2021 New Mexico Statutes
Chapter 57 - Trade Practices and Regulations
Article 1 - Restraints of Trade
Section 57-1-1 - Contracts, agreements, combinations or conspiracies in restraint of trade.
Every contract, agreement, combination or conspiracy in restraint of trade or commerce, any part of which trade or commerce is within this state, is unlawful.
History: Laws 1891, ch. 10, § 1; C.L. 1897, § 1292; Code 1915, § 1685; C.S. 1929, § 35-2901; 1941 Comp., § 51-1101; 1953 Comp., § 49-1-1; Laws 1979, ch. 374, § 1; 1987, ch. 37, § 1.
ANNOTATIONSCross references. — For unfair trade practices generally, see 57-12-1 to 57-12-22 NMSA 1978.
For provision that actions of cooperative associations are not in restraint of trade, see 53-4-42 NMSA 1978.
For cooperative marketing associations not being in restraint of trade, see 76-12-18 NMSA 1978.
The 1987 amendment, effective June 19, 1987, deleted the Subsection A designation from the beginning, deleted "hereby declared to be" preceding "unlawful", and deleted Subsection B, concerning controlling the quantity, price or exchange of goods in restraint of trade.
I. GENERAL CONSIDERATION.
Underlying purposes behind both federal and state antitrust laws are same, to establish a public policy of first magnitude; that is, promoting the national interest in a competitive economy. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979).
State action immunity doctrine. — The rationale underlying the state action immunity doctrine does not apply to causes of action brought pursuant to the New Mexico Antitrust Act, which does not implicate the relationship between federal and state governments. City of Sunland Park v. Macias, 2003-NMCA-098, 134 N.M. 216, 75 P.3d 816, cert. denied, 134 N.M. 179, 74 P.3d 1071.
State's trusts policy subject to legislature's control and modification. — The policy of the state with reference to trusts and combinations in restraint of trade as declared in 57-1-1 to 57-1-3 NMSA 1978 is within the control of the legislature and subject to modification by it. Elephant Butte Alfalfa Ass'n v. Rouault, 1926-NMSC-009, 33 N.M. 136, 262 P. 185.
To be violative, contract's object or operation must restrict trade. — In order for a contract to be violative of the statute, it must have been one having for its object, or which would operate to restrict trade or commerce, or control the quantity, price or exchange of article in question. State v. Gurley, 1919-NMSC-017, 25 N.M. 233, 180 P. 288.
Mere refusal to sell, in itself, does not provide basis for relief under this section. Rogers v. Consolidated Distribs., Inc., 1981-NMCA-010, 95 N.M. 467, 623 P.2d 587.
Covenants not to compete. — Covenants not to compete that restrict employment present competing principles: the freedom to contract and the freedom to work. A covenant not to compete is enforceable if the restrictions imposed are reasonable. Whether there is a reasonable restraint depends on the facts of a particular case. Covenants not to compete with reasonable restraints will be enforced when they are not against public policy, and any detriment to the public interest in the possible loss of the services of the covenantor is more than offset by the public benefit arising out of the preservation of the freedom of contract. KidsKare v. Mann, 2015-NMCA-064.
In an action to enforce a covenant not to compete, where the covenant specifically provided for the amendment of any provision found by a court to be overbroad or otherwise unenforceable, and further provided for the enforceability to the maximum extent deemed reasonable by such court, and that all provisions not found to be invalid, illegal or unenforceable, in whole or in part, were to remain intact and enforceable, the district court did not err in reforming the covenant not to compete because the parties agreed to the type of reformation performed by the district court. KidsKare v. Mann, 2015-NMCA-064.
Time period and distance restrictions in covenant not to compete were reasonable. — In an action to enforce a covenant not to compete, a one-year time period and thirty-mile distance restriction were deemed reasonable and enforceable where the defendant conceded that a restriction of one or two years is frequently found to be reasonable in the field of dentistry and evidence showed that ninety percent of plaintiff's patients came from within a thirty-mile radius. KidsKare v. Mann, 2015-NMCA-064.
Fifteen-year noncompetition covenant in contract for sale of insurance business was not void as a restraint of trade. Bowen v. Carlsbad Ins. & Real Estate, Inc., 1986-NMSC-060, 104 N.M. 514, 724 P.2d 223.
Conspiracy to fix prices is per se restraint of trade; this means that the reasonableness of the prices is not an issue, i.e., the "rule of reason" does not apply to per se restraints of trade. State v. Ray Bell Oil Co., 1983-NMCA-068, 101 N.M. 368, 683 P.2d 50, cert. quashed, 101 N.M. 362, 683 P.2d 44, appeal dismissed, 469 U.S. 1030, 105 S. Ct. 498, 83 L. Ed. 2d 391 (1984).
Tying arrangement exists when a seller conditions a buyer's purchase of a desired product (the tying product) on the buyer's agreement to purchase an undesired product (the tied product); a requirement by a manufacturer that its dealers purchase all of the manufacturer's products is a tying arrangement often referred to as "full-line forcing," while a requirement that only a portion of the products be stocked is referred to as "representative-line forcing." Smith Mach. Corp. v. Hesston, Inc., 1985-NMSC-004, 102 N.M. 245, 694 P.2d 501.
Tying analysis should apply even though the business relationship at issue is solely between a manufacturer and a dealer without directly involving the ultimate consumer. Smith Mach. Corp. v. Hesston, Inc., 1985-NMSC-004, 102 N.M. 245, 694 P.2d 501.
Law reviews. — For article, "New Mexico Restraint of Trade Statutes - A Legislative Proposal," see 9 N.M.L. Rev. 1 (1978-79).
For article, "New Mexico Antitrust Law," see 9 N.M.L. Rev. 339 (1979).
For note, "New Mexico Antitrust Law - Tying Arrangements Under the New Mexico Antitrust Act: Smith Machinery Corp. v. Hesston, Inc.," see 16 N.M.L. Rev. 363 (1986).
Annual Survey of New Mexico Commercial Law, see 17 N.M.L. Rev. 219 (1987).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 54A Am. Jur. 2d Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 784 et seq., 795.
Contract to keep out of a particular business as an unlawful restraint of trade, when independent of any other contract, 3 A.L.R. 250, 91 A.L.R. 980.
Right of manufacturer, producer or wholesaler to control resale price, 7 A.L.R. 449, 19 A.L.R. 925, 32 A.L.R. 1087, 103 A.L.R. 1331, 125 A.L.R. 1335.
Restrictive covenants in contracts of employment, 9 A.L.R. 1456, 20 A.L.R. 861, 29 A.L.R. 1331, 52 A.L.R. 1362, 67 A.L.R. 1002, 98 A.L.R. 963.
Combination among farmers, 11 A.L.R. 1185, 130 A.L.R. 1326.
Validity of agreement by bailee of instrumentality to purchase his supplies from bailor, 14 A.L.R. 114, 17 A.L.R. 392.
Application of principles of unfair competition to artistic or literary property, 19 A.L.R. 949.
Combinations or agreements between insurance companies or insurance agents, 21 A.L.R. 543.
Applicability of state antitrust act to interstate transaction, 24 A.L.R. 787.
Cooperative marketing of farm products by producers' associations, 25 A.L.R. 1113, 33 A.L.R. 247, 47 A.L.R. 936, 77 A.L.R. 405, 98 A.L.R. 1406, 12 A.L.R.2d 130.
Boycott as violating antitrust laws or statutes prohibiting combinations in restraint of trade, 27 A.L.R. 656, 32 A.L.R. 779, 116 A.L.R. 484.
Accessories, right of manufacturer to make its warranties conditional on nonuse of accessories manufactured by others, and to require its agents not to handle them, 29 A.L.R. 235.
Cemetery association's regulations as to improvement or care of lots as in restraint of trade, 32 A.L.R. 1417, 47 A.L.R. 70.
Public policy in respect of associations or combinations of public contractors and their rules and regulations, 45 A.L.R. 549.
Application of antitrust acts to combinations to maintain prices of commodities as affected by reasonableness of prices fixed, 50 A.L.R. 1000.
Custom or contractual obligation against making for third person machine or device similar to that which one has contracted to make for another, 54 A.L.R. 1219.
Stockholder's agreement not to engage in business in which corporation is engaged, 63 A.L.R. 316.
Territorial scope permissible in covenants ancillary to sale of business or corporate stock against engaging in similar business, 78 A.L.R. 1038.
Contract by seller of air transport business against engaging in competing business, 83 A.L.R. 378, 99 A.L.R. 173, 155 A.L.R. 1026.
Contract against use of property for specified purpose independent of any other contract, 91 A.L.R. 980.
Constitutionality of statute as to combinations in restraint of trade which predicates criminality upon reputation or repute, 92 A.L.R. 1235.
Collective labor agreements as in restraint of trade, 95 A.L.R. 25.
Contract for manipulation of securities for purpose of cornering market, 115 A.L.R. 283.
Statute or ordinance as to weighing of merchandise sold in load or bulk lot as restraint of trade, 116 A.L.R. 246.
Validity of covenant by seller of business not to enter employment of customers, clients or patrons of the business, 119 A.L.R. 1452.
Legality of combination among building or construction contractors, 121 A.L.R. 345.
Validity and effect of lessee's covenants as regards his activities after expiration of lease, 122 A.L.R. 1031.
Original contract of employment, validity and enforceability of making of restrictive covenant not included in, but included in subsequent contract for continuance of employment, 152 A.L.R. 415.
Provisions of articles or bylaws of nonprofit corporation or association formed by business competitors whereby the amount of dues of respective members varies according to the amount of business done by them, as contrary to public policy, 161 A.L.R. 795.
Validity of contract for exclusive participation of person participating in or connected with entertainment enterprise, 175 A.L.R. 631.
Discounts permissible under Robinson-Patman amendment to the Clayton Act, 1 A.L.R.2d 276.
Statute prohibiting restraint on profession, trade or business as applicable to restriction in agency contracts, 3 A.L.R.2d 522.
Restrictive agreement or covenant in respect of purchase or handling of petroleum products by operator of filling station as in restraint of trade or in violation of antitrust statute, 26 A.L.R.2d 219.
Enforceability of restrictive covenant, ancillary to employment contract, as affected by duration of restriction, 41 A.L.R.2d 15.
Enforceability of covenant against competition, ancillary to sale or other transfer of business, practice, or property, as affected by duration of restriction, 45 A.L.R.2d 77, 13 A.L.R.4th 661.
Enforceability of covenant against competition, ancillary to sale or other transfer of business, practice or property, as affected by territorial extent of restriction, 46 A.L.R.2d 119, 13 A.L.R.4th 661.
Validity, construction, and effect of lessor's covenant against use of his other property in competition with the lessee-covenantee, 97 A.L.R.2d 4.
Validity and construction of contractual restrictions on right of medical practitioner to practice, incident to sale of practice, 62 A.L.R.3d 918.
Validity and construction of contractual restrictions on right of medical practitioner to practice, incident to partnership agreement, 62 A.L.R.3d 970.
Validity and construction of contractual restrictions on right of medical practitioner to practice, incident to employment agreement, 62 A.L.R.3d 1014.
Statute prohibiting buyer or seller of commodities from fixing prices in one locality higher or lower than in another, 67 A.L.R.3d 26.
Application of state antitrust laws to activities or practices of real estate agents or associations, 22 A.L.R.4th 103.
Validity, construction, and application of state statutory provision prohibiting sales of commodities below cost - modern cases, 41 A.L.R.4th 612.
Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 41 A.L.R.4th 675.
Provisions of insurance company's contract with independent insurance agent restricting competitive placements by agent as illegal restraint of trade under state law, 42 A.L.R.4th 1072.
Propriety, under state law, of manufacturer's or supplier's refusal to sell medical product to individual physician, hospital, or clinic, 45 A.L.R.4th 1006.
Health provider's agreement as to patient's copayment liability after award by professional service insurer as unfair trade practice under state law, 49 A.L.R.4th 1240.
Covenants to reimburse former employer for lost business, 52 A.L.R.4th 139.
Enforceability of sale-of-business agreement not to compete against nonsigner or nonowning signer, 60 A.L.R.4th 294.
Anticompetitive covenants: aerial spray dust business, 60 A.L.R.4th 965.
Constitutional right to jury trial in cause of action under state unfair or deceptive trade practices law, 54 A.L.R.5th 631.
Damages recoverable by victim of discrimination in violation of Robinson-Patman Act, 9 A.L.R. Fed. 279.
Validity, construction and application of provisions of Robinson-Patman Act regarding furnishing services or facilities, 24 A.L.R. Fed. 9
Reciprocal dealing as violation of Sherman Antitrust Act (15 USC § 1 et seq.) and Clayton Antitrust Act (15 USC § 12 et seq.), 69 A.L.R. Fed. 330.
Fraudulent concealment, so as to toll statute of limitations, as presenting common question of proof in antitrust class action, 70 A.L.R. Fed. 498.
"Target area" doctrine as basis for determining standing to sue under § 4 of Clayton Act (15 USC § 15) allowing treble damages for violation of antitrust laws, 70 A.L.R. Fed. 637.
"Sham" exception to application of Noerr-Pennington Doctrine, exempting from federal antitrust laws joint efforts to influence governmental action, 71 A.L.R. Fed. 723.
Standing of private party under § 16 of Clayton Act (15 U.S.C. § 26) to seek injunction to prevent merger or acquisition allegedly prohibited under § 7 of the act (15 U.S.C. § 18), 78 A.L.R. Fed. 159.
Vertical restraints on sales territory or location as violative of § 1 of Sherman Act (15 USC § 1) - post-GTE Sylvania cases, 92 A.L.R. Fed. 436.
58 C.J.S. Monopolies §§ 19, 56 et seq.
II. PARTIAL, REASONABLE OR INCIDENTAL RESTRAINT.
Partial and reasonable restraints with consideration are valid. — Contracts only in partial restraint of any particular trade or employment, if founded upon a sufficient consideration, are valid and enforceable, if the restraint be confined within limits which are no larger and wider than the protection of the party with whom the contract is made may reasonably require. Nichols v. Anderson, 1939-NMSC-028, 43 N.M. 296, 92 P.2d 781; Excelsior Laundry Co. v. Diehl, 1927-NMSC-007, 32 N.M. 169, 252 P. 991.
Some restrictive franchise provisions may be valid. — Franchise agreement prohibiting sale of competing products from a specified location was a partial and reasonable restraint of trade and did not violate this section. Yarborough v. Harkey, 1960-NMSC-064, 67 N.M. 204, 354 P.2d 137.
Anti-competition agreement void unless incidental to general or principal transaction. — A naked agreement by one party not to engage in business in competition with another party is in contravention of public policy and therefore void, unless such agreement and restriction be incidental to some general or principal transaction. Its main object must not be to stifle competition. Nichols v. Anderson, 1939-NMSC-028, 43 N.M. 296, 92 P.2d 781; Gross, Kelly & Co. v. Bibo, 1914-NMSC-085, 19 N.M. 495, 145 P. 480.
Refraining from engaging in business valid if subsidiary. — An agreement to refrain from engaging in a certain business or profession within reasonable limits of time and place is valid if subsidiary to other legitimate purposes such as the sale or disposal of property, business or good will. Nichols v. Anderson, 1939-NMSC-028, 43 N.M. 296, 92 P.2d 781; Thomas v. Gavin, 1910-NMSC-060, 15 N.M. 660, 110 P. 841; Gallup Elec. Light Co. v. Pacific Improvement Co., 1911-NMSC-012, 16 N.M. 86, 113 P. 848; Gross, Kelly & Co. v. Bibo, 1914-NMSC-085, 19 N.M. 495, 145 P. 480; Gonzales v. Reynolds, 1929-NMSC-018, 34 N.M. 35, 275 P. 922.
III. PROOF OF RESTRAINT.
Compliance with federal substantive law as it relates to oligopolies. — To ensure uniform application of federal and state laws in antitrust actions under the Antitrust Act, 57-1-1 to 57-1-15 NMSA 1978, involving oligopolies, such as the tobacco industry, which are by nature interdependent such that it is likely that when one company acts in a certain manner, the other firms will determine whether it is in their best interest to follow the leader's action, plaintiffs must meet the standard of federal substantive antitrust law which requires that to show that there was an unlawful agreement, plaintiffs must present evidence that tends to exclude the possibility that defendants acted independently or plaintiffs cannot meet their burden of establishing a genuine issue of material fact to withstand summary judgment for defendants. Romero v. Philip Morris, Inc., 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280, rev'g, 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873.
Evidence of "plus factors" did not exclude the possibility of independent action. — Where plaintiffs alleged that defendants engaged in an agreement to fix the price of cigarettes; defendants were large manufacturers of cigarettes; defendant Philip Morris reduced wholesale prices on all brands; the other defendants followed the price reductions; defendants then began to increase wholesale prices in near lock-step fashion; and plaintiffs offered evidence of parallel pricing behavior, the economies of the market place, motivation to conspire, condensation of price tiers, actions contrary to self-interest, conspiratorial meetings in foreign markets, a smoking and health conspiracy, defendants monitoring the market through a business data service, opportunities to conspire, and pricing decisions made at high levels, the district court properly granted summary judgment for defendants, because plaintiffs' evidence was just as consistent with lawful, independent actions as it was with price fixing and did not exclude independent conduct that was required to raise a genuine issue of material fact that there was an agreement among defendants to fix the price of cigarettes and, because defendants offered evidence of fierce retail competition that undermined the plausibility of a price-fixing agreement, that wholesale prices did not exceed the wholesale price levels that existed at the time defendants began to lower prices until almost five years later, and that plaintiffs' expert acknowledged that it was just as likely that defendants would have behaved in the same manner if they were acting independently and not under a price-fixing agreement. Romero v. Philip Morris, Inc., 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280, rev'g 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873.
Conscious parallelism. — Behavior of market participants that is characterizable as mere conscious parallelism, which is parallel price changes by firms in a concentrated market who recognize their independence, does not satisfy the conspiracy element required by 57-1-1 NMSA 1978. Romero v. Philip Morris, Inc., 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873; rev'd, Romero v. Philip Morris, Inc., 2010-NMSC-035,148 N.M. 713, 242 P.3d 280.
Evidence to rule out conscious parallelism. — Testimony by a qualified economics expert that the character or degree of parallelism actually exhibited by prices exceeds the parallelism that economic theory predicts would result from independent competitive behavior is evidence that tends to exclude the possibility that firms in a concentrated market acted independently. Romero v. Philip Morris, Inc., 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873; rev'd, Romero v. Philip Morris, Inc., 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280.
Where the plaintiff alleged that cigarette manufacturers conspired during a seven year period to fix the prices of cigarettes in New Mexico and where the plaintiff's evidence showed that during the seven year period the tobacco industry exhibited an unprecedented degree of parallelism; what had previously been ten price tiers had been consolidated into two price tiers; twelve in-tandem increases occurred in the prices of both premium and discount cigarettes; the multi-variable, multi-price-tier parallelism went well beyond the price leadership within a single-tier market demonstrated by the cigarette industry prior to the introduction of generic cigarettes; and the parallelism involved parallelism among market tiers that formerly had been in vigorous competition, the evidence allowed a reasonable fact finder to reject conscious parallelism as a plausible explanation for the parallelism in the cigarette industry, thereby leaving the competing inference of conspiracy as the most likely explanation for the parallelism. Romero v. Philip Morris, Inc., 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873; rev'd, Romero v. Philip Morris, Inc., 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280.
To establish an antitrust law violation, the plaintiff must show a conspiracy or combination among two or more persons and an unreasonable restraint of trade due to this combination or conspiracy. Clough v. Adventist Health Sys., Inc., 1989-NMSC-056, 108 N.M. 801, 780 P.2d 627.
Mere contacts and communications, or the mere opportunity to conspire, among antitrust defendants is insufficient evidence from which to infer an anticompetitive conspiracy in the context of the denial of hospital surgical privileges. Clough v. Adventist Health Sys., Inc., 1989-NMSC-056, 108 N.M. 801, 780 P.2d 627.
Must show scheming and attempt to combine with others. — Where contract between distributor and manufacturer is alleged to violate antitrust acts as in restraint of trade, it is not enough to show that the manufacturer has schemed and labored to effect restraint of trade. It must be shown that it has contracted or combined with others to that end. W.T. Rawleigh Co. v. Jones, 1935-NMSC-056, 39 N.M. 381, 47 P.2d 906.
Proof of per se illegal tying arrangement. — To prevail on a claim that a tying arrangement is per se illegal, a plaintiff must prove the existence of three distinct elements: (1) a scheme involving two distinct products whereby a buyer must purchase the tied product in order to obtain the tying product; (2) a seller possessing sufficient economic power in the tying product market to appreciably restrain competition in the tied product market; and (3) an arrangement affecting a not insubstantial amount of commerce. Smith Mach. Corp. v. Hesston, Inc., 1985-NMSC-004, 102 N.M. 245, 694 P.2d 501.
Prima facie case of per se antitrust violation in tying arrangement was presented where dealer was compelled to purchase tractors in order to obtain windrowers and other equipment, where manufacturer's economic power in tying product was demonstrated by a 30% market share and where amount of commerce foreclosed ranged from $100,000 to $300,000. Smith Mach. Corp. v. Hesston, Inc., 1985-NMSC-004, 102 N.M. 245, 694 P.2d 501.
Indictment which shows only large profit alleges no violation. — An indictment under this section or 57-1-2 NMSA 1978 alleging a contract whereby another would obtain the selling agency for all broom corn produced by farmers in the vicinity, and would sell it to defendant at $150 per ton, when it was then worth $350 per ton, did not show a violation of the statute. State v. Gurley, 1919-NMSC-017, 25 N.M. 233, 180 P. 288.
Allegations insufficient if related only to interstate sales. — Allegations of the proposed counterclaim held insufficient where, even though filed pursuant to New Mexico statutes, they related solely to purchases and sales made in interstate commerce and contained no allegations of an unlawful agreement, combination or conspiracy to restrict or monopolize trade or commerce within the state of New Mexico as required by 57-1-1 through 57-1-3 NMSA 1978. State ex rel. Pennsylvania Transformer Div. v. Electric. City Supply Co., 1964-NMSC-136, 74 N.M. 295, 393 P.2d 325.
Both interstate and intrastate violations alleged. — Assuming, arguendo, that the New Mexico antitrust and price discrimination statutes involved apply only to intrastate commerce, plaintiffs' affidavit accompanying their opposition to the defendant's motions to dismiss averred that plaintiffs complained of unfair competition within New Mexico as well as between New Mexico and Texas distributors, and since the mere fact that plaintiffs' volume had increased would not negate the possibility of actual harm, the motions to dismiss were denied. Ingram v. Phillips Petroleum Co., 252 F. Supp. 674 (D.N.M. 1966).
Issue of competition involves questions of geographic proximity and marketing practices. Where one defendant company had distributed entirely through jobbers and with the company itself absorbing any loss as a result of price reductions in the area during the period in question so that all jobbers retained the same profit margin before and after the alleged price discrimination, and furthermore, where the nearest jobber to plaintiff was too distant geographically (54 miles) to be considered in competition with him, it was held that plaintiff itself negated any possibility of establishing a competitive relationship with defendant under either the United States or New Mexico antitrust laws, and that defendant's pricing policies, different from the policies of the other defendants, were inconsistent with plaintiffs' conspiracy count which basically alleged selective price reductions to monopolize the gasoline distributors market; thus, in the absence of any basis for allegations of competition or conspiracy on the part of defendant, the claims against it were dismissed and its motion for summary judgment was granted. Ingram v. Phillips Petroleum Co., 252 F. Supp. 674 (D.N.M. 1966).
Transcript must show lack of alleged violator's justification. — Where plaintiff sued board of realtors alleging a combination in restraint of trade, a combination tending to monopolize trade and that he was injured by the alleged combination, but where there was no reference in the transcript to items which tended to show or raise a factual issue as to lack of justification for the board's practices, as was required by former 21-2-1(15)(6), 1953 Comp., the trial court's summary judgment was affirmed on procedural grounds by the court of appeals. Wilson v. Albuquerque Bd. of Realtors, 1971-NMCA-090, 82 N.M. 717, 487 P.2d 145.
Preclusion based on insufficiency of evidence. — Where a plaintiff argued that preclusion should not have applied because he was not given an opportunity in the state case to pursue discovery to prove his conspiracy claims and that defendants intentionally withheld information in the state case, and where the plaintiff maintained that because the state court summary judgment was based on insufficiency of the evidence, rather than litigation of actual factual issues, preclusion did not apply, preclusion still applied; the plaintiff was afforded a full and fair opportunity to litigate his claims, there was no evidence that defendants had fraudulently withheld evidence, and the state court had considered the merits of all the claims. Clough v. Rush, 959 F.2d 182 (10th Cir. 1992).
Wholesalers may refuse to sell when goods used illegally. — These provisions do not make it unlawful for either a wholesaler or a group of wholesalers to refuse to sell their goods to a firm or individual intending to use them in contravention of law. 1943 Op. Att'y Gen. No. 43-4402.
City ordinance should regulate hotel's solicitation on railroad station grounds. — The practice of a railroad company in excluding from its station grounds solicitors for certain hotels for the benefit of other hotels should be regulated by city ordinance. 1913 Op. Att'y Gen. 13-1054.
