Ajello v. Hartford Federal Savings & Loan Ass'n , 32 Conn. Super. Ct. 198 ( 1975 )

MEMORANDUM OF DECISION ON PETITION FOR AN ORDER OF COMPLIANCE Pursuant to § 35-42 (f) of the General Statutes, the attorney general of the state of Connecticut has petitioned this court for an order of compliance directing the defendant to obey a subpoena duces tecum. Connecticut's updated Anti-Trust Act (General Statutes §§ 35-24 to 35-44) empowers the attorney general, or his deputy, to issue, by subpoena duces tecum, demands requiring persons to submit documentary material to him relevant to the scope of any alleged violation of the antitrust laws which he believes has taken place.

The defendant, who has failed to furnish the requested documents, contends that (1) General Statutes § 35-42 violates the fourth, fifth, and fourteenth amendments of the constitution of the United States and article first, § 7, of the constitution of Connecticut and (2) the attorney general has not complied with the statutory conditions governing the issuance of subpoenas duces tecum.

The purpose of the state Anti-Trust Act is to enable the attorney general, who is charged with the enforcement of the state's antitrust laws, to obtain documentary information to determine if there has been a violation of the antitrust laws and, if there has, to issue a civil complaint based thereon. MobilOil Corporation v. Killian, 30 Conn. Sup. 87. The function is to afford the attorney general a form of pretrial discovery similar to that made available to the antitrust division of the United States justice department by the Antitrust Civil Process Act of 1962, contained in 76 Stat. 548-552; 15 U.S.C. § 1311-1314 (1970). As it envisions a precomplaint procedure, the attorney general is not required to allege with precision such facts in his demand as would be necessary to set forth a cause of action in a formal complaint. By utilizing the statute, the attorney general is acting in an investigative role rather than as an enforcement officer. Accordingly, it cannot be required of him that he specify in advance the exact nature of the conduct under investigation for that would defeat the purpose of the statute. As the court concluded in Mobil, supra, 91, he cannot be charged with a duty to "know in advance what he cannot know until the investigation is completed."

Although constitutional objections have frequently been made to statutes authorizing administrative investigations and inspections, orderly investigations by such agencies have been authoritatively upheld. In the leading case, OklahomaPress Publishing Co. v. Walling, 327 U.S. 186, a federal administrator's right to judicial enforcement of subpoenas duces tecum issued by him in the course of investigations conducted pursuant to § 11(a) of the Fair Labor Standards Act was upheld. The Supreme Court noted (p. 196): "Petitioners' plea that the Fourth Amendment places them so far above the law that they are beyond the reach of congressional and judicial power as those powers have been exerted here only raises the ghost of controversy long since settled adversely to their claim." The court recognized that to deny the validity of the enforcement orders would in effect deny not only Congress' power to enact the provisions sustaining them but also its authority to delegate effective investigatory powers, if not perhaps Congress' own power to institute such inquiries. The court summarized (p. 208) the law insofar as it applies to the production of corporate records and papers in response to a subpoena or order authorized by law: "[T]he Fifth Amendment affords no protection by virtue of the self-incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be ``particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant." Since article first, § 7, of the state constitution is couched in the same language as the fourth amendment, it should be accorded the same interpretation.Hing Wan Wong v. Liquor Control Commission,160 Conn. 1, 6; State v. Mariano, 152 Conn. 85.

Accordingly, as the Connecticut legislature may lawfully authorize investigations by the state's attorney general into alleged violations of the antitrust laws, the only substantial question remaining is whether the attorney general's investigation in the instant case is in conformity with the statutory authorization. As the attorney general's investigatory powers are derived from General Statutes § 35-42, he is consequently limited by the procedures set forth therein, although such limitations as may exist are not necessarily mandated by any principle of constitutional law.

The defendant asserts that the subpoena in question fails to "state the nature of the alleged violation" which the attorney general believes has transpired, such statement being required by § 35-42 (b)(1) of the General Statutes. The statute (§ 35-42) reads, in part: "(a) whenever the attorney general, or his deputy, has reason to believe that any person has violated any of the provisions of this chapter, he may, prior to instituting any action or proceeding against such person, issue in writing and cause to be served upon any person, by subpoena duces tecum, a demand requiring such person to submit to him documentary material relevantto the scope of the alleged violation; (b) suchdemand shall (1) state the nature of the allegedviolation, and (2) describe the class or classes of documentary material to be reproduced thereunder with such definiteness and certainty as to be accurately identified . . . ." (Italics supplied.) The demand made in this case by the attorney general stated that the defendant was required to submit certain data "because of alleged violation of the Connecticut Anti-Trust Act, §§ 35-26, 35-27 and35-28 (d)." The issue, narrowly posed, is whether that statement in the subpoena is sufficient to meet the statutory requirement that the demand state "the nature of the alleged violation."

Unlike the analogous federal Antitrust Civil Process Act, 15 U.S.C. § 1311-1314 (1970), General Statutes § 35-42 does not require that the attorney general state the nature of the conduct constituting the alleged antitrust violation which is under investigation. Therefore, the absence of such a statement as to conduct in the subpoena duces tecum under consideration is not a fatal defect.

According to the subpoena, the investigation concerns activity prohibited by General Statutes §§ 35-26, 35-27, and 35-28 (d). Section 35-26 is patterned after § 1 of the federal Sherman Anti-Trust Act, while § 35-27 is the state analogue of § 2 of the Sherman Act. 26 Stat. 209, as amended, 15 U.S.C. § 1-7 (1970). Section 35-28 (d) is essentially a codification of what has been labeled a per se violation of § 1 of the Sherman Act. SeeKlor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207. Therefore, any violation of § 35-28 (d) would simultaneously be a violation of § 35-26. Any violation of § 35-28 would necessarily be subsumed under § 35-26 or § 35-27 in any event.

It should be observed here that federal courts have been wary of attempts to frustrate the investigative purposes of the more stringent federal act by attacks on the sufficiency of the statement of conduct alleged to be an antitrust violation. Although the demand in question stated only that it was investigating a possible violation of § 1 of the Sherman Act by a "contract or combination in unreasonable restraint of trade," the court in Material Handling Institute, Inc. v. McLaren, 426 F.2d 90, cert. denied, 400 U.S. 826, held it to be sufficient. The court acknowledged the terseness of the statement but determined that the record established that the recipient understood what conduct was under investigation. In a leading case, Petition ofGold Bond Stamp Co., 221 F. Sup. 391, aff'd,325 F.2d 1018, the court was mindful of the purpose of the Antitrust Civil Process Act, that being to permit the justice department to determine whether there had been a violation of the antitrust laws, and, if so, to enable the government to allege properly any violation in a civil complaint. The statute authorizing the issuance of civil investigative demands was not interpreted to require specification of the particular offense under investigation. As in the Material Handling Institute, Inc., case, supra, the court concluded that it was apparent from the record that the recipient understood the intent and scope of the demand served upon it. That conclusion was reached by the observation that the recipient had asserted before the court that the investigation was comparable to that which was being conducted by the federal trade commission into the trading stamp industry, particularly concerning two of the principal trading stamp companies.

The record in the instant case likewise indicates that the defendant is quite cognizant of the scope of the attorney general's investigation. The statement of the nature of the alleged violation, while not particularly narrow, is no broader in scope than that in question in the Material Handling Institute,Inc., case. In that case the more rigorous standards of the federal antitrust civil process statute were being applied.

The fact that a violation of General Statutes § 35-28 (d) may simultaneously be a violation of either of the more general antitrust provisions, § 35-26 or § 35-27, does not render the statement of the nature of the alleged violation insufficient; for that is but a consequence of the overlapping nature of Connecticut's antitrust laws. As in the Petitionof Gold Bond Stamp Co., supra, the defendant here is asserting that the subject matter under investigation is currently being considered by another supervisory governmental agency. It is thus apparent that the defendant is, in point of fact, very well informed of the nature of the alleged violation under investigation. To read the requirements of General Statutes § 35-42 in an overly strict manner would only spawn unnecessary litigation and encourage recipients of lawfully issued subpoenas duces tecum to challenge the sufficiency of notice on very technical grounds.

Accordingly, the petition is granted, and an order may enter requiring the defendant to comply immediately with the plaintiff's subpoena duces tecum and written interrogatories.