United States v. General Electric Co., Civ. A. No. 1364.

• Citation: 95 F. Supp. 165
• Decision Date: 21 November 1950
• Docket Number: Civ. A. No. 1364.
• Parties: UNITED STATES v. GENERAL ELECTRIC CO. et al.
• Court: U.S. District Court — District of New Jersey

95 F. Supp. 165

UNITED STATES v. GENERAL ELECTRIC CO. et al.

Civ. A. No. 1364.

United States District Court D. New Jersey.

November 21, 1950.

Leonard J. Emmerglick, Special Asst. to the Atty. Gen., Horace H. Robbins, Special Atty., New York City, for the plaintiff.

Katzenbach, Gildea & Rudner, by George Gildea, Trenton, N. J., Simpson, Thacher & Bartlett, by Whitney North Seymour, and Albert C. Bickford, New York City, Fish, Richardson & Neave, by Alexander C. Neave, New York City, and Quincy D. Baldwin, Cleveland, Ohio, of counsel, for General Electric Co. and International General Electric Co., Inc.

Pitney, Hardin & Ward, by Arthur J. Martin, Jr., Newark, N. J., for Sylvania Electrical Products, Inc.

Stryker, Tams & Horner, by Walter F. Waldau, Newark, N. J., for Westinghouse Electric & Mfg. Co.

Richard Eyre, New York City, of counsel for Tung Sol Lamp Works, Inc.

Kessler & Kessler, by Samuel I. Kessler, Newark, N. J., and Arthur J. Brothers, New York City, of counsel, for Jewel Lamp Co., and others.

Greene & Hellring, by Israel B. Greene, Newark, N. J., for Bond Electric Co.

FORMAN, District Judge.

Bond Electric Company is before the court on an amended petition in which it prays that it be granted leave to intervene in this case; to take testimony and present evidence in support of its amended petition and that it may be granted ad interim relief.

Save Electric Company has filed a petition for permission to be admitted as amicus curiæ.

Jewel Products, Incorporated, has petitioned to be permitted to intervene in this action or in the alternative to be admitted to appear as amicus curiæ.

Herzog Miniature Lamp Works, Inc., Solar Electric Corporation, Republic Company, Atlas Lamp Corporation, Dura Electric Lamp Co., Inc., Carlton Corporation and Pennsylvania Illuminating Corporation have filed petitions in which they incorporated by reference the petition of Jewel and prayed for the same relief.

Jewel subsequently amended its petition so that it conformed in all respects with the amended petition by Bond Electric Company, above mentioned.

The applications to intervene or otherwise participate in this anti-trust suit brought by the United States come at a stage in the litigation where there are in progress proceedings relating to the formulation of a final decree pursuant to an opinion filed on January 19, 1949 following the trial in this action.

The Rule of Procedure authorizing intervention is as follows:

"Rule 24. Intervention

"(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof. * * *

"(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. * * *

"(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S. C., § 2403." Fed.Rules Civ.Proc. rule 24, 28 U.S.C.A.

Substantially all applicants for intervention contend that they are in competition with the General Electric Company and that their businesses will be affected adversely, or otherwise, depending upon the terms of the decree which will be entered in this case; that the representation of their interests by the Government is inadequate and that they can be of aid to the court in the framing and enforcement of a decree which will also protect the public.

It is clear that the petitioners do not qualify for intervention as of right under the statutes and they themselves do not seriously press that contention.

I emphatically disagree with the applicants when they urge that their interests have not been adequately represented in this case either as contemplated by Rule 24(a) (2) or under the permissive provision of the Rule. The Government has been charged with delay and lack of man power effectively to prosecute anti-trust litigation generally, and this suit in particular. Whatever basis there may be in the comment that anti-trust litigation in general is hampered by failure to supply sufficient man power to implement the administration and enforcement of the provisions of the anti-trust laws no such abstract characterization of the conduct of the Government in this case has merit. The seemingly long delays cannot be properly assessed without reflecting the enormous task involved in the preparation of the case, the obstacles to be surmounted in the gathering and presentation of evidence, and the unavoidable continuances granted at the request of the Executive Department of the Government justified by the exigencies created by World War II.

Tacitly, if not otherwise, the opinion in this case was designed to carry the conviction that the Department of Justice adequately represented the public interest in free competition including the interests of the present applicants for intervention.

Moreover under Rule 24(a) (2) there is a conjunctive requirement that the applicant for intervention "is or may be bound by a judgment in the action". While applicants may be more or less affected by the judgment rendered in this case it is apparent that they will not be bound by any decree which may be entered. See Jewel Ridge Coal Corp. v. Local #6167, etc., D.C., 3 F.R.D. 251, 254.

The sole basis to warrant the intervention of the petitioners is that this court is endowed with the power to permit intervention in the exercise of its sound discretion within the scope of Rule 24(b). It is indeed questionable whether the claim of petitioners that their interests will best be served by the entering of a certain form of decree or the granting of certain relief is the type of "claim" encompassed within the Rule which would justify the exercise of a court's discretion in allowing intervention. Apart from this consideration, I am constrained to the opinion that my discretion should not be exercised to permit the petitioners to intervene in this anti-trust suit instituted and tried by the Government. I am in accord with the persuasive reasoning of Judge Rifkind in his illuminating opinion in U. S. v. Bendix Home Appliances, Inc., et al., D.C., 10 F.R.D. 73, 76 for the necessity of maintaining the "bifurcated structure of the anti-trust laws", particularly where here as there, "the United States as the party plaintiff and the Attorney General as the statutory vindicator of the Government's policy enunciated in the anti-trust laws, object to the intervention."

The primary aim of the petitioners is the fashioning of a decree which will...