U.S. v. Associated Milk Producers, Inc.

• Decision Date: 19 May 1976
• Docket Number: Nos. 75-1452 and 75-1473,s. 75-1452 and 75-1473
• Citation: 534 F.2d 113
• Parties: 1976-1 Trade Cases 60,826 UNITED STATES of America, Appellee, v. ASSOCIATED MILK PRODUCERS, INC., Appellee, v. ASSOCIATED RESERVE STANDBY POOL COOPERATIVE, INC., Appellant. UNITED STATES of America, Appellee, v. ASSOCIATED MILK PRODUCERS, INC., Appellee, v. The NATIONAL FARMERS' ORGANIZATION, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 113

534 F.2d 113

1976-1 Trade Cases 60,826

UNITED STATES of America, Appellee, v. ASSOCIATED MILK PRODUCERS, INC., Appellee, v. ASSOCIATED RESERVE STANDBY POOL COOPERATIVE, INC., Appellant.

UNITED STATES of America, Appellee, v. ASSOCIATED MILK PRODUCERS, INC., Appellee, v. The NATIONAL FARMERS' ORGANIZATION, Appellant.

Nos. 75-1452 and 75-1473.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1975.

Decided April 16, 1976.

As Amended on Denial of Rehearing May 19, 1976.

Melville C. Williams and Kael B. Kennedy, Chicago, Ill., and David R. Hardy and John C. Monica, Kansas City, Mo., on brief, for appellant.

Thomas E. Kauper, Asst. Atty. Gen., Robert B. Nicholson, Laurence K. Gustafson, Catherine G. O'Sullivan, Carl D. Lawson and Lee I. Weintraub, Attys., Dept. of Justice, Washington, D. C., on brief, for appellee, United States.

Sidney Harris, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., and Colvin A. Peterson, Jr., Kansas City, Mo., on brief, for appellee, Associated Milk Producers, Inc.

Worth Rowley, Richard A. Green, Aaron B. Kahn and Patrick F. Martin, Rowley & Scott, Washington, D. C., and William H. Sanders, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for the National Farmers' Organization.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

The National Farmers' Organization (NFO) and the Associated Reserve Standby Pool Cooperative, Inc. (ARSPC), have filed separate appeals from denial of their motions to intervene in a civil antitrust suit brought by the United States against the Associated Milk Producers, Inc. (AMPI), United States v. Associated Milk Producers, Inc., 394 F.Supp. 29 (W.D.Mo.1975). We have consolidated these appeals for purposes of this opinion. We affirm the district court's denial of intervention in each case.

AMPI, the defendant in the government case as well as in several private treble-damage suits, is a dairymen's cooperative marketing organization with about 40,000 members in 14 midwestern states. In the government's suit AMPI is charged with monopolization and attempted monopolization of milk marketing.

ARSPC, one of the appellants, is a federation of 17 dairy cooperatives, among which the defendant AMPI is the largest. ARSPC's function is to equalize supplies and prices of milk in all sections of the nation east of the Rocky Mountains by taking options from producers with excess milk and transferring the milk to other areas where supplies are low.

NFO is a nationwide organization of farmers which markets many of the products of its members. It markets milk in competition with AMPI. NFO has a private treble-damage antitrust suit pending against AMPI in which NFO alleges injury from some of the antitrust violations charged in the government suit.

The government's case was filed in February, 1972. After several years of discovery, the government and AMPI commenced settlement negotiations, and on August 13, 1974, the parties submitted a proposed consent decree to the district court. Thereafter, the district court set up a detailed schedule for submission of questions and objections by third parties such as NFO and ARSPC. The district court directed all interested persons to file appropriate motions in October, 1974, including motions seeking leave to intervene or to appear as amicus curiae.

Both NFO and ARSPC filed written objections to the proposed consent decree. NFO then made a timely motion to intervene as of right and opposed the decree on the ground that the relief granted the government was not sufficient to remedy the effects of past illegal conduct by AMPI. ¹ ARSPC, on the other hand, entered an appearance as amicus curiae only and objected to the proposed decree. Counsel for ARSPC stated: "(W)e filed intentionally as amicus rather than seeking to intervene under Rule 24 because of the posture of the government with respect to our client. . . ." Transcript of Nov. 14, 1974, hearing. Thereafter, ARSPC was allowed to state its objections, propose an alternative version of the challenged provisions, and question the government on why it insisted on the version it did.

On April 30, 1975, the district court approved the proposed decree, finding it to be in the public interest and within the discretion of the Attorney General. In the same opinion, the district court indicated it would deny NFO's motion to intervene. 394 F.Supp. at 42-44.

Twelve days after the district court had approved the decree, ARSPC moved to intervene as of right and to modify the decree in accord with ARSPC's prior objections. The district court denied ARSPC's motion in an unreported memorandum opinion.

The ARSP Motion to Intervene No. 75-1452.

The district court denied ARSPC's post-judgment motion to intervene as untimely, noting that intervention after entry of judgment should be permitted only in rare instances, such as where the applicant was unaware until that time that its interests might be affected. Further, the district court reiterated the statement from its April 30, 1975, opinion that in any event it was satisfied that the government had sound reasons for insisting on its version of the decree rather than ARSPC's version.

Timeliness.

Rule 24's first requirement is that a motion to intervene be " timely." ² "Timeliness" under Rule 24 is a matter committed to the discretion of the trial court, and that court's determination can be reversed only if it is an abuse of discretion. NAACP v New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648, 662 (1973); Iowa State Univ. Research Foundation, Inc. v. Honeywell, Inc., 459 F.2d 447, 449 (8th Cir. 1972).

The general rule is that motions for intervention made after entry of final judgment will be granted only upon a strong showing of entitlement and of justification for failure to request intervention sooner. See United States v. Western Electric Co., 1968 Trade Cases P 72,415 (D.N.J.), aff'd sub nom., Clark Walter & Sons, Inc. v. United States, 392 U.S. 659, 88 S.Ct. 2286, 20 L.Ed.2d 1348 (1968); United States v. Blue Chip Stamp Co., 272 F.Supp. 432, 435-38 (C.D.Cal.1967), aff'd sub nom., Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580, 88 S.Ct. 693, 19 L.Ed.2d 781 (1968). In these government antitrust suits intervention was denied where the motions were filed after final approval of a consent decree. In Blue Chip, the situation was much like that at bar, for the would-be intervenors had previously participated as amicus. The court said:

Each petitioner claims it demonstrated its opposition to the decree by filing an amicus curiae brief and by arguing in opposition to its entry. However, if petitioners had time to make known their opposition to the decree, they had time to file their applications to intervene.

272 F.Supp. at 435-36.

In the instant case, ARSPC has not advanced sufficient reasons for refusing to move for intervention in October, when the district court requested such motions, and for waiting until the following May, after the decree was filed, to make its motion. ARSPC was at all relevant times aware that the decree contained the provision to which it objects. Further the district court stated that ARSPC never had any reason to believe that the court would refuse to approve the provision or that the government would change its mind.

The district court did not rely solely on the fact that the decree had already been entered in finding the motion untimely. It considered the opportunity of ARSPC to make its motion earlier, the excuse advanced for failing to do so and the opportunities ARSPC had already had to present its objections in written questions, to negotiate with AMPI and the government, and to take part in hearings before the court. On the basis of these factors, the district court held the motion untimely. We agree.

The NFO Motion to Intervene No. 75-1473.

NFO claims that it was entitled to intervene as of right. It is not disputed that NFO's motion to intervene was timely. However, the district court held that NFO had failed to satisfy the other requisites of Fed.R.Civ.P. 24(a)(2).

NFO urges that the government is not adequately representing either the general public interest or the more specific interests of injured competitors in this suit, due to AMPI's alleged "political muscle" and illegal campaign contributions. ³ NFO asserts that it is a competitor of AMPI and has suffered due to AMPI's predatory practices. It asks that it be allowed to intervene to protect the public interest.

In denying NFO intervention, the district court relied primarily on the Supreme Court's decision in Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961), which, under an earlier version of Rule 24(a), held that private parties were not entitled to intervene in government antitrust suits, since such parties would not be bound by the judgment and could bring their own suits for treble damages. 366 U.S. at 689, 81 S.Ct. at 1313, 6 L.Ed.2d at 609. While the present Rule 24 no longer requires that an applicant for intervention be bound by the judgment, the district court held that the appropriate standard for intervention in government antitrust cases is still that suggested by the Court in Sam Fox :

(S)ound policy would strongly lead us to decline . . . to assess the wisdom of the Government's judgment in negotiating and accepting the . . . consent decree, at least in the absence of any claim of bad faith or malfeasance on the part of the Government in so acting.

366 U.S. at 689, 81 S.Ct. at 1313, 6 L.Ed.2d at 609 (emphasis added).

NFO contends, however, that it need not show bad faith as under Sam Fox, and that mere failure to obtain all the relief which might be merited may be grounds for intervention and for setting aside a consent decree. NFO argues that only "nonfeasance" rather than "malfeasance" must be shown. This contention is based on NFO's reading of the Supreme...