Eastern States Retail Lumber Dealers Association v. United States William Bride v. United States

• Court: U.S. Supreme Court
• Writing for the Court: Day
• Citation: Eastern States Retail Lumber Dealers Association v. United States William Bride v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490 (1914)
• Decision Date: 22 June 1914
• Docket Number: 550,No. 550,No. 511,Nos. 511,511,s. 511
• Parties: EASTERN STATES RETAIL LUMBER DEALERS' ASSOCIATION et al., Appts., v. UNITED STATES. WILLIAM C. McBRIDE, Individually and as President of the Retail Lumbermen's Association of Philadelphia, et al., Appts., v. UNITED STATES

234 U.S. 600

34 S.Ct. 951

58 L.Ed. 1490

EASTERN STATES RETAIL LUMBER DEALERS' ASSOCIATION et al., Appts.,

v UNITED STATES.

No. 511.

WILLIAM C. McBRIDE, Individually and as President of

the Retail Lumbermen's Association of Philadelphia,

et al., Appts.,

v UNITED STATES.

No. 550.

Nos. 511, 550.

Argued October 24 and 27, 1913.

Decided June 22, 1914.

Mr. Alfred B. Cruikshank for appellants in No. 511.

Messrs Howard Taylor, Charles E. Morgan, C. E. Morgan, 3d, and Charles B. Brophy for appellants in No. 550.

[Argument of Counsel from pages 601-603 intentionally omitted] Mr. G. Carroll Todd, assistant to the Attorney General, for appellee.

[Argument of Counsel from page 603 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

These are appeals from a decree of the district court of the United States for the southern district of New York in an action brought by the United States under the Sherman anti-trust act (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), having for its object an injunction against certain alleged combinations of retail lumber dealers, which, it was averred, had entered into a conspiracy to prevent wholesale dealers from selling directly to consumers of lumber. The defendants are various lumber associations composed largely of retail lumber dealers in New York, New Jersey, Pennsylvania, Connecticut, Massachusetts, Rhode Island, Maryland, and the District of Columbia, and the officers and directors of the associations. The record is very voluminous, but the facts essential to a consideration of the decree of the district court are in comparatively narrow compass. While the record also concerns practices which are said to have been abandoned, the decree entered, declaring the defendants named to be in a combination or conspiracy to restrict and restrain competition, depends solely upon the method adopted and being used by the defendants in the distribution of the information contained in a certain document known as the 'Official Report,' the form of which, set forth in the decree, is as follows:

Official Report.

(Name of the Particular Association Circulating it.)

Statement to Members (with the Date).

You are reminded that it is because you are members of our Association and have an interest in common with your fellow members in the information contained in this statement, that they communicate it to you; and that they communicate to you in strictest confidence, and with the understanding that you are to receive it and treat it in the same way.

The following are reported as having solicited, quoted, or as having sold direct to the consumers:

(Here follows a list of the names and addresses of various wholesale dealers.)

Members upon learning of any instance of persons soliciting, quoting, or selling direct to consumers, should at once report same, and in so doing should, if possible, supply the following information:

The number and initials of car.

The name of consumer to whom the car is consigned.

The initials or name of shipper.

The date of arrival of car.

The place of delivery.

The point of origin;

and the defendants were enjoined from combining, conspiring, or agreeing together to distribute, and from distributing, to members of the associations named or any other person or persons, any information showing soliciting, quotations, or sales and shipments of lumber and lumber products from manufacturers and wholesalers to consumers of or dealers in lumber, and from the preparation and distribution of the lists above described as the 'Official Report,' or the use of a similar device.

The record discloses that the defendant associations are constituted alrgely of retail lumber dealers, each of whom has the natural desire to control his local trade, which the retailers contend have been unduly interfered with by the wholesalers in selling to consumers within the local territory in such wise as to conflict with what they regard as a strictly local trade, and it appears that the defendant associations have for their object, among other things, the adoption of ways and means to protect such trade and to prevent the wholesale dealers from intruding therein. The particular thing which this case concerns in the retailers' efforts to promote the end in view is the attempt in the manner shown, by the circulation of the reports in question, to keep the wholesalers from selling directly to the local trade. The trade of the wholesalers involved covers a number of states, and there is no question but that the supplying of lumber to the large num- bers of retailers in these associations in different states is interstate trade, and that if the practices are illegal within the Sherman act they may be reached by this proceeding. Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; Loewe v. Lawlor, 208 U. S. 274, 300, 52 L. ed. 488, 501, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815.

The record discloses a systematic circulation among the members of the defendant associations of the official report above quoted. The method of operation as stated by the learned counsel for the appellants is thus summarized in his brief:

'The names on this list are obtained and placed thereon as the result of complaints made by individual retailers. When an individual member of a retail association learns of a sale by a wholesaler to one of the customers of the retailer he may complain in writing to the secretary of his association, whose duty it is thereupon to ascertain the facts by correspondence with the wholesaler in question and such other means as may seem proper. Should the report or complaint be without proper foundation, or should the secretary become satisfied that the matter is a trifling one, or the result of inadvertence, the incident usually terminates at this point; but should the complaint appear to be serious and well founded, the case is submitted to the board of directors of the retail association at its next meeting, and should the board be satisfied that the wholesaler is generally making a practice of selling to consumers or customers of the retail trade, the secretary is directed to report the name of such wholesaler for the official list. Thereupon the secretary sends the name to Mr. Crary of New York, who adds it upon the next report to the names of those already thereupon. Each report contains the names of all wholesalers who have been reported from the very beginning as selling to consumers, and whose names have not been removed for cause. The reports or lists after being printed in New York are distributed amongst the secretaries of the defendant associa- tions; those for each association being marked with its name, and in that way only being distinguished from those sent to the other associations. The secretary of each association then distributes the lists to his members. Should any wholesaler desire to have his name removed from the list he can have it done upon satisfactory assurance to the local secretary that he is no longer selling in competition with the retailers. In practice the greatest care is taken to make the list accurate, and as a matter of fact, it only contains the names of such wholesalers as are absolutely committed to the practice of competing with retailers for the custom of builders and contractors.'

The reading of the official report shows that it is intended to give confidential information to the members of the associations of the names of wholesalers reported as soliciting or selling directly to consumers, members upon learning of any such instances being called upon to promptly report the same, supplying detailed information as to the particulars of the transaction. When viewed in the light of the history of these associations and the conflict in which they were engaged to keep the retail trade to themselves and to prevent wholesalers from interfering with what they regarded as their rights in such trade, there can be but one purpose in giving the information in this form to the members of the retail associations of the names of all wholesalers who, by their attempt to invade the exclusive territory of the retailers, as they regard it, have been guilty of unfair competitive trade. These lists were quite commonly spoken of as blacklists, and when the attention of a retailer was brought to the name of a wholesaler who had acted in this wise it was with the evident purpose that he should know of such conduct and act accordingly. True it is that there is no agreement among the retailers to refrain from dealing with listed wholesalers, nor is there any penalty annexed for the failure so to do; but he is blind indeed who does not see the purpose in the predetermined and periodical circulation of this report to put the ban upon wholesale dealers whose names appear in the list of unfair dealers trying by methods obnoxious to the retail dealers to supply the trade which they regard as their own. Indeed, this purpose is practically conceded in the brief of the learned counsel for the appellants:

'It was and is conceded by defendants, and the court below found, that the circulation of this information would have a natural tendency to cause retailers receiving these reports to withhold patronage from listed concerns. That was, of course, the very object of the defendants in circulating them.'

In other words, the circulation of such information among the hundreds of retailers as to the alleged delinquency of a wholesaler with one of their number had and was intended to have the natural effect of causing such retailers to withhold...