Reply Brief — Nogales Service Center v. Atlantic Richfield Co.

| Supreme Court, U.S.)

FILED a]

| OCT 24 197g |

ee meeeK IR. CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

No. 78-405

NOGALES SERVICE CENTER,

an Arizona corporation,

Petitioner,

ATLANTIC RICHFIELD COMPANY,

a Pennsylvania corporation,

Respondent.

PETITIONER’S REPLY BRIEF

ON CERTIORARI

+ -

MICHAEL J. MEEHAN

Post Office Box 2268

Tucson, Arizona 85702

Attorneys for Petitioner

MOLLOY, JONES, DONAHUE, TRACHTA

& CHILDERS, P.C.

21st Floor, Arizona Bank Plaza

Post Office Box 2268

Tucson, Arizona 85702

Sse

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases.

Blumenstock Brothers Advertising Agency v. Curtis

Publishing Company, 252 U.S. 436 (1920)..... ee

Charles Dowd Box Co. v. Courtney, 368 U.S. 502,

PN Min CE hacks werk sabed nie segs oy 5

Federal Energy Administrator vy. Algonquin SNG,

Inc., 426 U.S. 548 (1976) ................0005..

Freeman v. Bee Machine Co., 319 U.S. 448 (1943)....

General Investment Co. v. Lakeshore and M.S.R. Co.,

ee a Peo a

Gold Fuel Service Co. v. Essons Standard Oil Co.,

No. 361 O.T: 1960, cert. denied, 364 U.S. ae

Kansas City, Missouri v. Federal Pacific Electric Co.,

310 F.2d 271 (8th Cir. 1962) ..............000,,

North Carolina v. Charles Pfeiser and Co., Inc., No.

75-1811, cert. denied, 429 U.S. 870..............

Overseas Motors Inc. v. Import Motors Ltd., Inc.

No. 75-494, cert. denied, 423 U.S. 987...........

United States v. City and County of San Francisco,

BOW Wem BO (TINO) ooo c ccc e sc ccsscsccscccccces

a SA SR ARGS ee

Westinghouse Electric and Manufacturing Co. v.

McGregor, No. 373 O.T. 1944, cert. denied, 323

NS wat Vo veo) nb SG 0 eos ok ccs ha evcases

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

No. 78-405

NOGALES SERVICE CENTER,

an Arizona corporation,

Petitioner,

ATLANTIC RICHFIELD COMPANY,

a Pennsylvania corporation,

Respondent.

PETITIONER’S REPLY BRIEF

ON CERTIORARI

ARGUMENT

The respondent ARCO would have this court believe that

State Courts are precluded from concurrent jurisdiction over

antitrust suits because “had Congress meant to provide for

[such concurrent jurisdiction] it knew how to do so”’. Brief in

Opposition, p. 5. Of course, it has stated the inverse of the

rule for determining concurrent jurisdiction. In fact, con-

current jurisdiction is the ““common phenomenon in our

judicial history” and exclusive jurisdiction is only declared,

where Congress has excluded jurisdiction of State Courts

“by express provision’. Charles Dowd Box Co. v.

‘ Courtney, 368 U.S. 502, 508 (1962).

The respondent company would have this court believe

2

that legislative history such as remarks in debate by

sponsors, floor managers, and drafters of a bill are inap-

propriate indications of the meaning of an ambiguous statute.

This contention rests upon an incomplete quotation, the

whole of which stands for something quite different than

ARCO contends. The portion omitted by ARCO is shown in

brackets:

‘These statements of the author of the Act in advocating

its adoption cannot, of course, control its construction,

where there is doubt as to its meaning, [; but they show

the condition of mining property on the public lands of

the United States, and the tenure by which it was held by

miners in the absence of legislation on the subject, and

thus served to indicate the probable intention of

Congress in the passage of the Act]. Jennison v. Kirk,

98 U.S. 453, 459, 460 (1878) (emphasis added).

Legislative history is unnecessary where the meaning of a

statute is unambiguous. In this case, Congress has said that a

private claimant ‘“‘may sue [for a violation of the Sherman

Act] in any District Court of the United States...” 15

U.S.C. §15. Just as this court held in Charles Dowd Box

Co. v. Courtney, 368 U.S. 502 (1962), 29 U.S.C. §185 that

concurrent jurisdiction was intended by Congress saying that

suit ‘may be brought in any District Court’, so, too, this

statute unambiguously intends the same result.’

'Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962) is uniquely

instructive of the proper disposition of this case. There, the “may sue”’

statutory language was used. This Court, Mr. Justice Stewart, first

described the pertinent principles of concurrent and exclusive juris-

diction. The opinion then canvasses legislative history very similar to

that existing for the Sherman and Clayton Acts, on the question of

concurrent jurisdiction. The statute’s language was all but identical with

that at issue here. The Court recognized that the substantive law involved

was to be the unique Federal Labor Law. But the language of the statute

and the history as derived from floor managers’ debates mandated a

finding of concurrent jurisdiction. It is just this analysis that has never

been undertaken as to the Sherman Act, which we now ask the Court to

undertake.

3

But if any doubt there be, the legislative history makes

plain the intended concurrent jurisdiction. Such legislative

history has, of course, been appropriate source of the

meaning of the statute. F.g., Federal Energy Administrator

v. Algonquin SNG, Inc., 426 U.S. 548 (1976); United

States v. City and County of San Francisco, 310 U.S. 16

(1940); Kansas City, Missouri v. Federal Pacific Electric

Co., 310 F.2d 271 (8th Cir. 1962). ARCO’s argument to the

contrary, on the basis of one misleading citation, is frivolous.

Indeed, ARCO has never disagreed, through proceedings in

the trial court and at three appellate levels, that Congress

intended for the courts of the States and the United States to

have concurrent jurisdiction.’

Instead it has argued that this meaning should be ignored

and the dictum of Freeman v. Bee Machine Co., 319 U.S.

448 (1943) and Blumenstock Brothers Advertising Agency

v. Curtis Publishing Company, 252 U.S. 436 (1970) should

be blindly followed.

ARCO would have this court believe that the eight cases

cited on page 3 of its brief contradict the statutory meaning

urged by the petitioner. In fact, in seven of the eight cases the

Blumenstock or Freeman v. Bee dicta were accepted

incidentally to deciding other issues, and were not directly

litigated. In an eighth, the refusal of state court jurisdiction

was mentioned without any supporting citation or analysis.

Of the four denials of certiorari reported by ARCO on

page 3, none presented to this court the issue framed by this

Its contention, Brief, p. 5, that legislative history has been “selectively

excerpted” is puzzling. It knows that extensive additional legislative

history was presented in the courts below, from which excerpts were

included in the petition to serve merely as an example. It has never

disagreed with the legislative history presented, and its import.

case.°

This Court’s reference to exclusive federal jurisdiction for

Sherman Act claims, in Vendco Co. v. Lektro-Vend Corp.,

433 U.S. 623 (1977) was again premised, both in the

plurality opinion of Mr. Justice Rehnquist and the dissent of

Mr. Justice Stevens, upon the Freeman v. Bee Machine Co.,

supra, dicta. Vendco demonstrates the benefit of recon-

sidering the exclusive jurisdiction dicta. Had the Illinois

Court been able to consider federal antitrust violations by

way of affirmative defense or counterclaim, this court would

never have had to decide whether an injunction could issue

by the District Court, to restrain collection of the Illinois

judgment. Instead, the antitrust claims would not have been

abandoned in the state court suit, and a second round of

litigation in the District Court would have been avoided, as

would the need for this court to address the delicate and

highly technical Anti-Injunction Act issues, without sacri-

ficing the concerns of the Vendco dissenters that the antitrust

act be made fully effective.

This court said, in General Investment Co. v. Lakeshore

and M.S.R. Co., 260 U.S. 261 (1922) that 15 U.S.C. §26,

respecting jurisdiction in private antitrust actions for

oo”

3In North Carolina v. Charles Pfeiser and Co., Inc. No. 75-1801,

cert. denied, 429 U.S. 870 and Overseas Motors Inc. v. Import Motors

Ltd., Inc., No. 75-494, cert. denied, 423 U.S. 987, the issue of

concurrent jurisdiction was not raised in any way. In Westinghouse

Electric and Manufacturing Co. v. McGregor, No. 373 O.T. 1944,

certiorari was denied for lack of a final judgment. 323 U.S. 761. In Gold

Fuel Service Inc. v. Essons Standard Oil Co., No. 361 O.T. 1960, cert.

denied, 364 U.S. 882, the issue was seemingly raised by the questions

presented in the petition, but actually was argued as an attempt to modify

State Common law by incorporating Sherman Act principles; a posture

that would deprive this court of jurisdiction to review the State Court

opinion.

5

injunctive relief, reposed exclusive jurisdiction in the

Federal Courts for such actions. Like Freeman v. Bee

Machine Co., supra, and Blumenstock, supra, the opinion

of Justice Van deVanter was devoid of any analysis what-

soever, either of the language of the statute, of the legislative

history, or of the rules of construction for deciding exclusive

or concurrent jurisdiction. To be sure, many courts and

commentators have acknowledged the statements in

Blumenstock, Freeman, and General Investment Co.,

without critical analysis. Not once, however, has this court

or any court held, after canvassing the legislative history,

parsing the specific words used in the statute, and applying

the precedents on concurrent jurisdiction, that a litigant like

Service Center could not seek damages in the state courts for

violation of the Sherman Act. Yet to so hold would eliminate

the forum shopping that has occurred in this case, the

duplication of litigation that is demonstrated in this case and

in Vendco, supra, and the exclusion of State antitrust claims

from state courts that has, in fact, occurred because of the

exclusive jurisdictional rule. If Sherman Act claims may be

joined with State antitrust claims in the courts of the states,

the judgments resulting may, as often as not, ultimately be

grounded upon the State law claims; a result quite desirable

but all but impossible under the exclusive jurisdiction that is

now assumed.

This Court should grant certiorari and consider whether

the statute intended concurrent jurisdiction, and whether

both antitrust enforcement and judicial economy will be

served by concurrent jurisdiction.

MICHAEL J. MEEHAN

P.O. Box 2268

Tucson, Arizona 85702

Attorney for Petitioner

OCTOBER, 1978