Memorandum — Washington v. General Motors Corp.

ii

TABLE OF AUTHORITIES—Continued

Texas V. Pankey, 441 F. 2d 226 (10th Cir. 1971) .....

United Mine Workers v. Gibbs, 3838 U.S. 715

(1966)

United States v. Brosnan, 363 U.S. 287 (1960) ......

United States v. Frankfort Distilleries, Inc., 324

U.S. 2938 (1945)

United States v. Standard Oil Co., 382 U.S. 301

(1947) .

United States v. Yazell, 8382 U.S. 341 (1966) ........

Wallis v. Pan American Petroleum Corp., 884 U.S.

63 (1966)

West Virginia ex rel. Dyer v. Sims, 841 U.S. 22

CRE? wc

Wheeldin v. Wheeler, 8373 U.S. 647 (1968) 0.00.0...

Statites:

Act of October 20, 1965, Public Law No. 89-272,

79 Stat. 992 ....

United States Code, Title 15, § 1

United States Code, Title 15, § 26 ...

United States Code, Title 28, § 1881... 3, 10,

United States Code, Title 28, § 1652

United States Code, Title 42, § 1857 et seq. -......... 4,

Miscellaneous:

me MeRpEEE

Hart, The Relations Between State and Federal

Law, 54 Colum. L. Rev. 489 (1954)

Mishkin, The Variousness of “Federal Law’: Com-

petence and Discretion in the Choice of National

and State Rules for Decision, 105 U. Pa. L. Rev.

797 (1957)

Note, The Federal Common Law, 82 Harv. L. Rev.

1512 (1969)

S. Rep. No. 408, 90th Cong., Ist Sess. (1967) ........

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) ....

Wechsler, The Political Safeguards of Federalism:

The Role of the States in the Composition and

Selection of the National Government, 54 Colum.

L. Rev. 543 (1954)...

C. Wright, Law of Federal Courts § 60 (2d ed.

1970)

EMSS ELE EOL EBT ME LOI OLY IP RATNER HO eat PAPE ee RON RES

Page

. 10,14

12, 18

11

8

2

18, 14

5

10, 11

11

11

14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 45 Original

STATE OF WASHINGTON, ET AL.,

Plaintiffs,

Vv.

GENERAL MOTORS CORPORATION, ET AL.,

Defendants.

DEFENDANTS’ MEMORANDUM ON SOURCE OF LAW

On January 18, 1972, this Court by telegram directed

the parties in Nos. 45, 49 and 50 Original to file memo-

randa on the following issue:

“Would federal or state law govern the substantive

issue sought to be presented for decision in original

actions such as this one?”

This memorandum is submitted in answer on behalf of

defendants."

1 The parties and amici in this proposed action have previously

filed a number of briefs supporting or opposing filing of the com-

plaint. On August 5, 1970, plaintiffs filed their Motion for Leave

to File Complaint and Brief in Support (“Br. In Supp.”). Defend-

ants’ Brief in Opposition (“Br. In Opp.”) was filed on October 6,

1970. Plaintiffs thereafter filed a Reply Brief (“Reply Br.”) on

November 2, 1970, and a Supplemental Memorandum of Law

(“Supp. Mem. of Law”) on February 12, 1971. On August 81, 1971,

an amicus brief was filed by sixteen States and the City of New

2

Plaintiffs’ proposed complaint in this Court consists of

three counts, alleging a violation of the federal antitrust

laws (Count I), a “common law” conspiracy to restrain

trade (Count II), and creation or maintenance of a pub-

lic nuisance (Count III). Plaintiffs have consistently

urged that Counts I and II present federal claims, and in

their Supplemental Memorandum of Law (at 3-5) ap-

parently contend that Count III does so as well. As our

earlier briefs herein have indicated, the antitrust claim

stated in Count I is governed by federal law, but Counts

II and I1I]—which we believe to be merely make-weight

attempts to induce the Court to accept jurisdiction—are

necessarily governed by state law. Regardless of the

source of law applicable to Counts II and III, however,

defendants submit that lower federal and state courts are

available as forums to try these claims, and consequently

this Court should decline to accept original jurisdiction

over them.

In the first part of this memorandum we develop more

fully our view of the source of law governing each of

the counts of plaintiffs’ complaint. In the second part we

examine the bearing of the source of law question on the

availability of lower federal and state court forums and

_ the issue as to whether this Court should accept juris-

diction in this case.

A. Source of Law

Count I

Plaintiffs allege in. their complaint that Count I is

brought under Section 16 of the Clayton Act, 15 U.S.C.

“$26, to restrain the defendants from violating Section 1

York. On December 23, 1971, defendants filed a Supplemental

Memorandum in Opposition (“Supp. Mem.”). Although none of

these briefs: was directed principally to the question of source of

law, both plaintiffs and defendants have discussed that question

previously, and reference to these prior discussions will be made in

this memorandum where appropriate.

ca A een te trated ae cn fe cee SP

3 ?

of the Sherman Act, 15 U.S.C. §1 and to obtain certain

mandatory injunctive relief. Complaint, Count I, para. 2.

The claim is clearly a federal one? —

Count II

According to plaintiffs, Count II of their proposed com-

plaint alleging a “common law conspiracy” was

“brought under this Court’s general equitable powers

granted by Article III, Section 2, of the United States

Constitution, independent of the Sherman and Clay-

ton Acts, to eliminate and remedy conspiracies in

restraint of trade... .” Complaint, Count II, para.

2.

Plaintiffs evidently attempt in Count II to state a federal

common law claim cognizable in the federal courts.

Count II apparently invokes a body of judge-made law

of trade restraints, totally separate from the Sherman

and Clayton Acts and establishing both primary and re-

medial rights and duties. But if such ‘a body of non-

statutory antitrust law exists at all, it is clearly not fed-

eral law.

When Congress enacted the Sherman Act in 1890 and

condemned “[e]very contract, combination in the form of

trust or otherwise, or conspiracy, in restraint of trade,”

15 U.S.C. §1, it “left no area of its constitutional power

unoccupied; it ‘exercised all the power it possessed.’ ”

? Although federal law governs Count I, defendants believe that

numerous questions involving the effect of various state emissions

control laws and regulatory actions will be raised both in deter-

mining whether defendants’ cooperative program violated the anti-

trust laws and in considering whether or what equitable relief can

appropriately be granted. Cf. Parker v. Brown, 317 U.S. 341

(1943) ; Silver v. New York Stock Exchange, 373 U.S. 341 (1963).

’ The two virtually identical district court complaints filed on

behalf of eight of the plaintiffs here allege that the jurisdictional

basis of this claim is 28 U.S.C. § 1881. See Defendants’ Supp.

Mem., p. 34 n.44.

acim I PION ; : Nk. te

4

United Stctes v. Frankfort Distilleries, Inc., 824 U.S. 298, .

298 (1945,, quoting Apex Hosiery Co. v> Leader, 310 U.S.

469, 495 (i940). From that point on, judicial develop-

ment.of the federal law of trade restraints has necessarily

been a matter of statutory interpretation, not of common

law. Any common law of conspiracy in restraint of trade

that is “independent of the Sherman and Clayton Acts”

must therefore be state law. As we will now show, the

‘general presumption against federal common law rein-

forces this conclusion,

Count III

In Count III of their complaint, captioned “Public

Nuisance,” plaintiffs allege that emissions from motor ve-

hicles manufactured by defendants “cause severe dam-

age to the flora and fauna of Plaintiff States” (Com-

plaint, Count ITI, para, 9), and that the manufacture and

sale of motor vehicles “as presently engineered and de- -

signed . . . constitute a public nuisance contrary to the

public policy of the Plaintiff States, as well as the federal

government.” * Plaintiffs do not allege in Count III that

defendants have violated the provisions of any federal

law or regulation, and in their briefs they urge that

“Count III does not involve a federal question for pur-

poses of giving jurisdiction to any federal district court

....” Plaintiffs’ Br. in Supp., p..16; and see Plaintiffs’

Reply Br., pp. 10 & n.4, 12.5

On the other hand, while plaintiffs have made no alle-

gation in their complaint that “the air that lies within

their domain” (Complaint, Count III, para. 3) is polluted

*As a statutory reference to the federal policy, plaintiffs cite

“42 U.S.C., § 1857(4) (8).” Although we can find no statute with

this number, the reference is apparently to general congressional

findings and purposes of the Clean Air Act, which we discuss

infra pp. 10-11.

°In their virtually identical district court complaints, eight of

the present plaintiffs allege pendent jurisdiction over Count ITI.

Defendants’ Supp. Mem., pp. 7-8, 34 n.44.

During the district court pretrial hearing of February 17, 1972

(see note 12 on page 12), Fredric C. Tausend, Special Assistant

2p SURES OF ee See pe LO - “fy Seat ope \ APRESS, Reals a a Fi . : FA i te oS)

— ——_— ‘ HMO LALOR NE SLA EG IT TR RE OHNE ER LEE a NE

by emissions from motor vehicles operated outside of, or

across, their respective state borders, they nonetheless as-

sert in their Supplemental Memorandum of Law that the

emissions from motor vehicles manufactured by the de-

fendants constitute a “national nuisance” and that Count

III is therefore governed by “an interstate or national

common law.” Plaintiffs’ Supp. Mem, of Law, pp. 8-5.

In urging that Count III states a claim under “interstate

common law,” plaintiffs rely on the fact that this Court

has from time to time fashioned and applied a federal

common law in original actions between States. Jd., p. 3.

They further assert that this Court applied federal com-

mon law in at least.one suit by a State against the citi-

zens of another State, namely, Georgia v. Tennessee Cop-

per Co., 206 U.S. 280 (1907).° Jd., p. 4.

Plaintiffs’ line of argument entirely misapprehends the

principles established by this Court to determine whether

“federal common law” or state law is applicable in ac-

tions brought in the Supreme Court and other federal

courts. This Court’s decisions demonstrate that under the

regime of Erie R. Co. v. Tompkins, 504 U.S. 64 (1988),

any common law applied in actions in the federal courts

must be state common law, unless it can be demonstrated

that the effectuation of a federal constitutional or statu-

tory policy requires that one or more of the issues in the

action be determined exclusively by federal common law.

Moreover, the basic constitutional presumption in favor of

State competence elucidated in the Erie decision ® is rein-

Attorney General for the State of Washington, counsel of record for

plaintiff States here and for. eight States in their district court

complaints, stated as follows:

“We don’t think this is a nuisance action, as Mr. Verleger sug-

gests. We are now convinced and think that it is an antitrust

action, and so we have now stricken Count Three.” Transcript,

p. 116.

* The presumption in favor of the application of State law, and

against the application of federal common law, is expressed in

the Rules of Decision Act, 28 U.S.C. §1652. The constitutional

sources of the presumption are ably explored in Hart, The Relations

6

forced here by the only federal policy implicated by Count

III of plaintiffs’ Complaint—Congressional declaration in

the Clean Air Amendments of 1970 that the problem of

emissions from vehicles already in use should be dealt

with by.the States, and not by the federal government.

This policy obviously strengthens, rather than rebuts, the

Erie presumption in favor of the application of state law

‘o plaintiffs’ “nuisance” claim. |

A correct analysis of the question of what law applies

to Count III must begin with the recognition that it is the

nature of the interests involved—State or federal—and

not the identity of the parties—United States, State or

private—that primarily determines the source of applica-

ble law. “[E]nclaves of federal judge-made law which

bind the States” have been created where “necessary to

protect uniquely federal interests,” Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 426 ( 1964), and these

federal interests may be present, along with State inter-

ests, in actions involving a variety of parties. Thus is-

sues both of “federal common law” and of state law have

arisen in actions between private parties ( c.g., Bank of

America vy, Parnell, 352 U.S. 29 (1956) ), in actions be-

tween States (compare Texas v. New Jersey, 379 U.S.

674 (1965), with Arkansas Vv. Texas, 346 U.S. 368

(1953) ) and in actions involving the United States (com-

pare Clearfield Trust Co. v. United States, 318 U.S. 368

(1943), with United States v. Yazell, 382 U.S. 341

(1966) ). None of the few post-Erie decisions of this

Court involving an action between a State and a citizen

of another State has involved the application of “federal

common Jaw.” And last Term in Ohio v. Wyandotte

Between State and Federal Law, 54 Colum. L. Rev. .489, 497-98,

525-39 (1954); Wechsler, The Political Safeguards -of Federalism:

The Role of the States in the Composition and Selection of the Na-

tional Government, 54 Colum. L. Rev. 543, 544-45 (1954) ; Mishkin,

The Variousness of “Federal Law”: Competence and Discretion in

the Choice of National and State Rules for Decision, 105 U. Pa. L.

Rev. 797, 810-14 (1957 ds

5 ee ro a a ee SPEDER ESAT 2 neo TREN TR NRE UNS RE TE ES NREL a en ea a SR i

7

Chemicals Corp., 401 U.S. 493 (1971), the applicability

of federal law was expressly rejected.’

In Erie the Court laid down the basic principle for

determining the source of applicable law i. all kinds of |

actions in the federal courts:

“Except in matters governed by the Federal Consti- —

tution or by acts of Congress, the law to be applied

in any case is the law of the state.... There is no

federal general common law.” 304 U.S. at 78.

In Hinderlider v. La Plata River Co., 804 U.S. 92 (1938),

decided the same day as Erie, and in subsequent deci-

sions, the Court has frequently been required to develop

or approve “federal judge-made law.” But unlike “the

free-wheeling days antedating Erie,” Wheeldin v. Wheel-

er, 373 U.S. 647, 651 (1963), the instances where federal

common law is created have been restricted to situations

in which federal interests, as expressed in the Constitu-

tion or in federal statutes, have required that a uniform

federal rule displace state law as the basis of decision.

Thus, because the logic of the Constitution excludes

' state competence in these areas, federal judge-made law

has been held to govern such matters of potential con-

flict between States as the construction of interstate com-

pacts, West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28

(1951), interstate boundary disputes, and the apportion-

ment of interstate waters. Hinderlider v. La Plata River

Co., supra. Similarly, since States have no foreign rela-

tions responsibility under the Constitution, federal com-

mon law governs determinations of the validity of acts of

a foreign government. Banco National de Cuba v. Sab-

batino, supra, Federal interests expressed in acts of Con-

gress have likewise from time to time necessitated the

" Because Georgia v. Tennessee Copper Co., supra, antedates Erie, .

the source of law problem was not perceived as an important con-

stitutional question, and there is little point in examining the de-

cision for indications as to what law the Court thought it was

applying. For what it is worth, however, passages such as the

enemas EE RI

8

formulation of a “federal common law” to displace state —

law. See, e.g., Clearfield Trust Co. v. United States,

supra; United States v. Standard Oil Co., 382 U.S. 301

(1947) ; Textile Workers Union v. Lincoln Mills, 353 U.S.

448 (1957); Hanna v. Plumer, 380 U.S. 460 (1965).

Conversely, the Erie mandate of respect for State in-

terests has dictated a conservative approach to parties’

assertions that a federal interest is present requiring the

application of federal common law. As this Court noted

in Wallis v. Pan American Petroleum Corp., 884 U.S.

68, 68 (1966) :

“In deciding whether rules of federal common law

should be fashioned, normally the guiding principle

is that a significant conflict between some federal

policy or interest and the use of state law in the

premises must first be specifically shown. It is by no

means enough that, as we may assume, Congress -

could under the Constitution readily enact a com-

plete code of law governing [such] transactions .

Moreover, even where a federal interest has been shown,

there are “other questions relevant to invoking federal

common law, such as the strength of the state interest in

having its own rules govern,” and “the feasibility of

creating a judicial substitute.” Id. See also United States

v. Brosnan, 368 U.S. 237 (1960); Klazon Co. v. Stentor

Mfg. Co., 318 U.S. 487 (1941).

The Court’s approach of keeping the application of

federal common law confined ‘e situations which are

relatively “few and restricted,” Wheeldin v. Wheeler,

supra, 378 U.S. at 651, rests on several practical consid-

following suggest strongly that it was Georgia's laws which con-

demned the copper company’s activities:

“(Georgia] has the last word as to whether its mountains

shall be stripped of their forests and its inhabitants shall

breathe pure air. It might have to pay individuals before it

could utter that word, but with it remains the final power.”

206 U.S. 287.

9

erations of federalism, as wel’ as on the requirements of

the Constitution. Manifestly, it is desirable in most areas

of substantive law that the States be permitted, where

possible, to experiment with different legal rules and to

tailor those rules to meet their own local needs. Rules of

federal common law, however, must be uniform through-

out the federal union, and under the Supremacy. Clause

they displace state laws inconsistent with them, in state

courts as well as in federal courts. See Hinderlider v.

La Plata River Co., supra; Banco Nacional de Cuba v.

Sabbatino, supra. Moreover, the development of a work-

able mutually consistent body of common law rules in a

given field is a burden that can best be carried by the

courts before which cases in that field are regularly

heard. See Note, The Federal Common Law, 82 Harv. L.

Rev. 1512, 1519 (1969). Thus, for example, the “ap-

plication of state laws concerning taxes, motor vehicles,

decedents’ estates, business torts, government contracts,

and so forth,” Ohio v. Wyandotte Chemicals Corp., supra,

401 U.S. at 497 (emphasis supplied), typically occurs in

state courts, and it is the state courts which therefore

should normally develop and apply such common law

rules as are required in these fields. Jd.

In light of these principles, the conclusion is inescap-

able that Count III should be adjudicated under state law

(specifically, under the laws of each of the States seeking

to abate the alleged “nuisance” created by motor vehicles

manufactured by defendants), subject, of course, to any

defenses available to the manufacturers based on the pre-

emptive effect of federal air pollution legislation. No

provision of the Constitution or any federal statute re-

quires this Court to develop a federal common law of

motor vehicle emissions to override the police power of

®For reasons to be stated shortly, p. 10 & n.11, infra, the

applicability of state law to the vehicle manufacturers is limited, so

far as vehicle emissions are concerned, by the existence of federal

statutory and administrative regulation of emissions from newly-

manufactured cars.

Desbie, De Bes AP PRS AR IRS uae tuys K eT Fre é SUT O19 at DERE Fea

— RAN HAE AORN REN aN iia

10:

the States in this field. No interstate conflict is suggested,

and no reason appears for totally denying State power

over motor vehicle emissions. Indeed, since the effect of

vehicle emissions varies widely from State to State, and

within each State as well, depending on local air condi-

tions, population density and other variables,® this is a

perfect example of a field in which local solutions and local

experimentation ought not to be displaced by federal

judge-made law.*°

Any doubt on this score is dispelled by the fact that

Congress has reached the same conclusion. As we have

noted both in our original Brief In Opposition, pp. 22-24,

and in our Supplemental Memorandum, pp. 26-28, Con-

gress has made the States responsible for bringing local

air into compliance with regional air quality standards,

42 U.S.C. §§ 1857c-2, -5 (1970), and as part of this regu-

latory scheme, it has expressly reserved to the States the

power to regulate vehicle emissions (except for emission

® See Defendants’ Supp. Mem., pp. 28-29 and n.37.

10 The decision of the Tenth Circuit Court of Appeals in Texas

v. Pankey, 441 F.2d 236 (10th Cir. 1971), deserves only brief

comment. In Pankey a federal district court dismissed for lack of

diversity or other jurisdiction a suit by the State of Texas to

enjoin New Mexico citizens from using pesticides which allegedly

polluted the water supplies of Texas municipalities. The Court

of Appeals reversed and authorized the district court to commence

the creation of an entire body of federal judge-made law.

In light of the general principles discussed above, defendants be-

lieve that the Pankey decision is clearly wrong in holding that the

claim pleaded arose under federal common iaw. Indeed, in the

Wyandotte case—handed down a month after Pankey—this Court

held that a claim essentially identical to that in Pankey, “if other-

wise cognizable in. federal district court, would have to be adjudi-

cated under state law” and that there would be no “federal question

jurisdiction . . . under 28 U.S.C. § 1381.” 401 U.S. at 498-99 n.3.

In any event, the Pankey court’s holding on source of law is

distinguishable from the instant case where, as we will show

presently, Congress has now imposed federal emission control reg-

ulation on manufacturers of new vehicles and has expressly left

to the States—and not federal judiciary—the making of law

applicable to emissions from motor vehicles currently in use. “~~

11

~ controls on newly-manufactured vehicles), 42 U.S.C.

§ 1857f-6a(c) (1970); S. Rep. No. 408, 90th Cong., 1st

Sess. 34 (1967). The Congressional decision to leave used

‘car emissions to State control is buttressed by a finding

that the problem is not manageable at the federal level.

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 13-14 (1970).

Since Congress has declined to exercise its legislative

power over vehicles already in use and has left the mat-

ter to the States, it would be most inappropriate for this

Court to regulate emissions from vehicles in use by in-

voking judge-made federal common law.

B. Availability of Alternative Forums

Irrespective of the applicable source of law, lower fed-

eral and state courts are available as forums to hear all

of plaintiffs’ claims, and consequently no reason exists for

this Court to accept original jurisdiction in this case.

With regard to Count I, the availability of alternative

forums is obvious. As defendants have pointed out pre-

viously, there are numerous federal district court forums

in which plaintiffs can maintain this claim, forums which

these same plaintiffs and other States have previously

found adequate in other cases States have brought under

the federal antitrust laws. Indeed all the plaintiffs in

“

11 Emissions from new vehicles have been subjected to direct fed-

eral control since 1965. Act of October 20, 1965, Public Law No.

89-272, 79 Stat_992. See discussion in Defendants’ Supp. Mem., pp.

18-20. State regulation of emissions from new vehicles before they

are sold and become “used” is expressly preempted, 42 U.S.C.

§ 1857f-6a(a), as to all States except California, for which waivers

of preemption may be granted under specified circumstances. 42

U.S.C. § 1857f-6a(b). Accordingly, plaintiff States cannot assert

any “nuisance” claim, state or federal, against manufacturers for

selling new vehicles that were subject to the federal emissions

Standards, since such a claim amounts to nothing more than an

effort by the States-retroactively to regulate emissions from newly-

manufactured vehicles. ;

-12

this proposed action have filed complaints against defend-

ants in federal district courts containing the same anti-

trust claims and including the same prayers for relief

as the complaint sought to be filed herein (es well as a

prayer for damages), and alleging that the district

courts have jurisdiction over these claims (as well as

over Counts II and III). See Defendants’ Supp. Mem.,

pp. 33-35. These complaints have all been consolidated

by the Multidistrict Litigation Panel for pretrial proceed-

ings in the Central District of California.”

Other forums than this Court are readily available to

hear Count II of plaintiffs’ complaint as well. Plaintiffs

have incorporated into Count II all of the factual allega-

tions of Count I and have stated that “[t]he evidence

which would be introduced to prove Count II is identical

to that needed to prove Count I.” Plaintiffs’ Supp. Mem.

of Law, p. 2. If this is so, plaintiffs’ common law con-

spiracy claim can be heard not only in the plaintiffs’ own

state courts (which, as this Court held in Ohio v. Wyan-

dotte Chemicals Corp., supra, provide an adequate forum

for trying state common law claims) but also in a fed-

eral district court. Having jurisdiction over the federal

statutory antitrust claim, the district court would also

have pendent jurisdiction over the state common law

claim of Count II under the criteria laid down in United

2 The plaintiff States have now joined with other public body

plaintiffs below in a proposal to the district court that they would

amend their complaints to drop their damage cliams if the court

would set a trial date of December 1972 for the remaining equitable

claims of the public body plaintiffs. At a pretrial hearing on Feb-

ruary 17, 1972, the court deferred final action on this proposal, pend-

ing further consideration after the issuance of notices to the mem-

bers of the governmental classes pleaded by the plaintiff States and

other public bodies in the district court complaints, notifying them

of the class action proceedings and informing them of the pro-

posal. The court has scheduled a further pretrial conference for

March 7, 1972, to consider the form of the proposed notices.

13

Mine Workers v. Gibbs, 888 U.S. 715 (1966). See De

fendants’ Supp. Mem., p. 8 n.5.%

Lower federal and state courts also provide available

forums in which plaintiffs can bring suit on the theory

embodied in Count III of their present complaint regard-

less of the applicable source of law.

If this Court agrees with defendants that Count III

presents a state claim, then plaintiffs will be able either

to raise it in federal district court as ancillary to Counts

I and II or to bring a separate action upon it in their

own State courts. If the factual basis of Count III is

sufficiently similar to Counts I and II that the plaintiffs

should “be expected to try them all in one judicial pro-

ceeding,” United Mine Workers v. Gibbs, supra, 383 U.S.

at 725, the district court could properly exercise its

pendent jurisdiction over Count III. See Defendants’

Supp. Mem., pp. 7-8. On the other hand, if the claims in

Count III are so different that pendent jurisdiction would

not exist, there is no reason why this Court should make

itself available as a tribunal simply to enable plaintiffs to

join the antitrust and nuisance claims in one action, and

plaintiffs should be required to bring their antitrust claim

in the federal courts and their “nuisance” claims in their

own State courts.

**In their most recent brief that defendants have seen, plaintiffs

have described Count II as

“a contingent or supportive claim, included as a hedge against

- @m argument ... that the equitable relief available under

Section 16 of the Clayton Act is less broad than the powers

- an equity court at common law.” Plaintiffs’ Supp. Mem. of

a 2,

To the extent plaintiffs’ claim can be read as requesting a private,

non-statutory remedy for violation of substantive rights under

the federal antitrust statutes, then it presents a federal question

cognizable in the district courts under 28 U.S.C. § 1331. Cf. J. J.

Case Co. v. Borak, 877 U.S. 426 (1964). The question of whether

such a remedy exists can and should be answered in the first in-

stance by the federal district courts in the pending lower court

actions.

14

Should this Court accept plaintiffs’ argument that Count

III presents a federal claim, then a federal district court

should have jurisdiction to hear it under 28 U.S.C. § 1831

(a). See, eg., Texas v. Pankey, 441 F.2d 286 (10th Cir.

1971); Ivy Broadcasting Co. v. American Telephone &

Telegraph Co., 391 F.2d 486, 492-93 (2d Cir. 1968);

Romero v. International Terminal Operating Co., 358

U.S. 354, 393 (1959) (opinion of Brennan, J.); C.

Wright, law of Federal Courts § 60, at 250 (2d ed.

1970). Moreover, even if a claim based entirely on “fed-

eral common law” could be held not to “arise under” the

laws of the United States within the meaning of 28 U.S.C.

§ 1331(a), such a claim, if presented in Count III, still

might well be joined in the district court with Count I

as a pendent claim. In such a situation the issue pre-

sented would be “so essentially one ‘of federal policy that

the argument for exercise of pendent jurisdiction is par-

ticularly strong.’” Rosado v. Wyman, 397 U.S. 397, 404

(1970). —

In sum, regardless of the source of law applicable to

‘the three counts of plaintiffs’ complaint, lower federal

and state courts afford available forums in which plain-

tiffs can bring their suit. Accordingly, the source of

t

15

}

law issue is no reason for this Court to accept original

jurisdiction in this case.

Respectfully submitted,

WALTER J. WILLIAMS

14250 Plymouth Road

Detroit, Michigan 48232:

FORREST A. HAINLINE, JR.

Cross, WROCK, MILLER &

VIESON

Penobscot Building

Detroit, Michigan 48226

Attorneys: for Defendant

American Motors

Corporation

LLOYD N. CUTLER

LouIs F. OBERDORFER

JAMES S. CAMPBELL

WILMER, CUTLER & PICKERING

900 - 17th Street, N.W.

Washington, D.C. 20006

JULIAN O. VON KALINOWSKI

PAUL G. BOWER

GIBSON, DUNN & CRUTCHER

634 South Spring Street .

Los Angeles, California 90014

Attorneys for Defendant

Automobile Manufacturers

Association, Ine.

TOM KILLEFER

PAUL A. HEINEN

WILLIAM E. Huta

Chrysler Corporation

340 Massachusetts Ave.

Detroit, Michigan 48231

G. WILLIAM SHEA

PHILIP K. VERLEGER

MCCUTCHEN, BLACK, VERLEGER

& SHEA

80th Floor

8435 Wilshire Blvd.

Los Angeles, California 90010

Attorneys for Defendant

Chrysler Corporation

WRIGHT TISDALE

Ford Motor Company

The American Road

Dearborn, Michigan 48121

ROBERT L. STERN

ROGER W. BARRETT

MAYER, BROWN & PLATT

231 South LaSalle Street

Chicago, Illinois 60604

CARL J. SCHUCK

ERNEST E. JOHNSON

OVERTON, LYMAN & PRINCE

550 South Flower Street

Los Angeles, California 90017

Attorneys for Defendant

Ford Motor Company

Ross L. MALONE

ROBERT A. NITSCHKE

General Motors Building

Detroit, Michigan 48202

HAMMOND E. CHAFFETZ

JOSEPH DUCOEUR

KIRKLAND & ELLIS

Prudential Plaza

Chicago, Illinois 60601

MARCUS MATTSON

RICHARD F. OUTCAULT, JR.

LAWLER, FELIX & HALL

605 West Olympic Boulevard

Los Angeles, California 90015

Attorneys for Defendant

General Motors Corporation

Bote Goel. See

No. 45 Original

Feb. 26, 1972 = Special appendix

(reporter's transcript) to

Plaintiffs' memo. on choice of

subst. law and brief in reply

to Defentants' supplemental

memorandum filed. NOT PRINTED.

(See correspondence folder.)

IN THE

Supreme Court of the United States

OcToBER TERM, 1971

No. 45 Original

STATE OF WASHINGTON, et al., Plaintiffs,

Vv.

GENERAL Motors Corporation, et al., Defendants.

Plaintiffs’ Motion for Leave To File a Supplemental

Memorandum After Argument

’ Pursuant to the provisions of Rule 9(2) and (6)

- and Rule 41(5) and (6) of the Rules of this Court,

plaintiffs hereby move for leave to file a supple-

mental memorandum after argument in light of this

Court’s decision in Hawaii v. Standard Oil Co. (No.

70-49, decided March 1, 1972). )

By clarifying the rules regarding actions brought

_ by states under the antitrust laws on behalf of them-

_ selves and their citizens, the Hawaii case has a direct