REGULATION OF BUSINESS--ROBINSON-PATMAN ACT--DEFENSES OF IN PARI DELICTO AND CHANGED MARKET CONDITIONS

A group of businessmen in Santa Rosa, New Mexico, organized a boycott against all bread except that baked by plaintiff, the sole baker in Santa Rosa, to induce him not to move his bakery out of town; plaintiff agreed to this plan. Defendant, who sold in interstate commerce, thereupon halved his bread prices in Santa Rosa while maintaining them in other towns, in order to defeat the boycott and preserve the town as a market. Plaintiff brought an action for treble damages under section 2(a) of the Robinson-Patman Act for injuries suffered from this price discrimination. The federal district court gave judgment for defendant on the ground that plaintiff was in pari delicto, and was affirmed by the court of appeals.

On certiorari, the Supreme Court remanded to the court of appeals for reconsideration in the light of the Kiefer-Stewart case, which had recently held, on different facts, that a plaintiff's "equal fault" under the Sherman Act is not a defense. Held, defendant has no defenses; remanded for a new trial to ascertain whether there was the requisite lessening of competition. The Kiefer-Stewart case is controlling to deny the defense of in pari qelicto even where plaintiff's wrong induced defendant's violation. Furthermore, a boycott participated in by a plaintiff is not a "changed condition affecting the market" of the kind which may justify a price discrimination.

Moore v. Mead Service Co., (10th Cir. 1951) 190 F. (2d) 540.