1276 470 FEDERAL REPORTER, 2d SERIES The STATE OF ILLINOIS, etc., et al. V. BRISTOL-MYERS COMPANY et al., A. B. Finkel d/b/a Markus Pharmacy, et al., Appellants. No. 71-1461. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 30, 1972. Decided Dec. 7, 1972. Treble damage action was brought against drug manufacturer by State of Illinois. The United States District Court for the District of Columbia, John J. Sirica, Chief Judge, entered order denying applications for intervention and the applicants appealed. The Court of Appeals held that where Illinois Attorney General brought treble damage action against drug manufacturer on behalf of all political subdivisions organized under state authority and on behalf of representatives of class of private purchasers and consumers of drug products within state and had standing to do so, private purchaser of drug in Illinois and retail druggist who sold product were not entitled to intervene as a matter of right, and there was no abuse of discretion in denying applications for permissive intervention since druggist had adequate remedy in another nationwide class action and individual purchaser had a relatively minor interest. Affirmed. 1. Federal Civil Procedure 181 Once properly in federal court on its own behalf and that of its political subdivisions, State of Illinois, bringing treble damage action against drug manufacturer through its Attorney General, like any other party could seek to proceed under class action rule as class representative of drug purchasers similarly situated including private purchasers of drugs, and certification of state in latter capacity depended on whether it satis fied requirements of federal rule irre spective of state law considerations Clayton Act, § 4, 15 U.S.C.A. § 15; Sherman Anti-Trust Act, §§ 1, 2, 15 U. S.C.A. §§ 1, 2; S.H.A.Ill. ch. 38, § 60-7 8; Fed.Rules Civ.Proc. rules 23, 24, 28 U.S.C.A. 2. Monopolies 28(1.6) State is a "person" which may bring suit for treble damages under the antitrust laws. Clayton Act, § 4, 15 U S.C.A. § 15. See publication Words and Phrases for other judicial constructions and definitions. 5. Federal Civil Procedure 331 Where Illinois Attorney General brought treble damage action against drug manufacturer on behalf of all political subdivisions organized under state authority and on behalf of representatives of class of private purchasers and consumers of drug products within state and had standing to do so, private drug purchaser in Illinois and retail druggist who sold product were not entitled to intervene as a matter of right and there was no abuse of discretion in denying applications for permissive intervention since druggist had adequate remedy in another nationwide class action and individual purchaser had relatively minor interest. Clayton Act, § 4, 15 U.S.C.A. § 15; Sherman Anti-Trust Act, §§ 1, 2 15 U.S.C.A. §§ 1, 2; S.H.A.Ill. ch. 38. § 60-7.8; Fed. Rules Civ.Proc. rules 23, 24, 28 U.S.C.A. STATE OF ILLINOIS v. BRISTOL-MYERS COMPANY Mr. Eugene T. Sherman, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Mr. George P: Lamb, Jr., Washington, D. C., was on the brief, for appellants. 1277 under Rule 23 on behalf of all consumer-purchasers of the drugs in the United States. Appellant Finkel, the retail druggist who sold the product to Kayne, sought to represent the class of all retailer-purchasers similarly situated. Mr. Lee A. Freeman, Jr., Chicago, Ill., Their central claim is that the Illinois for appellee, the State of Illinois. " Before MCGOWAN and MacKINNON, Circuit Judges, and WYZANSKI,* Senior United States District Judge for the District of Massachusetts. PER CURIAM: The State of Illinois filed a complaint in federal court 1 under Section 4 of the Clayton Act, 15 U.S.C.. § 15, seeking treble damages for alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. The State contended inter alia that defendants conspired to restrain trade in the sale of the drug ampicillin and other semisynthetic penicillins. In part the State purported to be proceeding on behalf of all political subdivisions organized under state authority, pursuant to Illinois Revised Statutes Ch. 38, § 60-7.8 (1969). It also declared itself to be acting as the representative of the class of private purchasers and consumers of the drug products within the State, pursuant to Rule 23, Fed.R.Civ.P. Appellants applied for leave to intervene under Rule 24, Fed.R.Civ.P., and now appeal from the District Court's denial of that application. We affirm the order of the District Court. Appellant Kayne, a purchaser of ampicillin by prescription in Illinois, sought to intervene in a representative capacity Sitting by designation pursuant to Title 28 U.S.Code Section 294 (d). 1. Originally filed in the Northern District of Illinois, the action was transferred here under 28 U.S.C. § 1407(a). 2. The provision cited is part of the Illinois Antitrust Act, and provides in pertinent part: The Attorney General inay bring an ac tion on behalf of this State, counties, municipalities, townships and other political subdivisions organized under the Attorney General is without legal power or authority to represent private persons, whether they be individual consumers, druggists, private hospitals or the like. They therefore demand intervention as a matter of right under Rule 24(a), since their interest in the State's action is not "adequately represented by existing parties." Alternatively, they seek permissive intervention under Rule 24(b) which is within the discretion of the trial judge to grant. [1, 2] Appellants concede that the Illinois Attorney General may properly proceed in the federal court on behalf of the governmental entities set forth in the Illinois Antitrust Act, supra note 2. Since, however-in their view-there is no legislative grant of authority to the Attorney General to proceed in any other representative capacity, they contend he is prevented by the limitations of that Act from representing their interests as private consumers. In this contention they misread both federal and Illinois law. Once properly in federal court on its own behalf and that of its political subdivisions, the State,3 like any other party, may seek to proceed under Rule 23 as the class representative of drug purchasers similarly situated, including private purchasers like appellants. The certification of the State in the latter capacity depends upon wheth authority of this State in Federal Court to recover damages provided for under any comparable provision of Federal law. 3. The Illinois Antitrust Act authorizes "an action on behalf of this State in Federal Court," and the State is a "person" which may bring suit under Section 4 of the Clayton Act. Hawaii v. Standard Oil Co., 405 U.S. 251, 261, 92 S.Ct. SS5, 31 L.Ed.2d 184 (1972). 1278 470 FEDERAL REPORTER, 2d SERIES er it satisfies the requirements of the federal Rule, irrespective of state law considerations. Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391, 402 (S.D.Iowa 1968). [3, 4] Even were Illinois law to be considered, it appears clear that there exist no such restrictions on the Attorney General's power as appellants assert. The State Supreme Court has repeatedly held that the Attorney General has common-law powers and duties wholly apart from those granted by statute, see e. g., People ex rel. Barrett v. Finnegan, 378 Ill. 387, 38 N.E.2d 715 (1941). The new Illinois constitution, effective July 1, 1971, states that the Attorney General "shall have the dutes and powers that may be prescribed by law," Ill. Const. Art. 5, § 15, S.H.A. In considering identical language in an earlier constitution, the Illinois Supreme Court held that this language of grant was not restricted to statutory law. Hunt v. Chicago House & Dummy Ry. Co., 121 Ill. 638, 13 N.E. 176, 181 (1887). Indeed, the Attorney General is required by statute "[T]o institute and prosecute all actions in favor of the state, which may be necessary in the execution of the duties of any state officer." Ill.Rev. Stat. Ch. 14, § 4 (1969). The State's interests comprehend those of its citizens. It cannot be asserted that the Attorney General, as the chief legal officer of the State, does not have the common-law duty to protect the public and private purse as a matter of general welfare. He does, therefore, have legal 4. Although not challenged in this appeal, we note that the District Judge did so certify the State of Illinois approximately one month after denying appellants' application to intervene. His action, consistent with the discretion at the pretrial stage accorded the trial judge under Rule 23 and the liberal rather than restrictive interpretation to be given its terms, follows other recent certifications of States as class representatives for private consumers in federal antitrust actions, West Virginia v. Chas. Pfizer & Co., Inc., 440 F.2d 1079, 1089-1091 (2d Cir.), cert. denied, [Cofloc Drugs, Inc. v. Chas. Pfizer & Co.] authority to sue for the State to recover damages wrought by alleged antitrust violations outside the assertedly restrictive terms of the Illinois Antitrust Act [5] Assuming without deciding that appellants fulfill all other requirements of Rule 24(a), we find they are not enti tled to intervene as a matter of right since their interests are "adequately rep resented" by the State. Appellants characterize their intervening petitions as presenting claims identical to those of the State with respect to the violations asserted; the State has standing to represent private consumers; and the effectiveness of the Attorney General to press the claims of absent class members is not challenged and in any event appears established. Illinois v. Harper & Row Publishers, Inc., 55 F.R.D. 221, 225-226 (N.D. Ill.1972); In Re Antibiotic Antitrust Actions, 333 F.Supp. 278, 280-281 (S.D.N.Y.1971). The State suggests the possibility that retail. druggists may indeed profit from the inflated price level by passing on the violative overcharge while maintaining sales undiminished in the assertedly inelastic market of prescription drugs. To the extent this would require consideration of competing claims by consumers and retailers for damages awarded, it may result in inadequate representation of the latter's interest. Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 703 (1967). We leave open the question whether mandatory intervention at that possible stage of the case would be appropriate. 404 U.S. 871, 92 S.Ct. S1, 30 L.Ed.2d 115 (1971); In re Antibiotic Antitrust Ac tions, 333 F.Supp. 278, 284 (S.D.N.Y, 1971); Indiana v. Chas. Pfizer & Co., Inc., 51 F.R.D. 493, 494 (S.D.N.Y. 1970); and the recent Supreme Court suggestion of the appropriateness of such certifications, Hawaii v. Standard Oil Co.. 405 U.S. 251, 266, 92 S.Ct. 883, 31 LE 184 (1972). Cf. In re Motor Vehicle Air Pollution Control Equipment, 52 F.R.D. 398, 404-405 (C.D.Cal.1970); Philadelphia Housing Authority v. American R diator & Standard Sanitary Corp., 309 F. Supp. 1057, 1062-1063 (E.D.Pa. 1969). STATE OF ILLINOIS v. BRISTOL-MYERS COMPANY With respect to permissive interven tion under Rule 24(b), we note that pending before the District Judge are nearly fifty cases transferred to him for coordinated or consolidated pretrial proceedings. We cannot say that he abused his discretion in denying appellants' application in this regard. Appellant Finkel has adequate remedy in a nationwide wholesaler-retailer class action certified by the District Court in the same order that certified the Illinois class action at issue, supra note 4. In the opinion accompanying that order, appellant 1279 Kayne's own national class action was disallowed in view of the "relatively minor interest" Kayne had in the form of "an alleged overcharge on a $12.00 purchase of ampicillin." These considerations, as well as the potential for delay facing the court in this complex litigation, Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., 51 F. Supp. 972 (D.Mass. 1943) (Wyzanski, J.), clearly support the decision of the District Judge in denying leave to inter vene. Affirmed. 94, 142 Court Decisions Boshes v. General Motors Corp. [74,483] Roger Boshes, et al v. General Motors Corp. 72 5-14-73 U. S. District Court, Northern District of Illinois, Eastern Division. No. 68 C 1454. Filed May 3, 1973. Sherman Act Private Suits Proving Injury-Passing-on-Automobile Prices-Ultimate Consumer's Standing to Sue.-Consumers who did not allege any direct purchases of automobiles from the manufacturer had standing to sue for alleged overcharges that resulted from the manufacturer's alleged monopolization and price fixing. Hanover Shoe did not create a general rule of privity for standing to sue in private antitrust actions. Nowhere in the U. S. Supreme Court's opinion is it stated that Hanover Shoe had standing to sue because it was in privity with United Shoe or that privity is a requirement of standing. In fact, the opinion does not discuss the question of standing. Given the language of Sec. 4 of the Clayton Act and the body of authority which has permitted suits by those not in privity with the alleged antitrust violator, it would have stretched Hanover Shoe beyond all recognition to have held that its rejection of the passing-on defense somehow returned Sec. 4 of the Clayton Act to the "days when 'privity' was king." See ¶ 9300. Private Suits-Proving Injury-Passing-on-Possibility of Multiple Liability.-Using the passing-on doctrine to deny standing to sue to a substantial number of potentially injured indirect automobile purchasers merely because of the possibility that the manufacturer might suffer multiple liability from suits by both its dealers and ultimate consumers was entirely too drastic a measure to take. Not only did such an argument present merely a hypothetical objection, under the facts of the case, in view of the statute of limitations and the doctrine of collateral estoppel, it was unlikely that such multiple liability would ever obtain. More importantly, however, were the procedural resources available to both the court and the parties that would be sufficient to avoid such an inequitable result. See [9300. Private Suits Injury to Business or Property-Ultimate Consumer's Standing to Sue -Products Purchased by Consumers in the Same Form as When Sold by the Manufacturer. Retail consumers of automobiles, a product marketed in the same form that it was in when sold by the manufacturer, were not too remote to have standing to sue for alleged overcharges that resulted from the manufacturer's alleged monopolization and price fixing. Since the product reached the ultimate consumer in the same form, and not merely as a small component or derivative of something else, proof of damages in each individual case would not be an insurmountable task. See ¶ 9026. Private Suits-Class Actions-Retail Automobile Purchasers-Unmanageability of Class-Size-Proof of Individual Injury and Damages.-A proposed class to consist of all purchasers of General Motors automobiles from 1965 until certification of the classsomewhere between 30 and 40 million car buyers-was rejected on grounds of unmanageability. Although size, in and of itself, is not generally enough to make a class unmanageable, these numbers were nothing less than staggering. It would have placed an impossible burden upon any court to provide adequate notice to a class of this size and to attempt to classify the transactional material required to identify the particular interest of millions of purchasers over this span of years. The mere prospect of these clerical and administrative problems was enough to justify a determination of unmanageability. Furthermore, the complexities of individual proof of damages were overwhelming. See [9032. For plaintiffs: A. Bradley Eben, Milton K. Joseph, Charles Liebman, and Raymond I. Suekoff, Chicago, Ill. For defendant: Hammond E. Chaffetz, Joseph DuCoeur, and Allen I. Becker, of Kirkland and Ellis, Chicago, Ill., and Ross L. Malone and Robert A. Nitschke, Detroit, Mich. Memorandum Opinion DECKER, D. J.: Plaintiffs, Roger Boshes, Esther K. Roerig, Curtis Collum, Frank Jackson and James Taylor, filed this private antitrust action on behalf of themselves and "all those similarly situated" against General Motors Corporation ("GM"), described 174,483 in the complaint as the "colossus of the giant automobile industry", seeking treble damages for alleged violations of the federal antitrust laws, including combining and conspiring to monopolize and fix prices on the passenger automobile line of commerce in the United States market. See, 15 U. S. C. 1973, Commerce Clearing House, Inc. |