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May 31, 1950

S.S.W., Inc.
AIR Transport ASS'N OF AMERICA et al.

The opinion of the court was delivered by: MATTHEWS

This is an action instituted by plaintiff, a Delaware corporation, having its principal place of business in Concord, Contra Costa County, California, alleging violations of the Sherman *fn1" and Clayton *fn2" Acts, in which it seeks to recover from the defendants damages allegedly suffered by plaintiff, and the issuance of an injunction restraining defendants from further violations of the said Acts.

Plaintiff alleges that since August 6, 1946 it has engaged in a number of different forms of air-borne trade and commerce, conducting its business under a non-scheduled air carrier operating certificate issued by the Civil Aeronautics Authority *fn3" , which has classified the plaintiff as a common carrier of freight and passengers.

 Plaintiff charges, with more or less particularity, that the defendants, co-conspirators, and others have ' * * * knowingly and wrongfully made and entered into contracts, understandings and agreements and have engaged, knowingly and continuously, in a wrongful and unlawful combination and conspiracy to directly and unreasonably restrain, and combination and conspiracy to monopolize, the airborne transportation, trade and commerce of the United States, and have knowingly and wrongfully attempted to monopolize the said trade and commerce, including trade and commerce therein of and within the District Of Columbia, by injuring, suppressing, and restricting competition therein and by controlling and fixing the channels and methods through which the prices, terms and conditions of air-borne travel and trade and commerce is carried on in interstate and including trade and commerce therein of an within the District of Columbia, foreign commerce and as to the trade and commerce therein of and within the District of Columbia; and in accordance with the terms of said combinations and conspiracies, and pursuant to the means and methods (thereinafter set forth) used to effectuate said combinations and conspiracies.'

 The defendants have moved to dismiss principally on the ground that the complaint raises administrative problems and, hence, is subject to the primary jurisdiction of the Civil Aeronautics Board. Plaintiff contends that this is not a case for the invocation of the primary jurisdiction doctrine since the Board has no authority to enjoin the alleged illegal practices charged and no authority to award damages or reparations.

 While some cases require prior administrative adjudication, others permit original resort to the courts. It is said the answer depends upon 'the character of the controverted question and the nature of the inquiry necessary for its solution.' Great Northern Ry. Co. v. Merchants' Elevator Co., 259 U.S. 285, 291, 42 S. Ct. 477, 479, 66 L. Ed. 943. The Supreme Court has pointed out the line of demarcation many times. The line lies between controversies which involve issues of law and those which involve issues essentially of fact or call for the exercise of administrative discretion. See Great Northern Ry. case, supra, 259 page 295, 42 S. Ct. 477.

 Examining the complaint in this case we find the plaintiff alleges that the defendants, the co-conspirators and others have unlawfully combined and conspired, inter alia, to hinder and prevent it from obtaining the services of numerous ticket agencies or travel bureaus throughout the nation; to discredit and disparage it in the eyes of the public by the use of false and misleading statements; to eliminate and prevent competition for air carrier passenger and freight transportation; to offer transportation at cut prices until competition was eliminated; to obtain from gasoline and oil suppliers large quantity discounts which were not available to plaintiff; and, to cause refusal and delay to it of vital maintenance and other services at airports.

 In the light of the foregoing, the 'character of the controverted question' is not difficult of determination. It was these very evils, among others, that the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq., was passed to correct *fn4" , and in doing so the Congress gave to the Board very broad powers over the industry. *fn5"

 It would appear, therefore, that United States Navigation Co., Inc., v. Cunard Steamship Co., 284 U.S. 474, 52 S. Ct. 247, 76 L. Ed. 408, is completely dispositive of the case here. There the court unanimously held that a private suit to enjoin an alleged combination in restraint of trade could not be maintained since the combination alleged was an agreement subject to the primary jurisdiction of the Shipping Board under Sec. 15 of the Shipping Act *fn6" . Furthermore, the Civil Aeronautics Act gives to the Civil Aeronautics Board far broader powers than the Congress saw fit to vest in the Shipping Board.

 The allegations of the present complaint, considering them to be true for the purpose of the Motions to Dismiss, clearly present problems which involve expert knowledge of multitudinous detail of an intricate nature in a technical field. The Civil Aeronautics Board (and its predecessor the Civil Aeronautics Authority) has been in existence nearly twelve years and is peculiarly adapted, by reason of its experience and expert personnel, to deal with the matters herein complained of. The plaintiff complains, however, that the Board is dominated by the defendants and their alleged co-conspirators. The answer to that is that the Act gives ample opportunity for judicial review of the actions of the Board, if it proceeds arbitrarily or capriciously. *fn7"

 The Court has carefully considered whether this case should be held in abeyance until the Board has made its determination, in accordance with the holding of the Supreme Court in the case of General American Tank Corp. v. El Dorado Terminal Co., 308 U.S. 422 *fn8" , 60 S. Ct. 325, 331, 84 L. Ed. 361, or the Motions to Dismiss granted at this time. The Court has concluded that the stay rule enunciated therein is inapplicable here, for the reason that in the El Dorado case the primary jurisdiction point was not advanced until after a trial on the merits, while it has been raised and vigorously urged in limini in the case at bar. See Armour & Co. v. Alton R. Co., 7 Cir., 111 F.2d 913, affirmed 312 U.S. 195, 61 S. Ct. 498, 85 L. Ed. 771.

 The Motions to Dismiss are, therefore, hereby granted and counsel will present an appropriate Order.

 In view of this holding, rulings on the other motions ...

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