Famous Five 1978

[Alix Stocking]

Asa producer at Sunshine Hospital Radio, I am always on the lookout for interesting events to cover or people to interview that, hopefully, will be of interest to the patients at Weston General Hospital.

With the planned release of all the 1978/79 Southern TV Famous Five episodes on DVD, it seemed the perfect moment to find out more and relive some of my lost youth by speaking with Marcus Harris, also known as Julian from the 70's series.

It was really great to meet up with Marcus and spend time reminiscing not only about the series but also the 1970s, an era now lost, where life seemed much safer and children could still dream that the sort of adventure written about the five could, just possibly, happen to them.

Five men believed to be mobsters were taken into custody on Thursday on charges of murder and other crimes linked to an long-unsolved 1978 Lufthansa heist at New York's John F. Kennedy International Airport, an FBI spokeswoman said.

The arrests in the three-decades-old crime, made famous by the 1990 Martin Scorsese film "Goodfellas," were the result of an FBI search last summer at the New York home of James "Jimmy the Gent" Burke, said FBI spokeswoman Kelly Langmesser.

Monitor journalism changes lives because we open that too-small box that most people think they live in. We believe news can and should expand a sense of identity and possibility beyond narrow conventional expectations.

This is an action brought by Marvin W. Morse that charges violations of the antitrust laws, breach of contract, tortious interference with a contract, fraud, and negligence. In the instant motion, defendants Max J. Bellest and Coordinating Office, Inc. ("Bellest defendants") and Pierre Cardin and S.A.R.L. de Gestion Pierre Cardin ("Cardin defendants") ask for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rules"). Defendant Bellest individually moves for a stay of deposition. For the reasons set forth below, summary judgment is granted in favor of the Bellest defendants on the fourth and fifth causes of action only; it is denied as to all other defendants on all causes of action and denied as to the Bellest defendants on the other causes of action against them. Bellest's motion to stay his deposition is also denied.

Plaintiff Morse is a New York citizen who negotiated with the Cardin defendants to obtain a license for the sale of Pierre Cardin lighters. Defendant Pierre Cardin is a French citizen and is a world-famous designer of men's and women's clothing, jewelry, and related product lines. Defendant S.A.R.L. de Gestion Pierre Cardin ("SARL"), also a French citizen, is the designer in corporate form. Defendant Max Bellest is a New York citizen. He is employed by and is the sole shareholder of Bellest Corporation, a New York entity that, as an independent contractor, represents SARL in the United States and Canada by supervising licensing agreements between Cardin and the Canadian and American licensees. Defendant Coordinating Office, Inc. ("CO"), incorporated at Bellest's suggestion, is likewise a New York corporation that coordinates promotions, advertising, and merchandising by American licensees of Pierre Cardin trademarked products. Defendant Swank, Inc. is incorporated in Delaware and has its executive offices in New York. Swank manufactures, distributes, and sells jewelry and related items under the Pierre Cardin trademark. It has exclusive distribution rights in the United States on some items of men's and women's jewelry and leather accessories.

Late in 1975, plaintiff Morse began selling Pierre Cardin lighters in duty-free shops in the United States through an unexplained arrangement with Cardin. Based on his success in selling the lighters in this market, Morse decided to expand to reach the American market generally. In August 1977 he contacted CO to begin negotiating for such a Pierre Cardin license. CO referred Morse to the Cardin office in Paris. During the next several months, Morse and Herve Duquesnoy of SARL negotiated over terms of the prospective license; however, in a letter dated March 24, 1977, Duquesnoy informed Morse that the negotiations were at an end because the license had been promised to defendant Swank. Letter from Herve Duquesnoy to Mr. Worse [sic], appended as Exhibit I of Affidavit of Howard Breindel, sworn to February 16, 1978 ("Breindel Affidavit").

In his letter terminating negotiations with Morse, Duquesnoy referred to a longstanding relationship between Cardin and Swank that began at least as early as October 13, 1967 when those two parties entered a licensing agreement for the manufacture and sale of men's jewelry and related product lines. The term jewelry was understood to include lighters. The agreement *663 gave Swank exclusive rights to market the specified items except, as is relevant here, "to jewelry manufactured of precious metals or containing precious stones, retailing at a price in excess of $75.00 per item." Cardin-Swank Agreement, dated October 13, 1967, 1, appended to Cardin Defendants' Motion for Summary Judgment ("1967 Agreement").[1] However, while Swank began exploring the marketing of Cardin lighters in 1975, see Affidavit of John A. Tulin, sworn to April 1978, Exhibits A, B (letters from prospective suppliers of Cardin lighters providing requested prices) ("Tulin Affidavit"), not until March 8, 1977 did Marshall Tulin, vice-president of Swank, write Pierre Cardin to tell him of Swank's decision to consider the sale of lighters as provided for in the 1967 Agreement. Two weeks later, SARL, through Duquesnoy, terminated further negotiations with Morse.

The amended complaint[2] alleges five causes of action. The first is founded on an antitrust theory wherein Morse sues all five defendants under Section 1 of the Sherman Act, 15 U.S.C. 1 (as amended). He alleges a combination and conspiracy in unreasonable restraint of trade to bar him from marketing Pierre Cardin lighters and thereby competing with Swank, claiming that Cardin's breached agreement, refusal to deal, and consummation of "the Swank Contract" were all acts in pursuit of the combination and conspiracy to restrain trade. Morse claims injury to himself, restrained competition in the distribution and sale of Pierre Cardin lighters and in the use of the Pierre Cardin trademark, and reduced consumer choice.

Morse's second cause of action appears to be aimed at Pierre Cardin alone.[3] He alleges that on or about March 10, 1977 Morse and Cardin entered an agreement for the distribution of Pierre Cardin lighters and that Cardin breached that agreement shortly thereafter. This cause of action relates to the third, which alleges that Swank, Bellest, and CO tortiously interfered with the Morse-Cardin agreement.

The fourth and fifth causes of action are pleaded alternatively to each other and only if the Swank contract is found to have been executed prior to the purported agreement with Morse. On one theory, Morse charges that Pierre Cardin and the Bellest defendants defrauded him by making materially false statements as to Cardin's trademark rights. Alternatively, Morse alleges injury by the same defendants through negligent misrepresentations.

Jurisdiction over the antitrust cause of action is founded on Sections 4 and 16 of the Clayton Act, 15 U.S.C. 15, 26 (as amended). Jurisdiction over the second through the fifth causes of action is founded in diversity, 28 U.S.C. 1332, and in the doctrine of pendent jurisdiction.[4]

*664 The Cardin and the Bellest defendants have filed separate motions for summary judgment, but they join in most contentions. Their version of the facts centers on an alleged "mistake" by Herve Duquesnoy, a young Frenchman in the SARL organization: according to the defendants, Duquesnoy negotiated with Morse over the license to sell Pierre Cardin lighters without realizing that Cardin had previously licensed Swank to sell such lighters, and when Duquesnoy became aware of the other agreement, he so informed Morse and referred him to Swank for any further discussions.

This innocent explanation is buttressed by several legal arguments, particularly that the record establishes that the plaintiff is not the real party in interest; that the defendants never restrained trade nor conspired to, but that Cardin acted within his trademark rights in refusing to grant another lighter license; that the Morse-Cardin negotiations never ripened into an agreement and, accordingly, no agreement was breached; that no defendant induced a breach of any agreement; and that any mistakes by anyone in the Cardin organization do not constitute fraud or negligent misrepresentation.

The standards for summary judgment in the Second Circuit have changed over time. Compare Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (deny summary judgment if there is the "slightest doubt" as to the facts), with Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972) (when movant shows adversary's claim is baseless, opponent "must adduce factual material which raises a substantial question of the veracity or completeness of the movant's showing or presents countervailing facts"), and Dressler v. MV Sandpiper, 331 F.2d 130, 132-33 (2d Cir. 1964) (respondent's vague and conclusory allegations would not be sufficient under Rule 56 to deny summary judgment). Even with the more liberal interpretation of Rule 56, however, the "fundamental maxim" remains, as Chief Judge Kaufman pointed out, that "the court cannot on such motions try issues of fact; it can only determine whether there are issues to be tried." Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). A court must resolve ambiguities against the movant and draw reasonable inferences in favor of the opponent, with the burden on the moving party of establishing that there are no genuine issues of material fact to be tried. Id. at 1320 (citations omitted).

Defendants contend that Morse is not the real party in interest because the Morse negotiations for a Cardin license were allegedly on behalf of Morse Typewriter Co. or a group of joint venturers, but not with Morse individually. Affidavit of Sydney J. Schwartz, sworn to February 28, 1978, 5(a) ("Schwartz Affidavit"). In response, Morse offers an assignment of claims from his apparent partners or coventurers,[5] an assignment which the Bellest defendants, in turn, challenge for lack of specificity (citing failure to identify the cause of action and the business to which the assignment refers), failure to include a third venturer and failure to indicate the assignment as the basis for this suit. Bellest Defendants' Memorandum at 5-6. Their charges are insufficient, however, to demonstrate the invalidity of the assignment *665 as a matter of law. New York law, to which the Court must look to measure the effectiveness of the assignment, does not take a rigid view of assignments. As long as the claim can be transferred, "the transfer . . . passes an interest, which the transferee may enforce by an action." N.Y. Gen. Oblig. Law 13-105 (McKinney 1978). "Any claim or demand can be transferred," id. 13-101, unless it runs afoul of certain exceptions that defendants have not shown to be applicable. At best the challenges to the assignment merely point to factual matters unclear on the record.

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