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STATE OF ILLINOIS v. ASSOCIATED MILK PRODUCERS

United States District Court, Northern District of Illinois, E.D


November 9, 1972

STATE OF ILLINOIS ET AL., PLAINTIFFS,
v.
ASSOCIATED MILK PRODUCERS, INC., ET AL., DEFENDANT.

The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on defendants' motion to dismiss the complaint.

This is an Antitrust action instituted under Sections 1 and 2 of the Sherman Act (15 U.S.C. § 1 & 2) and Section 16 of the Clayton Act (15 U.S.C. § 26). The plaintiff is the State of Illinois, its departments, divisions, agencies, counties, municipalities, townships, and political subdivisions organized under the authority of the State, which have in the past and will continue in the future in the course of their operations, either for themselves, the public institutions and agencies, or otherwise, to purchase or otherwise pay for "Fluid Milk Product"*fn1 and other processed milk products within the area of the relevant market.*fn2

The plaintiff State, by its Attorney General, also brings this suit as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The plaintiff's claim is allegedly typical of those to be asserted for the class, consisting of all counties, municipalities, townships, and political subdivisions including the various school districts and other institutions within the state supported by public funds, which have in the past and will continue in the future to purchase and pay for Fluid Milk Product and other processed milk products, within the area of the relevant market (Chicago Regional Marketing Area).

The corporate defendants are Associated Milk Producers, Inc., Central Milk Sales Agency, and Associated Reserve Standby Pool — all agricultural cooperatives. The individual defendants are officers or employees of such cooperatives. Defendant Associated Milk Dealers, Inc., is an association of the milk handlers in the Chicago area who have purchased milk from the cooperatives.

The Complaint in essence charges that, by reason of the marketing programs of the cooperatives, the sale of milk in the Chicago Federal milk marketing area has been monopolized. Plaintiff requests only injunctive relief, including the dissolution of the agricultural cooperative defendants.

The defendants in support of their motion to dismiss the Complaint contend:

  1.  The statutory grant of authority to the
    Illinois Attorney General makes it clear that
    he has no authority to maintain this antitrust
    injunction suit in Federal Court.

  2.  The 1969 Amendments to the Illinois Antitrust
    Act were intended to limit the authority of the
    Illinois Attorney General, preventing him from
    maintaining injunctive actions in Federal
    Court.

  3.  The State is not the proper representative in
    Antitrust actions of the political subdivisions
    organized under the authority of the State.

This Court is not persuaded by the defendants' arguments and is of the opinion that the State of Illinois, as represented by its Attorney General is authorized to maintain in Federal Court this Antitrust suit seeking injunctive relief.

I.  The State of Illinois May Maintain This Federal
      Antitrust Action

Since a threat of injury to the State in its proprietary capacity as a result of Antitrust violations by the defendants is alleged, the State of Illinois is the real party in interest.
*fn3 It is well settled that a State may maintain an action in Federal Court for injunctive relief to remedy an Antitrust violation which is injurious to the State's proprietary interest. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945). The Supreme Court of the United States has recently approved class action suits brought by a State as the real party in interest (as Illinois has brought the instant action) as definitely preferable in the Antitrust area to parens patriae actions. Hawaii v. Standard Oil Company of California, 405 U.S. 251, 266, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). The State of Illinois acting in both its proprietary capacity and as the named representative of a class has properly brought this Antitrust action in Federal Court.

II. The Attorney General has Authority to Maintain this Suit
      in Federal Court

At common law, the Attorney General was the only law officer of the Crown and its chief representative in the courts (4 Reeves Hist.Eng., chap. 25, p. 122).*fn4 The Constitution of the State of Illinois provides that the Attorney General shall be the legal officer of the State, and shall have such duties and powers as may be prescribed by law. Art. 5, § 1 of the 1870 Illinois Constitution; Art. 5, § 15 of the 1971 Illinois Constitution, S.H.A.

The Illinois Supreme Court has held that under the 1870 Constitution (on which the 1971 section was based), the Attorney General of Illinois had all the historic common law powers of the English Attorney General and that these duties could not be restricted or eliminated by statute. Department of Mental Health v. Coty, 38 Ill.2d 602, 232 N.E.2d 686 (1967); Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915). See also the Constitutional Commentary S.H.A.Const. Art. 5, § 15 (1971) at p. 358. Since, as was noted above, the remedy sought is readily available to the Plaintiff State, its sole legal representative, the Attorney General, must be authorized to represent the State in this Federal Antitrust case. In fact, one of the very cases cited by defendants in support of their motion, State of Illinois v. Brunswick Corporation, 32 F.R.D. 453 (N.D.Ill. 1963) is evidence of the fact that the State of Illinois has always been able to seek relief in similar Federal Antitrust cases through its Attorney General.*fn5

The 1969 amendments to the Antitrust Act do not preclude an action by the State, through its Attorney General, for injunctive relief in Federal Court. Section 60-7(2) of Chapter 38 Ill. Stats. Ann. (1970) provides in relevant part:

  ". . . . The Attorney General may bring an action
  on behalf of this State, counties, municipalities,
  townships and other political subdivisions organized
  under the authority of this State to recover the damages
  provided for by this subsection, or by any other comparable
  provision of Federal law."

Similarly, Chapter 38 § 60-7.8 (on which the Attorney General predicates his authority in the Complaint) provides:

  "The Attorney General may bring an action on
  behalf of this State, counties, municipalities,
  townships and other political subdivisions
  organized under the authority of this State in
  Federal Court to recover damages provided for
  under any comparable provision of Federal
  law . . ."

Contrary to the defendants' assertion of expressio unius est exclusio alterius, the word damages means not only money damages but also equitable damages.*fn6 The Commentary to the Amended Statute clarifies that the Attorney General may maintain a Federal Antitrust action for injunctive relief on behalf of the State, counties, municipalities, townships and other political subdivisions organized under the authority of the State of Illinois.

The Commentary states:

  "Sections 6 and 7 provide the remedial machinery
  for enforcement of the act. Primary responsibility for
  instigating criminal prosecutions is lodged in the
  Attorney General of Illinois. By amendment in 1969, the
  Attorney is empowered to seek civil penalties (subsection
  7(4)) as well as criminal penalties and broad
  equitable relief."

  38 Ill.Stat.Ann. Commentary to the Illinois
  Antitrust Act, (1970) p. 836.

Thus the 1969 Amendments clearly support the maintenance of the present Federal Antitrust action for injunctive relief by the Attorney General.*fn7 Further, it is doubtful that the Legislature of the State of Illinois could have stripped the Attorney General of any of his common law rights and obligations as chief legal representative of the State. Department of Mental Health v. Coty, supra, People v. Finnegan, 378 Ill. 387, 38 N.E.2d 715 (1941); Fergus v. Russel, supra. See generally, Hawaii v. Standard Oil Company of California, supra.

It is also clear from the above cited amendments to the Illinois Antitrust Statute and recent case law that the State through its Attorney General is the proper and best representative of the political subdivision organized under the authority of the State. In re Ampicillin Antitrust Litigation, 1972 Trade Cases, ¶ 73,966; State of Illinois v. Harper & Row Publishers, Inc., 301 F. Supp. 484 (N.D.Ill. 1969); State of Illinois v. Brunswick, supra. Justice and judicial economy is best served by having the largest governmental unit sue on behalf of all its parts rather than having multiple suits brought by various political subdivisions within the State.

Thus the State represented by its Attorney General may maintain this Federal Antitrust action for injunctive relief in Federal Court.

Accordingly, it is hereby ordered that the Defendants' Motion to Dismiss the Complaint is denied.


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