Willard M. Noble and Etta M. Noble v. McClatchy Newspapers, a Corporation, Willard M. Noble and Etta M. Noble v. McClatchy Newspapers, a Corporation

537 F.2d 1030

1976-1 Trade Cases 60,905

Willard M. NOBLE and Etta M. Noble, Plaintiffs-Appellees,
v.
McCLATCHY NEWSPAPERS, a corporation, et al., Defendants-Appellants.
Willard M. NOBLE and Etta M. Noble, Plaintiffs-Appellants,
v.
McCLATCHY NEWSPAPERS, a corporation, et al., Defendants-Appellees.

Nos. 72--2021 and 72--2042.

United States Court of Appeals,
Ninth Circuit.

May 20, 1976.

1

Richard Haas (argued), Brobeck, Phleger & Harrison, San Francisco, Cal., for defendants-appellants.

2

Timothy H. Fine (argued), San Francisco, Cal., for plaintiffs-appellees.

ORDER

3

Before BROWNING and TRASK, Circuit Judges, and GRAY,* District Judge.

4

The petition for rehearing was held pending the decision in GTE Sylvania, Inc. v. Continental T.V., Inc., 537 F.2d 980 (9th Cir. 1976). It is now denied.

5

As noted in the opinion in this case (see note 14), this case and GTE Sylvania deal with different questions. This case and Schwinn involve the legality of restrictions upon the territory in which a purchasing dealer may resell. The majority opinion in GTE Sylvania considers whether 'Sylvania's practice of fixing by agreement the locations from which Continental was authorized to sell Sylvania's products was illegal per se under Section 1 of the Sherman Act.' Id. at 982. The majority opinion in GTE Sylvania approves the result reached in this case. However, it disapproves 'any language in the Noble opinion (Noble v. McClatchy Newspapers, 9 Cir., 533 F.2d 1081) that may be inconsistent with any of the majority's language' in GTE. Id. at 1004 n.42. Accordingly, we have reexamined the opinions in both cases. We conclude that there are no inconsistencies between them and therefore make no modification of the language of the opinion in this case.

*

Honorable William P. Gray, United States District Judge, Central District of California, sitting by designation