State of Mo. v. National Org'n For Women, Inc.

• Decision Date: 16 March 1979
• Docket Number: No. 78 4053 CV C.,78 4053 CV C.
• Citation: 467 F. Supp. 289
• Parties: STATE OF MISSOURI, Plaintiff, v. NATIONAL ORGANIZATION FOR WOMEN, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

467 F. Supp. 289

STATE OF MISSOURI, Plaintiff, v. NATIONAL ORGANIZATION FOR WOMEN, INC., Defendant.

No. 78 4053 CV C.

United States District Court, W. D. Missouri, C. D.

February 21, 1979.

Amended March 16, 1979.

COPYRIGHT MATERIAL OMITTED

John E. Vanderstar, Donna L. Kohansky, Covington & Burling, Washington, D. C., for defendant.

Roger Bern, Walter O. Theiss, Gregory D. Hoffmann, Nanette K. Laughrey, Asst. Attys. Gen., Jefferson City, Mo., for plaintiff.

OPINION AND ORDER

ELMO B. HUNTER, District Judge.

The State of Missouri brings this action for injunctive relief against the National Organization for Women, Inc. (NOW) under § 16 of the Clayton Act, 15 U.S.C. § 26. Missouri alleges that NOW has engaged in a combination and conspiracy in restraint of trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. Missouri also alleges that NOW's conduct violates the Missouri antitrust statute, § 416.031.1, RSMo, and constitutes the tortious intentional infliction of economic harm without legal justification or excuse. This Court has jurisdiction over the federal antitrust claim under 28 U.S.C. § 1337 and pendant jurisdiction over the state law claims.

Missouri is a sovereign state of the United States and brings this action in that capacity and as parens patriae. NOW is a nonprofit membership corporation organized under the laws of the District of Columbia. It has approximately 77,000 members nationwide, half of whom belong to 690 local chapters. These chapters and individual members are organized into a national federation with the stated purpose of bringing women "into full participation in the mainstream of American society."

I. Factual Findings

The factual basis for Missouri's Complaint can be supplied by this single stipulation of fact:

NOW has sought to persuade and urge those organizations that support making equal rights for women a part of the Constitution to refrain from holding conferences, conventions, and meetings in unratified states.

It is necessary, however, to place NOW's activities within the broader series of occurrences leading to the filing of this action and therefore to set out a summary of the substantial record before the Court.

The proposed Equal Rights Amendment to the Constitution (ERA) was passed by both houses of Congress and submitted to the states for ratification on March 23, 1972.¹ The ERA has been ratified by the legislatures of thirty-five states, short of the thirty-eight required for the amendment to become a part of the Constitution.² Ratification of the ERA became a hotly-contested issue in many states, and, as is characteristic of the political system in this country, various individuals and organizations undertook lobbying efforts to influence legislators, both in support and in opposition. Such efforts have included giving testimony before legislative committees, personal contacts with legislators, letter writing campaigns, and solicitation of media attention. Many national membership organizations and associations, including NOW, have engaged in such lobbying.

As early as April of 1975, the National Federation of Business and Professional Women (BPW), a large national women's organization, retained a political consultant and consulting firm to advise the group on strategy for its efforts in support of ratification. The advice received was that a move by BPW, in conjunction with other national organizations, to cancel its national convention, scheduled for a state which had not ratified the ERA (Nevada), might be a powerful tool to influence legislators' votes on ratification. Also in April, 1975, the National Association of Women Deans, Administrators and Counselors adopted a resolution not to convene in unratified states. In May, 1975, the League of Women Voters adopted its resolution to urge the national political parties not to hold conventions in unratified states. Both BPW and the National Education Association took action in July, 1975, and resolved not to hold conventions in unratified states. The American Association of University Women passed its resolution in November, 1975. In September, 1976, the American Political Science Association adopted a similar resolution not to convene in unratified states. There is no evidence that any of these groups were contacted or influenced in any way by NOW. Some groups took this action believing that the convention boycott was an original idea. Others were aware that a convention boycott resolution had been adopted by another group or groups at an earlier time. Some groups made no effort to influence others to adopt boycott resolutions; some took active steps to communicate their decisions and to urge similar action by other groups.

The national NOW organization did not become involved with this movement until 1977. In January of that year, Eleanor Smeal, the current president of NOW, was in Nevada taking part in an effort to secure ratification of the ERA in the Nevada legislature. As a part of that effort, the League of Women Voters and the California state NOW organization sponsored an advertisement in the San Francisco Chronicle, a newspaper read by Nevada legislators, urging California residents to refrain from traveling to Nevada until that state ratified the ERA. From the reactions of the Nevada Governor and legislators to the advertisement, it was determined that the potential of such a boycott as long as a state remained unratified could have an effect on legislators' votes.

The then-president of NOW made telephone calls to members of several national organizations asking if any might be in a position to adopt and publicize a boycott resolution aimed at the state of Nevada in an effort to influence the upcoming vote on the ERA in the Nevada legislature. She discovered that it was difficult to secure immediate decisions due to the requirements of the formal decision-making processes in each group. As a result, before the Nevada legislature voted on the ERA, there was little activity of substance undertaken by NOW that was directed at a convention boycott of Nevada or other unratified states. The evidence shows that NOW officials were then of the impression that the convention boycott was an original idea and were unaware that some organizations had adopted boycott resolutions as much as one and one-half years earlier.

NOW adopted its own convention boycott resolution in February, 1977. At that February meeting, NOW decided to pursue a centralized convention boycott strategy. A committee was appointed to implement the new national strategy, but there is no evidence that much, if anything, was done in that regard during the first six months of 1977. NOW officers did complete studies of the legislative and political situation in each of the fifteen unratified states. Many organizations adopted convention boycott resolutions during the first half of 1977, but there is little evidence that NOW was actively soliciting such actions or coordinating a centralized convention boycott campaign during that period.

Dr. Frances Kolb was appointed to chair NOW's reconstituted Economic Sanctions Committee in July, 1977, after which NOW's role in furthering the convention boycott movement increased significantly. A paid staff person was retained by NOW in August, 1977, to work on the boycott campaign, among other things. Although there is evidence that much of the time of the individuals in question was expended to prepare for NOW's role in the International Women's Year meeting in Houston in November, 1977, NOW's active role in the convention boycott campaign began that summer.

As the parties have stipulated, from that time until the trial of this case in October-November, 1978, 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. The stipulated goal of NOW's economic boycott campaign and the end of all of NOW's activities relevant to this action is the ratification of the Equal Rights Amendment.

There are many facets to NOW's campaign. NOW set up a committee on the national level to centrally coordinate the convention boycott movement. For at least some period of time, NOW retained a full-time staff person to work on the boycott campaign. NOW sent a letter urging the adoption of a convention boycott resolution to hundreds of organizations and arranged for follow-up telephone contacts. NOW arranged for the printing and distribution of a boycott brochure³ which urges individuals to join the boycott campaign by working for a boycott resolution within their own organizations. This brochure incorporated a business reply card with which interested individuals could request further information on the boycott campaign. NOW also arranged for the manufacture of a campaign-style button identifying the wearer as a supporter of the convention boycott of unratified states.

NOW maintains an office in Washington, D. C., in which the mentioned boycott campaign work was done. The office served as a "clearinghouse" for information on the boycott. Individuals and groups were actively solicited to contact the NOW office for information and materials. For a period of time, NOW maintained a "Countdown House," utilizing a nationwide telephone campaign, in order to contact its local chapters concerning boycott activities and other projects. NOW officials and staff put together a "boycott kit" which was made available to individuals on request. In addition, this kit was sent to NOW members across the country who were taking leadership roles in local NOW activities. The kit contained various materials for use by individuals desiring to promote the boycott.⁴ NOW also prepared and distributed material suggesting that local governments be approached and urged to adopt boycott resolutions imposing limits on official travel to unratified states. This material contained tactical suggestions, including a...