United States v. Gillette Co., Civ. A. No. 68-141.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation406 F. Supp. 713
Docket NumberCiv. A. No. 68-141.
PartiesUNITED STATES of America, Plaintiff, v. The GILLETTE COMPANY, Defendant.
Decision Date30 December 1975

Julie Murray, David Goldsweig, Antitrust Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff.

G. Marshall Moriarty, Edward Hanify, Ropes & Gray, Boston, Mass., for Gillette Co.

Peter B. Ellis, Foley, Hoag & Eliot, Boston, Mass., for Sperry Rand Co.

Alexander W. Sierck of Sierck, Wald, Harkrader & Ross, Washington, D. C., for Ronson Co.

OPINION

ALDRICH, Senior Circuit Judge.

The matter of a proposed consent decree in this government-initiated civil antitrust suit, heard preliminarily on October 10 in response to a motion filed October 7, 1975, is again before the court. As a result of the opinion of October 14 and later, more explicit, court suggestions, as well as further hearings and extensive memoranda and affidavits filed by opposers and conferences between counsel, including counsel for opposers, the parties have modified the stipulated decree in a number of particulars.1 The question now is whether approval of this decree in its present form would be in the public interest. 15 U.S.C. §§ 16(b)-(h).

The extent of the burden that this new statute, the Antitrust Procedures and Penalties Act, hereinafter sometimes the act, places upon the court was adverted to in the October 14 opinion, of which this is a continuation.1A Taken literally, the burden is impossible. The legislative history shows clearly that Congress did not intend the court's action to be merely pro forma, or to be limited to what appears on the surface. Nor can one overlook the circumstances under which the act was passed, indicating Congress' desire to impose a check not only on the government's expertise — or at the least, its exercise of it — but even on its good faith. See 120 Cong. Rec. S 20862 (daily ed. Dec. 9, 1974); BNA Antitrust & Trade Reg. Report No. 630, at A-15 (1973). At the same time, both by the statute's listing various alternatives short of a comprehensive examination, 15 U.S.C. § 16(f), and by the announced expectancy of both congressional committees, the court is adjured to adopt "the least complicated and least time-consuming means possible." See S.Rep. No. 93-298, 93d Cong., 1st Sess. 6 (1973): H.Rep. No. 93-1463, 93 Cong., 2d Sess. 8 (1974), 1974 U.S.Code Cong. & Admin.News 6539. In this situation the court cannot provide the best of all possible words. Just as the parties are compromising, so in its process of weighing the public interest, must the court.

This seems neither improper nor unwise. Fear has been expressed that the act's "elaborate procedure . . . will prove counterproductive and may, indeed, undermine by placing too great obstacles on the consent process effective enforcement of our antitrust laws." Handler, Antitrust — Myth & Reality in an Inflationary Era, 50 N.Y.U.L.Rev. 211, 243 (1975). Courts' involvement in preventing potential harm to competition can become excessive. Cf. Emhart Corp. v. USM Corp., 1 Cir. 1975, 527 F.2d 177. I agree that in terms of the important role of the consent decree in antitrust procedure, too much tillage can destroy the garden.

Nor do I think Congress had, in fact, any contrary intention. The Senate Judiciary Committee reported that a high percentage of government antitrust actions are settled prior to trial, and recognized that the consent decree process was a "legitimate and integral part of antitrust enforcement." S.Rep., ante, at 3, 5. "Obviously, the consent decree is of crucial importance as an enforcement tool, since it permits the allocation of resources elsewhere." S.Rep. at 5. "The Committee wishes to retain the consent judgment as a substantial antitrust enforcement tool." S.Rep. at 7. "The court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process." 119 Cong.Rec. 24598 (1973).

I believe that the examination which has been offered the court has more than met the requirements of the act, and that there is ample to permit a considered decision. The record is both open and extensive, including notations of my own observations. While in some cases I would feel called upon to make a number of subsidiary findings to support conclusions, in this instance it is largely unnecessary. I comment, accordingly, only briefly.

With regard to the government's good faith, I have not the slightest reason to suspect otherwise. Nor has there been any contrary suggestion as a result of the proceeding's statutory publicity. 15 U.S.C. § 16(c). One of the opposers still attacks the wisdom of the decree. Here I make one final generalization. It is not the court's duty to determine whether this is the best possible settlement that could have been obtained if, say, the government had bargained a little harder. The court is not settling the case. It is determining whether the settlement achieved is within the reaches of the public interest. Basically I must look at the overall picture not hypercritically, nor with a microscope, but with an artist's reducing glass.2

First, I note that, because of the modifications made in the decree, one of the original objectors, Sperry Rand, perhaps the more active of the two, has withdrawn its objections by letter dated December 23, 1975.3 I attach considerable weight to this withdrawal. The other objector, Ronson, by letter dated December 22, 1975, although conceding that "significant" improvements have been made, does not affirmatively withdraw previous objections, but it presently recites only two. These I shall deal with, post.

Speaking generally, the government's complaint asked for a...

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