Opinion · Court of Appeals for the Tenth Circuit
Black Gold, Ltd., a Colorado Corporation, and Cross-Appellant v. Rockwool Industries, Inc., a Delaware Corporation, and Cross-Appellee
732 F.2d 779
- Type
- Opinion
- Court
- Court of Appeals for the Tenth Circuit
- Jurisdiction
- Federal
- Date
- 1984-04-18
- Topic
- antitrust
SEYMOUR, Circuit Judge. Rockwool has petitioned the panel for rehearing in Black Gold, Ltd. v. Rockwool Industries, Inc., 729 F.2d 676 (10th Cir. 1984), urging us to reconsider our determination that the record contains sufficient evidence of a tying combination or conspiracy to withstand a motion for directed verdict. Rockwool contends that the Supreme Court case of Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), decided after our opinion, compels a contrary result.
Citator
UpLaw has not yet analyzed Black Gold, Ltd., a Colorado Corporation, and Cross-Appellant v. Rockwool Industries, Inc., a Delaware Corporation, and Cross-Appellee. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 20 opinions
BLACK GOLD, LTD. v. ROCKWOOL INDUSTRIES, INC.,732 F.2d 779(10th Cir. 1984)
BLACK GOLD, LTD., A COLORADO CORPORATION, PLAINTIFF-APPELLEE AND
CROSS-APPELLANT, v. ROCKWOOL INDUSTRIES, INC., A DELAWARE CORPORATION,
DEFENDANT-APPELLANT AND CROSS-APPELLEE.
Nos. 80-2098, 80-2143, 82-1176 and 82-1177.
United States Court of Appeals, Tenth Circuit.
April 18, 1984.
Jeffrey L. Smith of Cohen, Brame Smith, Denver, Colo.; John G. Wigmore and Richard C. Neal of Lawler, Felix Hall, Los Angeles, Cal., for Rockwool Industries, Inc.
Before DOYLE, McKAY and SEYMOUR, Circuit Judges.
[2] InMonsantothe Court considered what evidence is sufficient to create a jury issue on whether a manufacturer and some of its distributors were parties to an agreement or conspiracy prohibited by the antitrust laws. UnderMonsanto,evidence must be produced reasonably tending "to prove that the manufacturer and others `had a conscious commitment to a common scheme designed to achieve an unlawful objective.'" ___ U.S. at ___,104 S.Ct. at 1471(quotingEdward J. Sweeney Sons v. Texaco,Inc.,637 F.2d 105,111(3d Cir. 1980)). Among other things, the Court noted that a threat to cut off a nonacquiescing distributor during a time when the product is in short supply is probative evidence of concerted action because it permits a jury to conclude that the manufacturer "sought this agreement at a time when it was able to use supply as a lever to force compliance."Id.at n. 10.
[3] In view of this specific example, we do not construeMonsantoas a retreat from those cases holding that a combination occurs between a seller and buyers "whose acquiescence in [the seller's] firmly enforced restraints was induced by `the communicated danger of termination.'"Perma Life Mufflers v. InternationalParts Corp.,392 U.S. 134,142,88 S.Ct. 1981,1986,20 L.Ed.2d 982(1968) (quotingUnited States v. Arnold, Schwinn Co.,388 U.S. 365,372,87 S.Ct. 1856,1862,18 L.Ed.2d 1249(1967)). In the case before us, the voluminous record contains evidence sufficient to create a jury issue on whether Rockwool used the high demand for blown wool in the PSC program as leverage to obtain acquiescence in an illegal tying arrangement, and whether Black Gold was terminated as "part of or pursuant to that agreement."Monsanto,___ U.S. at ___,104 S.Ct. at 1472.
[4] We have reviewed Rockwool's other arguments for rehearing and we are not persuaded by them.