Petition — Illinois v. General Paving Co.
Supreme Court brief1979
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FILED
MAR 22 1979
IN THE
Supreme Court of the Unit
{
185 x. §R., CLERK
Octroser Term, 1978
wo. 98-1464
STATE OF ILLINOIS,
Petitioner,
VS.
GENERAL PAVING COMPANY and
F. F. MENGEL COMPANY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
WILLIAM J. SCOTT,
Attorney General, State of Illinois,
160 North LaSalle Street, Suite 900,
Chicago. Illinois 60601, (312). 793-3500,
Attorney for Petitioner,
State of Illinois.
Joun EF. Noet,
Chief,
THomas M. GENOVESE,
Les H. WeErNer,
STEPHEN P. Jvuecu,
Assistant Attorneys General,
Antitrust Division,
188 West Randolph Street, Suite 2118,
Chicago, Illinois 60601, (312) 793-2582,
Of Counsel.
Printed by Authority of the State of Dlinois = 365
INDEX TO PETITION
Pace
IR te cry BE View ag Nios nc hase Niet sa.0% © 2
Bgl eal Opt pers SNE aie 1s SRL hela aa 2
oo dg SUR ee Se 3
EEE ee) Ne ORD a ge a 3
ME CCG elven cts ateaceweass |
Reasons for Granting the Writ .................05. 6
I UCR iwiac ek ovk ev aass 22
Appendix A—Opinion of the Court of Appeals for the
EE I Sli cee tvclecesecees Al
Appendix B—Opinion of the District Court for the
Southern District of Illinois ......... Bl
Appendix C—Order of the District Court for the South-
Om DAstEaet OF TMiNCIS ... 2.6... e ee Cl
il.
TABLE OF AUTHORITIES
CasEs
PAGE
Bill Minielli Cement Contracting, Inc. v. Richter Con-
crete Corp., 62 F.R.D. 381 (S.D. Ohio 1973) ........ 11
Blounder-Tongue Laboratories, Inc. v. University of
Illinois Foundation, 402 U.S. 818 (1971) .......... 12, 16
Buckeye Powder Co. v. E. I. duPont de Nemours Pow-
der Co., 248 U.S. 55 (1918) ..... LRapA ian 24ea eh 16
Butler v. Stover Brothers Trucking Co., 546 F, 2d 544
SOME MPU MER ei hid win Gin Siera pie wi iaidels ORNS Vlie'e BBR 9
Citizens Comm, for Broadcasting v, F.C.C., 555 F. 2d
938 (D.C. Cir. 1977), aff'd in part, rev’d in part on
other grounds, —— U.S. 98 S. Ct. 2096 (1978) . 20
City of Burbank v. General Electric Co., 329 F. 2d 825
ee AUN UN Sl sa Gale Aor e's eb sha hake ee wie bs 17
Commonwealth Edison Co, vy. Allis-Chalmers Mfg. Co.,
323 F. 2d 412 (7th Cir. 1963), cert. denied, 376 U.S.
ee CRD 5 K6 owe a Cah alk Ped eee Creede reeks 13
Connecticut Fire Ins. Co. vy. Ferrara, 277 2d 388 (8th
Ohi I eee rae etn an ne 18
Emich Motors Corp. v. General Motors Corp., 181 F. 2d
70 (7th Cir. 1950), rev’d on other grounds, 340 U.S,
Se CER a ys cT RU KEES ona es wos aes Urea 7, 18, 15, 18
Fleer Corp. v. Topps Chewing Gum, Inc., 415 F. Supp.
176 (B.D. Pa. 1976), appeal dismissed, (3rd Cir.),
cert. denied, —— U.S. ——, 98 S. Ct. 1611 (1978) ..14, 21
Fortner Enterprises, Inc. vy. United States Steel Corp.,
ks Ge I Vike hw RE Eda eR was CAR wea okabn 7
Illinois v. Huckaba & Sens Construction Co., 442 F.
I ee Rien GU SED 5h So rao aoe as CAR awas es 20
iii.
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) ..... 7,19
In re Gypsum Antitrust Cases, Civil No, 46414-A (N.D.
Cal; Then: $3. 20782. sc sins deenes sce dpaseeteaenews 11
J. I. Case v. Borak, 877 U.S. 426 (1964) 2... cccccenss 18
Johnson vy. United States, 576 F. 2d 606 (5th Cir.
TOTES cidccoedivns SuavevRaenssnneste Te hcneecueran 9
J. M. Woodhull, Ine. v. Addressograph-Multigraph
Corp., 62 F.R.D. 58 (S.D. Ohio 1974) ....... 6. ee eee 11
Leh v. General Petroleum Corp., 382 (U.S. 54 (1965).. 7
McCook vy. Standard Oil Co. of California, 393 F. Supp.
S56 (C.D). Ce. TRIO) ake ise ves ce euseactaveaa ls 14
Moragne v. States Marine Lines, 398 U.S. 375 (1970) . 18
Minnesota Mining & Mfq. Co. v. New Jersey Wood Fin-
ishing Co., 88) U.S. S11 (1965) 2.0. scsececnces 7, 18, 19
Parklane Hosiery Co. v. Shore, —— U.S. , 99 S. Ct.
OER TRICE) Shave sedi cand wadevs ceaeekans 8, 9, 10, 12
Perma Life Mufflers vy. International Parts Corp.,
ee UR. TBE, CGO) in ch foes iatavtateccyperees 7
Plunkett v. C.1.R., 465 F. 2d 299 (7th Cir, 1972) ...... 9
Poster Exchange, Inc. vy. National Screen Service
Corp., 517 F, 2d 117 (Sth Cir. 1975), cert. denied, 423
Ue. BORE CRGTS) os pc cee hccsb dasa chines seuenes aes 9
Purex Corp. v. Proctor & Gamble Co., 308 F. Supp. 584
(C.D. Cal. 1970), aff'd on other grounds, 453 F. 2d
288 (9th Cir. 1971), cert. denied, 405 U.S. 1065 (1972) 14
Rail Re-organization Act Cases, 419 U.S. 102 (1974) .. 20
Red Lion Broadcasting Co. v..F.C.C., 395 U.S. 367
SREP Ae pape antag Rey Gorse arte (pag Se pe a: oa 19
Sam Fox Publishing Co. v. United States, 366 US.
OUR TINE) oviiinrnch 0 he kaa cc Creek eee. 10, 13
Scooper Dooper, Inc. v. Kraftco, Inc., 494 F. 2d 840
Co GR! BOP ON heal ics haces vere Cu tee ee uke es emer 9
iv.
Shaw vy. North Penn. R. Co., 101 U.S, 557 (1880) ...... 18
Simco Sules Service of Pa. v. Air Reduction Co., 213
*. Supp. 666 (ED. Pa. DOOR) sii ccc cbs cuss eas 18
Tennessee Valley Authority v. Hill, —~— U.S. —.,
996.04: 909 1H). oe eee 19
United States v. American Trucking Assn’s, 310 U.S.
534 (1940) 2.0... PP «<5 stan ty Sate oe eee amet 19
United States v. Huckaba & Sons Construction Co.,
S-Un-763 (GR. 7: WO. ..nucatee 4
United States v. Ryan, 284 U.S. 167 (1931) .......... 21
United States v. Southwestern Cable Co., 392 U.S. 157
(BEGG). s.0.s0.aieie wisivie v'p:c'e'e wine Sa ene 20
United States v. Turley, 352 U.S. 407 (1957) . 0.2000... 20
United States v. Wise, 370 U.S. 405 (1962) .......... 19, 20
Usery v. Intern, Organization of Masters, Ete., 422 F.
Supp. 12921 (O.. WY. SOR) icc ook dee 9
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.
GER (IOGR) wan ncivicdahebuicteel alee 7
STATUTES
Act of July 7, 1955, Pub. L. No. 137, 69 Stat. 282-83 .. 17
Clayten Act, 16 UEC. § ieee d
Clayton Act, 16 U.BO. O00 sss 0. see passim
Sherman Act, 15 U0. $4 oy. is viskawerseeae ee 4
2S UBC. § TIGR) on ciivanktin ei eee 2
38 USO. 3 IR vv. ccsasaksaueaeee eee 5
3 UBL. § Fe). icc. c. fanaa eee 2
RULES
yap. &..Cev. P. Ble) cece eee 4
Advisory Committee Note, Fev. R. Evm. 803 (22) .... 18
LEGISLATIVE MATERIALS
Bills
H.R. 7905, 81st Cong., 2d Sess. (1950) .............. 17
S. 2512, 89th Cong., 2d Sess. (1966) ................ 17
H.R. 7647, 98th Cong., 2d Sess. (1978) ..........-65. 17
Reports
H.R. Rep. No. 627, 63d Cong., 2d Sess. 14 (1914) ..... 15
S. Rep. No. 698, 63rd Cong., 2d Sess. 45 (1914) ...... 15, 16
H.R. Rep. No. 422, 84th Cong., Ist Sess. (1955) ....... 21
S. Rep. No. 619, 84th Cong., Ist Sess. reprinted in US.
Cone. Cop & Apmin. News 2328 (1955) ...........-.. 21
Congressional Record
ee a, ssc ak eh sa eRe wed ba ap ee 15
ee A I dS aie kk a on naw As one wwe 16
ee a i NO Po as iy wa a's have ae ae wee 16
51 Cone. Rec. 13907 .....: Ws Ra ak iia ne eee OO 16
Se yk px cw cut.e wha eh wae wae 16
Oe ee I aa cae a sent ikea aawds 16
ee se ey Sl eee aes wa ea Meee 16
OTHER AUTHORITIES
Posner, A Statistical Study of Antitrust Enforcement,
to 2. Saw BH OOM, BOO (ISTO) ©. oso ica cecss 6
IN THE
Supreme Court of the United States
Octoser TERM, 1978
No.
STATE OF ILLINOIS,
Petitioner,
vs.
GENERAL PAVING COMPANY and
KF. EF. MENGEL COMPANY,
; Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
Petitioner, the State of Illinois, respectfully prays that
a writ of certiorari issue to review the judgment and opin-
ion of the United States Court of Appeals for the Seventh
Circuit, entered in this proceeding on January 11, 1979.
OPINIONS BELOW
The opinion of the Court of Appeals, not yet reported,
appears in Appendix A hereto. The decision of the District
Court for the Southern District of Illinois, which was re-
versed by the Court of Appeals, is reported at 442 I’. Supp.
56 (S.D. Ill. 1977), and appears in Appendix B hereto. The
order of the District Court entering partial summary judg-
ment appears in Appendix C hereto.
JURISDICTION
The judgment of the Court of Appeals for the Seventh
Cireuit was entered on January 11, 1979. A petition for
rehearing and suggestion for rehearing en bane was filed
on January 25, 1979, and was denied on February 9, 1979.
A motion to stay the mandate was then filed with the Court
of Appeals on February 16, 1979. An order staying the
court’s mandate was entered on February 22, 1979. This
petition for certiorari was timely filed within 90 days of the
entry of judgment, pursuant to 28 U.S.C. § 2101(c). This
Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
QUESTION PRESENTED
WHETHER THE EXERCISE OF THE COMMON LAW
DOCTRINE OF COLLATERAL ESTOPPEL IS PRE-
EMPTED BY THE PRIMA FACIE EVIDENTIARY
BENEFIT GRANTED TO PRIVATE ANTITRUST
PLAINTIFFS UNDER SECTION 5(a) OF THE CLAY-
TON ACT.
STATUTE INVOLVED
Clayton Act, Section 5(a) (15 U.S.C. § 16).
Section 16. Judgment in favor of Government as evi-
dence; suspension of limitations
(a) A final judgment or decree heretofore or hereafter
rendered .in any civil or criminal proceeding
brought by or on behalf of the United States un-
der the antitrust laws to the effect that a defendant
has violated said laws shall be prima facie evidence
against such defendant in any action or proceed-
ing brought by any other party against such de-
fendant under said laws or by the United States
under Section 15a of this title, as to all matters
respecting which said judgment or decree would be
an estoppel as between the parties thereto: Pro-
vided, that this section shall not apply to consent
judgments or decrees entered before any testimony
has been taken or to judgments or decrees entered
in actions under Section 15a of this title.
STATEMENT OF THE CASE
On January 17, 1974, a federal grand jury returned an
indictment charging Respondents with a violation of §1 of
the Sherman Antitrust Act, 15 U.S.C. § 1. On July 16, 1974,
Respondents were convicted after a seven day trial by
jury."
On June 19, 1975, the Petitioner filed its civil complaint
seeking treble damages under § 4 of the Clayton Act, 15
U.S.C. § 15, from the same defendants convicted in the
federal action. Petitioner’s complaint alleged the same anti-
trust violation contained in the federal indictment, and all
three civil defendants filed answers denying liability.
On May 4, 1977, pursuant to Rule 56(a) of the Federal
Rules of Civil Procedure, the Petitioner moved for partial
summary judgment against the civil defendants relying on
the prior federal criminal judgments. Petitioner asserted
that the judicial doctrine of collateral estoppel precluded
the civil defendants from relitigating those common issues
of fact that had been adjudicated against them in the prior
criminal case.
On December 14, 1977, District Judge J. Waldo Acker-
man filed a memorandum order holding that collateral estop-
pel could properly be invoked by the Petitioner to preclude
the civil defendants from contesting their liability under
the antitrust laws. The court reasoned that the evidentiary
benefit granted to private plaintiffs under § 5(a) did not
preempt the exercise of the common law doctrine of col-
1. United States of America v. Huckaba & Sons Con-
struction Co., S-CR-74-3 (S.D. Ill. 1974). Huckaba, a third
defendant, was also indicted and was convicted on a plea of
guilty. Huckaba did not appeal from the judgment entered
below in the civil action.
5
lateral estoppel. Pursuant to 28 U.S.C. -§ 1292(b), the Dis-
trict Judge certified his order for interlocutory appeal. On
February 16, 1978, Judge Ackeriian granted Petitioner’s
motion for partial summary judgment upon a finding that
the criminal and civil actions involved identical facts. See
Appendix C.
On March 21, 1978, the Seventh Circuit Court of Appeals
granted Respondent’s petition for permission to appeal.
Thereafter, Respondents also filed with the same court a
motion to withdraw and dismiss the appeal voluntarily. On
July 3, 1978, the court denied this motion. Briefs were then
submitted by all parties.’
On January 11, 1979, the Court of Appeals reversed the
order of the District Court. The Seventh Circuit held that
’ by enacting § 5(a), Congress intended to preempt the use
of collateral estoppel in private antitrust actions which fol-
low Government suits. The Court indicated that a prior
Government judgment could be nothing more than prima
facie evidence in a subsequent suit. In the Seventh Circuit’s
view, prior decisions of this Court and other lower federal
courts were controlling on the issue of § 5(a) preemption
of the common law doctrine of collateral estoppel.
2. Orr Construction Company and Arcole Midwest Cor-
poration, defendants in other similar cases brought by the
State of Illinois, were permitted by the Court to file briefs
as amici curae.
REASONS FOR GRANTING THE WRIT
I,
THE DECISION BELOW RAISES IMPORTANT AND -
RECURRING QUESTIONS CONCERNING THE AD.
MINISTRATION OF THE ANTITRUST LAWS AND
THE EFFICACY OF THE TREBLE DAMAGE AC.
TION.
The Seventh Circuit’s conclusion that the common law
doctrine of collateral estoppel is unavailable to private anti-
trust litigants will have an adverse impact that reaches far
beyond the instant case. Treble damage actions almost in-
variably follow on the heels of United States Department
of Justice enforcement actions.’ Thus, the decision below
will require the unnecessary re-litigation of factual issues
whenever a private suitor relies on the judgment or decree
in a prior Government action.
The negative impact of the Seventh Circuit’s decision on
private antitrust litigation is readily apparent. The treble
damage action, already the most tortuous of lawsuits, is
made even more lengthy and complex by involving the courts
3. No comprehensive statistics, official or otherwise, are
kept detailing the number of private suits that follow Gov-
ernment actions. The research of one law journal commen-
tator, however, reveals that from 1890-1963, 62% of all pri-
vate cases filed were preceded by Government judgments.
Posner, A Statistical Study of Antitrust Enforcement, 13 J.
Law & Econ. 365, 372 (1970). In the mid-60’s, over 2,000
private electrical equipment cases were based on a few
Government indictments.
Of the 18 federal civil actions currently being prosecuted
by the Antitrust Division of the Mlinois Attorney General’s
Office, 16 were preceded by Government eases.
7
and parties in discovery on, and re-proof of, issues that
have already been adjudicated in the prior action. This is
particularly wasteful when the prior Government suit was
a criminal case where the burden of proof satisfied by the
Government was greater than that required in the subse-
quent civil action.
The decision below also undermines ‘‘the longstanding
policy of encouraging vigorous private enforcement of the
antitrust laws.’’ Illinois Brick Co. v. Illinois, 431 U.S. 720,
745 (1977). The decisions of this Court have repeatedly rec-
ognized the Congressional conviction that private antitrust
litigation is ‘“‘one of the surest weapons for effective en-
forcement of the antitrust laws.” Minnesota Mining & Mfg.
Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318
(1965) ; Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321, 337 (1971); Leh v. General Petroleum Corp., 382
U.S. 54, 59 (1965). Private action was instituted by Congress
‘‘not merely to compensate those who have been indirectly
injured but also to vindicate the important interest in free
competition.’? Fortner Enterprises, Inc. v. United States
Steel Corp., 394 U.S. 495, 502 (1969).
Certiorari has previously been granted where a decision
of the Court of Appeals ‘‘threaten[ed] the effectiveness of
the private action as a vital means for enforcing the anti-
trust policy of the United States.’? Perma Life Mufflers v.
International Parts Corp., 392 U.S. 134, 136 (1965). This
Court last considered the operation of § 5(a) of the Clayton
Act 28 years ago in Emich Motors Corp. v. General Motors
Corp., 340 U.S. 558 (1951).
In view of the absence of an authoritative Supreme Court
pronouncement on the application of collateral estoppel in
private antitrust actions, the novelty of this issue, see Part
II, infra, the recurring nature of this problem and the
8
negative effect that the lower court’s decision will have on
private antitrust hugation and the administration of jus-
tice in the federal judicial system as a whole, this case pre-
sents an important question of federal law which requires
resolution by this Court.
II.
THE DECISION BELOW CONFLICTS, IN PRINCIPLE,
WITH THE RECENT DECISION OF THIS COURT IN
PARKLANE HOSIERY CO. v. SHORE.
In concluding that the common law doctrine of collateral
estoppel is unavailable to private antitrust litigants, the
Seventh Circuit ignored the rationale of this Court in Park-
lane Hosiery Co. v. Shore, —— U.S. , 99 S. Ct. 645
(1979), which endorsed the offensive use of collateral estop-
pel in federal civil litigation.‘ By so doing, the decision be-
low creates an unnecessary and unwarranted anomaly in
the application of the doctrine of collateral estoppel in the
federal courts and frustrates considerations of judicial
economy which underlay the Parklane decision. Further-
more, the Seventh Circuit failed to recognize the recent de-
velopme™ts in the evolution of collateral estoppel in econ-
cluding that prior case law supported preemption of the
doctrine’s application in antitrust litigation.
A.
The Parklane Rationale Should Apply Equally To Anti-
trust Litigants.
In Parklane, this Court finally eradicated, as an element
of collateral estoppel, the rule of mutuality of parties. The
4. Parklane was brought to the Seventh Circuit’s atten-
tion in Petitioner’s Motion For Rehearing.
9
rule held that unless both parties were bound by a prior
judgment, neither party could use the prior judgment as
determinative of an issue in the second action. After Park-
lane, a defendant who has had a ‘‘full and fair opportunity”
to litigate his claims in a prior action will be collaterally
estopped from re-litigating the same issues in a subsequent
action brought by a third party. 99 S. Ct. at 652.
Mr. Justice Rehnquist’s dissent in Parklane recognized
that there was little reason why this Court’s decision should
not extend to private antitrust cases which follow Govern-
ment actions. 99 S. Ct. at 662, n. 20. The Seventh Circuit,
however, declined to follow Parklane and concluded that
§ 5(a) of the Clayton Act preempted the operation of offen-
sive collateral estoppel.
Absent the ‘‘benefit’’ of the evidentiary presumption
which § 5(a) statutorily creates, the doctrine of collateral
estoppel would now be available to the petitioner. The de-
fensive application of the doctrine has received judicial ap-
probation in private antitrust actions not affected by § 5(a).
See Poster Exchange, Inc. v. National Screen Service Corp.,
517 F. 2d 117, 122-23 (Sth Cir. 1975), cert. denied, 423 U.S.
1054 (1976); Scooper Dooper, Inc. v. Kraftco, Inc., 494 F.
2d 840, 844-45 (3rd Cir. 1974). Offensive use of collateral
estoppel has also been sanctioned in several fields of law
other than antitrust, i.e., securities, tort, tax and labor law.
See e.g., Parklane Hosiery Co. v. Shore, supra; Johnson v.
United States, 576 F. 2d 606 (Sth Cir. 1978); Butler v.
Stover Bros. Trucking Co., 546 F. 2d 544 (7th Cir. 1977);
Plunkett v. C.1.R., 465 F. 2d 299 (7th Cir 1972); Usery v.
Intern. Organization of Masters, Etc., 422 F. Supp. 1221
(S.D.N.Y. 1976). There is no logical explanation why the
salutary benefits of collateral estoppel should now be avail-
able to virtually all federal litigants except antitrust claim-
ants who follow prior Government lawsuits.
10
In Parklane, this Court recognized that there may be
situations where the offensive use of collateral estoppel is
inappropriate. The Court noted that offensive use could
increase, rather than decrease the total amount of litigation
if a plaintiff could have been a party in a prior action, but
chose not to. 99 S. Ct. at 651. Also, it was recognized that it
would be inequitable to apply the doctrine where a defend-
ant was sued for nominal damages in the first action and
future suits were not forseeable. In such a situation the
defendant might have little incentive togfully litigate the
former action. Id.
These concerns, however, are totally inapplicable in the
present case and in other private suits which follow Gov-
ernment litigation. As a matter of law, private plaintiffs
cannot intervene in Government enforcement actions. Sam
Fox Publishing Co. v. United States, 366 U.S. 683 (1961).
Criminal antitrust defendants have every motivation to ac-
tively litigate a Government criminal action. They are fully
cognizant of the possible criminal penalties if they are
found guilty and they also know that treble damage actions
will inevitably follow in the wake of a successful Govern-
ment action.
Respondents herein had every incentive and opportunity
to defend the criminal action fully and vigorously. After
seven days of trial by jury, Respondents were found guilty
beyond a reasonable doubt of the identical antitrust viola-
tion involved in this lawsuit.’ To allow Respondents again to
fully litigate the same issues in the same courtroom simply
because they are faced with a new adversary is diametrical-
ly opposed to the basic purpose of the doctrine of collateral
5. In contrast, the defendant in Parklane did not even
have a right to a jury trial in the prior S.E.C. proceeding.
99 S. Ct. at 648.
11
estoppel. Accordingly, the doctrine should be applied here-
in to prevent further needless re-litigation of identical
issues.
According to the rationale of the decision below, if a
non-antitrust claim had been joined to Petitioner’s anti-
trust claim in the instant action, collateral estoppel would
incongruously apply only to the non-antitrust claim. The
confusion that would result from attempting to conduct a
trial and instruct a jury in such circumstances is not diffi-
cult to visualize. The very same facts established in the
prior Government litigation would be given conclusive, col-
lateral estoppel effect as to the non-antitrust claim but
prima facie effect as to the antitrust claim,
Moreover, the decision below would permit a private arti-
trust plaintiff to use a prior non-Government antitrust judg-
ment to collaterally estop a defendant in a subsequent suit.
See J.M.Woodhull, Inc. vy. Addressograph-Multigraph Corp.,
62 F.R.D. 58, 61 (S.D. Ohio 1974) ; Bill Minielli Cement Con-
tracting, Inc. v. Richter Conerete Corp., 62 F.R.D. 381, 386
(S.D. Ohio 1973); In re Gypsum Antitrust Cases, Civil No.
46414-A (pre-trial order, N.D. Cal., Dee. 22, 1971) (findings
in prior non-Government antitrust action given offensive
collateral estoppel effect in subsequent private action). By
its very terms, § 5(a) applies only to a prior Government
judgment or decree and therefore would not preempt the
application of collateral estoppel where the prior antitrust
action was private.
The Seventh Circuit Mistakenly Relied On Prior Case
Law In Concluding That § 5(a) Preempted Offensive Col-
lateral Estoppel.
The court below erred by relying upon prior cases, which
merely interpreted the prima facie language of § 5(a), in
12
support of its conclusion that § 5(a) preempted the offen-
sive application of the doctrine of collateral estoppel in
private antitrust actions which follow Government suits.
The Parklane decision was rendered on January 9, 1979.
The case represents the first time that this Court has en-
dorsed the offensive application of collateral estoppel.
Ironically, on January 11, 1979, the court below rejected
the offensive application of the doctrine in antitrust liti-
gation, stating that ‘‘repeated judicial holdings after the
evolution of the doctrine of collateral estoppel that Section
5(a) allows only prima facie effect must be given due
weight.’’ Appendix A at A7. With the exception of one
district court decision, however, the cases relied on by the
Seventh Circuit were decided at a time when the rule of
mutuality forbade the offensive use of collateral estoppel.
See Appendix A at A3, n. 3.
In Parklane, this Court specifically récognized that
‘*{ujntil relatively recently . .. the scope of collateral
estoppel was limited by the doctrine of mutuality of
parties.” 99 S. Ct. at 649. In 1971, this Court for the first
time endorsed the defensive use of collateral estoppel in
non-mutality situations.* Blonder-Tongue Laboratories,
Inc. v. University of Illinois Foundation, 402 U.S. 313
(1971). The Blonder-Tongue Court recognized that the re-
jection of the rule of mutuality was slow to develop:
Of course, transformation of estoppel law was neither
instantaneous nor universal. As late as 1961, eminent
6. See Mr. Justice Rehnquist’s dissent in Parklane where-
in he states: ‘‘The Court’s decision in Blonder-Tongue
Laboratories, Inc. v. University of Illinois Foundation, 402
U.S. 313 (1971), is, on its facts, limited to the defensive use
of collateral estoppel in patent cases. Abandonment of mu-
tuality is a recent development.’’ 99 S. Ct. at 659 n. 14
: 13
authority stated that ‘‘[m]ost state courts, recognize
and apply the doctrine of mutuality, subject to certain
exceptions .... And the same is true of federal courts,
when free to apply their own doctrine. (Citations
omitted).
402 U.S. at 326-27. Even as late as 1971, the Court noted,
courts and commentators had reservations about offensive
use of collateral estoppel in non-mutuality situations. 402
U.S. at 330-31.’
The decisions chiefly relied on by the Seventh Cir-
euit—Sam Fox Publishing Co. v. United States, 366 U.S.
683 (1961); Commonwealth Edison vy. Allis-Chalmers
Mfg. Co., 323 F. 2d 412 (7th Cir. 1963), cert. denied, 376
U.S. 939 (1964); Emich Motors Corp. v. General Motors
Corp., 181 F. 2d 70 (7th Cir, 1950), rev’d on other grounds,
340 U.S. 558 (1951)—clearly pre-date the very recent exten-
sion of the doctrine of collateral estoppel. Thus, the Sev-
enth Circuit was in error in relying on ‘‘repeated judicial
holdings’’ which existed at a time when the rule of mutu-
ality was still firmly entrenched.
It must also be noted that, contrary to the Seventh Cir-
cuit’s interpretation, the question of preemption was never
reached in the decisions relied on below. In Emich, the
7. Inthe court below, Respondents agreed that offensive
use is a very recent development:
Even today, while there are some instances outside the
antitrust field in which judges have permitted the of-
fensive application of collateral estoppel, the vast
majority of courts appear to have countenanced only
the defensive use of the doctrine.
Reply Brief of General Paving Co. and F. F. Mengel Co.,
filed in State of Illinois v. General Paving Co., No. 78-1479
(7th Cir.) af 9.
14
court only addressed the scope of the prima facie presump-
tion; the interplay between § 5(a) and the doctrine of col-
lateral estoppel was never considered. In Commonwealth
Edison, the court considered whether guilty pleas could be
given prima facie effect. The question of preemption was
not an issue.
In Sam Fox, the issues before the Court were whether a
private party could intervene in a Government antitrust
action, and, if not, whether a third party would be bound
by the judgment rendered therein. The Court coneluded
that although intervention by a private party was improper,
the private litigant was not foreclosed from bringing its
own antitrust suit by the prior Government action. The
existence of § 5(a) was relied on as support for the Court’s
conclusion that a Government enforcement action is not
res judicata as to a private plaintiff’s antitrust claim. The
Sam Fox Court did not, as the Seventh Cireuit apparently
believed, rule on the question of the preemption of collater-
al estoppel in private antitrust actions that follow enforee-
ment suits. See Appendix A at A3.
With the exception of one district court decision, Purex
Corp. v. Proctor & Gamble Co., 308 F. Supp. 584 (C.D. Cal.
1970), aff’d on other grounds, 453 F. 2d 288 (9th Cir. 1971),
cert, denied, 405 U.S. 1065 (1972), no other court has de-
cided the issues presented by the instant appeal. Other
lower courts have recognized that the question is unsettled.
See Fleer Corp. v. Topps Chewing Gum, Inc., 415 F. Supp.
176 (E.D. Pa. 1976), appeal dismissed, (3d Cir.), cert.
denied, —— U.S. , 98 S. Ct. 1611 (1978); McCook v.
Standard Oil of California, 393 F. Supp. 256 (C.D. Cal.
1975) (both decided on other grounds) Thus, the questions
presented by this case are both important and novel, re-
quiring resolution by this Court.
15
IIl.
THE DECISION BELOW FRUSTRATES THE INTENT
OF CONGRESS TO FOSTER THE USE OF PRIOR
GOVERNMENT ANTITRUST JUDGMENTS AND IS
BASED UPON AN ERRONEOUS APPLICATION OF
PRINCIPLES OF STATUTORY CONSTRUCTION.
By construing § 5(a) of the Clayton Act as preemptive
of the common law doctrine of collateral estoppel, the
Seventh Circuit has effectively held that a statute which
was originally enacted to single out antitrust plaintiffs and
provide special evidentiary benefits to them in the use of
prior judgments, should now be interpreted as a denial to
those same plaintiffs of additional common law benefits
available to all other federal litigants.
The passage of § 5(a)* in 1914 was a manifestation of
both Congressional and executive intent to aid private
parties who had been injured by violations of the antitrust
laws. See H. R. Rep. No. 627, 63 Cong., 2d Sess. 14; S. Rep.
No. 698, 63 Cong. 2d Sess. 45; 51 Cone. Rec. 1964 (address
of President Wilson) (1914). By making available to pri-
vate plaintiffs all matters previously established in a prior
Government action, Congress felt that it could greatly ease
the burden of proof facing an injured private party. Emich
Motors Corp. v. General Motors Corp., 340 U.S. 558, 568
(1951).
The final version of the bill proposed in the House pro-
vided that a prior Government judgment would be conclu-
sive evidence in a subsequent private suit. 51 Cone Rec.
8, As enacted in 1914, there were no subdivisions in § 5.
Later amendments gave the prima facie provision the
designation ‘‘§ 5(a).’’ For the sake of clarity, the enact-
ment will be referred to herein as § 5(a).
16
9200 (1914). The Senate Judiciary Committee, although
supportive of the House version, see 51 Cone. Rec. 13853
(remarks of Senator Chilton) (1914), substituted a prima
facie standard for the conclusive provision of the House
bill. The reason for the change was the mistaken belief of
some Senators that mutuality of parties was a constitu-
tional requirement. In their view, it would have been a
denial of due process to have allowed a conclusive effect
in a non-mutuality situation. S. Rep. No, 698, 63 Cong., 2d
Sess. 45 (1914). See Parklane Hosiery Co. v. Shore, ——
U.S. , 99 S. Ct. 645 (1979); Blonder-Tongue Labora-
tories, Inc. v. University of Illinois Foundation, 402 U.S.
313 (1971) (non-mutuality collateral estoppel held not vio-
lative of due process). Preferring the conclusive presump-
tion, but convinced that mutuality was constitutionally
mandated, both houses of Congress adopted the prima facie
version of the bill. 51 Cone. Rec. 13907; 16276 (1914).
Most significantly, there is nothing in the legislative his-
tory which supports the notion, or even suggests, that the
Congress which enacted § 5(a) ever intended to exclude
the operation of the common law doctrine of collateral es-
toppel. Indeed, just the opposite is true. Congress clearly
viewed § 5(a) as a supplement to the common law—see
Buckeye Powder Co. v. FE. I. duPont de Nemours Powder
Co., 248 U.S. 55 (1918)—-and purposely did not intend to
preempt collateral estoppel or to infringe upon any other
common law rights or remedies of antitrust plaintiffs. See
51 Conc. Rec. 16058 (remarks of Senator Overman); 51
Cona. Rec. 15939 (dialogue between Senators Nelson and
Overman) (1914).
Section 5(a), as it relates to private litigants, has re-
mained unchanged to the present day. Since 1914 there have
been proposals to amend § 5(a) to give prior Government
judgments a conclusive effect in subsequent private actions.
17
H.R. 7647, 98th Cong., 2d Sess. (1978) ; S. 2512, 89th Cong.,
2d Sess. (1966); H.R. 7905, 8ist Cong., 2d Sess. (1950).
However, none of these proposals ever progressed farther
than the committee stage and none of them was acted upon
by the full membership of either house of Congress. Sec-
tion 5(a) was amended in 1955, but this legislation dealt
only with the United States Government as a damage plain-
tiff. Act of July 7, 1955, Pub. L. 137, 69 Stat. 282-283.
Private parties were iivt affected by the amendment and no
material change was effected in the purpose of the statute.
City of Burbank v. General Electric Co., 329 F. 2d 825, 831
(9th Cir. 1964).
The Seventh Circuit rejected “the version of congres-
sional intent pressed upon us by plaintiff’? because the
court believed that ‘‘the alleged intent of the 1914 Congress
to allow collateral estoppel to work is not clear.’’ Appendix
A at AZ. These statements reveal the Seventh Cireuit’s
failure to come to grips with the central issue of this ap-
peal. That issue is not whether $ 5(a), by itself, authorizes a
conclusive effect. See Appendix A at A&8-A9. The 1914 legis-
lative history clearly refutes this. Nor is it a question of
whether the 1914 Congress was prescient enough to ‘‘have
intended that the doctrine of collateral estoppel, if and when
it evolved, should supplant the prima facie standard it was
then enacting.’’ Appendix A at AZ. It would be too much
to expect any legislative body to anticipate a common law
development that lay 60 years in the future.
The central question at issue in this case, rather, is wheth-
er the common law doctrine of collateral estoppel should
apply to subsequent private antitrust actions just as it does
to all other federal civil litigation. Related to this question
is whether the application of common law collateral estop-
pel would be inconsistent with some expressed policy of the
18
Congress. If there is no inconsistency, the statute should
not be construed as altering common law rights or remedies
further than its words express.® Shaw v. North Penn. R. Co.,
101 U.S. 557 (1880). Cf. Moragne v. States Marine Line, 398
U.S. 375 (1970) ; J. I. Case Co. v. Borak, 377 U.S. 426 (1964)
(preserving common law remedies where not inconsistent
with the statutory scheme).
It is beyond dispute that the members of the 1914 Con-
gress intended that private plaintiffs be allowed to use prior
Government judgments as extensively as constitutional
limitations would permit. The conclusion that § 5(a) pre-
cludes the operation of collateral estoppel in those specific
cases where it would otherwise apply defeats the expressed
purpose of the 1914 Congress to ease the burden of private
litigation. Permitting the operation of collateral estoppel,
on the other hand, supplements and complements the stat-
ute, giving full force and effect to Congressional purposes
and policies.
Similar reasoning was employed by this Court in con-
struing the scope of § 5(b) of the Clayton Act in Minnesota
Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381
U.S. 311 (1965). The question before the Court was whether,
9. Section 5(a) does not preempt common law eviden-
tiary use of a prior conviction. See Emich Motors Corp. v.
General Motors Corp., 340 U.S. 558, 571 n. 8 (1951) ; Simco
Sales Service of Pa. v. Air Reduction Co., 213 F. Supp. 505,
508 (E.D. Pa. 1963). The existence of a statutory evidenti-
ary presumption, e.g., § 5(a), does not necessarily preclude
the application of the judicial doctrine of collateral estoppel.
Collateral estoppel, a rule of the substantive law of judg-
ments, exists independent of evidentiary rules, be they com-
mon law or statutory. See e.g., Connecticut Fire Ins. Co, v.
Ferrara, 277 F. 2d 388, 392 (8th Cir. 1960) ; Advisory Com-
mittee’s Note to Fp. R. Evin, 803(22).
19
under § 5(b) (now § 4(i), 15 U.S.C. § 16), proceedings by
the Federal Trade Commission suspended the running of
the Clayton Act statute of limitations.
After determining that the legislative history was silent
on the point, the Court stated:
In resolving this question, we must necessarily rely on
one element of Congressional intention which is plain
on the record—the clearly expressed desire that private
parties be permitted the benefits of prior government
actions.
381 U.S. at 320. And further, the Court reasoned:
But it is not the literal wording of such a provision that
is controlling where, as here, Congress has evidenced
neither acceptance nor rejection of either interpreta-
tion, yet one effects a clearly expressed congressional
purpose while the other defeats it.
381 U.S. at 321.
In addition to misreading the intent of the 1914 Congress,
the Seventh Circuit relied upon the unsuccessful post-1914
attempts to amend § 5(a) and the 1955 amendment, in con-
cluding that collateral estoppel was preempted. However,
it is fundamental that legislation is to be interpreted in eon-
formity with the dominant purpose of the Congress that
enacted it. United States v. Wise, 370 U.S. 405, 411 (1962) ;
United States v. American Trucking Ass’ns., 310 U.S. 534,
042 (1940). The intent of the enacting Congress is econ-
trolling unless an amendment by a subsequent Congress
modifies or rejects the original purpose of the legislation.
See Red Lion Broadcasting Co, v. F.C.C., 395 U.S. 367, 380-
82 n. 11 (1969). This Court has repeatedly recognized that
the views of a subsequent Congress as to existing legislation
cannot change the original intent of the enacting Congress,
Tennessee Valley Authority v. Hill, US. , 988. Ct.
2279, 2301 (1978) ; Lllinois Brick Co. v. Illinois, 431 U.S. 720,
20
733-34 n. 14 (1977); Rail Re-organization Act Cases, 419
U.S. 102, 132 (1974); United States v. Southwestern Cable
Co., 392 U.S. 157, 170 (1968). ““The interpretation placed
upon an existing statute by a subsequent group of Congress-
men who are promoting legislation and who are unsuccess-
ful has no persuasive significance.’’ United States v. Wise,
370 U.S. at 411. Undoubtedly motivated by the realization
that thousands of bills die in committee each year, the courts
have refused to attribute meaning to the bare fact that a
proposed amendment failed to be passed. United States v.
Turley, 352 U.S. 407, 415 n. 14 (1957) ; Citizens Comm. For
Broadcasting v. F'.C.C., 555 F. 2d 938, 952 n. 41 (D.C. Cir.
1977), aff'd in part, rev’d in part on other grounds, ——
U.S. ——, 98 S. Ct. 2096 (1978).
The decision below failed to follow these principles in
relying on post-passage developments. As the District Judge
correctly recognized below, ‘‘it is not apparent ... how
inaction by Congress in the 1950’s can shed light on what
it did do in 1914.’ Illinois v. Huckaba & Sons Construction
Co., 442 F. Supp. 56, 58 (S.D. Ill. 1977), Appendix B at BS.
If allowed to stand, the Seventh Circuit’s decision means
that whenever later Congresses have failed to enact amend-
ments to an existing statute, the statute must be construed
as rejecting the result of those proposed amendments, with-
out regard to the intent of the Congress that originally en-
acted the statute. In effect, the decision below dignifies every
legislative proposal, regardless of its merits or the support
it enjoys, as being indicative of Congressional purpose.
Such a conclusion is clearly contrary to the decisions of this
Court cited above.
The Seventh Circuit’s reliance on the 1955 amendment is
also misplaced for the amendment was not directed at pri-
vate plaintiffs and there is no evidence that Congress even
"”
21
considered the question of preempting the operation of col-
lateral estoppel. See H. R. Rep. No. 422; S. Rep. No. 619,
84th Cong., Ist Sess., reprinted in U.S. Conc. Cope & ApmtIn,
News 2328 (1955). In view of the fact that offensive col-
lateral estoppel was not yet sanctioned by the courts in
1955, see Part II supra, it would have been impossible for
Congress to have considered the question of preemption.
The ultimate effect of the decision below is that it con-
verts a statute that was intended to benefit private plaintiffs
into one which acts as a hindrance to the prosecution of
private antitrust actions. The irony of this situation has
not gone unnoticed:
It seems odd that a statutory provision which was en-
acted to strengthen antitrust plaintiffs should now be
interpreted to make them worse off in many cases than
they would have been without the enactment.
Fleer Corp. v. Topps Chewing Gum, Inc., 415 F. Supp. 176,
185 (E.D. Pa. 1976), appeal dismissed, (3rd Cir.), cert. de-
U.S. ——, 98 S. Ct. 1611 (1978).
This Court warned against such a construction when it
indicated that a ‘‘literal application of a statute which
would lead to absurd consequences is to be avoided when-
even a reasonable application can be given which is con-
sistent with the legislative purnose.” United States v. Ryan,
284 U.S. 167, 175 (1931).
In the circumstances presented by this case, the only
reasonable application of § 5(a) that is consistent with the
legislative purpose is to permit the common law doctrine
of collateral estoppel to operate in private antitrust litiga-
tion just as it does in all other federal litigation. Accord-_
ingly, this Court should grant certiorari to review the
decision of the court below to insure that the important
Congressional policy fostering private antitrust enforce-
ment is not frustrated.
nied,
to
to
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Seventh Circuit.
Respectfully submitted,
Wiuuiam J. Scort,
Attorney General, State of Illinois,
160 North LaSalle Street, Suite 900,
Chicago, Illinois 60601, (312) 793-3500,
Attorney for Petitioner,
State of Illinois.
Joun E. Noet,
Chief,
Tuomas M. Genovese,
Lee H. Werner,
STEPHEN P. Jvuecu,
Assistant Attorneys General,
Antitrust Division,
188 West Randolph Street, Suite 2118,
Chicago, Illinois 60601, (312) 793-2582,
Of Counsel.
March, 1979
Al
APPENDIX A>
IN THE
UNITED STATES COURT OF APPEALS
For Tue SeEveNtTH Circuit
No. 78-1479
State or ILirtNots, . Plaintiff-Appellee,
V.
GeneraL Paving Company and F. F. Mencet Company,
Defendants-A ppellants.
Appeal from the United States District Court for the
Southern District of Illinois, Southern Division.
No. S-Civ-75-0096—J. Waldo Ackerman, Judge.
Hearp Novemser 28, 1978—Decipep January 11, 1979
Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit
Judge, and GRANT, Senior District Judge.*
CUMMINGS, Circuit Judge. In January 1974, appellants
and Huckaba & Sons Construction Co.' were indicted under
* Senior District Judge Robert A. Grant of the Northern
District of Indiana is sitting by designation.
1. Huckaba has not appealed from the adverse judgment
below and is therefore bound by it. Arcole Midwest Cor-
poration and Orr Construction Company are defendants in
related treble damage actions and have filed briefs amici
curiae as to the effect their guilty pleas might have in those
private actions. We need not address that question directly
since our decision effectively disposes of the issue,
A2
Section 1 of the Sherman Act. Huckaba pled guilty and
appellants were found guilty by a jury. In June 1975, the
State of Illinois filed this action seeking treble damages
from appellants and Huckaba under Section 4 of the Clay-
ton Act (15 U.S.C. § 15). In its complaint, Illinois alleged
the same antitrust violation as in the federal indictment,
and the three defendants filed answers denying liability.
Subsequently, relying solely on the federal criminal judg-
ment, Illinois moved for partial summary judgment on the
issues of liability against all three defendants.
On December 14, 1977, Judge Ackerman filed a memoran-
dum opinion holding that the doctrine of collateral estoppel
could properly be invoked by the State to preclude the de-
fendants from asserting any defenses. The court rejected
defendants’ argument that collateral estoppel was unavail-
able to the State because Section 5(a) of the Clayton Act
made the earlier final judgment only ‘prima facie evi-
dence.’” However, the court’s order reserved suminary
2. Section 5(a) of the Clayton Act (15 U.S.C. § 16(a))
provides:
‘‘A final judgment or decree heretofore or herein-
after rendered in any civil or criminal proceeding
brought by or on behalf of the United States under the
antitrust laws to the effect that a defendant has vio-
lated said laws shall be prima facie evidence against
such defendant in any action or proceeding brought by
any other party against such defendant under said laws
or by the United States under Section 15(a) of this
title, as to all matters respecting which said judgment
or decree would be an estoppel as between the parties
thereto: Provided, That this section shall not apply to
consent judgements or decrees entered before any testi-
mony has been taken or to judgment or decrees entered
in actions under Section 15(a) of this title.’’? (Hmpha-
sis added.)
A3
judgment on liability for 60 days so that the parties might
have an opportunity to show the court whether the facts
were the same in the Government and treble damage ae-
tions. State of Illinois v. Huckaba & Sons Construction Co.,
442 F. Supp. 56 (S.D. Ill. 1977). Thereafter, concluding that
the actions were brought on the same facts, the district
court granted the State’s motion for partial summary judg-
ment on the issue of liability even though defendant Men-
gel’s president had earlier filed an affidavit denying his
company’s guilt. We granted appellants Mengel and Gen-
eral Paving leave to appeal from the two interlocutory or-
ders and now reverse them.
On its face, Section 5(a) of the Clayton Act clearly pro-
vides that a prior judgment in favor of the Government in
an antitrust case shall only have prima facie evidentiary
effect in subsequent private suits. This results in shifting
the burden of proof to defendants, but the statute does not
preclude them from putting up a defense. We have so in-
terpreted the statute in mich Motor Corp. v. General
Motors Corp., 181 F. 2d 70, 76 (7th Cir. 1950), reversed on
other grounds, 340 U.S. 558, and in Commonwealth Edison
Co. v. Allis-Chalmers Mfg. Co., 325 F. 2d 412 (7th Cir.
1963), certiorari denied, 376 U.S. 939. The Supreme Court
agreed with our construction of Section 5(a) in Sam Fox
Publishing Co. v. United States, 366 U.S. 683, 690, where
Justice Harlan observed that Section 5(a) of the Clayton
Act ‘‘would seem to be a definitive legislative pronounce-
ment that a government suit cannot be preclusive of private
litigation, even though relating to the same subject
matter.’’’
3. To the same effect, see Purex Corp. v. Procter and
Gamble Co., 453 F. 2d 288, 290 (9th Cir. 1971), certiorari
(Footnote continued on next page)
A4
In holding that the Government’s criminal judgment
should be given a conclusive effect with respect to the treble
- damage liability of defendants, the district judge especially
relied on McCook v Standard Oil of California, 393 F. Supp.
256 (C.D. Cal. 1975), and Fleer Corp vy. Topps Chewing
Gum, Inc., 415 F. Supp. 176 (B.D. Pa. 1976). McCook does
not so hold but instead concluded that the prior judgment
against Standard Oil constituted only ‘‘a rebuttable pre-
sumption’’ (at p. 260). This holding was based on the con-
clusion that because in that case giving the prior judgment
a conclusive effect would deprive the defendant of a jury
trial, it would be unfair, if not unconstitutional to do so.
The McCook court merely alluded to the possibility that
Section 5(a) might also prevent application of the doctrine
of collateral estoppel, noting that legislative history might
suggest that Section 5(a) set only a minimum standard but
that nonetheless ‘‘many cases have assumed that Section
5(a) fully occupies the area or have so ruled’’ (at p. 259).
Similarly, the Fleer case did not hold that collateral
estoppel was applicable to judgments covered by Section
5(a) of the Clayton Act. In fact, the district judge noted
that no court had held that the doctrine of collateral
estoppel applied to such antitrust litigation, and he too
pointed out that various courts have held that Section 5(a)
preempted the use of collateral estoppel. The opinion be-
(Footnote continued from preceding page)
denied, 405 U.S. 1065; New Jersey Wood Finishing Co. v.
Minnesota Mining & Mfg Co., 332 F. 2d 346, 358 (3d Cir.
1964), affirmed, 381 U.S. 311; State of Michigan v. Morton
Salt Co., 259 F. Supp. 35, 58-62, 64-65 (D. Minn. 1966),
affirmed, 377 F. 2d 768 (8th Cir. 1967); United States v.
Grinnell Corp., 307 F. Supp. 1097 (S.D. N.Y. 1969) ; Zucker-
man v. E. I. DuPont de Nemours & Co., 1953 Trade Cases
167,468, p. 68,346 (S.D. N.Y. 1953).
A5
low is the first to hold otherwise since Section 5(a) was
enacted in 1914.
Judge Ackerman stated that only one of the cases relied
upon by appellants as establishing that the prima facie
language of Section 5(a) controls actually ruled on the
question. He rejected that case, Purex Corporation Ltd. v.
Procter and Gamble Company, 308 F. Supp. 584.(D.C. Cal.
1970), affirmed on other grounds, 453 F. 2d 288 (9th Cir.
1971), as ‘‘bottomed on an unsound foundation’? (442 F.
Supp at 59) and distinguishable because it involved the
potential denial of the right to a jury trial. Since he found
it ‘‘clear * * * that the intent of Congress in 1914 was * * *
to give to a plaintiff what they thought they could and leave
anything ‘more’ to the passage of time and the course of
future events’’ (id.), he concluded that a collateral estoppel
effect should be available to the plaintiff.
If it were truly. clear that the 1914 Congress did intend
the doctrine of collateral estoppel, when possible, to sup-
plant Section 5(a), the plaintiff’s insistence that such intent
must prevail until revoked by subsequent statute might
have some plausibility. Tennessee Valley Authority v. Hill,
— U.S. —, 46 LW 4673. But even if the legislative history
of the 1914 Act were as the plaintiff contends, the 1955
amendments to Section 5(a) rejected the position espoused
by plaintiff.
In the 1955 amendments, Congress permitted the Govern-
ment to recover civil damages in an antitrust action by
enacting Section 4A of the Clayton Act (15 U.S.C. § 15a)
and amending Section 5(a) to include the United States as
an ‘‘actual damages” plaintiff. Congress simultaneously
limited the use of an enforcement action judgment in later
damage suits by the United States by making such a judg-
hay
A6
ment only prima facie evidence of antitrust violations.* By
reenacting Section 5(a) incorporating these changes but
refusing to enact a proposal that enforcement judgments
should be given a conclusive effect, Congress clearly indi-
eated that they should not be given such effect.°
In fact, Congress has repeatedly refused to adopt pro-
posals that would change the prima facie standard of See-
tion 5(a) to a conclusive one. Such proposals were rejected
4. The Supreme Court had previously held in Local 167
v. United States, 291 U.S. 293, 298, that in a government
civil action for an injunction against violations of Sections
1 and 2 of the Sherman Act, the judgment in a prior criminal
antitrust prosecution against the civil defendants ‘‘con-
clusively established in favor of the United States against
those who were found guilty that within the period cov-
ered by the indictment the latter were parties to the con-
spiraey charged.” Hence the limitations written into Section
5(a) in 1955 preempted what had been established by Local
167 to be the Government’s common law right of estoppel.
United States v. Grinnel Corp., 307 F. Supp. 1097 (S.D.
N.Y. 1969). This is a further demonstration that Section
5(a) was intended to preempt the common law rule of col-
lateral estoppel.
5. The proposal to give enforcement judgments conclu-
sive effect was presented in 1950 and finally rejected when
the amendments to Section 5(a) were enacted in 1955. The,
history of the 1950 consideration of the conclusive effect
proposal shows that the major objections to it were based
on the feeling that it would be too harsh on defendants, not
on concern for its possible unconstitutionality. Hearings on
H.R. 7905 (H.R. 8763) before the Subcommittee on the
Study of Monopoly Power of the House Committee on the
Judiciary, 81st Cong., 2d Sess. ser. 14, pt. 5 (1950); Note,
Section 5(a) of the Clayton Act and Offensive Collateral
Estoppel in Antitrust Damage Actions, 85 Yale L.J. 541,
550-551 (1976).
AZ
in 1914, 1950, 1955 and again in 1966 (see Note, Section 5(a)
of the Clayton Act and Offensive Collateral Estoppel in
Antitrust Damage Actions, 85 Yale L.J. 541 (1976), and a~
similar proposal® was not approved by the present Con-
gress.
Moreover, the alleged intent of the 1914 Congress to al-
low collateral estoppel to work is not clear. The remarks
of a few Senators from the floor surely do not prove that
Congress intended that the doctrine of collateral estoppel,
if and when it evolved, should supplant the prima facie
standard it was then enacting. If it really intended such a
development, Congress could easily have provided that en-
forcement judgments would have at least a prima facie
effect or could have adopted a similar provision. Since it
did not do so, and since subsequent Congresses have not
only refused to amend the statute to adopt a conclusive
standard after the constitutional concerns evaporated, but
instead have actually amended it to extend the prima facie
standard, we cannot embrace the version of congressional
intent pressed upon us by the plaintiff.’
6. H.R. 7647, 95th Cong., 2d Sess. (1978).
-
7. Plaintiff and Judge Ackerman cited two law review
articles which offer policy-based arguments that prior en-
forcement judgments should be given collateral effect in
subsequent private damage actions. McWilliams, Federal
Antitrust Decrees: Should They Be Given Conclusive Effect
im a Subsequent Private Action?, 48 Miss. L.J. 1 (1977);
Note, The Use of Government Judqments in Private Anti-
Trust Litigation: Clayton Act Section 5(a), Collateral Es-
toppel, and Jury Trial, 43 U. Chi. L. Rev. 338 (1976). How-
ever, both of those articles embrace an erroneous view of
the 1914 legislative history and deal o» © summarily or not
at all with the subsequent amendmen — .» Section 5(a).
A8
Finally, the repeated judicial holdings: even after the
evolution of the doctrine of collateral estoppel that Sec-
tion 5(a) allows only prima facie effect must be given due
weight. In light of this background, both the case law and
the repeated refusals of Congress to enact the suggested
provision providing for a conclusive effect indicate that
Section 5(a) is to be read as precluding such an effect.®
If the prima facie evidence standard of Section 5(a) is to
be changed, it is for Congress to do so. See United States
v. Cooper Corp., 312 U.S. 600, 605-606.
Illinois also relies on the use of the word ‘‘estoppel’’ in
Section 5(a). See note 2 supra. However, estoppel as used
there only determines what matters have been estab-
lished prima facie by the government judgment. In dis-
cussing this aspect of Section 5(a), the Supreme Court has
held that it only entitles a civil plaintiff ‘‘to introduce
the prior judgment to establish prima facie all matters
of fact and law necessarily decided by the conviction and
the verdict on which it was based.” Hmich Motor Corp. v.
8. Another recent law review article, after a careful
analysis of the amendments to Section 5(a), has concluded
that it precludes the result sought by plaintiff. Note, Sec-
tion 5(a) of the Clayton Act and Offensive Collateral Es-
toppel in Antitrust Damage Actions, 85 Yale L.J. 541 (1976).
Moreover, earlier law review articles assumed that even
though there was no constitutional impediment to giving
enforcement judgments conclusive effect, this could not be
done without congressional authorization. Note, Govern-
ment Antitrust Judgments as Evidence in Private Actions,
65 Harv. L. Rev. 1400, 1407 (1952); Note, Clayton Act Sec-
tion 5: Aid to Treble Damage Suitors, 61 Yale L.J. 417, 425
(1952).
Ad
General Motors Corp., 340 U.S. 558, 569.° Because of this
statutory estoppel language appellants do not dispute the
matters for which the prior government criminal judgment
may be given prima facie evidentiary effect. They only
assert that such matters may not be given conclusive ef-
fect, and for the foregoing reasons we agree.
The orders appealed from are reversed.
A true Copy:
Teste:
eu 4644'@ © 86 6.8 2:6, 8) O Bie ba RO UO MS 88 2S 2 ee
Clerk of the United States Court of
Appeals for the Seventh Circuit
9. See also Harrison v. Paramount Pictures, Ine. 115
F. Supp. 312 (E.D. Pa. 1953), affirmed, 211 F. 2d 405 (3d
Cir. 1954); Richfield Oil Corp. v. Karseal Corp., 271 F. 2d
709 (9th Cir. 1959); Kagle Lion v. Loew’s Inc., 245 F, 2d
438 (7th Cir. 1957), affirmed per curiam, 358.U.S. 100; State
of Michigan v. Morton Salt Co., 259 F. Supp. 35, 64-65 (D.
Minn. 1966) ; Jda Amusement Corp. v. RKO Pictures Corp.,
1954 Trade Cases { 67,837 at p. 69,709 (S.D. N.Y. 1954).
Bl
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS—
SOUTHERN DIVISION
STATE OF ILLINOIS, )
Plaintiff,
Vv.
HUCKABA & SONS CONSTRUCTION | §-Civ-75-0096
COMPANY, GENERAL PAVING
COMPANY, AND F. F. MENGEL
COMPANY,
Defendants. |
MEMORANDUM ORDER
The State of Illinois seeks a partial summary judgment
on the issue of liability pursuant to F.R. Civ. P. 56(a). It
asserts that the defendants are the same defendants against
whom a judgment of conviction was rendered in a prior
criminal antitrust action brought by the United States.
United States of America v. Huckaba & Sons Construction
Co., et al., S-Cr-74-3 (S.D. Il. 1974). It asserts further that
the conviction was had on the same facts as those presently
pleaded in its complaint. For the purposes of this memoran-
dum order, such assertions will be taken as true.
The motion is premised on the doctrine of collateral estop-
pel, in effect saying that defendants can assert no defense
—being estopped from doing so by the doctrine. Again, for
the purposes of this order, I will assume that the doctrine
has that effect. Thus the focus is sharpened to the pivotal
question: Can the doctrine here be invoked by plaintiff?
B2
Since plaintiff’s action is statutory, I look first to the
statute—Section 5(a) of the Clayton Act. 15 U.S.C. § 16(a):
A final judgment or decree heretofore or hereinafter
rendered in any civil or criminal proceeding brought by
or on behalf of the United States under the antitrust
laws to the effect that a defendant has violated said
laws shall be prima facie evidence against such defend-
ant in any action or proceeding brought by any. .r
party against such defendant under said laws or by the
United States under Section 15(a) of this Title, as to
all matters respecting which said judgment or decree
would be an estoppel as between the parties thereto:
Provided, That this section shall not apply to consent
judgments or decrees entered before any testimony has
been taken or to judgment or decrees entered in actions
under Section 15(a) of this Title. (Emphasis added.)
I have emphasized the prima facie aspect of the conviction
or judgment for the reason that defendants view this as a
delimitation while the State views it as a jumping off place.
Let me make my meaning more precise. That a prior judg-
ment is prima facie evidence simply means that a plaintiff
ean shift the burden of proof to the defendant—but it does
not preclude a defendant from putting up a defense. Plain-
tiff’s case is then made with the judgment but defendant
still has his day. Accordingly, defendants argue that since
they have a right to defend—albeit that the burden is on
them—the motion should be denied. Another way of putting
this is that saying that a judgment is prima facie evidence
is not the same thing as saying that it is conclusive. If we
stop here, defendants are right, and the motion should be
denied.
However, plaintiff argues that not only is the prior con-
viction prima facie evidence, but something a great deal
more—in effect, conclusive, based on tke doctrine of col-
lateral estoppel. This doctrine is not enunciated in the stat-
B3
ute—so the question is, is the doctrine otherwise available.’
A recourse to policy and legislative history may aid in the
search for intent.
That Congress intended to ease the burden for plaintiffs
is clear.’ There was also a sly intent—sly in the best sense
of the word—to encourage consent decrees as witnessed by
the congressional abjuration that a consent decree was not
to be prima facie ‘evidence.’ But these intentions so easily
garnered are not of much help in answering our question—
hence,we turn to legislative history for whatever clues it
may give us.
It turns out that way back in 1914 the House version did
make a prior judgment conclusive evidence in a subsequent
action.‘ But the Senate demurred even though they thought
there were “considerations of public policy which favor the
House provision of conclusiveness’’.» What the Senate
1, This issue has not only been ably briefed by the par-
ties and amici curiae but has been the subject of discussion
by a number of commentators. See generally, MeWilliams,
Federal Antitrust Decrees: Should They Be Given Conelu-
sive Kffect in a Subsequent Private Action? 48 Miss. L.J. 1
(1977), and Comment, 43 U. Chi. L. Rev. 338 (1976), both
of which argue that the application of collateral estoppel is
not precluded by Section 5(a) and Comment, 85 Yale L.J.
041 (1976) which arrives at the opposite conclusion.
2. See, 51 Cong. Ree. 1964 (1914), remarks of President
Wilson ; E'mich Motor Company v. General Motors Corp.,
340 U.S. 598, 568 (1951); and State of Michigan v. Morton
Salt Co., 259 F. Supp. 35 (D.C. Minn. 1966).
3. See also, Twin Ports Oil Co. v. Pure Oil Co., 26 F.
Supp. 366, 371 (D.C. Minn. 1939) and State of Michigan v.
Morton Salt Co., supra, n. 2 at 59.
4. 51 Cone. Rec. 9200 (1914).
5. S. Rep. No, 698, 63rd Cong. 2d Sess. 45 (1914).
B4
feared was the then extant notion that due process was anti-
thetical to conclusiveness and that its inclusion would work
a constitutional infirmity. Therefore the Senate version was
accepted and became law, for the House, too, was fearful
that conclusiveness might taint their version,’ so prior judg-
ments were characterized as prima facie evidence.
The fears of Congress went unrequited. It so evolved that
conclusiveness, that is, collateral estoppel, was not violative
of due process. The notion had prevailed that for an estop-
pel to be created, the parties in the second action had to be
the same as in the first, but as has been said, that law did
not so evolve.’
Thus, plaintiff argues that the inclusion of the prima
facie standard—because Congress was then being whole-
somely trepidatious—does not preclude the use of subse-
quent developments in the common law even though Con-
gress rejected language which would have achieved a similar
result because of what turned out later to be groundless
fears. In other words, what Congress meant, according to
plaintiff, was that plaintiff at a bare minimum could use
the prior conviction as prima facie evidence and any other
rules of the common law as might be available from time to
time.*
Of course, defendants argue the converse, stating that
the use of the words ‘‘prima facie” by implication preclude
6. 51 Cone. Rec. 16275 (1914).
7. Compare, Buckeye Powder Co. v. E. I. duPont de
Nemours Powder Co., 248 U.S. 55, 63 (1918) with Bernhard
v. Bank of America Nat'l. Trust € Savings Ass’n., 122 P. 2d
892 (1942) and Blonder-Tongue Laboratories, Inc. v. Uni-
versity of Illinois Foundation, 402 U.S. 313 (1971).
8. See, McCook vy. Standard Oil of California, 393 F.
Supp. 256, 259 (C.D. Calif. 1975).
Me
Bd
the prior judgment from being conclusive—else why use
the word. They also buttress their arguments by attempts
in the 1950’s to amend the section so that a prior judgment
for the government against X would be as conclusive as
against X when used by another party.’ Notwithstanding,
the prima facie standard remained intact. From these re-
buffs, defendants argue that the intent of Congress shines
through, that is, that conclusiveness in 1914 was precluded.
But it is not apparent to me how inaction by Congress in
the 1950’s ean shed light on what it did do in 1914. I would
not say that rebuffs in a given context might not shed light
—only that they do not do so here.
One would suppose that between 1914 and to date, we
would have an authoritative pronouncement—but such is
not the case. Of the many cases cited to me by both sides,
most merely seek to define the scope of the estoppel’’ while
others are distinguishable on other grounds" and only a
few need to be examined with any particularity. Pures Cor-
poration Ltd. v. Proctor and Gamble Company, 308 F. Supp.
9. See, H.R. 7905 81st Cong. 2d Sess. (1950). A similar
attempt was made in 1966, but also failed. See, 8. xk 89th
Cong. 2d Sess. (1966).
10. See, Emich Motors Corp. v. General Motors Corp.,
181 F. 2d 70 (7th Cir. 1950) reversed on other grounds, 340
U.S. 558 (1951) ; Deluxe Theatre Corp. v. Balaban & Katz,
95 F. Supp. 983 (N.D. Ill. 1951); New Jersey Wood Finish-
ing Co. v. Minnesota Mining and Manufacturing Co., 332 F.
2d 346 (3rd Cir. 1964) aff'd 381 U.S. 311 (1965) ; Richfield
Oil Corp. v. Karseal Corp., 271 F. 2d 709 (9th Cir. 1959),
cert. den., 361 U.S. 961 (1960) ; Harrison v. Paramount Pic-
tures, 115 F. Supp. 312 (1.D. Pa 1953) aff’d 211 F. 2d 405
(3rd Cir. 1954).
ll. See, e.g., United States v. Grinnell Corp., 307 F.
Supp. 1097 (S.D.N.Y. 1969).
B6
984 (D.C. Calif. 1970), aff’d on other grounds 453 F. 2d 288
(9th Cir. 1971), appears to be one. There Purex sought to
use a Federal Trade Commission ruling to collaterally
estop defendant Proctor and Gamble from litigating the
issue of liability in a treble damage action. The court held
that while the FTC order was a final judgment within the
meaning of the section, the doctrine of collateral estoppel
could not be utilized. '* The court there apparently relied
heavily upon Emich Motors Corp. v. General Motors Corp.,
340 U.S. 558 (1951)". In Emich the Supreme Court was
presented with the scope of the prima facie standard." It
did not concern itself with the question before me but re-
ferred only to the ‘general doctrine of estoppel” to deter-
mine the scope of the section. I need not belabor the point
that the concept of the prima facie standard involves ele-
ments of estoppel—by definition. My reading of Emich leads
me to the conclusion that their concern with the meaning
of prima facie does not mean that a party cannot look be-
yond their definition to other remedies. Thus it seems to
12. Purex, supra, at 589-90.
13. Purex, supra, at 589.
14. The Emich Court at 566 defined the issues addressed
in that opinion as follows:
The issue we must determine as defined in our order
granting review, is ‘‘whether the Court of Appeals
erred in construing § 5 [now § 5(a)] of the Clayton Act
... as not permitting: (a) the admission in the instant
case of the indictment in the antecedent criminal case
against respondents, nor (b) the judgment therein to
be used as evidence that the conspiracy of which re-
spondents had been convicted occasioned Emich Mo-
tors’ cancellation.’’
15. 340 U.S. 558 at 568.
B7
me the Purex opinion is bottomed on an unsound founda-
tion. I also might note in passing that in the Purex case, the
plaintiff sought to invoke for the purpose of collateral estop-
pel, a prior proceeding where there had been no right to a
jury trial. Such a prior proceeding in my opinion could
never be more than prima facie evidence in a subsequent
proceeding and for that reason alone.’®
Two cases do support the proposition that the doctrine
of collateral estoppel is available. These cases are McCook
v. Standard Oil of California, 393 F. Supp. 256 (C.D. Calif.
1975) and Fleer Corp. v. Topps Chewing Gum, Inc., 415 F.
Supp. 176 (E.D. Pa. 1976). While not germane to the issues
or holding in McCook, the court did observe that legislative
history seemed:
.. . to suggest that Congress only intended to set a
minimum standard for the effect of prior government
antitrust judgments, thereby leaving the courts free to
apply in accord with constitutional limitations any
common law doctrines which would increase the effect
of the prior judgment beyond the prima facie evidence
standard. McCook, supra, at 259.
In Fleer, the defendant sought to collaterally estop the
plaintiff in pleading a favorable FTC ruling in defendant’s
favor. While the motion was denied for other reasons, the
court did state:
[i]t seems odd that a statutory provision which was
enacted to strengthen antitrust plaintiffs should now
be interpreted to make them worse off in many cases
than they would have been without the enactment.
Fleer, supra, at 185.
In effect, these cases suggest that Congress intended in Sec-
tion 5(a) to provide what it thought it constitutionally could,
16. See, Rachel v. Hill, 435 F. 2d 59 (Sth Cir. 1970).
B8
leaving the field open should time and the course of an en-
larging jurisprudence bring about other concepts.
I therefore conclude that plaintiff is right, that defend-
ants are estopped from pleading any defense and that the
motion for summary judgment should be allowed, It seems
clear to me that the intent of Congress in 1914 was, so to
speak, to play it safe, to give to a plaintiff what they thought
they could and leave anything “more’’ to the passage of
time and the course of future events. In my opinion, this
‘‘more” is now available to plaintiff in the invocation of
the doctrine of collateral estoppel which no longer carries
any possibility of constitutional infirmity.
This is not to say that with this rendition, that willy-
nilly, [ must allow the motion. While for the purposes of this
order I have assumed that the facts are the same in this
case as in the prior criminal action—the allowance of this
assumption must be tested. If the facts or some of them
are not the same, obviously, defendants are entitled to have
them tried. Accordingly, ruling is reserved pending the sub-
mission of additional briefs—piaintiffs shall have thirty
days, defendants fifteen days to answer and plaintiff fif-
teen days to reply. I realize that this opinion, involving as
it does a controlling question of law, will engender a sub-
stantial ground for differences of opinion and accordingly
this order is certified under the provisions of 28 U.S.C.
§ 1292(b) for immediate appeal as such, in my opinion, will
materially advance the ultimate termination of this liti-
gation.
In summary, therefore: It is my opinion that
(1) 15 U.S.C. § 16(a) does not preclude the application
of the doctrine of collateral estoppel;
~
————
B9
(2) Plaintiff’s motion for partial summary judgment
is reserved pending the submission of additional briefs;
and
(3) Certificate of importance allowing immediate in-
terlocutory appeal is granted.
Enter this 14th day of ‘December, 1977.
J. WALDO ACKERMAN,
United States District Judge.
Cl
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS—
SOUTHERN DIVISION
STATE OF ILLINOIS, 7
Plaintiff,
HUCKABA & SONS CONSTRUC-| g ciy.75-0096
TION COMPANY, GENERAL
PAVING COMPANY, and F. F. |
MENGEL COMPANY, |
Defendants. |
»
PARTIAL JUDGMENT ON PLAINTIFF’S CLAIM OF A
VIOLATION OF SECTION 1 OF THE SHERMAN ACT
On May 4, 1977, plaintiff the State of Illinois, filed a mo-
tion for partial summary judgment on the issue of liability,
pursuant to Rule 56(a) of the Federal Rules of Civil Pro-
cedure, against all defendants upon grounds of collateral
estoppel seeking to establish as conculsive those ultimate
facts which were necessarily decided adversely to the de-
fendants in the prior action entitled United States of Amer-
ica v. Huckaba & Sons Construction Company, et al., S-Cr-
74-3 (S.D. Il.) The threshold question concerning the avail-
ability of the doctrine of collateral estoppel was decided in
plaintiff’s favor ina Memorandum Order entered December
14, 1977. State of Illinois v. Huckaba & Sons Construction
Co., F. Supp. —— (S.D. Ill. 1977). That order with-
held partial summary judgment pending briefing on the
C2
issues of fact established in the prior criminal action. The
question reserved there is before me now.
Having considered briefs, papers and the arguments of
counsel for the parties as well as the briefs of amici
curiae, and being fully advised in the premises:
IT IS HEREBY ORDERED, ADJUDGED AND DE-
CREED:
1. Plaintiff's motion for partial summary judgment on
the issue of liability is granted;
2. That beginning sometime in or about March, 1972, and
continuirg thereafter the defendants Huckaba & Sons
Construction Company, General Paving Company, and
F, F. Mengel Company entered into and engaged in a com-
bination and conspiracy to suppress and eliminate compe-
tition in the construction of a specific portion of a federally
assisted highway in the State of Illinois in unreasonable
restraint of interstate commerce in violation of Section 1
of the Sherman Act (15 U.S.C. Section 1).
3. That the conspiracy consisted of an agreement, un-
derstanding and concert of action among the defendants
and co-conspirators, the substantial terms of which were to
allocate to Huckaba & Sons Construction Company a spe-
cifie project let by the State of Illinois on March 16, 1972,
in connection with the construction of a federally assisted
highway identified as Contract 27359, item 3; and to sub-
mit collusive, non-competitive and rigged bids to the State
of Illinois in connection with the construction of the above
referenced federally assisted highway project;
4. That for the purpose of forming and effectuating the
conspiracy, the defendants and co-conspirators discussed
the submission of prospective bids on the specific project
let by the State of Illinois on March 16, 1972, identified
SE ee. 4
C3
as Contract 27359, item 3; designated the successful low
bidder in the above referenced federally assisted highway
project; and submitted intentionally high or complimentary
bids on the above referenced highway project;
~
5. That the aforementioned combination and conspiracy
unreasonably restrained interstate trade and commerce;
6. That the aforesaid combination and conspiracy was
entered into and carried out in part within the Southern
District of Illinois.
Enter this 16th day of February, 1978.
/s/ J. WALDO ACKERMAN,
United States District Judge.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.