United States v. Gold, 81.

• Decision Date: 04 November 1940
• Docket Number: No. 81.,81.
• Parties: UNITED STATES v. GOLD et al.
• Court: U.S. Court of Appeals — Second Circuit

115 F.2d 236 (1940)

UNITED STATES v. GOLD et al.

No. 81.

Circuit Court of Appeals, Second Circuit.

November 4, 1940.

Louis B. Brodsky, of New York City, for appellants Gold, Schneider, and Winogradsky.

Paul O'Dwyer, of Brooklyn, N. Y., for appellants Potash, Weil, Burt, Weiss, Lauber, Paul, Mileaf, and Schwartz.

Kenneth E. Walser, Nathan Greene, and Andre Maximov, all of New York City, of counsel for appellants.

Thurman Arnold, Asst. Atty. Gen., Berkeley W. Henderson, Sp. Asst. to Atty. Gen., and Marvin J. Coles and Emanuel S. Cahn, both of New York City, for the United States.

Liebman, Robbins, Pressman & Leider, of New York City (Lee Pressman, Joseph Kovner, and Anthony Wayne Smith, all of Washington, D. C., of counsel), for Congress of Industrial Organizations, amicus curiae.

Benedict Wolf, of New York City, for National Lawyers Guild, amicus curiae.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

These appeals are from judgments of conviction of the accused for a conspiracy to restrain trade in violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note. The only question we shall consider is whether the evidence supports the verdict, the facts which the jury might have found to be proved being as follows. About ninety per cent of the manufacturers of fur garments in the United States do their business in the City of New York, buying the raw skins from dealers who have imported them from foreign countries and other states. The first process of manufacture is dressing and dyeing which the manufacturer ordinarily does not do himself; he contracts for this service with dressers and dyers who have their own factories and employ their own workmen and most of whom are in New Jersey. Thus skins must cross the state line twice before they return to the manufacturers to be cut and sewn. At the time of the conspiracy, the year 1932, the Needle Trades Workers' Industrial Union, a large nation-wide union, had established itself in the fur business in New York, though its hold there was as yet small. Most of the business had already been unionized by the International Fur Workers, another large union; the rest was not unionized at all. The Needle Workers started a campaign to bring the whole industry within their union, including not only employees of the manufacturers but of the dressers and dyers as well. Among the dressers and dyers were three large firms in Newark, New Jersey: A. Hollander and Son, Joseph Hollander, Inc., and Philip A. Singer & Brother. All of these operated non-union plants, and the officers of the Needle Workers — the accused at bar — directed their main attack against them, striving to compel them to employ only the union's own members. The means they used to accomplish this were in general to picket the factories and persuade employees to join the union, to warn the New York manufacturers not to send their skins to them to be dressed and dyed and to direct their own members in the New York manufacturers' plants to refuse to work up any skins dressed and dyed by the offending three firms. There was abundant evidence from which a jury could find that this three-fold attack was carried out with utter lawlessness and violence; and there can be no question that if the strikers did in fact restrain trade within the meaning of the Sherman Act, the restraints used were "unreasonable" to the last degree.

The case was tried before the decision of the Supreme Court in Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044, before which it had been quite commonly supposed that the Sherman Act covered, not only concerted action intended to control prices or supply, or resulting in such control, but generally all action which so far affected interstate commerce as to be within the constitutional power of Congress at all; that is, that Congress in the Sherman Act had meant to exercise its power as broadly as possible. This view the court repudiated in the Apex case. Its reasoning was that the act had been passed only to implement the common law as to restraints of trade; and that, although it imposed its own liabilities, civil and criminal, besides providing remedies for their breach, nevertheless it took the common law as its model, creating federal rights and duties fashioned after existing precedents. So much the court had often said before, and the new contribution was that, turning to those precedents, it now held that the only restraints forbidden were those which limited competition in "business and commercial transactions," and which "tended to restrict production, raise prices or otherwise control the market to the detriment of purchasers or consumers of goods and services," 310 U.S. at page 493, 60 S.Ct. at page 992, 84 L.Ed. 1311, 128 A.L.R. 1044. These were no chance words; they were the burden of the reasoning by which the court affirmed a reversal by the Circuit Court of Appeals. For example, the contracts must be "for the restriction or suppression of competition in the market, agreements to fix prices, divide marketing territories, apportion customers, restrict production and the like practices, which tend to raise prices or otherwise take from buyers or consumers the advantages which accrue to them from free competition in the...