Stotter & Co. v. Amstar Corp.

OPINION SUR PETITION FOR PANEL REHEARING

WEIS, Circuit Judge.

After petitions for rehearing before the court in banc and, alternatively, before the panel were submitted, further argument was had before the panel. Because of the positions taken by the parties, we think that further comment from us is appropriate.

The appeal was originally submitted to us on a narrow question — did Stotter’s status as a direct purchaser of candy entitle it to pursue antitrust claims based on price-fixing of sugar which was incorporated in the candy? We concluded that suit could be maintained where a refiner, or its subsidiary used its sugar in manufacturing candy which it sold to the plaintiff.

In its petition for rehearing, Borden asserts as a factual matter that sugar refined by Borden was not used in manufacturing the candy it sold to Stotter. The petition is supported by an affidavit prepared after this court’s opinion had been filed. SuCrest, however, did not ask for rehearing and did not join in Borden’s petition! Since the affidavit of Borden was not part of the record in the district court, we do not consider it here. See System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131,1144 n.17 (3d Cir. 1977); Jaconski v. Avisun, 359 F.2d 931, 936 n.11 (3d Cir. 1966). Moreover, Borden’s petition raises a ground it did not urge in its brief or at oral argument.

The district court decided the issue before it as one of law: as to the sugar-containing products it purchased, Stotter was “too remote in the chain of distribution of refined sugar to make a claim . . ..At the original oral argument, counsel for the defendants accurately stated that the question was one of law and spoke of transfer of sugar from one operating unit of a company to another unit of the same company. The issue before us, therefore, was whether Stotter was permitted to maintain a claim as a direct purchaser from Borden of candy manufactured with sugar Borden had refined. The factual question of whether the candy contained Borden sugar was not argued or briefed but was rather assumed as a predicate for the legal problem under consideration. Borden, or any other defendant, of course, is not precluded from now contending on remand to the district court that none of its refined sugar was in the products it sold to Stotter, that it did not engage in a price-fixing conspiracy or that plaintiff did not sustain damages. The district court did not make findings on these factual matters but accepted them arguendo in concluding that Stotter was too far down the chain of distribution to maintain an action.

In the course of our opinion, we referred at times to the plaintiff’s adversaries as “defendants,” and Stotter now contends that we have determined that a claim may properly be asserted against all of the alleged co-conspirators. Stotter reasons that all co-conspirators are jointly and severally liable and, therefore, damages sustained by a direct purchaser from one may be recovered from all or any one of the conspirators. Another variation of this issue was advanced by Stotter during the post-opinion argument; whether Stotter was entitled to recover from Borden or SuCrest for purchases of candy made with sugar received from another alleged co-conspirator, e. g., an unaffiliated company, such as Amstar Corporation. Although these are important points, they were not raised in the district court nor briefed on appeal. We therefore follow our general procedure and do not reach those legal problems at this juncture. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). They are properly matters for the consideration of the district court in the first instance, if they become material to the litigation.

The petition for rehearing will be denied and the case is remanded to the district court for further proceedings.