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RAFFERTY v. NYNEX CORP.

July 23, 1990

Scott J. RAFFERTY, Plaintiff,
v.
NYNEX CORPORATION, et al., Defendants


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE.

 Pending before the Court is the summary judgment motion of defendants NYNEX Corp. and Telco Research Corp. (a NYNEX subsidiary), seeking the dismissal of a number of antitrust, contract, and tort claims relating to plaintiff's termination as a senior vice president of Telco. Plaintiff, a lawyer who is proceeding pro se, asserts that he was fired as a result of inquiries he made to determine whether Telco was violating the consent decree entered in United States v. American Tel. & Tel., 552 F. Supp. 131 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001, 75 L. Ed. 2d 472, 103 S. Ct. 1240 (1983). Upon its consideration of the parties' voluminous papers, the Court grants the motion in part and denies it in part.

 I Facts

 In April 1986, NYNEX acquired Telco and recruited Rafferty to serve as its second senior officer and the head of its consulting division. NYNEX is a Regional Company subject to the consent decree entered on August 24, 1982 in the AT & T antitrust case, which bars the Regional Companies from certain lines of business -- long distance telephone services, telecommunications manufacturing, and information services. *fn1" Telco markets telecommunications management software and consulting services.

 Rafferty has alleged that Theodore Engkvist, a NYNEX executive and chairman of Telco's board, informed him that the company had obtained a waiver to perform, inter alia, non-software consulting, although the company had obtained only a "software waiver" to provide and market software and associated services which did not cover its non-software consulting operations. *fn2" Plaintiff was concerned whether the activities of his division complied with the decree, and he asked NYNEX's attorneys on October 20 and 22, 1986 to provide an opinion letter confirming Engkvist's representations that the activities were within the scope of the waiver. *fn3" On November 10, 1986, Telco's management discharged Rafferty for what it asserts are legitimate reasons, and it closed the consulting division he had been hired to head. Eventually, plaintiff brought this action, which consists of six separate claims.

 The Court analyzes below each of these claims in light of the facts and the law adduced by the parties. This task has been complicated by the fact that the plaintiff who, although a lawyer, appears to have limited familiarity with several of the legal issues and principles involved. Additionally, the basis for plaintiff's reasoning and his conclusions are not always easy to follow, see, e.g., notes 6 and 9, infra, and, as the Court occasionally notes at appropriate places, he sometimes misrepresents the law, the facts, and the position of his opponents, *fn4" and he quotes statements from court decisions out of context. *fn5" Because plaintiff is proceeding pro se, the Court has attempted to ascertain or construct what he meant where the rationale of his assertions is confusing, and on that basis some of his claims are upheld. However, greater exactitude and less verbosity *fn6" will be required hereafter.

 II First Claim: Antitrust

 Plaintiff's first claim seeks redress for what he broadly describes as a violation of the antitrust laws. As best as the Court can tell, *fn7" Rafferty alleges that his termination for seeking legal advice *fn8" and for refusing to acquiesce in violations of the consent decree, as well as other actions taken by Telco and NYNEX, violated the decree and therefore also Section 4 of the Clayton Act. *fn9" There are several flaws to this claim of a violation of Section 4.

 First. Section 4(a) of the Clayton Act grants a private right of action to persons injured "by anything forbidden by the antitrust laws." Section 1 of the Act, 15 U.S.C. § 12, contains a specific definition of "antitrust laws" for purposes of Section 4(a), and that definition is "exclusive." Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 375-76, 2 L. Ed. 2d 340, 78 S. Ct. 352 (1958). See also, New Jersey Wood Finishing Co. v. Minnesota Mining & Mfg. Co., 332 F.2d 346, 350 (3rd Cir. 1964), aff'd, 381 U.S. 311, 14 L. Ed. 2d 405, 85 S. Ct. 1473 (1965) ("antitrust laws" means specific statutes listed in Clayton Act Section 1; other statutes not included). There is no support for the proposition that violation of a consent decree violates Section 4 of the Clayton Act. *fn10"

 Indeed, it has been specifically established that a private party cannot premise a treble damage action under Section 4 upon violations of a government consent decree. Paul M. Harrod Co. v. A.B. Dick Co., 194 F. Supp. 502, 504 (N.D. Ohio 1961); *fn11" See also, Sound, Inc. v. American Tel. & Tel. Co., [1979-2] Trade Cas. para. 62,974, at 79,547-48 (S.D. Iowa 1979, aff'd, 631 F.2d 1324 (8th Cir. 1980)); Cinema Service Corp. v. Twentieth Century-Fox Film Corp., 477 F. Supp. 174, 177-78 (W.D.Pa. 1979); Control Data Corp. v. International Business Machines Corp., 306 F. Supp. 839, 846 (D.Minn. 1969), aff'd, 430 F.2d 1277, 1278 (8th Cir. 1970).

 Second. The weight of authority holds that employees do not have standing under Section 4. See, e.g., Adams v. Pan American World Airways, Inc., 264 U.S. App. D.C. 174, 828 F.2d 24 (D.C.Cir. 1987). Plaintiff relies on Ostrofe v. H.S. Crocker Co., 740 F.2d 739, 744 (9th Cir. 1984), and Donahue v. Pendleton Woolen Mills, Inc., 633 F. Supp. 1423, 1429-30 (S.D.N.Y. 1986), which create an exception for "whistleblowers," but most of the courts which have considered the issue have rejected the holding of these cases. See Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 210 (6th Cir. 1989); Bichan v. Chemetron Corp., 681 F.2d 514 (7th Cir. 1982); Boisjoly v. Morton Thiokol, 706 F. Supp. 795, 804-05 (D.Utah 1988); Thomason v. Mitsubishi Electric Sales of America, Inc., 701 F. Supp. 1563, 1570 (N.D.Ga. 1988); Reitz v. Canon USA Inc., 695 F. Supp. 552, 553-54 (S.D.Fla. 1988), and Haigh v. Matsushita Electric Corp., 676 F. Supp. 1332, 1346 (E.D.Va. 1987). *fn12" In any event, Rafferty has testified that he is not a whistleblower. Rafferty Deposition at 1088-89. Accordingly, the Court can find no basis for extending the holding of Ostrofe and Donahue13 to the circumstances here.

 Third. Plaintiff asserts that he suffered the requisite "antitrust injury" because he lost his job at Telco and has not secured comparable employment. However, "only harm stemming from a reduction in competition qualifies as an injury cognizable under the antitrust laws." Adams, 828 F.2d at 26. *fn14" Rafferty does maintain that he was an "arguable beneficiary" of the allegedly illegal conduct while employed by Telco, Opposition at 20-21, but he does not -- indeed he cannot -- contend that his injury resulted from a reduction in competition. *fn15"

 For these reasons, it is the Court's conclusion that Count One ...


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