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Ideal Dairy Farms, Inc. v. Farmland Dairy Farms

February 27, 1995

IDEAL DAIRY FARMS, INC., PLAINTIFF-RESPONDENT, CROSS-APPELLANT,
v.
FARMLAND DAIRY FARMS, INC., A CORPORATION, DEFENDANT-APPELLANT, CROSS-RESPONDENT, AND JACOB GOLDMAN; MARK GOLDMAN; LOTZ BENCHESTER FARMS, INC.; SUNNYBROOK FARMS, INC., A/K/A HOHNECKER DAIRY; V. PUZINO [AUREK DAIRY PRODUCTS]; DON'S DAIRY PRODUCTS A/K/A STAAL'S; AND XYZ, BEING INDIVIDUALS, CORPORATIONS AND PARTNERSHIPS, PRESENTLY UNKNOWN, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County.

Approved for Publication June 19, 1995

Before Judges King, Muir, Jr. and D'Annunzio. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

KING, P.J.A.D.

I

This case involves claims under both the New Jersey Antitrust Act, for a conspiracy in restraint of trade, and the common law, for tortious interference with prospective economic advantage, based on alleged predatory pricing. Plaintiff Ideal Dairy Farms, Inc. (Ideal), prevailed at trial and recovered seven-figure damages under both theories against defendant Farmland Dairy Farms, Inc. (Farmland). We conclude that the Law Division Judge erred as a matter of law, reverse and order judgment for Farmland.

The factual framework relevant to this appeal is essentially undisputed. Before 1985 Ideal was a dealer and distributor of Farmland dairy products. In March 1985 Ideal ended this relationship and became a dealer and distributor of Tuscan Dairy Farms, Inc.'s (Tuscan) dairy products. This parting was not friendly. In February 1986, eleven months later, Farmland and several of its distributors canvassed Ideal-Tuscan's customers and offered to sell them milk at prices substantially lower than Ideal's prices. Forty-eight Ideal accounts agreed to switch to Farmland. In order to recoup these accounts, Ideal was forced to lower its prices to meet Farmland's offers. Ultimately, Ideal retained forty-three of the forty-eight solicited customers, although at substantially lower prices. This spat of price competition, adverse to Ideal but of benefit to its customers, led to this law suit by Ideal for damages.

II

On March 3, 1986 Ideal filed this complaint in the Chancery Division against Farmland and its officers and principals, Jacob Goldman and Mark Goldman (collectively, Farmland); Lotz Benchester Farms, Inc.; Sunnybrook Farms, Inc., a/k/a Hohnecker Dairy; V. Puzino, Abrew Dairy Products; Don's Dairy Products a/k/a Staal's (collectively, the distributors); and unknown individuals, corporations, and partnerships. Ideal's claims included civil conspiracy, tortious interference with business advantage, commonlaw unfair competition, and violations of the Milk Control Act, N.J.S.A. 4:12A-1 to -58, and of the New Jersey Antitrust Act, N.J.S.A. 56:9-3, all stemming from Farmland's solicitation of the forty-eight Ideal customers in February 1986. Farmland allegedly offered these customers "below cost" prices for the purpose of damaging or eliminating Ideal as a competitor. Ideal demanded injunctive relief, compensatory and punitive damages, and attorneys fees.

Farmland denied liability and asserted a number of affirmative defenses including (1) the finding by Woodson Moffett, Director of the Division of Dairy Industries (DDI), that Farmland's pricing was not below cost, was a conclusive and final determination of a New Jersey administrative agency; (2) the Law and Chancery Divisions of the Superior Court were without subject matter jurisdiction to hear and decide matters within the exclusive realm of the DDI, and (3) in accordance with R. 2:2-3(a)(2), any appeal from the DDI's final determination must be taken to the Appellate Division. In July 1986 Farmland counterclaimed and filed a third-party complaint against Ideal, ten retail customers who allegedly repudiated contracts to purchase milk from Farmland and retained Ideal as their milk supplier, and Tuscan, Ideal's supplier of milk. The third-party action alleged a breach of contract by the retail customers and that Tuscan and Ideal tortiously interfered with Farmland's contractual relationship with those ten customers.

In April 1987 Farmland moved to dismiss Ideal's suit pursuant to R. 4:69-5 on the ground that Ideal had failed to exhaust its available administrative remedies or, in the alternative, sought an order in accordance with R. 2:2-3(a)(2) dismissing the action for failure of Ideal to appeal to the Appellate Division from the final administrative determination of the Director of the DDI rendered by letter of May 2, 1986. The motion was denied. Farmland sought leave for an interlocutory appeal to this court. By order of July 24, 1987 we granted the motion for the sole purpose of ordering the trial court to hold a hearing to decide whether any issues in the action were barred by the doctrine of collateral estoppel, and to make appropriate factual findings and Conclusions of law with respect to each issue which Farmland claimed was barred by estoppel.

On October 14, 1987 Ideal filed an amended complaint which alleged that DDI Director Moffett entered into a conspiracy with Farmland to deprive Ideal of its civil rights, in violation of 42 U.S.C.A. §§ 1983, 1985, and 1986. Moffett was not joined as a defendant. Ideal later filed a third amended complaint, alleging that Farmland violated the civil provisions of the New Jersey and federal RICO statutes (N.J.S.A. 2C:41-1 to 6.2; 18 U.S.C.A. §§ 1961 to 1968).

The Law Division Judge then held a plenary hearing on the collateral estoppel issue. The Judge found that the requirements for collateral estoppel had not been met and struck that defense. Farmland eventually and voluntarily dismissed its third-party complaint against Ideal's customers and against Tuscan. Codefendant Don's Dairy Products, a/k/a Staal's, filed a crossclaim against Farmland. The first count sought indemnification, based on Farmland's "primary" misconduct, while the second count sought contribution. This crossclaim was dismissed by consent of the parties prior to the start of trial. Codefendant Lotz Benchester Farms (Lotz) also filed a crossclaim against Farmland for indemnification or contribution. This crossclaim was dismissed with prejudice by consent of the parties at trial. In October 1990 codefendant Lotz and Ideal entered into an agreement in which Ideal agreed not to seek a judgment against Lotz.

Trial began on January 2 and ended on March 22, 1991. The trial Judge was scheduled to retire on February 1, 1991. However, by order dated January 16, 1991, and pursuant to N.J.S.A. 43:6A-13, the Supreme Court recalled him for temporary service without pay, for the specific purpose of completing the trial. On October 10, 1991 the Supreme Court again temporarily recalled the Judge for the purpose of writing the opinion and entering judgment.

On September 30, 1991 the Judge issued an opinion with his findings of fact and Conclusions of law. The Judge found that: 1) there was a campaign by Farmland and its codefendant distributors to attack Ideal in a predatory fashion; 2) Farmland offered to sell milk to Ideal customers below cost; 3) Farmland practiced "predatory pricing" and solicited Ideal's customers for the sole purpose of injuring Ideal and intimidating other distributors who were considering dropping Farmland as a supplier of milk; 4) the codefendant distributors conspired with Farmland against Ideal; 5) Moffett, the director of DDI, did not conspire with Farmland against Ideal; and 6) Farmland had a "hold" on its co-conspirator distributors due to the fact that these small distributors relied on Farmland for products and were indebted to Farmland through its generous credit policies.

The Judge concluded that Farmland was liable to Ideal under the New Jersey Antitrust Act and the common-law, for tortious interference with economic advantage. Ideal's claim for common-law unfair competition was held subsumed in these claims. With respect to the Antitrust Act, the Judge determined that there was a "per se" violation based upon the combined efforts of the defendants to damage Ideal. The Judge rejected Ideal's "racketeering" claims under New Jersey and federal RICO statutes and its civil conspiracy claim under 42 U.S.C.A. §§ 1983, 1985, and 1986.

With respect to damages, the Judge acknowledged that "the convoluted method devised to measure plaintiff's losses [was] most troubling." He also recognized the fact that Ideal lost some of the most important records pertaining to damages while the case was pending, and stated that he found this "astonishing" in light of the time, effort, and personal attention given to the case by Ideal's executives. Although the loss of documents created "difficulty in corroborating the damage claims," the Judge nonetheless awarded compensatory damages in the full amount requested by Ideal, $1,302,871.99. The damage award was assessed solely against Farmland. The Goldmans and the distributors were found not liable.

The Judge also awarded punitive damages in the amount of $1,500,000 finding that the actions of Farmland were malicious, and that it was necessary to deter similar conduct in the future. The punitive damages were also assessed solely against Farmland, not against the codefendants and distributors. The Judge reasoned that the distributors were not directly culpable but had participated because they were indebted to Farmland which was their only source of supply for milk.

On October 22, 1991 the Judge ruled that pursuant to N.J.S.A. 56:9-12, the antitrust judgment would be entered for treble damages plus attorneys fees. On November 1, 1991 he entered a partial judgment in favor of Ideal and against Farmland. On the common-law claim, the sum was $2,840,191.42, which consisted of $1,302,871.99 in compensatory damages, $37,319.43 in prejudgment interest, and $1,500,000 in punitive damages. On the antitrust violation, judgment was entered in the sum of $3,945,935.40, plus attorneys fees' and expenses to be fixed at a later date. This sum was $1,302,871.99 in compensatory damages which, by operation of N.J.S.A. 56:9-12, was automatically trebled to $3,908,615.97, plus $37,319.43 in prejudgment interest, on compensatory damages.

On February 14, 1992 Farmland moved to vacate the Judge's opinion and partial money judgment, arguing that he was constitutionally incompetent to exercise the authority of the Superior Court because he was engaged in the practice of law at the time he was recalled for temporary service by the Supreme Court. The motion was denied. We denied Farmland's request for leave to appeal on this issue on March 13, 1992. The Supreme Court then denied Farmland's request to certify the question.

On February 18, 1992 a newly-assigned Judge entered an order certifying the judgment as final for purposes of execution, pursuant to R. 4:42-2. On April 1, 1992, there being no outstanding issues, Farmland filed its notice of appeal with this court from the whole of the February 18, 1992 order certifying the judgment as final, and the whole of the November 1, 1991 partial money judgment, except paragraphs six, seven, and eight.

On June 12, 1992 Farmland and Ideal stipulated to $1,822,576 for attorneys fees and costs under the Antitrust Act, if Farmland's liability under the Act were upheld. An order reflecting this agreement was entered on June 26, 1992. On June 24, 1992 Ideal filed a notice of cross-appeal from the judgment "if interpreted not to allow collection of punitive damages in addition to treble damages." Farmland later filed an amended notice of appeal from the order regarding attorneys fees and costs.

III

The dairy products distribution industry is a low-margin, highly competitive business which includes major milk processors, smaller milk processors, dealers and distributors, and retail stores. At the wholesale level, raw milk is bought from farmers by the processors and bottled for sale. Processors sell their milk to retail outlets directly, and also to dealers and distributors who in turn re-sell the milk under their own label to retail stores. There are three general types of wholesale milk customers: supermarket chains, large independent supermarkets, and small retail grocery stores, known in the trade as "mom and pop" stores.

The dairy industry is heavily regulated by both federal and state agencies. The Federal Milk Marketing Board determines the price which processors of raw milk must pay to dairy farmers. These prices are set monthly based on the class and fat content of the milk. A class is a federally established price per hundredweight to be paid in a specific month to a farmer in a certain geographical area. On the State level, the DDI, as a Division of the New Jersey Department of Agriculture, oversees the licensing of dairy dealers and distributors, monitors compliance with reporting requirements, and ensures that milk is not sold below cost by either the wholesaler or the retailer.

DDI cost regulations which governed the New Jersey dairy industry in 1986 precluded the sale of milk below the "average total cost." See N.J.A.C. 2:52-6.2 (repealed 1990). DDI regulations now prohibit the sale of milk below the "average variable cost." See N.J.A.C. 2:52-7.1. Average total cost is calculated by allocating all costs of doing business to each unit of fluid milk product sold. The DDI also sets the "presumptive cost price" of milk (PCP), applicable only at the retail level. This is the price at or above which a retailer may sell milk to consumers without being challenged by the DDI for selling "below cost." Throughout 1986, the PCP was $1.79 per gallon of whole milk.

In order for a dealer, distributor, or retail outlet to change the source of its milk supply, a DDI-11 form, also known as a "change form," was filed with the DDI. A fourteen-day waiting period was mandated between the time the notice was filed and the time the new supplier could start serving the customer. The customer was required to pay in full all outstanding balances to the old supplier before the new supplier could begin service. The DDI-11 form required the new supplier to certify, by signature, that the supplier's prices were above its costs. A "rescind notice" could be sent by the customer in order to void the change notice. Both change and rescind notices were kept in a DDI log book compiled on a monthly basis. After reviewing a request to change a supplier, the DDI director would issue a "permission to serve" notice authorizing the switch. Permission was granted if the offer to serve was above the dealer's "cost of milk", as computed by DDI methodology, and the customer had paid its outstanding balance to the previous supplier.

Farmland was a major milk processor as well as a dealerdistributor for the New York-New Jersey metropolitan area. In February 1986, Jacob Goldman and his son, Mark Goldman, ran Farmland which sold to all three categories of retail customers under its own label, as well as to other dealers who in turn relabeled and re-sold the milk to their own retail customers. Ideal was owned and operated by Gilbert Levine and Mark Greenberg. Since 1980, Ideal has been a dealer-distributor of dairy and dairy-related products, selling primarily to mom and pop stores in the northern New Jersey area.

From 1980 to 1985, Ideal sold milk and dairy products supplied by Farmland. Ideal president Levine testified that he became dissatisfied with this arrangement. Ideal's volume of sales had steadily decreased from six million dollars in 1980 to four or five million dollars in 1985. Ideal's complaints included Farmland's mislabeling of its milk, poor milk quality, high wholesale prices, persistent mistakes in filling orders, and rodent infestation at Farmland's processing plant.

In addition, Farmland and Tuscan, one of Farmland's principal wholesaling and processing rivals, were involved in a "milk war" in early 1985. Farmland and Tuscan were actively soliciting each other's customers. The fight seems to have started when Farmland took the Grand Union supermarket chain from Tuscan. To make up for the loss in sales and volume, Tuscan solicited the accounts of Farmland and its dealers. Farmland responded in kind, resulting in the filing of hundreds of DDI-11 change notices over a period of several months. Ideal had received ten DDI-11 change notices in one week as a result of the Farmland-Tuscan war; Levine was afraid of losing even more Ideal business to Tuscan in the future if he remained a Farmland distributor.

Thus, effective March 15, 1985, Levine terminated Ideal's relationship with Farmland and became a dealer of Tuscan. When Levine and his partner informed Farmland president, Mark Goldman, he allegedly angrily stated: "You're making the biggest mistake of your life. You're not going to be in business when I'm done with you. You're going to those Nazis." At a later date, Goldman allegedly stated: "Every quart from you I'm going to get. You won't be in business when I'm done with you."

Shortly after Ideal gave Farmland notice that it was switching to Tuscan, Consolidated Dairies, another of Farmland's dealers, notified Farmland that it also was changing its source of milk supply to Tuscan. Consolidated Dairies and Ideal were two of Farmland's largest dealers.

In the summer of 1985, one of Ideal's larger retail accounts, Seavra Supermarket, switched to Farmland. Seavra did a weekly volume of $850. When Levine spoke with Jacob Goldman about the loss of this account Goldman allegedly stated: "That was just to teach you a lesson; I told you [you] shouldn't have gone; you shouldn't have left; that's just to teach you a lesson."

In February 1986, Ideal had a customer base of about 500 to 600 mom and pop accounts. Ideal's prices to those stores for a gallon of whole milk was in the $2.00 to $2.20 range. In that month, many of Ideal's accounts were solicited by Farmland. Levine received forty-eight DDI-11 change notices -- forty-five of them arriving within four days, and nineteen of them arriving on one day. Consolidated Dairies received about the same number of change notices from Farmland for this period, while Tuscan received one. Of the forty-eight Ideal accounts involved, Levine estimated that the weekly volume ranged from $40 per week to $900 a week. *fn1 Levine was surprised by the solicitation activity since he believed that major processors were not interested in serving the smaller mom and pop stores which comprised Ideal's customer base. However, DDI investigative reports showed that two of the accounts solicited by Farmland in February 1986 were visited at the specific request of the customer and that several other solicited accounts complained to DDI investigators that they were dissatisfied with Ideal's pricing and service.

Accounts marked with an asterisk denote those that Ideal was unable to keep through re-negotiation. In addition, Ideal also claimed damages for the Seavra Supermarket account which was lost to Farmland in 1985.

Moffett stayed the change notices pending an investigation of "this unusual activity in the marketplace." Levine met with DDI Director Moffett on March 4, 1986 to discuss the Farmland solicitations, which Levine believed were below Farmland's cost. On March 6, 1986 Moffett interviewed Farmland sales personnel and determined that the lowest offer made by any Farmland representative was $1.79 per gallon of whole milk, with up to "three free weeks" as an incentive. A DDI auditor updated Farmland's average total cost according to the agency's methodology. The auditor calculated Farmland's average total cost at $1.62 per gallon of whole milk delivered. Since the difference between the lowest offer and Farmland's cost was seventeen cents, Moffett concluded that Farmland's offers were not in violation of DDI cost regulations. He lifted the temporary stay and issued "permission to change" notices which officially released the solicited accounts or "stops" to Farmland. Moffett concluded that the cost differential was large enough to cover the lowest offer plus three free weeks. Subsequent to releasing the stops, Moffett reviewed reports from field investigators and verified that the lowest Farmland offer was the same as reported by the sales staff. Ideal did not appeal the DDI determination regarding Farmland's costs, or its decision to release the stops. Nor did Ideal seek a formal, adjudicative-type hearing before the Office of Administrative Law under the Administrative Procedure Act and the Administrative Rules of Practice, as permitted at the time. See N.J.A.C. 2:1-3.4(b).

At trial, Moffet acknowledged that he occasionally socialized with Jacob and Mark Goldman: he attended Mark Goldman's wedding, had dinner once at Jacob Goldman's home, and attended Jacob Goldman's thirty-fifth wedding anniversary celebration. Also, Jacob Goldman referred Moffett to a car dealer where Moffett purchased cars. At the time of the Ideal solicitations, Moffett was assisting Farmland in its attempt to enter the New York market. Specifically, Moffett had testified on Farmland's behalf at a licensing hearing held in New York and had written letters on Farmland's behalf. According to Levine, Jacob Goldman once told him that "Woody [Moffett] was in his hip pocket." Levine also testified that in 1984, when he was selling his late father's car, Goldman asked him to sell it to Moffet for less than the asking price in return for $4000-$5000 off Ideal's milk bill.

In response to this potential erosion of Ideal's customer base, Levine and his sales staff visited the solicited accounts and offered to meet Farmland's offers. Levine testified that if Ideal had not attempted to save these accounts, it would have gone out of business. The potential loss of customers "punched holes" in Ideal's existing route structure, and made each of its nine routes unprofitable. A "milk route" consists of a number of stops in a particular time period and geographic location served by a truck and driver. A number of factors determine whether a route can be profitable; i.e., the pricing of the milk along the route, geographic location, the number of stops, and the amount of time needed to traverse the route. The average route has about thirty stops.

Of the forty-eight change notices filed by Farmland on Ideal accounts, Ideal retained forty customers by renegotiating its whole milk prices. Ideal also continued to serve three other accounts which it claimed Farmland solicited but did not serve.

As a result of Farmland's solicitation campaign, Ideal claimed that its pricing structure and its relationship with customers was ruined. The customers were distrustful because they believed that they had been overcharged in the past by Ideal. Additionally, Levine was forced to expend enormous time and energy in retaining his customer base. Levine believed that Farmland never intended to service any of the solicited stores but instead had intended to "torch" Ideal's customers, i.e., offer inducements and pricing so low that it would be unprofitable for any competitor to serve that customer.

As an example, Jose Marmolejos, owner of Queen Supermarket, testified that a Farmland salesman offered him a price of $1.82 per gallon as opposed to the $2.12 per gallon he was paying to Ideal, and two free weeks of milk and refrigeration as an inducement. He accepted Farmland's offer and tried to get the same deal for stores owned by his cousins. However, the Farmland salesman was only interested in servicing stores which carried Ideal milk, stating "we want to hurt them."

Although Levine had received three DDI-11 change notices from Danny Noto, owner of co-defendant Hohnecker Dairy, Noto informed Levine that he had not personally solicited any of Ideal's accounts, and had not signed any DDI-11 change forms. These accounts were in Plainfield, and Noto operated primarily in Hudson and Bergen Counties. Noto told Levine that he did not know where plainfield was located, and furthermore knew nothing about the change notices filed in his name.

When Noto was deposed on May 28, 1986 (he was dead at the time of trial) he explained that he had given Frank Ferrante, a Farmland salesman, a general authorization to canvass for customers on behalf of Hohnecker Dairy. As a result of Farmland's February 1986 solicitation campaign, Farmland had given Noto two non-Ideal stops worth about $700 a week.

Farmland salesman Ferrante was deposed on May 28, 1986. He admitted that he signed DDI-11 change forms on behalf of Noto and other Farmland dealers. However, he did not believe this was improper since he was authorized to do this by the dealers. Ferrante also explained that if a stop was solicited for a particular dealer, and that dealer did not operate within the area of that stop, he would arrange to swap a more suitable Farmland stop in its place.

At trial, Ferrante stated that it was necessary to placate Farmland dealers who had lost customers to competing dairies by soliciting new business on their behalf. Regarding the February 1986 sales campaign, he explained that he signed the dealers' names to DDI-11 forms in order to keep track of which solicitations were made on behalf of which dealers. Ferrante stated that he did not intend to deceive anyone, and that Mark Goldman had not approved of his actions in signing dealers names when he discovered this.

In March 1989, after the commencement of this litigation, Levine moved Ideal documents to a public storage facility. These documents were destroyed by the facility when Levine failed to pay monthly storage fees. Levine stated that he did not read the rental agreement and was not aware that the storage facility did not send out monthly bills as reminders to its customers to pay rent. Although he did not recall either seeing or paying a bill from March to December 1989, Levine made no inquiry regarding the status of his storage contract. He was shocked when the storage facility told him in December that his documents had been destroyed in August 1989.

Levine did not retain a list of all of the documents which he stored off premises; however, they included invoices as well as accounts-receivable ledgers and delivery tickets (documenting the number of deliveries and items purchased by a customer each week), and computerized listings of accounts receivables. At the time of the trial, few records existed of payments by customers for the period 1986-1989, and no delivery tickets existed for that same period. Retailers for which Ideal claimed damage for the years 1986-1996 included stores which had ceased to do business as of the date of trial, stores which had not been Ideal customers in February 1986, and stores which were not Ideal customers at the time of trial.

On cross-examination Levine verified income statement balance sheets for various years, prepared for Ideal by its accounting firm. The documents showed a steady increase of Ideal's sales, net profit, and net worth. Levine acknowledged that since Ideal had become a dealer in 1980, its best year in terms of net income was 1986. In 1985, the year before Farmland's soliciations which sparked this law suit, Ideal's total sales were about $4,270,000. During 1986 Ideal's total sales rose to about $5,620,000. By 1989 Ideal's total sales rose to about $7,460,000. Its net worth also increased substantially from 1985 to 1989.

Robert Havemeyer testified on behalf of Ideal as an expert in cost-accounting, business planning, and marketing, as those specialties related to the dairy industry. He stated that Ideal's average price per gallon of whole milk in February 1986 to all its customers was $2.11.

In calculating Farmland's costs, Havemeyer utilized a concept called "economic cost." This sum was comprised of Farmland's average total cost plus a profit margin or return on investment. Havemeyer believed a return on investment was a cost of doing business, like any other traditional cost of doing business.

Havemeyer calculated Farmland's average total cost at $1.82 per gallon of whole milk, and its profit margin or economic cost at twenty to twenty-five cents per gallon. Based on these figures, Havemeyer opined that Farmland needed about $2.05 per gallon in order to obtain a profitable price for its milk. On this analysis, he believed that all of Farmland's offers to Ideal customers in February 1986 were below Farmland's costs.

The figure of $1.82 for average total cost was derived from a document that was part of the DDI's audit of Farmland for the year 1986. It reflected a breakdown of cost-per-gallon based on delivery by trailer versus delivery by straight truck. The cost for truck delivery was higher. The DDI document listed Farmland's costs as approximately $1.71 per gallon delivered by trailer, and approximately $1.84 delivered by truck. Havemeyer assumed all deliveries to small stores would be made by truck and relied on the higher figure when computing Farmland's cost. Havemeyer rejected the DDI average total cost figure of $1.62 for Farmland, which was based on an update of a pre-1986 audit. He said it did not take into consideration increased labor costs and operating costs, or the costs of improvements made by Farmland.

Havemeyer concluded that taking into account the prices offered and the large number of solicitations over a short period of time, one could infer predatory conduct and intent from an economic point of view on the part of all defendants. He also concluded that Farmland engaged in "simulated competition" when it solicited Ideal's customers, and was interested only in destroying or "torching" Ideal's stops. He based this belief on the lack of preparation by Farmland for its solicitation campaign; the lack of records documenting the offers; the solicitation of stops that would not fit into an existing Farmland route; the bunching of DDI-11 change notices for maximum effect; the refusal to serve some of the solicited stops; the failure to pay a follow-up visit to successfully solicited stops; and the failure to continue solicitation of mom and pop stores after February 1986.

With respect to the issue of damages, Havemeyer believed that a customer relationship in the dairy industry had an ascertainable value tied to the dairy's route structure. He calculated total damages through a two-part analysis. With respect to customers that Ideal retained at reduced prices, Havemeyer used a "lost income methodology that accounted for Ideal's drop in price to each solicited customer. With respect to customers that Ideal lost, Havemeyer calculated the average number of "cans" per delivery for each lost customer and assigned a value to the account based on its "can value." The number of quarts divided by forty determined the equivalent number of cans. He noted that can values were commonly used in the milk industry to value a route or a dairy, especially in the New York metropolitan area. Based on Levine's representation that Ideal kept its customers for an average of sixteen years, Havemeyer took these two damages figures and ...


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