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May 3, 1941


The opinion of the court was delivered by: WALKER

The complaint alleges that in 1908 The Shredded Wheat Company, a corporation, conceived through its officers, a plan or scheme to create a monopoly in the common article of commerce known as shredded wheat;that it pursued many and various acts designed to drive competition from the field by unfair practices, by the assertion of the right to a monopoly and by quasilegal proceedings, under which the said The Shredded Wheat Company asserted a claim to the sole right to manufacture and sell the product and to call it by its accepted name; that it used these proceedings as a vehicle for the distribution of "news" throughout the trade and to the customers of the plaintiff and others. The object of the dissemination of such "news" is claimed to have been to frighten prospective customers of the said company's competitors from the purchase of said commodities from such competitors under the thinly veiled threat of legal proceedings by way of contributory infringement or otherwise.

Further, the complaint pleads such acts as designed to create a monopoly in violation of the Sherman Anti-Trust Act, 15 U.S.C.A. § 1 et seq., and it pleads the giving and grainting of unlawful preference in violation of the Robinson-Patman Act, 15 U.S.C.A. §§ 13-13b, 21a, and also alleges the same acts as constituting unfair competition at common law, all of which acts were designed to establish such monopoly; that these acts conceived as a sustained plan by The Shredded Wheat Company were continued by the defendant, National Biscuit Company, when such defendant absorbed The Shredded Wheat Company in 1930; that the acts of the defendant after such absorption constituted continued ratification and consummation of said plan or scheme; that the defendant and its predecessor sought to drive from the market all competition in the production and sale of this article of public commerce when no legal right to such monopolistic privileges was in existence. It being contended that the assertion of such legal right was in bad faith and one of the methods by which a monopoly was created or attempted to be created.

 The defendant moves, *fn1" to strike from the complaint paragraph 10, *fn2" from paragraph 14 the matter commencing in line 24, with the words "and when", and continuing through the remainder of that paragraph, *fn3" and paragraph 23. *fn4" It is urged that they fail to state or support a claim upon which relief can be granted and are immaterial and impertinent. *fn5"

 The complaint alleges a cause of action based upon a conspiracy to restrain, monopolize and attempt to monopolize interstate and foreign commerce in shredded wheat. It is consequently necessary for the plaintiff to allege the existence of the conspiracy and the overt acts done pursuant thereto, showing the means by which the monopoly was effected or attempted.

 In paragraph 9 of the complaint, defendant is charged with violating the Sherman Anti-Trust Act in conspiring from 1930 to the present time with unknown persons to restrain and monopolize interstate and foreign trade in shredded wheat and by actually monopolizing and restraining that trade. It also avers that The Shredded Wheat Company similarly conspired with persons unknown from 1915 to 1930.

 Paragraph 10, alleges that, "in furtherance of said restraint of competition and of said monopoly", defendant's predecessor, The Shredded Wheat Company, in 1915 and 1916, by various unlawful methods, forced Ross Food Company, a New York Corporation from the business of manufacturing and selling shredded wheat in interstate commerce." The paragraph ends with the sentence: "The destruction of said Ross Food Company thereby left said The Shredded Wheat Company with a monopoly of the interstate business in shredded wheat."

 Read together the aforesaid paragraphs allege an unlawful act and a conspiracy under Sections 1 and 2 of the Sherman Act to conspire and to commit acts both intended and designed to create a monopoly in trade in this country and with foreign countries.

 The acts complained of in paragraph 10 are alleged to have been committed by The Shredded Wheat Company 14 years prior to its acquisition by the defendant. Even if committed, they did not, neither do they result in direct damage to the plaintiff. They are only relevant and pertinent if the theory of the plaintiff is correct. The theory is: National Biscuit Company is chargeable with the acts of The Shredded Wheat Company alleged in paragraph 9, 10, 11 and 12 of the complaint, because, in 1930, it combined and conspired with The Shredded Wheat Company and others to monopolize the interstate shredded wheat trade, and in pursuance thereof and in continuation of the scheme of The Shredded Wheat Company of which it had knowledge, it took over the capital stock and business of The Shredded Wheat Company and then continued in the acts of The Shredded Wheat Company to monopolize the business, that, it thereby became a party to such conspiracy and thereafter to the present time has continued to further the purpose of such conspiracy and to pursue the said unlawful acts and attempts and to maintain such monopoly.

 Let us not forget, the action is civil, the gravamen, damage to the plaintiff, not the existence of a comspiracy or the existence of a monopoly. In the absence of overt manifestations by which injury is inflicted upon the business or property of the one who sues, a conspiracy is not actionable. *fn6"

 The plaintiff must establish a violation of the Anti-Trust Act and damages to it proximately resulting from the acts of the defendant, which constitute a violation of the act. In an effort to establish the violation, it pleads acts of The Shredded Wheat Company against Ross Food Company to show intent and results effecting a conspiracy, which it says the defendant joined and continued not by acts against Ross Food Company, it is true, but, by other acts, all part of a common scheme. To repeat, the acts against Ross Food Company are not offered as relevant on the question of damage to plaintiff, but they are offered because of alleged relevancy on the question of whether or not there was a conspiracy. If there was, then to the inquiry whether or not the defendant joined therein and continued same by promoting the object for which it originated. If it did, it is liable for everything done during the period of its existence regardless of the exact time at which it became a member or the extent of its participation, *fn7" provided the plaintiff herein suffered damage proximately resulting from what the defendant did in violation of the act.

 The motion to strike paragraph 10 is denied.

 The portion of paragraph 14, which is questioned, pleads the defendant caused its Canadian subsidiary to prosecute two suits at law in Canada and Great Britain against the Canadian subsidiary of the plaintiff. The first; for an injunction to restrain Kellogg Company of Canada, Limited, from making and selling shredded wheat and though defeated by the Canadian courts was carried through to the last defeat before the Judicial Committee of the House of Lords in England. The second; an application to the Canadian Trademark Office in an attempt to acquire exclusive right to the words "shredded wheat" as a trademark. The plaintiff contends that this application necessitated intervention to protect the public right to the use of these words; and that; thereafter, the defendant caused its subsidiary to carry said cause to the Supreme Court of Canada. It is alleged the acts connected therewith and the institution of said suits were but steps in the concerted plan and scheme of the defendant to establish its monopoly in this public article of commerce, that the plan was conceived by the defendant through its officers here and carried out here by the acts of the defendant's officers within the United States by causing its Canadian subsidiary to pursue the same policy conceived and carried out by the defendant in this country.

 The acts complained of concern sales by Canadian corporations in Canada. They cannot be material except; as a further step in the alleged scheme and plot of the defendant to monopolize the market in the United States. The plaintiff argues; they are not specified as an item of damage but as one step in a connected whole. On this theory the motion addressed to part of paragraph 14 is denied.

 Paragraph 23 was struck from the complaint at the time of the argument. *fn8" ...

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