Download Oriental Brothers Ihe Oma ##BEST##
Sharmaine Kass
The relationship between Rome and the East is one of mutual spiritual and liturgical enrichment. Indeed, the Church of Rome would not be truly catholic without the priceless riches of the Oriental Churches and lacking the heroic testimony of so many of our Oriental brothers and sisters who purify the Church by accepting martyrdom and offering their lives so as not to deny Christ.23
The work of the Curia in this area is aimed at fostering encounter with our brothers and sisters, untying the knots of misunderstanding and hostility, and counteracting prejudices and the fear of the other, all of which have prevented us from seeing the richness in diversity and the depth of the Mystery of Christ and of the Church. For that mystery is always greater than any human words can express.
Plaintiff Elsea is the sole shareholder of Carpet Group. Carpet Group is a Virginia *259 corporation in the business of arranging the sale of oriental rugs from foreign manufacturers to retailers in the United States.
Defendant Bashian Bros. is an importer and wholesaler of oriental rugs. Bashian Bros, is a member of the Oriental Rug Importers Association, Inc. ("ORIA"), a trade association comprised of importers and wholesalers of oriental rugs. George G. Bashian, Jr. ("Bashian"), president of Bashian Bros., was at all relevant times on the executive board of ORIA.[3] Defendant Etessami & Sons was a small, family-owned and operated oriental rug wholesaler, and a member of ORIA.[4] Etessami, at all relevant times, was the secretary/treasurer of Etessami & Sons. Etessami was also the president of Defendant ORIA in 1992 and 1993. Defendant Noonoo is an importer of oriental rugs, and a member of ORIA. Defendant Newman is the president of Noonoo.
The American oriental rug market typically involves manufacturers in countries such as Pakistan, Turkey and India, and wholesalers who import the rugs to the United States and then sell the rugs to retailers who sell them to the public. Plaintiffs believe that the importing of rugs through wholesalers then to retailers causes higher rug prices. In response, Plaintiffs created a method to bypass the wholesalers by: (1) taking U.S. retailers on buying trips to the countries where the rugs are produced where they could purchase the rugs directly from the manufacturers; and (2) operating trade shows in the United States where foreign manufacturers could sell directly to retailers. Plaintiffs excluded wholesalers, such as Defendants, from these trade shows.
On remand, this Court is now presented with the motions for summary judgment, pursuant to FED. R. Crv. P. 56(c), of several of the Defendants.[5] Bashian Bros. seeks summary judgment against Plaintiffs' Sherman Act claims on the basis that there is no evidence suggesting that it was a part of any conspiracy to restrain trade or that it monopolized, attempted to monopolize, or conspired to monopolize the importing and wholesale distribution of oriental rugs in the United States. Bashian Bros. also seeks summary judgment as to Plaintiffs' tortious interference claims.
As a self-described "representative body of the private business and industry," it is clear that PCMEA and other similar associations within the FCPPI are "composed, at least in part, of persons with economic incentives to restrain trade." Id.; see also Allied Tube, 486 U.S. at 501, 108 S. Ct. 1931. Importantly, Salehji's assertions, without more, do not demonstrate that the Pakistani government so fully relied upon the PCMEA in formulating oriental rug industry policies such that the PCMEA retained government-like authority. Cf. Wheeling-Pittsburgh Steel Corp. v. Allied Tube & Conduit Corp., 573 F. Supp. 833, 838 (N.D.Ill.1983) (Municipalities' adoption of professional associations' standards and complete reliance on their testing procedures in the promulgation of industry requirements "resulted in a near complete delegation of governmental authority to these otherwise private entities," and thus established a quasi-governmental agency under Noerr-Pennington.).
In reviewing the evidence, this Court must draw all reasonable inferences in favor of the non-moving party Plaintiffs. This Court concludes that Defendants did not simply lobby Pakistani government to deny CGI support, but that they themselves engaged in efforts to undermine Plaintiffs' trade shows. Indeed, most of Plaintiffs' allegations are directly attributable to Defendants' behavior, rather than any government action. Even if Defendants' ultimate goal was to secure Pakistani government support of their position on the appropriate chain of distribution in the oriental rug industry, SCTLA teaches that the injuries resulting from such efforts may still be the basis for antitrust liability. 493 U.S. at 425, 110 S. Ct. 768. Defendants have failed to demonstrate that Plaintiffs' injury was caused solely or even primarily *268 by government action, particularly in light of this Court's finding that the CEPC and PCMEA are private entities. Thus, Plaintiffs' injury cannot be classified as "incidental to [Defendants'] valid effort[s] to influence governmental action." Allied Tube, 486 U.S. at 499, 108 S. Ct. 1931. To the contrary, any action secured on the part of the Pakistani government would have been in addition to Defendants' own attempts to undermine CGI's efforts.
In a letter to Beijing DDB Needham Advertising, dated September 25, 1992, ORIA, through its Executive Director, Lucille Laufer ("Laufer"), admitted that it strongly recommended to two trade publications that they "not accept ads from manufacturers, because their retail readership would contact manufacturers directly, cutting out the importer." (Fierst Decl., Ex. 5.) A year later, in a September 1, 1993 memorandum, Plaintiffs noted that Rug News-one of the trade publications mentioned in Laufer's letter-rejected advertising by CGI with the explanation that it did not accept ads *269 promoting foreign manufacturers, and asserting that CGI's trade fair would damage oriental rug importers. (Id., Ex. 24.);
Plaintiffs' attempt to draw an inference of Bashian's participation in the ORIA conspiracy from Newman's July, 1, 1992 letter is also far-reaching. It is important to note that the letter relates Newman's concern with the "flagrant copying of [carpet] designs" rather than Plaintiffs' attempts to bypass the wholesaler/importer in the sale of oriental rugs. (Ira Asen Cert., Ex. H.) Thus, Newman's statement that "I and my fellow importers such as Mansour Rahmanan and George Bashian, Jr. say to you: It is time to put our house in order," bears little if any relevance to the conspiracy alleged against Plaintiffs. (Id.) Plaintiffs do not suggest that they were targeted for copying carpet designs. Accordingly, their reliance on this evidence is without merit.
"Unlike the proof required for monopolization or attempted monopolization, the proof required to demonstrate a conspiracy to monopolize does not require a proof of market power in a relevant market." Appraisers Coalition v. Appraisal Institute, 845 F. Supp. 592, 603 (N.D.Ill. 1994). Rather, Plaintiffs may show a conspiracy to monopolize by demonstrating that there was "(1) an agreement or understanding between two or more economic entities, (2) a specific intent to monopolize the relevant market, (3) the commission of an overt act in furtherance of the alleged conspiracy, and (4) that there was a dangerous probability of success." Urdinaran v. Aarons, 115 F. Supp. 2d 484, 491 (D.N.J.2000) (citing Farr v. Healtheast, Inc., 1993 WL 220680, *11 (E.D.Pa.1993)). Defendants' specific intent to monopolize the importing and wholesale distribution of oriental rugs may be inferred from proof of actual monopoly power. Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 154 (3d Cir.1981).
The Etessami Defendants first claim that there is no evidence that Etessami, as an individual, possesses monopoly power: (1) Etessami is not in the business of importing oriental rugs and therefore has no market share whatsoever; and (2) Etessami as an individual possesses no power to prevent newcomers from entering the market. (See Etessami Decl. 11.) *285 This Court agrees. In fact, Plaintiffs do not contend that Etessami, separate from Etessami & Sons, possesses market power. (Pls.' Opp. to Etessami Defs. at 29-32.) The Etessami Defendants' motion for summary judgment is therefore granted as to Plaintiffs' monopolization and attempted monopolization claims against Isaac Etessami. See Appraisers Coalition, 845 F. Supp. at 602-03 (dismissing plaintiffs' monopolization and attempted monopolization claims where no allegation with respect to market power of individual defendants).
The Etessami Defendants' defense of Plaintiffs' conspiracy to monopolize claims is merely a regurgitation of their challenges to the evidence supporting Plaintiffs' section 1 claim. (Etessami Defs.' Mem. at 17; Etessami Defs.' Reply at 17.) This Court has already determined that Plaintiffs have raised a genuine issue as to whether the Etessami Defendants engaged in the ORIA conspiracy to undermine *286 Plaintiffs' trade fairs. Indeed, the evidence suggests that one of the purposes of the conspiracy was to exclude Plaintiffs from the U.S. oriental rug market. This would support Plaintiffs' conspiracy to monopolize claim.
In order to show Defendants' intent to monopolize-either through direct evidence, or as an inference from their possession of monopoly power-Plaintiffs must produce evidence demonstrating that Defendants had the ability to exclude competition from the relevant market, or that Defendants retained a dominant share of the market.[33]Pennsylvania Dental Assoc., 745 F.2d at 260; E.I. du Pont de Nemours, 351 U.S. at 391-92, 76 S. Ct. 994; Great Escape, 791 F.2d at 541. In this vein, the Third Circuit's finding that Plaintiffs' evidence indicates Defendants' intent to eliminate its U.S. competition is more instructive.[34]Carpet Group, 227 F.3d at 75. That the Third Circuit did not state such an intent specifically as to the Etessami Defendants is irrelevant. Defendants do not cite, nor could this Court find, any case law requiring that Plaintiffs prove a specific intent as to each individual member of the conspiracy. To the contrary, because this Court has already found a genuine dispute as to the Etessami's knowing participation in the ORIA conspiracy, evidence suggesting that other ORIA members possessed an intent to monopolize the oriental rug industry may be imputed to the Etessami Defendants.
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