WASHINGTON v. GENERAL MOTORS CORP.

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Argument of Fredric C. Tausend

Chief Justice Warren E. Burger: Original number 45, State of Washington against General Motors.

Mr. Tausend, you may continue.

Mr. Fredric C. Tausend: Mr. Chief Justice and may it please the Court.

Yesterday afternoon I told you what this case was about.

This morning, I hope to persuade you to exercise your discretion to accept this case as an original action.

The States who are Plaintiffs in the amici seek two things.

One, a single unified trial of the antitrust for equitable relief only, and two, a speedy resolution of this litigation so that what now appears to be the most adequate equitable remedy namely retrofit of pre 1968 cars at the expense of the defendants can remain a viable possibility for the Court to administer if it sees fit to do so at the conclusion of the case.

Under the standards which this Court lay down in Wyandotte and Georgia, you must been exercising your discretion ascertain first if there was an alternative forum to which this case may be remitted in the interest of convenience, efficiency, and justice.

Now clearly because this is a Sherman Act, Section 1 case, that forum must be a federal one.

The appellant's alternative forum that comes to mind is the District Court in the Central District of California at Los Angeles, the Multidistrict Court.

Judge Real has served almost two years as the 1407 transferee judge.

He is familiar with many of the facts in this litigation in that capacity.

He has presided over extensive pre-trial hearings I believe there have been at least six.

He has attended portions of a two depositions of officers to the defendants that have been taking to date.

He has read some of the documents which were submitted to him in a brief under seal and he has made it clear by adopting the plaintiff proposed discovery and trial preparation schedule that under his direction these cases could be ready to go to trial in December 1972.

But standing ultimately in the way of that resolution, a single trial in December 1972 on the equitable issues are these defendants.

As I pointed that yesterday, 34 of the governmental cases were brought in Districts other than Central District of California, 23 separate districts as a matter of fact.

So to achieve a single trial at the District Court Level there would have to be transfers to Los Angeles of all 34 cases under 28 USC Section 1404.

And the defendants have announced time and again that they would resist such to transfers and such a consolidated trial.

At page 4 of their supplemental brief which is the cream-colored brief, the next to the last brief they filed in this action.

They assert that the joint trial was not feasible, not feasible.

And at the proceeding before Judge Real in Los Angeles, a week ago Thursday, the defendants indicated just how vigorously they will resist such a transfer on both substantive and procedural grounds if Judge Real attempts to go ahead with it.

I have submitted the transcripts of those proceedings such an the appendix to our brief and I am going to quote for Mr. Cutler, at page 51 of the transcript.

I am going a quote a few remarks and if the Court has the transcript and would like to see the entire context of those remarks that Mr. Cutler made, I'll invite your attention to page 51.

Mr. Cutler told the court and I quote, "I think we would have to say that any decision at this point in favor of transfer and consolidation is something which we would feel bound to seek review."

And then said Mr. Cutler everything would be help up while that was being resolved.

Now, Mr. Cutler's thrust has two points. One, very clearly the defendants intend if they can to hold up everything attacking this transfers and the second point is that they will seek with you which means that ultimately this case is going to reach this Court and probably more than once because the defendants have already taken and interlocutory appeal from Judge Real's order denying their motion to dismiss.

The interlocutory appeal Your Honors was certified in November 1970.

The case was finally argued in the Ninth Circuit on January 1972, it is now subjudicy and certiorari I believe as certain.

So I think the defendants have made it clear that they're not going to let this Court escape the burden of this litigation.

So the question then is I believe, would the burden imposed by accepting original jurisdiction as we urge this Court to do, especially where the Master can be a Federal District Judge who is totally familiar with the case and was indicated that but for the legal obstacles which the defendants are raising, he would most probably be prepared to go to trial on the equitable claims on December 1972.

Is that burden really greater than the burden imposed by the persistent, excuse me, by the persistent threat from the defendants on what can only be characterized as protracted in piecemeal litigation.

And beyond the burden that would be imposed on this Court is the burden which would be imposed on the entire Federal Judicial System if the defendants succeed on delaying the trial to a point where the possibility of equitable relief through retrofit is no longer a viable one because of the delays in time and the cars leaving the road at the rate of 8 to 10 million a year as it accelerates as I explained to the Court yesterday.

Because of that point, at some point on the future money damages would then be the only sensible recourse of the States and the difficulties and complexities of this case will be every bit as great and perhaps greater than the Multidistrict Panel warned up when it assigned these cases to Judge Real.

Now the defendants also will be greatly burden by multiple jury trials and diverse appeals but apparently they are willing to bear this burden in order to avoid paying in this way for their Sherman Act violations.

It is to avoid these burdens on the Court on the Federal Judiciary on the 34 States and New York and to obtain an early end to the litigation and to preserve the possibility of retrofit relief at the defendants expense as a viable remedy for the wrong alleged that we urged this Court now to accept the original jurisdiction of this case, appoint Judge Real as your Master and let us proceed the trial in December 1972, that is my argument.

Chief Justice Warren E. Burger: Thank you Mr. Tausend.

Mr. Cutler.

Argument of Lloyd N. Cutler

Mr. Lloyd N. Cutler: Mr. Chief Justice and may it please the Court.

The defendants urged that this case is governed by your decision at the last term in Wyandotte and that in one important sense it simpler than Wyandotte.

In Wyandotte, you based your decision on two major grounds the availability of another impartial and no less of appropriate forum even though Ohio had not filed suit in that forum and as a cogent reason, a practical wisdom for declining jurisdiction on the light of your other responsibilities the possibility of imminent legislative and administrative relief for the factually and technically complex environmental problem they are involved.

In the present case, the Court need not reason on the basis of the hypothetical availability of other no less appropriate forums or on the mere possibility of legislative and administrative relief.

In the present cases, the same plaintiffs states and the amici states have already filed essentially the same suits against all the defendants and other more appropriate District Court forums where a pre-trial preparation as Mr. Tausend told you or actively proceeding and more over a comprehensive program on legislative and administrative relief or the even more complex environmental problems here both the Federal and the State level is already an on-going fact.

I would like to ask the Court if it would to look at our supplemental memorandum in our position which is the cream-colored memorandum filed on December 23 and if you will turn to the appendix of that memorandum, you will see a compilation of all of these pending District Court cases which have now been consolidated for pre-trial purposes --

Justice William O. Douglas: It says as a matter of the trial strategies from your side, it is impossible to get this trial together in a separate --

Mr. Lloyd N. Cutler: I don't think it's correct to say Mr. Justice Douglas that it is impossible, it is our belief number one that the question of whether these cases should be transferred to a single district for trial and then consolidated for trial is a question that can be best evaluated when the pre-trial proceedings are further along the identity of the witnesses and the nature the issues are better known, the question of whether the cases as they present themselves for the different states are essentially different cases in major aspects such as the quality of the air in the given State the impact of the defendants' activities on the quality of the air in that State and the relationships that have going on between the regulatory authorities and the automobile companies in that State.

Unknown Speaker: Are you suggesting the old --

Mr. Lloyd N. Cutler: No, sir.

I am suggesting that is an entirely appropriate question for the District Courts to resolve under the transfer powers and the consolidation powers when the pre-trial proceedings are further along.

Moreover, if you would look at the appendix, sir, you will see that these plaintiffs, most of them after they filed the single case before you when the time came as Mr. Tausend mentioned when they decided to file District Court complaints to protect against a fairly remote statute of limitations possibility.

They filed those complaints not in one action as they filed before you which they were perfectly free to do.

They filed those complaints as you will see on page 42 of appendix A in some 12 different Federal Districts, eight of them as widely separate as Hawaii and Maine as it happens elected to file a single complaint in the Central District of California.

But the others for reasons best known to themselves elected to file in separate districts thus creating the transfer problem about which they are now complaining.

In fact, they did this after we, in our initial memorandum and opposition to the filing of the complaint here, had said that these courts, original jurisdiction is not necessary if they want to achieve their purpose of the single trial. All they had to do was get together and file a single complaint of the same type in a single District Court which they did not do.

Moreover, even though they failed to do it the District Courts among them clearly have the power to transfer these cases under Section 1404 and to consolidate them for trial under Rule 42.

Should they conclude, despite the arguments, we may very well make to do contrary after the conclusion of the pre-trial discovery that consolidation and transfer are not in the interest of justice.

Justice William H. Rehnquist: Mr. Cutler aren't the differentiating factors which you mentioned in response to Justice Douglas as questioned, primarily wants to do with remedy rather than liability.

Mr. Lloyd N. Cutler: No, they're not Mr. Justice Rehnquist, because liability in a Section 16 action and in a Section 4 action which this plaintiffs have also brought in the District Courts depends first on the proof of an antitrust conspiracy let us say, and second on the impact of that conspiracy on the particular plaintiff.

For example, there is an allegation on these complaints that the defendant conspired to delay the installation of one particular retrofit device on vehicles in the State of California for one year.

We would intend to show not only that we did not so conspire but that if we had, that particular Act could have had no effect or certainly no tangible impact on the quality of the air or any injury to the State of Hawaii or the State of Maine or any of the other States which were not directly involved in that particular Act.

If you will look again at this list of cases at page 42, many of these cases in the District Courts in fact all of those that are brought by States are contained the same allegations that are contained in these cases before you.

But in addition to that they are class actions brought on behalf of all the political units in those States and they are also actions for damages and we would submit to you that the District Courts which have those cases before them are far better able to deal with the plaintiffs present request made to the District Court to drop their damage claims and to deal with the question of how the dropping of those claims is to be resolved among the various members of their classes and to how the question of dropping the damage claims in some but not all of the State cases because California has declined to drop its damage claim and has declined to seek this early equity trial how those problems are to be resolved.

First, to make sure that the dismissal of this class action complaints below is properly approved by the Court and second, how any jury trial or right to jury trial issues under Beacon Theaters are to be resolved.

Unknown Speaker: Those actions you say Mr. Cutler are class actions and that they asked for damages as well as for the injunction?

Mr. Lloyd N. Cutler: That is correct, Mr. Justice.

Unknown Speaker: And are they also -- the class actions are they also parens patriae action?

Mr. Lloyd N. Cutler: All of them plead parens patriae claims including the ones before you.

Unknown Speaker: And in our case today as a parens patriae claim but not a class action [Voice Overlap]

Mr. Lloyd N. Cutler: It's not a class action before you.

Unknown Speaker: And as only for (Inaudible)?

Mr. Lloyd N. Cutler: That is correct and remember of course that you have before you only 18 of the States whereas the District Court has before it some 36 States.

One of which at least has said specifically it does not intend to drop its damage claim and does not intend to seek this early equity trial therefore raising this set of be Beacon Theaters problems that only the District Court, we believe, can resolve since it has all these cases before it.

It has all the classes and it can arrive at the proper resolution of which cases should be tried first.

I want to say in that connection in the light of Mr. Tausend's comments first that what he quoted from my remarks below before Judge Real dealt essentially with the question of when transfer and consolidation where right issues for consideration and not with the question of essentially of power in the District Courts to accomplish those two things whenever that might be required.

Now --

Justice Byron R. White: It's not -- what do you view of the parens patriae, you see -- you say that's what this is in the story?

Mr. Lloyd N. Cutler: I say only Mr. Justice White that these plaintiffs have pleaded their case as a parens patriae claim for the injunctive relief they seek in this Court, whether the parens patriae point is significant and that, I have no idea.

Unknown Speaker: Oh what is that parens patriae?

Mr. Lloyd N. Cutler: This I take it is the issue you have before you and Hawaii case but their claim is that on behalf of all the citizens of their State they are seeking the injunctive relief which they claim to be necessary to improve the quality of the air in their State --

Justice William O. Douglas: Oh they didn't invent that?

Mr. Lloyd N. Cutler: -- for an antitrust violation.

Justice William O. Douglas: They didn't invent that concept, should they?

Mr. Lloyd N. Cutler: No, Mr. Justice Douglas.

Justice William O. Douglas: It's very familiar.

Mr. Lloyd N. Cutler: I am not making an issue of the fact that they have included the parens patriae claim and I don't know that it is significant to your question of whether that you should accept?

Unknown Speaker: Would then we have a case here?

Mr. Lloyd N. Cutler: Well, I believed that they are suing as States and as parens patriae.

They say they bring in this action in their capacity as parens patriae, etcetera, etcetera, etcetera and as proprietors, state lands, properties and resources.

Unknown Speaker: But in any, you don't challenge their standing or their cause of action that you don't say they don't plead the cause of action?

Mr. Lloyd N. Cutler: No sir and in fact we do not challenge the jurisdiction of the District Courts in anyway these defendants are suable and virtually any district, they have not contested the suits pending in any State --

Unknown Speaker: And you don't contest our jurisdiction?

Mr. Lloyd N. Cutler: We of course, we don't contest your jurisdiction sir.

The -- not only is the District Court a perfectly appropriate forum and equally appropriate forum field.

We submit, Your Honors, that the District Court is a more appropriate forum even though I don't think it's necessary for us for you to reach that level of proof.

You have only taken one original antitrust case so far as I know and that is Georgia against Pennsylvania and that case was taken on the express ground as we understand it that the District Courts where incidentally Georgia had not filed.

None of the District Courts reason this Court could have in personam jurisdiction over all of the defendants and that is why you took this as an original jurisdiction case saying in the opinion of the Court though in other respects we assumed it namely District Court jurisdiction would be wholly appropriate.

And here, all of the handicaps of this Court as a trier of fact, since you cannot listen to the taking of evidence in the first instance, cited in the dissents in the Georgia case overwritten in Georgia only for a reason that is not present here would be before you.

This is not, as plaintiffs appear to believe, a simple per se antitrust case and the government never contended when it brought its own suit that it was a per se case.

It's a case that involves the complex history of some 20 years of interaction between governmental authorities and the automotive industry as both of them were gradually coming to realize the significant effects of automotive emissions on the general air quality.

And the case has a unique quality to it that is going to require extensive proof because of it's the first case to our knowledge that involves the, what economist called the principle of externality, namely the incorporation of a feature in a product such as an automobile which is put their for a social or for public purposes and which the individual purchaser of the vehicle does not perceive as having any utility to himself on his vehicle and will not pay an additional price for if you give him a choice.

In fact, in the case of an emission control apart from its cost the purchaser may regard it as a positive detriment because of its adverse effects on fuel equality, on idling, on heating up in traffic and on cold starting and we have filed with the Court since the relief of course that these plaintiffs insist on, its retrofit relief, we filed with you yesterday a recent report submitted to the air quality -- Air Resources Board of California by its staff and February 16.

It's only six pages long and I urge you to look at it because it analyzes all of the available retrofit kits that have been submitted to the State of California which does have a mandatory retrofit law and which will require all of its citizens to retrofit when and as the State triggers the law by certifying a particular device something after years of that law being on the books the State has not yet done.

Plaintiffs have said to you that the problems that this Court faces with its difficulties as the trier of fact could be resolved by appointing Judge Real as your Special Master.

But this really would not resolve the problems you face as a trier of fact.

Judge Real sitting as Special Master would -- could only recommend findings of fact to you on which you could would have to make an independent evaluation and he could only recommend to you rulings on issues of law has plaintiffs themselves seem to admit.

He could do far less himself and he would involved you much more in interlocutory and other reviews of what he was doing if he said as your Special Master then that he and other District Judges sat as District Judges.

They could dispose issues as District Judges which they could not dispose as Special Master.

For example, if there were a plea of the statute limitations answered by a claim of fraudulent concealment or motion to dismiss at the end of the plaintiffs' case.

Judge Real or another District Judge could decide those and the whole case might be over at that point.

Subject only to appellant review and appellant review which might never reach you, and might be resolved in the Court of Appeals and despite what Mr. Tausend has said it's perfectly possible that if these cases are tried in the District Courts they will ultimately be resolved in ways that never make it necessary for this Court, at least to grant certiorari and review any particular aspect of them.

Further, if Judge Real were to function not only as the appointee of the Multidistrict Panel in all of these are the cases but also as your Special Master, he might find a conflict of interest in those two responsibilities.

You might say, can a master serve two masters? But he is responsible to the Multidistrict Panel for the expeditious conduct of the pre-trial proceedings in those other cases.

Supposed we were to say to him at some point that we felt the California case which raises both damage issues still and equitable issues should be tried first because California was the State with which asked the automobile companies in the first instance to appoint a committee and get to work in this area and most of the interaction between the industry and the Government took place initially with the State of California.

And if that case were tried first and we would erase that as the case that should be tried first, the Beacon Theaters problems would be resolved.

How could Judge Real, sitting both as your Special Master in these cases and as the Multidistrict Panel Judge in the other cases, resolve that problem?

He would have to take his orders from you which might to proceed with this case which might be essentially incompatible with his other duties.

Furthermore, you had an experience with a Special Master in the only original antitrust case you ever took.

Georgia, if you'll recall, came to you itself for urgent equitable relief, that is all you took and you appointed a highly confident Master.

Georgia thought probably also it had a simple document case.

One that it put into the Master in one day yet it took this very capable Master, Mr. Lloyd Garrison, four years to hear first the defendants proof of the lack of conspiracy and the essential reasonableness of what they have done.

And to prepare his report and the report itself was some 700 odd pages alone, there were more than 15 volumes of testimony and a dozen-volume of exhibits which you would have had to review.

You were fortunately spared that which might have taken another year because Georgia itself voluntarily dropped its case as mooted by some pending ICC proceeding.

So we would say to you, Your Honors, that the District Courts left to themselves, we believe and with whatever appropriate appellate review first the Courts of Appeal when which you have always relied in the past in antitrust cases and which you have been very unhappy to see eliminated from the review of direct appeals by defendants in government antitrust cases.

You could rely on them to see that the proceedings were going forward expeditiously.

Judge Real, I can assure you sitting as the Multidistrict Panel Judge is applying the lash very vigorously to all us and the defendants in this case far from doing what Mr. Tausend has said have been taking the initiative below in pretrial discovery.

We filed our first wave discovery requests something like a month before they were required to be filed.

The plaintiffs have not yet filed this.

We initiated the taking of depositions of some of our older witnesses.

And we have said to Judge Real who incidentally has not yet approved the December trial date and has not yet adopted on any permanent basis the plaintiffs program but wants to see the reaction of these classes in municipalities first.

We have said to him that we are prepared to go forward as to accept any target date for the completion of pretrial and to go forward as rapidly as any case involving 20 years of history in this rather abstruse technology in these relationships with various government agency would permit.

Justice Byron R. White: Mr. Cutler, do you say that some of these cases in the District Courts are essentially different from each other?

Mr. Lloyd N. Cutler: Some of the State cases we would submit, Mr. Justice White, are sufficiently different from one another so that it might not be expeditious to put them all together in one big single consolidated trial.

Justice Byron R. White: Well if the -- if there was a Special Master appointed -- if we took jurisdiction and appointed a Special Master and he face the -- these same States, would you suggest that he may have to try different States separately?

Mr. Lloyd N. Cutler: Yes, Mr. Justice White we would, should you take original jurisdiction and depending on whether the pretrial discovery in proof work out as we believe it would and the sharpening of the issues work out as we believe it would.

Justice William O. Douglas: My understanding of the Federal -- new Federal law is if the Federal standard would apply into cars manufactured after a certain date and that the petition here is talking about cars especially on the road you have, isn't that right?

Mr. Lloyd N. Cutler: That is part of the relief he is asking Mr. Justice Douglas but it's the only part on which he is concentrating and urging you to take original jurisdiction of the case.

Justice William O. Douglas: My question is this, as a matter of Federal law that phase of the problem is what do States to work out as they might choose, is it not?

Mr. Lloyd N. Cutler: That is correct sir.

Justice William O. Douglas: So you could have 50 different standings for a retrofit?

Mr. Lloyd N. Cutler: Pardon?

Unknown Speaker: For a retrofit as you would say for what kind of device would be put on the car or ready in use owned by a driver in a State?

Mr. Lloyd N. Cutler: One thing in California, and other in Idaho, and other in Washington?

Unknown Speaker: That is correct. [Voice Overlap]

Justice William O. Douglas: But we're not dealing with an overall Federal rule.

The only Federal Rule is a -- a federal rule that leaves it to the States --

Mr. Lloyd N. Cutler: That is correct Mr. Justice Douglas and this was an advertent thing.

The Senate and the House when they passed the Clean Air Amendments of 1970 considered imposing a mandatory retrofit requirement and concluded that a retrofit program was not manageable at the Federal level, this is at pages 25 to 32 of our -- of that same memorandum, and should be left to the regions the air quality regions and the States which means essentially the States.

Justice Byron R. White: Well, let's assume we have jurisdiction and then Special Master proceeded.

I take it that, that in suit like this Federal Law govern -- that in your submission a suit like this as to determining the existence of an antitrust violation and the remedy Federal law would govern?

And would you or are you suggesting that the action of Congress would suggest to the Special Master into this Court that in that although as a Federal Law would govern the remedy that we would borrow state law or state standard?

Mr. Lloyd N. Cutler: What would actually happened Mr. Justice White as the plaintiffs have conceded below is that a remedy from this Court would be worthless without the enactment of a statute in each state requiring every car owner to install a retrofit device whether it was paid for by him or furnished at the cost of a billion dollars by us and to maintain that device there after.

Now the interesting thing is and all of this state in --

Unknown Speaker: Let's assume the question was, what kind of a -- let's assume that it was found that there was an antitrust violation under the federal standards.

Now on the remedy, what kind of retrofit device would --?

Mr. Lloyd N. Cutler: All you could do --

Unknown Speaker: It would be ordered to be installs in California as compared the Illinois?

Mr. Lloyd N. Cutler: Assuming you have any power under Section 16 to order the sort of a remedy a retrofit remedy today, all you could do I believe, would be the order the installation of such of the device as the State by legislation or regulation might or might not require.

Justice William O. Douglas: Does the State have some leeway under the Federal Law?

Mr. Lloyd N. Cutler: Well, not only does it have leeway, the States disagree very widely despite what they say here about whether there should be retrofit, the State as I started to say moment ago sir, have filed their so called implementation plans with the Environmental Protection Agency as to what they intend to do on air quality.

Justice William O. Douglas: If we --

Mr. Lloyd N. Cutler: If we file those with you yesterday not a single State Mr. Justice Douglas of these 34 of plaintiffs and amici has said it intends to adopt a retrofit program.

Several of them have said that retrofit is unnecessary or impracticable or would have minimal effect.

These various States that are before you today and we filed this paper with you yesterday analyzing this public filings have all said that they do not intend to seek a retrofit program.

The only one that has said the contrary is California and California is not seeking an original remedy from you or in early equitable trial.

It intends to proceed on its claim for damage.

Justice William O. Douglas: He took the case and we had hearings then a decree, that would not in anyway touch the Environmental Protection Agency, would it?

Mr. Lloyd N. Cutler: It would not -- it might Mr. Justice Douglas.

Justice William O. Douglas: In what way?

Mr. Lloyd N. Cutler: In this way that the Federal Government decided that the thing if the Federal Government by which in the sense you're a part should concentrate on was emissions from new cars and that the manufacturers face very substantial problems in working out the technology and incurring the cost necessary to meet those standards.

If it's a still a very near thing whether we are going to meet this new standards or not but if on top of our obligations to meet standards on new cars, which none of us have yet figured out how to do, this Court or any other court should impose on us a substantial retrofit obligation amounting to some billions of dollars in the production of 50 million units for that purpose it might have a very substantial effect on the EPA Program.

Unknown Speaker: Well, I thought part of your argument was the Congress has said in the situation like this state law is to be the governing standard?

Mr. Lloyd N. Cutler: Congress has said that the question of whether a car should or should not be retrofitted are cars already on the road cannot be manage at the Federal level and should be left to the state.

Unknown Speaker: If we were saying -- if we were saying federal law governs this suit that we must look to state law to see what the federal standard should be and a State that says there is no retrofit law in our State?

Mr. Lloyd N. Cutler: There would be no evidence.

Unknown Speaker: There would be no remedy if you --

So, either you can have dirtier lawsuits under the Federal Act?

Mr. Lloyd N. Cutler: I am not sure I understand that.

Are you speaking with respect to old cars?

Unknown Speaker: There's no effect on old cars.

Mr. Lloyd N. Cutler: Well the State could decide or --

Unknown Speaker: There's no effect on Idaho but Idaho could --

Mr. Lloyd N. Cutler: But Idaho could also decide that it does not want dirty air quite that emissions from old cars in Idaho are not a problem.

That carbon monoxide in Idaho is not a problem, that hydrocarbons in Idaho are not a problem, and that oxides of nitrogen are not a problem and that is not a useful expenditure of resources to cure air pollution.

Unknown Speaker: Then Idaho would not be one of these complaining parties in this course?

Mr. Lloyd N. Cutler: And yet the very States, as I said, that are here before you and in the District Court demanding this retrofit at defendants' expense have just filed plans with EPA saying none of them saying that the intend of propose a mandatory retrofit program and yet this plaintiffs have conceded below that no remedy any court should grant with work unless the State pass such laws.

Justice William H. Rehnquist: Well, Mr. Cutler might it not have be reasonable on the part of the State to say, we will not impose the Retrofit Program at the expense of the individual car owner but if the automobile committees can be made to pay for it, we would be perfectly willing to support it in that instance?

Mr. Lloyd N. Cutler: Perhaps so Mr. Justice Rehnquist.

But I think that very question or that posture would bear on the alleged urgency of this remedy and the fact that the remedy may be disappearing unless the States do something about it.

California which has the most urgent problem has decided to go ahead and rely on its claim for damages.

If the relief were really that urgent other States would do the same and certainly this defendants should be not be deprived of the fullest opportunity to prove (a) that there was no antitrust violation, (b) that if there was one it had no impact on that particular State, and (c) even if it did have an impact, the air quality requirements in that State were not such as to justify this drastic remedy which goes far beyond anything that's ever been called for under Section 16.

Chief Justice Warren E. Burger: Thank you Mr. Cutler.

Mr. Tausend, do you have something further?

Rebuttal of Fredric C. Tausend

Mr. Fredric C. Tausend: Yes, I do Your Honor.

Your Honors, this is not an air pollution case.

This is not retrofit case.

This is not a nuisance case.

It is an antitrust case for equitable relief only and it is true that we have emphasized in urging you to accept the original jurisdiction the widely possibility of seeking as we do now and seeking at the end of the trial retrofit relief for pre-1968 cars as the most adequate remedy if we proved the antitrust wrong.

Unknown Speaker: Well, isn't that the only remedy that you are seeking that is in addition of what the government already had?

Mr. Fredric C. Tausend: Well --

Justice Byron R. White: Aren't these defendants already entered an injunction?

Mr. Fredric C. Tausend: Yes, we are not seeking preventive relief Mr. Justice White.

We are not trying to collaterally supplement --

Justice Byron R. White: Well, what do you want in addition to what the Government already has?

Mr. Fredric C. Tausend: The other possibility as we hold out are possibility of additional devices on new cars if the technology of speed or an accelerated research program which we're not particularly emphasizing at this times and might raise additional problems but we do want to keep the equitable relief flexible although we think and we're pretty sure that the partly because of what the defendants have said and what technology seems to be producing that the retrofit device making those cars manufactured doing the period of the conspiracy clean cars which they would have been, but for the antitrust conspiracy is the most fitted device.

But I want to make clear that we're not asking this Court today to decide that issue.

We're asking this Court because we think it would be pre-mature.

It came before Judge Real and he said it's pre-mature.

And we quoted in our reply brief the Judge Real said, "At the end of the trial when the evidence is in, it is possible that plaintiffs, the States will be able to show facts to this Court sitting equity that will justify the kind of relief they seek."

Unknown Speaker: Do you agree that Congress has left the retrofit matter to the States?

Mr. Fredric C. Tausend: Well, in legislating Your Honor, yes I do.

Congress has said that in respect to the pre-1968 cars, the standards of the emissions are up to the States but I do not think that, that says anything about what would happen if antitrust violation --

Justice Byron R. White: Alright.

Let's say that we took jurisdiction and found an antitrust violation and then would we be free in case of what Congress has said the fashion here, our own standards with respect to the used car, the cars on the road?

Mr. Fredric C. Tausend: I certainly think so, Your Honor.

Congress certainly has not given any indication to abandon the field in any of this.

Justice Byron R. White: What Congress have said that as far as the past is concerned that the federal law should at the very least look to the States --

Mr. Fredric C. Tausend: Well Con --

Justice Byron R. White: -- for standards?

Mr. Fredric C. Tausend: I think Yes Mr. Justice White Congress made a political a compromise.

They passed the law and they said we're on the facts that we have before us.

We're going to set emission standards based on things done to new cars.

Justice Byron R. White: Did you address yourself to this matter in your brief?

Mr. Fredric C. Tausend: Well, we addressed ourselves yes in our reply brief and particularly in our --

Justice Byron R. White: Now, we ask you about what were the governing law would be in this case.

Mr. Fredric C. Tausend: Well, on that point we address --

Justice Byron R. White: And you say it's federal law but in the process of fashioning federal law, do we have to look to the state law borrow state law in light of what Congress has said?

Mr. Fredric C. Tausend: No, because I think very different considerations are involved except possibly for this.

I think what -- you not only have federal law versus state law here Mr. Justice White, I think you also have something that isn't really a pre-emption argument at all which is the role of a legislative body in regulating the air and the role of a Court of Equity in remedying any antitrust violation.

Now it just so happens that the antitrust conspirators, the antitrust defendants effectuated their conspiracy in an area which affected the air.

But I -- and so I don't think it's a choice of law or question in that case at all.

I think when the equity court comes to render the decree it's going to have to consider the state of the art.

It's going to have to consider by that time, Mr. Justice White, it's entirely possible that federal law will govern used cars because Congress has not necessarily indicated an intention to stands still on this and the EPA, the Federal Agency has a real role in directing the States and stimulating the States in respect to the retrofit inspection programs which they have indicated they may start --

Unknown Speaker: Is Congress free to specify the standard applicable in original actions?

Mr. Fredric C. Tausend: I don't believe so. I believe that the standard applicable on original action is set in Article 3 of the Constitution and derives from the powers of this Court and the only -- the only thing there is that because this Court in original action such as this one not State against State sir, but State against Citizens of another State is concurrent with Federal Court --

Unknown Speaker: Well, you are relying on this congressionally set standard in bringing this action namely the Sherman Act?

Mr. Fredric C. Tausend: Yes.

Unknown Speaker: I suppose you --

Mr. Fredric C. Tausend: Of course --

Unknown Speaker: If Congress is free to provide the law that would govern original actions on this one?

Mr. Fredric C. Tausend: You mean to take away jurisdiction from this Court?

Unknown Speaker: I didn't say jurisdiction, I just said the law.

I have specified the law.

Mr. Fredric C. Tausend: I see.

I see not the exercise of the discretion but the law applicable.

They have specified the law applicable in specifying the Sherman Act and --

Unknown Speaker: I didn't make it to control the remedy.

Mr. Fredric C. Tausend: I would have very serious question with a congressional imposition on the powers of a Court of Equity to grant equitable relief.

And if I may refer to Guaranty Trust versus York, which is not in our brief, it's 326 U.S. 99.

Mr. Justice Frankfurter in that opinion wrote a rather extended dissertation on the powers of equity and where equity powers on the Federal Court came from.

Justice William H. Rehnquist: How about the Norris-LaGuardia Act Mr. Tausend? Certainly that --

Mr. Fredric C. Tausend: Yes, I think there are instances where the Court stands could be state and some like that but that haven't happen here Mr. Justice Rehnquist. In fact, that to the contrary all that, that I see that happen is that Congress isn't ready yet and hasn't been ready yet to apply emission standards to used cars.

That's really all it's happen.

It might be by the time this Court was ready to decide this case and I think that a lot of the reason why Congress hasn't been ready yet to do that is who pays for it.

Now, Mr. Cutler mentioned the Court --

Justice Thurgood Marshall: For which could we make the car owner do it?

Mr. Fredric C. Tausend: Could this Court make the car owner do it?

Justice Thurgood Marshall: Make him accept it.

Mr. Fredric C. Tausend: Well, I think this and --

Justice Thurgood Marshall: The answer is no.

Mr. Fredric C. Tausend: You could not make him accept the right of it.

Justice Thurgood Marshall: Right?

Mr. Fredric C. Tausend: Yes I think that is right Mr. Justice Marshall.

Except for this, I think that the relief, the equitable relief could be conditioned on a state enactment of retrofit law or some other retrofit administrative requirement.

Justice Thurgood Marshall: We could make the State pass the statute?

Mr. Fredric C. Tausend: I think.

I think.

Pardon me sir?

Justice Thurgood Marshall: Can we make the State pass a statute?

Mr. Fredric C. Tausend: I think you could get condition relief on it I don't think you could direct the State to pass a statute but I think that Court of equity could and frequently does condition relief --M

Justice Thurgood Marshall: Could we now order or require one of the States is not involved to do so?

Obviously no.

Mr. Fredric C. Tausend: No.

Not one that's not involved.

Now, there are I'd like to talk about two things because I think you couldn't get to the States that are not involved because they wouldn't be any antitrust case and they wouldn't be involve in the antitrust decree.

But I think you could condition or the Court of Equity could condition the granting of the equitable relief on meeting certain standards and one of the standards would be that the retrofit be put on the car so that the cars can be made clean.

Now, I'd like to mention two things in our context.

One is Mr. Cutler referred to the cost of equitable relief and how this cost would somehow interfere with the efforts of the automobile companies to go ahead and meet the 75 standards.

I think that argument simply has no place here at all.

And I would like to put in perspective.

The cost of these devices according to these defendants is approximately $20.00 a device.

We're talking now today about 50 million used cars.

Each year, at least 8 million go off the road so we are talking at most about less than a billion dollars in the light of an antitrust conspiracy that lasted 15 years and in the light of net after tax revenues of General Motors alone in 1971 of over $2 billion.

So I am not saying it's a little amount of money that is involved.

But it's not the kind of gigantic staggering cost that Mr. Cutler has indicated at the Court would be involved.

And secondly, it should be pointed out which is exactly what the defendants want to accomplish that as we go on, each year eight million leave $116 million is depleted from the obligation that these defendants could meet if retrofit is the correct and adequate remedy.

And I would like to say that Mr. Cutler did say that when I quoted him, he was talking in 1404 about a pre-mature argument that the -- that it would be premature to transfer at this time.

But he went further at that at page 53 of the transcript and he said and I assume he still believes it.

There is a major substantive issue as to whether Section 1404 meant that the transferee judge in effect could transfer cases to himself for trial.

I would like to say who is in this case.

Mr. Cutler has said there are 18 States and California isn't in.

Well, California did sign the amicus brief and which it said if the Court agrees to entertain his complaint amici will seek leave to join as plaintiffs here.

Now, they haven't changed that position.

California is under just a little bit tighter gun than some of the rest of us and it's because their State is getting very close already.

They passed the statute in November 1971 requiring retrofit when devices are certified and made mandatory by the Air Resources Board.

In February 1972 Report which Mr. Cutler submitted late yesterday to this Court, there is an indication of how that is proceeding devices are just about ready to certification and as we are worried about a trial being postponed long enough so that the equitable relief is no longer viable as cars go off the road, so California is concerned that when the retrofit law goes into effect and when cars start being retrofitted at the expense of California, the equitable remedy may not be adequate now as we point it out in our brief --

Unknown Speaker: You mean if under that law does the State, pay the car?

Mr. Fredric C. Tausend: No.

Under that all the individual citizen of California pays the cost and that's why there concern that they would need and even quicker resolution of this but it would be sometime in 1972 before their equitable relief becomes a less viable remedy to them.

Unless this Court, as we indicate in our brief can under Vane versus Barnard and related cases direct that the wrong be repaired at the expense of the defendant and make restitution.

Chief Justice Warren E. Burger: Thank you Mr. Tausend.

Thank you, Mr. Cutler.

The case is submitted.