Document mBxe1V0e8DaO6dB7jRJmjO5R4

3/*/8t (-opy ~/o Z^T cy a / Co /?Mi e //c*h La.>^ law offices Keller and Heckman j09C** t ACU.CA jC*OMCM HICKMAN CMAAkCt M MCCMAM WI^UAM M aONCMllANI, jA malcOum e macamtmwa WATMC V HACK TCMACMCC 0 JONCI MAMTIN m ACACOViCi vomn% cwoaco 'CDCAICKA MOVOKNT caaolc c. hakkii MtCMACk r MOMONI makk roi cvcws joh ouacck CTCA k. U CAW* ChkiITinia hcaOhCN SMiKkCv 9 ruwiAAOTO WAWKINCI P HALAKIN AAL*M A. IIMMONI CTCOa 9U99CA C OOUOkAtJAAACTT makt MAKTHA hcnamaka wo**m a aicnaa** MCLVtM 9 oaotcw rMOCIKK J DAY, cmaaci oaccnatcin* 9U9AM T CONTI 9U9AN J AI9NCA ataiCK j muro** 9 CAAlO TAUTTC9T OAVtO H JlTT mauMCCn a O CONNCkk** KAKCNC COCLACAO* NINA M IM9TCIN*** MAMA A 9ICVCA9*** MAAV CHAM9CN9 OAANpV o MANHUN kOOhTX" CaTmCAIMC n aocmca** o*cat j*rrCT * AlCMAAO A WATFC* AOWITTCO IN ACNN9TLVANIA ONLY *QMirrCO IN VINOINIA ON4.Y AONITTCO IN maKyuamO only AOMITTCO IN COkOAAOO ONLY 1150 17'* STREET. N.W. SUITE lOOO WASHINGTON. D.C. 20030 H fc . . (202) 050-500 0* February 29, 1988 Mr. H. Patrick Toner The Society of the Plastics Industry, Inc. 1275 K Street, N.W. Suite 400 Washington, D.C. 20005 RECEiVt u MAR o v $8% Sherry M. Ca,; sc'CNTinc stAfr %oanicl otikt* DWAWAAO f OOOOCN CHAAIC9 V 9ACOCA A09CATA MATMCWt TCkCCOMMWNICATIONt CNOINCCA CMAAkCS r TUAnCA TCtCX 49 9|l TCUCCOAICA (too t9'7At CAIkC A00AC59 -NfUNAN- WAITCA 9 OlACCT IAk NUM(t (202) 956-5643 Re: Indianhead v.__Allied Tube and Conduit Dear Pat: Following up on the recent CCFS Executive Committee meeting, where we discussed the pending Supreme Court review of the Indianhead, Inc, v. Allied Tube and Conduit, Inc, decision, this letter will briefly summarize the oral argument held February 24 before the Court. As you know, one of the principal legal issues in the case revolves around the extent to which a legal doctrine immunizing lobbying activities from antitrust liability, known as the Noerr-Pennington doctrine, applies to the actions of a private standards making body. Additional legal issues presented to the Court include the issue of whether there was adequate evidence of a substantive antitrust liability to support the initial jury verdict in the case, and whether, even if Noerr-Pennington applied, the action was subject to antitrust law as a sham. The attorney for Allied Tube and Conduit, the appellant in the case, argued first. He focused on the fact that the jury found that Atcor had a "genuine belief" as to the safety of PVC conduit in acting to oppose code acceptance of the product. He was questioned about the extent to which various states and municipalities adopt the National Fire Protection CTL028282 Mr. H. Patrick Toner February 29, 1988 Page 2 Keller and Heckman Association's National Electrical Code, and he focused on the similarities between the NFPA and legislative bodies. He received few questions from the Court. The attorney for Carlon specifically addressed the legal issue of the applicability of Noerr-Pennington, arguing that Carlon's case was based on the commercial damages it suffered as a result of its inability to sell its product in states which did not adopt the NEC Code. This tactic was apparently designed to overcome in part the issue of legisla tive action. Additionally, he was questioned extensively about whether there was, in fact, a substantive antitrust violation as a result of Atcor's activities. There was some lively dis cussion between counsel for Carlon and Justice Scalia, who seemed quite unsympathetic to Carlon's arguments. Addition ally, a number of the justices seemed troubled by imposing antitrust liability as a result of the activities of nonprofit standards-making bodies, an issue that led several justices, including Justices Blackmun and Rehnquist, to dissent in the Hydrolevel case some years ago. While it is difficult to predict the way the Supreme Court is likely to rule in any given case, I suspect that the decision, when one is ultimately handed down, will be a rather close one. It is possible, however, that the decision will contain some language noting Atcor's "genuine" concerns about the fire safety of PVC, as there were several questions on this issue to both counsel for Atcor and counsel for Carlon. No matter how the Court utlimately rules, the decision is sure to have an impact on standards-making activities. We will therefore let you know when an opinion is issued in this case. In the meantime, please let me know if you have any questions or comments. Cordially yours, Sheila A. Millar cc: Charles E. O'Connell Robert W. Sherman Lewis R. Freeman, Jr. Roger D. Bernstein Roy T. Gottesman, Ph.D. CTL028283