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HARLAN, J., dissenting.
wholesalers or retailers. The Government's complaint specifically charged a “combination and conspiracy” between Parke Davis and its wholesale and retail customers in the areas involved, comprising a "continuing agreement, understanding and concert of action” in the four aspects already noted. Ante, p. 50. In its 31 detailed findings of fact the District Court repeatedly emphasized that Parke Davis did not have an “agreement or understanding of any kind” with its distributors, and it concluded that the evidence as a whole did not support the Government's allegations. It determined with respect to each of the four facets of the alleged conspiracy that "there was no coercion” and that "Parke, Davis did not combine, conspire or enter into an agreement, understanding or concert of action" with the wholesalers, retailers, or anyone else. I cannot detect in the record any indication that the District Court in making these findings applied anything other than the standard which has always been understood to govern prosecutions based on $$ 1 and 3 of the Sherman Act.
Third. Bearing down heavily on the statement in Beech-Nut that the conduct there involved showed more than “the simple refusal to sell," 257 U. S., at 454 (see also Bausch & Lomb, supra, at 722), the Court finds that Parke Davis' conduct exceeded the permissible limits of Colgate in two respects. The first is that Parke Davis announced that it would, and did, cut off wholesalers who continued to sell to price-cutting retailers. The second is that the Company in at least one instance reported its talks with one or more retailers to other retailers; that in "this manner Parke Davis sought assurances of compliance and got them”; and that it "was only by actively bringing about substantial unanimity among the competitors that Parke Davis was able to gain adherence to its policy.”
HARLAN, J., dissenting.
There are two difficulties with the Court's analysis on these scores. The first is the findings of the District Court. As to refusals to sell to wholesalers, the lower court found that such conduct did not involve any concert of action, but was wholly unilateral on Parke Davis' part. And I cannot see how such unilateral action, permissible in itself, becomes any less unilateral because it is taken simultaneously with similar unilateral action at the retail level. As to the other respect in which the Court holds Parke Davis' conduct was illegal, the District Court found that the Company did not make “the enforcement of its policies as to any one wholesaler or retailer dependent upon the action of any other wholesaler or retailer.” And it further stated that the "evidence is clear that both wholesalers and retailers valued defendant's business so highly that they acceded to its policy,” and that such acquiescence was not brought about by "coercion" or "agreement." Even if this were not true, so that concerted action among the retailers at the "horizontal" level might be inferred, as the Court indicates, under the principles of Interstate Circuit, Inc., v. United States, 306 U. S. 208, I do not see how that itself would justify an inference that concerted action at the "vertical" level existed between Parke Davis and the retailers or wholesalers.
The second difficulty with the Court's analysis is that even reviewing the District Court's findings only as a matter of law, as the Court purports to do, the cases do not justify overturning the lower court's resulting conclusions. Beech-Nut did not say that refusals to sell to wholesalers who persisted in selling to cut-price retailers— conduct which was present in that case (257 U. S., at 448)—was a per se infraction of the Colgate rule, but only that it was offensive if it was the result of cooperative group action. While the Court in Beech-Nut and
HARLAN, J., dissenting.
Bausch & Lomb inferred from the aggressive, widespread, highly organized, and successful merchandising programs involved there that such concerted action existed in those cases, the defensive, limited, unorganized, and unsuccessful effort of Parke Davis to maintain its resale price policy“ does not justify our disregarding the District Court's finding to the contrary in this case.”
In light of the whole history of the Colgate doctrine, it is surely this Court, and not the District Court, that has proceeded on erroneous premises in deciding this case. Unless there is to be attributed to the Court a purpose to overturn the findings of fact of the District Court—something which its opinion not only expressly disclaims doing, but which would also be in plain defiance of the Federal Rules of Civil Procedure, Rule 52 (a),
4 The District Court found, among other things, that the efforts of Parke Davis in the District of Columbia and Virginia came about only after some of its competitors had engaged in damaging local "deep price cutting" on Parke Davis products (Fdg. 12); that Parke Davis' sales in those areas constituted less than 5% of the total pharmaceutical sales therein (Fdg. 3); that these efforts followed the legal advice previously given by the Company's counsel (Fdg. 12); that Parke Davis did not have "any regularized or systematic machinery for maintaining its suggested minimum prices as to either retailers or wholesalers” (Fdg. 10); that the entire episode lasted only from July to the fall of 1956, when the Company "in good faith" abandoned all further such efforts (Fdgs. 12, 27); and that since that time retailers in these areas "have continuously sold and advertised Parke, Davis products at cut prices, and have been able to obtain those products from both the wholesalers and/or Parke, Davis itself.” (Fdg. 27.)
5 It may be observed that the facts found by the District Court militate more strongly against violation of the Sherman Act than those which formed the basis of the charge held erroneous by this Court in Cudahy, 256 U. S., at 210-211. Although the Court now repudiates what was said in Cudahy in this respect, I submit that there is nothing in Beech-Nut, Bausch & Lomb, or any other case in this Court which justifies this.
HARLAN, J., dissenting.
and principles announced in past cases (see, e. g., United States v. Yellow Cab Co., 338 U. S. 338, 341-342; International Boxing Club of New York, Inc., v. United States, 358 U. S. 242, 252)—I think that what the Court has really done here is to throw the Colgate doctrine into discard.
To be sure, the Government has explicitly stated that it does not ask us to overrule Colgate, and the Court professes not to do so. But contrary to the long understanding of bench and bar, the Court treats Colgate as turning not on the absence of the concerted action explicitly required by $$ 1 and 3 of the Sherman Act, but upon the Court's notion of "countervailing” social policies. I can regard the Court's profession as no more than a bow to the fact that Colgate, decided more than 40 years ago, has become part of the economic regime of the country upon which the commercial community and the lawyers who advise it have justifiably relied.
If the principle for which Colgate stands is to be reversed, it is, as the Government's position plainly indicates, something that should be left to the Congress. It is surely the emptiest of formalisms to profess respect for Colgate and eviscerate it in application.
I would affirm.
UNITED STATES V. THOMAS, REGISTRAR OF VOTERS OF WASHINGTON PARISH,
LOUISIANA, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 667. Argued February 23–24, 1960.—Decided February 29, 1960.
Under authority of R. S. & 2004, as amended by the Civil Rights
Act of 1957, the Attorney General brought a civil action on behalf of the United States in a United States District Court to enjoin certain individuals from challenging, on a racially discriminatory basis, the right of certain Negro citizens to remain on the registration rolls of a Louisiana parish as qualified voters and to enjoin respondent, the official Registrar of Voters, from giving effect to such racially discriminatory challenges and removing their names from the rolls. The District Court denied defendants' motion to dismiss the complaint; found that the challenges were "massively discriminatory in purpose and effect" and in violation of the Fifteenth Amendment and of 42 U. S. C. $ 1971 (a); enjoined the individual defendants from making further racially discriminatory challenges; enjoined respondent from giving legal effect to any of said challenges; and ordered respondent to restore to the registration rolls those so illegally removed. Upon appeal by respondent, the Court of Appeals granted a stay of the injunction pending appeal. The Solicitor General then applied to this Court to vacate the stay and for a writ of certiorari to review the judgment of the District Court. Held: Certiorari is granted, and, upon the opinion, findings of fact and conclusions of law of the District Court and the decision of this Court today in United States v. Raines, ante, p. 17, the stay is vacated and the judgment
of the District Court as to respondent is affirmed. P. 59. Stay vacated and District Court's judgment affirmed as to respondent. Reported below: 180 F. Supp. 10.
Solicitor General Rankin argued the cause and filed a brief for the United States.
Weldon A. Cousins and Henry J. Roberts, Jr., Assistant Attorneys General of Louisiana, argued the cause for