answer, ERPC mentioned certain of its activities here and stated, in part:
'Articles and press releases
'ERPC has not itself done research for, prepared, published or distributed articles or press releases in the District of Columbia. Pursuant to the contract between ERPC and Carl Byoir & Associates, Inc., the Washington office of Byoir has regularly and continuously done research for, prepared, published and distributed articles and press releases in the District of Columbia. The details regarding the research, preparation, publication and distribution of such material are irrelevant since ERPC admits that if such activities of the Washington office of Byoir, pursuant to the contract between ERPC and Byoir, were performed by such a person and were of such a character as to form the basis of a finding that ERPC was present in the District for purposes of venue and jurisdiction, the quantum and continuity of the activities are sufficient.' (Emphasis supplied.)
Taking this factor into consideration along with the nature of Byoir's work and also having in mind the control and supervision exercised by ERPC over Byoir's activities, it is the conclusion of the court that, within the terms of Section 4 of the Clayton Act, Byoir was an agent of ERPC present in the District of Columbia, and therefore this court has jurisdiction to adjudicate claims brought against ERPC based on the antitrust laws.
Furthermore, the court has considered the amount and nature of the activities alleged to have been carried on by the personnel of ERPC within the District of Columbia, for in the complaint, it is also alleged that ERPC through its own officials regularly transacts business in this district. Merely as an example, the activities of the full time staff of ERPC during the first nine months of 1954 may be considered as representative. Out of a total working time for the three staff officials of about 540 work days, it appears that Mr. David I. Mackie, the Chairman, spent about 41 days in this District on ERPC matters or about 7% of this total. This constitutes a substantial portion of the ERPC business done by the full time staff, and thus meets the tests of the Sperry case above.
An additional consideration should also be stated. In its complaint, plaintiff has alleged that ERPC performed in the District of Columbia certain of the acts that allegedly go to constitute a conspiracy to restrain trade contrary to law. It is argued that the commission of these acts within this district justifies this Court in assuming jurisdiction of ERPC in order to adjudicate plaintiff's charges. There seems to be some conflict as to whether acts done pursuant to an unlawful conspiracy may bring the party within the jurisdiction of the district courts. Those who favor this rule point to certain language used by the Supreme Court in United States v. Scophony Corporation of America, 1948, 333 U.S. 795, 68 S. Ct. 855, 92 L. Ed. 1091, with respect to the problem of venue of foreign corporations under Section 12 of the Clayton Act (15 U.S.C.A. § 22). At page 808, of 333 U.S., at page 862 of 68 S. Ct., the Court stated that Section 12 intended that a 'foreign corporation no longer could come to a district, perpetrate there the injuries outlawed, and then by retreating * * * to its headquarters defeat or delay the retribution due'. Relying on this language, one district judge ruled:
'* * * the Court holds that the sworn charges of the combination and conspiracy in this district, and the commission of acts in the district pursuant thereto directly or by co-conspirators admittedly present here, sustain venue in the eastern district of Virginia.' Ross-Bart Port Theatre Inc., v. Eagle Lion Films, D.C.E.D.Va.1954, 140 F.Supp. 401, 403.
Although these cases involved Section 12 rather than Section 4, as here, there seems to be no good reason why their holdings should not apply with equal strength to this situation.
In view of the above considerations, it is the ruling of the court that defendant ERPC's motion to dismiss the complaint for lack of proper venue is denied. This ruling makes further discussion of the motion to quash return of service unnecessary since it is conceded that Mr. Mackie, the Chairman of ERPC, is the proper official to receive service for the Conference.
Defendants AWR and ERPC are granted fifteen days in which to answer the complaint as supplemented and prayers for relief. Present appropriate order.
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