MANSFIELD, Circuit Judge:
In this action pursuant to § 4 of the Clayton Act, 15 U.S.C. § 15, defendant Eli Lilly and Company ("Lilly"), one of the nation's largest manufacturers and distributors of pharmaceutical products, appeals
Guided by the standard that the evidence must be viewed in the light most favorable to the prevailing party (see pp. 940-941, infra), we summarize the record proof. Since at least 1896, Lilly has sold its drug products only to authorized wholesalers, and currently sells to some 367 wholesalers throughout the country. As part of its wholesaler-only policy, Lilly has long had an announced corollary policy of selling only to wholesalers not affiliated with retail pharmacies. On October 23, 1973, Lilly reaffirmed its "non-affiliation policy" in a letter to all its wholesalers which stated that Lilly was continuing "some long-established policies," namely that it
Moore first became a Lilly wholesaler in 1971, as part of the settlement of an earlier antitrust suit filed by Moore against Lilly. That suit arose out of Lilly's refusal to sell to Moore when Moore first entered the wholesale business as an innovator in wholesale techniques, offering discounts to retailers and using the mails to expand its market nationally. Lilly based this earlier refusal to sell to Moore on the fact that Lilly had an adequate distribution system and that Moore was not a member of the National Wholesale Druggists Association ("NWDA"). Until 1966, however, Moore was able indirectly to obtain Lilly products by purchasing them from authorized Lilly wholesalers, some of whom had actively sought Moore's clientele. In 1966 these sources refused to continue supplying Moore. Moore then filed suit against Lilly, alleging that Lilly had obtained the identities of these suppliers and was responsible for the cut-off. That suit was settled by Lilly's agreeing to sell to Moore.
At the time of the 1971 agreement Moore was owned by Parkway Distributors, which also owned over 100 "Big L" stores. The latter are retail discount stores carrying, among other things, certain non-prescription Lilly products. Although Parkway was a signatory to the 1971 wholesale agreement between Lilly and Moore, and was named in Moore's annual reports submitted by request to Lilly, Parkway's ownership of the Big L stores was not known to Mr. Manning, the Lilly executive in charge of wholesale relations, until late 1973 or early 1974. When Lilly discovered Moore's affiliation with the Big L stores, it conducted an investigation and concluded that, since the latter were not retail pharmacies but retail stores selling health and beauty aids along with some non-prescription Lilly products, they did not violate the non-affiliation policy, which was expressly limited to affiliations with "retail pharmacies."
The article and the memorandum eventually reached Mr. Manning, who at that time had already received other reports concerning the Big L stores. According to Mr. Manning, while the article may have been important, the attached memorandum was "unimportant." In any event, as already indicated, Lilly took no action concerning the Big L stores, having concluded that they were not retail pharmacies and therefore did not violate the non-affiliation policy.
Some time after the 1971 agreement Parkway, Moore's parent company, acquired Northeast Medical Supplies, Inc. ("Northeast"), which filled specialized prescriptions for various health facilities. A Lilly memorandum addressed to Mr. Manning dated January 15, 1974, mentioned Parkway's ownership of Northeast. Mr. Manning testified that this brief reference made no impression on him at the time and that as a result Lilly never made a determination whether the Northeast affiliation violated Lilly's policy.
Some time in November, 1975, Lilly learned that in October Moore had acquired
In December, 1975, Mr. Manning called Mr. Rome of Moore to ascertain information about Moore's acquisition of Mall Drug Stores and to remind Moore of Lilly's nonaffiliation policy. Mr. Rome confirmed the acquisition, explaining that it was part of Moore's plan to expand its business. He stated that Moore had no intention of divesting itself of the Mall Drug Stores and that if Lilly had further questions it should contact Moore's lawyers. Lilly decided then to wait and see if Moore would divest itself of its retailer affiliation. When it became clear that Moore had no intention of divesting, Lilly notified Moore in April of 1976 that its then current contract, due to expire on June 30, 1976, would not be renewed because of Moore's continued affiliation with the Mall Drug Stores.
Moore then instituted the present suit, claiming that the non-affiliation policy was a mere pretext, masking an unlawful conspiracy between Lilly and certain of its wholesalers to restrict territories and control prices. Moore's complaint alleged that Lilly's termination of Moore violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976), § 3 of the Clayton Act, 15 U.S.C. § 14 (1976), and § 2 of Connecticut's Fairness in Franchising Act, Conn.Gen.Stat. Ann. § 42-133f (West Supp. 1980), and constituted a breach of the 1971 agreement between Moore and Lilly. Pursuant to Lilly's motions, Judge Lee P. Gagliardi dismissed all of Moore's claims except its claim under § 1 of the Sherman Act.
After a five-day jury trial in which six witnesses testified and 69 exhibits were introduced, the jury returned a special verdict in favor of Moore, finding that it had sustained $64,000 in damages. Lilly moved pursuant to Fed.R.Civ.P. 50(b) and 59 for judgment notwithstanding the verdict or for a new trial. Judge Sweet denied these motions. With respect to the alleged conspiracy, he found that the proof was entirely circumstantial and consisted of the inferences to be drawn from the "nail-in-the-box" memorandum, the Spectro meeting, and the history of Lilly's relationship with Moore. In addition, there was some evidence from which it might be inferred that the non-affiliation policy was a mere pretext or "sham" reason for Lilly's termination of Moore, namely, that Lilly had disregarded Moore's earlier affiliations with
In reviewing the proof of Lilly's alleged purpose to control prices, Judge Sweet found that there was evidence that Lilly, unlike the other major pharmaceutical companies, published a list of suggested retail prices, restricted its discount offerings to resales to retailers, and did not extend the discounts to sales by wholesalers to other wholesalers. The court concluded, however, that neither activity was illegal in itself, and that there was evidence that the majority of Lilly items were being sold by Lilly wholesalers below the suggested list prices. On the issue of territorial restrictions, the court referred to evidence that wholesalers have been denied Lilly contracts because there was adequate distribution in an area, and that a Lilly wholesaler — Rosow — had made clear its displeasure in Moore's enfranchisement. At the same time, however, the court noted that there was evidence that wholesalers were not restricted as to the area where they could sell, and that most sold within a 300-mile radius of their locations because of "natural limitations" in the services they could provide. While Moore contended that its nationwide marketing was one reason for its termination, the court noted that there was evidence that other Lilly wholesalers also sold nationwide.
Concerning the anticompetitive effect of Moore's termination, Moore officials testified that Moore charged the lowest prices in the country on the Lilly line, and that Moore's discounting caused other Lilly wholesalers to cut prices to meet the competition. However, there was testimony disputing the claim that Moore's prices were the lowest. The court did note that Manning admitted that if all Lilly wholesalers sold at or below the prices charged by Moore, there would be "some economic bruising taking place." Having thus reviewed the trial evidence, Judge Sweet concluded that the evidence of conspiracy was "very sketchy," that he would not have found Lilly guilty of an antitrust violation, but that the proof was "enough — albeit barely — to support the jury's verdict." Following a further evidentiary hearing, the district court granted Moore's request for an injunction, and ordered Lilly to continue doing business with Moore.
In considering Lilly's claim that the evidence was insufficient to support the jury verdict, we must determine, without weighing the credibility of the evidence but viewing it most favorably to the plaintiff, whether "there can be but one reasonable conclusion as to the proper judgment." 5A Moore's Federal Practice Par. 50.07 (2d ed. 1980); see also Beech Cinema v. Twentieth Century-Fox Film, 622 F.2d 1106, 1107-08 (2d Cir.1980). To do otherwise would be impermissibly to substitute our view of the evidence for that of the jury.
The court's role becomes especially crucial when, as here, the plaintiff's case is based solely on circumstantial evidence. Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 116 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981).
The central issue in this case is whether Moore was terminated pursuant to an illegal conspiracy between Lilly and one or more of its wholesalers to control resale prices and to restrict the territories in which Lilly products could be sold. (Compl. Par. 24-26, 35, 39). A unilateral refusal by Lilly to deal with a wholesaler, absent proof that it was pursuant to a conspiracy, does not violate § 1 of the Sherman Act. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919); Oreck Corp. v. Whirlpool Corp., 639 F.2d 75 (2d Cir.1980). Moore could prevail only if it proved that its termination stemmed from "a contract, combination or conspiracy" between Lilly and certain of its wholesalers. Oreck, supra, at 79.
Conspiracies, of course, are rarely evidenced by explicit agreements, but must almost always be proved by "inferences that may fairly be drawn from the behavior of the alleged conspirators." Michelman v. Clark-Schwebel Fiber Glass Corp., supra, 534 F.2d at 1043. At a minimum, however, "the circumstances [must be] such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement." American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946).
Although the evidence warranting an inference of concerted action will vary from case to case, courts have laid down fairly specific guidelines about what will be considered insufficient as a matter of law to warrant the inference of a conspiracy. Thus "[a] mere showing of close relations or frequent meetings between the alleged conspirators ... will not sustain a plaintiff's burden absent evidence which would permit the inference that these close ties led to an illegal agreement." Oreck, supra, 639 F.2d at 79. Nor does a manufacturer's mere receipt of complaints from its wholesalers or agents who compete with the plaintiff, or its consultation with such other competing wholesalers, standing alone, support a finding of conspiracy with them. Id. at 80; Borger v. Yamaha Int'l Corp., 625 F.2d 390, 395 (2d Cir. 1980); Modern Home Institute v. Hartford Accident & Indemnity Co., 513 F.2d 102 (2d Cir. 1975); Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981). Even where a termination follows the receipt of complaints from wholesalers or agents, there is no basis for inferring the existence of concerted action, absent some other evidence of a tacit understanding or agreement with them. Modern Home Institute v. Hartford, supra; Edward J. Sweeney & Sons v. Texaco, supra; A. G. Rogers Co. v. Merck & Co., 498 F.Supp. 5 (E.D.Tenn.1980). Finally, the mere fact that a business reason advanced by a defendant for its cut-off of a customer is undermined does not, by itself, justify the inference that the conduct was therefore the result of a conspiracy. Beech Cinema, supra, 622 F.2d at 1109; Lamb's Patio Theatre, Inc. v. Universal Film Exchanges, Inc., 582 F.2d 1068, 1070 & n.2 (7th Cir. 1978). Even if a manufacturer or supplier, acting independently, gave a false or inaccurate reason for its action, whether because of a desire to avoid controversy or some other consideration, this would not violate any legal obligation to the customer, absent proof of a conspiracy or breach of contract.
With these principles in mind we consider whether the evidence here could reasonably support an inference that Moore was cut off pursuant to a conspiracy between
Lilly's Non-Affiliation Policy
The record is clear that Lilly did have a non-affiliation policy. The October 23, 1973, letter reaffirming the policy, the subsequent questionnaire Lilly sent to all its wholesalers inquiring about their adherence to the policy, the numerous references in the record to various attempts by Lilly to enforce the policy against other wholesalers, and the undisputed fact that Lilly conducted an investigation of the Big L stores to determine whether there was a violation on Moore's part, all firmly establish that such a policy did in fact exist.
Moore, however, argues that the policy was not enforced stringently but on a highly selective basis, pointing to nine examples (out of some 367 Lilly wholesalers) where Moore claims the policy was not enforced. However, of these nine examples only five (Kiefer-Stewart Co., Kauffman-Lattimer Co., Jax Drugs, Neuman Wholesale Drug, and Rogers Wholesalers Inc.) involved arguable violations of the non-affiliation policy; of these, three wholesalers divested themselves of their retailer affiliations, one has been notified by Lilly that its franchise will be terminated, and another has been determined not to involve an ownership interest and is therefore not a violation.
Moore counters that there were often substantial delays between Lilly's discovery of a suspected violation and the eventual divestiture by the wholesaler of its retailer affiliation. Yet typically these delays occurred in cases where wholesalers had
In any event, viewing the nine examples in the light most favorable to Moore, the most that the jury could permissibly infer was that Lilly had some reason other than its non-affiliation policy for terminating Moore. Indeed, Moore so argues, stating that "Lilly's use of a false reason for termination ... provides the inference that Lilly had another reason that it was concealing." Moore's Brief, p. 6. But such a pretext would not itself establish a conspiracy. The fact that Lilly may have had other reasons to terminate Moore makes it neither more nor less probable that Lilly acted in concert with others rather than unilaterally. As the Seventh Circuit stated in Lamb's Patio Theatre, Inc. v. Universal Film Exchanges, Inc., 582 F.2d 1068, 1070 (7th Cir. 1978):
The "Nail-in-the Box" Memorandum
We likewise conclude that the memorandum written by Lilly salesman Katz and attached to the article forwarded by wholesaler Rosow containing information about Moore's Big L affiliation fails to support an inference of a conspiracy. Even if Rosow's decision to forward the article to Lilly was motivated by Rosow's desire to pressure Lilly to terminate Moore, this alone is insufficient to establish concerted action. As the Court stated in Modern Home Institute, supra, 513 F.2d at 112:
Moore claims that the existence of a conspiracy is evidenced by Lilly's "having [the Katz] memorandum prepared and by having it pass from level to level up the executive ladder." In the first place, this is an inaccurate characterization. The Katz memorandum was no more than a casual, handwritten note by one of over 1,200 Lilly salesmen who merely, in accordance with the salesman's normal procedure for handling wholesaler complaints, forwarded to his superior the trade publication article received from Rosow. The important item was the article, which contained financial data relevant to Lilly's then current investigation of the Big L stores, not the salesman's covering memorandum. In any event, Lilly's treatment of Rosow's complaint as a serious matter would not give rise to an inference of a conspiracy.
Moore argues that the Rosow complaint and the Katz memorandum take on heightened
Even if, as the trial court concluded — in our view inaccurately — the "note has some element of consensuality about it by virtue of its vivid language and its progress through the Lilly chain of command," it fails to support Moore's claim of conspiracy. While the note was written in May, 1974, Moore was not terminated until April, 1976. The 1974 Katz memorandum and the Rosow article related only to Moore's affiliation with the Big L stores. Moore, however, was later terminated because of a completely different affiliation, its acquisition of the Mall Drug Stores, a chain of retail pharmacies which Moore did not acquire until 18 months after the Katz memorandum was written. Some time in 1974, after receiving the Katz memorandum, Lilly had completed its investigation of the Big L stores and concluded that Moore's connection with them did not violate the non-affiliation policy because they were not "retail pharmacies." The Katz memorandum does not therefore support the existence of a conspiracy two years later to terminate Moore.
Moore attempts to explain the time lag by arguing that Lilly could not use the Big L affiliation as a viable excuse to terminate Moore in 1974 because Lilly had already known about it since 1971; therefore, the argument goes, "Lilly had to wait for a better excuse." Moore's Brief, p. 12. This theory is simply not supported by the evidence. Moore's factual premise is incorrect, as the record shows that Lilly became aware of the Big L stores only in late 1973 or early 1974. Moreover, if Lilly felt it could not viably terminate Moore because of its Big L affiliation since, according to Moore, it had been known to Lilly as early as 1971, there would have been no reason for Lilly in 1974 to conduct an investigation of the Big L stores, and no reason for Lilly to attach any significance to either the Rosow article or the Katz memorandum, which under Moore's theory merely contained information already known to Lilly for several years. Furthermore, if Lilly was so eager to "find an excuse" to terminate Moore, it could have used Moore's affiliation with Northeast, which Moore apparently acquired after becoming a Lilly wholesaler in 1971. Yet, not only did Lilly fail to conduct an investigation of Northeast, but Manning, Lilly's executive in charge of wholesaler relations, testified that he completely overlooked the Northeast affiliation as a possible violation of Lilly's policy.
The only reasonable inference concerning the Katz memorandum and the events surrounding it is that Lilly received Rosow's complaint, considered the complaint in the process of its then ongoing investigation of the Big L stores, and unilaterally determined that Moore's affiliation with the Big L stores was not a violation of Lilly's nonaffiliation policy. The evidence cannot reasonably support an inference of a conspiracy and, in any event, there is no connection between the events in 1974 and Lilly's termination of Moore two years later.
The Spectro Meeting
The evidence concerning the Spectro meeting at most establishes that Lilly received a complaint from another of its wholesalers about Moore's violation of the non-affiliation policy, which does not justify
The evidence is clear that Spectro routinely met with its suppliers at the annual NWDA meetings in order to conduct general business discussions, and that the meeting with the Lilly executives was one such meeting. While there was some inconsistency among the three witnesses' 1979 testimony concerning the particular details of the circumstances of a 1975 meeting, which is understandable, the evidence does not support Moore's claim that the meeting was a "secret, private `summit'" requested by Spectro "in order to discuss Moore." Moore's Brief, pp. 14, 20. In Modern Home Institute, supra, we stated that even evidence of "pressure" by complaint competitors cannot support an inference of a conspiracy. See also A.G. Rogers Co. v. Merck & Co., 498 F.Supp. 5, 7 (E.D.Tenn.1980). Where, as here, the evidence fails to reveal anything other than the receipt of a complaint by Spectro, it would be impermissible to allow the jury to speculate about the existence of a conspiracy.
Allegation of Scheme to Impose Territorial and Price Maintenance Controls
Moore argues that, even where a decision to terminate is unilaterally made, it may nevertheless constitute an antitrust violation if it was made as part of an overall scheme to maintain territorial and resale price controls, relying on Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); Simpson v. Union Oil of California, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); United States v. Parke Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); Jacobson & Co., Inc. v. Armstrong Cork Co., 416 F.Supp. 564 (S.D.N.Y.1976), aff'd, 548 F.2d 438 (2d Cir. 1977) (granting preliminary injunction preventing termination). We have summarized the holdings of the Supreme Court cases in the following way:
The evidence here simply does not support the existence of an overall scheme to control prices and territories. Although Lilly published a set of suggested retail prices, the record is devoid of any proof that Lilly sought to enforce these prices through active coercion or any other means. On the contrary, the evidence reveals that the majority of Lilly items were being sold by Lilly wholesalers below the suggested retail prices, with no evidence of actual or threatened termination. In addition, Lilly does not restrict the territories where wholesalers may sell. Most Lilly wholesalers sell within a local area only because of natural limitations on the services they can provide. Some wholesalers, however, like Moore, sell their products nationwide. There is no evidence that either the "nail-in-the-box" memorandum or the Spectro meeting had anything to do with prices and territories; indeed, the evidence indicated that they only related to Moore's violation of the non-affiliation policy. Moore's contention must therefore be rejected.
We are fully aware of the principle that, although important items of circumstantial evidence considered separately may not justify
Since the evidence was insufficient to support a finding of conspiracy or unlawful combination we need not consider whether Lilly's action was motivated by anticompetitive reasons, since a unilateral decision to terminate, no matter what the reason, does not constitute a violation of the antitrust laws. Nor is it necessary to decide whether the district court erred in its instructions to the jury, in its grant of injunctive relief, or in its award of pre-judgment interest.
The judgment of the district court is reversed with directions, on remand, to enter a judgment dismissing the complaint. Costs are awarded to appellant.
Mr. Manning testified that the final sentence referring to Northeast did not register or make an impression with him at the time, because "there are wholesalers who do repackaging of bulk merchandise, which is not really a prescription-filling operation, which could be referred to as that." According to Manning, only after the commencement of the trial below did he become consciously aware of Parkway's earlier affiliation with Northeast.
Neuman Wholesale Drug, which owns a retail pharmacy (Automated Pharmaceuticals, formerly Northeast Medical Suppliers, Inc., when it was owned by Parkway), was notified during the course of the trial below that it would be terminated. With respect to Rogers Wholesalers, Inc., the alleged affiliation consisted of the fact that a corporation that held some convertible preferred stock in Rogers also owned a retail pharmacy. Mr. Manning testified that Lilly's non-affiliation policy applied to ownership interests, which would not arise until the preferred stock was converted to common stock.
In three other instances, there was no evidence that the wholesalers as such owned or operated any retail pharmacies; the evidence only established that certain individuals who were involved with the wholesalers in various capacities had some very attenuated connections with retail operations as private individuals, as follows: (1) Four individual shareholders of Drug Guild Distributors were officers of retail pharmacies; (2) the son of the owner of D.A. Rosow Co. owned retail pharmacies; and (3) some members of the family that owned Lee and Osgood had loaned money to a friend who used it to purchase retail pharmacies.
Although there was some evidence that Sisson Drug operated a retail pharmacy shortly after WW II, there was no evidence that Lilly knew about this and Mr. Manning specifically denied any such knowledge.
More generally, the record showed that in some or all of these instances, it was the wholesalers themselves who brought to Lilly's attention the possible violations and then willingly negotiated with Lilly with a view to make alternative arrangements that would avoid violating Lilly's policy.