Perma Life Mufflers, Inc. v. International Parts Corp./Concurrence Fortas

Mr. Justice FORTAS, concurring in the result.

I agree with the result in this case. Petitioners' right to recover in their own interest and as 'private attorneys general' to enforce the antitrust laws cannot be denied on the basis of the doctrine of in pari delicto. Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964).

The doctrine has, however, a significant if limited role in private antitrust law. If the fault of the parties is reasonably within the same scale-if the 'delictum' is approximately 'par' then the doctrine should bar recovery. This might be the case, for example, if a manufacturer of mufflers and a manufacturer of other parts had combined to formulate and operate a collusive scheme. One co-adventurer could not sue the other for discriminatory or restrictive practices which allegedly diminished its take from the enterprise.

But equality of position of this general nature is necessary before in pari delicto may apply to bar an antitrust remedy. Unless the doctrine is so limited, the private remedy provided by the antitrust laws is nullified to a significant extent. The owner of a gas station may enter into an arrangement with the distributor and may benefit from its restrictive provisions. But this less-thanequal participation in the crime must not bar him from recovering in his own and the public interest if he can show that he has suffered compensable harm. Our decision in Simpson indicates this quite clearly. The antitrust laws are intended to protect individuals 'from combinations fashioned by others and offered to (them) * *  * as the only feasible method by which (they) may do business.' Ring v. Spina, 148 F.2d 647, 653, 160 A.L.R. 371 (2 Cir. 1945).

As the Court points out, it is possible that the franchisee may be proved to be a collaborator, or co-adventurer, or a true particeps criminis with respect to a particular aspect of the plan for example, if he originated and insisted upon the inclusion of a territorial exclusivity clause which was not in the franchise as drafted by the franchisor. He could not recover damages based upon this, if, essentially, it is his own act.

Clearly, petitioners here are not coadventurers or partners in the franchise arrangement as a whole, and they are not barred by in pari delicto. On remand, as the Court orders, if petitioners are chargeable with responsibility for a particular clause of the agreement or restrictive covenant because it is, in substance, their own act, they should not be allowed to recover for injury they may have suffered because of it.