# Hughes Tool Company v. Trans World Airlines, Inc. (409 U.S. 363)
## Dissenting Opinion

    Burger
Supreme Court of the United States
409 U.S. 363
Hughes Tool Co. et al. v. Trans World Airlines, Inc.
Certiorari to the United States Court of Appeals for the Second Circuit
No. 71-827. Argued: October 10, 1972 --- Decided: January 10, 1973
Trans World Airlines, Inc. (TWA) brought this antitrust action against the Hughes Tool Co. (Toolco) and others for treble damages as a result of the manner in which Toolco had exercised its controlling interest in TWA, with particular reference to Toolco's asserted acts to control and dictate the acquisition and financing of aircraft by TWA. As an organization engaged in phases of aeronautics, Toolco could not acquire control of an air carrier such as TWA without consent of the Civil Aeronautics Board (CAB). In 1944 the CAB approved de facto control of TWA by Toolco as comporting with the provisions of § 408 of the Federal Aviation Act. That provision permits acquisitions of control that the CAB finds are not inconsistent with the public interest and that will not result in monopoly. Section 414 immunizes from antitrust liability any conduct approved by a CAB order issued under § 408. The approval narrowly limited intercompany sales transactions without specific CAB approval, and required annual reporting. A few years later, Toolco and TWA made an agreement permitting Toolco to obtain full legal control of TWA. The CAB, after full hearings into the Toolco-TWA relationship, found that Toolco's financial and other support was of great importance to TWA and concluded that "the continued interest of Toolco in TWA appears essential to the best interests of the carrier and the public." The CAB's approval was made subject to the conditions of the 1944 order. As a result, from 1944 to 1960, every acquisition and lease of aircraft by TWA from Toolco and each financing by TWA from Toolco received CAB approval pursuant to § 408. In 1960, Toolco's stock in TWA was placed in a voting trust in connection with a program for financing TWA's acquisition of jet equipment. Shortly thereafter, TWA brought this suit. As a defense, Toolco relied on Pan American World Airways v. United States, 371 U.S. 296. The District Court entered a default judgment against Toolco. The Court of Appeals affirmed, concluding that Pan American was inapplicable because, unlike the situation in that case, the conduct challenged in TWA's complaint was "unrelated to any specific function of the CAB" and not within the CAB's exclusive competence.
Held: The transactions that TWA challenged as violative of the antitrust laws were under the CAB's control and surveillance, and, by virtue of §§ 408 and 414 of the Federal Aviation Act, had immunity under the antitrust laws. The Court of Appeals, therefore, erred in holding that Pan American, supra, is not controlling on the facts involved here. Pp. 366-389.
DOUGLAS, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 389. MARSHALL, J., took no part in the consideration or decision of the cases.
Charles Alan Wright argued the cause for petitioners in No. 71-827 and respondents in No. 71-830. With him on the briefs were Clark M. Clifford, Thomas D. Finney, Jr., E. Barrett Prettyman, Jr., Chester C. Davis, and Maxwell E. Cox.
Dudley B. Tenney argued the cause for respondent in No. 71-827 and petitioner in No. 71-830. With him on the briefs were James Wm. Moore, Paul W. Williams, Marshall H. Cox., Jr., Raymond L. Falls, Jr., and William T. Lifland.
Solicitor General Griswold, Assistant Attorney General Kauper, George Edelstein, O.D. Ozment, Warren L. Sharfman, and Robert L. Toomey filed a memorandum for the Civil Aeronautics Board as amicus curiae.

## Notes

* ↑ Together with No. 71-830, Trans World Airlines, Inc. v. Hughes Tool Co. et al., on certiorari to the same court.