reached differing conclusions on that issue for varying reasons.
This court concludes, for the reasons hereinafter stated, that
NOMDA does have standing. Accordingly, the motion directed to
NOMDA's capacity to sue is denied.
Defendant contends that plaintiff lacks standing because it
asserts claims on behalf of its members which are not of a sort
personal to itself. It urges that both statutory construction and
constitutional mandate require that plaintiff must have a direct
interest in the claim alleged. United States v. Borden Co.,
347 U.S. 515, 518, 74 S.Ct. 703, 98 L.Ed. 903 (1954); Nassau County
Association of Insurance Agents, Inc. v. Aetna Life & Casualty
Co., 497 F.2d 1151 (2d Cir. 1974).
The constitutional arguments are not persuasive. A case or
controversy is explicitly alleged, since plaintiff claims direct
commercial injury to its members. Clearly, the members have a
sufficient stake in a justiciable controversy so as to permit
them to bring suit directly. The issue is not whether there is an
actual dispute but whether the trade association may, under Sec.
16 and prudential rules for standing, assert the claims of its
members on their behalf. See Warth v. Seldin, 422 U.S. 490,
498-501, 95 S.Ct. 2197, 2204-2206, 45 L.Ed.2d 343 (1975).
In United States v. Borden Co., supra, the Court concluded that
relief secured at the instance of a private litigant, albeit
acting as a "private attorney general", could not foreclose the
federal government from pursuing possibly broader public rights
under Sec. 16 of the Clayton Act. While the Court necessarily
distinguished between private and public injuries, the issue of
who might seek vindication for private injuries was neither
before nor considered by the Court.
In Nassau County Association of Insurance Agents, Inc. v. Aetna
Life Casualty Co., supra, the plaintiff trade association had
sued for damages under Sec. 4 of the Clayton Act, 15 U.S.C. § 15.
Unlike the injunctive provisions of Sec. 16, the damage
provisions of Sec. 4 specifically restrict suit to "[a]ny person
who shall be injured in his business or property by reason of
anything forbidden in the antitrust laws. . . ." No such
restriction appears in Sec. 16. That statutory distinction
between Sec. 4 and Sec. 16 accords with hoary judicial concepts
of representational standing. See e.g. Hawaii v. Standard Oil
Co., 405 U.S. 251, 260-62, 92 S.Ct. 885, 890-891, 31 L.Ed.2d 184
(1972). The equitable class action, for example, is of ancient
and honorable lineage. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct.
115, 85 L.Ed. 22 (1940). Only in recent years has class
representation in damage actions been permissible.
Associational or representational standing is a not unfamiliar
concept. E.g. Hunt v. Washington Apple Advertising Commission,
432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Warth v.
Seldin, supra, 422 U.S. at 515, 95 S.Ct. at 2213. It has been
specifically recognized in Sec. 16 cases, e.g. Associated General
Contractors of North Dakota v. Otter Tail Power Company,
611 F.2d 684 (8th Cir. 1979); Ala. Optometric Ass'n. v. Ala. State Bd. of
Health, 1974-2 Trade Cas. ¶ 75,226 (M.D.Ala. 1974).
Unlike Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31
L.Ed.2d 636 (1972), plaintiff here claims direct commercial
injury to its members; its members would otherwise have standing
to sue in their own right. Plaintiff alleges that it has over
3,900 dealer members and is "dedicated to upholding the highest
ethical and professional standards for all engaged in the
manufacture, sale, distribution, maintenance and service of
office machines." It charges that defendant's alleged refusal to
supply parts and repair and maintenance information to NOMDA
members has precluded them from carrying out existing contracts
and has irreparably harmed their reputation for integrity and
service. Since both relate to the ethical and professional
obligations of members, the interests plaintiff here seeks to
protect are germane to the organization's purpose. Finally, the
complaint attacks an alleged policy of defendant equally
applicable and equally detrimental to all NOMDA members and the
relief sought is equitable. Neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. "[O]ne
injunction is as effective as 100, and, concomitantly, . . 100
injunctions are no more effective than one." Hawaii v. Standard
Oil Co., supra, 405 U.S. at 261, 92 S.Ct. at 891. Accordingly,
the association has standing. Hunt v. Washington Apple
Advertising Commission, supra, 432 U.S. at 343, 97 S.Ct. at 2441.
Class actions may be maintained on behalf of a numerous class
by a single proper representative. That representative has
representational standing by judicial rule. Presumptively he has
such a personal stake in the outcome of the controversy as to
ensure that the dispute sought to be adjudicated will be
presented in an adversary context and in a form historically
viewed as capable of judicial resolution. See Sierra Club v.
Morton, supra, 405 U.S. at 732, 92 S.Ct. at 1364. The class
action is a judicial device by which questions common to numerous
persons can be expeditiously resolved, even though neither the
class representative nor any other member of the class may have
a sufficient stake in the outcome economically to justify his
bringing an action solely to redress his individual injury.
Such a means of presenting the case or controversy may well
have been appropriate here. This court can think of no reason,
however, why requiring some member to come forward as a class
representative would in some way be an appropriate manner for
litigating the common questions presented, while suit by the
trade association would not. Plaintiff is not a representative
solely by judicial sanction. It is an entity to which the members
have voluntarily subscribed in order to promote their common
economic interests. It is a representative of its members even
apart from this lawsuit. As such, it has associational or
representational standing to pursue this action. The motion to
dismiss is denied.
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