United States v. Borden Co

• Decision Date: 17 May 1954
• Docket Number: No. 464,464
• Citation: 74 S.Ct. 703,98 L.Ed. 903,347 U.S. 514
• Parties: UNITED STATES v. BORDEN CO. et al
• Court: U.S. Supreme Court

347 U.S. 514

74 S.Ct. 703

98 L.Ed. 903

UNITED STATES

v BORDEN CO. et al.

No. 464.

Argued April 27, 1954.

Decided May 17, 1954.

Mr.

Asst. Atty. Gen. Barnes, for appellant.

Mr. Stuart S. Ball, Chicago, Ill., for appellees Borden Co. et al.

Mr Leo F. Tierney, Chicago, Ill., for appellee Beloit Dairy Co.

Mr. Justice CLARK delivered the opinion of the Court.

The United States instituted this civil proceeding against ten Chicago dairies,¹ charging conspiracy to restrain and monopolize the sale of fluid milk to wholesale customers and others in the Chicago area, in violation of the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note, and price discrimination, in violation of the Clayton Act, 15 U.S.C.A. § 12 et seq. Prior to trial a consent decree was entered against five of the smaller defendant companies, enjoining continuation of the conduct charged in the complaint. At the close of the Government's case against the remaining five defendants,² the District Court dismissed the complaint in its entirety. It held that, as to the alleged violations of §§ 1 and 2 of the Sherman Act, the evidence failed to establish the existence of a conspiracy or combination; and that, though there was proof of price discrimination violative of § 2(a) of the Clayton Act by four of the defendants,³ a prior decree in a private antitrust action brought by a competitor dairy company enjoined the conduct in question and made it 'useless' to award the Government an injunction. The Government then appealed directly to this Court under 15 U.S.C. § 29, 15 U.S.C.A. § 29, and we noted probable jurisdiction, 346 U.S. 914, 74 S.Ct. 276.

Three of the four questions presented on this appeal deal with rulings by the district judge that certain evidence was inadmissible.⁴ The Government does not challenge the court's conclusion that on the record conspiracy was not shown, but it insists that error in these rulings precluded establishment of the conspiracy. After hearing argument and considering as much of the record as is before us, including the Government's offers of proof, we are of the opinion that, even assuming error in each of the challenged rulings, it does not appear that admission of the evidence in question would have been sufficient to change the conclusion that the Government had not established a case under the Sherman Act; hence the rulings cannot be said to have affected substantial rights of the parties within the meaning of 28 U.S.C. § 2111, 28 U.S.C.A. § 2111.⁵ Since on this basis we affirm the judgment of dismissal as to the Sherman Act allegations, it is unnecessary to discuss the propriety or impropriety of the several rulings.

The fourth question challenges the basis of the District Court's refusal to grant the Government injunctive relief against price discrimination by four of the defendants.⁶ The district judge found that Government evidence tended to prove that these defendant companies have sold at prices which discriminate between purchasers of milk of like grade and quality. This, he said, would give defendants the burden of establishing that the discriminations fall within statutory exceptions, were it not that under a consent decree entered against defendants in a private suit in 1952 by another judge of the same court,⁷ they already are enjoined from performing all acts specified by the Government in its prayer for relief. In the opinion of the district judge,

'A decree of this court entered at the instance of a private litigant is as binding upon a defendant as a decree entered at the instance of the government; and a consent decree, entered by any judge of this court without hearing evidence, is as binding as a decree entered by another judge after a protracted trial. I conclude, therefore, that each of the remaining defendants is now effectively enjoined by this court from performing any of the acts set forth in the government's prayer for injunctive relief, insofar as the Clayton Act is concerned.

'As a court of equity, I will not perform a useless task. The violations of the Clayton Act described in the complaint and shown at the trial are, for the most part, old violations. And to this court, the Dean decree assures, as completely as any decree can assure, that there will be no new violations.' (111 F.Supp. 581.)

Accordingly the court dismissed that part of the complaint which alleged violations of § 2(a) of the Clayton Act. Thus it appears that the Government was refused an injunction solely because of the existence of the prior decree entered against defendants in the course of a private action. We think that refusal on this basis constituted an abuse of discretion.

Section 15 of the Clayton Act, 15 U.S.C. § 25, 15 U.S.C.A. § 25, charges the United States district attorneys, under supervision of the Attorney General, with the duty of instituting equity proceedings to prevent and restrain violation of certain of the antitrust laws, including price discrimination. Under § 16 of the Act, 15 U.S.C. § 26, 15 U.S.C.A. § 26, a private plaintiff may obtain injunctive relief against such violations only on a showing of 'threatened loss or damage'; and this must be of a sort personal to the plaintiff, Beegle v. Thomson, 7 Cir., 1943, 138 F.2d 875, 881. The private-injunction action, like the treble-damage action under § 4 of the Act, supplements Government enforcement of the antitrust laws; but it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws. The Government seeks its injunctive remedies on behalf of the general public; the private plaintiff, though his remedy is made available pursuant to public policy as determined by Congress, may be expected to exercise it only when his personal interest will be served. These private and public actions were designed to be cumulative, not mutually exclusive. S. Rep. No. 698, 63d Cong., 2d Sess. 42; cf. Federal Trade Commission v. Cement Institute, 1948, 333 U.S. 683, 694—695, 68 S.Ct. 793, 800, 92 L.Ed. 1009. '* * * (T)he scheme of the statute is sharply to distinguish between Government suits, either criminal or civil, and private suits for injunctive relief or for treble damages. Different policy considerations govern each of these. They may proceed simultaneously or in disregard of each other.' United States v. Bendix Home Appliances, D.C.S.D.N.Y.1949, 10 F.R.D. 73, 77. In short, the Government's right and duty to seek an injunction to protect the public interest exist without regard to any private suit or decree.

To hold that a private decree renders unnecessary an injunction to which the Government is otherwise entitled is to ignore the...