Opinion
No. 52, Docket 33055.
Argued September 30, 1969.
Decided October 20, 1969.
Arthur C. Fink, New York City (Fink, Weinberger Levin, Robert D. Stern, Norman Solovay, New York City, on the brief), for plaintiff-appellant.
Eugene Frederick Roth, New York City, for defendants The American News Co., Inc., Union News Co., Inc., and Henry Garfinkle.
Sidney A. Florea, New York City, for defendant Manhattan News Co., Inc.
Harry Amer, New York City (Michael P. Direnzo, New York City, on the brief), for defendant Pacific News Co., Inc.
Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.
Plaintiff Periodical Distributors, Inc. appeals from a judgment for defendants in this private antitrust suit after a lengthy non-jury trial before Henry N. Graven, J. in the United States District Court for the Southern District of New York. Appellant is a periodical wholesaler in New York. Appellee Garfinkle or his family control appellees The American News Company, Inc., Union News Company, Inc., and Manhattan News Company, Inc. At the time suit was commenced, American News was the parent of Union News, which owns a large number of retail newsstands in the metropolitan area. Manhattan News is a wholesaler of periodicals, as is the remaining appellee Pacific News Company, Inc.
Senior Judge of the Northern District of Iowa, sitting by designation.
Apparently since then, Union News has been merged into American News.
Appellant contends that defendants conspired to restrain competition in periodical distribution with the connivance of the Newspaper Mail Deliverers' Union and others, principally by use of access to the Union News retail outlets as a club to prevent competition, and that defendants have monopolized or attempted to monopolize the submarket of terminal newsstands in the metropolitan area. The district judge found that there was no conspiracy, as alleged, that the termination of plaintiff's franchise from Select Magazines, Inc. for Nassau and Suffolk Counties was due to that company's desire to get rid of the burden of subsidies to plaintiff, that plaintiff did not prove wrongful conduct of defendants in connection with distribution of periodicals by Union News at LaGuardia Airport, that plaintiff did not establish unlawful restraint, monopoly or attempted monopoly by defendants in connection with periodical distribution in the New York metropolitan area, and that plaintiff had not proved the existence of the alleged submarket of terminal newsstands. 290 F. Supp. 896, 909.
This action has been pending since 1960. Plaintiff had a full and fair opportunity to establish its case at trial. On the basis of the record before the trial judge, we do not see how his findings can properly be regarded as clearly erroneous. Although plaintiff argues that evidence was improperly excluded at trial, the judge clearly acted well within his discretion. In a motion to remand based upon "newly discovered material," plaintiff relies heavily on two newspaper articles published in July and early August, 1969 and makes further serious charges against defendants. Although these accusations may well merit investigation, they relate primarily to very recent events. The motion papers do not justify disturbing the findings of the court below as to occurrences of many years ago.
Judgment affirmed.