Mishawaka v. American Electric Power Co.

Mishawaka v. American Electric Power Co.

Opinion

 [*978]  1. Judge Will made substantial contributions to this opinion and in particular to the section on damages.

Involved is the application of the Sherman Act ² to a vertically integrated investor-owned electric utility, found by the trial court to be a monopoly. The utility's wholesale rates are subject to regulation by the Federal Energy Regulatory Commission ³ and its retail rates are subject to regulation either by the State [**2]  Public Service Commission of Indiana in the instance of nine municipal plaintiffs or Michigan in the instance of one municipal plaintiff. The municipalities which own and operate local transmission systems for retail sale of electricity depend on defendants for their wholesale supply. Because the utility's wholesale rates charged the municipalities during the period 1976-1978 exceeded the retail rates charged to its own retail customers, the utility was found by the trial court to be guilty of a "price squeeze" ⁴ and of related exclusionary acts calculated to force the municipalities out of the retail electric business resulting in the conversion of municipal retail customers into retail customers of the utility. Triple damages were awarded based on rate overcharges and an injunction issued. ⁵ A cross appeal by the municipalities is also before us questioning the failure of the district court to award the municipalities their litigation expenses  [*979]  before the federal commission as an element of antitrust damages. Those commission proceedings involving these same parties considered related issues. This case in its preliminary stages was before us on interlocutory appeal.  [**3]  ⁶ In Mishawaka I, several issues were resolved. This court held that the utility was not immunized from Sherman Act attack and that the federal commission had neither exclusive nor primary jurisdiction over the utility faced with these antitrust charges. For the purposes of this case those issues are settled.

 [**4]  Although this case was well briefed and argued, it remains complex factually and legally. ⁷ Dual regulation, federal and state, of this electric utility, which is also subject to the Sherman Act, generates legal and practical problems in addition to electricity. ⁸ The necessary resolution by the courts of the involved complexities does not render a totally satisfying result. We shall first consider a capsule of the facts found by the district court, and then the various issues which arise.

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