Motion — Washington v. General Motors Corp.

SI an Tete %

total Seren rey PEEPS AAS PTE EM OE A Rae

MOTION FILE

SEP 16 1971 ie rH

Supreme Court af the Mnited States

Ociober Term, 1971.

No. 45 OricrnaL

State oF: WASHINGTON, State oF LLLINVIS, Stare oF ARIZONA,

State oF Cotorapo, State or Hawau, State oF Iowa,

State oF Kansas, State or Mainz, COMMONWEALTH OF

MassacHuseTts, State or Minnesota, State or Missouri,

State or Ono, State or RHope Istanp, State or VER-

MONT, and CoMMONWEALTH oF VIRGINIA,

Plaintiffs,

-v.

GENERAL Motors Corporation, a Delaware corporation,

- Forp Motor Company, a Delaware corporation, CHRYSLER

Corporation, a Delaware corporation, AMERIcan Morors

Corporation, a Maryland corporation, and AUTOMOBILE

MANUFACTURERS AssociATION, a New York corporation,

Defendants.

MOTION FOR LEAVE TO INTERVENE, PROPOSED

COMPLAINT, AFFIDAVITS AND BRIEF *

IN SUPPORT THEREOF

Post Office Address: ~ Counsel of Record:

274 Madison Avenue MaxiMiLiIAN Bavrer

New York, New York 10016 I. Wauron Bapver

.lttorneys for Heart Disease

Research Foundation,

et al,

Proposed Intervenor

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ear ye yoo A My Perec

. Sea Ten ON 8 aR RE PES

OR Hpi Ak APR ES

ape

Motion for Leave to Intervene ..................

Intervenors’ Proposed Complaint ............2... :

Affidavit of I. Walton Bader in Support of Motion

for Intervention .........¢0.. 00. cc cece ee ee’

Affidavit of Yoshiaki Omura in 1 Support of Noun

for Intervention ...... ay Oe weaned aoe ens "

Brief in Support of Motion to Intervene .........

Question Presented ..............c. cece eee

Facts ......c.ceceeeeeeaee wa gkgeseeoena ede

Argument—Intervenors should be permitted to

intervene in this-law suit ...............

OUCIOION. oa cn hh en evento etassgaeeeets

Cases Cited

Justice v. U. S., 365 Fed. 2nd 312 ................

Mullins v. De Soto Securities Co.,-°2 FRD 502 .....

Muesse v. Camp, 385. Fed..2nd 694 .. . .. he ate ats

Statute Cited

Federal -Rules of Civil Procedure

Authority Cited

Rules of the Supreme Court of the United States:

Rule 9(2) ........... ee ae ee ee

Rule 9(6) ee ee coe ee ee ee ee

29

29

Supreme Court of the United States

Octoser Term 1971

No, 45 OniciInau

~

7

-

State OF WASHINGTON, STATE oF ILLINOIS, STATE OF ARIZONA,

State oF CoLorapo, State or Hawat, Stare or lowa,

State or Kansas, State or Marne, COMMONWEALTH OF

- Massacuusetts, State or Minnesota, State or Missovrt,

State or Onto, State or Ruope IsLanp, StaTE oF VER-

MONT, and CoMMONWEALTH OF VIRGINIA,

: | Plaintiffs,

v.

:

GENERAL Motors Corporation, a Delaware corporation,

Forp Motor Company, a Delaware corporation, CHRYSLER

Corporation, a Delaware corporation, AMERICAN Motors

Corporation, a Maryland corporation, and AUTOMOBILE

Manuracturers Association, a New York corporation,

Defendants.

~~

v

MOTION FOR LEAVE TO INTERVENE

Heart Disease Research Foundation, a duly certified tax

exempt charitable trust and the individuai parties, Robert

R. Peters and Henry Sassone, kereky move to intervene in

the above-entitled original action pursuant to Rule 9(2)

and 9(6) of the Rules of the Supreme Court of the United .

States and Rule 24 of the Federal Rules of Civil zeoceaiie

and to be heard orally. on October 13, 1971.

2

Motion for Leave to Intervene

.

In support of this Motion there are submitted the fol-

lowing documents: ,

a—Proposed complaint.

b—Affidavit of I. Walton Bader, General Counsel and ~

Trustee of the Heart Disease Research Foundation.

c—Affidavit of Yoshiaki Omura, M.D., Medical Director

of the Heart Disease Research Foundation. ~

d—Brief in support of Motion for Intervention. ~—“

i at es

Dated: September 15, 1971.

Respectfully submitted,

Maximmian Baper

I. Watton Baprr

Attorneys for Proposed Intervenors

274 Madison Avenue

New York, New York 10016

IN THE bu

Supreme Court of the United States

Octoser Term 1971 |

No. 45 Orictnan

mw %

-—

rare or WasuiNoron, Stave or ILLiNors, State or ArizONa,

State ov Couorapo, Stare or Hawan, Srare or Iowa,

Stare or Kansas, State or Marne, ComMONWEALTH OF

MassacHusetts, Stare or Minnesota, Stare or Missourt,

State Or Onto, State or Ruope Isuanp, Stare or VeEr-

mMoNT, and CoMMONWEALTH or VIRGINIA,

Plaintiff's,

v.

GeNeraL Motors Corporation, a Delaware corporation,

Forp Motor Company, a Delaware corporation, CHRYSLER

Corporation, a Delaware corporation, AMERIcAN Morors

Corpor“tion, a Maryland corporation, and AvromoBILe

Manuracrurers Association, a New York corporation,

Defendants.

~ Heart Disease Researcn Founpation, a Charitable Trust

of the State of New York, Rosert R. Perers and Henry

Sassone, individually, and Heart. Disease Researcu

Founpation and Rosert R. Peters and Henry Sassone,

in behalf of all persons similarly situated and circum-

stanced,

Intervenors.

—_*

¥

INTERVENORS’ PROPOSED COMPLAINT

3

Intervenors’ Proposed Complaint

‘CLASS ACTION

COUNT ONE

Intervenors allege:

1, Intervenor, Heart Disease Research Foundation is a

Charitable Trust, duly organized and existing under the

Laws of the State of New York, having its offices and places

of business at 963 Essex Street, Brooklyn, New York, and

274 Madison Avenue, New York, New York.

2. Intervenor, Heart Disease Research Foundation, is

a certified tax exempt organization under the Internal

‘Revenue Code of the United States and is charged, under

its Deed of Trust, to aid in alleviating the sufferings of

mankind.

_ 8. On information and belief, Defendants, General Mo-

tors Corporation, Chrysler Corporation, and Ford Motor

Company are corporations duly organized and existing

under the Laws of the State of Delaware, having offices and

places of business within the territorial jurisdiction of the

Southern District of New York. A

4. On information and belief, Defendant, American Mo-

tors Corporation is a corporation duly organized and exist-

ing under the Laws of the State of Maryland, having offices

and places of business within the territorial jurisdiction

of the Southern District of New York.

5. Intervenors, Robert R. Peters and Henry Sassone,

are citizens and residents of the State of New York residing

in the New York metropolitan area, These Intervenors are

also Trustees of the intervenor, Heart Disease Research

Foundation. i

Intervenors’ Préposed Complaint

6. Pursuant to the original jurisdiction of this Court,

the Plaintiffs herein have brought an action against the

Defendants relating to the original jurisdiction of the Court

pursuant to Article IIT, Section 2 of the Constitution of the

United States and 28 U.S. C., See. 1251(b) (38).

7. In the original Complaint brought by the Plaintiffs

against the Defendants herein, jurisdiction is also invoked.

under 15 U. S. C., See. 26 and 15 U.S. C., See. 1.

8. This Court acquires jurisdiction to entertain the In-

tervenors’ Proposed Complaint pursuant to Rule 9(1) and

Rule 9(6) of the Supreme Court of the United States and

Rule 24 of the Federal Rules of Civil Procedure.

9. The claims asserted by the Intervenors herein con-

stitute substantial and related claims to the claims asserted

by the original Plaintiffs herein and this Court has juris-

diction to entertain said claims in principle of Pendent

Jurisdiction.

10. The Intervenors herein are plaintiffs in an action

in the United States District Court for the Southern Dis-

trict of New York (Civil Action 71 Civil 1667 HT). This

suit alleges claims which are closely related to the claims

in the instant action.

11. i ocdetaten of the rights of the Intervenors in

this suit is, or may be, inadequate and Intervenors will,

or may, be bound by a judgment in this action. In addi-

tion, there are common questions of law and fact involved

in this action and in Intervenors pending action in the

United States District Court for the Southern District of

New York.

6

~ Intervenors’ Proposed Complaint

12. The inadequacy of representation jof Intervenors’

interests in the instant action is shown specifically by the -

following, without limitation :

a—Plaintiffs in this action merely seek an injunction to

require the Defendants to cause to be installed as effective

anti pollution control devices as could have been installed

in motor vehicles but for the conspiracy alleged in the

Complaint. ..There is no claim for damages including the

large number of persons who have become ill or have died

from related heart, lung, cancers, liver and kidney diseases,

Without damages being awarded against these Defendants

any injunction issued by this Court would be meaningless,

__ b-—Despite the fact that automobile pollution has been

directly implicated in the increasing cases of heart disease

occurring in the United States, the Plaintiffs’ Complaint

makes no mention of heart disease whatsoever.

c—A Charity’s intervention in these proceedings would

ensure that any decree entered by this Court would be in

the best public interests since the Intervenor-Charity has

no ‘‘axe to grind’’ but is merely interested in improving

the general welfare of the population of the United States,

d—The injunction sought by the Plaintiffs herein is

inadequate. The injunction sought should also require

that the Defendants herein devote at least 00% of their

annual profits into anti pollution research.

e—In the proceedings before this Court, the Plaintiffs

failed to point out that a normal District Court suit would

not normally come to trial for at least two years. The sub-

sequent appeals and possible review by this Court. could

take three years longer. While such proceedings were

pending, any injunctive relief would probably be stayed

and therefore no relief with respect to the constantly de-

Intervenors’ Proposed Complaint

terioratiug quality of the air in the United States would

be possible. On the other hand, this Court through its

original jurisdiction, could clearly and easily dispose of

this controversy within a matter of a few months, at most.

13. Intervenors bring this action both as individuals

_adversely affected by the acts alleged herein and as

Trustees of a charitable Foundation whose aim is to alle-

viate the ills of mankind, particularly those relating to

diseases of the heart.

14, There has been a substantial and significant in-

crease in heart, lung, kidney and cancers disorders during

the last generation. At the same time, automotive air

pollution has consistently increased. In the metropolitan

areas of the United States, automotive air pollution repre-

sents 75% of all air pollution and overall, the automobile.

represents 60% of air pollution. .

15. The Intervenors turther bring this action as repre-

sentative of a Class pursuant to Rule 23 of the Federal

Rules of Civil Procedure and the following sets forth the

special circumstances warranting this type of suit:

a—The Members of the Class are the population of the

United States residing in the metropolitan areas of the

United States, amounting to approximately 125,000,000

persons and there are questions of law and fact common

to’ the Class.

b—It is impractical to join all of the persons affected

_ in one action because the class is so numerous.

e—The Intervenors represent, through their Board of

Trustees, approximately four Members of tie Class in-

volved. However, by reason of the fact that the Inter-

Intervenors’ Proposed Complaint

venor, Heart Disease Research Foundation, is a Charitable

Trust, it is uniquely situated to represent and fairly and

adequately protect the interest of the Class. The claims

of the representative parties are typical of the claim of

the Class.

d—Adequate notice can be given to all of the Members

of the Class by appropriate newspaper publicity.

e—Failure to permit this suit to proceed as a class

action would cause inconsistent or varying 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 adjudication or

would substantially impair or impede their ability to pro-

tect their interest.

f—The prosecution of separate actions by individual

members of the Class would create a risk of inconsistent

or varying adjudications with respect to individual mem.

bers of the Class» which would establish standards of

conduct for the party opposing the Class.

g—The questions of law or fact common to the Members

of the Class predominate over any questions affecting only

individual members and a class action is a superior

method of resolving the controversies involved in this

action.

16. The Invervenors herein, and ali other parties simi-

larly situated have been seriously affected by reasons of

acts performed by said Defendants herein. These Defend-

ants have been producing dangerous instrumentalities

causing substantial injuries to the population of the

United States residents and will continue to do so unless

enjoined and restrained by this Court.

Intervenors’ Proposed Complaint

_17.. The Intervenors believe that,-on a financial basis,

damages of one million dolla:s for every person so affected

by pollution caused by these Defendants would be a rea-

sonable measure of damages. This would amount to one

hundred and twenty five trillion dollars, which is an

amount far greater than the actual gross national produc-

tion of the United States and probably equal to the value

of all of the assets contained within the borders of the

United States at the present time.

18. The above figures are submitted to indicate the reck-

less abandon with which these Defendants have been

conducting themselves and the damages that they have

caused to the population.of the United States by their acts.

19. If the Defendants were required to*embark upon a

‘crash program’’ of pollution reduction, the present air

pollution. crisis in the United States metropolitan areas

would be substantially alleviated. The number. of deaths

from coronary insufficiency would be substantially reduced

and the number of persons ‘sustaining coronary attacks

might be reduced by a factor of up to 90%. Those people

suffering coronary attacks would attain a far better prog-

nosis of recovery.

20. Unless relief is granted by this Court, the pollution

levels in the United States will significantly increase within

the next few years, further increasing the incidence of

heart and lung diseases, shortening of life a a

and other deleterious factors.

21. One of the solutions to the present problem would |

be to forthwith bar further manufacture of any vehicle

with the internal combustion engine and require the De-

10

Intervenors’ Proposed Complaint

fendants forthwith to produce vehicles with alternative

power means. — .

22. The corporations named below are made Defendants

herein. Each of said corporations is organized and exists

under the laws of the state indicated and has its principal

place of business in the city indicated. Within the period

of time covered by this complaint said Defendants have

primarily engaged in the business of manufacturing and

selling motor vehicles in various states of the United

States and also manufacture and sell component parts and

accessories thereto:

Defendant State of Principal Place

Corporation Incorporation of Business

General Motors Delaware Detroit, Michigan

Corporation |

Ford Motors Delaware Dearborn, Michigan

Company

é

Chrysler Corpora- Delaware Highland Park,

tion — Michigan

American Motors Maryland Detroit, Michigan

Corporation

23. Whenever in this complaint reference is made to any

act, deed or transaction of a corporate defendant, such

allegation shall be deemed to mean that said corporation

engaged in said act, deed or transaction by or through its

officers, directors, agents, or employees while they were

actively engaged in the management, direction or control

of corporate business affairs.

4

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‘ nivomets ee PIR RO in ay TE PRIM Bat CANE TE "I te ENE RI e

SEE OLR NEES ERM AN NEE MAA re GENS LEK th BERR RES rae i a

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Intervenors’ Proposed Complaint

Co-Conspirators

24. Various other persons, firms and corporations not

made defendants herein have participated as co-conspira-

tors with the Defendants in the offense charged in this

complaint and have performed acts and made statements _

in furtherance thereof.

| Definition

25. As used herein, the term ‘‘motor vehicle air pollu-

tion control equipment’? means equipment, or any part

thereof, designed for installation on a motor vehicle or

any system or engine modification on a motor vehicle which

is designed to cause a reduction of pollutants emitted from

the vehicle, including, but not limited to, any device for.

the control of emissions of pollutants from the exhaust

system, the crankcase, the carburetor, or the fuel tank.

Trade and Commerce

26. Automobiles for the most part are manufactured in

the State of Michigan and are shipped therefrom to each

of the fifty states of the United States. Some automobiles

are assembled in various states of the United States from

parts manufactured in the Sate of Michigan and other

states. In 1966, 78,315,000 passenger cars and 15,864,000

trucks and buses, exclusive of off-the-road vehicles, were

registered in the United States. In that year, 8,604,712

passenger cars valued at more than $17.5 billion and

1,791,587 commercial vehicles valued at more than $3.9

billion were produced in this country. Of the trucks pro-

duced, 96,560 were built with diesel motors.

eM, PR kG oe BAPE greta APRIL TS “4 . Ao nutty Ske STs oC aN 7 }

stesso hoe

12

Intervenors’ Proposed Complaint

27. Since at least 1952, it has been established that

motor vehicles contribute to air pollution by the emission

of hydrocarbons, carbon monoxide, oxides of nitrogen and

other contaminates. |

28. As a result of new and continuing demands that

automotive vehicles be equipped with air pollution contro]

devices, a large and growing market for the production

and installation of such devices has developed. Motor

vehicle air pollution control devices are shipped in inter-

state commerce, both a3 original component equipment

attached to motor vehicles and as replacements for exist-

ing components, from assembly points in various states

to the Plaintiff states. |

~

Violations Alleged _

‘29. Beginning at least as early as 1953, and continuing

thereafter up to and including the date of this complaint,

the Defendants and co-conspirators have been engaged in

a combination and conspiracy in unreasonable restraint

of the aforesaid interstate trade and commerce in motor

vehicle air pollution control equipment.

30. The aforesaid combination and conspiracy has con-

sisted of a continuing agreement, understanding, and con-

cert of action among the Defendants and co-conspirators,

the substantial terms of which have been and are:

a—to eliminate all competition among themselves in the

research, development, manufacture and installation of

motor vehicle air pollution control equipment; and

. en

EEE OT ee IRS MOR IM MEN SIS: EMT MRS MTSE AT EAR UA RE

13

Intervenors’ Proposed Complaint

-b—to eliminate competition in the purchase of patents

and patent rights from other parties covering motor ve-

hicle air pollution control equipment. —

31. For the purpose of forming and effectuating the

aforesaid combination and conspiracy, the Defendants and

co-conspirators did those things which they combined and

conspired to do, including. among other things, the fol-

lowing:

a—agreed that all industry efforts directed at the re-

search, development, manufacture and installation of motor

vehicle air pollution control equipment should be under-

taken on a non-competitive basis;

b—agreed to seek joint appraisal of patents and patent

rights submitted to any of them by persons not parties

to a cross-licensing agreement entered into on July 1,

1955,-and amended and renewed periodically, and agreed

to require ‘‘most-favored-purchaser’’ treatment of all —

parties to the cross-licensing agreement if any one were

licensed by a person not a party to that agreement;

c—agreed to install motor vehicle air pollution control

equipment only upon a uniform date determined by agree-

ment, and subsequently agreed on at least three separate

occasions to attempt to delay the installation of motor

vehicle air pollution control equipment;

(1) In 1961 the Defendants agreed among themselves

to delay installation of ‘‘positive crankcase ventilation”’

on vehicles for sale outside of California until the model

year 1963, despite the fact that this anti-pollution device

could have been installed nationally for the model year

1962 and that at least some automobile manufacturers ex-

SAO LSE ARERR RE NAM NG SG NS TT hae, Wye COR RST UREN RCT tas

14

Intervenors’ Proposed Complaint

pressed willingness to do so, in the absence of a contrary

industry-wide agreement;

(2) In late 1962, and extending into 1963, the Defendants

agreed among themselves to delay installation of an im-

provement to the positive crankcase ventilation device, an

improvement which the California Motor Vehicle Pollution

Control Board had indicated it would make mandatory;

and Eo

d—agreed to restrict publicity relating to research and

development efforts concerning the motor vehicle air pol-

lution problem.

Effects of Conspiracy

32. The aforesaid combination and conspiracy has had,

among other, the following effects:

a—Hindrance and delay in the research, development

and manufacture—both by the Defendants and co-con-

spirators and by others not parties to the agreements

alleged herein—and the installation of motor vehicle air

pollution control equipment; and

b—Restriction and suppression of competition among

the Defendants and co-conspirators in the research, devel-

opment, manufacture and installation of motor vehicle air

pollution control equipment; and

_ ¢—Restriction and suppression of ‘competition in the

purchase of patents and patent rights ‘covering motor

vehicle air pollution control equipment.

d—The level of pollutants emitted into the ambient air

by automobiles manufactured following the inception of

. ques etre

ee a a Sel ee ee ees “ *

15

Intervenors’ Proposed Complaint

the conspiracy was, and is, substantially greater than the

level which would have been attained but for the afore-

mentioned agreement, combination and conspiracy with the

result that the citizens of the Plaintiff States live in an

unhealthy environment contaminated by humanly injurious

atmospheric pollutants that have inflicted and continue to

inflict upon very large numbers of such citizens great

physical suffering, and actual physical injury induced or

aggravated by such automotive pollutants.

e—The aforementioned hindrance and delays due to the

restriction and suppression of competition in the research,

development, manufacture and installation of pollution

control devices have resulted in the continuous introduction

of inadequate air pollution control devices as original and

replacement equipment on motor vehicles purchased and

used throughout the United States, despite the existence

of technical capacity and knowledge sufficient to develop

and produce effective air pollution control devices.

f—All of the Intervenors have been harmed by the

Defendants as a result of the conspiracy herein described

in that they have been subjected to live in an unhealthy

environment contaminated by unnatural atmospheric pol-

lutants emitted by motor vehicles manufactured by the

Defendants.

(1) The Intervenors have been compelled to live in an

unhealthy environment contaminated by humanly injurious

atmospheric pollutants that have caused and continue to

cause serious, cumulative and permanent impairment to

the general health, comfort and welfare of such citizens.

(2) The quality of the air within the United States has

been and continues to be significantly deteriorated to the

detriment of the general economy and prosperity.

16

Intervenors’ Proposed Complaint

Fraudulent Concealment

33. Intervenors had no knowledge of the aforesaid

combination and conspiracy, or of any fact which might

have led to the discovery thereof prior to the instituting

of proceedings by the United States of America against

the Defendants herein on January 10, 1969. Intervenors

could not have discovered the alleged combination and

conspiracy at an earlier date by the exercise of due dili-

gence since the combination and conspiracy set forth herein

had been fraudulently concealed by Defendants by various

means and methods used to avoid the detection thereof.

COUNT TWO

34, Intervenors repeat and reallege the allegations set

forth in Paragraphs 1 through 33 of the foregoing Com-

plaint as though fully set forts at length herein,

35. This Court acquires jurisdiction of this cause of

action pursuant to the ‘‘general welfare’’ provisions of the

Constitution of the United States and pursuant to the fact

that this claim is a substantial and related claim to the

claims set forth in Count One hereinabove.

36. This is a cause of action brought by the Intervenors

in behalf of themselves and persons similarly situated for

damages against the Defendants pursuant to common law

principles of liability.

37. The Defendants, in continuing to manufacture motor

vehicles containing internal combustion engines, are pro-

ducing dangerous instrumentalities which are adversely

affecting the health and welfare of the Intervenors and all

17

Intervenors’ Proposed Complaint

persons similarly situated by polluting the air of metro-

politan areas with carbon monoxide, petrol chemicals and

oxides of nitrogen.

a8. As a result of these actjvities performed by the

Defendants, the Intervenors and all persons similarly situ-

ated have become sick, lame, sore and disabled, have

incurred medical and hospital expenses and will further

incur other medical and hospital expenses and will have

their life span shortended in the future.

COUNT THREE

39. Intervenors repeat and reallege the allegations set

forth in Paragraphs 1 through 33 and 35 through 38 of the

foregoing Complaint as though fully set forth at length

herein.

40. Motor vehicles manufactured by the Defendants

have in the past been and presently are so designed that

noxious wastes and gases are released into the atmosphere

in the course of ordinary operation of said motor vehicles.

41. Motor vehicles manufactured by the Defendants

and operated on the highways of the United States are

responsible for the emission into the atmosphere of the

following contaminants: carbon monoxide, oxides of nitro-

gen, hydrocarbons, lead compounds and other toxic

particles.

42. The emissions of contaminants as described above

pollute the air and thereby constitute a danger to human

health and welfare, in that a direct relationship has been.

established between the contaminants contained in motor

vehicle emissions and chronic respiratory disease, carcino-

18

Intervenors’ Proposed Complaint

gens, liver and kidney disorders and a wide variety of

tumors.

43. The aforesaid emissions which pollute the air as

described above have resulted from the design and engi-

neering of the motor vehicles manufactured by Defendants

and which said Defendants have caused to be distributed

throughout the United States.

44. The continued manufacture and distribution of

motor vehicles as presently engineered and designed which

cause the aforesaid unhealthy and dangerous emissions

constitute a public nuisance contrary to the public policy

of the federal government. 42 U.S. C., See. 1857 (4) (8).

45. Wuererorg, Intervenors demand:

1. <A perpetual injunction restraining the Defendants,

their agents, servants and employees, forthwith, from

manufacturing, selling or distributing any vehicle contain-

ing an internal combustion engine which pollutes the atmos-

phere with carbon monoxide, petrol chemicals and/or

oxides of nitrogen.

2. A preliminary injunction, pending the trial of this

action, restraining the Defendants, their agents, servants

and employees, forthwith, from manufacturing, selling or

disrtibuting any vehicle containing an internal combustion

engine which pollutes the atmosphere with carbon mon-

oxide, petrol chemicals and/or oxides of nitrogen.

3. A mandatory injunction requiring the Defendants to

forthwith commit 50% of the gross profit made in the

manufacture, sale and/or distribution of. motor vehicles

containing an internal combustion engine to a ‘‘crash pro-

gram’’ designed to develop a non iti: power plant.

. for motor vehicles.

: ‘

on eee Se AE RMT PR Me pH OMNES gD OER 4a RTI

19

Intervenors’ Proposed Complaint

4. A preliminary injunction pending the trial of this

action, requiring the Defendants to forthwith commit 50%

of the gross profit made in the manufacture, sale and/or

distribution of motor vehicles containing an internal com-

bustion engine to a ‘‘crash program’’ designed to develop

a non polluting power plant for motor vehicles.

5. Damages in the sum-of one hundred twenty five

trillion dollars (trebled to three hundred and seventy five

trillion dollars with respect to Count One) together with

attorney’s fee of three million dollars and the costs and

disbursements of this action.

6. Such other, further and different relief as this Court

may deem just and proper. ;

Dated: September 15, 1971.

Yours, ete.

By: I. Watton Baper

MAXIMILIAN BADER

I. Watton BapER ©

Attorneys for Intervenors

Office and Post Office Address

274 Madison Avenue

New York, N. Y. 10016

Telephone: (212) 683-3180

AN et Signy Hy, ase

20

IN THE

SUPREME COURT OF THE UNITED STATES

OctoBerR TERM 1971

No. 45 OrIcINAaL

~~

¥

Strate oF WASHINGTON, STATE OF ILLINOIS, STATE OF ARIZONA,

State oF CoLorapo, State or Hawan, State oF Iowa,

State .or Kansas, State’ or Marne, COMMONWEALTH OF

MassacHUSETTS, StaTE or Minnesota, State or Missourt,

State or Ouro, State or RuHove Isuanp, State or VEr-

MONT, and COMMONWEALTH OF VIRGINIA,

Plaintiffs,

Vv.

GENERAL Morors Corporation, a Delaware corporation,

Forp Motor Company, a Delaware corporation, CHRYSLER

Corporation, a Delaware corporation, AMERICAN Morors

Corporation, a Maryland corporation, and AvTOMOBILE

Manvuracturers Association, a New York corporation,

Defendants.

»<

vv

Affidavit of I. Walton Bader in Support of Motion

for Intervention

State of New York

County of New York—-ss.:

I. Watton Baber, being duly sworn, deposes and says:

I am the General Counsel and a Trustee of the Heart

Disease Research Foundation, a charitable trust duly

31

Affidavit of I. Walton Bader

certified as a tax exempt foundation under the Internal

Revenue Code.

The purpose of the Heart Disease Research Founda-

tion is to ameliorate the ills of mankind, particularly

those connected with diseases of the iieart. As set forth

in the accompanying affidavit of the Medical Director of -

the Foundation, the present levels of automotive air

pollution may be directly implicated in the constantly

increasing incidence of heart disease in the United States

over the last generation.

The Heart Disease Research Foundation has com-

menced a law suit in the United States District Court for

the Southern District of New York (Civil Action 71 Civil

1667 HT) seeking an injunction and damages by reason

of the acts of the Defendants herein.

The undersigned believes that the Heart Disease Re-

search Foundation, by reason of its status and charter,

is entitled to intervene in this action, as a matter of right

because representation of the interest of the applicant

may be inadequately presented by present parties to this

litigation and the proposed intervenors may be bound by

a judgment rendered herein. In addition, the intervenors

believe that the applicant’s claim and the main action

have a question of law or fact in common.

The undersigned further points out that permission by

this Court for intervention on the part of the proposed

intervenors will expedite the conclusion of the present

litigation and will go far toward ameliorating the air

pollution problems presently extant in the United States.

It is noted that the Plaintiffs herein merely seek an

injunction without damages. It is submitied that relief by

injunction would be completely inadequate. On the other

22

Affidavit of J. Walton Bader

hand, if the Defendants are required to respond -in

damages and if the damages are to continue so long as

vehicles produced by these Defendants continue to emit

unacceptable levels of pollutants, the Defendants will

‘make every effort to eliminate the pollution problem and

should be successful.

Wuererore the undersigned prays that ‘the present

Motion to Intervene be in all respects granted.

I. Watton Baper

Sworn to before me this

15 day of September 1971.

Aone V. KeLiy

Notary Public

State of New York

ANNE V. KELty

Notary Public, State of New York

No. 41-2075515

Qualified in Queens County

Commission Expires March 30, 1973

23

‘IN THE

SUPREME COURT OF THE UNITED STATES

OctroserR TERM 1971

No. 45 ORIGINAL

>

a

SraTE oF WASHINGTON, STATE OF ILLINOIS, STATE OF ARIZONA,

State oF CoLorapo, StatrE oF Hawau, State or Iowa,

State or Kansas, Stare or Marne, COMMONWEALTH OF

MasSACHUSETTS, STATE OF Minnesota, STATE OF MissourRt,

STATE SOF Ou10, StaTE oF Ruope Isuanp, State oF VER-

MONT, and CoMMONWEALTH OF VIRGINIA,

Plaintiffs,

v.

GeneRAL Motors Corporation, a Delaware corporation,

Forp Motor Company, a Delaware corporation, CHRYSLER

CorPoRATION, a Delaware corporation, AMERICAN Morors

Corporation, a Maryland corporation, and AUTOMOBILE

ManuractureErRS Association, a New York corporation,

Defendants.

>

¥v

Affidavit of Yoshiaki Omura in Support of Motion

for Intervention

State of New York

County of New York—ss.:

YosHIAKI OmuRa, being duly sworn, deposes and says:

I am the Medical Director of the Heart Disease Research

Foundation, a charitable trust duly certified as a tax

exempt foundation under the Internal Revenue Code.

24

Affidavit of Yoshiaki Omura

1 am a Doctor of Medicine (M. D. ) and also am.a Dogtor

of Science (Sc. D. Med. ) ‘and the degrees received from duly

qualified medical schools. Prior to my appointment as

Medical Director of the Heart Disease Research Founda-

tion, 1 was an Assistant Professor at New York Medical

College. I have written a number of research papers relat-

ing to heart conditions.

In my opinion, some of the increased acceleration and

complications of cardiovascular and pulmonary ailments

that have occurred in the last generation are directly con-

nected with the increase in air pollution, particularly the

type of air pollution caused by automobile exhausts, in-

cluding, without limitation, carbon monoxide, petrol chemi-

cal hydrocarbons and ecxides of nitrogen. In my opinion, it:

is necessary to preserve the public health of the population

of the United States by immediately eliminating, or at

least very substantially reducing, the present levels of

automobile pollutants. In my opinion, the time table set

by the United States Government under the ‘‘Clean Air

Act’’ is a small pregress but is insufficient and the result

of continuing the present pollution of the air of the United

States by reason of automobile emissions may result in

serious health consequences particularly for the aged and

for those suffering from cardiovascular and pulmonary

diseases and for the future of the growing young genera-

tion who will be exposed to increased levels of such air

pollution. In spite of the proposed cut in the amount of

undesirable fumes from automobiles by the ‘‘Clean Air

25

Affidavit of Yoshiaki Omura

Act’’, the increase in the number of cars in the future may

sufficiently negate such a proposed cut.

| YosHIAKI OmuRA

Sworn to before this

- 15 day of September 1971.

T. WaLton Baper

Notary Public

I. Watton Baver

Notary Public, State of New York

No. 24-5140850

Qualified in Kings County

Commission Expires March 30, 1973

IN THE

Supreme Court of the United States

Ocrosper Term 1971

No. 45 OricrvaL

ae

-

Stare Or WasuIncTon, et al.,

Plaintiffs,

vs. J

GENERAL Morors Corporation, et al.,

Defendar 8.

»*

5

BRIEF IN SUPPORT OF MOTION TO INTERVENE

Question Presented 7

Seventeen States have petitioned this Court to entertain

an original action against the four major motor vehicle

manufacturers and the Automobile Manufacturers Asso-

ciation. The proposed complaint contains a first cause of

action for antitrust law violation, a second cause of action

for commor law conspiracy, and a third cause of action

for public nuisance.

The complaint does not seek damages but merely an

injunction requiring the Defendants to produce anti pollu-

tion devices which will be of the same quality as those

that would have been produced were it not for the anti-

trust conspiracy alleged.

26

27

The proposed Intervenors are two persons of the United

States residing in metropolitan areas and adversely affected

by pollutants produced by motor vehicles, and a Charitable

Trust duly certified as a tax exempt entity under the

Internal Revenue Code whose purpose is to alleviate the

ills of mankind, particularly those caused by diseases of

the heart.

These Intervenors have commenced a Civil Action in

the United States District Court for the Southern District

of New York seeking an injunction and damages against

the Defendants (other than the Defendant, Automobile

Manufacturers Association). Intervention is sought pursu-

ant to Rule 24 of the Federal Rules of Civil Procedure.

Facts

Intervenor, Heart Disease Research Foundation, is a

charitable trust duly organized and existing under the laws

of the State of New York and duly certified as a tax exempt

foundation under the Internal Revenue Code. Intervenors,

Robert R. Peters and Henry Sassone, are Trustees of the

Heart Disease Research Foundation and reside infthe New

York metropolitan area. The Intervenors filed a class

action law suit in the United States District Court for the

Southern District of New York seeking an injunction and

damages in behalf of themselves and all persons similarly

situated and cireumstanced. The class action, as amended,

consists of all residents in the metropolitan areas of the

United States.

The Southern District law suit has not been consolidated

under MDL Docket No. 31 because this suit was filed sub-

sequent to April 6, 1970. Intervenors have been unaware

of the pendency of this litigation and also discovered the

same on September 3, 1971.

28

_ ARGUMENT

Intervenors should be permitted to intervene in this

law suit.

In making this application the Intervenors assume that

this Court will permit the filing of an original complaint

in Original No. 45. This Motion, is, of course, conditional

upon this Court granting the Plaintiffs’ application. The

Plaintiffs’ application comes on for hearing on October

13, 1971 and the Intervenors respectfully request leave to

argue orally in support of the Plaintiffs’ application.

Assuming that this Court grants Plaintiffs’ application

to file a complaint, then this Court would have jurisdic.

tion over Intervenors’ cause of action on the ground of

‘Pendent Jurisdiction’’ since Intervenors’ complaint is

substantial and related to the complaint made by the

Plaintiffs. It is further obvious that the disposition of

this ease will substantially affect the Intervenors’ case

now pending in the Southern District of New York. In-

deed, while this case is pending, it would be very difficult

for the Intervenors to go ahead with their District Court

action since the disposition of this litigation would, in

effect, control any litigation pending in a lower court.

Furthermore, the period of time necessary to complete

litigation through the lower courts would be a minimum

of five years and, by that time, the adverse effects of air

quality by reason of the acts of these Defendants: would

become insurmountable.

This Court, with respect to original actions has promul-

gated Rules 9(2) and 9(6) of the Rules of the Supreme

Court of the United States. These rules-make the Federal

Rules of Civil Procedure applicable to original actions

and therefore, Rule 24 of the Federal Rules of Oivil:

29

Procedure comes into play. This Rule reads in part as

follows :

‘‘Rule 24. Intervention.

(a) Intervention of Right. Upon timely applica-

tion anyone shall be permitted to intervene in an

action: * * * (2) when the applicant claims an

interest relating to the property or transaction

which is the subject of the action and he is so

situated that the disposition of the action may as

a practical matter impair or impede his ability to

protect that interest, unless the applicant’s interest

is adequately represented by existing parties.

(b) Permissive Intervention. Upon timely applica-

tion anyone may be permitted to intervene in an

action: * * * (2) when an applicant’s claim of de-

fense and the main action have a question of law

or fact in common. * * * (c) Procedure, A person

desiring to intervene shall serve a motion to inter-

vene upon the parties as provided in Rule 5. The

motion shall state the grounds therefor and shall

be accompanied by a pleading setting forth the

claim or defense for which intervention is sought.

eee

It has- been held that a rather wide discretion is

granted to the Court to permit intervention. See, for

example, Mullins v. De Soto Securities Co., 2 FRD 502;

Justice v. U. S., 365 Fed. 2nd 312; and Muesse v. Camp, '

385 Fed. 2nd 694.

In addition, to the above, it is respectfully pointed out

that the intervention of a charitable foundation in this

case would be most helpful to the Court. A charitable

foundation is uniquely able to represent the public inter-

est in a suit of this character and can be very helpful to

30

the Court in aiding the framing of appropriate relief.

The Intervenor has no ‘‘axe to grind’’ but is interested

primarily in improvement of the public health and elimi-

nation of automotive air pollution. The Individual Inter.

venors, while appearing as individuals for necessary

jurisdictional purpose with respect to class actions are,

nevertheless, primarily appearing as Trustees of a chari-

table foundation and also have the public jaterest in mind.

CONCLUSION

Intervenors’ motion should in all respects be granted.

Dated: September 15, 1971.

Respectfully submitted,

By: I. Warton Baper

MAXIMILIAN Baper,

I, Watton Baper,

Attorneys for Intervenors,

274 Madison Avenue,

New York, New York 10016.

31

Certificate of Service

I hereby certify that on September 15, 1971, I served

a copy of the foregoing Motion and accompanying docu-

ments, by mail, upon:

Post Office Addresses :

Seattle, Washington State of Washington

Slade Gorton, Attorney General

Chicago, Illinois State of Illinois

William J. Scott, Attorney General

Phoenix, Arizona State of Arizona

Gary Nelson, Attorney General

nver, Colorado State of Colorado

Duke W. Dunbar, Attorney General

Honolulu, Hawaii State of Hawaii

Bertram T, Kanbara, Attorney a

Moines, lowa State of Iowa

Richard C. Turne, Attorney General

opeka, Kansas State of Kansas

Kent Frizzell, Attorney General

ugusta, Maine State of Maine

James S. Erwin, Attorney General

on, Mass. Commonwealth of Massachusets

. Robert H. Quinn, Attorney General

t. Paul, Minnesota State of Minnesota

Douglas M. Head, Attorney General

t. Louis, Missouri State of Missouri

John C. Danforth, Attorney General

umbus, Ohio State of Ohio

Paul W. Brown, Attorney General

rovidence, Rhode Island State of Rhode Island

Herbert F. DeSimone, Attorney General

ontpelier, Vermont State of Vermont

James M. Jeffords, Attorney General

nd, Virginia - Commonwealth of Virginia

Andrew P. Miller, Attorney General

Post Office Addresses:

14250 Plymouth Road

Detroit, Michigan 48232

900 17 Street, N.W.

Washington, D. C. 20006

615 South Flower Street

Los Angeles, Calif. 90017

231 So. LaSalle Street

Chicago, Illinois 60604

General Motors Bldg.

Detroit, Michigan 48202

Walter J. Williams

Attorneys for Defendant

American Motors Corporation

Wilmer, Cutler & Pickering

Attorneys for Defendant

Automobile Manufacturers Association

McCutchen, Black, Verleger & Shea

Attorneys for Defendant

Chrysler Corporation

Mayer, Brown & Platt

Attorneys for Defendant

Ford Motor Company

Ross L. Malone

Attorneys for Defendant

General Motors Corporation

I. WALTON B