# Amicus Curiae Brief — Hawaii v. Standard Oil Co. of Cal. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0365%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 251 ## Text ‘StaNDaa On Company OF CALIFORNIA? Union at COMPANY OF CALIFORNIA; SHELL On. ComPAaNy ea _ CHEVRON ASPHALT ghee AY v = ‘ 1) - ~ > . . . rf ~ . j ' , - - . ” - . ‘ - \ 4 , ) : | : | \ e . . . . en: | | | > | | . s -- ~ . . ee aot e ; | ‘ . . a. ry 3 ; . ad . | . | | 2 e . . | | : | . ; : : . . : | . . . s \ .% = b |. . ¢ . . ; 7 | | | | | | | ° te . ~ , . | | . . | ; . a . ’ a . - 3 ‘ | | | - 3 2d . . . : - . . | | | . . ‘ . 7 . | : . | : . ‘ | . | | | . ‘ %. . : | . . . | | a @ =. ‘ . Z ; | ¢ ’ . ; é . | - Y ‘ if ; | . * ‘ : . . is z | 4 = . . e ao Pd . 7 . : . e - * m ; : ; : . ; ; ° e | | ! : a - ° . . ) : | | | er Sar re : f | in ee . Z i . : | ° . . . . : é « | . . bs be | | : : : a | . fi “ ~ e : . : ; 1. é : Page . Attorney General v. Dublin (Mayor of), 1 Bligh : NSS. 312. (1827), 4 Eng. Rep. 888 (1901) ..-....- 15... 7 Bigelow v.. RKO Radio Pictures, 327, US. (252 : (1946). ... img Consumer Goods Are Essential for the Fuk~ fillment of the Enforcement of the Antitrust Laws . x. A. Introduction aN Ambo ania the contention raised by Hawaii that in a conspiracy injuring a large. number of consumers, who will ‘otherwise be unable ‘to present their damage claims, a state has a proper role to sue parens' patriae, ‘Itvis well established that in permitting treble’ dam- age actions the. intent of Congress was to encourage | the private law enforcement of antitrust violations. To the extent that private antitrust enforcement -is thwarted, because of the type of. violation, the. ‘effect of these. _ laws becomes diluted. ° _ The best example of ‘where antitrust violations may occur. without fear of punishment, and reap largé re- ‘turns to. the ‘violators, are those conspiracies which in- jure a large group ‘of consumers: and involve small’ _. purchases. Most. consumers injured by such a conspir- ~ acy wil not recover. either on an. individual or class. igh tion” to policy factors requiring this © , j . . | | | als The Origins and Development of the Common: ‘Law | Doctrine of Parens Patriae Justify Its Application ‘to, Treble anne Actions Involving Conmanse | The origin of the common law Ancacin’ of parens patriae and its subsequent development by the courts ‘indicate that it is an appropriate and idea¥ legal ve- “ hicle to’ use in presenting claims of consumers injured _ by: antitrust violations in consumer markets. oa A. ‘The Doctrine of Parens Pairise Originated in the Authority ~ off the moneaniga't to Represent Persons Who Are Non Sui . Juris afd pales Ia early. English peas a idiots, ‘incompetents and infants were non sui juris. Because the individual incompetent was,anable to: appear in court, the _legal _ doctrine .of pars patriae was developed, This doc- trine provided ‘that . the. sovereign through ‘its attorney — ~~ general ‘could represent: all _persons’ who ‘were non sui juris. See Attorney General v. Dublin (Mayor of), | Bligh N.S. 312 (1827), 4 Eng. Rep. 888 (1901); _¢ | | _ Shaftsbury ( Earl of) vy. Shaftsbury, Gilb, Rep. 12 (1725), 2. Eng. Rep. 121 (1903). 7 Y, The need for such a legal doctrine is clear. The, __ government-eould not permit a situation in Which, for ' example, an incompetent could. have his property con- verted but because he was non sui juris no one could. bring an action in conversion. The law allowed the . sovereign to stand in a representative capacity on bee. half of the person who was non sui juris. ° The crucial elements regarding the origin of parens patriae in relation to the instant case are: (1) it is a — * common law doctrine and therefore subject to expan- _ sion and development by this common law court; (2). "it is an ‘interstitial doctrine designed to fill a gap.in . the law where the need for such gap filling is obvious; amd (3) the state in bringing an action parens_ patriae , was not bringing it to recover for injury done to the - . “state itself. ON B. The Parens Paste Doctine Has Been Apyled t Allon States to Represent Large Masses of Its Citizens - = . In the United States ; the doctrine of parens patriag - - hase been-used by: ‘states, to bring actions. in situations — _ .where the mass of their citizens were injured or threat- ened. In these cases, the action is not brougltt on behalf. of. an individual person who’ is non. sui juris, but is = — brought on behalf of an amorphous: mass of. citizens. Missouri v. Illinois, 180 U,S. 208, 241 (4901); Georgia v. Pennsylyania R. Co.;-324 US. 439, 451 (1945). The requisité element for the state~bringing parens . . " patriae action in these cases was the existence of an», injury to a large number of its citizens. Most of these actions were invariably injunctive in nature. The state - in its capacity as parens patriae would seek. to enjoin some eterious activity, not ‘because it was injuring - - ‘the state in its proprietary Capacity, but because it was | _ injuring or threatening to injure its citizens. These were | " situations in which it. would have been unreasonable and impractical to expect any one citizen to bring. an action because of the magnitude of the problem and because ‘no one citizen’s injury was . markedly different from | that of any other citizen, a . _— Patrise Should Be: Developed to’ Permit the State to Present AH Antitrust Claims Based on Consumer Sales The fundamental issue ptesented™ by the consumer representation aspect _of this. case. is that absent such : representation arr antitrust ‘conspiracy can cause injury _ to_vast“numbers of consumers and damage claims will “not be made for “such ‘injuries. To. this extent, the : present case, is quite analogous to those. cases — ting parens, patriae actions where there has been injury ~ to one who is non sui juris—or to a. large number of Petsons—who are unable to sue on their own ‘behalf. . Th permitting parens patriae by a state. in antitrust cases, as Tepresentative of its consumer citizens, ‘dam- age clain s of consumers who do not otherwise present their ment of the doctrine of parens patriae. D. Parens Patriae Is a Conimon Law Doctrine Peery Sub- ject to Development by the Courts . The. concept. of parens patriae, as a common law — doctrine is properly. subject to development . by the © courts. In describing the need to develop the common - ~ law former Chief Justice Roger Traynor of the Cali- fornia Supreme Court stated: aims can be brought before the court ‘and result - Separating the defendants from their illegally ob- , “tained profits. The idea that a person should have | freedom to injure. others and remain immune from civil actions is abhorrent to any legal. system. Thus,’ * the application of parens patriae actions in consumer - conspiracies is consistent with the Purpose and develop- 2 | Our reésporisibility was ns... to create the . - most vations) rule possible for a novel spusaaiare ; _ almost but not quite covered by a statute.” “Statutes Revolving in Common am Orbits,” “ Cal. BJ. 509, 531-532 (1968). | ° Tt has béen. argued that changes in ‘the law in ‘rela- lis _ tion to parens patriae should be directed ‘to Congress rather than the courts. This is, of course, an argument . made by defendants at all times when attempting to stop developments of the law which they find antitheti- cal to their interest. While Congress may act if it feels it appropriate, the courts nevertheless have the right to — develop the doctrine. The- right of courts to keep the— common law viable. was noted, iby Chief Justice Pi -. Ror stating: iz +6 PP “Confronted with a. moribund rule iets was s pat- - ently awaiting a coup de grace, we noted that the — rule had ‘been. judicially created in the first place © and hence it would be inappropriate to await its. ~° undoing by the. Legislature. ‘In effect the conten- tion is a request that courts abdicate their respon- . ibjlity. for the upkeep of the common law. That . ‘upkeep it needs continuously, as this case: dam- - -onstrates.’” “Statutes Revolving in Common, Law . _ Orbits,” supra, at 524... ~ 2 . > “The Bringing of Paréus Patriae Actions Is 2 Function _-@£ the Sovereign but They Are Not Necessarily Brought on Behalf of the Sovereign : The right of a state . to sue as parens patriae has* created a great deal of. confusion, both conceptual ‘and * semantic, The confusion is, however, susceptible to res-- olution upon a- -careful analysis of the cases and con- — ve atest involved. : | 6 » © a “'y’ | ; injury has been suffered by the State, qua Statej*and - any. damages recovered: are to be retained by the State. ” The requisites for a state filing an action. ‘parens: . patriae are not \the santé as. thase required for. a state ‘suing ins as@quasi-sovercign capacity. The belief that a state must have an interest independent of and behind the title .of its citizens applies only when the suit con- -s@erns quasi-sovereign interests. To sue in a parens pa- ° triae capacity, however, there need not be any injury _ to. the state itself and the need for injury to’ “business or property” under Section 4 of the Clayton Act is satis- fied if such injury has occurred to those who are rep. 7 resented i in the perete patriae ation. “Sal —_— -- A. Suits in a° east Soverdign C Capacity G >A A state can bring an antitrust action in ‘its. sover- “eign capacity to récover @r injuries ‘suffered as a "sovereign. Georgia v. Evans, 316 U.S. 159 (1942). In such a situation, the state is comparable to a citi- zen suing to ‘recover for injuries to the citizen caused . by an antitrust conspiracy. The instant, case is, in part, Such an action. Hawaii has sued to recover damages. for . injury in its. proprietary . capacity resulting from price’ fixing on gasoline purchased for use in state cars. The The quasi-sovereign capacity of ,a state ‘is less clear. The concept: is specifically: mentioned. in Georgia. Ve _ Tennessee. Copper Co. 1-206 U.S. 230 (1907), where Georgia. sued to enjoin” ‘the emission of” noxious gases which “were emitted by a company in. a neighboring. ‘State. and ‘wege carried into ‘Georgia. J ustice Holmes stated: : ae PEAY “The case has been. argued largely. ou it ‘were’ one betwéen two private parties; but if is not. The very elements tigat would be relied upon ‘in a suit Aes i, OF ge . . , , \. ) \ 99 «. between fellow-citizens .as . ground for equitable. relief are wanting here. - The State owns very little of the territory alleged to be affected, and the dam- * ) age to it’ capable of estimate in money, possibly, ‘at ‘least, is small. This is a suit. by a. State for an injury to. ‘it in its capacity of quasi-sovereign. In that capacity the State has an interest independent " of and behind the titles of its citizens, in all the | . earth: and air within its.domain. It has the dast ‘word as to whether its mountains shall be stripped of. their forests and, its inhabitants shall breathe pure air. It might have to pay ‘individuals before it could. utter that: word, but with it remains the © final power. “The alleged damage to the State as a private owner is merely a makeweight, and we may lay gh: one side the dispute as to whether the destruction: of. forests has led to ‘the gullying . "of its roads.” 206 U.S. at 237. . 3 While a state can bring an action in its a city as sovereign for injury to property owned by the state, in Tennessee Copper it was not injury to, - state’s prop- erty that was the basis of the action. But, “. . . the State has ‘an interest independent of ahd behind the titles - @ of its citizens. .. . dt tras the last word as to whether : its: mountains shall be stri of their forests ... It might Rave to pay individuals before it could utter that - word, but with it remains the final power.” Quasi-sov- | ereignty is then, at least in part, the residual interest of . the state’ in all-the real ‘property ‘within the state. As . ‘ peas Justice Holmes notes, the state “has. the’ last word” ré- . garding usage of property within the state. “It might ty ‘their own behalf. yy a er i have to pay” (i.e., ‘condemn the property) bat. it ™ _ the last word. Thus, under Tennessee. Copper a state may sue in a : quasi-sovereign capacity to.protect its residual interests. Of particular importance in this decision is the fact that it was’ the state interest that was being protected - by the. state. The state was not suing to Protect ‘the . property of individuals even though it may have been — a necessary incidental effect of the guit. Since the’ state was suing to protect its own interest in property, it necessarily had to have an interest to protect—thus | - the statement “a State has. an interest independent of . - and behind the title of its citizens.” Q _ Suits by a State Parens Patriae In evaluating. the requisites: of a parens patriae suit the nature of a quasi-sovereign suit must “be dis- tinguished. Acting as parens patriae is one. of the func- tions of sovereignty, but>in suing as parens patriae 2 state does not specessarily sue to recover damages for injuries suffered by the state. Rather, the | ‘state sues parens patriae as a representative of persons who have . been wrongfully injured but cannot realistically sue on Thus, there is. no need for a state suing parens patriae to have an interest independent’ of and behind the title of its citizens. In Georgia v. Pennsylvania R. Co., 324 U.S. 439 €1945), this Court, first directing its attention to. whether | ‘Georgia. could sue pareny __ patride under the antitrust laws determined that it could ¢ ae bring such ‘an action. because the civil’ remedies were’ not intended to restrict states to protecting only their proprietary integests.. In holding hat .a state could sue ~~ parens patriae this Court properly made no reference . ‘ S? - .. to the requisite that a state have an interest independent of and behind the title of its citizens.” | 4 The - state in suing. as parens patriae’ acts as a ; “trustee, guardian or representative of all her citizens.”: Louisiana .v. Pexas, 176 U.S. 1, 19 (1900): Acting — in this capacity, itis no more ‘necessary that the state have suffered an injury than it is necessary that a guard- |. lan be personally injured before he can sue on behalf of his-ward. 7 ~F ee This fact is important in applying the requirement of Section 4 of.the.Clayton Act that a plaintiff be in- jured in his business or property. Since the state is suing on behalf of persons who will not be filing their own claims, the court should look to the represented parties to see if they have been injured in. their business or property. Where a state is suing parens patriae to recover for: over-charges to. a consumer class, there can be no doubt that there was injury to the “bilsiness “or property” of those consumers. 51t was only when this Court directed its attention to the. issue of original jurisdiction that reference was made to the need of a _ state having an interest independent of and behind the title of ‘its - citizens as this relates to the issue of standing to bring an original jurisdiction action. Cases often cited for the proposition that _ ‘a stale cannot sue parens patriae without an independent interest ‘ do not deal with the traditional concept of parens patriae as evolved from the common law. £.g., Oklahoma v. Cook, 304. U.S. 387 (1938); N.Y. v. Louisiana, 108 U.S. 76 (1883). = a Vv. The Parens Patriae Doctrine ‘in Recovering for Con- sumer Claims Is Best Used. in seiacenik With a Rule 23 Class Action ! A parens ‘patriae action for consumers is -most ef-. ficient when used in conjunction with a class action. _ - State Protection, of its Ecouemy and Environment: Pa- rens Patriae Suits for Damages, 6, Columbia Journal of Law and Social Problems, 411, 430-431 (1970). ‘Under this approach, a class actioh would be established on behalf of all consumers who had purchased the goods in question during the alleged conspiracy period. Normal class action procedures would be followed . whereby notice would be given to members of the class, the .method of notice depending on the facts’of each case. Those persons who do not -elect to be’ excluded from: the class would be bound by the. judgment. Those persons who elect to be excluded would not be bound by the judgment and. would. ‘be free to pursue = ae own remedies. . In the trial of the Ese action, . ‘the class Tepresente- . tive would be. allowed to prove total sales of the con- sumer good in question, within the state. Damages would then be assessed against defendants on the basis of applying the percentage overcharge to the total sales ‘to determine single damages. Trebling the single dam- ages thus ascertained would establish the measure of total darhages to be paid by defendants. The fund thus created would be used for two | primary purposes. First, to. finance a program to bring forth ®Such a procedure has approved by the Honorable Miles ' W. Lord. in the currently \pending broad spectrum antibiotic © cases. In re Coordinated trial Proceedings in Antibiotic Antitrust Actions, M 19-93A, . . - : - & q - ™~ ey) the maximum number of public class members to make Claims against the fund. One method of doing so could be by means of mass media advertising. Secondly, to pay damages to class members who. appear and file claims as. required by the Court. . The unclaimed re- . | meindce would be disposed of pursuant to order of the — The program described above is desirable as it ac- complishes the goals of the antitrust laws. It achieves ‘the intent of. private enforcement actions, separates the defendants from their illegal profits and returns the — unlawful overcharges to as many consumers as possible. ~ - Conclusion - , ‘Based upon the foregoing reasons amicus submits that the’ judgment of the Court of Appeals should be re- versed and the case remanded-to the District Court with directions to proceed to trial on Count Two of _ . *¢ Hawaii’s complaint. - - « . ° . a cad t . e ‘ . . . > ~ ! . . - ° ’ . . , : ’ . ¥ . ied . 3 P * en . . . F . : —— - 2 : ——_—_—— ‘ : -: : % : 7 , . ° . 7 id . ° , . ¢ a e & > --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0365%3A06. Public record. Not legal advice.