State of Mo. v. National Organization for Women, Inc.

Decision Date28 March 1980
Docket NumberNo. 79-1379,79-1379
Parties1980-1 Trade Cases 63,260 STATE OF MISSOURI, Appellant, v. NATIONAL ORGANIZATION FOR WOMEN, INC., Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Roger Bern, Asst. Atty. Gen., Jefferson City, Mo., for appellant; John Ashcroft, Atty. Gen., Walter O. Theiss, Gregory D. Hoffmann and Nanette Laughrey, Asst. Attys. Gen., Jefferson City, Mo., on brief.

John E. Vanderstar, Covington & Burling, Washington, D. C., for appellee; David J. Cynamon, Clare Dalton and Donna L. Kohansky, Washington, D. C., Betty K. Wilson, Welliver, Atkinson & Eng, Columbia, Mo. and Phyllis Segal, Legal Director, NOW Legal Defense & Ed. Fund, New York City, on brief.

Bruce V. Bordelon, Ruth Bader Ginsburg, Columbia University School of Law, William J. Hibsher and Jo-Ann H. Whitehorn, New York City, on brief of amicus curiae, Special Committee on Sex and Law.

Nathan Z. Dershowitz and Joseph B. Robison, American Jewish Congress, New York City, Marilyn Berner, Judith E. Diamond, Carolynn N. Fischel, Boston, Mass., Daniel J. Landau, Concord, Mass., Mark Michelson and Alexandra Moses, Boston, Mass., on brief of amicus curiae, American Jewish Congress.

Ellen Broadman and Alan Mark Silbergeld, Washington, D. C., on brief of amicus curiae, Consumers Union.

Dian D. Ogilvie and Vicki E. Land and Marjorie S. Steinberg, Los Angeles, Cal., on brief of amicus curiae, California Women Lawyers, et al.

Philip Elman, Toni G. Allen and Nancy H. Hendry, Wald, Harkrader & Ross, Washington, D. C., David R. Morris, Kansas City, Mo., Diana A. Steele, American Civil Liberties Union, and Women's Equity Action League, New York City, on brief of amicus curiae, American Civil Liberties Union, et al.

Harold Baer, Jr., President, New York County Lawyers' Ass'n, New York City and Margaret H. McDowell, Chairperson, Rochelle M. Corson, Susan B. Lindenauer and Joan Offner, Special Committee on Women's Rights, New York City, on brief of amicus curiae, N. Y. County Lawyers Ass'n.

Before GIBSON, Chief Judge, * STEPHENSON and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

This case poses serious questions concerning the First Amendment's right of petition and the scope of the antitrust laws. The primary question with which we must deal is the applicability of the Sherman Act to a politically motivated but economically tooled boycott participated in and organized by noncompetitors of those who suffered as a result of the boycott.

Essentially, the National Organization for Women, Inc., (NOW) organized a convention boycott against all states that had not ratified the proposed Equal Rights Amendment (ERA). 1 The impact was such that the Missouri motels and restaurants catering to the convention trade, and the Missouri economy as a whole, were suffering revenue losses. Missouri asked for injunctive relief against NOW's activities under section 16 of the Clayton Act, 15 U.S.C. § 26, which the district court 2 denied. The court, in a well-reasoned opinion, found, primarily on the basis that NOW's activities were political and thus not within the scope of the Sherman Act, that NOW had not violated section 1 of the Sherman Act, 15 U.S.C. § 1. Missouri v. National Organization for Women, Inc., 467 F.Supp. 289 (W.D.Mo.1979).

Because we hold that it was not the intent of Congress that the Sherman Act cover such activities, we affirm the district court.

I. Background

The district court opinion thoroughly sets out the factual circumstances of this case. 3 A skeletal summary of the facts most relevant (borrowing generously from the district court's language) is as follows:

(1) "NOW actively engaged in an 'economic boycott campaign' that has been a significant part of and shared common goals with a larger convention boycott movement directed at unratified states," id. at 293;

(2) The convention boycott takes place in what is essentially a political context;

(3) The goal and sole purpose of NOW's economic boycott campaign is the ratification of the ERA;

(4) The motivation of NOW can be viewed from two points, both aimed directly at the legislative process:

(a) a desire to make a symbolic gesture; and

(b) a desire to attract attention and bring public visibility to the issue of ratification (5) NOW also intended that the adverse economic impact of the boycott on those who would otherwise profit from conventions in Missouri would cause those persons to influence their legislators to support ERA ratification;

(6) The boycott and related activities were not intended as punitive for Missouri's past failure to ratify; and

(7) NOW was not motivated by any type of anticompetitive purpose;

(8) The participants are not in a competitive relationship with Missouri which has suffered as a result of the boycott.

The district court concluded that:

(9) The boycott is noncommercial in that its participants are not business interests and its purpose is not increased profits;

(10) The boycott is "non-economic" as it was not undertaken to advance the economic self-interests of the participants;

(11) Assuming arguendo that the actions taken by NOW fall within the purview of the Sherman Act,

(a) NOW entered into a combination to implement a boycott of unratified states; and

(b) "the invitation to act, the presence of a strong motive for concerted action, and the knowledge that others were taking similar action are sufficient to find conspiracy under the Sherman Act." Id. at 296.

Standing for Missouri to bring a cause of action under 15 U.S.C. § 26 was based on the fact that:

(12) "(T)he businesses of Missouri's convention industry have suffered economic injury as a result of the boycott and are threatened with additional injury in the future," id. at 300;

(13) "The adverse effect of the injury extends to all parts of the economy of the state," id.;

(14) NOW's target is the state legislature, the supreme policy-making body of the state.

The court concluded:

(15) Missouri has standing as parens patriae as this is a case in which the state is seeking to protect the public interest.

The court cautioned, in connection with its determination of standing parens patriae :

(16) It must be noted that this conclusion is the result of a consideration of the economic and policy factors in this case. This opinion is not to be read as a general approval of parens patriae standing as a matter of law in any case in which the state adduces expert testimony to show generalized economic injury due to linkage or interdependence among the various sectors of the state's economy.

Id. at 301.

Further, in a footnote the court stated:

(17) NOW argues that "(a)cceptance of the state's theory (of economic linkage causing damage to the general economy) would give the state standing to sue in every case where any Missouri business claims injury by reason of any tort, including violations of antitrust laws, or presumably even in ordinary breach of contract cases." * * * The Court shares this concern and notes that the economic interdependence rationale for parens patriae standing cannot be viewed in isolation or accepted as the sole justification for state standing. To do so would carry the doctrine of parens patriae far beyond its proper bounds.

Id. at 301 n. 22.

The court also discussed the case of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The court stated:

(18) "The 'essential dissimilarity' between the convention boycott directed at the legislatures of unratified states and agreements traditionally held violative of § 1 of the Sherman Act is of a greater magnitude in this case than that in Noerr," id. at 304;

(19) "The Supreme Court's reasons for nonapplication of the antitrust laws in Noerr apply with greater weight to this case, which involves political opponents, not commercial competitors; and political objectives, not market place goals. For these reasons, this Court concludes that the Sherman Act does not apply to the actions of NOW in furtherance of its convention boycott campaign." Id. at 305 (footnote omitted).

II. Scope of the Sherman Act
A. Legislative History

This court would be remiss if it did not acknowledge at the outset that the specific question this case presents has not been decided by the Supreme Court or, for that matter, by any other appellate court. 4 There is certainly language used by the Court in some of its cases that provides guidance, however, and the applicability of Noerr to the situation cannot be denied.

The first question relevant to our inquiry is whether the intent of Congress was that the Sherman Act would cover activities such as NOW has undertaken in this case. 5

The 50th and 51st Congresses were primarily concerned with business trusts and the economic power which those trusts possessed. 6 The trust concept involved the shareholders transferring their shares to a single trustee or board of trustees who would exercise complete control over the management of the trust; the shareholders received trust certificates which entitled them to a share of the profits of the trust. Since the trust did not require state sanction, as did corporations, and since the trusts were not subject to the controls and restrictions that states could impose on corporations, they were more unwieldy than corporations. 1 E. Kintner, The Legislative History of the Federal Antitrust Laws and Related Statutes 10 (1978). See generally id. at 8-13. Public hostility towards the trusts in the late 1800's was immense and severe. Id. at 11; Letwin, Congress and the Sherman Antitrust Law: 1887-1890, 23 U.Chi.L.Rev. 221, 235 (1956).

Because a trust typically controlled the integrated levels of a particular industry, it could often control the means or sources of supply and dictate the prices or terms at which commodities would be bought, sold, or transported. Moreover, large concerns often agreed to divide markets...

To continue reading

Request your trial
60 cases
  • City of Long Beach v. Bozek
    • United States
    • United States State Supreme Court (California)
    • June 1, 1982
    ...161 Cal.Rptr. 532 [public comment on the transfer of a business license by an administrative agency]; State of Mo. v. Nat. Organization for Women (1980) 620 F.2d 1301, 1316-1319, cert. den., 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 49 [public activities directed toward influencing state legi......
  • State v. Buhl, SC 19412
    • United States
    • Supreme Court of Connecticut
    • June 14, 2016
    ...concepts"), cert. denied, 526 U.S. 1018, 119 S. Ct. 1252, 143 L. Ed. 2d 349 (1999); Missouri v. National Organization for Women, Inc., 620 F.2d 1301, 1326 (8th Cir.) (first amendment issues "complex"), cert. denied, 449 U.S. 842, 101 S. Ct. 122, 66 L. Ed. 2d 49 (1980); see also In re Melody......
  • Webb v. Fury, 14975
    • United States
    • Supreme Court of West Virginia
    • July 13, 1981
    ...omitted). 580 F.2d at 297. The court remanded the case with directions to dismiss the complaint. In Missouri v. National Organization For Women, 620 F.2d 1301 (8th Cir. 1980), an antitrust action brought by the State of Missouri against NOW for engaging in a campaign which urged a public ec......
  • National Association For Advancement of Colored People v. Claiborne Hardware Company
    • United States
    • United States Supreme Court
    • July 2, 1982
    ...without more, in some circumstances violate a valid state law." Id., at 307, 84 S.Ct., at 1313. In Missouri v. National Organization for Women, Inc., 620 F.2d 1301, 1317 (CA8 1980), cert. denied, 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 49, Judge Stephenson stated that "the right to petition......
  • Request a trial to view additional results
1 firm's commentaries
  • Is Antitrust ESG's Achilles Heel ? House Republicans Think So.
    • United States
    • Mondaq United States
    • December 21, 2022
    ...Senate Judiciary Committee (Sept. 20, 2022). 4. Id. at 2:03:37-2:04:26. 5. See Missouri v. National Organization for Women, Inc., 620 F.2d 1301 (8th Cir. 6. Id. at 1302. 7. Treasurer Ball, Attorney General Cameron Request Information on Role of ESG-Investment Practices in Kentucky's Public ......
14 books & journal articles
  • Missouri. Practice Text
    • United States
    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume II
    • December 9, 2014
    ...it would have applied the per se rule if the preferred provider network had market power. 39 34. Cf. Missouri v. Nat’l Org. for Women, 620 F.2d 1301, 1316 (8th Cir. 1980) (holding that an association’s economic boycott designed to influence the Missouri Legislature was immune from antitrust......
  • Franchise Relationship Management
    • United States
    • ABA Archive Editions Library The franchising law compliance manual : keys to a successful corporate compliance program
    • July 18, 2000
    ...by the constitution itself.” 458 U.S. at 914. The Eighth Circuit held similarly in Missouri v. National Organization for Women, Inc., 620 F.2d 1301 (8th Cir. 1980). In National Organization for Women (NOW), various organizations, including NOW, agreed to boycott the convention facilities of......
  • Pennsylvania. Practice Text
    • United States
    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume III
    • December 9, 2014
    ...18 Pa. D. & C.3d 312, 316-18 (C.P. 1981) (relying on Missouri v. Nat’l Org. for Women, 467 F. Supp. 289 (W.D. Mo. 1979), aff’d , 620 F.2d 1301 (8th Cir. 1980)). 60. Commonwealth v. Pa. Dental Ass’n, Civ. No. 81-1187 (M.D. Pa. 1981). 61. Commonwealth v. Hartford Fire Ins. Co., Civ. No. 88-23......
  • Missouri
    • United States
    • ABA Archive Editions Library State Antitrust Practice and Statutes. Fourth Edition Volume II
    • January 1, 2009
    ...it would have applied the per se rule if the preferred provider network had market power. 39 34. Cf. Missouri v. Nat’l Org. for Women, 620 F.2d 1301, 1316 (8th Cir. 1980) (holding that an association’s economic boycott designed to influence the Missouri Legislature was immune from antitrust......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT