In paragraph 6 of the complaint VW is described as a co-conspirator in violation of Section 1 of the Sherman Act and as a participant in the 'violation of Section 3 of the Clayton Act as hereinafter charged.' (Emphasis supplied.) Defendants object that there is no subsequent disclosure in the complaint charging VW with violating the Clayton Act. However, the words 'as hereinafter charged' appear to apply to the participation of VW in the alleged violations of both acts and are not necessarily confined to the Clayton Act. In any event the complaint sufficiently informs the defendants that VW is alleged to have violated the Clayton Act although it is not named as a defendant.
Part B of the motion is directed to subsections (c), (d), (e) and (f) of paragraph 17 of the complaint. In their brief the defendants state that these allegations
'are insufficient and that, either on the face of the complaint or in the context of indisputable facts set forth in the moving affidavit, the practices sought to be attacked thereby, if actually engaged in, would be entirely lawful.'
With regard to the propriety of relief on the motion at this time the defendants maintain that if the practices alleged are legal per se,
'* * * the issues presented on this branch of the motion could certainly be disposed of at this time. * * * '(and that) even if the legality of vertical assignments of territories and 'anti-bootlegging' would depend upon the reasonableness of these practices, a trial would not be required and the issues could be decided now, since the facts against which their reasonableness must be tested will not be in dispute. * * *'
In its brief and at oral argument, however, the Government maintained that the allegations in paragraph 17 are not susceptible of isolation,
because there is present in this case an allegation of price-fixing which activity the Government contends was enabled by the alleged agreements among the defendants and the co-conspirators.
This presents at least two fact questions viz., whether or not the business practices alleged in paragraphs 17(c), (d), (e) and (f) were designed to assist price maintenance and if so their utility in that connection.
It is in this regard that the matter at hand differs from Schwing Motor Co. v. Hudson Sales Corp., D.C.Md.1956, 138 F.Supp. 899, affirmed per curiam 4 Cir., 1956, 239 F.2d 176, and Packard Motor Car Co. v. Webster Motor Car Co., 1957, 100 U.S.App.D.C. 161, 243 F.2d 418. Those cases were concerned with exclusive dealerships and did not involve allegations of price-fixing, a practice long since denominated illegal per se. Thus the allegation of price-fixing in this case precludes a determination at this time of the legal efficacy of the activity alleged in paragraphs 17(c), (d), (e) and (f) in terms of the underlying reasons therefor as set forth at length by VOA in its able brief.
I cannot, therefore, agree with the defendants that 'the facts against which (the reasonableness of the alleged practices) must be tested will not be in dispute.'
Nor am I able to agree with the defendants' contention that if the alleged practices were to be found legal per se, the allegations of paragraphs 17(c), (d), (e) and (f) at least, could be disposed of at this time. It does not follow that practices legal per se when considered alone, are necessarily so whatever the context in which they are found. Accordingly, the determination of the legality of the allegations of subsections (c), (d), (e) and (f) of paragraph 17 must abide the presentation of evidence in the case.
The motion to dismiss subparagraphs (c), (d), (e) and (f) of paragraph 17 of the complaint pursuant to Rule 12 or for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is denied. Similarly the motion to dismiss 'The allegations in paragraph 6 of the complaint that Volks-wagenwerk G.m.b.H. participated in the alleged violation of Section 3 of the Clayton Act' is denied.
The defendants' motion to dismiss the allegations of paragraph 20 of the complaint as stated in Part A(4) of the motion is denied subject to the plaintiff's amendment thereof as heretofore described.
An alternative motion is made under the second paragraph of Rule 16, which is as follows:
'The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions.'
Based thereon the defendants seek '* * * a pre-trial order precluding the taking of testimony * * *' as set forth in Parts A and B of the motion heretofore recited. The application for such an order is the equivalent of the main motion under Rules 12(c) and 56. The reasoning advanced for denying that motion dictates the same disposition of the alternative motion. It is therefore denied. That is not to say that the provisions of Rule 16 may not be invoked for the purpose of limiting the issues for trial at a future pre-trial conference.
An order should be submitted in conformity herewith.