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Melrose Realty Co. v. Loew's

July 12, 1956

MELROSE REALTY CO., INC.
v.
LOEW'S, INCORPORATED, ET AL.



Before BIGGS, Chief Judge, and MARIS, GOODRICH, MCLAUGHLIN and HASTIE, Circuit Judges.

Opinion of the Court

Per Curiam: In a petition for rehearing the plaintiff reiterates its arguments that the case is distinguishable from Harrison v. Paramount Pictures, Inc., 3 Cir. 1954, 211 F.2d 409[5], cert. den. 348 U.S. 828, and that in any event that case was wrongly decided by us and should be overruled. We adhere to the rule laid down in the Harrison case. We think that it is a sound rule and that it is applicable to this case. Accordingly the petition for rehearing will be denied.

BIGGS, Chief Judge, dissenting.

In affirming the decision of the court below, this court has adhered to the principle expressed in Harrison v. Paramount Pictures, Inc., 115 F.Supp. 312, 316-317 (E.D. Pa. 1953), and 211 F.2d 405 (3 Cir. 1954), that the lessor of a motion picture theatre, who receives as part of his rent a percentage of admission fees, cannot maintain a suit against its lessee under Section 4 of the Clayton Act, 15 USCA ยง 15, despite the fact that the lessee has conspired against it in violation of the antitrust laws and, in furtherance of the conspiracy, has agreed to show third-run pictures with consequent lower admission fees and lower rent. Recovery is denied the lessor on the ground that it does not possess a property interest cognizable under Section 4 and that the injury to the lessor's property right is too "remote" to give it locus standi .

The lessor suffers property damage because of the illegal act of the lessee arising out of the conspiracy and that injury is direct and not remote. The lessor should receive the protection of the Clayton Act. See Steiner v. 20th Century-Fox Film Corp. F.2d (9 Cir. March 15, 1956).*fn1 Cf. Hempstead Theater Corp. v. Metropolitan Playhouse, 308 N.Y. 712, 124 N.E.2d 332 (1954) and Vines v. General Outdoor Advertising Co., 171 F.2d 487 (2 Cir. 1948).

I am of the view that this court sitting en banc should review the very important issue presented. For that reason I ...


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