Opposition Brief — National Organization for Women, Inc. v. Scheidler

(3)

No. 92-780

Supreme Court of the United States

OCTOBER TERM, 1992

NATIONAL ORGANIZATION FOR WOMEN, INC., on

behalf of itself and its women members and other women

who use or may use the services of women's health

centers that provide abortions, et al.,

Petitioners,

Vv.

JOSEPH SCHEIDLER, et al.,

Respondents.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF OF RESPONDENTS JOHN P. RYAN AND

PRO-LIFE DIRECT ACTION LEAGUE, INC. IN

OPPOSITION FO THE PETITION FOR CERTIORARI

TIMOTHY BELZ TIMOTHY C. KLENK

Suite 1710 (Counsel of Record)

7777 Bonhomme JEROME K. BOWMAN

St. Louis, MO 63105 KRISTIN E. MICHAELS

314/863-0200 Suite 3200

69 West Washington Street

Chicago, IL 60602-3069

312/214-4200

Counsel for Respondents

John P. Ryan and Pro-Life

December 23, 1992 Direct Action League, Inc.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the lower courts properly refused to

expand the Sherman Act to apply to the totally non-

commercial "conspiracy" of pro-life demonstrators alleged

in this case.

2. Whether, even if the Sherman Act did apply, the

petitioners’ antitrust claims were properly dismissed

because the petitioners failed to allege any antitrust injury.

ii

PARTIES TO THE PROCEEDINGS

AND RULE 29.1 STATEMENT

The petitioners have accurately listed the parties to

this proceeding.

The Pro-Life Direct Action League, inc. has no parent

companies, subsidiaries or affiliates.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .................00000+ i

PARTIES TO THE PROCEEDINGS AND RULE 29.1

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Pe A FE IE NE oistvnssecsececessccasecsccsdessnsnensesessesneese Vv

ci ncntcnasditeanininsoennenenneundsascaiins 1

STATEMENT OF JURISDICTION .......ccccccscsscsscessscecesssess 2

em WEIN GR cecesecccescccessccsecccecsccesssssonssceccese 2

I. iid cia cistanenibasehaipiodensicies 2

Il. The Proceedings And Their Disposition in the

aids does taiheeplntinsinasabecbsnneneniatanedin 2

a lassnssdnesnccneasinisbibbedbibenepdseovenesonsacs 3

Bi IIIS Sersicnsesessnisiccnsnnsvansiontassedctsanesoseiansenenes 3

Be IIE cicinscasecssntsssnngeevcasssnsnsscssscosencceenes 4

REASONS FOR DENYING THE WRIT ................cccseee 6

I. Petitioners Misstate The Issue and The Facts......... 6

A. Petitioners Misstate The Issue Before The

dah catia alae adadienemiiipisepdnscanesneucntan 6

B. Petitioners Also Misstate The Facts,

Including Their Own Allegations................... 9

Il. |The Court Should Deny The Writ Because

The Law On the Key Issue Before It Is Well

Established—The Antitrust Laws Do Not

Apply To A Non-Commercial "Conspiracy"

Such As The One Alleged By The

IUPUI BOD BURN SIO ccccceccnssconccnsesncescsnenseces 12

iv

TABLE OF CONTENTS—Continued

Page

A. Plaintiffs Allege Multiple State Law Torts

And Violations Of State And Local

Ordinances But No Recognized Violation

Of Section 1 Of The Sherman Acct .................. 12

B. The Legislative History Of Tne Sherman

Act, As Well As Every Supreme Court

And Court Of Appeals Decision On Point,

Recognize That The Antitrust Laws Do

Not Apply To A Non-Commercial Case

Sen Fb TID cicenssninsennsnanirennrinspeninsimnsenentansnimenseess 15

C. The Cases Relied Upon By Petitioners Do

Not Support The Applicability Of The

Antitrust Laws To This Case ...........sssseeeee 19

D. NOW Itself Has Recognized That This Sort

Of Attempt To Expand The Antitrust Laws

Does Not Merit This Court's Attention ....... 23

E. The Expansion Of The Sherman Act Urged

by Petitioners Would Have Absurd

PRO UIIIB rcccenacndsicocinicsninasatesncansnisosasanesiasessacaseossoneee 25

Ill. The Court Should Deny The Petition Because,

Even If The Sherman Act Applied In This

Case, Petitioners Do Not Allege Any Antitrust

EMJRITY ...0.<.c.cscsnsnecoresevonsvesccanesccecesocesescessesessssosensnsescsssones 27

Vv

TABLE OF AUTHORITIES

CASES: Page

Allied International, Inc. v. International

Longshoremen's Ass'n, 640 F.2d 1368

(1st Cir. 1981), aff'd on other grounds, 456

LE ee aD ceeists natkenifaabdnesnssicrlssictacaiesiniitivcbtobnn 17,18

Allied Tube & Conduit Corp. v. Indian Head,

BO0C.g SAD Gis GE CIDE) sca sicisnicrnsnnsiinsonssasensni 19, 20, 25

American Tobacco Co. v. United States, 328

Sab MI iacccrsdaitainiisbilipiiipibvedesdcnsinigasdilibdainibeibncnka 15

Apex Hosiery Co. v. Leader, 310 U.S. 469

CRIP. vinthiesiiionnitiein icici ipncapliuiabiclicsiaiaentbniaiin 14, 15, 18, 19

Ball Memorial Hospital, Inc. v. Mutual Hos-

pital Ins., Inc., 784 F.2d 1325, reh'g denied,

en banc, 788 F.2d 1223 (7th Cir. 1986) ............... 28

Barr v. National Right to Life Committee,

1981-2 Trade Cases 464,315 (M.D. Fla. 1981)..... 17,19

Broadcast Music, Inc. v. CBS, 441 U.S. 1 (1979)... 27

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

SP GATE SRT T inshnbalieicntsitnhaininnsttoninuensenins 27

Cargill, Inc. v. Monfort of Colorado, Inc., 479

Sa eiaiscdiccncnincictladeilipeapuccliiabeiaiiinniites 27

Costello Publishing Co. v. Rotelle, 670 F.2d

DE ce Ses es cithiccnienecnstnbntianccslainntininssenne 21

Council on Defense v. International Magazine

Co., 267 F. S90 (Bit Cit. 1920) cesesecessccccsssosssesnssees 22

Council for Employment & Economic Energy

Use v. WHDH Corp., 580 F.2d 9 (10th Cir.

1987), cert. denied, 440 U.S. 945 (1979) ............. 18

Eastern Railroad Presidents Conference v.

Noerr Motor Freight, Inc., 365 U.S. 127,

reh'd denied, 365 U.S. 875 (1961)............. 12, 13, 14, 16

F.T.C. v. Indiana Federation of Dentists, 476

cts SURF RIND Sicibissasilsnssantasbakinnsbicantndicbieecupdolineenss 21

F.T.C. v. Superior Court Trial Lawyers Ass'n,

SE LEE, GG I cscs istenitstnnsiictiiennihtttnsition 19, 20

vi

TABLE OF AUTHORITIES—Continued

Page

Franklin Music Company v. American

Broadcasting Companies, Inc., 616 F.2d 528

Bd CO. TOG FP ccccrensctenssonrnisnserssacsssvinssscenitatatenomnes 15

Goldfarb v. Virginia State Bar, 421 U.S. 773,

reh’g denied, 423 U.S. 886 (1975) .......cecveseceenes 21

Havoco of America, Ltd. v. Shell Oil Co., 626

F.2d 549 (7th Cir. 1980) .....ccccececseressneneseenenenennens 14

Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359

US. FOF (RSDP enccscssscsccrcscensnstenvencnnsessnssicsssosnencaneese 16

Kruezer v. American Academy of Periodon-

tology, 735 F.2d 1479 (D.C. Cir. 1984) 2.0.0... 20

Marjorie Webster Junior College, Inc. v.

Middle States Ass'n of Colleges &

Secondary Schools, Inc., 432 F.2d 650

(D.C. Cir.), cert. denied, 400 U.S. 965 (1970)...... 16, 17

Missouri v. National Organization for

Women, Inc., 620 F.2d 1301 (8th Cir.), cert.

denied, 449 US. B42 (1980) ......cccecececeeneneeeneneees 16, 21,

22, 23, 24, 25, 26

NAACP v. Claiborne Hardware Company, 458

U.S. 886, reh’g denied, 459 U.S. 898 (1982) ..... 20

National Collegiate Athletic Association v.

Board of Regents, 468 U.S. 85 (1984) ................ 20, 21

National Organizs:on for Women v.

Scheidler, 765 F.Supp. 937 (N.D. Ill. 1991),

aff'd, 968 F.2d 612 (7th Cir. 1992) ......c.ccceceserees 2,7

National Organization for Women v.

Scheidler, 968 F.2d 612 (7th Cir. 1992) ............ 2,7, 8,9

National Society of Professional Engineers v.

United States, 435 U.S. 679 (1978) ..........-.000-0+: 20

Northeast Women's Center, Inc. v.

McMonagle, 624 F.Supp. 736 (E.D. Pa. 1985)... 22

Northeast Women's Center, Inc. v.

McMonagle, 670 F.Supp. 1300 (E.D. Pa. 1987),

aff'd in part, rev'd in part, 868 F.2d 1342

GG ie, Fe vice eaidaitiatiiln Htatieahiinmnn 22, 23

Parker v. Brown, 317 U.S. 341 (1943) ......ecsesneees 16

vii

TABLE OF AUTHORITIES—Continued

Phil Tolkan Datsun, Inc. v. Greater Mil-

waukee Datsun Dealers’ Advertising Ass'n,

672 F.2d 1280 (7th Cir. 1982) o............ceccccecseseesens 27, 28

Proctor v. General Conference of Seventh-Day

Adventists, 651 F.Supp. 1505 (N.D. Ill. 1986). 17

Seglin v. Esau, 769 F.2d 1274 (7th Cir. 1985)........ 15, 27

Sitkin Smelting & Refining Co. v. FMC

Corporation, 575 F.2d 440 (3d Cir.), cert.

denied, 439 U.S. 866 (1978) ..........ecccccesesesnesnen 15

Sutliff, Inc. v. Donovan Companies, Inc.,

727 F.2d 648 (7th Cir. 1984) o........ccccccceceeseseeees 14, 15, 28

Swan v. First Church of Christ, Scientist,

S25 PAG THB Bia Cie. 1G) osesecececcscescccecesesosccsees 17

Tampa Electric Co. v. Nashville Coal Co.,

I 27

United Mine Workers v. Coronado Coal Co.,

ESE I SSR 14

‘Yalley Liquors, Inc. v. Renfield Importers, Ltd.,

678 F.2d 742 (7th Cir. 1982) ..........cccceceseseseeseseeees 28

Wilk v. American Medical Association,

719 F.2d 207 (7th Cir. 1983), cert. denied,

eee 21

STATUTES:

SITIIITITITITIET scschenirihadocbienuipstmnnscnaipesceesesnoumunnsncdiatanshicaitin 2

SaTTIIETITITIITIEY starisiestlatetsdinciescenedeuacifenndeatnscasseopeanndieetnetenn 25

aC Re 2

OTHER AUTHORITIES:

Be CR Is IEE OD recscscociccnscnccnieecscstniassenincstans 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

NATIONAL ORGANIZATION FOR WOMEN, INC., on

behalf of itself and its women members and other women

who use or may use the services of women's health

centers that provide abortions, et al.,

Petitioners,

Vv.

JOSEPH SCHEIDLER, et al.,

Respondents.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF OF RESPONDENTS JOHN P. RYAN AND

PRO-LIFE DIRECT ACTION LEAGUE, INC. IN

OPPOSITION TO THE PETITION FOR CERTIORARI

Respondents john P. Ryan ("Ryan") and the Pro-Life

Direct Action League, Inc. ("PDAL") respectfully ask the

Court to deny the Petition for Writ of Certiorari (the

Petition").

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit affirming the district court's dismissal of this suit

2

is reported at 968 F.2d 612 (7th Cir. 1992} and is reproduced

in Appendix A to the Petition.

The opinion of the District Court for the Northern

District of Illinois dismissing this suit is reported at 765

F.Supp. 937 (N.D. Ill. 1991) and is reproduced in Appendix

B to the Petition.

STATEMENT OF JURISDICTION

Petitioners have accurately stated the basis for this

Court's jurisdiction over this proceeding.

STATEMENT OF THE CASE

L Nature Of The Case

The petitioners (sometimes referred to in this brief as

the "plaintiffs") seek a declaratory judgment, injunctive

relief and treble damages against Ryan and PDAL under

Section 1 of the Sherman Act (15 U.S.C. §1) and Section 16

of the Clayton Act (15 U.S.C. §26). Ryan and PDAL are not

named as defendants in plaintiffs’ RICO and common law

counts.

IL The Proceedings And Their Disposition In The

Courts Below |

This case was initiated in 1986 by the filing of a single-

count antitrust complaint. After several amendments to

the complaint adding new counts and new defendants,

and replacing one plaintiff clinic with another, certain of

the respondents (often referred to in this brief as the

"defendants") moved to dismiss the plaintiffs’ second

amended complaint (the "Complaint") (R.331). Their mo-

tion was based primarily on the Complaint's failure to

state a claim under the antitrust laws and RICO (R.331).

District Court Judge James F. Holderman granted that

motion and dismissed the action "in its entirety" (R.502).

3

The plaintiffs subsequently appealed the district court's

order dismissing the case (R.517). On June 29, 1992, the

Court of Appeals for the Seventh Circuit affirmed the

district court's order. Petitioners sought a rehearing en

banc and the court of appeals denied that request.

Petitioners subsequently filed their petition for writ of

certiorari with this Court.

IL The Facts'

A. Background

Ryan is a Missouri resident who, until 1987, was en-

gaged in a number of pro-life activities, mostly in the

St. Louis, Missouri area (R.329, 74). PDAL is a Missouri

not-for-profit corporation which has also been engaged in

pro-life activities (R.21, 43). Until 1987, Ryan was execu-

tive director of PDAL (R.21, 1; R.329, 74; R.236, 410). He

has not been involved as a pro-life activist since then (Id.).

Neither PDAL nor Ryan, as its executive director, has

been engaged in commerce or owned an interest in any

business entity (R.21, {75 and 6). Nor has either had any

commercial relationship with any of the plaintiffs or with

any women's health center that provides abortions.

Neither has ever provided abortions or gynecological ser-

vices of any kind (/d., {96 and 7).

Neither Ryan ner PDAL has been involved in any

demonstration, picketing, sit-in or other pro-life activity

at, or in the vicinity of, either of the two plaintiff clinics

(R.329, Ryan Aff., {5 and O'Brien Aff., $5). Nor has Ryan

or PDAL even been in the vicinity of those clinics or

'Petitioners’ Complaint was dismissed by the district court.

Accordingly, the well pled allegatiors contained in it are accepted as

true—even though respondents vehemently deny most of those

allegations, especially those which allege that respondents engaged in

violence of any kind.

4

planned or taken (or participated in any plan to take) any

action of any kind against them (/d.).

B. The Complaint

The Complaint contains numerous conclusory allega-

tions about a vague “conspiracy” by "the defendants” to

“drive every clinic in the United States, such as [the

plaintiff clinics], out of business" (R.236, {126 and 27)

(emphasis added). (See also, R.236, {{1, 2, 30, 32, 33 and

39-41.) But the petitioners do not allege that either Ryan

or PDAL was ever involved in any demonstration, picket-

ing, sit-in or other pro-life activity at, or in the vicinity of,

either of the two plaintiff clinics—or that Ryan or PDAL

has ever even been in the vicinity of those clinics. Nor do

plaintiffs allege that either Ryan or PDAL has ever

planned, participated in planning, or taken, any action of

any kind with respect to either of the two plaintiff clinics.

In fact, plaintiffs’ Complaint contains no such allegations

against any defendant except Scheidler, who on one occa-

sion in 1986, allegedly entered one of the plaintiff clinics

(R.236, 1143-46). Plaintiffs do not allege that any other

defendant participated in that event.’

Petitioners also rely on their "RICO Case Statement"

(R.469) to establish the adequacy of their claims.* That

Statement stated that the conspiracy alleged by the plain -

tiffs involved “hundreds of thousands of unidentified

2Ryan and PDAL have admitted that they have engaged in sit-ins at

other clinics. However, they have denied that they have engaged in

violence of any kind (R.444, ¥2). To the extent that the court of appeals

referred to the defendants’ activities as “reprehensible” (see Petition at

p.3 n.1 and p. A-17), it based its conclusion on the plaintiffs’ allegations,

not upon any proven facts

3Even if the plaintiffs could properly rely on their RICO Case

Statement to establish their claims against other defendants, that

statement cannot be used to support their claims against Ryan and

PDAL since neither Ryan nor PDAL is a RICO defendant.

a ee

5

co-conspirators" (R.469, ¥3, p.3), and contained an exhibit

which described pro-life activities in which Ryan and

PDAL were alleged to have participated (Id., Ex. B). Not

one of those activities is alleged to have taken place in the

vicinity of, or to have affected, either of the plaintiff abor-

tion clinics.

Petitioners conclude that the activities of "the defen-

dants" have "restrain[ed] interstate trade" and have had

“an anticompetitive effect" (R.236, {%81-82). But their

Complaint does not define any relevant product or geo-

graphic markets in which they (or any other women's

health centers) were allegedly less able to compete. Nor

do the petitioners allege that Ryan or PDAL engaged in

commerce, had any interest in any business entity, or

competed with any petitioner. (Petitioners allege only

that the “business” of PDAL consists of "disrupting and

closing clinics" (R.236, 18).)

In fact, petitioners do not allege that Ryan or PDAL

ever had any commercial relationship with the petition-

ers or any abortion clinic. Although they did allege that

the “defendants and their co-conspirators" established

“competing pregnancy testing and counseling facilities...,

homes for pregnant women..., and prenatal and delivery

services, foster homes and private adoption agencies"

(R.236, {2), they did not allege that any of those facilities

competed with the plaintiff clinics. And, although they

allege that defendant Terry operated pregnancy and

counseling centers in New York and defendant Wojnar

operated anti-abortion women's medical clinics in

Chicago (R.236, {411 and 13), they make no such

allegations about Ryan, PDAL or any other defendant and

they allege no such activities by any defendant in Dela-

ware or Wisconsin. Of course, plaintiffs do not allege that

Ryan, PDAL or any other defendant has ever provided

abortion services.

6

Likewise, petitioners do not allege in their Complaint

that Ryan, PDAL or any other defendant engaged in any

pro-life activities for business or commercial gain. Nor do

they allege that Ryan, PDAL or any other pro-life

defendant used any business or commercial means to

accomplish their objectives. They are not alleged to have

engaged in any price-fixing, boycott, concerted refusal to

deai, territorial restraint or other recognized antitrust

violation.

Finally, petitioners do not allege that Ryan, PDAL or

any other pro-life defendant §.»1 "market power" or the

ability to substantially affect the supply of, or demand for,

abortion services in any relevant market—or even that

respondents participated in the market for abortion ser-

vices. Nor do they allege that the activities of Ryan or

PDAL, or their alleged "co-conspirators," reduced the

number of abortion clinics (or the number of abortions

performed by abortion clinics) in Wisconsin, Delaware or

elsewhere in the United States, or otherwise substantially

reduced competition between abortion clinics or between

abortion clinics and other providers of abortion services.

REASONS FOR DENYING THE WRIT

L Petitioners Misstate The Issue And The Facts

A. Petitioners Misstate The Issue Before the Court

Petitioners contend that the issue in this case is

“whether the Sherman Act contains an implied exemp-

tion for all organizations that claim to be espousing a

‘social cause’...." (Petition at p.i.) Later, petitioners phrase

the issue in terms of whether "good motives" are a

defense under the Sherman Act (Petition at pp. 13 et seq.).

However phrased, this is not the issue.

7

Respondents have never argued, and do not argue

now, that "good motives" or a “social cause" create an

exemption from the antitrust laws. The issue is whether

the antitrust laws apply here in the first instance, not

whether some "exemption" applies. As the district court

stated: The “threshold question is whether the Sherman

Act was intended to cover the conduct alleged here."

National Organization for Women v. Scheidler, 765

F.Supp. 937, 939 (N.D. Ill. 1991), aff'd, 968 F.2d 612 (7th Cir.

1992) (Petition at p.B-3) (emphasis added). This is also the

issue on which the court of appeals focused.‘

Petitioners also misstate the issue when they suggest

that the "exemption" they claim is espoused by respon-

dents (and the two lower courts) was based on "good mo-

tives" or a "social cause." The issue is not just whether

the respondents have good motives or a social cause.

Rather, it is whether the antitrust laws apply to a conspir-

acy which is non-commercial in every respect. As the

court of appeals held in this case:

The [Supreme] Court explained in Apex Hosiery,

310 U.S. [469,] 493 n.15 [1939], that "[t]he history of the

Sherman Act as contained in the legislative proceed-

ings is emphatic in its support for the conclusion

that ‘business competition’ was the problem consid -

ered and that the act was designed to prevent

restraints on trade which had a significant effect on

‘Throughout their Petition, petitioners egregiously mischaracterize

the decision of the court of appeals. That court did not find any exemp-

tion based on good motives. Rather, it examined the legislative history

of the Sherman Act and properly concluded that that law was not

intended to apply in a non-commercial case such as this. Petitioners’

misstatement of the issue is highlighted by their argument that, if

respondents do not want to be covered by the antitrust laws, they should

go to Congress for a legislative exemption (Petition at p.28). There is, of

course, no reason to ask Congress for an exemption from a law which

does not apply in the first place.

such competition." For this reason, we question the

appropriateness of the Act's applicatiun in this case.

National Organization for Women v. Scheidler, 968 F.2d

612, 617 (7th Cir. 1992), Petition at p. A-8. See also, 968 F.2d

at 622, Petition at p. A-17 ("The defendants’ acts are far

beyond those that Congress intended to reach with the

Sherman Act").

The Seventh Circuit again emphasized the limits of

the antitrust laws when it stated:

We are convinced by the economic and legislative

history of the Sherman Act that it was intended to

prevent business competitors from making restrain-

ing arrangements for their own economic advantage.

As the [Supreme] Court stated in Allen Bradley Co.

v. Union, 325 U.S. 797, 811 (1945), "We know that

Congress feared the concentrated power of business

organizations to dominate markets and prices. It

intended to outlaw business monopolies."

Defendants are not involved in business, and have

no ability to concentrate economic power.

National Organization for Women v. Scheidler, 968 F.2d

at 621, Petition at pp. A-15 to A-16 (emphasis added and

footnote omitted).°

In phrasing the inquiry incorrectly, petitioners attempt

to set up a straw man. Their entire argument, as well as

the cases on which they rely, deal with a non-existent is-

5In a curious bit of reasoning, petitioners accuse the court of appeals

of “misusing historically unreliable materials [the legislative history] to

reach a preordained result." But why would the lower court manipuiate

history to support a "preordained result" when it is apparent that the

court accepted petitioners’ allegations and even characterized the

respondents’ alleged conduct as deplorable? Clearly, the court of

appeals had no preordained result in mind but was simply convinced by

precedent and the Act's legislative history that petitioners’ remedies lie

under state law, not federal antitrust law.

9

sue. They completely fail to address the true issue raised

by respondents and addressed by both of the courts below.

And the law relating to that issue—which holds that the

Sherman Act does not apply to a completely non-

commercial conspiracy such as the one alleged by peti-

tioners in this case—has never been questioned by this

Court or any circuit court of appeals. Thus, the Petition

should be denied.

B. Petitioners Also Misstate The Facts, Including

Their Own Allegations

In various places in their Petition, petitioners allege

that "defendants" operated clinics which competed with

the plaintiff clinics. (See, e.g., Petition at pp. 5, 6 and 17.)

But the petitioners fail to mention that neither Ryan nor

PDAL (nor most of the other defendants) is ever alleged to

have participated in any way in those clinics.

Even as to the two or three respondents whom peti-

tioners allege did operate clinics,° petitioners radically

misstate the facts. For example, they assert that these clin-

ics compete with the plaintiff clinics, but the only clinics

they mention in their Complaint are ones operated in

Binghampton, New York and Chicago, Illinois (R.236,

1111 and 13). However, the plaintiff clinics are located in

Delaware and Wisconsin (R.236, {46 and 7). Further, of

course, it is not even suggested that any clinic operated by

any respondent provides, or competes in the market for,

abortion services.

Similarly, petitioners have alleged a "nation-wide

criminal conspiracy of extremists who use unlawful and

6The plaintiffs identify defendants Wojnar and Terry, and possibly

Scholberg, as the defendants involved in operating clinics. Petition at

pp. 4and 5. The court of appeals concluded that only Wojnar and Terry

are alleged to have operated such clinics. 968 F.2d at pp. 616, 620,

Petition at pp. A-4, A-14.

10

violent means. . ." (Petition at p.3). This conspiracy is

alleged to involve "hundreds of thousands of unidenti-

fied co-conspirators” (R.469, 73, p.3).’

Petitioners also consistently rely upon conduct directed

at abortion clinics which are not parties to this action. But

petitioners never inform the Court that, despite its cap-

tion, this suit has never been certified as a class action.

Accordingly, most of the petitioners’ arguments and

"facts" relate not to parties to this suit but to others they

have never been authorized to represent.

Similarly, petitioners allege that their "complaint did

not in any way implicate lawful speech. . ." (Petition at

p-4). This is not true. Petitioners asked the district court

to enjoin "the defendants from carrying out a concerted

effort to drive women's health centers . . . out of business”

(R.236, Count I, Prayer for Relief). Such a “concerted

effort," so broadly stated, encompasses picketing, speech,

and a host of other protected activities. Further, prosecu-

tion of an action based on a complaint of such unprece-

dented breadth (e.g., a conspiracy of hundreds of thou-

sands) cannot help but have a chilling effect on the First

Amendment rights of countless persons.

Petitioners also stretch their own pleadings beyond

recognition when they try to paint respondents as com-

mercial actors. As previously discussed, petitioners never

alleged that Ryan or PDAL engaged in commerce or had

any interest in any commercial entity.* Nothing in the

Complaint suggests that either Ryan or PDAL had any

7Petitioners’ allegation that defendants’ conduct was “unlawful” or

“illegal” is a red herring, irrelevant to the antitrust issues presented here.

See page 15 n. 10, infra.

8The closest plaintiffs come is their assertion that the “business” of

PDAL consists of “disrupting and closing clinics" (R.236, 418). Obviously,

“disrupting and closing clinics” by. the methods, and for the purposes,

alleged in the Complaint is not a “business.”

11

profit motive for disrupting and closing clinics. In at-

tempting to establish defendants' “economic motive,"

petitioners point to their RICO Case Statement and a sin-

gle paragraph in the RICO count of their complaint. But

they again seem to forget that neither Ryan nor PDAL is a

RICO defendant. In any event, petitioners’ RICO allega-

tions are largely meaningless even as to those respondents

against whom they are asserted. Despite the reckless

charges in their Petition that other defendants earned

hundreds of thousands of dollars from their pro-life activ-

ities, petitioners allege in their pleadings only that certain

of the defendant organizations received "donations" (or

"income") and paid saiaries and benefits to certain of their

officers and employees (the individual defendants) (R.236,

1100 and R.469, pp. 18 and 21-22).

If the receipt of salaries by employees of non-profit or-

ganizations or the receipt of donations by those organiza-

tions made them commercial entities, there could hardly

be such a thing as a non-commercial entity. For example,

under plaintiffs’ approach, any activity of a charitable

organization would be commercially motivated if it

provided a reason for donors to make contributions to the

organization from which the organization's officers and

other employees could be paid. The very fact that

petitioners base their position on such tenuous grounds

demonstrates their inability to state an antitrust claim.

Petitioners’ pleadings, in fact, establish just the oppo-

site of what they argue in their Petition. Their Complaint

is replete with allegations demonstrating that the objec-

tive of the defendants’ pro-life activities was not com-

mercial but to stop abortions. Indeed, the court of appeals

recognized that "defendants are not engaged in business."

968 F.2d at 621, Petition at p. A-16. And the plaintiffs do

not allege that defendants have conspired to drive all

12

women's clinics out of business but only those “which

provide abortions.” (See, e.g., R.236, {{1, 18, 32 and 33.)

The district court here noted that "a woman's right to

have an abortion is a social or political issue—one of the

most complex and contentious in American society today”

(Petition at p. B-6). Although these words are not found in

the petitioners’ Complaint, they jump out from it. For

example, petitioners describe NOW as an organization

dedicated to protecting the constitutional right of women

to reproductive freedom (R.236, [5; R.469, p.4) and charac-

terize the defendants as anti-abortion extremists who are

intent on depriving American women of those rights

(R.236, 426, 27 and 84-88; R.469, pp. 4 and 5). Indeed, the

very vehemence of the petitioner's Complaint, RICO Case

Statement and Petition amplifies the accuracy of the dis-

trict court's statement.

I. The Court Should Deny The Writ Because The Law

On the Key Issue Before It Is Well Established—The

Antitrust Laws Do Not Apply To A Non-

Commercial "Conspiracy" Such As The One Alleged

By The Petitioners In This Case

A. Plaintiffs Allege Multiple State Law Torts And

Violations Of State And Local Ordinances But

No Recognized Violation Of Section 1 Of The

Sherman Act

Petitioners’ Complaint in this action is devoid of

typical antitrust allegations. Indeed, petitioners allege

none of the types of activities traditionally thought to vio-

late the Sherman Act. Nowhere do they allege that the

defendants engaged in price fixing, a boycott or other con-

certed refusal to deal, a territorial restraint or any other

type of conduct “normally held violative of the Sherman

Act." See Eastern Railroad Presidents Conference v.

13

Noerr Motor Freight, Inc., 365 U.S. 127, 136-37, reh’g.

denied, 365 U.S. 875 (1961).

Indeed, that petitioners have not alleged an antitrust

claim at all is apparent from a comparison of their allega-

tions to circumstances in which the Sherman Act was in-

tended to apply. In a typical case alleging violations of

Section 1 of the Sherman Act, such as price fixing, it is

sellers of a commodity or service who conspire. Here, the

persons who are alleged to have conspired are third par-

ties who have no economic relationship to the plaintiffs.

In a typical Section 1 case, the conspirators receive some

economic benefit from their conspiracy, such as higher

prices. Here, the defendants receive no economic benefit

from the increased prices plaintiffs allege resulted from

the conspiracy. It is the plaintiffs, not the defendants, who

benefit from those higher prices. In a typical Section 1

case, the conspiracy results in increased prices. In this

case, the conspiracy is alleged to have resulted in increased

costs which had only an indirect effect on prices. In the

usual Section 1 case, the defendants are alleged to restrict

supply. Here they are alleged to restrict demand. In the

normal Section 1 case, the conspiracy is alleged to restrict

the terms on which consumers can buy commodities or

services. Here, the plaintiffs allege that consumers are

discouraged from buying them at all. In the usual Section

1 case, the defendants seek to increase their share of the

market. In this case, the defendants have no share of the

market, do not wish to gain one, and, in fact, are alleged to

be attempting to destroy the entire market for abortion

services.

The fact of the matter is that the plaintiffs have not al-

leged an antitrust conspiracy. Rather, they allege state-law

tort and criminal violations such as trespass, vandalism,

destruction of property and interference with business re-

lationships (Petition at p.3 n.1) which “bear very little if

any resemblance to the combinations normally held vi-

14

olative of the Sherman Act. . . ." Noerr, 365 U.S. at 136-37.°

In fact, as the district court found, the ‘essential dis-

similarity’ between the alleged conduct and the conduct

traditionally regulated by antitrust laws is of a greater

magnitude in this case than that in Noerr itself." 765

F.Supp. at 941, Petition at p. B-8. As stated by the court of

appeals: "[I}t is hard to ignore the suspicion that the facts

have been forced into an antitrust mold to achieve federal

jurisdiction.” 968 F.2d at 621, Petition at p. A-16 to A-17

(quoting Havoco of America Ltd. v. Shell Oil Co., 626 F.2d

549, 559 (7th Cir. 1980)).

But federal antitrust law is not to be used to remedy, or

“federalize," state law torts or crimes, no matter how per-

vasive they might be. As this Court has stated:

The Sherman Act was not enacted .. . to afford a

remedy for wrongs, which are actionable under state

law, and result from combinations and conspiracies

which fall short, both in their purpose and effect, of

any form of market control of a commodity, such as

to monopolize the supply, control its price, or dis-

criminate between its would-be purchasers.

Apex Hosiery Co. v. Leader, 310 US. 469, 511 (1939)

(emphasis added) (quoting United Mine Workers v.

Coronado Coal Co., 259 U.S. 344, 471 (1921)). As the Court

of Appeals for the Seventh Circuit has stated:

The legislators who passed the Sherman Act did not

make ordinary business torts federal torts for which

treble damages could be recovered; no such whole-

sale displacement of state tort law into the federal

courts was contemplated or desired. . . .

%At page 4 of their Petition, petitioners argue that their Complaint

“attacked only the independently illegal and tortious conduct of the

extremists. ...” In other words, state law torts and crimes.

15

Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654

(7th Cir. 1984). See also Seglin v. Esau, 769 F.2d 1274, 1280

n.6 (7th Cir. 1985), and Franklin Music Company v.

American Broadcasting Companies, Inc., 616 F.2d 528, 556

(3d Cir. 1979) (Sloviter, Circuit Judge, concurring) ("For

example, if two disgruntled customers conspire to burn a

department store which would, if accomplished, have the

effect of destroying its business, it seems improbable that a

court would hold that the intent which suffices to support

a Claim under state tort law is itself also enough to support

a claim for violation of Section 1 of the Sherman Act"). In

this case, petitioners ask the Court to turn state misde-

meanors and violations of city ordinances (e.g., trespass-

ing) into violations of federal law with treble damage

penalties. °

B. The Legislative History Of The Sherman Act,

As Well As Every Supreme Court And Court

Of Appeals Decision On Point, Recognize That

The Antitrust Laws Do Not Apply In A

Non-Commercial Case Such As This

Even before the Sherman Act was passed, it was clear

that it would not apply to non-business combinations.

During debate on the Act, Senator Sherman pointed out

10Petitioners repeatedly allege that respondents’ activities were

“unlawful” and “illegal.” This is a red herring. If they are referring to vio-

lations of the antitrust laws, they are begging the question. But if, as is

apparent, they are referring to acts which are otherwise unlawful, such as

trespass and vandalism, their allegations are simply irrelevant. See Apex

Hosiery, 310 U.S. 469, 513 (the Sherman Act “draws no distinction

between the restraints effected by violence and those achieved by

peaceful ... means"); American Tobacco Co. v. United States, 328 U.S.

781, 809 (1946) ("[iJt is not of importance whether the means used to

accomplish the unlawful objective are in themselves lawful or unlawful");

and Sitkin Smelting & Refining Co. v. FMC Corporation, 575 F.2d 440 (3d

Cir), cert. denied, 439 U.S. 866 (1978) (conduct not within the scope of the

Sherman Act does not become an antitrust violation merely because it is

illegal).

16

that it was meant to apply only to “business combina-

tions," not "voluntary associations." Parker v. Brown, 317

US. 341, 351 (1943) (citing 21 Cong.Rec. 2562 (1890)). As the

Eighth Circuit noted in Missouri v. National Organization

for Women, Inc., 620 F.2d 1301, 1309 (8th Cir.), cert. denied,

449 U.S. 842 (1980) (" Missouri v. NOW"), the legislative

history of the Act indicates that "it was the competitors in

commerce that Senator Sherman had in mind as the con-

cern of his bill" and the Supreme Court has determined

that "activities that were meant to be covered are competi-

tive activities by competitors with some self-enhancement

motivation. ..." The court perceived Congress’ concern

"to be not the elimination of boycotts, but elimination of

boycotts used by a competitor against a competitor (or

against a supplier, customer, etc.) in the business of com-

peting." Id. at 1310.

Indeed, the law is so well settled that there have been

very few attempts to apply the antitrust laws to totally

non-commercial conspiracies such as the one alleged here.

And, even in basically non-commercial cases which

(unlike this one) involved some commercial eiements,

the courts have consistently rejected the application of the

antitrust laws.

This Court, for example, has repeatedly affirmed the

principle that the Sherman Act does not apply to business

combinations with non-commercial objectives. See, ¢.g.,

Noerr, 365 U.S. at 141 (the Sherman Act is "tailored . . . for

the business world"); and Klor’s, Inc. v. Broadway-Hale

Stores, Inc., 359 U.S. 207, 213 n.7 (1959) (the Sherman Act

"is aimed primarily at combinations having commercial

objectives and is applied only to a very limited extent to

organizations, like labor unions, which normally have

other objectives").

Of course, many other courts have reached the same

conclusion. See,e.g., Marjorie Webster Junior College,

17

Inc. v. Middle States Ass'n of Colleges & Secondary

Schools, Inc., 432 F.2d 650, 654-55 (D.C. Cir.), cert. denied,

400 U.S. 965 (1970) (non-commercial activities of

non-profit college accreditation association were outside

the scope of the Sherman Act); Swan v. First Church of

Christ, Scientist, 225 F.2d 745, 751 (9th Cir. 1955) (church

authorities’ efforts to hinder publication and dissemina-

tion of book among its members bears no resemblance to

"trade or commerce" under the Sherman Act); Proctor v.

General Conference of Seventh-Day Adventists, 651

F.Supp. 1505, 1524 (N.D. Ill. 1986) (Sherman Act not appli-

cable to Seventh-Day Adventist Church which was "not

involved in ‘trade or commerce’ in the sense those terms

are ordinarily used in commercial profit-making activ-

ity"); and Barr v. National Right to Life Committee, 1981-2

Trade Cases 964,315 (M.D. Fla. 1981). "!

In other cases, the courts have found that the antitrust

laws do not apply to alleged conspiracies with non-

commercial objectives even where the defendants were

business entities. For example, in Allied International,

Inc. v. International Longshoremen’s Ass'n, 640 F.2d 1368

(1st Cir. 1981), aff'd on other grounds, 456 U.S. 212 (1982),

the longshoremen conspired to refuse to load and unload

ships engaged in trade with the Soviet Union. Even

though the court concluded that the labor law exemption

11The Barr court granted a motion to dismiss a complaint alleging a

conspiracy of religious organizations, an anti-abortion group, hospitals

and physicians aimed at curtailing a physician's ability to provide full

abortion services to patients. The court said:

Because defendants’ actions, the purpose of which was to

encumber plaintiff's ability to provide full abortion services in the

Orlando area, are inherently non-commercial and prompted by

no anti-competitive purpose, they too do not fall within the reach

of the Sherman Act.

Barr, 1981-2 Trade Cases at p. 74,410 (emphasis added).

(18

to the antitrust laws was not available to the defendants, it

held that the antitrust laws did not apply to the

defendants’ actions, which were motivated by non-

commercial objectives. Id. at 1381. The court said:

We think this limited refusal to handle goods, un-

dertaken as a political protest by a labor union acting

on its own, and ill-designed as a means of gaining a

competitive or commercial advantage for the union

or its members, is not the sort of evil at which the

Sherman Act is aimed. The Sherman Act was a

product of "the era of 'trusts' and of ‘combinations’

of businesses and of capital organized and directed to

control of the market by suppression of competition

in the marketing of goods and services, the monopo-

listic tendency of which had become a matter of pub-

lic concern." Apex Hosiery v. Leader, 310 U.S. 469,

492-93 .. . (1940). The Supreme Court has said that

"the Act is aimed primarily at combinations having

commercial objectives and is applied only to a lim-

ited extent to organizations, like labor unions, which

normally have other objectives." Klor’s, .uc. v.

Broadway-Hale Stores, Inc., supra, 359 U.S. at 213 n.7.

Id. at 1380-81 (emphasis added)."”

Courts have similarly held the Sherman Act not to

apply in cases involving non-commercial conduct. For

example, in Apex Hosiery Co. v. Leader, 310 U.S. 469

(1940), this Court held that the Sherman Act did not apply

to employees engaged in a violent sit-down strike in

which numerous state law felonies were committed and

12See also, Council for Employmeni and Economic Energy Use v.

WHDH Corp., 580 F.2d 9, 12 (1st Cir. 1978), cert. denied, 440 U.S. 945

(1979) (upholding dismissal of a complaint and noting that “the original

intent of Congress in enacting the Sherman Act was to suppress and

penalize restraints on commercial competition in the marketing of

goods and services") (emphasis in original).

19

which shut down a company which produced a large per-

centage of the nation's hosiery. And, in Barr, 1981-2 Trade

Cases at p.74,410, the court found the pro-life defendants’

conduct to be "inherently non-commercial."

Thus, as the cases discussed above demonstrate, the

courts have held the Sherman Act not to apply where the

defendants were non-commercial, where the defendants

had no commercial relationship with the plaintiffs, where

the defendants' motivation was non-commercial, and

where the defendants’ conduct was non-commercial. In

this case, the defendants fall into all of these categories.

C The Cases Relied Upon By Petitioners Do Not

Support The Applicability Of The Antitrust

Laws In This Case

The petitioners direct their entire antitrust argument

at their own straw man (their purported "social cause" or

“good motives" exemption to the Sherman Act). They

thus fail to discuss whether the antitrust laws apply to a

totally non-commercial conspiracy such as is alleged in

this case. The reason is clear: the antitrust laws do not

apply. And none of the Supreme Court or court of

appeals cases cited by petitioners hold to the contrary.

Petitioners rely, for example, on two Supreme Court

decisions, Allied Tube and Conduit Corp. v. Indian Head,

Inc., 486 U.S. 492 (1988) and F.T.C. v. Superior Court Trial

Lawyers Ass'n ("D.C. Lawyers"), 493 U.S. 411 (1990), both

of which involved commercial activities. In Allied Tube,

manufacturers of steel electrical tubing packed a trade

association meeting so that the association would not

approve the vse of plastic electrical tubing as a substitute

for their product: The Court recognized that "the antitrust

laws should not regulate political activities simply because

those activities have a commercial impact" but found that

the conduct at issue in that case could "more aptly be

20

characterized as commercial activity with a_ political

impact." Allied Tube, 486 U.S. at 507 (emphasis added).

D.C. Lawyers also involved commercial activity—a

conspiracy among lawyers to fix (raise) the price of their

services which nearly brought the District of Columbia

criminal justice system to a halt until the lawyers received

the higher compensation they demanded. The Supreme

Court understandably characterized this as "a naked

restraint of price and output in violation of the antitrust

laws." D.C. Lawyers, 493 US. at 423."

Petitioners’ reliance on National Society of Profes-

sional Engineers v. United States, 435 U.S. 679, 693 (1978)

is also unfounded. In that case, the Court explicitly found

that the defendant, which was comprised of competing

engineers, had an anticompetitive purpose and therefore

found their commercial conduct (prohibition of competi-

tive bidding) to be violative of the antitrust laws. And

Kreuzer v. American Academy of Periodontology,

735 F.2d 1479 (D.C. Cir. 1984), involved an agreement

among competitors (dentists) to exclude (boycott) a com-

petitor (another dentist) from full membership in their

association. Thus, again, commercial competitors used an

economic tool to achieve their purposes.

Likewise, petitioners’ reliance on other cases involv-

ing organizations (even not-for-profit organizations)

which were comprised of commercial actors only high-

lights the many commercial aspects present in those cases,

but missing here. See, e.g., National Collegiate Athletic

Association v. Board of Regents, 468 U.S. 85 (1984) (NCAA

13The D.C. Lawyers Court distinguished NAACP v. Claiborne

Hardware Company, 458 U.S. 886, reh’g denied, 459 U.S. 898 (1982), not-

ing that Claiborne “is not applicable to a boycott conducted by business

competitors who ‘stand to profit financially" and that the Claiborne boy-

cotters sought "no special advantage for themselves." D.C. Lawyers, 439

U.S. at 427 (emphasis added).

21

restricted the televising of college football games of its

member Universities); Goldfarb v. Virginia State Bar, 421

U.S. 773, reh’g denied, 423 U.S. 886 (1975) (state bar mini-

mum fee schedule prevented price competition among

attorneys); F.T.C. v. Indiana Federation of Dentists, 476

U.S. 447 (1986) (organization of dentists which required its

members to withhold x-rays from dental insurers in con-

nection with evaluating patients’ claims for benefits pre-

vented competition among dentists with respect to insur-

ance policies); Wilk v. American Medical Association, 719

F.2d 207 (7th Cir. 1983), cert. denied, 467 U.S. 1260 (1984)

(defendant association of medical doctors implemented a

group boycott against chiropractors).

Petitioners also rely upon Costello Publishing Co. v.

Rotelle, 670 F.2d 1035 (D.C. Cir. 1981). But the Rotelle

court noted in the very first sentence of its opinion that

the case "involve[d] a dispute between lay and clerical

members of the Roman Catholic Church, who also share a

commercial relationship," Id. at 1038 (emphasis added),

and determined that the church had a “financial interest"

in the transactions at issue. Id. at 1047. In any event, con-

trary to plaintiffs' suggestion, the Rotelle court, which dis-

cussed the antitrust laws only in dicta, never ruled that

the defendants’ conduct was subject to antitrust regula-

tion. Id. at 1048. -

Petitioners attempt to distinguish Missouri v. NOW by

relying on dicta in a footnote in that case which states, gra-

tuitously and only for the sake of illustration, that "[t]he

Sherman Act may apply in some situations to non-

commercial and non-economic boycotts." Missouri v.

NOW, 620 F.2d at 1315 n.16 (emphasis added) (Petition at

p.19). However, the court explicitly acknowledged that

"[o]ther courts have been more generous and have

equated noncommercial activities with a political right to

petition the government." Id. It concluded that it was

22

“not necessary, under the facts of our case, for our ruling

to be so broad." Id. Furthermore, the court did not state

that it would apply the Sherman Act to such a boycott and

the entirety of its opinion clearly suggests that it wouid

not.

Finally, the old Eighth Circuit case of Council on

Defense v. International Magazine Co., 267 F. 390 (8th Cir.

1920), on which petitioners rely in order to create an

alleged conflict between the circuits, gains petitioners

nothing. That case involved commercial means (a boy-

cott) employed by persons who were commercially related

(as purchasers of magazines) to the "victims" of the boy-

cott (the publishers of the magazines). None of those fac-

tors is present here.

In short, none of the Supreme Court or court of ap-

peals cases on which plaintiffs rely found the antitrust

laws to apply to a totally non-commercial case such as this

one, in which non-profit defendants with no business re-

lationship with plaintiffs engaged in non-commercial

activities for non-business purposes using no economic

tool to achieve their ends.

In fact, of the many cases cited in petitioners’ brief,

only one district court decision, Northeast Women’s

Center, Inc. v. McMonagle, 624 F.Supp. 736 (E.D. Pa. 1985),

even arguably supports their position. But that decision is

contrary to every other case on point and is simply wrong.

As they did in the court below, petitioners fail to men-

tion the subsequent history of the McMonagle case or

inform the Court that the McMonagle court subsequently

expressed significant reservations about its own decision.

In Northeast Women's Center, Inc. v. McMonagle,

670 F.Supp. 1300 (E.D. Pa. 1987), aff'd in part, rev'd in part,

868 F.2d 1342 (3d Cir. 1989), that court directed a verdict

against the plaintiff abortion clinic on the antitrust issue.

en ee

23

Its comments about its earlier decision (the decision on

which petitioners in this case rely) are instructive. It said:

The plaintiff in this case sought to make new law,

pursuing an antitrust recovery through an unortho-

dox application of the Sherman Antitrust Act. Due

to the apparent complexity of the facts-and the im-

precision in the complaint, the court allowed the

plaintiff the benefit of the doubt and permitted the

Center to proceed with its proof. However, the mere

fact that the plaintiff attempts a novel approach does

not afford it special treatment under the antitrust

laws.

Id. at 1305 (emphasis added).

Both the district court and the court of appeals in this

case avoided the same error by refusing to expand the

antitrust laws in such a "new" and "unorthodox" way. In

fact, the McMonagle court's comments suggest that, were

it ‘0 decide the case over again, it would do the same,

dismissing the case at the start rather than directing a ver-

dict at the end of the plaintiff's case.

D. NOW Itself Has Recognized That This Sort Of

Attempt To Expand The Antitrust Law Does

Not Merit This Court's Attention

Although petitioners now urge this Court to issue a

writ of certiorari, when the shoe was on the other foot

NOW recognized that the granting of certiorari in such a

case would be improvident.

In Missouri v. NOW, the State of Missouri sued

NOW, claiming that it had conspired with other organiza-

tions to boycott convention facilities in states which

refused to approve the Equal Rights Amendment. Both

the district court and the court of appeals held that the

antitrust laws did not apply. Missouri petitioned for cer-

24

tiorari and NOW opposed that petition, arguing that the

antitrust laws were not intended to be applied to

“noncommercial organizations" such as NOW and its

co-conspirators, none of which "[sought] any economic

gain" and none of which “were. . . in competition" with

the plaintiff. NOW said:

... 50 far as we are aware, Missouri's lawsuit [and

two related cases}. . . represent the first and it is

hoped the last time in the 90-year history of the

Sherman Act that anyone has attempted to use that

law as a tool to thwart the concerted political activi-

ties of civil rights groups. If similar lawsuits are

attempted in the future, the lower courts are likely to

recognize them for what they are and dispose of

them without the need for any further guidance of

this Court.

NOW's Brief in Opposition to Certiorari at p.5.

The Seventh Circuit and the district court here did

exactly what NOW predicted. They each recognized a

baseless attempt to expand the antitrust laws for what it

was and disposed of it.

In fact, NOW recognized in the Missouri v. NOW case

that this Court has repeatedly construed the Sherman Act

to apply only to “commercial activities." “competitive

business’ enterprises," "business competition,"

“combinations of business and capital organized to sup-

press commercial competition,” "concerted refusals by

traders to deal with other traders" and "combinations

having commercial objectives" (NOW's Brief in Opposi-

tion to Certiorari at p.7). Indeed, the "fundamental error"

of Missouri in that case, NOW argued (NOW's Brief in

Opposition to Certiorari at p.11), was:

its attempt to apply the commercial rules of the free

market system to the political arena. In the com-

25

mercial marketplace, concerted action among busi-

nesses is suspect in view of the free enterprise goals

of the antitrust iaws. Individual businesses are sup-

posed to compete, not collaborate. In the political

arena, the opposite attitude prevails.

NOW's arguments in Missouri v. NOW are well

taken and this Court denied certiorari in that case. The

law has not changed since NOW was on the other side of

the question. Certiorari was not granted when NOW

opposed it in that case and it should not be granted when

NOW petitions for it in this case.

E The Expansion Of The Sherman Act Urged By

Petitioners Would Have Absurd Results

As mentioned above (pp. 19-20), petitioners argue that

all that is required for an antitrust violation is a

conspiracy and economic impact (which, of course, is

included in the requirement of Section 4 of the Clayton

Act (15 U.S.C. §15) that there be an "injury to business or

property” in any event). But this Court has already

rejected that argument. As it stated in Allied Tube: "(T]he

antitrust laws should not regulate political activities

simply because those activities have a commercial

impact." 486 U.S. at 507 (emphasis added).

In any event, such a rule would have absurd results.

Under that rule, the antitrust laws would apply to the

NAACP, Operation PLUSH, NOW, migrant farmers and

numerous churches, colleges, universities and other or-

ganizations and individuals which have been involved in

boycotts of such products as cosmetics, television stations,

Florida citrus products, lettuce, grapes, slacks, textiles and

Russian vodka, as well as to cases in which institutions

have agreed to sell their investments in companies doing

business in South Africa or individuals have agreed not

to patronize convenience stores which sell pornography.

26

In fact, whereas the present case involves non-commer-

cial defendants with no commercial relationship with

plaintiffs who used non-commercial means to accomplish

their non-commercial objectives, in these other situations

the parties (which were generally related as customers,

investors, purchasers, etc.) engaged in economic boycotts

and other concerted economic activities to accomplish

their desired results. See,e.g., Missouri v. NOW, 620 F.2d

at 1302 (antitrust laws not applicable to NOW's boycott of

state convention facilities even though it was

“economically tooled"). Indeed, petitioners themselves

appear to recognize that the logical consequence of their

novel argument would be to force the federal courts to

deal with a host of non-traditional antitrust cases involv-

ing groups such as Earth First! and those organizations

listed above including, paradoxically, NOW itself.

Petitioners also fail to address other consequences of

their position. Focusing on their “good motives” and

“social purposes” straw men, the petitioners purport to be

concerned about turning federal trials into circuses. But

their suggested expansion of the antitrust laws to cover

completely non-commercial events would transform

every federal district court into a pan-state tribunal by

federalizing the tort and criminal laws of all 50 states and

the ordinances of thousands of cities, towns, counties and

villages. In addition to requiring each federal court to

devote its scarce resources to issues of state and local law,

petitioners (who have alleged a conspiracy involving

hundreds of thousands of co-conspirators) demand an

approach which would also expand exponentially the

number of potential federal defendants.

Petitioners’ approach is thus both unsupported by the

law and unworkable in practice. The Court should deny

their Petition.

eS ee —

27

iL The Court Should Deny The Petition Because, Even

If The Antitrust Laws Applied To This Case,

Petitioners Do Not Allege Any Antitrust Injury

As this Court held in Brunswick Corp. v. Pueblo

Bow!O-Mat, Inc., 429 U.S. 477, 489 (1977), an antitrust

plaintiff “must prove antitrust injury, which is to say

injury of the type the antitrust laws were intended to pre-

vent and that flows from that which makes the defen-

dants’ acts unlawful.” Id. at 489 (emphasis in original).

This standard must be met even by plaintiffs, such as

those in this case, who seek injunctive relief under

Section 16 of the Clayton Act. Cargill, Inc. v. Monfort of

Colorado, Inc., 479 U.S. 104 (1986).

Antitrust injury is injury to competition. It is well

established that "[t]he the antitrust laws ... were enacted

for ‘the protection of competition, not competitors."

Brunswick, 429 U.S. at 488 (emphasis in original). Since

petitioners have not alleged a per se violation," it is also

well established that the injury to competition must be

significant; a plaintiff can only prevail if it can show that

an alleged combination or conspiracy “results in a sub-

stantial foreclosure of competition in ... a relevant mar-

ket." Seglin v. Esau, 769 F.2d 1274, 1282 n.9 (7th Cir. 1985);

see also, Tampa Electric Co. v. Nashville Coal Co., 365 U.S.

320, 327-28 (1961); Phil Tolkan Datsun, Inc. v. Greater

Milw. Datsun Dealer's Advertising Ass'n, 672 F.2d 1280,

1289 (7th Cir. 1982) (plaintiff “failed to identify any clear or

significant anticompetitive effects" (emphasis added)).

In this case, petitioners have not even alleged the exis -

tence of relevant geographic or product markets, much

Mt goes without saying that, if petitioners even come close to alleg-

ing any violation of the Sherman Act, it would not be a per se violation.

The per se rule “is not employed until after considerable experience with

the type of challenged restraint.” Broadcast Music, Inc. v. CBS, 441 US.

1, 19 233 (1979),

28

less the substantial foreclosure of competition in such

markets. Nowhere in their Complaint do petitioners

allege that the number of abortion providers in any

geographic area has been reduced or even that fewer

abortions are being performed in any such area.

In any event, the first thing a plaintiff must do to show

injury to competition in a rule of reason case is establish

that the defendants had significant market power. But

petitioners here have not alleged that the defendants

possessed such market power.

In Sutliff, Inc., 727 F.2d at 655, the court affirmed the

dismissal of a complaint noting that it alleged only the

crippling or destruction of competitors in the market:

“The complaint alleges no competitive injury in the

antitrust sense; defines no market; refers to no mar-

ket-wide anticompetitive effects, actual or probable.” The

same is true in this case.’

15See also Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun

Dealers’ Advertising Ass'n, 672 F.2d 1280, 1288 (7th Cir. 1982):

plaintiff's allegations in the instant case, even fortified by all

reasonable inferences that can be drawn from them, do not

establish the sort of anticompetitive injury that the antitrust laws

are designed to remedy. As this court recently stated:

“Tt is not the unfair means which may have been employed by

the defendant that fall within the purview of the Sherman Act.

Rather, the sole question is whether those means lessened

competition. As noted above, unfair competition is still compe-

tition, and will be actionable under the antitrust laws generally

only where a defendant with substantial market power uses the

unfair means to increase its share of the market by eliminating

a competitor, thereby creating the risk of monopoly.

Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 558 (7th Cir.

1980).

Id. at 1288 (emphasis added). See also Ball Memorial Hospital, Inc. v.

Mutual Hospital Ins., Inc., 784 F.2d 1325, 1334-35, reh’g denied, en banc,

788 F.2d 1223 (7th Cir. 1986); Valley Liquors, Inc. v. Renfield Importers,

Ltd., 678 F.2d 742, 745 (7th Cir. 1982).

29

Petitioners try to avoid the market power issue (as well

as most other issues relating to their insufficient allega-

tions), by arguing that economic impact by itself is suffi-

cient to establish an antitrust violation. But, as discussed

above (see pp. 19-20 and 25, supra), this Court has already

rejected that argument. Indeed, a contrary ruling would

transform virtually all joint conduct which has some

economic impact into a violation of the antitrust laws.

But that is simply not a reasonable interpretation of those

laws or this Court's holdings.

Because petitioners do not even come close to alleging

antitrust injury, the decisions of the lower courts were

correct and this Court should deny their Petition.

CONCLUSION

For all of the foregoing reasons, respondents John P.

Ryan and Pro-Life Direct Action League, Inc. respectfully

ask the Court to deny the Petition for Writ of Certiorari, at

least insofar as it relates to the petitioners’ antitrust

claims.

Respectfully submitted,

TIMOTHY BELZ TIMOTHY C. KLENK

Suite 1710 (Counsel of Record)

7777 Bonhomme JEROME K. BOWMAN

St. Louis, MO 63105 KRISTIN E. MICHAELS

314/863-0200 Suite 3200

69 West Washington Street

Chicago, IL 60602-3069

312/214-4200

December 23, 1992