Commonwealth v. Winslow

9 Va. Cir. 130, 1987 Va. Cir. LEXIS 235
CourtPrince William County Circuit Court
DecidedJune 26, 1987
DocketCase No. (Chancery) 20943
StatusPublished

This text of 9 Va. Cir. 130 (Commonwealth v. Winslow) is published on Counsel Stack Legal Research, covering Prince William County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Winslow, 9 Va. Cir. 130, 1987 Va. Cir. LEXIS 235 (Va. Super. Ct. 1987).

Opinion

By JUDGE H. SELWYN SMITH

In this action against defendants, the Commonwealth sought injunctive relief, civil penalties, and attorney's fees and costs for alleged violation of Virginia’s Antitrust Act. After trial on the merits, the Court found that all defendants had violated § S9.1-9.5 of the Code of Virginia (Court’s Opinion of February 20, 1987). The Court (1) granted injunctive relief against all defendants; (2) imposed civil penalties against defendants Joseph R. Winslow, Jerry C. Faircloth, and A. A. Mobile Market, Inc.; and (3) opined that the Commonwealth would be entitled to a reasonable attorney’s fee and costs. The Court is now compelled to reverse that part of its previous opinion regarding entitlement of the Commonwealth to attorney’s fee and costs.

The narrow issue in this matter is whether the Attorney General may recover attorney’s fee and costs after prevailing in a suit in equity brought on behalf of the Common[131]*131wealth pursuant to § 59.1-9.15(a) when a suit for damages was not also brought. This Court holds that an award of attorney’s fees and costs may not be made to the Attorney General in an action for equitable relief only. The issue is apparently one of first impression.

Actions under the Virginia Antitrust Act are divided between personal suits (§ 59.1-9.12) and suits on behalf of the State (§ 59.1-9.15). The issue arises from the fact that both sections are subdivided into suits for damages and suits in equity. Recovery of attorney’s fees and costs in both sections is expressly provided in suits for damages while both sections are conspicuously silent regarding recovery in suits in equity.

The Commonwealth contends that (1) recovery may be had no matter which subsection is applicable to the action because of the cumulative remedies provision in Section 59.1-9.16; and (2) public policy necessitates recovery in this case in order to give the Attorney General an incentive to enforce the Antitrust laws. Defendants contend that the division of actions between damages and equity is significant and that recovery may not be had in equity actions when there is no express provision for such recovery within the subsection. Since there is no Virginia authority on point, the Court relies upon Section 59.1-9.17 which provides that construction of Virginia’s Antitrust Act should be in harmony with judicial interpretations of comparable federal statutory provisions.

Analysis must begin by deciding which subsection(s) of § 59.1-9.15 apply to the present action. Subsections (a), (b), (c), and (d) of § 59.1-9.15 specify in what capacity the Attorney General may bring an action and the relief that may be granted. Reference to the subsections of § 59.1-9.15 in both § 59.1-9.13 "Effect of conviction in other proceedings" and § 59.1-9.14 "Limitation of actions" illustrates that each subsection of § 59.1-9.15 is a separate action with separate and different remedies attaching.

The Bill of Complaint filed on May 13, 1985, alleging "violations of the Virginia Antitrust Act, Va. Code Sections 59.1-9.1 to 59.1-9.17" did not specify which subsection(s) of § 59.1-9.15 applied to this action. The complaint did, however, specify that the action was being brought on behalf of the Commonwealth "in its sovereign capacity [132]*132. . . to secure civil penalties and injunctive relief as authorized by Va. Code §§ 59.1-9.11 and 59.1-9.15." In addition to a request for attorney’s fees and costs, the prayer requested injunctive relief and civil penalties. No damages for injury were requested nor were damages an issue at trial. The Court must conclude that the action was pursuant to § 59.1-9.15(a) only.

Virginia’s Antitrust Act is comparable to the Sherman and Clayton Acts. Significantly, these federal statutory provisions also divide antitrust actions between private suits for damages (15 U.S.C. § 15) and in equity (15 U.S.C. § 26) and suits brought by the Attorney General for damages (15 U.S.C. § 15a) and in equity (15 U.S.C. Sect. 4). Prior to 1976, these provisions also expressly provided recovery of attorney’s fees and costs in suits for damages but were silent regarding recovery in suits in equity. Federal judicial decisions under these provisions hinge on whether recovery is expressly provided within the statute.

The law is well settled regarding recovery of attorney’s fees and costs in actions for damages. In a private action pursuant to 15 U.S.C. § 15, the courts have consistently held that recovery may be had by a prevailing plaintiff. International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1273 (8th Cir. 1980), cert. denied, 449 U.S. 1063 (1980). Not only is recovery permitted, the express provision for such recovery within the statute makes it mandatory. Twin City Sportservice, Inc. v. Charles O. Finley & Company, Inc., 676 F.2d 1291, 1312 (9th Cir. 1982), cert. denied, 459 U.S. 1009 (1982). The United States is also entitled to recover damages and attorney’s fees and costs when it prevails in an action as a consumer of goods and services pursuant to 15 U.S.C. § 15a. State of Hawaii v. Standard Oil Company of California, 405 U.S. 251, 265 (1972).

Actions in equity, however, are treated quite differently from actions for damages described above. Prior to 1976, judicial decisions held that recovery of attorney’s fees and costs could not be had in private equity actions pursuant to 15 U.S.C. § 26 because the statute was silent regarding such recovery. Decorative Stone Co. v. Building Trades Council of Westchester County, 23 F.2d 426 (2d Cir. 1928), cert. denied, 277 U.S. 594 (1928); T. S. Alphin [133]*133v. Henson, 538 F.2d 85 (4th Cir. 1976), cert. denied, 429 U.S. 960 (1976). In 1976, 15 U.S.C. § 26 was amended to expressly provide recovery of attorney’s fees and costs. Since 1976, judicial decisions have held that such recovery may be had in private actions in equity pursuant to 15 U.S.C. § 26. T. S. Alphin v. Henson, 552 F.2d 1033 (4th Cir. 1977), cert. denied, 434 U.S. 823 (1977).

No authority has been found holding that the Attorney General is entitled to recover attorney’s fees and costs upon prevailing in a suit in equity pursuant to 15 U.S.C. Sect. 4.

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9 Va. Cir. 130, 1987 Va. Cir. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-winslow-vaccprincewill-1987.