Thomas Ricci v. Chicago Mercantile Exchange, an Illinois Not-For-Profit Corporation, 447 F.2d 713

Thomas Ricci v. Chicago Mercantile Exchange, an Illinois Not-For-Profit Corporation

447 F.2d 713

7th Cir.

1971

Check Treatment

*1 RICCI, Plaintiff-Appellant, Thomas EXCHANGE,

CHICAGO MERCANTILE not-for-profit corporation, an Illinois al., Defendants-Appellees. et

No. 18222. Appeals, Court of States Seventh Circuit.

June Kerner, Judge, Circuit concurred in

part and dissented in and filed opinion.

714 Company Trading Siegel

Melamed, and Joseph Siegel with president, and its 1 violations of section of the Sherman 3 15, Act, Title U.S.C.A. and tortious § interference with commercial relation- ships. Siegel Trading Company and Siegel4 complaint moved to dismiss the for failure to state a claim granted relief could and for be want jurisdiction. separate dis- motion to miss, Exchange argued Torshen, defendants Fred J. Gins- H. Jerome complaint failed to state a cause Fortes, burg, Harry H. Lawrence H. action under III., section the Sherman Chicago, plaintiff- Eiger, for granting Act. From an order defend- appellant. dismiss, ap- plaintiff ants’ motions Jerrold E. Salz- and A. Freeman Lee peals. defendant-appellee man, Chicago, III., for Exchange. Chicago appellant’s Mercantile Count I of six-count com- plaint alleged, substance, pur- that he Chill, Bernstein, Max Charles Chi- B. membership Chicago chased a in the III, cago, defendants-appellees Jo- Exchange duly and Mercantile became Siegel Trading Siegel seph E. and The qualified to trade in commodities Inc.; 111., Chicago, Chill, Herman commodity futures to the rules of counsel. Exchange and the Commodities Exchange HASTINGS, Authority. 11, February Before Senior Circuit On Judge, Siegel KERNER, induced KILEY and Cir- Judges. its appellant’s cuit officers to transfer mem- bership Reich, to James F. without hear- Judge. HASTINGS, ing Circuit Senior notice, utilizing or previously voked blank authorization to transfer brought action un- Plaintiff Ricci membership. allegedly Such action was Act, Clayton der sections and 16 of regulations violation of the rules and 26,2 seek- Title U.S.C.A. §§ the Exchange and the injunctive damages. ing relief and treble complaint Act and charged pursu- was done in Chi- defendants cago president, ance of conspiracy Mercantile its an unlawful vice-president, Harris, Everette B. its intent purpose and for the of restrain- Phelan, chairman, Leo William its board ing appellant conducting his lawful provides: 1. any Title U.S.C.A. having ju- § court United States by persons injured; “§ 15. Suits parties, against amount risdiction over the threat- recovery ened loss or a violation of the * * “Any person injured who be shall in his laws property any- business or reason of 3. provides, Title U.S.C.A. 1§ inter thing forbidden in the antitrust laws alia: sue therefor district court of the Trusts, etc., 1. “§ in restraint of trade States district which the exception illegal; price of resale defendant resides or is found or has an agreements; penalty agent, respect without to the amount in “Every contract, combination in the controversy, and shall recover threefold otherwise, form conspiracy, of trust or or damages by sustained, him and the among in restraint of trade or commerce suit, including cost of a reasonable attor- * * * the several States is declared to ney’s fee.” * * illegal be provides, 26§ U.S.C.A. inter Siegel Company alia: Trading will be referred Injunctive private par- “Siegel.” Likewise, “§ relief Chicago to as ; exception ties Mercantile officers will * * * “Any person “Exchange” shall be entitled be referred to injunctive relief, “Exchange to sue for and have defendants.” Act, 1 et trans- Title U.S.C.A. a result of As business.5 seq., allegations complaint from trad- fer, appellant excluded February allege group boycott, are ing sufficient on the per pur- 1 of he section se violation of 1969 when until March $45,000. membership for Sherman Act. chased another *3 complaint are of the III and V Counts Relying on v. Anheuser Scanlon against and the directed Busch, Cir., (1968), Inc., 918 9 F.2d 388 reallege the defendants individual denied, cert. 391 88 U.S. S.Ct. respect to allegations I with of Count Beer 20 654 and Ace L.Ed.2d Act. Counts of the Sherman Violation Inc., Cir., Kohn, Distributors, Inc. v. 6 charge interfer- II, tortious IV VI denied, (1963), 375 318 F.2d 283 cert. advantageous rela- commercial ence with 267, 11 166 84 L.Ed.2d S.Ct. and, tionships parties all are resi- since Siegel argue (1963), that defendants necessarily Illinois, fall for will dents alleged merely to the amount facts the Sherman want competitor an substitution of one resulting allegations are not sustained. injury public other no are, pur therefore, within the claim that defendants view of the acts. court, ruling the motions the trial dismiss, other than admitted evidence Scanlon, supra, supra, Beer, and Ace thereby complaint and that stated in inapplicable are to the case at bar. Each into motions summa- converted them ry judgment. concerned the cancellation individual See, 12(b), Fed.R.Civ.P. distributing exclusive beer contracts with true, allow this If it would this were dis- immediate substitution testimony deposition court examine tributors. The competitive markets were relevant entirely disposes appellees contend held no and the courts is that The short answer case. of trade unreasonable restraint resulted hearing transcript on the mo- existing from competition since the refusals to deal depositions demonstrates tion take was not diminished and considering the court below was an cancellation was not unusual busi- complaint only allegations Beer, supra See, procedure. ness Ace to dismiss. when ruled on the motions at 287. appeal from an this is an Since Appellant alleged his exclusion granting 12(b), order Rule Fed.R.Civ. Chicago from Mercantile P., dismiss, accept motions to we must monopolistic market, a inwas violation foregoing allegations appellant’s of fact regulations. of its rules and own Such Equipment, as true. Walker Process alleged a con exclusion is to be a Machinery Inc. Chemical v. Food & intentionally injure spiracy to busi his 174-175, Corp., 86 382 U.S. Gamco, Fruit ness. In Providence v. Inc. Duzynski (1965); 347, 15 L.Ed.2d 247 Bldg., Cir., & 194 484 Produce 1 F.2d Nosal, Cir., (1963). v. 7 324 F.2d 924 (1952), denied, cert. (1952), the court 97 L.Ed. 636 I of a confronted with the exclusion produce building trader that, from a where Appellant first absent contends vegetables fresh any justification sales of fruits to be from the derived managed the Chicago Exchange’s occurred. board as status Mercantile building designated refused renew trader’s a board of trade and “con- expiration. lease after its court tract Commodities market” under the knowingly conspira- alleges enforce its own failed to Plaintiff also reporting. relating “Clearing attempted No to financial tors to induce a rules specific assigned to these alle- to issue an- Member” of gations. of its tedated release authorization Siegel the Ex- Ricci to trade to and that finding Compare, federal 1 and Nor sections claim. violations Refining Cir., ville v. Globe Oil & Act said: Sherman (1962); F.2d Trans Parmelee justi- monopolist must latent “[T]he Keeshin, Cir., portation Company fy competitor from the exclusion of a 292 F.2d 794 Where, a market he controls. here, group as understand- a business foregoing, con we view ably temptations susceptible that, any justification clude absent advantage exploiting its natural Exchange’s status a board of pre- competitors prohibits one designated trade and a “contract mar viously hawking acceptable his ket,” complaint is sufficient to al any longer wares beside them lege boycott, per group se violation very moment of his affiliation with section of the Sherman Act. *4 outsider, potentially they priced lower may necessary be called for a II explanation. conjunction pow- The Relying primarily on Silver v. New er and motive to exclude with an ex- 341, York Stock U.S. immediately patently clusion not and 1246, (1963), ap- 10 L.Ed.2d 389 justified by reasonable business pellant justification can asserts that no quirements prima a establishes facie be derived either from the Commodities purpose monopolize.” case of the to Exchange Exchange’s Act or from the Id. at 488. status as a board of trade for actions Accepting, must, appellant’s as we al- alleged. Consequently, herein claims he legations to as the reasons and manner cause action under section 1 of the in excluded, which he was there is no Sherman Act has been stated. justification for the actions of the Ex- change and the individual defendants. Silver, supra, member firms of the membership transfer of his in vio- Exchange New York Stock were order- lation of Exchange the rules of the and pri- ed to terminate pursuant conspiracy intentionally to a telephone tickertape vate and connections injure his business would constitute brokerage to Silver’s over-the-counter group per boycott, se actionable under Court, observing firms. the Sherman Act. concerted cut-off and deprived its members had an Silver of allegation The absence of an important ability compete asset to his public injury is not fatal to the mainte broker-dealer, as a said that con- such per nance of an action where se viola per duct would have been a se violation alleged. tion is Burners, Radiant Inc. any justifi- of the Sherman Act “absent Peoples Gas, Light v. and Coke policy cation derived from the of an- 81 S.Ct. 5 L.Ed.2d 358 other statute or otherwise.” Id. at 348- (1961); Klor’s, Broadway-Hale Inc. v. However, because Stores, Inc., of the existence of the mandate of self- (1959); Switzer Brothers regulation present Ex- the Securities Locklin, Cir., 297 F.2d 39 change Act, sought the Court to “recon- Likewise, where the defendants pursuit cile of the antitrust aim elimi- enjoy deny potential com nating competition restraints with petitors market, access to the the absence operation public policy the effective aof competitive change in the relevant contemplating exchanges that securities market is not fatal to the cause of ac engage self-regulation will which Gamco, Inc., supra tion. 194 F.2d at 487. anticompetitive gen- well have effects specific applications.” eral and in Id. at Finally, case, appellees not as 349, 83 S.Ct. at 1252. contend, appellant where has used tradi- language tional antitrust to transform an The Court concluded that under essentially state cause of case, action into a circumstances it did not complete Chicago have accommodation be- Mercantile is a designated by did tween the since the acts “contract market” the Sec- justification retary not reach the threshold of to conduct future plainly trading and had exceed- under the statute commodities engage scope authority Act, Commodity Exchange amended, ed self-regulation by informing not seq. Silver Title et As a con- U.S.C.A. § charges underlying designation, the decision dition of must ful- statutory terminate the not fill requirements connections certain in- providing appropriate opportunity cluding the enactment and enforcement explain charges despite regulations bylaws, refute such rules and prompt repeated requests “trading requirements”6 therefor. relate to 361, 365, Id. at 83 S.Ct. at “minimum financial reporting require- standards and related Appellant here Ex- contends that ments” for members of such markets. justified excluding trading nothing him from bylaws, because Failure to enforce these statutory regulations may scheme suspension allows the result discipline by excluding brokers them or revocation of the contract market trading. designation Even if there were such as well as cease desist statutory authorization, he here was af- attendant misdemeanor hearing and, *5 penalties forded Anyone neither nor notice comply.9 for failure to thus, Exchange he singly claims the did who not acts or in with concert anoth- justification. bring reach the er threshold of As- to about of a violation suming they true, regulations these contentions to be and issued to the dispose do not of this Act principal case. liable as for such vio- provides, 6. Title inter § 7a alia: U.S.C.A. ‘contract market’ with accordance procedure subject judicial Duties of contract “§ 7a. markets and to the provided Each contract market shall— view this section 8 of title.” rules, provides, “(8) regula- bylaws, 9. Title inter § all U.S.C.A. 13a enforce tions, by resolutions, alia: and or issued made by governing “§ 13a. Nonenforcement of of rules it or any board thereof or * * * government violations, or other cease committee, which to relate and requirements, desist mar- trading orders contract which and kets; misdemeanor; punishment; sep- by disapproved have not been the Secre- ** tary Agriculture arate offenses of any “If contract is not en- market provides, 7. Title inter alia: § 7a U.S.C.A. forcing or has not its rules of enforced of “§ 7a. Duties contract markets government of made a condition its des- Each contract market shall— ignation as set forth in section 7 of title, any market, contract or or “(9) bylaws, rules, regula- all enforce officer, any agent, employee director, or tions, by and made resolutions or issued any contract market otherwise vio- by governing it any or or board thereof provi- lating any or violated committee, minimum * * * chapter sions of this the com- reporting financial standards related upon hearing may, mission notice and * * * requirements members for subject appeal in other cases as * * market such contract provided paragraph (a) for sec- title, provides tion 8 of this make enter an 7b : U.S.C.A. desig- Suspension directing order ket, 7b. or revocation that such contract mar- “§ director, officer, agent, or nation as ‘contract market’ em- ployee any board of “The or refusal of shall cease and failure desist violation, upon provisions comply any, [and trade with failure or refusal rules, regu- comply] guilty chapter, shall be of a misde- of this or Agri- lations, and, thereof, meanor or conviction orders thereunder, $500 shall be not culture or commission fined less nor than $10,000 suspending period imprisoned more than or shall be cause for revoking the less six more than not to months or than months nor exceed six ” * * * designation year, as a one both. such board of trade or court, remand, subjected trict on consider to loss lations be coverage markets, trading problem privileges contract of coextensiveness of on determining as and desist whether Securities well as cease possessed primary penalties.10 Commission with attendant judge the New York Stock alleged by appellant sup- The facts Exchange’s allegedly anticompetitive an- port charge his antitrust are either vio- Id. tirebate at 276. The resolution rule. lations or induced violations of part, depended, of this issue rules, Act, promulgated pursuant factors; following consideration of the “trading requirements” which relate to (1) weigh anti- SEC’s reporting requirements.11 and financial duty policy fulfilling trust of re- such, they As could have been examined (2) self-regulation;. view of aggrieved ability party to initi- of an Agriculture.12 or the review; ate the extent SEC Thus, we are not confronted expertise useful in resolv- SEC would be problem in Silver there wherein ing question of antire- whether the “nothing regulatory built into the scheme necessary bate rule was the Se- make performs the antitrust function of work; curities insuring exchange will not achieving possibility the aims of apply some cases its rules so as to do subjecting ex- the Sherman Act without injury competition which cannot be changes to treble Id. suits. justified furthering legitimate, self- regulative ends.” Id. at Rather, pri- the maintenance of a Applying these criteria to the instant treble-damage suit vate the instant case, appropriate we think it for the presents “problem case of conflict or ju primary of the doctrine of invocation coverage coextensiveness of with the express risdiction. There no exists agency’s regulatory power” not consid- *6 implied exemption Commodity in the Ex ered in Id. at Silver. prevent Act that would the Secre 1255. Agriculture tary of or Judge Swygert, Chief in his concur taking from into Commission ring opinion Corp. to Thill Securities principles in account antitrust their de Cir., York New Stock pursuant Judge liberations to the Act. (1970), denied, F.2d 264 cert. concurring Leventhal, in (U.S. Cities of States 30, 1971), suggested AEC, D.C.Cir., Mar. that the dis- F.2d 962 ville v. 13c(a) provides: 10. Title § U.S.C.A. ities futures. Title U.S.C.A. Responsibility principal; Therefore, 307, allegedly 13c. “§ Rule violated in appellant’s membership, of the transfer “ (a) Any person commits, 322, allegedly or who who Rule and violated at- willfully aids, abets, counsels, commands, tempt appellant’s to cancel authorization induces, procures of, trade, “trading require- or the commission both relate to any provisions alleged a violation of of the of ments.” The violation was other * ** chapter, reporting or who acts in to enforce financial failure any combination or concert with other rules. person any violation, in such or who 12. The over al- Commission willfully an act to be done or causes leged by the and its violations directly performed omitted which or Secretary composed officers. It is of the omitted him another would be a or Agriculture, Secretary of Com- provisions chap- of this violation Attorney their merce General or * * * may responsible ter be held respective designees. Secretary proceedings in administrative under may Agriculture decide exclude mem- chapter princi- for such violation as a trading. contract bers of markets pal.” Membership in a contract market prerequisite trading in to lawful commod- 5, 1969) (Slip opinion 21,706, Exchange rules, No. Dec. were violation of (en banc), prevented observed: Commission could have it. Moreover, questions here involved synthesis “It is a the cases fair precisely are the ones that the Commis- Supreme D.C. Court [of Secretary sion and the are to resolve years] that a Circuit over the last 25 fulfilling watchdog their function over licensing providing oth statute or and its members.15 The regulation presumed permit er private allowance treble principles, consideration of antitrust prior suit in this case to the harmonizing [ap approach attempted institution of actions before plied to between antitrust conflicts Secretary the Commission or the would agency’s policies regula and the * * * discourage persons” “interested tory objectives] unless helping regulatory agency fulfill contrary appears expressly intent insuring function mar- contract (Quotation necessary implication.” bylaws. enforce kets their own C., appears in F. C. Hale v. 138 U.S. App.D.C. 425 F.2d Additionally, potential there is (concurring opinion)). pugnance between a decision of the Com- modity and the Commission Appellant applied could have for the damages award treble proceedings de- institution of action. amendments fendants before Commission and/or Commodity Exchange provide facts on the Agri- and the alleged in He have this case.13 could with the discretion to refuse to culture petitioned thereafter for intervention report “minor of the Act for violations” any proceedings his prosecution initiated appears “whenever public require allegedly does not application.14 interest If indeed the damages action.” The award membership anticompetitive transfer regulatory Although the overall scheme 0.3 and 0.53 C.F.R. §§ pervasive than instant is less case any “any person having interested American, specific the scheme Pm act” violation of the information of directly allegations to the Commis- relate application requesting in- file an Secretary’s power desig- sion’s before the Secre- stitution the trad- contract markets allow nate respectively. tary Commission, or the ing individuals. Such futures *7 17, 0.8, 0.58. 14. Title C.F.R. §§ regulatory the scheme no less basic to is Also, American. com- it was Pan than in Airways, Inc. World 15. In Pan American pare v. United Far Conference East 296, States, U.S. 83 S.Ct. 371 v. United 570, 492, States, 96 S.Ct. 342 U.S. 72 (1963), 476, the Court 325 9 L.Ed.2d ; Nav. United States L.Ed. 576 against action de- dismissed 474, Co., 52 284 U.S. v. Cunard S.S. Co. allegedly agreed who had fendant carriers 408 with L.Ed. S.Ct. 76 parallel other’s routes. each not C., P. F. California with Board vested Aeronautics Civil (1962) ; United 8 L.Ed.2d S.Ct. jurisdiction the carrier. over air broad 308 U.S. v. Borden States at reasoned at The Court ample (1939), for 84 L.Ed. 482: Judge Swygert’s ob- of Chief illustration routes divisions “Limitation of Thill, supra in 433 F.2d servation the relation of common territories jurisdiction primary cases on that this are in basic to air carriers carriers the issue. resolution to no clear charged regulatory The acts scheme. 13c(b) provides: U.S.C.A. violations as antitrust in this civil suit * ** minor violations 13c. ingredients “§ precise of the Board’s are authority chapter Nothing be (b) shall this in qualifying, granting, or in Secretary requiring the carriers, construed Agriculture denying to air certificates report revoking the commission or modifying, suspending, or chapter prose- disallowing of this violations allowing minor them, pub- appears cution, the whenever common carriers. between affiliations require action.” such interest does not lic carriers.” and air alia, alleges, the essentially Appellant inter punitive in are nature17 could Chicago defendant, Mercantile the conflict a decision Commis- with knowingly conspired with defendant “public sion interest” that Siegel punitive Trading Company, prevent steps him under the Act allowable continuing Ex- should taken.18 not be as member transacting therefore, and, therefore, hold, that before We allegations in the his business. Other private for anti treble action complaint incidental disclose may brought trust violations be proof appellant’s is claim charging violation of these defendants proving his transference of of a promulgated as a condition to a membership by to James designation, the Com contract market al- this transference E. Reich. Since modity Commission and/or legedly rules, would violate Secretary must have Exchange Act, thereby Commodity opportunity ful first secure authorization, not to a valid statutory imposed duties fillment majority first that Ricci must reasons upon exchanges and their members. proceed either before remedy in correct case where Commission, Agriculture or the judicial possibility rem there is the of a edy granted by be the ad that cannot may pro- It that Ricci could have be agency ministrative remand the ceeded before the Commission. How- case to the district court with directions ever, it not follow that Ricci must does stay agency proceedings until the proceed the Commission. The before has acted.19 jurisdiction primary not doctrine of does require stay courts to their hand all

Accordingly, we reverse and remand dis- controversies involve factual di- action to the district court with putes arguably within the stay until rections agency. Rather, of an administrative such time as the raising holds “that in cases the doctrine Ag- Commission and/or issues fact within conventional riculture act it. experience judges requiring or cases remanded direc- Reversed and discretion, the exercise of administrative tions. agencies Congress regu- created lating subject matter should not be Judge (concurring KERNER, Circuit passed over.” Far East Conference v. dissenting part). 570, 574, States, 492, 494, complaint L.Ed. 576 un- agree states that the While I derlying questions in the factual case under the antitrust a cause of action laws, bar neither facts unconventional remand involve I do not believe proper. nor discretion.1 Whether administrative to the Commission case presented require would be will Inter- bene- As was said Commissioner of *8 argument any fit of brief and before de- nal Revenue v. Obear-Nester Glass attempted. might (1954), Cir., termination could be 61 7 F.2d “We principal purpose say of the further v. Pacific Carnation Co. Westbound punishment damages to be treble seems Conference, 213, 222-223, 383 U.S. the violator and others deter which will ; (1966) Pan illegal from acts.” future Airways, Inc. v. American World States, supra opinion express at n. anti- 371 U.S. no on We might immunity result from S.Ct. 476. trust by taken the Commis- or inaction action Secretary discretion 1. The does have of the sion or reporting complicated of refrain minor violations of issues case. prosecution. its cease Ex- and desist orders Commodities reconciliation See discussion the Sherman Act and infra. (3) statutorily bind- authorization facts and declared ad Ricci executed a valid ing a him the time of transfer on at discretion. ministrative question district is as which a court addition, Judge In Pell noted in his competent to assess a commission as com- separate opinion very “that matter Agriculture, posed of the by now consideration issue is under At- and the Commerce 28, 1968, May on an- S.E.C. which Congress torney And, General. since investigation public nounced hear- made the enforcement of contract market ings including on rate structure matters mandatory (7 7a(9)), no U.S.C. § market economic access question of administrative discretion by (Su- non-member broker-dealers.” could arise. pra, Judge 278.) Despite aspect, at Corp. Thill York Securities v. New Pell would district have remanded (7th questions Stock F.2d 264 Cir. court those antitrust 1970), alleged Exchange cert. denied practice lated to heavily favoring (Supra, 28 L.Ed.2d relied certain non-members. majority opinion, presents 278.) Judge much Pell While dissented stronger pri case for majority opinion the invocation of from that of the mary jurisdiction; yet, judges plaintiff’s two in Thill di- which remanded challenge do not mention the doctrine third and the rect rule” the “anti-rebate merely suggests applicability court, of the to the district did on he not do so jurisdiction. doctrine to the district court. primary basis Rather, ‘fixing felt he that “the or rea- Thill, In a licensed securities dealer * * * sonable rates of commission brought against a class action New charges’ provided and other Exchange charging York Stock an un 19(b) (9) of the Securities reasonable restraint of and an un trade (15 78s(b) (9)) Act of 1934 U.S.C. § monopoly lawful market securities necessarily ancillary power as an includes in violation of the Antitrust Sherman prohibition (Supra, rebates.” Clayton Act2 and the Act. The suit 277.) This is a decision the merits of Exchange’s was founded on the “anti- and, therefore, “anti-rebate rule” prohibits rebate rule” which member question relevant liti- where sharing a commission with a non gants Hence, remedy. must seek their though member even the non-member Judge Judge Pell, Campbell neither nor originally received the order. customer’s majority panel Thill, reached contended that the “anti- a result consistent with the result reach- scope rebate rule” was within its today.5 majority fact, ed self-regulatory powers authorized opinions Judges Campbell Pell and Securities Com appear authority to be clear exercising statutory mission was its majority’s disposition of the case at bar. power explicitly of review which includes criteria enumerated Chief fixing of reasonable rates of comm Judge Swygert concurring opinion in his Surely, primary ission.4 would dictate a district remand to the appropriate disposition was a more court in this case. (1) Thill than it Thill here. direct antitrust attack on an weigh The SEC’s anti- rule policy fulfilling duty involved unconventional trust 1-2, 2. Sherman challenges Antitrust Act §§ U.S.C. suits which are direct to its 1-2 Judge §§ rules. Since Pell concurred in that *9 Judge Campbell’s opinion of Clayton 3. § U.S.C. 15§ remaining remanded the issues to the dis- (b) (9). 4. 15 U.S.C. 78s court, § trict he must have concluded that primary jurisdiction inappropriate. was Evidently, Judge 5. Pell believed the New exempt York Stock is party self-regu- ability'of aggrieved an of of review to initiate SEC review. lation. reasonably appellant majority opinion intends It is clear the I assume Agri- (Secretaries applied of institution could proceedings for the of have the Commission Attorney the Commission the before culture and Commerce Agriculture Secretary General) fully the of in this the issues decide and/or incongruence petitioned intervention. Perhaps very of for thereafter By regulation, case. the permit- is deciding intervention difficult these officials petition- suggest upon showing (a) the enough ted of questions is relationship involved Congress legislate matters er’s the did not such a result.6 the However, proceeding; (b) question the nature this the resolution of Congress present in evi- grounds. he intends to rest on material need not argument dence; (c) strictly jurisdiction the the nature of limited the (d) Agriculture make; the he intends the provi- intervene. reason he should be allowed “of the Commission violations chapter.” (See g., Title sions this e. factors that both These indicate 13a.) chapter means This U.S.C. § Agri- Secretary of Commission and the (Title “Commodity Exchange the 7, Act” possess power to exclude culture 1) U.S.C. the “Sherman § of their claimants nature based Act,” is found U.S.C. at 15 claims. institution of Since only permitted reason there is is when Furthermore, provision in there is no violation,9 to believe there has sug- been Act which asserting might prevented from Ricci be regu- gests should that the Commission trust, his anti action the Commis- before types competitive these factors late sion. Ricci would then return to the dis- markets. is in contrast contract This claim, court on his need- trict statutory authority to review with SEC lessly multiplying number of tribu- rates “reasonable of commission” which proceedings. nals course, Of involved these arguably Yet includes such factors. answered, question could be Judge Swygert did not believe that Thill, by as it was remand to granted statutorily power of review taking district court of evidence. meant, ipso facto, that the SEC SEC power had the these factors.7 to consider expertise The extent that SEC Judge Instead, Swygert suggested that resolving the would be useful in question. district court consider question anti- whether approach by Judge Swygert This careful necessary make rebate rule was although adopted majority is not Exchange Act the Securities authority to consider anti- work.10 is, least, arguable. trust law (1963) ; Cali- merely I observe that antitrust law C., fornia v. P. F. peculiar province not within the (1962).” (Concurring 8 L.Ed.2d Secretaries and Commerce. p. opinion Swygert Judge Chief course, quite opposite Of true of 277.) Attorney chief General who is the 0.8, 8. Title C.F.R. 0.58. §§ enforcement officer the antitrust laws possibly placed 0.3, Thus, and who could be C.F.R. Ricci §§ 0.53. position judge having proof inconsistent be limited to of Rules viola- suits. those tion. concerning primary jurisdiction 7. “Cases 10. This assumes that and/or agencies other administrative to consider to con- Commission have question antitrust matters do not clear sider antitrust claims. Since guidance question. primary neither resolution of this Airlines, argued orally, Compare, are some- Pan American briefed nor we World analysis. States, Inc inhibited our what *10 Seemingly, factor the of this I relevance would think that the aims of the extremely by Ricci only in this case. is limited could Sherman Act be achieved enforcing Exchanges alleged prove must facts which Act that conspiracy the between show an unlawful which make unlawful transfers of mem- Trading Exchange Siegel Company. bership anticompetitive reasons. by Perhaps good erroneous decision A faith but the nature of action in Thill the Exchange presents a question; would not be violation the more difficult how- power ever, legitimate to decide I the Act. am to think Sherman able of no goals requirements implies public membership policy the which are advanced good power insulating Exchange faith but erroneous to make this from anti- power liability given alleged is needed to make trust decisions. Such conduct the Exchange complaint. v. majority opinion Act the work. Silver the 341, 357, E., Yet, opinion N. 373 U.S. indicates none. the inti- Y. S. allege “potential did not Since Ricci mates because pugnance good faith decision the between a decision of the Com- modity membership was a violation transfer his Commission and the laws, question damages under of the antitrust award of treble in an antitrust necessary (infra p. make 11), it is action” is whether at the aims of possess the Act for the Sherman Act work should be subordinated to membership Commodity Exchange the aims to determine its “potential repugnance” are motivated Act. This these determinations stems intent. This is tradi- otherwise unlawful Commission discretion to refuse inquiry report of reason” minor tional “rule violations of cease its Apparently “flexible desist orders.11 ma- Court Silver described enough jority Commission, permit permit suf- would * * breathing space Su- which does not ficient have to con- pra 1259.) question damages, Whether sider the to fore- S.Ct. private from close should be insulated suits if such foreclosure liability type public will be were this deemed in the interest. following All considered section. This reconciliation of Commodities to be mentioned here is remains Exchange Act and the Sherman Act greater would have district court prior Supreme not consistent with Court regard expertise experience in subject. decisions on the United States Campbell Judge than Commission. Philadelphia Bank, v. National 374 U.S. so held in Thill: 321, 351, S.Ct. 10 L.Ed.2d public protection It is in this area (1963); Borden, States expertise. that the claim their On SEC 188, 198-200, 84 L.Ed. hand, remem- it should be (1939). Significantly, no there is the United bered that the courts of statutory standard or detailed economic years have States over the become regulation guide expertise. repository making “public interest” determina (433 273.) F.2d at Philadelphia tion. United Na States v. holding validity of Whatever Bank, supra; tional v. Federal California rule,” regard to the “anti-rebate 484-485, Com’n, Power doubtless true here where 487-488, complexities approach technical do not fact, suggestion no there is present in those Thill. considered, that the Commission has ever achieving consider, possibility im desires economic pact of without its decisions. This is not true

aims Sherman subjecting exchanges Comptroller treble either of the or the FPC Currency. Phila- United States v. suits. 13(b).

11. 7 U.S.C. *11 Bank, supra; delphia Califor- National Yet, Com’n,supra.

nia Federal Power v. possess the kind of not

these bodies do majority on the confer would

Commodity Exchange Commission.

Moreover, “potential re- is no there

pugnance” Ex- between the All the Sherman Act. Act and

Congress by granting the Com- has done discretion

mission the aforementioned traditional

to allow the any public prose- freedom available legis- principle It is a cardinal cutor. away interpretation to construe lative Here such con-

from inconsistencies. only unstrained, not but also

struction is given meaning to be

the natural situation,

words Faced used. inconsistencies court should create purport

and then them. reconcile foregoing reasons,

For the I believe proper disposition case

remand to the district court for further

proceedings. MIGUEL, Appellant,

Louis S. WALSH, Appellee.

Edward M.

No. 23946. Appeals,

United States Court of

Ninth Circuit.

Aug.