United States v. United States Alkali Export Ass'n

• Decision Date: 05 March 1945
• Parties: UNITED STATES v. UNITED STATES ALKALI EXPORT ASS'N, Inc., et al.
• Court: U.S. District Court — Southern District of New York

58 F. Supp. 785

UNITED STATES v. UNITED STATES ALKALI EXPORT ASS'N, Inc., et al.

District Court, S. D. New York.

December 26, 1944.

Writ of Certiorari Granted March 5, 1945.

Herbert A. Berman and Manuel M. Gorman, Sp. Assts. to Atty. Gen., and Aute L. Carr and Bert C. Dedman, Sp. Attys., both of Washington, D. C. (Wendell Berge, Asst. Atty. Gen., of counsel), for plaintiff.

Cravath, Swaine & Moore, of New York City, for defendant United States Alkali Export Ass'n, Inc.

Leland Hazard, of Kansas City, Mo., for defendants Pittsburgh Plate Glass Co. Inc., and Southern Alkali Corporation.

Reed, Smith, Shaw & McClay, of Pittsburgh, Pa., for defendant Diamond Alkali Company, Inc.

Calvin A. Campbell, of Midland, Mich., for defendant Dow Chemical Co., Inc.

Robert T. McCracken, of Philadelphia, Pa., for defendant Pennsylvania Salt Manufacturing Co.

Lewis & Watkins, of Detroit, Mich., for defendant Wyandotte Chemicals Corporation.

Dwight, Harris, Koegel & Caskey, of New York City, for defendant Church & Dwight Co., Inc.

Sage, Gray, Todd & Sims, of New York City, for defendant Hooker Electrochemical Co. Inc.

Chadbourne, Wallace, Parke & Whiteside, of New York City, for defendant Mathieson Alkali Works, Inc.

Root, Clark, Buckner & Ballantine, of New York City, for defendant Niagara Alkali Co.

Wise, Corlett & Canfield, of New York City, for defendant Westvaco Chlorine Products Corporation, Inc.

Wm. Dwight Whitney, of New York City (Wm. Dwight Whitney, of New York City, and John Logan O'Donnell, of Washington, D. C., of counsel), for defendants Pittsburgh Plate Glass Co., Inc., Southern Alkali Corporation, Diamond Alkali Co., Inc., Dow Chemical Company, Inc., Pennsylvania Salt Manufacturing Co., and Wyandotte Chemicals Corporation.

Writ of Certiorari Granted March 5, 1945. See 65 S.Ct. 715.

COXE, District Judge.

This is a motion by a number of the defendants to dismiss the complaint for lack of jurisdiction over the subject matter of the action.

The action is for injunctive relief for alleged violation of Section 1 of the Sherman Anti-Trust Act, 15 U.S.C.A. § 1, in the sale of alkalis in interstate and foreign trade and commerce.

The defendants are: (1) Two incorporated export trade associations, (2) thirteen domestic corporations, all producers of alkalis in this country and members of one or the other of the defendant associations, and (3) a British corporation, which is the dominant producer of alkalis in Great Britain, together with its New York subsidiary. The two defendant associations have filed with the Federal Trade Commission the papers required by the Webb-Pomerene Act, Act of April 10, 1918, c. 50, 40 Stat. 516, 15 U.S.C.A. § 61 et seq.

The sole ground of the motion is that under sections 2 and 5 of the Webb-Pomerene Act "exclusive jurisdiction is vested in the first instance in the Federal Trade Commission of the matters complained of in the complaint * * *."

The complaint charges that the defendants and four other corporations, not named as defendants but named as co-conspirators, have engaged in a combination and conspiracy to restrain interstate and foreign commerce in alkalis in violation of Section 1 of the Sherman Act. Two of the named co-conspirators are a Belgian corporation, alleged to be "the principal manufacturer of alkalis on the continent of Europe," and a German corporation, alleged to be "the most important manufacturer of alkalis in Germany." The terms of various contracts, agreements and understandings are described in considerable detail, and it is alleged that under these contracts, agreements and understandings foreign markets in alkalis were divided and allocated, export quotas were established, foreign prices were regulated and controlled, and competition in United States markets from foreign producers was eliminated. It is also alleged that concerted action was taken to stifle competition in United States export trade from independent domestic manufacturers. The effects of the alleged conspiracy are stated to have been to restrain trade within the United States, to restrain the export trade of domestic competitors of the defendants, artificially and intentionally to enhance and stabilize the prices of alkalis within the United States, and substantially to lessen competition within the United States.

The Webb-Pomerene Act was enacted in 1918 to legalize associations formed for the sole purpose of engaging in export trade. Section 2 exempts from the operation of the Sherman Act "an association entered into for the sole purpose of engaging in export trade and actually engaged solely in such export trade." It also exempts "an agreement made or act done in the course of export trade by...