author: ZOBEL, District Judge.

text:
    Jean MOFFAT, d/b/a Beacon Hill Interiors v. The LANE COMPANY, INC. and James Dunlap.
    Civ. A. No. 82-1667-Z.
    United States District Court, D. Massachusetts.
    June 13, 1984.

      John C. Wyman, Susan J. Baronoff, Roche, Carens & DeGiacomo, Boston, Mass., for plaintiff.
    John J. Curtin, Jr., Zachary R. Karol, William G. Southard, Bingham, Dana & Gould, Boston, Mass., for defendants.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

This antitrust action is brought by Jean Moffat, doing business as Beacon Hill Interiors, against the Lane Company, Inc. (“Lane”), and James Dunlap (“Dunlap”) the New England area sales representative for Lane’s Hickory Chair Company division (“Hickory”), manufacturers of eighteenth century furniture reproductions. Count I of the amended complaint alleges a conspiracy in violation of section 1 of the Sherman Act, 15 U.S.C. § 1 by Lane, Dunlap, and Boston area retail furniture dealers, competitors of plaintiff, in furtherance of which Lane (through Dunlap) refused to sell to plaintiff directly, and (through other employees of Hickory) enforced a policy prohibiting authorized dealers of its furniture from selling to unauthorized dealers such as plaintiff. Counts II and III raise pendent claims for violation of Mass.Gen. Laws ch. 93A, § 11, and intentional interference with advantageous relations. Lane and Dunlap have moved for summary judgment on all counts.

For purposes of this motion, the parties have agreed to the following relevant facts. Since 1979 Mrs. Moffat, in her business as Beacon Hill Interiors, has been principally engaged in the retail sale of home and office furniture. She sells mostly reproductions of eighteenth céntury furniture and has carried lines from several manufacturers besides Hickory. She operates her business from her family’s apartment on the fourth floor of 34V2 Beacon Street, Boston, Massachusetts, where she sees customers by appointment only. Most frequently she deals with customers (the majority of whom are not Massachusetts residents) by mail or telephone, however.

In 1980, Mrs. Moffat began advertising in Colonial Homes magazine, indicating that she sold lines, including Hickory, at discount. A Hickory sales representative showed Dunlap her advertisement in the September-October 1980 issue, which offered “consistent savings of twenty-five percent” on lines including Hickory. Dunlap called Jerry Hux (“Hux”), then a Hickory field sales manager, mentioned the advertisements, and asked Hux about the plaintiff. Hux had not heard of her.

In January 1981, Dunlap called plaintiff, asked for and received a copy of her promotional brochure. By early 1981 he had learned that plaintiff bought her Hickory furniture from Tickle Furniture Company in North Carolina. He told Hux this and inquired about the volume of Tickle’s purchases, which was small.

During the first half of 1981, at least five dealers separately called plaintiff’s advertisements or literature to Dunlap’s attention and asked about the plaintiff. However, no dealer reported losing a sale. In the spring of 1981, Dunlap called the plaintiff, asked for and was sent an invoice quoting a price on a particular Hickory sofa. He remembers asking about fabrics and being told he could go to any store to look at them. He then called Kaplan and another dealer and told them that plaintiff might be using their showrooms to their disadvantage.

Throughout 1981, Mrs. Moffat had requested that Hickory supply her with numerous copies of its furniture catalog. By the summer of 1981, plaintiff was informed in writing that she had received the maximum number of catalogs that Hickory would supply to a consumer and further requests for catalogs received from the plaintiff were refused. Hux was aware of the situation. During the summer of 1981, Hux spoke to the Hickory representative for North Carolina about the extent of Tickle’s purchases of Hickory furniture. In that summer, plaintiff stopped placing orders with Tickle and began buying Hickory furniture from Harvest House, a Hickory dealer in Denton, North Carolina.

In July 1981, a principal of the Golden Phoenix, a Hickory retail dealer in South Hadley, Massachusetts, called a Hickory customer service representative “to see how she [plaintiff] was selling furniture at such great discounts” of 40%. He asked about plaintiff’s source of supply and the terms upon which she received it. The customer service representative said she would look into the matter. She wrote a memo about the call, mentioning plaintiff’s discounting, which Hux saw. Hux replied that the plaintiff’s source was Tickle Furniture.

During July 1981, when Dunlap made a sales call on the Golden Phoenix, one of its principals showed him an invoice he had obtained from the plaintiff which indicated that no sales tax would be charged on the transaction. He told Dunlap that he had lost or might lose a big sale of non-Hickory furniture to plaintiff. Dunlap gave the invoice to the Sales and Use Tax Division of the Massachusetts Department of Revenue and told the Golden Phoenix he was working on the matter. He called Hux and told him of the situation.

In August 1981, David Kaplan (of Kaplan) showed Dunlap plaintiff’s literature, which he had obtained, as he was interested in plaintiff’s prices and operation. He asked Dunlap why he was selling to her, and discussed her prices. Dunlap told Kaplan he was not selling to her and expressed displeasure that she was buying Hickory furniture from Tickle. He told Kaplan about his investigation of plaintiff’s failure to charge sales tax.

Kaplan wrote or spoke to two other dealers and three other furniture representatives about plaintiff’s discounting. In September 1981, plaintiff’s husband visited Kaplan; Kaplan voiced his concern about plaintiff’s pricing. Afterward, Kaplan told Dunlap about Mr. Moffat’s visit.

In the fall of 1981, Stuart Swan (of Swan) discussed the plaintiff and her discounting with Dunlap. Dunlap told him plaintiff was buying from Tickle and about a transaction in which plaintiff did not charge sales tax. Swan had discussed plaintiff and her discounting with at least two representatives of other furniture manufacturers.

In about October 1981, plaintiff called Dunlap about buying Hickory furniture directly from Hickory. Dunlap refused and told her that she should go through Kaplan. Dunlap called Hux and told him that he had rejected plaintiff’s request to be sold Hickory directly.

In January 1982, Hickory adopted a Retail Furniture Store Marketing Policy (“the Policy”). It stated that Hickory’s policy was not to sell its products to retail dealers who sell Hickory furniture at unauthorized locations or to unauthorized dealers, and reserved the right to terminate business with a dealer who made such sales.

In February 1982, Harvest House received a copy of the Policy. That month or the next, the local Hickory sales representative told Harvest House to stop selling Hickory furniture to plaintiff, and it did so. Plaintiff began buying Hickory furniture from Country Furniture Co. of High Point, North Carolina, but from May on again had orders also filled by Harvest House.

In December 1982, after learning of these sales from discovery in this case, Hux sent letters to Harvest House and Country Furniture asking them to cease sales to plaintiff and stating that further sales to her would result in their termination as Hickory dealers. Both dealers sent letters to Hux stating that they would abide by the Policy and so informed plaintiff. By March 1988, however, Harvest House was again supplying plaintiff. When these sales were revealed in the discovery process in September 1983, the president of Hickory wrote to Harvest House stating that it would be terminated if it made further sales to plaintiff or her husband’s company.

Hickory has not required that each of its dealers assent to the policy and has no comprehensive program for enforcing it, although it sometimes responds to information it receives. As of May 1983, it had investigated six reported violations of its policy, aside from those involving plaintiff.

Section 1 of The Sherman Act prohibits every “contract, combination ..., or conspiracy, in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. Defendants’ motion for summary judgment is based primarily on the contention that the undisputed facts fail to establish any conspiracy between dealers and defendants.

Plaintiff asserts, however, that these facts establish a two-fold conspiracy. First, she alleges that Lane, in response to dealers’ complaints, refused to deal with Mrs. Moffat directly in order to protect the dealers from her price competition. Second, she asserts that, also in response to those dealers, Lane enforced the Policy so as to discourage Harvest House and Country Furniture from selling to her.

While summary judgment is to be used sparingly in antitrust litigation, Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), it may be appropriate, depending upon the circumstances of a particular case. White v. Hearst Corp., 669 F.2d 14, 17 (1st Cir.1982) (upholding grant of summary judgment for defendants on Sherman Act claim). The party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 18.

To establish a vertical price-fixing conspiracy, such as the one plaintiff asserts resulted in the refusal to deal, “there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 1473, 79 L.Ed.2d 775 (1984). In Monsanto, the Court adopted the view a majority of circuits had taken, holding that evidence of complaints followed by refusal to deal is not enough in itself to support the inference of such an agreement. The required additional showing can be made by evidence of a nexus between complaints and refusal to deal, or evidence of direct coercion. Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1263 (9th Cir.), cert. dismissed, — U.S. -, 104 S.Ct. 385, 78 L.Ed.2d 331 (1983).

Plaintiff contends that dealer complaints caused defendants’ refusal to sell to her. However, she has shown neither a significant number of complaints nor a resultant refusal to deal. Only one of the dealer communications to Dunlap or Lane can be clearly characterized as a complaint — the Golden Phoenix’s July 1981 conversation with Dunlap. (The complaint of a lost sale, however, related to furniture other than Hickory’s.) The parties agree that the initial communications from five dealers to Dunlap were “inquiries” about plaintiff. The later Golden Phoenix call to Hickory inquired “how plaintiff was selling at such a discount;” Kaplan and Swan’s 1981 communications with Dunlap are described by the parties as “discussions” of plaintiff and her discounting. Even assuming that plaintiff is correct, however, and that an inference can be drawn that these communications were complaints, plaintiff has failed to show a causal connection between them and defendants’ refusal to deal. She has adduced no evidence of any dealer threatening action against Lane if it dealt with plaintiff, or of Lane or Dunlap promising any dealer that it would not deal with plaintiff. See Contractor Utility Sales v. Certain-Teed Products Corp., 638 F.2d 1061, 1076 (7th Cir.1981). Moreover, defendants’ uncontradicted affidavits show that their reason for refusing to sell to plaintiff as a dealer was her lack of appropriate facilities as well as the already sufficient number of Hickory outlets in the Boston area. Even .viewed in the light most favorable to plaintiff, the evidence does not reasonably tend to prove a conscious commitment by defendants and dealers to a common scheme in connection with Dunlap’s refusal to sell to plaintiff.

Still less do the facts support plaintiff’s second contention, that dealer pressures caused Hickory to enforce the policy against resale to unauthorized dealers. There is no evidence that any Massachusetts dealer was even aware that Harvest House or Country Furniture was supplying plaintiff. The only dealer communications of which Hux was aware were the Golden Phoenix call to the Hickory Chair customer services representative and its complaint to Dunlap. In light of Monsanto, it is clear that Hux’s receipt of this one complaint (not directly related to sales by retailers to plaintiff) is insufficient to support the inference that his enforcement of the policy against those retailers was due to a conspiracy with the complainant. See Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853, 856 (1st Cir.1982).

Plaintiff contends, however, that concerted action may be inferred because the policy was aimed at discounting. She asserts that the policy has not been consistently enforced and that its exemption of interior decorators defeats its ostensible purpose of assuring that those selling Hickory furniture have adequate facilities. Even if plaintiff were correct, however, the fact that a business reason advanced for action against plaintiff is pretextual does not without more justify the inference that the conduct was the result of a conspiracy. Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853, 857 (1st Cir.1982). Plaintiff has adduced no evidence reasonably tending to show a conscious commitment by dealers and defendants to a common scheme designed to achieve an unlawful objective in connection with Dunlap’s refusal to deal with plaintiff or its enforcement of its resale policy. Defendants are therefore entitled to summary judgment on Count I of the complaint.

Turning to her claims under state law, plaintiff asserts that even in the absence of a conspiracy, defendants’ action constituted an unfair method of competition or unfair act or practice actionable under Mass.Gen.Laws ch. 93A. As defendant points out, however, mere refusal to sell, without more, is not unlawful under 93A. PMP Associates, Inc. v. Globe Newspaper Co., 366 Mass. 593, 596, 321 N.E.2d 915, 918 (1975). Nor is Lane’s enforcement of the Policy conduct that is within an “established concept of unfairness,” or is “immoral, unethical, oppressive, or unscrupulous,” or “causes substantial injury to consumers;” thus, it falls without the definition of that prohibited by 93A. Id. at 596, (quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n. 5, 92 S.Ct. 898, 905-06 n. 5, 31 L.Ed.2d 170 (1972)). Accordingly, defendants are entitled to summary judgment on Count II of the complaint.

As for plaintiff’s last claim, the parties agree that in order to constitute actionable interference with advantageous relations, defendant’s enforcement of the policy must have been intentional and without justification. Such action is justifiable if “(a) the actor has an economic interest in the matter with reference to which he wishes to influence the policy of the other and (b) the desired policy does not unlawfully restrain trade ... and (c) the means employed are not wrongful.” Restatement (Second) of Torts § 771 (1977). Defendants’ affidavit attests to their economic interest in the matter, and the policy did not unlawfully restrain trade. Lane’s enforcement of it by threatening to withdraw business from noncomplying retailers was not wrongful. Restatement (Second) of Torts § 768 comment (e); Cernuto, Inc. v. United Cabinet Corp., 448 F.Supp. 1332 (W.D. Pa.1978), rev’d on other grounds, 595 F.2d 164 (3d Cir.1979).

Accordingly, defendants’ motion for summary judgment is allowed on all counts of the amended complaint. Judgment may be entered for defendants.

      . Two of those dealers, Kaplan and Fox, Inc. (“Kaplan”) and Stuart Swan Furniture Company, Inc. ("Swan"), were originally named as defendants in this action, but are no longer parties.

      . Defendants have moved to strike the affidavit of John C. Wyman, submitted with plaintiffs opposition to the motion for summary judgment, on the ground that it attempts to introduce documents which would be inadmissible at trial, in violation of Fed.R.Civ.P. 56(e). Their objections to exhibits D, E, F and G are sustained on the grounds of hearsay with respect to D, E and G, and of relevance with respect to F. Given the extensive stipulation of facts entered by the parties for purposes of this summary judgment motion, the utility of the remaining documents is not readily apparent. Exhibits A, H and I are, however, sufficiently relevant to be admissible. Exhibit B is admissible only to show Mr. Swan’s attitude toward plaintiff. Exhibit C is admissible only as evidence that a suit was filed against Lane by Herndon House.

      . Until late summer or fall 1981, plaintiff failed to charge or remit a 5% sales tax on orders delivered in Massachusetts. Following an audit of her business by the Department of Revenue, in November 1981, she paid back sales taxes on prior in-state orders she had filled.

      . Dunlap has initial responsibility for approving new Hickory accounts in his territory. His decision not to approve a new account is almost always conclusive. His decision to approve a new account must be reviewed and affirmed by the Hickory sales and credit department.

      . Until January 1982, Hickory had no such policy. The Policy was adopted in conjunction with the settlement of litigation brought against Lane by Herndon House, a Virginia furniture dealer, alleging that Hickory had terminated it as a dealer because of complaints by other dealers about price competition and transshipping to a North Carolina and Georgia dealer. Under the settlement, Lane reinstated Herndon House as a Hickory dealer; Herndon House agreed to abide by the Policy.

      . The parties have stipulated that Dunlap is a sales representative of Hickory. A corporation cannot conspire with its own employees, Walker v. Providence Journal Co., 493 F.2d 82, 87 (1st Cir.1974); see abo Card v. National Life Insurance Co., 603 F.2d 828 (10th Cir.1979); H & B Equipment Company, Inc. v. International Harvester Co., 577 F.2d 239 (5th Cir.1978). While plaintiff has named Lane and Dunlap as separate conspirators in her complaint, she does not contend, in connection with the motion here, that Dunlap and Lane by themselves meet the plurality requirement of Section 1 of The Sherman Act.

      . See Filco v. Amana Refrigeration, Inc., 709 F.2d 1257 (9th Cir.), cert. dismissed, — U.S. -, 104 S.Ct. 385, 78 L.Ed.2d 331 (1983); Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853 (1st Cir.1982); Davis-Watkins Co. v. Service Merchandise, 686 F.2d 1190 (6th Cir.1982); H.L. Moore Drug Exchange v. Eli Lilly & Co., 662 F.2d 935 (2d Cir.1981), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982); Blankenship v. Herzfeld, 661 F.2d 840 (10th Cir. 1981); Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981); contra, Bostick Oil Co. v. Michelin Tire Corp., 702 F.2d 1207 (4th Cir.), cert. denied, — U.S.-, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983).

      . Plaintiff would support this inference by evidence of Kaplan's complaints about plaintiff to other dealers, and Swan's deposition testimony that he was concerned about plaintiffs discounting.

      . In that case, where a competitor had repeatedly complained to other competitors and its supplier about plaintiff, but denied ever requesting the supplier to take action against plaintiff, and the supplier never stated that action would be taken, the Seventh Circuit held that there was not enough evidence to submit to the jury on the question of conspiracy. Pressure by competitors is not in itself enough to support the inference of a conspiracy, H.L. Moore Drug Exchange v. Eli Lilly and Co., 662 F.2d 935, 945 (2d Cir.1981), nor is it enough that a supplier tell plaintiffs competitor in response to complaints that it is investigating plaintiff. Id.

      . Plaintiff’s argument that Lane’s enforcement of its resale policy was a continuation of such an earlier conspiracy therefore fails.

      . Her argument at best is weak. She stresses the fact that Lane has no comprehensive enforcement program and had, as of May 1983, investigated only six reported violations of the policy other than those involving sales to plaintiff. Hux, however, has testified in an affidavit that every reported violation of the policy has been investigated and to his knowledge none is continuing. Plaintiff has produced no evidence contradicting Hux's testimony. The First Circuit has stated that a supplier is required merely to use means "reasonably suited” to its purpose in enforcing such resale restrictions. Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853, 860 (1st Cir.1982).


source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    Wladyslaw GLADYSZ, Plaintiff, v. Raymond J. DONOVAN, Secretary of Labor, and United States Department of Labor, Employment and Training Administration, Defendants.
    No. 83 C 4957.
    United States District Court, N.D. Illinois, E.D.
    June 18, 1984.

      Richard J. Puchalski, Doss, Puchalski, Keenan & Bargiel, Ltd., Chicago, 111., for plaintiff.
    Eileen Marutzky, Asst. U.S. Atty., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Wladyslaw Gladysz (“Gladysz”) sued Raymond J. Donovan (“the Secretary”) and the United States Department of Labor, Employment and Training Administration seeking declaratory and injunctive relief from denial of labor certification pursuant to 8 U.S.C. § 1182(a)(14). Presently before the Court are the parties’ cross-motions for summary judgment. In the alternative, the Secretary has filed a motion to dismiss. For reasons set forth below, Gladysz’s motion for summary judgment is denied. The Secretary’s motion to dismiss is denied, but his motion for summary judgment is granted.

Summary judgment is appropriate where there are no genuine issues of material fact relevant to judgment in movant’s favor. Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir.1979). The nonmovant is entitled to the benefit of any reasonable inferences which may be made from facts in the materials submitted, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Factual disputes, moreover, do not preclude summary judgment unless they are outcome determinative. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). It is with these standards in mind that we consider the parties’ motions.

Noon Hour Food Products (“the employer”) filed an application for alien labor certification pursuant to 8 U.S.C. § 1182(a)(14) on behalf of Gladysz. The employer sought certification for a machine rebuilder. The Department of Laobr issued a Notice of Findings proposing to deny certification, based upon the employer’s failure to post a notice of the job opportunity which directed prospective job applicants to the employer itself, as required by 20 C.F.R. § 656.21(b)(3)(i). The Department of Labor added that the employer failed to clearly document its reasons for rejecting the applications of United States workers.

In response, the employer submitted documents attempting to rebut the Notice of Findings. These included a revised job notice, and applications of prospective employees who appeared at the employer’s premises. The Department of Labor issued a second Notice of Findings which proposed to deny certification because copies of applicants’ resumes submitted by the employer were not legible, and because two of the applicants rejected by the employer were in fact qualified for the position. The Department of Labor subsequently denied labor certification in a Final Action Notice, declaring that the employer failed both to respond meaningfully to the second Notice of Findings, and to submit clear and sufficient documentation that the United States workers who had applied for the job were rejected solely for job-related reasons.

The employer did not seek review of the Final Action Notice. According to regulations promulgated by the Secretary of Labor, review of the denial of labor certification may be sought by the employer or by the alien if the employer requests such review as well. 20 C.F.R. § 656.26(a). The Secretary therefore argues that Gladysz lacks standing to challenge denial of the labor certification. He adds that the case is moot, since no jobs for which Gladysz might be certified exists. Denial of certification, according to the Secretary, was neither arbitrary nor capricious.

Gladysz asserts that he has standing to seek judicial review of the labor certification denial, and that this matter is not moot. He claims the labor certification denial was arbitrary and capricious, and adds that the regulations which refuse administrative review of labor certification to aliens violate the due process clause of the Fifth Amendment and deny him equal protection of the laws.

Standing

Based upon the aforecited regulations, 20 C.F.R. § 656.26(a), the Secretary argues that the case must be dismissed or, alternatively, summary judgment be granted because Gladysz lacks standing to challenge the denial of the labor certification. The parties agree that the two-pronged test of standing, first set forth in Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 152-153, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970), controls this Court’s analysis. See also Stenographic Machines v. Regional Administrator, 577 F.2d 521, 528 (7th Cir.1978); Marshall v. Heimann, 652 F.2d 685, 691 (7th Cir.1981), cert. denied, 455 U.S. 981, 102 S.Ct. 1489, 71 L.Ed.2d 691 (1982) (both cases applying the two-pronged test). Data Processing requires first that the challenged agency action cause an “injury in fact, economic or otherwise.” 397 U.S. at 152, 90 S.Ct. at 829. Secondly, the interest the plaintiff seeks to protect must fall “arguably within the zone of interests to be protected or regulated by the statute ... in question.” Id. at 153, 90 S.Ct. at 830.

The Secretary does not contend that Gladysz fails to meet the first part of the test. Clearly, the denial of a labor certification worked an “injury in fact, economic or otherwise” on Gladysz. However, the Secretary contends that the plaintiff does not meet the second, or “zone of interests,” test. He claims that Congress designed § 1182(a)(14) to protect American workers from foreign competition while still allowing American employees to hire qualified employees. See Production Tool v. Employment and Training Admin., 688 F.2d 1161, 1168 (7th Cir.1982); Pesikoff v. Sec’y of Labor, 501 F.2d 757, 761-762 (D.C.Cir. 1974) (discussing legislative history), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974). The Secretary concludes that since the legislative history of § 1182(a)(14) focusses on the welfare of American workers and employers, aliens fall outside the “zone of interests” of the statute. We believe the Secretary’s analysis is contrary to the law of this Circuit, and that it reads the “zone of interests” test too narrowly.

The Seventh Circuit has applied the “zone of interests” test and rejected the Secretary’s identical argument, squarely holding that an alien has standing under § 10 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, to obtain judicial review of a denial of a labor certification under § 1182(a)(14). Stenographic Machines, Inc. v. Regional Administrator, 577 F.2d 521, 528 (7th Cir.1978). Other courts have also held that aliens arguably fall within the zone of interests regulated by § 1182(a)(14). See Reddy v. U.S. Dept. of Labor, 492 F.2d 538, 543-544 (5th Cir. 1974); Mukadam v. U.S. Dept. of Labor, 458 F.Supp. 164, 167 (S.D.N.Y.1978). The Secretary cites no contrary authority to support his standing argument, and our search has uncovered none. As the Secretary concedes, Stenographic Machines reads the “zone of interests” test expansively, and, indeed, the plain language of the test is broad, requiring only that the interest fall “arguably within the zone of interests ... regulated by the statute.” Data Processing, 397 U.S. at 153, 90 S.Ct. at 830 (emphasis added). Gladysz’s interest in. the machinist job does come within the “zone” of § 1182(a)(14), which explicitly “regulates” his chances to obtain that job.

Although Stenographic Machines seems to dispose of the standing issue, the Secretary tries to distinguish the case, contending that it was decided before the effective date of the regulation which denies “administrative-judicial review” to aliens unless “the employer also requests such a review.” 20 C.F.R. § 656.26(a)(2). At the outset we observe that, contrary to the Secretary’s assertion, this regulation was promulgated before Stenographic Machines was decided. See 42 Fed.Reg. 3448 (January 18, 1977). However, the Seventh Circuit did not address the potential conflict between its holding and the regulation. For the following reasons, we hold that Stenographic Machines still controls this case, and that Gladysz has standing under the APA, 5 U.S.C. § 702, to seek review of the adverse labor certification decision.

The Secretary contends that he had the power to override the statutory command of the APA (as construed in Stenographic Machines) that an alien has standing to challenge a labor certification denial. It is true that Congress has granted the Secretary plenary power to formulate the administrative procedures under which he will decide labor certification petitions. See Production Tool, supra, 688 F.2d at 1166-1167. But even if he has the power to deny or restrict an alien’s right to “administrative” review, the Secretary has gone one step further and tried to deny “administrative-judicial review” to an alien seeking review. 20 C.F.R. § 656.26(a) (1980) (emphasis added). The Department of Labor cannot unilaterally override the review provisions of the APA, a Congressional Act; only Congress can do so. It is elementary that “[t]he rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, ‘it is the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.’ ” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-214, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976), quoting Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 1305, 14 L.Ed.2d 223 (1965). The relevant statute in this case, 8 U.S.C. § 1182(a)(14), does not speak directly to judicial review, but neither does it foreclose review under the APA or expressly authorize the Secretary to do so. In light of Stenographic Machines’ holding that review is otherwise available under the APA, we must ask how Congress in the APA provided for judicial review to be precluded.

Access to judicial review under the APA can be denied where “statutes preclude judicial review,” 5 U.S.C. § 701(a)(1) (emphasis added), or where “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2) (emphasis added). These “generous review provisions [of the APA] must be given a hospitable interpretation,” and that “only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (emphasis added). As noted above, § 1182(a)(14) shows no evidence, let alone “clear and convincing evidence,” of a legislative intent to foreclose an alien’s right to judicial review under the APA of a labor certification denial. See Reddy, Inc. v. U.S. Dept. of Labor, 492 F.2d 538, 543-544 (holding that the APA grants a right to judicial review to an alien denied labor certification, and that § 1182(a)(14) does not foreclose APA review); Sec’y of Labor of United States v. Farino, 490 F.2d 885, 888 (7th Cir.1973) (§ 1182(a)(14) does not preclude APA review or commit labor cert, denials to agency discretion). Given the absence of legislative intent to foreclose judicial review, the Secretary cannot unilaterally “make law,” Ernst & Ernst v. Hochfelder, supra, and prevent judicial review of his own decisions. Thus, 20 C.F.R. § 656.26(a) does not and cannot override Stenographic Machines’ holding that an alien enjoys standing under the APA to challenge a denial of labor certification. To the extent that § 656.26(a) is inconsistent with APA’s grant of judicial review to aliens, it is invalid. Gladysz therefore has standing to pursue this action, and the Secretary’s motion to dismiss is denied.

Review of the Secretary’s Decision

Before turning to the merits of this controversy, we must establish the standard of review for the denial of alien labor certification. The Certifying Officer’s order denying certification must be sustained unless it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Stenographic Machines, Inc. v. Regional Administrator, 577 F.2d 521, 524 (7th Cir.1978). Our inquiry is whether the administrative decision was based on a consideration of the relevant factors, whether there has been a clear error of judgment and whether the Secretary’s action followed the necessary procedural requirements. Secretary of Labor v. Farino, 490 F.2d 885, 889-90 (7th Cir.1973). An abuse of discretion has been found, for example, where certification is denied on the basis of evidence which is not sufficient or reliable enough to support such a finding. First Girl, Inc. v. Regional Manpower Administration, 499 F.2d 122, 124 (7th Cir.1974).

In Production Tool v. Employment and Training Administration, 688 F.2d 1161 (7th Cir.1982), the Seventh Circuit upheld regulations contained in 20 C.F.R. § 656 which placed a burden of production upon the employer in alien labor certifications with respect to efforts to recruit United States workers. Id. at 1170. The Court emphasized that “documentation of the employer’s recruitment efforts will enable the Secretary to make an informed decision on the basis of reliable evidence.” Id. But, as the Court noted, while employers bear the burden of production in labor certification proceedings, they do not bear the ultimate burden of persuasion.

Gladysz claims that the Secretary denied certification because the Certifying Officer determined, in a telephone conversation with two job applicants, that they could weld. From this, the Certifying Officer allegedly concluded that these individuals were qualified for the job. Gladysz emphasizes that the Department of Labor does not have the privilege of determining whether a particular applicant is qualified for the job in question. Digilab, Inc. v. Secretary of Labor, 495 F.2d 323, 326 (1st Cir.1974), cert. denied, 419 U.S. 840, 95 S.Ct. 70, 42 L.Ed.2d 67 (1974).

We agree that it is not the role of the Secretary to determine whether particular United States workers are qualified for the job. Since denial of certification based upon evidence which was challenged and shown not to be reliable has been held to constitute an abuse of discretion, e.g., Stenographic Machines, Inc. v. Regional Administrator, 577 F.2d 521 (7th Cir. 1978), reliance solely upon the ex parte, self serving statements of two job applicants might indeed be an arbitrary and capricious basis for denying labor certification.

But certification in the instant case was not denied because of the telephone contact with the two applicants. Rather, the employer failed to comply with the Secretary’s regulations concerning its reasons for not hiring United States applicants, 20 C.F.R. § 656.21(b)(7) and (j)(1). These regulations require, inter alia, that the employer explain with specificity the lawful job-related reasons for not hiring each United States worker interviewed for the job. In light of these regulations, it was not arbitrary for the Secretary to deny certification based upon the fact that not every applicant’s resume was legible and because the reasons for rejecting the applicants were not explained with specificity. Review of the administrative record indicates that more than one applicant was rejected “because he lacked qualifying experience.” Such a statement neither explains with particularity the reasons for not hiring an applicant, nor meets the employer’s burden of production pursuant to 20 C.F.R. § 656. We cannot therefore conclude that the Secretary’s denial of labor certification was arbitrary or capricious.

For the foregoing reasons, Gladysz’s motion for summary judgment is denied, the Secretary’s motion to dismiss is denied, but his motion for summary judgment is granted. It is so ordered.

      . According to 8 U.S.C. § 1182(a)(14),
      Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: ******
      (14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (A) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts), and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to preference immigrant aliens described in section 1153(a)(3) and (6) of this title, and to non-preference immigrant aliens described in section 1153(a)(7) of this title.

      . These regulations require, inter alia, that an employer post within its organization notices of the job opportunity which direct applicants to report to the employer.

      . According to 20 C.F.R. § 656.26(a),
      [i]f a labor certification is denied, a request for an administrative-judicial review of the denial may be made:
      (1) By the employer; and
      (2) By the alien, but only if the employer also
      requests such a review.

      . The Secretary rightly notes that 20 C.F.R. Part 656 was amended in 1980. See 45 Fed.Reg. 83,926 (Dec. 19, 1980). But the regulation in dispute here, 20 C.F.R. § 656.26(a)(2), was not changed during the 1980 overhaul of Part 656.

      . The Court’s failure to address the conflict might have stemmed from the timing of that case. The Circuit decision came down in 1978, but the administrative proceedings took place before the 1977 promulgation of § 656.26(a)(2).

      . In support of its argument that Gladysz’s claim is moot, the Secretary claims that since the employer has not appealed the denial of its labor certification application, there is no job for which Gladysz may be certified. The Secretary adds that because no employer is presently asserting that it has a job opportunity for the plaintiff to fill, this Court is incapable of providing a remedy to redress Gladysz’s alleged injuries. Gladysz maintains, however, that he is still employed by the employer, who is prepared to file a petition for permanent residence on Gladysz’s behalf. In light of our resolution of the present motions, we need not resolve these factual disputes. Because these factual disputes are not outcome determinative, moreover, they do not preclude summary judgment. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

      . The regulations at issue in Production Tool required documentation which clearly showed that
      (9)(i) The employer has advertised and is still advertising the job opportunity without success in such media as newspapers of general circulation, and ethnic and professional publications;
      (ii) The employer's advertising offers prevailing working conditions and requirements and the prevailing wage for the occupation calculated pursuant to § 656.40 of this Part, states the rate of pay, offers training if the job opportunity is the type for which the employer customarily provides training, and offers wages, terms and conditions of employment which are no less favorable than those offered to the alien;
      (iii) The employer’s advertising describes the job opportunity with particularity; the documentation shall include a copy of at least one advertisement placed by the employer;
      (iv) The employer's advertising has produced no satisfactory results.
      20 C.F.R. § 656.21(b). Certifying officers are to examine the results of an employer’s recruitment efforts in deciding whether a United States worker is willing to take a job. Id. § 656.24(b)(2)(i). The employer’s failure to comply with the application procedures constitutes a separate ground for denying certification. Id. § 656.24(b)(1).

      . These regulations provide, in relevant part, that
      ... [T]he employer shall submit, as part of every labor certification application, on the Application For Alien Employment Certification form or in attachments, as appropriate, the following clear documentation:
      ******
      (7) If U.S. workers have applied for the job opportunity, the employer shall document that they were rejected solely for lawful job-related reasons.
      20 C.F.R. § 656.21(b)(7).
      (j)(l) The employer shall provide to the local office a written report of the results of all the employer’s post-application recruitment efforts ... The report of recruitment results shall:
      (i) Identify each recruitment source by name;
      (ii) State the name of U.S. workers responding to the employer's recruitment;
      (iii) State the names, addresses, and provide resumes (if any) of the U.S. workers interviewed for the job opportunity and job title of the person who interviewed each worker; and
      (iv) Explain, with specificity, the lawful job-related reasons for not hiring each U.S. worker interviewed.
      20 C.F.R. § 656.210)(1).

      . In Count II of his amended complaint, Gladysz claims that 20 C.F.R. § 656.26 violates his rights to due process and equal protection because it precludes him from obtaining administrative review of a labor certification denial unless the employer also seeks such review. However, he has not identified a similarly situated class of individuals receiving disparate treatment, and he does not support his assertion that the regulations deprive him of a property interest without due process. Neither the statute nor the Secretary's labor certification regulations create a property interest on the part of Gladysz. The Secretary is therefore entitled to summary judgment with respect to Count II as well.


author: McCURN, District Judge.

text:
    MORRIS ELECTRONICS OF SYRACUSE, INC., Plaintiff, v. MATTEL, INC., Mattel Electronics, Inc. and Louis J. Buduson, Individually, and d/b/a Sound Merchandise, Defendants.
    No. 83-CV-211.
    United States District Court, N.D. New York.
    June 20, 1984.

      Berger, Steingut, Weiner, Fox & Stern, New York City, Levene, Gouldin & Thompson, Binghamton, N.Y., for plaintiff; Lawrence I. Fox, New York City, Samuel K. Levene, Binghamton, N.Y., of counsel.
    Howrey & Simon, Washington, D.C., His-cock, Lee, Rogers, Henley & Barclay, Syracuse, N.Y., for defendants Mattel, Inc., Mattel Electronics, Inc., Louis J. Buduson, Sound Merchandise; William R. O’Brien, Washington, D.C., Taylor H. Obold, Syracuse, N.Y., of counsel.
    Richard B. Muir, Hilton, N.Y., for defendants Louis J. Buduson, Sound Merchandise.
   MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

Sections 2(d) and 2(e) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. §§ 13(d) and 13(e) (1976), make it unlawful, in substance, for a seller to furnish promotional and advertising allowances, services, or facilities to a customer in connection with the sale of a product unless such allowances, services or facilities are made available on proportionately equal terms to all other customers that compete for such product on the same level of distribution as the favored customer. See generally, F.T.C. v. Fred Meyer, Inc., 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968). The central issue on this motion is whether the plaintiff, a wholesaler, may assert a claim for damages for injury to its business as a result of the defendant manufacturer’s alleged violation of §§ 2(d) and 2(e) by favoring direct-purchasing retailers over the indirect-purchasing retailers supplied through the plaintiff. The court, for reasons set forth herein, concludes that the plaintiff has antitrust standing to assert such claim, and therefore denies defendants’ motion for judgment on the pleadings or, in the alternative, for partial summary judgment.

I.

As alleged in its Amended Complaint, plaintiff Morris Electronics of Syracuse, Inc. (“Morris”) is a wholesale dealer in electronics products and appliances. Defendants Mattel, Inc. and its subsidiary Mattel Electronics, Inc. (“Mattel”) manufacture, distribute and sell consumer electronics, including its trademarked Intellivision master components and game cartridges. Defendant Buduson is a sales representative of Mattel doing business as Sound Merchandise.

Plaintiff asserts four causes of action, which pertain to Mattel’s alleged practices in the sale and marketing of its consumer electronics products. The first cause of action alleges that the defendants unlawfully tied and conditioned the sale to Morris of its Intellivision master components to the sale of its handheld and other consumer electronic games in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (1976), and Section 3 of the Clayton Act, 15 U.S.C. § 14 (1976). The second cause of action alleges that Mattel unlawfully discriminated in price between Morris and direct purchasing retailers by selling consumer electronics products to direct purchasing retailers at substantially lower prices than to Morris in violation of Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a) (1976). The third cause of action — which is the subject of this motion — alleges that Mattel provided promotional and advertising allowances, services and facilities to direct-purchasing retailers in connection with the sale of Mattel’s consumer electronics products without providing the same allowances, services and facilities to Morris or Morris’ retailer customers on proportionately equal terms, in violation of §§ 2(d) and 2(e) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. §§ 13(d) and 13(e) (1976). Finally, plaintiff’s fourth cause of action incorporates the previous allegations, and asserts a violation of the Donnelly Act, NY GENERAL BUSINESS LAW § 340 (McKinney 1968).

Presently before the court is the defendants’ motion, pursuant to Rule 12(c), Fed.R. Civ.P., to dismiss the third cause of action and part of the fourth cause of action in plaintiff’s Amended Complaint or, in the alternative, pursuant to Rule 56 Fed.R. Civ.P., for summary judgment as to those claims. Inasmuch as plaintiff does not oppose defendants’ motion with respect to part of its fourth cause of action, that motion will be granted, and the court’s discussion herein is limited to the sufficiency of plaintiff’s claim under §§ 2(d) and 2(e) of the Clayton Act.

II.

For the purpose of considering defendant’s Rule 12(c) motion, all of the well-pleaded allegations in the complaint are assumed to be true, and all contravening assertions in the defendants’ Answer are taken to be false. National Metropolitan Bank v. United States, 323 U.S. 454, 65 S.Ct. 354, 89 L.Ed. 383 (1945). See generally, 5 Wright & Miller, Federal Practice & Procedure § 1368 (1969 ed.). Turning, then, to the specific allegations in support of the challenged cause of action, the court must assume the truth of the following:

31. ... [I]n furtherance of the sale of Mattel’s products by large direct purchasing retailers, including but not limited to J.C. Penny, Kiddie City, a division of Lionel, K-Mart and Radio Shack, Mattel supplied these direct purchasing retailers with promotional and advertising services and facilities for their use and benefit in connection with their sale of Mattel’s products, without offering the same allowances, services and facilities to Morris or Morris’ retailer customers on proportionately equal terms as those available to these direct-purchasing retailers or by offering the promotional benefits only on a delayed or in an otherwise discriminatory fashion.

For example, Mattel provided its direct-purchasing retail customers with advance notification of a rebate that it would offer to promote sales of Intellivision, which notice enabled such direct-purchasing retail customers, but not its indirect-purchasing retail customers, to place timely advertisements of the rebate during the 1982 Christmas season. Amended Complaint ¶¶ 32(a)-(d). Morris also discriminated in favor of direct-purchasing retailers by furnishing them with more timely deliveries of products, id. ¶ 32(e); more advantageous allocations of in store display materials, id.; more advantageous allocations of desired products, id.; and more favorable return privileges. Id. ¶ 32(f).

As a result of the aforementioned discriminatory conduct, the plaintiff lost profits, sales and goodwill, and its business has been impaired. Id. 1135.

III.

Sections 2(d) and (e) of the Clayton Act, 15 U.S.C. §§ 13(d) and (e), provide as follows:

§ 13. Discrimination in Price, Services, or Facilities.
(d) Payment for services or facilities. It shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale, of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.
(e) Furnishing services or facilities. It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.

As both parties recognize, these sections only prohibit a seller from discriminating between customers that compete on the same level of distribution; they do not mandate proportional equality between wholesale and retail customers. F.T.C. v. Fred Meyer, Inc., 390 U.S. 341, 348-349, 88 S.Ct. 904, 908-909, 19 L.Ed.2d 1222. In moving to dismiss, the defendants construe the Amended Complaint as alleging that Mattel discriminated in promotional advertising services and facilities between Morris, a wholesale distributor, and direct-purchasing retailers, such as J.C. Penney. They therefore contend that the plaintiff has failed to state a claim, since it has failed to allege discrimination between customers that compete on the same level of distribution.

The complaint does appear to allege, inter alia, that the defendants discriminated between Morris and direct-purchasing retailers, see Amended Complaint ¶ 31 (“... Mattel supplied these direct purchasing retailers ... without offering the same ... to Morris____”), and to that extent, it does not state a claim. However, the complaint also alleges that the defendants unlawfully discriminated between Morris’ retail customers and direct-purchasing retailers — customers that are on the same functional level — and that Morris was injured in its business as a result of that unlawful discrimination. Such allegation, if asserted by one of the injured retailers, would presumably state a claim. The issue, therefore, is whether plaintiff, a wholesaler, has antitrust standing to assert the claim that the defendants’ discrimination among retailers injured it in its business.

IV.

“Antitrust standing”, that is, the right to assert a private antitrust action for damages, has been conferred by Congress upon “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.” Clayton Act § 4; 15 U.S.C. § 15. As the Supreme Court explained in Blue Shield of Virginia v. McCready, 457 U.S. 465, 472, 102 S.Ct. 2540, 2545, 73 L.Ed.2d 149 (1982),

“[O]n its face, § 4 contains little in the way of restrictive language.” And the lack of restrictive language reflects Congress’ “expansive remedial purpose” in enacting § 4: Congress sought to create a private enforcement mechanism that would deter violators and deprive them of the fruits of their illegal actions, and would provide ample compensation to the victims of antitrust violations. (Citations omitted).

However, as the Court subsequently emphasized in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 907, 74 L.Ed.2d 723 (1983) (“Associated General ”), “Congress did not intend to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation,” nor did Congress “intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business.”

After summarizing the struggle of federal courts “to articulate a precise test to determine whether a party injured by an antitrust violation may recover treble damages,” the Court in Associated General conceded the impossibility of announcing a “black letter rule” that could be uniformly applied. It did, however, identify a number of factors for courts to consider when confronted with the recurrent problem of antitrust standing. A recent decision of the Court of Appeals instructs the courts of this circuit “to follow the approaches adumbrated by the Supreme Court in McCready and Associated General without concern whether the results are consistent with language in earlier Second Circuit cases.” Crimpers Promotions, Inc. v. Home Box Office, Inc., 724 F.2d 290, 293 (2d Cir.1983).

A.

In McCready, the Supreme Court focused upon two factors that limit the availability of the § 4 remedy: (1) the risk of duplicative recovery; and (2) the remoteness of plaintiff’s alleged injury from the defendant’s alleged violation.

In this instance, the risk of duplicative recovery is minimal. As the plaintiff persuasively explains:

... [Morris’] injuries are not based upon obtaining a portion of the damages suffered by its customers. Rather, Morris’ claims are based upon the profits lost as a result of (i) the cancellation of previously placed orders for Mattel products and (ii) having to provide credits and refunds to its customers, as a consequence of defendants’ failure to meet their Robinson-Patman obligations. Plaintiffs Letter in Opposition at 5 (9/16/83).

Without regard, at this juncture, to any other challenge to these bases for recovery, it is evident that the plaintiff seeks to recover for injuries that are distinct from, and do not duplicate, any injuries its customers might have sustained. Cf 2 Areeda & Turner, Antitrust Law ¶ 340d at 214 (1978) (commenting that, where a manufacturer sues its customer’s competitor, “duplication could be avoided by awarding each [i.e., the manufacturer and his customer] his lost profits”).

Turning next to “the conceptually more difficult question,” of whether the injuries are “too remote” from the antitrust violation to afford standing, McCready, 457 U.S. at 476, 102 S.Ct. at 2547, the court must consider (a) “the physical and economic nexus between the alleged violation and the harm to the plaintiff”; and (b) “the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in making defendant’s conduct unlawful and in providing a private remedy under § 4.” Id. at 478, 102 S.Ct. at 2548.

The plaintiff herein is clearly not the most immediate victim of the alleged violation; its retail customers would bear the brunt of any discrimination in favor of their competitors. Nevertheless, the “nexus” between the alleged violation and the alleged harm is a close one: if Morris’ retailer-customers lose sales of Mattel products such as Intellivision master components to their direct-purchasing competitors, Morris is apt to suffer an impact in its sales of those products to its retailer-customers.

To be sure, a supplier “is usually denied standing to complain that he was injured by selling less to one who was injured by the defendant’s alleged antitrust violation.” 2 Areeda & Turner, supra, ¶ 340e at 217. See also, Crimpers, supra, 724 F.2d at 294 (dicta). This general rule may have to be reconsidered in light of McCready and Associated General. But in any event, the plaintiff here does not merely allege a loss of sales in its business due to a general impairment in its customers’ businesses, which in turn is due to the defendants’ illegal conduct. Rather, plaintiff alleges a loss in sales and profits with respect to particular finished products because its customers’ ability to resell those same products is impaired by the defendants’ illegal conduct. Such allegation presents a particularly close connection between the violation and the injury, and has been recognized as a basis for supplier standing. Areeda & Turner, supra, ¶ 340 at 212-13.

It is also true that in any given case a supplier may not in fact have sustained — or be able to prove — an impact in its sales or profits as a result of illegal acts that primarily affect its retailer-customers. See Kirby v. P.R. Mallory & Co., Inc., 489 F.2d 904, 911 (7th Cir.), cert. denied 417 U.S. 911, 94 S.Ct. 2610, 41 L.Ed.2d 215 (1974). But where, as here, the injury is assumed to have occurred for the purpose of this motion, that injury appears to this court to be “precisely ‘the type of loss that the claimed violations ... would be likely to cause.’ ” McCready, 457 U.S. at 479, 102 S.Ct. at 2549, quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977).

With regard to the question of whether the alleged injury is a type “about which Congress was likely to have been concerned,” McCready, 457 U.S. at 478, 102 S.Ct. at 2548, the court notes, first, “that Robinson-Patman ‘was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.’ ” Jefferson Cty. Pharmaceutical Ass’n. v. Abbott Laboratories, 460 U.S. 150, 103 S.Ct. 1011, 1017, 74 L.Ed.2d 882 (1983), citing, inter alia, F.T.C. v. Fred Meyer, Inc., supra. See also, H.C. Hansen, “Robinson-Patman Law: A Review & Analysis,” 51 Fordham L.Rev. 1113, 1120-24 (May 1983). More specifically, §§ 2(d) and 2(e) were enacted to prevent sellers from circumventing the ban on price discrimination in § 2(a) by discriminating between buyers through advertising and other sales promotional allowances. F.T.C. v. Fred Meyer, Inc., 390 U.S. at 350-52, 88 S.Ct. at 909, 910.

Undoubtedly, the special focus of Congress’ concern in enacting §§ 2(d) and 2(e) were the independent merchants who competed with large chain stores. As the Court noted in F.T.C. v. Fred Meyer, Inc., id. at 349-50, 88 S.Ct. at 908-09:

The role within the statutory scheme which Congress intended for § 2(d) is well documented in the legislative history. An investigation of chain store buying practices undertaken by the Federal Trade Commission, at Congress’ request, had indicated that § 2 of the Clayton Act was an inadequate deterrent against outright price discrimination. The investigation also revealed that certain practices by which large buyers induced concessions which their smaller competitors could not obtain were wholly beyond the reach of § 2. It is significant that congressional concern had focused on the buying practices of large retailers, particularly the chain stores, because it was felt that they were threatening the continued existence of the independent merchant.

Moreover, the Court also explained in that case that “the competition with which Congress was concerned in § 2(d) was that between buyers who competed in resales of the supplier’s products.” Id. at 356, 88 S.Ct. at 912 (emphasis added). The Court therefore concluded that Congress did not intend, in enacting § 2(d), to compel a supplier to pay to a wholesaler promotional allowances that are proportionately equal to those it pays to retailers.

There is, however, no indication in F.T.C. v. Fred Meyer, Inc. or its progeny that the injury caused to a wholesaler by a supplier’s discrimination among retailers was beyond the concern of Congress. The wholesaler is no stranger to the competitive scheme the statute is designed to protect, and when that scheme is disrupted by violations of §§ 2(d) and 2(e), its injury is “inextricably intertwined” with the injury inflicted upon the retailers. Crimpers, 724 F.2d at 294-95, quoting McCready, 457 U.S. at 484, 102 S.Ct. at 2551. Indeed, it may well prove to be the case that in certain respects the wholesaler, through refunds or credits to its retailer-customers, may have actually borne the brunt of the antitrust injury. See McCready, 457 U.S. at 483, 102 S.Ct. at 2550. Thus, while it is well established that §§ 2(d) and 2(e) proscribe only discrimination among competitors on the same level of distribution, there is little basis for concluding that Congress meant to afford a remedy to those specifically discriminated against, but not those whose injury, like this plaintiff's alleged injury, closely “flows from that which makes the defendant’s acts unlawful.” Id. at 484, 102 S.Ct. at 2551.

B.

In Associated General, the Court resolved an antitrust standing problem by considering a number of factors which overlap, in part, those it considered in McCready.

One major factor discussed was “the nature of plaintiff’s injury.” 103 S.Ct. at 908-10. Here, plaintiff alleges lost sales and profits with respect to Mattel products as a result of the defendants’ §§ 2(d) and 2(e) violations. Clearly, the injury is of a general nature ordinarily asserted by antitrust plaintiffs. And as discussed previously, while the plaintiff’s injury is not at the epicenter of Congress’ concern, it is sufficiently related to the retailer’s injury to warrant an inference that Congress did not intend such injury to go unremedied.

A second factor in Associated General, also addressed in McCready, concerned the directness or indirectness of plaintiffs injury. Id. at 910. Undoubtedly, plaintiffs allegations reveal a causal connection between the violation and its injury, id. at 908; moreover, in the language of torts, the violation would be considered a “proximate cause” of the injury, which was “foreseeable.” See id. at 905-06, n.’s 24, 25. As discussed above, while the plaintiff was not likely to have been the most direct victim of the §§ 2(d) and 2(e) violations, but see ante at 14, the nexus between the alleged violation and the alleged harm was close indeed.

The Court in Associated General also articulated its version of the “best plaintiff” principle that is often considered when standing is an issue:

The existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the Union to perform the office of a private attorney general. Denying the Union a remedy on the basis of its allegations in this case is not likely to leave a significant antitrust violation undetected or unremedied.

Id. at 911. See also, Wright, Miller & Cooper, 13 Federal Practice & Procedure: Jurisdiction § 3531 at 211 (1975 ed.).

In this instance, although the plaintiff is perhaps “more remote” than its retailer-customers, that is counterbalanced since the plaintiff appears uniquely situated to litigate matters that its individual retailer-customers might not be as able to litigate on their own behalf. See Areeda & Turner, supra, ¶ 340c at 213 (supplier standing is warranted where, inter alia, “the plaintiff is the injured party whose interest will most likely lead him to vindicate the public interest — as, for example, where each immediately-affected dealer is little damaged and can easily shift his attention to other products...”).

A fourth factor identified in Associated General concerned the speculative nature of the damages alleged. Id. at 911. In Associated General, for instance, a union claimed that an employer association coerced certain third parties to enter into business relations with non-union contractors and subcontractors in violation of the Sherman Act; the Court found plaintiffs claim of damages “highly speculative,” due in part to the indirect and remote nature of the union’s injury.

Here, in contrast, plaintiff alleges that the defendants discriminated against indirect-purchasing retail merchants in promotional and advertising allowances, services, and facilities in violation of §§ 2(d) and 2(e) of the Clayton Act. As discussed previously, such discriminatory conduct could well impact upon the profits and sales of a wholesaler supplying the affected products to the indirect-purchasing retailers. The court is unprepared, on this motion directed toward the pleadings, to conclude that such damages would necessarily be too speculative to permit this action to proceed. Indeed, the business records of Morris and its customers might with elucidation by expert and non-expert witnesses, reveal the amount of damages plaintiff sustained, if any, with considerable precision. Like the plaintiff in Crimpers, Morris’ losses “should be proveable under the liberal principles long recognized in antitrust cases.” 724 F.2d at 297.

A final factor discussed in Associated General was the projected difficulty in “avoiding either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other.” 103 S.Ct. at 912. In this court's view, set forth previously in the course of discussing the McCready factors, duplicate recovery can be avoided by focusing upon plaintiff’s lost profits. That lodestar should enable the court to avoid a complex apportionment of damages as well.

Accordingly, while the court acknowledges that the question of plaintiff’s standing is not insubstantial, a review of the claim in light of the factors articulated by the Supreme Court in McCready and Associated General lead to a conclusion that this plaintiff is, on the basis of its pleading, a person “injured in his business or property by reason of anything forbidden in the antitrust laws.” Clayton Act § 4.

V.

In the event that this court did not recognize plaintiffs standing to sue for its own injury, plaintiff contended that it would have standing to assert the antitrust claims of its retailer-customers by virtue of several assignments executed and delivered by such customers to the plaintiff. The defendants respond, with considerable support in this court’s view, that such assignments are champertous under New York law, see NY JUDICIARY LAW § 489 (McKinney 1983) and therefore void. In view of the court’s holding above, that plaintiff has standing to assert a claim for its injuries, it is not necessary to rule upon the validity of the assignments. However, it should be stated at this point that, under the court’s reading of the Amended Complaint, plaintiff is suing to recovery only its damages, and not any damages sustained by its customers.

VI.

In addition to challenging the third cause of action in toto on standing grounds, defendants also challenge specific allegations therein as failing to state a claim under §§ 2(d) and 2(e) of the Clayton Act. Specifically, defendants contend that insofar as the plaintiff alleges that Mattel provided “direct-purchasing retailers with more timely deliveries of product” and “more advantageous allocations of desired products,” Amended Complaint II 32(e), “refused to honor written and oral cancellations,” and “pre-released” shipments of products to Morris, Amended Complaint 11 32(f), it has failed to allege anything forbidden by the statute invoked.

Clearly, there is a division of opinion among courts as to whether such allegations fall within the scope of the §§ 2(d) and 2(e). Compare, e.g., L & L Oil Co., Inc. v. Murphy Oil Corp., 674 F.2d 1113, 1118-19 (5th Cir.1982) (delivery is not a “service or facility” within the meaning of § 2(e); moreover, § 2(e) requires that the service or facility relate to the resale of the product, and problems associated with delivery concern only the original sale) with Centex-Winston Corp. v. Edward Hines Lumber Co., 447 F.2d 585 (7th Cir.) cert. denied, 405 U.S. 921, 92 S.Ct. 956, 30 L.Ed.2d 791 (1972) (delivery is a “service or facility” within the meaning of § 2(e)). In this circuit, one district court adopted the Centex-Winston position, Harlem River Consumers Cooperative, Inc. v. Associated Grocers of Harlem, Inc., 371 F.Supp. 701 (S.D.N.Y.1974), and was affirmed, although without discussion of this issue. 493 F.2d 1352 (2d Cir.1974). However, subsequent decisions by other district courts in this circuit have ruled that problems associated with delivery are beyond the scope of § 2(e). O’Connell v. Citrus Bowl, Inc., 99 F.R.D. 117, 121 (E.D.N.Y.1983); Diehl & Sons, Inc. v. International Harvester Co., 426 F.Supp. 110 (E.D.N.Y.1976).

After reviewing the language of the statute and the pertinent authorities, this court is convinced, first, that the Second Circuit has not clearly adopted the Centex-Winston position, and second, that the L & L Oil Co., Inc., position is correct. As explained at some length in L & L Oil Co., Inc., § 2(e) was “aimed at advertising and other promotional services,” id. at 1118, and that, “[ejxcept for “Centex-Winston and the cases adopting its holding, the only arrangements courts have found to be services or facilities are those relating to promotional favors.” Id. at 1119, citing, inter alia, F.T.C. v. Simplicity Pattern, Co., 360 U.S. 55, 79 S.Ct. 1005, 3 L.Ed.2d 1079 (1959). Moreover, there is more than ample authority for L & L Oil Co., Inc.’s conclusion that § 2(e) requires that the service or facility relate to the resale of the product by the purchaser as opposed to the original sale from the supplier to the purchaser. See e.g., Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319, 1327-28 (6th Cir.1983); Foremost Pro Color v. Eastman Kodak Co., 703 F.2d 534, 546 (9th Cir.1983); O’Connell v. Citrus Bowl, Inc., supra 99 F.R.D. at 121. See also, 5 vonKalinowski, Antitrust Laws and Trade Regulation § 35.02 (1983). Thus, § 2(e) is violated neither by discriminatory deliveries of products, L & L Oil Co., Inc., nor by discriminatory allocation of products. Holleb & Co. v. Produce Terminal Cold Storage Co., 532 F.2d 29, 33 (7th Cir.1976); David R. McGeorge Car Co. v. Leyland Motor Sales, Inc., 504 F.2d 52, 55 (4th Cir.) cert. denied, 420 U.S. 992, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975). A fortiori the allegation of pre-released shipments must fall as well.

However, insofar as plaintiff alleges discrimination with respect to written and oral cancellations, it has been held that a seller who permits certain of its customers to return unsold goods for credit, while not extending the same privilege to other customers violates § 2(e). Bouldis, supra, 711 F.2d at 1328. At least until such time as the factual basis for plaintiffs allegation with respect to cancellations becomes clearer, the court declines to rule it insufficient under § 2(e).

ACCORDINGLY, the court denies defendants’ motion for judgment on the pleadings or, in the alternative, for summary judgment with respect to the third cause of action, except insofar as plaintiff claims violations of §§ 2(d) and 2(e) of the Clayton Act, as amended by the Robinson-Patman Act, based on allegations that Mattel provided “direct purchasing retailers with more timely deliveries of product” and “more advantageous allocations of desired products,” Amended Complaint 1132(e), and “pre-released” shipments of products to Morris, Amended Complaint ¶ 32(f), with respect to which allegations the court grants judgment on the pleadings for the defendants; and the court grants defendants’ motion for judgment on the pleadings with respect to the fourth cause of action insofar as plaintiff claims violations of NY GENERAL BUSINESS LAW §§ 340 et seq. based on allegations of price discrimination.

IT IS SO ORDERED.

      . Since the parties agree that the issues before the court are issues of law which may be decided from the face of the pleadings, the court will expressly treat the motion brought pursuant to Rule 12(c), and then rule upon the alternative summary judgment motion as a matter of course.

      . Possibly, plaintiff did not even intend to allege that the defendants discriminated against it and in favor of direct purchasing retailers, but rather sought in Amended Complaint ¶ 31 to allege only that the defendants discriminated against its customers by failing to furnish proportionately equal allowances, services or facilities to either those customers, or to it. See F.T.C. v. Fred Meyer, Inc., 390 U.S. at 358, 88 S.Ct. at 913 (Nothing we have said bars a supplier ... from utilizing his wholesalers to distribute payments or administer a promotional program, so long as the supplier takes responsibility ... for seeing that the allowances are made available to all who compete in the resale of his product).

      . Since the issue is standing, and not the substantive scope of §§ 2(d) and 2(e), defendants’ reliance on the holdings of F.T.C. v. Fred Meyer, Inc., Kirby v. P.R. Mallory & Co., Inc., 489 F.2d 904 (7th Cir.) cert. denied 417 U.S. 911, 94 S.Ct. 2610, 41 L.Ed.2d 215 (1974), and L.S. Amster & Co., Inc. v. McNeil Laboratories, Inc., 504 F.Supp. 617 (S.D.N.Y.1980) is misplaced. None of those decisions squarely address the question of whether a wholesaler has antitrust standing to sue for injuries it sustained as a result of the defendants’ discrimination among retailers. Moreover, even if the issue had been addressed by Kirby or L.S. Amster, the issue would now have to be considered anew in light of recent Supreme Court decisions on antitrust standing, discussed infra.

      . Areeda & Turner comment:
      On balance, we think that [supplier] standing should be denied unless (1) the plaintiff’s product is virtually identical with that of the defendant, or at least the overwhelming component of the latter in value, and (2) the proximity of interest is very clear, as evidenced by the fact that the defendant’s actions clearly dictated a substantial market response by the plaintiff, and (3) the plaintiff is the injured party whose interest will most likely lead him to vindicate the public interest — as for example, where each immediately-affected dealer is little damaged and can easily shift his attention to other products — and (4) duplicate recoveries can be avoided through a lost-profits measure of damages. Id. at 213 (emphasis added).


author: FLANNERY, District Judge.

text:
    NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
    Civ. A. Nos. 75-1698, 2153-73, 75-1267 and 75-172.
    United States District Court, District of Columbia.
    June 20, 1984.

      Frederick M. Rowe, Edward W. Warren, Philip J. Davis, Robert F. Stauffer, Gen. Counsel, Nat. Coal Assoc., Ronald J. Wilson, J.G. Speth, Edward L. Strohbehn, Jr., Barry J. Trilling, Bingham Kennedy, Christopher S. Rizek, Trilling & Kennedy, Washington, D.C., for plaintiffs.
    Thomas A. Pursley, III, Barry Neuman, Donald W. Stever, Jr., Thomas C. Lee, Erica L. Dolgin, Dept, of Justice, Ridgway M. Hall, E.P.A., Carol E. Dinkins, Asst. Atty. Gen., Land and Natural Resources Div., Jose R. Allen, Environmental Defense Section, Washington, D.C., for Anne M. Gorsuch, Russell E. Train and E.P.A.
    Theodore L. Garrett, Roberts B. Owen, Douglas E. McAllister, Washington, D.C., for American Min. Congress and E.P.A.
    Michael K. Glenn, Washington, D.C., John A. Stichter, New York City, for American Paper Institute and Nat. Forest Products Ass’n.
    Robert C. Barnard, Douglas E. Kliever, Charles F. Lettow, Michael A. Wiegard, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for Union Carbide Corp., FMC Corp., Dow Chemical Corp., Celanese Corp., E.I. Dupont de Nemours and Co., Exxon Corp. and Monsanto Co.
    Richard R. Gardner, Washington, D.C., for Olin Corp.
    Richard E. Schwartz, David P. Hackett, Collier, Shannon, Rill & Scott, Washington, D.C., for American Iron and Steel Institute.
    Stark Ritchie, James K. Jackson, Arnold S. Block, Washington, D.C., for American Petroleum Institute et al.

      Michael B. Barr, Scott Slaughter, Hunton & Williams, Washington, D.C., for Ala. Power Co. et al.
    George C. Freeman, Jr., Washington, D.C., for intervenors.
   MEMORANDUM

FLANNERY, District Judge.

This matter comes before the court on the motion of the plaintiffs for attorneys’ fees. Plaintiffs are three environmental groups, (“NRDC”), that have been involved in this lengthy environmental litigation. They claim that the Environmental Protection Agency, (“EPA”), as the original defendant, and the intervenor defendants, are liable for fees incurred through plaintiffs’ opposition to their respective positions. The government does not oppose an award of fees against it for work reasonably performed by NRDC in opposition to positions taken by the EPA. It does not believe that the amount of fees requested by NRDC is reasonable. The government argues that it should not be liable for work performed by NRDC against the defendant intervenors. Intervenors argue that they should not be liable for any attorneys’ fees. BACKGROUND

This case has a long and complex history of litigation. A brief review of this history is necessary for an understanding and evaluation of plaintiffs’ claim for attorneys’ fees. The cases that underlie this application for fees are “citizen suits” brought under 33 U.S.C. § 1365(a)(2) to compel the Administrator of the EPA to perform certain non-discretionary acts in connection with section 307 of the Federal Water Pollution Control Act, (“FWPCA”), 33 U.S.C. § 1317. In March, 1974, a settlement agreement was reached in these cases that has proved to be of great significance in the administation of FWPCA. Numerous industrial groups attempted to intervene so as to participate in the proceedings which were to grow out of this settlement agreement. This court originally denied these motions for intervention, however, the United States Court of Appeals allowed intervention. NRDC v. Costle, 561 F.2d 904 (D.C.Cir.1977).

NRDC did not believe that the EPA was complying with the dictates of the settlement agreement, and on September 26, 1978, NRDC moved for an Order to Show Cause why EPA should not be held in contempt. EPA responded with a Motion to Amend the agreement to extend the deadline for promulgating regulations. EPA also sought to make other changes in the agreement. At about the same time, intervenors filed a joint motion to vacate the consent decree. After a series of discussions aimed at settlement of NRDC’s contempt motion, the EPA and NRDC agreed upon a joint motion to modify this court’s order approving the settlement agreement. They submitted this joint motion to the court on December 15, 1978, and on that same date NRDC withdrew its show cause motion and EPA withdrew its prior motion to modify the agreement. In response, intervenors filed an additional memorandum in support of their joint motion to vacate. Both the EPA and NRDC opposed this motion, and on March 9, 1979, this court denied the joint motion of intervenors to vacate the settlement agreement and granted the joint NRDC-EPA motion to modify the agreement.

On May 7, 1979, several of the intervenors filed an appeal from this court’s order. In response, EPA and NRDC submitted separate responsive briefs. These two entities sought to divide the issues between themselves so as to avoid duplication of effort. EPA addressed in detail only the intervenors’ procedural objections to the settlement, and NRDC attempted to defend the substance of the settlement. On September 16, 1980, the court of appeals found for EPA and NRDC on all issues raised by the parties. The court, however, sua sponte, raised the issue of whether the Settlement Agreement impermissibly infringed on the discretion that Congress had given to the Administrator of EPA. The case was remanded to this court for resolution of that issue.

On remand, several of the intervenors moved to vacate the consent decree based on the issue of discretion cited by the court of appeals. EPA opposed the motion to vacate, but once again moved to modify the consent decree. NRDC opposed both of these motions. On February 5, 1982, this court denied the intervenors’ joint motion to vacate, and intervenors appealed from that order. At the same time that this appeal was taken, some intervenors submitted papers supporting EPA’s motion to modify. The NRDC filed its opposition to that motion. On May 7, 1982, this court denied the motion to modify the consent decree.

This court has previously addressed the question of attorneys’ fees in the context of this case. On August 16, 1978, this court allowed plaintiffs to recover attorneys’ fees for work done in achieving the results documented in the settlement agreement. In that same order, this court denied intervenors’ request for attorneys fees. The present application for fees presents a novel issue. As stated above, the government does not oppose the payment of a reasonable fee to plaintiffs for work performed by NRDC against EPA. The question remains: who, if anyone, is liable for the fees incurred by NRDC in opposition to positions taken by intervenors. The court attempts to resolve this issue in the discussion that follows.

DISCUSSION

I. Liability

Congress provided for the award of attorneys’ fees in citizen suits brought pursuant to the FWPCA:

The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

33 U.S.C. § 1365(d). This court has already awarded fees to NRDC for work done to attain the settlement agreement. This court has stated that the agreement “has proved to be of very great significance in the subsequent administration of the Federal Water Pollution Control Act.” Mem. Opinion, August 16, 1978 at 2. It would be an anomalous result to find that NRDC could not be compensated for its efforts to ensure that this agreement was enforced. This court will not subscribe to such a result. The government concedes that NRDC’s positions taken against the EPA to further the enforcement of the settlement are compensable. The more difficult question is whether attorneys’ fees should be awarded against intervenors for NRDC’s efforts to resist intervenors’ motions to modify and vacate the settlement agreement.

This question, as it appears in the present case, was not addressed by Congress in the FWPCA. There is no explicit provision that addresses the issue of whether defendant intervenors are liable for attorneys’ fees. The structure of the FWCPA as well as its intent must be explored to discover how this question can best be answered in harmony with the purposes Congress sought to achieve in that Act.

The starting point of any analysis of attorneys’ fees question is the “American Rule” which states that the prevailing party is ordinarily not entitled to collect a reasonable attorneys’ fee from the losing party. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). This presumption can be reversed by a clear expression of intent to do so by Congress. The expression of intent contained in the statute, to shift fees when “appropriate” is unenlightening. See Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). The role of the intervenors in this litigation must be examined before the court can determine whether an award of fees against them is appropriate. The court of appeals held that the intervenors had significant interests to protect in this case. NRDC v. Costle, 561 F.2d 904, 909-11 (D.C.Cir.1977). It found that their intervention was likely to lessen the need for future litigation. Id. at 911. The goal that intervenors sought to attain by participating in this lawsuit, arguably, was to ensure that EPA properly implemented and administered the Clean Water Act. To that extent, their role in this litigation was similar to that of NRDC and helped further the goals of the Act.

Plaintiffs can point to no legislative history or judicial precedent that would justify an award of attorneys’ fees against intervenors in the context of this litigation. Cf. Northern Plains Resource Council v. EPA, 670 F.2d 847, 849 n. 4 (9th Cir.1982) (no contribution from private intervenors for attorney fees under Clean Air Act). Their argument boils down to no more than that a prevailing party should be entitled to fees. This is contrary to the American Rule. Although this rule has been reversed under this and similar acts when private parties have prevailed against the government, the Supreme Court has stated that non-governmental entities are to be treated differently. Ruckelshaus v. Sierra Club, 103 S.Ct. at 3281 n. 12. The Court stated:

Differing abilities to bear the cost of legal fees and differing notions of responsibility for fulfilling the goals of the Clean Air Act likely would justify exercising special care regarding the award of fees against private parties.

Id.

A view of this question from another perspective may shed light on the solution. If intervenors had prevailed in their motion to vacate the settlement agreement, would it be proper to award fees to intervenors against NRDC? This court believes that it would not be proper. NRDC was seeking to further the implementation of the goals of the Act. If it was determined that its position, although not frivolous, see Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), was not meritorious, NRDC should not be punished or deterred from seeking to enforce what it views as the goals of the Act. This court sees no reason to punish intervenors for attempting to enforce their, non-frivolous view of the Act. The court finds that Congress has not provided the requisite expression of intent to reverse the American Rule against private parties such as the intervenors in this case. NRDC is not, therefore, entitled to attorneys’ fees against intervenors.

II. Reasonable Fees

It is well established that the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This “lodestar” must then be adjusted to coincide with the events of the particular case. The Supreme Court has stated that the “plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees under the statute considered.” Id., 103 S.Ct. at 1943.

A. Number of Hours

An attorneys’ fee application must be sufficiently detailed to allow the court to determine whether the hours claimed are justified. National Association of Concerned Veterans v. Secretary of Defense, (“Concerned Veterans”), 675 F.2d 1319, 1327 (D.C.Cir.1982). In the present case, plaintiffs followed the “better practice” and prepared detailed summaries indicating the work performed by both attorneys for whom fees are sought. Id. The items of work that plaintiffs claim fall into three basic categories: 1. Proceedings before this court involving NRDC’s contempt motion; 2. intervenors’ appeal from this court's March 9, 1979 order denying their joint motion to vacate the consent decree; 3. proceedings before this court on remand concerning EPA’s motion to modify the consent decree. Although Mr. James Taylor Banks served as lead counsel for the NRDC case since 1977, plaintiffs also claim fees for Mr. Ronald J. Wilson, who assisted and supervised Mr. Banks. Plaintiffs request compensation for 569.29 hours of Mr. Bank’s time, and 148.50 hours of Mr. Wilson’s time.

In the first category, plaintiffs claim that Mr. Banks worked in opposition to EPA’s positions for 178 hours and Mr. Wilson for 60 hours. EPA’s main challenge to these claims is that the chores performed by Mr. Wilson are duplicative of those performed by Mr. Banks. It also claims that some of plaintiffs’ claims are simply excessive. This court is in firm agreement with EPA that unnecessary duplication of effort should not be rewarded. It is not always possible, however, to have only one attorney perform each task by himself. As NRDC correctly notes, as many as four EPA attorneys attended meetings at which EPA claims either Mr. Banks or Mr. Wilson was unnecessary. This court does not find, therefore, that Mr. Banks and Mr. Wilson duplicated efforts in this area.

Plaintiffs’ “billing judgment,” however, with regard to certain items may be questioned. The Supreme Court has stated that an attorney must exercise billing judgment in his application for fees from his adversary just as he is ethically bound to do when billing a client. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). Plaintiffs’ claims for preparation of the memorandum in support of their motion for an order to show cause and for preparing interrogatories are excessive. Mr. Banks’ claim should be reduced by fifty hours and Mr. Wilson’s by twenty hours. The other hours claimed are appropriate for the degree of difficulty required by the work that was performed.

Plaintiffs’ claim that in opposing intervenors’ joint motion to vacate the consent decree Mr. Banks spent 83.25 hours and Mr. Wilson 31.50 hours. As noted above, NRDC will not be compensated for time spent opposing positions taken by intervenors.

The second category once again represents time spent in opposition to positions taken by intervenors and will not be compensated.

The third and final category involves work performed by plaintiffs on remand. A large portion of this section represents work done in opposition to intervenors’ motion to vacate on grounds first raised by the court of appeals. This matter is once again on appeal and plaintiffs make no claim for this work, pending the outcome of intervenors’ appeal. The bulk of the remainder of time was spent in opposition to EPA’s motion to modify the consent decree. Mr. Banks spent over one-hundred hours working on discovery requests and motions. EPA argues that this amount of time is excessive because NRDC did not prevail on its discovery motion, and did not substantially benefit from the discovery that it did obtain. This court is in substantial agreement with EPA’s position on this matter. In reviewing plaintiffs’ discovery requests, this court believes that they were overbroad. Furthermore, it is not clear from plaintiffs’ pleadings that the information obtained in discovery was useful in drafting those pleadings. Although a party need not succeed in every phase of the litigation to be awarded attorneys’ fees, all unproductive hours should be eliminated from its application for those fees. See Hensley, 103 S.Ct. at 1940. Plaintiffs’ claim for work done on discovery matters should be reduced by seventy hours. Plaintiffs’ claim for work performed while preparing their memorandum in opposition to EPA’s motion is also excessive and should be reduced by twenty hours.

In summary, plaintiffs will be allowed to recover for 157.19 hours for Banks and 47 hours for Wilson from the EPA.

B. Reasonable Rate

An applicant for attorneys’ fees bears the burden of bringing forth specific evidence of the prevailing community rate for the type of work that he performed in the specific case. The “best evidence” of a reasonable rate is that customarily charged by the applicant. Concerned Veterans, 675 F.2d at 1325. Plaintiffs request a fee of $110 per hour for Mr. Banks and $150 per hour for Mr. Wilson.

Mr. Banks has provided this court with a detailed record of his experience in this area, but he did not provide the court with adequate documentation for his billing rate, e.g., fees awarded in other similar cases. This court believes that, at current market rates, the work performed by Mr. Banks in this case should be compensated at a rate of $85 per hour.

Mr. Wilson is a more experienced attorney, who has been practicing law for over twenty-two years. Once again, however, Mr. Wilson has not provided this court with adequate documentation of actual billings to justify his requested rate. He has indicated that his billing rate is $100-110 per hour for commercial cases. On environmental matters, such as the present case, he charges a reduced rate between $40 and $60 per hour. Although Mr. Wilson is not limited to the rate actually charged in this reduced fee agreement, this rate does not help to document his requested rate. Furthermore, Mr. Wilson participated in this ease in a supervisory capacity, and did not lend his considerable expertise to the day-to-day matters in this case. This court finds that Mr. Wilson should be compensated at a rate of $100 per hour.

C. Adjustment of “Lodestar”

The key factor in the adjustment of the lodestar is the degree of success that the applicant has achieved in the case. The Supreme Court has stated that where an applicant “has obtained excellent results, his attorney should recover a fully compensatory fee.” Hensley, 103 S.Ct. at 1940. This court finds that the plaintiffs in this case have achieved “excellent results” and are entitled to the full amount of the lodestar. Plaintiffs have done nothing to justify any adjustment of the lodestar, let alone an award of 210 percent of that figure. The result in this case was not extraordinary and would not require a fee award of over double the lodestar amount. Furthermore, any delay in payment of the fee is compensated by the award of attorneys’ fees at the current market rate for work performed in this case. See Concerned Veterans, 675 F.2d at 1329.

III. Fees Expended in Preparing Application for Attorneys’ Fees.

It is beyond question that time spent litigating a fee request is itself compensable. See Copeland v. Marshall, 641 F.2d 880, 896 (D.C.Cir.1980). To hold otherwise would thwart the intent of the attorneys’ fees provision of this Act and would penalize plaintiffs who attempt to comply with the requirements of Concerned Veterans, supra. The more difficult problem involves where liability for these fees should fall. The majority of Trilling & Kennedy’s work in preparing this application would have been performed even if intervenors had not entered the case. All of the documentation concerning the reasonable rates for Banks and Wilson would have had to have been prepared. Although the record would have been somewhat less substantial, Trilling & Kennedy would have conducted a review of that record, nonetheless. This court is unable to determine what percentage intervenors added to the work performed by Trilling & Kennedy. Because, as stated above, the bulk of this work was not necessitated by intervenors’ presence in the case, this court finds that EPA is liable for the work done by Trilling & Kennedy.

EPA argues that plaintiffs are not entitled to any remuneration for the preparation of the fee application because they did not enter into any serious fee negotiations. Although meaningful negotiation should be encouraged at all stages of litigation, it is not a prerequisite for obtaining attorneys’ fees under this statute. This court will not write such a restriction into the language of the Act.

Trilling & Kennedy have provided adequate documentation of the number of hours worked on the application. There was some inefficiency caused by the hiring of an outside firm to prepare the application, however, even though that inefficiency was partially compensated for by the reduction of 102.60 hours from the number of hours requested. Furthermore, it appears that an excessively detailed review of the record was conducted. Finally, a significant portion of the application is devoted to arguing that NRDC is entitled to fees against intervenors. As stated above, this argument failed. This court finds that the remaining hours should be reduced to 50 hours for Kennedy & Trilling and 40 hours for Sosnick and Doherty. Furthermore, it is not proper billing judgment to compensate the preparation of the fee application at a higher rate than the preparation of the case-in-chief. Mr. Trilling and Mr. Kennedy, therefore, should be compensated at a rate of $90 per hour, and Ms. Sosnick and Ms. Doherty should be compensated at a rate of $40 per hour. Nothing in the record warrants an upward adjustment of this figure.

An appropriate Order accompanies this Memorandum.

ORDER

This matter comes before the court on the motion of the plaintiffs for attorneys’ fees. After careful consideration of the memoranda submitted by the parties as well as the entire record herein, in it, by the court, this 20th day of June, 1984,

ORDERED that plaintiffs shall be entitled to attorneys’ fees against EPA in the amount of $24,161.15 ($13,361.15 of which represents attorneys’ fees for Banks; $4,700 for Wilson; $4,500 for Trilling and Kennedy and $1,600 for Sosnick and Doherty).

      . This court can find no rationale to justify an award of fees against the government for work performed by NRDC against intervenors. The government should not be held liable for fees incurred in a dispute between private parties. In fact, EPA worked' alongside NRDC and prevailed in its opposition to intervenors’ motions. This court finds that under these circumstances it is not "appropriate” to award fees against EPA.

      . As stated below, a downward adjustment will be made in the hours charged to EPA approximating the time spent applying for fees against intervenors.