Illinois Brick Co. v. Illinois
Opinion of the Court
delivered the opinion, of the Court.
Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968), involved an antitrust treble-damages action
In Hanover Shoe this Court rejected as a matter of law this defense that indirect rather than direct purchasers were the parties injured by the antitrust violation. The Court held that, except in certain limited circumstances,
In this case we once again confront the question whether the overcharged direct purchaser should be deemed for purposes of § 4 to have suffered the full injury from the overcharge; but the issue is presented in the context of a suit in which the plaintiff, an indirect purchaser, seeks to show its injury by establishing pass-on by the direct purchaser and in which the antitrust defendants rely on Hanover Shoe’s rejection of the pass-on theory. Having decided that in general a pass-on theory may not be used defensively by an antitrust violator against a direct purchaser plaintiff, we must now decide whether that theory may be used offensively by an indirect purchaser plaintiff against an alleged violator.
I
Petitioners manufacture and distribute concrete block in the Greater Chicago area. They sell the block primarily to masonry contractors, who submit bids to general contractors for the masonry portions of construction projects. The general contractors in turn submit bids for these projects to customers such as the respondents in this case, the State of Illinois and 700 local governmental entities in the Greater Chicago area, including counties, municipalities, housing authorities, and school districts. See 67 F. R. D. 461, 463 (ND Ill. 1975); App. 16-48. Respondents are thus indirect purchasers of concrete block, which passes through two separate levels in the chain of distribution before reaching respondents. The block is purchased directly from petitioners by masonry contractors and used by them to build masonry structures; those structures are incorporated into entire buildings by general contractors and sold to respondents.
Respondent State of Illinois, on behalf of itself and respondent local governmental entities, brought this antitrust treble-damages action under § 4 of the Clayton Act, alleging that
Petitioner manufacturers moved for partiál summary judgment against all plaintiffs that were indirect purchasers of concrete block from petitioners, contending that as a matter of law only direct purchasers could sue for the alleged overcharge.
We granted certiorari, 429 U. S. 938 (1976), to resolve a conflict among the Courts of Appeals
II
The parties in this case agree that however § 4 is construed with respect to the pass-on issue, the rule should apply equally to plaintiffs and defendants — that an indirect purchaser should not be allowed to use a pass-on theory to recover damages from a defendant unless the defendant would be allowed to use a pass-on defense in a suit by a direct purchaser. Respondents, in arguing that they should be allowed to recover by showing pass-on in this case, have conceded that petitioners should be allowed to assert a pass-on defense against direct purchasers of concrete block, Tr. of Oral Arg. 33, 48; they ask this Court to limit Hanover Shoe’s bar on pass-on defenses to its “particular factual context” of overcharges for capital goods used to manufacture new products. Id., at 41; see id., at 36, 47-48.
Before turning to this request to limit Hanover Shoe, we consider the substantially contrary position, adopted by our dissenting Brethren, by the United States as amicus curiae, and by lower courts that have allowed offensive use of pass-on, that the unavailability of a pass-on theory to a defendant
First, allowing offensive but not defensive use of pass-on would create a serious risk of multiple liability for defendants. Even though an indirect purchaser had already recovered for all or part of an overcharge passed on to it, the direct purchaser would still recover automatically the full amount of the overcharge that the indirect purchaser had shown to be passed on; similarly, following an automatic recovery of the full overcharge by the direct purchaser, the indirect purchaser could sue to recover the same amount. The risk of duplicative recoveries created by unequal application of the Hanover Shoe rule is much more substantial than in the more usual situation where the defendant is sued in two different lawsuits by plaintiffs asserting conflicting claims to the same fund. A one-sided application of Hanover Shoe substantially increases the possibility of inconsistent adjudications — and therefore of unwarranted multiple liability for the defendant — by presuming that one plaintiff (the direct purchaser) is entitled to full recovery while preventing the defendant from using that presumption against the other plaintiff; overlapping recoveries are certain to result from the two law
Second, the reasoning of Hanover Shoe cannot justify unequal treatment of plaintiffs and defendants with respect to the permissibility of pass-on arguments. The principal basis for the decision in Hanover Shoe was the Court’s perception of the uncertainties and difficulties in analyzing price and out
It is argued, however, that Hanover Shoe rests on a policy of ensuring that a treble-damages plaintiff is available to deprive antitrust violators of “the fruits of their illegality,” id., at 494, a policy that would be furthered by allowing plaintiffs but not defendants to use pass-on theories. See, e. g., In re Western Liquid Asphalt Cases, 487 F. 2d 191, 197 (CA9 1973), cert. denied sub nom. Standard Oil Co. of Cal. v. Alaska, 415 U. S. 919 (1974); Brief for United States as Amicus Curiae 4-6, 12-13, 17-19.
We thus decline to construe § 4 to permit offensive use of a pass-on theory against an alleged violator that could not use the same theory as a defense in an action by direct purchasers. In this case, respondents seek to demonstrate that masonry contractors, who incorporated petitioners’ block into walls and other masonry structures, passed on the alleged overcharge on the block to general contractors, who incorporated the masonry structures into entire buildings, and that the general contractors in turn passed on the overcharge to respondents in the bids submitted for those buildings. We think it clear that under a fair reading of Hanover Shoe petitioners would be barred from asserting this theory in a suit by the masonry contractors.
In Hanover Shoe this Court did not endorse the broad exception that had been recognized in that case by the courts below — permitting -the pass-on defense against middlemen who did not alter the goods they purchased before reselling them.
We are left, then, with two. alternatives: either we must overrule Hanover Shoe (or at least narrowly confine it to its facts), or we must preclude respondents from seeking to recover on their pass-on theory. We choose the latter course.
Ill
In considering whether to cut back or abandon the Hanover Shoe rule, we must bear in mind that considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court’s interpretation of its legislation. See Edelman v. Jordan, 415 U. S. 651, 671 (1974); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406-408 (1932) (Brandeis, J., dissenting). This presumption of adherence to our prior decisions construing legislative enactments would support our reaffirmance of the Hanover Shoe
Permitting the use of pass-on theories under § 4 essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge — from direct purchasers to middlemen to ultimate- consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness.
As we have indicated, potential plaintiffs at each level in the distribution chain are in a position to assert conflicting claims to a common fund — the amount of the alleged overcharge — by contending that the entire overcharge was absorbed at that particular level in the chain.
Opponents of the Hanover Shoe rule have recognized this need for compulsory joinder in suggesting that the defendant could interplead potential claimants under 28 U. S. C. § 1335.
“Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.”
See Notes of.Advisory Committee on 1966 Amendment to Rule 19, 28 U. S. C. App., p. 7760; 7 C. Wright & A. Miller, supra, §§ 1604, 1618 ; 3A J. Moore, Federal Practice ¶ 19.08 (1974). The plaintiff bringing the treble-damages action would be required, under Fed. Rule Civ. Proc. 19 (c), to “state the names, if known,” of these absent potential claimants; they should also be notified by some means that the action was pending.
It is unlikely, of course, that all potential plaintiffs could or would be joined. Some may not wish to assert claims to the
There is thus a strong possibility that indirect purchasers remote from the defendant would be parties to virtually every treble-damages action (apart from those brought against defendants at the retail level). The Court’s concern in Hanover Shoe to avoid weighing down treble-damages actions with the “massive evidence and complicated theories,” 392 U. S., at 493, involved in attempting to establish a pass-on defense against a direct purchaser applies a fortiori to the attempt to trace the effect of the overcharge through each step in the distribution chain from the direct purchaser to the ultimate consumer. We are no more inclined than we were in Hanover Shoe to ignore the burdens that such an attempt would impose on the effective enforcement of the antitrust laws.
Under an array of simplifying assumptions, economic theory provides a precise formula for calculating how the overcharge is distributed between the overcharged party (passer) and its customers (passees). If the market for the passer’s product is perfectly competitive; if the overcharge is imposed equally on all of the passer’s competitors; and if the passer maximizes its profits, then the ratio of the shares of the overcharge borne by passee and passer will equal the ratio of the elasticities of supply and demand in the market for the passer’s product.
More important, as the Hanover Shoe Court observed, 392 U. S., at 493, “in the real economic world rather than an economist’s hypothetical model,” the latter’s drastic simplifications generally must be abandoned. Overcharged direct purchasers often sell in imperfectly competitive markets. They often compete with other sellers that have not been subject to the overcharge; and their pricing policies often cannot be explained solely by the convenient assumption of profit maximization.
It is quite true that these difficulties and uncertainties will be less substantial in some contexts than in others. There have been many proposals to allow pass-on theories in some of these contexts while preserving the Hanover Shoe rule in others. Respondents here argue, not without support from some lower courts,
We reject these attempts to carve out exceptions to the Hanover Shoe rule for particular types of markets.
More generally, the process of classifying various market situations according to the amount of pass-on likely to be
The concern in Hanover Shoe for the complexity that would be introduced into treble-damages suits if pass-on theories were permitted was closely related to the Court’s concern for the reduction in the effectiveness of those suits if brought by indirect purchasers with a smaller stake in the outcome than that of direct purchasers suing for the full amount of the overcharge. The apportionment of the recovery throughout the distribution chain would increase the overall costs of recovery by injecting extremely complex issues into the case; at the same time such an apportionment would reduce the benefits to each plaintiff by dividing the potential recovery among a much larger group. Added to the uncertainty of how much of an overcharge could be established at trial would be the uncertainty of how that overcharge would be apportioned among the various plaintiffs. This additional uncertainty would further reduce the incentive to sue. The combination of increasing the costs and diffusing the benefits of bringing a treble-damages action could seriously impair this important weapon of antitrust enforcement.
We think the longstanding policy of encouraging vigorous private enforcement of the antitrust laws, see, e. g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968), supports our adherence to the Hanover Shoe rule, under which direct purchasers are not only spared the burden
It is true that, in elevating direct purchasers to a preferred position as private attorneys general, the Hanover Shoe rule denies recovery to those indirect purchasers who may have been actually injured by antitrust violations. Of course, as Mr. Justice Brennan points out in dissent, “from the deterrence standpoint, it is irrelevant to whom damages are paid, so long as some one redresses the violation.” Post, at 760. But § 4 has another purpose in addition to deterring violators and depriving them of “the fruits of their illegality,” Hanover Shoe, 392 U. S., at 494; it is also designed to compensate victims of antitrust violations for their injuries. E. g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486 (1977). Hanover Shoe does further the goal of compensation to the extent that the direct purchaser absorbs at least some and often most of the overcharge. In view of the considerations supporting the Hanover Shoe rule, we are unwilling to carry the compensation principle to its logical extreme by attempting to allocate damages among all “those within the defendant’s chain of distribution,” post, at 761, especially
So ordered.
Section 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, provides:
“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.”
The Court cited, as an example of when a pass-on defense might be permitted, the situation where “an overcharged buyer has a pre-existing ‘cost-plus’ contract, thus making it easy to prove that he has not been damaged . . . .” 392 U. S., at 494. See infra, at 735-736.
The Court explained the economic uncertainties and complexities involved in proving pass-on as follows:
“A wide range of factors influence a company’s pricing policies. Normally the impact of a single change in the relevant conditions cannot be measured after the fact; indeed a businessman may be unable to state whether, had one fact been different (a single supply less expensive, general economic conditions more buoyant, or the labor market tighter, for example), he would have chosen a different price. Equally difficult to determine, in the real economic world rather than an economist’s hypothetical model, is what effect a change in a company’s price will have on its total sales. Finally, costs per unit for a different volume of total sales are hard to estimate. Even if it could be shown that the buyer raised his price in response to, and in the amount of, the overcharge and that his margin of profit and total sales had not thereafter declined, there would remain the nearly insuperable difficulty of demonstrating that the particular plaintiff could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued. Since establishing the applicability of the passing-on defense would require a convincing showing of each of these virtually unaseertainable figures, the task would normally prove insurmountable. On the other hand, it is not unlikely that if the existence of the defense is generally confirmed, antitrust defendants will frequently seek to establish its applicability. Treble-damage actions would often require additional long and complicated proceedings involving massive evidence and complicated theories.” 392 U. S., at 492-493. (Footnote omitted.)
Section 1 of the Sherman Act, c. 647, 26 Stat. 209, as amended, 15 U. S. C. § 1, provides in relevant part:
“Every contract, combination in the form1 of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal . . . .”
Private treble-damages actions brought by masonry contractors, general contractors, and private builders were settled, without prejudice to this suit. 536 F. 2d, at 1164.
The responses to petitioners’ interrogatories indicated that only four of the plaintiffs represented by the State purchased concrete block directly from one of the petitioners. 67 F. R. D. 461, 463 (ND Ill. 1975). Only 7% of the 700 public entities named as plaintiffs were apparently able to state the cost of the concrete block used in their building projects. Brief for Petitioners 5 n. **. In the only example cited to us by the parties, the cost of the concrete block was reported as less than one-half of one percent of the total cost of the project. Id., at 21 n. *.
The District Court based its grant of summary judgment against the indirect purchaser plaintiffs not on the ground that this Court’s construction of § 4 in Hanover Shoe barred their attempt to show that the masonry and general contractors passed on the overcharge to them, but rather on the ground that these indirect purchasers lacked standing to sue for an overcharge on one product — concrete block — that was incorporated by the masonry and general contractors into an entirely new and different product — a building. 67 F. R. D., at 467-468. Although the Court of Appeals held that these indirect purchasers did have standing to sue for damages under § 4, it agreed with the District Court’s reading of Hanover Shoe. 536 F. 2d, at 1164-1167. Because we find Hanover Shoe dispositive here, we do not address the standing issue, except to note, as did the Court of Appeals below, 536 F. 2d, at 1166, that the question of which persons have been injured by an illegal overcharge for purposes of § 4 is analytically distinct from the question of which persons have sustained injuries too remote to give them standing to sue for damages under § 4. See Handler & Blechman, Antitrust and the Consumer Interest: The Fallacy of Parens Patriae and A Suggested New Approach, 85 Yale L. J. 626, 644-645 (1976).
Compare Mangano v. American Radiator & Standard Sanitary Corp., 438 F. 2d 1187 (CA3 1971), aff’g Philadelphia Housing Auth. v. American Radiator & Standard Sanitary Corp., 50 F. R. D. 13 (ED Pa. 1970), with In re Western Liquid Asphalt Cases, 487 F. 2d 191 (CA9 1973), cert. denied sub nom. Standard Oil Co. of Cal. v. Alaska, 415 U. S. 919 (1974); West Virginia v. Chas. Pfizer & Co., 440 F. 2d 1079 (CA2), cert. denied sub nom. Cotler Drugs, Inc. v. Chas. Pfizer & Co., 404 U. S. 871 (1971), and the decision below, Illinois v. Ampress Brick Co., 536 F. 2d 1163.
See infra, at 734-735.
Post, at 753 (Brennan, J., dissenting); post, at 765-766 (Blackmun, J., dissenting); Brief for United States as Amicus Curiae 4-6, 15-21; Tr. of Oral Arg. 50-54, 57-60; West Virginia v. Chas. Pfizer & Co., 440 F. 2d, at 1086-1088; Boshes v. General Motors Corp., 59 F. R. D. 589, 592-598 (ND Ill. 1973); In re Master Key Antitrust Litigation, 1973-2 Trade Cas. ¶ 74,680, p. 94,978 (Conn.); Carnivale Bag Co. v. Slide-Rite Mfg. Corp., 395 F. Supp. 287, 290-291 (SDNY 1975). See also Brief for State of California as Amicus Curiae 6-12.
In recognition of the need to avoid duplicative recoveries, courts adopting the view that pass-on theories should not be equally available to plaintiffs and defendants have agreed that defendants should be allowed to assert a pass-on defense against a direct purchaser if an indirect purchaser is also attempting to recover on a pass-on theory in the same lawsuit. E. g., In re Western Liquid Asphalt Cases, 487 F. 2d, at 200-201; West Virginia v. Chas. Pfizer & Co., 440 F. 2d, at 1088. See also Comment, Standing to Sue in Antitrust Cases: The Offensive Use of Passing-On, 123 U. Pa. L. Rev. 976, 995-998 (1975); Comment, Mangano and Ultimate-Consumer Standing: The Misuse of the Hanover Doctrine, 72 Colum. L. Rev. 394, 410 (1972); Brief for United States as Amicus Curiae 25. Various procedural devices, such as the Multidistrict Litigation Act, 28 U. S. C. § 1407, and statutory interpleader, 28 U. S. C. § 1335, are relied upon to bring indirect and direct purchasers together in one action in order to apportion damages among them and thereby reduce the risk of duplicative recovery. These procedural devices cannot protect against multiple liability where the direct purchasers have already recovered by obtaining a judgment or by settling, as is more likely (and as occurred here, see n. 5, supra); acknowledging that the risk of multiple recoveries is inevitably increased by allowing offensive but not defensive use of pass-on, e. g., Comment, 123 U. Pa. L. Rev., supra, at 994, proponents of this approach ultimately fall back on the argument that it is better for the defendant to pay sixfold or more damages than for an injured party to go uncompensated. E. g., Comment, 72 Colum. L. Rev., supra, at 411; Tr. of Oral Arg. 58 (“a little slopover on the shoulders of the wrongdoers ... is acceptable”). We do not find this risk acceptable.
Moreover, even if ways could be found to bring all potential plaintiffs together in one huge action, the complexity thereby introduced into treble-damages proceedings argues strongly for retaining the Hanover Shoe rule. See Part III, infra.
That this rationale was more important in the decision to bar the pass-on defense than the second reason — the concern that if pass-on defenses were permitted indirect purchasers would lack the incentive to sue and antitrust violators would retain their ill-gotten gains, see supra, at 725-726, is shown by the fact that the Court recognized an exception for pre-existing cost-plus contracts, which “mak[e] it easy to prove that [the direct purchaser] has not been damaged.” 392 U. S., at 494. (Emphasis added.) The amount of the stake that the customers of the direct purchaser have in a lawsuit against the overcharger is not likely to depend on whether they buy under a cost-plus contract or in a competitive market, but the Court allowed a pass-on defense in the former situation because the pre-existing cost-plus contract makes easy the normally complicated task of demonstrating that the overcharge has not been absorbed by the direct purchaser. See Note, The Effect of Hanover Shoe on the Offensive Use of the Passing-on Doctrine, 46 So. Cal. L. Rev. 98, 108 (1972).
Offensive use of pass-on by the last purchaser in the distribution chain is simpler in one respect than defensive use of pass-on against a direct purchaser that sells a product to other customers. In the latter case, even if the defendant shows that as a result of the overcharge the direct purchaser increased its price by the full amount of the overcharge, the direct purchaser may still claim injury from a reduction in the volume of its sales caused by its higher prices. This additional element of injury from reduced volume is not present in the suit by the final purchaser of the overcharged goods, where the issue regarding injury will be whether the defendant’s overcharge caused the plaintiff to pay a higher price for whatever it purchased. But the final purchaser still will have to trace the overcharge through each step in the distribution chain. In our view, the difficulty of reconstructing the pricing decisions of intermediate purchasers at each step in the chain beyond the direct purchaser generally will outweigh any gain in simplicity from not having to litigate the effects of the passed-on overcharge on the direct purchaser’s volume.
We are urged to defer to evidence in the legislative history of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1394r-1396, 15 U. S. C. § 15c et seq. (1976 ed.), that Congress understood Hanover Shoe as applying only to defendants. Post, at 756-758 (Brennan, J., dissenting); Brief for 47 States as Amici Curiae L4-15, n. 6; Brief for United States as Amicus Cunae 14-15, and n. 12. The House Report (apparently viewing the issue as one of standing, cf. n. 7, supra) endorsed the Ninth Circuit’s view of “the pro-enforcement thrust of Hanover Shoe” in In re Western Liquid Asphalt Cases, supra, and criticized lower court decisions barring pass-on arguments by plaintiffs. H. R. Rep. No. 94-499, p. 6 n. 4 (1975). In addition, one of the sponsors of this legislation, Representative Rodino, clearly assumed that the issue of offensive use of
Congress made clear, however, that this legislation did not alter the definition of which overcharged persons were injured within the meaning of § 4. It simply created a new procedural device — parens patriae actions by States on behalf of their citizens — to enforce existing rights of recovery under § 4. The House Report quoted above stated that the parens patriae provision “creates no new substantive liability”; the relevant language of the newly enacted § 4C (a) of the Clayton Act tracks that of existing § 4, showing that it was intended only as “an alternative means ... for the vindication of existing substantive claims.” H. R. Rep. No. 94-499, supra, at 9. “The establishment of an alternative remedy does not increase any defendant's liability.” Ibid. Representative Rodino himself acknowledged in the remarks cited above that this legislation did not create a right of recovery for consumers where one did not already exist.
We thus cannot agree with the dissenters that the legislative history of the 1976 Antitrust Improvements Act is dispositive as to the interpretation of § 4 of the Clayton Act, enacted in 1914, or the predecessor section of the Sherman Act, enacted in 1890. Post, at 756-758. The eases cited by Mr. Justice Brennan, post, at 765 n. 24, to support his reliance on this legislation all involved specific statutory language that was thought to clarify the meaning of an earlier statute. E. g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969) (language in 1959 amendment to § 315 of the Communications Act approved fairness doctrine adopted by FCC under the “public interest” standard of the original Act). Here, by contrast, Congress borrowed the language of §4 in adding the parens patriae section. The views expressed by particular legislators as to the meaning of that language in §4 “cannot serve to change the legislative intent of Congress . . . ‘since the statements were [made] after passage of the [Clayton] Act.’ ” Regional Rail Reorganization Act Cases, 419 U. S. 102, 132 (1974), quoting National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 639 n. 34 (1967).
While we do not lightly disagree with the reading of Hanover Shoe urged by these legislators, we think the construction of § 4 adopted in that decision cannot be applied for the exclusive benefit of plaintiffs. Should Congress disagree with this result, it may, of course, amend the section to change it. But it has not done so in the recent parens patriae legislation.
In a separate trial pursuant to Fed. Rule Civ. Proc. 42(b), the District Court held that the defendant shoe machinery manufacturer was not permitted to assert a pass-on defense against its customer. 185 F. Supp. 826 (MD Pa.), aff’d, 281 F. 2d 481 (CA3), cert. denied, 364 U. S. 901 (1960). The District Court indicated that pass-on defenses were barred against “consumers” who use the defendant’s product to make their own but not against “middlemen” who simply resell the defendant’s product. 185 F. Supp., at 830-831. Both on interlocutory appeal and after trial on the merits, the Court of Appeals affirmed on the basis of the District Court’s reasoning. See 392 U. S., at 488 n. 6.
Another situation in which market forces have been superseded and the pass-on defense might be permitted is where the direct purchaser is owned or controlled by its customer. Cf. Perkins v. Standard Oil Co., 395 U. S. 642, 648 (1969); In re Western Liquid Asphalt Cases, 487 F. 2d, at 197, 199.
The sole dissenting Justice in Hanover Shoe did not reach th*e pass-on question. 392 U. S., at 513.
In this Part, we assume that use of pass-on will be permitted symmetrically, if at all. This assumption, of course, reduces the substantial risk of multiple liability for defendants that is posed by allowing indirect purchasers to recover for the overcharge passed on to them while at the same time allowing direct purchasers automatically to collect the entire overcharge. See supra, at 730-731. But the possibility of inconsistent judgments obtained by conflicting claimants remains nonetheless. Even this residual possibility justifies bringing potential and actual claimants together in one action if possible.
See n. 11, supra. Interpleader under Fed. Rule Civ. Proc. 22(1) often would be unavailable because service of process for rule interpleader, as contrasted with statutory interpleader, does not run nationwide. See 3A J. Moore, Federal Practice ¶ 22.04[2] (1974).
For example, a condition precedent for invoking statutory interpleader is the posting of a bond for the amount in dispute, 28 U. S. C. § 1335 (a) (2), see 3A J. Moore, supra, ¶ 22.10, and a defendant may be unwilling to put up a bond for the huge amounts normally claimed in multiple-party treble-damages suits. For a discussion of other circumstances in which statutory interpleader may be “impractical,” see McGuire, The Passing-On Defense and the Right of Remote Purchasers to Recover Treble Damages under Hanover Shoe, 33 U. Pitt. L. Rev. 177, 197-198 (1971).
Rule 19 (a) provides in part:
“A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter*739 impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”
See the comment of the Advisory Committee on the 1966 Amendment to Rule 19: “In some situations it may be desirable to advise a person who has not been joined of the fact that the action is pending, and in particular cases the court in its discretion may itself convey this information by directing a letter or other informal notice to the absentee.” 28 U. S. C. App., p. 7760.
E. g., Philadelphia Housing Auth. v. American Radiator & Standard Sanitary Corp., 50 F. R. D. 13 (ED Pa. 1970), aff’d sub nom. Mangano v. American Radiator & Standard Sanitary Corp., 438 F. 2d 1187 (CA3 1971) (suit against manufacturers of plumbing fixtures on behalf of all homeowners in the United States). There often will be more levels of distribution or manufacture between the defendant and the ultimate consumers than the two levels (masonry and general contractors) in this case. For example, in Philadelphia Housing Auth., supra, the plaintiffs included homeowners who had bought used rather than new homes and who therefore had to show that each time their houses changed hands the sellers passed on part of the plumbing manufacturers’ original overcharge. 50 F. R. D., at 19-20, 25-26. Treble-damages suits by ultimate consumers against any of the manufacturers of industrial raw materials or equipment that have been charged in recent Government price-fixing suits would involve not only several levels within a distribution chain, but also several separate chains of distribution; for example, chromite sand is used to make ingots, ingots are used to make steel, and steel is used to make consumer products. Handler & Blechman, supra n. 7, at 640 n. 77, and see id., at 636-637 (citing Justice Department price-fixing suits against defendants far removed from consumers).
E. g., Donson Stores, Inc. v. American Bakeries Co., 58 F. R. D. 481 (SDNY 1973) (motion to intervene by a putative class of 20 million consumers of bread in treble-damages action against bread manufacturers). Cf. Handler & Blechman, supra, n. 7, at 653 (arguing that the effect of legislation authorizing States to bring treble-damages actions on behalf of their citizens, see n. 14, supra, will be to interject claims on behalf of large classes of consumers into treble-damages suits brought by middlemen). Thus in this ease the plaintiff housing authorities, App. 20, presumably have passed on part of the alleged overcharge to their tenants and subtenants, who would have to be brought into the suit before damages could be fairly apportioned.
An overcharge imposed by an antitrust violator or group of violators
Thus, in the instant case respondents have offered to prove that general and masonry contractors calculate their bids by adding a percentage markup to the cost of their materials, Brief for Respondents 20-23,
Mr. Justice Brennan in dissent argues that estimating a passee’s damages requires nothing more than estimating what the passer’s price would have been absent the violation, and suggests that apportioning the overcharge throughout the distribution chain is “no different from and no more complicated” than the initial task of estimating the amount of the overcharge itself. Post, at 758-759, and n. 14. But as the dissent recognizes, post, at 749 n. 3, unless the indirect purchaser is at the end of the distribution chain it can claim damages not only from the portion of the overcharge it absorbs but also from the portion it passes on, which causes a reduction in sales volume under less than perfectly inelastic demand conditions. See n. 13, supra. The difficulties of the task urged upon us by the dissenters cannot be so easily brushed aside.
In any event, as we understand the dissenters’ argument, it reduces to the proposition that because antitrust cases are already complicated there is little harm in making them more so. We disagree.
See, e. g., West Virginia v. Chas. Pfizer & Co., 314 F. Supp. 710, 745-746 (SDNY 1970), aff’d, 440 F. 2d 1079 (CA2 1971); Boshes v. General Motors Corp., 59 F. R. D., at 597.
We note that supporters of the offensive use of pass-on, other than litigants in particular cases, generally have not contended for a halfway rejection of Hanover Shoe that would permit offensive use of pass-on in some types of market situations but not in others. See, e. g., Tr. of Oral Arg. 57 (United States as amicus curiae); Note, The Defense of “Passing On” in Treble Damage Suits Under the Antitrust Laws, 70 Yale L. J. 469, 476, 478 (1961); commentators cited in n. 11, supra.
See, e. g., In re Western Liquid Asphalt Cases, 487 F. 2d, at 198; Wheeler, Antitrust Treble-Damage Actions: Do They Work?, 61 Calif. L. Rev. 1319, 1325 (1973).
Commentators have noted that recoveries in treble-damages actions aggregating large numbers of small claims often have failed to compensate the individuals on behalf of whom the suits have been brought. E. g., Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits — the Twenty-Third Annual Antitrust Review, 71 Colum. L. Rev. 1, 9-10 (1971); Wheeler, supra, n. 30, at 1339; Kirkham, Complex Civil Litigation — Have Good Intentions Gone Awry?, 70 F. R. D. 199, 206-207 (1976).
The dissenting opinion of Mr Justice Brennan appears to suggest that the 1976 parens patriae legislation, see n. 14, supra, provides an answer to this problem of compensating indirect purchasers for small injuries. Post, at 764 n. 23. Quite to the contrary, the Act “recognizes that rarely, if ever, will all potential claimants actually come forward to secure their share of the recovery,” and that “the undistributed portion of the fund . . . will often be substantial.” H. R. Rep. No. 94-499, p. 16 (1975). The portion of the fund recovered in a parens patriae action that is not used to compensate the actual injuries of antitrust victims is to be used as “a civil penalty . . . deposited with the State as general revenues,” Clayton Act §4E(2), 15 U. S. C. § 15e (2) (1976 ed.), enacted by the 1976 Act, or “for some public purposes benefiting, as closely as possible, the class of injured persons,” such as reducing the price of the overcharged goods in future sales. H. R. Rep. No. 94-499, supra, at 16. That Congress chose to provide such innovative methods of distributing damages awarded in a parens patriae action under newly enacted § 4C of the Clayton Act, 15 U. S. C. § 15c (1976 ed.), does not eliminate the obstacles to compensating indirect purchasers bringing traditional suits under § 4.
The block was sold to various general and special contractors who had successfully bid to construct public buildings. The State was thus an indirect purchaser of the block.
Dissenting Opinion
Respondent State of Illinois brought this treble-damages civil antitrust action under § 4 of the Clayton Act on behalf of itself and various local governmental entities in the Greater Chicago area alleging that an overcharge in the price of concrete block used in the construction of public buildings was made by the petitioners, manufacturers and sellers of concrete block, pursuant to a price-fixing conspiracy in violation of § 1 of the Sherman Act, 15 U. S. C. § l.
Decisions of the Court defining the reach of § 4 have been consistent with its broad objectives: to compensate victims of antitrust violations and to deter future violations. The Court has stated that § 4 “does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers . . . [but] is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated.” Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948).
Today’s decision flouts Congress’ purpose and severely undermines the effectiveness of the private treble-damages action as an instrument of antitrust enforcement. For in many instances, the brunt of antitrust injuries is borne by indirect purchasers, often ultimate consumers of a product, as increased costs are passed along the chain of distribution.
I
In Hanover Shoe, supra, the Court held that a defendant in a treble-damages action could not escape liability, except in very limited circumstances,
The Court correctly discerned that the difficulty of recon
“those who violate the antitrust laws by price fixing or monopolizing would retain the fruits of their illegality because no one was available who would bring suit against them. Treble damage actions, the importance of which the Court has many times emphasized, would be substantially reduced in effectiveness.'' Id., at 494.
Hanover Shoe thus confronted the Court with the choice, as had been true in Darnell-Taenzer, of interpreting § 4 in a way that might overcompensate the plaintiff, who had certainly suffered some injury, or of defining it in a way that under-deters the violator by allowing him to retain a portion of his ill-gotten overcharges. The Court chose to interpret § 4 so as to allow the plaintiff to recover for the entire overcharge. This choice was consistent with recognition of the importance
Despite the superficial appeal of the argument that Hanover Shoe should be applied “consistently,” thus precluding plaintiffs and defendants alike from proving that increased costs were passed along the chain of distribution, there are sound reasons for treating offensive and defensive passing-on cases differently. The interests at stake in “offensive” passing-on cases, where the indirect purchasers sue for damages for their injuries, are simply not the same as the interests at stake in the Hanover Shoe, or “defensive” passing-on situation. There is no danger in this case, for example, as there was in Hanover Shoe, that the defendant will escape liability and frustrate the objectives of the treble-damages action. Rather, the same policies of insuring the continued effectiveness of the treble-damages action and preventing wrongdoers from retaining the spoils of their misdeeds favor allowing indirect purchasers to prove that overcharges were passed on to them. Hanover Shoe thus can and should be limited to cases of defensive assertion of the passing-on defense to antitrust liability, where direct and indirect purchasers are not parties in the same action.
“The attempt to transform a rejection of a defense*754 because it unduly hampers antitrust enforcement into a reason for a complete refusal to entertain the claims of a certain class of plaintiffs seems an ingenious attempt to turn the decision [in Hanover Shoe] and its underlying rationale on its head.” In re Master Key Antitrust Litigation, 1973-2 Trade Cas. ¶ 74,680, pp. 94,978-94,979 (Conn.).
II
A
Today’s decision goes far to frustrate Congress’ objectives in creating the treble-damages action. Treble-damages actions were first authorized under § 7 of the Sherman Act, 26 Stat. 210. The legislative history of this section shows that it was conceived primarily as a remedy for “[t]he people of the United States as individuals,” especially for consumers. See, e. g., 21 Cong. Rec. 1767-1768 (1890) (remarks of Sen. George); see also id., at 2612 (Sens. Teller and Reagan), 2615 (Sen. Coke), 2640 (Sen. Spooner).
The Court has interpreted § 4 broadly, this in recognition of the plainly stated congressional objective, Northern Pacific R. Co. v. United States, 356 U. S. 1, 4 (1958), that the private treble-damages action play a paramount role in the enforcement of the fundamental economic policy of the Nation, Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 130-131 (1969); Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, 318 (1965), and has concluded that “the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws.” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968). The federal courts have accordingly been cautioned “not [to]
B
The recently enacted Hart-Scott-Rodino Antitrust Improvements Act of 1976 was expressly adopted to create “an effective mechanism to permit consumers to recover damages for conduct which is prohibited by the Sherman Act, by giving State attorneys general a cause of action [to sue as parens patriae on behalf of the States’ citizens] against antitrust violators.” S. Rep. No. 94-803, p. 6 (1976). Title III of the new Act responded to the holding of Hawaii v. Standard Oil Co. of Cal., 405 U. S. 251 (1972), that the Clayton Act does not authorize a State to sue for damages for an injury to its general economy allegedly attributable to a violation of the antitrust laws. The Senate Report accompanying the new Act expressly found that “[t]he economic burden of most antitrust violations is borne by the consumer in the form of higher prices for goods and services,” S. Rep. No. 94-803, supra, at 39, and it is clear that the new Act is intended to provide a remedy
“A direct cause of action is granted the States to avoid the inequities and inconsistencies of restrictive judicial interpretations. . . . Section 4C is intended to assure that consumers are not precluded from the opportunity of proving the amount of their damage and to avoid problems with respect to manageability [of class actions], standing, privity, target area, remoteness, and the like.”13 (Emphasis supplied.)
Representative Rodino, a sponsor, stated during the House debates:
''[A]ssuming the State attorney general proves a violation, and proves that an overcharge was 'passed on’ to the consumers, injuring them 'in their property’; that is, their pocketbooks — recoveries are authorized by the compromise bill whether or not the consumers purchased directly from the price fixer, or indirectly, from intermediaries, retailers, or middlemen. The technical and procedural argument that consumers have no 'standing’ whenever they are not 'in privity’ with the price fixer, and have not purchased directly from him, is rejected by the compromise bill. Opinions relying on this procedural*758 technicality . . . are squarely rejected by the compromise .bill.” 122 Cong. Rec. H10295 (daily ed. Sept. 16, 1976).
It is difficult to see how Congress could have expressed itself more clearly. Even if the question whether indirect purchasers could recover for damages passed on to them was open before passage of the 1976 Act, and I do not believe that it was, Congress’ interpretation of § 4 in enacting the parens patriae provision should resolve it in favor of their authority to sue. Indeed, the House Report accompanying the bill actually referred to the opinion of the District Court in this case as an example of the correct answer. N. 13, supra. The Court’s tortuous efforts to impose a “consistency” upon this area of the law that Congress has so clearly rejected is a return to the “legal somersaults and twistings and turnings” of the Court’s earlier opinions that ultimately led to the passage of the Clayton Act in 1914 to salvage the ailing Sherman Act., See 51 Cong. Rec. 9086 (1914) (remarks of Rep. Kelly).
Ill
Hanover Shoe correctly observed that the necessity of tracing a cost increase through several levels of a chain of distribution “would often require additional long and complicated proceedings involving massive evidence and complicated theories.” 392 U. S., at 493. But this may be said of almost all antitrust cases. Hanover Shoe itself highlights this unavoidable complication, in that it requires the plaintiff to prove a probable course of events which would have occurred but for the violation.
Nor should the fact that the price-fixed product in this case (the concrete block) was combined with another product (the buildings) before resale operate as an absolute bar to recovery. It may well be true, as the State claims, that the cost of the block was included separately in the project bids and therefore can be factored out from the price of the building with relative certainty. In any case, this is a factual matter to be determined based on the strength of the plaintiff’s evidence.
I concede that despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable. See, e. g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977); Hawaii v. Standard Oil Co. of Cal., 405 U. S. 251 (1972). Courts have therefore developed various tests of antitrust “standing,” not unlike the concept of proximate cause in tort law, to define that point. The definition has been variously articulated, usually in terms of two tests. The more restrictive test focuses on the directness of the injury;
IV
I acknowledge some abstract merit in the argument that to allow indirect purchasers to sue, while, at the same time, precluding defendants from asserting pass-on defenses in suits by direct purchasers, subjects antitrust defendants to the risk of multiple liability. But as a practical matter, existing procedural mechanisms can eliminate this danger in most instances. Even though, as the Court says, no procedure currently exists which can eliminate the possibility entirely, ante, at 731 n. 11, the hypothetical possibility that a few defendants might be subjected to the danger of multiple liability does not, in my view, justify erecting a bar against all recoveries by indirect purchasers without regard to whether the particular case presents a significant danger of double recovery. The “double recovery” specter was argued in the Congress that passed the Hart-Scott-Rodino Act, and was rejected. The Senate Report recorded the Act’s purpose to codify the holding of the Court of Appeals for the Ninth Circuit in In re Western Liquid Asphalt Cases, supra:
“ ‘We therefore see no problem of double tecovery, and we believe that if this difficulty should arise in some other connection, the district court will be able to fashion relief accordingly. In addition to the court’s control over its decree, numerous devices exist. We note that the consolidation of cases, which has already occurred, is one means of averting duplicitous awards. The short, four-year statute of limitations is another; later suits, after*762 final judgment herein, are unlikely. 15 U. S. C. § 15b. In other cases, it may be that statutory interpleader, 28 U. S. C. § 1335, could be used by antitrust defendants to avoid double liability. If necessary, special masters may be appointed to handle complex cases. Finally, there are the doctrines of res judicata and collateral estoppel and procedures for compulsory joinder. The day is long past when courts, particularly federal courts, will deny relief to a deserving plaintiff merely because of procedural difficulties or problems of apportioning damages.’
“We would prefer to place the burden of proving apportionment upon appellees, rather than deny all recovery to appellants. Such a burden would be the consequence of appellees’ illegal acts, not appellants’ suits. Where the choice is between a windfall to intermediaries or letting guilty defendants go free, liability is imposed. Hanover Shoe, supra, 392 U. S. at 494. So, too, between ultimate purchasers and defendants.” S. Rep. No. 94-803, p. 44 (1976), quoting 487 F. 2d, at 201 (citation omitted).
Moreover, the possibility of multiple recovery arises in only two situations: (1) where suits by direct and indirect purchasers are pending at the same time but in different courts; and (2) where additional suits are filed after an award of damages based on the same violation in a prior suit.
True, there is a greater hypothetical danger of multiple recovery where suits are independently instituted after an earlier suit based on the same violation has proceeded to judgment.
The Court today regrettably weakens the effectiveness of the private treble-damages action as a deterrent to antitrust violations by, in most cases, precluding consumers from recovering for antitrust injuries. For in many instances, consumers, although indirect purchasers, bear the brunt of antitrust violations. To deny them an opportunity for recovery is particularly indefensible when direct purchasers, acting as middlemen, and ordinarily reluctant to sue their suppliers,
There is, of course, a point beyond which antitrust defendants should not be held responsible for the remote consequences of their actions. See the discussion in Part III, infra, at 760-761.
The portion of an illegal overcharge that a direct purchaser can pass on depends upon the elasticity of demand in the relevant product market. If the market is relatively inelastic, he may pass on a relatively large portion. If demand is relatively elastic, he may not be able to raise his price and will have to absorb the increase, making it up by decreasing other costs or increasing sales volume. It is extremely unlikely that a middleman could pass on the entire cost increase. But rarely would he have to absorb the entire increase. R. Posner, Antitrust Cases, Economic Notes, and Other Materials 147-149 (1974).
The opinion recognizes that “there might be situations — for instance, when an overcharged buyer has a pre-existing 'cost-plus’ contract, thus making it easy to prove that he has not been damaged — where the considerations requiring that the passing-on defense not be permitted in this case would not be present.” 392 U. S., at 494.
Hanover Shoe, did not involve the consumers of the plaintiff’s shoes, to whom the overcharge allegedly was passed. United’s passing-on argument is referred to as “defensive” passing on. The State’s position, seeking recovery of illegal overcharges allegedly passed on to it and its citizens, is referred to as “offensive” passing on.
Hanover alleged that United monopolized the shoe machinery industry in violation of §2 of the Sherman Act by its practice of leasing but refusing to sell its shoemaking machinery.
In DarneU-Taenzer, shippers brought suit for reparations against a railroad claiming that the railroad had charged unreasonable rates. The railroad argued that the shippers had in turn passed on to their customers any excess over the reasonable rate.
“[T]he impact of a single change in the relevant conditions cannot be measured after the fact; indeed a businessman may be unable to state whether, had one fact been different ... , he would have chosen a different price. . . .” 392 U. S., at 492-493. The Court further observed that it is equally difficult to ascertain “what effect a change in a company's price will have on its total sales”; and it is all but impossible to demonstrate that the particular plaintiff “could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued.” Id., at 493. See generally Posner, supra, n. 3, at 147-149.
The pass-on defense in Hanover Shoe was asserted by a defendant against whom a prima facie case of liability had already been made out. The Clayton Act provides: “A final judgment . . . rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws . . . shall be prima facie evidence against such defendant . . . 15 U. S. C. §16 (a). The Government had secured a judgment against United in United States v. United Shoe Machinery Corp., 110 F. Supp. 295 (Mass. 1953), summarily aff'd, 347 U. S. 521 (1954).
Commentators almost unanimously conclude that, despite Hanover Shoe, § 4 should be construed to authorize indirect purchasers to recover
A further indication of Congress’ desire to create a remedy for all
The fact that damages are trebled both aids deterrence and provides the incentive of compensation, since it encourages suits for relatively minor injuries.
Congress rejected earlier Court of Appeals and District Court decisions erecting standing barriers to suits by indirect purchasers and chose instead to pattern the Act “after such innovative decisions as In re Western Liquid Asphalt Cases, 487 F. 2d 191 (9th Cir. 1973); In re Master Key Litigation, 1973 Trade Cases ¶ 74,680 and 1975 Trade Cases ¶ 60,377 (DC Conn.); State of Illinois v. Ampress Brick Co., 1975 Trade Cases ¶ 60,295 (DC Ill.) [this case below]; Carnivale Bag Co. v. Slide Rite Mfg., 1975 Trade Cases ¶ 60,370 (S. D. N. Y.); In re Antibiotics Antitrust Actions, 333 F. Supp. 278 (S. D. N. Y. 1971); and West Virginia v. Charles Pfizer & Co., 440 F. 2d 1079 (2d Cir. 1971).” Congress accepted these decisions as correctly stating the law. S. Rep. No. 94-803, pp. 42-43 (1976).
In Hanover Shoe, the measure of damages was the difference between the amount Hanover paid for the lease and the amount it would have paid had United agreed to sell the machinery. It has been suggested that the burden of demonstrating a pass-on may be no more difficult or speculative than the plaintiff’s initial task of proving an overcharge in the first instance. See Pollock, Automatic Treble Damages and the Passing-on Defense: The Hanover Shoe Decision, 13 Antitrust Bull. 1183,1210 (1968).
One commentator has suggested that, in deciding whether to permit recovery by indirect purchasers in a particular case, courts should consider the number of intervening hands the product has passed through and the extent of its change in the process. P. Areeda, Antitrust Analysis: Problems, Text, Cases 75 (2d ed. 1974).
This holding is consistent with the Court’s continuing concern for the effectiveness of the treble-damages action, which has been sustained even when the plaintiff was “no less morally reprehensible than the defendant” with whom he had conspired. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968).
See, e. g., Loeb v. Eastman Kodak Co., 183 F. 704 (CA3 1910).
Earlier this Term, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., disallowed a -treble-damages recovery, stating that in order to recover antitrust plaintiffs must prove “antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes [the] defendants’ acts unlawful.” 429 U. S., at 489. At least one Court of Appeals has rephrased the target-area test in terms of whether the injury to the plaintiff is a reasonably foreseeable consequence of the defendant’s illegal conduct. Mulvey v. Samuel Goldwyn Productions, 433 F. 2d 1073 (CA9 1970), cert. denied, 402 U. S. 923 (1971).
If direct and indirect purchasers bring suit in the same court, the cases may be consolidated and damages allocated in accordance with Fed. Rule Civ. Proe. 42 (a). See West Virginia v. Chas. Pfizer & Co., 440 F. 2d 1079 (CA2 1971).
For a discussion of this process, see Note, The Judicial Panel and the Conduct of Multidistrict Litigation, 87 Harv. L. Rev. 1001 (1974); Comment, The Experience of Transferee Courts Under the Multidistriet Litigation Act, 39 U. Chi. L. Rev. 588 (1972).
Petitioners suggest that interpleader may be an impractical alternative for some defendants, since it requires a defendant to complicate the suit by bringing in ultimate consumers and to post bond for the amount in controversy. See 28 U. S. C. § 1335 (a) (2). Although § 1335 clearly places a burden upon defendants who elect to use it in order to avoid potential multiple liability, that burden is not unique to antitrust cases, and Congress has clearly indicated that it considers the burden justified. See S. Rep. No. 94-803, p. 44 (1976).
The problem of potential multiple recoveries is not present in this case. All suits against petitioners were filed in the Northern District of Illinois. Petitioners never sought consolidation under Fed. Rule Civ. Proc. 42 (a) and stipulated in settlements with direct purchasers that the settlement would not affect the rights of indirect purchasers.
The opinion for the Court “recognize [s] that direct purchasers sometimes may refrain from bringing a treble-damages suit for fear of disrupting relations with their suppliers,” but concludes that “on balance, and until there are clear directions from Congress to the contrary, we conclude that the legislative purpose in creating a group of 'private attorneys general’ to enforce the antitrust laws ... is better served by holding direct purchasers to be injured to the full extent of the overcharge paid by them than by attempting to apportion the overcharge among all that may have absorbed a part of it.” Ante, at 746. But the intent of Congress in enacting the parens patriae provision of the 1976 Act was clearly to provide a mechanism to permit recovery by consumers, and this purpose is not furthered by a rule that will keep most consumers out of court.
The Court’s opinion further observes that “[m]any of the indirect purchasers barred from asserting pass-on claims . . . have such a small stake in the lawsuit that even if they were to recover as part of a class, only a small fraction would be likely to come forward to collect their damages.” Ante, at 747. Yet it was precisely because of judicially perceived weaknesses in the class action as a device for consumer recovery for antitrust violations that Congress enacted the parens patriae provision of the 1976 Act.
Abundant authority sanctions deference to congressional indications in subsequent legislation regarding the congressional meaning in earlier Acts worded consistently with that meaning. NLRB v. Bell Aerospace Co., 416 U. S. 267, 275 (1974); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380 (1969); FHA v. The Darlington, Inc., 358 U. S. 84, 90 (1958); United States v. Stafoff, 260 U. S. 477, 480 (1923); New York & Norfolk R. Co. v. Peninsula Exchange, 240 U. S. 34, 39 (1916). Although it is true, as the Court’s opinion states, ante, at 734 n. 14, that the post-enactment statements of “particular legislators” who participated in the enactment of a statute cannot change its meaning, see Regional Rail Reorganization Act Cases, 419 U. S. 102, 132 (1974), quoting National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 639 n. 34 (1967), in this case, the House and Senate Reports accompanying the amendments to § 4 of the Clayton Act clearly reveal the 94th Congress’ interpretation of that section as permitting the kind of consumer action which the Court now prohibits. Moreover, it is no answer to this to say that the new parens patriae provision will not in all cases directly compensate indirect purchasers, ante, at 747 n. 31, for it is clear that despite the difficulty of distributing benefits to such injured persons the new Act authorizes recovery by the State on their behalf.
Dissenting Opinion
dissenting.
I regard Mr. Justice Brennan’s dissenting opinion as persuasive and convincing, and I join it without hesitation.
I add these few sentences only to say that I think the plaintiffs-respondents in this case, which they now have lost, are the victims of an unhappy chronology. If Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968), had not preceded this case, and were it not “on the books,” I am positive that the Court today would be affirming, perhaps unanimously, the judgment of the Court of Appeals. The policy behind the Antitrust Acts and all the signs point in that direction, and a conclusion in favor of indirect purchasers who could demonstrate injury would almost be compelled.
But Hanover Shoe is on the books, and the Court feels that it must be “consistent” in its application of pass-on. That,
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