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

“SVPREME COURT, U.S.

Pts.

MAR 2 197

~ Ditworra, PAxson, Kauise,

INTHE © be

Supreme COuitet of the United States

OcToBER TERM, 1969

ree. et

No. 1121

City or NEw York, Appellant,

: | 5 : |

UNITED STATES OF AMERICA, AUTOMOBILE MANUFAC-

TURERS ASSOCIATION, INC.; GENERAL Motors Cor-

PORATION, Ford Motor Company, CHRYSLER’ CoR- _

PORATION, and AMERICAN Motors. CoRPoRATION, q

. --

A Seethets . | bs

_ Appeal From the United States District Court for the

Central District of California

BRIEF FOR THE CITIES OF

BALTIMORE, MD., PHILADELPHIA, PITTSBURGH, ~

SCRANTON, LANCASTER,-and ERIE, PA.

- AS AMICI CURIAE

JERRY S S. COHEN |

. 1776 K Street, NW.

Aes Washington, D. C. 20006

Harotp E. Koun

_* AARON-M. Five: >

~ WILLIAM T. CoLEMAN, Jr.

2600 The Fidelity Building .

Philadelphia, Pennsy rlvania 19109

Attorneys for Amici Curiae

Koun & LEVY

2600 The Fidelity Building

Philadelphia, Pennsylvania 19109

Of Counsel

RESET . ieee aa

Press Or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

<<>>

jel

INDEX

| | Pag

_ Opinions a ee Noumea rises 2

PUM osc. ee occ se cee s kclaceos eee 2

Question Presented .....:.0..0ccccecec ices ee > 2

SUR RON UOMO 6 iy. om uu be be dca dd ae eiad DRAKE SS 3

gS Se een ETRE CR CE Cee P CEEOL TET 3

ON SSPE, Ie ey en ae eee Seaweeds ae

Conclusion are, ek Te ae PoE ye (WO eN a owe new eed he ss, ae

CITATIONS

CASES:

Cascade N sigan Gas C orp. v. il Paso. Natural Gas Co.,

MM iiare koh das wa Maw haces Rhea d.408 60d we 12

Emich Motors ¢ Corp. Vv. Gene ral Motors Corp., 340 U. S.

Bef. AEN a eg LAE dy, 0) SRC MA edt I ae addi ore ere Se eRe ae

diterrational Shoe Mae hine-Corp-¥ United Shoe Ma- ?

ch: nme Corp., dd BF, 2d 449 (Ist. C “2, ae Foe iac mac a 6

US. ve Davis, 1953 Trade Cases, © 67.403 (S.D. N.Y.) 10.

U8, . General Electric, 82 F. Supp. 753 (D.C, No) 10

US. vi Mech, Tool Co., 1956 Trade Cases, © 69,290 (D.C,

Mich.) Pa ok Mae wae ais Wee Web ae oe 6 cL 10

Ui Minnesota Mining cf Mfa. Ts, 92 F. Supp. 947

DC. Te RE pede rR PLN rds gee Rene Serge 3

ee v. Vew Departure Mia. Co. 204 F107 (DiCe N.Y.) 10

(Sov Standard Oil Co, of ¢ ‘alif.. 1959 Trade Cases,

q 69,299 ns SE Cos re eas ook ew eines BLs 15

STATUTES : .

Sis! oe ye ee OR ane cae Popes ie wees »

mee +O 18S BP €16(a) ny De aged Aone AeA TA Ae eer Saat wiles 3

ae” eS aad are ata SPAM oa ae ae g

Rule 24, F om sgh RRS I nea ag ee eee aa aes 3

‘5 USCA 555(h) Fao eh kar Woes feaptecd Saw kee Ee OR ae 12

15 CFR, Part’8 (Liat Gas ieee nas PSA wwe ae et Oe mee ua

o

/

ae ~ » Index Continued ; eg

MisceLLANEous: | ants ts Page

UE eet FONGOd sca vcs Sri i ws hee wh aeken A ion

Flynn, Consent Decrees quo Antitrust Enforcement:

Some Thoughts and Proposals, 53 qews Le. Rev.

YS3, O85. Footnote 3, 90, 1012 (April 1968) ....6,8,

Hearings. Antitrust Subcommittees of the’ House Com,

Huttecson the Judiciary, Consent Decree Prograin

of the Dey + of Justice. Part 1 (Oi Pipe Lines)

Oet. 1957 (2 Volumes), Vart.2 (AT&T) May 19s

a 3 Voluines) Rh tA i oe RR eee Re ee Re

Kaplan The Asphalt) (lause-—A New cain: in

Antitrust Enforcement,” 3 Boston College Tndus-

trial and Conunereial LA Rev. 355 (Spring 1962) 0.2

* Message from the President om Euvironmental Qual-

itv”? Feb, 10, 197 0, Vol. 116, No. IS, Cong. Record,

pp. S. 1604-1614 - 2...) eR, 5 aaa Ra ek wea aa :

Report, Antitrust Sdondeninttins of the Jtonuse Com-

mittee on the Judiciary, Consent Decree Program

of the Deptsef Justice. Sith Cong. Ist Sess, an.

ou), 150)

and Wi Vane, Second

ol nited States Pur-

Phe Air Qualitw: Net

Sst Cong. Ist Sess,

Secrets ry of Health, I Thue teem

- Roeziort to The Cangress of t

stant gto I’ bi lie Law 90-148,

of. 197, S S. Doe. No. 91

(1968, P. te)

oe ete B¥ene 8 02 8 6 8B

11

11

1]

e

- INTHE | ve

Supreme Court of the United States

/ . ‘OcrobER, Team, 1969

“No. W121 s |

Ciry or New York, .fppe Miunt,

R

Unirep Strvres op AMentoa; AUTOMOBILE: MANurat-

TURERS AssoclatioN, INC., GENERAL Movrors Cok-

PORATION, Forb Moron CoMPany, CHkyster Cok

PORATION, and AMERICAN Morors -Conponatias,—

Appellees. ee ioe ;

. - a

Appeal From the United States District Court for the

Central District of California

2

|

aa ee 4

be]

it no |

_—— |

ae

BRIEF FOR THE CITIES OF

BALTIMORE, MD., PHILADELPHIA, PITTSBURGH.

SCRANTON, LANCASTER, and ERIE, PA. :

AS AMICI CURIAE |

ey

This Brief is filed pursuant to the provisions of Sue -

~ preme Court Rude 4204), Amici Curiae all being potit-

ileal subdivisions. Macheis anmiajor metropolitan urbats

area which has an aire pollution problemi caused by

automobile exhaust Cniissions. Lf the defendants were

guilty of the acts charged in the government’s com

plaint, entry of the consent judgment, below adversely

affeeted-the interests of each Amicus Curiae and its

residents. {é. arom e

2

OPINIONS BELOW

The district count’s oxal gpinion of October 28, 1969,

and its memorandum opinion subsequently filed on

November 7, 1969 have not been: offic ially reported,

~ These opinions wre set forth in Appendix A, pp. la-15a

of printed Appe mix filed by Be nae City of New

York? | ;

JURISDICTION .

‘in January 10, 1969, the United States instituted .

this ‘civil antitrist action against the defendants pur-

suant to 15 U.S.C. § 4. The. City of New York, by

appropriate applications, sought leave to intervene

both before and after the district. court's. approval on

October 28, 1969 of a coysent judgment submitted by

the parties. By orders @utered on October 28, 1969...

and December 16, 1969, the district court deed the

City’s intervention applications. On December 22,

1969, the City filed a notice of appeal in the United

States District Court for the Central District of. Cali-

fornia, This Court has appellate jurisdic tion by virtue

of 15 U.S.C. § 29.

QUESTION: PRESENTED

T his Brief will discuss the following question, which

it is believed is comprehended. by the questions that

Appellatits present:

“Where a consent judgme nt has been negotiated be-

tien the United States, and the major automobile

manufacturers in a civil antitrust suit alleging a Sher-

man Act conspiracy with respect to motoy vehicle air

pollution control equipment, affecting all states, cities,

’ political subdivisions and their citizens in the U nited

States:

(a) Did the District Court, abuse its diseretion by -

approving and entering: the judgment without requir-

+ “*‘App.”? references are to printed Appendix filed by Appellant

nerd of New York.

Se

—)

ing inclusion of a provision giving it prima facie effect

in private actions brought, by govermme ‘ital bodies and -

others ? 4 |

(b) Did ie District Com abuse ‘its Riieetion o

not allowitg intervention by, represe ‘utatives of the

governmental bodies affected, ‘for the purpose of fur-

nishing a record to permit the District Court to make

an independent judicial determination that entry of the -

~ decree without a prima facie effect is not in the public

interest and that of the governmental bodies seeking to

vindie vate that interest?

"STATUTES INVOLVED

fection Dit) of the Clayton Act,15 U.S.C, § 16(2),

and Rutlé 24 of the Federal ules of Civil Procedure

are set forth in Appendix B, pp. 15a-16a, filed by Ap- -

ices, City of New York.

STATEMEN T

Ww e hereby adopt the statement’ as set forth in the

jurisdictional statement of Appellant City of New

Y or k.

ARGUMENT

Eliminating pollution is now the policy: of our na-

tienal’ government? Air pollution, ‘in particular,

affects. directly the ability of man to survive on, this

planet. The major cause of air pollution is the auto-

mobile.” This case alleges a ee aey among major

2**Message from the Preside nt on | Savietents mtal Quality, Feb,

10,, 1970, Vol, 116, No, 18, Cong. Record, pp. S. 1604-1614,

4 Motor Vehicles presently account foy a0 of all carbon mon-

oxide, 605. of the liydrocarbons, 5067 of the oxides and virtually

all of the lead cinitfed into the atmosphere, SeeFetary of Health,

Echication, and Welfare, Second Report to The Congress of: the,

United States Pursuant to Public. Law 90-148. The Air Quality

Act of 1967, 54 Doc, No. 91-11, “1st Cong., Ist Sess, (1969), p. 38.

.

>

°

id

ae

automobile manufacturers to suppress the use of tech-

nology which could arrest such pollution. If true,

there is not a public body or citizen who has not been °

_ affected by the violation-alleged.

The government through the antitrust division had

an opportunity to further national poliey by insisting

on the trial of the case so that the evidence obtained

by the goverment in the course of its, investigation

would have been fully aired, alerting the states and.

cities and their citizens to everything the defendants

are alleged to have done. In the alternative, the anti-

_trust division could have insisted on inclusion of a

clause ‘in the consent decree, giving it-prima facie

effect in subsequent private antitrust actions. |

- Inste ‘ad, al <ettlement was negotiated between the

government ‘and defendants which was acce pted by the

lower court. No testimony was taker and no: prima.

_ facie effect flows from the consent decree. |

’ Rathe iy than giving maximum aid to those who have

_been injured im obtaining redress for their injuries,

the decree primarily requires the defendants to cease

doing what in the current climate of public awareness

and concern over the threat of air pollution the vy. would

bie obliged to cease in any event.

4An ‘‘Asphalt Clause.’’ ‘‘The term ‘asphalt clause’ refers to

FM specific provision in a consent decree terminating a civil antitrust

case brought by the Federal governinent. The clause provides that

the decree shall have a specified prima facie effect in favor of the

plaintiffs in certain subsequent private treble damage actions for

the. same violation, Its existence is the result of administrative

and judicial, rather than Congressional. action.’’ Kaplan, ‘‘The

Asphalt Clause—-A New Weapon in Antitrust gre 3

Boston College Industrial and Commercial L. Rev., p. 355 (Spring

1962). ‘Also contains excellent history of the ‘‘: asphalt clause,’

d

‘In addition, the’ development of new technologies

and existing and proposed new Federal standards of

pollution control mike moot much of the relief included:

in the decree.’ 2

The role of private litigants as an adjunct of the

government in enfercing the antitrust laws has been

recognized in many decisions of this Court.” Surely,

ina case of this national importance, the government

should deal with such litigants as allies, giving them

the benefit of the widest possible effect of the govern-—

ment proce edings.

Tndeed, the legislative history of Section 5 makes

plain the concern of Congress that the private litigant

should get the fullest possible benefit out of a govern-

ment case, It is clear that the primary purpose of this

section was to aid private litigants.. Its enactment was

prompted primarily by & message of President Wilson

in 1914, which made specifie reference to the inade-

_ quacy of existing legislation” in assisting the private

suitor. Sympathy for his plight ran so strong. that

the original House Bill provided that government judg-

ments: should be conclusive evidence against the defend-

aut. A Senate amendment’ changed this to ‘prima

facie’? only because of doubts regarding its constitu-

tionality. The proviso of Section 5 which exempts

consent judgments from the prima facie rule emerged

from a TLouse-Senate conference and reflected concern

‘that the bill would seriously affect the government's

flexibility when negotiating and bargaining for consent

decrees. It is clear, however, that the proviso was not

545 GFR Part 85, F. R. Doe. 70-1607: filed Feb. 9, 1970.

®Emich Motors Corp. v. General Motors Corp., 340 U.S. 558

and cases cited therein. .

(April 1968).

P|

intended to give the defendant a “right” to capitulate

in every case. It was the right of the private litigant

with which Congress was primarily concerned—not the |

rights of the defendant.’ eo ige

Therefore, we submit that the lower court erred in

accepting the consent judgment in the circumstances

of this case, and that it erred further by not allowing

those vitally concerned to make a record, on the basis

of which it could be properly determined, what judicial

standards should govern the Court’s + deci ‘ision and how

they should be applied.

When does. the “public interest’? require’ that’ the

Court refuse to accept what for all practical purposes

is a negotiated settlement between the government and

the defendants in an antitrust suit? 3

It is‘submitted that this is an appropriate case, in-

deed a compelling case, for this Court to’set forth at

least minimal standards to guide the district courts in

this unsettled area of the law. Indeed, in view of the.

fact that apparently almost 80 per cent, of government

antitrust cases are terminated by consent decree, ‘it

would seem that the proper administration of antitrust

policy require that this vital area of the law he H]umi-

nated by this Court.

T he acceptance of a consent judgment prior to testi-

‘mony and wighout inclusion of an “asphalt clause”’

* This analysis of legislative interest is supported by:

Emich Motors Corp. v. Generat Motors Corp., supra: Interna-

tional Shoe Machine Corp. vy. United Shoe Machine Corp., 315

F, 2d 449, 453 (1st Cir.) °

SFlinn, Consenr DECREES IN: ANTITRUST ENFORCEMENT: SOME

THOUGHTS AND PROPOSALS, 53 lowa L. Rev. 983, 985, Footnote 3

’

ash |

gives no aid to the private litigant. The public bodies

injured by the violation anust start from serateh in

proving their case. Unless an immediate and assured |

injunction against the challenged conduct is of over-

riding importance, acceptance of such a decree should

be subjected to the most thorough and serious scrutiny,

ona propexy record, where those vitally affected can be

heard. Were a showing could be iade—as we suggest

in this brief—sthat the injunetion is not of overriding

importance, other comhiderations may well outweigh

the need for such assured and prompt relief. The dif-

ficulty here is that those who could have explored the

factors to be considered in arriving at a full determina-

tion of those issues were not permitted to intervene.

in reconciling the various interests involved, this

Court might consider the’ possibility that all’ of the

advantages. That Congress foresaw inthe passage of

Section 5 could be... sustained under the circumstances

of this case by the requirement that the consent judg-

ment be approved only if an ‘asphalt clause’* be in-

serted in the judgment.

It has been suggested by one commentator that:

» 2. . Seetion.5 was intended to benefit third

parties Injured by an antitrust violation and pro-

vide a stimulus to defendants to settle for the

henefit of efficient government enforcement.

SN - Rather than being contrary to the Congressional

purpose for enacting Section 5 of the Clayton Act,

the asphalt clause seems: to be aunique device for

carrying out the two major purposes behinid See-

‘ist injured third p: urtigs and to obtain

governme nt ‘enforce ment: of the ‘consent decrees.

lndiseriminate use of the asphalt clause might well

hamper the purpose of stimulating capitulation by

- defendants, but the collective use of asphi it clauses

in cases where the government has a strong case

8

and the injured third party to be benefited are

public agencies or persons unable’ to Titigate a

treble dam: ige action seems a worthwhile police v the

government. “should follow. In this way.a further

deterrent will be added to the antitrust arsenal,

the public purse will be spared the expense of:

duplicating investigations and litigation, third ~

parties injured by antitrust violation will: be spared

the cost of litigating a complex damage claim, and

the courts will be spared the burden of several

treble damage suits spawned-by successful govern-

ment Unmasking of an antitrust violation.’ ®

The District Judge himself recognized that there are

occasions When a negotiated consent judgment should

viet be aceepted by the Court. In his opinion he said:

“It is the Court’s duty to protect the rights of persons *

who are not parties to the. action, and, of course, the.

- decree should nat be approved if it is contrary: to the:

public interest.” (App. 8a)

But the erycigl question is not whether a decree is

contrary to the public interest, but rather whether it ac-

tually serves] the public interest in the best possible

way. It is submitted that where, as here, the following

criteria are resent, the publie interest is “not served.

hy the ae epthnice of the consent judgment without the

inclusion of,/at the very Jeast, an ‘tasphalt clause’ |

(1) the potential damage to the general public result-

ing from the violations is far-reaching in its magni-’

tude; (2) public ageiicies, including: states, cities and

other political subdivisions, have borne the primary

brunt of the antitrust violations:* (3) such entities

have either filed damage actions or indicated they in-

tend to do se, and a multiplicity of lawsuits by sueh

entities is indicated: and (4) the’ injunctive -relief

*Fiynn, supra, pe. 1012. ce .

ties maa

si obt: ined by the government, as a prac tic il matter, is of

limited utility,

The lower court justitied its necepti ice of the eon

sent decree as follows:

: é

oan 48 Strong} urged by marty that the dee THE

shouldshe rejected as not being in the publie in-

terest, but noe good reason “appears to this Court

for Bodie this te be se. ta the first place, it

provides the government with subst: vitially all the

relief that jt would have obtained if-it ad tried

the case and wou. It aveids the tremendous ex-

pense of time andanoney whieh would be required

of the antitrust divisiow in the event of a trial.

The deeree brings immediate results, whereas if

this.case were to be tried any benefit of a final de-

cree would be delayed many vears. It brings an

assured result. “Those objecting have.all assumed

~ that the government. would wirr the action if: it

" were brought to trial But the government’s case

is based upon oa novel and unadjudieated theory.

If the government should try this case and lose,

the benetits’of the decree would be lost. -For these

reasous, It-appears to the C ont, that the proposed .-

decree is in the publié interest.” ( ss Ifa, 1a)

Whether Gr not it provides the government with sub-

stantially all the relief it Would have obtained if it -yhad

tried the ease and won" misses the basie point. That is

whether the Court’: duty to protect the rights of:per- *

sons Who are not parties to the action, and the publie

interest is furthered by “allowing the eitry of a con-

‘seat judgment without an ‘asphalt clause’. In today's

climate of aroused sphere vernmental couseious-

ness and-conscience about pollution. the ‘assured re-

sult® will be brought about by standards pursuant to.

legisiation anid also, because the defendarits ean yo.

longer afford to engage in their past miscenduct.

0 —_ a

This iS the kind of case where the most effective way

to discourage any recidivism on their part is to make

-them responsible’ for the injuries already caused. (To

that end a judgment entered after trial, or a consent

deerce. including an “asphalt: clause’? would be of

areater value, than a decree whieh eannot be used ex-

cept to compel the defendants to do or refrain from

doing certain aets in the future.

The rationale that ac tremendetus EXPCHSC | of time

and money would he required of the Justice ‘Depart-

ment in the event of trial. misses another essential

point, The lower court: appears to he equating the .

publie interest in terms of what is better forthe anti-

trust division. Htomay well be that the public interest

requires that the antitrust division aceept this burden,

father than shifting this tremendous expenge of time

sind tones to the general public, the states, cities and:

other political subdivisions attected by the violation.

Tlow can the time and money of nd Justice ~Depart-

ment be spent to better uly anitage |

That ‘the governme nf? s case is based upon a novel

and unadjudicated theory” is net apparent from the

pleadings. Certainly, there ix nothing either ‘novel

oor unadjidicated’” about the hard core kind of anti-

trust conspiracy alleged in’ the government’s com-

plaint. ie ees Varee .

The trouble with the. District Court’s conclusions is

that they are-based onassumptions not necessarily true,

= : é,

M See US. vy. Minnesota Mitiing & Mfg. Co. 9. 6 Supp. DAT

(D.C. Mass.) :. U2 S. v. Davis, 1953 Trade. Cases =:67.403 6.8 ¢ Bee

N.Y.) :°U. S.- vi New ‘Departure. Mfq. Co... 904° F. 107 | De

JNY.): G28. uy. Wieh. Tool Co., 1956 Trades Cases 69.290) (D.C

Mich.) ; O28. ve General Electriey 82. Supp... 753 (D.C. NL).

©

d

11

The Court shotld have allowed intervention for the

purpose of establishing a record upon which: sound

“cone lusions could he based. . :

It is, of course, not necessary to belabor the point

that consent judements do not always serve the eras

interest. “This has been adeguately demonstrated |i

hearings before ‘the antitrasp subcommittee af ‘the

“Tlouse Committee of the Judiciary. and by the report

,

Wy

of that same subcommittee. ae “ss

Professor Fivun has described the procedure as

follows:

“At best. judicial implementation of consent de-

erees Ti mest eases ‘cary only be analogized to the

performance ef asvinbolie religious rite by a high

priest, or, at Worst, as the performance of an im-

a uit public frmetion with the machine- like logie

of a chiclet) dispenser, — Thus the ceurt is

presented with a ‘negotiated contract? with little

or nocunderstanding of its background, content, or

ednsequences, and mechanically performs the -rite

of stamping the contr: act with the approval of the

LR

judiciary..” *.- ; —

Certainly, ina case which directly affects the heart,

of ‘the nation and all of its citizens. this mechanical

" Hearings, Antitrust Subcommittee of the House Committee on

the Judiciary, Consent Decree Program of the: Dept. of Justice,

. Part 1 (Oi) Pipe Lines) Oct. 1957 (2 Volumes), Part 2. (AT&T)

May 1958 (3 Volumes).

'? Report, Antitrust Subcommittee-of the House Committee on the

Judiciary, Consent Decree P rows im of the Dept. of Justice, s6th

‘Cong. Ist Sess. Jan. 30, 1939. .

1 Flynn, supra, pe. 990.

"ate as*aksO true that the: pridnet ot

: IP

Re ee

‘process, Or even the appearance of such at process

should be avoided, and all of the standard assumptions

ctu justitic trons for taking the easiest Way out, Should.

ho subjee tek to the ‘'" rnc Judie ub pte thod for arriy ihr

atan interned deetsian permitting interested parties

to be heard, . esis

This © ourt, in € ‘sea Xiteral Gras orp, v. I} Pasd

Nittural Gus Co., ’ revognized the valuable rele whieh

Intervention ¢ aut ue \\ mee teeting the pu! lie bitorest,

ar il

veods othe rapreceder Sallowing intervention, at

least for the purpose off taking a record so-that the

District Court can be tually infertned: bet PE EEE pling

the consent judgrerit I ppropriate ease. Sie hoa

procedure Wits fh Howe lye Pore Heeep tance Loft weonsent

se While itis true, as the district court also potted out, that

the deeigjon to settle au antitrust ease Is tno administrative decision,

feo nyepations may have lar

reaching: eéet om others besides ‘i . ne nidants. “In this sense,

the procedure IN Sone thins 4 nore :

| then ht making of nu administra-

tive deeisidn: It isa process of wesotiation. In yther types of sueh

administrative proce: “lines » howgver, the Civil Procedure’ Net would

wow asterested: pattfes ro appear ard spreseut oe Views. — Tlow-

ever, the ta peat proce «line im which cbssi uit deyrees are newotiated

does “rhast fall ty itstitey vtyst ry' ayy ww: ma tie ‘ ss - hee ONAL 4deeree

Process, therefore IM the matte of am administrative proceeding

Without’ “any -GY the trappings af tr aditional procedures: in-admin-

istrative actions. As a res Ht, the onl opnortunite for an affected

f } ‘! ;

cathird party te be adequately: protected. is by interventibn af the

titre the SSeie comsent decree IN press “nted to the toourt. See

oO USUAN 555° 0, which provides-in part:

oS. So farcas the obderly condnet cof publie business per.

mits. wy-interested: person avis appear before any ageney or

Its responsible officers or eniplovees- for the presentation, ad-

Justment, or determination of any ISStle, J request or coutroversy

in any proceeding Cinterlocutory, ‘Stumm: ry, or, othe rWise,) or

IM connection: W ith any ageney fimetion. 2.07"

5385 U.S; 129.

‘ 13

my 93 ; oe

deere in United States v. Stundard Oil Co, of Calif”

The Ke the court held a thypothetieal trial’? on one ef

the 1 issues invelved in the consent deeree,

The District Courtin this case bases its decision not

to-illow pi Missive. inte rVention on the @round that ‘to,

allow permissive interventionsin this case would eer-

trina de lay find prejudice adjudication of the original

partic.’ CApp. Ta) But if. the Court has aw duty,

before aecepting av comsent judgment to’ deternaine

whethe “oor net the rights of persons not partiés to

the aetign ure jeopardized wud whether the consent

deeren Ms uti ust public imterest.” (App. Td) then it:

is diflien!t to understand how ieee for the

limited: purpose of making a record te answer such

questions ean be prejudicial to any party. Cortainty,

if the retasof the antitrust division Is to: protect the

public interest, ‘that role eam only be re ‘inforeed by an

- adequate presentation of precisely What the public

Interest Is or ought to he ina particular case,

The reasons givenbytthe ¢ ‘ourt in its opinion, both

for allowing the entry At the consent decree and for

disallowing the limited. intervention sought, are based

OW Colichisiois net substivnti: ated by what we belpeve

are the actual facts in thy is ease. Tt is difficult for} the

‘most learned of judges to exer Ise proper diserettion,

cor forthe Supreme Court to adequate ‘Iv review District

Court actions, where ne record has beer made. Allow-

ing limited intervention by publie bodies in this case

would cure this deticiency in these proceedings.

Further, it weuld be particularly helpful. if) this

Court would establish standards, as suggested, against

United States v. St: mdard Oil Co. of ¢ Calif, 1959 Trade Cases:

© 69 809 (S.D. Cahf.).

’

4

which the District Court could measure the. facts de-

veloped at such a eae

Penis CONCLUSION

A‘ ease of this magnitude, jffecting as it does the

major source of dhe pollution of our air, requires better

protection for the public interest and publie body litt

gauts than is.atforded by this consent decree, Judicial

eviteria ave needed to guide the Distviet Court. Ata

minimum, limited Sutervention is ecessary so that a

record can be developed inginin st whiely the Distriet

Court can determine appropriately whether the public

- juterest bi: Is. heon siftic ieuths, served by the entry of

the consent. dee ‘ree Tider the éiremmeatances of this case

‘and whether the pubiie body litigants have been ade- ¢

quately protected. .

’

7 ae

Respectfully submitted,

Jenny S. Comex :

~ 1776 K Street, NW,

Washingtoy, D.. 20006 |

IlAtoro KE. KaAuN

Adnon M. Fin

Winns T, Corkuasx, de

’ ae 2600 The Fidefity Building

Philadelphia, PAinsylwania 10109

Allorncys for

is Awe Curiag :

Dinwortu, Paxson, Karasn,

Koun & Levy

260) The Fidelity Building

Philadelphia, Pe nnsylvania ILO

Of Counsel © ‘