NW Wholesale Stationers v. Pac. Stationery, 472 U.S. 284 (1985)

Northwest Wholesale Stationers, Inc. v.

Pacific Stationery & Printing Co.
No. 83-1368

Argued February 19, 1985
Decided June 11, 1985
472 U.S. 284

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioner is a wholesale purchasing cooperative whose membership consists of office supply retailers in the Pacific Northwest States. Nonmember retailers can purchase supplies from petitioner at the same price as members, but since petitioner annually distributes its profits to members in the form of a percentage rebate, members effectively purchase supplies at a lower price than do nonmembers. Petitioner expelled respondent from membership without any explanation, notice, or hearing. Thereafter, respondent brought suit in Federal District Court, alleging that the expulsion without procedural protections was a group boycott that limited its ability to compete and should be considered per se violative of § 1 of the Sherman Act. On cross-motions for summary judgment, the District Court rejected application of the per se rule and held, instead, that rule of reason analysis should govern the case. Finding no anticompetitive effect on the basis of the record, the court granted summary judgment for petitioner. The Court of Appeals reversed, holding that, although § 4 of the Robinson-Patman Act expressly approves price discrimination occasioned by such an expulsion as the one in question, and thus provides a mandate for self-regulation, nevertheless, because petitioner had not provided any procedural safeguards, the expulsion of respondent was not shielded by § 4, and therefore constituted a per se group boycott in violation of § 1 of the Sherman Act.

Held: Petitioner’s expulsion of respondent does not fall within the category of activity that is conclusively presumed to be anticompetitive so as to mandate per se invalidation under § 1 of the Sherman Act as a group boycott or concerted refusal to deal. Pp. 289-298.

(a) Section 4 of the Robinson-Patman Act, which is no more than a narrow immunity from the price discrimination prohibitions of that Act, cannot properly be construed as an exemption from or repeal of any portion of the Sherman Act or as a broad mandate for industry self-regulation. Silver v. New York Stock Exchange, 373 U.S. 341, distinguished. In any event, the absence of procedural safeguards in this case can in no sense determine the antitrust analysis, since if the challenged expulsion amounted to a per se violation of § 1, no amount of procedural protection would save it, whereas, if the expulsion did not amount to a violation of § 1, no lack of procedural protections would convert it into a per se violation. Pp. 291-293.

(b) The act of expulsion from a wholesale cooperative does not necessarily imply anticompetitive animus so as to raise a probability of anticompetitive effect. Unless it is shown that the cooperative possesses market power or exclusive access to an element essential to effective competition, the conclusion that expulsion is virtually always likely to have an anticompetitive effect is not warranted. Absent such a showing with respect to a cooperative buying arrangement, courts should apply a rule of reason analysis. Here, respondent, focusing on the argument that the lack of procedural safeguards required per se liability, made no such showing. But because the Court of Appeals applied an erroneous per se analysis, it never evaluated the District Court’s rule of reason analysis rejecting respondent’s claim, and therefore a remand is appropriate to permit appellate review of that determination. Pp. 293-298.

715 F.2d 1393, reversed and remanded.

BRENNAN, J., delivered the opinion of the Court, in which all other Members joined except MARSHALL and POWELL, JJ., who took no part in the decision of the case.