Opposition Brief — Firestone Tire & Rubber Co. v. Cousineau

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Supreme Court, U.S.

FILED

OCT 12 1985

No. 85-482 gesea. F. SPANIOL, JR.

CLERK a

In The :

Supreme Court of the Gnited States

—-—— —

October Term, 1985

-_——

THE FIRESTONE TIRE AND RUBBER COMPANY,

Petitioner,

vs.

THELMA COUSINEAU, Personal Representative

of the Estate of MARK COUSINEAU,

Respondent.

BRIEF IN RESPONSE

TO PETITION FOR CERTIORARI

VANDEVEER, GARZIA, TONKIN, KERR,

HEAPHY, MOORE, SILLS & POLING, P.C.

By: ROBERT D. BRIGNALL

Counsel of Record

JOHN J. LYNCH

333 West Fort Street, Suite 1600

Detroit, Michigan 48226

(313) 961-4880

Counsel for Respondent

Goodyear Tire and Rubber Company

Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226

(313) 962-8745

i

QUESTION PRESENTED

MAY A STATE CONSTITUTIONALLY IMPOSE TORT LIABIL-

ITY ON MEMBERS OF AN INDUSTRY FOR THEIR JOINT

ACTIVITY IN PETITIONING AN AGENCY OF THE UNITED

STATES GOVERNMENT FOR ADOPTION OF A SAFETY

STANDARD?

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

PAGE

Abel v. Eli Lilly & Co., 418 Mich 311; 343 NW2d 164

a re re eee re ee eee ee 2

California Motor Transport Co. v. Trucking Unlimited,

oo re re er ee 3

Eastern Railroad Presidents Conference v. Noerr Motor

Freight, inc., 365 US 127 (1961)... 2. 6 0s a

Havoco of America, Limited v. Hollobow, 702 F2d 643

Sts SE 6 CK 60 5 OOOO eae 3

NAACP v. Claiborne Hardware Co., 458 US 886 (1982) 3

United Mine Workers of America v. Pennington, 381 US

Se cand KS ae ce eee ee 3

Walters v. Sargent, 390 Mich 775; 210 NW2d 315

Pers ee ae ee er ae re 2

No. 85-482

jn The

Supreme Court of the Gnited States

ae

@ctober Term, 1985

comeing Jmanmee {

THE FIRESTONE TIRE AND RUBBER COMPANY,

Petitioner,

vs.

THELMA COUSINEAU, Personal Representative

of the Estate of MARK COUSINEAU,

Respondent.

BRIEF IN RESPGNSE

TO PETITION FOR CERTIORARI

STATEMENT OF THE CASE

Respondent Goodyear Tire and Rubber Company en-

dorses, and adopts herein by reference, the statement of

the case contained in Petitioner’s Petition for Writ of

Certiorari.

SUMMARY OF ARGUMENT

The right of an individual, association of individuals,

or corporation to petition the government for legislative

or administrative action is a preeminent first amendment

privilege. The decision of the Court of Appeals imper-

missibly held that the joint action of several multi-piece

wheel manufacturers in petitioning OSHA for regula-

tions governing safety practices in the servicing of such

wheels could form the basis for an action in tort.

2

ARGUMENT

The Michigan Court of Appeals found that the peti-

tioning activity of certain wheel-makers, defendants in

the case below, could supply the foundation for liability

on a concert of action tort claim. Petitioner cirestone Tire

and Rubber Company has filed a Petition for Writ of

Certiorari, arguing that these petitioning activities were

constitutionally protected and therefore could not be the

subject of a tort claim. Respondent Goodyear Tire and

Rubber Company whole-heartedly endorses Firestone’s

analysis, and wishes to add its support to Firestone’s

Petition for Writ of Certiorari.

In order to state a prima facie case under a concert of

action theory, a plaintiff must demonstrate that the

defendants were jointly engaged in tortious activity as a

result of which the plaintiff was harmed. Abel v. Eli Lilly

& Co., 418 Mich 311, 338; 343 NW2d 164 (1984), citing

Walters v. Sargent, 390 Mich 775; 210 NW2d 315 (1973).

The concert of action doctrine was apparently developed

“to deter hazardous group behavior.” Abel, supra, fn 19.

Given that rationale, it is ironic as well as unfortunate

that a Michigan appellate court should apply a concert

of action theory to constitutionally-protected conduct.

The first amendment right to petition was recognized

as a constraint upon anti-trust actions nearly a quarter

of a century ago in Eastern Railroad Presidents Conference

v. Noerr Motor Freight, Inc., 365 US 127 (1961). In that

case, a group of trucking companies and their trade

association brought suit against a group of railroads, a

railroad association and a public relations firm, alleging

that the railroads had violated the Sherman Act by con-

ducting a publicity campaign “designed to foster the

adoption and retention of laws and law enforcement

practices destructive of the trucking business, to create

3

an atmosphere of distaste for the truckers among the

general public, and to impair the relationships existing

between the truckers and their customers.” 365 US at

129. The Supreme Court held that “the Sherman Act

does not prohibit two or more persons from associating

together in an attempt to persuade the legislature or the

executive to take particular action with respect to a law

that would produce a restraint or a monopoly.” 365 US

at 136. To hold otherwise, the Supreme Court con-

cluded, “would raise important constitutional ques-

tions.” The Supreme Court also recognized a “sham”

exception to its doctrine, noting that application of the

Sherman Act would be justified where activity purpor-

tedly intended to influence governmental action was in

reality nothing more than an attempt to interfere directly

with business relationships of a competitor. 365 US at

144. See also United Mine Workers of America v. Pen-

nington, 381 US 657 (1965).

In California Motor Transport Co. v. Trucking Unlimited,

404 US 508 (1972), the Supreme Court stated explicitly that

the Noerr decision had rested on the constitutionally-

guaranteed right to petition the government.

The so-called Noerr-Pennington doctrine has found

roots outside the anti-trust context. For example, it has

been held that efforts to petition the government do not

give rise to liability for tortious interference with busi-

ness. See, eg, NAACP v. Claiborne Hardware Co., 458 US

886 (1982); Havoco of America, Limited v. Hollobow, 702 F2d

643 (CA 7, 1983). While there may be proper limits to

the reach of the Noerr-Pennington doctrine, it would do

no violence to that doctrine to apply it in the context of

concert of action theory. Indeed, a tort theory intended

to deter hazardous conduct should never be applied to

protected activity.

4

Finally, respondent Cousineau could never make a

case that the petitioning activity engaged in by Fire-

stone, Goodyear, and the other wheel manufacturers

comes within the “sham” exception of the Noerr-

Pennington doctrine. The fact that an OSHA final

standard on servicing multi-piece wheels was in fact

promulgated should quash any such notion. See peti-

tioner’s appendix F. Note further that the wheel-maker’s

petitions were not the only impetus behind formulation

of the standard. OSHA field personnel advocated the

establishment of such a standard prior to the wheel-

maker’s petitioning activities. Id., p 39a.

CONCLUSION

For the reasons set forth above, respondent Goodyear

Tire and Rubber Company urges that the Writ of Cer-

tiorari sought by petitioner be issued.

Respectfully submitted,

VANDEVEER, GARZIA, TONKIN, KERR,

HEAPHY, MOORE, SILLS & POLING, P.C.

By: /s/ ROBERT D. BRIGNALL

Counsel of Record

/s/ JOHN J. LYNCH

333 West Fort Street, Suite 1600

Detroit, Michigan 48226

(313) 961-4880

Attorneys for Respondent

Goodyear Tire and Rubber Company

Dated: October 10, 1985