc., Defendant-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed February 8, 2000.

Attorney(s) appearing for the Case

John C. Butters, Atlanta, Georgia, for the plaintiff-appellant.

David E. Outwater, Stradling, Yocca, Carlson & Rauth, Newport Beach, California, for the defendant-appellee.

Before: BRUNETTI and TASHIMA, Circuit Judges, and SCHWARZER, Senior District Judge.

SCHWARZER, Senior District Judge:

This case is about an agreement between a corporation, having retailers as both members and customers, and a magazine publisher. We must decide whether one of the terms of this agreement, a restriction against carrying mail order advertising, can be found to be a per se violation of the antitrust laws.

Plaintiff Nova Designs, Inc. (doing business as Performance) sells scuba equipment and related items at retail through mail...

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