Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP

OPINION OF THE COURT VERIZON COMMUNICATIONS INC. V. LAW OFFICESOF CURTIS V. TRINKO,
LLP 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-682 VERIZON COMMUNICATIONS INC., PETITIONER v. LAW OFFICES OF CURTIS V. TRINKO, LLP

															on writ of certiorari to the united states court of
appeals for the second circuit

															[January 13, 2004]

															   Justice Scalia delivered the
opinion of the Court.

															   The Telecommunications Act of
1996, Pub. L. 104–104, 110 Stat. 56, imposes certain duties upon
incumbent local telephone companies in order to facilitate market
entry by competitors, and establishes a complex regime for
monitoring and enforcement. In this case we consider whether a
complaint alleging breach of the incumbent’s duty under the 1996
Act to share its network with competitors states a claim under §2
of the Sherman Act, 26 Stat. 209.

															I

															   Petitioner Verizon Communications
Inc. is the incumbent local exchange carrier (LEC) serving New York
State. Before the 1996 Act, Verizon,[ Footnote 1 ] like other incumbent LECs, enjoyed an
exclusive franchise within its local service area. The 1996 Act
sought to “uproo[t]” the incumbent LECs’ monopoly and to introduce
competition in its place. Verizon Communications Inc. v. FCC, 535 U.
S. 467 , 488 (2002). Central to the scheme of the Act is the
incumbent LEC’s obligation under 47 U. S. C. §251(c) to share
its network with competitors, see AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366 , 371
(1999), including provision of access to individual elements of the
network on an “unbundled” basis. §251(c)(3). New entrants,
so-called competitive LECs, resell these unbundled network elements
(UNEs), recombined with each other or with elements belonging to
the LECs.

															   Verizon, like other incumbent
LECs, has taken two significant steps within the Act’s framework in
the direction of increased competition. First, Verizon has signed
interconnection agreements with rivals such as AT&T, as it is
obliged to do under §252, detailing the terms on which it will make
its network elements available. (Because Verizon and AT&T could
not agree upon terms, the open issues were subjected to compulsory
arbitration under §§252(b) and (c).) In 1997, the state regulator,
New York’s Public Service Commission (PSC), approved Verizon’s
interconnection agreement with AT&T.

															   Second, Verizon has taken advantage of the
opportunity provided by the 1996 Act for incumbent LECs to enter
the long-distance market (from which they had long been excluded).
That required Verizon to satisfy, among other things, a 14-item
checklist of statutory requirements, which includes compliance with
the Act’s network-sharing duties. §§271(d)(3)(A) and (c)(2)(B).
Checklist item two, for example, includes “nondiscriminatory access
to network elements in accordance with the requirements” of
§251(c)(3). §271(c)(2)(B)(ii). Whereas the state regulator approves
an interconnection agreement, for long-distance approval the
incumbent LEC applies to the Federal Communications Commission
(FCC). In December 1999, the FCC approved Verizon’s §271
application for New York.

															   Part of Verizon’s UNE obligation under
§251(c)(3) is the provision of access to operations support systems
(OSS), a set of systems used by incumbent LECs to provide services
to customers and ensure quality. Verizon’s interconnection
agreement and long-distance authorization each specified the
mechanics by which its OSS obligation would be met. As relevant
here, a competitive LEC sends orders for service through an
electronic interface with Verizon’s ordering system, and as Verizon
completes certain steps in filling the order, it sends confirmation
back through the same interface. Without OSS access a rival cannot
fill its customers’ orders.

															   In late 1999, competitive LECs complained to
regulators that many orders were going unfilled, in violation of
Verizon’s obligation to provide access to OSS functions. The PSC
and FCC opened parallel investigations, which led to a series of
orders by the PSC and a consent decree with the FCC.[ Footnote 2 ] Under the FCC consent decree,
Verizon undertook to make a “voluntary contribution” to the U. S.
Treasury in the amount of $3 million, 15 FCC Rcd. 5415, 5421, ¶ ;16
(2000); under the PSC orders, Verizon incurred liability to the
competitive LECs in the amount of $10 million. Under the consent
decree and orders, Verizon was subjected to new performance
measurements and new reporting requirements to the FCC and PSC,
with additional penalties for continued noncompliance. In June
2000, the FCC terminated the consent decree. Enforcement Bureau
Announces that Bell Atlan- tic Has Satisfied Consent Decree
Regarding Elec- tronic Ordering Systems in New York (June 20,
2000), http://www.fcc.gov/eb/News_Releases/bellatlet.html (all
Internet materials as visited Dec. 12, 2003, and available in the
Clerk of Court’s case file). The next month the PSC relieved
Verizon of the heightened reporting requirement. Order Addressing
OSS Issues, MCI Worldcom, Inc. v. Bell Atlantic-New
York , Nos. 00–C–0008, 00–C–0009, 99–C–0949, 2000 WL 1531916
(N. Y. PSC, July 27, 2000).

															   Respondent Law Offices of Curtis V. Trinko,
LLP, a New York City law firm, was a local telephone service
customer of AT&T. The day after Verizon entered its consent
decree with the FCC, respondent filed a complaint in the District
Court for the Southern District of New York, on behalf of itself
and a class of similarly situated customers. See App. 12–33. The
complaint, as later amended, id. , at 34–50, alleged that
Verizon had filled rivals’ orders on a discriminatory basis as part
of an anticompetitive scheme to discourage customers from becoming
or remaining customers of competitive LECs, thus impeding the
competitive LECs’ ability to enter and compete in the market for
local telephone service. See, e.g., id. , at
34–35, 46–47, ¶ ;¶ ;1, 2, 52, 54. According to the complaint,
Verizon “has filled orders of [competitive LEC] customers after
filling those for its own local phone service, has failed to fill
in a timely manner, or not at all, a substantial number of orders
for [competitive LEC] customers … , and has systematically
failed to inform [competitive LECs] of the status of their
customers’ orders.” Id. , at 39, ¶ ;21. The complaint set
forth a single example of the alleged “failure to provide adequate
access to [competitive LECs],” namely the OSS failure that resulted
in the FCC consent decree and PSC orders. Id. , at 40, ¶
;22. It asserted that the result of Verizon’s improper “behavior
with respect to providing access to its local loop” was to “deter
potential customers [of rivals] from switching.” Id. , at
47, ¶ ;57, 35, ¶ ;2. The complaint sought damages and injunctive
relief for violation of §2 of the Sherman Act, 15 U. S. C. §2,
pursuant to the remedy provisions of §§4 and 16 of the Clayton Act,
38 Stat. 731, as amended, 15 U. S. C. §§15, 26. The complaint
also alleged violations of the 1996 Act, §202(a) of the
Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.
S. C. §151 et seq. , and state law.

															   The District Court dismissed the complaint in
its entirety. As to the antitrust portion, it concluded that
respondent’s allegations of deficient assistance to rivals failed
to satisfy the requirements of §2. The Court of Appeals for the
Second Circuit reinstated the complaint in part, including the
antitrust claim. 305 F. 3d 89, 113 (2002). We granted
certiorari, limited to the question whether the Court of Appeals
erred in reversing the District Court’s dismissal of respondent’s
antitrust claims. 538 U. S. 905 (2003).

															II

															   To decide this case, we must
first determine what effect (if any) the 1996 Act has upon the
application of traditional antitrust principles. The Act imposes a
large number of duties upon incumbent LECs—above and beyond those
basic responsibilities it imposes upon all carriers, such as
assuring number portability and providing access to rights-of-way,
see 47 U. S. C. §§251(b)(2), (4). Under the sharing duties of
§251(c), incumbent LECs are required to offer three kinds of
access. Already noted, and perhaps most intrusive, is the duty to
offer access to UNEs on “just, reasonable, and nondiscriminatory”
terms, §251(c)(3), a phrase that the FCC has interpreted to mean a
price reflecting long-run incremental cost. See Verizon
Communications Inc. v. FCC, 535 U. S., at 495–496. A
rival can interconnect its own facilities with those of the
incumbent LEC, or it can simply purchase services at wholesale from
the incumbent and resell them to consumers. See §§251(c)(2), (4).
The Act also imposes upon incumbents the duty to allow physical
“collocation”—that is, to permit a competitor to locate and install
its equipment on the incumbent’s premises—which makes feasible
interconnection and access to UNEs. See §251(c)(6).

															   That Congress created these
duties, however, does not automatically lead to the conclusion that
they can be enforced by means of an antitrust claim. Indeed, a
detailed regulatory scheme such as that created by the 1996 Act
ordinarily raises the question whether the regulated entities are
not shielded from antitrust scrutiny altogether by the doctrine of
implied immunity. See, e.g., United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694 (1975); Gordon v. New York Stock Exchange, Inc., 422 U. S. 659 (1975). In
some respects the enforcement scheme set up by the 1996 Act is a
good candidate for implication of antitrust immunity, to avoid the
real possibility of judgments conflicting with the agency’s
regulatory scheme “that might be voiced by courts exercising
jurisdiction under the antitrust laws.” United States v. National Assn. of Securities Dealers, Inc., supra, at
734.

															   Congress, however, precluded that
interpretation. Section 601(b)(1) of the 1996 Act is an
antitrust-specific saving clause providing that “nothing in this
Act or the amendments made by this Act shall be construed to
modify, impair, or supersede the applicability of any of the
antitrust laws.” 110 Stat. 143, 47 U. S. C. §152, note. This
bars a finding of implied immunity. As the FCC has put the point,
the saving clause preserves those “claims that satisfy established
antitrust standards.” Brief for United States and the Federal
Communications Commission as Amici Curiae Supporting
Neither Party in No. 02–7057, Covad Communications Co. v. Bell Atlantic Corp. (CADC), p. 8.

															   But just as the 1996 Act preserves claims that
satisfy existing antitrust standards, it does not create new claims
that go beyond existing antitrust standards; that would be equally
inconsistent with the saving clause’s mandate that nothing in the
Act “modify, impair, or supersede the applicability” of the
antitrust laws. We turn, then, to whether the activity of which
respondent complains violates preexisting antitrust standards.

															III

															   The complaint alleges that
Verizon denied interconnection services to rivals in order to limit
entry. If that allegation states an antitrust claim at all, it does
so under §2 of the Sherman Act, 15 U. S. C. §2, which declares
that a firm shall not “monopolize” or “attempt to monopolize.” Ibid. It is settled law that this offense requires, in
addition to the possession of monopoly power in the relevant
market, “the willful acquisition or maintenance of that power as
distinguished from growth or development as a consequence of a
superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U. S. 563 , 570–571
(1966). The mere possession of monopoly power, and the concomitant
charging of monopoly prices, is not only not unlawful; it is an
important element of the free-market system. The opportunity to
charge monopoly prices—at least for a short period—is what attracts
“business acumen” in the first place; it induces risk taking that
produces innovation and economic growth. To safeguard the incentive
to innovate, the possession of monopoly power will not be found
unlawful unless it is accompanied by an element of anticompetitive conduct .

															   Firms may acquire monopoly power
by establishing an infrastructure that renders them uniquely suited
to serve their customers. Compelling such firms to share the source
of their advantage is in some tension with the underlying purpose
of antitrust law, since it may lessen the incentive for the
monopolist, the rival, or both to invest in those economically
beneficial facilities. Enforced sharing also requires antitrust
courts to act as central planners, identifying the proper price,
quantity, and other terms of dealing—a role for which they are
ill-suited. Moreover, compelling negotiation between competitors
may facilitate the supreme evil of antitrust: collusion. Thus, as a
general matter, the Sherman Act “does not restrict the long
recognized right of [a] trader or manufacturer engaged in an
entirely private business, freely to exercise his own independent
discretion as to parties with whom he will deal.” United
States v. Colgate & Co., 250 U. S. 300 , 307
(1919).

															   However, “[t]he high value that we have placed
on the right to refuse to deal with other firms does not mean that
the right is unqualified.” Aspen Skiing Co. v. Aspen
Highlands Skiing Corp., 472 U. S. 585 , 601
(1985). Under certain circumstances, a refusal to cooperate with
rivals can constitute anticompetitive conduct and violate §2. We
have been very cautious in recognizing such exceptions, because of
the uncertain virtue of forced sharing and the difficulty of
identifying and remedying anticompetitive conduct by a single firm.
The question before us today is whether the allegations of
respondent’s complaint fit within existing exceptions or provide a
basis, under traditional antitrust principles, for recognizing a
new one.

															   The leading case for §2 liability based on
refusal to cooperate with a rival, and the case upon which
respondent understandably places greatest reliance, is Aspen
Skiing, supra . The Aspen ski area consisted of four
mountain areas. The defendant, who owned three of those areas, and
the plaintiff, who owned the fourth, had cooperated for years in
the issuance of a joint, multiple-day, all-area ski ticket. After
repeatedly demanding an increased share of the proceeds, the
defendant canceled the joint ticket. The plaintiff, concerned that
skiers would bypass its mountain without some joint offering, tried
a variety of increasingly desperate measures to re-create the joint
ticket, even to the point of in effect offering to buy the
defendant’s tickets at retail price. Id. , at 593–594. The
defendant refused even that. We upheld a jury verdict for the
plaintiff, reasoning that “[t]he jury may well have concluded that
[the defendant] elected to forgo these short-run benefits because
it was more interested in reducing competition … over the long run
by harming its smaller competitor.” Id., at 608. Aspen Skiing is at or near the outer
boundary of §2 liability. The Court there found significance in the
defendant’s decision to cease participation in a cooperative
venture. See id., at 608, 610–611. The unilateral
termination of a voluntary ( and thus presumably
profitable ) course of dealing suggested a willingness to
forsake short-term profits to achieve an anticompetitive end. Ibid. Similarly, the defendant’s unwillingness to renew
the ticket even if compensated at retail price revealed a
distinctly anticompetitive bent.

															   The refusal to deal alleged in the present
case does not fit within the limited exception recognized in Aspen Skiing . The complaint does not allege that Verizon
voluntarily engaged in a course of dealing with its rivals, or
would ever have done so absent statutory compulsion. Here,
therefore, the defendant’s prior conduct sheds no light upon the
motivation of its refusal to deal—upon whether its regulatory
lapses were prompted not by competitive zeal but by anticompetitive
malice. The contrast between the cases is heightened by the
difference in pricing behavior. In Aspen Skiing , the
defendant turned down a proposal to sell at its own retail price,
suggesting a calculation that its future monopoly retail price
would be higher. Verizon’s reluctance to interconnect at the
cost-based rate of compensation available under §251(c)(3) tells us
nothing about dreams of monopoly.

															   The specific nature of what the 1996 Act
compels makes this case different from Aspen Skiing in a
more fundamental way. In Aspen Skiing , what the defendant
refused to provide to its competitor was a product that it already
sold at retail—to oversimplify slightly, lift tickets representing
a bundle of services to skiers. Similarly, in Otter Tail Power
Co. v. United States, 410 U. S. 366 (1973),
another case relied upon by respondent, the defendant was already
in the business of providing a service to certain customers (power
transmission over its network), and refused to provide the same
service to certain other customers. Id., at 370–371,
377–378. In the present case, by contrast, the services allegedly
withheld are not otherwise marketed or available to the public. The
sharing obligation imposed by the 1996 Act created “something brand
new”—“the wholesale market for leasing network elements.” Verizon Communications Inc. v. FCC, 535 U. S., at
528. The unbundled elements offered pursuant to §251(c)(3) exist
only deep within the bowels of Verizon; they are brought out on
compulsion of the 1996 Act and offered not to consumers but to
rivals, and at considerable expense and effort. New systems must be
designed and implemented simply to make that access
possible—indeed, it is the failure of one of those systems that
prompted the present complaint.[ Footnote 3 ]

															   We conclude that Verizon’s alleged
insufficient assistance in the provision of service to rivals is
not a recognized antitrust claim under this Court’s existing
refusal-to-deal precedents. This conclusion would be unchanged even
if we considered to be established law the “essential facilities”
doctrine crafted by some lower courts, under which the Court of
Appeals concluded respondent’s allegations might state a claim. See
generally Areeda, Essential Facilities: An Epithet in Need of
Limiting Principles, 58 Antitrust L. J. 841 (1989). We have never
recognized such a doctrine, see Aspen Skiing Co. , 472 U.
S., at 611, n. 44; AT&T Corp. v. Iowa Utilities
Bd. , 525 U. S., at 428 (opinion of Breyer, J.), and we find no
need either to recognize it or to repudiate it here. It suffices
for present purposes to note that the indispensable requirement for
invoking the doctrine is the unavailability of access to the
“essential facilities”; where access exists, the doctrine serves no
purpose. Thus, it is said that “essential facility claims should …
be denied where a state or federal agency has effective power to
compel sharing and to regulate its scope and terms.” P. Areeda
& H. Hovenkamp, Antitrust Law, p. 150, ¶ ;773e (2003
Supp.). Respondent believes that the existence of sharing duties
under the 1996 Act supports its case. We think the opposite: The
1996 Act’s extensive provision for access makes it unnecessary to
impose a judicial doctrine of forced access. To the extent
respondent’s “essential facilities” argument is distinct from its
general §2 argument, we reject it.

															IV

															   Finally, we do not believe that
traditional antitrust principles justify adding the present case to
the few existing exceptions from the proposition that there is no
duty to aid competitors. Antitrust analysis must always be attuned
to the particular structure and circumstances of the industry at
issue. Part of that attention to economic context is an awareness
of the significance of regulation. As we have noted, “careful
account must be taken of the pervasive federal and state regulation
characteristic of the industry.” United States v. Citizens & Southern Nat. Bank, 422 U. S. 86 , 91 (1975);
see also IA P. Areeda & H. Hovenkamp, Antitrust Law,
p. 12, ¶ ;240c3 (2d ed. 2000). “[A]ntitrust analysis must
sensitively recognize and reflect the distinctive economic and
legal setting of the regulated industry to which it applies.” Concord v. Boston Edison Co. , 915 F. 2d 17,
22 (CA1 1990) (Breyer, C. J.) (internal quotation marks
omitted).

															   One factor of particular
importance is the existence of a regulatory structure designed to
deter and remedy anticompetitive harm. Where such a structure
exists, the additional benefit to competition provided by antitrust
enforcement will tend to be small, and it will be less plausible
that the antitrust laws contemplate such additional scrutiny.
Where, by contrast, “[t]here is nothing built into the regulatory
scheme which performs the antitrust function,” Silver v. New York Stock Exchange, 373 U. S. 341 , 358
(1963), the benefits of antitrust are worth its sometimes
considerable disadvantages. Just as regulatory context may in other
cases serve as a basis for implied immunity, see, e.g., United States v. National Assn. of Securities Dealers,
Inc., 422 U. S., at 730–735, it may also be a consideration in
deciding whether to recognize an expansion of the contours of
§2.

															   The regulatory framework that exists in this
case demonstrates how, in certain circumstances, “regulation
significantly diminishes the likelihood of major antitrust harm.” Concord v. Boston Edison Co. , supra, at
25. Consider, for example, the statutory restrictions upon
Verizon’s entry into the potentially lucrative market for
long-distance service. To be allowed to enter the long-distance
market in the first place, an incumbent LEC must be on good
behavior in its local market. Authorization by the FCC requires
state-by-state satisfaction of §271’s competitive checklist, which
as we have noted includes the nondiscriminatory provision of access
to UNEs. Section 271 applications to provide long-distance service
have now been approved for incumbent LECs in 47 States and the
District of Columbia. See FCC Authorizes SBC to Provide Long
Distance Service in Illinois, Indiana, Ohio and Wisconsin (Oct. 15,
2003), http://hraunfoss.fcc.gov/edocs_
public/attachmatch/DOC-239978A1.pdf.

															   The FCC’s §271 authorization order for Verizon
to provide long-distance service in New York discussed at great
length Verizon’s commitments to provide access to UNEs, including
the provision of OSS. In re Application by Bell Atlantic New
York for Authorization Under Section 271 of the Communications Act
To Provide In-Region, InterLATA Service in the State of New
York , 15 FCC Rcd. 3953, 3989–4077, ¶ ;¶ ;82–228 (1999)
(Memorandum Opinion and Order) (hereinafter In re
Application ). Those commitments are enforceable by the FCC
through continuing oversight; a failure to meet an authorization
condition can result in an order that the deficiency be corrected,
in the imposition of penalties, or in the suspension or revocation
of long-distance approval. See 47 U. S. C. §271(d)(6)(A).
Verizon also subjected itself to oversight by the PSC under a
so-called “Performance Assurance Plan” (PAP). See In re New
York Telephone Co. , 197 P. U. R. 4th 266, 280–281
(N. Y. PSC, 1999) (Order Adopting the Amended PAP)
(hereinafter PAP Order). The PAP, which by its terms became binding
upon FCC approval, provides specific financial penalties in the
event of Verizon’s failure to achieve detailed performance
requirements. The FCC described Verizon’s having entered into a PAP
as a significant factor in its §271 authorization, because that
provided “a strong financial incentive for post-entry compliance
with the section 271 checklist,” and prevented
“ ‘ backsliding.’ ” In re Application 3958–3959, ¶ ;¶ ;8, 12.

															   The regulatory response to the OSS failure
complained of in respondent’s suit provides a vivid example of how
the regulatory regime operates. When several competitive LECs
complained about deficiencies in Verizon’s servicing of orders, the
FCC and PSC responded. The FCC soon concluded that Verizon was in
breach of its sharing duties under §251(c), imposed a substantial
fine, and set up sophisticated measurements to gauge remediation,
with weekly reporting requirements and specific penalties for
failure. The PSC found Verizon in violation of the PAP even
earlier, and imposed additional financial penalties and
measurements with daily reporting requirements. In short,
the regime was an effective steward of the antitrust function.

															   Against the slight benefits of antitrust
intervention here, we must weigh a realistic assessment of its
costs. Under the best of circumstances, applying the requirements
of §2 “can be difficult” because “the means of illicit exclusion,
like the means of legitimate competition, are myriad.” United
States v. Microsoft Corp. , 253 F. 3d 34, 58
(CADC 2001) (en banc) (per curiam) . Mistaken inferences
and the resulting false condemnations “are especially costly,
because they chill the very conduct the antitrust laws are designed
to protect.” Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U. S. 574 , 594
(1986). The cost of false positives counsels against an undue
expansion of §2 liability. One false-positive risk is that an
incumbent LEC’s failure to provide a service with sufficient
alacrity might have nothing to do with exclusion. Allegations of
violations of §251(c)(3) duties are difficult for antitrust courts
to evaluate, not only because they are highly technical, but also
because they are likely to be extremely numerous, given the
incessant, complex, and constantly changing interaction of
competitive and incumbent LECs implementing the sharing and
interconnection obligations. Amici States have filed a
brief asserting that competitive LECs are threatened with “death by
a thousand cuts,” Brief for New York et al. as Amici
Curiae 10 (internal quotation marks omitted)–the
identification of which would surely be a daunting task for a
generalist antitrust court. Judicial oversight under the Sherman
Act would seem destined to distort investment and lead to a new
layer of interminable litigation, atop the variety of litigation
routes already available to and actively pursued by competitive
LECs.

															   Even if the problem of false positives did not
exist, conduct consisting of anticompetitive violations of §251 may
be, as we have concluded with respect to above-cost predatory
pricing schemes, “beyond the practical ability of a judicial
tribunal to control.” Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U. S. 209 , 223
(1993). Effective remediation of violations of regulatory sharing
requirements will ordinarily require continuing supervision of a
highly detailed decree. We think that Professor Areeda got it
exactly right: “No court should impose a duty to deal that it
cannot explain or adequately and reasonably supervise. The problem
should be deemed irremedia[ble] by antitrust law when compulsory
access requires the court to assume the day-to-day controls
characteristic of a regulatory agency.” Areeda, 58 Antitrust
L. J., at 853. In this case, respondent has requested an
equitable decree to “[p]reliminarily and permanently enjoi[n]
[Verizon] from providing access to the local loop market … to
[rivals] on terms and conditions that are not as favorable” as
those that Verizon enjoys. App. 49–50. An antitrust court is
unlikely to be an effective day-to-day enforcer of these detailed
sharing obligations.[ Footnote
4 ]

															* * *

															   The 1996 Act is in an important
respect much more ambitious than the antitrust laws. It attempts
“ to eliminate the monopolies enjoyed by the inheritors of
AT&T’s local franchises.” Verizon Communications Inc. v. FCC, 535 U. S., at 476 (emphasis added). Section 2 of
the Sherman Act, by contrast, seeks merely to prevent unlawful
monopolization . It would be a serious mistake to conflate the
two goals. The Sherman Act is indeed the “Magna Carta of free
enterprise,” United States v. Topco Associates,
Inc., 405 U. S.
596 , 610 (1972), but it does not give judges carte
blanche to insist that a monopolist alter its way of doing
business whenever some other approach might yield greater
competition. We conclude that respondent’s complaint fails to state
a claim under the Sherman Act.[ Footnote 5 ]

															   Accordingly, the judgment of the
Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Footnote 1 In 1996, NYNEX was the incumbent LEC for New
York State. NYNEX subsequently merged with Bell Atlantic
Corporation, and the merged entity retained the Bell Atlantic name;
a further merger produced Verizon. We use “Verizon” to refer to
NYNEX and Bell Atlantic as well. Footnote 2 Order Directing Improvements To Wholesale
Service Performance, MCI Worldcom, Inc. v. Bell
Atlantic-New York , Nos. 00–C–0008, 00–C–0009, 2000 WL 363378
(N. Y. PSC, Feb. 11, 2000); Order Directing Market Adjustments and
Amending Performance Assurance Plan, MCI Worldcom, Inc. v. Bell Atlantic-New York , Nos. 00–C–0008, 00–C–0009,
99–C–0949, 2000 WL 517633 (N. Y. PSC, Mar. 23, 2000); Order
Addressing OSS Issues, MCI Worldcom, Inc. v. Bell
Atlantic-New York , Nos. 00–C–0008, 00–C–0009, 99–C–0949, 2000
WL 1531916 (N. Y. PSC, July 27, 2000); In re Bell
Atlantic-New York Authorization Under Section 271 of the
Communications Act to Provide In-Region, InterLATA Service In the
State of New York , 15 FCC Rcd. 5413 (2000) (Order); id. , at 5415 (Consent Decree). Footnote 3 Respondent also relies upon United
States v. Terminal Railroad Assn. of St. Louis , 224 U. S. 383 (1912), and Associated Press v. United States , 326 U. S. 1 (1945). These cases involved concerted action, which
presents greater anticompetitive concerns and is amenable to a
remedy that does not require judicial estimation of free-market
forces: simply requiring that the outsider be granted
nondiscriminatory admission to the club. Footnote 4 The Court of Appeals also thought that
respondent’s complaint might state a claim under a “monopoly
leveraging” theory (a theory barely discussed by respondent, see
Brief for Respondent 24, n. 10). We disagree. To the extent the
Court of Appeals dispensed with a requirement that there be a
“dangerous probability of success” in monopolizing a second market,
it erred, Spectrum Sports, Inc. v. McQuillan, 506 U. S. 447 ,
459 (1993). In any event, leveraging presupposes anticompetitive
conduct, which in this case could only be the refusal-to-deal claim
we have rejected. Footnote 5 Our disposition makes it unnecessary to
consider petitioner’s alternative contention that respondent lacks
antitrust standing. See Steel Co. v. Citizens for
Better Environment , 523 U. S. 83 , 97, and n.
2 (1998); National Railroad Passenger Corporation v. National Assn. of Railroad Passengers , 414 U. S. 453 , 456
(1974). STEVENS, J., CONCURRING IN JUDGMENT VERIZON COMMUNICATIONS INC. V. LAW OFFICESOF CURTIS V. TRINKO,
LLP 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-682 VERIZON COMMUNICATIONS INC., PETITIONER v. LAW OFFICES OF CURTIS V. TRINKO, LLP

															on writ of certiorari to the united states court of
appeals for the second circuit

															[January 13, 2004]

															   Justice Stevens, with whom
Justice Souter and Justice Thomas join, concurring in the
judgment.

															   In complex cases it is usually
wise to begin by deciding whether the plaintiff has standing to
maintain the action. Respondent, the plaintiff in this case, is a
local telephone service customer of AT&T. Its complaint alleges
that it has received unsatisfactory service because Verizon has
engaged in conduct that adversely affects AT&T’s ability to
serve its customers, in violation of §2 of the Sherman Act. 15 U.
S. C. §2. Respondent seeks from Verizon treble damages, a
remedy that §4 of the Clayton Act makes available to “any person
who has been injured in his business or property.” 15 U. S. C.
§15. The threshold question presented by the complaint is whether,
assuming the truth of its allegations, respondent is a “person”
within the meaning of §4.

															   Respondent would unquestionably be such a
“person” if we interpreted the text of the statute literally. But
we have eschewed a literal reading of §4, particularly in cases in
which there is only an indirect relationship between the
defendant’s alleged misconduct and the plaintiff’s asserted injury. Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519 , 529–535
(1983). In such cases, “the importance of avoiding either the risk
of duplicate recoveries on the one hand, or the danger of complex
apportionment of damages on the other,” weighs heavily against a
literal reading of §4. Id., at 543–544. Our interpretation
of §4 has thus adhered to Justice Holmes’ observation that the
“general tendency of the law, in regard to damages at least, is not
to go beyond the first step.” Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531 , 533
(1918).

															   I would not go beyond the first step in this
case. Although respondent contends that its injuries were, like the
plaintiff’s injuries in Blue Shield of Va. v. McCready, 457 U. S. 465 , 479
(1982), “the very means by which … [Verizon] sought to achieve its
illegal ends,” it remains the case that whatever antitrust injury
respondent suffered because of Verizon’s conduct was purely
derivative of the injury that AT&T suffered. And for that
reason, respondent’s suit, unlike McCready , runs both the
risk of duplicative recoveries and the danger of complex
apportionment of damages. The task of determining the monetary
value of the harm caused to respondent by AT&T’s inferior
service, the portion of that harm attributable to Verizon’s
misconduct, whether all or just some of such possible misconduct
was prohibited by the Sherman Act, and what offset, if any, should
be allowed to make room for a recovery that would make AT&T
whole, is certain to be daunting. AT&T, as the direct victim of
Verizon’s alleged misconduct, is in a far better position than
respondent to vindicate the public interest in enforcement of the
antitrust laws. Denying a remedy to AT&T’s customer is not
likely to leave a significant antitrust violation undetected or
unremedied, and will serve the strong interest “in keeping the
scope of complex antitrust trials within judicially manageable
limits.” Associated Gen. Contractors, 459 U. S., at
543.

															   In my judgment, our reasoning in Associated General Contractors requires us to reverse the
judgment of the Court of Appeals. I would not decide the merits of
the §2 claim unless and until such a claim is advanced by either
AT&T or a similarly situated competitive local exchange
carrier.


Cooper Industries, Inc. v. Aviall Services, Inc.

OPINION OF THE COURT COOPER INDUSTRIES, INC. V. AVIALL SERVICES, INC. 543 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1192 COOPER INDUSTRIES, INC., PETITIONER v. AVIALL SERVICES, INC.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[December 13, 2004]

															   Justice Thomas delivered the
opinion of the Court. Section 113(f)(1) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA)[ Footnote 1 ] allows persons who have undertaken efforts to
clean up properties contaminated by hazardous substances to seek
contribution from other parties liable under CERCLA. Section
113(f)(1) specifies that a party may obtain contribution “during or
following any civil action” under CERCLA §106 or §107(a). The issue
we must decide is whether a private party who has not been sued
under §106 or §107(a) may nevertheless obtain contribution under
§113(f)(1) from other liable parties. We hold that it may
not. I Under CERCLA, 94
Stat. 2767, the Federal Government may clean up a contaminated area
itself, see §104, or it may compel responsible parties to perform
the cleanup, see §106(a). See Key Tronic Corp. v. United States, 511 U. S. 809 , 814 (1994). In either
case, the Government may recover its response costs under §107, 42
U. S. C. §9607 (2000 ed. and Supp. I), the “cost recovery”
section of CERCLA. Section 107(a) lists four classes of potentially
responsible persons (PRPs) and provides that they “shall be liable”
for, among other things, “all costs of removal or remedial action
incurred by the United States Government … not inconsistent with
the national contingency plan.” §107(a)(4)(A).[ Footnote 2 ] Section 107(a) further provides that
PRPs shall be liable for “any other necessary costs of response
incurred by any other person consistent with the national
contingency plan.” §107(a)(4)(B). After CERCLA’s
enactment in 1980, litigation arose over whether §107, in addition
to allowing the Government and certain private parties to recover
costs from PRPs, also allowed a PRP that had incurred response
costs to recover costs from other PRPs. More specifically, the
question was whether a private party that had incurred response
costs, but that had done so voluntarily and was not itself subject
to suit, had a cause of action for cost recovery against other
PRPs. Various courts held that §107(a)(4)(B) and its predecessors
authorized such a cause of action. See, e.g., Wickland
Oil Terminals v. Asarco, Inc. , 792 F. 2d 887, 890–892
(CA9 1986); Walls v. Waste Resource Corp. , 761 F.
2d 311, 317–318 (CA6 1985); Philadelphia v. Stepan
Chemical Co. , 544 F. Supp. 1135, 1140–1143 (ED Pa.
1982). After CERCLA’s passage, litigation
also ensued over the separate question whether a private entity
that had been sued in a cost recovery action (by the Government or
by another PRP) could obtain contribution from other PRPs. As
originally enacted in 1980, CERCLA contained no provision expressly
providing for a right of action for contribution. A number of
District Courts nonetheless held that, although CERCLA did not
mention the word “contribution,” such a right arose either
impliedly from provisions of the statute, or as a matter of federal
common law. See, e.g., United States v. New
Castle County , 642 F. Supp. 1258, 1263–1269 (Del. 1986)
(contribution right arises under federal common law); Colorado v. ASARCO, Inc. , 608 F. Supp. 1484,
1486–1493 (Colo. 1985) (same); Wehner v. Syntex
Agribusiness, Inc. , 616 F. Supp. 27, 31 (ED Mo. 1985)
(contribution right is implied from §107(e)(2)). That conclusion
was debatable in light of two decisions of this Court that refused
to recognize implied or common-law rights to contribution in other
federal statutes. See Texas Industries, Inc. v. Radcliff Materials, Inc. , 451 U. S. 630 , 638–647
(1981) (refusing to recognize implied or common-law right to
contribution in the Sherman Act or the Clayton Act); Northwest
Airlines, Inc. v. Transport Workers , 451 U. S. 77 , 90–99
(1981) (refusing to recognize implied or common-law right to
contribution in the Equal Pay Act of 1963 or Title VII of the Civil
Rights Act of 1964). Congress subsequently amended
CERCLA in the Superfund Amendments and Reauthorization Act of 1986
(SARA), 100 Stat. 1613, to provide an express cause of action for
contribution, codified as CERCLA §113(f)(1): “Any person may seek contribution from
any other person who is liable or potentially liable under section
9607(a) of this title, during or following any civil action under
section 9606 of this title or under section 9607(a) of this title.
Such claims shall be brought in accordance with this section and
the Federal Rules of Civil Procedure, and shall be governed by
Federal law. In resolving contribution claims, the court may
allocate response costs among liable parties using such equitable
factors as the court determines are appropriate. Nothing in this
subsection shall diminish the right of any person to bring an
action for contribution in the absence of a civil action under
section 9606 of this title or section 9607 of this title.” Id., at 1647, as codified in 42 U. S. C.
§9613(f)(1). SARA also created a separate express
right of contribution, §113(f)(3)(B), for “[a] person who has
resolved its liability to the United States or a State for some or
all of a response action or for some or all of the costs of such
action in an administrative or judicially approved settlement.” In
short, after SARA, CERCLA provided for a right to cost recovery in
certain circumstances, §107(a), and separate rights to contribution
in other circumstances, §§113(f)(1), 113(f)(3)(B).[ Footnote 3 ] II This case concerns
four contaminated aircraft engine maintenance sites in Texas.
Cooper Industries, Inc., owned and operated those sites until 1981,
when it sold them to Aviall Services, Inc. Aviall operated the four
sites for a number of years. Ultimately, Aviall discovered that
both it and Cooper had contaminated the facilities when petroleum
and other hazardous substances leaked into the ground and ground
water through underground storage tanks and spills. Aviall notified the
Texas Natural Resource Conservation Commission (Commission) of the
contamination. The Commission informed Aviall that it was violating
state environmental laws, directed Aviall to clean up the site, and
threatened to pursue an enforcement action if Aviall failed to
undertake remediation. Neither the Commission nor the EPA, however,
took judicial or administrative measures to compel
cleanup. Aviall cleaned up the properties
under the State’s supervision, beginning in 1984. Aviall sold the
properties to a third party in 1995 and 1996, but remains
contractually responsible for the cleanup. Aviall has incurred
approximately $5 million in cleanup costs; the total costs may be
even greater. In August 1997, Aviall filed this action against
Cooper in the United States District Court for the Northern
District of Texas, seeking to recover cleanup costs. The original
complaint asserted a claim for cost recovery under CERCLA §107(a),
a separate claim for contribution under CERCLA §113(f)(1), and
state-law claims. Aviall later amended the complaint, combining its
two CERCLA claims into a single, joint CERCLA claim. That claim
alleged that, pursuant to §113(f)(1), Aviall was entitled to seek
contribution from Cooper, as a PRP under §107(a), for response
costs and other liability Aviall incurred in connection with the
Texas facilities.[ Footnote 4 ]
Aviall continued to assert state-law claims as well. Both parties moved for summary
judgment, and the District Court granted Cooper’s motion. The court
held that Aviall, having abandoned its §107 claim, sought
contribution only under §113(f)(1). The court held that §113(f)(1)
relief was unavailable to Aviall because it had not been sued under
CERCLA §106 or §107. Having dismissed Aviall’s federal claim, the
court declined to exercise jurisdiction over the state-law
claims. A divided panel of the Court of
Appeals for the Fifth Circuit affirmed. 263 F. 3d 134 (2001). The
majority, relying principally on the “during or following” language
in the first sentence of §113(f)(1), held that “a PRP seeking
contribution from other PRPs under §113(f)(1) must have a pending
or adjudged §106 administrative order or §107(a) cost recovery
action against it.” Id. , at 145. The dissent reasoned that
the final sentence of §113(f)(1), the saving clause, clarified that
the federal common-law right to contribution survived the enactment
of §113(f)(1), even absent a §106 or §107(a) civil action. Id., at 148–150 (opinion of Wiener, J.). On rehearing en banc, the Fifth
Circuit reversed by a divided vote, holding that §113(f)(1) allows
a PRP to obtain contribution from other PRPs regardless of whether
the PRP has been sued under §106 or §107. 312 F. 3d 677
(2002). The court held that “[s]ection 113(f)(1) authorizes suits
against PRPs in both its first and last sentence[,] which states
without qualification that ‘nothing’ in the section shall
‘diminish’ any person’s right to bring a contribution action in the
absence of a section 106 or section 107(a) action.” Id. ,
at 681. The court reasoned in part that “may” in §113(f)(1) did not
mean “may only.” Id., at 686–687. Three members of the en
banc court dissented for essentially the reasons given by the panel
majority. Id. , at 691–693 (opinion of Garza, J.). We
granted certiorari, 540 U. S. 1099 , and now
reverse. III A Section 113(f)(1)
does not authorize Aviall’s suit. The first sentence, the enabling
clause that establishes the right of contribution, provides: “Any
person may seek contribution . . . during or
following any civil action under section 9606 of this title or
under section 9607(a) of this title,” 42 U. S. C. §9613(f)(1)
(emphasis added). The natural meaning of this sentence is that
contribution may only be sought subject to the specified
conditions, namely, “during or following” a specified civil
action. Aviall answers that
“may” should be read permissively, such that “during or following”
a civil action is one, but not the exclusive, instance in which a
person may seek contribution. We disagree. First, as just noted,
the natural meaning of “may” in the context of the enabling clause
is that it authorizes certain contribution actions—ones that
satisfy the subsequent specified condition—and no
others. Second, and relatedly, if
§113(f)(1) were read to authorize contribution actions at any time,
regardless of the existence of a §106 or §107(a) civil action, then
Congress need not have included the explicit “during or following”
condition. In other words, Aviall’s reading would render part of
the statute entirely superfluous, something we are loath to do.
See, e.g., Hibbs v. Winn, 542 U. S. ___,
___ (2004) (slip op., at 10). Likewise, if §113(f)(1) authorizes
contribution actions at any time, §113(f)(3)(B), which permits
contribution actions after settlement, is equally superfluous.
There is no reason why Congress would bother to specify conditions
under which a person may bring a contribution claim, and at the
same time allow contribution actions absent those
conditions. The last sentence of §113(f)(1),
the saving clause, does not change our conclusion. That sentence
provides: “Nothing in this subsection shall diminish the right of
any person to bring an action for contribution in the absence of a
civil action under section 9606 of this title or section 9607 of
this title.” 42 U. S. C. §9613(f)(1). The sole function of the
sentence is to clarify that §113(f)(1) does nothing to “diminish”
any cause(s) of action for contribution that may exist
independently of §113(f)(1). In other words, the sentence rebuts
any presumption that the express right of contribution provided by
the enabling clause is the exclusive cause of action for
contribution available to a PRP. The sentence, however, does not
itself establish a cause of action; nor does it expand §113(f)(1)
to authorize contribution actions not brought “during or following”
a §106 or §107(a) civil action; nor does it specify what causes of
action for contribution, if any, exist outside §113(f)(1). Reading
the saving clause to authorize §113(f)(1) contribution actions not
just “during or following” a civil action, but also before such an
action, would again violate the settled rule that we must, if
possible, construe a statute to give every word some operative
effect. See United States v. Nordic Village,
Inc., 503 U. S.
30 , 35–36 (1992). Our conclusion follows not simply
from §113(f)(1) itself, but also from the whole of §113. As noted
above, §113 provides two express avenues for contribution:
§113(f)(1) (“during or following” specified civil actions) and
§113(f)(3)(B) (after an administrative or judicially approved
settlement that resolves liability to the United States or a
State). Section 113(g)(3) then provides two corresponding 3-year
limitations periods for contribution actions, one beginning at the
date of judgment, §113(g)(3)(A), and one beginning at the date of
settlement, §113(g)(3)(B). Notably absent from §113(g)(3) is any
provision for starting the limitations period if a judgment or
settlement never occurs, as is the case with a purely voluntary
cleanup. The lack of such a provision supports the conclusion that,
to assert a contribution claim under §113(f), a party must satisfy
the conditions of either §113(f)(1) or §113(f)(3)(B). Each side insists that the purpose
of CERCLA bolsters its reading of §113(f)(1). Given the clear
meaning of the text, there is no need to resolve this dispute or to
consult the purpose of CERCLA at all. As we have said: “[I]t is
ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 79
(1998). Section 113(f)(1), 100 Stat. 1647, authorizes contribution
claims only “during or following” a civil action under §106 or
§107(a), and it is undisputed that Aviall has never been subject to
such an action.[ Footnote 5 ]
Aviall therefore has no §113(f)(1) claim. B Aviall and amicus Lockheed Martin contend that, in the alternative to
an action for contribution under §113(f)(1), Aviall may recover
costs under §107(a)(4)(B) even though it is a PRP. The dissent
would have us so hold. We decline to address the issue. Neither the
District Court, nor the Fifth Circuit panel, nor the Fifth Circuit
sitting en banc considered Aviall’s §107 claim. In fact, as noted
above, Aviall included separate §107 and §113 claims in its
original complaint, but then asserted a “combined” §107/§113 claim
in its amended complaint. The District Court took this consolidated
claim to mean that Aviall was relying on §107 “not as an
independent cause of action,” but only “to the extent necessary to
maintain a viable §113(f)(1) contribution claim.” Civ. Action No.
3:97–CV–1926–D (ND Tex., Jan. 13, 2000), App. to Pet. for Cert.
94a, n. 2. Consequently the court saw no need to address any
freestanding §107 claim. The Fifth Circuit panel likewise concluded
that Aviall no longer advanced a standalone §107 claim. 263 F. 3d,
at 137, n. 2. The en banc court found it unnecessary to decide
whether Aviall had waived the §107 claim, because it held that
Aviall could rely instead on §113. 312 F. 3d, at 685, n. 15. Thus,
the court did not address the waiver issue, let alone the merits of
the §107 claim. “We ordinarily do not
decide in the first instance issues not decided below.” Adarand
Constructors, Inc. v. Mineta, 534 U. S. 103 , 109
(2001) (per curiam) (internal quotation marks omitted).
Although we have deviated from this rule in exceptional
circumstances, United States v. Mendenhall, 446 U. S. 544 ,
551–552, n. 5 (1980), the circumstances here cut against resolving the §107 claim. Both the question whether Aviall has
waived this claim and the underlying §107 question (if it is not
waived) may depend in part on the relationship between §§107 and
113. That relationship is a significant issue in its own right. It
is also well beyond the scope of the briefing and, indeed, the
question presented, which asks simply whether a private party “may
bring an action seeking contribution pursuant to CERCLA Section
113(f)(1).” Pet. for Cert. i. The §107 claim and the preliminary
waiver question merit full consideration by the courts
below. Furthermore, the parties cite
numerous decisions of the Courts of Appeals as holding that a
private party that is itself a PRP may not pursue a §107(a) action
against other PRPs for joint and several liability. See, e.g., Bedford Affiliates v. Sills , 156
F. 3d 416, 423–424 (CA2 1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp. , 153 F. 3d 344, 349–356
(CA6 1998); Pneumo Abex Corp. v. High Point, T. &
D. R. Co. , 142 F. 3d 769, 776 (CA4 1998); Pinal Creek
Group v. Newmont Mining Corp. , 118 F. 3d 1298,
1301–1306 (CA9 1997); New Castle County v. Halliburton
NUS Corp. , 111 F. 3d 1116, 1120–1124 (CA3 1997); Redwing
Carriers, Inc. v. Saraland Apartments , 94 F. 3d 1489,
1496, and n. 7 (CA11 1996); United States v. Colorado
& E. R. Co. , 50 F. 3d 1530, 1534–1536 (CA10 1995); United Technologies Corp. v. Browning-Ferris
Industries , 33 F. 3d 96, 98–103 (CA1 1994). To hold here that
Aviall may pursue a §107 action, we would have to consider whether
these decisions are correct, an issue that Aviall has flagged but
not briefed. And we might have to consider other issues, also not
briefed, such as whether Aviall, which seeks to recover the share
of its cleanup costs fairly chargeable to Cooper, may pursue a §107
cost recovery action for some form of liability other than joint
and several. We think it more prudent to withhold judgment on these
matters. In view of the importance of the
§107 issue and the absence of briefing and decisions by the courts
below, we are not prepared—as the dissent would have it—to resolve
the §107 question solely on the basis of dictum in Key
Tronic . We held there that certain attorney’s fees were not
“necessary costs of response” within the meaning of §107(a)(4)(B).
511 U. S., at 818–821. But we did not address the relevance, if
any, of Key Tronic’s status as a PRP or confront the relationship
between §§107 and 113. In discussing §107, we did not even classify
it precisely as a right of cost recovery or a right of
contribution, as the dissent’s descriptions of the decision reveal. Post , at 1–2 (opinion of Ginsburg, J.) (describing Key
Tronic as recognizing a right to “ ‘seek recovery of
cleanup costs’ ” (quoting 511 U. S., at 818), but in the
following paragraph saying that Key Tronic identified a
“right to contribution”). “Questions which merely lurk in the
record, neither brought to the attention of the court nor ruled
upon, are not to be considered as having been so decided as to
constitute precedents.” Webster v. Fall, 266 U. S. 507 , 511
(1925). Aviall itself recognizes the need for fuller examination of
the §107 claim; it has simply requested that we remand for
consideration of that claim, not that we resolve the claim in the
first instance. C In addition to
leaving open whether Aviall may seek cost recovery under §107, Part
III–B, supra, we decline to decide whether Aviall has an
implied right to contribution under §107. Portions of the Fifth
Circuit’s opinion below might be taken to endorse the latter cause
of action, 312 F. 3d, at 687; others appear to reserve the
question whether such a cause of action exists, id., at
685, n. 15. To the extent that Aviall chooses to frame its §107
claim on remand as an implied right of contribution (as opposed to
a right of cost recovery),[ Footnote
6 ] we note that this Court has visited the subject of implied
rights of contribution before. See Texas Industries , 451
U. S., at 638–647; Northwest Airlines , 451 U. S., at
90–99. We also note that, in enacting §113(f)(1), Congress
explicitly recognized a particular set (claims “during or
following” the specified civil actions) of the contribution rights
previously implied by courts from provisions of CERCLA and the
common law. Cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444
U. S. 11 , 19 (1979). Nonetheless, we need not and do not decide
today whether any judicially implied right of contribution survived
the passage of SARA. *** We hold only that
§113(f)(1) does not support Aviall’s suit. We therefore reverse the
judgment of the Fifth Circuit and remand the case for further
proceedings consistent with this opinion. It is so
ordered. Footnote 1 Section 113(f)(1) is codified at
42 U. S. C. §9613(f)(1). We refer throughout, for the most
part, to sections of CERCLA rather than the U. S. Code. Footnote 2 The national contingency plan
specifies procedures for preparing and responding to contaminations
and was promulgated by the Environmental Protection Agency (EPA)
pursuant to CERCLA §105, 42 U. S. C. §9605 (2000 ed. and Supp.
I). The plan is codified at 40 CFR pt. 300 (2004). Footnote 3 In Key Tronic Corp. v. United States, 511 U. S. 809 (1994), we observed that
§107 and §113 created “similar and somewhat overlapping” remedies. Id., at 816. The cost recovery remedy of §107(a)(4)(B) and
the contribution remedy of §113(f)(1) are similar at a general
level in that they both allow private parties to recoup costs from
other private parties. But the two remedies are clearly
distinct. Footnote 4 Aviall asserts that it framed its
claim in the manner compelled by Fifth Circuit precedent holding
that a §113 claim is a type of §107 claim. Geraghty &
Miller, Inc. v. Conoco, Inc. , 234 F. 3d 917, 924
(CA5 2000); see also, e.g. , Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp. , 153 F. 3d 344,
349–353 (CA6 1998); Sun Co., Inc. v. Browning-Ferris,
Inc. , 124 F. 3d 1187, 1191 (CA10 1997); Pinal Creek
Group v. Newmont Mining Corp. , 118 F. 3d 1298,
1301–1302 (CA9 1997). Footnote 5 Neither has Aviall been subject
to an administrative order under §106; thus, we need not decide
whether such an order would qualify as a “civil action under
section 9606 . . . or under section 9607(a)” of CERCLA. 42 U.
S. C. §9613(f)(1). Footnote 6 As noted above, we do not address
whether a §107 cost recovery action by Aviall (if not waived) may
seek some form of liability other than joint and
several. GINSBURG, J., DISSENTING COOPER INDUSTRIES, INC. V. AVIALL SERVICES, INC. 543 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1192 COOPER INDUSTRIES, INC., PETITIONER v. AVIALL SERVICES, INC.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[December 13, 2004]

															   Justice Ginsburg, with whom
Justice Stevens joins, dissenting. Aviall Services,
Inc., purchased from Cooper Industries, Inc., property that was
contaminated with hazardous substances. Shortly after the purchase,
the Texas Natural Resource Conservation Commission notified Aviall
that it would institute enforcement action if Aviall failed to
remediate the property. Aviall promptly cleaned up the site and now
seeks reimbursement from Cooper. In my view, the Court
unnecessarily defers decision on Aviall’s entitlement to recover
cleanup costs from Cooper. In Key Tronic
Corp. v. United States , 511 U. S. 809 , 818 (1994), all Members
of this Court agreed that §107 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.
S. C. §9607, “unquestionably provides a cause of action for
[potentially responsible persons (PRPs)] to seek recovery of
cleanup costs.” The Court rested that determination squarely and
solely on §107(a)(4)(B), which allows any person who has
incurred costs for cleaning up a hazardous waste site to recover
all or a portion of those costs from any other person liable under
CERCLA.[ Footnote
1 ] The Key
Tronic Court divided, however, on the question whether the
right to contribution is implicit in §107(a)’s text, as the
majority determined, or whether §107(a) expressly confers the
right, as the dissenters urged. The majority stated: Section 107
“ implies —but does not expressly command —that [a
PRP] may have a claim for contribution against those treated as
joint tortfeasors.” 511 U. S., at 818, and n. 11 ((emphasis
added)). The dissent maintained: “Section 107(a)(4)(B) states, as
clearly as can be, that ‘[c]overed persons … shall be liable
for … necessary costs of response incurred by any other
person.’ Surely to say that A shall be liable to B is the express creation of a right of action.” Id ., at
822. But no Justice expressed the slightest doubt that §107 indeed
did enable a PRP to sue other covered persons for reimbursement, in
whole or part, of cleanup costs the PRP legitimately
incurred. In its original
complaint, Aviall identified §107 as the federal-law basis for an
independent cost-recovery claim against Cooper, and §113 as the
basis for a contribution claim. App. 8A, 16A–17A. In amended
pleadings, Aviall alleged both §§107 and 113 as the federal
underpinning for its contribution claim. Id. , at 27A, 48A.
Aviall’s use of §§113 and 107 in tandem to assert a contribution
claim conformed its pleading to then-governing Fifth Circuit
precedent, which held that a CERCLA contribution action arises
through the joint operation of §107(a) and §113(f)(1). See Geraghty and Miller, Inc. v. Conoco, Inc. , 234
F. 3d 917, 924 (2000) (“[W]hile section 113(f) is the vehicle
for bringing a contribution action, it does not create a new cause
of action or create any new liabilities. Rather, it is a mechanism
for apportioning costs that are recoverable under section 107.”
(footnote omitted)). A party obliged by circuit precedent to plead
in a certain way can hardly be deemed to have waived a plea the
party could have maintained had the law of the Circuit permitted
him to do so. But cf. ante , at 9–10. In the Fifth Circuit’s
view, §107 supplied the right of action for Aviall’s claim, and
§113(f)(1) prescribed the procedural framework. 312 F. 3d 677,
683, and n. 10 (2002) (stating that §107 “ impliedly
authorizes a cause of action for contribution” and §113(f)
“govern[s] and regulate[s]” the action (citing Geraghty and
Miller , 234 F. 3d, at 924) (internal quotation marks
omitted)); see §113(f)(1) (calling for the governance of “Federal
law” and the application of “the Federal Rules of Civil Procedure,”
and specifying that “[i]n resolving contribution claims, the court
may allocate response costs among liable parties using such
equitable factors as the court determines are appropriate”).
Notably, Aviall expressly urged in the Court of Appeals that, were
the court to conclude that §113(f)(1)’s “during or following”
language excluded application of that section to this case,
Aviall’s suit should be adjudicated independently under §107(a).
See Response of Appellant Aviall Services, Inc., to the Amicus
Curiae Brief of the United States in No. 00–10197 (CA5), p. 24
(“[P]arties who are excluded from seeking contribution under
section 113(f)(1) must therefore have available to them the broader
right of cost recovery [covering both full recovery and
contribution] under section 107(a).”); cf. Key Tronic , 511
U. S., at 816 (“[T]he statute now expressly authorizes a cause of
action for contribution in §113 and impliedly authorizes a similar
and somewhat overlapping remedy in §107.”). I see no cause for
protracting this litigation by requiring the Fifth Circuit to
revisit a determination it has essentially made already: Federal
courts, prior to the enactment of §113(f)(1), had correctly held
that PRPs could “recover [under §107] a proportionate share of
their costs in actions for contribution against other PRPs,” 312
F. 3d, at 687;[ Footnote 2 ]
nothing in §113 retracts that right, ibid. (noting that
§113(f)’s saving clause preserves all preexisting state and federal
rights of action for contribution, including the §107 implied right
this Court recognized in Key Tronic , 511 U. S., at 816).
Accordingly, I would not defer a definitive ruling by this Court on
the question whether Aviall may pursue a §107 claim for relief
against Cooper. Footnote
1 Key Tronic, a PRP,
asserted a cost-recovery claim under §107(a) to recoup
approximately $1.2 million in costs that it allegedly incurred
cleaning up its site “at its own initiative.” Key Tronic
Corp. v. United States , 984 F. 2d 1025, 1026
(CA9 1993). Although Key Tronic settled a portion of its liability
with the Environmental Protection Agency (EPA), the claim advanced
in Key Tronic’s §107(a) suit rested on remedial action taken before
the EPA’s involvement, remediation that did not figure in the
settlement. Id. , at 1026–1027; Key Tronic Corp. v. United States , 511 U. S. 809 , 811–812
(1994). Footnote
2 The cases to which
the Court refers, ante , at 12, Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981),
and Northwest Airlines, Inc. v. Transport
Workers, 451 U.
S. 77 (1981), do not address the implication of a right of
action for contribution under CERCLA. Texas Industries concerned the Sherman and Clayton Acts, 451 U. S., at 639–646; Northwest Airlines , the Equal Pay Act and Title VII, 451
U. S., at 90–99. A determination suitable in one statutory context
does not necessarily carry over to a different statutory
setting.