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NADER v. AIR TRANSP. ASSN. OF AMERICA

February 9, 1977

RALPH NADER et al., Plaintiffs,
v.
AIR TRANSPORT ASSOCIATION OF AMERICA et al., Defendants



The opinion of the court was delivered by: RICHEY

 OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 Plaintiffs bring this suit pursuant to section 16 of the Clayton Act, 15 U.S.C. § 26 (1970), to enjoin as a violation of section 1 of the Sherman Act, 15 U.S.C. § 1 (1970), an alleged "contract, combination and conspiracy . . . in restraint of trade in interstate and foreign commerce." *fn1" The jurisdiction of this Court is invoked pursuant to 15 U.S.C. § 26 and 28 U.S.C. § 1337 (1970).

 Plaintiffs allege that the defendants, the Air Transport Association of America -- a trade association of certificated scheduled air carriers -- and nineteen individual airline corporations, "have agreed not to compete either by ceasing to engage in overbooking, by modifying their reservation systems so as to significantly reduce the number of passengers denied boarding, by engaging in advertising relating to the practice of overbooking or the competitive risk of being denied boarding on competing airlines, or by warning persons making reservations that such reservations may not be honored because of overbooking." *fn2" In particular, plaintiffs contend that the defendants acted in furtherance of the alleged conspiracy by conducting a meeting on June 17, 1976, to discuss reservations policies and practices. *fn3"

 This case is now before the Court on motions to dismiss filed by various defendants. *fn4" Defendants assert two grounds for dismissal: (1) plaintiffs have no standing to sue for injunctive relief under section 16 of the Clayton Act, 15 U.S.C. § 26, and (2) the doctrine of primary jurisdiction requires the court to dismiss this case to permit the Civil Aeronautics Board [CAB] to give initial consideration to the activities of which plaintiffs complain. For the reasons hereinafter stated, the Court concludes that plaintiff Ralph Nader has standing to sue under section 16 of the Clayton Act, but that the case should be dismissed pursuant to the doctrine of primary jurisdiction.

 I. Plaintiff Ralph Nader's Allegations Of Direct Personal Injury From The Alleged Antitrust Violation Are Sufficient To Confer Standing Upon Him To Sue For Injunctive Relief Pursuant To Section 16 Of The Clayton Act.

 The first ground for dismissal asserted by defendants is that plaintiffs *fn5" lack standing to sue for injunctive relief under section 16 of the Clayton Act, 15 U.S.C. § 26. That section provides:

 
Any person, firm, corporation or association shall be entitled to sue for and have injunctive relief . . . against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity . . . .

 Plaintiff Nader alleges that: (1) he "is and reasonably expects to be a frequent user of air transportation services in the United States and between the United States and Europe;" *fn6" (2) he "utilizes air transportation in travelling to scheduled meetings and on professional and personal business, and the unavailability of reliable airlines reservations or failure by an air carrier to honor a reservation imposes upon him significant expenses, loss of time, and inconvenience;" *fn7" and (3) the "conduct of the defendants threatens to cause loss and damage to [him] . . . by making it more difficult, or impossible, for [him] to obtain reservations which adequately assure that [he] will be able to obtain air transportation on specified flights, and by depriving [him] of the benefits of competition in airlines reservations practices." *fn8" Defendants contend that these allegations are insufficient to permit plaintiff Nader to sue under Section 16 of the Clayton Act because that section requires a plaintiff to demonstrate (1) a "particularized and personal injury beyond that of the public at large," *fn9" and (2) injury to a commercial interest.

 Defendants' first argument is easily disposed of. Section 16 expressly states that injunctive relief to restrain antitrust violations is to be available "when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity." Thus, it is sufficient under section 16 for a plaintiff to allege an injury that would be cognizable in equity. While defendants are undoubtedly correct in asserting that section 16 (and general equity doctrine) requires that a plaintiff allege a particularized and personal injury beyond that of the public at large, see H. McLintock, Equity (2d ed. 1948); cf. Pauling v. McElroy, 107 U.S. App. D.C. 372, 278 F.2d 252, 254, cert. denied, 364 U.S. 835, 5 L. Ed. 2d 60, 81 S. Ct. 61 (1960), they are incorrect in contending that plaintiff Nader has not done so. Plaintiff Nader does not seek merely to vindicate the "public interest" in protection of the national economy from the damages wrought by anti-competitive practices. Rather, as the above-quoted sections of the complaint demonstrate, plaintiff Nader has alleged concrete and particularized personal injuries arising from the alleged antitrust violation. *fn10" Compare Int'l Tel. & Tel. Corp. v. General Tel. & Electronics Corp., 369 F. Supp. 316 (M.D.N.C. 1973); Burkhead v. Phillips Petroleum Co., 308 F. Supp. 120 (N.D. Cal. 1970). He has therefore stated a claim cognizable both in equity and under section 16.

 Since plaintiff Nader alleges sufficient personal injury to state a claim cognizable in equity, it is necessary to consider defendants' second argument -- that only injury to a commercial interest will confer standing under section 16. Defendants contend that despite the broad language of section 16, Congress intended the courts to grant injunctive relief to private plaintiffs only under the same conditions under which treble damages can be recovered pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15 (1970). Since section 4 expressly provides that treble damages can be recovered only when a person is "injured in his business or property by reason of anything forbidden in the antitrust laws," and particularly because at least some courts that have considered the issue have also required plaintiffs to be within the "target area" of an alleged conspiracy, see, e.g., Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292, 1295 (2d Cir. 1971), cert. denied, 406 U.S. 930, 32 L. Ed. 2d 132, 92 S. Ct. 1776 (1972), defendants' argument, in effect, is that no consumer, even one who suffers serious injuries from an antitrust violation, has standing to seek injunctive relief pursuant to section 16.

 Surprisingly few courts have considered the scope of standing under section 16, and those that have are divided. Compare In re Multidistrict Vehicle Air Pollution, 481 F.2d 122, 130 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S. Ct. 551, 38 L. Ed. 2d 336 (1973), and Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172, 1174 (5th Cir. 1976), with Nassau County Association of Insurance Agents, Inc. v. Aetna Life & Casualty Co., 497 F.2d 1151, 1154 n.2 (2d Cir.), cert. denied, 419 U.S. 968, 42 L. Ed. 2d 184, 95 S. Ct. 232 (1974). Moreover, none of the courts that have considered the issue have clearly articulated the basis for their decisions. Perhaps the most comprehensive analysis of the issue appears in a recent law review article that reviewed the legislative history of the Clayton Act and concluded that "[the] committee hearings, reports, and debates on the 1914 legislation make it clear that sections 4 and 16 were intended to deal with the identical type of injury . . . and that the difference in language was merely fortuitous." Malina, The Second Circuit Review, 1973-74 Term: Antitrust, 41 Brooklyn L. Rev. 889 (1975). Unfortunately, that article focused exclusively on the legislative history and gave no consideration to the policy difference between the two statutory remedies.

 The Court has studied the relevant portions of the legislative history analyzed by the Malina article and by the parties in this case. The Court concludes that the legislative history offers no such easy answer as Mr. Malina suggests. Rather, the legislative history is replete with ambiguity. Cf. Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 261, 31 L. Ed. 2d 184, 92 S. Ct. 885 (1972). The Malina article suggests that the specific references in section 16's legislative history to loss or damage to "business or property" demonstrate that Congress intended to limit the scope of section 16. However, such references were just as likely intended only to be examples of situations in which injunctive relief would be available under section 16. Particularly in view of the broad language of section 16, it is necessary to consider "'the necessities of the public interest which Congress sought to protect.'" Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 131, 23 L. Ed. 2d 129, 89 S. Ct. 1562 (1969), quoting Hecht Co. v. Bowles, 321 U.S. 321, 330, 88 L. Ed. 754, 64 S. Ct. 587 (1944).


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