Winkler-Koch Engineering Co. v. Universal Oil Prod. Co.

• Decision Date: 16 July 1951
• Parties: WINKLER-KOCH ENGINEERING CO. v. UNIVERSAL OIL PRODUCTS CO. (Delaware) et al.
• Court: U.S. District Court — Southern District of New York

100 F. Supp. 15

WINKLER-KOCH ENGINEERING CO. v. UNIVERSAL OIL PRODUCTS CO. (Delaware) et al.

United States District Court S. D. New York.

July 16, 1951.

COPYRIGHT MATERIAL OMITTED

Paul Kolisch, New York City, J. Bernhard Thiess, Thorley von Holst, Sidney Neuman, Robert W. Poore, and Ralph E. Church, Jr., all of Chicago, Ill., of counsel, for plaintiff.

Chadbourne, Parke, Whiteside, Wolff & Brophy, New York City, Leonard P. Moore, New York City, of counsel, for Atlantic Refining Co.

M. S. Gibson, New York City, for Gulf Oil Corp.

Townley, Updike & Carter, New York City, George Townley, New York City, A. Leslie Hodson, Chicago, Ill., of counsel, for Standard Oil Co. (Indiana).

Oscar John Dorwin, New York City, for Texas Co. E. M. Freeman, New York City, for Gasoline Products Co.

Cahill, Gordon, Zachry & Reindel, New York City, for M. W. Kellogg Co.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for Standard Oil Co. (New Jersey).

Cravath, Swaine & Moore, New York City, for Shell Union Oil Corp.

NEVIN, District Judge (sitting by designation).

On August 18, 1948, with the consent and upon the agreement of all the parties to this action, an order (later to be referred to) was approved by Chief Judge Knox, wherein it was provided inter alia that "the issues presented by the affirmative defenses of the statutes of limitations to the claim asserted in the particularized complaint be tried as separate issues in advance of the trial of the other issues of this action". Subsequently the "separate issues" thus to be tried were referred by Judge Knox to the present judge (of Dayton, Southern District of Ohio) who was then sitting by designation as a judge in New York, in the Southern District of New York.

Extensive and rather voluminous briefs having in the meantime been filed, on behalf of each of the parties respectively, the cause came on for hearing on December 12, 1949, by way of oral argument on the "separate issues" referred to in the order of Judge Knox.

The oral arguments occupied the whole of two days. During the arguments there was filed with the Court, on December 13, 1949, a document containing "Stipulations of facts and presentation of issues entered into between counsel for the plaintiff and counsel for the respective defendants". This document was marked "Court's Exhibit 1" for the purposes of the "separate trial."

On May 5, 1950, in open court with counsel present, the court in an oral opinion, rendered its decision. That decision is reported in 96 F.Supp. 1014. Inasmuch as it is now readily available to anyone interested, it is unnecessary to refer to it here in detail.

No order, based on that decision, has ever been entered. This for the reason that defendants filed a "Motion for reargument and rehearing" stating therein that "oral argument of this application for rehearing and reargument is respectfully requested". Plaintiff expressed the "view that no oral reargument of the issues of the separate trial is appropriate unless this Court sees fit to entertain a petition for rehearing and order such a reargument".

The court concluded that defendants' "Motion for reargument and rehearing" and the oral argument requested therein should be granted.

Accordingly, counsel for all the respective parties agreeing thereto, the oral argument was set for June 14, 1950, at Dayton, Ohio. At the appointed time all interested counsel appeared in court. The oral arguments again occupied the whole of two days — June 14 and 15, 1950.

A transcript of these arguments was later delivered to the court. That transcript the court has before it, along with the briefs previously filed, as well as letters from counsel sent to the court after June 15, 1950, in which reference is made to certain decisions, then available, which counsel submit support their contentions.

Shortly before the transcript was delivered to the court, the court received a letter dated October 26, 1950 (copies to counsel for plaintiff and other defendants) from Mr. A. L. Hodson, of counsel for defendant, Standard Oil Co. (Indiana). In his letter, Mr. Hodson says: "You mention to Chief Judge Knox (in a letter to him) that the transcript of the reargument will shortly be completed and that you will start your reexamination of the case as soon thereafter as circumstances permit. In view of the voluminous nature of the material in the case, we have prepared and present to you suggested findings and conclusions on behalf of the defendants Atlantic, Gulf, Standard (Indiana) and Texas. Submission of proposed findings and conclusions as an aid to the court is, of course, customary procedure in connection with motions for summary judgment and separate trials. We believe this procedure may be particularly helpful in this case in view of the length of the complaint, the bill of particulars, the stipulations, the briefs and the transcripts of argument and reargument. With this in mind we hope that attorneys for plaintiff will also submit suggested findings and conclusions on the issues covered by us".

With his letter Mr. Hodson sent to the Court the proposed Findings and Conclusions referred to therein. They were signed and submitted by counsel for the following named defendants: The Atlantic Refining Co.; Gulf Oil Corporation; Standard Oil Co. (Indiana) and The Texas Company.

Under date of October 30, 1950, the court received a letter from Mr. Neuman (of counsel for plaintiff) in which he states that "We have no desire to inflict an additional burden upon your Honor at this time, but the course of action adopted by Mr. Hodson and his co-counsel leaves us no alternative but to reply to their argument and to propose findings and conclusions in proper form".

On November 2, 1950, the court wrote a letter addressed jointly to Messrs. Hodson and Neuman. In that letter, the court stated that "While the first intimation that the court had with regard to the submission of any proposed Findings and Conclusions was that contained in Mr. Hodson's letter of October 26, and while he did not ask that any Findings or Conclusions be submitted, nevertheless, since that has now been done by Mr. Hodson (and the other counsel whose names appear at the end of the Findings and Conclusions on behalf of their respective defendants) permission is now extended, of course, to Mr. Neuman and his associate counsel to prepare and submit (at their convenience) any proposed Findings and Conclusions which they may desire to present. This also is true with respect to any of the other defendants, if any of them now wish to propose any Findings and Conclusions other than, or different from, those submitted by Mr. Hodson and associated counsel for the other defendants whom they represent".

Thereafter the court received proposed Findings and Conclusions from the following named defendants: Standard Oil Co. (New Jersey) and Shell Union Oil Corporation (January 27, 1951); The M. W. Kellogg Company (January 31, 1951); Gasoline Products Company (February 6, 1951) and on January 31, 1951, from plaintiff.

The court has here referred somewhat in detail with regard to its decision now taking the form of Findings of Fact and Conclusions of Law. As earlier indicated, this suggested procedure was initiated in the letter of Mr. A. L. Hodson, to the court dated October 26, 1950. Since it now appears to have the approval of all counsel, that is the course the court will pursue.

It is suggested by some of defendants in their proposed Findings and Conclusions that "If a private right of action under Section 4 does not accrue as long as the conspiracy continues or as long as a person injured in his business sees fit to continue in business, then the conspirators could escape suit by keeping the conspiracy in operation and the injured person could avoid statutes of limitation by continuing in business however nominal and however long after the injury".

The court is not here called upon, nor does it, decide the correctness or incorrectness of this theory. The court is deciding the instant case solely upon the facts conceded, for the purposes of this separate trial, to be true. The agreed order of Judge Knox provides "that for the purposes of such separate trial the allegations of the Complaint and of the Bill of Particulars shall be taken as true".

In the instant case it is alleged in the Complaint that one of the results of all the acts, arrangements and contracts of defendants, was the destruction of plaintiff's business. In the present case it is "a condition and not a theory" which is presented to the court.

It is this conceded (for the purposes of the separate trial) "condition" which the court here takes into consideration.

Upon a consideration of the whole of the record, the conceded facts and the briefs and arguments of counsel, the court has arrived at the following:

Findings of Fact

I.

General Findings.

1. On March 16, 1945, plaintiff filed its complaint in this Court seeking a recovery of threefold damages under Section 4 of the Act of Congress of October 15, 1914, commonly known as the Clayton Act, 38 Stat. 731, 15 U.S.C.A. § 15. The complaint alleged that defendants had combined and conspired to violate the Antitrust laws of the United States, and specifically it was alleged that the conspiracy was intended to and did eliminate plaintiff from competition in the business of designing and installing cracking equipment and processes in the United States.

2. A preliminary contest over venue resulted in the dismissal from the action of Universal Oil Products Company (South Dakota) and Standard Oil Company of California, D.C., 70 F.Supp. 77. A third defendant, Universal Oil Products Company (Delaware), was dismissed from the action without prejudice on April 29, 1949, following the purchase by it from plaintiff of a covenant not to sue. The remaining defendants are: Shell Union Oil Corporation; The Atlantic Refining Company; Gasoline Products Company, Inc.; Standard Oil...