United States v. Associated Milk Producers, Inc.

Citation394 F. Supp. 29
Decision Date30 April 1975
Docket NumberCiv. A. No. 74 CV 80-W 1.
PartiesUNITED STATES of America, Plaintiff, v. ASSOCIATED MILK PRODUCERS, INC., Defendant.
CourtU.S. District Court — Western District of Missouri

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Rebecca J. Schneiderman, John C. Danielson, Antitrust Div., Dept. of Justice, Chicago, Ill., for plaintiff.

Sidney Harris, Washington, D. C., for defendant.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

I.

This antitrust case was initially filed on February 1, 1972 in the Western District of Texas as a civil action under circumstances stated in the affidavit filed January 3, 1974 by the Honorable Richard W. McLaren, presently a United States District Judge, who at the time this case was filed, was the Assistant Attorney General of the United States in charge of the Antitrust Division of the Department of Justice. Pretrial proceedings in this case were, through the cooperation of the Honorable Dorwin W. Suttle, Judge of the Western District of Texas, conducted from the outset by this Court and coordinated with the group of earlier filed private antitrust treble-damage cases which eventually were transferred to this Court pursuant to 28 U.S.C. § 1407 as the Midwest Milk Monopolization Litigation, JPML Docket No. 83.

This case was formally transferred to this Court on February 20, 1974, pursuant to 28 U.S.C. § 1404(a) and was given a priority designation, together with several of the private cases originally filed in the Southern District of Texas for early trial. Various pretrial orders anticipated that trial of this case would have commenced in January, 1975.

On August 13, 1974, the parties filed a stipulation under which a proposed consent decree was presented to this Court for approval. Procedures directed by the Court and followed by the parties in connection with the proposed consent decree, the complexity of that proposed decree, the passage and approval of the Antitrust Procedures and Penalties Act, P.L. 93-528, 88 Stat. 1706; U. S.Code Congressional and Administrative News, 93rd Cong., 2nd Sess., p. 1962, on December 21, 1974, and a recent grand jury investigation of AMPI in the Western District of Texas, have all delayed the processing of the proposed consent decree.

The details of those events and the procedures followed by this Court will be stated in the next part of this opinion. We find and conclude that the procedures directed before and after the approval of the Antitrust Procedures and Penalties Act reflect a substantial compliance with the provision of that new legislation; that various motions to intervene should be denied; that the proposed consent decree as the same has been amended during the processing of this proceeding should be approved; and that a supplemental order establishing enforcement and modification procedures should be entered by this Court on its own motion.

II.

The proposed decree was presented under a stipulation which provided that the parties consented that a Final Judgment be entered in the form attached to the stipulation after the expiration of sixty days without further notice to any party or other proceedings, provided the government had not withdrawn its consent within the sixty day period. The press release reproduced in the footnote was issued the same day by the Department of Justice in Washington.1 The procedures followed purported to be in compliance with 28 C.F.R. § 50.1(b), except the Assistant Attorney General in charge of the Antitrust Division stated in the press release that "the usual 30-day waiting period was doubled because of the complexity of the decree and the large numbers of interested parties." No supporting data whatsoever was presented to support the conclusory statements of the press release in regard to the scope and effect of the proposed consent decree.

The transcript of the proceedings for September 3, 1974, shows that this Court indicated its dissatisfaction with the manner in which the proposed consent decree had been presented. Extensive reference was made to the Hearings conducted on S. 782 before the Subcommittee of the Senate Judiciary Committee. We made clear in September, 1974 that this Court would insist upon "procedures consistent with full illumination in an orderly manner so that the charge cannot be legitimately made that any consent decree in this case is somehow a dividend, last dividend perhaps, to have been received in light of political contributions which the parties like to talk about in this case." Ibid, p. 28

We directed at that conference a "reappraisal on the part of the government and AMPI and a suggested time schedule where an explanation of what this decree means and an explanation of what it does not mean may be promptly filed where persons who may object, once they find out what the decree is designed to do and what it is designed not to do will be afforded an appropriate opportunity to state in writing their objection, if any, or their suggestion for clarification which they may deem appropriate under the circumstances." Ibid, pp. 28-29

After full discussion of the problems presented, and after an off-the-record recess, the Court established a timetable and schedule for the various procedural steps to be taken before this Court would determine whether or not the proposed consent decree would be approved.2 The matter was set for further hearing for November 6, 1974, in order that the various filings contemplated by the directions made at the September 3, 1974 hearing could be given appropriate consideration.3

Consistent with the schedule, as amended, the government on October 11, 1974 filed a 99 page response to all comments which had been earlier filed by various third persons relating to the proposed consent decree. Eight of the numerous parties to JPML Docket No. 83 had earlier made filings in which they made both general and specific comments on the proposed consent decree. In addition, seven persons not parties to JPML Docket No. 83 had earlier filed comments in accordance with established time schedules.

The government's detailed response treated specifically all issues raised by all persons as they related to the various provisions in the proposed consent decree. That response stated in detail the reasons why the government concluded that the litigation should be terminated in accordance with the proposed consent decree.

The table of contents to the government's response, attached hereto as Appendix A, reveals the scope and careful detail of that response and affords the factual basis for our finding and legal conclusion that such response, when considered in light of all other filings in this case, reflects an adequate compliance with the subsequently enacted provisions of the Antitrust Procedures and Penalties Act, as provided in § 2(b), requiring the filing of a competitive impact statement; and § 2(c), requiring a summary of the terms of the proposal for the consent judgment, and as an appropriate response to comments made by interested third persons, as presently required by § 2(d).4

Prior to the hearing on November 14, 1974, and in addition to objections and suggestions in regard to the proposed consent decree, formal motions to intervene were filed by NFO; Schepps Dairy, Inc., and Sentry Foods States. The government filed suggestions in opposition to the motions to intervene the day before the November 14, 1974 hearing.

The transcript of the proceedings held November 14 and 15, 1974, shows that the Court deferred ruling on the motions to intervene and directed proceedings to determine whether it was either necessary or appropriate to hear the live testimony of any particular witness which any person wished to call. At the close of the second day of the November 14, 1974 hearing, the Court granted all persons an opportunity to prepare, serve, and file an appropriate statement which would outline the testimonial evidence which they believed should be adduced, together with a summary statement of the testimony that would be elicited from that witness. The Court also required that the statement include an identification of any documentary evidence which counsel believed the Court should consider before ruling the question of whether the proposed consent decree should be approved. See page 141 of the transcript of proceedings of November 14, 1974 hearing.

NFO, Schepps Dairy, Inc., ARSCP and NAMR filed timely statements of evidence which they believed should be adduced by the Court considering the proposed consent decree. We have carefully considered those statements and find and conclude that the data which all parties wished to introduce in evidence was either uncontroverted or clearly irrelevant and immaterial to any issue before the Court. NFO's statement of evidence, for example, focused upon NFO's concern about the provisions of the proposed consent decree as it related to membership agreements relief afforded an AMPI member; other alleged deficiencies in the proposed consent decree which had been earlier stated on pages 9-14 of NFO's earlier filed objections; NFO's contention that the Final Report of the Senate Watergate Committee required a "plenary evidentiary hearing amounting to a full trial;" that the decree should contain appropriate provisions which would require divestiture relief; relief against harassing litigation, and relief against political slush funds which would enjoin AMPI from operating or controlling TAPE, C-TAPE, or their progeny.

NFO's statement of evidence identified particular depositions and documents already available for the Court's consideration. We also already had available for consideration the Final Report of the Senate Watergate Committee, the Wright report and exhibits relating to that report, which had been produced by Mr. Wright at his deposition. We are satisfied that we have much more data before us for consideration than that contemplated by the Antitrust Procedures and Penalties ...

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