Citations
- 427 F. Supp. 389
Full opinion text
PUTNAM, Senior District Judge.
The plaintiffs in this case, Marshall Roberts and Guy Benitez, allege violations of the antitrust laws by defendant, Exxon Corporation. Benitez operated two automatic service stations for Exxon from June 2, 1969 to September 6, 1971 under the terms of a “Commission Manager” contract under which he is considered by defendant as an employee of the company. Roberts, on the other hand, has operated as an independent dealer for Exxon in this area and continues to so act. The gravamen of the complaint is the fact that Exxon fixes the retail prices for the sale of its gasoline products at the stations operated by the “Commission Manager”, Benitez. The threshold question is whether or not this plaintiff is in fact an employee of Exxon or, for purposes of the antitrust laws, an independent business man.
The parties have stipulated the facts on this issue and both have moved for summary judgment based upon this stipulation. The record is most voluminous. The authorities cited by able counsel are legion. After reviewing the facts agreed to, the affidavits filed in support of the motions and the briefs, we reach the conclusion that the motion of plaintiffs should be granted and hold that for all intents and purposes this “Commission Manager” agreement confected by defendant is nothing more than a consignment of goods to Benitez enabling Exxon to fix retail prices at the pump.
A detailed review of the uncontested issues established by the record is not necessary for purposes of this decision. Suffice it to say that Benitez was clothed under the “Commission Manager” agreement with many of the attributes of an independent business man and also with many attributes of an employee. He operated his own independent garage and repair business on the premises occupied by him with defendant’s permission, he sold tires, batteries, and accessories (TBA) furnished to him by defendant on consignment and for which he was paid a commission based upon a fixed percentage. All gasoline and petroleum products used in the service station business was sent to him by Exxon ostensibly as Exxon’s own goods, but which he kept and stored at his own risk except for losses resulting from acts of God or other forces beyond his control. On gasoline he was paid a commission varying from three and half to four and a half cents per gallon, depending upon the price and quality of the gasoline sold. Exxon fixed all prices. The agreement was terminable at will by either party. If the prices were not competitive and plaintiff Benitez lost money, it was his loss; there was no minimum income guaranteed to him. Regardless of the appellation given to his relationship with the defendant, the status of the goods in commerce was no different than the status of the goods in the lease consignment agreement before the Court in Simpson v. Union Oil Co., 1964, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98. We view it as a retail price fixing arrangement and a per se violation of Section 1 of the Sherman Act, 15 U.S.C.A. § 1.
Since the decision in Simpson, it is clear that the relationship of the commission manager vis-a-vis the defendant distributor or manufacturer under general principles of master and servant is not the main issue in such litigation. Cf. Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26; Greene v. General Foods Corp., 5 Cir. 1975, 517 F.2d 635, Part III, at page 647 et seq., and Goldinger v. Boron Oil Co., W.D.Pa.1974, 375 F.Supp. 400.
In Greene, supra, Judge Wisdom as the organ of the court gives an excellent discussion of the development of the law before and after Simpson v. Union Oil Co., supra. Given a device such as the commission manager agreement in this case as it is interpreted by defendant in addition to its already overwhelmingly powerful economic arsenal, would enable Exxon to underprice and drive from the market place all independent distributors or dealers in its petroleum products, thereby depriving the public of the benefit of competitive prices in a substantial area of the business.
For the foregoing reasons, the motion for summary judgment on the issue of whether or not plaintiff Guy Benitez was an employee of the defendant Exxon is decided in favor of plaintiffs. The motion for summary judgment filed by Exxon is denied.
In view of the stipulation filed in the record on May 6, 1975, paragraph 5, to the effect that in the event plaintiffs prevail in their motion there may be further proceedings before this court to determine causation, impact, damages, and the defendant’s counterclaim, which will involve a lengthy trial of these issues, the question of law presented by this motion is controlling. Since there is clearly substantial ground for difference of opinion, and an immediate appeal may materially advance the ultimate termination of the litigation, we will certify it for an immediate appeal under 28 U.S. C.A. § 1292(b).
The attorneys for plaintiffs will forthwith prepare a formal order in keeping with the forging, for signature by the Court. Judgment shall not be entered by the Clerk until such order has been signed and filed.
Rendered at Lafayette, Louisiana, April 29, 1976.
ADDENDUM I
942-0105-1 S-1440-1 /S # 2163
LAFAYETTE, LOUISIANA
SERVICE STATION MANAGER AGREEMENT
THIS AGREEMENT made this 9th day of MARCH, 1970, between HUMBLE OIL & REFINING COMPANY, a Delaware corporation, having an office at 1211 Union Avenue
(Address)
_, _Memphis_, _Tennessee_
(City) (State)
hereinafter called “Humble”, and _GUY E. BENITEZ_,
whose address is 2307 W. ST. MARY BLVD. LAFAYETTE LOUISIANA
(Address) (City) (State)
hereinafter called “Manager”.
WITNESSETH:
1. EMPLOYMENT
Humble hereby employs Manager, commencing on the 9th day of March 1970, subject to all the terms and conditions hereof, to superintend, manage and operate its service station located at_II. S. 167 & Chalmette Drive_, _Lafayette_, _Louisiana_.
(Address) (City) (State)
2. HUMBLE’S PRODUCTS
Humble shall make, or cause to be made, deliveries of motor fuels and such other products as Humble shall select to the service station from time to time, in such quantities as Humble shall determine. Title to such products shall remain in Humble until sold for Humble’s account when title shall pass directly from Humble to the service station customer. All sales of Humble-owned products shall be at retail prices fixed by Humble from time to time.
The entire proceeds of all sales of Humble-owned products, both cash and service station delivery tickets pursuant to approved credit card sales, are the property of Humble. Manager shall segregate such proceeds and hold the same in trust for Humble' until delivery to Humble as hereinafter provided.
Manager shall account to Humble for sales of its products by remitting to Humble daily, or at such other time as Humble may specify, all delivery tickets on credit sales plus Manager’s own check, bank cashier’s draft or money order, as Humble may require, for all cash sales made since Manager’s last previous accounting, or. shall otherwise account and make remittances as required by Humble!
3. OTHER PRODUCTS
Manager may with Humble’s consent purchase from Humble and others and resell other products and accessories usually sold at service stations.
4. SERVICES
Manager shall perform service work usually rendered at service stations, and shall comply with the instructions of Humble with respect to the performance of such service work and the prices to be charged therefor. Manager shall account to Humble for proceeds received for service work as required by Humble.
5. COMMISSIONS
Manager shall receive commissions on sales of Humble-owned products and on service work in accordance with Schedule “A” attached hereto and made a part hereof. Humble shall have the right to revise said Schedule “A” from time to time.
6. DUTIES OP MANAGER
Manager agrees to conduct a first-class service station business upon the premises; to render to the public courteous, efficient and prompt service; to keep the service station premises in a clean, healthful and attractive condition; and to comply with all instructions of Humble as to standards of service and hours of operation. Manager and personnel operating the service station shall wear uniforms acceptable to Humble.
Manager shall keep such records and make such reports and accountings as Humble may require for all business done at the service station, and Humble may at any time examine such records, reports and accountings and make such inventories and inspections as it deems necessary. Manager agrees to retain or to turn over to Humble as Humble may require such records of business done at the station as in Humble’s opinion may be necessary or required for federal, state or local tax audits.
Manager shall take proper care of all real and personal property of Humble that is placed in his charge, and will make all minor repairs and adjustments and will promptly notify Humble of all necessary major repairs. A complete list of all equipment owned by Humble and located upon the premises is attached hereto as Schedule “B”, and Manager hereby acknowledges receipt of such equipment in good condition.
Manager assumes responsibility for Humble-owned products delivered to the station and for proceeds received from the sale thereof, and for proceeds from service work, and for equipment shown on Schedule “B”, but Manager shall not be liable for loss of or damage to the same or to the service station building where Manager can show that such loss or damage was caused by fire, explosion, storm or other acts of God, or by causes beyond Manager’s reasonable control.
Manager shall hire adequate personnel satisfactory to Humble to properly operate the service station, and shall be responsible for supervising such personnel in the performance of their duties in accordance with all instructions of Humble as to standards of service and employment. The wages paid such personnel by Manager and their hours of work shall comply with the requirements of State or Federal Law where applicable.
Manager has no authority and agrees not to obligate Humble on any contract, warranty or guarantee, or to bind Humble’s credit in any respect whatsoever, unless expressly authorized by Humble in writing.
7. MISCELLANEOUS COSTS OF OPERATION
Miscellaneous costs of operation including, but not limited to, supplies, licenses, claims, insurance, heating, cooling, electricity, water, telephone and other utilities, shall be borne as provided in Schedule “C” attached hereto.
8. TAXES
Manager shall collect, account for and deliver to Humble all excise and sales taxes applicable to sales of Humble-owned products, products and accessories purchased from Humble and others for resale and service work performed hereunder. Humble will file the necessary excise and sales tax returns and remit amounts due thereon to the proper taxing authorities. Manager agrees to bear any additional tax, interest and penalties which result from Manager’s failure to collect, account for and deliver to Humble such excise and sales taxes, or which result from Manager’s failure to keep proper records with respect to such taxes.
Manager shall withhold and pay over to Humble all amounts that are required by any law to be withheld with respect to the salaries, commissions or wages of Manager and other station personnel (including, but not limited to, federal, state and local income taxes, social security taxes, and state unemployment taxes or disability fund payments, if any). Humble will file the necessary returns and remit amounts collected from Manager to the proper taxing authorities and will also pay to such authorities the additional taxes, contributions and moneys due by Humble with respect to Manager and other station personnel in Humble’s capacity as an employer.
Humble agrees to file necessary returns and make payment to the proper authorities for all taxes levied or assessed against all of Humble’s real and personal property situated in and upon the premises and all other business taxes which may be levied or assessed against the premises or the business or operations conducted thereon, except that Manager shall be responsible for and agrees to file necessary returns and make payment to the proper authorities for federal, state and local income taxes due and payable from Manager and for taxes levied or assessed against all of Manager’s property situated in or upon the premises.
9. TERMINATION
Humble or Manager may terminate this Agreement at any time by written notice to the other delivered in person or mailed to the address set forth above.
Upon termination of this Agreement, Manager shall vacate the service station premises and surrender custody of all of Humble’s property and equipment, including products not theretofore sold, and deliver to Humble the proceeds of all its products which have been sold since the last previous accounting and any other sums due Humble. Humble shall repurchase from Manager, at Manager’s cost of acquisition, such products or accessories as Manager has in stock which Manager purchased from Humble and which are in good condition.
Any property owned by Manager, which is not removed from the premises by Manager within 24 hours after the termination of this Agreement, may be stored by Humble for Manager at Manager’s sole risk and expense or may be rented by Humble for $1.00 per month until it is removed or otherwise disposed of by Manager.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed the day and year first above written.
HUMBLE OIL & REFINING COMPANY
Is! John L Ovento__By(s)_D H Luncford-
Witness
(s)_E C King_ (si Guv E. Benitez
Witness Manager
Alternate
(Rev. 3/18/69) S/S2
SCHEDULE“A” TO SERVICE STATION MANAGER AGREEMENT
In full payment for all sales made and all services performed by Manager and Service Station Attendants hereunder, HUMBLE shall pay Manager Commissions as set forth below in this Schedule “A” subject to HUMBLE’s right to revise or change such schedule from time to time. Unless otherwise expressly authorized by HUMBLE, the Manager shall remit all sales, less commissions, each day following the sale.
Manager’s commissions on sales of HUMBLE-owned products shall be as follows:
A. MOTOR GASOLINE AND DIESEL FUEL:
1. HUMBLE’S Branded Motor Fuel:
ESSO.
Retail Price ((t/Gal.l Commission (