author: FITZGERALD, Chief Judge.

text:
    ALASKA TEAMSTERS LOCAL 959, Plaintiff, v. ATLANTIC RICHFIELD COMPANY, Arco Alaska, Inc., Sohio Alaska Petroleum Co., and Sohio Petroleum Company, Defendants. CANADIAN CONFERENCE OF TEAMSTERS, Plaintiff, v. ATLANTIC RICHFIELD COMPANY, et al., Defendants. ALASKA TEAMSTERS LOCAL 959, Plaintiff, v. ATLANTIC RICHFIELD COMPANY, et al., Defendants. Archie MacDONALD, et al., Plaintiffs, v. ATLANTIC RICHFIELD COMPANY, et al., Defendants.
    Nos. A83-171 CIV to A83-173 CIV and A84-322 CIV.
    United States District Court, D. Alaska.
    Aug. 22, 1985.

      William A. Brockett, Keker & Brockett, San Francisco, Cal., Jack R. Ormes, Ormes & Associates, Los Angeles, Cal. (argued), William Bittner, Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Anchorage, Alaska, for plaintiffs.
    Ronald L. Olson, Jeffrey I. Weinberger, Munger, Tolies & Richershauser, Los Angeles, Cal. (argued), Stephen C. Hillard, Munger, Tolies & Richershauser, John A. Reeder, Sohio Petroleum Co., Anchorage, Alaska, for defendants.
   MEMORANDUM AND ORDER

FITZGERALD, Chief Judge.

In this group of cases, now before the court on defendants’ motions to dismiss, plaintiffs Teamster unions and individual union members claim that defendants

(“the oil companies”) have violated the antitrust laws as well as the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Defendants use truck transportation companies to ship supplies to their oil production operations in the northern reaches of the State of Alaska (“the North Slope”). Plaintiffs allege that these statutory violations arose out of conspiracy entered into between the oil companies to manipulate and fix the rates for truck transportation to the North Slope and to boycott union-affiliated truck transportation companies. Local 959 complains that its ability to represent its members in collective bargaining has been damaged and that the union has suffered monetary loss as a result of these alleged activities. Plaintiff seeks treble damages provided under the antitrust laws and injunctive relief.

It is axiomatic that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” “This rule applies with no less force to [an antitrust] claim.” Following a review of the allegations brought in case numbers 83-171 and 83-172, I am compelled to conclude, however, that under the principles set forth in the Supreme Court’s recent decision in Associated General Contractors v. Carpenters, plaintiffs can prove no set of facts demonstrating they are entitled to relief under the antitrust laws, and their complaints seeking such relief must, therefore, be dismissed. A discussion setting forth the reasons why I have reached this conclusion follows.

The Supreme Court’s recent benchmark RICO decision in Sedima, S.P.R.L. v. Imrex Co., — U.S. —, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), led this court, like many other lower courts, to stay consideration of plaintiffs’ RICO claims pending the Court’s resolution of this important case. My determination of defendants’ motions to dismiss plaintiffs’ RICO claims, brought in case numbers 83-172, 83-173 and 84-322, will follow in a separate memorandum and order.

I. THE COMPLAINTS

Alaska Teamsters Local 959 is the only plaintiff in case number 83-171. According to its third amended complaint, Local 959 is the collective bargaining agent for over two thousand truckers employed throughout the State of Alaska. Its members include individual owner-operators of truck transportation concerns, as well as truckers, warehousemen, mechanics, office workers and maintenance technicians employed by truck transportation companies which have union shops in Alaska (Paragraph 19).

In paragraphs 22 to 27 of Local 959’s complaint, the union alleges the factual basis for its claim that defendant oil companies violated the antitrust laws. Paragraph 22 alleges generally that “[s]ince on or about January 1, 1978, and continuing to date, defendants, and each of them, have entered into a conspiracy with each other and with other non-defendant co-conspirators ... to restrain trade, to fix prices, and to enter into an illegal group boycott.” The union characterizes such non-defendant co-conspirators to include “non-union truck transportation companies and non-union-member owner-operators.” Id. The targets of these alleged activities were “Local 959, union-affiliated truck transportation companies and union-member owner-operators shipping products, supplies and equipment* to the North Slope.” (Paragraph 23).

According to paragraph 25 of the complaint, the oil companies’ alleged conspiracy had two primary objects. It is said that:

(a) Defendants conspired to attempt to manipulate and fix, and did illegally manipulate and fix the rates set for truck transportation of products, equipment and supplies to the North Slope in furtherance of their anticompetitive scheme to restrain and eliminate competition in the relevant markets; and
(b) Defendants conspired to boycott union-affiliated truck transportation companies, including union-member owner-operators, by refusing to award business to them for the transportation of products, equipment and supplies to the North Slope using truck transportation, in furtherance of their anticompetitive scheme to restrain and eliminate competition in the relevant markets.

Paragraph 27 of Local 959’s complaint sets forth a litany of illegal activities allegedly conducted by the oil companies in pursuing their claimed boycott of union-affiliated truck transportation companies and union-member owner-operators. Among other things, the union claims that:

(a) Defendants refused to award contracts to union-affiliated truck transportation companies and individual owner-operators for shipment of products, equipment and supplies to the North Slope, even though such companies and operators offered their services at competitive prices, or offered services which cost marginally more but were otherwise preferable to rate and services of non-union operations;
(b) Defendants threatened union-affiliated truck transportation companies and individual owner-operators with cancellation or withholding of contracts to ship products, equipment and supplies to the North Slope, unless such companies pledged to convert themselves into nonunion companies;
(c) Defendants aided and abetted the operations of non-union “private corporation” truck transportation operations which defendants knew or should have known were incorporated and operated in direct violation of Alaskan state law; ...
(f) Defendants awarded contracts and business to truck transportation companies which have been prominent in anti-union activities. Such conspiratorial award of contracts and business to these companies has not been based upon commercial economic considerations or sound business judgment, but has been based on Defendants’ desire to enforce their boycott of union-affiliated truck transportation companies and individual owner-operators; ...
(h) Defendants advocated, encouraged and induced, by threats and promises, non-union truck transportation companies to refuse to enter into collective bargaining agreements with Local 959; and
(i) Defendants advocated, encouraged and induced, by threats and promises, suppliers of products, equipment and supplies, and contractors and sub-contractors purchasing products, equipment and supplies for use on the North Slope, to refuse to hire union-affiliated truck transportation companies and individual owner-operators for shipments to the North Slope ...

Paragraph 35 describes the alleged “purpose and effect” of these activities: first, “to weaken, destroy, and restrain the trade of union-affiliated truck transportation companies and individual owner-operators;” second, to injure Local 959’s ability to effectively represent its members in collective bargaining; and, finally, “to weaken, destroy and restrain competition for labor services in the relevant markets.”

Local 959 claims that these alleged antitrust violations caused it in excess of $20 million in damages. The complaint does not identify precise components of these alleged damages. However, the following harms are claimed: (1) the termination of the collective bargaining relationship between Local 959 and certain previously unionized truck transportation companies doing business in the North Slope (Paragraph 30) ; a reduction of the “aggregate market share” possessed by unionized truck transportation companies in the “relevant markets” and a decline in the number of employed members of Local 959 (Paragraph 31) ; and, finally, lost revenues received by Local 959 due to reduced union initiation fees and dues and diminished truck transportation company payments to union health and welfare, pension, and apprenticeship programs (Paragraph 32). Local 959 seeks injunctive relief under section 16 of the Clayton Act, 15 U.S.C. § 26, as well as treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15.

11. DISCUSSION

In 1970, a district court observed: “We must confess at the outset that we find antitrust standing cases more than a little confusing and certainly beyond our powers of reconciliation.” The court’s confusion is not surprising, for application of standing principles has been particularly difficult in the antitrust area. Courts have never read sections 4 and 16 of the Clayton Act literally to allow treble damages and/or injunctive relief to every plaintiff able to attribute an actual or threatened economic loss to an antitrust violation. This unwillingness to recognize every such injury is fully consistent with the essential principle of antitrust law: that the antitrust laws protect competition as a whole, not individual competitors.

A. AGC

Notwithstanding Local 959’s arguments to the contrary, the Supreme Court’s recent decision in Associated General Contractors (hereinafter “AGC”) refined and reaffirms these essential principles of antitrust law. Because I have found the result of AGC to be dispositive of the motions now before me, a thorough review of the facts and holding of that decision is appropriate.

The plaintiffs in AGC, the California State Council of Carpenters and the Carpenters 46 Northern Counties Conference Board (AGC union plaintiffs), were affiliated unions of a larger, umbrella union, the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. These union affiliates represented more than 50,000 individuals employed by the defendant employer group, the Associated General Contractors of California, Inc. (the association), in the carpentry, drywall, piledriving, and related industries throughout the State of California. The named defendants were the association, approximately 250 members of that construction contractors organization identified individually, and 1,000 unidentified co-conspirators.

The union plaintiffs and the defendants in AGC, and their predecessors, had been parties to collective-bargaining agreements governing the terms and conditions of employment in construction-related industries in California for over 25 years. The wages and other benefits paid pursuant to these agreements amounted, at the time of the litigation, to more than $750 million per year.

In their complaint in AGC, plaintiffs’ most specific factual allegations related to their labor relations with the defendant contractor association. The unions claimed that the contractor association conspired to abrogate and weaken the long-established collective-bargaining relationship between themselves and the signatory employers of the association. The alleged “purpose and effect” of these activities was two-fold: first, “to weaken, destroy,- and restrain the trade of certain contractors,” who were either members of the contractors association or who had signed agreements with plaintiffs; and second, to restrain “the free exercise of the business activities of plaintiffs....”

Plaintiffs claimed these alleged antitrust violations caused them damages that approximated those now claimed by the union plaintiffs before me: around $25 million. Their amended complaint, like Local 959’s complaints in the present case, failed to identify specific components of their damages claim. Nor did the unions in AGC seek injunctive relief under § 16 of the Clayton Act, 15 U.S.C. § 26, as Local 959 has done in the complaints filed here.

The District Court in AGC dismissed plaintiffs’ federal antitrust claim. The court observed that the complaint alleged “a rather vague, general conspiracy,” and that the allegations “appear typical of disputes a union might have with an employer,” which in the normal course are resolved by grievance and arbitration or by the NLRB.

On appeal the Ninth Circuit Court of Appeals reversed the District Court’s dismissal of the unions’ federal antitrust claim. In support of the plaintiff unions’ standing, the majority reasoned that these organizations were within the area of the economy endangered by a breakdown of competitive conditions, not only because injury to them was a foreseeable consequence of the antitrust violation, but also because that injury was specifically intended by the defendants.

On certiorari to the Supreme Court the decision of the Court of Appeals was reversed, holding that the District Court had properly dismissed the unions’ amended complaints because the unions lacked standing to bring the action under the antitrust laws.

Although the Supreme Court expressly refrained from formulating any “black letter” rule precluding all labor unions from bringing antitrust actions, it noted that “a union, in its capacity as a bargaining representative, will frequently not be part of the class the Sherman Act was designed to protect, especially in disputes with employers with whom it bargains.” Citing its earlier decision in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., the Court reminded that “[i]n each [antitrust] ease [plaintiffs] alleged injury must be analyzed to determine whether it is of the type that the antitrust statute was intended to forestall.” In AGC, the Court found that the unions’ labor-market interests predominated, and that the Brunswick requirement that the claimed injuries be the kind Congress intended to prevent through passage of the Sherman Act was not met.

In addition to emphasizing that the AGC unions had not alleged the type of injuries which came under the umbrella of antitrust law protection, the Court underscored the fact that the union plaintiffs were “neither a consumer nor a competitor in the market in which trade was restrained.” Nor had the unions alleged that either output had been curtailed or prices enhanced throughout an entire competitive market. The Court noted that the primary goal of all unions is to enhance the earnings and improve the working conditions of their membership, and “that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over their rivals.”

Although the Court did not set forth an exact “antitrust standing” test which must be applied to all antitrust litigation, it stated that all such lawsuits require a tripartite standing analysis which considers the following: (a) the harm suffered by the plaintiff; (2) the alleged wrongdoing by the defendants; and (3) the relationship between them. In applying this standing analysis to the facts before it in AGC, the Court found that the nature of the harm likely suffered by the unions (e.g. diminished dues payments) was not the type of injury historically protected by the antitrust laws. Moreover, the chain of causation between the unions’ apparent injury and the alleged wrongdoing by the defendant contractors association, that of restraining the market for construction subcontracts, resulted in only “indirect” harm to the unions. The direct victims of the defendants’ improper activities, who, according to the Court, would face no such hurdles to antitrust standing themselves, were the contractors and subcontractors being directly pressured by the contractors association to limit their business to nonunion firms.

In concluding that the AGC unions’ antitrust allegations were insufficient as a matter of law, the Court also cited other “relevant” factors which supported defendants’ claim that these unions lacked standing to sue. In addition to the paramount issue of the nature of the unions’ injury, these factors included: “the tenuous and speculative character of the relationship between the alleged antitrust violation and the [unions’] alleged injury;” “the potential for duplicative recovery or complex apportionment of damages;” and “the existence of more direct victims of the alleged conspiracy.” Finding that all these factors, when applied to the factual allegations in AGC, “weigh[ed] heavily against judicial enforcement of the [unions’] antitrust claim,” the Supreme Court held the District Court was correct in concluding that the unions lacked standing to bring antitrust causes of action.

The substance of Local 959’s claims of harm resulting from the conduct of the North Slope oil producers is, at first blush, remarkably similar to the claims made by the carpenters’ union in AGC. To begin with, the breadth of Local 959’s complaint is devoted to allegations which describe how the union’s labor market interests have been harmed; thus, the union’s injury in this case, like that of the union in AGC, appears to be a predominately labor-market injury not meant to be protected by the antitrust laws. Local 959’s allegations of harm further make clear that the union, like those in AGC, was neither a direct consumer nor a competitor in the relevant markets affected by the conspiracy. A perusal of the allegations also suggests that any harms suffered by the union have, like those suffered by the unions in AGC, been only indirectly linked to the claimed conspiracy; more direct victims would appear to exist to ensure effective enforcement of the antitrust laws. Finally, the nature of Local 959’s damages claim appears to share the very problems the Supreme Court held surrounded the unions’ damages in AGC; complexity, indirectness, speculativeness, and the risk of multiple recovery. These similarities will be discussed in depth in the context of this court’s review of Local 959’s arguments.

Local 959 attempts to distinguish the holding in AGC by arguing, inter alia, that (1) the success of the oil companies’ alleged conspiracy to injure Local 959 leaves the direct victims of the improper behavior (i.e. the once union-affiliated trucking companies) “in the enemy camp,” transforming Local 959 into the proper and necessary party to bring these actions; (2) unlike the AGC unions, Local 959 has alleged the type of harm that the antitrust laws were designed to prevent; (3) injury to Local 959 was an integral part of the oil companies’ alleged scheme to eliminate competition in the “labor services market;” (4) the damages in this case are “hard-edged, and far easier to measure than the speculative damages which were sought in AGC;” (5) the post-MGC decision of Ostrofe v. H.S. Crocker Co., Inc., proves the validity of Local 959’s claim of antitrust standing; and, finally (6) unlike the AGC union plaintiffs, Local 959 seeks more broadly available injunctive relief as well as treble damages. These attempts to pull Local 959’s complaint out from under the clear mandates of AGC fall short, however. Each shall now be considered in turn.

B. Incentive to Sue

In arguing that the Court’s decision in AGC does not preclude Local 959’s standing, Local 959 suggests it should be granted standing because it is the only “victim” of the oil companies’ conspiracy with sufficient incentive to sue to enforce the antitrust laws. Specifically, Local 959 argues that

[t]he Oil Companies, maneuvering against the Union, have conspired to convert union-affiliated companies into nonunion operations. This “Jekyll-Hyde” transformation, coerced or plotted with the connivance of the Union-affiliated companies, leaves the “victims” of boycotts, price-fixing, and market allocation in the enemy camp, shoulder-to-shoulder with Defendants.
This coerced metamorphosis is the key distinction between the instant case and AGC: when victim is transmogrified, into villain, only the union has the incentive to sue.

The union plaintiffs in AGC made an identical argument to bolster their claim of standing. They asserted that:

Many unionized firms will respond to the alleged boycott ... by setting up double-breasted operations or shifting more of their resources to the non-unionized part of their operations when double-breasted operations already exist. In this manner, unionized subcontractors can avoid losing any business and, as a result, these subcontractors will not “possess the classic economic incentive to file suit.” Alternatively, unionized subcontractors may simply not renew the collective bargaining agreement when it expires.

This claim, that the union plaintiffs were the only parties sufficiently motivated to enforce the antitrust laws, and therefore should be permitted to sue, was rejected by the Supreme Court. The Court expressed doubt that the direct “victims” of the association’s conspiracy, the firms suffering from coercion by defendants, “were actually harmed at all.” Assuming, arguendo, that these firms were injured,

The existence of an identifiable class of persons whose self-interest would motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the [unions] to perform the office of a private attorney general.

The Supreme Court therefore concluded that denying the AGC unions a remedy on the basis of their factual allegations was not likely to leave a significant antitrust violation undetected or unremedied.

For the same reasons noted by the Supreme Court in AGC, I reject the union’s claim here that it possesses antitrust standing because it is the only party sufficiently motivated to bring suit. As was the case in AGC, it cannot be accepted that all of the direct victims of the oil companies’ alleged conspiracy would refrain from bringing claims in their own right if their businesses were in fact injured by defendants’ antitrust violations. Indeed, this court need not rely on mere conjecture to determine whether such an identifiable class of directly affected persons exists. Unlike the cases now under consideration, case number 84-318, which defendants have not moved to dismiss, is brought by ten individual owner-operators who claim to have been directly injured by the alleged antitrust conspiracy of the oil companies. Following the precepts of AGC, the existence of this identifiable class of direct victims now apparently before the court significantly diminishes the justification for allowing a more remote party such as Local 959 to perform the office of a private attorney general. Even more than in AGC, denying Local 959 a remedy on the basis of its allegations in this case is “not likely to leave a significant antitrust violation undetected or unremedied.”

C. Nature of Harm

In holding that the unions in AGC lacked antitrust standing, the Supreme Court emphasized that various characteristics of the unions’ alleged damages weighed against judicial enforcement of their claims. Of paramount concern, the Court repeatedly stated that the unions’ alleged injury was not “of the type that the antitrust statute was intended to forestall ... [for] the Union’s labor-market interests seem to predominate, and [therefore] the Brunswick [standing] test is not satisfied.” In AGC, the Court assumed in the absence of specific allegations that the unions’ primary harms resulted from frustrated attempts to organize previously nonunion firms and reduced dues payments and revenues derived from these activities. The Court stated that Congress simply did not intend such harms to be cognizable under the antitrust laws. Rather they are essentially “labor-market” interests specially protected by Congress through a separate body of labor laws.

The Court went on to write that the antitrust laws were enacted to “assure customers the benefits of price competition” and to protect “the economic freedom of participants in the relevant market.” It then noted that the AGC unions were neither customers nor competitors in the market in which trade was restrained, the building subcontractors market. Nor was it even clear whether these unions’ economic interests would be served or dis-served by enhanced competition in this market.

Applying these criteria to the present case, it is evident that Local 959’s “labor-market” interests predominate here. Local 959’s primary harms, as opposed to those allegedly suffered directly by union-affiliated truck transportation companies and individual owner-operators, revolve around “its ability to effectively represent its members in collective bargaining.” Local 959 neither purchases, sells, nor provides truck transportation of products, equipment or supplies to the North Slope and is therefore “neither a consumer nor a competitor in the market in which trade was restrained.”

Moreover, while Local 959 does not have a collective bargaining relationship directly with defendants, it does, like the unions in AGC, have collective bargaining agreements with many of the companies allegedly boycotted or coerced by the oil companies. Thus, Local 959’s primary goal in this lawsuit is not to preserve or enhance competition in the truck transportation market; indeed, as noted previously, the injuries alleged by the union may be the result of increased competition in the truck transportation market, resulting in lower rates and a reduction in the share of the market controlled by union-affiliated companies. Rather, Local 959’s primary objective must be, as the Supreme Court noted in AGC, “to enhance the earnings and improve the working conditions of its membership,” irrespective of competitive conditions in the market, and to do so in part by ensuring that union-affiliated trucking companies maintain as large a share of that market as possible. Because such “labor interests” predominate, Local 959’s alleged antitrust injury is, like that claimed by the unions in AGC, simply “not of the type that the antitrust statute was intended to forestall____”

D. The “Labor Services Market” Allegation

In attempting to distinguish its harm from that suffered by the unions in AGC, Local 959 claims that more markets in the instant cases have been adversely affected by the oil companies’ alleged conspiracy than were affected by the contractors’ conspiracy in AGC. In AGC, the unions claimed that the only market affected by the contractors’ conspiracy was that involving “the trade of certain contractors.” Local 959, on the other hand, alleges that in addition to the truck transportation shipping market, the market for “labor services provided in connection with said business” has also been injured by the oil companies’ illegal activities.

Local 959 added this allegation of the relevant market affected by the oil companies’ claimed conspiracy following publication of the Supreme Court’s decision in AGC. In holding that the unions in AGC lacked standing, the Court noted that their complaint did not allege “any restraint on competition in the market for labor union services____”

Although Local 959 added this allegation to its complaint in an apparent attempt to distinguish the nature of its claims from that of the complaints in AGC, it failed to set forth how competition in the North Slope market for labor union services was diminished. This notable lack of explication is in stark contrast to Local 959’s treatment of the other alleged “relevant market” the union claims was adversely affected by the oil companies’ conspiracy, namely, the market for truck transportation of North Slope supplies. Nor does Local 959 shed much light in its briefing in support of its “labor services market” allegation.

I find this lack of documentation unnecessary to my conclusion that this “labor services” market theory fails to save Local 959’s complaint from the principles of AGC, however. For in noting that the unions in AGC had failed to make such an allegation, the Court did not state that the inclusion of this allegation would somehow per se defeat a motion to dismiss a similar complaint founded upon an antitrust conspiracy. To the contrary, it appears reasonable to assume that the Court intended its footnoted discussion of a “labor services market” allegation merely to exemplify one of many factors which might strengthen a union’s claim of standing to bring a suit to enforce the antitrust laws.

I have evaluated Local 959’s allegation that the North Slope’s market for truck transportation labor services has been injured by the oil companies’ conspiracy. I have found this bare allegation to be of minimal value to the union’s claim of antitrust standing. Significantly, Local 959’s complaint totally fails to spell out how competition in this market has been affected. Indeed, it is reasonable to infer that a reduction of union-affiliated truckers in the North Slope would lead to more competition in the market for truck transportation labor services than to reduced competition in the North Slope market.

Moreover, if, as Local 959 alleges, the oil companies’ conspiracy has forced many North Slope truck transportation companies merely to “transmogrify” themselves into non-union shops, then it stands to reason that the number of such transportation companies competing in the relevant market has not been significantly affected at all. Nor does it appear likely that Local 959’s competition with other labor unions competing for labor union business in the North Slope has been reduced.

Whether or not these conclusions are correct, however, it is clear that Local 959 is not a direct participant in the relevant market here. Rather Local 959 seeks to bring the claims of certain direct market participants, the injured truckers themselves, who, according to the union, have no incentive to bring suit notwithstanding their own antitrust injury. Because Local 959 itself is not a consumer or competitor in this market, however, under the teachings of AGC it must not be permitted such representational standing.

E. Damages

In addition to Local 959’s claim of injury not being of the type historically protected under the antitrust laws, Local 959’s alleged harms are also, like those which were claimed by the unions in AGC, “highly speculative.” In AGC, the Court noted two factors whose presence causes such antitrust damage claims to be speculative: (1) where an identifiable class of persons more directly injured by the complained of activity exists; and (2) where the alleged damages “may have been produced by independent factors.”

Both of these factors are present in Local 959’s antitrust damage claims now before me. The existence of more directly injured persons has already been noted. It is also evident that Local 959’s alleged harms may have been produced by other factors not directly traceable to the oil companies’ claimed conspiracy.

The indirectness, and therefore speculativeness, of Local 959’s damages is perhaps best demonstrated by the Supreme Court’s discussion of the unions’ claims of injury in AGC. There the Court wrote:

If the Union asserts that its attempts to organize previously nonunion firms have been frustrated because nonunion firms wish to continue to obtain business from those subjected to coercion by the defendants, its harm stems most directly from the conduct of persons who are not victims of the conspiracy.... If the Union claims that dues payments were adversely affected because employees had less incentive to join the Union in light of expanding nonunion job opportunities, its damage is more remote than the harm allegedly suffered by unionized subcontractors. The same is true if the Union contends that revenues from dues payments declined because its members lost jobs or wages because their unionized employers lost business.

The Court concluded that any harm to the unions in AGC was indirect. Because the unions were neither participants in the relevant market as competitors or consumers nor direct victims of the alleged restraint, they lacked standing to sue under the antitrust laws, even though, as here, the unions alleged that the defendants had in fact caused their injuries and had intended to harm them.

As the Supreme Court found in AGC, in the claims now under consideration “the chain of causation between the Union’s injury and the alleged restraint in the market ... contains several somewhat vaguely defined links____” Because Local 959’s injuries were “only an indirect result” of whatever harm may have been suffered by the union-affiliated truckers themselves, their claim to antitrust standing under AGC is further undermined.

Finally, Local 959’s damages claims implicate concerns of judicial management of complex antitrust trials similarly raised by the Supreme Court in AGC. In AGC, the Court warned that “massive and complex damages litigation not only burdens the courts, but also undermines the effectiveness of treble damages suits.” The danger of complex problems of apportioning damage claims is also present here.

Like in AGC, this court would face similar difficulties in “identifying damages and apportioning them among directly victimized [union-affiliated truckers] and indirectly affected employees and union entities.” Each element of injury alleged by Local 959 results only indirectly from the conduct of the oil companies, with both union truck transportation companies and their employees intervening between defendants and the union in the chain of causation. Thus, for example, in the present case it would be necessary to identify and apportion damages suffered by the directly-victimized union-affiliated contractors, the indirectly-affected trucking company employees and, finally, the union. Additionally, it would be necessary to ascertain whether the allegedly boycotted companies continued to transport products to the North Slope under non-union auspices; and to determine whether and to what extent the compensation of union-affiliated employees was diminished and whether any such diminution affected payment of union dues or pension contributions. It also likely would require a determination as to which of the union’s alleged injuries were actually caused by the oil companies’ conduct and which were caused by increased competition and reduced profits in the trucking industry resulting from, for example, recent deregulation in this industry. As in AGC, this would be a highly speculative and imprecise task.

P. Ostrofe II

In its recent pleadings, Local 959 places emphasis on the post-ACrC decision of Ostrofe v. H.S. Crocker, Inc. (Ostrofe II). According to Local 959, this Ninth Circuit decision “has disposed of most of the arguments the oil companies have raised in support of their Motion to Dismiss____” Local 959’s reliance on this case is misplaced.

The facts in Ostrofe were set forth as follows:

Frank J. Ostrofe, former marketing director of H.S. Crocker, Inc., filed suit against Crocker for injuries resulting from a violation of the Sherman Act. The complaint alleged that Crocker and other manufacturers of paper lithograph labels conspired to restrain interstate trade and commerce in such labels ... and that the conspiracy was effectuated in part by coercing Ostrofe, as Crocker’s sales manager, to rig bids, fix prices, and allocate markets. Ostrofe violated the agreement by competing freely for business. Crocker’s co-conspirators complained to Crocker’s executive officers, who in turn warned Ostrofe to cooperate. Ostrofe refused. He was forced to resign from his job as Crocker’s sales manager and allegedly he was boycotted from further employment in the industry.

On the basis of these distinct facts, the Court of Appeals held that Ostrofe possessed “standing with respect to his suit against Crocker based on an implied agreement among label manufacturers to discharge him and interfere with his opportunity for re-employment in the labels industry.” The majority of the panel went on to state two reasons for granting Ostrofe “standing to challenge the conspiracy to fix prices and allocate sales in the market for labels.”

First, the majority concluded that Ostrofe had suffered “antitrust injury:”

As sales manager of one of the label manufacturers, Ostrofe was an essential participant in the scheme to eliminate competition in the marketing of labels by fixing prices and allocating customers. It could not succeed without his active cooperation. When Ostrofe sold labels to customers not allocated to his employer and at prices below those agreed upon, his discharge was a necessary means to achieve the conspirators’ illegal end as well as an integral and inextricable part of the anticompetitive scheme____
Although Ostrofe was not a competitor or consumer in the labels market, the injury he sustained was such an integral part of the scheme to eliminate competition in that market as to constitute “antitrust injury” as that concept is developed in McCready.

In the alternative, it ruled that he possessed standing even if he had not suffered “antitrust injury” as such:

... Assuming Ostrofe himself is held not to have sustained antitrust injury in the strictest sense from the conspiracy to fix prices in the label market, his refusal to cooperate with the conspiracy nonetheless helped vindicate the rights of customers and competitors in that market. Affording standing to sue to such an employee discharged because he refused to cooperate in an antitrust violation by his employer encourages exposure of such schemes by persons best situated to know of their existence____

Central to the Ostrofe holding is Ostrofe’s allegation that “his discharge was a necessary means to achieve the conspirators’ illegal end as well as an integral and inextricable part of the anticompetitive scheme____” The present cases present different facts and policy considerations. Local 959’s alleged damages were a derivative consequence of the oil companies’ alleged conspiracy, not “an integral and inextricable part of the anticompetitive scheme.”

Most importantly, in Ostrofe the court determined that denying the plaintiff standing was “likely to leave a significant antitrust violation undetected or unremedied.” It also found that the plaintiff’s injury “is neither injury to others but is immediate and direct____” As has been discussed, directly contrary conclusions have been reached here regarding Local 959’s complaint. I therefore find that the court’s holding in Ostrofe, rather than supporting Local 959’s declaration of antitrust standing, further demonstrates that the union lacks such standing to proceed with its antitrust claims.

G. Section 16 Injunctive Relief

In addition to arguing that it has standing to seek treble damages under Section 4 of the Clayton Act, Local 959 claims to possess standing to seek injunctive relief pursuant to Section 16 of that Act. The equitable relief Local 959 requests is an order “directing that defendants, and each of them, cease and desist from their illegal behavior____”

Because the plaintiffs in AGC did not seek injunctive relief under Section 16, the Supreme Court did not consider whether they would have had standing to request such relief. Nor has the Court considered the standing requirements of Section 16 in its other recent antitrust decisions. The most recent decision of the Court which specifically contrasts the requirements of Section 16 standing with those of Section 4 is Zenith Radio Corp. v. Hazeltine Research, Inc.

Zenith Radio involved a patent infringement action brought against Zenith in which Zenith counterclaimed for antitrust treble damages. On certiorari, the Court considered, among other things, the requirements Zenith had to meet in order to be entitled to injunctive relief under Section 16. The Court noted that this provision of the antitrust laws was enacted by Congress “to make available equitable remedies previously denied private parties ... authorizing] injunctive relief under the demonstration of ‘threatened’ injury.” The Court stated that this remedy is characteristically available even though the plaintiff has not yet suffered actual injury. The plaintiff “need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue to recur.”

In Zenith Radio, the Court also noted that courts should not apply Section 16 relief too strictly:

Section 16 should be construed and applied ... with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of “nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims____ Its availability should be conditioned by the necessities of the pub-lie interest which Congress has sought to protect.”

This Supreme Court mandate to apply Section 16 flexibly has been followed by the majority of circuit courts that have been faced with suits seeking Section 16 equitable relief. The Ninth Circuit is fully in accord as is evident in the recent case of Parks v. Watson. In Parks, the court of appeals noted “we have recognized that the standing requirements of Section 16 are broader than those of Section 4.” In Parks the plaintiff, a company desiring to develop part of its real estate holdings, sued defendant city and its manager for alleged violation of the Civil Rights Act and the federal antitrust laws. The alleged violations arose out of the city’s denial of a request to vacate certain platted city streets unless the company agreed to dedicate some of its land containing geothermal wells. In its lawsuit, the company argued, among other things, that it was entitled to injunctive relief under Section 16 of the Clayton Act.

The United States District Court for the District of Oregon rejected all of the cornpany’s claims, including its claim for antitrust equitable relief. On appeal, the Ninth Circuit reversed the district court on several issues, including the lower court’s treatment of the legal requirements of Section 16 injunctive relief.

Finding that the district court had applied unduly restrictive criteria to Section 16 standing, the court of appeals set forth several reasons why the Ninth Circuit is and should be more lenient with claims of antitrust injunctive standing. “The first significant difference is the lack of any mention of ‘business or property’ in Section 16. This omission clearly signals different [less restrictive] standing requirements [between] the two sections.”

To further demonstrate why claims of Section 16 standing should be treated more favorably than those seeking Section 4 relief the panel cited the earlier Ninth Circuit decision in In re Multidistrict Vehicle Air Pollution. In that bellwether case, crop farmers had sued automobile manufacturers, charging that they had conspired to drag their feet on production of effective air pollution devices. The farmers, neither competitors with the manufacturers nor consumers of automobile pollution devices for purposes of the lawsuit, were denied standing to sue for treble damages under Section 4.

The farmers were permitted to seek injunctive relief under Section 16, however. The court stated that broader standing under Section 16 is “fully justified” because of the difference between the remedies available under each section. “In contrast to Section 4, Section 16 does not involve punitive and potentially disastrous judgments for treble damages and attorneys’ fees; neither is there the potential threat of duplicative recoveries.”

It is clear in this circuit that standing under Section 16 is less restrictive than under Section 4. It remains, however, necessary for an antitrust litigant to sufficiently demonstrate that the threatened harm is “of the type that the antitrust statute was intended to forestall.” Because this threshold requirement must be met under both Sections 4 and 16, I conclude that Local 959 lacks standing to seek equitable relief as well as treble damages under the complaint before me.

As I have concluded in my analysis of Local 959’s lack of standing under Section 4, Local 959’s alleged harm is, as a matter of law, not the kind of antitrust injury Congress intended to punish. I have also concluded that the union’s claim of harm is “highly speculative,” being only an “indirect result” of whatever harm may have been, or will in the future be suffered by the union-affiliated truckers themselves.

III. CONCLUSION

I now conclude that the antitrust claims in 83-171 and 83-172 fail to establish plaintiffs have standing to pursue these claims under either Section 4 or Section 16 of the Clayton Act.

IT IS NOW ORDERED the complaint in 83-171 and the antitrust claims in 83-172 are DISMISSED.

      . As will be explained in greater detail shortly, five cases currently comprise this litigation. Only four of the suits currently contain outstanding motions to dismiss.

      . Two different affiliates of the Teamsters have brought actions here. They are Local 959 of the Alaska Teamsters and the Canadian Conference of the Teamsters Union (plaintiffs in case numbers 83-171, 83-172 and 83-173). In addition, ten individual members of Local 959 bring suit in their own capacities in case numbers 84-318 and 84-322.

      . Atlantic Richfield Company, Arco Alaska, Inc., Sohio Alaska Petroleum Co. and Sohio Petroleum Company are defendants in all five suits. Sohio Construction Company is also a defendant in case numbers 83-171, 84-318 and 84-322. Only case number 84-322 has non-corporate defendants.

      . 18 U.S.C. §§ 1961-1968 (1982).

      . Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

      . McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980).

      . 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

      . The Canadian Conference’s amended complaint is almost identical to that of Local 959. The only significant difference is the Conference’s addition of a purported RICO cause of action, whose propriety shall be considered in a separate memorandum. In now considering whether these unions have sufficiently stated antitrust claims upon which relief may be granted, the court shall therefore treat these complaints interchangeably, citing to Local 959’s third amended complaint solely for ease of reference.

      . Wilson v. Ringsby Truck Lines, 320 F.Supp. 699, 701 (D.Colo.1970).

      . Section 4 of the Clayton Act provides in relevant part:
      [A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore ... and shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee. 15 U.S.C. § 15 (1982).
      Section 16 of the Act concerns equitable relief, stating in relevant part:
      Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws ... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings.

      . See In re Multidistrict Vehicle Air Pollution, 481 F.2d 122, 125 (9th Cir.) ("Read literally, [section 4] could afford relief to all persons whose injuries are causally related to an antitrust violation. Recognizing the nearly limitless possibilities of such an interpretation, however, the judiciary quickly brushed aside this construction.”), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973).

      . See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977).

      . 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

      . In attempting to get out from under the holding in AGC, Local 959 argues, inter alia, that AGC was an ad hoc "fact bound” decision which established “no bright-lines eliminating standing” for Local 959. See Plaintiffs' Opposition to Defendants’ Motion to Dismiss [corrected] (filed June 6, 1983) (hereinafter cited as Plaintiff’s Opposition) at 204. I reject this characterization of the Court’s decision in AGC, as my discussion of this case will demonstrate infra.

      . 404 F.Supp. 1067, 1069 (N.D.Cal.1975).

      . 648 F.2d 527 (9th Cir.1980).

      . Id. at 538.

      . 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

      . 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977).

      . In Brunswick, the Court found it “inimical" to the purposes of the antitrust laws to award damages for the type of injury claimed by plaintiff: lost profits due to defendant’s bail-out of financially-strapped competitors, an act which promoted competition. In so finding, the Court noted that Congress enacted the antitrust laws for "the protection of competition, not competitors." 429 U.S. at 488, 97 S.Ct. at 697 (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962)).

      . In a footnote, the Court pointed out that the scope of antitrust standing is narrower than that of so-called constitutional standing:
      The label “antitrust standing” has traditionally been applied to some of the elements of this inquiry. As commentators have observed, the focus of the doctrine of “antitrust standing” is somewhat different from that of standing as a constitutional doctrine. Harm to the antitrust plaintiffs is sufficient to satisfy the constitutional standing requirement of injury in fact, but the court must make a further determination whether the plaintiff is a proper party to bring a private antitrust action.
      459 U.S. at 535 n. 31, 103 S.Ct. at 907 n. 31; see also Bubar v. Ampco Foods, Inc., 752 F.2d 445, 448 (9th Cir.1985).

      . Unlike the complaints in the instant cases, those of AGC neglected to specify the nature of plaintiffs’ alleged harm. The Court therefore was required to speculate in a footnote about the likely injury suffered by the unions. Importantly for the purposes of my analysis of the instant complaints, however, the Court stated that such union harms as losses in dues receipts or diminished opportunities to organize previously nonunion firms are remote and indirect, flowing out of the harm suffered by unionized subcontractors and the resultant losses suffered by union members. Essentially engaged in a "proximate cause” analysis, the Court wrote:
      Because of the absence of specific allegations, we can only speculate about the specific components of the Union’s claim. If the Union asserts that its attempts to organize previously nonunion firms have been frustrated because nonunion firms wish to continue to obtain business from those subjected to coercion by the defendants, its harm stems most directly from the conduct of persons who are not victims of the conspiracy (citation omitted). If the Union claims that dues payments were adversely affected because employees had less incentive to join the Union in light of expanding nonunion job opportunities, its damage is more remote than the harm allegedly suffered by unionized subcontractors. The same is true if the Union contends that revenues for dues payments declined because its members lost jobs or wages because their unionized employers lost business. That harm, moreover, is even more indirect than the already indirect injury to its members, yet a number of decisions have denied standing to employees with merely derivative injuries.
      459 U.S. at 541 n. 46, 103 S.Ct. at 910 n. 46 (citations omitted).

      . Id. at 545, 103 S.Ct. at 912.

      . Id.

      . Id.

      . Plaintiffs' Opposition, supra note 14, at 2.

      . Id. at 21-27.

      . Plaintiffs’ Supplemental Memorandum in Opposition to Motion to Dismiss (filed Dec. 7, 1983) (hereinafter cited as Plaintiffs’ Second Opposition) at 305; Plaintiffs’ Third Supplemental Memorandum in Opposition to Motion to Dismiss (filed Feb. 25, 1982) (hereinafter cited as Plaintiffs’ Third Opposition) at 208; Plaintiffs’ Fourth Supplemental Memorandum in Opposition to Motion to Dismiss (filed March 13, 1985) at 4.

      . Plaintiffs’ Opposition, supra note 14, at 3.

      . 740 F.2d 739 (9th Cir.1984).

      . Plaintiffs’ Second Opposition, supra note 28, at 2-6.

      . Plaintiffs’ Opposition, supra note 14, at 35-50.

      . Plaintiffs’ Opposition, supra note 14, at 2.

      . Brief for Respondents 49, AGC, quoted in AGC, 459 U.S. at 542, 103 S.Ct. at 911.

      . "Indeed," the court wrote, "if there is any substance to the [unions’] claim, it is difficult to understand why these direct victims of the conspiracy have not asserted any claim in their own right.” 459 U.S. at 542 n. 47, 103 S.Ct. at 911 n. 47.

      . Id. at 542, 103 S.Ct. at 911.

      . Id.

      . Id.

      . AGC, 459 U.S. at 542-45, 103 S.Ct. at 911-12.

      . Id. at 540, 103 S.Ct. at 910.

      . Id. at 541, 103 S.Ct. at 910.

      . Id. at 538-40, 103 S.Ct. at 909-10.

      . Id. at 538, 103 S.Ct. at 909.

      . See supra text accompanying notes 19 and 20.

      . Plaintiffs’ Third Amended Complaint for Damages and Injunctive Relief (antitrust) ¶ 24 (filed Jan. 28, 1985) (hereinafter cited as Complaint).

      . AGC, 459 U.S. at 539, 103 S.Ct. at 909.

      . Id.

      . Id. at 540, 103 S.Ct. at 910.

      . Id. at 523 n. 4, 103 S.Ct. at 901 n. 4.

      . Complaint, supra note 45, ¶ 16.

      . AGC, 459 U.S. at 527 n. 14, 103 S.Ct. at 903 n. 14.

      . Local 959’s conclusory allegation that the market for labor union services in the North Slope was restrained by the oil companies’ conspiracy is only mentioned in two sentences in its amended complaint. See Complaint, supra, note 45, ¶¶ 16, 35. No explanations supporting this allegation are provided.

      . Local 959’s complaint alleges at least fifteen separate means by which competition in the market for truck transportation services in the North Slope was allegedly diminished by the oil companies' conspiracy. See id. ¶¶ 25-27.

      . Plaintiffs’ Third Supplemental Memorandum in Opposition to the Oil Companies’ Motion to Dismiss, like plaintiffs’ amended complaint, merely sets forth the conclusion that ”[t]he actions taken against Union-affiliated trucking companies directly affected the market for labor services in North Slope trucking.” See Plaintiffs' Third Opposition, supra note 28 at 5. Explanation of how this occurred is not provided here or in Local 959’s other briefing.

      . This is certainly not to suggest, however, that such coercive activities engaged in by the oil companies to "union bust” would not contravene federal labor laws. Such a claim is not part of this litigation, however.

      . In noting that the amended complaint in AGC did not allege any restraint on competition in the market for labor union services, the Supreme Court further stated that "there is no claim that competition between rival unions has been injured or even that any rival unions exist.” See AGC, 459 U.S. at 527 n. 14, 103 S.Ct. at 903 n. 14. By thus framing its discussion of "the market for labor union services," the Court implied that the state of competition amongst more than one union rather than of unionization generally might be the relevant inquiry here.

      . See id. at 539, 103 S.Ct. at 909.

      . Id. at 542, 103 S.Ct. at 911.

      . Id.

      . Id.

      . See supra text accompanying notes 38-40.

      . AGC, 459 U.S. at 541 n. 46, 103 S.Ct. at 910 n. 46.

      . Id. at 540 n. 44, 103 S.Ct. at 910 n. 44.

      . Id. at 540, 103 S.Ct. at 910.

      . It is true that Local 959 heeded the statement of the Court in AGC by adding to its complaint allegations that (1) the aggregate share of the contracting market controlled by union firms has diminished; (2) the number of employed union members has declined; (3) the union’s revenues in the form of dues or initiation fees has decreased; and (4) unionaffiliated firms have been subject to a complete boycott. See Complaint, supra note 45, ¶¶ 22-32. In AGC, the Court noted that the absence of these allegations was further evidence of the speculative nature of the unions’ damage claims. The Court did not state, however, that the mere inclusion of these allegations in a similar complaint would necessarily mitigate the speculative nature of damage claims surrounding such alleged antitrust conspiracies. For the reasons noted, I have found Local 959’s damage claims highly speculative due to their indirectness and the presence of an ascertainable class of more directly affected "victims” of the oil companies’ alleged conspiracy.

      . AGC, 459 U.S. at 545, 103 S.Ct. at 912 (citing Illinois Brick Co. v. Illinois, 431 U.S. 720, 745, 97 S.Ct. 2061, 2074, 52 L.Ed.2d 707 (1977)). (In Illinois Brick, the Court held that treble damages could not be recovered by indirect purchasers of concrete blocks who had paid an enhanced price because their suppliers had been victimized by a price-fixing conspiracy. The Court observed that a strong likelihood existed that potential plaintiffs would be in a position to assert conflicting claims to a common fund created through the suit.)

      . AGC, 459 U.S. at 545, 103 S.Ct. at 912.

      . 740 F.2d 739 (9th Cir.1984).

      . Plaintiffs’ Third Opposition, supra, note 28, at 2.

      . 740 F.2d at 741-42.

      . Id. at 742.

      . Id. at 744.

      . Id. at 745-46.

      . Id. at 746-47.

      . Id. (citations omitted).

      . 15 U.S.C. § 26 (1982). For the pertinent text of this statute, see supra note 10.

      . Complaint, Prayer for Relief, supra note 45.

      . AGC, 459 U.S. at 524 n. 5, 103 S.Ct. at 901 n. 5.

      . See, e.g., Blue Shield of Virginia v. McCready, 457 U.S. 465, 467, 102 S.Ct. 2540, 2542, 73 L.Ed.2d 149 (1982); Reiter v. Sonotone Corp., 442 U.S. 330, 337 n. 3, 99 S.Ct. 2326, 2330 n. 3, 60 L.Ed.2d 931 (1979); Illinois Brick Co. v. Illinois, 431 U.S. 720, 726, 97 S.Ct. 2061, 2064, 52 L.Ed.2d 707 (1977); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 491 (1977).

      . 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).

      . Id. at 130, 89 S.Ct. at 1580.

      . Id.

      . Id. at 131, 89 S.Ct. at 1580 (citations omitted).

      . See, e.g., Parks v. Watson, 716 F.2d 646, 662 (9th Cir.1983) (discussed in detail in text accompanying notes 73 to 83, infra); Associated of General Contractors v. Otter Tail Power, 611 F.2d 684, 689 (8th Cir.1979) ("standing under § 16 has emerged as a separate and more lenient doctrine than under § 4” because precise determination of the extent of threatened injuries is not necessary); Paschall v. Kansas City Star Co., 605 F.2d 403, 409 (8th Cir.1979); In Re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1167 (5th Cir.1979) (permitting ranchers to sue supermarkets who allegedly depressed cattle prices for packers, who passed on depressed prices to ranchers); Mid-west Paper Products Co. v. Continental Group, 596 F.2d 573, 590-92 (3rd Cir.1979) (§ 16 standing "less constrained" than § 4 standing; injunctive relief lacks countervailing considerations of treble damage relief); Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172, 1174 (5th Cir.1976) (more demanding standing requirements for treble damage actions than for injunctive relief); Jeffrey v. Southwestern Bell, 518 F.2d 1129, 1132 (5th Cir. 1975) ("courts take a less constrained view of standings in suits involving injunctive relief than in those demanding treble damages”); National Constructors v. National Elec. Contractors, 498 F.Supp. 510, 519-20, 524 (permitting an indirect purchaser to sue under § 16), aff'd., 678 F.2d 492 (4th Cir.1982); Reiter v. Sonotone Corp., 486 F.Supp. 115, 121 (1980) (permitting § 16 injunctive relief to indirect purchasers; additionally, standing to sue under § 4 was allowed, reversed by the 8th Circuit, 579 F.2d 1077 (1978), and reinstated by the United States Supreme Court, 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)).

      . 716 F.2d 646 (9th Cir.1983).

      . Id. at 662 (citing Hawaii v. Standard Oil Co., 431 F.2d 1282, 1284-85 (9th Cir.1970), aff'd, 405 U.S. 251, 261, 92 S.Ct. 885, 890, 31 L.Ed.2d 184 (1972) (In Hawaii, the Ninth Circuit flatly stated that "Section 16 ... is far broader than Section 4. Any person may secure injunctive relief against threatened loss or damage by violation of the antitrust laws. Section 4 provides for recovery of treble damages only by a person injured in his business or property by such a violation.” 431 F.2d at 1284-85).

      . 716 F.2d at 649-50.

      . Id. at 661-62.

      . Id. at 649.

      . Id.

      . Id. at 662.

      . Id. (citing Hawaii v. Standard Oil Co., 405 U.S. 251, 261, 92 S.Ct. 885, 890, 31 L.Ed.2d 184 (1972)).

      . 481 F.2d 122 (9th Cir.) cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973).

      . 481 F.2d at 129.

      . Id. at 130-31. The court wrote here that: Unlike standing under section 4, standing under section 16 does not require an injury to "commercial interests” but only an injury cognizable in equity. For example, housing segregations enforced by an antitrust conspiracy of realtors constitutes an injury to excluded minority members that confers standing for injunctive relief under section 16, see Bratcher v. Board of Realtors, 381 F.2d 723 (6th Cir. 1967), although not for treble damages under section 4. Since all appellees herein have alleged "threatened loss of damage” to interests cognizable in equity, [footnote] they have standing to seek equitable protection under section 16 of the Clayton Act.

      . AGC, 459 U.S. at 540, 103 S.Ct. at 910 (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485, 97 S.Ct. 690, 695, 50 L.Ed.2d 701 (1972)).

      . See supra text accompanying notes 39-48.

      . See supra text accompanying notes 61-67.


source: Caselaw Access Project

author: MILTON POLLACK, Senior District Judge.

license: Public Domain

text:
    NIPPON FIRE & MARINE INSURANCE CO., LTD., Plaintiff, v. HOLMES TRANSPORTATION, INC. and Troiano Express Co., Inc., Defendants.
    No. 84 Civ. 6152 (MP).
    United States District Court, S.D. New York.
    Aug. 23, 1985.
    Donovan, Maloof, Walsh & Kennedy by James J. Ruddy, New York City, for plaintiff.
    Burns Summit Rovins & Feldesman by Stephen J. King, New York City, for defendant Holmes Transp., Inc.
    Lustig, Spinner & Bronstein by Richard M. Bronstein, Deer Park, N.Y., for defendant Troiano Exp. Co.
   DECISION AND OPINION

MILTON POLLACK, Senior District Judge.

The issues herein were presented at a Bench trial. Jurisdiction is posited on the Interstate Commerce . Act, 49 U.S.C. § 11707, and 28 U.S.C. §§ 1332 and 1337. Nature of the Case

Plaintiff, Nippon Fire & Marine Insurance Company (“Nippon”), as subrogee of International Business Machines (“IBM”), sues defendants, Holmes Transportation, Inc. (“Holmes”) and Troiano Express Company (“Troiano”), to recover $276,590.69 for the non-delivery of one of six cases of data processing equipment shipped from Vermont to New York. The complaint alleges claims sounding in breach of bailment, negligence, and conversion.

Both defendants contend that their liability is limited to $5.00 per pound based on the released value designation made by the shipper, IBM, on its shipping order. Since the missing case weighed 33 pounds, the defendants maintain that their liability is limited to $165.00.

Nippon takes the position that the liability limitation contained on the shipping order is ineffective on the ground that the defendants’ failure to account for the missing case constitutes a conversion and the limitation is thereby negated.

Pursuant to this Court’s Order, the issue of whether the liability limitation is effective has been severed and tried separately.

Stipulated Facts and Documents

On February 10,1983, at Essex Junction, Vermont, IBM delivered six cases of data processing material to Holmes, a common carrier regulated by the Interstate Commerce Commission, for transportation to IBM’s consignee, Kuehne & Nagel, Inc., at Inwood, New York, pursuant to IBM’s shipping order which stated that:

“The agreed or declared value of the property is hereby stated by the shipper to be not exceeding $5.00 per pound.”

There is no evidence that a request was made by the shipper to the carrier for coverage of any value different from or in excess of the limitation of liability under the applicable tariff (Coordinated Freight Classification NEB 100 Item 27900 S3). The highest declared valuation allowed by the tariff for this commodity was $5.00 per pound.

On February 11, 1983, at Carlstadt, New Jersey, Troiano, also a common carrier regulated by the ICC, signed for all six cases without noting any exceptions and was to deliver the shipment to the consignee at Inwood. Troiano was engaged by Holmes.

On February 16, 1983, in the course of making deliveries to 36 consignees of shipments originating from Holmes, Troiano delivered only five of the six cases consigned to Kuehne & Nagel at Inwood. Carton BU 619315, consigned to Kuehne & Nagel, weighing 33 pounds, was never delivered to them. Troiano cannot account for the loss of carton BU 619315. Troiano’s president testified that Troiano had made inquiries of each consignee to whom shipments were delivered for the missing carton, but the inquiries were fruitless. It was his opinion that the extra carton had been misdelivered to one of the other consignees.

Discussion

There is no proof of an actual conversion of the carton by either defendant for its own use. Absent affirmative proof of such conversion, the rule of law is that plaintiff’s recovery is limited to the agreed release value of the carton, $165.00. As this Court held in Tishman & Lipp, Inc. v. Delta Airlines, 275 F.Supp. 471, 481 (S.D. N.Y.1967), aff’d, 413 F.2d 1401 (2d Cir. 1969), in order to recover against a carrier, the plaintiff must present “evidence of conversion by the defendant itself for its own use.”

“In order to relieve defendant of its tariff protection, it is necessary for the plaintiff to prove more than a mere technical conversion which has amounted perhaps to no more than negligence. Even gross negligence or proof that an employee of the defendant actually stole the jewelry would not suffice to render the tariff inapplicable.”

Id. at 480. See also Glickfeld v. Howard Van Lines, 213 F.2d 723, 727 (9th Cir. 1954); Neal v. Republic Airlines, Inc., 605 F.Supp. 1145, 1149 n. 3 (N.D.Ill.1985); Progress Jewelry Co. v. Northwest Orient Airlines, Inc., 300 F.Supp. 335, 338 (S.D.N. Y.1969).

In this case, neither IBM nor Nippon requested or paid for insurance from the carrier in excess of the declared value, which is also the amount of liability fixed in the tariff. Instead, IBM turned to Nippon for insurance of the alleged actual, but undeclared, value of the shipment. (It has collected that insurance from Nippon and has assigned its claim against defendants to Nippon, which sues herein as a subrogee.) In fact, “the facts as presented do not indicate” that IBM at any time informed defendants “of the alleged value of the equipment in the case.” Chambers & Associates v. Trans World Airlines, 533 F.Supp. 426, 429 (S.D.N.Y.1982).

The plaintiff contends that it is incumbent on defendants to establish what happened to the missing carton. It argues that when cargo disappears while in the exclusive care and custody of an interstate trucker who can offer no explanation for the loss of it, the carrier should be deemed to have converted the cargo and any limitation of liability is voided. Under New York law, while the burden of proof of conversion rests on the plaintiff, the plaintiff establishes a prima facie case of conversion by a presumption flowing from proof of delivery of the property to the bailee and the bailee’s failure to make delivery to the consignee. The defendant, under that state’s rule, then has the burden of coming “forward with evidence sufficient to prove that its failure to return the property is not the result of conversion of that property to its own use.” I. C. C. Metals, Inc. v. Municipal Warehouse Co., 50 N.Y.2d 657, 409 N.E.2d 849, 431 N.Y.S.2d 372, 374 (1980).

However, as plaintiff concedes, this suit is based on a federally created claim and consequently federal doctrine, not state principles, control. Federal courts do not presume a conversion, voiding the limitation of liability, to have occurred merely from a non-delivery. The scope of proof required from the plaintiff and the presumptions used to void a tariff limitation under New York principles are neither applicable nor controlling under the federal statutory scheme. When Congress enacted the Motor Carriers Act of 1980, it “relaxed regulatory requirements for the establishment of released rates by motor carriers of property other than household goods and rail carriers,” Shippers Nat'l Freight Claim Council v. ICC, 712 F.2d 740, 742 (2d Cir.1983). See H.R.Rep. No. 96-1069, 96th Cong., 2d Sess. 25, reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2307-08 (“Release rates, in effect, allow the shipper to pay a lesser price for hauling the goods and a separate agreed-upon price for whatever amount of insurance the shipper desires”).

Established precedent and a need for stare decisis are important in areas of commerce. Cf. North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 232 (2d Cir.1978) (“Limitations of liability and cargo valuations are inherent parts of the rates, and the statutory mandate of uniformity must therefore apply to the liability which attend the carriage of goods”). The claim to the type of presumption, which plaintiff seeks to have drawn to void a limitation of liability, has been rejected in analogous cases by the federal courts. See Western Mining Corp., Ltd. v. Standard Terminals, 577 F.Supp. 847 (W.D.Pa.1984); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 575 F.Supp. 971 n. 5 (N.D.Ill.1983); Adams v. Ryan & Christie Storage, Inc., 563 F.Supp. 409 (E.D.Pa.), aff’d, 725 F.2d 666 (3d Cir.1983); Inland Metals Refining v. Ceres Marine Terminals, 557 F.Supp. 344 (N.D.Ill.1983).

Plaintiff disclaims any challenge to the reasonableness of the tariff which appears to be reasonable “under the circumstances surrounding the transportation.” 49 U.S.C. § 10730. Consequently, as the Court in Gliekfeld said, “The shipper got what he bargained for, and the carrier got what it was entitled to under the statute.” Glickfeld, 213 F.2d at 723. The plaintiff, therefore, may recover only the amount stipulated and declared by IBM as “the agreed or declared value of the property,” to which Holmes agreed.

Accordingly, the liability limitation is held to be applicable to the claim asserted. The case will proceed on the remaining issues of whether defendants are liable for the damages as limited unless within three (3) days the parties have notified the Court that they have arrived at a stipulation thereon.

The foregoing shall constitute the findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure.

SO ORDERED.


author: NICKERSON, District Judge.

text:
    Marshall P. SAFIR, Plaintiff, v. UNITED STATES LINES, INC., Lykes Bros. Steamship Co., Inc., Moore McCormack Lines, Inc., American President Lines, Inc., Farrell Lines, Inc., American Export Lines, Inc., Prudential Lines, Inc., Prudential-Grace Lines, Inc., Defendants.
    No. 85 C 0864.
    United States District Court, E.D. New York.
    Aug. 23, 1985.

      Marshall P. Safir, pro se.
    Walter, Conston & Schurtman, P.C., New York City (William Schurtman, Gregory F. Hauser, New York City, of counsel), Foley, Hoag & Eliot, Boston, Mass. (Verne W. Vance, Jr., Boston, Mass., of counsel), for defendants Farrell Lines, Inc. and American Export Lines, Inc.
    Kominers, Fort, Schlefer & Boyer, Washington, D.C. (T.S.L. Perlman, William H. Fort, Washington, D.C., of counsel), for defendants Lykes Bros. S.S. Co., Inc.
    Haight, Gardner, Poor & Havens, Washington, D.C. (John W. McConnell, Jr., Washington, D.C., of counsel), for defendants U.S. Lines, Inc. and U.S. Lines (S.A.), Inc. (formerly Moore McCormack Lines, Inc.).
    Haight, Gardner, Poor & Havens, New York City (Richard G. Ashworth, New York City, of counsel), for defendants Lykes Bros. S.S. Co., Inc., U.S. Lines, Inc. and U.S. Lines (S.A.), Inc. (formerly Moore McCormack Lines, Inc.).
    Shea & Gardner, Washington, D.C. (Robert T. Basseches, William R. Hanlon, Washington, D.C., of counsel), Hill, Betts & Nash, New York City, for defendant American President Lines, Ltd.
    David P. Howe, New York City, for defendants Prudential Lines, Inc. and Prudential-Grace Lines, Inc.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiff’s complaint alleges a private right of action implied from section 810 of the Merchant Marine Act, 46 U.S.G. § 1227, to recover a “restitutionary remedy in the form of disgorgement of the illegal earnings” of defendants. He seeks (a) $227,-686,369.33 in subsidies paid by the United States to defendant steamship companies during 1965 and 1966 when they were engaged in unlawful conduct, (b) interest, compounded quarterly, on that amount, and (c) over $2 billion in profits defendants allegedly earned from the use of the subsidies.

Defendants move to dismiss the complaint. They cite three grounds: (1) section 810 affords plaintiff no private right of action for “restitution”; (2) plaintiff lacks standing; and (3) this action, brought almost twenty years after the unlawful conduct occurred, is barred by the applicable statute of limitation. Defendant American President Lines, Ltd., which did not compete with Sapphire Lines, recites a further ground, namely, that the complaint does not allege a prior administrative or judicial determination of a statutory violation upon which a claim for restitution against the non-competing shipping lines could be based. Defendants also move to enjoin plaintiff permanently from pursuing any further vexatious litigation relating to their pricing conduct in 1965 and 1966. Plaintiff cross-moves for summary judgment.

I

The undisputed facts are as follows. Sapphire Steamship Lines, Inc. (Sapphire Lines) was an unsubsidized shipping corporation, in which plaintiff held fifty percent of the stock and for which he was a guarantor of many of its debts. Defendants are shipping lines that received government subsidies in 1965 and 1966. To defeat competition by Sapphire Lines on certain trade routes, defendants temporarily, in 1965 and 1966, lowered their rates for military cargo on those routes.

In 1966 Sapphire Lines sued defendants for treble damages under the antitrust laws, based upon defendants’ pricing conduct. In 1967 Sapphire Lines was adjudicated a bankrupt, and later, in 1973, its trustee settled the treble damage suit with all defendants for $2.5 million.

Meanwhile, in 1967, the Federal Maritime Commission determined that defendants’ conduct violated the Shipping Act of 1916, 46 U.S.C. § 814. Sapphire Lines, plaintiff, and the other shareholder then began an action in this court against Maritime Administration officials seeking an order declaring that section 810 of the Merchant Marine Act (the Act), 46 U.S.C. § 1227, barred subsidy payments to defendants and compelling those officials to recover all subsidies paid to defendants during 1965 and 1966. This court dismissed for failure to state a claim.

The Court of Appeals for the Second Circuit reversed and held that (a) plaintiffs had standing to bring the suit, (b) the Act authorized the Maritime Administrator to recover subsidies paid in the past to shipping lines while they were violating section 810, and, (c) while the Maritime Administrator had some discretion in determining whether to seek such recovery, he could not refuse to do so without considering the interests of victims of the unlawful conduct. Safir v. Gibson (Safir I), 417 F.2d 972 (2d Cir.1969), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970).

After this decision the Maritime Commission directed its chief hearing examiner to compile a public record to provide a basis for determining whether defendants had violated section 810 of the Act and, if so, what action should be taken. This court then denied an injunction sought by plaintiff and his fellow litigants to restrain the Maritime Commission from paying any further subsidies to the shipping lines. The Court of Appeals affirmed insofar as the order refused to enjoin current subsidy payments, but directed the Maritime Administration not to redetermine that the conduct of the shipping lines in 1965 and 1966 violated section 810 of the Act to the injury of Sapphire Lines. Safir v. Gibson. (Safir II), 432 F.2d 137 (2d Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 241, 27 L.Ed.2d 246 (1970).

Thereafter the Secretary of Commerce proceeded to recover from the defendants that had competed with Sapphire Lines about $1.1 million (representing only a part of their subsidies for 1965 and 1966), but declined to obtain refunds of subsidies from those defendants that had not so competed. This decision was ultimately sustained in Safir v. Dole, 718 F.2d 475 (D.C. Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2389, 81 L.Ed.2d 347 (1984).

II

The Court of Appeals for the Second Circuit has held that plaintiff had three available remedies in the late 1960’s. He could have (1) brought an action for treble damages, (2) withheld some information from the government and brought a qui tam action under the False Claims Act, or (3) sued to compel officials of the Maritime Administration to recover subsidies paid to carriers that violated section 810. Safir v. Blackwell, 579 F.2d 742, 747 (2d Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979). He now urges that he had and still has a further remedy, that is, a claim under section 810 to recover personally those subsidies paid to defendants during 1965 and 1966 that the government chose not to recover.

Section 810 does not explicitly afford this private remedy, and the question is whether it is implicit. See Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979) (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975)).

Section 810 provides:

It shall be unlawful for any contractor receiving an operating-differential subsidy ... to engage in any practice in concert with another carrier or carriers by water, which is unjustly discriminatory or unfair to any other citizen of the United States who operates a common carrier by water exclusively employing vessels registered under the laws of the United States.

46 U.S.C. § 1227. The section contains both a public remedy, that “[n]o payment or subsidy of any kind shall be paid directly or indirectly out of funds of the United States or any agency of the United States to any contractor or charterer who shall violate this section,” and a private remedy, that “[a]ny person who shall be injured in his business or property by reason of anything forbidden by this section may sue therefor ... and shall recover threefold the damages by him sustained.”

Where a statute expressly provides for particular remedies, the court is slow to read in others. TAMA, 444 U.S. at 19, 100 S.Ct. at 246. The court, unless it finds in the legislative history clear indications of a contrary congressional purpose, will conclude “that Congress provided precisely the remedies it considered appropriate.” Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981). The history of the Act shows no purpose to grant private litigants any right to claim money beyond the treble damages expressly provided.

During the Senate debate Senator O’Ma-honey discussed a subsidized American carrier that took part in putting an unsubsidized American carrier out of business. The injured carrier said that withdrawing the subsidy from the line engaging in anti-competitive conduct would enable it to compete. 80 Cong.Rec. 9921 (1936). The Senator then introduced an amendment, enacted as section 810, to make clear Congress’ intention not to pay subsidies to lines that acted to crush American competition. He said further that:

In order to give an opportunity to those who may be injured by illegal combinations of the kind I have described to protect themselves I have incorporated in this amendment the principle of section 4 of the Clayton Act which permits the victim of such unfair practices to sue for treble damages.

80 Cong.Rec. 10075-76 (1936).

Thus Congress focused on the matter of remedying victims and permitted them to bring suits for treble damages, while requiring the government to withhold current subsidies (thereby improving the competitive position of the victims). It is fair to assume that had Congress intended to allow private litigants to recover past subsidies Congress would have said so.

Although section 810 does not expressly authorize recovery by the Maritime Administration of subsidies paid in the past, the Court of Appeals for the Second Circuit allowed this remedy on the theory that the subsidy contracts authorized it. The court deemed this result consistent with the purposes of the Act and noted that “few complaints of violations will be received and acted on until after some further payments have already been made.” Safir I, 417 F.2d at 977.

But this expansion of the public remedy does not suggest that there should be an expansion of the private remedies. Neither plaintiff nor Sapphire Lines was a party to the subsidy contracts upon which the Maritime Administrator’s right to recover past subsidies was based. The remedy for treble damages presumably affords private litigants at least total relief. Moreover, to imply a private right to recover past subsidies would impair the purposes of the Act.

The policy of the Act is to foster development of the American merchant marine, 46 U.S.C. § 1101, by providing a new method of subsidizing American-flag ships to enable them to compete with foreign-flag lines. See Safir I, 417 F.2d at 976; 46 U.S.C. §§ 1101, 1119, 1151, 1171. The maritime officials must withhold current subsidies and may recover past subsidies when those subsidies are being or have been used to hurt rather than help competition. Safir I, 417 F.2d at 976. But the power to recover subsidies is expressly granted only to those officials. So that they can build up the merchant marine and aid the competitive position of victims of unlawful conduct, the maritime officials may recover all, some, or none of the subsidies paid in the past to carriers while violating section 810 and may resume subsidizing carriers that have returned “to the path of virtue.” See id. at 977-78; Safir II, 432 F.2d at 145 n. 2.

Private litigants need not consider the public interest. They may be expected to pursue their own advantage and to be, at best, indifferent to whether recovery of past subsidies would hinder the growth of the merchant marine. To permit plaintiff, who has been out of the shipping business for over fifteen years and allegedly has no intention of returning to it, to collect in excess of $3 billion (including interest and profits) from eight American-flag carriers actively engaged in international shipping would hardly foster the merchant marine. Cf. Safir I, 417 F.2d at 977.

Defendants’ motion to dismiss is granted. The court need not consider the other grounds for dismissal.

III

The first action arising from defendants’ pricing practices during 1965 and 1966 was filed in August 1966. This is the eleventh action concerning those practices. Defendants would like to be free from further law suits on the subject.

Under the All Writs Statute, 28 U.S.C. § 1651(a), the court may enjoin vexatious litigation. See Matter of Hartford Textile Corp., 681 F.2d 895, 897 (2d Cir. 1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1195, 75 L.Ed.2d 439 (1983). The court is satisfied that the time has come to grant relief to defendants. See In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984).

Not all of the suits against the defendants have been unsuccessful. The antitrust action for treble damages resulted in a $2.5 million settlement with the bankruptcy trustee of Sapphire Lines. Moreover, plaintiff succeeded in his suit to compel the Maritime Administration to recover subsidies paid to some defendants. But the courts have rejected most of his claims.

Plaintiff did not persuade the courts that section 810 required the maritime officials to recover all subsidies paid to carriers during the period of violation or any subsidies paid to non-competing carriers. He did not prevail in his contentions that the shipping lines were barred perpetually from receiving subsidies even after their unlawful conduct ceased or that disgorging all past subsidies was a prerequisite to receipt of further subsidies. He failed to persuade the courts that he was entitled to pursue a claim under the False Claims Act, that he had standing to appeal the Secretary of Commerce’s decision on the amount of subsidies properly recovered, that he may share in the government’s recovery of subsidies on a “common fund” theory, or that he has a private right of action to recover defendants’ profits or the subsidies paid to them. See generally Safir v. Blackwell, 579 F.2d 742; Safir v. Kreps, 551 F.2d 447 (D.C.Cir.), cert. denied, 434 U.S. 820, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977); Safir II, 432 F.2d 137; Safir I, 417 F.2d 972; Safir v. Klutznick, 526 F.Supp. 921 (D.D.C.1981), vacated sub nom. Safir v. Dole, 718 F.2d 475 (D.C.Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2389, 81 L.Ed.2d 347 (1984). He has continued to reassert many of these claims after their rejection.

Plaintiff has sought collateral relief pendente lite in most of his actions, including this one. Frequently he has . alleged that defendants were dissipating their assets to prevent him from satisfying potential multi-million dollar judgments. Accordingly he has moved to enjoin the sale of ships, stocks and other assets. He has sought to have the proceeds of sales and other funds placed in escrow, to enjoin a stockholders’ meeting, and to enjoin the government from paying subsidies and from approving a sale of stock in which neither the buyer nor seller was a defendant in plaintiff’s actions. See Defendants’ Motion for Permanent Injunctive Relief, Exhibits 1-22.

Defendants point out that a bankruptcy court denied plaintiff’s motion to enjoin the sale of stocks from one defendant to another and enjoined him from pursuing the application. He applied to the district court and court of appeals to stay the sale. Both applications were denied. See Exhibits 5-8. Another court denied his motion to enjoin a defendant from completing transactions with the Secretary of Commerce by stating: “However valid Mr. Safir’s suit may be, ... he may not use it to indiscriminately flail his opponents. This would not assist Mr. Safir and would only harm the maritime industry and the thousands of Americans dependent on the industry’s operations.” Safir v. Klutznick, 526 F.Supp. at 941. The courts have denied every one of these motions, which number over a dozen. But these failures have not deterred plaintiff from filing further motions seeking similar and sometimes identical ends.

Some of plaintiff’s applications seem a bit eccentric. He moved to dismiss an appeal, alleging that defendants and the maritime officials had engaged in a corrupt scheme to bribe President Nixon to defeat plaintiff’s litigation. See Exhibit 34. He also moved to have Judge MacKinnon of the District of Columbia circuit court recuse himself because the judge was allegedly President Nixon’s friend. See Exhibit 36. Both motions were denied. See Exhibits 36 and 37.

He sought to discover “Nixon tapes” and related documents on the theory that officials in the Nixon administration conspired with defendants to prevent him from vindicating his rights. Despite this court’s finding that these materials were not “germane,” see Exhibit 29 at 14, plaintiff filed several discovery motions and a subpoena on the Chief Archivist of the United States. All these attempts failed. See Exhibits 29-32. Along with his meritless motion in this action to enjoin a sale of a ship plaintiff served an oppressive subpoena which the court quashed. See Safir v. United States Lines, Inc., No. 85 C 0864 (E.D.N.Y. June 6, 1985).

In 1983 plaintiff filed petitions in the bankruptcy court to force four of the defendants into involuntary bankruptcy. Exhibit 26. Apparently his theory was that he was a creditor of defendants, since he was about to win from them enormous judgments which they would be unable to satisfy. Judge Whelan rejected plaintiff’s claims on several grounds and said:

[Mr. Safire’s various other litigation] does not give [him] the right to use the bankruptcy court as a forum to tie up legitimate ongoing businesses that anyway do not qualify for an involuntary petition in bankruptcy.
The abuse of the bankruptcy process I think is clear.

Exhibit 28 at 24. The court dismissed each action and awarded costs and attorneys’ fees to the debtor companies. Exhibits 27 and 28. Plaintiff, who insists he is penniless and unemployed, see Exhibit 33, has not paid these judgments.

Defendants fear that plaintiff’s lack of success in this action will not deter him from continuing to harass them with further actions, motions and petitions allegedly based on their conduct in 1965 and 1966. Unfavorable decisions have not deterred him in the past. For example, the Secretary of Commerce found that the lines that did not compete with Sapphire Lines violated section 810 only “technically” and were not required to refund any subsidies. Those companies nonetheless sought to set aside the decision “only to guard against the risk that Safir might induce the courts to attach some consequences to the otherwise innocuous determination of technical violation.” Safir v. Dole, 718 F.2d at 484. The court held that since plaintiff lacked power to do so, the risk that he would try to attach legal consequences to the finding of a technical violation was “non-existent.” Id. Yet, that is the very finding upon which plaintiff bases his complaint against the four non-competing carriers in this action. See Complaint at HU 1 and 2.

There seems to be little prospect that the dismissal of this action will mark the termination of plaintiffs 19-year campaign. He has boasted that his sole occupation is being “the world’s foremost litigator.” Exhibit 33 at 9.

Unless plaintiff is precluded from bringing further actions, he will likely continue to make meritless claims arising from defendants’ conduct almost twenty years ago. Litigious affinity alone does not support the grant of an injunction. But the court may issue an injunction when it becomes clear that “the courts are being used as a vehicle of harassment by a ‘knowledgeable and articulate experienced pro se litigant’ who asserts the same claims repeatedly in slightly altered guise.” Kane v. City of New York, 468 F.Supp. 586 (S.D. N.Y.), aff’d, 614 F.2d 1288 (2d Cir.1979). See also Castro v. United States, 584 F.Supp. 252 (D.P.R.1984).

Plaintiff’s record of resort to legal processes without serious regard for the merits of his claims, and in particular his propensity to make motions for relief pendente lite and to file bankruptcy petitions, suggest that his motive is largely to harass defendants. They say that their resources have been drained since they are unable to collect judgments against him for costs and attorneys’ fees. Moreover, some defendants claim their credit ratings have been damaged by the involuntary bankruptcy proceedings. If plaintiff’s objective is not success on the merits but hope of a settlement, such a benefit is “not even the sort that a decent system of law should tolerate.” Safir v. Dole, 718 F.2d at 480.

The assessment of costs and attorneys’ fees against plaintiff would apparently be futile. The rejection of his claims and chastisement by courts have not deterred him. The court will therefore issue an injunction to protect the defendants and the courts from further meritless litigation. See In re Martin-Trigona, 737 F.2d at 1262.

The court enjoins plaintiff permanently from (1) proceeding further in this action except to (a) seek appellate review by the court of appeals, (b) apply for certiorari to the Supreme Court, and (c) submit papers responding to applications, if any, by defendants and (2) instituting in any federal court, including bankruptcy courts, any new action, motion, petition or proceeding arising from or related to defendants’ pricing practices in 1965 and 1966 or their then receipt of merchant marine subsidies.

IV

Defendant Farrell Lines, Inc. moved for attorneys’ fees in connection with plaintiff’s motion for relief pendente lite. The court, since it issues an injunction based in part on defendants’ representations that plaintiff is “immune” from paying court costs, declines to award such fees. Should the Court of Appeals reverse the injunctive order, defendant may renew its request.

V

The court grants defendants’ motions for an order dismissing the complaint and issuing a permanent injunction, denies plaintiff’s motion for summary judgment, and denies the motion for attorneys’ fees. So ordered.