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

8

NO. 80-1765 JUL 31 8

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1980

AMERICAN SOCIETY OF MECHANICAL ENGINEERS,

PETITIONER

V.

HYDROLEVEL CORPORATION,

RESPONDENT

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

ee ee ee ee ee ee

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND

BRIEF OF AMICUS CURIAE,

THE LEGAL FOUNDATION OF AMERICA

eee eee ee ee ee ee ee ee ee

DAVID CRUMP

LAW SCHOOL

UNIVERSITY OF HOUSTON

HOUSTON, TEXAS 77004

(713) 749-3878

ATTORNEY OF RECORD FOR AMICUS CURIAE

SUSAN E. WAITE

THE LEGAL FOUNDATION OF AMERICA

2411 TIMES BLVD., SUITE 24

HOUSTON, TEXAS 77005

(713) 528-3160

Ban

TABLE OF CONTENTS

TABLE OF AUTHORITIES

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

INTEREST OF AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT AND AUTHORITIES

I. THE COURT OF APPEALS’ HOLDING WOULD

PENALIZE PROFESSIONS THAT ATTEMPT

TO SET HIGH STANDARDS

II. DISCOURAGEMENT OF PROFESSIONAL SELF-

REGULATION WOULD CREATE A CORRESPON-

DING NEED FOR GOVERNMENT STANDARDS,

WHICH UNAVOIDABLY CONSTITUTE A FAR

GREATER IMPEDIMENT TO NEW PRODUCT DE-

VELOPMENT

III. THE COURT OF APPEALS’ OPINION ENCROA-

CHES UPON SPEECH AND ASSOCIATION PRO-

TECTED BY THE CONSTITUTION

4

ii

iv

12

16

TABLE OF AUTHORITIES

CASES

Bates v. Arizona State Bar, 97 S. Ct. 2691 (1977)......... 16

Buckley v. Valeo, 424 U.S. 1 (1976ᷣe 4

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) 11

Maple Flooring Mf'rs Ass’n v. United States,

268 U.S. 563 (1925) . 0

National Gerimedical Hospital v. Blue Cross,

49 U.S. L. W. 4672 (U.S. S. Ct. June 15, 19811) 11, 15

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 16

Parker v. Brown, 317 U.S. 341 (1943) '-j;;)))jꝙ;:nv 15

Structural Laminates, Inc. v. Douglas Fir Plywood

Ass’n, 261 F. Supp. 154 (D. Ore. 1966), aff'd,

399 F.2d 155 (9th Cir. 1968) )))) )) 18

STATUTES

Sherman Act, 15 U.S.C. secs. 1⸗ꝶ:2222 passim

Sports Violence Act of 1980, H.R. 7903, 96th

nene secs ce caevensetscece 15

SECONDARY AUTHORITIES

M. Bloom, The Trouble with Lawyers (1968)))Miʒꝛ 9

Burt, Conflict and Trust between Attorney and

neee veces 9

K. Davis, Discretionary Justice (1976) 5652 9ũt yà½V 32 22

Extra, July 1981 (Reprinted from The Washington

N06 20

%%% ᷣ— W bU— 10, 15

Marks & Cathcart, Discipline within the Legal

Profession: Is It Self- Regulation? 1974 U. ILL.

L. F. 193 (197êcc-roœʒ̃ũꝛͥ Pi. Poe

Martyn, Lawyer Competence and Canes Discipline,

69 GEO. L. J. 705 (1981iI777-··⸗⸗

Millstein & Buc, Supreme Court Ruling Adds Fuel

to Debate over Health Planning, National L.J.,

, tees

Newsweek, July 27, 198111 paeeeenes

w. Prosser, Torts (Ach ed. 1971)ʒ)

Steele & Nimmer, Lawyers, Clients and Self-

Regulation, 1976 AM. BAR. FOUND RE-

WRENN ooh or vckccsvckcvadeawicous

Sprotzer, Violence in Professional Sports: A Need

for Federal Regulation, 86 Case & Comment 3

ee ee

Symposium, Trade and Professional Association

Ethic and Standards, 46 ABA ANTITRUST

Oe NN oa os va ĩ cy senceees ees.

13

20

15

11

NO. 80-1765

AMERICAN SOCIETY OF MECHANICAL ENGINEERS,

Petitioner

V.

HYDROLEVEL CORPORATION,

Respondent

on writ of certiorari to the United States

Court of Appeals for the Second Circuit

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

The Legal Foundation of America moves for leave to file the

annexed brief as amicus curiae, and would respectfully show this

Court as follows:

1, Interest of Amicus Curiae: The Legal Foundation of Amer-

ica is a nonprofit, tax-exempt corporation supporting the opera-

tions of a public interest law firm. Among other goals, it seeks to

preserve economic freedom, to remove unnecessary regulation,

and to protect the principle of limited government. During the

present year, LFA has supported the market system and opposed

unreasonable regulation in such diverse industries as commercial

lending, uranium mining, broadcasting, health care and natural

gas production, In this endeavor, it has appeared in this Supreme

Court, in the courts of appeals, in United States district courts

and in State courts. All litigation undertaken by LFA is approved

by its Board of Trustees, the majority of whom are attorneys.

LFA does not accept private fees and is supported by grants and

contributions from individuals, foundations and corporations.

2. Amicus’ Use of Volunteers: The positions taken by LFA

are sometimes inconsistent with the economic interests of busi-

nesses seeking government intervention and have occasionally

subjected it to criticism by those it has opposed. The reasoning

of the Court of Appeals in the case at bar, which creates a kind

-iv-

of strict liability under the antitrust laws for the conduct of vol-

unteers, could be used against LFA by such opponents. LFA re-

lies heavily upon the services of volunteers who have other regu-

lar employments. It has been donated the services of partners and

associates in firms among the nation’s largest, as well as solo prac-

titioners, law professors, and attorneys in government service.

Like petitioner ASME in this case, LFA has no reasonable means

of assuring that an isolated action taken by one among many pro

bono litigators purportedly on its behalf is not undertaken false-

ly, fraudulently or without authorization, to further the interests

of an employer of a volunteer rather than LFA. The deep intru-

sions it would need to make into the private business of every

volunteer’s employer, in order to do so, would he unreasonable

for LFA, the volunteer and the employer alike.

3. Desirability of an Amicus Curiae Brief: An amicus curiae

brief is desirable here because the opinion of the Court of Ap-

peals is a novel interpretation of the antitrust laws that depends

upon analogies to other, unrelated claims such as trade libel.

Amicus curiae believes, and would show this Court, that the anal-

ogies are strained. The law of trade libel, for example, is careful-

ly limited to avoid precisely the result reached by the Court of

Appeals, because much of the history of its development con-

cerns the protection of a free flow of information about pro-

ducts. The failure of the Court of Appeals to provide “breath-

ing space” for such communications is so pronounced that it

not only misconstrues the antitrust laws, but. impinges upon

speech protected by the first amendment as well. Furthermore,

amicus curiae would show that the Court of Appeals’ opinion

will have its greatest adverse impact upon precisely those profes-

sions that set meaningful, high standards for their members. As

a result, it will create necessity for a greater role of government

in setting standards for industries and professions, and govern-

ment in that role is likely to retard new product development far

more substantially than the voluntary industry standards that are

the subject of this action. ö

4. Coverage of this Brief: LFA has examined the briefing that

occurred in the Court below. This brief does not duplicate the

careful and detailed case law arguments that it may be expected

petitioner ASME will make. Instead, it concentrates on issues of

economics, public policy and history relevant to the application

of the antitrust laws, which, it is believed, will not be argued else-

where as they are argued here.

For these reasons, the Legal Foundation of America requests

that its motion for leave to file the annexed brief be granted.

Respectfully submitted,

David Crump

Professor of Law

Law School

University of Houston

Houston, Texas 77004

(713) 749-3878

Attorney of Record for Amicus Curiae

Susan E. Waite

The Legal Foundation of America

2411 Times Blvd., Suite 24

Houston, Texas 77005

(713) 528-3160

vi-

NO. 80-1765

AMERICAN SOCIETY OF MECHANICAL ENGINEERS,

Petitioner

V.

HYDROLEVEL CORPORATION,

Respondent

on writ of certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE,

THE LEGAL FOUNDATION OF AMERICA

INTEREST OF AMICUS CURIAE

Amicus curiae adopts the statements in paragraphs | and 2 of

the Motion for Leave to File Amicus Curiae Brief preceding this

brief, as showing the interest of amicus curiae.

STATEMENT OF THE CASE

A. The ASME Communications Allegedly Constituting

Participation in a “‘Conspiracy” to “Restrain Trade”’

Officers of McDonnell & Miller, Inc, (“M&M’’) sent an inquiry

to the American Society of Mechanical Engineers (“ASME”), re-

questing interpretation of its Boiler and Pressure Vessel (“BPV”)

Code. This was one of 20,000 to 30,000 such inquiries to which

ASME responds annually, without charge. In accordance with

ASME’s procedures manual for its BPV Committee, a full-time

ASME officer named Hoyt obtained information necessary to an-

swer the inquiry from the chair of the heating subcommittee, one

Hardin, Hardin’s actual employment was as vice president of a

boiler insurance company, Hartford Steam (“Hartford”). He was

one of more than 10,000 volunteers who function annually as

as

members of ASME committees without compensation. He had

counselled M&M in the drafting of the letter, although he did not

sign it and did not disclose his participation.* Hoyt, the full-time

ASME employee, used the information thus provided by Hardin,

the subcommittee chair, to respond to the M&M inquiry.

The inquiry and the response both concerned the application

of one section of ASME’s more than 400 codes and standards—

the 18,000-page BPV Code—to low water boiler fuel cutoffs.

Such devices prevent unduly low water levels, which can result in

“dry firing” and boiler explosions. The inquiry letter asked whe-

ther a time-delay, allowing water to fall below visible range,

would comply with a Code section that required an automatic

cutoff” before the lowest visible portion was reached in the

gauge glass.

The ASME response to this inquiry furnished by Hoyt began,

as interpretation of a code or standard should, with an analysis

of the purpose of the BPV Code language at issue. It pointed out

that the automatic cutoff requirement called for a “safety fea-

ture” rather than an “operating control.” Hence it should pro-

vide an assurance of safety. Thus the Hoyt letter made the com-

mon-sense and factually accurate response, under the circum-

stances given in the inquiry, that “there would be no positive as-

surance that the boiler water would not fall to a dangerous point

during a time-delay period.” Since ASME policy prohibits com-

ment on specific products, the letter was in general terms. It did

not state that any particular time-delay, properly used, would

necessarily violate the Code; it responded to the inquiry, which

specifically concerned a time-delay that would allow water to

fall below the visible range.

Upon receipt of this communication, M&M used it in mar-

keting its cutoff, falsely claiming that the Hoyt letter meant that

a time-delay, as such, would “very definitely be against the

* It was not, however, inappropriate for committee or subcom-

mittee chairpersons to give advice concerning the manner of

wording inquiries so as to facilitate meaningful responses.

-2-

ASME Code.” Hydrolevel, which manufactured a competing de-

vice containing a time delay, complained to ASME of this sales

technique, which was a misuse by M&M of both the BPV Code

and the interpretive letter. In response to Hydrolevel’s complaint,

ASME promptly placed the matter on its agenda. After the next

meeting of the BPV Committee, ASME issued a new communica-

tion expressly countering M&M’s misstatement and flatly asser-

ting that the Code was not intended to prohibit the use . of

time delays.” ASME circulated this new statement to more than

300 individuals active in the boiler market and, in addition, sent

an “official communication” confirming the new statement to

Hydrolevel. ASME’s BPV Committee followed this course even

though Hydrolevel had failed, in response to notice, to have a

representative present at the meeting. A Hydrolevel officer stated

that the new statement removed any adverse implications as to

time delays, and the Court of Appeals held that it removed even

the possibility of subsequent harm to Hydrolevel from the inter-

pretation by ASME,

B. The Antitrust Litigation

This series of events formed the basis of a suit by Hydrolevel

against M&M (and ITT, which acquired it), as well as Hartford

and ASME. The claims initially included various state law theo-

ries, such as trade libel, New York’s Donnelly Act and others. A

claim under the Sherman Act was also asserted. The gist of this

latter claim was that a contract, combination or conspiracy in re-

straint of trade had been engaged in by M&M and Hartford,

through the vehicle of ASME, and that it had caused Hydrolevel’s

business to decline. Before trial, Hydrolevel settled with ITT (for

$ 725,000) and Hartford (for $ 75,000). Having thus ended its

case against the two defendants who were “far more culpable”

(in the words of the Court of Appeals) for these relatively small

sums, Hydrolevel had a war chest with which to proceed to trial,

with the hope that if it could prove liability against the most

marginal defendant, ASME, it could recover very large damages.

Also before trial, Hydrolevel voluntarily abandoned the asser-

3.

tion of any state law claims against ASME. It appears those

claims would not have fit any conduct of ASME, even arguably.

For example, ASME could not have been convicted of trade li-

bel because it uttered no false statements, made statements only

of opinion and not of fact, and made no statements concerning

Hydrolevel’s product.

At the conclusion of the evidence, the trial judge instructed

the jury that unlawful acts of an agent could be attributed to a

corporate entity only if they were within the scope of authority

given by, and performed in behalf of,“ the corporation. He fur-

ther instructed the jury that ASME could be liable only if (1) its

agents had acted to further its interests or (2) it had ratified the

allegedly offending acts. This instruction should have led to a ver-

dict against liability, since no evidence supported such a finding.

The jury, however, found against ASME.* It was, indeed, a run-

away jury; it assessed damages of $ 3.3 million, an amount so dis-

proportionate to any supporting proof that the Court of Appeals

remanded for a new trial.

C. The Court of Appeals’ Holding on Liability: “Apparent

Authority” and Reinterpretation of ASME’s Interpretation

The Court of Appeals, however, affirmed the liability holding

on a theory not briefed by the parties. It held that apparent au-

thority of persons purporting to act for ASME was sufficient.

Furthermore, it held that the evidence showed apparent authori-

ty on the part of the relevant persons (apparently, as a matter of

law, since the jury did not pass on this issue). The Court of Ap-

peals labelled its holding “stringent,” but stated that such a hol-

ding was justified to make ASME act with greater care in all its

transactions with volunteers. The Court reasoned that ASME

must develop “review procedures” sufficient to prevent its inter-

* As ASME pointed out in the Court of Appeals, it is clear that

emotional jury argument and improperly admitted evidence

contributed to this result.

pretations from being misused to do injury to a competitor by

the activities of any of its more than 90,000 members or 10,000

volunteers.

The Court of Appeals reached this result, in part, by reinter-

preting the ASME Code in a manner contraty to ASME’s own in-

terpretation. The conclusion that a time delay would “prevent

positive assurance” of timely cutoff, said the Court, did not fol-

low from” the paragraph of the interpretive letter immediately

preceding it. However, the issue that Hoyt was called upon to ad-

dress was not whether this particular sentence “followed from”

anything in the preceding paragraph, but how the inquiry should

be answered in light of the ASME Code. The inquiry asked about

a time delay after the water had reached the bottom of the gauge

glass. Furthermore, the Court of Appeals failed to recognize that

a time delay, even if the cutoff is activated at a point above the

gauge glass, functions precisely because it ‘cuts off the cutoff’—

it simply removes the safety device. It interposes between the

cutoff and the boiler an additional mechanism subject to mal-

function, and it may be subject to variations in the length of time

delay. Since no particular time delay was specified, and the an-

swer was couched in general terms proceeding from the safety

purposes of the Code, it is submitted that the Court of Appeals’

apparent holding—that the ASME interpretive letter was logical-

ly indefensible—was itself the product of a logical error.“

* Furthermore, it involved the Court in a determination not au-

thorized by anything in the Constitution or jurisdictional sta-

tutes.

Hydrolevel induced this holding by characterizing its de-

vice, during the appeal, as “fail-safe.” Given the number of

ways in which a malfunction can occur, this is a dangerous

view of a safety device, Hydrolevel apparently made the as-

sertion because its “probe” was primarily electronic rather

than mechanical and depended upon the breaking of a circuit.

The reasoning that it was thus rendered fail-safe is tantamount

to the assertion that an elevator call button, a television set

¢ 5.

SUMMARY OF ARGUMENT

Amicus curiae will not duplicate the case-law arguments ex-

pected to be made by counsel for ASME. Instead, this brief at-

tempts to add economic and policy arguments.

I,

The strict liability approach inherent in the Court of Appeals

“apparent authority” reasoning would punish those professional

associations that set meaningful standards and reward those that

adopt standards convenient to their members. Such a result

would not amount to removal of a “restraint of trade.

II.

At the same time, the failure of professional self-regulation

induced by this holding would create a corresponding need for

greater govecnment activity in the professions. This role of gov-

ernment would result in a compulsory rather than voluntary

compliance system, loss of economic efficiency, diversion of tax-

_ payer funds from other needs, and, ironically, a greater impedi-

ment to new product introduction than any professional asso-

ciation’s voluntary standards would be likely to impose.

III.

ASME has been held liable here for the issuance of commun-

ications that are protected speech under the first amendment.

The Court of Appeals admittedly “stringent” approach to the

case is inconsistent with the doctrine that communications

should be afforded “breathing space” that provides protection

even for mistaken or erroneous statements. The Court of Ap-

peals’ analogy to such claims as “injurious falsehood” or trade

or a burglar alarm is fail-safe. In any event, Hydrolevel’s claim

in this regard has no effect on the validity of ASME’s interpre-

tive letter, which was written about time delays in the abstract

and not about Hydrolevel’s product in particular.

iss

libel was particularly inappropriate, because this tort has been

carefully developed in a manner thatprotects speech. Finally, the

Court of Appeals’ opinion is inconsistent with the associational

interests of volunteers in professional societies, since it would

require procedures consitituting a deep intrusion into their em-

ployers’ business and would. induce reliance on orthodoxy and

homogeneity rather than diversity.

ARGUMENT AND AUTHORITIES

I, THE COURT OF APPEALS’ HOLDING WOULD

PENALIZE PROFESSIONS THAT

ATTEMPT TO SET HIGH STANDARDS.

A. An Antitrust Lawyer Would Likely Advise a Profes-

sional Association to Avoid the Setting of Meaning-

ful Standards Because of the Court of Appeals’ Decision.

Any antitrust lawyer worth his salt would advise a profession-

al association to limit the setting of standards after the opinion

of the Court of Appeals in this case. If this prediction seems un-

duly pessimistic, it should be pointed out that written examples

of precisely such advice, resulting from similar decisions, are to

be found. See, e.g., Millstein & Buc, Supreme Court Ruling Adds

Fuel to Debate over Health Planning, NATIONAL L.J., July 13,

1981, at 26. Millstein and Buc advise health care insurers to “lim-

it their implementation” of the National Health Planning and Re-

sources Development Act of 1974. Their reason for suggesting

this frustration of the intent of Congress is that insurers must do

so to “minimize their antitrust exposure in response to a recent

decision of this Court. Id. at 29.

The “limiting of implementation” that would be caused by

the Court of Appeals’ opinion in this case would be even more

pronounced, and it would affect precisely the most useful sort of

professional self-regulation, To be meaningful, a standard must

result in a curtailment of the business practices of at least some

J

in the profession. A standard that the lowest common denomina-

tor already meets would hardly be worth adopting. But if a pro-

fessional or a bu · inessman is affected adversely by a standard, hu-

man nature will lead him, rightly or wrongly, to view it as Hydro-

level viewed the interpretive letter here—that is, as inappropriate.

Since such a standard is by definition promulgated by a group of

other professionals, the situation provides a natural basis for the

claim that it is the result of a “contract, combination or conspi-

racy” of his competitors to “restrain trade” by limiting his busi-

ness activity. The additional litigation that would thus face a pro-

fessional association adopting meaningful standards amounts to a

powerful deterrent even if one assumes the association can pre-

vail in all such suits, because of the expense of defense.

An antitrust lawyer would counsel an association such as

ASME that it could avoid this added litigation in several ways. —

First, it could curtail the promulgation of codes. (Few profes-

sions have promulgated these in numbers approaching ASME’s,

in any event.) Secondly, it could decrease the issuance ot Code

interpretations, leaving the public to read the Code as best it can.

(Interpretations are particularly likely to create claims of the

type at issue here, because they translate generalities into speci-

fics.) Third, it could ensure that its Code or interpretations are

composed of platitudes that do not affect the activities of any

business in any meaningful way. ASME’s adoption of the Court

of Appeals suggestion that it should have “review procedures”

that would “guard against” the events in this case in a “strin-

gent” manner could succeed only if it also amounted in some de-

gree to the adoption of one of these three approaches.

B. The Natural Tendency of Professions Is to Set

Standards Accomodating the Lowest Common

Denominator, and This Tendency Would Be En-

couraged by the Court of Appeals’ Opinion.

Even without the Court of Appeals’ opinion in this case, pro-

fessions have an inherent tendency to avoid meaningful stan-

dards and to prefer codes consisting of pious but unenforceable

8.

homilies. Unless a professional association exercises vigilance and

courage, it will unconsciously adopt procedures of a sort that

would satisfy the Court of Appeals’ suggestion at public expense

procedures designed to ensure that such standards, guidelines,

policies, Codes of Professional Responsibility, or other profes-

sional norms as result from its convocations do not curtail acti-

vities its members desire to engage in, even to protect the public.

It can often justify such a failure to regulate itself by reference

to high-sounding ideals or other external justifications. The Court

of Appeals’ opinion would furnish precisely such a justification

here.

A desire to protect the traditional prerogatives of attorneys,

for example, has led to a Code of Professional Responsibility that

has been frequently attacked as insufficient to protect the client.

The following excerpt from Burt, Conflict and Trust between At-

torney and Client, 69 GEO. L.J. 1015, 1042 (1981), is one re-

cent scholarly statement of the idea:

. » The desultory character of current mechanisms for

enforcing professional standards of conduct is one pow-

erful indication of the professions’ disinclination to

probe the attorney-client relationship. Disciplinary pro-

ceedings by the organized bar are suspiciously rare oc-

currences . . . . The statistics suggest .. that the or-

ganized bar turns a collective blind eye to substantial

numbers of inappropriate attorney-client transactions.

The statistics bear out this assertion. See Steele & Nimmer, Law-

yers, Clients and Self-Regulation, 1976 AM. BAR. FOUND, RE-

SEARCH J. 917, 979 (comparing complaints with bar actions);

Martyn, Lawyer Competence and Lawyer Discipline: Beyond the

Bar?, 69 GEO, L. J. 705 (1981). Cf. M. Bloom, The Trouble with

Lawyers 157-91 ( 1968). The inability of the legal profession to

regulate itself has been described as “endemic.” Marks & Cath-

cart, Discipline within the Legal Profession: Is It Self-Regula-

tion?, 1974 U. ILL. L. F. 193, 196 (1974).

This inability to maintain high minimum standards is a gen-

eral phenomenon among professions. For another example from

a very different profession, see Funerr’ industry Guidelines Cri-

4.

ticized, Houston Chronicle, July 8, 1981, sec.1, at 1, col.1

(reporting consumer opposition to Nation Selected Mortici-

ans’ package pricing” guidelines as worte than no rule at

all“). The point is not that these professions are particularly

“bad” ones. Rather, the point is that against this background,

ASME’s more than 400 codes and standards represent a real

and substantial achievement, overcoming the tendency to pro-

tect the profession rather than the public,

Adoption of the very Code section whose interpretation

led to the inclusion of ASME in this suit, for example, was

preceded by a history of boiler “dry-firing” that resulted in

many instances of injury, death and property damage. The

evidence shows that since promulgation of the BPV Code,

such accidents have been virtually eliminated, An attorney

would be hard pressed to point to a single section of his

profession’s Code that incorporates safety procedures that

have eliminated the incidence of any undesirable practice.

To the extent that its stringent“ rule curtails promulgation

or interpretation of ASME’s Codes, the Court of Appeals’

reasoning will curtail service that is clearly in the public

interest.

C. These Considerations Are Relevant to Deter-

mining Whether ASME Should Be Adjudged

To Have Participated in a Conspiracy in Re-

straint of Trade.

This analysis should be viewed as relevant to the question

whether a professional association in ASME’s situation should

be considered to have violated the Sherman Act. The language

of that Act—requiring a contract, combination or conspiracy”

in “restraint of trade”—is flexible. It was intended by Congress

to permit beneficial business transactions, even if they resulted

in some restriction, Its application depends on the nature of the

activity and its context. Indeed, the beneficial aspects of pro-

fessional self-regulation have already been recognized as an im-

portant factor in a case such as this:

-10-

It would be unrealistic to view the practice of professions

as interchangeable with other business activities, and auto-

matically apply to the professions antitrust concepts which

originated in other areas. The public service aspect and

other features of the profession may require that a partic-

ular practice, which could properly be viewed as a viola-

tion of the Sherman Act in another context, be treated dif-

ferently,

Goldfarb v. Virginia State Bar, 421 U.S. 773, 788-89 & n.17

(1975); cf. Nationol Gerimendical Hospital v. Blue Cross, 49

U.S.L.W. 4672, 4676 (U.S.S.Ct. June 15, 1981) (cost-contain-

ment procedures ado, ed by health insurance consortium in co-

operation with Health Systems Agency may be accorded flexible

antitrust rules in order to “make [cost-containment] work”).

Significantly, the present case does not involve pricing or

other sensitive antitrust problems. Instead, it involves the setting

of professional standards, which has been described as a pro-

fessional associations’ most important and appropriate activity.

See Symposium, Trade and Professional Association Ethics and

Standards, 46 ABA ANTITRUST L. J. 653 (1976).

In the Court below, Hydrolevel attempted to characterize ar-

guments such as these as though they were efforts to claim an an-

titrust exemption for nonprofit associations, Amicus curiae does

not advocate any such thing and does not so understand

ASME’s argument. If a nonprofit entity such as this amicus cu-

riae should participate intentionally in a scheme to monopo-

lize, fix prices or divide markets, or if ASME were to do so, the

nonprofit nature of the entity should obviously not provide a

defense. All that is here contended is that the beneficial aspects

of the activity that would be curtailed ought to be considered

in determining whether the activity should be considered a re-

straint of trade,

The rule adopted by the Court of Appeals—that apparent au-

thority is sufficient to hold liable a professional society for the

actually unauthorized acts of its volunteers— is a species of

strict liability. In fact, the very purpose of apparent authority

is to make the care taken by the defendant irrelevant and to im-

-11-

pose liability based merely upon the result (the external appear-

ance that is created), irrespective of the real intent of the defen-

dant. Professional associations are already an antitrust battle-

ground, They are the frequent target of liability claims that al-

ready discourage some beneficial activity. Those claims are per-

haps unavoidable, since professional associations are and should

be subject to the antitrust laws, and the curtailment of some

beneficial activity and the assertion of some unmeritorious

claims are the price that must be paid. The strict liability ap-

proach of the Court of Appeals, however, would exact a price

that would be disproportionate.

II. DISCOURAGEMENT OF PROFESSIONAL SELF-

REGULATION WOULD CREATE A CORRE-

SPONDING NEED FOR GOVERNMENT STAN-

DARDS, WHICH UNAVOIDABLY CONSTITUTE

A FAR GREATER IMPEDIMENT TO NEW PRO-

DUCT DEVELOPMENT.

To the extent that it disco ‘rages appropriate self-regulation,

the Court of Appeals’ decision will create a corresponding need

for government licensing to replace it. Such a scheme of com-

pulsory certification will inevitably and unavoidably be infer-

ior to voluntary compliance with standards recognized in the

marketplace. In the first place, a government command system

is less desirable than a voluntary one simply because it prevents

the personal freedom to buy and sell the particular products one

wants. If government rather than ASME had been interpreting

the BPV Code here, it would likely have proceeded by flatly

barung the sale of the product—even to those who wanted it,

such as Brooklyn Union Gas Co. (“BUG”). Secondly, there is

tue fact that government promulgates regulations using tax-

payer funds that are thus diverted from some other need. For ex-

ample, it cost an almost unbelieveable 8.5 million dollars—more

than the trebled damages that were reversed in this case as ex-

cessive—for the Department of Energy to promulgate a single

set of guidelines designed to make household appliances more

12

energy-efficient. ASME performs such functions at no charge by

harnessing the desire of its members for part-time public service.

In the third place, compulsory regulation lacks economic effi-

ciency. A sufficiently complex regulatory process to take into

account all variations in the weighing of costs and benefits that

buyers and sellers are likely to exhibit in the real marketplace

would be too cumbersome to administer. Seldom does a nonpro-

fessional bureaucracy have the expertise to promulgate accurate-

ly targeted regulations in technical fields. Furthermore, an agen-

cy capable of duplicating the work of ASME would naturally

grow, and would attempt to enlarge its personnel, jurisdiction

and budget. Finally, the most ironic aspect of Hydrolevel’s claim

against ASME is that the delay and expense associated with gov-

ernment standardmaking are far more likely to destroy the mar-

keting of new and useful products. Situations far more serious

than Hydrolevel’s experience are simply the norm in regulated in-

dustries.

One might tend to underestimate the nature of this undesira-

ble effect of government regulation on new product introduction

unless one considered examples. The Food and Drug Administra-

tion is illustrative. During the week before this brief was printed,

in fact, the following report appeared in Newsweek, July 27,

1981, at 63:

.. . The U.S, Food and Drug Administration banned cy-

clamates as sugar substitutes in 1969 because of evidence

they caused cancer. Only Congressional action has kept

the agency from taking saccharin off the market for sim-

ilar reasons. Last week, after an eight-year controversy,

the FDA finally approved the marketing of aspartame, a

low-calorie sweetener that the manufacturer says tastes

more like sugar than any of the other substitutes.

. D.] Searle [& Co., aspartame’s manufacturer] had

a tortuous time getting the FDA to accept aspartame. The

agency initially approved the sweetener in 1974, but rescin-

ded its action the next year when . . . a psychiatrist at

Washington University . . claimed that the substance

-13-

caused brain damage in animals

While Searle embarked on further safety tests, the FDA

appointed a “scientific board of inquiry” . . . The board

concluded last year that most of the evidence for neurolog-

ical damage was unfounded, but suggested that further stu-

dies be made to determine whether aspartame caused brain

tumors in animals, Exasperated, Searle sued the FDA to

force a decision. . . . Final approval came when the FDA’s

own Bureau of Foods decided that the brain tumor evi-

dence was flimsy at best. “Few compounds have withstood

such detailed testing and repeated scrutiny,” said FDA

commissioner Arthur Hays Jr. “The process . . . should

provide the public with additional confidence about its

safety.”

However, the author of this piece concluded that The process

also provides a good case history of the FDA’s extraordinarily

elaborate and time-consuming requirements.” Id.

The point is not that FDA handled aspartame inappropriately.

It was following its governing statute and its usual procedure. Ra-

ther, the point is that G. D. Searle’s situation illustrates the plight

of a manufacurer subject to compulsory standards, even when

the administrator of those standards, the FDA, functions as it

should, The comparison to Hydrolevel’s situation is striking. Hy-

drolevel’s assertion of a miscarriage of justice was addressed com-

pletely and promptly by ASME upon Hydrolevel’s first com-

plaint, and Hydrolevel, unlike Searle, was never under a compul-

sion not to market its product. The point, in other words, is that

the partial replacement of ASME’s function by a federal Admin-

istration would not be in the public interest, even though the ne-

cessity of such replacement would be created by the Court of

Appeals’ opinion.

To the extent that the Court of Appeals’ decision has the ef-

fect of decreasing ASME’s activity in setting and interpreting

standards that delay or impede marketing of new products, that

decision will have the corresponding effect of requiring the sub-

stitution of government action to perform precisely the same

functionwith an unavoidably decreased efficiency. The funeral

-14-

industry’s failure to set meaningful standards has prompted the

FTC to promulgate compulsory rules. See Funeral Industry

Guidelines Attacked, Houston Chronicle, July 8, 1981, sec.1, at

22, col. 1. Failure of the attorney grievance process in Texas has

led to legislation empowering the State Supreme Court to take it

over. The notorious failure of professional sports to check inap-

propriate violence has led to calls for the enactment of a statute

so vague that it would require detailed regulatory interpretation

to be understood. See Sprotzer, Violence in Professional Sports:

A Need for Federal Regulation, 86 Case & Comment 3 (1981);

Sports Violence Act of 1980, H.R. 7903, 96th Cong., 2d Sess.

(1980). There can be little question that failure of a profession to

promulgate standards in areas involving such serious questions of

public safety as do ASME's codes would create a vacuum that the

government would fill simply out of necessity. When standards

in these matters are lacking or inadequate, the potential conse-

quencesare illustrated by such events as the recent structural col-

lapse of hotel walkways at the Hyatt Regency in Kansas City,

which occurred during the preparation of this brief. See Hotel

Toll Hits 111 in Kansas City, Houston Chronicle, July 19, 1981,

sec. I, at 1, col. I. There can be little question that any decrease in

ASME?’s activity will either create similar accidents or, more like-

ly, induce governmentally set and supervised standards.

A further irony is that the misuse of the resulting regulatory

system of government as a means of stifling competition would

be immune from liability under the antitrust laws. Thus if ITT

and Hartford Steam were to elicit government standards that

had the effect of excluding Hydrolevel from competition, there

would be no claim upon which relief could be granted—not on-

ly not against the government, but not against ITT or Hartford

either, See Parker v. Brown, 317 U.S. 341 (1943); cf. National

Gerimedical Hospital v. Blue Cross, supra. This immunity would

exist even if the competitors consnired with government agents

openly, intentionally, maliciously and for the express purpose of

monopolizing the trade. As the present case indicates, standards

imposed through a professional association do not carry immuni-

ty for those who use them intentionally to restrain trade; ITT

-15-

and Hartford recognized the possibility that their intentional

conduct might constitute an antitrust violation. In addition,

antitrust laws provide a check against intentional participation

by a professional association itself. However, the “apparent au-

thority” reasoning of the Court of Appeals, with its attendant

strict liability standard, would so discourage professional self-

regulation as to necessitate government action that would iron-

ically create an ipso facto exemption from the very laws against

restraints of trade that are asserted here.

III. THE COURT OF APPEALS’ OPINION ENCROACHES

UPON SPEECH AND ASSOCIATION PROTECTED

BY THE CONSTITUTION.

A. The Strict Liability Standard Imposed by the Court

of Appeals Is Inappropriate in an Area Involving Com-

munication of Information, which Should Be Affor-

ded “Breathing Space”

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964),

a newspaper had been held liable under State libel laws for prin-

ting false information contained in an advertisement furnished

it by a source acting to further its own motives. This Court,

while recognizing that a State had a valid interest in its libel

laws, held that the first amendment to the Constitution barred

such a claim in the absence of “actual malice” actually attrib-

utable to the newspaper. Robust, wide-open debate would be

inhibited by any other rule, since timely speech required “‘brea-

thing space.” The holding of the Court of Appeals, which is cast

not in the terminology of breathing space but rather in the rhe-

toric of strict liability, is an inappropriate approach to the case.

This case involves speech. The “tort” of which ASME here

has been convicted in the lower courts consists entirely of the

dissemination of information. There is no question the speech

here at issue is of a protected kind. In the first place, commer-

cial speech designed solely to promote the ends f the speaker

is protected. E.g., Bates v. Arizona State Bar, 97 S. Ct. 2691

-16-

(1977). In the second place, the speech here at issue, which is

disseminated to the public for general purpose use without ex-

pectation of economic benefit to ASME, is a higher level of

speech than commercial advertising, as is a newspaper.

Although the antitrust laws serve important societal purposes,

they do not occupy a higher Constitutional status than libel laws.

They are, like the libel laws, limited by the first amendment.

There can be no question that the crushing burden of liability

. imposed in this case constitutes as real a deterrent to the protec-

ted speech in which ASME engages as the application of strict li-

-ability for libel against the New York Times would to news re-

porting. The Court of Appeals viewed it so; it reasoned that its

holding would make persons in ASME’s situation exercise

“greater care” before they engaged in communications.

Hydrolevel’s argument, in essence, is that the state of mind

and motives of Hardin should be attributed to ASME, in that he

provided the information by which Hoyt answered M&M’s inqui-

ry. To do so would be similar to attributing the motives of a

source to a newspaper editor in a strict liability context. News-

papers are constantly faced with the problem of dealing with vol-

unteer sources that have motives to falsify. They may work with,

and present to the public by direct quotation, many sources with

whom they deal on a regular basis and in a close and cordial man-

ner, Statements of a mayor of a City about one of his political ri-

* vals, or by the manager of a professional baseball team about a

players’ strike, are examples, It is to be taken for granted that

such sources will attempt to use the newspaper for their own pur-

poses. But to hold the New York Times liable for the printing of

even a provably false quote from such a source—or for that mat-

ter, for printing something written by an advertiser whom the

paper holds out as authorized to use its pages explicitly for the

advertiser’s own purposes—would create a deterrent to communi-

cation. So would the opinion of the Court of Appeals here.

Even if the first amendment is itself not applicable here, these

concerns are important to determining whether ASME’s actions

made it a participant in a contract, combination or conspiracy

“in restraint of trade.” A construction of the antitrust laws that

-17-

would discourage the dissemination of information that is itself

necessary to trade would not appear to follow the intent of Con-

gress. The decisions interpreting the antitrust laws have, in fact,

so held. IIJn the absence of bad purpose, mistakes made in the

formulation or maintenance of standards do not subject one to

. . antitrust liability.” Structural Laminates, Inc. v. Douglas Fir

Plywood Ass’n, 261 F. Supp. 154, 159 (D. Ore. 1966), affd,

399 F.2d 155 (9th Cir. 1968). As this Supreme Court has stated:

. . the Sherman law neither repeals economic laws nor

prohibits the gathering and dissemination of information.

Sellers of any commodity . . . would hardly be deemed to

be conspirators engaged in the restraint of interstate com-

merce ... . merely because they became stockholders in a

corporation, or joint owners of a trade journal, engaged

in the compiling of reports.

Maple Flooring Mf'rs Ass’n v. United States, 268 U.S. 563

1925). The Court held, there, that even an effect of “stabilizing

prices,” absent a motive to engage in price fixing, did not render

the communications at issue a violation of the antitrust laws.

B. The Court of Appeals’ Reinterpretation of ASME’s

BPV Code, and Its Foundation of Liability upon

Disagreement with ASME’s Own Interpretation,

Is an Inappropriate Approach to Protected Speech.

The interpretation of formal language such as the BPV Code

may require reference to more than its literal words. The intent

underlying the language may be relevant, as may the precise cir-

cumstances to which it is applied, or changes in technology, or

consumer expectations, Situations might even be found in which

an interpretation that is superficially at variance with the literal

language may be the most appropriate one; such situations arise

not infrequently in the law. For these reasons, ASME’s interpre-

tation of its own code should not have been used to impose li-

ability upon it even if nominally inconsistent with the Code.

However, that was precisely the approach of the Court of Ap-

peals: in essence, it held that a professional association cannot

-18-

appoint a spokesperson to interpret standards without potential

liability unless “stringent” procedures ensure that a contrary in-

terpretation may not be reached later.

The Court of Appeals actually labelled the letter written by

Hoyt as “fraudulent.” This conclusion, which was apparently

based on the Court of Appeals’ conclusion that the letter was in-

consistent with the Code, was erroneous. As is shown above (in

the Statement of Facts, subsection C), the letter was factually

accurate. A time delay functions by interdicting or removing the

required automatic cutoff for a period of time and thus violates

the requirement of an operative safety device, even if that re-

quirement is read literally. The letter must be read in the context

of the inquiry to which it responded; that inquiry expressly as-

sumed a time delay that would operate only after the water was

below the visible range on the gauge glass, an arrangement that

would clearly violate the literal terms of the Code, as well as its

intent. The response, furthermore, was not cast in terms of any

specific device. Finally, the statement is factually accurate and

consistent with the intent of the Code unless one assumes, as did

the Court of Appeals, an additional fact contained in neither the

inquiry nor the response: that the cutoff would be activated well

in advance of the time the water reached the bottom point.

These circumstances do not support the Court of Appeals’ con-

clusion that the letter was “fraudulent.” At most, they show that

the inquiry could have been answered by a differently worded

response, but to so conclude is not to say that the interpretive

letter (which after all, was an interpretation) was “wrong” or

should subject ASME to liability.

This case is an example of the reason underlying the rule of

New York Times v. Sullivan. “[A] great danger of self-censorship

arises from the fear of guessing wrong—the fear that the trier of

fact, proceeding by formal processes of proof and refutation,

will after the event reject the individual’s judgment of truth.”

L. Tribe, American Constitutional Law 634 (1978). The Court of

Appeals’ opinion would justify that concern, encouraging profes-

sions to engage in self-censorship rather than in provected speech

on issues of public safety.

-19-

C. The Court of Appeals’ Comparison of the Com-

munications Here at Issue with the Common-Law

Claim for Disparagement, which Is Carefully Lim-

ited to Protect Communications, Should Have Led

to the Opposite Result.

The Court of Appeals reached its result, in part, by comparing

the antitrust laws to other business “torts,” including especially

the common-law action for “‘injurious falsehood” (also called

disparagement or trade libel). Since the Court concluded that the

evidence here showed “essentially a fraud,“ it considered that the

differences between this case and one for injurious falsehood

could hardly be material.” Ironically, however, if the claim here

were for trade libel, the required elements of proof would clearly

foreclose Hydrolevel’s recovery.

The law of trade libel has been carefully limited, over the

years, to allow breathing space for statements of opinion that

harm economic interests, on the theory that the dissemination of

precisely such communications is what makes a competitive mar-

ket competitive. Thus the “injurious falsehood” claim requires

proof of malice attributable to the defendant. It also requires

clear identification of the plaintiff's product, which is lacking

here, It contains various kinds of privileges designed to protect

even mistaken statements in the nature of product comparisons.

The burden of proving factual falsehood is on the plaintiff, and

“mere general statements of comparison” do not suffice. Nei-

ther do “statements of opinion,” which, presumably, would in-

clude an opinion as to the interpretation of a Code. [T] he

tort has never been greatly favored in the law.” W. Prosser,

Torts 915-926 (1971). It was only natural that Hydrolevel aban-

doned its state law claims before trial for these reasons, and that

it proceeded to trial on a theory that had had few occasions to

be tested against limits designed to protect communications.

D. The Court of Appeals’ Decision Constitutes an

Unwarranted Infringement of the Interest of Vol-

-20-

unteers in Associating for the Advancement

of Their Professions.

Americans are the most generous people in the world. Mon-

etary charitable contributions annually exceed $ 200 for each

man, woman and child in the United States; the world’s runner-

up is Canada, with a much smaller $ 35 per capita annually. See

Extra, July 1981, at 22 (reprinted from The Washington Post).

In-kind contributions of volunteer service probably exceed this

amount, if ASME’s members’ performance is any indication.

Americans volunteer their professional time because they re-

ceive something of inestimable value in exchange: association

with others. The Court of Appeals’ directive that an association

must be more restrictive with its volunteers translates into a sug-

gestion that the association refuse precisely the services of those

volunteers who are most skillful, qualified and informed and

that it tend to avoid allowing volunteers to deal with matters

that are controversial. This aspect of the holding is not only op-

posed to the interest of the larger public, but also constitutes an

unwarranted infringement of the interest of volunteers in asso-

ciating for the advancement of their profession.

The Court of Appeals’ reasoning does not take sufficient ac-

count of the nature of associations and the committees that

professional associations tend to create. The emphasis should

not be on orthodoxy or acceptability of point of view. Instead,

persons with varying viewpoints and conflicting interests should

be permitted to participate. The sort of “screening process”

contemplated by the Court of Appeals’ opinion would reduce

to an insistence upon homogeneity of those having responsibi-

lity. It is submitted that committee members, and for that mat-

ter committee chairpersons, should not be selected on such a

basis. A professional association should be able to have persons

of widely differing views serve as committee chair in sequential

years without fearing that it is exposing itself to disparate anti-

trust liability in the two years.

The Court of Appeals especially criticized the absence of

“review procedures.” In fact, ASME already has a procedures

-21-

manual for its BPV Code that appears to rival the Federal Rules

of Civil Procedure for complexity. Hoyt’s handling of the M&M

inquiry was guided by a choice between sections 8.01 and 8.02

of the Manual; other established procedures allowed the chair to

determine whether the inquiry should be answered formally or

informally. The Court of Appeals criticized the “unsupervised”

nature of this decision. The alternative would be to place the

chair in the position of delaying all answers to inquiries until a

full committee meeting could consider them in plenary session,

an approach that would mean that many inquiries would sim-

ply go unanswered. It is not the function of a procedural system

to remove all discretion of individuals. Instead, the purpose is to

guide discretion. See generally K. Davis, Discretionary Justice

(1976). The public perception of unduly complex procedures is

that of “red tape,” and it is unpleasant either to be in or to deal

with the sort of organization in which “no one has the authori-

ty to make a decision.”

The intrusion into the relationship of volunteers with their

employers suggested by the Court of Appeals’ reasoning would

be especially counterproductive. Should an association prevent

all who might have a “conflict of interest” from serving in any

policymaking capacity? If so, there might literally be no quali-

fied industry persons who could serve on a committee handling

a controversial issue. Should the association investigate the mo-

tives of a volunteer? If so, how? Can it safely accept the state-

ments of the volunteer that he is acting in the public interest ra-

ther than to serve some narrower interest, or must it contact the

volunteer’s employer to find out whether he has misrepresented

the facts? Learning the potential motives of a volunteer’s em-

ployer with respect to evolving technology would require exten-

sive investigation into the employer’s private business. indeed,

the Court of Appeals does not suggest even that a searching in-

quiry directed to the employer would be sufficient; the employ-

er too may have undesirable motives and may perpetrate the

sort of misuse of trust that was perpetrated upon ASME here.

And once one had learned of a volunteers’ motives, it is not

at all clear what a professional association should do. If it finds

-22-

that his views and his employer’s interest happen to coincide, or

even that his decisions are likely to further the interests of his

employer, should it refuse to allow him to participate? If so, it

would disallow participation by most in the population, because

it is submitted that such a description would fit most profes-

sionals, Perhaps in a situation involving the setting of standards

affecting competing products, the association should disallow

persons with a potential conflict from participating. But if a

duct is indeed defective, the persons most likely to be in a po-

sition to make that fact known are likely to be employees of

its manufacturer’s competitors.

It must be remembered that the situation ASME perceived in

this case was that of an ostensibly neutral volunteer (a vice pres-

ident of a boiler insurer), who provided a facially defensible in-

terpretation, without factual inaccuracy, of one section of a

Code of over 18,000 pages, the Code being one of more than

400 and the interpretation being one of 20,000 to 30,000 such

interpretations per year. This communication, in a single in-

stance, produced a judgment exceeding by many times the en-

tire annual budget of the association. The only way the proba-

bility of such an occurrence could be lessened would be by

extensive investigation of each volunteer, “Review procedures”

that would prevent it would be expensive and cumbersome.

Their adoption would please no one but antitrust attorneys,

for whom the instant case is a kind of Professional Association-

Lawyer’s Relief Act. It is likely that no preceding investigation

or subsequent review could have detected the needle in a hay-

stack that constituted this breach of ASME’s trust. The value

of such procedures is sinall in comparison to the substantial

infringement they would work upon the freedom of sincere

volunteers to associate.

Amicus curiae does not contend that Constitutional pro-

tection of the freedom of association would, itself, prevent

Congress from producing such a result as this, if Congress in-

tended to do so. The decisions of this Court indicate that in-

direct discouragement of association is not sufficient to render

a statute unconstitutional (although the Constitutional pro-

-23-

hibition can be invoked by a particularly severe application).

E.g., Buckley v. Valeo, 424 U.S. 1 (1976). However, it is submit-

ted that serious associationa! interests are at stake here, and the

argument raises the question whether Congress intended such a

drastic result when it prohibited conspiracies in restraint of trade.

The view of the Court of Appeals, which would encourage groups

such as ASME to curtail thousands of volunteer transactions in

order to prevent a single incident, is an unreasonable construc-

tion of that language.

CONCLUSION

For the reasons here stated as well as those expected to be set

forth in the brief of petitioner ASME, the decision of the Court

of Appeals should be reversed.

Respectfully submitted,

David Crump

Professor of Law

University of Houston

Houston, Texas 77004

(713) 749-3878

Attorney for Amicus Curiae

Susan E. Waite

The Legal Foundation of America

CERTIFICATE OF SERVICE

I hereby certify that I have deposited in a United States post

office, postage prepaid, three copies of the above motion and

brief to counsel for each party, namely: Harold R. Tyler, Jr., Pat-

terson, Belknap, Webb & Tyler, 30 Rockefeller Plaza, N.Y.

10020; and Carl W. Schwartz, Metzger, Shadyac & Schwartz, One

Farragut Sq., S., Washington, D.C. 20006.

-24-