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).
The Supreme Court has given a broad interpretation of the purposes of the private enforcement provisions of the antitrust laws. In Zenith, the Court concluded that "the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws." 395 U.S. at 130-31. Writing for the Court, Justice White emphasized that section 16 "should be construed and applied with the purpose in mind." Id. at 131. An expansive reading of section 16 will undoubtedly permit more comprehensive policing of the anti-trust laws and thereby effectuate congressional intent to "vindicate the important public interest in free competition." Fortner Enterprises, Inc. v. U.S. Steel Corp., 394 U.S. 495, 502, 22 L. Ed. 2d 495, 89 S. Ct. 1252 (1969). In light of these policy considerations, and since section 16 will not expose antitrust violators to "potentially disastrous judgments for treble damages . . . [and] the potential threat of duplicative recoveries," In re Multidistrict Vehicle Air Pollution, 481 F.2d at 130, an expansive reading of section 16 is to be preferred.
This conclusion is further buttressed by the legislative history of the recent Hart-Scott-Rodino Antitrust Improvements Act of 1976. P.L. 94-435, 90 Stat. 1383. The House Report manifests an unequivocal congressional determination to encourage private enforcement of the antitrust laws:
The antitrust laws clearly reflect the national policy of encouraging private parties [including consumers] to help enforce the antitrust laws in order to protect competition through compensation of antitrust victims, through punishment of antitrust violators, and through deterrence of antitrust violations. Litigation by "private attorneys general" for monetary relief and for injunctive relief has frequently proved to be an effective enforcement tool. . . . Section 3(3) of H.R. 8532, therefore, is intended to reiterate congressional encouragement for private parties to bring and maintain meritorious antitrust injunction cases. Under this section, a plaintiff who substantially prevails would be entitled to the award of "reasonable attorneys' fees."