Appeal from orders entered by the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, in a consolidated action dismissing plaintiffs' antitrust counts in both complaints pursuant to Rule 12(b)(6), Fed. R. Civ. P., on the ground, that plaintiffs were not within the "target area" of the defendants' alleged conspiracy involving a group boycott of Libyan oil. Held, order affirmed as to dismissal of the first count in each complaint, but reversed and remanded for further proceedings with respect to the second count in the LILCO complaint alleging a conspiracy to reduce the supply of oil and to raise the prices charged thereof to electric utilities.
Gibbons,*fn* Gurfein and Meskill, Circuit Judges.
This is a consolidated appeal by Long Island Lighting Company (LILCO), and Consolidated Edison Company of New York, Inc. (CON EDISON). Both companies were plaintiffs in separate antitrust actions which had been consolidated for trial in the district court. That court granted the defendants' joint motion, pursuant to Rule 12(b)(6), Fed. R. Civ. P., to dismiss the first and second counts of the LILCO complaint and the first count of the CON EDISON complaint.*fn1 We affirm the dismissal of the first count in both complaints, but reverse the dismissal of the second count of the LILCO complaint and remand that claim to the district court for further proceedings.
The plaintiffs LILCO and CON EDISON are public utilities that generate and distribute electricity for consumption in the State of New York. The defendants are three integrated petroleum companies and two of their subsidiaries: Standard Oil Company of California (SOCAL) and its wholly-owned subsidiary Chevron Oil Trading Company; Texaco, Inc. (TEXACO) and its wholly-owned subsidiary Texaco Overseas Petroleum Company; and Mobil Oil Corporation (MOBIL).
In order to generate electricity, LILCO and CON EDISON purchase low sulphur residual fuel oil which is produced in the course of refining low sulphur crude oil. Environmental regulations require that utilities burn low sulphur residual fuel oil in most of their fossil fuel generating plants. This case grows out of the very sharp increase in price of that grade of oil beginning late in 1973, and it presents the issue whether LILCO and CON EDISON may recover damages under § 4 of the Clayton Act, 15 U.S.C. § 15, or obtain injunctive relief under § 16 of the Clayton Act, 15 U.S.C. § 26, by reason of the actions of the defendants alleged in the complaint. The allegations of the first count of each complaint are identical for all purposes relevant to this appeal and will be treated together. The second count of the LILCO complaint requires separate treatment. However, with respect to each count, the question presented is whether a Rule 12(b)(6) motion to dismiss was properly granted.
In addition to the parties in this action, the complaints refer to activities by the following:
LIBYA - The Libyan Arab Republic, in which are located deposits of low sulphur crude oil.
NOC - The Libyan National Oil Company, an oil corporation owned by the Libyan government.
AMOSEAS - American Overseas Petroleum Limited, a company jointly owned by SOCAL and TEXACO, which in 1973 was engaged in crude oil drilling and producing in Libya at oil concessions granted by that government.
ARAMCO - Arabian American Oil Company, a company jointly owned by SOCAL, TEXACO, MOBIL, Exxon corporation, and the government of Saudi Arabia, engaged in the production, refining and transportation of crude oil produced in Saudi Arabia, a Persian Gulf state.
OPEC - The Organization of Petroleum Exporting Countries, an organization of certain Asian, African and Latin American countries, which account for the bulk of the known world crude oil reserves, of which Libya and Saudi Arabia are members.
LPG - The London Policy Group, a group of major oil companies with interests in OPEC countries formed in January 1971 to plan policy with respect to, and to ...