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In re In re Multidistrict Vehicle Air Pollution

Citation: 6 ELR 20638
No. Nos. 74-1706 et al., 538 F.2d 231/(9th Cir., 06/07/1976, 06/25/1976)

The court dismisses consolidated antitrust suits by 22 states and other localities and individuals challenging the auto companies' and their trade association's alleged 16-year conspiracy to eliminate competition in the development of automobile antipollution technology. In 1969, in a government suit, the defendants consented under § 1 of the Sherman Act to terminate their cooperative efforts, but without admitting that their prior conduct violated the law. United States v. Automobile Manufacturers Association, 307 F. Supp. 617 (C.D. Cal. 1969), aff'd sub nom. City of New York v. United States, 397 U.S. 248 (1970). This court previously ruled herein that the plaintiffs lack standing as parens patriae to seek treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15 (1970), but that they do havestanding to seek equitable relief under § 16 of the Act, 15 U.S.C. § 26 (1970). In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973).

Dismissal of this action was proper since none of the equitable remedies sought by plaintiffs is available under the facts of this case. Plaintiffs first seek "restitution" payments to automobile owners who have themselves paid to have their vehicles retrofitted with antipollution devices. Such monies are not propertly restitution, and in any event they involve losses that have already occurred. As such, they do not fall within the ambit of § 16, for it only authorizes remedies against threatened losses.

Plaintiffs also seek a mandatory injunction ordering defendants to "retrofit" all cars manufactured without effective pollution control devices. Again, § 16 does not authorize the requested relief. Injunctions issued under it have always served one of three antitrust functions: (1) depriving violators of the benefits of their illegal conduct; (2) putting an end to illegal conduct; or (3) restoring competition in the marketplace. See Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 128-29 (1948). To date, broad affirmative relief has been granted only where the harm to be prevented is to the system which the antitrust laws were designed to protect, namely the competitive market system. Here, by contrast, plaintiffs concede that the alleged violation has ended, and that "the harm to be alleviated is environmental, not economic in the antitrust sense. Based upon these admissions, we must conclude that the remedy which the appellants seek in this case fails to serve any function of the antitrust laws." The court holds this to be true as well of all other remedies sought herein. The district court decision is affirmed.

The full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1071).

Counsel for Plaintiffs
Tony Joseph, Deputy Attorney General of California
110 West A St., Suite 600
San Diego CA 92101
(714) 236-7770

Counsel for Defendants
Lloyd N. Cutler
Wilmer, Cutler & Pickering
1666 K St., NW
Washington DC 20006
(202) 872-6000

Duniway, J., for himself, Goodwin & Wallace, JJ.