United States District Court, Northern District of Illinois, E.D
November 9, 1972
STATE OF ILLINOIS ET AL., PLAINTIFFS,
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
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
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
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
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
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
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
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
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
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,
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
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.