Reply Brief — Washington v. General Motors Corp.

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IN THE NOV 2 19%

‘Supreme Court of the United RBH Se, aon

October Term 1970 “

No. 45 Original

STATE OF WASHINGTON, STATE OF ILLINOIs,

STATE OF ARIZONA, STATE OF COLORADO,

STATE OF HAwau, STATE OF Iowa, STATE OF KANSAS,

STATE OF MAINE, CoMMONWEALTE OF MASSACHUSETTs,

STATE OF MINNESOTA, STATE OF Missouri,

STATE OF OnI0, STATE OF RHODE ISLAND, —

STATE OF VERMONT, AND COMMONWEALTH OF VIRGINIA,

Plaintiffs,

Vv.

GENERAL Motors CorPORATION,

a Delaware corporation;

Forp Mctor Company,

a Delaware corporation,

CHRYSLER CORPORATION,

a Delaware corporation,

AMERICAN Motors CorPORATION,

a Maryland corporation, and ~

AUTOMOBILE MANUFACTURERS ASSOCIATION,

a New York corporation,

Defendants

PLAINTIFFS’ REPLY BRIEF IN SUPPORT

OF MOTION FOR LEAVE TO FILE COMPLAINT

Counsel of Record:

Post Office Addresses: Frepric C. TAUSEND

yi Special Assistant

$57 Colman Building Attorney General,

Seattle, Washington 98104 State of Washington

; WrtiaM L. Dwyer

Special Assistant

| Hoge Building Attorney General,

Seattle, Washington 98104 State of Washington

Rosest S. ATKINS

Assistant Attorney

188 West Randolph General,

Chicago, Illinois 1 State of Illinois

SRAFTSMAN-MET PRESS : a

i

SUBJECT INDEX

es wiinolion Penannasiien-enucicduaseeysesdessvenstauevesucevesesnusenssssaseasanseteees 1

L There Is No Suitable Alternative Forum to Which

This Case Could Be Remitted in the Interests of

Convenience, Efficiency and Justice ......................0-+: 2

A. There Is No Suitable Alternative Forum in

Respect to Count [ounce eeeeceeeceeeeeeeeeeeeee 4

B. There Is No Suitable. Alternative Forum in

Respect to Count TID -ouw....es eee eect 8

(1) A Federal District Court could in its

discretion decline pendent jurisdiction 8

(2). Plaintiff States have a right to a fed-

eral forum in respect to Count III...... 10

(3) Even if plaintiff States were not en-

titled to a national tribunal for Count

III, no single state court could adjudi-

cate Count TIT uw... 12

C. No Other Forum Can Expedite This Case as

Efficiently .0.................:cssceeeesecceseecectesesceceeseeeesees 12

II. This Court Is Not Precluded From Proceeding in

This Case Because of Concurrent Legislative or Ad-

ministrative Activity ...0.........c....ccceseceeceeeeeeeeeseeeeeeeeeee 14

© Comchusion. .............2...ssssssscecessecesseeseecesseeenceeseceeeeeeeeneeeeeesees 17

Appendices:

Foc) a a ee ee ee A-1

Appendix 2 oun... ececececccccesscecscscseccentececscccaesensnesessesenese A-6

TABLES OF AUTHORITY

Table of Cases

| Arctic Maid v. Territory of Alaska,

| 997 F.2d 28 (Oth Cir., 1961) ...eccccccccsssscccsecesseeseeesee 11

Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (1804) 10

Engle v. Scott, 57 Ariz. 383, 114 P.2d 236 (1941)........ 12

Georgia v. Pennsylvania R. Co., ss

324 U.S. us. at O45) ete ee 3, 4, 10

Hawaii v. Standard Oil Co., |

No. 24,603 (9 Cir., Sept. "25, 1970) . scgpenielnineiaaees 6

Hymer v. Chai, 407 F.2d 136 (9th Cir., 1969) .............. )

Krisel v. Duran, 386 F.2d 179 (2d Cir., 1967),

cert. denied, 390 U.S. 1042 (1968) 0.2... ll

Ladew v. Tennessee Copper Co., 179 Fed. 245

(C.C.D., Tenn. ), aff'd 218 U.S. 357 (1910) ............. 12

Louisville & Nashville R. R. v. Mottley,

211 U.S. 149 (1908) 1s sesigeenerecon cnet iaecienteee 10

_ Mississippi and M.R. Co. v. Ward,

67 U.S. (2 Black) 485 (1862) 00... 1

People v. City of St. Louis, 10 Ill. 351 (1848) .............. 12

People ex rel. Cunningham v. Lewis, .

43 Ul. App2d 295, 193 N.E.2d 473 (1963 ).eee ene 12

State v. Reynolds, |

113 Ohio App. 469, 178 N.E. 2d 842 (1960)........... -- 12

United Mine Workers v. Gibbs, 383 U.S. 715. (1966)....8, 9

Williams v. United States,

405 F.2d 951 (9th Cir.; 1969) ooo 4g

Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888) ...... ll

Constitutional Provisions

United States Constitution, Article III, Section 2......10, 12

Statutes

Air Quality Act, 1967 ...cccccsscccssccessessssstsnecsseseeenieee 15

Baldwin’s Ohio Revised Code Ann.,

Ch. 3707.01, 3707.51 ono. eecececteeccececceeeceeeceeeceeoees 12

Clayton Act, Section 16 ..ecccccssssssssoccccsessssssssssessseeeesee 9

Kansas Statutes Ann., 1964 §60-908 .............. 12

National Emission Standards Act, 1965 . 15

ee tie eae a Tasks Meee

EOE I, OE EGGERS BOTT SL AN HAI trae CREE Py tay

Sherman ACt oscsccscsecsctcsennenen 2, 10

28 U.S.C. §1292(b) ............... 6

98 U.S.C. §1407 ..... Bee aa 4

T.18 Vermont Statutes Ann., §610 . ... 12

West Virginia Code, §20-5A-17 ...... 12

Annotations & Textbooks

7 A.LR.2d 473 (1949) reescesceecesesensee | 12

Hart and Wechsler, The Federal Courts and

The Federal System, 23-24 (1953) ll

68 Mich. L. Rev. 1083 . e : . 15

11 Stan. L. Rev., 665, N. 131 (1966) 00... .1l

Other Authority

Federal Rules of Civil Procedure, Rule 12(h)(3)........ 10

damilton, Federalist, No. 80 ...........----.-ssccssceneeseeesoeeeoes: ll

Report of the Committee on Public Works of the

United States Senate on the National Air Quality

Standards Act of 1970 . 13-14

———

IN THE

Supreme Court of the United States

October Term 1970

No. 45 Original

; STATE OF WASHINGTON, STATE OF ILLINOIS,

STATE OF ARIZONA, STATE OF COLORADO,

STATE OF HAwau, STATE OF Iowa, STATE OF Kansas,

STATE OF MAINE, COMMONWEALTH OF MASSACHUSETTS,

STATE OF MINNESOTA, STATE OF MIssouRI,

STATE OF On10, STATE OF RHODE ISLAND,

STATE OF VERMONT, AND COMMONWEALTH OF VIRGINIA,

Plaintiffs, —

v.

GENERAL Morors CorRPORATION,

a Delaware corporation,

Forp Motor CoMPaAny,

a Delaware corporation,

CHRYSLER CORPORATION,

; a Delaware corporation,

AMERICAN Motors RATION,

a Maryland corporation, and

AUTOMOBILE MANUFACTURERS ASSOCIATION,

) a New York corporation,

Defendants.

PLAINTIFFS’ REPLY BRIEF IN SUPPORT

' OF MOTION FOR LEAVE TO FILE COMPLAINT

_ INTRODUCTION

The issues before this Court are narrow. Defendants do

not dispute the right of the seventeen plaintiff States! to

bring action as parens patriae of their citizens and as

1. Since the complaint was filed two additional states, North Dakota

and West Virginia, have filed motions for leave to join as additional

parties plaintiff, making a present total of seventeen plaintiff States.

wy ag A ore

, a

proprietors, nor do the defendants contend that the States

have failed to state a case which comes within this Court’s

original jurisdiction. Defendants simply urge this Court to

withhold the, exercise of its jurisdiction because, defend-

ants assert, plaintiffs have a suitable alternative forum or

forums in other courts (Def. Br. 2, 11-20). Defendants

further challenge the need for and the appropriateness of

the relief sought by plaintiff States on the ground that

other branches of the Federal Government (specifically

the Congréss and the Executive) are presently regulating

motor vehicle emissions which cause air pollution (Def.

Br. 2, 4, 20-24). Accordingly this reply brief will be limited

to those two points.

I. There Is No Suitable Alternative Forum to Which

This Case Could Be Reniitted in the Interests of

Convenience, Efficiency and Justice

Defendants urge this Court to withhold the exercise of

its jurisdiction in this case on the ground that there is no

want of other suitable forums (Def. Br. 11). Yet de.

fendants are unable to indicate any one alternative forum

which they can say with certainty will adjudicate this case

on all three counts. Unless a single federal district court

agreed in its discretion to hear Count III on the basis of

pendent jurisdiction, see infra at pp. 8-10, defendants’

proposed alternative would split this case, with Count I

(and probably Count II®) tried in a single federal district

2. Count II differs from Count I only in that it alleges that the

t facts constitute a violation of the common law against re-

straints of trade as distinguished from the Sherman Act. It was included

as a safeguard against an argument, previously made by these defend-

ants in the multidistrict cases, that the power of a federal court to grant

equitable relief pursuant to Section 16 of the Clayton Act is less broad

than the general equity powers of such a court.

PRN ONY SN LOIN I aI Jee Me HEP I RR SRT OK ee ee ‘ Se ee ee

tt le tt i hes a

3

court and Count III tried as seventeen separate nuisance

actions in the state courts of the seventeen plaintiff States

(Def. Br. 11).

Such a result is not in the interest of convenience,

efficiency or justice, and is not what this Court intended

when referring to those standards it exercised its original

jurisdiction in Georgia v. Pennsylvania R. Co., 324 U.S.

439 (1945).

To the contrary, the action taken by this Court in

Georgia v. Pennsylvania R. Co., supra, together with the

clear language of the majority opinion show that this Court

will not strain reality to avoid the exercise of its original

jurisdiction in cases where a State has stated a cause of

action against citizens of another State and is otherwise

properly before this Court.

Recognizing the original jurisdiction of this Court as

“one of the mighty instruments which the framers of the

Constitution provided so that adequate machinery might

be available for the peaceful settlement of disputes be-

tween states and between a state and citizens of another

state,” 324 U.S. at 450, the court stated:

.. . Once a state makes out a case which comes

within our original jurisdiction, its right to come here

is established. There is no requirement in the Consti-

tution that it go further and show that no other forum

is available to it. 324 U.S. at 466

The defendants urge that in the Georgia case, “the court

left.little doubt that if plaintiffs could have obtained juris-

diction over the defendants in a single district, a denial of

leave to file would have been ‘wholly appropriate’” (Def.

Br. 12). But the language on which defendants rely to

support their argument is extracted from the dissent, not

— mo

4

from the opinion of the Court (Def. Br. 12, 14-15). More-

over, the point made by Chief Justice Stone in his dissent,

7 324 U.S. at 471-472 (that facts of which the Court could. |

- take judicial notice showed that there was no want of a

suitable forum in which Georgia could ‘reach the same

number of defendants as she could sue in the Supreme

Court ), demonstrates that in appropriate cases this Court |

will exercise its original jurisdiction without an exhaustive

search for suitable alternative forums.

ee

A, There Is No Suitable Alternative Forum in Respect)

to Count I.

In suggesting that Count I could be filed by agreement )

of the seventeen plaintiff States in a single federal district

court, defendants have overlooked the problems presented

by pending anti-trust litigation involving Multidistrict Ve-

hicle Air Pollution Control Equipment, problems clearly

perceived by Judge Manuel L. Real, the United States

District Judge to whom the multidistrict private civil

treble damage anti-trust litigation involving motor vehicle

air pollution control equipment MDL District No. 31 has

been assigned pursuant to 28 U.S.C., §1407. As stated by

the defendants, in addition to the instant case, there are

presently pending a series of seventeen private anti-trust

suits filed in district courts in Illinois, California, Pennsyl- |

vania, New York, Wisconsin and Minnesota. If Count I

of this lawsuit were filed in a federal district court, it

would be consolidated for pre-trial proceedings. before

Judge Real, and be simply the eighteenth private case so)

filed.

In his memorandum order dated September 4, 1970 '

~~

——

~—

5

(Re Motion to Dismiss )* Judge Real expressly recognized

that “The function of the judge assigned cases pursuant

to Title 28, United States Code, Section 1407, is to co-

ordinate pre-trial proceedings with the view of returning

“cases to the transferor judge in condition to be tried

expeditiously to the benefit of all parties to the litigation”

(Memo Order p. 4). (Emphasis supplied ).

Thus, as Judge Real states and as plaintiffs have pointed

out in their opening brief, there is presently no existing

mechanism in our judicial system for the unified trial of

the factual issues presented by the pending multidistrict

cases.

In another memorandum order, also dated September

4, 1970, (Re Class Actions) Judge Real stated in respect

to the cornerstone issue of conspiracy:

. certainly the question of conspiracy is one which,

as ; alleged erein, is common not only to the class

within each separate action but also to all of the ac-

tions filed. This is an issue which should, in the

interests of a need be litigated only once. Memo-

randum Order (Re Class Actions, p. 4). |

But how, other than by this Court exercising its original

jurisdiction, can this be accomplished? Even the defend-

ants concede that if this Court does exercise its original

jurisdiction in this case, “a decision by this Court would,

as a practical matter, be controlling throughout the na-

tion” (Def. Br. 19). The issue of conspiracy alleged in

Counts I and II of the complaint is the same conspiracy

alleged in the seventeen pending separate private treble

damage actions. The appropriateness and feasibility of -

*The Memorandum Orders of Judge Real referred to in this brief are

printed as appendices.

=

6

equitable relief sought in this case is similarly an issue in

sixteen of the other seventeen cases. These are the factual

and legal issues on whose determination the outcome of

all this litigation turns. They are the time consuming issues,

the issues of universal national significance. The remaining

questions of impact in individual states and communities

and the measure of monetary damages, if any, are ones

which may well in the interests of efficiency be tried

separate from the principal factual and legal issues in

any event.?

If this Court views the instant case in isolation rather

than in the context of pending motor vehicle pollution

control litigation, and if it separates Counts I and II

from Count III, neither of which should be done, it could

perhaps be argued, as defendants have attempted to do,

that, in balance, convenience, efficiency and justice could

be better served if plaintiffs were to file Counts I and II

of this action in a single federal district court. However,

such an argument ignores the pendency of other similar

cases in various federal districts. When those other cases.

are taken into consideration, it is apparent that, in balance,

a trial in this Court before a master is better adapted to a

final resolution of the issues presented than those of a

single district court which would have no binding effect

upon other pending cases. Moreover, in light of the motion

which these defendants filed on October 15, 1970 in the

multidistrict litigation for reconsideration of Judge Real's

order denying their motion to dismiss or in the alternative

to certify for interlocutory appeal under 28 U.S.C. 1292(b),

3. Furthermore, the recent decision of the United States Court of

Appeals for the Ninth Circuit in Hawaii v. Standard Oil Co., No. 24,603

(9 Cir. Sept. 25, 1970) may make the parens patriae claims for mone-

tary damages moot.

ah ae le e

Whine SEE RRA EEE TOO TEN ~—

E

7

their argument that “trial under such a procedure might

be slower, since this Court might have to rule on inter-

locutory matters which would no! ordinarily be presented

to an appellate body” (Def. Br. 17) has a hollow ring. It

is apparent that whether these cases are litigated in the

district courts or in this Court, interlocutory review and

certiorari are going to be the rule, not the exception.

Certainly the standards of convenience, efficiency and

justice apply not only to the individual parties to the par-

ticular cases before this Court but more broadly io ‘he

resolution of the issues presented by that case. As Judge

Real has pointed out, the overreaching factual question of

conspiracy is an issue which should be litigated only once

in the interests of justice. Yet, unless this Court exercises its

original jurisdiction in this case or unless all the parties in

existing multidistrict cases agree to be bound by the find-

ings of fact or jury verdict in the first case to be tried,

that issue will be tried a number of times.

Neither res judicata nor collateral estoppel would apply

to a State or other plaintiff not a party to the action which

was actually tried. Moreover, rulings on questions of law

and admissibility of evidence rendered by a federal district

trial judge would in no way be controlling on the parties

in other pending cases. However, not only would a trial

of the conspiracy issue in this Court be controlling

throughout the nation as a practical matter but all rulings

on questions of law including admissibility of evidence

would be legally binding. Defendants urge that such a

result “would be true in any kind of case the Court might

be willing to hear originally” but the need for such a

result in the interests of efficiency and justice is unlikely to

arise frequently. |

8

If, contrary to expectation, similar cases do arise in the

future, Congress can act to provide at a lower court level

the type of judicial mechanism which today only this

Court’s original jurisdiction can afford. At the present time

in the interests of convenience, efficiency and justice there

is no suitable alternative forum for the resolution of the

issues raised by Count I alone, a fortiori by the case in

its entirety.

B. There Is No Suitable Alternative Forum in Respect

to Count III.

(1) A Federal District Court could in its discretion

decline pendent jurisdiction

Defendants state that “if the nuisance and anti-trust

claims are found to be derived ‘from # common nucleus

of operative fact’ (United Mine Workers v. Gibbs, 383

U.S. at 725), a federal court having jurisdiction over the

anti-trust charges could also have pendent jurisdiction

over the nuisance claim” (Def. Br. 13). Defendants right-

fully hedge by using the word “if.” They do not know

whether a federal court in the future would find such a

common nucleus or, even then if it would in its discretion

exercise pendent jurisdiction. Defendants do not attempt

to demonstrate that there is such a common nucleus under

the United Mine Workers v. Gibbs, 383 U.S. 715 (1966),

test.

It should be clear to defendants, as it is to this Court,

that the principles which permit and encourage joinder

of claims where a court has jurisdiction of all claims joined,

are totally different from the principle enunciated in

United Mine Workers v. Gibbs, supra, which enables a

court in its discretion to exercise jurisdiction which it does

not independently possess.

Hei PN I Re RD SRNL Scope ern IM NMR ERE RRt C a

9

Even if a persuasive argument could be made that

Counts I and III have the required common nucleus of

operative fact, something the defendants never demon-

strate, defendants’ pendent jurisdiction argument facilely

_ overlooks the fact that the federal judicial doctrine of

pendent jurisdiction is one of discretion and that accord-

| ingly, pendent jurisdiction may be declined by a federal

court, even in a case which might be appropriate for the

! exercise of such pendent jurisdiction. United Mine Workers

v. Gibbs, 383 U.S. 715 at 726 (1966).

If the present plaintiffs were to file this suit in a federal

district court, it would be transferred to the Central Dist-

rict of California and consolidated for discovery purposes

with the presently pending Multidistrict Vehicle Air Pollu-

tion Control Equipment litigation. Thus preliminary ques-

tions on pendent jurisdiction would be considered by the

| California District Court, and on appeal by the United

(| States Court of Appeals for the Ninth Circuit. The Ninth

Circuit, in particular, has taken a narrow view of the

scope of pendent jurisdiction and has refused to exercise

such jurisdiction in a number of cases. See, e.g., Hymer v.

Chai, 407 F.2d 136 (9th Cir. 1969); Williams wv. United

States, 405 F.2d 951 (9th Cir. 1969). —

What the defendants are really doing is asking this Court

to predict that some federal court in the future would

exercise pendent jurisdiction over Count III. Such a peti-

tion is not equivalent to finding a suitable alternative

forum. |

Finally, it should be noted that while defendants now

suggest that federal pendent jurisdiction as to the nuisance

claim exists, their suggestion in no way binds them or af-

ee

10

fects any later decision on this issue, should there be one,

by a federal court. It is unlikely that defendants would seek

to agree to such pendent jurisdicticn if and when the time

for decision should arise, but even if they would, such an

agreement would be without meaning. Parties cannot

stipulate to the subject matter jurisdiction of a federal

court. See, e.g., Fep. R. Civ. P. 12(h)(3); Louisville &

Nashville R.R. v. Mottley, 211 U.S. 149 (1908); Capron v.

Van Noorden, 6 U.S. (2 Cranch) 126 (1804).

Clearly, if a federal court does not exercise pendent juris-

diction over Count III, there is no other single forum

where this suit can be brought.4 Surely where this Court

refused to remit the State of Georgia to a federal district .

court despite the facts pointed out by Chief Justice Stone

in his dissent, Georgia v. Pennsylvania R. Co., 324 U.S.

at 471-472, it should not remit the seventeen States who

are plaintiffs herein to a federal district court on the mere

hope that that federal district court would in its discretion

accept jurisdiction of the entire case.

(2) Plaintiff States have a right to a federal forum in

respect to Count III .

Defendants apparently admit that unless a district court

exercises pendent jurisdiction over Count III, plaintiff

States would not have an alternative. federal forum for

Count III. But defendants are fundamentally wrong in

stating that plaintiffs’ argument that they are entitled to a

federal forum is a “novel suggestion.” (Def. Br. 14).

To the contrary one of the specific purposes of Article

III, Section 2 of the Constitution was to furnish a national

4, Just as no other federal court has independent jurisdiction over

Count III, so no state court has jurisdiction over Count I, the Sherman

Act claim.

-

a

ll

tribunal to states suing. citizens of another state. As the

court stated in Wisconsin v. Pelican Ins. Co., 127 U.S.

965, 289 (1888): .

As to “controversies between a State and citizens

of another State.” The object of vesting in the courts

of the United States jurisdiction of suits by one State

against the citizens of another was to enable such

controversies to be determined by a national tribunal,

and thereby to avoid the partiality, or suspicion of ~

partiality, which might exist if the plaintiff State were

compelled to resort to the courts of the State of

which the defendants were citizens. Federalist, No.

80; Chief Justice Jay, in Chisholm v. Georgia, 2 Dall.

419, 475; Story on the Constitution, §§1638, 1682.

In Federalist, No. 80, Alexander Hamilton stated:

. . . the national judiciary ought to preside in all

cases in which one State or its citizens are opposed to

another State or its citizens. To secure the Full effect

of so fundamental a provision against all evasion

and subterfuge, it is necessary that its construction

should be committed ‘to that tribunal which, havin

no local attachments, will be likely to be iceaitia!

between the different States and their citizens, and

which, owing its official existence to the Union, will

never be likely to feel any bias inauspicious to the

principles on which it is founded.

See also Hart and Wechsler, The Federal Courts and

The Federal System, 23-24 (1953); Comment, The Origi-

nal Jurisdiction of The United States Supreme Court, 11

Stan. L. Rev., 665 at 684, N. 131 (1966).

Since a State is not a citizen for diversity purposes,

Arctic Maid v. Territory of Alaska, 297 F.2d 28 (9th Cir.

1961); Krisel v. Duran, 386 F.2d 179 (2d Cir. 1967),

cert. denied, 390 U.S. 1042 (1968), the original jurisdiction

of this court is the only federal forum available to plaintiffs

in respect to Count III. |

OLE IOLA AE Sc th tant ices Catt eee aes a ein NS (a Se a EEE Ge ate Sea Tt te oe

PRT e ose eATT s z . y SN AVNER

RRS ‘ ae

(3) Even if plaintiff States were not entitled to

‘ mational tribunal for Count III, no single state

court could adjudicate Count III

Count III states a claim against the defendants for

creating and maintaining a public nuisance. In state courts,

nuisance actions are generally treated as local actions

which must be brought in the district where the nuisance

is to be abated. See, e.g., Ladew v. Tennessee Copper

Co., 179 Fed. 245 (C.C.D. Tenn), aff'd 218 U.S. 357

(1910); Engle v. Scott, 57 Ariz. 383, 114 P.2d 236 (1941);

Mississippi and M.R. Co. v. Ward, 67 U.S. (2 Black) 485

(1862); State v. Reynolds, 113 Ohio App. 469, 178 N.E.2d

842 (1960); People v. City of St. Louis, 10 Ill, 351 (1848);

People ex rel. Cunningham v. Lewis, 43 Ill. App. 2d 295,

193 N.E.2d 473 (1963). Annotation, Venue of Suit to En-

join Nuisance, 7 A.L.R.2d 473 (1949).

A number of the plaintiff States have statutes to the

same effect. See, e.g., Kansas Statutes Ann. 1964, §60-908:

West Virginia Code, §20-5A-17; Baldwin’s Ohio Revised

Code Ann., Ch. 3707.01, 3707.51; T.18 Vermont Statutes

Ann., §610.

If Count III would have to be brought in seventeen

different state courts by each of the seventeen plaintiff

States, then it cannot be said that there is a suitable al-

ternative forum, even in state court.5

C. No Other Forum Can Expedite This Case As

Efficiently.

The defendants make no answer to the compelling con-

5. Possibly all seventeen plaintiff States could sue to enjoin the alleged

ae the home state of the defendants.

.

:

. 13

sideration of time in this case. In view of their cscision to

seek interlocutory appeal, it is clear that bypassing the

Court of Appeals will save considerable time as this case

) progresses. |

. The need for prompt relief, if plaintiffs can prove their

case, has been made even more apparent by recent findings

set forth in the Report of the Committee on Public Works

of the United States Senate on the National Air Quality

Standards Act of 1970, dated September 17, 1970.

The report states:

Based on data contained in air quality criteria

documents ulready issued (for carbon monoxide and

photochemical oxidants) or in preparation (for ni-

trogen oxides) and on requirements for — of

safety, it has been concluded that the following

ambient. air quality levels must be attained to insure

protection of public health:

Carbon monoxide, 9 ppm/8-hour average.

Photochemical oxidants, 0.06 ppm/1-hour aver-

oo 2 ;

Nitrogen dioxide, 0.10 ppm/1-hour average.

It then lists the following statistics showing present

maximum ambient air levels related to direct health effects.

Carbon monoxide: 44 parts per million/8-hour aver-

age, Chicago.

Nitrogen dioxide: 0.69 parts per million/1-hour av-

erage, Los Angeles.

Maximum Ambient Air Levels of Oxidant Precursors

Hydrocarbons: 5.3 parts per million/6 to 9 a.m.

average, Los Angeles.

Nitrogen dioxide: 0.62 parts per million/6 to 9 a.m.

PO MAO GRE I OR

et ee 8. ee

average, Los Angeles.

(These hydrocarbon and nitrogen dioxide measure-

14

ments are associated with Los Angeles peak values

for oxidants. )

The report then states that under existing law the health

related air quality levels could be attained in 1990 if

all new cars produced after 1980 achieved the calculated |

emission-reduction goals. Senate Report, NAQSA of 1970,

S. 4358, pages 25-27.

Existing legislation does not propose standards for pre- |

1968 vehicles, and even the bil! presently in conference

committee does not apply its mandatory standards for cars

prior to the 1975 model. If the defendants did as alleged

conspire to suppress technological development, a fact not

before the Congress now nor when it enacted the existing

air quality laws, plaintiff States will be entitled to equitable

relief which could, if shown to be feasible, achieve the

health related air quality levels well in advance of 1990.

The time saving which this Court's exercise of its original }

jurisdiction can effect is essential to complete relief in this

case.

II. This Court Is Not Precluded From Proceeding in

This Case Because of Concurrent Legislative or

Administrative Activity

Defendants devote a substantial portion of their brief

(pp. 18, 20-24) to the argument that no court should hear

this case or grant the equitable relief sought by the plaintiff )

States because the subject of motor vehicle air pollution is}

more appropriate for legislative and administrative controls

and because Congress and the Department of Health,

Education and Welfare are presently engaged in evolving

standards and imposing such controls. In short, defendants

imply that the area has been “preempted,” and that courts

15

in the exercise of their equitable powers should not enter

it. Defendants’ argument is not well taken.

The present federal legislation on the subject is the

National Emission Standards Act, enacted in 1965, and

amended by the Air Quality Act of 1967. Under that law,

the federal standards apply only to 1968 and later models.

In no way does existing federal law prevent a state from

requiring that 1967 and earlier model cars be equipped

with pollution control equipment. See Currie, “Motor Ve-

hicle Air Pollution: State Authority and Federal Pre-Emp-

tion,” 68 Mich. L. Rev. 1083, at 1095. Thus, even if de-

fendants’ “preemption” argument were applicable to this

legal action by the States, it would not affect the equitable

relief sought in respect to pre-1968 vehicles. The fact is,

however, that the argument is totally inappropriate. There

is no showing that the standards enacted or presently under

consideration by Congress will eliminate motor vehicle

produced air pollution as effectively and as quickly as one

or more of the defendants could have done but for the con-

spiracy alleged in the complaint. |

It should be clear on the face of the complaint that

plaintiff States are not asking this Court to invade a field

reserved more properly for Congress or the Executive.

The equitable relief which ‘plaintiff States seek is de-

signed only to remedy the damage caused now and in the

future by defendants’ alleged violations of law.

Plaintiffs allege that the defendants conspired and

agreed to eliminate all competition among themselves in

the research, development, manufacture and installation of

Motor Vehicle Air Pollution Control Equipment, thus caus-

ing hindrance and delay in the research, development,

16 ' |

*

manufacture and installation of such Motor Vehicle Air

Pollution Control Equipment (Complaint, par. 16(a),

18(a) ). Plaintiff States allege they have no adequate rem.

edy at law through monetary damages (Complaint, par,

18(1)). Accordingly, plaintiff States seek the only type of

relief which can repair the damage caused by the alleged

conspiracy, namely a decree requiring defendants to adopt

a program of accelerated spending and research which will

produce effective pollution control equipment or a “clean”

engine by that date on which such equipment or engine

would have been produced by one or more of the defend-

ants but for the conspiracy alleged in the complaint, and }

to install such equipment at defendants’ cost, on all cars

manufactured by defendants back to the date when such

equipment would have been available but for the con-

spiracy. The purpose of such equitable relief is clearly to

give plaintiff States and their citizens the pollution-re-

duced or pollution-free motor vehicles which would have

been available but for the conspiracy. Whether and to

what degree such relief is feasible can only be determined

when all the evidence necessary to the fashioning of such a

decree is before the Court. To challenge a decree directly

fashioned to remedy the damage allegedly done at this

time is premature and unwarranted. For purposes of de-

feating defendants’ argument, it is enough to show that the

equitable relief sought is designed to remedy damage

caused by defendants’ alleged violation of the anti-trust

laws, a subject which Congress was in no way concerned

with in providing Motor Vehicle Emission Standards.

Defendants made the same argument in respect to the

equitable relief sought by plaintiffs in the Multi-district

oe eRggey 22S Ne RN meee gare Ney in a bes, BORE OE OSA Be PRD a me iy rowdy . ee

17

cases. Judge Real disposed of that argument summarily,

stating inter alia:

Plaintiffs may fail in their proof, but until then they

should be given the benefit of employing “any avail-

able remedy to make good the wrong done.” Bell v.

Hood, 327 U.S. 678, 684 (1946); J. I. Case Co. v.

Borak, 377 U.S. 426, 433 (1964). Memo Order (Re

Motion to Dismiss) p.3.

It may well be that a trial judge, after hearing the

evidence may determine that the t of an injunc-

tion which parallels the relief of the consent decree

in action 69-75-JWC is unwarranted. But pre-judging

at this stage of the litigation, that plaintiffs may not

be able to present somne peculiar need for further

injunctive relief is not the function of this Court. The

prayers for relief are within the jurisdiction of this

Court grant given the proof of facts alleged. Whether

it is necessary or desirable is for the trial judge or

development of these cases to where they may be

subject to disposition without trial. Memo Order (Re

Motion to Dismiss ) p. 4.

This Court should dispose of defendants’ argument as

readily as did Judge Real.

CONCLUSION

For the reasons stated in plaintiffs’ opening brief and

in this reply brief, this Court should exercise its original

‘urisdiction and grant the plaintiff States leave to file their

complaint.

Respectfully submitted,

DATED: November 2, 1970

STATE OF WASHINGTON

SLADE Gorton, Attorney General

Frepric C. TAusEND, Special

Assistant Attorney General

657 Colman Building

Seattle, Washington 98104

— —_—+

18

WiuiaM L. Dwyea, Special

Assistant Attorney General

Hoge Building

Seattle, Washington 98104

Davip G. Knupp, ian Assistant

Attorney Gener

STATE OF ILLINOIS

WiLu1aM J. Scorr, Attorney

General

RoBertT S. ATKINS, Assistant

Attorney General

188 West Randolph

Chicago, Illinois 60601

Davip C. Lanpcrar, Assistant

Attorney General

STATE OF ARIZONA .

Gary NELson, Attorney General

MaLco”m P. STROHSON, Assistant _

Attorney General |

STATE OF COLORADO

Duxe W. Dunsar, Attorney |

General |

Joun Moore, Deputy Attorney

General

WiLLiAM TUCKER, Assistant

Attorney General

STATE OF Hawa

BERTRAM T. Kanara, Attorney

General

GrorcE Pai, Deputy

Attorney General

STATE OF Iow

RicHARD C. TurNER, Attorney

General

STATE OF KANSAS

KENT FRIzzELL, Attorney General

Ricuarp Hayse, Assistant

Attorney General

|

STATE OF MAINE

James S. Erwin, Attorney General

COMMONWEALTH OF MASSACHUSETTS

Rosert H. Quinn, Attorney

General

NeaL Coxiccuio, Assistant

Attorney General

STATE OF MINNESOTA

Doucias M. Heap, Attorney

General

STATE OF MISSOURI

Joun C. Danrortu, Attorney

General

STATE OF OHIO

Pau W. Brown, Attorney General

DonALD WECKSTEIN, Assistant

Attorney General

- SraTE OF RHODE isLAND

HERBERT F. DEStmonE, Attorney

General

STATE OF VERMONT

JaMEs M. Jerrorps, Attorney

General

Joun D. Hansen, Assistant

Attorney General

COMMONWEALTH OF VIRGINIA

ANDREW P. MILLER, Attorney

General

AntHony F. Troy, Assistant

Attorney General

FT

PEELS LEE TOT If PE OR EE

a

7]

OTS RRR AOE Fae TRESS AEA CR at reenter ety FOTN

A-1l

APPENDIX 1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

IN RE:

MULTIDISTRICT PRIVATE M.D.L. Docket

CIVIL TREBLE DAMAGE No. 31

ANTITRUST LITIGATION Memorandum

INVOLVING MOTOR VEHICLE | yr *

AIR POLLUTION CONTROL ( sharon

EQUIPMENT

Defendants have brought motions to disiniss 15 of the 16

complaints filed in this matter. Defendants have classified

_the grounds as 1. No Antitrust Injury; 2. No Parens Patriae

Claims; 3. No Injunctive Relief; and 4. The Handy Com-

plaint and they will be dealt with herein in that order.

BACKGROUND

January 10, 1969 the United States of America filed its

complaint alleging against the major defendants herein

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

‘| Thg acts of conspiracy alleged therein are, without change,

the acts alleged in the actions herein. The action by the

United States resulted in a consent decree approved by

Judge Jesse W. Curtis of the Central District of California

| in United States of America v. Automobile Manufacturers

Association, Inc., et al., No. 69-75-JWC.

The conspiracy enjoined in the consent decree includes

as pertinent to the actions filed herein:

1. To prevent, restr.in or limit the development, manu-

facture, installation, distribution or sale of air pollu-

tion control equipment for motor vehicles;

A-2

2. Adhering to agreements with reference to patents and

patent rights.

After attempts to intervene in action No. 69-75-JWC met

with failure, actions have been filed by plaintiffs herein

variously in individual, class and parens patriae capacities,

ANTI-TRUST INJURY

Title 15, United States Code, Section 1, provides in its

pertinent part:

“$1. Trusts, etc., in restraint of trade illegal; exception

of resale price agreements; penalty. Every contract

combination in the form of trust or otherwise, or con-

spiracy, in restraint of trade or commerce among the

several States . . . is declared to be illegal.”

Title 15, United States Code, Section 15 provides in its

pertinent part:

Ҥ15. Suits by persons injured; amount of recovery.

Any person who shall be injured in his business or

property by reason of anything forbidden in the anti-

- trust laws may sue... and shall recover threefold the

damages by him sustained, and the cost of suit, in-

cluding a reasonable attorney’s fee.”

Defendants’ thrust upon the motion to dismiss is that

there is not alleged, nor can there be alleged a “commer-

cial relationship” between plaintiffs and defendants per-

‘mitting compensation for the claimed damages. For pur-

poses of the motion to dismiss the court must assume the

“injury” alleged.1 |

In terms of the development of the antitrust laws, the

concept of source of injury alleged herein is rather new.

It was not until 1947, that any recognition of pollution as

anything more than a seasonal and infrequent nuisance like

hay fever or summer cold came to the public of the United

A-3

States. It was not until 1952, that any claim was laid at the

door of the automobile industry and not until 1969, that

, anyone recognized that allegedly something could be done

about it except for the conspiracy of defendants alleged

in action No. 69-75-JWC. We are now concerned with the

phrase “injured in his business or property by reason of

anything forbidden in the anti-trust laws” in the light of the

| allegations of these complaints, rather than the traditional,

legalistic approach defined by the cases cited by defendants

in their motion to dismiss. Each of the plaintiffs allege

injury to their respective business or property by reason

| of anti-trust violations of the defendants.

Plaintiffs may fail in their proof, but until then, they

should be given the benefit of employing “any available

remedy to make good the wrong done.”?

PARENS PATRIAE CLAIMS

) whey

The status of parens patriae cannot be used to substitute

for a class action as to individual claims of the residents

of political subdivision. 8

The question of validity of the parens patriae suit as

applied to the economy of the governmental entities herein

is answered in State of Georgia v. Pennsylvania Railroad

Company, 324 U.S. 439 (1944) and State of Hawaii v.

Standard Oil Company of California, 301 F. Supp. 982

(D. Hawaii, 1969) and needs no amplification here.

INJUNCTIVE. RELIEF

The function of the judge assigned cases pursuant to Title

28, United States Code, Section 1407, is to coordinate

pretrial proceedings with the view of returning cases to

A-4

the transferor judge in condition to be tried expeditiously

to the benefit of all parties to the litigation. Defendant’

attack upon the prayer for injunctive relief in 14 of the

15 complaints to which the motion to dismiss has been

addressed is, at this point in this litigation, premature.

The Court has not been advised nor can it conjure any

situation in which discovery will be delayed or, more

onerous, simply because of the request for additional relief

by way of injunction, prohibitory or mandatory.

It may well be that a trial judge,‘ after hearing the evi-

dence may determined that the grant of an injunction

which parallels the relief of the consent decree in action

69-75-JWC is unwarranted. But pre-judging at this stage

of the litigation, that plaintiffs may not be able to present

some peculiar need for further injunctive relief is not the

function of this Court. The prayers for relief are within

the jurisdiction of this Court grant given the proof of facts

alleged. Whether it is necessary or desirable is for the

trial judge or development of these cases to where they

may be subject to disposition without trial. We have not

yet reached that posture of the cases. If we ever do de-

pends upon the parties.

THE HANDY COMPLAINT

Defendants’ motion to dismiss attacks Count II of the

Handy complaint. Count II alleges violation of “plaintiffs

right to clean air and to a safe and healthy environment,

free from the contaminants and pollutants which have re-

sulted, and continue to result, from the operation of auto-

motive vehicles, and the use therein of gasoline, which

vehicles and gasoline were, and still are, manufactured,

—_—

ss? bl —_ “? ov sy —_ _ .

A-5

distributed and sold by defendants,” all protected by the

Fifth, Ninth, Tenth and Fourteenth Amendments to the

United States Constitution and Title 42, United States

Code, Section 1983 and Section 1988 (Civil Rights Act).

Plaintiff Handy would have this Court establish a right

to clean air and a safe and healthy environment within the

penumbra of the United States Constitution and its amend-

ments. Clearly no extensions have been made by the

courts except where there has been governmental intru-

sion into the privacy of its citizens.

The invitation to the Court to now rule that private

corporations, though drawn to gigantic proportions, are

public utilities or have the functions of a government is

declined. These constitutional and statutory provisions do

not create or permit any cause of action for a solely pri-

vate intrusion.

Dated: September 4, 1970.

MANUEL L. REAL

United States District Judge

FOOTNOTES

1,/Dailey ©. Quality School Plan, Inc., 380 F.2d 484 (5th Cir., 1967);

Knuth 0. Erie-Crawford Dairy Coop. Association, 305 F.2d 420 (3d

Cir., 1968).

2,/Bell 0. Hood, 327 U.S. 678, 684 (1946); J. I. Case Co. 0. Borak,

377 U.S. 426, 433 (1964).

A-6

APPENDIX 2

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

IN RE: M.D.L. Docket

MULTIDISTRICT PRIVATE No. 31

CIVIL TREBLE DAMAGE All Cases Except

ANTITRUST LITIGATION Sturtz v. General

WERCLE AIM POLLUTION | eqn

AIR LLUTION Memorandum Order

CONTROL EQUIPMENT (Re Class pee a,

The propriety of the maintenance of class actions or

class action claims is questioned by defendants in 15 of

the 16 cases pending before this Court for consolidated

pre-trial proceedings.

The broadest claims of class representation are found in

the Gorssman, Philadelphia, Lackawanna and Handy con-

laints.1 These complaints purport to represent all persons

in the United States.

The Morgan case? alleges class claims by all the farmers

of the United States.

Complaints of Illinois, New Jersey, New Mexico, Con-

necticut and Wisconsin’ claim classes of all people within

their respective states and their political subdivisions.

Political subdivisions, public corporations and authori-

ties within the state are represented in the New York

complaint.4

Residents are represented in the City of New York, City

and County of Denver and Keane complaints.5

(EN RENO RRO ee —

California’s® representation is narrowed to “all per-

sons who own property, real or personal, or who conduct

a business within the State of California damaged as the

result of air pollution caused by automobiles.”

Each of the class actions are attacked by defendants on

the failure to meet the requirements of Rule 23 of the

Federal Rules of Civil Procedure.

Federal Rules of Civil Procedure Rule 23 provides in its

pertinent part:

“Rule 23. Class Actions.

Ss Bina pag weg to a Class Action. One or more

mem of a class may sue or be sued as pease

tive parties on behalf of all only if (1) the class is so

numerous that joinder of all members is impracticable,

(2) there are questions of law or fact common to the

class, (3) the a s or defenses of the representative

parties are typical of the claims or defenses of the

class, and (4) the —— arties will fairly and

adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of sub-

division (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or

against individual members of the class would

create a risk of

(A) inconsistent or varying adjudications with

respect to individual members of the class which

would establish incompatible standards of con-

duct for the party opposing the class, or

; & (B) adjudications with respect to individual

members of the class which would as a practical

matter be dispositive of the interests of the other

) members not parties to the adjudications or sub-

stantially impair or impede their ability to pro-

tect their interests; or

See ees

A-8

(2) the party opposing the class has acted or

refused to act on grounds generally applicable to

the class, thereby making appropriate fina! y.

junctive relief or corresponding declaratory : ciief

with respect to the class as a whole; or

(3) the court finds that the questions of law or

fact common to the members of the elass predomin-

ate over any questions affecting only individual

members, and that a class action is superior to other

available methods for the fair and efficient adjudica-

tion of the controversy. The matters pertinent to the

findings include: (A) the interest of members of

the class in individually controlling the prosecution

or defense of separate actions; (B) the extent and

nature of any litigation concerning the controversy

already commenced by or against members of the

class; (c) the desirability or undesirability of con-

centrating the litigation of the claims in the particu-

lar forum; (D) the difficulties likely to be encoun-

tered in the management of a class action.”

Defendants primary attack on the class action status of

this litigation is directed to the absence of common ques-

tions of law and fact which predominate over questions in-

dividual to the class members and the unmanageability of

the classes alleged.

COMMON QUESTIONS OF LAW AND FACT

Classically the visceral issues of any litigation are lia-

bility on the part of a defendant and damage on the part

of a plaintiff. Certainly one can, within the framework of >

these basic issues, conjure a plethora of factual and legal

issues which must be resolved before a decision can be

reached in the trial of a case. Unlike most litigation,

treble damage (private) anti-trust liability presents the

determination of three issues, (1) conspiracy (monopoliza-

tion, etc.), (2) impact and (3) damage.’ Certainly the

ft ap Aree —

Pere AS Cee POL IL ay

A-9

question of conspiracy is one which, as alleged herein, is

common not only to the class within each separate action

but also to all of the actions filed. This is an issue which

should, in the interest of justice, need be litigated only

once.

The instrusion of impact into the consideration of the

liability aspect of these cases create a difficulty which

cannot be easily answered. Philadelphia Electric Co. v.

Anaconda American Brass Co., 43 F.R.D. 452 (E.D. Pa

1968); State of Illinois v. Harper & Row Publishers, Inc.,

301 F. Supp. 484 (N.D. Ill. 1969); In Re Multidistrict

Private Civil Treble Damage Antitrust Litigation Involv-

ing Water Meters, 304 F. Supp. 873 (J.P.M.L., 1969), if

they are authority for the separation of issues are clearly

distinguishable. All of the cases herein allege a peculiar

type of anti-trust injury, i.e., injury resulting from a pollu-

tion caused by the conspiracy to hinder and delay the

research, development, manufacture and installation of

effective motor vehicle air pollution control equipment. It

is in effect a conspiracy to maintain a public nuisance—

smog. Impact is as varied as the public itself. In Philadel-

phia Electric Co. v. Anaconda American Brass Co., supra,

State of Illinois v. Harper & Row Publishers, Inc., supra,

and In Re Multidistrict Private Civil Treble Damage Amnti-

trust Litigation Involving Water Meters, supra, the courts

are considering price fixing conspiracies in violation of the

anti-trust laws—where “impact” and “buyer” become al-

most synonomous. If you qualify as a “buyer” of the

commodity in question the liability—damage issues—ex-

cept as to amount of damage—lend themselves to common

determination.

Grossman, Philadelphia, Lackawanna, Handy, City of

7 PAE RET EN, FA A RPI ER EMR QOL — .

2 ae em ap

Tyg

ut fe

————

A-10

New York, City and County of Denver and Keane cannot

be maintained as class actions.

Although there may be some differences in the effec

of smog on various crops or the fauna and flora of a state,

political subdivision, public corporation or public author. :

ity, the pleadings as they now stand do allege a class: |

properly represented in Morgan, Illinois, New Jersey, New

Mexico, Connecticut, Wisconsin, New York and Californig

with respect to common issues of law and fact which pre.

dominate over questions affecting only individual mem.

bers.

MANAGEABILITY OF THE CLASSES

Manageability of the classes alleged herein may cer-

tainly tax the imagination and ingenuity of the litigants,

counsel and the court. But until management is recognized

as impossible or near impossible, the Court will depend

upon the ingenuity and aid of counsel to solve the com-

plex problems this litigation may bring. If successful, the

economics of time, effort and expense will more than

compensate the effort.

REPRESENTATION OF THE CLASSES

- The complaints of Illinois, New Mexico, California, Wis-

consin, New York, Connecticut, New Jersey, Philadelphia

and Lackawanna allege representation by a governmental

entity of the individual residents within its jurisdiction.

Putting aside the status of parens patriae for a moment,

the question raised is the adherence to the principle that

a plaintiff representative must be a member of the class

purportedly represented.® It is conceivable that a govern-

mental agency might, with reference to a particular act or

A-11

series of acts, stand in the same position as an individual

resident within its jurisdiction. But in the context of the

acts alleged herein and any impact and/or damage re-

sulting therefrom a governmental agency raises issues

which are peculiar only to its status as a governmental

agency. It cannot, therefore, be a member of the class of

citizens or residents and cannot maintain a class action on

behalf of individual plaintiffs.

The representation of governmental ageneies as a class

is, of course. properly the subject of a class action. Since

more than one action alleges representation of the class,

determination of the representative governmental agency

must be made. That question, or its resolution, does not at

this juncture affect the proceedings herein and is left for

later determination by agreement of the parties and failing

that, hearing and determination by the Court.

Dated: September 4, 1970. ~

MANUEL L. REAL

United States District Judge

SR a le TL ahi Cah ad ae lt eS ne Ee Sere —

NEARS d50 pp crasty

PRE a ate hs nn arte ee a ee a en ee ic — eT. Of

A-12

APPENDIX A

1. Marshall B. Grossman, et al. v. Automobile Manufactur.

ers Association, Inc., et al. 69-1855-R

City of Philadelphia, etc. v. Automobile Manufacturers

Association, Inc., et al. 70-846-R

County of Lackawanna, Pa., et al. v. Automobile Manu-

facturers Association, Inc., et al. 70-858-R

C. Jon Handy, et al. v. General Motors, Inc.,

et al. 69-1548-R

2. Robert Morgan, etc. v. Automobile Manufacturers |

Association, Inc., et al. 70-1137-R

3. The State of Illinois v. Automobile Manufacturers

Association, Inc., et al. 70-1042-R

State of New Jersey v. American Motors

Corporation, et al. 70-1041-R

State of New Mexico v. American Motors

Corporation, et al. 70-1040-R

State of Connecticut v. American Motors |

Corporation, et al. 70-1043-R

State of Wisconsin v. General Motors Corporation,

et al. 70-806-R

4. The State of New York v. Rutomobile Manufacturers

Association, Inc., et al. 70-1137-R

5. The City of New York, etc. v, Automobile Manufactur-

ers Association, et al. 70-1477-R

A-13

City and County of Denver v. American Motors

Corporation, et al. 70-1044-R

Thomas E. Keane, et al. v. General Motors

Corporation, et al. | 70-1039-R

8. State of California, et al. v. Automobile Manufacturers

Association, et al. 70-541-R

FOOTNOTES

1,/See Appendix A (1).

2./See Appendix A (2).

|} _3./See Appendix A (3).

| 4./See Appendix A (4).

» 5,/See Appendix A (5).

| 6,/See Appendix A (6).

1./ Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 803

- (1st Cir., 1964), cert. denied 379 U.S. 931 (1965); Winckler & Smith

. F Citrus Products Co. v. Sunkist Growers, Inc., 346 F.2d 1012, 1041nl

(9th Cir., 1965).

8./Rock Drilling Local Union No. 17 0. Mason & Hangar Co., (S.D.

| N.Y., 1950) 90 F. Supp. 539.