Full opinion text
MEMORANDUM AND ORDER MORAN, District Judge. Introduction At the heart of this seven-count complaint against twenty defendants is the claim that plaintiffs were subjected to racial discrimination by several railroads in the solicitation of bids and the awarding of contracts for supplies and services. Plaintiffs are the Organization of Minority Vendors (OMVI), an Illinois not-for-profit corporation organized for the purpose of protecting the civil rights and economic interests of businesses which qualify as minority business enterprises (MBEs) under regulations of the United States Department of Transportation (DOT) and fifteen individual black- or Hispanic-owned and controlled businesses which qualify as MBEs. They bring this lawsuit as a class action on behalf of all similarly situated black- and Hispanic-owned and controlled business enterprises against two groups of defendants. The first group consists of three Chicago based railroads: Illinois Central-Gulf Railroad, Chicago and Northwestern Transportation Company, and Chicago, Milwaukee, St. Paul and Pacific Railroad Company (railroad defendants). The second group of defendants consists of eighteen allegedly white male-owned and/or -controlled corporations and some of their owners and officers. These corporations are established suppliers of goods and services to the railroad defendants (contractor defendants). Before the court are a variety of motions from the defendants which attack each count of the complaint. This court will summarize the statutory context of plaintiffs action, the history of this litigation, and the motions before the court, before addressing the merits of these motions. Statutory Background The Railroad Revitalization and Regulatory Reform Act of 1976 (the 4-R Act), 45 U.S.C. § 801, et seq., was enacted to “provide the means to rehabilitate and maintain the physical facilities, improve the operations and structure, and restore the financial stability of the railway system of the United States.” § 801(a). The Act provided hundreds of millions of dollars in federal financial assistance to railroads. Section 905(a) of the Act was a general non-discrimination provision: No person in the United States shall on the ground of race, color, national origin, or sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under, any project, program, or activity funded in whole or in part through financial assistance under this Act. 45 U.S.C. § 803. The legislative history indicates that the non-discrimination provision was enacted as part of “an established national policy, since at least the passage of the Civil Rights Act of 1964, to encourage and assist in the development of minority business enterprise.” 1976 U.S.Code Cong, and Adm.News, p. 58. Because of the “significant assistance to be provided the railroad industry” by the 4-R Act, Congress decided that “encouragement for the participation of minority businesses was appropriate.” Id. at 59. Section 905(b) set forth a compliance mechanism which permitted the Secretary of Transportation (Secretary) to cut off funding for railroad recipients of 4-R Act funds which engaged in discrimination. The Secretary could also refer a case of discrimination to the Attorney General or take action under Title VI of the Civil Rights Act, 42 U.S.C. 2000d, et seq. Section 905(d) authorized the Secretary to “prescribe such regulations and take such actions as are necessary to monitor, enforce, and affirmatively carry out the purposes” of the anti-discrimination requirement. 45 U.S.C. § 803(d). Section 905(e) provided that “[a]ny determination made or actions taken by the Secretary pursuant to [the anti-discrimination] section shall be subject to judicial review.” 45 U.S.C. § 803(e). Another section of the comprehensive railroad legislation enacted in conjunction with § 905 required the Secretary to establish a Minority Business Resource Center (MBRC) as part of the Federal Railroad Administration (FRA). 49 U.S.C. § 1657a. MBRC’s function was, in part, to facilitate the participation of minority business enterprises in the federally-funded railroad improvement projects. Pursuant to authority granted under 905(d) and in light of the establishment of the MBRC, the Secretary promulgated regulations, 49 CFR § 265, et seq., which provided for the establishment of affirmative action programs by the railroad recipients of 4-R Act funds and certain of their contractors in order to “insure that minorities and MBEs are afforded ample consideration with respect to employment and contractual opportunities produced as a result of the implementation of the Act____” Id. at 265.1. The regulations required that each funding agreement between a railroad and the federal government for financial assistance under the Act include a non-discrimination provision. Id. at 265.7. One clause to be included in these funding contracts provided that: The recipient shall not discriminate against any business organization in the award of any contract because of race, color, national origin or sex of its employees, managers or owners. Except as otherwise required by the regulations or orders of the Administrator, the recipient shall take affirmative action to insure that business organizations are permitted to compete and are considered for awards of contracts without regard to race, color, national origin or sex. § 265.7(v). Even in the absence of prior discriminatory behavior a recipient of federal railroad funds was expected to take affirmative action to insure that no person is excluded from participation in or denied the benefits of the project, program or activity on the grounds of race, color, national origin or sex, and that minorities and MBEs are afforded a reasonable opportunity to participate in employment and procurement opportunities that will result from financial assistance provided under the Rail Acts. § 265.7(5) Sections 265.9-.13 required each recipient of federal funds under the Act to establish a detailed affirmative action program “to insure that ... minorities and MBEs receive a fair proportion of employment and contractual opportunities” created by the 4-R program. § 265.9 In their affirmative action plans recipients of the 4-R funds were required to identify specific actions which they would take to (ii) Provide for adequate and timely consideration of the availability and potential of MBEs in all procurement decisions; (iii) Assure that MBEs will have an equitable opportunity to compete for contracts, by arranging solicitation time for the preparation of bids, quantities, specifications, and delivery schedules so as to facilitate the participation of MBEs and by assisting MBEs who are potential contractors in preparing bid materials and in obtaining and maintaining suitable bonding coverage in those instances where bonds are required. (vi) Where appropriate because of prior underutilization of MBEs, establish specific goals and timetables to utilize MBEs in the performance of contracts awarded. § 265.13. The DOT’s effort to ensure substantial MBE participation in the 4-R Act program was not an isolated instance of bureaucratic beneficence: It is the policy of the Department of Transportation to encourage and increase the participation of businesses owned and controlled by minorities, including women, (MBEs) in contracts and projects funded by the Department. Economically and socially disadvantaged individuals, including minorities and women, have traditionally been underrepresented as owners and managers of businesses in this country. The executive and legislative branches of the federal government have long recognized the need to promote the development of businesses owned by the economically and socially disadvantaged to achieve the goal of equal opportunity. To overcome the traditional underrepresentation of these groups in the business community, the federal government has used its procurement authority and its financial assistance programs to state and local governments as vehicles to assist minority business enterprises. Executive Order 11625 directs the Department of Commerce to provide technical and financial assistance to promote MBEs. Executive Order 11625 further requires that federal executive agencies develop comprehensive plans and programs to encourage minority business enterprise. The Department of Transportation is firmly committed to fulfilling its responsibilities under this Executive Order and to meet the goal of greater MBE participation in contracts and projects funded by the Department, although this may result in some increased cost to DOT. To this end, DOT is requiring each of its operating elements and all aid recipients and their contractors to make strong affirmative action efforts designed to set and meet goals for increasing MBE involvement. These efforts will encompass all aspects of the procurement of supplies, equipment, construction and services, including professional service contracts, concession contracts and bank deposits. The Department recognizes that meaningful gains in the level of MBE participation can be achieved only with energetic enforcement of this order and the commitment of all DOT employees, grantees and contractors to the goals of equal opportunity. DOT Order 4000.7A. The DOT looked to Executive Order 11625 and Title VI of the Civil Rights Act of 1964, among other provisions, as authority for its MBE development effort. In addition to the 4-R Act, DOT programs with affirmative action provisions include Section 30 of the Airport and Airway Development Act of 1970, 49 U.S.C. § 1730, the Urban Mass Transportation Act, 49 U.S.C. § 1615, and the Federal Highway Administration, 23 C.F.R. 230, Subpart B. See also, 49 C.F.R. § 23 et seq. (.Participation by Minority Business Enterprise in Department of Transportation Programs). Cf. 42 U.S.C. § 6705(f)(2) (Public Works Employment Act). This statutory scheme was modified but not changed in any important respect in early 1983. Congress repealed § 905 of the 4-R Act, 45 U.S.C. § 803, the non-discrimination provision, but replaced it with a nearly identical provision. 49 U.S.C. § 306. Similarly, the statute creating the MBRC, 49 U.S.C. § 1657, was repealed and a nearly identical statute passed in its place. 49 U.S.C. § 332. The non-discrimination and affirmative action regulations promulgated under § 803(d) and summarized above have remained in effect. None of these statutory revisions appears to affeet any of the plaintiffs’ substantive rights. Litigation History As one of the conditions of their funding agreements with the Secretary of DOT and the FRA Administrator the defendant railroads agreed to comply with § 905 and accompanying regulations. They established detailed affirmative action plans which typically had as their goal 15 per cent MBE participation in 4-R Act funded projects. On August 1, 1978, a group of minority businesses, including some of the plaintiffs, filed a formal complaint with the Secretary concerning the railroad defendants’ noncompliance with the non-discrimination requirement and their affirmative action programs. The MBRC undertook a prompt investigation of the railroads’ practices and submitted a report of its findings to the FRA in September 1978. The results of the MBRC investigation supported most of the allegations that the railroad defendants were not in compliance with the affirmative action requirements of the 4-R Act. The MBRC made findings in five major areas. First, the report noted that “many majority-owned and traditional suppliers to railroads are transferring stock in an attempt to be accorded preferential treatment as [MBEs].” This was accomplished by white male owners transferring stock to their wives or by stock transfers in the subsidiaries of majority-owned companies. The report found that “women-owned firms account for the vast majority of MBE procurement” by the defendant railroads. Investigators found that 80 to 90 per cent of the MBE suppliers of Milwaukee Road were white female-owned. The figure was 85 per cent for Illinois Central Gulf. The exact figure for Chicago & Northwestern was unknown but the “largest share” of its contacts with MBEs went to women-owned firms. The report concluded that the “utilization of ‘women-owned’ firms presents the opportunity for the railroads to achieve the required DOT goals with minimal change in current procurement practices.” The second finding of the MBRC report was that the defendant railroads “have done little to establish formal MBE development programs____ [Although the railroads have committed to development of MBEs as suppliers, their activities toward implementation of this objective appear to be almost nonexistent.” The report found that neither the railroads nor their buyers had made adequate efforts to initiate and maintain business contacts with MBEs. Such failures necessarily lessened the degree of MBE participation since the investigators found that 75 per cent of the railroad’s procurement requests are initiated by buyers and negotiated over the telephone with two or three “known suppliers.” Third, the report found that the managements of the defendant railroads failed to implement policies which would ensure an effective MBE program. Investigators found that company officials had not impressed upon buyers the importance of the affirmative action program and in some cases had even displayed a negative attitude toward establishment of an effective program. In addition, the report noted inadequate recordkeeping as well as the failure to appoint senior corporate officials to monitor and develop the programs. Fourth, the report found that “[t]he railroads have not developed specific procedures to monitor and evaluate the achievement of their suppliers toward established [affirmative action] goals.” The regulations accompanying the 4-R Act required contractors receiving contracts over $50,-000 in federally-funded railroad projects to develop their own affirmative action plans. The existence of the plans were to be a condition of contracts entered into between the railroads and their large contractors. 49 C.F.R. § 265.11. The fifth finding of the report was that “the railroads have not developed nor implemented formal procurement procedures to adequately improve communication between buyers and MBEs, or to support the achievement of established MBE participation goals.” On February 1, 1979, the FRA Administrator adopted the findings of the MBRC report in their entirety, but concluded that no specific instance of discrimination had been found: I have concluded the investigation and, pursuant to 49 CFR 265.21(d)(1) find that although no specific instance of discrimination has occurred, the [railroads have] failed, through a general pattern of. certification abuse and poor program development, to comply with the general dictates of 49 CFR 265.9. This section requires that “recipients of financial assistance ... shall develop and maintain an affirmative action program to insure that ... minority businesses receive a fair proportion of ... contractual opportunities.” The Administrator ordered the defendant railroads to implement changes in their policies in order to increase the participation of legitimate MBEs in 4-R Act-funded programs. The railroads did not appeal the Administrator’s decision and the FRA did not take steps to cut off 4-R funds as it was permitted to do under 45 U.S.C. § 803(b)(2)(A). Before FRA rendered its decision, some of the plaintiffs herein instituted a class action in federal district court against the Secretary of the DOT, the FRA Administrator and the railroads named in the present complaint. The action was brought pursuant to 42 U.S.C. §§ 1981, 1982, 1983 and the 4-R Act, and sought a declaratory judgment that the plaintiffs were entitled to greater participation in the federally-assisted programs as well as an injunction ordering the Department of Transportation to cut off federal funds until the railroads complied with the 4-R Act and accompanying regulations. On defendants’ motions to dismiss, Judge Bua held that the plaintiffs did not have an independent private right of action to enforce the anti-discrimination provisions of the 4-R Act via a funding cut-off because the Act provided an adequate administrative remedy, including judicial review of administrative decisions, that the plaintiff had not yet exhausted. Fixer, et al. v. Adams, et al., No. 78 C 5042 (N.D.Ill. April 9, 1979). He held further that plaintiffs must exhaust the 4-R Act’s administrative remedies before proceeding with their § 1981 claims. Slip op. at 22-27. The court also held that plaintiffs had failed to state claims under 42 U.S.C. §§ 1982 and 1983, finding that § 1982 “simply has no application to the present circumstances,” and that plaintiffs had failed to allege the requisite state action in their § 1983 count. Slip op. at 22, n. 15. The Seventh Circuit, in an unpublished order, declined to decide whether plaintiffs stated a claim against the railroads under § 1981 because the complaint sought no relief against those defendants. Fizer v. Adams, No. 79-1448, slip op. at 3 (7th Cir. April 25,1980) (unpublished). With respect to plaintiffs’ §§ 1982 and 1983 claims, the Court simply said, “There is nothing in the complaint which could possibly support a claim for relief under § 1982 or § 1983.” Id. at 4. On the question of a private right of action under the 4-R Act against the federal defendants to cut off funds, the Court affirmed the dismissal of the complaint, saying, “Congress has pretty solidly indicated its intent that the relief which plaintiffs seek here is committed to administrative decision in the first instance, subject to judicial review.” Id. at 10. The Court declined to decide whether the 4-R Act grants plaintiffs a private right of action against the railroad defendants because plaintiffs did not request anything other than declaratory relief against those defendants. Id. at 4-5. While the Seventh Circuit appeal was pending, the plaintiffs in the original lawsuit and other black- or Hispanic-controlled businesses brought the present action solely against the railroad and contractor defendants. The Seventh Circuit noted this development and said, “The dismissal [of the original lawsuit] does not foreclose relief on the claims in the [new] action.” Slip op. at 5, n. 5. The Amended Complaint and Pending Motions In count I of their first amended complaint plaintiffs charge that the defendant railroads violated the Civil Rights Act of 1870, 42 U.S.C. 1981, which provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens---- Plaintiffs allege that the defendant railroads have subjected them to discriminatory treatment through the refusal and failure to extend bid invitations and to make timely responses to inquiries about business opportunities, as well as through the arbitrary rejection of plaintiffs’ bids. Plaintiffs further allege that the railroads “have systematically, knowingly, wrongfully and in bad faith failed and refused to enter into contracts with MBEs and have excluded such MBEs from full participation in the procurement programs funded in whole or in part through financial assistance made available under the 4-R Act....” In count II plaintiffs claim a violation of their rights under the Civil Rights Act of 1866, 42 U.S.C. § 1982, which states: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property. The basis of this claim is an allegation that the railroads systematically excluded the plaintiffs from full participation in 4-R Act-funded programs. Count III of the complaint alleges a violation of the non-discrimination provision of the 4-R Act, 45 U.S.C. § 803(a). The heart of the count is an allegation that the defendant railroads have, continue and will continue to expend millions of dollars in funding assistance provided for disbursement to minority business enterprises under 45 U.S.C. §§ 801, et seq., to white male-owned and/or controlled business firms. Many of said white male-owned and/or controlled business firms have, with the full knowledge of the defendant railroads, fraudulently represented themselves to be minority business enterprises by various techniques, including, but not limited to, manipulation of stock ownership and false designation of corporate officers. The purpose of said conduct is to further deny benefits to legitimate minority business enterprises.” Plaintiffs also allege that they have exhausted all available avenues of administrative relief. Count IV is a contract claim. Plaintiffs charge that the railroad defendants breached the provision in the funding agreements which required the railroads to practice non-discrimination and to achieve 15 per cent MBE participation in the 4-R procurement program. They seek relief on a third-party beneficiary theory. Count V is brought against the railroad and contractor defendants under the Clayton Act, 15 U.S.C. §§ 15 and 26 to recover treble damages for violations of Section One of the Sherman Act, 15 U.S.C. § 1. The plaintiffs allege that the defendants conspired to exclude and eliminate members of plaintiffs’ class from competing for procurement contracts granted by the railroads. According to the complaint “the defendant railroads engaged in a concerted refusal to deal with plaintiffs and members of the plaintiff class, and did otherwise boycott plaintiffs and members of the plaintiff class from obtaining business from the defendant railroads.” The complaint further alleges that the defendant contractors furthered the boycott by engaging in manipulation of stock ownership and false designation of corporate officers in order to qualify as MBEs. Finally, plaintiffs allege that defendants’ actions had virtually excluded members of the plaintiff class from competing for railroad procurement contracts causing substantial and irreparable damage to their business and property. Count VI is directed against the contractors. It alleges they conspired with each other to tortiously interfere with the affirmative action provisions in the funding agreements between the DOT and the railroads. The complaint points to a chameleon-like transformation of white male-owned businesses into MBEs as the linchpin of the conspiracy. In count VII plaintiffs charge both the. railroad and the contractor defendants with engaging in a common law conspiracy to violate 42 U.S.C. §§ 1981 and 1982. An allegation that the contractors falsely and fraudulently held themselves out as minority vendors is also the basis of this count. The MBRC report, summarized above, was incorporated as an integral part of the complaint. Under counts I through III plaintiffs seek an injunction against the railroad defendants, restraining them from continued discrimination against minority businesses. They also request compensatory damages in the amount of $11,400,000 and punitive damages in the amount of $22,800,000 for each year that the railroad defendants received assistance under the 4-R Act. In count IV they seek the same amount of compensatory damages and specific performance of the railroad defendants’ affirmative action obligations under their funding agreements with DOT and FRA. Under count V they request treble damages and an injunction against defendants’ continued violation of the antitrust laws. In counts VI and VII they seek compensatory and punitive damages in the above-mentioned amounts. Pending Motions The railroad defendants have moved for dismissal of the complaint. The contractor defendants have moved for dismissal and/or for summary judgment. Following is a breakdown of the theories upon which defendants base their various motions: 1. Plaintiffs have no standing to sue because a. neither OMVI nor the minority businesses have alleged injury in fact (all defendants); b. corporations have no racial identity and therefore cannot be subjected to racial discrimination (all defendants); and c. plaintiffs have not alleged a competitive relationship under the antitrust laws (some contractor defendants). 2. The complaint does not meet the specificity requirements of Fed.R.Civ.P. 8 and 9(b) (all defendants). 3. Count I fails to state a claim because § 1981 does not require affirmative action efforts (railroad defendants). 4. Count II does not state a claim because plaintiffs’ anticipated contracts with the railroad defendants are not properly within the meaning of § 1982 (railroad defendants). 5. Plaintiffs have no private right of action to enforce the non-discrimination or affirmative action requirements of the 4-R Act and if they do, the Administrator of FRA is an indispensable party to the extent that plaintiffs seek a cut-off of federal funds (railroad defendants). 6. Count IV fails to state a claim because plaintiffs are not intended beneficiaries of the funding contracts (railroad defendants). 7. Count V fails to state a claim because a. plaintiffs have not alleged that they are competitors (contractor defendants and railroad defendants); b. plaintiffs have not alleged that the railroads have monopoly buying power (railroad defendants); c. the antitrust laws were not intended to reach claims of racial discrimination (contractor defendants). 8. Count VI fails to state a claim because a. there are no contracts between plaintiffs and the railroads with which the contractors could interfere (contractor defendants); and b. plaintiffs are not parties to or intended beneficiaries of the contracts between the railroad defendants and DOT and FRA (contractor defendants). 9. Count VII fails to state a claim because a. there is no common law cause of action for conspiracy (railroad defendants); and b. to the extent count VII is brought pursuant to 42 U.S.C. § 1985, plaintiffs must allege racial discrimination, which, being corporations, they cannot (railroad defendants). 10. Plaintiffs’ allegations of defendants’ failure to meet their obligations under affirmative action plans are not actionable under the Civil Rights Acts (railroad defendants). 11. Some contractor defendants are entitled to summary judgment either because they are legitimate minority business enterprises or because they never held themselves out to be such (contractor defendants). The court will address these arguments, though not in exact order, in the discussion below. Standing Defendants have challenged the standing of OMVI and the individual corporate plaintiffs to maintain this action. The concept of standing subsumes both constitutional requirements and prudential considerations. Valley Forge Christian College v. American United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). In order to meet the Article III standing requirement the plaintiff must meet three tests. First, the plaintiff must show that it suffered an injury in fact. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Second, there must be some “fairly traceable” causal connection between the injury complained of and the challenged behavior of the defendant. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Third, there must be some indication that the relief requested by the plaintiff will redress its injury. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Once it is clear that the plaintiff has met these constitutional requirements the court must weigh several prudential considerations before it finds that the plaintiff has standing. The first consideration is that plaintiff’s complaint must fall “arguably within the zone of interests to be protected or regulated by the statute ... in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); South East Lake View Neighbors v. Department of Housing and Urban Development, 685 F.2d 1027, 1034 (7th Cir.1982). The second prudential consideration stems from the reluctance of the federal courts to decide “abstract questions of wide public significance even though other governmental institutions may be more competent to address the question____” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). A final prudential consideration is that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. at 499, 95 S.Ct. at 2205. In weighing a motion to dismiss for lack of standing, a district court must assume as true all material facts alleged in the complaint and must construe the pleadings in the plaintiff’s favor. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109 n. 22, 99 S.Ct. 1601, 1613 n. 22, 60 L.Ed.2d 66 (1979). As the Seventh Circuit recently emphasized: Questions of standing deal exclusively with whether the plaintiff alleged facts satisfying the constitutional and prudential limitations of the doctrine. The ability of the complaint to survive a summary judgment motion or support an award in law or equity after a full trial is irrelevant. The proper focus is upon the plaintiff and whether his interest in the controversy is significant enough to justify the exercise of federal judicial power on his behalf. South East Lake View Neighbors, 685 F.2d at 1034 (citations omitted). 1. Individual Corporate Plaintiffs The individual corporate plaintiffs qualified as minority business enterprises under Department of Transportation regulations, 49 CFR § 265.5(j). The corporations are engaged in a wide variety of business activities and supply the kinds of goods and services commonly purchased by the defendant railroads and/or supplied by the contractor defendants. A theme running through the seven counts of the complaint is that the corporate plaintiffs suffered substantial economic injury as a result of the actions of the railroad and contractor plaintiffs. Counts I, II and VII allege economic injury as a result of racial discrimination against the plaintiff class. Count III alleges economic loss as a result of defendants’ failure to comply with the non-discrimination and affirmative action provisions under the 4-R Act. Counts IV and VI focus on the plaintiffs’ loss of business opportunities in 4-R Act funded projects resulting from breaches of affirmative action provisions in the funding agreements entered into between the railroads and the federal government. Count V alleges economic damages from an illegal boycott of plaintiffs’ products and services by the defendants. An Art. Ill injury in fact is a bona fide injury, however small. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), South East Lake View Neighbors, 685 F.2d at 1033. Plaintiffs have certainly alleged such a “perceptibl[e] impair[ment].” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). The corporate plaintiffs also have shown that there is a causal connection between their injuries and defendants’ behavior. In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), the plaintiffs attacked restrictions on the treatment of indigents by local hospitals by seeking to enjoin federal officials from making changes in tax laws which allegedly fostered the restrictions. The Court found that the defendants had no standing and implied that the proper parties to sue were the offending hospitals. Id. at 41, 96 S.Ct. at 1925. The plaintiffs’ first action was similarly directed primarily at the federal government and sought a cut-off of 4-R funding for the defendant railroads. In contrast, the complaint in this action is directed against the parties who allegedly discriminated against the plaintiffs, and thus states a sufficient causal connection for standing purposes. It is self-evident that the remedies sought by the plaintiff — compensatory damages and injunctive relief — would do much to redress any economic injury already suffered by the plaintiffs as well as serve to prevent future injury. The most serious challenge to the standing of the individual corporate plaintiffs is rooted in the prudential consideration that the plaintiffs’ injury must fall within the zone of interests protected by statute or constitutional provision. Valley Forge, 454 U.S. at 475, 102 S.Ct. 760. Defendants challenge plaintiffs’ standing in this regard in several areas. First, they assert that corporations can have no racial identity under civil rights laws and thus the individual corporate plaintiffs have no standing to bring counts I, II, and VII. They cite a one-line dictum from Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977), that “[a]s a corporation, [Metropolitan Housing Development Corporation] has no racial identity and cannot be the direct target of petitioner’s alleged discrimination.” This language does not foreclose the possibility that some corporations, like the plaintiffs, which have been ■ identified as minority business enterprises under federal regulations, do have a “racial identity” and can be targets of discrimination. Further, several post-Arlington Heights decisions which have considered the issue have found that corporations can maintain civil rights actions. See Hudson Valley Theatre, Inc. v. Heimbach, 671 F.2d 702 (2d Cir.1982) (Friendly, J.), cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982); Marshall v. Kleppe, 637 F.2d 1217 (9th Cir. 1980) ; Howard Sec. Servs. v. Johns-Hopkins Hospital, 516 F.Supp. 508 (D.Md. 1981) ; T & S Service Associates v. Crenson, 505 F.Supp. 938 (D. RI 1981), vacated on other grounds, 666 F.2d 722 (1st Cir. 1981). See generally, Note, Corporate Standing to Allege Race Discrimination in Civil Rights Actions, 69 Va.L.Rev. 1153 (1983). Second, they assert that the individual corporate defendants have failed to allege that they have suffered an “antitrust injury,” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), and thus lack standing to bring count V. As members of a class which was allegedly the target of an illegal boycott by the defendants, the individual plaintiffs have alleged an antitrust injury sufficient to confer standing. Third, they claim that plaintiffs are not third-party beneficiaries of the affirmative action agreements and thus lack standing to bring counts IV and VI. We reject this argument for the reasons stated in the discussion of plaintiffs’ third-party beneficiary claim, supra. The other prudential considerations have little weight here. The claimed economic injury is neither a “generalized grievance” nor an “abstract question of wide public significance.” Warth, supra., 422 U.S. at 499-500, 95 S.Ct. at 2205-2206. Plaintiffs allege that the injury is theirs; they are not pressing their claims on behalf of others. Consequently, we hold that the individual corporate plaintiffs have standing to pursue all seven counts of this action. 2. OMVI Separate standing rules have developed for associations. These rules are complementary to the standing rules applicable to individuals. See e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). First, an organization has standing if it has suffered an injury in fact as the result of defendant’s challenged behavior. For example, in Hunt, the alleged injury to a state advertising agency was the drop in annual assessments used to fund the agency which was caused by a decline in the volume of Washington apples sold, 432 U.S. at 345, 97 S.Ct. at 2442. In Havens, the defendants’ racial-steering practices required the plaintiff fair housing organization to devote significant resources identifying and correcting the defendants’ practices. 455 U.S. at 378-79, 102 S.Ct. at 1124-25. The Supreme Court found that both organizations had standing to seek damages as a result. In contrast, an injury to an organization’s “abstract social interests” is not enough to confer standing. For example, the organization plaintiff in Simon v. Eastern Kentucky Welfare Rights Organization was “dedicated to promoting access of the poor to health services.” 426 U.S. at 39-40, 96 S.Ct. at 1924-1925. An alleged furthering of the practice of denying indigents health care by changes in the tax laws was not enough by itself to confer standing. Plaintiffs have failed to allege that defendants’ practices have caused any injury-in-fact to OMVI. OMVI lacks standing in its own right, for example, to maintain the antitrust claim because the organization does not fall within the “target area” of defendants’ alleged boycott. In re Industrial Gas Antitrust Litigation, 681 F.2d 514 (7th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983). There is likewise no indication that OMVI’s income or expenditure levels were affected by defendants’ alleged discrimination. OMVI’s relatively general interest in furthering the economic and civil rights of its members is not enough to prompt the court to imply an injury in fact. If an organization lacks standing in its own behalf it may nevertheless have standing derivatively as a representative of its members. Warth v. Seldin, 422 U.S. at 511, 95 S.Ct. at 2211; Hunt v. Washington State Apple Advertising Commission, 432 U.S. at 342-43, 97 S.Ct. at 2440-41. In order to have such standing: The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make a justiciable case had the members themselves brought suit. So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction. Warth, 422 U.S. at 511, 95 S.Ct. at 2211 (citation omitted). Later cases have identified three requirements for associational standing: (1) individual members must otherwise have standing; (2) the interests sought to be protected are germane to the organizational purposes, and (3) neither the claim asserted nor the relief requested require the participation of individual members. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. at 343, 97 S.Ct. at 2441; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W. v. Johnson, 674 F.2d 1195, 1200 (7th Cir.1982). OMVI members who fall within the plaintiff class have standing to bring this suit. The interests which OMVI seeks to protect are germane to its organizational purpose of furthering the civil rights’ and economic interests of its members. The individualized participation of members is, however, necessary for an accurate allocation of damages. The damage claims in this case are “not common to the entire membership, nor shared by all in equal degree.” Warth, 422 U.S. at 515, 95 S.Ct. at 2213. Consequently, OMVI lacks standing to assert damage claims. Because the individualized participation of the OMVI members is not necessary for the court to fashion injunctive relief, OMVI does have standing to seek injunctive relief on all counts. See Id. at 515, 95 S.Ct. at 2213. See also Mission Hills Condominium Association M-1 v. Corley, 570 F.Supp. 453 (N.D.Ill.1983) (associations can have standing under Section 16 of Clayton Act; regular associational standing analysis used); National Office Machine Dealers v. Monroe, The Calculator Co., 484 F.Supp. 1306 (N.D.Ill.1980). Specificity of the Complaint The defendants also seek dismissal of this action on the ground that the various counts of the complaint lack sufficient specificity. Section 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Interpreting this provision in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), a unanimous Supreme Court embraced notice pleading and stated that the “Federal Rules do not require a claimant to set out in detail the facts upon which he bases his claim.” An action may be dismissed for failure to state a claim only if it “appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 45-46, 78 S.Ct. at 101-102. See Stern v. U.S. Gypsum, 547 F.2d 1329, 1332 (7th Cir. 1977), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). In the introduction we described at length the allegations of the complaint as well as the MBRC report, which was incorporated into it by reference. This was done in order to show the basis for this court’s conclusion that the plaintiffs have stated their claims with sufficient specificity to survive a motion to dismiss. The allegations of the complaint, when coupled with the findings of the MBRC report, are sufficient to put all of the defendants on notice as to the wrongs complained of, the parties involved, and the relief sought. Plaintiffs’ complaint certainly is no model of specificity. Nor will proof of the accuracy of the finding of the MBRC report alone be enough for them to succeed on all counts. The report, however, gives enough specific factual support to plaintiffs’ claims so that dismissal would be inappropriate. Defendants also argue that plaintiffs’ complaint should be measured against the stricter pleading requirements of Rule 9 of the Federal Rules of Civil Procedure because plaintiffs have alleged that defendant contractors “fraudulently” changed their corporate structure in order to qualify as MBEs. Plaintiffs, however, are not bringing a cause of action for fraud. Rather, they are alleging that a transformation of the traditional railroad suppliers into MBEs was part of an effort to discriminate against the plaintiffs in the railroad supply market. We also hold that the plaintiffs’ various conspiracy allegations, when read in the context of the entire complaint, satisfy the Rule 9 pleading requirements. Motions to Dismiss the Complaint 1. Count I: The 42 U.S.C. § 1981 Claim The defendant railroads seek dismissal of count I on the ground that it is based on their failure to meet their affirmative action goals and not on any intentional discrimination against the plaintiffs. Defendants are correct that in order to proceed in a § 1981 action plaintiff must allege intentional discrimination. Mescall v. Burrus, 603 F.2d 1266, 1271 (7th Cir. 1979). Plaintiffs have done so in paragraphs 17 and 18 of the complaint. This court reads count I as alleging more than simply that the defendants’ failure to achieve their affirmative action goals constituted a § 1981 violation. Rather, it views the complaint as pointing to defendants’ failure to meet affirmative action goals, alleged acquiescence in the deceptive certification- of established suppliers as MBEs, and other shortcomings detailed in the MBRC report as support for its claim that the railroads intentionally discriminated against the plaintiff class. Under established pleading standards, count I easily survives the motion to dismiss. The cases cited by defendants in support of their argument are not apposite. The court in Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.1974), overturned a ruling that Ford’s failure to provide special job training for a black plaintiff to compensate for the effects of past discrimination violated § 1981. In this case plaintiffs are not arguing for the creation of an affirmative action program for 4-R funded projects or that the absence of such a program violates § 1981. Congress has already determined that assistance to MBEs, including affirmative action programs, is necessary to increase MBE participation in federally-funded railroad projects. Cf. Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). The railroad defendants have set up their affirmative action programs. Plaintiffs are simply asserting that the reasons for defendants’ failure to meet their affirmative action goals point to a practice of intentional discrimination. Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309 (7th Cir.1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976) involved the very different issue of whether a last hired/first fired seniority system violated § 1981. The court in Louis v. Pennsylvania Industrial Development Authority, 371 F.Supp. 877 (E.D.Pa.1974), aff'd 505 F.2d 730 (1974), cert. denied, 420 U.S. 993, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975), rejected a § 1981 claim in small part because the fact that two of a contractor’s affirmative action plans had been turned down by the federal government did not alone constitute proof of intentional discrimination. That decision is not determinative here where the railroads’ failure to meet their affirmative action goals is but one allegation supporting plaintiffs’ claim that they were subjected to intentional discrimination. 2. Count II: The 42 U.S.C. § 1982 Claim Section 1982 of the Civil Rights Act reads: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property.” 42 U.S.C. § 1982. While the language of § 1982 that citizens have the “same right ... [to] sell ... and convey real and personal property” seems to cover plaintiff’s claim, there appears to be no support in the case law for a § 1982 action in this case. The reach of § 1982 is broad. Haythe v. Decker Realty Company, 468 F.2d 336, 338 (7th Cir.1972). Nevertheless, § 1982 may be limited to protecting the right of black citizens to acquire property and to hold the same “bundle of rights” in property as do white citizens. Jones v. Alfred H. Mayer, Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), Tillman v. WheatonHaven Recreation Association, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973). Perhaps the ability to convey property with the same ease as white citizens is part of the bundle of property rights protected by § 1982. Plaintiffs have not relied upon such a theory and we decline to reach its merits. Nor have plaintiffs pointed us to any cases where the refusal to buy products or services from a black citizen constituted a § 1982 violation and in the absence of such precedent we decline to apply § 1982 to the allegations in this case. Consequently, count II of the complaint is dismissed. 3. Count III: The 4-R Act Claim The railroad defendants have moved to dismiss count III of the complaint on four grounds: (1) the 4-R Act does not create a private right of action; (2) the railroads’ alleged failure to meet affirmative action goals set forth in the funding agreements with DOT does not constitute a violation of the non-discrimination provisions of the 4-R Act, 45 U.S.C. § 803(a); (3) the allegations of count III do not satisfy the requirements of Fed.R.Civ.P. 8; and (4) plaintiffs have failed to join the federal government as an indispensable party. Since the faulty pleading argument has already been considered and rejected with respect to the complaint as a whole, the court will consider only those contentions directed specifically toward plaintiffs’ 4-R Act claims. A. Private Right of Action under the 4-R Act Whether the 4-R Act creates an implied private right of action in favor of plaintiffs is more properly dissected into two discrete and analytically distinct questions. First, can the existence of a private cause of action be inferred from the language, legislative history, and purpose of the statute in question? See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Second, if there is a private cause of action, what remedies are available to the private plaintiff? See Davis v. Passman, 442 U.S. 228, 239, 99 S.Ct. 2264, 2273, 60 L.Ed.2d 846 (1979); Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir. 1981), cert. denied, 456 U.S. 937, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). We need only address the first question at this point. There can be little doubt that § 905 of the 4-R Act creates an implied private right of action in favor of these plaintiffs. The language of § 905 explicitly confers a right to be free of discrimination on a class of persons to which these plaintiffs belong. Indeed, when one moves beyond § 905 to consider the accompanying regulations it becomes clear that MBEs in particular were singled out not just for protection against discrimination but also for substantial affirmative action on their behalf by the recipients of 4-R Act funds. As the Supreme Court stated in Cannon v. University of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 1954 n. 13, 60 L.Ed.2d 560: Not surprisingly, the right- or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action. With the exception of one case, in which the relevant statute reflected a special policy against judicial interference, this Court has never refused to imply a cause of action where the language of the statute explicitly conferred a right directly on a class of persons that included the plaintiff in the case. (Citations omitted.) In Cannon, the Court was examining Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, et seq., which contains nondiscrimination language identical in all relevant parts to that of the statute in question here. Title IX also provides for the same type of administrative enforcement mechanism found in § 905 of the 4-R Act. That is, the federal agency extending financial assistance has the power to terminate funding if the recipient fails to comply with the non-discrimination provisions of the statute or the requirements of the regulations issued thereunder. 20 U.S.C. § 1682. Title IX and § 905 of the 4-R Act are also similar in that they both provide for judicial review of any agency action to enforce the non-discrimination requirements. 20 U.S.C. § 1683; 45 U.S.C. § 803(e). The Cannon Court also examined the legislative history of Title IX. 441 U.S. at 694-703, 99 S.Ct. 1956-1961. It concluded that Congress intended Title IX to be inter- preted in the same manner as Title VI, which had consistently been construed by the courts as creating a private remedy. Plaintiffs here have not pointed to any legislative history similar to that found in Title IX which would support an inference of congressional intent to create such a right. However, as the Cannon Court noted, where “ ‘it is clear that federal law has granted a class of persons certain rights, it is not necessary to show [in the legislative history] an intention to create a private cause of action, although an explicit purpose to deny such a cause of action would be controlling.’ ” 441 U.S. at 694, 99 S.Ct. at 1956 (quoting Cort v. Ash, 422 U.S. 66, 82, 95 S.Ct. 2080, 2090, 45 L.Ed.2d 26 (1975) (emphasis in original)). In light of the virtual identity of the non-discrimination language in Title VI, Title IX, and the 4-R Act and the fact that § 905 expressly refers to the enforcement mechanisms of Title VI, see fns.3> 4, supra, this court concludes that congressional silence on the existence of a private remedy under the 4-R Act indicates only that Congress felt no need to stress the availability of such a right of action. By modeling § 905 after a non-discrimination provision which gave private plaintiffs a cause of action against funding recipients Congress evidently believed that the legal context of the 4-R Act provided eloquent enough support for the implication of a private right of action under § 905. As in Cannon, there is no basis for finding that a private remedy would frustrate the underlying purpose of the 4-R Act. The non-discrimination provision of the 4-R Act embodied DOT’S policy of ending discriminatory practices in federally funded transportation projects. Section 905 of the 4-R Act was designed to protect “person[s]” against discriminatory practices, suggesting that Congress sought to provide protection to individual citizens, as it had in Title VI and Title IX. There is also no indication that implying a federal remedy here would be inappropriate because the subject matter of the 4-R Act is primarily of concern to the states. The federal government is funding the 4-R Act programs and has long led national efforts to end invidious discrimination. See Cannon, 441 U.S. at 708-09, 99 S.Ct. at 1963-64. Defendants’ argument that the unpublished order in Fizer v. Adams, supra, precludes implication of a private right of action in this case against these defendants is unpersuasive. The Seventh Circuit viewed plaintiffs’ earlier complaint as seeking relief solely from the Secretary of the DOT and the Administrator of the FRA and explicitly cautioned that “any implication in the decision of the district court that plaintiffs would have no direct remedy against the railroad defendants for violation of 45 U.S.C. § 803(a) is not binding or effective in other cases.” Slip. op. at 5. The Seventh Circuit was also cognizant of the fact that the Supreme Court had, in Cannon, implied a private right of action against recipients of federal funds, and noted that Fizer, unlike Cannon, sought relief only against the providers of financial assistance. Id. at 4, n. 3. The Cannon court did discuss this distinction in its analysis of Title VI: In its final form, § 601 [declaring an absolute individual right not to have federal funds spent in aid of discrimination] was far more conducive to implication of a private remedy against a discriminatory recipient than was the original language, but at the same time was arguably less conducive to implication of a private remedy against the Government (as well as the recipient) to compel the cut-off of funds. Although willing to extend private rights against discriminatory recipients, the government may not have been anxious to encourage suits against itself. 441 U.S. at 716 n. 51, 99 S.Ct. at 1967 n. 51 (emphasis in original). This court thus concludes that Cannon is persuasive authority for implying a private right of action under § 905 of the 4-R Act. The only other court to consider the issue has reached the same conclusion. Mikkilineni v. United Engineers & Constructors, 485 F.Supp. 1292, 1295-97 (E.D.Pa.1980). At this point we need not delineate precisely what relief is available to the plaintiffs. Their prayer for an injunction against the railroad defendants’ continued receipt of federal funds is, however, untenable. This request is simply the flip side of the relief sought in plaintiffs’ previous suit against the FRA Administrator and the Secretary of DOT. In that action plaintiffs sought an order enjoining the federal defendants from distributing funds. Here, they want to enjoin the private defendants from receiving those funds. The Seventh Circuit, in rejecting plaintiffs’ earlier action against the federal defendants for failure to exhaust administrative remedies, said, “The complaint'... was not cast in terms of judicial review under 45 U.S.C. § 803(e) and, if it had been, was premature, being brought before the Administrator had completed final action.” Fizer v. Adams, slip op. at 7. In analyzing the existence of a private right of action under § 905 to terminate financial assistance, the court went on to say, “Congress has pretty solidly indicated its intent that the relief which plaintiffs seek here is committed to administrative decision in the first instance subject to judicial review.” Id. at 10. It concluded that “judicial oversight of an intervention in the administrative process under [§ 905] is ordinarily limited to judicial review under [§ 905(e)].” Id. Allowing plaintiffs to bring a de novo action against private defendants to prohibit their receipt of federal funds without adding as defendants the federal agency that distributes those funds and that has already decided in administrative proceedings not to terminate funding would circumvent the procedural provisions of the statute and implementing regulations. As the Fizer decision suggests, when a party seeks a funding cut-off for a recipient’s violations of § 905’s anti-discrimination provisions, it must do so through administrative proceedings followed by judicial review if agency action is unsatisfactory. Cf. Green Street Association v. Daley, 373 F.2d 1, 8-9 (7th Cir.1967) (affirming dismissal of suit to cut off federal funding for alleged violations of Title VI). NAACP v. Medical Center, Inc., 599 F.2d 1247 (3d Cir.1979), Cannon v. University of Chicago, 441 U.S. at 716 n. 51, 99 S.Ct. at 1967 n. 51. The complaint here neither names the federal agency involved as a defendant nor seeks judicial review of agency action under § 905(e). B. Failure to Meet Affirmative Action Requirements as a Violation of § 905 The railroad defendants characterize count III of the complaint as claiming a wrongful failure to meet the goals of an affirmative action program to which defendants agreed to work towards as a condition of federal funding. They then contend that § 905 of the 4-R Act either provides no cause of action to enforce an affirmative action plan or, at best, gives plaintiffs only a right to seek judicial review of administrative decisions regarding defendants’ compliance with the affirmative action program. As previously noted, defendants’ emphasis on the affirmative action allegations of count III is misplaced. Although count III does refer to the affirmative action requirements of the regulations promulgated by the Secretary of DOT, this court views those allegations as simply a description of one of the means by which the railroad defendants, in the context of their agreements with DOT to increase participation of minority business enterprises in railroad contracts, allegedly violated the non-discrimination provision of the 4-R Act. C. Failure to Join an Indispensable Party The railroad defendants contend that count III must be dismissed for failure to join the administrator of the FRA as a party because the relief that plaintiffs seek — a cut-off of funds — is within the power of the administrator, who has already made decision not to do so in this case. Count III has been dismissed to the extent that it seeks an injunction against the continued receipt of federal funding by the railroad defendants, and the court therefore need not discuss the question of indispensable parties in any greater depth. In sum, count III is dismissed to the extent plaintiffs seek an injunction against receipt of 4-R Act funds by the railroads. 4. Counts IV: The Contract Claim Count IV is a common law breach of contract claim which alleges that the defendant railroads breached their funding a