Amicus Brief — American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp.

Office Supreme Court, U.S,

PDs Be

AUG 3 1981

ALEXANU.i? L. STEVAS,

x

No. 80-1765

rer

INTHE °

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

THE AMERICAN SOCIETY OF MECHANICAL

ENGINEERS, INC.,

Petitioner

Vv .

HYDROLEVEL CORPORATION,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN

SOCIETY FOR TESTING AND MATERIALS IN

SUPPORT OF PETITIONER

Lewis H. Van Dusen, Jr.

Morris R. Brooke

Robert J. Hoelscher

DRINKER BIDDLE & REATH

1100 PNB Building

Broad and Chestnut Streets

Philadelphia, PA 19107

(215) 988-2700

Attorneys for the American

pociety for Testing and

Yials

Philadelphia, Pennsylvania

TABLE OF CONTENTS

CONSENT TO THE FILING OF THIS BRIEF

INTEREST OF THE AMICUS CURIAE .

QUESTION PRESENTED. ... .

SUMMARY OF ARGUMENT ......

CONCLUSION. . . . «+ we @

AFFIDAVIT OF FILING AND SERVICE

ea ef

TABLE OF AUTHORITIES

CASES

Application of American Societ

or Testing and Materials, 231

“Gae (E.D.Pa. 1964

F.Supp. Beal ta dea: ig rie

American Society for Testin

rials v. Boar

Revision of Taxes, 423 Pa.

Ramee PTOI). 6s 0 % ee

-ii-

CONSENT TO THE FILING OF THIS BRIEF

Counsel for petitioner and couns#:

for respondent have each consented to

the filing of this brief amicus curiae

by the American Society for Testing

and Materials ("ASTM" or “the Society").

Copies of their letters are filed with

this brief.

INTEREST OF THE AMICUS CURIAE

ASTM is a nonprofit scientific and

educational Society. It was incorporated

in 1902 for the stated purpose of "the

development of standards on character-

istics and performance of materials,

products, systems and services, and

the promotion of related knowledge."

ASTM is the major developer and

publisher of standards in the United

States. Its activities are limited

to the development of standards (and

methods of test to determine compliance

with standards) and the promotion of

related knowledge. It does not certify

products; it does not test products;

it does not involve itself in any way

in the marketing of any product, material,

system or service for which a standard

has been developed under its auspices.*

Its standards are widely used solely

because of the universal respect for

the technical and scientific validity

of its work.

ASTM's standards and test methods

deal with a wide range of materials

and subjects. A partial list includes

ferrous and nonferrous metals; ceramic,

concrete, and masonry materials; wood,

plastics, adhesives, solvents, and

*® ASTM is exempt form federal income

taxation under Section 501 (c) (3) of

the Internal Revenue Code, and exempt

form state and local taxation under

Pennsylvania law. lication of

ASTM, 231 F.Supp. ee ree -Pa. 1964);

ASTM v. Board of Revision of Taxes,

423 Pa. 530, 225 A.2d 557 (1967)

wfa

petroleum products; microscopy, metal-

lography, statistical methods and

measurements of various kinds. Today

there are 139 main technical committees

in ASTM engaged in work in these and

many other areas.

The standards development work of

the Society is carried on by approxi-

mately 84,000 participants who, volun-

tarily and without compensation, serve

on the main committees and thousands

of sub-committees, task groups and

other units within the Society. These

persons are representatives of industrial

companies, government agencies, academic

institutions, libraries, consulting

firms, etc., as well as individual

scientists, doctors, architects, engi-

neers and others interested in the

Society's work. Approximately 10% of

them come from outside the United States.

The Society has provided the frame-

work within which these volunteers dc

their important work. The Society

provides only administrative assistance

and procedural rules and regulations

designed to insure that due process

is afforded all participants in its

work and that a true consensus of their

views is achieved.

The opinion and judgment of the

United States Court of Appeals for

the Second Circuit in this action may

impose upon ASTM liability under the

anti-trust laws for the acts of any

of the many thousands of participants

in its work, even though those acts

are not authorized or endorsed by the

Society and are, in fact, beyond the

Society's power to prevent or control.

The Society has an interest in seeking

to prevent this unfortunate (and, we

believe, unwarranted) new development

in the law.

QUESTION PRESENTED

May a non-profit, membership organi-

zation be held liable under the anti-trust

laws for acts of participants in its

work which purport to be taken on behalf

of the organization, but which are

not authorized or endorsed by the organ-

ization and are beyond the organization's

power to control?

SUMMARY OF ARGUMENT

It is unreasonable, and contrary

to the public interest, to impose liability

under the anti-trust laws upon a voluntary

membership organization for acts of parti-

cipants in its work which the organization

has not authorized or endorsed and which

it cannot control.

ARGUMENT

As we have pointed out above,

there are some 84,000 participants in

the work of ASTM's thousands of technical

committees, sub-committees, task groups

and other units. The standards and

methods of test published by the Society

are the product of the work of these

persons.

Each of these units has a chairman

and other officers. Virtually all

participants are (and must be to do

their work) equipped with ASTM stationery

and other paraphernalia which could

be misused without the Society's knowledge.

ASTM has a headquarters in Phila-

delphia and a staff of approximately

200 persons whose function it is to

provide the administrative services

and support to enable the committees,

sub-committees and other units of the

Society to do their work. There is

absolutely no way that headquarters

personnel can control each and every

written communication (much less every

oral communication) emanating from

the chairmen, officers or members of

the Society's committees, sub-committees

and other units. There is no way that

the Society can prevent one or more

of these individuals from issuing some

interpretation of one of the Society's

standards or methods of test which he

purports to be issuing on the Society's

behalf but which is, in fact, unauthorized.

If the Society may be held liable

under the anti-trust laws for such a

communication, the Society (a non-profit

corporation with modest assets) is

likely to continue to exist only until

the entry of the first substantial

anti-trust judgment against it under

this new rule of law.

-7-

We believe that such a rule of

law is unfair, unreasonable and not

in the public interest.

ASTM (and other organizations

like it) perform an important public

function. Rather than attempting to

describe the importance of ASTM's work

ourselves, we quote below what courts

have said on this subject:

“ASTM is the first source to which

federal, state and municipal governments

turn in seeking specifications, and

ASTM specifications (standards) are

more widely used by them than the speci-

fications of any other body. These

governments rely extensively upon ASTM

since they have neither the time nor

the money to write all their own speci-

fications, and their dependence upon

ASTM is increasing all the time.

"The writing of specifications

by ASTM is an activity in the public

interest and conducive to the public

welfare, and is important to the future

operation of industry and government.

"Membership in ASTM, participation

on its committees, the expression by

members of their scientific opinions

in committee meetings, and voting by

members on ge Page: specifications,

are activities in the public interest

and conducive to the public welfare."

( lication of the American Societ

for Testing and Materials, U.S.D.c.,

E.D.Pa., 231 F.Supp. 686 (1964) Find-

ings of Fact, Nos. 20,21,23)

"Among the objective achievements

of the Society's works may be enumerated:

Safer buildings, better roads, improved

surgical implants, more advanced missiles;

New scientific discoveries and developments

resulting from advanced research; Better

education for science and engineering

students; Free library, free lectures

and free knowledge for all people;

Critical and necessary work for federal,

state, municipal and foreign governments;

Savings to federal, municipal and other

taxpayers.

(American Society for Testing ane Materials

Pa. 530, oF ree eS eco at (1967) )

A rule of law which imposes liability

upon ASTM for the acts of participants

in its work, which the Society has

not authorized and cannot control,

would jeopardize the Society and its

work for no reason. The person who

does these unauthorized acts (and

presumably the organization which

this person represents) may be held

liable under the anti-trust laws for

their conduct. There is no public

interest to be served by formulating

a rule of law which makes an unwitting

non-profit corporation (which would

disavow the acts if it knew of them)

also liable. Such a rule, if allowed

to stand, can lead to the destruction

of voluntary organizations like ASTM

and the termination of their important

public work. |

CONCLUSION

For the foregoing reasons, the

judgment of the United States Court of

-10-

Appeals for the Second Circuit should

be reversed.

Respectfully submitted,

A Le S

é 7

8s H. Van en, Jr. Y \

Morris R. Brooke

Robert J. Hoelscher

DRINKER BIDDLE & REATH

1100 PNB Building

Broad & Chestnut Streets

Philadelphia, PA 19107

(215) 988-2700

Attorneys for The American

Society for Testing and

rials

Philadelphia, Pennsylvania

“lle

d I

COMMONWEALTH OF PENNSYLVANIA

AFFIDAVIT OF FILING

AND SERVICE

ss.

COUNTY OF PHILADELPHIA :

Lewis H. Van Dusen, Jr., being

duly sworn according to law, deposes

and says upon his personal knowledge:

1. I am a member of the Bar of

the Supreme Court of the United States

and an attorney for the American Society

for Testing and Materials ("ASTM") in

this case No. 80-1765.

2. On July 29, 1981, I caused

to be sent by first class United States

mail, postage prepaid, 40 copies of

the foregoing Brief Amicus Curiae of

ASTM, together with the ancillary papers

required by the Rules of this Court,

to the Clerk of this Court for filing.

3. On July 29, 1981, I caused to

be served by first class United States

| mail, postage prepaid, 3 copies of

said Brief upon Harold R. Tyler, Jr.,

Esquire, 30 Rockefeller Plaza, New

York, NY 10112, counsel for peti-

tioner in No. 80-1765, and upon

Carl W. Schwarz, Esquire, One

Farragut Square South, Washington,

DC 20006, counsel for respondent

in No. 80-1765.

g / — -

y,. h. lepued ye i,

Lewis H. Van Dusen, Jr.

Sworn to and subscribed

before me this 29th day

-13-

‘

4

-