Washington v. General Motors Corporation

RESPONDENT:General Motors Corporation
LOCATION:US District Court for the Northern District of Texas

DECIDED BY: Burger Court (1972-1975)

CITATION: 406 US 109 (1972)
ARGUED: Feb 28, 1972 / Feb 29, 1972
DECIDED: Apr 24, 1972

Fredric C. Tausend – for plaintiffs
Lloyd N. Cutler – for defendants

Facts of the case


  • Oral Argument – February 29, 1972
  • Audio Transcription for Oral Argument – February 29, 1972 in Washington v. General Motors Corporation

    Audio Transcription for Oral Argument – February 28, 1972 in Washington v. General Motors Corporation

    Warren E. Burger:

    I think the last counsel in Number 45, Original, State of Washington and General Motors that these two represent themselves and see whether you would like to commence your argument now or whether you would prefer to begin in the morning.

    You may have — address yourself to that very briefly if you wish.

    Fredric C. Tausend:

    Mr. Chief Justice, my name is Fredric Tausend.

    I am a Special Assistant Attorney General for the State of Washington.

    I could introduce the argument now if that’s satisfactory to Mr. Cutler.

    Warren E. Burger:

    Primarily you would —

    Fredric C. Tausend:

    I would divide my argument in half but I’d be willing to do it.

    Warren E. Burger:

    Primarily your problem, so we’ll let you go ahead.

    We will wait for Mr. Cutler to dissemble here.

    Mr. Tausend you may proceed.

    Fredric C. Tausend:

    Mr. Chief Justice and may it please the Court.

    This is an antitrust action brought by 18 States against the Four Major American Automobile Manufacturers and their trade association, charging the defendants with violating Section 1 of the Sherman Act.

    We are here on the motion of the Plaintiff States to file this action as an original action.

    And we are joined in this request by 18 additional States in the City of New York as amici curiae who have indicated to this Court that they would intervene in this action for a total of 36 States in the City of New York if this Court exercises its original jurisdiction.

    Now, the complaint which we proposed to file charges the defendants with a Section 1 Sherman Act conspiracy lasting over 15 years from 1953 until at least 1968.

    The purpose in effect of which was to delay, prevent and retard the development, the manufacture and finally the installation of pollution control equipment for their automobiles.

    I would like if I could, to flash out the allegations of this compliant with reference to some of the documents which have been obtained and reviewed by us in connection with a related multi-district proceeding in Los Angeles to which I will refer shortly.

    Mainly for the purpose of assuring this Court that this is not a case where we have serious allegations of illegal activity but no evidence to support them.

    But a protective order entered in MDL 31 prevents me from giving such examples.

    Suffice it to say, that the charges on which our compliant is based are identical to a civil action filed by the Justice Department in January 1969, settled in October 1969 by consent decreed.

    The injunctive relief obtained by the Government in that decree is entirely preventative.

    It seeks to prevent the alleged conspiracy from continuing and so it ended the alleged conspiracy and to quote former Attorney General Mitchell as we do as page 18 of our opening brief, “It encouraged immediate action by the automobile companies to solve the problem.

    However, it did not attempt to repair the damage which continues to this day and in the future to be inflicted by the cars manufactured as a result of the alleged conspiracy.”

    And this is where the 36 States and the other Governmental bodies have taken up to cajoles with this action.

    This act —

    Potter Stewart:

    Is the retrofit problem or whatever you call it, retro?

    Fredric C. Tausend:


    Potter Stewart:

    Retrofit, that’s the —

    Fredric C. Tausend:

    Yes, Mr. Justice Stewart

    Potter Stewart:

    That’s basically the — on the merits that’s the remaining problem.

    Fredric C. Tausend:

    The basic relief that we’re seeking, we ask for some other equitable relief but the basic principle thing we’re seeking is a mandatory or reparative injunction which would require the installation on all cars manufactured as a result of the conspiracy and for convenience we talked about pre 1968 cars.

    That might be the first cutoff date with effective pollution control equipment and that is called “retrofit.”

    Yes, Your Honor, it is.

    Warren E. Burger:

    What would be, you know, perhaps this — you’re going to come to this or someone will come to you.

    What will be — what could possibly be the aggregate liability of all the users of these automobiles?

    Fredric C. Tausend:

    The aggregate liability of the users, you mean the people who drive the automobiles?

    Warren E. Burger:


    We aren’t — aren’t we all polluting the air in some way?

    Fredric C. Tausend:

    I suppose we are polluting the air, Your Honor.

    I don’t think the users have violated or charged with violating the antitrust laws and we’re not here on a nuisance count and as the Court, I trust to where in our latest brief, we have stricken Count III and we’ve done it because we want to get the speediest possible remedy.

    The retrofit remedy is only a viable remedy if it can be applied quickly.

    And in Count III, which we put in because we needed it as a backup town, we didn’t know what kind of an antitrust case we have.

    We haven’t seen any documents when we file this.

    Now appears to us to be ballast and we’ve thrown it over board to speed up the case and get to the end of our voyage because, Mr. Chief Justice, if the retrofit remedy and I can’t give you an actual calendar date but I can predict reasonably closely.

    We have asked in the multi-district proceedings and I will probably have to come to those tomorrow for a December 1972 target trial date and Judge Real on those proceedings which are consolidated on 1407 before him and not all before him filed in this Court.

    Judge Real has indicated that as a practical matter he is geared to discovery to December 1972 target trial date on equitable claims, equitable relief only, and if we can get that or reasonably near that then retrofit remedy retains its viability.

    But as the defendants have pointed out in there briefs at every occasion and as we point out in our source of law brief in the conclusion, these pre 1968 cars of which they are now 50 Million approximately in the United States are leaving the road at the rate of seven or eight million cars a year and that rate maybe accelerated.

    Now, they’re leaving the pollution in the air but they’re leaving the road and then say, two years or three years, there will be fewer and fewer of these cars, the air will have been polluted and the res to which the equitable remedy could attach the possibility if this defendants has alleged did violate the antitrust laws, the possibility of making them supply the equitable remedy of which best gets the wrong alleged is reduced and even eliminated and that is why — because in this case we see — its one of those rare cases where the best remedy is the simplest remedy.

    It’s direct, it cleans the air, it doesn’t compensate in money.

    The defendants themselves as we point as — as we point out at page 21 of our choice of law brief have indicated, number one, that effective devices do exist.

    Both Chrysler and Delco have such devices and I’ve talked about them and as we also point out at page 21 of that choice of law brief, Mr. DeLorean, a Vice President of General Motors riding in LOOK Magazine in May of 1970 said, that —

    William O. Douglas:

    What is the color of that brief?

    I don’t seem to have it?

    Fredric C. Tausend:

    Our choice of law brief, Your Honor is gray, the finest memorandum and the quote I have is on page 21, right at the bottom, John DeLorean, Vice President of General Motors, in charge of Chevrolet Division, what magazine? Page 57, August 25, 1970, said, “If every car produced before 1969 had available retrofit devices, our air would be as pure as it was 30 years ago.”

    Now, allowing for some exaggeration, maybe 30% if it could be as pure as it was 20 years ago and if they did violate the antitrust laws as alleged and if we can prove that then it seems to me the remedy most clearly directed to the wrong is available if it can be obtained quickly enough.

    I think before I talk about further the remedy and the reason why we need original jurisdiction, I would meet briefly the Court’s request to talk about the applicable sustentative law and that is really easy because the question is largely moot.

    As I pointed out, Count III has been stricken and I gave you the reasons. Count II is a common law antitrust account.

    And number one, that was included, I think as a very remote hedge against the possibility, the court of equity would as the defendants argue it should adopt an interpretation of the Section 16 of the Clayton Act, that Section 16 Clayton Act, equity court doesn’t have the full powers that a common law equity or federal equity court has.

    In any event, we’re in total agreement with Mr. Cutler on this.

    His brief states that is an independent count based on state common law and we agree.

    Fredric C. Tausend:

    We don’t think the counts are going to be reduced and I really think that that for this case resolves the question of choice of law.

    Now, I would like to come to the reasons why we’re urging this Court to accept original jurisdiction of this case.

    We recognized, although defendants suggests we don’t, the burden that an original action case puts on the Court, we believe that this case fully satisfies the standards laid down by this Court in Wyandotte and in Georgia versus the Pennsylvania Railroad company.

    There simply is no state forum to which this cost could be remitted as was the case with the State Court of Ohio in Wyandotte.

    This is a federal antitrust case and we also believe there is no single Federal Court and I want to emphasize single Federal Court because we believe in the interest of the burden on the judiciary system, in the interest of at least the Plaintiff States because the defendants want a different result that this case should be tried in a single court, the equitable claims of the public body plaintiffs we believe can and should be tried in a single Federal Court.

    Now, the obvious question occurs, why not the Central District of Los Angeles where Judge Real is presiding as a District Judge.

    And I think that the answer is that the defendants won’t let us and if they’re in the position to keep us from that single trial there long enough to make the equitable remedy no longer viable.

    So, we have a consideration of time, a speedy remedy in order to make the equitable relief viable and a consideration of place, a single court.

    You see, in the multi-district proceedings in Los Angeles, only nine States actually filed in Los Angeles, two actions.

    The State of California, the State of Washington and seven states has filed on a consolidated action with us.

    Warren E. Burger:

    I think we’ll resume that in the morning counsel.

    Fredric C. Tausend:

    Thank you Mr. Chief Justice.