The opinion of the court was delivered by: LANE
This is an action for treble damages under Section Two of the Clayton Act, as amended by the Robinson-Patman Act.
Plaintiff, Shore Gas and Oil Company, Inc. (hereinafter 'Shore') alleges that defendant, Humble Oil & Refining Company (hereinafter 'Humble') violated the Clayton Act by making discriminatory sales of gasoline which caused injury to 'primary' or seller's line competition.
Both parties are in accord on the facts of this case except insofar as they pertain to the asserted affirmative defense of 'good faith meeting of competition.' They agree that this case is ripe for summary judgment if this court finds that defendant should prevail regardless of the outcome of the affirmative defense. We do so find. For purpose of the pending motion, the relevant facts are not at issue and a trial would be superfluous.
Shore is a distributor of Cities Service petroleum products in Monmouth and Ocean Counties, New Jersey. Humble is a distributor of Esso products in Monmouth and Ocean Counties as well as a producer, manufacturer and distributor of petroleum products in many other places, both within and without the State of New Jersey. All suppliers, including both Shore and Humble, have an established base or list price, called the 'posted consumer tank wagon price.' At the time the events which led to this action occurred, the posted consumer tank wagon price of regular-grade gasoline charged by all suppliers in the area, including both Shore and Humble, was $ .165 per gallon, exclusive of all taxes. All suppliers including Shore and Humble have, however, supplied or offered to supply various governmental or commercial customers in Monmouth County with gasoline at various prices below the prevailing consumer tank wagon price. For example, in bid business during 1961 under varying cost situations Shore bid as much as $ .04 below the posted consumer tank wagon price (sealed bid, municipal account, firm price), American as much as $ .041 below, Cities Service $ .0423, Sinclair $ .0417, and Humble $ .0527.
The Asbury Park Radio Cab Company (hereinafter 'Cab Co.'), consuming in its business about 50,000 gallons of regular-grade gasoline per year, was a customer of Shore prior to July 1961. On July 12, 1961, a contract was entered into between Cab Co. and Humble wherein Humble agreed to sell regular grade gasoline to Cab Co. at the posted consumer tank wagon price, less $ .036 per gallon or $ .129 while the 1961 consumer tank wagon price was in effect. During this period, Shore's lowest price to a commercial account was $ .137 per gallon. Because of Humble's lower price bid, Shore lost the Cab Co. account and the profit it would have thus otherwise enjoyed.
The Monmouth and Ocean County, New Jersey, gasoline market is highly competitive. Eleven different producers sell gasoline through no less than seventeen distributors in the area. It is common for a buyer to change his supplier affiliation because he can get better price, goods, service, et cetera, from another. Both parties gained and lost various accounts to and from competitors in 1961, at least in part because of price competition. Humble lost accounts to competitors even though charging as low as $ .0306 below (lost to Cities Service) and $ .0431 below (lost to Gulf).
Neither does Shore aver nor do the undisputed facts suggest that Humble's purpose in the transaction complained of was other than an attempt to gain additional profitable business. It is clear, furthermore, from the arguments put forth that Shore does not contend that a standard of higher prices by Humble was the factor enabling it to offer this low price to Cab Co.
There are five basic elements which must be established to maintain a cause of action under Section 2(a) of the Robinson-Patman Act:
1. That defendant has discriminated in price among purchasers of goods of like grade and quality
2. in interstate commerce
4. requisite competitive injury
5. and no affirmative defenses are available to the defendant.
Elements number two, four and five are contested. Assuming Shore prevails on all three issues, namely: (2) that the sales are in interstate commerce, (4) that there is the requisite injury to competition, and (5) that defendant's claimed affirmative defense of 'good faith meeting of competition' is without merit, Shore must still succeed on the issue of causation. Since the discrimination here was ...