Associated General Contractors of California, Inc. v. California State Council of Carpenters

Justice Marshall,

dissenting.

Section 4 of the Clayton Act provides that a damages action may be brought under the antitrust laws by “fajny person who [has been] injured in his business or property by reason of anything forbidden in the antitrust laws.” 15 U. S. C. § 15 (emphasis added). Despite the absence of an “articula-ble consideration of statutory policy” supporting the denial of standing, Blue Shield of Virginia v. McCready, 457 U. S. 465, 473 (1982), the Court today holds that the intended victim of a restraint of trade does not constitute a “person who [has been] injured in his business or property by reason of anything forbidden in the antitrust laws.” Because I believe that this decision imposes an unwarranted judge-made limitation on the antitrust laws, I respectfully dissent.

Congress’ adoption of the broad language of § 4 was not accidental. As this Court observed in Pfizer Inc. v. India, 434 U. S. 308, 312 (1978): “Congress used the phrase ‘any person’ intending it to have its naturally broad and inclusive meaning. There was no mention in the floor debates of any more restrictive definition.” Only last Term we emphasized that the all-encompassing language of § 4 “reflects Congress’ ‘expansive remedial purpose’ in enacting § 4: Congress sought to create a private enforcement mechanism that would deter violators and deprive them of the fruits of their illegal actions, and would provide ample compensation to the victims of antitrust violations.” Blue Shield of Virginia v. McCready, supra, at 472 , quoting Pfizer Inc. v. India, supra, at 313-314 .

In keeping with the inclusive language and remedial purposes of §4, this Court has “refused to engraft artificial limi *547 tations on the §4 remedy.” Blue Shield of Virginia v. McCready, supra, at 472 (footnote omitted). 1 Thus, for example, in Pfizer Inc. v. India , the Court held that the statutory phrase “any person” is broad enough to encompass a foreign sovereign. In Reiter v. Sonotone Corp., 442 U. S. 330 (1979), the Court likewise adopted an expansive reading of the statutory term “property,” ruling that a consumer who pays a higher price as a result of a price-fixing conspiracy has sustained an injury to his “property” and therefore has standing to sue under § 4.

The plaintiff unions fit comfortably within the language of § 4. The complaint alleges that plaintiffs suffered injury as a result of a restraint of trade that was “designed to weaken and destroy plaintiffs and each of them.” Complaint ¶26. The Court does not suggest that a union is not a “person” within the meaning of § 4, or that plaintiffs cannot prove injury to their “business or property.” Moreover, it would require a strained reading of § 4 to conclude that a party that an antitrust violation was aimed at cannot prove that it suffered injury “by reason of” an antitrust violation.

Far from supporting the Court’s conclusion, ante, at 531-533, the common-law background of the antitrust laws highlights the anomaly of denying a remedy to the intended victim of unlawful conduct. Since antitrust violations are essentially “tortious acts,” Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 264 (1946), 2 the most apt analogy is to the common law of torts. Although many legal battles have been fought over the extent of tort liability for remote conse *548 quences of negligent conduct, it has always been assumed that the victim of an intentional tort can recover from the tortfeasor if he proves that the tortious conduct was a cause-in-fact of his injuries. An inquiry into proximate cause has traditionally been deemed unnecessary in suits against intentional tortfeasors. 3 For example, if one party makes false representations to another, intending them to be communicated to a third party and acted upon to his detriment, the third party can bring an action for misrepresentation against the originator of the false information if he suffers injury as a result. 4 Indeed, in many situations the common law holds *549 an intentional tortfeasor liable even for the unforeseeable consequences of his conduct. 5 I am not aware of any cases exonerating an intentional tortfeasor from responsibility for the intended consequences of his actions merely because he inflicted harm upon his victim indirectly rather than directly.

This case does not implicate the sort of “articulable consideration of statutory policy” which we have deemed necessary to deny standing to a party encompassed by the language of §4. Blue Shield of Virginia v. McCready, 457 U. S., at 473 . In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977), we denied standing to parties that suffered injury because an illegal acquisition prevented them from reaping profits that they would have reaped had the acquired firms been permitted to fail. We reasoned that permitting recovery for “the profits [plaintiffs] would have realized had competition been reduced” would be “inimical” to the purposes of the antitrust laws, id., at 488 , since plaintiffs’ injuries did not “reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation,” id., at 489 . This consideration of statutory policy is not applicable here, for plaintiffs allege that they suffered injury as a result of the defendants’ efforts to coerce and induce letters of construction contracts and others to deal with nonunion carpentry firms solely because of their nonunion status. If plaintiffs prove their allegations, they will prove that they suffered harm attributable to the anticompetitive consequences of the defendants’ restraint of trade.

Nor does the present case implicate the consideration of statutory policy underlying this Court’s decisions in Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977), and Hawaii v. Standard Oil Co., 405 U. S. 251 (1972). Critical to the denial of standing in those cases was the risk of duplicative recovery that would have been created by affording the plain *550 tiffs standing. 6 In Illinois Brick the Court held that an indirect purchaser has no standing to sue a seller on the theory that overcharges paid to the seller by a direct purchaser were passed on to the indirect purchaser. 431 U. S., at 730-731 . If the Court had held in Illinois Brick that the indirect purchaser has standing, sellers would have faced the prospect of two treble-damages actions based on the same overcharges. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968), had established that a direct purchaser can sue a seller for the entire amount of the seller’s overcharges, and that the seller cannot assert as a defense that the direct purchaser passed the overcharges through to its customers (the indirect purchasers). Similarly, in Hawaii v. Standard Oil Co., where the State of Hawaii sought to recover for financial harm allegedly suffered by the general economy of the State, the Court denied standing because “[a] large and ultimately indeterminable part of the injury to the ‘general economy,’ as it is measured by economists, is no more than a reflection of injuries to the ‘business or property’ of consumers, for which they may recover themselves under §4.” 405 U. S., at 264 . 7

There is no risk of double recovery here. The plaintiff unions seek recovery for injuries distinct from those that other parties may have suffered. One such distinct injury *551 plaintiffs may have suffered is a decrease in union dues resulting from a reduction in work available to union members. In addition to regular dues, it is not uncommon for employees to pay periodic dues representing a percentage of their wages. See R. Gorman, Basic Text on Labor Law 650 (1976). 8 If union members lost work as a result of the alleged restraint of trade, their wages and thus the dues collected by the plaintiff unions may have been reduced.

Any recovery of lost dues by the plaintiff unions would not duplicate recoveries that might be obtained by either unionized carpentry firms or employees of those firms. A recovery of lost dues by a union would not duplicate a recovery for lost profits that might be obtained by a firm for which union members worked, for union dues are not an element of a firm’s profits. Nor would a recovery of lost dues by a union duplicate recoveries of lost wages that employees might obtain. Although periodic union dues are based on a percentage of wages, there would be no double recovery because union dues would be subtracted from lost wages in calculating the employees’ damages. The Hanover Shoe rule barring the assertion of a “pass-through” defense would not prevent subtraction of union dues from wages in determining the employees’ damages. The Hanover Shoe rule was designed to avoid the “additional long and complicated proceedings involving massive evidence and complicated theories” that would be required to determine the extent to which price overcharges were passed through to an indirect purchaser. 392 U. S., at 493 . In sharp contrast, where union dues are a percentage of wages, there is no difficulty in determining the amount of dues that a union lost as a result of a reduction in the wages earned by union members.

*552 I recognize that it may not be easy to ascertain to what extent any reduction in union dues was attributable to the defendants’ conduct. But our cases make it clear that “[i]f there is sufficient evidence in the record to support an inference of causation, the ultimate conclusion as to what the evidence proves is for the jury.” Perkins v. Standard Oil Co., 395 U. S. 642, 648 (1969) (reinstating jury verdict based on injury indirectly caused by price discrimination in violation of the Robinson-Patman Act). Insofar as the amount of damages is concerned, an antitrust plaintiff need only provide a reasonable estimate of the damages stemming from an antitrust violation. See Bigelow v. RKO Radio Pictures, Inc., 327 U. S., at 266 . “‘Difficulty of ascertainment is no longer confused with right of recovery,”’ id., at 265 , quoting Story Parchment Co. v. Paterson Co., 282 U. S. 555, 566 (1931), and “[t]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created,” 327 U. S., at 265 .

Any concern the Court may have that the plaintiffs cannot prove their case does not justify throwing them out of court solely on the basis of the pleadings. If, during discovery, it becomes apparent that plaintiffs cannot establish a reasonable inference of causation or cannot provide evidence supporting a rational estimate of damages, they will be vulnerable to a motion for summary judgment. Dismissal for failure to state a claim is too crude a procedural device to be used to vindicate the “interest ... in keeping the scope of complex antitrust trials within judicially manageable limits.” Ante, at 543.

Cf. Radovich v. National Football League, 352 U. S. 445, 453-454 (1957) (given Congress’ determination that the activities prohibited by the antitrust laws are “injurious to the public” and its creation of “sanctions allowing private enforcement of the antitrust laws by an aggrieved party,” “this Court should not add requirements to burden the private litigant beyond what is specifically set forth by Congress in those laws”).

See Karseal Corp. v. Richfield Oil Corp., 221 F. 2d 358, 363 (CA9 1955) (antitrust action is basically a suit to recover “for a tort”).

See Restatement of Torts § 279 (1934) (“If the actor’s conduct is intended by him to bring about bodily harm to another which the actor is not privileged to inflict, it is the legal cause of any bodily harm of the type intended by him which it is a substantial factor in bringing about”); id., Comment c (“There are no rules which relieve the actor from liability because of the manner in which his conduct has resulted in the injury such as there are where the liability of a negligent actor is in question. Therefore, the fact that the actor’s conduct becomes effective in harm only through the intervention of new and independent forces for which the actor is not responsible is of no importance”) (citations omitted); id,., § 280 (same rule applies to conduct intended to cause harm other than bodily harm); Seidel v. Greenberg, 108 N. J. Super. 248, 261-269, 260 A. 2d 863, 871-876 (1969); Derosier v. New England Tel. & Tel. Co., 81 N. H. 451, 464, 130 A. 145, 152 (1925) (“For an intended injury the law is astute to discover even very remote causation”).

The Court’s reliance on Sutherland’s treatise on damages is misplaced. Ante, at 532-533, n. 25. Although Sutherland stated as a general proposition that a defendant is not liable to a plaintiff for injuries suffered as a result of the defendant’s conduct with respect to a third party, he distinguished cases in which “the wrongful act is willful for that purpose,” by which he presumably meant cases in which the defendant intended to injure the plaintiff. 1 J. Sutherland, Law of Damages 55 (1882) (footnote omitted). In the examples given by Sutherland and cited by the Court, there is no suggestion that the defendants intended to inflict injury upon the plaintiffs.

See, e. g., Watson v. Crandall, 7 Mo. App. 233 (1879), aff’d, 78 Mo. 583 (1883); Campbell v. Gooch, 131 Kan. 456 , 292 P. 752 (1930). See generally Prosser, Misrepresentation and Third Persons, 19 Yand. L. Rev. 231, 240-242 (1966).

See, e. g., W. Prosser, Law of Torts 32-33 (4th ed. 1971) (doctrine of transferred intent); id., at 67-68 (trespasser is responsible for unforeseeable consequences of his trespass).

See Blue Shield of Virginia v. McCready, 457 U. S. 465, 474-475 (1982) (noting that Illinois Brick and Hawaii v. Standard Oil Co. “focused on the risk of duplicative recovery engendered by allowing every person along a chain of distribution to claim damages arising from a single transaction that violated the antitrust laws”).

Significantly, the risk of duplicative recovery that the Court relied on in both Illinois Brick and Hawaii v. Standard Oil Co. is not simply a judicially invented reason for restricting the broad scope of § 4. Permitting two recoveries based on the very same injuries would be contrary to the basic statutory scheme governing damages actions, for the result would be to subject antitrust defendants to sextuple-damages awards rather than the treble-damages awards that Congress contemplated. See 2 P. Areeda & D. Turner, Antitrust Law § 337d (1978).

Since we have only the pleadings before us, we do not know how the plaintiff unions collect their dues. However, plaintiffs are entitled to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) if there is any set of facts that, if proved at trial, would entitle them to recover.