Amicus Curiae Brief — City of New York v. United States

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FEB 24 1979

: . ay the 3 eres

‘Supreme Court of the CiWROBRs

_ October Term, 1969 FEB 541970

Let OFPCE OF THE LER

CITY OF NEW YORK, te

Appellant,

UNITED STATES OF AMERICA, AUTOMO-

BILE MANUFACTURERS ASSOCIATION,

“! “ ING., GENERAL MOTORS CORPORATION,

FORD MOTOR COMPANY, CHRYSLER COR-

PORATION, and AMERICAN MOTORS COR-

PORATION,

| Appellees.

“On Appeal from the United States District Court for the

Central ewe: of California.

BRIEF AMICUS CURIAE ON BEHALF OF THE COUN-

TY OF LOS ANGELES (CALIFORNIA) AND THE

AIR POLLUTION CONTROL DISTRICT OF THE

COUNTY OF LOS ANGELES, IN SUPPORT OF AP-

PELLANT. CITY OF NEW YORK.

: JOHN D. MAHARG,

: County Counsel

. JOHN H. LARSON,

: Chief Assistant County Counsel

; DAVID D. MIX,

Assistant County Counsel

TRAVERS D. WOOD, :

Deputy County Counsel

-. 648 Hall of Administration

Los Angeles, California 90012

soa Attorneys for Amici.

WESTERN PRINTING COMPANY, WHITTIER—-OXBOW 6-1743

PCLERK

INDEX

| Statement of the Creme ca i mate 1

_ Interest of Amicus Curiae

, we

eee oe sp 8

ee |

I. Introduction... sept sctai

II. The Consent Judgment Frustrates Access

to the Facts of the-Alleged Conspiracy ......... 10

JIT. The Decree Fails .to Provide Safeguards

Necessary to. Promote the Congressional

Purpose of Assisting Individual Litigants .. 12

IV. The Consent Decree Entered Below Is Not in

14 ‘ihe Publie Interest... << D

- Summary of Argument .. es Deine aE

Contineion. - ues a ee ee

APpPeCMAx 2. cseee seo Re aha RS P-ne Pt Saiteatoee Bes la

‘ Opinions of District Court... eee wr “la

B. Complaint of United States replant Sodus l7a .

C. J udgment of District ont aCe —. Se

D. Statutes RAI SS IN ich CRO ee

— Index

CITATIONS si (stits ea

Cases | Pages ;

Bruces Juices, Ine. v. American Can Co., 330 US. 7

743 (1947) aw 14°

Cascade Natural Gas Corp. v. El Paso Natural

Gis Co., 386 U.S. 129 (1967) eeccceecnnmnnnngunnnndy BB

Cinammon v. Abner A. Wolf, Inc., 215 F. Supp. $33

(E.D.Mich., 1963) 14, 17, 18

Commonwealth , Edison Co v. Allis-Chalmers Mfg.

Co., 211 F. Supp. 729 (N.D.II1., 1962 | pemee

Emich Motors Corp. v. General Motors a 340

US. 558 (1951). is cater |e

Hanover Shoe_ Ine.,-v. United Shoe Machinery

— Corp., 377: F.2d 776 (8rd Cir., 1967), aff'd. in

part, reversed in part, 392 U.S. 481 (1968) .2...... 14

H. P: Hood & Sons, Inc.,. Docket No. 7709, 58 F.T.C. |

1184 (1961) .. a 25, 2%, 2B

Karseal Corp. v. . Richfield Oil pene * 221 Fr. 2d 358

(9th Cir., 1955) - boda i cease casas a

Minnesota Mining and Manufacturing Co. v. New

Jersey Woodfinishing Co., 381 U.S. 31i coahe aa 7

pica se are 14, 24, 25, 28, 29

New Saal sey + Weak Finishing Co. v. . Minnesota Min-

ing & Manufacturing Co., 332 F.2d 346 (3rd Cir., ©

1964), aff’d. 381 U.S. 311 (1965) . 29

‘Olympic Refining Co. v. Carter, 332 F.2d 260 (9th

Cir., 1964), cert. denied, 379 U.S. 900 (1964) ..24, 26

Philadelphia Housing Authority v. American Rad- —

iator and Standard Sanitary Corp., 269 F. Supp.

540 (E. D.Pa;, 1867)... 14, 2, 3

Index : il

/ Pages

Sam Fox Publishing Co. v. JU nited States, 366 U.S.

ee CN es ui ‘ 38

Swilt € Co. vy. v nite a State S, 276 U.S. 311 (1928) .. 9

United States v. Allied Chemical Cor p., 1961 Trade :

~~ Cas., Par. 69,923 (D. Mass. |) en 1, 21

U nited States v. Rituminous Concrete Assoc., 1960

Trade Cas., Par. 69,878 .(D.Mass., 1960) ....... 11, 21

United States v. Carter Products si Ine., 211 F.

Supp. 4 (SiDINVY., 1962) ccc Si cee

United States v. Harper & Row Publishers, Inc.,

and Related Cases, 67 -C. 612 through 67 C. 629

(N.D.DILS Nov. 20, 1967, unpublished) . sin eas 28, 29

United States v. Lake Asphalt & Petrolscans Co. of.

Mass., 1960 Trade Cas., Par. 69,835 (D.Mass.,

aR eee inde sees Mee renee NIE Fa Saissccoancedes eaciskiadeg 11, 21

United States: v. Standard Ultramarine and Color

Co. 137 FL Supp. 106 (S.DINY., 1955) occ. B2

United States v. Swift & Co., 286 U.S. 106 (1932) .. 19

Statutes .

CALIFORNIA HragtuH g SAFETY Cope, Sections 24198-

Stats. Ist Ex. Sess.. Ch. 23 (Calif. Lees) occ 6

U.S. Sup. Ct. Rule 42(4), 28 Uis.@. cc pe 4

15 U.S.C. § A and B _....... 14. 16, 20, 25, 26, 31; 37

pen ee ee ee ee

ea OD a ec ie MEAT ONT

iv Index

Miscellaneous

Page

Antitrust Handbook, Federal-State Conference on

Antitrust Pr ‘oblems, U.S. Dept. of Justice (1969) |

“Bicks, ‘The TDevartusent of Justice end’ Private

- Treble Damage Actions,"’ + Antitrust Bull. 5

(1959) rence £0 a oe tae I sgleusataaseamccleruatatae a

C: Kaysen gx D. F. Turner, ANTITRUST & LEGAL

So ER UaRAR Ee Sid eed RR IMAI RF ed

Loevinger Handling a Plaintiff's Antitrust Dam-

age Suit, 4 Antitrust Bull. 29 (1959) ene 26

MacIntyre, **The Role of ant Private Litigant in

~ Antitrust Enforcement,’ 7 “Antitrust Bull. 118

rrr s

(ieee) Ricans erate Oe Oe 12, 15, 16

~ P. ARRERA, ANTITRUST ANALYSIS (1967) ccoocnnnnninnn 13

The Government and the Private Antitrust Suit,

Dept. of Justice Release, December 11, 1969 .......... 11

U.S. Code Cong. & Ad. News 2329 (1959), S. Rep.

No. 619, 84th Cong., Ist Sess., 7 21, 1955 lt ae

Sn the

Supreme Court of the Gnited States

October Term, 1969 he

No.

CITY OF NEW YORK, |

; Appellant,

VS.

UNITED STATES OF AMERICA, AU'TOMO-

BILE MANUFACTURERS ASSOCIATION,

INC., GENERAL. MOTORS CORPORATION,

} FORD MOTOR COMPANY, CHRYSLER COR-

‘PORATION, and AMERICAN MOTORS COR-

-PORA’ TION,

Appellees.

BRIEF AMICUS CURIAE ON BEHALF OF THE COUN-

TY OF LOS ANGELES (CALIFORNIA) AND THE

AIR POLLUTION CONTROL DISTRICT OF THE

COUNTY OF LOS ANGELES, IN SUPPORT OF AP-

PELLANT CITY OF NEW YORK.

STATEMENT OF THE CASE

. As early as 1953, defendants-appellees (other than

the United States of America) and a number of. al-

leged co-conspirators were engaged in a combination

“and ‘conspiracy in Unreasonable restraint of the inter- _

-state trade and commerce! in le peas air pollu-

ISuch trade and commerce is described in Section V ot the C complaint filed

by the United States against defendants-appetlees on January 10, 1969. See

Appendix B. infra, pp. 20a-21.

“

scoala

tion control equipment. Thes@mbination and con-

spiracy “consisted of a continuing agreement, wnder-

standing, and concert of action among the defendants-

- app elfees and co-conspirators, the-details of which are

set out in Appendix BS

A-Federal Grand Jury was impaneled in’ L906 to

investigate the practices of the automotive industry

regarding the aforesaid anti-competitive practices. As

-a-result of the evidence assembled by the Grand Jury

over an eighteen month period, the United States, on

Tanhary 10, 1969, filed a civil complaint charging ap-

pellees and a number of alleged. co-conspirators with

violation of Section-l of the Sherman Act, 15 U.S.C. 8 1.

The Complaint essentially charged that an agreement

to eliminate all competition in the development of air

pollution control equipment had been entered into by

and between defendants-appellees and their alleged co-

cons} irators, and that they had agreed and conspired -

“to install motor vehicle air pollution control equip-

ment only upon a uniform date determined by agree-

ment, and subsequently agreed on at least three sep-:

arate occasions to attempt to delay the installation of

motor vehicle air pollution control equipment.

Defendants-appellees were neither required to nor

did they answer the complaint. Rather, a proposed

final Judgment and stipulation that judgment could-be

“See Sections VI and VEL of the Complaint, Appendix B, intra, pp. 2la-23a,

which sections set forth the offenses alleged and the effects atuributable to the

aforesaid combination and conspiracy.

‘See Complaint, Section VI, I4¢e) (1)-(3), Appendix B, intra, pp. 22a-23a.

iniilioks

entered was filed in the District Court*on September

11, 1969.* ‘Subsequently, the District Court entered an

order setting the matter for hearing: on October 28,

1969. At the conclusion of oral argument on the above-

mentioned date, the Court denied all applications for ’

‘Intervention and approved the consent decree as sub-

mitted by the parties.” Judgment was eutered on Octo-

ber 29, 1969.

On December 17, 1969,’*the District Court denied a

second application by appellant City of New York for

leave to intervene. Thereatter, on December 22, 1969,

appellant City filed.a notice of appeal in the United

States District Court for the Central District of C: uli-

fornia, alleging appellate jurisciction in this Court by

virtue of 15 U.S.C. § 29." That appeal led to the filing .

of appellant's J tidlesicu Statement, in support of

which this brief. Amicus Curive is submitted. ra

————

‘The Stipulation provided that the United States might withdraw its con-

sent before the expiration of 30 days; thereafter judgment could be entered.

‘The District Court also denied a motion to consolidate a se parate action,

filed by Marshall B. Grossman and S. Jerome Tamkin on September 17, 1969,

with the action instituted by the United States. Messrs. Grossman and Tamkin

ave since initiated a separate appeal to this. Court, a Jurisdictional Statement

A their behalf having been filed sometime prior to the rammed of this brief

Amicus Curiae.

“See also Cascade Natural Gas Corp. ». El Paso Natural Gas Ki 386 U.S.

129, 131 (1967); Sam Fox Publishing Co. >. United States, 366 U.S. 683

(1961). : ‘

INTEREST OF AMICUS CURIAE

This brief Amicus Curiae is, submitted on behalf, of

- the County of Los Angeles’ (California). and the Air

Pollution Control District of the County of fos An-

geles, anid i support of the Jurisdictional Statement

filed with this Court on January 26, 197 (0, by appellant

City of New York.’ The amici here have substantially

the same inte rest, us appellant."

° «

| There ‘is hardly nied: to imention thie continuing

pr oblem air pollution poses for major urban areas such -

as New York City-and the Los ae sa The

urgency of the situation, especially in Los Angeles

~- County, where both the humuzin and the iadtemobile pep-

ulation are increasing rapidly, has never beew more ob-

- Vious:..\ solution to the control of automobile cinissions

mist he forthe ‘oming carly in the new decade.

The ( ‘ounty of Los Angeles and the Air Pollution

Control District have been actively engaged in the

control of air pollution for over two decades, The Air.

Pollution Contre) Law. of 1947 (Cat. Heart &

Sarety Cove), adopted ‘by the California Legislature

*Since amicus here is a political subdivision of the State of California, let-

ters of consent to filing of this rs f. or a motion for leavé to file, are unne-

cessary. U.S. Sup. Ct. Rule 42(4), 28 U.S.C. It is fyrther hoped that the

Court will give fale conskle hei to this brief, despite late filing. No notice

of this appeal was received until nine’ days after appellant filed its ‘Jurisdic-

tional Statement.\The period since then has been occupied with the writing

and printing of this brief. Pursuant to the advice of the office of the Clerk of

this Court, typed qopies of this brief were served upon all-parties prior to the

‘filing of printed gapies with the Clerk.

“A motion for leavé to intervene, submitted by aniuct to the District C ourt

reciting substantially the same grounds as the motion submitted by appellant

was denied below. © | ; ; em

is recognized and used throughout the uation as a niodel

_ for effective air pollution’ control regulations.

The Air Pellution Control District has expended.

approximately. $60,000,000. of “pulilic funds since its

creation under the Act. Its program, its rules and reg-

ulations, and its effectiveness are recognized through-

out the nation and the world. No agenéy, including the ©

State of California and the Federal Government, can

claim even to approach the record of the District in

the field of air pollution a Be. 4 \

Los Angeles County, wiff?its low wind velovities -

and frequent temperature inversions, is especially sus-

ceptible to air pollution. Emissions of air coutaminants

from stationery sources are strictly controlled by law ;

but each day motor Vehicles discharge 12.000 tons 6f

hydrocarbons, carbon monoxide, oxides of- nitrogen,

and other ( ontaminants into the air of the Los Angeles

Basin. :

; , |

The fact.that emissions from motor vehicles polite .

the air has been known for inany vears. In the carly

1950's the automobile was clearly identified by scien-

tists as the primary cause of the typical Los Angeles

pliotochemic al ‘ smog.”

These matters Were known to the automobile manu-

facturers; and County officials regularly informed

them and communicated with the in. The mimufaeturers

neither recognized that they had any re <ponsibility for

developing air pollution coutrol devices ner did. they

“make any substantial effort to develop them.

—b—

a In 1955, the inanufacturers entered into the agree

ments Which’ constituted the alleged combination in

restraint of ‘tr ade. In 1953 the cross-licensing and

‘most favored purchaser” agreenients were made. Ne

devices were produced. :

In 1960, the California Legislature, convinced that

no progress would be made voluntarily by the mar

facturers, adopted statutes: which in’ effect required

air pollution control devices on new automobiles. (Stats.

Ist Ex, Sess. 1960, Ch. 23). The manufacturers were

successful, however, in delaying the “positive crau-

case ventilation system”’ device until 1963 and the ex

hause control devi ice until the 1 L966. model,

Jn recent years,. the hianufacturers atlemptert to

pull the tecth of the California Legislature by hav trig’

the United States Congress occupy the field. Lu this

effort they were partially successful. (See: 42 U.S

. Sec. 1857f-6a)

Tn the meantine, it hecame well-established know!

edge that air, pollytion from motor vehicles seriously

damaged ¢rops, forest trees, and other property. There

was firm evidence in the 1950's ‘that it also aggravated

respiratory diseases, such us emphysema. Many thous

ands of people have been ordered by their physivi latin ty

leave Los Angeles because 6f the effect of air pollution

upon their health. There is little doubt tht breathing

polluted air causes or contributes to the causation of vi

variety of respiratory diseases.

—

From its experienc e, the Nir Pollution Control

District is conviniced that the automobile manutactur-

ers. will do only those things in the field o° air pollu

_ tion which they are required by Jaw te dey and that it

perinitted to do so, they will collectively resist an) “uc ‘h

regulation, 7 of

— Inthe light of the facts tllesed bya the Uanted States

in its complaint,’ it appears clear that the conspiracy

has already accomplished its purpose, No reasonable >

man would conclude that any such agreement could

forever protect. the indfistry. Its sele purpose must

have heen to accotiplish: one thing —delay, Obvieusly.

it has succeeded. The monetary gain to the industry

from the de ‘lay inust -be estimated: in billions of dol-

lars. The resulting irreparable damage to the publie

cannot even be estimated. The Coruty and the public

are justly concerned about the faet thiat thik automobile

industry appears te have conuuitted a serious and eal-

culated act of fraud? in violation of fede ral iw, and

to have escaped any penalty for havins donesso. The

judgment entered below does nie Leer te the detend-

ants, It merely protects thein froma naolie trial Which

would reveal the details of the conspiracy alleged. not

conly to the public and a concerned Congress. but alse.

to those private Individtaials aul public aceneies which

have just and lawful elaine ‘agains? the alleged con-

SPLRATORS, Indeed. the. ¢ halleng ed cetise nt jndemnent

cmv be worth as muc ‘h in dollars to the indnst ry as the

or isin delay,

» “See Appendix Bopp 2la-23a

‘It will be our purpose, in this brief, to show, first,

that the consent judgment entered below frustrates Qhe

‘ability of private litigants to obtain the informayfon

which the United States Attorney General and the

Federal (Grand Jury were able-to obtain; second, that

the decree fails to provide safeguards necessary to pro-

mote the Congressional purpose of hssisting individual

litigants; and third, that the particular cousent judg-

ment in this cise is not in the public interest.

ARGUMENT

I. INTRODUCTION. |

The entry of a consent decree in antitrust cases is a

judicial function, the force of which is not to adjudi-

‘ate the merits of the contested issues posed by the Gov-

erhment’s complaint, bu rather to decide whether or

not the court should ex@rcise its equity powers in such *

a fiéshion as to make. the provision of the proposed

settlement’ betiveen’ the Government and the defend-.

wuts a decree of the court.” [t appears tobe the general

View that the public interest is most often served by

judicial approval of such decrees.'' Nevertheless, ‘tit

is the court’s.duty to protect the rights of persons who -

are not parties to the action and, ef course, the decree

should not be approved if it is contrary to the public

interest.""* Consequently, where ‘countervailing con-"—

United States v. Carter Producti Co., Inc., 211 F. Supp. 144, 148 (SD.

N.Y.,’ 1962) . ~

yd. .

12See Appendix A. Opinions of the District Court, Oral Opinion, at p. 3a.

| 7

scciliad

siderations of a substantial nature are present, a court

would be justified in refusing to enter such a decree.”

There are several factors whier sugyest that in this

case the consent judgment should hot arg

een ap-

proved.

Consent decrees have been a traditional mechanism

for the settlement of antitrust controversies without

the burden of protracted litigation. As such they have

justly received validation by this Court." The theory

behind such judgments has been that the décree itself,

if properly drafted, will -meet the anticompetitive

practices alleged in the complaint and thus protect the

public interest via the maintenance of unrestricted

market forces, The approval by the District Court of

the consent decree here in question Was evidently

grounded on this rationale.

The public interest, however, is not protected by a

consent decree entered in a case Where such interest is

obviously more than economic.” Increased air ‘pollu-

tion leads to increased ‘social costs”, such as respira-

tory disease and crop damage," the implications of

. Which should be considered **countervailing consider-

13211 F. Supp. 144, 148, supra.

ies & Co. v. United States, 276 U.S. 311 (1928)

See Appendix A, infra, Oral Opion, at p. 5a. Memorandum Olohdea.

pp. l3a-l4a.

6Most activity in our sdciety, of course, can be said to have economic im-

plications.. Reference here ix,made to the more precise concept of market

economics with which antitrast legislation has tradition ally dealt

7A more detailed discussion of the effects of ais poll ution appears in the

section of this brief entitled “Interest of Amicus Curiae hee nnin at p. 5

—10— : < .

ations of a substantial nature.”’ Furthermore, it is not

clear in a case such as this that the Federal Govern-

ment is the only arbiter of the public interest. Califor-

nia, for example, has established far-reaching statutory

authority to allow local agencies to deal with air pol-

hition." In fact, it w ould appear that the public interest

could not possibly be served where the United States

vigorously opposes the intervention of other respon-

siblé public bodies," especially: Where the social effects

of the decree which it authored are so obvious.

Il. THE CONSENT JUDGMENT FRUSTRATES AC-

CESS TO THE FACTS OF THE ALLEGED CON-

_ SPIRACY.

It was strongly contended below that any person

with an action. pending will be able to secure the same

information which the United States Attorney Gen-

‘al and the Federal Grand Jury were able to obtain,

cs discovery proceedings. This argument is with-

out merit.

The federal investigation of pa matter continued

over a period of approximately two years, with the -

Grand Jury,in session over 18 manths. The acts of thé

alleged conspiracy investigated took place over a per-

See Catiporsia Heatta & Sarery Cope, Secuons 24198624341

’The United States filed a -28 page brief with the District Court on Oc-

tober 17, 1969, responding to and opposing the various applications to inter-

vene. including ‘detailed comments in support of the then proposed consent

decree. Intervenors included, among others, the City of New York and the amici

—u—

iod of at least 12 years (1953-1965), and perhaps over

a long yer period.

AN of the powers of the Department of Justice and |

of the Grand Jury were available to the investigators,

aud we understand that they were used. Llow many wit-

nesses were called we do not know, but judging froni

the time expended there must have: beeil a great many.

We do know that the documents examined numbered

at least several hundred. Those which the Attorney

General thought important enough to name required

22 pages of legal-sized paper Just to list.

-'The faéts of an altitrust case are difficult enough

for the non-federal attorney to obtain. Llere, where the

alleged conspiracy is in essence an agreement not to

develop a product, and to avoid regulation, the rele-

vent facts will be difficult to identify, uot to mention

difficult to find. The cost of attempting: to duplicate

the feder ‘al investigation would be astronomical in time

and money.

Furthermore, the decree contains neither a limited

admission, of guilt® nor is there any provision for re-:

leasing the doc ‘uments to pr ivate litigants. If nothing

else, the omissions in the decree demonstrate that the

United States did not adequately represent the ap-

pellant or the amie? herein. ,

"Reference here is made to the use of an “asphalt clause.” urged below by

appellant and antict. See United States v.- Lake As phalt © Petrolewm Co. of

* Maoss., 1960 Trade Cas., par. 69,835 (D. Mass. 1961): United States.¢. Allied

Chemucal Corp., 1961 Trade Cas., par. 69,923 (D. Mass. 1968) De nited States

?. Bituminous Concrete Assoc., 1961 Trade Cas., par. 69.878 D. Mass. 1960) -

The Government and the Private Antitrust Suit, Dept. of Justice Release.

December 11, 1969, p. 13.

In summary, there is no merit to the contention

that the consent. decree does not hamper, if not pre-

clude, discovery of the facts of the alleged conspiracy.

"No one can assert that there is more than a possibility

that the relevant facts would be revealed. “Chis is not

uough. \ 3

lll. THE DECREE FAILS TO PROVIDE SAFEGUARDS

NECESSARY TO PROMOTE THE CONGRES-

SIONAL PURPOSE OF ASSISTING INDIVID-

UAL LITIGANTS.

In its scheme for enforcement of the antitrust laws, _

Congress contemplated both federal, and individual °

‘actions to achieve the broad social Sue of the statute.

New Jersey Woodfinishing Co. v. Minnesota Mining

and Manufacturing ('o., 332. FF. of IB 300-351 (3rd

Cir., 1964), aff*d. 881 ULS. 311 (1965); Aurseal Corp.

v. Richfield. Oil Corp., 221 F.2d 358, 365 (9th Cir.,

1955); see also, MacIntyre, “The Role wf the Private

Litigant in Antitrust Enforcement,” 7 Autitrust Bull.

113 (1962).*

This scheme of public and private enforcement was

contained in the original enactment of the Sherman Act

in 1890 and has since been strengthened by the passage

of the Clayton Act in 1914 and in subsequent amend-

meuts in 1959.

214. Everett MacIntyre, Commissioner, Federal Trade Commission.

K os ok

The enactment of private treble damage previsions

in the Act made the public an ally of the federal gov-

ernment and the private suit a substantial weapon of

national antitrust policy, Professor Phillip Arceda,

of the Harvard Law School and a specialist in Anti-

trust law, remarked as follows:

“Such a remedy hot only compensates private

persons for their injuries, but gives them a power-

ful financial incentive to enforce the antitrust laws.

The result is that public enforcement, which is ii-

evitably selective and least likely to concern itself

With local, episodic, or less than flagrant viola--

tions, is supplemented by private enforcement.

Which increases the likelihood that a violator will

be found out, greatly enlarges his penalties. ‘and

thereby helps discourage illegal conduct. Sonie

atitrust violators have found the cost of violation

to be very high, even though treble damage pay-

“ments are a deductible business expense for Fed-

som

‘ali income tax purposes Sake

- Other authorities ini the avutitrust field concur. Pro-

fessors Carl Kaysen and Donald IL Turner further

note: : el yi ,

;

..« Private suits are becoming more of an im-:

portant supplementary enforcement device. ‘Phey

may be the most effective way of policing the mul-

titude of comparatively local and insignificant

Violations that will tend to escape the glance of

“=P. Areeda, Antitrust Analysts (1907). Latte. Brown and Company. Bosten

at pp 35-30

ry)

—14+—

federal enforcement: authorities or that, even if

noticed, do not merit the expenditure of limited |

enforcement resources. Moreover, the prospect of

private damage suits is a growing deterrent to il-

legal conduct, although the difficulties of proving

damages remain very great in most situations.’

The enactment of Section 5 of the Clayton Act and

its later amendment (15 U.S.C. par. 16a and b) have

been interpreted by the Supreme Court as an expres-

sion of Congressional intent to‘... use private self-

- interest as a means of enforcement of ‘the antitrust

laws.”’ Bruces Juices, Lnes ve American Can Co., 330

U.S. 743, 751 (1947), and that}private parties were to be

given the benefits of prior government suits. MWinne-

_ sota Mining and Manufacturing Co. v. New Jersey

Woodfinishing Co, 88) US. Sl, St7-318 1965) ;

Emich Motors Corp. uv. General Motors Corp., 340 US.

558, 567-568 (1951) ; Hanover Shoe Ine, v. United Shoe

Machinery Corp, 377 Fda 776, TS84-785 (rd Cir,, |

1967), affirmed in part, reversed in part, 392 US, 48]

(1968) ; Philadel phia Housing Authority vo American

Radiator und Standard Sanitary Corp, 269 BF. Supp.

“540, 542 ( E.D.Pa., 1967) sCinamnion vo Abner A. Wolf,

Inc., 215 F. Supp. 833, 834 CE.D.Mich., 1963). "The his-

toric jntent of Congress to utilize ‘private suits as a

“metholl of achieving effective. antitrust compliance

was well-expressed by President Woodrow Wilson in

8C. Kaysen and D. F. Turner, Antitrust and Legal Analysts, Harvard Uni-

versity Press, Cambridge, 1965, at p. 257.

a T914 when he urged the Congress to facilitate the in-

teraction of private and government actions by:

‘*. >. giving private individuals who claim to

have been injured by these |fteesses the right to

found ‘their suits for redress upon the facts and

judgments proved and entered iii suits by the Gov-

ernment where the Government has upon its ewn

initiative sued the combinations complained of and .

won its suit... . It is not fair that the private liti-

gant should be obliged to set up and establish again

the facts which the Government has proved. He

‘annot afford, he has not the power, to make use of

such processes of inquiry as the Government bas

-command of. Thus shall individual justice be done

while the processes of business are rectified and

‘squared with the general conscience,’™

In 1955, Congressman Wright Patman echoed Pres-

ident Wilson's statement when he stated to the House

Antitrust Subcommittee: |

“2. You and I have recognized that we need a

strong and effective antitrust policy to preserve

‘competition, We have recognized that a necessary

and integral part of any such policy is full and

effective enforcement of sour antimonopols® laws,

For many years: it has been recognized that the

‘Government alone is not able to provide all of the

necessary enforcement. The help of all citizens is

-. “24Woodrow Wilson, “Special Address: Delivered at -a Joint Session of Con-

gress,” January 20, 1914, Messages and Papers of the Presidents, Vol. XVI,

Bureau of National Literature; p. 7918, as quoted in MacIntyre.

of the Private Litigant in Antitrust Enforcement,” 7 Antitrust Bull

"The Role

113

120 (1962).

3. 119-

‘

ee ay:

nee ded. w know that private parties will help in

thisendeavor if we afford them rightful opportun-

ities, In other words, We ean expect ‘this help if we

give them the right to proceed, aud see to it that

they. are treated. reasonal ly respecting” recoveries

of damages and costs of litigation. ix

The Senate Vommittee re port on proposed amend -

ments to Section 5 of the Clayton Act states:

“At the time of enaetnient of the Sherman Act,

the major emphasis was upoy methods of enforce-

ment, amd it was believed that the most effective

method. in addition to the imposition of penzilties.

by the U nited Stites, Was to prov idle for private

treble-damage suits. It was originally hoped tliat -

this would encourage private litigants to -bear a

‘cousidetable ameunt oof the ‘birden and expense

of enfore coment aud thus save the Government time

and: money, |

The enactment of the Claston Aet in 19T4 was

im part a recognition by the Coticress that: Seetion

7-of the Sherman Net had net successfully -stimu-

lated private ditixatiou for enforcement of the |

Sherman Act.

Since thet chactinent of the 4 ‘lavton Act, “the

bulk of private antitrast fitigation has followed

saitnedla governinent getion., so that the jude-

hit’ lits and decrees in the le aferal prPereae “lini could

he used toe istablis ha Ciuse, Awassing or “ide wee for

antitrust causes woul otherwine beu prohibitive ly

= Syate ment ot Res a] w“ right Patan’ hi. lore thee Nntitrust Sulbcwdnunttiee of

the Comunittee on the fist siary. House’ of Ke piesentative on IK 1245

‘August ©, 1998. Id at 11d-1Lly : \*?

ites:

Ler pensive task for most plaintiffs. OS. Reps No.

OLY, 54th Cong., Ist Sess.. June 21,1955; US. Code |

Cong. & Ad. News. 2329 (1955) ) (Eimphasis add- .

ed).

The Supreme Court in Linich Motors Corp. v. Ge M-

eral Motors Corp., DAO ULS. DOS, (IHL) © xainie ae the

history of the policy that assistance eto private litigants

from government: action was to be encouraged us a

significant factor. in compete vhedience to the anti+

trust Jaws. - The Court stated ; pai

*Seetion 4 2 Of the ¢ ‘avton Aet was “adopted in’

response to a recone mdivt ion by President Wil-

son that Congress ‘agree*in giving private individ-

uals... the right te found their [antitrust suits

for redress upon the facts and judginenuts proved

and entered in-suits by the Government avhere the

Goverume nt lias. eo ested. the combinations TE be

plained of and won. its suits: . 51 Cong: Ree:

1964. Congressional reports. and delittes. en the

proposal whi¢h ultinidtely became par. 5 retleetoa

purpose to minindze the Mirdens of litigation for

injuredsprivate suitors by making availible tethers.

all matters previously: establis heal Ly the Govern

nent i antitrust actions, oe

In ¢ indmmon W. Aba A, Wols, Ane, Zlob. Sapp.

833, (ED. Mich. 1963), the € ourt hist tisseal the polies

of the antitrust laws with respeet to private: treble

damage actions: | ve

The purpose of Seetion Mot the 4 lawton Net,

Tithe 15. U28.C.. par. 1. whieh provides Poi pra’

—I1s—

vate triple damage suits ix ‘to enlist “the business

public... as allies of the government in enforcing

the antitrust laws:"" the means chosen, on the oth

er hand is te give the injured | party cumple reco

petise for the wrong suffered” allowing three-fold

recovery of damages.” Report of the Attoruey Gen

eral’s National Conunittee to Study the Antitrust

Laws, p. 378. (1955). In other words? the private

antitrust suit is a substantial weapon in ef tectuat

Ing anational policy of protecting, presery tag ame

promoting: free couupetition in the beter hss t} Hace ‘hy |

blending ‘antitrust policy with private COMER. |

tory law.” (215 F.Supp. att SO),

The actions of appellant pee amici, via their appl

cations to ifiterveue in the Dist riet Court, represcutes

the blend. of public and private enforcement act thes

contemplated’ by (‘ong ress.

This consent decree frustrates thie: Cone resates

purpose dy substambially Climinatitig the possil

private-suits. Rather that assistiie private prliateat

the decree requires then to duplicate the extensive gor”

ernment investigation aru at fords the qleboredsants

pellees an OPPortunits toseseague without CLE Laks

— guilt. | | }

The publie funds, rigmpower atl fagilytees

ed by the Department of Justice in its tnvcstece

this matter far execed the resourees |

other plaintiff. The consent deereod howevs o, wens 7?

- useless the results of the Vnatiteust: [hiv is a one

} . ,

‘-

—l9—

and ed penditures, Tie deerer completed demtes te the +

public, Which has been injured Dv dletetuiants” viela-

tion of the antitrustdaws, any benefit fren: the gevern-

tient investigation. Not only does the deotee specits

that it is neither evidence nor an adtatsster: ot guilt, it

omits sens prevision for the release of inturn then or

evidence to private litigwnts. -/ | 2

“The obnission of girs dssistanee Ben ane prhatection of

individual Ltisants sting in the peblie-trterest runs

-eontrary te the Trequently stated polies of the gate

Uist laws. “The Counts and District ’s main of jection

here ds that the public Interest tie treble damnace anti

trust ehfercement, as expressed by the Conoress. a

Presa enfiot the United States; anal the Sti eiie ( ‘ourt,

Is het \retected at all I this cheer tha Distriet

Court ah tet raerels recone “an we roedrent ot the rt eee

Mess it made-am independent jucheia! determination as

: to the rel quer of the cheeroe ty prretewhine the publie

I Interest, Unite d States v1. acitt. d> ta... 2K RUS. 106,

ANS CHM). The deerve should hav sesstitnlted: previ

SiOnsS to seetne the benefits «1 thie eeVerbenin nt aetion

herein for private and public Htrosnts

hoth idee ete uppetlaut j Pertrcnmul tied fientionus.

to the deeree prtorite its entey ba the Pstoer Court,

Theise nioditieations were te dive paecidesl the assist

dee contemplated by Conocress te private litheants se

that thes qateht have nile tueanine yal ascot the ex

parnncditeane: oof peublic futels. aed the. ts et ooverm’

Poenit oftpenads ape the divestioatwes ci thy stter. Foy

, .

—2Q—

example, the modifications would have thus enabled the

County of kos Angeles and the Los Angeles County Air

Pollution Control District to effectively. take up the

role planned for thenras the other arm of antitrust en-

foreement. The partnership hetween federal and ** pri-

vate’’- plaintiffs envisaged by Congress would thus

have operated as a truly substantial we: ipon by com

bining the investigative ‘resources of the federal goy-

ernment with the incentive of compensation by treble

‘damages for persons injured by the conduet of the de-

fend: ints-appellees,

The primary requested modifications imecluded the

following: |

a. The inclusion ofa limited admission of guilt

to give the consent decree proud facie effect under.

sii D(a). of the C layton Act; and, Y de

The inelusion of terms.in the decree which

san have inipounded the evidence vathered by

the govermment and make it available to private

litigants. ,

A. The Decree Should Have Included a Limit-

ed Admission of Guilt.

When the judgment Was signed, there should have

heen included in-the decree a limited admission that

the defendants violated the Sherman Aét as charged

in the’ covermment complaint. This admission (com-

monly known as an asphalt. clause’) would have

heen solely for the purpose and to the extent necessary

ae, | ee

+ to give prima facie effect to the decree in publie and’

private treble damage actions. The Department of

Justice has previously recognized the noed to.cooperate

With “private” litigants in pursuit of its obligation te

further the public policy established by Congress. The

‘Department has accomplished this obtective by provid:

ing for such limited adinissions of euilt as part of its

‘consent decrees. The consent decrees Ine liited States

uv. Lake Asphalt and Petrol win Co. of Massachusetts,

1960 CCH Trade Cas. par. 69. 855 CD Mass. 1860

United States ve Bituninous Concrete Association,

Tne., ct al, 1960 CCH Trade Cas. parr, GY STS DD. Mass.

~ 1960). and United States o. Allied ¢ | Cpitca?t ¢ ‘orpcel al,

1961 CCH Trade Cas, par. 69, 928. (1D. Mass. 1861) in

eluded specifie provisions admittin: giuilt for mile

poses of private actions by state and floes! Governments

Which followed federal government snits. The decrees

In each of these cases contain aprox xiniately the: fol

lowing language :

oh , defendants having oediaitted the allega

tions contaimed in the VOVEENTEORD say ipelsudant

herein, solely for the purpose and te the extent

Necessary to vive the oblow ia sul Relbesettons tr

proma facte effect stated in Scetion PE dadow in the

sults specified Voesborw . cerned haat thee cot dae tv PPTLD TD aan

TL. Phat on the basis of said Hrited adicdssien

the defendants SPRATT N hereto hy eoetheageal an

an unlawful combination aim keonsidnae. dno vieds

tion ot Seetien Poot the She ae Vet os cele oy

In the said ‘combate, this adjudicate whine Leet

Bi «

‘the sole purpose. of establishing the promda facte

effect of this Final Judgment, in the sutts speci-

fied below, and for no other purpose.

“Rach defendant is enjoited and restrained

from denying that this Final Judement-has such

prima fuctc effect inany such suit; provided, how-

ever, that this section shall not be deemed to pro-

hibit aay such defendant from rebutting such +

prone facto evidence or from asserting any de-

fense with respect to damages or other defenses

“available to it.”” (The decree then sets out the state

private actions to which the decree applies. ) (1960

em € ll Trade ¢ Cas. at par. ah 27>).

The consent decree in this case permits the defend-

ants to aveld an adjudication or admission of their

euilt by agreeing simply to refrain in the future from

repeating acts which have already succeeded in their

Purpose, The dee ree enables the defendants lo deny to

members of the publie vietimized by their conduet any

benefit from: the government aetion aud will require

each litigant. te atte mipt to duplicate the Nntitrust Ii-.

Visien's e \pe niditure of funds and personny ‘| tii au rem

: Vestigation at the same teatte ts and Issue ~ rele rread te

in the government) complaint, More OVER, st te ve stiva-

tion ane the (ime ot new Aetions will wdversely affect

the purblie interest by sulistantially postponing the

trial of this matter, ba Pivadel phia Most Author:

itu. Amertean Radiator and Standard Sanitary ¢ ‘Orph,

260 F Supp. HOCK. DPA. LOT the courtoin refusing

° ®

to delay discovers padceedings (na private treble

a ae

damage suit whi& paralleled a government criminal

antitrust action, stated: eee

“Brom the specific enforcement role given the

private treble damage plaintiff by Congress, it is

easy to discern a Congressional interest in the ex-

pedited trials of sue ‘h actions. It would be smomial-

ous to conclude othe YWIse, The antitrust laws, them

= function as the Congressional blueprint de-

ened to keep the American cconomy operating

within. the free enterprise guidelines mapped aut

under these statutes. Any threat to the free enter-

prise footings of our national economic superst ruc-

ture, constitutes, in Coneress* judgment, an im-

mediate and serious threat to our national welfare.

The strong THEE HELE of triple POCOUCH EY ¢ HCOULUIES

private litigants to Vigorous! y Cu bores the anti-

trust laws. Against this backdrop. ‘uuwarranted

stays of proceedings stvinie and offset any, incen

tive otherwise contained in the possibility of ‘triple

"repovery, Del av te nds‘to discourave pProseceu ion of

civil litigation. As time passes, memories of wit-

nestestade. The inherent value of a claim: for dam-

aves, puhanced by potential triple recovery, dimin-

ishes.** (269 I. Supp. at 542) Cemphasis added ).

The government investigation took many vers

even with the: vast resources, facilities, Hupaasery aie

dooney at its disposal. The duplication of thet effort

and expense by private jitigants must. of Necessity,

create a serious delay in the trial ot wcler's eause. Mn

plain fact as that nobody else has the facilities, man

power, nd Maney to ly heate the offers ‘

ar Se

'B. Appellant, Amici, and Other Private Liti-

gants Are Entitled to Preserve the Avail-

ability of Evidence Gathered in 1 the Gov-

ernment Action.

During the course of the government's investiga

tion, documents were submitted to the Antitrust. Di-

Vision by the defendants, co-conspirators, and other

persons. ‘These documents were submitted both -vol-

untarily and pursuant to subpoena. [i addition, testi-

-qnony was taken of a mumber of witnesses -before the

grand jury, We therefore seck this Court's protection

of all the evidene “gathered by the gove ‘rhment In its

investigation. There is, we belivve, a serious danger

that the dectuunents collected by the eovermment, if re-

turned to the persons who submitted then. will be dis:

- persed or destroved, The identity and contents of such

docume nts will thereby. heeotme pilaysically unavail-

_ ableto all, litigants in the prosee ition of their private

treble damage actions. This could well be fatal to any,

private litigation, and would thus totally frustrate the

ational antitrust polley previously discussed. The

courts and the Antitrust Division ttsell have recounized

the existence of this problen: and have sought to pro.

vicle the private litigarit With aeeess te. or at the ver

least protection of, the ey Vide hee cathered by the gov

ernment, Minw sola Minimey aid Maonutaclartng €o.

New Jersey Woodfinishing Co. SS US. 31 aig

(1965); ODT pane pave Refining Cora. Carte rove Fadl Yeo,

PO4-LOb (9th ia Ob), cert, detect, ao tS OO)

= »5 ™ Y -

« : e

(190b . Commoner alth Kitson Core. MMis-Chalmers

Miu. Co. 2h F.Supp. 729, TE TIO ONAL. 1962) ;

United States ve. Eta pe rab Row Pallishe s. due. and

Related Cases, 67 © 612 through 67 © O29 OND HL,

Nov. 20, 1967, unpublished): dl. PL ieod & Sous, Tne.

Docket Nor T7OM, SS POPC LS PESee tise Cig9e1)

Antitrust Handbook, PederalState Conterenee-an Mae

titrust: Problems, US. Dept. ot Husties C1909). po 65.

“This Courty-in Mennesote: Minin and Monifactar-.

thy Co. vl New Jerse rT Woods eishine ER a4 | LS.

oll (1905), discussed the bn helits to private litigants

from prior government detlons contetupheted by Con

Pes in Section 3 of the ¢ Layton Net! Aiiong these

Deriefits, recording lo this Coeur was cEOCUSS toh Aloe

Ley ey idence marshalled DN the waver biti nt, Phe

Court stated : ji

The veverhthent’s tratia! meTOn tay cad: the

private Ltigant ina number or others. Plead

Ings, transeripts ot bestitmota oxbilats and deen

tents ape available te Rite i mest distances, In

fact, the rules of the Coniunission seoppovidies do.

CER spar, LAS Ge) EGO) Soe generally HACER

pars Lt bet seq i9de Phe greater pesotirees

“aud eX perftise of: the Conan sstom anid its stall ren

der the pirivate suitor a tremendous benefit deside

romans value he may derive tres hee Midenient or

deerees Indeed. se useful is this serviee that vov-

eruinent proceed ries. aan “Perec ned as oa hit jer

sotiper of evidences Por private parties, See Bieks.

es Vic DP, } antine wh A int ts ved dy wei Deuseue

Actions,” 4 Antitrust Bull. 5 (1959); Loevinger, .

“Handling a amt s Antitrust Damage Sait,”

4 Antitrust Bull. 29 (1959)." COST UScat BIO).

Ine Ol yin pee LR fining: Ca, -*. Carte r, 332 F.2d 260

(9th Cir, 1964)s cert. denied, 379 Es: 900 (196-4) the —

Court of Appeals for the Ninth Cireuit held that the

exemption of consent decrees trot the operation of

Section oa) of the Clayton Net did not give defendants:

a right te nom-disélosure for an ietelinite: perior of

lime or the right to wathhold: information which would

otherwise be availyble to dther litigants who might have

need of it. The Court also stated: )

— Ets Tmamaterial thatcOlvmopte could) possibly

obtain the same iifortiation throuch the process of

propounding its own interrogatories to Standard,

nnd General, dt is eatitled fool none what those com-

pentes and the alleged coccousprrators fold the

Groverineut, ane This requires excioination of the

dlocutnients Whieh were eXchanged, op exchanged

and filed dm that aetlon. (So 2d at 266) Cem-

phisisis ndded).

Ih Ae sealled Mleetrieat Pequanponenenat eases (Come

monmealllh edison Coc. Was Chaliecrs Mita. Co. 211

F.Supp. T20 ON SDR TIL. E62) en ‘of the Sienitieant

; re trial developments was the entry af an arder re-

quiring weiteb defendant un the padvate Hthoation whieh

followeedl the OVembireent orpraireelsccet pens ho pr tevee ma

central depositary copies anid lists of vurtets corporate

dloctumients that tid been tiberreitted te Philadephia

erinc ts ~ hive stioatinge the brichiaistes,

a ‘ yr

The Federal Trade Commission in fH. 2?. Hood &

Nous, Tne, Docket No. THIS BPC, 1Is4 \( L961) re-

fused. the respondent's request that its doctiments he

placed under seal to avoid exposure to possible treble

damage plaintiffs. The Commission stated :

“Certainly the exposure of the respohdent to

possible treble damage actions iss ndt. the: type of

injury which would constitute ‘good cause’ for

secreting this evidence, Placing documents ‘te

camera’ for this reason would constitute to direct

attempt to frustrate and defeat the will ank intent

of Congress, In enacting Section 4 of the Clayton

Act (15 U.S.C. 15). which provides in part that

‘any person Who shall be injured in his business

or property by reason of wy thing foriidden.in the

antitrust Jaws may sue therefor... and shall re-

cover threefold the damaces . 2. 0°: Coneiress: in-

tended that such private suits would supplement

wad bolster the antitrust: enforcement efforts of

government prosecution. This Coteressionak pur

prose has heen recognized In\ the Supe mie Court in

Lawler vo Nattonal Nereon Ne rreec, wherein the

Court, holding that the chreunistamecs of that ease

did not bar the actron as ces judteata, stated »

| ‘Particularly is this sein view of the prub-

lie interest in Vigilant enforcement of the anti

trust laws through the disteanmentilify ot the

private damage action.’

“EP has, aur \ ew, the secretion) ob ev tdetiec bor

The purpose of frustrating pessible treble dariage

plaitilts would be (+) )} osed ton Uda povalotn Lhiterrerst

anid the clearly “expressed WaT ot Capen ~~) Obtpp aed

”-

. |

: .

‘ ,*

‘ . : Sie

forts should hier clineateal ‘tee cenebanin, root bata ‘Tihs,

private enforcement of the guttirust laws. (os

PLLC. at Liss tise)

The Antitrust: Division itself has recotniZed the

Heel for prgservine the avathyality of ewan tits for,

; tse 1 plaimtitts ith private Geetbetis whieh Lille oc .

2 erijure nt suits, T lus. inf wehe df Norte N.t', bhavs pera Row

Publishers,’ luc, aud Lie Lateat C'atme s, No. OF Col

threeuch oF E ND TH New, 2ay Peey, vaniqenabelisds

ed) the Ds trict (ont rite red ry ‘onkes itheut oh ee

* tion freon the Mititrs 1 ‘Lys Dstt Cte

1s : re. a

es “that iis tn the ayourbsli inte Pett that these

alee hie aig raul juny SLO a hits, and a he itu puny

Testimony Ie Mdentitiohle ginko preserved aad re

titin tecether for possible tse 11h Chiewe troll clint

“ae det denis.

“The Court Chieti Sredeny ik thie’ chen Vibtietits ay Hittin it

the custody of dota by Sarbhuch, Chiet of the Mid

West Of five ad the Antitrus t this ert, poli tyet hes

meg ordér BE the € jurt, :

. * f

o .

z wee. ¢ ‘Autitrist flauddbogi,. coobeapetly nT thy the \nith

: ie i. ; ‘ ; Me

trupt Pave haem Uda ‘hodenad Site Capnberetes

avn

Antifrtiet Maoblonis CPO) tidieates that ihe

Dy ds teony

. , . .

. " : ’¢ ,.

stthiseribes te the conerpt ol precers tie evtdotioe carne

Hh its eee, Lhe TILIA tpldertes Tbeetn thie dtinte itietat aol

this Count itt meni tary Wii ti ued vn “.

nilhaluming .

wu New Jetacn Dd Biatshens (ww i) Per, weebeeerine

ine a, sreepitatt wal 1 aden tihivetets ges cotthers owncdePiee.

‘The Hand ot, thi ti otiites ‘ aghs

‘ \

: .

" . , Z . oun PAD :

-~*

* * 3

aad .

"The j eran state Hraeerit +t fean Mine i sti Mining

and. Miinutactariin) Roe rred te leleral - Trade

Th paubtis at wl Wis tree wetions. The jJasjnith rr

Set nee emsarily Politais Abie relevant des Auiuie Lils jin

ii result of thr: lederal duet terds, lanat tier lear aye 0 thieat

Je tstenee ane identity atid havi, Mdyat ty “cok

Srey bier 0 sorts ter chiscevens ‘ pricncanebin [ diserens

ens dis due sibaaye Artie bys Scud, Vays ibiak ay pened itis

: corelet . niider White by beet tt: aliseae bath toy otha

ot ‘edeval Governniont are not directly relies 1eit

‘, “thi ale tedicnets Paertin Whieetiee thers warns Tiberi real

7 This presents thert dispersal or ade mane hin aul -

Ubicvny: whieh the elite ph TI aie ee titled’ tir edge

veer rid. be obtained Lreonys HoeentryaPaetum Mare os

(Vatitras! Baal , fic faye a,

The HMecwdlbice itlsed Poets a thasit . thas itespconsdoed tty

eyeder ane conte ee PULP pe hencebrins Wil beollesWaab gay

‘the Harper al i ha tT ist 7 42) ‘ i itesel jitservea

P * ° i 7® ’ .

A p ; ; :

hi the itastient HEGEL TOD, ttgemtertede ke cet thy Gaeta’

. ‘ ‘5 , , “* Ps ‘

frostannelty “thi emvacb earn Hi er behetues tt | Vitae 41

ville lee sepeyee Thanet il tte tied As Llier pergvanes

* ‘¢ ¢ « . o 7 . .

LAUDE ds tee fee Beteteet thee ‘ry litewte oof periaae

Lit tsccinits sae : .

ray oy 6 ’

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. ° ° °

’

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eo ° . 4 ’

im. ,

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*” , ° *

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IV. THE CONSENT DECREE ENTERED BELOW. js

|. | NOT IN. THE PUBLIC INTEREST

[A. Introduction.

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ba'bieditds “EPP et be

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\t pace P') ast thie NPerriconcetiebeariy ca dans ly ‘hs (ends

Apyoeties ~ fihabin the Ltn Cotteto a vuthe pied

stisletipeait, as taweste Te Hpligete ae

. i ,

bes 1 dae pret at ternsen™ boob pdate t Veneta bh sated ut

cle trendline ay petalolys trial ine this eins ajipcur t

heedlots of the Niahing efleer ot a xtenuled lit

haere? ony thie eaenetatbinie fayts hee Pendle Gab, yi

them. )

+ % ; > .

Wie de bhitialy cou lyt thisat in i, uo trial wend hry

thi el hort ty) wedtuee aint peedtitiens Ce rtaa thie)

Werbthd ties! digave

‘ ‘

Apepwrlion thie y

ebeeds eel eh

prdettec Ute haps pene

ees event. the wed

+ ie PMA T Pecans

pertiss an they bimttos

- Edt pecil Decor bat-asl 1}

thy. atteany ctlenle” Vi Lebetbel ita '

tase shaving saved thie

thie Pheewy- fade tas be patertaud

eit caate | é ars

Co havten Net he

bd -

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en at Er

thy Pear dye my too thee RAD ABET : 57 Prey

TORU TTI Nat onl * seat P| : . “54 : ire

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dey Tan thin: Hatheralet te 1. Vie Lich tist ‘ ttl

—

\ , C. The Statutory Policy Arg

J \. Defendants appellees argued s¢ Mermorandnam, po 20,

“aN seu, } thiset the SHILULOny. poles fivars consent ile

CHVCES, We think it ilows- tot, aT Piet Hl of this. ‘Sarge tien,

Ville hits ‘audits a ) threat thy iY aed dens wentla shel th ehlorge

bvett of thn Ne The reitsen ler thi ee fede uvi

denen! prParN dm deat teaid thienn ih thus e'| Font, Codisent

Teerees. Whereas thes have utility in semie eases, are

bins bieein Liaivared ii> “SLAP polices, :

Theres nething i the haw whieh requires a court

foappreaye a deerer just Heegtise the de le nelanits have

eedisegited teat. Fl there Were sl serie ol the cus prerraet

’ Phi beer Veritven i Hel iiatters went not have. been

(decided li Hort, We contend that a the 1 lof.

Thies cans ont Hielonent gs tet qa the |? miblte Hiterest be

a eatin a wall Correale tg nse a the pei er ee so

“denen elan (’. thaeay 1 hicotalel lv al! ppreveal con

‘pletely

thi (eet tated 11} l ited Slules Nlandavd 3

‘

/ framering td Color ¢ rie Peed, i | ea [tty /

SDNY. 1065)8°.. , le wo

f :

a TT vpolators pias es phate then Wrong doing i)

pan\ tients sf Perko ty ttn bh ewe pt ips ti ir

verhual’ linye one the WEtAt. anil TRA nyt thy:

Friiprbe hel oes NW theca powerlul: deterrent fo lav

violation, has been renal’

nit 4 xo ’

i”

ihaves 4 have shows that” the SLatiitors policy At ens

J rPesse «| i thy 4 counts itti ly & one loss is la Aa al per *,

: 7 .

= e

: Pp }

' DD: The Interest of Amici IS the Public Interest!

Preotenderite appellees stiscested at parce Obed the”

Moastivorsetiebianas treat thy OehEEN bd beet oe % Wiis tt

Purtiien: them owal datas ecaetivnis, and that this os

rot su@in bent: Pdi Clouinits aul ha Pointe ‘ seat 1!

terested qemarity. bee cbhsabiicngee We daavs pear :

Spotetbilitie un poualolin Uveaadtdy aeneliny atin pa 4 hand

trol Ns showte anethas baat. these oe rire

Hhile beste prbartaat ity tai Vhorent) Trudeas tl <a Te

. 2 ¥ sane : i 2

The baat ‘i al beibde hy } ae ad i i4 te Ay +} :* ‘ {}

-4nitties whe Wele pariittted t nlorveme -

Nut (aetn f tie. ae Ci . \ dicts 4 si tN]

re bth, air bic cult de Gensel pra ; rae :

of is * .

peter can eelib ode “peeeny peaeeady- ° G vagy 1 1! 7 set 44

hiccelthy avec tutarts i pee ative ty hi ir ‘* mE

strieted: by thi neti Tale te reditits avg

1), tenet) A jojuctles nmeotead Vie Via 4

Cileew wits ATS Tiel weeltine eee ‘

‘curtain deersions. Phe tact is thatifhioae.. +)

lente st oN pre Th wf thi ( j ie -

ls strove teal Uhhat thy chews \ - \\ |

- @- Tn ;

this die bivel a\ \ ty th.

; 1 *

1s triet~ the ligstodany ii mAlT -

: ;

ob ;

E. Adequate Representation by The Depart-

ment of Justice. . —- ‘i

Dye tonelaant appellee asserted that aur Miterests

Were gee uite’ls Perprne ented by Thee getvernienit, Pty

oly beth rewr thhe case Whietr bars permatied interven,

Them iat this ds thet te Pe gissnined. Dhbe coov ernment

hha “denienstrated Little Qutenest toads polities contpal

In this ease, Qur interests are ‘uel broader than in. -

fenjoihine the continuation eta cominiation whieh dia

meri k prsead vv PONE | tense Vo otrralcel tha wil “ Werth

have: trae tan Peebles eb beets diaper the Gatinre getters

ot this inelu brs canned at othe ineltris Stee irl .

“ il aetions bivseal Uprta e | oral Ti ee a the

yeverninent Wotfld have been even more etlect ya . on

iol he nitincl la picrwy — bode denn’ thi Comet hice THEY ani)

bites 1 ove pepeheaetyay The prod Ee Ot ee Whosee :

health has heen “atic 4 qiy Pesanlt oko gan pollition

PY net this thie perbotie teate rest were One rant hinted: .

Jwhiw js HWustrated b Hie righed of petitions gandoob

fea dpes that were bileedss th the Dstraet ¢ birt ae

i -

_ THE CONSENT JUDGMENT FRUSTRATES ACCE: SS

TO THE FACTS OF THE ALLEGED CONSPIRACY.

‘has decree ehtabed div Ha Phistene t Court Ml beehivel

; revedit ee Ott diner iteriotis aegetiss eel Ghetto

, bbe efiriny this J bornict ions thie bevel 14 levied gene

prove the Laue t~ oo] thie nlleoed qerhi | Pica “ht 1 biel si]

corbin thiaat thromeh ‘disee vers prroeediy sanwil oy

Thetis, private iti hits could discayor these tact Wi

Hessers Wl] have dhedoor torgetter dei. ol i iT ‘tt

lites atte VV tL verre dive passe Eyer

i digatteen nl vacdnieel cid boom gas sere oval

HAE N 4 thie Poets neverthel itt dn

. a ,

THE: DECREE FAILS TO PROVIDE SAFEGUARDS

. NECESSARY TO PROMOTE THE CONGRESSION

AL PURPOSF. OF ASSISTING INDIVIDUAL LIT!

GANTS.

Phie dana preven dele tent

Bae ala lil

iN ; rervetda ota petrut the

tho ve. hi well 41a tedperd deed j

eh the attateust law riniv baeees ; ly

hey nt the haw, in faet: that: private. oifor

"gf elt i\eecidbed detepreny | ]

» thst ban Phe ruterest at Coie

i'l conibeppat yen hy) thy

*b,°

. ob

Stich Suits cure nite: See dit tierlt cane e\petisive that

they ecitiot he sHeeess tilly prosceuted

Phe consent qitdeaient aethis Jf he been’

pel tree heteve OV tdleniee ot the caene. "est Via the

Insertion of jan asphatt elause move ds precederut

Jor “uel, provisions, aad’ thes Would previde neah-

pemaltios Het peresetit ine the eomesent prekucrevegt

I hie Saapantan colloeled-aaet several Vegi OF TMV est

vattion bs the 4 tited Riates will he eHtally lost teh

lune thes transeripts and oc unient Libe revealed Nn

that the deevoe bisus Loeeeny fesivat, Comite nat reaced. doe

placed out Ob pegeh al pilot roeredh cele! private With

wants whe Peeptine thee Att orden too dtipetned garb te

reveletheorn oration collected wetilel perenne nt the 1

co ae ul

THE CONSENT DECREE ENTERED BELOW 4s Nor

IN THE. PUBLIC INTEREST.

AS eted. th eerbisenet cheats Gill: aye he of foot

he erties peretie \ oes val Neen steers ‘ chicl dae

breeds hometenyey Telit purrs “. The re hora od

th istedotremd veote thee abee bichon! ape aitlen hah aiN ‘el

Pea ae pattie teal are tha Peat Ty whol cibite] | Len

mit TOT Ta ene elie Vai tered teddy ial ili

Hin (' Te ede ee bperd bapenty Phi ee WWartgled bhai (+ Theat, j 7,

Pore perev gate: hinting Ge thea Chat wrbel pet aad rar wil

reeldy Tee Jbetegbered parody | f radet ‘ phivate

elit Wy t ' bie Adued tan ty wt Tit vn asi ae hind

\ _ . a p

87 =,

* 7 ; ; : ax x . : : : ~ Ss .

beaters coin plngnied With Vie canntitenst jays. Vo fvortun

2 ately the ddistey as ney Protpeted frome both’ a public

trol suniel thi ay ee bake be a \otade dye :* paren i heed ur} Sor

tien wut the es - Tarn Aol ito LOS. Ss ‘ Pin CV dbee ede

‘ ‘oeren ebbeetivels sihet ions Jo eonspiraves that lak saved,

‘the dedustey. Wiens of cteoblon While eostin the poublis

aeaneit that Hey reves le po Niles tee eletorntin

, : I : ve . . : * a

| any fa CONCLUSION

oe The Coibity ol Las. Wren “yee the” bia \ii wl

Ceotity Ane bsstivat ton Toomtrel District, aarti dierein,

a Pirtridy eon Hood that thy Comsemt decree. entered

em bn baw Vantiadhs Lit leew, dyna that thy hima nnn bier

-. fp mor tee tena With appellawt, o tid perhay other

7 ats. partis jhaenatiee. -

* We fool that Mh cles Pee itselt. the eli rinse nettiy

bade tl, aunnel thas Tah pee ities mn hie Potted Stiutia ta,

“the Varnen ep Theat bony nein ren beefoow dl chenon’

trate that the pabh iiterest hijis. tet heed protected

lta omer beohinny Chiat the avititrist pooh ok tha =e]

‘ rail Caeivs rinient .shevld m bheet trrhine 7 mob Vie cal

; | lateral effect: uf Medstedal. Gomepapiedes Pn this pe

Pheri eae thee corecaet dheeven, what sieret hho

eed prabien “Homidd . thi oven nts uy

N , polevnnyt ww dreads ! Heone th riyesds é biveedir sata’ | ahie ot

z -" environmental deteridratios pbeeh Pee etd pada hor Obie

; ; he ;

; “Be quote, fron: Che. Dariseiotion iP isigvenit Tile

ly sbpeyhi Hlavayt Wy al Ne Vor - 4) rin » Tey?

“38

ha PrePodiire Potlowed iy thn clistrvet court ;

: Mitlses Nuestions ot fb eitielttamenataa Pre peor tation: rhe thee

a MULLS EO gut bet of the scatiterst daws. Phese ques

Llodtis, \\ dane ly ieee oe ditin iit dae thy A are Sen tesnt,

; should lige he solved beoldoow inn baat] brie hae ani aur.

. mitment. Sphee the Canty s riot tee ditervene ede

a) *

proaiels tiypea the resolution ot the other issues pre

a) , E sented dieorebeg stroll bara Hitered joe Tyoonubriy ony

Wlenation at The gpiestion ef jurisdietion tnitil the

- learn at thesease om thir dmerits. Nea Boe Pab

heii ( the pF ; ited. Nhat, y. tein‘ 4 Gs. =

(dni!) th thre Was eg wotiprhets Jit tice fe sairedt ln

as ceyent, the feat ot the oder iivestigation must

» tat be Jost, hor dthes are qrreplaeeibles

he spaee mr uikly Simitied:

: : : * aa 2 pag Ne a : é y

‘ 5 FOUN PO MATEARG

- . , 3 ¢ oliiity 4 ofttise! °

, roy - i

ts . ad - . Tr ’ - t

? OA OTIN TE LARSON

‘ : : < t F .

. ( Ivey. \serstint Compt, @oupsed

“ ; y .

PAN TID OMEN,

\esistant Cont. Comnse|

3! P

TRAVERS DO Wed,

Deport y County ( etapsed sae

"Alone WS tor Lmrer. 3

. a em

j NL

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