Ackerman-Chillingworth, Division of Marsh & McLennan, Inc. v. Pacific Electrical Contractors Ass'n

This is a private antitrust action challenging a workmen’s compensation plan, which was implemented by an employers’ association pursuant to a collective bargaining agreement. The appellants alleged that the plan was both illegal per se and unlawful as contrary to the rule of reason under section 1 of the Sherman Act, 15 U.S.C. § 1 (1970). The opposing parties moved for summary judgment, and the District Court granted the motion of the appellees, writing an excellent opinion, reported at 405 F.Supp. 99 (D.Hawaii 1975). Here, the appellants vigorously challenge the propriety of the order. 1

*486 FACTS 2

Appellants, who are general insurance agents and insurance solicitors in Hawaii, filed a complaint against the Pacific Electrical Contractors Association (PECA), a trade association, its executive secretary, one Oda, the International Brotherhood of Electrical Workers, Local 1186 (IBEW), its business manager, named Fujikawa, the Insurance Company of North America (INA), and the latter’s wholly-owned subsidiary, Pacific Employers Insurance Company (PEIC). Of the approximately 120 electrical contractors in Hawaii, 63 are dues-paying members of PECA. PECA negotiates with IBEW on…

concurring and dissenting:

I concur in my brothers’ conclusion that the insurance companies were entitled to judgment in their favor. I cannot agree that the remaining defendants were enti- *493 tied to judgment because the existence of triable issues of material fact foreclosed that conclusion.

The gravamen of plaintiffs’ complaint is that the defendants combined to coerce the electrical contractors of Hawaii, especially the non-members of the defendant electrical contractors’ trade association, to purchase their workmen’s compensation insurance through a single agent, defendant Oda. The combination virtually excluded plaintiffs from becoming insurance agents in the electrical contractors’ market for workmen’s compensation policies. The pleadings adequately averred a per se violation of Section 1 of the Sherman Act ( 15 U.S.C. § 1 ) unless the defendants’ program was immunized from antitrust liability either by the McCarran-Ferguson Act ( 15 U.S.C. §§ 1011-15 ) or by the so-called non-statutory labor exemption. Immunity under the former Act does not exist if the defendants used coercion in furtherance of their plan. Moreover, immunity under the non-statutory labor exemption…