author: Per Curiam. Mr. Justice Douglas,

text:
    IOWA BEEF PACKERS, INC. v. THOMPSON et al.
    No. 70-286.
    Argued January 12, 1972
    Decided February 29, 1972

      Louis S. Goldberg argued the cause for petitioner. With him on the brief was P. L. Nymann.

      Raymond Edward Franck argued the cause and filed a brief for respondents.

      A. Raymond Randolph, Jr:, argued the cause pro hac vice for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Griswold and Richard F. Schubert.

   Per Curiam.

Respondents brought this suit in an Iowa District Court under § 16 (b) of the Fair Labor Standards Act, 52 Stat. 1069, as amended, 29 U. S. C. § 216 (b), to recover overtime compensation allegedly not paid by their petitioner employer in violation of the overtime provisions of the Act, 29 U. S. C. § 207 (a) (1). The District Court denied petitioner's motion to dismiss the action for failure of respondents to exhaust the grievance arbitration procedures provided in a collective-bargaining agreement between petitioner and respondents' union and awarded respondents the overtime claimed plus costs and attorneys’ fees. The Supreme Court of Iowa affirmed, 185 N. W. 2d 738 (1971). We granted certiorari, 404 U. S. 820 (1971).

The collective-bargaining agreement required petitioner to provide a lunch period for each employee no later than five hours from the start of an employee’s shift. Petitioner provided the lunch period but required the employees to remain on call during the period. Respondents did not choose, as perhaps under the contract was open to them, to make the requirement the basis of a grievance for alleged violation either of the lunch-period provision or of the hours-of-work provision, Art. VII, requiring time and one-half for hours worked over eight in any day or 40 in any week. They claimed instead that, because of the requirement, the Fair Labor Standards Act, as a matter of law, rendered the lunch period “work” time, whether or not actually worked, for' the purpose of determining whether petitioner violated its statutory obligation to pay overtime rates for work hours over 40 in any work week. See Armour & Co. v. Wantock, 323 U. S. 126 (1944). The grievance thus pertained not to an alleged violation of the agreement but to an alleged violation of the Fair Labor Standards Act.

In U. S. Bulk Carriers v. Arguelles, 400 U. S. 351 (1971), the Court held that a seaman could sue in federal court for wages under 46 U. S. C. § 596 without invoking grievance and arbitration procedures under a collective-bargaining agreement that provided for resolution of all disputes and grievances, not merely those based on alleged violations of the contract. We granted certiorari in this case to decide whether, similarly, employees may sue in court to recover overtime allegedly withheld in violation of the Fair Labor Standards Act, if their complaint of alleged statutory violation is also subject to resolution under grievance and arbitration provisions of a collective-bargaining agreement. It developed at oral argument, however, that the grievance and arbitration provisions, Art. XX of the collective-bargaining agreement involved in this case, do not have the broad scope of the procedures in Arguelles, but apply only to grievances “pertaining to a violation of the Agreement.” Moreover, the issues as presented by petitioner provide no occasion to address, and we intimate no view upon, the question whether, although the statutory claim is not subject to contract arbitration, pursuit of the statutory remedy is nevertheless barred because respondents might have made the requirement to be on call the basis of a grievance for alleged violation of the lunch period or overtime provision of the collective-bargaining agreement. In these circumstances, which were not fully apprehended at the time certiorari was granted, the writ of certiorari will be dismissed as improvidently granted. The Monrosa v. Carbon Black, Inc., 359 U. S. 180, 183 (1959).

It is so ordered.

Mr. Justice Douglas,

dissenting.

The arbitration clause in this collective agreement reaches “a grievance pertaining to a violation of the Agreement.” The agreement covered both the lunch period and overtime.

The Iowa Supreme Court held that “[t]he present controversy is undoubtedly arbitrable” under the collective agreement. Given the presumption favoring liberal construction of arbitration clauses, Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, 582-583, we should defer to that ruling. Even under that construction, it seems that a suit for overtime allegedly withheld in violation of the Fair Labor Standards Act, 29 U. S. C. §207 (a)(1) is maintainable. That would mean affirming the Iowa Supreme Court. U. S. Bulk Carriers v. Arguelles, 400 U. S. 351, which kept the courthouse door open, would seem to control this case.

An affirmance would follow, a fortiori, if this collective agreement be construed as not requiring arbitration of this FLSA claim. For then it would seem that the worker would have a choice to sue under the statute or to proceed to arbitration on his contractual claim arising out of the same dispute.

The petition, however, is not dismissed for those reasons but for a wholly different one. It is said that there was a requirement to be “on call” and that that duty conflicted with the lunch or overtime provisions of the agreement. The difficulty is twofold: there was no “on call” grievance ever tendered so far as the record shows; moreover, the agreement concededly does not cover any “on call” requirement or duty. So there is no conflict between statutory remedy and remedy by arbitration and the difficulty posed is imaginary.

We should “dismiss as improvidently granted” only in exceptional situations and where all nine members of the Court agree. In all other cases the merits of the controversy should be decided. The present case on its facts is simple and uncomplicated; and a decision on the merits is apparently important to unions and employer alike.

       Article XIV, § 1, states:
      “A lunch period shall be provided no later than five (5) hours from the start of an employee’s shift, except when the shift does not exceed five and one-half (5%) hours.” '

       Article VII, §3, states:
      “Time and one-half (1%) will be paid for hours worked in excess of eight (8) in any day. Time and one-half (1%) will be paid for all hours worked in excess of forty (40) in any one week.”

       The Iowa Supreme Court properly stated:
      “We doubt that the general Congressional intent favoring arbitration can stand against the specific Congressional intent which is manifest in the Fair Labor Standards Act provisions giving employees strong and detailed rights in court. We think Congress intended that workmen should have free access to the courts in FLSA cases. We are the more persuaded of that view by the broad Congressional policy expressed in § 2 of FLSA, 29 U. S. C. A. § 202. There the objectives of the act are set forth, and those objectives encompass more than simply wage relief for employees; they include broad economic considerations — improvement in commerce among the states. The remedies provided by the act are part of the Congressional scheme to obtain employer compliance with the act and hence achievement of those broader objectives. We believe that if Congressional intent to allow a seaman to arbitrate or sue at his option is manifest in the seaman’s act involved in Arguelles, as the Court held there, then an intent to give workmen such an option is also manifest in the Fair Labor Standards Act.” 185 N. W. 2d 738, 742.


source: Caselaw Access Project

author: Mr. Justice White

license: Public Domain

text:
    FEDERAL TRADE COMMISSION v. SPERRY & HUTCHINSON CO.
    No. 70-70.
    Argued November 15, 1971
    Decided March 1, 1972

      White, J., delivered the opinion of the Court, in which ali Members joined except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case.

      Assistant Attorney General McLaren argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Harold D. Rhynedance, Jr., Karl H. Buschmann, and Richard H. Stern.

      Harold L. Russell argued the cause for respondent. With him on the brief were Samuel K. Abrams, Claus Motulsky, J. Sam Winters, Alan R. Wentzel, and Wayne T. Elliott.

   Mr. Justice White

delivered the opinion of the Court.

In June 1968 the Federal Trade Commission held that the largest and oldest company in the trading stamp industry, Sperry & Hutchinson (S&H), was violating § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. §45 (a)(1), in three respects. The Commission found that S&H improperly regulated the maximum rate at which trading stamps were dispensed by its retail licensees; that it combined with others to regulate the rate of stamp dispensation throughout the industry; and that it attempted (almost invariably successfully) to suppress the operation of trading stamp exchanges and other “free and open” redemption of stamps. The Commission entered cease- and-desist orders accordingly.

S&H appealed only the third of these orders. Before the Court of Appeals for the Fifth Circuit it conceded that it acted as the Commission found, but argued that its conduct is beyond the reach of § 5 of the Act. That section provides, in pertinent part, that:

“The Commission is empowered and directed to prevent persons, partnerships, or corporations . . . from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” 15 U. S. C. §45 (a)(6).

As S&H sees it, § 5 empowers the Commission to restrain only such practices as are either in violation of the antitrust laws, deceptive, or repugnant to public morals. In S&H’s view, its practice of successfully prosecuting stamp exchanges in state and federal courts cannot be restrained under any of these theories.

The Court of Appeals for the Fifth Circuit agreed and reversed the Commission, Judge Wisdom dissenting. 432 F. 2d 146 (1970). In the lower court’s view:

“To be the type of practice that the Commission has the power to declare 'unfair’ the act complained of must fall within one of the following types of violations: (1) a per se violation of antitrust policy; (2) a violation of the letter of either the Sherman, Clayton, or Robinson-Patman Acts; or (3) a violation of the spirit of these Acts as recognized by the Supreme Court of the United States.” Id., at 150 (footnote omitted).

Holding that the FTC had not demonstrated that S&H’s conduct violated either the letter or the spirit of the antitrust laws, the Court of Appeals vacated the Commission’s order.

The FTC petitioned for review in this Court. We granted certiorari to determine the questions presented in the petition. 401 U. S. 992 (1971).

I

The Challenged Conduct

S&H has been issuing trading stamps — small pieces of gummed paper about the size of postage stamps— since 1896. In 1964, the year from which data in this litigation are derived, the company had about 40% of the business in an industry that annually issued 400 billion stamps to more than 200,000 retail establishments for distribution in connection with retail sales of some 40 billion dollars. In 1964, more than 60% of all American consumers saved S&H Green Stamps.

In the normal course, the trading stamp business operates as follows. S&H sells its stamps to retailers, primarily to supermarkets and gas stations, at a cost of about $2.65 per 1200 stamps; retailers give the stamps to consumers (typically at a rate of one for each 100 worth of purchases) as a bonus for their patronage; consumers paste the stamps in books of 1,200 and exchange the books for “gifts” at any of 850 S&H Redemption Centers maintained around the country. Each book typically buys between $2.86 and $3.31 worth of merchandise depending on the location of the redemption center and type of goods purchased. Since its development of this cycle 75 years ago, S&H has sold over one trillion stamps and redeemed approximately 86% of them.

A cluster of factors relevant to this litigation tends to disrupt this cycle and, in S&H’s view, to threaten its business. An incomplete book has no redemption value. Even a complete book is of limited value because most “gifts” may be obtained only on submission of more than one book. For these reasons a collector of another type of stamps who has acquired a small number of green stamps may benefit by exchanging with a green stamp collector who has opposite holdings and preferences. Similarly, because of the seasonal usefulness or immediate utility of an object sought, a collector may want to buy stamps outright and thus put himself in a position to secure redemption merchandise immediately though it is “priced” beyond his current stamp holdings. Or a collector may seek to sell his stamps in order to use the resulting cash to make more basic purchases (food, shoes, etc.) than redemption centers normally provide.

Periodically over the past 70 years professional exchanges have arisen to service this demand. Motivated by the prospect of profit realizable as a result of serving as middlemen in swaps, the exchanges will sell books of S&H stamps previously acquired from consumers, or, for a fee, will give a consumer another company’s stamps for S&H’s or vice versa. Further, some regular merchants have offered discounts on their own goods in return for S&H stamps. Retailers do this as a means of competing with merchants in the area who issue stamps. By offering a price break in return for stamps, the redeeming merchant replaces the incentive to return to the issuing merchant (to secure more stamps so as to be able to obtain a gift at a redemption center) with the attraction of securing immediate benefit from the stamps by exchanging them for a discount at his store.

S&H fears these activities because they are believed to reduce consumer proclivity to return to green-stamp-issuing stores and thus lower a store’s incentive to buy and distribute stamps. The company attempts to pre-empt “trafficking” in its stamps by contractual provisions reflected in a notice on the inside cover of every S&H stamp book. The notice reads:

“Neither the stamps nor the books are sold to merchants, collectors or any other persons, at all times the title thereto being expressly reserved in the Company .... The stamps are issued to you as evidence of cash payment to the merchants issuing the same. The only right which you acquire in said stamps is to paste them in books like this and present them to us for redemption. You must not dispose of them or make any further use of them without our consent in writing. We will in every case where application is made to us give you permission to turn over your stamps to any other bona-fide collector of S&H Green . . . Stamps; but if the stamps or the books are transferred without our consent, we reserve the right to restrain their use by, or take them from other parties. It is to your interest that you fill the book, and personally derive the benefits and advantages of redeeming it.” (Reproduced at 2 App. 230.)

S&H makes no effort to enforce this condition when consumers casually exchange stamps with each other, though reportedly some 20%' of all the company's stamps change hands in this manner. But S&H vigorously moves against unauthorized commercial exchanges and redeemers. Between 1957 and 1965, by its own account the company filed for 43 injunctions against merchants who redeemed or exchanged its stamps without authorization, and it sent letters threatening legal action to 140 stamp exchanges and 175 businesses that redeemed S&H stamps. In almost all instances the threat or the reality of suit forced the businessmen to abandon their unauthorized practices.

II

The Reach of Section 5

The Commission presented two questions in its petition for certiorari, the first being “[w]hether Section 5 of the Federal Trade Commission Act, which directs the Commission to prevent ‘unfair methods of competition . . . and unfair or deceptive acts or practices,’ is limited to conduct which violates the letter or spirit of the antitrust laws.” The other issue relates to the significance of state court holdings that the practices challenged here are lawful. Neither question requests review of the Court of Appeals’ decision that the business conduct proscribed by the Commission violates neither the letter nor spirit of the antitrust laws. Accordingly, we intimate no opinion on that issue and turn to the question of the reach of § 5.

In reality, the question is a double one: First, does § 5 empower the Commission to define and proscribe an unfair competitive practice, even though the practice does not infringe either the letter or the spirit of the antitrust laws? Second, does § 5 empower the Commission to proscribe practices as unfair or deceptive in their effect upon consumers regardless of their nature or quality as competitive practices or their effect on competition? We think the statute, its legislative history, and prior cases compel an affirmative answer to both questions.

When Congress created the Federal Trade Commission in 1914 and charted its power and responsibility under § 5, it explicitly considered, and rejected, the notion that it reduce the ambiguity of the phrase “unfair methods of competition” by tying the concept of unfairness to a common-law or statutory standard or by enumerating the particular practices to which it was intended to apply. Senate Report No. 597, 63d Cong., 2d Sess., 13 (1914), presents the reasoning that led the Senate Committee to avoid the temptations of precision when framing the Trade Commission Act:

“The committee gave careful consideration to the question as to whether it would attempt to define the many and variable unfair practices which prevail in commerce and to forbid their continuance or whether it would, by a general declaration condemning unfair practices, leave it to the commission to determine what practices were unfair. It concluded that the latter course would be the better, for the reason, as stated by one of the representatives of the Illinois Manufacturers’ Association, that there were too many unfair practices to define, and after writing 20 of them into the law it would be quite possible to invent others.”

The House Conference Report was no less explicit. “It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known unfair practices were specifically defined and prohibited, it would be at once necessary to begin over again. If Congress were to adopt the method of definition, it would undertake an endless task.” H. R. Conf. Rep. No. 1142, 63d Cong., 2d Sess., 19 (1914). See also Rublee, The Original Plan and Early History of the Federal Trade Commission, 11 Acad. Pol. Sci. Proc. 666, 667 (1926); Baker & Baum, Section 5 of the Federal Trade Commission Act: A Continuing Process of Redefinition, 7 Vill. L. Rev. 517 (1962).

Since the sweep and flexibility of this approach were thus made crystal clear, there have twice been judicial attempts to fence in the grounds upon which the FTC might rest a finding of unfairness. In FTC v. Gratz, 253 U. S. 421 (1920), the Court over the strong dissent of Mr. Justice Brandéis (who had been involved in drafting the Trade Commission Act), wrote that while the “exact meaning” of the phrase “ ‘unfair method of competition’... is in dispute,” the only practices that were subject to this characterization were those that were “heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.” Id., at 427. This view was reiterated in other opinions over the next decade. See, e. g., FTC v. Curtis Publishing Co., 260 U. S. 568 (1923), and FTC v. Sinclair Refining Co., 261 U. S. 463, 475-476 (1923). The opinion of the Court of Appeals’ majority, citing Sinclair in support of its narrow view of the FTC’s leeway, is in the tradition of these authorities.

In FTC v. Raladam Co., 283 U. S. 643 (1931), a unanimous Court held that: “The paramount aim of the act is the protection of the public from the evils likely to result from the destruction of competition or the restriction of it in a substantial degree .... Unfair trade methods are not per se unfair methods of competition.” (Italics in original.) “It is obvious,” the Court continued,

“that the word ‘competition’ imports the existence of present or potential competitors, and the unfair methods must be such as injuriously affect or tend thus to affect the business of these competitors— that is to say, the trader whose methods are assailed as unfair must have present or potential rivals in trade whose business will be, or is likely to be, lessened or otherwise injured. It is that condition of affairs which the Commission is given power to correct, and it is against that condition of affairs, and not some other, that the Commission is authorized to protect the public. ... If broader powers be desirable they must be conferred by Congress.” Id., at 647-649.

Neither of these limiting interpretations survives to buttress the Court of Appeals’ view of the instant case. Even if the first fine of cases, Gratz and its progeny, stood unimpaired, their deference to action taken to constrain “deception, bad faith, fraud or oppression” would grant the FTC greater power to set right what it perceives as wrong than the panel of the Court of Appeals acknowledges. But frequent opportunity for reconsideration has consistently and emphatically led this Court to the view that the perspective of Gratz is too confined. As we recently unanimously observed: “Later cases of this Court . . . have rejected the Gratz view and it is now recognized in line with the dissent of Mr. Justice Brandéis in Gratz that the Commission has broad powers to declare trade practices unfair.” FTC v. Brown Shoe Co., 384 U. S. 316, 320-321 (1966).

The leading case that recognized a role for the FTC beyond that mapped out in Gratz, FTC v. R. F. Keppel & Bro., Inc., 291 U. S. 304 (1934), also brought Raladam into question; on both counts it sets the standard by which the range of FTC jurisdiction is to be measured today. Keppel & Brothers sold penny candies in “break and take” packs, a form of merchandising that induced children to buy lesser amounts of concededly inferior candy in the hope of by luck hitting on bonus packs containing extra candy and prizes. The FTC issued a cease-and-desist order under § 5 on the theory that the popular marketing scheme contravened public policy insofar as it tempted children to gamble and compelled those who would successfully compete with Keppel to abandon their scruples by similarly tempting children.

The Court had no difficulty in sustaining the FTC’s conclusion that the practice was “unfair,” though any competitor could maintain his position simply by adopting the challenged practice. “[H]ere,” the Court said, “the competitive method is shown to exploit consumers, children, who are unable to protect themselves .... [I]t is clear that the practice is of the sort which the common law and criminal statutes have long deemed contrary to public policy.” Id., at 313.

En route to this result the Court met Keppel’s arguments that, absent an antitrust violation or at least incipient injury to competitors, Gratz and Raladam so strait jacketed the FTC that the Commission could not issue a cease-and-desist order proscribing even an immoral practice. It held:

“Neither the language nor the history of the Act suggests that Congress intended to confine the forbidden methods to fixed and unyielding categories. The common law afforded a definition of unfair competition and, before the enactment of the Federal Trade Commission Act, the Sherman Act had laid its inhibition upon combinations to restrain or monopolize interstate commerce which the courts had construed to include restraints upon competition in interstate commerce. It would not have been a difficult feat of draftsmanship to have restricted the operation of the Trade Commission Act to those methods of competition in interstate commerce which are forbidden at common law or which are likely to grow into violations of the Sherman Act, if that had been the purpose of the legislation.” Id., at 310.

Thenceforth, unfair competitive practices were not limited to those likely to have anticompetitive consequences after the manner of the antitrust laws; nor were unfair practices in commerce confined to purely competitive behavior.

The perspective of Keppel, displacing that of Rala-dam, was legislatively confirmed when Congress adopted the 1938 Wheeler-Lea amendment, 52 Stat. Ill, to § 5. The amendment added the phrase “unfair or deceptive acts or practices” to the section’s original ban on “unfair methods of competition” and thus made it clear that Congress, through § 5, charged the FTC with protecting consumers as well as competitors. The House Report on the amendment summarized congressional thinking: “[T]his amendment makes the consumer, who may be injured by an unfair trade practice, of equal concern, before the law, with the merchant or manufacturer injured by the unfair methods of a dishonest competitor.” H. R. Rep. No. 1613, 75th Cong., 1st Sess., 3 (1937). See also S. Rep. No. 1705, 74th Cong., 2d Sess., 2-3 (1936).

Thus, legislative and judicial authorities alike convince us that the Federal Trade Commission does not arrogate excessive power to itself if, in measuring a practice against the elusive, but congressionally mandated standard of fairness, it, like a court of equity, considers public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws.

III

The general conclusion just enunciated requires us to hold that the Court of Appeals erred in its construction of § 5 of the Federal Trade Commission Act. Ordinarily we would simply reverse the judgment of the Court of Appeals insofar as it limited the unfair practices proscribed by § 5 to those contrary to the letter and spirit of the antitrust laws and we would remand the case for consideration of whether the challenged practices, though posing no threat to competition within the precepts of the antitrust laws, are nevertheless either (1) unfair methods of competition or (2) unfair or deceptive acts or practices.

What we deem to be proper concerns about the interaction of administrative agencies and the courts, however, counsels another course in this case. In this Court the Commission argues that, however correct the Court of Appeals may be in holding the challenged S&H practices beyond the reach of the letter or spirit of the antitrust laws, the Court of Appeals nevertheless erred in asserting that the FTC could measure and ban conduct only according to such narrow criteria. Proceeding from this premise, with which we agree, the Commission’s major submission is that its order is sustainable as a proper exercise of its power to proscribe practices unfair to consumers. Its minor position is that it also properly found S&H’s practices to be unfair competitive methods apart from their propriety under the antitrust laws.

The difficulty with the Commission’s position is that we must look to its opinion, not to the arguments of its counsel, for the underpinnings of its order. “Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.” Investment Co. Institute v. Camp, 401 U. S. 617, 628 (1971). We cannot read the FTC opinion on which the challenged order rests as premised on anything other than the classic antitrust rationale of restraint of trade and injury to competition.

The Commission urges reversal of the Court of Appeals and approval of its own order because, in its words, “[t]he Act gives the Commission comprehensive power to prevent trade practices which are deceptive or unfair to consumers, regardless of whether they also are anticompetitive.” Brief for the FTC 15. It says the Court of Appeals was “wrong in two ways: you can have an anticompetitive impact that is not a violation of the antitrust laws and violate Section 5. You can also have an impact upon consumers without regard to competition and you can uphold a Section 5 violation on that ground.” Tr. of Oral Arg. 18. Though completely accurate, these statements cannot be squared with the Commission’s holding that “[i]t is essential in this matter, we believe, and as we have heretofore indicated, to determine whether or not there has been or may be an impairment of competition,” Opinion of Commission, 1 App. 175; its conclusion that “ [respondent . . . prevents . . . competitive reaction [s] and thereby it has restrained trade. We believe this is an unfair method of competition and an unfair act and practice in violation of Section 5 of the Federal Trade Commission Act and so hold,” 1 App. 178; its observation that:

“Respondent’s individual acts and its acts with others taken to suppress trading stamp exchanges and other stamp redemption activity are all part of a clearly defined restrictive policy pursued by the respondent. In the circumstances surrounding this particular practice it is difficult to wholly separate the individual acts from the collective acts for the purpose of making an analysis of the consequences under the antitrust laws.” 1 App. 179;

and like statements throughout the opinion, see, e. g., 1 App. 176-178, passim.

There is no indication in the Commission’s opinion that it found S&H’s conduct to be unfair in its effect on competitors because of considerations other than those at the root of the antitrust laws. For its part, the theory that the FTC’s decision is derived from its concern for consumers finds support in only one line of the Commission’s opinion. The Commission’s observation that S&H’s conduct limited “stamp collecting consumers’ . .. freedom of choice in the disposition of trading stamps,” 1 App. 176, will not alone support a conclusion that the FTC has found S&H guilty of unfair practices because of damage to consumers.

Arguably, the Commission’s findings, in contrast to its opinion, go beyond concern with competition and address themselves to noncompetitive and consumer injury as well. It may also be that such findings would have evidentiary support in the record. But even if the findings were considered to be adequate foundation for an opinion and order resting on unfair consequences to consumer interests, they still fail to sustain the Commission action; for the Commission has not rendered an opinion which, by the route suggested, links its findings and its conclusions. The opinion is barren of any attempt to rest the order on its assessment of particular competitive practices or considerations of consumer interests independent of possible or actual effects on competition. Nor were any standards for doing so referred to or developed.

Our view is that “the considerations urged here in support of the Commission’s order were not those upon which its action was based.” SEC v. Chenery Corp., 318 U. S. 80, 92 (1943). At the least the Commission has failed to “articulate any rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U. S. 156, 168 (1962).

The Commission’s action being flawed in this respect, we cannot sustain its order. “[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” Chenery, supra, at 94. Burlington Truck Lines, supra, at 169. A court cannot label a practice “unfair” under 15 U. S. C. § 45 (a)(1). It can only affirm or vacate an agency’s judgment to that effect. “If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it .has not made, a judicial judgment cannot be made to do service for an administrative judgment.” Chenery, supra, at 88. And as was repeated on other occasions:

“For the courts to substitute their or counsel’s discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197), the administrative process, for the purpose of the rule is to avoid ‘propel [ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ 332 U. S., at 196.” Burlington Truck Lines, supra, at 169.

In these circumstances, because the Court of Appeals’ judgment that S&H’s practices did not violate either the letter or the spirit of the antitrust laws was not attacked and remains undisturbed here, and because the Comm ission’s order could not properly be sustained on other grounds, the judgment of the Court of Appeals setting aside the Commission’s order is affirmed. The Court of Appeals erred, however, in its construction of § 5; had it entertained the proper view of the reach of the section, the preferable course would have been to remand the case to the Commission for further proceedings. Chenery, supra, at 95; Burlington, supra, at 174; FPC v. United Gas Pipe Line Co., 393 U. S. 71 (1968). Accordingly, the judgment of the Court of Appeals is modified to this extent and the case is remanded to the Court of Appeals with instructions to remand it to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate.

So ordered.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

       On the nature of the industry, see generally Comment, Trading Stamps, 37 N. Y. U. L. Rev. 1090 (1962). The Commission proceedings in the instant case are discussed in Comment, The Attack on Trading Stamps — An Expanded Use of Section 5 of the Federal Trade Commission Act, 57 Geo. L. J. 1082 (1969).

       Often merchandise obtained by redemption is used as a gift.

       The efforts of some retailers to reissue S&H stamps are not involved in this case. The FTC explicitly left S&H free to seek injunctions against reissuance. 1 App. 169.

       Though the Court of Appeals referred to state and federal court decisions that approved S&H’s practice, our reading of its opinion leaves no doubt that it did not reverse the FTC order on the erroneous theory that such determinations might foreclose a contrary FTC § 5 decision. We therefore put aside the Government's second question as irrelevant and focus on its first contention.

       The Commission has described the factors it considers in determining whether a practice that is neither in violation of the antitrust laws nor deceptive is nonetheless unfair:
      “(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law,

        statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).” Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed. Reg. 8355 (1964).
      S&H argues that a later portion of this statement commits the FTC to the view that misconduct in respect of the third of these criteria is not subject to constraint as “unfair” absent a concomitant showing of misconduct according to the first or second of these criteria. But all the FTC said in the statement referred to was that “[t]he wide variety of decisions interpreting the elusive concept of unfairness at least makes clear that a method of selling violates Section 5 if it is exploitive or inequitable and if, in addition to being morally objectionable, it is seriously detrimental to consumers or others.” Ibid, (emphasis added).

       The Commission did explicitly decline to assess S&H’s conduct in light of one leading antitrust case. In United States v. Arnold, Schwinn & Co., 388 U. S. 365, 379 (1967), this Court held that: “Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it. White Motor [v. United States, 372 U. S. 253 (1963)]; Dr. Miles [Medical Co. v. Park & Sons Co., 220 U. S. 373 (1911)]. Such restraints are so obviously destructive of competition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale.”
      Arguably, S&H’s practice is proscribed by this doctrine. When the FTC declined to rely on this precedent, however, it did so not to turn to considerations other than those embedded in the antitrust laws, but instead to look for considerations less “technical” and more deeply rooted in antitrust policy:
      “We do not believe it appropriate to decide the broad competitive questions presented in this record on the narrow and technical basis of a restraint on alienation. The circumstances here are much different from that where products are transferred to a dealer for resale. They are complicated by the nature of the trading stamp scheme. It is essential in this matter, we believe, and as we have heretofore indicated, to determine whether or not there has been or may be an impairment of competition. Thus, we intend to look at the substance of the allegedly illegal practice rather than to decide the case by application of a technical formula.” 1 App. 175-176.


author: Mr. Justice Makshall Mr. Justice Douglas, Mr. Justice Brennan,

text:
    HAWAII v. STANDARD OIL CO. OF CALIFORNIA et al.
    No. 70-49.
    Argued October 21, 1971
    Decided March 1, 1972
    Maeshall, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 266. Brennan, J., filed a dissenting opinion, in which Douglas, J., joined post, p. 270. Powell and Rehnquist, JJ., took no part in the consideration or decision of the case.

      Maxwell M. Blecher argued the cause for petitioner. With him on the briefs were Bertram Kanbara, Attorney General of Hawaii, Hiromu Suzawa, Acting Attorney General, George Pai, Deputy Attorney General, Joseph L. Alioto, and Peter J. Dormid.

      Francis B. Kirkham argued the cause for respondents. With him on the brief were Richard J. MacLaury, Moses Lasky, Malcolm T. Dungan, and William Simon.

    Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General of California, and Anthony C. Joseph, Robert Murphy, Herbert Davis, Michael I. Spiegel, and Carole A. Kornblum, Deputy Attorneys General, for the State of California, and by the Attorneys General and other oficiáis for their respective States and jurisdictions as follows: William T. Baxley, Attorney General of Alabama, Gary K. Nelson, Attorney General of Arizona, Ray Thornton, Attorney General of Arkansas, Duke W. Dunbar, Attorney General of Colorado, Robert K. Killian, Attorney General of Connecticut, W. Laird Stabler, Jr., Attorney General of Delaware, Robert L. Shevin, Attorney General of Florida, W. Anthony Park, Attorney General of Idaho, William J. Scott, Attorney General of Illinois, Richard C. Turner, Attorney General of Iowa, Vern Miller, Attorney General of Kansas, John B. Breckinridge, Attorney General of Kentucky, Jack P. F. Gremillion, Attorney General of Louisiana, James S. Erwin, Attorney General of Maine, Robert H. Quinn, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Warren Spannaus, Attorney General of Minnesota, John C. Danforth, Attorney General of Missouri, Robert L. Woodahl, Attorney General of Montana, Robert List, Attorney General of Nevada, Warren B. Rudman, Attorney General of New Hampshire, George F. Kugler, Jr., Attorney General of New Jersey, David L. Nor veil, Attorney General of New Mexico, Louis J. Lefkowitz, Attorney General of New York, Helgi Johanneson, Attorney General of North Dakota, William J. Brown, Attorney General of Ohio, Larry Derryberry, Attorney General of Oklahoma, Richard J. Israel, Attorney General of Rhode Island, Gordon Mydland, Attorney General of South Dakota, David M. Pack, Attorney General of Tennessee, Crawford C. Martin, Attorney General of Texas, Vernon B. Romney, Attorney General of Utah, James M. Jeffords, Attorney General of Vermont, Andrew P. Miller, Attorney General of Virginia, Slade Gorton, Attorney General of Washington, Chauncey H. Browning, Jr., Attorney General of West Virginia, Robert W. Warren, Attorney General, and George F. Sieker, Assistant Attorney General, of Wisconsin, and J. Lee Rankin of the City of New York.
   Mr. Justice Makshall

delivered the opinion of the Court.

The issue presented by this case is whether § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, authorizes a State to sue for damages for an injury to its economy allegedly attributable to a violation of the antitrust laws of the United States. We hold that it does not.

I. Procedural History

Hawaii filed its initial complaint on April 1, 1968, against three of the four respondents. On May 24, 1968, and again on August 19, 1968, Hawaii filed amended complaints. The third amended complaint, filed on September 6, 1968, raised for the first time the issue presented herein. That complaint named all four respondents as defendants and charged them with violating the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1, in the following ways: by entering into unlawful contracts; by conspiring and combining to restrain trade and commerce in the sale, marketing, and distribution of refined petroleum products; and by attempting to monopolize and actually monopolizing said trade and commerce. The State sought to recover damages in three distinct capacities: in its proprietary capacity for overcharges for petroleum products sold to the State itself (first count); as parens patriae for similar overcharges paid by the citizens of the State (second count); and as the representative of the class of all purchasers in Hawaii for identical overcharges (third count).

The second count read, in relevant part:

“18. The above-named plaintiff [Hawaii], [acts] in its capacity as parens patriae, and/or as trustee for the use of its citizens who purchased refined petroleum products, from any defendant or co-conspirator herein ....
“19. The unlawful contracts, combination, conspiracy in restraint of trade, unlawful combination and conspiracy to monopolize, and monopolization have resulted in the plaintiff, . . . and in its citizens, paying more for refined petroleum products than would have been paid in a freely operating competitive market. Plaintiff has not yet ascertained the precise extent of said damage to itself and its citizens, however, when said amount has been ascertained, plaintiff will ask leave of Court to insert said sum herein.”

Very similar language appeared in the class-action count. In all three counts, the State sought both injunctive and monetary relief.

After each of the respondents moved to dismiss the second and third counts of the complaint, the District Court held a hearing to determine the propriety of the State’s suing on behalf of its citizens. With respect to count two, the court held that Hawaii “has not even alleged an interest in its citizens’ claims, much less interest of its own aside from the State’s proprietary rights,” and granted the motions to dismiss. Viewing the class action as being “overlapping, parallel and/or alternative to” the parens patriae claim, the court dismissed the third count as well.

Hawaii filed its fourth amended complaint on February 27, 1969. This is the complaint with which we are concerned. Count one contains a reiteration of Hawaii’s claim that in its proprietary capacity the State paid an excessive price for the petroleum products that it purchased from respondents. Count two states a new parens patriae claim, and count three is drawn as a class action.

The parens patriae claim is stated in the following manner:

“19. The State of Hawaii, acting through its Attorney General, brings this action by virtue of its duty to protect the general welfare of the State and its citizens, acting herein as parens patriae, trustee, guardian and representative of its citizens, to recover damages for, and secure injunctive relief against, the violations of the antitrust laws hereinbefore alleged.
“20. The unlawful contracts, combination and conspiracy in restraint of trade, unlawful combination and conspiracy to monopolize and monopolization, hereinbefore alleged, have injured and adversely affected the economy and prosperity of the State of Hawaii in, among others, the following ways:
“(a) revenues of its citizens have been wrongfully extracted from the State of Hawaii;
“(b) taxes affecting the citizens and commercial entities have been increased to affect such losses of revenues and income;
“(c) opportunity in manufacturing, shipping and commerce have [sic] been restricted and curtailed;
“(d) the full and complete utilization of the natural wealth of the State has been prevented;
“(e) the high cost of manufacture in Hawaii has precluded goods made there from equal competitive access with those of other States to the national market;
“(f) measures taken by the State to promote the general progress and welfare of its people have been frustrated;
“(g) the Hawaii economy has been held in a state of arrested development.
“21. Plaintiff has not yet ascertained the precise extent of said damage to itself and its citizens; however, when said amount has been ascertained, plaintiff will ask leave of Court to insert said sum herein.”

The class-action count is similar to that in the third amended complaint. As in the previous complaint, Hawaii seeks both injunctive and monetary relief in each count.

Respondents moved to dismiss the second and third counts, and hearing was again had in the District Court. The class action was dismissed by the court on the ground that “under the circumstances . . . , the class action based upon the injury to every individual purchaser of gasoline in the State, ... in the context of the pleadings, would be unmanageable.” In a rather extensive opinion, the court examined the law that has developed concerning suits by a State as parens patriae and denied the motions to dismiss the second count. 301 F. Supp. 982 (1969). Recognizing that the state of the law was unclear, the District Court certified its decision denying the motions to dismiss for an interlocutory appeal pursuant to 28 U. S. C. § 1292 (b). On appeal, the United States Court of Appeals for the Ninth Circuit reversed the decision of the District Court and directed that the second count of the complaint be dismissed. 431 F. 2d 1282 (1970). Certiorari was granted so that we might review this decision. 401 U. S. 936 (1971).

II. The State as Parens Patriae

The concept of parens patriae is derived from the English constitutional system. As the system developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the “royal prerogative.” Malina & Blechman, Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 65 Nw. U. L. Rev. 193, 197 (1970) (hereinafter Malina & Blech-man) ; State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Col. J. L. & Soc. Prob. 411, 412 (1970) (hereinafter State Protection). These powers and duties were said to be exercised by the King in his capacity as “father of the country.” Traditionally, the term was used to refer to the King’s power as guardian of persons under legal disabilities to act for themselves. For example, Blackstone refers to the sovereign or his representative as “the general guardian of all infants, idiots, and lunatics,” and as the superintendent of “all charitable uses in the kingdom.” In the United States, the “royal prerogative” and the “parens patriae” function of the King passed to the States.

The nature of the parens patriae suit has been greatly expanded in the United States beyond that which existed in England. This expansion was first evidenced in Louisiana v. Texas, 176 U. S. 1 (1900), a case in which the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana merchants from sending goods into Texas. This Court recognized that Louisiana was attempting to sue, not because of any particular injury to a business of the State, but as parens patriae for all her citizens. 176 U. S., at 19. While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized.

This Court’s acceptance of the notion of parens patriae suits in Louisiana v. Texas was followed in a series of cases: Missouri v. Illinois, 180 U. S. 208 (1901) (holding that Missouri was permitted to sue Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River); Kansas v. Colorado, 206 U. S. 46 (1907) (holding that Kansas was permitted to sue as parens patriae to enjoin the diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties); New York v. New Jersey, 256 U. S. 296 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor); Pennsylvania v. West Virginia, 262 U. S. 553 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); and North Dakota v. Minnesota, 263 U. S. 365 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream).

These cases establish the right of a State to sue as parens patriae to prevent or repair harm to its “quasi-sovereign” interests. They deal primarily with original suits brought directly in this Court pursuant to Art. Ill, § 2, of the Constitution under common-law rights of action. The question in this case is not whether Hawaii may maintain its lawsuit on behalf of its citizens, but rather whether the injury for which it seeks to recover is compensable under § 4 of the Clayton Act. Hence, Hawaii’s claim cannot be resolved simply by reference to any general principles governing parens patriae actions.

The only time this Court has ever faced the question of what relief, if any, the antitrust laws offer a State suing as parens patriae was in Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945), the case relied on most heavily by the parties herein. In that case, Georgia sought to invoke the original jurisdiction of this Court by filing an amended bill of complaint against 20 railroads, alleging, in essence, that the railroads had conspired to restrain trade and to fix prices in a manner that would favor shippers in other States (particularly Northern States) to the detriment of Georgia shippers.

Like this suit, Georgia arose under the federal antitrust laws. It is plain from the face of the complaint that “[t]he prayer [was] for damages and for in-junctive relief.” 324 U. S., at 445. See id., at 446-447, 450-451. Georgia claimed that the conspiracy had severely damaged its economy and sought to recover damages on behalf of its citizens.

The Court upheld Georgia’s claim as parens patriae with respect to injunctive relief, but had no occasion to consider whether the antitrust laws also authorized damages for an injury to the State’s economy, since approval of the challenged rates by the Interstate Commerce Commission barred a damage recovery on the ground that such a remedy would have given Georgia shippers an unfair advantage over shippers from other States. See Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156 (1922). Nowhere in Georgia did the Court address itself to the question whether § 4 of the Clayton Act authorizes damages for an injury to the general economy of a State. Thus, the question presented here is open.

III. Hawaii and the Antitrust Laws

Hawaii grounds its claim for treble damages in § 4 of the Clayton Act, 15 U. S. C. § 15, which reads:

“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

This section is notably different from § 16 of the Clayton Act, 15 U. S. C. § 26, which provides for injunctive relief:

“Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunc-tive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings . . . .”

Hawaii plainly qualifies as a person under both sections of the statute, whether it sues in its proprietary capacity or as parens patriae. Georgia v. Pennsylvania R. Co., 324 U. S., at 447. But the critical question is whether the injury asserted by Hawaii in its parens patriae count is an injury to its “business or property.”

The legislative history of the Sherman and Clayton Acts is not very instructive as to why Congress included the “business or property” requirement in § 4, but not in § 16. The most likely explanation lies in the essential differences between the two remedies.

While the United States Government, the governments of each State, and any individual threatened with injury by an antitrust violation may all sue for injunctive relief against violations of the antitrust laws, and while they may theoretically do so simultaneously against the same persons for the same violations, the fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one. This case illustrates the point well. The parties are in virtual agreement that whether or not Hawaii can sue for injunctive relief as parens patriae is of little consequence so long as it can seek the same relief in its proprietary capacity. While some theoretical differences may exist with respect to the parties capable of enforcing a parens patriae injunction as opposed to one secured by a State in its proprietary capacity, these differences are not crucial to the defendant in an antitrust case.

The position of a defendant faced with numerous claims for damages is much different. If the defendant is sued by 100 different persons or by one person with 100 separate but cumulative claims, and each claim is for damages, the potential liability is obviously far greater than if only one of those persons sued on only one claim. Thus, there is a striking contrast between the potential impact of suits for injunctive relief and suits for damages.

Every violation of the antitrust laws is a blow to the free-enterprise system envisaged by Congress. See Northern Pacific R. Co. v. United States, 356 U. S. 1, 4 (1958). This system depends on strong competition for its health and vigor, and strong competition depends, in turn, on compliance with antitrust legislation. In enacting these laws, Congress had many means at its disposal to penalize violators. It could have, for example, required violators to compensate federal, state, and local governments for the estimated damage to their respective economies caused by the violations. But, this remedy was not selected. Instead, Congress chose to permit all persons to sue to recover three times their actual damages every time they were injured in their business or property by an antitrust violation. By offering potential litigants the prospect of a recovery in three times the amount of their damages, Congress encouraged these persons to serve as “private attorneys general.” See, e. g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 130-131 (1969); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 147 (1968) (Fortas, J., concurring in result).

Thus, § 4 permits Hawaii to . sue in its proprietary capacity for three times the damages it has suffered from respondents’ alleged antitrust violations. The section gives the same right to every citizen of Hawaii with respect to any damage to business or property. Were we, in addition, to hold that Congress authorized the State to recover damages for injury to its general economy, we would open the door to duplicative recoveries.

A large and ultimately indeterminable part of the injury to the “general economy,” as it is measured by economists, is no more than a reflection of injuries to the “business or property” of consumers, for which they may recover themselves under § 4. Even the most lengthy and expensive trial could not, in the final analysis, cope with the problems of double recovery inherent in allowing damages for harm both to the economic interests of individuals and for the quasi-sovereign interests of the State. At the very least, if the latter type of injury is to be compensable under the antitrust laws, we should insist upon a clear expression of a congressional purpose to make it so, and no such expression is to be found in § 4 of the Clayton Act.

Like the lower courts that have considered the meaning of the words “business or property,” we conclude that they refer to commercial interests or enterprises. See, e. g., Roseland v. Phister Mfg. Co., 125 F. 2d 417 (CA7 1942); Hamman v. United States, 267 F. Supp. 420 (Mont. 1967), appeal dismissed, 399 F. 2d 673 (CA9 1968); Broadcasters, Inc. v. Morristown Broadcasting Corp., 185 F. Supp. 641 (NJ 1960). When the State seeks damages for injuries to its commercial interests, it may sue under § 4. But where, as here, the State seeks damages for other injuries, it is not properly within the Clayton Act.

Support for this reading of § 4 is found in the legislative history of 15 U. S. C. § 15a, which is the only provision authorizing recovery in damages by the United States, and which limits that recovery to damages to “business or property.” The legislative history of that provision makes it quite plain that the United States was authorized to recover, not for general injury to the national economy or to the Government’s ability to carry out its functions, but only for those injuries suffered in its capacity as a consumer of goods and services.

“The United States is, of course, amply equipped with the criminal and civil process with which to enforce the antitrust laws. The proposed legislation, quite properly, treats the United States solely as a buyer of goods and permits the recovery of the actual damages suffered.” S. Rep. No. 619, 84th Cong., 1st Sess., 3 (1955).

See also H. R. Rep. No. 422, 84th Cong., 1st Sess., 2-5 (1955). In light of the language used as well as the legislative history of 15 U. S. C. § 15a, it is manifest that the United States cannot recover for economic injuries to its sovereign interests, as opposed to its proprietary functions. And the conclusion is nearly inescapable that § 4, which uses identical language, does not authorize recovery for economic injuries to the sovereign interests of a State.

We note in passing the State’s claim that the costs and other burdens of protracted litigation render private citizens impotent to bring treble-damage actions, and thus that denying Hawaii the right to sue for injury to her quasi-sovereign interests will allow antitrust violations to go virtually unremedied. Private citizens are not as powerless, however, as the State suggests.

Congress has given private citizens rights of action for injunctive relief and damages for antitrust violations without regard to the amount in controversy. 28 U. S. C. § 1337; 15 U. S. C. § 15. Rule 23 of the Federal Rules of Civil Procedure provides for class actions that may enhance the efficacy of private actions by permitting citizens to combine their limited resources to achieve a more powerful litigation posture. The District Court dismissed Hawaii’s class action only because it was unwieldy; it did not hold that a State could never bring a class action on behalf of some or all of its consumer citizens. Respondents, in moving to dismiss count three of the fourth amended complaint, in which the State sought to bring such an action, virtually conceded that class actions might be appropriate under certain circumstances. The fact that a successful antitrust suit for damages recovers not only the costs of the litigation, but also attorney’s fees, should provide no scarcity of members of the Bar to aid prospective plaintiffs in bringing these suits.

Parens patriae actions may, in theory, be related to class actions, but the latter are definitely preferable in the antitrust area. Rule 23 provides specific rules for delineating the appropriate plaintiff-class, establishes who is bound by the action, and effectively prevents duplica-tive recoveries.

The judgment of the Court of Appeals is affirmed for the reasons stated above.

So ordered.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Douglas,

dissenting.

Today’s decision reflects a miserly approach to the fashioning of federal remedies rectifying injuries to the collective interests of the citizens of a State through action by the State itself. It is reminiscent of the ill-starred decision in Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493.

Hawaii, in her fourth amended complaint, sues for damages and injunctive relief as parens patriae by virtue of her “duty to protect the general welfare of the State and its citizens.” She alleges that the alleged conspiracy among the respondent oil companies has “injured and adversely affected the economy and prosperity” of Hawaii as follows:

“(a) revenues of its citizens have been wrongfully extracted from the State of Hawaii;
“(b) taxes affecting the citizens and commercial entities have been increased to affect such losses of revenues and income;
“(c) opportunity in manufacturing, shipping and commerce have been restricted and curtailed;
“(d) the full and complete utilization of the natural wealth of the State has been prevented;
“(e) the high cost of manufacture in Hawaii has precluded goods made there from equal competitive access with those of other States to the national market;
“(f) measures taken by the State to promote the general progress and welfare of its people have been frustrated ;
“(g) the Hawaii economy has been held in a state of arrested development.”

I see no way of distinguishing the instant case from Georgia v. Pennsylvania R. Co., 324 U. S. 439. The Georgia case held that a State may sue as parens patriae under the antitrust laws for injury to the economy of the State resulting from a conspiracy to restrain trade and commerce through the fixing of railroad rates. Id., at 446. As we said:

“Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected.” Id., at 451.

So-called “growth,” “progress,” and “development” are more than symbols of power in modern society; they represent the goal which planners — private and public alike — establish and seek to attain. And the State plays an important, at times crucial, role in achieving that goal. If Hawaii can sustain her allegations by proof, she establishes injury both as respects her tourism and her industry, her “growth” and her “development.”

The Court of Appeals was “skeptical of the existence of an independent harm to the general economy.” 431 F. 2d 1282, 1285. But as Alabama states in her brief amicus:

“Economists have developed models for measuring the effects upon local economies from infusions or extractions of given sums of money from those economies. In short, a state’s economy is susceptible of articulation and measurement.”

Hawaii is the magnet of tourism and of industry as well. She measures the health of her economy by her economic growth. No one citizen can stand in her shoes in those respects, for she represents the collective. Those interests should be held to be the State’s “business or property” interests, within the meaning of the Clayton Act, and not merely the plants, factories, or hotels which she may own as a proprietor. We held as much in the Georgia case. It is indisputable that if Hawaii does prove damages, Georgia authorizes recovery. For as Mr. Justice Brennan points out, Georgia was denied damages only because of a technicality irrelevant to the present case.

Injury to the collective will commonly include injury to members of the collective. In that event damages recovered by Hawaii could not later be recovered by individual entrepreneurs. It might, of course, be shown that the individual’s loss for the period in question was distinct from any impact on the collective. Thus, if Hawaii failed to prove that the alleged conspiracy damaged her economy, a single entrepreneur might still be able to prove that it drove him to the wall. The difficulties advanced in this regard are more imaginary than real. They are doubtless rationales that express a prejudice against liberal construction of the antitrust laws. Since a collective damage is alleged, I would allow the case to go to trial, saving to Congress the question whether § 4 of the Clayton Act should be restricted to a State’s proprietary interests.

I would adhere to the Georgia case and allow Hawaii a chance to prove her charges and to establish the actuality of damages or the need for equitable relief.

I would reverse the judgment and remand the case for trial.

Mr. Justice Brennan,

with whom Mr. Justice Douglas joins, dissenting.

The State of Hawaii seeks treble damages and injunc-tive relief for an alleged conspiracy among respondents to monopolize and fix prices on the sale of petroleum products in the State. Count one of Hawaii’s complaint alleges an economic injury to the State in its proprietary capacity as purchaser of those products. Count two states a claim by the State, as parens patriae, for injury to its “economy and prosperity,” including the withdrawal of its citizens’ revenues, increased taxes to offset such losses, curtailment of manufacturing, shipping, and commerce, and injury to the competitive position of Hawaiian goods in the national market. Count three alleges a class action on behalf of all purchasers in the State of respondents’ petroleum products. The District Court dismissed count three as unmanageable, but denied respondents’ motion to dismiss Count two, the parens patriae claim. An interlocutory appeal was taken by respondents under 28 U. S. C. § 1292 (b), and the Court of Appeals for the Ninth Circuit reversed and ordered dismissal of count two. The Court of Appeals held that even if the State’s economy might suffer injury from antitrust violations independent of the injury suffered by private persons, that injury would not be to the State’s “business or property” within the meaning of § 4 of the Clayton Act, and in any event would be too remote from respondents’ alleged violations to permit the State to recover as parens patriae.

Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945), in my view, requires reversal. In that case the State of Georgia sought to invoke the original jurisdiction of this Court to remedy a conspiracy by several railroads to fix rates on the transportation of goods to and from the State. As noted by the Court, ante, at 259 n. 13, Georgia sought damages in each of the four counts of its complaint — in its sovereign capacity, as a quasi-sovereign, in its proprietary capacity, and as representative of its citizens. Treating the complaint as a prayer “for damages and for injunctive relief,” 324 U. S., at 445, the Court held that Georgia, both as parens patriae and proprietor, was an appropriate party to bring these claims:

“The enforcement of the criminal sanctions of [the antitrust] acts has been entrusted exclusively to the federal government. See Georgia v. Evans, [316 U. S. 159,] 162. But when it came to other sanctions Congress followed a different course and authorized civil suits not only by the United States but by other persons as well. And we find no indication that, when Congress fashioned those civil remedies, it restricted the States to suits to protect their proprietary interests. Suits by a State, parens patriae, have long been recognized. There is no apparent reason why those suits should be excluded from the purview of the anti-trust acts.” Id., at 447.

Georgia was in fact denied damages, but only because such recovery might operate as an illegal rebate on rates already approved by the Interstate Commerce Commission. See Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156 (1922). Implicit in the decision, however, was the holding that Georgia, as parens patriae, could have recovered damages under the antitrust laws for a conspiracy involving other than agency-approved transportation charges. That holding applies with equal force here. Hawaii is complaining, not of an affront to its abstract sovereignty, but of the economic loss occasioned by respondents’ conspiracy. As in Georgia, this can only be characterized as a wrong to the State “which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States.” 324 U. S., at 451. If that injury would have been a sufficient basis for a damage claim by Georgia, as we held in that case, then it supports an identical action by Hawaii here.

Even if Georgia were not dispositive, I would still find in Hawaii's parens patriae count a claim of injury to its “business or property” sufficient to state a claim under § 4. There runs through the Court’s opinion an assumption that Hawaii's proprietary claims, though concededly sufficient to state a cause of action, are wholly distinct in concept from those raised by the State as parens patriae. While I agree that the two counts represent injuries to the State in separate capacities, the injuries themselves are not so unrelated as to justify a different treatment under the Clayton Act. In Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U. S. 390 (1906), the city brought a treble-damages action against two pipe companies whose trust and combination had been invalidated in Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (1899). Claiming injury “ ‘in its business or property,’ ” 203 U. S., at 395, the city sought damages in its capacity as a purchaser of water pipes for the municipal water system. In upholding the right of the city to bring that action, the Court stated:

“It was injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property.” Id., at 396.

See also Georgia v. Evans, 316 U. S. 159 (1942).

The determinant, then, is whether “property is diminished by a payment of money wrongfully induced.” But what was the nature of the injury to property for which recovery was permitted in Chattanooga? Clearly it was nothing more than the added expense incurred by the city's treasury as the result of the antitrust violation. While it was incurred in the course of a business transaction, the harm was to the economic wealth of the city’s population as a whole, for any savings in public expenditures that ultimately accrued were for their benefit.

This is the same sort of interest sought to be protected here. Hawaii’s economy, to which tourism and the tourist trade are important, would be particularly vulnerable to injury from a price conspiracy involving petroleum products. In seeking to preserve the economic opportunities of its people, and the tax revenues generated thereby, Hawaii is asserting an interest not significantly different in concept from that involved in Chattanooga. Whether the injury sought to be remedied consists of additional payments from the public purse, as in that case, or the failure to generate additional wealth, as here, the result in either instance.is the same— the government and its population, as entities, have suffered harm to their economic well-being. If that harm is characterized “business or property” in one case, then we stretch no traditional property concepts in applying the same label in the other.

This conclusion is not undercut by 15 U. S. C. § 15a, which limits recovery by the United States for injury to its “business or property” caused by a violation of the antitrust laws to “actual damages suffered” “solely as a buyer of goods.” S. Rep. No. 619, 84th Cong., 1st Sess., 3 (1955). Nothing in the Act similarly restricts a State, suing as parens patriae. As the legislative history of § 15a shows, the major emphasis during passage of the Sherman Act was on the methods of its enforcement. “[I]t was believed that the most effective method, in addition to the imposition of penalties by the United States, was to provide for private treble-damage suits. It was originally hoped that this would encourage private litigants to bear a considerable amount of the burden and expense of enforcement and thus save the Government time and money.” Id., at 2. Thus private litigants, encouraged by the hope of triple recovery, were seen as a major instrument of antitrust enforcement, supplemented by criminal prosecutions and civil forfeiture actions brought by the Federal Government. These remedies did not, however, adequately protect the Government as the volume of its procurement grew and collusion among its suppliers became increasingly evident. This was the mischief Congress enacted § 15a to curb:

“The American taxpayer is entitled to full value for his tax dollar. He should be protected against its going into the pockets of wrongdoers in the form of excessive prices and profits gained through violation of the antitrust laws. If he were spending the money himself, he could sue for triple damages. Surely, he is entitled to protection from actual loss where the Government spends it for him. By permitting the United States Government to recover the provable damages resulting from unlawful practices engaged in by those with whom it does business, [§ 15a] would afford those safeguards necessary to the Public Treasury and at the same time severely deter those who would conspire in their dealings with Federal departments.” H. R. Rep. No. 422, 84th Cong., 1st Sess., 4-5 (1955).

At the same time, however, Congress felt that “unlike the situation with respect to private persons, there is no need to furnish the Government any special incentive to enforce the antitrust laws, a heavy responsibility with which it is already charged,” and therefore Congress granted “to the Government the right to recover only actual, as distinguished from treble, damages.” Id., at 4. In addition, Congress felt that the United States was “amply equipped with the criminal and civil process with which to enforce the antitrust laws. The proposed legislation, quite properly, treats the United States solely as a buyer of goods and permits the recovery of the actual damages suffered.” S. Rep. No. 619, supra, at 3.

Thus § 15a served a narrower purpose than the treble-damages provisions of the Sherman and Clayton Acts. The United States was “amply equipped” with “criminal and civil process” for general enforcement, and needed a damage remedy solely to protect itself “as a buyer of goods.” On the other hand private litigants, including the States, lacked the Government’s “criminal and civil process.” Yet they were viewed as primary enforcers of antitrust policy and were armed with the weapon of triple recovery as a means of stimulating their efforts. It is plain from the history of § 15a that Congress did not intend the States to be denied the treble-damages remedy Hawaii pursues here.

Finally, this result does not necessarily lead to double recovery. Since Hawaii is by definition asserting claims “independent of and behind the titles of its citizens,” Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907), there may be excluded from its recovery any monetary damages that might be claimed by its citizens individually or as part of a properly constituted class. That problem, like uncertainty of damages, is better answered after trial than on the pleadings.

In sum, I think that since no one questions that Hawaii can maintain a treble-damages action in its proprietary capacity, for analogous reasons, Hawaii may also maintain the action pleaded in count two as parens patriae.

       Chevron Asphalt Co. was not named as a defendant in the initial complaint. As pointed out in the text, infra, the company was named' as a defendant in the third and fourth amended complaints which raise the question presented to the Court.

       In the third amended complaint, the State abandoned a claim made in the initial complaint that the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13 (a), had been violated. This claim has not been resurrected in any of the later stages of the proceedings.

       The opinion of the court is unreported, but is contained in App. 51-58.

         Id., at 58.

       Reporter’s Tr. 154 (May 29, 1969).

       The District Court offered to certify its dismissal of Hawaii’s class-action count, but Hawaii indicated its intention not to appeal the ruling. Since the ruling was not appealed it is not before the Court for review.

       Although the Court of Appeals directed that the count be dismissed in its entirety, the parties have not suggested that its decision foreclosed any relief the State might obtain by way of injunction.

       Malina & Blechman, at 197; State Protection, at 412.

       State Protection, at 412.

       3 W. Blackstone, Commentaries *47.

        Ibid.

       Article III, § 2, of the Constitution confers original jurisdiction upon this Court over suits between States or by one State against a citizen of another State. In order to properly invoke this jurisdiction, the State must bring an action on its own behalf and not on behalf of particular citizens. See, e. g., Louisiana v. Texas, 176 U. S. 1 (1900); New Hampshire v. Louisiana, 108 U. S. 76 (1883); Oklahoma v. Atchison, T. & S. F. R. Co., 220 U. S. 277 (1911)., An action brought by one State against another violates the! Eleventh Amendment if the plaintiff State is actually suing to re-' cover for injuries to designated individuals. See, e. g., New Hampshire v. Louisiana, supra; North Dakota v. Minnesota, 263 U. S. 365; 376 (1923).

       It is evident from the bill of complaint that Georgia sought to sue in four slightly different capacities: its sovereign capacity (first count); as a quasi-sovereign (second count); its proprietary capacity (third count); and as protector of a general class of its citizens (fourth count). Damages were sought in each count, although treble damages were sought only on the last count.

       It is true, as Mr. Justice BreNNAn suggests, that an injury to the State in its proprietary capacity, as alleged in count one of the complaint, affects the citizens in much the same way as an injury of the sort claimed by Hawaii here. Each has the effect of increasing taxes, or reducing government services, or both. But this does not mean that the two kinds of injuries are identical in nature. Where the injury to the State occurs in its capacity as a consumer in the marketplace, through a “payment of money wrongfully induced,” Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U. S. 390, 396 (1906), damages are established by the amount of the overcharge. Under § 4, courts will not go beyond the fact of this injury to determine whether the victim of the overcharge has partially recouped its loss in some other way, even though a State, for example, may ultimately recoup some part of the overcharge through increased taxes paid by the seller. See Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 489 (1968). Measurement of an injury to the general economy, on the other hand, necessarily involves an examination of the impact of a restraint of trade upon every variable that affects the State’s economic health — a task extremely difficult, “in the real economic world rather than an economist’s hypothetical model.” Id., at 493.
      The lower courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation. See, e. g., Miley v. John Hancock Mutual Life Insurance Co., 148 F. Supp. 299, 303 (Mass.), aff’d, 242 F. 2d 758 (CA1), cert. denied, 355 U. S. 828 (1957); Billy Baxter, Inc. v. Coca-Cola Co., 431 F. 2d 183 (CA2 1970), cert. denied, 401 U. S. 923 (1971); Kauffman v. Dreyfus Fund, Inc., 434 F. 2d 727, 732-734 (CA3 1970), cert. denied, 401 U. S. 974 (1971); South Carolina Council v. Newton, 360 F. 2d 414, 419 (CA4), cert. denied, 385 U. S. 934 (1966); Dailey v. Quality School Plan, Inc., 380 F. 2d 484 (CA5 1967); Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F. 2d 383, 395 (CA6 1962), cert. denied, 372 U. S. 907 (1963); Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F. 2d 564, 566-567 (CA7), cert. denied sub nom. Illinois v. Commonwealth Edison Co., 375 U. S. 834 (1963); Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F. 2d 679, 688-689 (CA8 1966); Hoopes v. Union Oil Co., 374 F. 2d 480, 485 (CA9 1967); Nationwide Auto App. Serv. v. Association of C. & S. Co., 382 F. 2d 925, 928-929 (CA10 1967).

       “Whenever the United States is hereafter injured in its business or property by reason of anything forbidden in the antitrust laws it may sue therefor . . . , and shall recover actual damages by it sustained and the cost of suit.” 69 Stat. 282, 15 U. S. C. § 15a.
      This section was enacted in 1955 following the decision in United States v. Cooper Corp., 312 U. S. 600 (1941), which held that the United States was not a “person” within the meaning of § 7 of the Sherman Act (the predecessor of § 4 of the Clayton Act). Recovery is limited to actual rather than treble damages because Congress reasoned that the United States, unlike a private party, needed no extraordinary incentive to bring antitrust suits. H. R. Rep. No. 422, 84th Cong., 1st Sess., 3 (1955).

       In Wyandotte, the Court refused to exercise its conceded original jurisdiction over an original complaint filed by the State of Ohio to enjoin alleged pollution of Lake Erie by manufacturing plants in Michigan and Ontario, Canada, because “as a practical matter, it would be inappropriate for this Court to attempt to adjudicate the issues . . . 401 U. S., at 501. In the light of our rules permitting the appointment of special masters, however, this rationale is questionable at best. Id., at 510-512 (Douglas, J., dissenting). See generally Woods & Reed, The Supreme Court and Interstate Environmental Quality: Some Notes on the Wyandotte Case, 12 Ariz. L. Rev. 691 (1970).

       “In these three respects — as a clearing house for necessary institutional innovations; as an agency for resolution of conflicts among group interests; and as a major entrepreneur for the socially required infrastructure — the sovereign state assumes key importance in channeling the explosive impacts of continuous structural changes, in providing a proper framework in which these structural changes, proceeding at revolutionary speed, are contained and prevented from exploding into a civil war (as they sometimes may, and have). Thus, the high rate of change in economic structure is linked to the importance of the sovereign state as an organizing unit. It is not accidental that, in measuring and analyzing economic growth, we talk of the economic growth of nations and use national economic accounts. In doing so, we imply that the sovereign state is an important factor in modem economic growth; that, given the transnational, worldwide character of the supply of useful knowledge and science, the major permissive factor of modern economic growth, the state unit, in adjusting economic and social institutions to facilitate and maximise application, plays a crucial supplementary role.” S. Kuznets, Economic Growth of Nations 346-347 (1971).

       The question of injunctive relief concerns the meaning of § 16 of the Clayton Act which grants relief to any “person” against loss or damage by a violation of “the antitrust” laws. It is settled that a State is a “person” within the meaning of § 16. Georgia v. Pennsylvania R. Co., 324 U. S. 439, 452. Hence, it is clear that even if Hawaii does not prove damages, equitable relief is available as it was in the Georgia case.

       My quarrel with the Court does not extend to its approving reference to the possibility that Hawaii may yet be able to maintain a class action on behalf of her consumers, ante, at 266. Cf. Comment, Wrongs Without Remedy: The Concept of Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 43 S. Cal. L. Rev. 570, 580-583 (1970). The District Court’s dismissal of Hawaii’s class action count as “unmanageable” was not certified for interlocutory appeal, and Hawaii’s rights under Fed. Rule Civ. Proc. 23 are not before us for review.

      The Court seems to concede as much in saying that an “injury to the State in its proprietary capacity . . . affects the citizens in much the same way as an injury of the sort claimed by Hawaii here.” Ante, at 262 n. 14. Yet because the assessment of damages might prove more difficult in a parens patriae than a proprietary action, the Court concludes that “the two kinds of injuries are [not] identical in nature.” Id., at 263 n. 14. The Court plainly confuses two separate issues. The injury to Hawaii’s general economy may present problems of proof not raised in its proprietary action, but a mere difficulty in the assessment of damages cannot change the nature of the damage claimed. In short, I think that Hawaii has alleged an injury to its “business or property,” and, on the entirely separate question of proving damages, agree with my Brother Douglas that the injury can be quantified, or at least approximated.