Bratcher v. Akron Area Board of Realtors Reply Brief for the Plaintiffs-Appellants

    Mnitpd States dmtri nf Appeals
F ob t h e  S ix t h  C ir c u it  

No. 17,113

1/

M ercer  B r a t c h e r , et al.,

Plaintiffs-Appellants,
v.

T h e  A k r o n  A rea B oard op R ealtors , et al.,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

REPLY BRIEF FOR THE PLAINTIFFS-APPELLANTS

J ac k  G reen berg
J am e s  M. N ab rit , III
L eroy  D . C l a r k
S h e il a  R u s h

10 Columbus Circle 
New York, New York

J ac k  G. B a y
1748 Standard Building 
Cleveland, Ohio

N o rm an  P u r n e l l
First National Tower 
Akron, Ohio

J ay  T o pk is
575 Madison Avenue 
New York, New York

Attorneys for Plaintiffs-Appellants



Statement of Questions Involved

1. Have Plaintiffs Alleged Sufficient Injury and Damage 
Proximately Caused By Defendants’ Violation of The 
Sherman Act?

The District Court Did Not Answer This Question.

P] aintiffs-Appellants Contend It Should Be Answered 
“Yes.”

2. Is the Present Action Maintainable As a Class Action?

The District Court Did Not Answer This Question. 
Plaintiffs-Appellants Contend It Should Be Answered 

“Yes.”



I N D E X

A rg u m e n t

PAGE

I. Have Plaintiffs Alleged Sufficient Injury and 
Damage Proximately Caused by Defendants’ 
Violation of the Sherman Act! ..........................  1

The District Court Did Not Answer This 
Question .................... ..............................................  1

Plaintiffs-Appellants Contend it Should be An­
swered “Yes” .........................................................  1

II. Is the Present Action Maintainable as a Class 
Action! .....................................................................  4

The District Court Did Not Answer This 
Question ...................................................................  4

Plaintiffs-Appellants Contend it Should be An­
swered “Yes” ...........................................................  4

T able  of C ases

Adams v. Lucy, 228 F.2d 619 (5th Cir. 1956) ............... 4

City of Greensboro v. Simkins, 246 F.2d 425 (4th
Cir. 1957) .............................  5n

City of Montgomery v. Gilmore, 277 F.2d 364 (5th 
Cir. 1960) cert. den. sub nom. Ghitto v. Hampton,
371 U.S. 911 ...................................................................  5n

Dawson v. Mayor and City Council of Baltimore City,
220 F.2d 387 (4th Cir. 1955), aff’d 350 U.S. 877 .......  5n

Detroit Housing Commission, et al. v. Lewis, 226 F.2d 
180 (6th Cir. 1955) 5



IV

PAGE

Fanchon & Marco, Inc. v. Paramount Pictures, 107 
F. Supp. 532 (D.C. N.Y. 1952) ......................................  3

Frasier v. Board of Trustees of University of North 
Carolina, 134 F. Supp. 589 (three-judge court) (M.D.
N.C. 1955), al'fd 350 U.S. 979 ................................ .....  4n

Hanes v. Shuttlesworth, 310 F.2d 303 (5th Cir. 1962 .... 5n
Holmes v. City of Atlanta, 223 F.2d 93 (5th Cir. 1955),

350 U.S. 879 .................................................................4n, 5n

Oppenheimer v. F. J. Young & Co., 144 F.2d 387 
(2nd Cir. 1944) ...................................... .......................  5

Sharp v. Lucky, 252 F.2d 910 (5th Cir. 1958) ......... . 4n
Smith v. Holiday Inns of America, Inc., 336 F.2d 630 

(6th Cir. 1964) .............................................................  5

United States v. Borden, 347 U.S. 514, 518 (1954) .......  2

Vann, et al. v. Toledo Metropolitan Housing Authority,
113 F. Supp. 210 (N.D. Ohio 1953) ........................... 5

Waldron v. British Petroleum Co., 231 F. Supp. 72, 86 
(S.D. N.Y. 1964) .............................................................  2

Westor Theatres v. Warner Brothers Pictures, 41 F. 
Supp. 757 (D.C. N.J. 1941) ...................................... 3

Williams v. Kansas City, 205 F.2d 47 (8th Cir. 1953) 
cert. den. 346 U.S. 826 ........ ................ ......................... 4

York v. Guaranty Trust Co. of New York, 143 F.2d 503 
(2nd Cir. 1944) ..........    5



V

S ta tu tes  an d  R ules  I nvolved

PAGE

15 U.S.C.A. §15, Clayton Act §4 ..................................  2, 3

15 U.S.C.A, §26, Clayton Act §16  ..............................  2, 3

F.R.C.P. 23 (a)(3) ....................... -.................-................  4,5
F.R.C.P. 23 (b) (2) as amended, effective July 1, 1966 .. 5



Intteii States Olmurt of Appeals
F or t h e  S ix t h  C ir c u it  

No. 17,113

M ercer B r a tc h e r , et al.,
Plaintiffs-Appellants, 

v.

T h e  A k ro n  A rea B oard of R ealtors , et al.,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

REPLY BRIEF FOR THE PLAINTIFFS-APPELLANTS

ARGUMENT

I

Have Plaintiffs Alleged Sufficient Injury and Damage 
Proximately Caused by Defendants’ Violation of the 
Sherman Act?

The District Court Did Not Answer This Question.

Plaintiff-Appellants Contend it Should be Answered 
“ Yes.”

Plaintiffs allege that defendants have agreed among 
themselves not to sell or rent real property located in 
predominantly white neighborhoods of Akron to Negroes. 
Plaintiffs further allege that directly as a result of defen­



2

dants’ conspiracy, prospective Negro purchasers have been 
prevented from buying property in all white neighbor­
hoods and Negro brokers and prospective white sellers 
have been prevented from selling property in such neigh­
borhoods to Negroes. Plaintiffs thus clearly fit within the 
statutory language of §16 of the Clayton Act1 which au­
thorizes injunctive relief for any “person” threatened with 
“loss or damage” from violation of that Act.

All that plaintiffs seek here is injunctive relief. There 
is no prayer for treble damages. Yet instead of addressing 
themselves to §16 of the Clayton Act—-the only section 
relating to private injunctions—defendants introduce §42 
of the Clayton Act which relates solely to the recovery 
of treble damages and requires proof of loss to “business 
or property.” 3 In confusing the applicable provision, 
defendants rely upon cases which do not hold §16 to be 
the equivalent of §4, as defendants suggest, but merely 
distinguish anti-trust injuries to private individuals from 
injuries to the public or describe the facts before the court. 
However, the Supreme Court opinion in United States v. 
Borden, 347 U.S. 514, 518 (1954), which defendants fail 
to cite, specifically describes the kind of showing required 
of a private litigant under §16 by referring to the statutory 
language:

“Under §16 of the Act . . .  a private plaintiff may 
obtain injunctive relief against such violations only

1 15 U.S.C.A. § 26.
2 15 U.S.C.A. § 15.

3 Waldron v. British Petroleum Co., 231 F. Supp. 72, 86 (S.D.N.Y. 
1964), cited in plaintiffs’ brief below at p. 12, explored the distinction be­
tween “ business and property” :

The statute explicitly uses the words “ business or property”  in the 
disjunctive. Congress intended this distinction to be meaningful. The 
word property”  has a wider scope and is more extensive than the 
word “ business.”  Less is required to prove “ property”  than to prove 
“ business.”



3

on a showing of ‘threatened loss or damage’ ; and this 
must be of a sort personal to the plaintiff.”

See also Fanchon & Marco, Inc. v. Paramount Pictures, 
107 F. Supp. 532 (D.C. N.Y. 1952) reversed in part on 
other grounds, 202 F.2d 731 (2nd Cir. 1953). Westor 
Theaters v. Warner Brothers Pictures, 41 F. Supp. 757 
(D.C. N.J. 1941), involving an action under §4 and §16 of 
the Clayton Act, similarly refers expressly to the separate 
statutory requirements.

Even assuming with defendants that plaintiffs must show 
an injury to “property,” plaintiffs’ allegations are still 
sufficient since injuries to property interests are shown. 
Plaintiff real estate brokers adequately describe an injury 
to property by alleging a loss of income. White prospective 
sellers unable to sell to Negroes suffer an economic loss 
from the limitation on the market of available purchasers 
and the loss of the opportunity to dispose of real property 
quickly and profitable. With regard to Negro plaintiffs, 
the complaint alleges that Negro persons are forced to 
pay more money than white persons for equivalent hous­
ing, again an allegation of an injury to property.

Plaintiffs clearly satisfy the requirements set forth in 
§16 of the Clayton Act, but defendants would add still 
another: that only businessmen in competition with the 
alleged anti-trust violators can sue for injunctive relief. 
No case cited by defendants supports this argument. What 
the cases hold is that the alleged injury must flow directly 
from the restraint upon commerce.

Whether the rubric is that plaintiffs’ injury must be 
the “ direct” result of the violation, that their injury must 
be “proximately” caused by the violation or that plaintiffs 
must be in the “ target area” of the violation, the facts here 
fall squarely within the rule. The injury to all plaintiffs



4

flows directly from tlie agreement not to sell in certain 
neighborhoods to Negroes. Negroes cannot buy property, 
whites cannot sell to Negroes, and Negro brokers are denied 
listings. All plaintiffs are thus the “ target” of defendants’ 
efforts. In order to keep Negroes from buying real prop­
erty in white neighborhoods, defendants must necessarily 
prevent white owners from selling and Negro real estate 
brokers from being able to sell to Negroes in the specified 
areas.

Plaintiffs here seek no damages. There is thus no danger 
of a windfall to unharmed claimants or repeated recovery 
by different claimants for the same injury—the policy 
foundation of the “rules” espoused by defendants.

II

Is the Present Action Maintainable as a Class Action?

The District Court Did Not Answer This Question.

Plaintiffs-Appellants Contend it Should be Answered 
“ Yes.”

Federal Eule 23 (a) (3), in effect at the commencement of 
this action, clearly permitted class actions to secure injunc­
tive relief against group injuries such as racial discrimina­
tion. Williams v. Kansas City, 205 F.2d 47 (8th Cir. 1953) 
cert. den. 346 U.S. 866; Adams v. Lucy, 228 F.2d 619 (5th 
Cir. 1956) (adopting opinion of lower court reported at 134 
F. Supp. 235). Cases in this court and elsewhere4 have per­

4 See, e.g., Sharp v. Lucky, 252 F.2d 910 (5th Cir. 1958), class relief 
afforded to two Negro citizens in behalf o f “ all other Negro citizens”  
against a voting registrar for violation of civil rights, and, Frasier v. 
Board o f Trustees o f University o f North Carolina, 134 F. Supp. 589 
(three-judge court) (M.D.N.C. 1955), aff’d 350 U.S. 979, extending to 
three Negro youths, seeking admission to the university, class relief on be­
half o f all Negroes in the state on reasoning that “ Negroes as a class may 
not be excluded because of their race or color.”  Holmes v. City o f Atlanta,



5

mitted such relief without question. Smith v. Holiday Inns 
of America, Inc., 336 F.2d 630 (6th Cir. 1964) afforded class 
relief to Smith on behalf of all other Negroes in the United 
States. See also, Detroit Housing Commission, et al. v. 
Lewis, 226 F.2d 180 (6th Cir. 1955); Vann, et al. v. Toledo 
Metropolitan Housing Authority, 113 F. Supp. 210 (N.D. 
Ohio 1953).

Defendants raise captious objections when they challenge 
the adequacy of the representation by named plaintiffs and 
the sufficiency of the description of the geographical 
boundaries of the class of prospective Negro buyers and 
renters. Referring to such class actions, Professor Moore 
makes clear that “there is no need for a searching inquiry 
concerning the adequacy of [plaintiffs’ ] representation of 
others in the class . . . ” 3 Moore’s Federal Practice § 23.07 
(1) [2d Ed. 1963]. See also, York v. Guaranty Trust Co. of 
New York, 143 F.2d 503 (2nd Cir. 1944) rev’d on other 
grounds 326 U.S. 99; Oppenheimer v. F. J. Young & Co., 
144 F.2d 387 (2nd Cir. 1944). With regard to class bound­
aries, Negro plaintiffs sue on behalf of themselves “and all 
other Negro persons” 6 who are excluded from white Akron 
neighborhoods as a result of defendants’ conspiracy.

If the right of plaintiffs to maintain a class action was 
clear prior to July 1,1966, amended Federal Rule 23 (b) (2) 
which replaces former Rule 23 (a)(3) makes it even clearer. 
The amended rule endorses the long-established judicial 
interpretation of former Rule 23 (a)(3), authorizing suits

223 F.2d 93 (5th Cir. 1955) (modified on other grounds), 350 U.S. 879 
(golf course); City o f Montgomery v. Gilmore, 277 F.2d 364 (5th Cir. 
1962) cert. den. sub nom, Ghitto v. Hampton, 371 U.S. 911 (golf course); 
Hanes v. Shuttlesworth, 310 F.2d 303 (5th Cir. 1962) (public recreational 
facilities); Dawson v. Mayor and City Council o f Baltimore City, 220 
F.2d 386 (4th Cir. 1955), afif’d 350 U.S. 877 (public beach); City o f  
Greensboro v. Simkins, 246 F.2d 425 (4th Cir. 1957) (golf course).

5 Joint Appendix pp. 3a-4a.



6

for class injunctive relief where “the party opposing the 
class has acted or refused to act on grounds generally ap­
plicable to the class.” The Advisory Committee’s Note to 
the amended rule makes explicit that it covers actions where 
a party is charged with racial discrimination:

“Action or inaction is directed to a class within the 
meaning of this subdivision even if it has taken effect 
or is threatened only as to one or a few members of the 
class, provided it is based on grounds which have gen­
eral application to the class.

“ Illustrative are various actions in the civil-rights 
field where a party is charged with discriminating un­
lawfully against a class, usually one whose members 
are incapable of specific enumeration.” 34 F.R.D. 325

Respectfully submitted,

J ac k  Greenberg
J am es  M. N ab rit , III
L eroy  D . C la r k
S h e il a  R u sh

10 Columbus Circle 
New York, New York

J a c k  G. D ay
1748 Standard Building 
Cleveland, Ohio

N o rm an  P u r n e l l
First National Tower 
Akron, Ohio

J a y  T opkis
575 Madison Avenue 
New York, New York

Attorneys for Plaintiffs-Appellants



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