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June 4, 1984


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


Before the Court is plaintiff Continental Bank's motion to dismiss defendant John R. Stanley's counterclaims. Defendant Stanley has pleaded eight counterclaims: Counts I-III allege violations of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1; Count IV alleges violations of the Bank Holding Company Act Amendments of 1970 (BHCA), 12 U.S.C.A. § 1971 et seq.; Count V alleges unlawful duress; Count VI alleges breach of fiduciary duty; Count VII alleges tortious interference with GHR's business; and Count VIII alleges unjust enrichment.

Continental bases its motion to dismiss these counterclaims on John R. Stanley's lack of standing. Continental states that the counterclaims allege damage to companies of which Stanley is a stockholder, not to Stanley. For the reasons stated herein, Continental's motion is granted in part and denied in part.


This suit has been brought by Continental individually and as loan agent for thirteen other banks against John R. Stanley to recover on Stanley's personal guaranty in connection with loans made by Continental and the other banks to four companies controlled by Stanley.

The complaint alleges that Continental and the other banks loaned the four companies, GHR Energy Corporation, GHR Pipeline Corporation, GHR Transmission Corporation, and Southern Petroleum Trading Company, Ltd., the principal amount of $750 million, and that pursuant to that loan agreement Stanley guaranteed the payment of GHR's obligations. The complaint further alleges that GHR is in default in its repayment of the loans in the amount of approximately $413 million. Accordingly, judgment is sought against Stanley on his guaranty for the unpaid principal and interest.

Stanley has, in his answer, interposed various affirmative defenses and asserted the aforementioned counterclaims. John R. Stanley is, directly or indirectly, the controlling shareholder of the companies to which Continental made the loans.


In determining whether Stanley can maintain the antitrust counterclaims (Counts I-III), the Court must find that Stanley suffered an antitrust injury and that he is the party who can most efficiently vindicate the purposes of the antitrust laws. In re Industrial Gas Antitrust Litigation, 681 F.2d 514, 516-17 (7th Cir. 1982).

Stanley argues that the injuries suffered by him are the result of his direct contractual relationship with the bank, and that the injuries, although arising from the same facts and circumstances, are separate and distinct from the injuries suffered by the GHR Companies. However, a close reading of these Counts of the counterclaim indicates that the harm and actions alleged were directed not at Stanley, but at the GHR Companies.

This Court does not decide now whether Stanley was the victim of an antitrust injury or not, for it is apparent that Stanley is not the "appropriate antitrust enforcer." "[A] determination of antitrust standing should focus not only on whether there has been an `antitrust injury,' but also whether the particular plaintiff is the appropriate antitrust enforcer. . . An appropriate balance is achieved by granting standing only to those who, as consumers or competitors, suffer immediate injuries with respect to their business or property, while excluding persons whose injuries were more indirectly caused by the antitrust conduct." In re Industrial Gas Antitrust Litigation, 681 F.2d at 520.

The injuries Stanley alleges are directly to GHR and indirectly to himself. The "separate and distinct" injuries that Stanley alleges are the result of antitrust injuries to GHR, and only incidentally effect Stanley as a stockholder and guarantor. If there is an antitrust injury, it is to GHR, not to Stanley, and GHR is the "appropriate antitrust enforcer."*fn1

The cases cited by Stanley that allow a stockholder standing to sue on antitrust violations are distinguishable from the instant case. In general, those cases allow standing for direct injuries to the stockholder, not for injuries derived from injuries to the corporation. Kolb v. Chrysler Corp., 357 F. Supp. 504 (E.D.Wisc. 1973), W. Clay Jackson Enterprises v. Greyhound Leasing, 463 F. Supp. 666 (D.P.R. 1979). Others grant standing under the Automobile Dealers' Day in Court Act, which is inapposite as it contains a unique broad definition of "automobile dealer" for the purposes of standing. DeValk Lincoln Mercury, Inc. v. Ford Motor Company, 550 F. Supp. 1199 (N.D.Ill. 1982).

The U.S. Supreme Court recently affirmed the proposition that in order to have standing as a plaintiff in antitrust proceedings, the party must have suffered direct injuries as the result of antitrust violations and be the proper plaintiff to bring the action. Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). In the instant case Stanley alleges antitrust violations directed at GHR, and asserts harm to himself only as a result of activities by Continental aimed at GHR. As Stanley alleges injuries which were the indirect result of antitrust violations, and acknowledges that any antitrust activities that may have occurred were ...

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