# Memorandum — Washington v. General Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0003%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1971 - **Citation:** 404 U.S. 811 ## Text ‘> te . a" ° + . > oe 2 , oe ara 4 ee » 4 say = 4 Sin " OEY Ugh ; y - ‘J ~~ ee . . 4 ~" \ “sy : : ae > ” ro. oi 4, * ‘. War “Y . * Ae > * Ne ¥ moe : . - : - % - - va . ee * * " ‘ . * ; rr . . ‘ a < x © ' » . o3¢ , Paks an EA - ae J 7 ee - oe . ‘ : : . ay om “ *s ¥ee » yy ’ - é “*t - ~ 1 “ . < . x * ~ < ¢ ys ’ ’ “tL * Q . 4 “ 4: - ~ : ‘ : . ¢ ey rd ” w a aS * - a . ie 4 : , t & : ot ’ be ‘ * ‘ , . r A - - i. - Lo art : * , ‘ “ é : mos - * a! J * 4 “ ae ‘. e . +? * oh ¢ s * * 7 - - “ n - - . . ‘ - ey 2 . d e+ - ‘ ‘ , * 4 » Wp a d , + - - re : * - * [ * ~ > ¥ “ - 7 . ¢ of :- ¥ * 7 » ; ~~” - se Ne, r. Wee ‘ idle kd BEM ateailn bl eet? Sel acta SD pele OF er eee 4 2) 1 8 . KY. Pept i SUBJECT INDEX Page I 1 i ccensechantiateas cies tnnicdotuaces 2 4 Part I. Choice of Substantive Law .0.0..........cesccceses. 2 1. Federal Law Governs the Substantive Issues in eS : 2 2. Plaintiffs Strike Count III. .......... uae 4 3. Count II Will Probably Not Be Reached. If It Is, It Is Controlled by State Common Law, and Is a Claim Pendent to Count I. ............................ 4 4. The Federal Law Questions Require Deter- mination by This Court. .............. : Part II. 7 to Defendants’ Supplemental Memorandum. ...................... 8 TS: ES eae Ne Sa | Ie de RR OT cise of Original Jurisdiction in This Case. (Reply to Def. Supp. Mem. pp. 5-8) ................ 8 6. There Is No Right to a Jury Trial in This Case. (Reply to Def. Supp. Mem. p. 14) : 10 7. Collateral Estoppel Will Not Impair the Right to Jury Trial. (Reply to Def. Supp. Mem. p. 14) 12 8. This Court Can Handle This Case Efficiently and Expeditiously With a Special Master. (Reply to Def. Supp. Mem. pp. 13-14) ............ 13 9. The Equitable Relief Sought by Plaintiff States Is the Most Appropriate Remedy for the Con- tinuing Loss or Damage Caused & Defendants’ Alleged Sherman Act Violations. The Clean Air Amendments of 1970 in No Way Detract From the Traditional Powers of an Equity Court Sitting in an Antitrust Case. (Reply to Def. ee) ener ae 15 a ee ree ls ii Page 10. In Any Event, Defendants’ Argument Regard- ing Relief Is Totally Premature. (Reply to Def I I, SN TD sc cicsicinscsicesenscniinsonemsccniseoons Part III. Recent Developments ..........................scesessee- 11. Recent Developments Confirm the Need for Original Jurisdiction to be Exercised. ................ 20 ESE SR ROS STI SR TABLES OF AUTHORITY Table of Cases Anderson v. Mt. Ciemens Pottery Co., 328 U.S. 680, 689 (1946) .. - Associated Press v. United States, 326 U.S. 1 (1945) ... Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) sisi esto dbictiaiateaadoncs 10, 11, 12 Blonder-Tongue v. University Foundation, 402 U.S. °313. 320-27 (1974) ane sbiecunaliiuiasods Bowles v. Carnegie-Illinois Steel Corp., 149 F.2d 545 (7th Cir., 1945) ..... Cannon v. Texas Gulf Sulphur Co., 323 F. Supp. 990 (S.D.N.Y., 1971) .......... ' Dairy Queen Inc. v. Wood, 369 U.S. 469-( 1962) ...... Dyker Bldg. Co. v. United States, ek Oe oD |: ) ENERO ee Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1949) ..... Grove Laboratories v. Bri wer & Co., . 103 F.2d 175 (1st Cir., 1939) .. pie Sa) ET RR er ag fry Ss Ma eA qe: 4 oe al iii Page Kennard v. Cory Brothers & Co., | [1922] L.R. 1 Ch. 265 (C.A.) ooncecccseecoseccees 16 LaBuy v. Howes Leather Co., 352 U.S. 249 (1937) ...... 14 Lupton v. Chase National Bank of City of New York, 89 F.Supp. 393 (D.C. Neb., 1950) ......... 14 Lynne Carol Fashions, Inc. v. Cranston Print Works Co., Inc., No. 19,599 (3d cir., Jan. 17, 1972) ........... 13 New Jersey v. New York, 345 U.S. 369 (1953) wo... 24 Ohio v. Wyandotte Chemical Corp., 401 U.S. 493 (1971) oc eee 8, 9, 18 Oregon v. Mitchell, 400 U.S. 112 (1970) .oeecocccceeecceeeee 6 Rachal v. Hill, 435 F.2d 59 (5th Cir., 1970), cert. denied 403 U.S. 904 (1971) ooeeccccccccccccsseceses 12, 13 United Mine Workers v. Gibbs, 383 U.S. 715, 721-729 (1966) ........ 5 United States v. Addyston Pipe and Steel Co., 85 Fed. 271, 285 (CCA 6th, 1898) affd. VTS U.S. 211 (1899) nec cccccccccceseeceecoscesecece.. 5 United States v. Automobile Manufacturers Ass'n, 307 F. Supp. 617 (C.D. Cal., 1969), aff'd. sub nom. City of New York v. United States, 397 U.S. se anti Nespas CO i TE 22 United States v. DuPont & Co., 366 U.S. 316 (1961) .... 16 United States v. Grinnell Corp., 384 U.S. 563 (1966) .... 16 United States v. Singer M anufacturing Co., S74 US. 174 (UGGS) nna cceccecesenceesereereeecee... 6 United States v. U.S. Gypsum Co. 333 U.S. 364, 396 (1948) ileal itedmaieatadaailes 6 Vane v. Lord Barnard, Court of Chancery, 1716, 2 Vernon 738 ......... 16 Clayton Act, Section 16 oo..........cccccccceseeseccecceccececcenceeees 3, 6, 7 2B U.S.C., §1292(b) eececececocsccccsesseesesseonessssssssesssesseseeee 25 §YAO4 ee ecccocccccccsessessssssensnssseeeceseesessesnsmnsnesse 26 ND 2 The Clean Air Act Amendments of 1970 ...................- 17, 19 Textbooks 5A Moore, FEDERAL PRACTICE, 2904 (2nd ed., 1971) .... 14 Chafee & Re, Cases and Materials on Equity, 893 (Sth Ed., 1OQMY nanan 16 Other Authority Attorney General's Comm. to Study Antitrust Laws, 230-231 (1955) .......... - 2 Federal Rules of Civil Procedure, Rule 52(a) ................ 14 Rule 53(e) (2) .......... 13 Chief Justice Burger, State of the Federal Judiciary, 90 §.Ct. 2381, 2383 (1970) ............... .. 10 4 Restatement of Torts, Note on Terminology, at 680-81 (1939) eccccccccccsscsssssssssssstsssssssssersrcseseeeeeeeeee ‘16 IN THE Supreme Court of the United States October Term, 1971 STATE OF WASHINGTON, et al, Plaintiffs, v. GENERAL Morors Corporation, et al., Defendants. PLAINTIFFS’ MEMORANDUM ON CHOICE OF SUBSTANTIVE LAW AND BRIEF IN REPLY TO - DEFENDANTS’ SUPPLEMENTAL MEMORANDUM Introductory Statement The Supreme Court has directed all parties in this action to file simultaneous memoranda on the issue: Would federal or state law govern the substantive issues sought to be presented for decision in original actions such as this one? The question of whether federal or state law is ap- plicable was treated briefly in plaintiffs’ supplemental memorandum of law dated February 12, 1971 (in respect to Count III, the nuisance count) and in the brief of sixteen states and the City of New York as amici curiae (in respect to Count I, the alleged Sherman Act violation ). For reasons explained in Part I, infra at p. 4, the choice of law issue respecting Count III is now moot. On December 24, 1971 defendants filed a supplemental memorandum in opposition (Def. Supp. Mem.) to plain- tiffs’ motion for leave to file complaint. Part II, beginning at p. 8, infra, replies to that supplemental memorandum 2 Pertinent recent developments in the multidistrict motor vehicle pollution cases, MDL No. 31, transferred to Judge Manuel Real, Central District of California at Los Angeles, pursuant to 28 U.S.C. § 1407 are called to this Court’s at- tention in Part III, beginning at 20, infra. ARGUMENT PART I. CHOICE OF SUBSTANTIVE LAW 1. Federal Law Governs the Substantive Issues in This Action. -The gravamen of plaintiffs’ complaint is Count I, charg- ing a federal antitrust violation. Plaintiff states allege a classic antitrust conspiracy to suppress technology and marketing of effective motor vehicle pollution control devices. See report of Attorney General’s Comm. to Study Antitrust Laws, 230-231 (1955) and cases cited. Specifically, these plaintiff states allege in their proposed complaint (Comp.) that beginning at least as early as 1953 and continuing until at least September 1969, the defendants combined and conspired among themselves and with other co-conspirators to suppress and retard research, development, manufacture and installation of effective motor vehicle air pollution control equipment (Comp. { 16, p. 5). The complaint alleges certain specific actions taken in concert and in furtherance of the alleged conspiracy including: 1. The restriction and suppression of pollution control technology (Comp. { 17(a), 18(a), (b)). 2. Delayed installation of “positive crank case ventila- 3 tion, both inside and outside the state of California” (Comp. { 17(c)(1) and (2)). 3. The restriction and suppression of publicity, which in fact includes a persistent pattern of alleged misrepresenta- tions to governmental bodies and administrative agencies relating to research and development efforts concerning motor vehicle air pollution (Comp. { 17(d) ). The conspiracy alleged and the specific acts in further- ance of the conspiracy describe violations of the Sherman Act. This case arose directly out of the 1969 Justice Depart- ment civil complaint charging defendants with the same conspiracy alleged in plaintiffs’ proposed complaint. The proposed complaint also includes a count alleging common law conspiracy (Count II) and a count alleging nuisance (Count III), in addition to the antitrust viola- tions. However, these counts were included only to sup- plement and support Count I. Defendants had argued in the multidistrict proceedings that, even if plaintiffs in these actions could establish antitrust violations as alleged, the equitable relief sought was beyond that permitted by Section 16 of the Clayton Act. Count II was added to authorize use of this Court’s general equitable powers so that relief could be afforded in one case in the unlikely event defendants’ narrow con- struction of Section 16 of the Clayton Act prevailed. The choice of law applicable to Count II, should Count II become relevant, is discussed below. 4 2. Plaintiffs Strike Count III. Count III was included to give additional support to the Count I antitrust claim. While the wrong for which these states seek relief was a conspiracy in restraint of trade, plaintiff states recognized the possibility that the facts might also establish another actionable wrong, namely, the tort of nuisance. Before they had seen the evidence avail- able to them through the multidistrict proceedings, plain- tiffs were concerned that they might possibly fail to prove a conspiracy in restraint of trade, but, at the same time might establish another actionable wrong entitling them to similar relief. For that reason, Count III was included as a secondary claim. ¢ Nowy having had the opportunity to review documen- tary evidence available to them under a protective order in MDL Docket No. 31, plaintiffs are confident that the conspiracy alleged can be proved. Rather than encumber this case with an additional and broader nuisance claim, they prefer to simplify the issues in deference to the urgent need for speedy resolution and relief based only upon the antitrust claim. Accordingly, plaintiff states hereby strike Count III from their proposed complaint. 3. Count II Will Probably Not Be Reached. If It Is, It Is Controlled by State Common Law, and Is a Claim Pendent to Count I. The principal equitable relief plaintiffs seek is a manda- tory injunction requiring defendants, at their expense, to retrofit all pre-1968 cars with effective pollution control devices (Comp., Prayer J 4). Defendants’ argument, based on a narrow and untenable reading of § 16 of the Clayton Act, is both totally premature at this stage of the litigation, 5 and wrong. Accordingly, choice of law under Count II has only remote and contingent significance. Moreover, it is an easy question. Count II is a classic pendent jurisdiction claim seeking relief under state: law for the same acts alleged in Count I to be wrongful under the Sherman Act. See United Mine Workers v. Gibbs, 383 U.S. 715, 721-729 (1966). See also defendants’ Brief in Opposition at page 12. The state law applicable is “the general doctrine of the common law that contracts restraining competition . . . are void.” United States v. Addyston Pipe and Steel Co., 85 Fed. 271, 285 (CCA 6th, 1898) aff'd. 175 U.S. 211 (1899). In his opinion, Judge Taft carefully reviewed the common law in at least 16 different states, as well as Eng- land and Canada, regarding contracts in restraint of trade, and concluded .. . that the association of the defendants, however reasonable the prices they fixed, however great the competition they had to encounter, and however great the necessity for curbing themselves by joint agree- ment from committing financial suicide by ill-advised competition, was void at common law, because in res- traint of trade and tending to a monopoly. United States v. Addyston Pipe and Steel Co., supra, at 291. Thus, inclusion of Count II in no way complicates this case. It raises no new or different facts; and it presents no difficult question on choice of law. 4. The Federal Law Questions Require Determination By This Court. , Contrary to defendants’ assertion, this is not principally a fact case. To the extent there are factual questions, they will turn primarily upon documentary evidence. Judge 6 Real, who has supervised the multidistrict proceedings sinve their commencersent in April 1970, and who at- tended a portion of the one deposition taken in the multi- district actions to date, recently observed: “I saw the deposition of Mr. Caris and read it all or with that part of it, it does boil down to a document case because that is all that came out of Mr. Caris’ deposition was basically reading documents.” Tran- script of Proceedings, Los Angeles, California, Janu- ary 11, 1972, p. 8 Appellate review of factual findings has always been broader when those findings were not based upon oral testimony.’ United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948) (Oral testimony conflicting with contem- poraneous documents); Grove Laboratories v. Brewer & Co., 103 F.2d 175 (1st Cir. 1939) (depositions); Bowles v. Carnegie-Illinois Steel Corp., 149 F.2d 545 (7th Cir. 1945) (affidavits ). The essentially documentary nature of the evidence will greatly facilitate trial by this Court of such limited fact issues as this case presents. This case will not, however, turn primarily upon dis- puted questions of fact but upon the resolution of import- ant questions of federal law. Cf: Oregon v. Mitchell, 400 U.S. 112 (1970) (18 year old vote case). Both here and in the multidistrict cases, including the interlocutory appeals to the Ninth Circuit, defendants have raised certain fundamental questions about the Sherman and Clayton Acts. The first question, presently sub judice in the Ninth Circuit on interlocutory appeal from an order of Judge Manuel Real denying defendants’ motion to dis- "1. This same point disposes of defendants’ reliance upon United States v. Singer Manufacturing Co., 374 U.S. 174 (1963) regarding the value of irtermediate appellate review. (Defs. Supp. Memo, p. 13). ORI OR heat aati ater COSY ee RE OEE OAL RM SIE SUBIR NEN Rid OOF Hegre OS TOGO RRS SD Vrs Sk carrie EPAPER Su 7 miss, is whether or not plaintiff states have standing to sue on behalf of their citizens for relief under, the federal antitrust laws in the absence of a “commercial relation- ship” between the victim and the perpetrator of the alleged antitrust conspiracv. The second question, which defendants have suggested here, is whether or not plaintiffs can legally obtain the injunctive relief for which they have prayed. Specifically, defendants challenge the power of a federal court under Section 16 of the Clayton Act to grant the retrofit Telief sought by these plaintiffs and amici. As we shall ‘dow below, both of these questions are prematurely raised by defendants at this juncture. Irrespective of that, however, these vital questions. of federal law must ultimately reach and be resolved by this Court, whether it accepts original jurisdiction or permits the questions to reach this Court in the traditional appel- late fashion. 8 PART II. REPLY TO DEFENDANTS’ SUPPLEMENTAL MEMORANDUM 5. Georgia v. Pennsylvania R. Co., and Ohio v. Wyan- dotte Chemicals Corp., Support an Exercise of Original Jurisdiction in This Case. (Reply to Def. Supp. Mem. pp. 5-8) In Georgia v. Pennsylvania R. Co., 324 U.S. 4:19 (1949) the standards for exercising original jurisdiction in con- troversies between a state and citizens of another state were first announced as follows: The Court in its discretion has withheld the exercise of its jurisdiction where there has been no want of another suitable forum to which the cause may be remitted in the interests of convenience, efficiency and justice. Georgia v. Chattanooga, supra; Massa- chusettts v. Missouri, supra. 324 U.S. 464-465. The availability of a more suitable alternative forum, namely the courts of Ohio, was clear in Ohio v. Wyandotte Chemical Corp., 401 U.S. 493 (1971). As this Court stated and indeed, as counsel for the State of Ohio admitted in oral argument: The courts of Ohio, under modern principles of the scope of subject matter and in personam jurisdiction, have a claim as compelling as any that can be made out for this Court to exercise jurisdiction to adjudicate the instant controversy, and they would decide it under the same common law of nuisance upon which our determination would have to rest. 401 U.S. at 500 However, there is no alternative forum more suited to trial of the present case. Defendants urge that granting plaintiffs’ motion would impose insuperable burdens on this Court and detract from its paramount role as the supreme federal appellate a ot SPOR Pe Rett e Prats ye pet teers RE Tee A TENET Re EE & HO Es MRIS S 9 court. Def. Supp. Mem. p. 39. Indeed, they charge plaintiff states with disregard for “this Court’s other manifold responsibilties.” But, in fact, while defendants’ approach might spare this Court some additional effort in the short run, at the same time, by delaying a final resolution of this matter, defendants’ approach would actually impose far greater burdens cn this Court and indeed on the entire federal judicial system. If original jurisdiction is not exercised, and if plaintiff states must pursue their remedies in the district courts, there could be as many as 23 separate district court trials with appellate review in all 10 circuits.? As implicitly recognized by the Chief Justice in his two State of the Federal Judiciary addresses, the current role of this Court in.the federal system is not limited to func- tioning as the supreme federal appellate court, but includes ultimate respongibility for maintaining and assuring overall efficiency and viability of the entire federal judicial system. Accordingly, weighing alternative available forums against this forum by standards of convenience, efficiency and justice, this Court must consider the effect of its choice upon the entire federal judicial system, not simply upon the workload of this Court. Precisely this point was made by Mr. Justice Harlan in Ohio v. Wyandotte Chemicals Corp., 401 U.S. at 499, when he said: “Protecting this Court per se is at best a secondary consideration.” The present case is indeed unique in the history of federal court litigation. It alleges a nationwide conspiracy in restraint of trade, most susceptible of remedy by nation- 2. As discussed infra at 24, plaintiffs are attempting to expedite the multidistrict litigation, but there is no assurance those efforts will succeed. —— . — : ee ee Se aE arma whee aod om Prey ae 10 wide, uniform equitable relief. While monetary damages may lie, and may be the only meaningful relief if trial is delayed, such damages are not an adequate or the most appropriate remedy. Plaintiffs seek clean air, not money. The scope of this problem results from the way automo- biles have altered our society. * In this 20th Century, wars, social upheaval, and the inventiveness of Man have altered individual lives and society. The automobile, for example, did more than change the courting habits of American youth— it paved the continent with concrete and black top; it created the most mobile society on earth with all its dislocations; it led people from rural areas to crowd the unprepared cities. Chief Justice Burger, aon of the Federal Judiciary, 90 S.Ct. 2381, 2383 1970). If future cases combine a national wrong with a need for national injunctive relief as in this case, Congress may fashion a national forum alternative to the original juris- diction of this Court. At this juncture, however, the original jurisdiction of this Court is the only “adequate machinery” available for meaningful determination of this dispute between thirty-four states and the citizens of another state. See Georgia v. Pennsylvania R. Co., 324 U.S. at 450. 6. There Is No Right to a Jury Trial in This Case. (Reply to Def. Supp. Mem. p. 14) Defendants express concern in their supplemental mem- orandum thai a non-jury trial by this Court would have “powerful and perhaps controlling effect” upon subsequent jury trials of damage claims in related district court actions (Defs.’ Supp. Mem., p. 15). Defendants attempt to rely on Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) ens Se PERONEAL CO hae allt Oe et Se eg — 11 and Blonder-Tongue v. University Foundation, 402 U.S. 313, 320-27 (1971). Exercise of original jurisdiction by this Court would result in a single trial of the equitable relief cases brought by 37 of the 40 governmental plaintiffs. Left to be tried in appropriate district courts would only be a maximum of six cases.* These are, of course, different cases from those brought by plaintiffs and amici here. Nobody in this case has any right to a jury trial. Simi- larly, where a plaintiff seeks damages, a jury trial right exists for either party. Yet, no defendant has a right toaiury - in one plaintiff's equitable case simply because another plaintiff has a separate case seeking damages upon similar allegations. Nor can it be seriously argued that a defendant has a right to delay trial of the equitable case until after the separate damages case has been tried, especially where such delay may render relief in the equitable case mean- ingless. Because separate cases by separate plaintiffs are in- volved here, the principles underlying such decisions as Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), relied on by defendants are wholly inapplicable.‘ 3. Plaintiffs in these cases are California; the City of Philadelphia, et al.; a cropfarmer class action entitled Morgan; a Chicago consumers class action entitled Keane; AMF Inc., a third party manufacturer; and Sturtz, a third party inventor. The Morgan class was approved by Judge Real and the Keune class was dismissed. The appropriateness of both these classes is sub judice in the 9th Circuit. 4. Thus, there is no occasion to consider whether in a single case separate trials first on equitable and then on legal counts would be warranted under the exceptional circumstances of this litigation. Beacon Theatres notes that there may be “imperative circumstances” where a prior determination of an equitable claim may be permissible in the trial court’s discretion even though that would be binding in a subsequent jury trial on another ‘claim in the same case. 359 U.S. at 510-511; see also Dairy Queen Inc. v. Wood, 369 US. 469, 472-473, 479 n.20 . Drmgare pwn . eee eae aCe ee a . ena Seg SR REECE 6 mee. RTE \ Fe ae catia eae a : Mt PRANK Gi titan aA 12 7. Collateral Estoppel Will Not Impair the Right to Jury Trial. (Reply to Def. Supp. Mem. p. 14) A decree entered in this non-jury equitable case would have. no res judicata or collateral estoppel effect in subse- quent jury trials. This precise situation was faced in Rachal v. Hill, 435 F.2d 59 (5th Cir. 1970), cert. denied, 403 U.S. 904 (1971), where plaintiff in an action before a jury seeking damages under federal securities laws asserted that defendants were collaterally estopped by the judg- ment’in’a prior non-jury action brought by the Securities and Exchange Commission respecting the same subject matter. Defendants first contended that plaintiff could not rely upon collateral estoppel, since plaintiff was a stranger to the S.E.C. injunction action. Secondly, defendants con- tended that collateral estoppel could not be invoked to deprive them of a jury trial on the liability issue. The court rejected the first contention, following the modern view that lack of “mutuality” does not bar appli- cation of res judicata and collateral estoppel. But it ac- cepted the second proposition, holding that, in light of Beacon Theatres, the order of trial could not deprive defendants of their right to a jury on the damage claims against them. The court reasoned (435 F.2d at 64) that: had Hill {the plaintiff] been a party plaintiff in the S.E.C. injunction action and there presented his claim for damages, the appellants would have received a jury trial on the issue of liability. It hardly makes sense (1962). The desperate need for a retrofit remedy to diminish continuing air pollution pending a necessarily more distant trial on damages would, we believe, be an “imperative circumstance” calling for a prior equitable trial even if separate trials on legal and equitable claims brought by the same plaintiffs were involved here. ~ 13: that Hill can now assume a position superior to that to which he would have been entitled if he had been a party to the prior action. SS anaat yal we hold that the application of the doctrine of collateral estoppel was not appropriate in view of the particular circum- stances presented by this case... - Rachal was followed in Lynne Carol Fashions, Inc. v. Cranston Print Works Co., Inc., No. 19,599 (3d Cir., Jan. 17, 1972) and Cannon v. Texas Gulf Sulphur Co., 323 F. Supp. 990.(S.D.N.Y. 1971), and we are aware of no con- flicting‘authority. 8. This Court Can. Handle This Case Efficiently and Expeditiously With a Special Master. (Reply to Def. Supp. Mem. pp. 13-14) The Constitution, statutes, court rules, and previous de- cisions give this Court wide latitude and discretion over the manner in which it can function appropriately as a trial court. If this Court exercises original jurisdiction here, a special master should be appointed to preside over the pretrial and trial proceedings. 3 While this Court could give broad powers to such a special master without abdicating its judicial duties, guide- lines for use of masters by district courts could be followed here. For example, Federal Rule of Civil Procedure 53(e)(2) states: “In an action to be tried without a jury, the court shall accept the master’s findings of fact unless clearly erroneous.” In discussing the scope of review of a master’s findings, Professor Moore states: Since mere objections [to the master’s report] would compel the court to review the whole case, and thus would defeat the very purpose of reference, such rE’ —_— FEN 8 AONE vague and general objections should be overruled. 5A Moore, FEDERAL Practice 2994 (2nd ed. 1971). (Emphasis added ) In fact, the clearly erroneous rule stated in Rule 53(e) (2) has the same meaning as in Rule 52(a) relating to appel- late review of district court findings of fact. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689 (1946); Dyker Bldg. Co. v. United States, 182 F.2d 85 (D.C. Cir. 1950); Lupton v. Chase National Bank of City of New York, 89 F. Supp. 393 (D.C. Neb. 1950). Thus, traditional standards for using a special master provide an excellent framework whereby this Court can expedite proceedings. The taking of evidence and deter- mination of factual disputes can be done by the master and reviewed by this Court on the same basis that an appellate court normally reviews factual findings by a trial judge, and on the same basis that this Court nor- mally reviews findings of fact by lower courts on direct appeals. Meanwhile, this Court would decide all critical motions and grant or deny the ultimate relief sought. Such an arrangement would eliminate inconsistent and conflicting results and would expedite the final determi- nation of this litigation by avoiding the interlocutory ap- peals and similar delaying tactics prevalent in these cases from their inception. LaBuy v. Howes Leather Co., 352 U.S. 249 (1937), relied upon by defendants, supports rather than detracts from plaintiffs’ proposal for a master in the present case. In LaBuy, this Court held that a district. judge, clearly competent to handle an antitrust case, abused his judicial powers by delegating the trial to a practicing lawyer who was not an experienced trial judge, particularly where the 15 judge himself was already familiar with the case because of extensive pre-trial proceedings. The Court observed that appointment of a busy lawyer as master usually re- sults in a delayed decision, and emphasized that complex cases require trial judges rather than ad hoc inexperienced substitutes. For this reason and for the reasons stated in Part III, plaintiffs believe that this Court shéuld select as master an experienced trial judge, already familiar with the issues be- cause of extensive pre-trial proceedings, and whose efforts will contribute to expedition, not delay, of the final deci- sion. Plaintiffs previously suggested, and now urge that Judge Manuel Real be appointed special master by this Court for the fair, efficient and expeditious processing this case requires. 9. The Equitable Relief Sought by Plaintiff States Is the Most Appropriate Remedy for the Continuing Loss or Damage Caused by Defendants’ Alleged Sherman Act Violations. The Clean Air Amendments of 1970 in No Way Detract From the Traditional Powers of an Equity Court Sitting in an Antitrust Case. (Reply to Def. Supp. Mem. pp. 15-33) Defendants’ argument that this case involves “political” considerations (see Def. Supp. Memo e.g., p. 8, heading p. 9, and p. 24) requiring “policy decisions” ( é.g., pp. 10, 21) completely and deliberately misapprehends the nature of this lawsuit. The principal relief sought is a mandatory injunction requiring defendants to cause to be installed at their expense effective antipollution control equipment on all pre-1968 motor vehicles in the United States (Comp. p. 13 Prayer, 4). The “disputed question of the power of any IRE