# Amicus Curiae Brief — Goldfarb v. Virginia State Bar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0430%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 773 ## Text Question presented_____----------------------- Interest of the United States________---._------ PGi hg a hn bance been nek A. The district court’s findings and decision ---- B. The court of appeals decision-------------- Summary of argument...... 2... .--........-.. PN oii co shank ne nee kGan shams wil te I. Introduction—The legal profession and min- imum fee schedules - _----------------- A. The legal profession---------------- B. The nature of fee setting and the role of minimum fee schedutes--_--_- ---- II. The prohibitions of the Sherman Act apply to restraints of trade among members of “pernsd protemionie’ . . . .....2........ A. Neither the language nor legislative history of the Sherman Act justifies an exemption for competitive re- straints by members of “learned OIE oo. uke rekc sake B. This Court has never recognized a Sherman Act exemption for mem- bers of “learned professions’’-_ - -- - - 'C. Application of the Sherman Act to the commercial aspects of law practice will serve the purposes of the Sher- man Act without disserving any important interest underlying the regulation of the practice of law--- 89) 566-536—74-——-1 21 21 23 25 II Argument—Continued Page III. The minimum fixed fee schedule restrains _ interstate commerce _________________- 31 A. Locally-oriented restraints are pro- hibited by the Sherman Act if, viewed either in isolation or as part of a general practice, they may significantly affect “interstate com- EC eng Naty GSCI ng ek OT a 32 “'B. The restraints challenged in this case substantially affect interstate com- ia ied wu wewiencane 32 IV. The actions of the state bar in proposing and enforcing the challenged. minimum fee schedule are not exempt from the Sherman Act as involving “state action’’_ 34 MINS ees a ek ce ee 48 PI os cee hd cs id wk la CITATIONS Cases: American Medical Ass’n v. United States, a a ee hes ote 22, 24 Apex Hosiery Co. v. Leader, 310 U.S: 469____ 30, 31 Asheville Tobacco Bd. of Trade, Inc. v. Federal Trade Commission, 263 F. 2d 502________- 40, 41 Atlantic Cleaners & Dyers, Inc. v. United Piaies, BOG WB. MRT eo 22, 24, 25 Burke v. Ford, 389 U.S. 320_......_________ 31 California v. Federal Power Commission, 369 Ri Ms ke ee ee i a bc ems: 22, 43 Chevron Oil Co. v. Huson, 404 U.S. 97______- 48 Continental Ore Co. v. Union Carbide & Car- bon Corp., 370 US: 000... osc. 43 Eastern R.R. Presidents Conf. v. Noerr Motor Preige; Tat., HG VB. 197 30 Edelman v. Jordin, BAD AI. COR conc cdnus 47 Ill Cases—Continued Page Fashion Originators’ Guild of America, Inc., v. Federal Trade Commission, 312 U.S. 457 - - - 28 Federal Baseball Club of Baltimore, Inc. v. Na- tional League, 259 U.S. 200_------------ &, 23, 24 Federal Trade Commission v. Raladam Co., ~~ AT OS on cccmeenademonen 8, 23, 24 Flood vy. Kuhn, 407 U.S. 258. -.------------ 2 Freeman, In re, Estate of 34 N.Y. 2d 1, 311 N.E: 23d 480, 356 N.Y: 94.:006....----..-. 17, 40 Fuller v. Oregon, 417 U.S. 40....----------- 12 ‘Gas Light Co. v. Georgia Power Co., 404 F. 2d 1135, certiorari denied, 404 U.S. 1062- - - -- 42 George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F. 2d 25, certiorari denied; 400 0.5. S50. 2... -+---- nanan ten 41,44 Gibson v. Berryhill, 411 U.S. 564_...-------- 40 Gulf Oil Corp. v. Copp Paving Co., No. 73- 1012, decided December 17, 1974_-------- 32 Hecht v. Pro-Football, Inc., 444 F. 2d 931-_--- 44 Hyde v. Moxie Nerve Food Co., 160 Mass. 559, 96 3: Bs isn chwbneccctnaneeeess 15 Jackson v. Metropolitan Edison Co., No. 73- 5845, decided December 23, 1974- ----- 40-41, 42 Katzenbach v. McClung, 379 U.S. 294-------- 31 Lathrop v. Donohue, 367 U.S. 820_---------- 16 Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 344 U.S. 219_--------- 31 Merrill Lynch, Pierce Fenner & Smith, Inc. v. Wise. CAE Goo ee ner nas 44 * New Mexico v. American Petrofina, Inc., 501 DP. Oe Oe oa cnicn pce nebeeanueaae 41 Nymph, The, 18 Fed. Cases 506------4----- 25 Otter Tail Power Co. v. United States, 41 Northern Pac. Ry. v. United States, 356 \ 1_.. 25,28 US. \ £ IV Cases—Continued Page Parker v. Brown, 317 U.S. 341_ 2, 7, 8, 11, 34, 35, 39, 41, 42, 43, 46, 47 Radovich v. National Football League, 352 U.S. i cg irc oo wiki alten tots acu 22 Schwegmann Bros. v. Calvert Distillers Corp., RE Sie Ms ao eatin eames omc candi ~ 46 Silver v. New York Stock Exch., 373 U.S. 341__ 28, 44 Simpson v. Union Oil Co., 396 U.S. 13_____- 48 Standard Oil Co. v. United States, 221 U.S. 1_- 28 Super Tire Eng’g. Co. v. McCorkle, 416 U.S. EAM gc nen ii ccna can baud cow oe ee 48 United States y. American Institute of Archi- tects, Civ. No. 992-72 (D.D.C.), terminated by Consent decree June 19, 1972__ |). _____ 2-3 United States v. American Institute of Certified Public Accountants, Inc., Civ. No. 1091-72 (D.D.C.), terminated by consent decree PU Fa io ile etcnwapens ocho 3 United Mine Workers v. Pennington, 381 U.S. Os cde oo ob bh kis eee eke 30 United States v. American Soc’y of Civil Eng’rs, Civ. No. 72 C1776 (S.D.N.Y.), terminated by consent decree June 1, 1972_______.____ 2 United States v. Borden Co.; 308 U.S. 188____ 42 United Staies-v. Employing Plasterers’ Ass’n, We A Ans csc eek wane cack 31 United States v. Frankfort Distilleries, Inc., | A Ms nhs oo so ape eek week 31 United States v. National Ass'n of Rea! Estate SOON ee A ses oe ck 22, 24, 26, 27, 30 United States v. National Soc’y of Professional Engrs, Civ. No. 2412-72 (D.D.C.) decided stn FG, 30re. c 3, 29, la United States v. Oregon State Medical Soc’y, Oe MI Oo oS oatiue cu cunccucenncck 28 . Cases—Continued Page United States v. Oregon State Bar, No. 74-362 (D. Ore.), decided November 25, 1974---- 3, 28, 40, 42, 45, 47 United States v. Pacific S.W. Airlines, 358 F. Supp. 1294.....---------------------- * = 44 United States v. Philadelphia Nat'l Bank, 374 TE BOE on con cw nse ee neeees cennegne 22, 43 United States v. Prince Georges County Bd. of Realtors, Civ. No. 21545 (D. | a 2 United States v. Radio Corp. of America, 355 TIS, BOE wn cndicnsnenevns iitamecneges 43 United States v. Socony-Vacuum Oil Co., 310 1G AO oii ces kne nea geannne em 27 United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 - - ------------------- 23, 30 United States v. Topco Assocs, Inc., 405 ae ep ten aaeiheda ask +a 25-26, 28, 30 United States v. Trenton Potteries Co., 273 TOR oo oon pac cc po meade reese cnr" 27 United States v. Utah Pharmaceutical Ass'n, 201 F. Supp. 29, affirmed per curiam, 371 ee ee can ioarendornas- ener 22 United States v. Women’s Sportswear Mfrs. Ass'n, 336 U.S. 460- -------------------- 32 United States v. Wrightwood Dairy Co., 315 - AOR. ocak pera nese 31 Washington Gas Light Co. v. Virginia Elec. & Power Co., 438 F.2d 248. -- ------------- 41,42 Marjorie Webster Jr. College, Inc. v. Middle States Ass’n of Colleges & Secondary Schools, Inc. 432 F.2d 650, certiorari denied, 400 VI Constitution and statutes: Page United States Constitution: Eleventh Amendment_______.._______. 47 Fourteenth Amendment..._.__________ 41 Agricultural Marketing Agreement Act, 50 Stat. 246, as amended, 7 U.S.C. 601, et seq_- 35 Coasting and Fisheries Act of 1793, 1 Stat. BeOS AAI Selb is le OSL hc ano niet ay 25 Sherman Act, Section 1, 26 Stat. 209, as emnenged, 15 U8.C..1... 10, 23, 27, 29 Oe ae os eg 47 Ris 2) a) eer See ae 47 Oe er es Oe 34 aU ee Oe. ee 34 UD. Me a a 34 Us wee, ee 34 Cal. Bus. & Prof. Code Ann., Sec. 6160, et seq. o,f SARTO OT eed Cae ear ee an 13 Md. Code Ann., Sec. 23-441, et seq..-.______ 13 N.Y. Bus Corp. L. Ann., Sec. 1501, et seq. Nh ea a 13 Pa. Code Ann., Sec. 15-12601, et seg... ______ 13 Solicitors’ Act, 1957, as amended 5 & 6 Eliz. oi ee ee 46 Va. Code Ann.: Section 13.1-542 ef seg.........___._.__ 13 Sections 54-42.2-42.3.........._____ 13 th pans Seok te, OR MN 37 S|. 44 FD 38 Sections 54-59 (1972 Repl. Vol.)________ 7 Miscellaneous: American Bar ,;Ass’n, The Economics of the Legal Profession (1988) cbiimenions aso 3 Opinion No. 323, Gameniites on Ethics and Professional Responsibility, American Bar — SOE STE eR SaaS ak Sete RGR Re a DON ae laisse A — | Dpsoriationn (3070)... .....- 053 .,..... Prior to 1974, the state court was known as the Supreme Court of Appeals, but we shall refer to it by its current name. 38 the State Bar in good standing (ibid.), and it has done so. Article IV, Part Six, Va. Sup. Ct. R., 205 Va. 1033, as amended, 210 Va. 411. “Only active practitioners, the vast majority of whom practice privately (see p. 13, supra, n. 9), may. serve as officers of the State Bar. 205 Va. 1011, 1033. It is controlled by a Council consisting of attorneys elected from the state’s judicial circuits plus six judi- cially-appointed members and the President, the im- mediate Past-President and President Elect (Pet. App. B-11, n. 31). The State Bar derives funds from fees collected from member attorneys, which are de- posited in a State Bar Fund in the State Treasury, earmarked for use only by the State Bar, and dis- bursed on vouchers from officers of the State Bar. Va. Code 54-52. The Council has power “[t]o make alloca- tions of funds within the amounts available.’’ Rule 9(g¢), 205 Va. 1038. Thus, the State Bar is essentially a self-regulating organization of private persons operating under the aegis of state law and general rules established by the Supreme Court. It serves as the Court’s adminis- trative agency, to investigate and report upon viola- tions of the rules adopted for governance of the Bar. The Supreme Court has issued such rules, but they do not establish or provide for minimum fee schedules. See Articles IT and IV, Part Six, 205 Va. 1011, as amended, 210 Va. 411, 211 Va. 295.” *° Canon 12 of the Canons of Professional Ethics promulgated by the Supreme Court of Virginia, 205 Va. 1012, referred to “the customary charges of the Bar for similar services” as one of six factors that could properly be considered in fixing the fee. 7d, at 1015-1016. However, it also emphasized that “[n]o 39 The State Bar was involved in the promulgation and enforcement of the Association’s fixed fee schedules challenged here, and the parties have stipulated that the Supreme Court has declared “that suggested fee schedules and economic reports of the State Bar and of Local Bar Associations involve questions of ethics within the [authority of]” the State Bar and the Su- preme Court (Pet. App. A-19). The district court found that the State Bar has issued opinions (A. 45- 48) that in effect declare unethical the practice of habitually charging fees below those suggested in. a minimum fee schedule (Pet. App. A-5). Moreover, the State Bar distributed minimum fee schedule reports which became the basis for the minimum fee schedules published by local bar associations in Virginia, in- cluding the Association (id. at A-18). The fact that the Supreme Court has declared that suggested fee schedules and economic reports involve questions of ethics does not establish that the sched- ules are “state action.” Under Parker v. Brown the one of these considerations in itself is controlling.” /d. at 1016. “Customary charges” therefore appears to refer to the generally prevailing price level for the service, rather than to fixed fees as such. Effective January 1, 1971, the Supreme Court repealed the previous Canons of Professional Ethics and replaced them with the Code of Professional Responsibility promulgated by the American Bar Association. 211 Va. 295. Ethical Consideration 2-18 and Disciplinary Rule 2-106(B) (®) provide, respectiy ely, that suggested fee scheduies and “customary charges” in the couununity offer some guidance as to. refsonable fees. Jd. at 302, 213. The State Bar, however, has sin¢e declined to follow the ruling of the American Bar Association that even habitual failure to follow a m‘nimum fee schedule is itself not mis- conduct (see p. 3, supra, n. 4), and has_reaffirmed_its view that such conduct is unethical (A. 47-48).2 40 question is whether the state has authorized and re- quired such schedules, not whether it had sanctioned regulation of their use. See United States v. Oregon State Bar, supra (Pet. Br. App. B9-B13) ; ef. In re Estate of Freeman, discussed at p. 17, supra, n. 13. The fee schedules here were not required by any legislative commanc of the state,” and were not adopted, specifically approved, or directly enforced by the Supreme Court, the only arguably relevant state agency.” The court of appeals held dispositive the fact that the state court has a general statutory duty to supervise the State Bar in prescribing and enfore- ‘ing the court’s code of ethics for attorneys. The ‘‘state action” exemption, however, does not arise from the meré fact that economic activity is regulated by the state, even when that regulation is extensive and detailed. As this Court recently stated in a different con- text, “the inquiry must be whether there is a suffi- ciently close nexus between the State and the chal- lenged action of the regulated entity so that the action of the latter may be fairly treated‘ as that of the State itself.’’ Jackson v. Metropolitan Edison Co., 27 The court of appeals characterized certain stipulations as as- serting that the regulatory program of the State Bar had “re- ceived its authority and efficacy from legislative command” (Pet, Br. App. B-12), but it is evident from the underlying stipulations (Pet. App. A-17—A-19) that the court of eppeals’ conclusory description of the stipulations goes beyond their actual seope. ** As the court of appeals “rectly recognized (Pet. App. B-11), the State Bar itself, consis.ing of those subject to regu- lation, has insuflicient independence to be regarded as a state agency under Me™ state action” doctrine. See Asheville Tobacco Bd. of Trade, Ine. v. Federal Trade Commission, 263 F. 2d 502, 508-510 (C.A. 4); ef. Gibson v. Berryhill, 411 U.S. 564, 578-579. 41 No. 73-5845, decided December 23, 1974, slip op. 6. This test, invoked to determine state action for pur- poses of the Fourteenth Amendment, is not without relevance here. The theory of the state action limitation of Parker v. Brown is that Congress did not intend the Sher- man Act to reach action taken by the states in their sovereign capacity. Whether particular conduct con- stitutes “state action’’ for this purpose, however, turns on whether the state has affirmatively required the conduct, See, e.g., Asheville Tobacco Bad. of Trade, Inc. vz Federal Trade Commission, 263 F. 2d 502, 508-510 (C.A. 4); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F. 2d 25 (CA. 1), certiorari denied, 400 U.S. 850; New Mexico v. Amer- ican Petrofina, Inc., 501 F. 2d 363, 369-370 (C.A. 9). The question is “whether the anti-competitive result actually is a goal of the state entitled to the state’s immunity rather than a private group masquerading under the banner of ‘state action.’ ’’ Id. at 369. Here, the state was not involved to the extent of making the anticompetitive conduct a mandatory re- quirement. The court of appeals recognized that the Supreme Court has not specifically approved or dis- approved the schedules in question (Pet. App. B-11), but found sufficient active supervision by that court to satisfy Parker under the rationale of its earlier interpretation of Parker in Washington Gas Light Co. v. Virginia Elec. & Power Co., 438 F, 2d 248 (C.A. 4). In that case the court of appeals held that a regulatory agency’s failure to. disapprove acts by those regulated supports an inference that “silence 42 means consent’? and hence establishes the state in- volvement required by Parker. Id. at 252. We submit that this analysis, which the Fifth Circuit ° * and the court in Oregon Bar refused to follow (Pet. Br. App. _B-12), is unsound. There is a sharp distinction between regulatory au- thority that permits, or fails to prohibit, particular restraints on competition, and state action requiring particular conduct. Cf. United States v. Borden Co., 308 U.S. 188, 198-201. This distinction is highlighted in the Court’s recent holding that a-utility (like that involved in Washington Gas Light) was not engaged in “state action” when it terminated service to a non- paying customer (Jackson v. Metropolitan Edison Co., supra; slip op. at 12; emphasis supplied) : | The nature of governmental regulation of pri- vate utilities is such that a utility may. fre- quently be required by the state regulatory scheme to obtain approval for practices a busi- ness regulated in less detsil would be free to in- stitute without any approval from a regulatory body. Approval by a state utility commission of such a request from a regulated utility, where the Commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the Commsiasion into “state action.” Similarly, this Court has long held that conduct merely authorized, but not commanded, by a regula- tory statute is not exempt from the antitryst laws. - See Gas Light Co. v. Georgia Power Co., 440 F, 2d 1155, 1139-1140 (C.A. 5), certiorari denied, 404 U.S. 1062. 43 United States v. Radio Corp. of America, 358 U.S. 334, 350-351; California v. Federal Power Comn.is-- sion, supra, 369 U.S. at 485; United States v. Phila- delphia Nat’l Bank, supra, 374 U.S. at 352; Otter Tail Power Co, v. United States, supra, 410 U.S. at 373-375.) This distinction is made clear by Continen- tal Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690. There the Court rejected a private party’s claim that its status as exclusive purchasing agent for the Canadian government brought it within the exemp- tion of Parker v. Brown, because there was no indica- tion that any Canadian government official had “di- rected” the defendant to engage in the anticompetitive conduct (id, at 706) or that Canadian law “compelled” such conduct. Id. at 707. Numerous enterprisésin the American economy are tlosely regulated because they involve essential serv- ices affected with a public interest. But this does not transmute them into *‘state actors in all their actions.” Jackson v. Metropolitan Edison Co., supra, slip op. at 8. “Doctors, optometrists, lawyers, Metropolitan [Edison] and * * * [a] grocery selling a quart of ‘milk are ali in regulated businesses, providing argu- ably essential goods and services, ‘affected with a public interest.” We do not believe that such a status converts their every action, absent niofe, into that of the State.” Zd. at 8-9. Thus, we Cireuit has erred in assuming that under Parker v. Brown the existence of a general scheme of state regulation, of itself, exempts all supervised activity from the Sher- man Act.” rg -” Moreover, even a general statutory scheme by which eom- petitors regulate themselves is subject to the principle that 44 There is no evidence here that minimum fixed fee schedules were required either by the Virginia legis- lature or the Supreme Court. Because ‘the Supreme Court is not a regulatory-agency, its supervisory duty has been confined to the decision of individual cases and to the implementation of the broad guidelines established by the Virginia legislature. Those: guide- lines specifically require that, in.its oversight of the bar, the court not adopt rules ‘‘inconsistent with any . statute * * *.°? Va. Code 54-51. The court of appeals’ reasoning misconceives the role of the’‘Supreme Court and fails to recognize that the existence of some degree of governmental oversight or involvement does not itself make Parker applicable. See George R. Whitten, Jr., Ine. v. Paddock Pool Builders, Inc., supra, 424 F. 2d at 30; Hecht v. Pro-Football, Inc., 444 F. 2d 931, 935 (C.A.D.C.); United States v. Pacific SW. Airlines, 358 F: Supp. 1224 (C.D. Cal.) collective restraints imposed thereunder are not exempt from the antitrust laws unless they are essential to achievement of the objectives of the statutory scheme, and are no more re- strictive than necessary. Silver v. New York Stock Each, supra, 373 U.S. at 361. This principle is not properly applicable to determine whether a case involves state action under Parker v. Brown. It has been invoked, however, to determine whether state and federal law may be reconciled, without one or the other being completely ousted. Merrill, Lynch, Pierce, Fenner & Smith, Ine. v. Ware, 414 U.S. 117, 127. No question of irrec- oncilable conflict between state law and the Sherman Act was decided in Parker, nor is it presented with respect to the Vir- ginia regulatory plan for lawyers. If it were, a under the test of Silver and Merrill Lynch, collective price fixing under such a statutory scheme is neither essential for regulation of the bar (see supra, pp. 15-20), nor ure least re- strictive alternative for prevention of abuses in fee determina- tion. ubmit that, . 45 That the State Bar functions as an administrative agency of the Virginia court for the purpose of en- forcing the court’s rules for governance of the Bar does not convert every action the State Bar takes into a command of the court. No court rule requires it to propose or enforce local minimum fixed fee sched- wes. Its members, on the other hand, are directly and personally interested in fee levels. The State Bar exer- cised a private initiative, Net required by statute or court rule, when it proposed schedules and determined that habitual failure to adhere to them would con- stitute unethical conduct. A similar conclusion was reached in United States v. Oregon State Bar, supra. An Oregon statute declared the state bar to be an agency of the state for the purpose of carrying out the provisions of the state integrated bar law, and also to be “a public corpora- tion and an instrumentality of the Judicial Depart-— ment” of the state’s government (Pet. Br. App. B2). After finding that the Oregon bar was composed of - private attorneys, that no state statute authorized fixed fee schedules, and that the schedules were not the product of a disinterested state agency, the dis- trict court held that “the substantial state direction and involvement required to meet the legislative man- date requirements [of Parker] and to elevate these Oregon State Bar activities to the plateau of ‘state action’ immunity” were lacking (id. at B9). The same reasoning applies here. 46 A different, and more ‘diffieult,* case might be pre- sented if the Supreme Court or some other independent public agency of the state, acting under explicit statu- tory authorization, required attorneys to adhere to fixed fee schedules.” But since the fee schedules “On this record, the Court need not consider the extent to which a state requirement for pice fixing among lawyers might be inconsistent with the Sherman Act. In Parker the Court stated that “[a] state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful” (517 U.S. at 351), and that a state cannot become a “participant in a private agree- “wut or combination by others for restraints of trade.” /d. at 351-352. Citing Parker, the Court has also observed that “when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids.” Nchwegmann Bros. vy. Calvert Distillers Corp., 341 U.S. 384 389. : * For example, in the early history of this country several states adopted laws directly interfering with competitive forces in the market for legal services, in that they established maxi- mum levels for fees. See II Chroust, supra, at 232-277 Similarly, under the statute governing English solicitors, minimum remuneration for “no-contentious” business (business for which a tribunal cannot tax solicitors’ fees as costs), is regulated by orders issued under the Solicitors’ Act, 1957, as amended, 5 & 6 Eliz. 2, ch. 27, Sec. 56. These orders are made not by a private organization but by a committee consisting of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the President of the Law Society (the English equivalent of a bar association), the president of a provincial law society, and, so far as céncerns business relating to land registry, the Chief Land Registrar. Moreover, the orders are statutory instruments that can be annulled by either house of Parliament, 36 Halsbury’s Laws of England, Solicitors € 142, p. 107 (8d. ed. 1961). Litigated business is subject to taxation of costs having regard to skill, labor, and responsibility, except where there is an agreement of the parties. Such agreements do not affect rights or remedies for recovery of costs payable by any person other than the client, and agreements for excessive 47 were not authorized by any state statute, were not required by the Supreme Court, and were not pronvl- gated by an independent and disinterested state body, and since the public had no voice in their establish- ment, the elements for immunity defined in Parker are absent. Because, as in the Oregon Bar case, supra, the minimum fixed fee schedules were not a product of a valid comniand of the state and were not estab- lished by independent state officials, Parker is in- applicable. amounts may be referred by the costs taxing officer to the tri- bunal, which ean reduce the amounts. 7d. at 122-129. A. barrister’s fees are fixed by his clerk through negotiation with his instructing solicitor. Kiralfy, Zhe English Legal Sys- fem 255 (Sth ed. 1973). English barristers are now regulated by a General Council of the Bar, consisting of the Attorney General, the Solicitor General, the chairman of the Council and elected barristers. A rule setting an absolute minimum fee for Queen’s Counsel and juniors, respectively, was abrogated in 1967. 3 Halsbury’s Laws of England, Barristers, § 54, p. 40, n. /. (Sd ed. 1953, 1972 Supp.). . “In view of this Court’s denial of the State Bar's motion “to dismiss, we do not address in detail the State Bar’s conten- tion concerning the Eleventh Amendment. Since the State Bar is not the alter ego of the State of Virginia, nor a state agency in any relevant sefse (see p. 40, supra, n. 28), a judgment— even for money damages—against the State Bar, which has its own funds (see p. 38, supra), would not be equivalent to a judgment against the state. Accordingly, the Eleventh Amend- ment does not immunize the State Bar frdém a suit against it in the federal courts. See generally Edelman v. Jordan, 415 U.S. 651, 668-671. To hold that under the Eleventh Amend- ment the State Bar is immune from suit in federal court would in effect be to hold it immune from Jiability for violations of the antitrust laws, for suits to enforce those laws may be brought only in federal courts. See 15 U.S.C. 4, 15. The district court having severed the questions of liability and damages, neither court below has definitively ruled on \ Ph Setar thy 4 ae as Yo EE ATS 48 Paraphrasing Metropolitan Edison, even if lawyers in Virginia could be regarded as being “heavily regu- lated * * *, enjoying at least a partial monopoly” in the praviding of legal services within the state, and if a state agency had found their challenged actions to be ‘permissible under state law,” that would not suffi- ciently connect the state with those actions as to make them attributable to the state for purposes of the Sherman Act. Slip op. at 158. CONCLUSION For the reasons stated, the judgment of the court of appeals should be reversed. Respectfully submitted. | Rosert H. Bork, Solic’‘or General. THomas FE. Kavren, Assistant Attorney General. _ GeraLp P. Norton, Assistant to the Solicitor General. Howarp E. SHapro, Attorney. JANUARY 1975. whether or to what extent either respondent might be liable in damages to the petitioners or to other members of the class they represent. It is therefore premature for this Court to consider issues relating to damages, such as whether a non- retroactive imposition of liability would be warranted. Com- pare Chevron Oil Co. v. Huson, 404 U.S. 97, 105-109; Simpson v. Union Oil Co., 396 U.S. 13, 14. The pendency of the dam- age claims, however, coupled with petitioners’ request for a declaratory judgment, means that, even if injunctive relief is no longer required against either the Association (because “. has now withdrawn the challenged schedule) or the State Bar (e.g., because of immunity), the case is not moot. Cf. Super Tire Engg Co. v. McCorkle, 416 U.S. 115. ° | otal APPENDIX my Dee. 19, 1974, James F. Davey, Clerk] Un States District Court for the District of Columbia Civil Action No. 2412-72 Unitep Srares OF AMERICA, PLAINTIFF Vv. NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS, DEFENDANT Opinion This is an antitrust suit brought by the United States against the National Society of Professional Engineers (NSPE) under §1 of the Sherman Act, 15 U.S.C. .§2, which declares illegal every “contract, combination * * * or conspiracy, in restraint of trade or commerce among the several States. * * *’? The alleged offense centers on Section 11(e) of defend- ant’s Code of Ethics which prohibits members of NSPE from submitting competitive bids for their engineering services.’ Plaintiff seeks to enjoin the combination and conspiracy which maintains the pro- hibition against competitive bidding as well as to have canceled all provisions to the Code of Ethics and other relevant rules or statements of policy which support the bidding ban. Section 11(c)eprovides:. _ “Section 41—The Engineer .will not compete unfairly. with another engineer by attempting to obtain employment or : ne: la 2a NSPE is a professional society incorporated under the Iaws of South Carolina with more than 69,000 members located throughout the United States. Mem- bership in NSPE accounts for slightly less than 10 percent of all graduate engineers in the nation holding a collegiate degree in engineering frem an institution of higher learning. Upon a demonstration of profi- ciency, each of the states permits engineers to hold a certificate of registration or license to practice. Ap- proximately 325,000 are so registered of whom 55,000 or 17 percent, are members of! NSPE. About half of the registered professional engineers in this country are engaged in offering services to the public as con- sulting engineers. Although NSPE is a national orga- nization, it is affiliated with pfofessional engineering societies in each of the 50 states, territories and the District of Columbia.. When a member joins NSPE, advancement or professidnal engagements by competitive bid- ding * * * : “ce, He shall not solicit or submit engineering proposals on the basis of competitive bidding. Competitive bidding for professional engineering services is defined as the formal or informal submission, or receipt, of verbal er written estimates of cost or proposals in terms of dollars, man days of work required, percentage of construction cost, or any other measure of compensation whereby the prospective client may compare engineering services on a price basis prior to the time that one engineer, or one engineering organization, has been selected for negotiations. The disclosure of recommended fee schedules prepared by various engineering societies is not considered to constitute competitive bidding. An Engineer requested to sub- mit a fee proposal or bid prior to the selection cf an engineer or firm subject to the negotiation of a satisfactory contract. shall attempt to have the procedure changed to conform to ethical practices, but if ‘not successful he shall withdraw from con- sideration for the proposed work. These principles shall be applied by the Engineer in obtaining the services of other professionals.” 3a he joins the applicable state society and local chapter at the same time. Defendant’s Board of Directors adopted the present format of the NSPE Code of Ethies in 1964. Section 11(c) of the Code provides that an engineer ‘“‘shall not solicit or submit engineering proposals on the basis of competitive bidding.” The section defines competi- tive bidding as any measure of compensation ‘‘wherehy the prospective client may compare engineering ser. - ices on a price basis prior to the time that one engi- neer * * * has been selected for negotiations.’’ While Sec. 11(c) advises that disclosure of a recommended state society fee schedule does not constitute compeéti- tive bidding, it requires that the engineer ‘‘withdraw from consideration for the proposed work’’ if the. . prospective client insists on competitive bidding. In practice, adherence to Sec. 11(c¢) by the engineer and client means the prospective client will limit his initial search to the engineer whose background and reputation suggests he is the best qualified and most appropriate for the client’s needs. Discussion of fees, however, will not be permitted until after the client has actually selected an engineer and discussed the scope of his particular problem. Should the engineer and client be unable to agree upon a satisfactory fee arrangement, the client will withdraw his selection and approach a new engineer. This procedure is known as the traditional method of retaining professional engineering services. say met ne In addition to the Code of Ethics, the defendant has sought to promote its ban on competitive bidding by a variety of other means. These include publication of professional policy statements, issuance of opinions on a case analysis basis by its Board of Ethical Re-- view, distribution of pamphlets to members and clients, personal letters to individual clients suspected of yomapes 4a soliciting on a competitive bid basis, and participation with other professional societies in preventing gov- ernmental agencies from obtaining price proposals for ‘architect-engineering (A-FE) projects by competi- tive bidding methods. _ While NSPE has no authority to terminate an engi- neer’s membership in his state society for unethical conduct, it has played a significant role in coordinat- ing and encouraging state society investigations into suspected misconduct. NSPE has recommended pro- cedures to be followed by state societies upon the filing of charges of unethical conduct against a member, assisted in the conduct of these investigations, and directly warned members of apparent Sec. 11(¢) vio- lations. The policing actions of defendant with respect to See. 11(¢) have met with apparent success. The record ° is devoid of any evidence suggesting significant defec- tions by members from the bidding ban. Attempts by at least one federal agency to exchange the traditional method of procuring A-E services for competitive bidding met strong resistance resulting in part from actions of NSPE urging its members to refuse to offer their services. The nature of engineering services provided by NSPE members covers « wide spectrum embracing the study, design and construction of real property improvements located thro the United States and abroad. Engineering sérvices include pre-feasibil- ity studies, feasibility studies, planning, preliminary studies, the preparation of drawings, plans, designs, specifications, cost estimates, manuals, and reports, consultations, surveys, and inspections. This work is performed in connection with myriad projects ranging from highway construction, public utilities and com- ve munications facilities to commercial structures, trans- portation means and mining facilities. The list is vir- tually endless. The clients for whom NSPE members offer their se-vices include governmental agencies at all levels, manufacturing companies, industrial com- panies and retailing companies operating throughout the United States. NSPE members practice as sole practitioners, part- nerships and corporations ranging upwards in size to 1500 individuals. Individual members are often li- censed to perform engineering services in several states at one time. Engineering firms with which NSPE members are affiliated frequently maintain offices in states and foreign countries other than their principal places of business. Such firms perform serv- ices on a nuulti-state, regional or national basis. Most design and construction projects require the services of both architects and engineers whose serv- ices are often provided by a single firm. The engi- neer’s portion of the firm’s fee normally accounts for about 5 to 6 percent of the cost of construction. For the vear 1972, the 438 largest A-E design firms accounted for approximately $2.2 billion in fees. Profit margins for many firms range as high as 10 to 12 percent. Forty, or approximately 9 percent, of the top 438 A-E design firms were publicly held corporations or affili- ated with publicly held corporations, whose fees ac- counted for situietpiameatan 14 percent of the receipts from this group. In addition to A-E pare firms, there is a second significant group of firms performing engineering services known as design/construet firms which differ from typical consulting engineering firms in their added capability of performing construction work as well as traditional A-E design work. In 1972, 30, or 4 6a approxiniately 48 percent, of the top 62 design/con- struct firms in the nation were publicly held corpora- tions or affiliated with such corporations and ac-— counted for 65 percent of the $26 billion of new project — contracts awarded this group. The Government attacks defendant’s ethical prohibi- ° tion gainst competitive bidding on grounds it con- stitutes price fixing in per ‘se violation of §1 of the Sherman Act. Claiming that Sec. A1(¢) operates to deny clients access to competitive price information, plaintiff contends the bidding ban ilegally tampers with the price structure of engineering services hy eliminating ail forms of price competition thereby stabilizing engineering fees. NSPE proffers a three propged defense contending first, the practice of pro- fessional engineering is not trade or commerce within the scope of §1; second, the ethical prohibition is a reasonable practice in the field of professional engi- neering ; third, the practice of professional -engineeri.g is exempt from antitrust attack because it is a state regulated profession. The Court will consider these defenses seriatim. : Defendant claims that the practice of professional engineering falls outside the ambit of ‘trade, or com- merce beeatise it is a so-called “learned profession”’ governed by self-regulation. The notion that learned professions are not covered by the Sherman. Act has its genesis in the construction placed upon the term ‘restraint of trade” under §3 of th®Sherman Act by the Supreme Court in Atlantic Cleaners d& Dyers, Inc. v. United States, 286 U.S. 427, 436 (1932). In giving expansion to the word ‘“‘trade”, the Court quoted with approval from now famous dictum set down by Mr. Justice Story in The Schooner Nymph, 1 Sumn. 516, 517-518; 18 Fed. Cas. 506, 507, No. 10,338 (1834) : 7a Whenever any. occupation, employment, or business is carried on for the parpose of pro- fit, or gain, or a livelihood, not in the liberal arts or in the learned professions, it is constantly called a trade. Notwithstanding this favorable reference to an early nineteenth century conception of trade, the Supreme Court has never held that a learned profession is ex- empt from the Sherman Act and has in fact affirmed its intention not to ‘‘intimate an opinion on the cor- - rectness of the application of the term [trade] to the professions.” United States v. National Ass’n of Real Estate Boards, 339 U.S. 485; 491-2 (1950).? The only circuit court to declare a learned profession exemp- tion was the Fourth Circuit in Goldfarb v. Virginia State Bar, 497 F. 2d 1 (1974). In that case, a divided court held that a legal profession’s fee schedule was immune from a § 1 attack because of the applicability of the “learned profession exemption.” Jd. at 15. More receiitly, however, a federal district court, after giving careful consideration to the entire litany of learned profession cases, arrived at an opposite conclusion finding that the ‘‘fee schedule activities of the defend- ant, Oregon State Bar, are not immuye to Sherman 2Two cases are generally cited as authority for the learned profession exemption: Federal Baseball Club, Inc. v. National Leaque of Professional Baseball Clubs, 259 U.S. 200 (1922), where the Supreme Court noted that “personal efforts, not re-— lated to production, is not a subject of commerce.” Jd. at 209: FTC y. Raladam Co., 283 U.S. 643 (1931), where the Court stated that “medical practitioners * * * are not in competition with respondent. They follow a profession not a trade. * * *” Id. at 653. Both references to learned professions are dicta and not considered to be a holding by the Court of the Existence of a learned profession exemption to the Sherman Act. For a discussion of these cases as precedent for a learned profession exemption, see opinion of Judge Craven (dissenting in part) in Goldfarb v. Virginia State Bar, 497 F. 24 1, 25-24 (1974). Sa Act attack * * * by the ‘learned profession’ exemp- tion.” United States v. Oregon State Bar, Civil Action No. 74-362 (D.C. or. Nov. 22, 1974). The concept of a learned profession exception to the antitrust laws is of dubious validity in view of the repeated reluctance of federal courts to recognize it as a legitimate exception to the Sherman Act. The issue of whether a profession is a learned one is not seen by the Court as the appropriate approach for re- solving the higher question of whether the Sherman Act is applicable to that profession. To engage in such an inquiry would chart the Court on a semantic ad- venture of questionable value. It would be a dangerous form of elitism, indeed, to dole out exemptions to. our antitrust laws merely on the basis of the educational level needed to practice a given profession, or for that matter, the Impact which the profession has on society's health and welfare. Clearly, the move appro- priate and fairer course is to examine the nature and conduct involved in the profession on a case by case hasis together with the context in which it is prac- ticed. Congressional intent behind the Sherman Act focused on a desire to prevent restraints to ‘“‘free competition in business and commercial. transactions which tended to * * * raise prices or otherwise con- trol the market to the detriment of purchasers of goods and services. * * *”? Apex Hosiery Co. v. Leader, 310 U.S. 469, 493 (1940). The types of busi- ness and commercial transactions which Congress in- tended the Sherman Act to protect have generally been accorded broad recognition by the courts. United States v. National Ass’n of Real Estate Boards, supra, (business of real estate broker is trade within the meaning of \3 of the Sherman Act); United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 4 Se ee ec i. oe ene oe ie at 9a (1944) (business of insurance not exempt from oper- ation of the Sherman Act); American Medical Ass’n v. United States, 317 U.S. 519 (1943) (group health organization engaged in obtaining medical services for its members is conducting trade under §3 of the Sherman Act). Each of these cases has turned on the character of the restraint and the activity restrained as opposed to a litmus test based on professionality. Cf. Apex. Hosiery, supra, at 485. In view of this ap- proach taken by the courts, it can be said at the very least that where the activity of a profession so di- rectly impacts upon interstate trade and commerce as to suhstantially contribute to the latter’s character and direction, it must be concluded that the profes- sion’s activity has become subsumed within the gen- eral scope of §1 of the Sherman Act regardless of whether the profession may be characterized as a learned one. As the Supreme Court noted in South- Eastern Underwriters, supra, with reference to the language of §§ 1 and 2 of the Sherman Act: Language more comprehensive is difficult to conceive. On its face it shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states. 322 U.S. at 553. The record amply demonstrates that professional engineering is not a metaphysical pursuit but rather a conduit through which abstract scientific principles are reduced to a level of practical application in re- sponse to a given problem. In this sense, professional engineering offers a service. And with respect to de- sign engineers who prepare plans and specifications for real property improvements and articles of manu- facture, professional engineering also offers a prod- uct. Unlike the lawyer’s brief or the scholar’s text THEIR PEI ELAN LOS ARS TT SEA AT NGO SETAE PE NEN REG MENTE, SINTRA EERE 10a which convey thought, an engineer’s blueprints con- stitute a necessary physical tool which when combined with standardized techniques of manufacturing and construction, yield a final, functional. reduction to practice. In this regard, professional engineering en- joys a maximum interface with end erodects of con- struction and manufacture. The business nature of professional engineering firms is clearly established in the record. It is an industry often organized on a local, regional, national and even international seale controlling, guiding and shaping the pace and direction of the vast array of interstate transactions needed to carry out much of the nation’s construction and manufacture. Fully 50 to 80 percent of the cost of constructing and equip- ping construction projects is controlled by an engi- neer’s work. A substantial amount of equipment and material is transported in interstate commerce at the specific direction of NSPE members. It would not be hyperbole to observe that professional engineering services are at the very backbone of the major portion of the nation’s commerce. This is not a case of indirect and insubstantial impact by a so-called learned pro- fession upon-interstate commerce. The record is im- pressive in demonstrating that the imprint of profes- sional engineering upon interstate commerce is clear and unmistakable. It is a driving force of seminal character which continues to forge the very founda- tion from whieh our commercial trade emanates. The Court is satisfied in light of the well documented rec- ord that the activities of NSPE and its members fall well within the scope of §1 of the Sherman Act. II Tt is undisputed that price fixing is a per se unrea- sonable restraint of trade under the Sherman Act and SRG ARG yO MERE QE RISE ORES RINGS SR ot CR OARS #5 DEPT + lla that in such cases it is not for the court to decide . whether a particular price fixing activity serves an honorable or worthy end. United States v. Socony- Vacuum Oil Co., 310 U.S. 150 (1940); United States ' National Ass’n of Real Estate Boards, supra at 489: United States v. South-Eastern Underwriters Ass’n, supra at 561. Hence, if the See. 11(¢) ban on competitive bidding acts to fix the prices of engineer- ing services, the Court’s inquiry is ended and it need not consider the reasonableness of the ethical ial agi oon . In order for conduct to be characterized ‘as price- fixing, it is not necessary to show that the alleged com- bination or conspiracy has actually pegged prices at a particular level. Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S, 211 (1951). It need on'y be established that the suspect conduct acts to restrain free price movenient. It is the act of tampering with the price structure which is at the core of the offense. As the Court in Secony-Vacuum noted: Any combination which tampers with price structures is engaged in an unlawfui activity. Even though the members of the pric e-fixing group were in no position to control the market, to the extent that they * * * stabilized prices they would be directly interfering with the free play of market forces. 310 U.S. at 221. Accordingly, where the application and practice of a code of professional ethics leaves members of a pro- fessional association genuinely free in their pricing decisions, no § 1 offense arises. Section 11(¢) prohibits defendant's members from engaging in any form of price competition when offer- ing their services; selection is restricted to considera- tions of reputation and ability. No fee information may be given a prospective client which takes the ANSE FNP OR RTE STONES ALL MEO ORNS. ARRAS NG RRR REMUS ROE 12a form of cost estimates or other proposals m terms of dollars, man days of work required, or percentage of construction cost which can be compared to that of another engineer. Section 11(¢), however, does permit members to disclose recommended state society fee schedules to prospective clients in the course of the selection process. Moreover, Sec. 9(b) of defendant’s Code of Ethics requires its members not to accept work at a fee “below the accepted standards of the profession in the area.” * As a result of these sections, the only priee information available for input into the client’s selection equation is a uniformly regular fee schedule. Should the client persist in requiring com- petitive bids, See. 11(e) requires the engineer to with: draw the offer of his service altogether. > Although the actual implementation and enforce- ment of Sec. 11(¢) is not critical to a determination of whether a combination or conspiracy exists to re- strain trade, Socony-Vacuum, supra at 225, n. 59, the record does support a finding that NSPE and its mem- bers actively pursue a course of policing adherence to the competitive bid ban through direct and indirect communication with members and prospective clients. As note supra, NSPE has engaged in educational cam- paigns and personal admonitions to members and clients who were suspected of engaging in competitive bidding practices. Upon careful review of the pertinent authorities, the Court is convinced that the ethical prohibition “The Sherman Act offenses alleged in the Complaint do not specify activities involving the use of fee schedules by defend- ant and accordingly the Court does not consider their legality to be at issue in this case. The Court does believe, however, that insofar as the use of fee schedules by defendant's members might affect the impact which See. 11(c) has on trade and commerce, en inquiry into their promotion and enforcement by defendant js plainly relevant. 7 RR REG RRL Bae Sy 13a against competitive bidding is on its face a tampering with the price structure of engineering fees in viola- tion of §1 of the Sherman Act. It is not important to know what effect the Sec. 11(¢) prohibition has on the price of professional engineering services. Kiefer- Stewart Co. v. Seagram & Sons, supra at 213. What is of critical significance is, that the agreement among defendant’s members to refrain from competitive bid- ding is an agreement to restrict the free play of mar- ket forces from determining prices to sacrifice free- -dlom in pricing decisions to market stability. The com- bination becomes a per se illegal one under § 1 of the Act when it tends to “cripple the freedom of traders and thereby restrain[s] their ability to sell in accord- ance with their own judgment.” Kiefer-Stewart, Ibid. By proscribing competitive bidding, Sec. 11(¢) has as ‘its purpose and effect the excision of price considera-_ tions from the competitive arena of engineering serv- ices. The ban narrows competition to factors based on reputation, ability, and a fixed range of uniform prices. The prospective client is thus forced to make his selection without all relevant market information. The See. 11(¢)’ ban on competitive bidding is in every respect a classic example of price-fixing in violation of § 1 of the Sherman Act. haaone Til ‘Action to regulate trade undertaken by state offi- cials pursuant .to state legislative command is not governed by thé Sherman Act. Parker v. Brown, 317 U.S, 341 (1943). In Parker, a producer and packer ized the establishment, through state officials, of mar- keting programs for state produced agricultural prod- ucts. The purpose of the legislation was to stabilize prices by restricting competition in order to “conserve <- l4a the agricultural wealth of the State” anc “prevent economic waste in the marketing of agricultural prod- ‘ucts.” Id. at 346. The Court in Parker held: We find nothing in the language of the Sher- man Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legis- lature. Id. at 350-51. Defendant has cited statutes in 16 states which pro- hibit fee bidding by engineers. It is defendant’s posi- tion that because See. 11(¢) coincides with state law, the Parker doctrine of state action immunity shields defendant from Sherman Act liability. The Court finds this extension of Parker unacceptable for several reasons. “The.state program in Parker comprised a carefully legislated administrative plan for trade regulation Whieh jinsured continuous state supervision through the offices of a state created commission. It was not a case where agricultural growers had been allowed to restrain trade in contravention of the antitrust laws by mere legislative fiat. The Court emphasized this point by noting: _ [A] state does not give immunity to those who violate the Sherman Act by authorizing them to. violate it, or le declaring that their action is lawful. * * *” Jd. at 351. Likewise, the First Cireuit observed in George R. Whitten, Jr, Inc. v. Paddock Pool Builders, Inc., 424 BF. 2d 25, cert. denied, 400 U.S. 850 (1970) : The [Parker] Court's emphasis on the extent of the state’s involvement precludes the facile conclusion that action by any public official automatically confers exemption, * * * Our reading of Parker convinces us that valid gov- ernment action confers antitrust immunity only when government determines that competition PIAL RET EIS ANN i a ae i ats lida is not the swmmum bonum in a particular field and deliberately attempts to provide an elter- nate form of public regulation.’’ Id. at 30. The instant Complaint charges defendant with illegal restraint of trade on a nationwide basis. It does not attack the action of any state official or agency. Unlike the situation in Parker, the challenged activity of NSPE and its members was a private conspiracy in restraint of trade and not conducted pursuant to the command of any state legislature. There is no evidence of any state enforcement machin- ery, present in Parker, which suggests that when the 16 states decided to prohibit competitive bidding they also intended to establish an alternate form of public regulatory control. Defendant’s activities are plainly interstate in nature, unencumbered by the reguia- tions of individual states. The extrapolation of Parker urged by defendant is both unfounded in logic as well as in law. The doctrine cf state immunity enunciated by the Court in Parker simply has no applicability to a code of ethics which has been formulated outside the command and supervision of a state agency. For the reasons stated supra, the Court finds that promulgation and enforcement of. See. ll(e) by NSPE, its members and state societies, constitutes a combination and conspiracy in unreasonable restraint of interstate trade and commerce in violation of 8] of the Sherman Act. Findings of Fact and Conclusions of Law are annexed hereto. JOHN LEwts Suirtn, Jr., United States District Judge. DeEcEMBER 19, 1974. 4.$. GOVERNMENT PRINTING OFFICE to7s --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0430%3A11. Public record. Not legal advice.