Sutphen Estates v. United States/Dissent Black

Mr. Justice BLACK, dissenting.

Warner Brothers, Inc., has been guarantor on a lease of theater properties made by appellant Sutphen Estates. Under a court decree of dissolution Warner is to be split up into two companies, only one of which will expressly assume the Warner guarantee to Sutphen. Sutphen's lease can no longer be guaranted by the combined assets of the illegal corporation we have ordered dissolved. Perhaps it is inevitable that the guarantee will be impaired to some extent, but we should insure that Sutphen suffers no more than its fair share of whatever losses may result from the enforcement of the antitrust laws.

I am of the opinion that the issue of impairment can best be and should be determined by the District Court as a part of the dissolution proceedings. Furthermore, I cannot assent to an opinion that permits this question of impairment to remain open for adjudication elsewhere at some indefinite time in the future.

Dissolution of Warner, which we have ordered, cannot be completely consummated if the decree leaves in doubt whether both new companies are jointly obligated on Sutphen's lease. Cf. Continental Insurance Co. v. United States, 259 U.S. 156, 173-174, 42 S.Ct. 540, 545, 546, 66 L.Ed. 871. Surely, if we have the power to order a dissolution to prevent Sherman Act violations, we have power to insure that the newly created companies are permanently and totally disinterested in each other's future activities, and are in no way united by past obligations.