Mr. HANSEN. And some wish in a litigated case to be amicus curiae because the judgment certainly binds them.

Mr. HARKINS. Also, in the great majority of cases is it not a fact that interested parties do not know when the decree is to be presented to the court for its adoption?

Mr. HANSEN. I think that is true.

Mr. HARKINS. Would you say that the court generally signs whatever agreement is reached by the Antitrust Division and the defendant?

Mr. HANSEN. As a general rule I'd say "Yes."

Mr. HARKINS. Thus in a typical case is it not true that the judge signs a decree having lasting effects on the industry provided he is assured only that it is agreed to by the parties.

Mr. HANSEN. I think that is generally true.

Mr. HARKINS. Do you feel that such cursory judicial scrutiny is sound in the public interest?

Mr. HANSEN. It certainly is if you have got a proper representation for the Government and for the defendants.

Mr. HARKINS. However, do you have any proceedures to assure that the Government is advised of the views of all the people who are going to be affected by this decree?

Mr. HANSEN. Certainly not of all the people that are going to be affected. I don't know how we could possibly know who all would be affected by it.

Mr. HARKINS. Do you have procedures that will assure that any person who is going to be affected

Mr. HANSEN. We certainly have.

Mr. HARKINS. And those are the notices that you give informally? Mr. HANSEN. Inquiries that are made, interviews that are had with interested parties, with those that might be affected by it.

Mr. HARKINS. How can a private party who may be affected by this proposed judgment know that you are negotiating a decree?

Mr. BICKS. He doesn't have to know we are negotiating a decree. It should be clear that by the time you get to the point where a case has been filed in the average civil case the Bureau has been all over different phases of the industry. It has contacted numerous segments of the industry. Those that are interested in being heard certainly make their views felt in most cases. Even where they do not know we are negotiating, because they have once contacted us or when the Bureau contacted them indicated their sympathy to our proceeding, we are free to get in touch with them when we get to the point in our negotiation where their views are useful.

Mr. HANSEN. In some instances, I remember a specific one now where every company interested in this particular industry communicated with us within a matter of a week after we first learned of the possible violation.

Mr. HARKINS. One final question, Judge Hansen, on this subject. Can private parties now intervene in the Government's case for the purpose, the limited purpose, of examining provisions of a consent decree before it is approved?

Mr. HANSEN. You mean can they intervene? Are you using that legally? It depends on the court whether the court will let them intervene.

Mr. HARKINS. Would the Department of Justice resist such a limited intervention?

Mr. HANSEN. Let's get our facts. Are you asking me when we present a consent decree to the court and some interested party knows of that fact and they appear before the court and ask to be heard do we object to it?

Mr. HARKINS. Yes.

Mr. HANSEN. I'd say "No."

Mr. HARKINS. Have you ever opposed a limited intervention? Have you ever opposed intervention in a case brought by the Government for the purpose of examining the terms of a consent decree? Mr. HANSEN. Î'll have to check that. I've only been here a little

over a year.

Mr. KILGORE. Do you mean formal intervention under rule 24?
Mr. HARKINS. Yes.

Mr. KEATING. They formally intervene they have the right to appeal, and all the other rights to tie up the judgment and all that, don't they?

Mr. KILGORE. As far as I know, the Department has opposed such formal intervention.

Mr. HARKINS. What is the purpose of the Department opposing such formal intervention?

Mr. BICKS. I'm not even sure we have ever received such a request. Mr. KILGORE. As far as the consent judgment is concerned, I do know it has happened on proposed modification.

Mr. BICKS. You are talking about original entry? I can't recall an instance where an enterprise not a party to the judgment has gone to the court and sought the right to intervene and become a party for the purpose of being heard on consent-decree approval.

Mr. HANSEN. Mr. Chairman, I'd like to have an opportunity to check this so we are accurate. I don't know of any instance.

Mr. BICKS. I have never heard of one.

Mr. HARKINS. Judge Hansen, your predecessor, Judge Barnes, testified in March 1956 in part as follows:

Indeed, in one recent judgment the court declined entry until the Division could offer assurances we had obtained that the views of the complainants as to the effectiveness of proposed judgment provisions.

Carrying this process one step further, in the various Paramount judgments specifying divestiture details, the Division publicly announced judgment provisions well in advance of submission to the court and that, of course, was the purpose of permitting those affected by the decrees to come before the court prior to its final signing. As a result, interested parties had ample notice to appear before the court and comment on proposed judgment provisions. At least in one instance an objector appeared but the court nonetheless enter the judgment as submitted.

Now, I believe that this is the Paramount case. In short, in the Paramount case the Antitrust Division publicly announced provisions of a proposed decree well in advance of submission to the court; that is true, isn't it?

Mr. HANSEN. That is my understanding and that frankly is one of the reasons I thought it having been done once that I ought to do it again. In that particular case it had such far-reaching effects on an industry so large and important.

Mr. KEATING. Was the Paramount decree a consent or litigated decree?

Mr. HANSEN. There are five cases involved there.

Mr. BICKS. Two were litigated and three were consent.

The CHAIRMAN. In the Paramount case efforts are being made to modify it and the entire industry is being asked to express its views. Mr. HANSEN. That's correct, and they have done so very vocally. Mr. HARKINS Apart from the Paramount situation has there been any other instance when the Division has given notice beforehand of court entry of proposed consent decree?

Mr. HANSEN. I can't answer that now.

Mr. KILGORE. I don't know of any.

Mr. HARKINS. We will suspend questioning on this general policy and go to the pipeline situation, Judge Hansen.

Mr. HANSEN. Thank you.

Mr. HARKINS. We will return later providing time permits these other questions.

Mr. KEATING. May I ask one general question before you do that, based on something here I had a note on. On page 28 of your statement you say:

The Division may learn about noncompliance from industry surveys we make, from complaints by persons who are adversely affected by acts of defendant or from incidental notices in trade journals.

A careful reading of the statement answers my question.

The CHAIRMAN. On the so-called packers' decree, Judge, motion has been made to modify that decree, hasn't it?

Mr. HANSEN. Yes.

The CHAIRMAN. By all the defendants in that case?

Mr. KILGORE. Just three of them, sir, Swift, Armour, and Cudahy. The CHAIRMAN. And what is the nature of the modification to permit them primarily to enter the retail business?

Mr. KILGORE. They desired to use their distribution facilities to engage in what is generally called the grocery business, and also to sell their meats at retail which it presently prohibits. Cudahy further asked that it be permitted to maintain and conduct public cold storage facilities.

The CHAIRMAN. That is to open up so-called supermarkets, is that the purpose?

Mr. KILGORE. Their proposal would go so far as to let them open up complete grocery stores.

The CHAIRMAN. How far has that case gone on the matter of modification?

Mr. HANSEN. Motion has been made and it is pending.

The CHAIRMAN. I beg your pardon?

Mr. HANSEN. The motion has been made and it is pending.

The CHAIRMAN. Extended?

Mr. HANSEN. It is pending.

The CHAIRMAN. Where is that, in Chicago?

Mr. KILGORE. Here in the District, sir.

The CHAIRMAN. The District of Columbia. I am just informed

motion has been made to transfer the venue to Chicago.

Mr. KILGORE. Swift and Armour moved to have the case or the judg

ment transferred to Chicago.

The CHAIRMAN. Is that pending?

Mr. KILGORE. Yes.

Mr. KEATING. Change of venue is undecided.

Mr. KILGORE. That's right. It has not been heard. Pending also is the Government's motion for summary judgment vacating or dismissing the defendant's motion for modification.

(The following information was supplied the committee by the Department of Justice:)

CASES IN WHICH THE CONTEMPT POWER HAS BEEN USED TO ENFORCE INJUNCTIONS UNDER THE SHERMAN ACT

1. United States v. Southern Wholesale Grocers' Association, et al. (1913) (criminal contempt)

Charge: Contempt by continuing to publish lists, etc. containing the names of wholesale grocers who had announced their intention or agreed to work in harmony with the association in violation of the consent decree entered in 1912 re an unlawful conspiracy of wholesale grocers to fix resale prices of groceries and to boycott manufacturers and producers who sold to nonmembers of the association and to wholesalers and jobbers who did not maintain the fixed prices. Defendants were found guilty and fines aggregating $5,000 were imposed.

2. United States v. National Cash Register Co., et al. (1928) (criminal contempt) Charge: Contempt proceedings charging 90 sales agents, employees of defendants and 2 others with violation of a 1916 consent decree re an unlawful conspiracy to restrain trade in cash registers and other registering devices by acquiring patents and plants, by intimidating competitors and their purchasers and other unfair practices. One of the defendants was found guilty and fined $2,000. The information was dismissed as to the other defendants.

3. United States v. Joseph Weiner, et al. (1934) (criminal contempt)

Charge: In contempt of a 1932 consent decree (U. S. v. Greater New York Live Poultry Chamber of Commerce) re unlawful conspiracy to control the live poultry market in the Greater New York area by allocating retailers, fixing prices, spying, boycotting, violence and intimidation. Five defendants were found guilty of boycotting, and intimidating representatives and employees of the association and sentences of from 3 months to 3 years were imposed. other defendants were found not guilty.

Two

4. United States v. Guy H. Hulse, et al. (1936) (criminal contempt) Charge: In contempt of a 1933 consent decree (U. S. v. National Retail Credit Assn.) re an unlawful conspiracy to restrain and monopolize interstate commerce in retail credit reporting by allotting exclusive territory to be served by member agencies, by eliminating competition and by boycotting. Of the 15 defendants, 10 pleaded guilty of violating the consent decree by continuing the prohibited practices and were fined a total of $4,000. The information was dismissed as to the remaining 5 defendants.

5. United States v. Barney Balaban, et al. (1940) (criminal contempt)

Charge: In contempt of a consent decree entered in United States v. Balaban & Katz (1932 as modified in 1940). Principal distributors of first-class motion pictures in the Chicago area re a combination and conspiracy to limit the exhibition of films by independent exhibitors through means of clearance agreements and long-term exclusive contracts. The 1940 amendment provided for the arbitration of certain contracts between exhibitors and defendants. One individual and 10 corporations were charged with continuing the illegal practice of entering into long-term exclusive agreements prohibited by the decree. Three of the corporations pleaded nolo contendere and fines totalling $10,000 were imposed. The information as to the remaining defendants was dismissed on the Government's motion.

6. United States v. Fox West Coast Theatres Corp., et al (1940) (criminal contempt)

Charge: In contempt of a 1930 consent decree (United States v. West Coast Theatres, Inc.) re an unlawful conspiracy to monopolize and restrain interstate trade and commerce in motion pictures by limiting the exhibition of motion picture films by independent exhibitors through a series of so-called "zoning"

98505-57-pt. 1, vol. 1——————5

and "clearance" schedules. Thirteen corporations and 54 individuals were charged with violation of the decree by continuing the so-called "zoning" and "clearance" schedules. By consent of the parties, the 1930 decree was modified so as to provide that as long as the provisions of Sections VIII and X of the consent decree entered in 1940 in United States v. Paramount Pictures, Inc., et al. (referred to as the "New York Decree") remained in effect, the provisions of Paragraphs 3, 4, and 6 of the 1930 decree were suspended. Sections VIII and X of the New York Decree provided, among other things, for the arbitration of certain controversies between exhibitors and the defendants arising in the United States which were the subject matter of the contempt proceedings. On motion of the Government, an order was entered dismissing the Government's petition.

7 and 8. United States v. National Cash Register Co., et al. (1947) (Criminal and civil contempt)

Charge: In contempt of a 1916 consent decree re unlawful conspiracy to restrain trade in cash registers and other registering devices. Four defendants were charged with violating the decree by acquiring the business and patents of a competitor engaged in the manufacture and sale in interstate commerce of cash registers and other registering devices. On the criminal side, the four defendants entered pleas of nolo contendere. The court imposed fines of $25,000. On the civil side, a consent judgment was entered enjoining the defendants from entering into any agreement with companies named in the complaint, in connection with the manufacture or distribution of any registering device, excluding or restricting any person in the manufacture, use, or sale of certain patents and from instituting or maintaining any proceedings to collect or realize royalties or compensation on certain patents.

9 and 10. United States v. Gamewell Co., et al. (1951) (civil and criminal contempt)

Charge: In contempt of a consent decree entered in 1948 re unlawful conspiracy in restraint of interstate commerce and attempt to monopolize municipal fire-alarm equipment. Defendant Gamewell and two individual defendants were charged with the violation of provisions of the decree by restricting the furnishing of engineering services to prospective purchasers and by offering to furnish engineering services without cost to prospective municipal purchasers. The court found the defendants guilty. On the criminal side, the court fined the corporation $50,000, imposed sentence of one year and a day upon the two individual defendants, suspended execution thereof and placed the individuals on probation for two years. On the civil side, the corporate defendant was required to file evidence of purge in 40 days or pay $5,000 per day. The two individual defendants received the same order, except that the amount was $1,000 per day.