Unpublished Disposition, 911 F.2d 737 (9th Cir. 1990)
Annotate this CaseBURBANK RENAULT CENTER, INC., doing business as BurbankImports, Hollywood Sport Cars, Inc., and ResedaImports, Ltd., Plaintiffs-Appellants,v.BAUER MOTORS, INC., Southland Motors Corporation, Terry YorkMotor Vars, Ltd., Charles H. Hornburg, Jr. Imported MotorCars, Lee West Enterprises, Inc., doing business as NewportImports, Inc., Rusnak Volkswagen, Inc., Whittlesey Motors,Inc., and Dave Whittlesey, Defendants-Appellees.
No. 89-55366.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 7, 1990.Decided Aug. 10, 1990.
Before HUG, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.
MEMORANDUM*
Appellants are former Los Angeles area Jaguar dealers who ended their relationship with Jaguar after accepting substantial cash settlements beginning in 1986. Upon discovering that the appellees, competing Jaguar dealers, had contributed to the settlement fund, they filed this consolidated action under Sec. 1 of the Sherman Act, 15 U.S.C. § 1 (1988) and the Cartwright Act, Cal.Bus. & Prof.Code Sec. 17200 (West 1997).1 They appeal the district court's order granting the defendants summary judgment on their antitrust claims. We affirm.
* Appellants claim that the appellees engaged in a per se illegal conspiracy with nonparty Jaguar to eliminate them. To prevail on that theory, they must establish
(1) that there was a contract, combination, or conspiracy, i.e., an agreement or concerted action toward a common goal, (2) that the agreement unreasonably restrains trade under either a per se rule of illegality or a rule of reason analysis, and (3) that the restraint affected interstate commerce.
T.W. Elec. Serv. v. Pacific Elec. Contr., 809 F.2d 626, 632-33 (9th Cir. 1987) (quotations and citations omitted).
We need not undertake the complicated inquiry regarding the first and third elements because the second--a restraint of trade directly caused by the alleged conspiracy--is clearly absent. Appellees' agreement to pay Jaguar's proposed vehicle surcharge merely enabled Jaguar to continue negotiations with appellants. Unlike the plaintiff car dealers in United States v. General Motors, 384 U.S. 127 (1966), appellants were not forced to make a decision with a gun at their heads. They had obtained a stay preventing Jaguar from terminating them. See generally Cal.Vehicle Code Sec. 3060 (West 1987). They then spent several months negotiating satisfactory settlements with Jaguar.2 In short, the appellants were ultimately responsible for their own terminations. Accordingly, we cannot say the appellants' agreement to help expand Jaguar's settlement fund "restrained" appellants, within the meaning of the Sherman Act, from continuing to sell Jaguar automobiles.3
II
For these reasons, the judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
They also sued for various business torts under state law which are not at issue in this appeal
The uncontroverted evidence in the record indicates that appellants did not pursue their right to a hearing by the California New Motor Vehicle Board, Cal.Vehicle Code Sec. 3066
For this reason, we also reject appellants' claim under California's Cartwright Act. See McGlinchy v. Shell Chem. Co., 845 F.2d 802, 811 n. 4 (9th Cir. 1988)
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