Missouri Portland Cement Co v. Cargill, Inc, 73-2014

• Decision Date: 25 July 1974
• Docket Number: No. 73-2014,73-2014
• Citation: 94 S.Ct. 3210,41 L.Ed.2d 1161,418 U.S. 919
• Parties: MISSOURI PORTLAND CEMENT CO. v. CARGILL, INC
• Court: U.S. Supreme Court

41 L.Ed.2d 1161

94 S.Ct. 3210

418 U.S. 919

MISSOURI PORTLAND CEMENT CO.

v CARGILL, INC.

No. 73-2014.

Supreme Court of the United States

July 25, 1974

Motion to Vacate Stay of Mandate of the United States Court of Appeals for the Second Circuit.

The motion of respondent to vacate the stay heretofore entered by Mr. Justice DOUGLAS on July 12, 1974, is granted.

Mr. Justice BLACKMUN took no part in the consideration or decision of this motion.

Mr. Justice DOUGLAS, dissenting.

Cargill, desirous of acquiring control of petitioner, made a cash offer for all of petitioner's common stock. Petitioner thereupon filed this suit in the District Court to enjoin that tender offer, alleging that acquisition of control of petitioner would violate § 7 of the Clayton Act. That Court issued the injunction stating in a detailed opinion its view that the acquisition of stock control by Cargill raises serious antitrust issues.

The sole question here is whether Cargill's attempts to take over Missouri Portland will be enjoined, pending the outcome of a trial on the merits of Missouri Portland's claim that a merger of these two companies would violate the antitrust laws. The District Court granted such an injunction, 375 F.Supp. 249, but the Court of Appeals reversed. 498 F.2d 851. Missouri Portland sought and received a stay of the Court of Appeals' mandate, thus reinstituting the injunction issued by the District Court. Today the Court vacates that stay.

The Court treats the case as if we were in the sensitive First Amendment field where relatively minor restraints may have a 'chilling' effect on an important constitu- tional right. But as I read the Constitution and Bill of Rights, a corporation has no constitutional right to merge, consolidate, or acquire the assets of another company. The old Court in the days of 'substantive due process' built an expansive corporate Bill of Rights by reading 'liberty' in the Due Process Clause of the Fifth Amendment as including the 'liberty' to exploit people, our resources, our environment. The Court trifles with the antitrust laws when it restores a stay that only requires Cargill to wait until there is a ruling on the merits before it swallows up Missouri Portland. What the Court does today is a shocking example of the disregard of law to please the management of huge conglomerates. Denial of a stay means a decision on the merits. For once the companies and their personnel are mixed, the momentum to complete the acquisition is almost irresistible. By careless neglect we actually decide that, what appears to be a monstrous violation of the law, may go on unremedied.

I

The Court of Appeals did not hold that the findings of the District Court were 'clearly erroneous.' The Court of Appeals considered the issue on the merits to be frivolous and only required Cargill to agree to hold the assets of Missouri Portland in a separate corporation or division so that it can be divested under any subsequent decree of the Court. But that misses the whole point, as I will make clear.

II

Missouri Portland is the Nation's 20th largest producer of Portland cement with 2% of the national capacity and 8% in the 11-state region it serves. The District Court defined the relevant markets here as four metropolitan areas in which Missouri Portland ranks either first or second in market share. In all of these markets the top four firms have at least 88% of the market.¹

Cargill is a huge, privately held conglomerate with headquarters in Minneapolis. In fiscal 1973 it had sales of $5.3 billion. Cargill specializes in commodities and as such gas special skills in the transportation of heavy, bulk products and in the sale of fungible products. Cement is a heavy, bulk, fungible product, but Cargill is not involved in the cement industry.

Substantial antitrust issues are raised by the proposed takeover of Missouri Portland by Cargill. The District Court found that Cargill is the most likely potential entrant into the cement industry and concluded that a significant anticompetitive effect would result from Cargill's entry via a takeover of an already dominant firm rather than by de novo entry or by 'toehold' acquisition. Furthermore, the District Court found that the addition of Cargill's huge financial resources to Missouri Portland's already substantial assets will raise significant barriers to entry of others in the relevant markets and will tend to increase the dominance of Missouri Portland in markets which are already heavily concentrated. Finally, the District Court noted that the challenged acquisition would eliminate a potential competitor from the fringe of the market, thereby possibly resulting in an additional anticompetitive effect.

The Court of Appeals disputed all of these conclusions by the District Court. Yet the very fact that disagreement exists between the two lower courts on these points indicates the likely existence of a substantial question. If the District Court's version of the facts is the correct one, it seems that the takeover would violate the Clayton Act. See United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973); Ford Motor Co. v. United States, 405 U.S. 562, 92 S.Ct. 1142, 31 L.Ed.2d 492 (1972); FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967); United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964); United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).

III

The issues to be raised by the petition for certiorari raise a substantial question that involves a conflict between the...