United States v. General Motors Corporation (384 U.S. 127)/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

Although I consider that United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, decided in 1960, represents basically unsound antitrust doctrine, see my dissenting opinion, 362 U.S., at 49, 80 S.Ct., at 514, I see no escape from the conclusion that it controls this case. Parke Davis held that a manufacturer cannot maintain resale prices by refusing to sell to those who do not follow his suggested prices if the refusal is attended by concerted action with his customers, even though he may unilaterally so conduct himself. See United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992. Although Parke Davis related to alleged price-fixing, I have been unable to discern any tenable reason for differentiating it from a case involving, as here, alleged boycotting. The conclusion that Parke Davis governs the present case is therefore unavoidable, given the undisputed evidence that General Motors acted in concert with its dealers in enforcing the location clause. In my opinion, however, General Motors is not precluded from enforcing the location clause by unilateral action, and I find nothing in the Court's opinion to the contrary.

On this basis I concur in the judgment of the Court.