The State of California, on Behalf of Itself and All Others Similarly Situated, and as Parens Patriae v. Frito-Lay, Inc.

This interlocutory appeal, allowed under 28 U.S.C. § 1292 (b), is taken from an order of the District Court, 333 F. Supp. 977 , denying appellants’ motion to dismiss the second cause of action stated by California in its complaint to recover treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15 . The suit was brought against twelve manufacturers of “snack foods,” charging a conspiracy to fix and maintain prices in violation of the Sherman Act, 15 U.S.C. § 1 .

The state’s second cause of action reads as follows:

Thus this appeal presents the question whether a state, as parens patriae, may sue and recover treble damages on behalf of its citizen-consumers for the injuries suffered by them.

This is quite a different question from that presented in Hawaii v. Standard Oil Company of California, 405 U.S. 251 , 92 S.Ct. 885 , 31 L.Ed.2d 184 (1972). There, Hawaii sought treble-damage recovery for injury to a quasi-sovereign interest of the state itself — in essence, an injury to the general economy of the state. It was held that this was not injury to business or property of the state under § 4 of the Clayton Act. 405 U.S. at 264 , 92 S.Ct. 885 .

Here, it is for injury to…