Union Carbide and Carbon Corporation v. Nisley, 6319-6322.
| Decision Date | 26 April 1962 |
| Docket Number | No. 6319-6322.,6319-6322. |
| Parties | UNION CARBIDE AND CARBON CORPORATION and Vanadium Corporation of America, Appellants, v. Frank NISLEY, Jr., et al., Appellees. UNION CARBIDE AND CARBON CORPORATION and Vanadium Corporation of America, Appellants, v. John F. WADE et al., Appellees. UNION CARBIDE AND CARBON CORPORATION and Vanadium Corporation of America, Appellants, v. Howard BALSLEY et al., Appellees. UNION CARBIDE AND CARBON CORPORATION and Vanadium Corporation of America, Appellants, v. UNNAMED PLAINTIFFS, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Richard J. Archer, San Francisco, Cal., and Dennis McCarthy, Salt Lake City, Utah (Herbert W. Clark, Howard M. Downs, Douglas C. White, Richard H. Floum and Paul E. Homrighausen, San Francisco, Cal., were with them on brief), for appellant Union Carbide Corp.
J. G. Holland, Denver, Colo. (Robert P. Davison, Denver, Colo., William C. McClearn, Denver, Colo., Edward R. Neaher, New York City, Calvin A. Behle and Keith E. Taylor, Salt Lake City, Utah, were with him on the brief), for appellant Vanadium Corp. of America.
Joseph L. Alioto, San Francisco, Cal. (Maxwell Keith, Richard Saveri, Guido Saveri, G. Joseph Bertain, Jr., and Walter F. Calcagno, San Francisco, Cal., were with him on brief), for appellees.
Before MURRAH, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
These consolidated appeals are from separate judgments in private Section 4 antitrust suits against defendant-appellants. 38 Stat. 731, 15 U.S.C.A. ? 15. Each of the suits is based upon the same alleged 20-year combination and conspiracy under Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C.A. ?? 1, 2, to monopolize, attempt to monopolize and restrain interstate trade in the source, production and processing of vanadium-bearing ore on the Colorado Plateau, and the interstate marketing of its metallurgical products. Each of the plaintiffs claims damages for injury to his business and property by reason of the predatory effects of the alleged master conspiracy. The suits largely involve common issues of facts and law, and were consolidated for trial.
The complaint in the so-called Balsley case (No. 6321) states the basic combination, conspiracy and operative facts common to all of the cases. It is cast in two counts. Count one is by thirty-six named independent ore miners on the Colorado Plateau who mined and sold vanadium-bearing ore to defendants during all or a part of the alleged combination and conspiracy, and who complain of injury by reason of alleged monopolistic and conspiratorial price-fixing practices of the defendants. The second count of this complaint is a class action under 23(a) (3) F.R.Civ.P., 28 U.S.C., in which the plaintiff-miners in count one seek to enforce the several rights of the same class of unnamed independent miners on the Colorado Plateau.
On the latter count, the factual question of the existence of the conspiracy and its total impact on the class was submitted to the jury, leaving to the court the function of assessing the amount of damages to any member of the class after notice and hearing. The defendants have perfected an interlocutory appeal under Section 1292, 28 U.S.C., 72 Stat. 348, from an order on a jury verdict in favor of the class, in which they challenge the propriety of the class action, and that matter will be hereinafter fully considered.
In Number 6319, Nisley and Wilson are independent millmen on the Plateau, who claim to have been injured in their business and property by reason of the impact of the combination and conspiracy. Wade and his co-plaintiffs in Number 6320 were millmen, who also operated mining claims on the Plateau. They claim to have been injuriously excluded from competition with the defendants by force of the alleged monopoly and conspiracy.
To each of the separate claims, appellants have pleaded the 4-year statute of limitations as a bar to recovery. ? 4B Act of July 7, 1955, 69 Stat. 283; 15 U.S.C.A. ? 15b. The applicability of the statute of limitations involves a complexity of statutory suspension, tolling and tacking, relied upon by plaintiffs to avoid the statutory bar and to sustain recovery for all matters complained of from 1938 to the filing of the suits in 1958. Since the incidence of the statute of limitation goes to the heart of the right of recovery, we shall first consider the measure of its applicability.
The combination and conspiracy is alleged to have been formed in 1933, and recovery thereon was allowed from 1938 to the date of the filing of the suits. When the suits were filed, Section 4 of the Clayton Act had been amended in 1955 (69 Stat. 283, ? 4B, 15 U.S.C.A. ? 15b), to provide a uniform 4-year statute of limitations to actions arising thereunder, and providing also that no cause of action barred under existing law on the effective date of the Act (January 7, 1956) shall be revived. And, Section 5 of the Clayton Act, as amended in 1955, provided in presently material part that:
"(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter; Provided, however, that whenever the running of the statute of limitations in respect of a cause of action arising under Section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued."
From this it follows that the right to recover damages accruing by reason of the alleged conspiracy prior to June 1954 is barred, unless the running of the statute is suspended by the pendency of a criminal information against these defendants filed in September 1948, and terminated on June 2, 1957. These suits were filed within one year after termination of the information, and the appellees rely upon its pendency and a prior indictment against the same defendants filed in June 1946, and dismissed on the date of the filing of the criminal information in September 1948. To further toll the statute beyond the pendency of the indictment and subsequent information, appellees invoke the so-called 1942 war-time tolling statutes, 56 Stat. 781, as amended, 59 Stat. 306, 15 U.S.C.A. ? 16 note under which all statutes of limitation applicable to antitrust violations were suspended until June 30, 1946.
If, as the trial court held, these asserted private rights of action can be said to be "based in whole or in part on any matter complained of" in the criminal information together with the indictment, and the war-time tolling statutes are applicable, they cumulatively operate to toll or suspend the running of the 4-year statute to October 10, 1942, and thus allow recovery for the actionable period laid in the suits, i. e., 1938 to 1958. But, appellants earnestly contend that their plea in bar should have been sustained because these suits are not based in whole or in part upon the information or the indictment, and in any event, the indictment cannot be tacked to the information so as to suspend the bar beyond the pendency of the information.
In the first place, they say that under prevailing law, in order for the private suits to be based in whole or in part on the information, the matter complained of therein must be "virtually identical" to the matter complained of in the information, i. e., the private litigants must rely not only upon the same general conspiracy, but upon the same means to achieve the same objectives of the same conspiracy. In sum, the appellants take the position that the words "private right of action" in Section 5(b) mean an overt act committed in furtherance of a general conspiracy; and the words "based in whole or in part on any matter complained of" mean in whole or in part of any such overt act complained of in a government proceedings; and that the criminal information is therefore ineffectual to suspend the running of the statute of limitations against any overt act or right of action asserted in the private suits which are not identifiable in the information. Making application of this admittedly strict construction of the statute, and considering each overt act as a "private right of action," they point out that the asserted rights of action and the information do not coincide either with respect to time or subject matter.
It is apparently true, as appellants suggest, that alleged overt acts in furtherance of the conspiracy prior to December 13, 1941, were not chargeable in the indictment or information. And, it is true of course that overt acts occurring after June 1, 1946, were not within the indictment filed on that date, or within the information, which did not charge any subsequent overt acts. Nor did the information complain of the activities of the defendants while acting as agent of the government under a contract with a government agency known as the Minerals Reserve Company; nor of a conspiracy to monopolize or restrain trade in the uranium content of the ore, as did the private suits. Neither did it complain of the monopolization or conspiracy to monopolize vanadium ore claims nor of individual monopolization or individual attempts to monopolize.
Antitrust actions of this kind are, to be sure, concerned with overt acts done in furtherance of the injury complained of, and there is good authority for construing the statutory words "based in whole or in part on any...
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