United States v. Armour & Company (402 U.S. 673)/Dissent Douglas

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE WHITE concur, dissenting.

The antitrust decree before us last Term in United States v. Armour & Co., 398 U.S. 268, is here again in a new posture. Under the original decree of 1920 the defendants were required to abandon their interests in a wide variety of food and nonfood lines. They were required to divest themselves of any interest in the businesses of "manufacturing, jobbing, selling, transporting... distributing, or otherwise dealing in" some 114 specified food products and some 30 other products. [p684] They were enjoined from "owning, either directly or indirectly... any capital stock or other interests whatsoever in any corporation... which is in the business, in the United States, of manufacturing, jobbing, selling, transporting... distributing, or otherwise dealing in any" of the prohibited products. Under the decree the District Court retained jurisdiction "for the purpose of taking such other action or adding to the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree."

Armour, one of the parties to the decree, is now the second largest meatpacker in the United States with total assets of almost $700 million and total sales in 1967 of approximately $2,150,000,000. In addition to meatpacking, Armour manufactures, processes, and sells various nonprohibited products. In early 1969 the Government filed a petition in Federal District Court to make General Host Corp., a company engaged in the manufacture and sale of numerous food products, a party to the decree and forbid it from acquiring control of Armour. The District Court held that the decree prohibited Armour from holding any interest in a company handling any of the prohibited products but did not prohibit such a company from acquiring Armour. The Government appealed the decision arguing that acquisition by General Host of a majority of Armour's stock would be in violation of the decree and General Host should have been made a party to the decree so that an injunction could issue. We noted probable jurisdiction. 396 U.S. 811.

In the interim, General Host entered into an agreement to sell its controlling stock interest in Armour to Greyhound, a regulated motor carrier. The Interstate Commerce Commission approved the acquisition. Following [p685] Greyhound's acquisition, the Court dismissed the case as moot. 398 U.S. 268.

The Government then filed a new petition in the District Court alleging (as it had against General Host) that Greyhound is engaged in business forbidden to Armour, or any firm in which Armour has a direct or indirect interest, and therefore Greyhound's acquisition violates the decree. The petition prayed that Greyhound be brought before the Court under § 5 of the Sherman Act and that an order supplemental to the original decree be entered enjoining Greyhound from acquiring any additional stock or exercising control over or influencing the business affairs of Armour, and requiring Greyhound to divest itself of the Armour stock. The District Court dismissed the Government's complaint, ruling that since Greyhound was not a party to the original decree, Greyhound may not be enjoined from "committing any acts on the ground that they are prohibited by the decree." The court also rejected the Government's argument that acquisition of the Armour stock placed the two companies in a "corporate relationship" which was prohibited by the decree. The court stated "the decree does not speak in terms of corporate relationships; it speaks in terms of the defendants dealing in the specified lines of commerce...." The Government appealed.

The Sherman Act (15 U.S.C. § 5) provides: "'Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.'"

[p686] Under § 5 and the All Writs Act (28 U.S.C. § 1651 (a)), the District Court has ample power to prevent frustration of the original decree.

Greyhound may well have devised a plan which would render the original decree nugatory.

Under the decree, none of the meatpackers could own a chain of grocery stores. Yet under the interpretation of the District Court a chain of grocery stores could acquire a meatpacking company. I do not view the decree so narrowly. The evil at which the decree is aimed is combining meatpackers with companies with other food product areas.

The authorities support the proposition that judges who construe, interpret, and enforce consent decrees look at the evil which the decree was designed to rectify. See Note, Flexibility and Finality in Antitrust Consent Decrees, 80 Harv. L. Rev. 1303, 1315. My interpretation of the evil at which this degree was aimed is the same as that of Mr. Justice Cardozo, writing for this Court in United States v. Swift & Co., 286 U.S. 106. As we stated in Chrysler Corp. v. United States, 316 U.S. 556, 562, the test for reviewing modifications is "whether the change served to effectuate or to thwart the basic purpose of the original consent decree."

Neither Hughes v. United States, 342 U.S. 353, nor United States v. Atlantic Refining Co., 360 U.S. 19, relied on by the Court, is to the contrary. Hughes involved a Government attempt to require the trustee to sell stock in a voting trust where the consent decree expressly allowed Hughes a choice of selling the stock himself or placing the stock in a voting trust "until Howard R. Hughes shall have sold his holdings of stock." Atlantic [p687] Refining was a case where for 16 years, right until the eve of the litigation, both parties had construed the decree in one way. Then the Government changed its interpretation not because it would effectuate the purposes of the decree but because it "would more nearly effectuate 'the basic purpose of the Elkins and Interstate Commerce Acts.'" 360 U.S., at 23.

The evil at which the present decree is aimed—combining meatpackers with companies in other food product areas—is present whether Armour purchases a company dealing in the various prohibited food lines or whether that company purchases Armour. When any company purchases Armour it acquires not only Armour's assets and liabilities, but also Armour's legal disabilities. And one of Armour's legal disabilities is that Armour cannot be combined with a company in the various food lines set out in the decree.

I read the decree to prohibit any combination of the meatpacking company defendants with companies dealing in various food lines.

In the District Court the Government offered an affidavit which showed that Greyhound deals in food products through its divisions and wholly owned subsidiaries, which provide industrial catering services, and operates restaurants, cafeterias, and other eating facilities. The affidavit states that in 1969 Greyhound had revenues of about $124 million from food operations which accounted for over 16% of Greyhound's revenues that year. Greyhound has contended that it operates no grocery business and only buys raw foodstuffs and sells prepared meals. Thus, Greyhound argues, it can acquire Armour even if it is made a party to the decree because the decree does not prohibit meatpackers from entering the restaurant business. I do not pass on this contention. Rather, [p688] I would reverse the judgment of the District Court and remand the case to that court for any further proceedings which are necessary to determine if Greyhound's acquisition of Armour violates the decree. If it does, then the District Court should make Greyhound a party to that decree.