Case No. 02-60444-CIV-MARRA Magistrate Judge Seltzer
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
--------------------------------------------x
TIRES INCORPORATED OF BROWARD,
Plaintiff,
-against-
THE GOODYEAR TIRE & RUBBER COMPANY, MARTINO TIRE COMPANY, MARTINO TIRE CO. OF PLANTATION, MARTINO TIRE CO. OF NOB HILL, MARTINO TIRE CO. OF HALLANDALE, WAL-MART STORES, INC., SAM'S WEST, INC., SEARS, ROEBUCK AND CO., TIRESOLES OF BROWARD, INC., LIBERTY TIRE & RUBBER, INC., and AMERICAN TIRE DISTRIBUTORS, INC.,
Defendants.
---------------------------------------------x
Plaintiff, by its attorneys, as and for its 2nd amended complaint ("complaint"), respectfully alleges:
1. This controversy involves sections 1, 4, 4B, 12 and 16 of the Clayton Act (15 U.S.C. sections 12, 15(a), 15B, 22 and 26); and sections 2(a), 2(d), 2(e) and 2(f) of the Robinson-Patman Act, 15 U.S.C. sections 13(a), 13(d), 13(e) and 13(f), and 28 U.S.C. section 1337.
2. This Court has original jurisdiction over the antitrust claims under 28 U.S.C. section 1337(a) and 15 U.S.C. section 15(a), as hereinafter more fully appears. Also, this Court has supplemental jurisdiction over the state claims.
3. Each of the defendants is doing business (and, alternatively, "transacting business") in Florida and this Court has personal jurisdiction over each of the defendants as a result.
4. Each of the defendants (i) is doing business (and, alternatively, "transacting business") in the Southern District of Florida and (ii) venue as to each of the defendants is appropriate under 15 U.S.C. sections 15 and 22, and 28 U.S.C. section 1391(b).
5. Each of the defendants is "transacting business" in the Southern District of Florida with a substantial annual dollar amount of purchases from manufacturers and others and sales to automobile and truck owners, businesses and other customers, and venue as to each of the defendants is appropriate under 15 U.S.C. section 22, and, alternatively, 28 U.S.C. section 1391(b).
6. Plaintiff, a distributor of "Automotive Tires", including tires for˙automobiles and light trucks and other automotive vehicles, and large, commercial or heavy-duty tires for large trucks (hereinafter, "Tires") in the Automotive Tire Aftermarket is suing one tire manufacturer and 10 local competitors (i) as to Goodyear, for selling tires at substantially lower prices per tire to plaintiff's competitors, and (ii) as to plaintiff's competitors, for inducing and knowingly receiving volume discounts, rebates, allowances, fees, sham advertising and promotional payments, and excessive payments for services purportedly performed for Goodyear, which have enabled the defendant competitors to buy their Tires from Goodyear at approximately 15%-40% less than the per-unit price paid by the plaintiff when purchasing tires of the same grade and quality from Goodyear, as set forth in paragraphs 53-54 and Schedules A-F hereto.
7. As to Wal-Mart and Sam's Club and possibly Sears and American Tire, Goodyear is selling at, near or below cost to said defendants, and making up this lack of profitability by selling Tires of like grade and quality to the plaintiff and other small Tires distributors at substantially higher prices per unit, equal to about 167% of the price paid by the most favored defendant competitors (i.e., Wal-Mart and Sam's Club).
8. As a result, the defendant competitors are able to and do offer and resell these Goodyear-made Tires to their customers at per-unit prices substantially lower than plaintiff is able to offer and sell the matching tires. This discrimination in price is threatening to put plaintiff out of business, and has already put thousands of smaller Tire companies in the United States out of business during the past 12 years, and has caused an increase in market share for the top tire retailers in the United States during the past 12 years.
9. Defendant competitors have been favored by Goodyear with a substantial price difference, compared with the price Goodyear charges to plaintiff, during the past 4 years or more preceding the commencement of this action for Tires of like grade and quality as set forth in Schedules A-F.
10. Plaintiff seeks substantially more than $5 million in actual damages and a permanent injunction prohibiting all defendants from committing further violations of the Robinson-Patman Act, and prohibiting the defendant competitors from opening up any further branches to compete with plaintiff (or in the case of Goodyear, selling Tires to any further branches of the defendant competitors) as long as said defendants continue to violate the Act.
11. Plaintiff, Tires Incorporated of Broward ("plaintiff"), a Florida corporation incorporated in 1987, is in the business of selling tires to consumers and businesses in the tire aftermarket. Plaintiff functions as a wholesaler (25%), retailer ("retail-commercial", 40%, for which state sales taxes are collected), and exporter (to retailers as well as end users, 35%).
12. Plaintiff's only location since inception to the present is at 1371 S. W. 8th Street, Suite 8, Pompano Beach, Florida 33069.
13. Plaintiff's marketing area for about 90% of its Florida sales is within a radius of about 15 miles from plaintiff's location.
14. Plaintiff also sells tires to business customers in various United States possessions and in the West Indies (as defined in paragraph 57-b below), in competition with some of the defendant competitors, including the Martino Defendants, Sears, Wal-Mart and Sam's Club (as defined in paragraphs 21-46 below).
15. At all relevant times, the only tires being purchased by plaintiff from Goodyear were Kelly or Kelly-Springfield brand tires.
16. Defendant, The Goodyear Tire & Rubber Company ("Goodyear"), is an Ohio corporation incorporated in 1897 with its principal place of business at 1144 E. Market St., Akron, Ohio 44316 and a Florida address at 1500 N.E. 5th Avenue, Pompano Beach, Florida 33054.
17. Goodyear is doing business in Florida.
18. Goodyear is in the business of manufacturing tires, and selling tires to tire wholesalers and retailers in Florida and elsewhere in the United States, and possessions, in the Automotive Tire Aftermarket (as defined in paragraphs 51 and 56 below) and in the geographic market defined in paragraph 57 below.
19. Goodyear has approximately 10,000 wholesalers and retailers which distribute Goodyear tires (under various brand names and private brand names) in the United States, and about 6 wholesalers and retailers in the marketing area in Florida being serviced by plaintiff.
20. Goodyear's annual sales of tires amounts to many billions of dollars.
21. Defendant, Martino Tire Company ("Martino"), upon information and belief, is a Florida corporation, with its principal place of business at 1280 S.W. 27th Avenue, Pompano Beach, Florida 33069 (2.6 miles away from plaintiff's location), and another location at 1280 Riverland Road, Fort Lauderdale, Florida 33312 (9.6 miles away).
22. Defendant, Martino Tire Co. of Plantation ("Martino-Plantation"), upon information and belief, is a Florida corporation, with its principal place of business at 7777 W. Sunrise Boulevard, Fort Lauderdale, Florida 33322 (10 miles away from plaintiff's location).
23. Defendant, Martino Tire Co. of Nob Hill ("Martino-Nob Hill"), upon information and belief, is a Florida corporation, with its principal place of business at 1124 S.W. 101st Road, Fort Lauderdale, Florida 33324 (13.3 miles away from plaintiff's location).
24. Defendant, Martino Tire Co. of Hallandale ("Martino-Hallandale"), a/k/a "Martino Tire-Hallandale", upon information and belief, is a Florida corporation, with its principal place of business at 117 W. Hallandale Beach Boulevard, Hallandale, Florida 33009 (17.4 miles away from plaintiff's location).
25. Each of Martino, Martino Plantation, Martino Nob HIll and Martino-Hallandale (the "Martino Defendants") is in the business of selling tires to consumers and businesses in the Automotive Tire Aftermarket.
26. Defendant, Wal-Mart Stores, Inc. ("Wal-Mart"), upon information and belief, is a Delaware corporation with its principal place of business at 702 S.W. 8th Street, Bentonville, Arkansas 72716 and during late 2002, Wal-Mart opened up a supercenter on Powerline Rd, Pompano Beach, Florida 33073, less than 1 mile away from plaintiff's location.
27. Until transfer of its Sam's Club division to Sam's West, Inc., Wal-Mart had Sam's Club stores at 950 University Drive, Fort Lauderdale, Florida 33071 (8 miles away); and 13550 W. Sunrise Boulevard, Fort Lauderdale, Florida 33323 (14 miles away).
28. Wal-Mart, through its Wal-Mart and Sam's Club stores, is in the business of selling goods of various types, including tires to consumers and businesses in the Automotive Tire Aftermarket.
29. As of late 2001, Wal-Mart had approximately 2,485 retail stores (including 682 Wal-Mart Supercenters) throughout the United States, serving more than 100 million customers weekly in the 50 states, and with annual sales exceeding $220 billion, and with such sales has brought pressure on Goodyear and other tire manufacturers to give Wal-Mart (and Sam's Club) substantially lower per-unit prices than given by Goodyear to plaintiff and others competing in the tire business.
30. Defendant Wal-Mart also operated Sam's Club ("Sams Club"), a division of Wal-Mart, at all relevant times until Sam's Club was transferred on or about January 29, 1999 to a newly-incorporated Arkansas corporation, Sam's West, Inc.
31. Defendant, Sam's West, Inc. (also referred to as "Sam's Club"), is an Arkansas corporation incorporated on January 29, 1999 with its principal place of business at 702 S.W. 8th Street, Bentonville, Arkansas 72716, and has a place of business in Florida at 950 University Drive, Fort Lauderdale, Florida 33071 (8 miles away); and 13550 W. Sunrise Boulevard, Fort Lauderdale, Florida 33323 (14 miles away).
32. Since 1983, Sam's Club has been in the business of selling a limited line of passenger and light-truck tires to automotive owners and to businesses for use or resale.
33. As of 2002, Sam's Club has more than 46,000.000 members, more than 500 retail stores throughout the United States, annual sales of more than $29 billion, with annual sales of Tires amounting to an estimated $1 billion.
34. Wal-Mart and Sam's Club economically coerce Goodyear to sell them Tires (as described in Schedules A-F) at per-unit prices lower than any other customer of Goodyear, which per-unit prices are at, slightly above, or below Goodyear's direct costs.
35. Defendant Sears, Roebuck and Co. ("Sears"), was established in 1886 and incorporated under New York law in 1906, with its principal place of business at 3333 Beverly Road, Hoffman Estates, Illinois 60179, is in the retail department-store business of selling goods of various types, including various lines of tires to consumers and businesses in the tire aftermarket sold through the Sears stores and/or adjacent "Sears Auto Centers".
36. Sears in its website (www.sears.com) states that "Sears Auto Center is America's #1 Tire Store with brands you trust like Michelin, Goodyear, Bridgestone, Dunlop, Pirelli, and more", and offers to and does sell its tire inventory through website sales throughout the United States.
37. Sears has a chain of approximately 800 retail department stores throughout the United States, with locations at: 2251 N. Federal Highway, Pompano Beach, Florida 33062 (2 miles away); 532 E. Sunrise Boulevard (901 N. Federal Highway), Fort Lauderdale, Florida 33304 (7 miles away); 9565 W. Atlantic Boulevard, Coral Springs, Florida 33071 (7.9 miles away); 5900 W. Glades Road, Boca Raton, Florida 33432 (9 miles away); IBM Global Svcs/Sears Roebuck, 6801 W. Sunrise Boulevard, Fort Lauderdale, Florida 33313 (9.5 miles away); and 8000 W. Broward Boulevard # 100, Fort Lauderdale, Florida 33388 (11.3 miles away).
38. Sears forces Goodyear to sell to Sears at per-unit prices slightly higher than Goodyear's prices to Wal-Mart and Sam's Club, which prices are slightly above, or equal to Goodyear's direct costs.
39. Defendant, Tiresoles of Broward, Inc. ("Tiresoles"), upon information and belief, is a Florida corporation, with its principal place of business at 919 S. Dixie Highway East, Pompano Beach, Florida 33060 (1.3 miles away); an additional location at 5700 Royal Palm Boulevard, Pompano Beach, Florida 33063 (4.9 miles away); and about 3 other locations, some of which sell only light-truck and automobile tires.
40. Tiresoles is in the business of selling tires to consumers and businesses in the Automotive Tire Aftermarket with most of Tiresoles' sales being light-truck and medium-commercial tires to businesses.
41. Defendant, Liberty Tire & Rubber, Inc. a/k/a Liberty Tire ("Liberty"), upon information and belief, is a Florida corporation, with its principal place of business at 4201 S. State Road 7, David (Ft. Lauderdale), Florida 33314 (12.7 miles away), and an additional place of business (until early 2001) at 4866 N. Powerline Rd., Pompano Beach, Florida 33073 (4 miles away) (selling automotive tires, including automobile tires, light-truck tires and heavy-duty truck tires), as set forth in Schedules A-F, in the Automotive Tire Aftermarket defined in paragraphs 51 and 56 below.
42. Liberty is in the business of selling tires, including the tires described in Schedules A-F, to consumers and businesses in the Automotive Tire Aftermarket.
43. Defendant, America Tire Distributors, Inc. [should read "American Tire Distributors, Inc.] ("American Tire"), upon information and belief, is a Delaware corporation, with its principal place of business at 814 E. Main St., Lincolntown, North Carolina 28092 and with branches at 16542 N.W. 54th Avenue, Miami, Florida 33014 (27-27 miles away). During June, 2002, American Tire changed its name from Heafner Tire Group, Inc.
44. American Tire, which bought Interstate Tire Company ("Itco") during 1997, operates a chain of tire warehouses, including 35 located in the southeast.
45. American Tire is in the business of selling tires to commercial customers for resale by them in the Automotive Tire Aftermarket.
46. American Tire is selling and delivering Tires as described in Schedules A-F to commercial customers (including customers of plaintiff) with branches located within 15 miles of plaintiff's place of business, as well as to plaintiff's customers located in U.S. possessions outside of the territorial United States.
47. The defendant competitors, identified in paragraphs 21-46 above, are hereinafter collectively referred to as the "Defendant Competitors". Said defendants acted on a concerted basis with defendant Goodyear and participated jointly and severally in the activities alleged in this complaint.
48. The plaintiff competes with each of the defendant competitors for sales of Tires as described in Schedules A-F in plaintiff's Relevant Geographic Market (i) at the wholesale and retail levels of distribution (secondary line competition), and (ii) to jobbers, retailers and end users (tertiary-line competition).
49. Plaintiff competes indirectly with defendants Wal-Mart, Sam's Club and Sears, which are taking sales away from plaintiff's customers, and directly, to a lesser extent, by the taking away of retail sales directly from plaintiff. Plaintiff competes directly with American Tire, Martino Defendants, Tiresoles and Liberty at the wholesale level, with such defendants taking away sales plaintiff had been making to plaintiff's customers and would have made to others, and directly with Martino Defendants, Tiresoles and Liberty at the retail level through such defendants taking away retail sales plaintiff had been making to retail customers and would have made to others.
50. All sales by the defendant competitors using an internet website are competitive with the plaintiff to the extent that such sales are delivered into the Relevant Geographic Market.
51. The products involved are new automobile tires, light-truck tires and heavy-duty truck tires for sale as replacement tires after the automobiles, trucks and other vehicles have been built (called the "Automotive Tire Aftermarket" or "tire aftermarket" and with the described products being referred to as "Tires", as described in paragraphs 53-54 and Schedules A-F) .
52. Goodyear sells private label tires to defendants Wal-Mart, Sam's Club, Sears, American Tire and Martino Defendants (as alleged in paragraph 61 below) which are otherwise identical (or of equal grade and quality) to the Kelly tires purchased, at the same time, by plaintiff from Goodyear at substantially lower prices per unit (as described in Schedules A-F), without making any of the private-label tires available to the plaintiff.
53. The specific size, brand and grade of private-brand tire sold by Goodyear to such other defendants and the size, brand and grade of Kelly tire sold by Goodyear to plaintiff is set forth by defendant in the following schedules annexed hereto: Schedule A as to each of the Martino Defendants; Schedule B as to each of defendants Wal-Mart and Sam's Club; Schedule C as to defendant Sears; Schedule D as to defendant Tiresoles; Schedule E as to defendant Liberty; and Schedule F as to defendant American Tire. Each set of matched Kelly vs. private-brand tires described in any of said Schedules A to F has substantially identical chemical and physical properties and the two matched Kelly v. private brand tires are of like grade and quality to each other.
54. The specific size, brand and grade of Goodyear, Kelly-Springfield or other Goodyear branch tire sold by Goodyear to such other defendants and the size, brand and grade of Kelly tire sold by Goodyear to plaintiff is set forth by defendant, respectively, in said Schedules A through F. Each set of matched Kelly vs. Goodyear, Kelly or other Goodyear brand tires in any of said Schedules A to F has substantially identical chemical and physical properties, and the two matched tires are of like grade and quality to each other.
55. Each of the defendant competitors has conspired with Goodyear, as co-conspirators, in furtherance of the violations of the Robinson-Patman Act alleged herein, has made statements and admissions which are admissible in evidence against Goodyear.
56. The relevant product market is the Automotive Tire Aftermarket, as described in paragraph 51 above (as listed with specificity in paragraphs 53-54 and Schedules A-F), with the "aftermarket" referring to the market and replacement market for such goods for automobiles, trucks and other vehicles after they have been manufactured.
57. The Relevant Geographic Market for the plaintiff is (a) as to Florida, within a radius of approximately 15 miles from the plaintiff's location except as to defendant American Tire (which competes within said 15-mile radius by deliveries into the area from its warehouse located about 25 miles away from plaintiff's location), and (b) in the U.S. possession of the Virgin Islands where plaintiff also sells tires, by sale and delivery from plaintiff's single location in Pompano Beach, Florida (including drop shipments directly from Goodyear to plaintiff's customers).
58. Each of defendant competitors has one or more locations within the plaintiff's Relevant Geographic Market described in "(a") of paragraph 57 above, or is making deliveries to customer locations within plaintiff's Relevant Geographic Market (as described in "a" and "b" in paragraph 57 above). Each of such defendants has taken sales away from the plaintiff by reason of the discriminatory prices at which the defendant competitor has been buying from Goodyear of Tires of like grade and quality as described in paragraphs 53-54 and Schedules A through F hereto.
59. All of the described tires purchased by plaintiff and the defendant competitors from defendant Goodyear were in interstate commerce, having been shipped or delivered by Goodyear to plaintiff and each of the defendant competitors from one or more of Goodyear's warehouses or factories
located in one of the 48 states other than Florida.
60. The following definitions apply in this complaint:
A. "Automotive Tires" includes tires for automobiles and light trucks and other automotive vehicles, and large, commercial or heavy-duty tires for large trucks (as described in paragraph 6 above), which are also referred to as "Tires").
B. "Tires" is defined as automobile tires, light-truck tires and commercial, large or heavy-duty truck tires for the automotive tire replacement market or aftermarket, otherwise known as the "Automotive Tire Aftermarket" (as described in paragraphs 51, 53, 54 and 56 above and Schedules A-F), and includes Private Label Tires (as defined in subparagraph "F" below and described in Schedules A-F below).
C. "Replacement Market" or "Aftermarket" for Tires is the product market for Tires (as defined in "B" and paragraph 51 above) as replacements for the original Tires coming with new automobiles and new light trucks or large trucks, or optional tires sold by dealers or others for new vehicles in substitution for the Tires actually or normally to be installed on said vehicles.
D. "Commercial" refers to the business of a Tire distributor to the extent it sells to businesses, such as gas stations, vehicle repair companies, new and used vehicle dealers, and others reselling or using Tires in substantial quantities.
E. "Retail" refers to the business of a Tire distributor to the extent it sells Tires to individual vehicle owners, small businesses and other consumers of Tires in insubstantial quantities.
F. "Private Label" refers to Tires made or sold by Goodyear under a unique name or label (such as "Douglas", "Lee", "Star", "Monarch", "Roadhandler", and others) to one or more of the defendant competitors which lines of Tires include Tires which are of like grade and quality to the Kelly brand Tires being purchased by plaintiff from Goodyear during the same period as described in paragraphs 53-54 and Schedules A through F.
G. "DNA Code" (a term coined by plaintiff for purposes of this and other litigation) refers to all or any part of the alleged components or elements of Goodyear's per-unit price of Tires to one of the defendant competitors, and the defendant competitor's alleged per-unit cost of buying Tires from Goodyear after taking into account the various types of rebates, payments, fees, services and other benefits received from Goodyear as listed in paragraphs 81A-81T and paragraphs 83-84 below.
H. "Kelly" brand tires refers to Goodyear tires sold under the brand name Kelly or Kelly-Springfield.
I. "Like Grade and Quality" is to be understood when purchases of Kelly Tires from Goodyear by plaintiff are discussed in context of Tire purchases by any of the defendant competitors from Goodyear. The line of Kelly Tires purchased by plaintiff has fewer types than the lines of non-Kelly Tires (Goodyear, Dunlop, or private brand) purchased by the competitor defendants from Goodyear, but all non-Kelly Goodyear Tire lines purchased by defendants have Tires of like grade and quality to plaintiff's Kelly purchases as to passenger tires and light-truck tires; and all non-Kelly Goodyear Tire lines purchased by American Tire, Martino Defendants, Tiresoles and Liberty have Tires of like grade and quality to plaintiff's Kelly purchases as to commercial Tires. See paragraphs 53-54 and Schedules A-F for specific allegations on a tire-by-tire basis about like grade and quality.
61. Goodyear manufactures and sells more than 50 private brands of tires, and its Goodyear and Kelly (Kelly-Springfield) brands; and at all relevant times has been selling these brands and private brands of tires to the defendants (as described in paragraphs 53-54 and Schedules A-F), as follows: Wal-Mart (Douglas private brand); Sam's Club (Goodyear brand only); Sears (Road Handler, Weather Handler, Eagle, Acqua Handler, Wrangler, Trail Handler and Patriot private brands; NTB private brand through acquired Western Auto stores; and Goodyear and Dunlop brands); American Tire (Winston, Regul [should read "Regal"] and Lee private brands; and Goodyear and Kelly brands); Martino Defendants (Star and Hallmark private brands; and Goodyear and Kelly brands); Tiresoles (Goodyear and Kelly private brands; no private brands); and Liberty (Kelly brand; no private brands).
62. Each of the Goodyear-made brands and private brands purchased by each of the defendant competitors from Goodyear as described in Schedules A-F has one or more types of tires with UTQG ratings identical or substantially the same as the UTQG ratings for each of the Kelly tires purchased by plaintiff from Goodyear.
63. Upon information and belief, Goodyear is selling to each of the defendant competitors, for a sustained period of time exceeding 4 years (prior to the commencement of this action) and after as to most defendant competitors, at substantially lower prices per unit than Goodyear was selling tires of like grade and quality to plaintiff at the same time, and as to some of the defendant competitors, Goodyear has been selling (at the same time) at even lower per-unit prices, at or near (or below) Goodyear's cost. The price per unit being paid currently by plaintiff for each of the categories of Kelly tires at issue (see Schedules A-F) is set forth in the first colume of each of said Schedules A-F, which price is representative of the per-unit price being paid by plaintiff from the period commencing 4 years prior to the filing of the complaint herein up to the present.
64. Upon information and belief, defendants have been receiving effective per-unit prices lower than plaintiff, as follows: Wal-Mart - 40%, Sam's Club - 40%, Sears - 35%, American Tire - 35%, Martino Defendants - 20%, Tiresoles - 20% and Liberty - 15%.
65. Wal-Mart, Sam's Club and Sears do not sell medium or heavy commercial tires in competition with plaintiff, and plaintiff makes no claim against such defendants as to any medium or heavy commercial tires.
66. To sell at these prices and remain in business, Goodyear has to charge and does charge substantially higher prices to plaintiff and other tire distributors which are not major retail chains (such as Wal-Mart, Sam's Club, Sears and American Tire) to be able to obtain any profit from Goodyear's tire-manufacturing business.
67. Upon information and belief, Goodyear has to keep increasing its prices to the plaintiff and others similarly situated to be able to find some areas of profitability to its business, which increases the price to all consumers, even those who are buying from the favored, defendant competitors.
68. The businesses of the defendant competitors would not be able to compete, or compete as successfully, with the plaintiff's business if the price paid per unit by these defendants were the same as that paid by the plaintiff to Goodyear.
69. The per-unit amount of the discrimination in price is passed on by defendant competitors to their customers in the form of lower prices, better locations, larger selection and inventory of Tires, additional informational advertising, free parking and other services which constitute a higher and more costly quality of service for consumers which plaintiff cannot afford with the higher per-unit Tire prices it has been paying to Goodyear.
70. The plaintiff provides superior service to the service generally provided by the defendant competitors, but the price difference is too great for the plaintiff to overcome. The defendant competitors' lower prices, and better locations, more costly advertising and promotion, and free parking overwhelms plaintiff (paid for with part of the unlawful price advantage), which would not be the case if the defendant competitors and plaintiff started out with a level playing field, paying the same price per unit for Tires of like grade and quality (as described in Schedules A-F).
71. Plaintiff alleges that the activities of each of the defendant competitors makes it liable to the plaintiff for violations of section 2(f) of the Robinson-Patman Act (wherein as to such transactions Goodyear has liability to plaintiff under section 2(a) of the Robinson-Patman Act).
72. For the past 4 years or more prior to commencement of this action and thereafter, plaintiff and the defendant competitors have been purchasing, on a periodic basis ranging between several days and several weeks, Tires for the Automotive Tire Aftermarket (as defined in paragraphs 51, 53-54 and 56 above and Schedules A-F) of like grade and quality from Goodyear. For example, each month during the years 1996 through 2001 plaintiff has been purchasing quantities of the more than 122 types of Kelly Tires described in Schedules A-F hereto, and upon information and belief, each month during the years 1996 through the present each of the defendant competitors has been purchasing quantities of Tires of like grade and quality as the Tires being purchased by plaintiff, as described in Schedules A-F.
73. Passenger car tires (except deep tread, winter-type snow tires, space-saver spares, tires with rim diameters of 12" of less) and some light truck tires sold as passenger tires are required by Department of Transportation rules to be graded by the manufacturer (called "Uniform Tire Quality Grading" or "UTQG"); all such tires are sold in the United States with a UTQG Code embossed on the tire and (as to replacement tires) applied by sticker to the tire before the tire is delivered by Goodyear to its customer. The UTQG Code permits passenger-car and some light-truck tires of like grade and quality to be identified readily. Light truck tires not sold as passenger tires are exempt from the UTQG rating requirement.
74. The UTQG Code is set forth in Schedules A-F hereto as a 5 character code, consisting of three numbers followed by two letters (e.g., 360 A B). The three numbers refer to the treadwear, with 100 being the lowest quality, and 450, for example, being expected to wear 4.5 times as long as the 100 tire on a government-specified test course. The first of the two letters ("A" above) refers to traction, with a range of AA, A, B and C, with AA being the best and C being the worst grade. The second of the two letters ("B" above) refers to the tires ability to resist the generation of heat and its ability to dissipate such heat, with a range of A, B and C, with A being the best and C being the worst grade.
75. The medium commercial (MC) tires have no required UTQG grade. Goodyear makes 11 MC types of Kelly tires and, as to all of Goodyear's brands and private brands, Goodyear makes about 33 types of MC tires. All Goodyear MC tires are graded by one of four designations or combinations thereof: (i) steering tire ("S"); (ii) drive tire (meaning drive train, "D"); (iii) tandem or trailer tire ("T"); and (iv) all position tire (for any position on cab or trailer, "AP"). MC tires are purchased by defendants Liberty, Martino Defendants, Tiresoles and American Tire, but not by Wal-Mart/Sam's Club or Sears.
76. Goodyear makes 7 types of Kelly ungraded LT tires, and overall, through all of Goodyear's brands and private brands, Goodyear makes about 50 or 60 types of LT tires. There are three types of ungraded LT tires: (i) LT bias ply, the lowest quality of tire; 2 tread types; (ii) LT entry level (lowest quality of radial tire; 1 tread type), LT premium quality grade (best set of belt packages with best body plies, always radial; 6 tread types);
77. From date earlier than 1997 up the commencement of this action, or after, the plaintiff has been in actual competition with each of the defendant competitors for the resale of Goodyear-made Tires of like grade and quality (as described and matched in paragraphs 53-54 and Schedules A-F) to consumers and businesses in part "a" or parts "a" and "b" of plaintiff's Relevant Geographic Market.
78. The sales by Goodyear to the plaintiff and to the defendant competitors were and are being made in commerce on an interstate basis, with such goods having been sold for use, consumption, or resale within the United States, and where the effect of such discrimination in price may be substantially to lessen competition or tend to create a monopoly in the tire aftermarket, or to injure, destroy, or prevent competition with the defendant competitors who either grant or knowingly receive the benefit of such discrimination, or with customers of the plaintiff or defendant competitors.
79. Goodyear does not manufacture any tires in Florida. Goodyear has 7 plants in the United States for making tires, of which five are used to manufacture Kelly tires: (DOJ Code "PJ", Fayetteville, North Carolina 28302; "PK", Freeport, Illinois 61032, "PL", Tyler, Texas 75703; "MC", Danville, Virginia 24541, and "P6", Lawton, Ohio 73504, and with many of Goodyear's tires of like grade and quality (as described in Schedules A-F) being made in 16 other countries and imported into the United States by Goodyear for resale to plaintiff, the defendant competitors and others.
80. The sales by Goodyear to the plaintiff have been made at per unit prices which are substantially higher than the per unit prices for the Tires of like grade and quality (as described in paragraphs 53-54 and Schedules A-F) paid, at the same time, by the defendant competitors to Goodyear.
81. Each of the defendant competitors, as indicated in the subparagraphs below, participates in the following methods of obtaining favored payments and services from Goodyear and thereby obtaining lower effective per- unit prices for their purchases of Tires (as described in paragraphs 53-54 and Schedules A-F) than paid by plaintiff to Goodyear at the same time for the respective matching Tires:
A. Preferential allowances, discounts, payments, other things of value when opening, expanding, remodelling, moving or closing a store or warehouse including but not limited to a Goodyear program involving interest-free trade acceptances enabling Tires to be purchased without any payment for several years or more [applicable to all Defendant Competitors]. Goodyear has offered these allowances to its customers for 25 or 30 years but these allowances cannot be used by plaintiff because plaintiff (a victim of price discrimination) remains with a single location, and the allowances go to defendant competitors who already are obtaining lower prices which aids in their expansion.
B. A variety of preferential prices, discounts, cash discounts, allowances, and terms, e.g., discounts referred to as "A.B.A." (up to 15% or more), "TTG3" (up to 12-1/2% or more), "T.W.F.A." (extent of discount not known), "E.O.I." (extent of discount not known); "Comm. Co-op" (up to .05% or more); "C.V.B." (up to 3% or more) appearing on a Kelly Radial price list dated 1/1/01 [applicable to all Defendant Competitors except the discounts for commercial tires above are not applicable to Wal-Mart, Sam's Club and Sears]. Plaintiff has seen about 12 invoices from Goodyear to Tiresoles, Martino Defendants and Liberty by error during 1999-2001 which showed that Goodyear was giving them lower prices. Wal-Mart, Sam's Club, Sears and American Tire have been selling Tires at retail for a price lower than plaintiff's cost.
C. Preferential deductions by defendant competitors from Goodyear invoices followed by negotiations and allowance by Goodyear of all or part of such deductions [applicable to all Defendant Competitors]. Major retailers such as Wal-Mart, Sam's Club and Sears are known to take deductions against their invoices, whereas plaintiff has not been allowed to take any deductions. Goodyear has sued plaintiff's principals for non-payment of invoices but upon information and belief has never brought suit against any of the other defendants for non-payment resulting from their deductions.
D. Preferential allowances or other treatment on returns of Tires and on warranties for Tire defects [applicable to all Defendant Competitors except Liberty]. Plaintiff has to ship Tires back to Goodyear to obtain warranty payments but Tiresoles and Martino told plaintiff during 2001 that Goodyear permits them to obtain warranty payments wit hout shipping the Tire back to Goodyear.
E. Preferential obsolescence allowances or allowances for making inventory current provided by Goodyear [applicable to all Defendant Competitors except Liberty]. Plaintiff was told by Goodyear during 1995-1996 that Kelly tires being purchased on a special deal by plaintiff at an exceedingly low price had been obtained as returns from KMart when KMart dropped the Kelly line. Goodyear does not permit plaintiff to return obsolete Kelly tires to Goodyear.
F. Preferential price support programs in which Goodyear reimburses its customers for all or part of retail price markdowns [applicable to all Defendant Competitors]. This is a Goodyear price-support plan in place for 25 years or so, but Goodyear refuses to permit plaintiff to participate in such plan since 1999.
G. Special preferential deals to defendant competitors enabling them to sell at retail some matching Tires below plaintiff's cost for the Tire [applicable to all Defendant Competitors]. Plaintiff has determined this from learning the prices quoted to plaintiff's customers, which are lower than plaintiff's purchase price for the same Tires, which means that these defendants are getting special deals not available to the plaintiff.
H. Gathering or entertainment allowances paid by Goodyear to Wal-Mart and Sam's Club for the privilege of having Goodyear's sales representative meet with the such defendants' buyers [applicable only to Wal-Mart and Sam's Club]. ˙Wal-Mart's (and presumably Sam's Club's) "gathering allowance" requirement for persons selling to them has been widely-publicized during the past several years.
I. Warehouse or Regional Distribution Center discounts, fees or allowances and return-center fees [applicable to all Defendant Competitors except Liberty]. Goodyear has been giving discounts to plaintiffs' competitors which have independent warehouses or regional distribution centers. Goodyear's employees have told plaintiff this during 2000. Plaintiff has no separate warehouse and cannot obtain any such allowances.
J. Preferential freight allowances or rebates and backhaul allowances [applicable to all Defendant Competitors except Liberty]. ˙Goodyear's employees over the years have provided plaintiff with this information, that Goodyear is giving higher rebates and allowances to these defendants.
K. Preferential credit terms and conditions, including credit guarantees of trade acceptances enabling defendant competitors to purchase matching Tires at low or no interest without payment of the purchase price for 1-5 years [applicable to all Defendant Competitors except as to Liberty]. ˙Plaintiff received invoices by error which show credit terms to the Martino defendants not offered to the plaintiff, and presumably such terms or better were offered to the other defendants.
L. Private brands of matching Tires at a per-unit price to the defendant competitors substantially lower than the matching Kelly tires sold to plaintiff; also, during all relevant times Goodyear repeatedly refused to sell any private brand manufactured by Goodyear (or Goodyear brands other than Kelly) to plaintiff [applicable to all Defendant Competitors except Liberty]. Plaintiff has seen the private brands of defendants and the selling price which is often lower than the price being paid by plaintiff for the matching Tire.
M. Preferential payments made by Goodyear to the defendant competitors as to sham advertising and promotional programs [applicable to all Defendant Competitors except Liberty]. Plaintiff learned from a local newspaper that Goodyear paid directly for some of the advertising costs of the plaintiff's competitors. Plaintiff has been required to prove placement and payment before obtaining a refund, often delayed. The competitors are not required to do this.
N. Preferential payments made by Goodyear to the defendant competitors through Credit Memos without full consideration ˙[applicable to all Defendant Competitors]. Credit memos are part of the deductions problem described in subparagraph C above.
O. Preferential lifetime warranty programs in which the defendant competitor gets (i) a 100% or higher refund for Tires returned at any time and (ii) preferential payments for non-existent Tire returns ˙[applicable to all Defendant Competitors except Liberty]. Goodyear employees have told plaintiff about these discriminatory programs, and plaintiff obtained invoices by error in 2000 which show the same.
P. Preferential price support by Goodyear in which Goodyear allows defendant competitors to sell certain Goodyear-made Tires at a price determined by the competitor and reimburses part of the competitor's purchase price in an amount sufficient for the competitor to make a certain profit on each price-supported tire sold by it [applicable to all Defendant Competitors]. Plaintiff had price support from Goodyear until 2000, but Goodyear has continued price support for plaintiff's competitors, upon information and belief.
Q. Excess delivery commissions for delivering tires to Goodyear's direct accounts [applicable only to the Martino Defendant, Tiresoles, American Tire and Liberty]. Plaintiff had such dealings with Dole Fruit from 1997 through 2000, but has obtained no additional commissions thereafter. Upon informatino and belief, such commissions were paid and continue to be paid to plaintiff's competitors.
R. SPIFF and later PSI payments per Tire to each of the defendant competitors (or their employees) in a higher amount (upon information and belief) than the SPIFF or PSI payments per matching Tire to plaintiff (or its employees) [applicable to all Defendant Competitors except Liberty]. Goodyear refuses to provide such payments to plaintiff or its employees on the basis that many of plaintiff's sales are made to resellers. From 1991-2000, Goodyear was paying such payments to plaintiff, but continues making such payments, upon information and belief, to plaintiff's competitors.
S. Upon information and belief, a preferential Goodyear program to assist the Martino Defendants in obtaining a prompt refund of the federal Tire excise tax collected by Goodyear when it sells matching Tires to the Martino Defendants for resale in U.S. possessions [applicable only to each of the Martino Defendants]. Martino employees told plaintiff during 2001 that Goodyear is providing forms and assistance to Martino which plaintiff knows is not being provided to the plaintiff.
T. Preferential payment by Goodyear for new service trucks and maintenance and upkeep of the service fleets of defendant competitors under program names such as "Truckwise", "Blue Ribbon" and "Gemini"; Tiresoles is currently favored with Goodyear's "Blue Ribbon" program, a multi-year program with an annual rebate called "Earnback" [applicable only to each of the Martino Defendants and to Tiresoles, Liberty and American Tire]. Plaintiff has copies of the Truckwise and Blue Ribbon programs of Goodyear, which programs are not available to plaintiff.
82. Each of paragraphs 81A-81T above relates to the Tires described in paragraphs 53-54 and Schedules A-F, as purchased respectively by plaintiff and by each of the defendant competitors.
83. For the period covered by this lawsuit, plaintiff has not obtained some coop advertising payments from Goodyear, because the requirements for obtaining such payments (as delayed refunds) are too onerous. Goodyear credits plaintiff with a certain percentage of plaintiff's purchases (about 3%) as a source for payment of advertising by plaintiff. Upon information and belief, Goodyear gives higher percentages to the Defendant Competitors. Also, Goodyear makes direct payments of additional moneys or credit memos to the Defendant Competitors for advertising, but does not make such additional payments (or credit memos) to the plaintiff.
84. Payments made by Goodyear to the defendant competitors as to sham advertising and promotional programs which payments are not made to plaintiff on the same basis per unit. See paragraph 81-M above. These programs are sham programs because the payments received from Goodyear are not for reimbursement of actual expenses incurred and proven by the defendant competitors and substantially exceed any amounts actually spent by the defendant competitors; whereas, under Goodyear's advertising and promotional programs made available to plaintiff, the plaintiff is required to seek reimbursement for its actual expenses incurred and proven.
85. Goodyear has been giving the defendant competitors various discounts, rebates, fees, allowances and other payments not offered, made available or provided to the plaintiff. These payments to such defendants are generally based on services which plaintiff provides with no compensation, or are based on non-existing services of the defendant competitors.
86. Such discounts, rebates, fees, allowances and other payments referred to in the preceding paragraph also include payments purportedly for or as advertising and promotional allowances but which are not required by Goodyear to be used by the defendant competitors for such purported advertising and promotional purposes.
87. Upon information and belief, Goodyear has made available to the defendant competitors advertising and promotional programs and payments thereon not made available to, or even known to, the plaintiff, and as to payments the defendant competitors are free to use for any purpose they see fit.
88. Upon information and belief, part or all of the advertising and promotional programs referred to in the preceding paragraphs 83-87 do not require the defendant competitors to spend the advertising and promotional fees, allowances or other payments for the purposes for which such payments were made purportedly made by Goodyear to said defendants.
89. The extent to which any Goodyear advertising and promotional programs make payments to the defendant competitors without requiring expenditure for the purported purpose, such payments are in substance a further rebate or discount of the purchase price to the defendant competitors.
90. To the extent that Goodyear offer some advertising and promotional program participation to plaintiff, the terms and conditions make such offered participation a sham and not reasonably, functionally or proportionally available to plaintiff, whereas the defendant competitors are not burdened by most of or all of such terms and conditions.
91. Upon information and belief, each of the defendant competitors has induced or has been knowingly receiving the discriminatory discounts, fees, rebates, and other payments from Goodyear as alleged in paragraphs 81-A through 81-T above.
92. The activities of Goodyear and the defendant competitors adversely effect competition in the relevant product and geographic markets as described in paragraphs 51, 56 and 57 above and are lessening competition, tending to monopolize, and injuring consumers and competition in the Tires aftermarket.
93. Defendant competitors induced or knowingly received the favorable, discriminatory prices, for reasons including:
A. ˙The existence of plaintiff's prior complaints to Goodyear about receiving higher prices and the presumed failure of Goodyear to ensure that the defendant competitors are receiving the same per unit prices as plaintiff;
B. The defendant competitors have sought, requested and received the payments and benefits constituting the DNA Code (as described in paragraphs 81-A through 81-T and 83-84 above) knowing that they were not being offered at such time by Goodyear to plaintiff through any published price list;
C. Articles in industry publications have discussed how various defendant competitors have been receiving rebates, fees, allowances and other payments making up the DNA Code that were not being given by Goodyear to the plaintiff and other small competitors of the defendant competitors;
D. Articles in the business press have discussed how major retailers including some of the defendant competitors have been receiving rebates, fees, allowances, free merchandise and other payments similar to those described as being part of the DNA Code that were not being given to the smaller competitors, causing the smaller competitors to go out of business;
E. Acquisitions of competing retail stores or chains by some of the defendant competitors such as Sears have provided such defendants with precise data to show defendants that they have been receiving favorable discriminatory Goodyear Tire prices, whereas the companies being acquired were the disfavored purchasers of Tires from Goodyear;
F. Marketing analyses and studies of the defendant competitors;
G. Some defendant competitors' selection of locations is done knowing of their lower cost of inventory and resulting advantage in placing their new retail stores as close as possible to plaintiff's location, for the purpose of driving the plaintiff out of business through lower prices which only the defendant competitors can provide (because of the lower prices at which they buy their Tires from Goodyear and other tire manufacturers);
H. Discussions with salespersons from Goodyear and other tire manufacturers;
I. Demands made by defendant competitors upon Goodyear for profit-margin guarantees and price protection;
J. Demands made by defendant competitors upon Goodyear and other tire manufacturers for other payments and price concessions and other benefits;
K. Absence of price lists (including the DNA Code discount) of Goodyear and other tire manufacturers used by defendant competitors in purchasing Tires from Goodyear and such other manufacturers;
L. Receipt by defendant competitors from Goodyear of unjustified volume discounts for volume purchases which are beyond the ability of plaintiff to match with its existing sales levels;
M. Upon information and belief, the defendant competitors have never sought any "cost justification" figures from Goodyear or any of the other tire manufacturers;
N. Upon information and belief, the defendant competitors have never sought any "meeting competition" information from Goodyear or any of the other tire manufacturers; and
O. Some of the defendant competitors (particularly Sears, through its Western Auto Stores) merged with another major retail chain (Advance Auto) for the specific purpose of being able to obtain even lower prices for auto parts and tires than they were enjoying as separate entities.
94. Each of the defendant competitors, upon information and belief, purchases its inventory of Tires (as described in Schedules A-F) from Goodyear and other tire manufacturers at a negotiated price, without any applicable price list, after the DNA Code discount between the defendant and Goodyear (or other tire manufacturer) is taken into account. The DNA Code (see paragraphs 81-84 above) does not include payments or other benefits received by the defendant competitors under Goodyear's or other manufacturers' non-sham advertising and promotional programs (see Count II below).
95. Upon information and belief, the net price per unit (invoice less DNA Code discount) paid to Goodyear by each of the defendant competitors can be estimated as at or near (or even below) Goodyear's variable cost of manufacturing the Tires, with little or no contribution to overhead.
96. By reason of the pricing structure for purchases by each of the defendant competitors, plaintiff alleges that the per unit price paid by the defendant competitors is equal to 1 index unit, for the most-favored defendant competitor (Wal-Mart and Sam's Club), which price is at, near or below Goodyear's variable cost.
97. Upon information and belief, each of the defendant competitors is purchasing its Tires from Goodyear at a net per-unit price of about 1.0 to 1.41 index units.
98. Plaintiff, at the same time, from the same manufacturer (Goodyear), for like grade and quality of Tires is paying approximately 1.67 in index units per unit of Tires.
99. This difference in Goodyear's price to plaintiff and to defendant competitors is substantial and is sustained, and has been in existence for more than five years prior to the filing of this action up to the present, and plaintiff has been injured during all parts of this period by reason of the discriminatory prices.
100. Defendant competitors are reselling these purchased Tires (as described in Schedules A-F) to consumers, independent jobbers and others at a gross profit margin ranging from about 40% to 25%.
101. Plaintiff, on the other hand, selling the same products to jobbers, end users and consumers, is forced by this competition to sell the same or matching Tires (as described in Schedules A-F) at a gross profit margin ranging from about 7% to 15%, due to the higher prices paid by plaintiff to purchase the same grade and quality Tires from Goodyear.
102. Plaintiff resells the Tires to jobbers at index-unit price of about 1.8, which is higher than the price at which the most-favored defendant competitors are reselling the Tires to consumers in defendant competitors' retail stores, making it difficult for jobbers who buy Kelly Tires from plaintiff for resale to resellers, which drives such jobbers out of business.
103. By reason of the difference in prices charged by Goodyear to plaintiff, on one hand, and to defendant competitors, on the other hand, plaintiff is unable to engage in profitable business, as a as a wholesaler or retailer of Tires, and the independent jobbers to whom plaintiff sells Goodyear-made Tires are also unable to compete (directly or otherwise) with the defendant competitors, and the plaintiff is losing customers, sales and gross profits to defendant competitors and is being driven out of business as a result of the differences in price at which the Goodyear is selling its Tires to the defendant competitors.
104. The difference in price charged by Goodyear results in the taking away of plaintiff's customers, sales, gross profits and earnings by defendant competitors, and converting such customers, sales, gross profits and earnings for the benefit of defendant competitors, resulting in the predictable and systematic destruction of plaintiff's business.
105. These effects suffered by plaintiff have taken place during the whole period of the discriminatory pricing.
106. Other Goodyear tire wholesalers and retailers are also being driven out of business by defendant Goodyear's practices, as alleged.
107. The injuries suffered by plaintiff by reason of the activities alleged above are the type of injury which the Robinson-Patman Act was enacted to prevent and are "antitrust injuries" under the Robinson-Patman Act and related provisions of the Clayton Act.
108. The effect in the Tires aftermarket in plaintiff's geographic market and in the United States of the alleged discrimination in price (i) has already substantially lessened competition or (ii) may be substantially to lessen competition or (iii) may tend to create a monopoly or (iv) may tend to injure, destroy or prevent competition with and among defendant competitors and other distributors of tires, as well as among tire manufacturers; and (iv) results in increased prices to consumers.
109. By reason of the foregoing activities by defendants, plaintiff has suffered the following losses:
A. Loss of customers, sales, gross profits, earnings, employees, business systems, including the loss of sales to the specific customers and or loss of the specific customers listed in Schedule G attached hereto, and incurring of additional expenses in an effort to stop the loss of customers and market share;
B. Losses of gross profit margin incurred on sales actually made, in which the Tires (described in Schedules A-F) were purchased at a higher price than paid by the defendant competitors for the matching tires also described in Schedules A-F);
C. Losses of gross profit margin incurred when plaintiff reduced its profit margins on Tire sales being made to compete with the lower prices of the defendant competitors (as to the Schedule A-F tires), and to try to maintain market share or dollar volume of sales;
D. Losses of gross profit margin incurred as to lost sales of the Tires described in Schedules A-F being sold to plaintiff at unfavorable, discriminatory prices, causing plaintiff to decrease its purchases of such Tires;
E. Losses of gross profit margin incurred on sales of other goods and services to present or former customers of the plaintiff who started buying Tires (as described in Schedules A-F), in whole or in part, from one or more of the defendants; and
F. Other losses suffered by plaintiff as a consequence of the unlawful price discrimination, including increased (above-normal) inventory costs, reduced (below-normal) inventory turnover, higher interest expenses, costs in locating and inventorying price-competitive inventory of different manufacturers, increased advertising and promotional expenses, and other increased operating costs.
110. The plaintiff has suffered damages by reason of the unlawful activities of Goodyear and the other defendants in an amount of $5,000,000 or more, as will be proved with certainty by the plaintiff at the time of trial.
111. The plaintiff is entitled to an award of treble damages and to an award of attorneys' fees.
112. The plaintiff is being irreparably injured by reason of the actual and threatened activities of defendant Goodyear and the defendant competitors.
113. The plaintiff is entitled to a preliminary and permanent injunction prohibiting each of the defendants from continued violation of section 2(a) and/or section 2(f) of the Robinson-Patman Act, and from opening up (or supplying Tires for the opening up) of any more retail stores to compete with the plaintiff unless the defendant competitor has ceased purchasing its Tires (as described in Schedules A-F) in violation of section 2(f) and defendant Goodyear has ceased selling said Tires in violation of section 2(a) of the Robinson-Patman Act.
114. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-113 above and further alleges that the activities of defendant Goodyear constitute a violation of sections 2(d) and 2(e) of the Robinson-Patman Act, 15 U.S.C. sections 13(d), 13(e).
115. Upon information and belief, during the 4 years or longer preceding the filing of the original complaint and up to the present, Goodyear has been proving a 3% or higher cooperative advertising allowance to each of the defendant competitors without requiring that the competitors spend any moneys in advance for advertising or sales promotion or prove to Goodyear thereafter that they expended the moneys for purchase of advertising or promotional materials.
116. Plaintiff, on the other hand, has been required during this same period to pay for advertising in advance, then apply for the coop funds, wait a substantial period of time, and often find that the promised 3% coop advertising allowance is not to be paid (sometimes in whole, sometimes in part).
117. By reason of this discriminatory treatment of plaintiff, plaintiff has not made use of Goodyear's coop advertising program during the period.
118. Plaintiff's experience with Goodyear is that after plaintiff made application to Goodyear for reimbursement for moneys actually spent by plaintiff for the advertising or promotion of Goodyear Tires, Goodyear generally found fault with all or part of the application, and created delays in making the refund as to any part which ultimately was approved by Goodyear, and often made no payment at all.
119. Also, Goodyear makes direct payments or credits to plaintiffs' competitors for purposes of advertising and promotion of Tires purchased from Goodyear and, upon information and belief, direct payments to media companies on behalf of advertising and promotion for the defendant competitors,
120. The result to plaintiff is that Goodyear's advertising and promotional program is not proportionally or functionally available to plaintiff in comparison to Goodyear's advertising and promotional programs for the defendant competitors. Plaintiff is unable to make use of Goodyear's advertising and promotional coop program.
121. The injuries suffered by plaintiff by reason of the activities alleged above are the type of injury which the Robinson-Patman Act was enacted to prevent and are "antitrust injuries" under the Robinson-Patman Act and related provisions of the Clayton Act.
122. By reason of the foregoing activities by defendants, plaintiff has suffered the following losses:
A. Losses of gross profit margin incurred on sales actually made, in which the Tires were purchased at a higher price than paid by the defendant competitors;
B. Losses of gross profit margin incurred when plaintiff reduced its profit margins on Tire sales being made to compete with the lower prices of the defendant competitors, and to try to maintain market share or dollar volume of sales;
C. Losses of gross profit margin incurred as to lost sales of the Tires being sold to plaintiff at unfavorable, discriminatory prices, causing plaintiff to decrease its purchases of such Tires;
D. Losses of gross profit margin incurred on sales of other goods and services to present or former customers of the plaintiff who started buying Tires, in whole or in part, from one or more of the defendants; and
E. Other losses suffered by plaintiff as a consequence of the unlawful price discrimination, including increased (above-normal) inventory costs, reduced (below-normal) inventory turnover, higher interest expenses, costs in locating and inventorying price-competitive inventory of different manufacturers, increased advertising and promotional expenses, and other increased operating costs.
F. Losses of the types described in subparagraphs A through E above by reason of plaintiff's loss of customers, sales, gross income and profits to defendant competitors through denial of an advertising and promotional program proportional and/or functionally equivalent to the advertising and promotional programs given by Goodyear to said defendants.
123. The plaintiff has suffered damages by reason of the unlawful activities of Goodyear in an amount of $5,000,000 or more, as will be proved with certainty by the plaintiff at the time of trial.
124. The plaintiff is entitled to an award of treble damages and an award of attorneys' fees.
125. The plaintiff is being irreparably injured by reason of the actual and threatened activities of defendant Goodyear.
126. The plaintiff is entitled to a preliminary and permanent injunction prohibiting Goodyear from continued violation of sections 2(d) and 2(e) of the Robinson-Patman Act, and from making available any advertising or promotional program to any of the defendant competitors without offering a proportionally equal or functionally equivalent program to plaintiff.
127. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-126 above and further alleges that the activities of defendants Goodyear and the Martino Defendants constitute tortious interference under Florida law.
128. From 1997 through March, 1999, Charles Provenzano (the "Employee") worked for plaintiff as an employee.
129. The Employee had access to plaintiff's list of foreign and domestic commercial customers, and the prices at which they were purchasing Tires from plaintiff, and used the customer list in trying to develop sales for plaintiff.
130. Plaintiff's customer list was confidential, through industry custom and usage, and plaintiff at all times kept the list as a trade secret, by keeping the list under lock and key except when it was being used. No copy of the list was available for employees to take except when the Employee was given the list by plaintiff's C.E.O. to use in soliciting customers for additional sales to them.
131. During March, 1999, the Employee left the employ of plaintiff and was hired 3 months later by the Martino Defendants, and immediately thereafter started developing sales for the Martino Defendants using plaintiff's customer list.
132. The Martino Defendants, through such use of plaintiff's customer list, took away approximately $1,000,000 in sales from the plaintiff during the period starting in March, 1999.
133. The activities of each of the Martino Defendants constitute actionable tortious interference with plaintiff's existing and advantageous business relationship with the customers identified in plaintiff's customer list;
(i) plaintiff was making sales of Tires to customers named on plaintiff's customer list, at the prices set forth on said list and had reasonable expectations of continuing to make sales to such customers in the future;
(ii) the Martino Defendants intentionally and without justification acquired the list from a former employee of plaintiff for the purpose of soliciting plaintiff's foreign customers on said list;
(iii) the Martino Defendants hired the former Employee and used him to solicit all or substantially all of plaintiff's significant or important customers named on the list to offer them Tires at lower prices than they were paying to plaintiff at the time;
(iv) because of the lower prices, and possibly some customers' familiarity with the former Employee, some of said customers started buying Tires from the Martino Defendants, at lower prices than they had been paying to plaintiff for the same Tires; and
(v) such communications, offers and sales to plaintiff's customers constituted a tortious interference with plaintiff's advantageous business relationship with such customers.
134. The Martino Defendants took away customers and sales from plaintiff including some of the customers, and sales to some of the customers, set forth in Schedule G hereto.
135. Plaintiff was damaged to the extent of about $200,000 as a consequence.
136. Plaintiff is entitled to damages in the amount of $200,000, plus interest.
137. Each of the Martino Defendants acted wilfully and maliciously with the intent of depriving plaintiff of its property interest in the plaintiff's commercial customer list.
138. Plaintiff is entitled to punitive damages against each of the Martino Defendants in an amount to be determined by the trier of fact.
139. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-138 above and further alleges that the activities of defendants Goodyear and the Martino Defendants constitute unfair competition under Florida law.
140. The activities of each of the Martino Defendants constituted actionable unfair competition by reason of the improper means used by said defendants to take away from plaintiff the customers named on plaintiff's customer list:
(i) in addition to the allegations set forth in this Count above, the Martino Defendants, through plaintiff's former Employee, improperly represented to plaintiff's former customers (directly, or by implication through reference to prices being paid by such customers) that the former Employee's solicitations for business were being performed for plaintiff; and
(ii) said customers acted upon such representation and purchased Tires from the Martino Defendants.
141. Plaintiff repeats and realleges the damages and entitled to relief as described in paragraphs 134-138 above.
142. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-141 above and further alleges that the activities of defendants Goodyear and the Martino Defendants constitute misappropriation of a trade secret under Florida's Uniform Trade Secret's Act.
143. The activities of each of the Martino Defendants constituted actionable misappropriation of plaintiff's trade secret (consisting of a valuable commercial customer list) by reason of the improper means used by said defendants to take away from plaintiff the customers named on plaintiff's customer list:
(i) the customer list was valuable;
(ii) the customer list, which included the prices at which plaintiff was selling Tires to the customers, was treated as confidential and secret by plaintiff;
(iii) the names, addresses and telephone numbers of all of plaintiff's customers in the United States and 7 other countries and the prices at which they were buying Tires from plaintiff were maintained on the list;
(iv) the list was compiled by plaintiff's C.E.O. and given to an employee to use in developing further sales for plaintiff;
(v) upon information and belief, the Employee used the list as a basis for obtaining employment with a competitor, the Martino Defendants;
(vi) the Martino Defendants knowingly and wrongfully used plaintiff's customer list to solicit and take away customers, and was able to do so by offering lower prices than the prices at which plaintiff was selling to such customers, because of the lower prices for Tires which the Martino Defendants were obtaining from Goodyear; and
(vii) plaintiff was injured by such activities through loss of a substantial number of plaintiff's customers and the sales which plaintiff was making to them for a period of many years.
144. Plaintiff repeats and realleges the damages and entitled to relief as described in paragraphs 134-138 above.
145. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-144 above and further alleges that the activities of defendants Goodyear and the Martino Defendants constitute unjust enrichment under Florida law.
146. The activities of each of the Martino Defendants constitute actionable unjust enrichment by the gross income or gross profits obtained by the Martino Defendants when taking away from plaintiff the customers on plaintiff's list of foreign and domestic commercial customers and the prices being paid for Tires by them to plaintiff:
(i) plaintiff conferred a benefit on the defendant in the form of plaintiff's customer list;
(ii) the Martino Defendants knowingly used plaintiff's customer list, obtained benefits from such use, and retained the benefits; and
(iii) it would be inequitable for the Martino Defendants to retain the benefits without paying the value thereof to the plaintiff.
146A. This Count VI is pleaded in the alternative to Counts III, IV and V. Other than this claim for unjust enrichment, plaintiff has no adequate remedy at law against the Martino Defendants for the activities relating to plaintiff's customer list alleged in Counts III through VI. [added pursuant to Order Denying Motions to Dismiss filed 9/14/04]
147. Plaintiff repeats and realleges the damages and entitled to relief as described in paragraphs 134-138 above.
148. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-147 above and further alleges that the activities of defendant Goodyear constitute a breach of contract.
149. During the years 1998-2000, Goodyear promised plaintiff a volume bonus based on the total dollar amount of orders for the calendar year.
150. In each of the calendar years 1998-2000, plaintiff ordered on a timely basis from Goodyear the amount of Tires required to be qualified for Goodyear's promised volume bonus.
151. In each of said years, Goodyear held up on the Tire shipments to plaintiff required to qualify plaintiff for the promised bonus, and made belated shipments instead, of a sufficient amount of plaintiff's outstanding orders to prevent plaintiff from qualifying for the annual bonus for each of said years.
152. As a consequence, Goodyear did not pay plaintiff earned bonuses for 1998 in the amount of $24,500, for 1999 in the amount of $36,700 and for 2000 in the amount of $29,000, for a total of $93,200.
153. Plaintiff has been damaged by Goodyear's breach of said contract in the amount of $93,200, plus interest.
154. Goodyear acted wilfully and maliciously with the intent of depriving plaintiff of its earned bonus as to each of said years.
155. Plaintiff is entitled to punitive damages against Goodyear in an amount to be determined by the trier of fact.
156. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-155 above and further alleges that the activities of defendant Goodyear for non-payment of promised warranty claims or adjustments constitute a breach of contract.
157. During the period of 6 years preceding the filing of this complaint, Goodyear offered to pay legitimate warranty claims made by plaintiff as to Tires plaintiff purchased from Goodyear. These warranty claims are referred to as "adjustments" in the industry.
158. Plaintiff made more than $120,000 in warranty claims against Goodyear during this 6-year period, and Goodyear paid approximately 70% of such claims, and about 30% were not paid.
159. Goodyear owes plaintiff approximately $40,000 for legitimate warranty claims made by plaintiff during the past 6 years which Goodyear refused to pay, plus interest.
160. Goodyear acted wilfully and maliciously with the intent of depriving plaintiff of its promised reimbursement for warranty claims paid by plaintiff to its Tire customers.
161. Plaintiff is entitled to punitive damages against Goodyear in an amount to be determined by the trier of fact.
162. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-161 above and further alleges that the activities of defendant Goodyear in failing to sell Tires to plaintiff at a specifically promised price constitute a breach of contract.
163. During 1998-2001, Goodyear agreed on certain occasions to sell a specific amount of Tires to plaintiff at a per-unit price which was 4% lower than plaintiff was generally paying.
164. When plaintiff received the invoices for such transactions, the invoices did not reflect the lower promised price, but was a total of approximately $140,000 or more higher than promised over the period involved.
165. Plaintiff protested the invoice to Goodyear and paid the invoiced amount.
166. The result was a total overcharge on the numerous transactions amounting to approximately $140,000 or more.
167. Plaintiff has been damaged to the extent of approximately $140,000 or more, plus interest.
168. Goodyear acted wilfully and maliciously with the intent of depriving plaintiff of its promised lower price.
169. Plaintiff is entitled to punitive damages against Goodyear in an amount to be determined by the trier of fact.
170. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-169 above and further alleges that the activities of defendant Goodyear in failing to sell Tires to plaintiff at specified lower prices than list price constitute a breach of contract.
171. During 2000, Goodyear promised plaintiff that it would start selling Tires to plaintiff at prices per unit lower than the list price for Goodyear's Tires.
172. This promise was made by Goodyear's Marketing Department during September, 1999, approximately, who agreed with plaintiff that Goodyear would start selling Tires to plaintiff at specified discounted prices lower than the actual prices plaintiff was paying at the time for such tires (other than the transactions described in Count IX).
173. Goodyear failed to live up to this promise and continued to invoice Tires to plaintiff at the list price, without any part of the promised reduction in price.
174. The activities of Goodyear constitute a breach of contract.
175. Plaintiff has been damaged by such breach to the extent of approximately $100,000, plus interest.
176. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-175 above and further alleges that the activities of defendant Goodyear in failing to pay plaintiff as to the legitimate warranty claims of consumers, previously honored and paid by plaintiff, is a violation of the Florida Unfair and Deceptive Trade Practices Act, Fla. Stat. ch. 501.201, et seq.
177. Goodyear in written warranties to reimburse consumers when they purchased defective Tires through Goodyear distributors such as plaintiff and the defendant competitors.
178. Plaintiff had an agreement with Goodyear, as a Goodyear distributor, that plaintiff would honor the Goodyear warranty by making refunds to consumers for defective Goodyear Tires purchased from plaintiff, and that Goodyear would reimburse plaintiff for the legitimate warranty claims which plaintiff paid to its customers, including consumers as well as commercial customers.
179. Plaintiff paid legitimate warranty claims to various consumers and commercial customers requesting refunds or other adjustments, and became assignee of their warranty claims against Goodyear.
180. Plaintiff requested payment from Goodyear for these reimbursed claims and Goodyear paid approximately 70% of the claims, and refused to pay the remaining part (about 30%) of the claims.
181. Failure to reimburse plaintiff for its payment of legitimate warranty claims to purchasers of Goodyear Tires from plaintiff, after requesting payment from Goodyear and supplying the necessary information, is an unfair and deceptive trade practice in violation of the Florida Unfair and Deceptive Trade Practices Act.
182. Plaintiff, through payment of the claims to its customers and related assignment of their claims to plaintiff, stands in the position of its customers to enforce the right of consumers to sue under such statute.
183. Plaintiff has been damaged to the extent of approximately $40,000, plus interest.
184. Goodyear acted wilfully and maliciously with the intent of depriving consumers and their assignee (plaintiff) of their promised warranty as to Goodyear Tires.
185. The comparatively small amounts involved per customer transaction has made it unlikely that Goodyear would be sued for breach of warranty by any of the ultimate customers for Goodyear's Tires, with Goodyear failing to honor its warranty program because of such awareness that there was little likelihood of any enforcement of Goodyear's warranty obligations.
186. Plaintiff, standing in the place of its customers, is entitled to punitive damages against Goodyear in an amount to be determined by the trier of fact.
WHEREFORE, plaintiff demands judgment against defendants, as follows:
1. Adjudged and decreeing that the activities of each of the defendants constitute a violation of the Robinson-Patman Act: section 2(a) as to Goodyear and section 2(f) as to each of the defendant competitors;
2. Awarding damages in favor of plaintiff in the amount of $5,000,000 or more jointly and severally as against each defendant, which amount will be proved with certainty at the time of trial.
3. Awarding trebled damages to the plaintiff.
4. Awarding attorneys' fees to the plaintiff.
5. Enjoining permanently each of the defendants from giving (as to Goodyear) or inducing and/or knowingly receiving (as to the defendant competitors) discriminatory prices from Goodyear to any of the defendant competitors, directly or indirectly.
6. Enjoining permanently each of the defendant competitors from opening up (and Goodyear from supplying Tires to) any new retail stores in direct or indirect competition with the plaintiff until such time that the defendant competitor proves that it is no longer inducing or knowingly receiving unlawfully low prices from Goodyear for Tires it is buying as a competitor of the plaintiff.
7. Adjudged and decreeing that the activities of Goodyear constitute a violation by Goodyear of sections 2(d) and 2(e) of the Robinson-Patman Act.
8. Awarding damages against Goodyear in favor of plaintiff in the amount of $5,000,000, which amount will be proved with certainty at the time of trial.
9. Awarding trebled damages to the plaintiff.
10. Awarding attorneys' fees to the plaintiff.
11. Enjoining Goodyear permanently offering any promotional or advertising programs to any of plaintiff's competitors unless (i) the plaintiff is first advised in writing as to any such program, and (ii) the program is made proportionally or functionally available to the plaintiff at the same time as it is offered to any of plaintiff's competitors.
12. Adjudging and decreeing that the Martino Defendants are liable to plaintiff for tortious interference (Count IV), unfair competition (Count V), misappropriation of trade secret (Count VI), and unjust enrichment (Count VII).
13. Awarding damages against each of the Martino Defendants in favor of plaintiff in the amount of $200,000 or more as to each of said Counts, which amount will be proved with certainty at the time of trial.
14. Awarding interest to plaintiff.
15. Adjudging and decreeing that plaintiff is entitled to punitive damages as to each of said Counts in an amount to be specified by the trier of fact.
16. Adjudging and decreeing that Goodyear is liable to plaintiff for breach of contract for failure to pay an annual volume bonus.
17. Awarding damages against Goodyear in favor of plaintiff in the amount of $93,200.
18. Awarding interest to plaintiff.
19. Adjudging and decreeing that plaintiff is entitled to punitive damages in an amount to be specified by the trier of fact.
20. Adjudging and decreeing that Goodyear is liable to plaintiff for breach of contract for failure to pay warranty claims or adjustments.
21. Awarding damages against Goodyear in favor of plaintiff in the amount of $40,000 or more, which amount will be proved with certainty at the time of trial.
22. Awarding interest to plaintiff.
23. Adjudging and decreeing that plaintiff is entitled to punitive damages in an amount to be specified by the trier of fact.
24. Adjudging and decreeing that Goodyear is liable to plaintiff for breach of contract for failure to sell to plaintiff at a promised price.
25. Awarding damages against Goodyear in favor of plaintiff in the amount of $140,000 or more.
26. Awarding interest to plaintiff.
27. Adjudging and decreeing that plaintiff is entitled to punitive damages in an amount to be specified by the trier of fact.
28. Adjudging and decreeing that Goodyear is liable to plaintiff for breach of contract for failure to sell tires to plaintiff at a promised lower price.
29. Awarding damages against Goodyear in favor of plaintiff in the amount of $100,000 or more, which amount will be proved with certainty at the time of trial.
30. Awarding interest to plaintiff.
31. Adjudging and decreeing that plaintiff is entitled to punitive damages in an amount to be specified by the trier of fact.
32. Adjudging and decreeing that Goodyear is liable to plaintiff for violation of the Florida Unfair Trade and Deceptive Practices Act by reason of non-payment of Tire warranty claims.
33. Awarding damages against Goodyear in favor of plaintiff in the amount of $40,000 or more, which amount will be proved with certainty at the time of trial.
34. Awarding interest to plaintiff.
35. Adjudging and decreeing that plaintiff is entitled to punitive damages in an amount to be specified by the trier of fact.
36. Assessing each of the defendants with costs and disbursements; and
37. Awarding to the plaintiff such other and further relief as this Court may deem just and proper.
Plaintiff hereby demands a trial by jury of all issues properly triable to a jury pursuant to Rule 38(b) of the Federal Rules of Civil Procedure.
Dated: New York, New York
October 27, 2003
/s/ CARL E. PERSON
____________________________________
Carl E. Person
Admitted Pro Hac Vice order dated 6/25/02
New York Bar No. 1067511
Attorney for the Plaintiff
325 W. 45th Street - Suite 201
New York, New York 10036-3803
Telephone: (212) 307-4444
Facsimile: (212) 307-0247
carlpers@ix.netcom.com
ROBERT A. PLAFSKY, P.A.
Robert A. Plafsky, Esq.
Florida Bar No. 286125
Attorney for the Plaintiff
750 S.E. 3rd Avenue - Suite 100
Fort Lauderdale FL 33316
Telephone: (954) 767-0107
Facsimile: (954) 767-0109
rplafsky@bellsouth.net
I hereby certify that a true and correct copy of the foregoing was furnished by mail this 27th day of October, 2003, to all counsel of record on the attached service list.
____________________________
Carl E. Person
G. Jack Donson, Jr., Esq.
Jeanne M. Burns, Esq.
Taft, Stettinius & Hollister, LLP
1800 Firstar Tower
425 Walnut Street
Cincinnati OH 45202-3957
Tel: (513) 381-2838
Fax: (513) 381-0205
Attorneys for The Goodyear Tire & Rubber Co.
Isaac J. Mitrani, Esq.
Mitrani, Rynor, Adamsky & Macaulay, P.A.
SunTrust International Center
One Southeast Third Avenue - Suite 2200
Miami FL 33131
Tel: (305) 358-0050
Fax: (305) 358-0550
Attorneys for The Goodyear Tire & Rubber Co.
Michael R. Rickman, Esq.
The Goodyear Tire & Rubber Co.
Law Department
1144 E. Market Street
Akron, OH 44316-0001
Tel: (330) 796-6635
Fax: (330) 796-1819
In-House Counsel for Goodyear Tire & Rubber Co.
Glen R. Goldsmith, Esq.
Glen R. Goldsmith & Associates, P.A.
Two Datran Center
9130 South Dadeland Boulevard - Suite 1509
Miami FL 33156
Tel: (305) 670-5500
Fax: (305) 670-5596
Attorneys for Martino Tires Defendants
Howard L. Kuker, Esq.
9200 S. Dadeland Boulevard - Suite 508
Miami FL 33156
Tel: (305) 670-0987
Fax: (305) 670-1450
Attorneys for Martino Tires Defendants
David Lee Ross, Esq.
Amie K. Riggle, Esq.
GREENBERG TRAURIG, P.A.
1221 Brickell Avenue - 19th Flr.
Miami FL 33131
Tel: (305) 579-0500
Fax: (305) 579-0717
Attorneys for Wal-Mart Stores, Inc. and Sam's West, Inc.
Jeffrey Brian Shapiro, Esq.
Cynthia E. Hollifield, Esq.
ARNSTEIN & LEHR
201 S. Biscayne Boulevard - Suite 400
Miami FL 33131
Tel: (305) 374-3330
Fax: (305) 374-4744
Attorneys for Sears, Roebuck and Co.
Frank E. Pasquesi, Esq.
UNGARETTI & HARRIS
3500 Three National Plaza
Chicago IL 60602
Tel: (312) 977-4400
Fax: (312) 977-4405
Attorneys for Sears, Roebuck & Co.
Benjamine Reid, Esq.
CARLTON FIELDS, ESQ.
4000 International Place
100 S.E. 2nd Street - Suite 4000
Miami FL 33131-9101
Tel: (305) 530-0050
Fax: (305) 530-0055
Attorneys for Tiresoles of Broward
J. Michael Gaither, Esq., General Counsel
P.O. Box 3145
Huntersville NC 28070-3145
Tel: (704) 632-7110
Fax: (704) 992-1320
Attorney for American Tire Distributors, Inc. / Heafner Tire
Group, Inc.
H. Stephen Harris, Jr., Esq.
Debra D. Bernstein, Esq.
Kristine McAlister Brown, Esq.
ALSTON & BIRD LLP
1201 West Peachtree Street, N.W.
Atlanta GA 30309-3424
Tel: (404) 881-7000
Fax: (404) 881-7777
Attorneys for American Tire Distributors, Inc. / Heafner Tire Group, Inc.
John J. Barnhardt, III, Esq.
ALSTON & BIRD LLP
101 S. Tryon Street - Suite 4000
Charlotte NC 28280-4000
Tel: (704) 444-1000
Fax: (704) 444-1111
Attorneys for American Tire Distributors, Inc. / Heafner Tire Group, Inc.
Stephen E. Nagin, Esq.
NAGIN, GALLOP & FIGUEREDO, P.A.
3225 Aviation Avenue
Miami FL 33131-4741
Tel: (305) 854-5353
Fax: (305) 854-5351
Attorneys for American Tire Distributors, Inc. / Heafner Tire Group, Inc.