*1 and, certiorari grant would and Mr. Justice Marshall affirm or oral briefing argument, further without 489 F. 2d 925. Reported below: judgments. (73-2014). Missouri Cement No. A-1265 respond- 2d Cir. Motion Co. v. C. A. Inc. Cargill, Mr. ent to vacate heretofore entered Justice Douglas July 1974, Mr. Black- 12, granted. Justice of this part took no in the consideration or decision mun motion.

Mr. Justice Douglas, dissenting.

Cargill, acquiring petitioner, desirous of control petitioner’s made a offer cash for common stock. thereupon Petitioner filed this the United States suit District Court for York the Southern District New to enjoin acquisition tender offer, alleging of petitioner control Clayton would violate 7 of the § Act, 731, Stat. as amended, 15 U. S. C. 18.§ That injunction opinion court issued stating detailed its view stock control raises serious antitrust issues.

The sole question here is whether Cargill’s attempts to take over Missouri Portland bewill enjoined, pending the outcome of a trial on the merits of Missouri Port- claim that a merger land’s companies these two violate the antitrust laws. District Court granted such an injunction, Supp. 249, F. but the Court of Appeals reversed. 498 F. 2d 851. Missouri Portland sought and a stay received of the Court of Appeals’ man- thus date, reinstituting injunction issued the Dis- trict Today Court. the Court vacates that stay.

The Court treats the if case as we were in the sensitive First Amendment field where relatively minor restraints may have a “chilling” effect on important constitu- Bill of the Constitution But as read right. tional right no constitutional corporation has Rights, *2 com- the assets of another acquire consolidate, or merge, due days of in “substantive old Court the pany. The corporate Rights Bill of expansive process” built the Fifth “liberty” in the Due Process Clause of reading “liberty” exploit people, to the including Amendment as The trifles our and our environment. Court resources, only stay with when it a the antitrust laws vacates a on the requires Cargill ruling to wait until there is What up merits before it swallows Missouri Portland. today example the does of dis- shocking Court is a the please law to con- regard management huge the glomerates. Denial of a on means decision the For once the companies personnel merits. and their momentum mixed, complete to the acquisition is By irresistible. almost careless neglect actually we decide that what appears be a monstrous violation may the law go unremedied. of Appeals did not hold that the findings of the District “clearly Court were erroneous.” The Appeals Court of considered issue on the merits to be only frivolous and required Cargill to agree to hold assets Missouri in separate Portland corporation or division so it can be divested any under subse- quent decree of the Court. But that misses whole I will point, as make clear.

II Missouri Portland is the Nation's 20th largest pro- ducer of Portland cement with of the national 2% capacity and in the 11-state region it serves. The 8% District Court defined the relevant here as markets four ranks in Portland which Missouri metropolitan areas In in these market share. either first second of the top four have at least firms markets 88% market.1 privately is a held conglomerate huge, Minneapolis. it had sales fiscal 1973

headquarters Cargill specializes $5.3 in commodities and billion. heavy, special transportation thus has skills products. bulk and in the sale of products fungible a heavy, bulky, fungible product, Cement is but Cargill industry. in the is not involved cement proposed Substantial antitrust issues are raised takeover of Missouri The District Cargill. *3 likely potential Court found that is the most industry entrant into the cement and concluded that significant anticompetitive effect from would result Car- gill’s already via a takeover of an entry dominant firm de novo rather entry than “toehold” acquisition. Furthermore, District Court found that the addition of Cargill’s huge financial to resources Missouri Port- already land’s substantial significant assets will raise entry barriers to in others relevant markets and will tend to increase the dominance of Missouri Portland in markets which already heavily concentrated. Finally, the District Court noted that the challenged potential eliminate competitor from fringe the market, thereby possibly resulting an additional anticompetitive effect.

The Court of Appeals disputed these conclusions by the District Court. Yet the very fact that disagree- exists between the two lower ment. points courts on these the likely indicates existence of a question. substantial If the District Court’s version of the facts is the correct 1 The metropolitan four markets are Louis, St. City, Kansas Memphis, and Omaha. 922 Clayton violate takeover it seems

one, Corp., 410 Brewing v. United States Act. See Falstaff States, 405 United Co. v. Motor Ford (1973); 526 U. S. Co., 386 Gamble & FTC v. Procter (1972); U. 562 S. Chemical Penn-Olin v. (1967); U. S. Paso Nat- Elv. United States (1964); Co., 378 U. S. Co., (1964). ural 376 U. S. Gas

Ill pre- for certiorari petition raised The issues a conflict be- involves question sent a substantial Appeals. below and another the decisions tween (CA10 Corp. 2d 67 P. Copper FTC, In Kennecott could anticompetitive effect held the court 1972), corpora- acquiring acquired though occur even did have products related but not produce tions did court below was confronted related skills.2 regards of Kennecott as strikingly facts similar those of related presence products the lack of related but the candidly it That admitted that court, skills. however, declining to 498 F. 2d, was follow the Kennecott decision. n. at 860 14. our decision United States v. Falstaff Brewing Corp., supra, open at 537, we left the extent to potential anticompetitive which effect will be considered “conglomerate mergers” determinative in such as this one *4 entry where could have been de novo or via “toehold” ac- 2 addition, opinion the the court conflicts below Appeals significance acquir- decisions of other on the the Courts ing According below, corporation’s “deep pocket.” to the court the acquiring corporation great facts that has financial resources and it enough to use these are intends resources not to show Corp. effect. But see General Foods potential anticompetitive v. FTC, Corp. FTC, Steel (CA3 1967); 386 F. 2d 936 v. Echo FTC, (CA6 Products Co. v. 426 1970); F. 2d 592 347 F. 2d Copper Kennecott FTC, Co. (CA7 1965); 2d F. (CA10 1972). this between the Circuits the conflict quisition. Given in which good vehicle present presents case matter, problem. consider this we should

IV stock of the common acquired had Cargill 18% Now injunction issued. Missouri before Court of injunction lifted has been acquire the Appeals Court, Cargill and this is free to means controlling interest Missouri Portland. That subsidiary We are it can dictate what its will do. on. foolhardy go to assume that litigation will then subsidiary in control of will the sub- its make sidiary the line and wishes. toe be obedient to Cargill’s The apparent substantial antitrust in the conflict issue likely Appeals between Courts of will now not be resolved. The internal of the two segregation assets only companies is gesture. idle If we fail live under rule of law and instead leave open the field to the uncontrolled of con- machinations glomerates, Cargill pattern will follow the infamous IT&T, uncontrolled and uncontrollable. Behind this motion to vacate the very large questions are law public policy. the place What is of antitrust law in the conglomerate field? Are conglomerates immune as If suggest? some what them not, controls over exist present under antitrust laws? These are questions that are substantial and pressing. con- Circuits flict; and the Court goes pellmell escape for an for this conglomerate from a real test under existing antitrust law.

I repeat, there is no constitutional right to take over companies. other Cargill should be required to accept delay as one of the risks incurred by it seeking to gain control of so firm dominant a in the cement industry *5 or "toehold” content with a being rather than entry. novo de merits of in force until the continue the adjudicated.

the case have been A. et C. al. 73-1162. v. Wilson No. United is S. It granted, 2d Cir. 981.] U. [Certiorari York, of New Martin, Jr., Esquire, ordered that John S. he be, the Bar of this New a member of York, Court, respondent for appointed to serve as counsel hereby, is Bryan this case. C. A. et

No. 73-528. Carlson al. United States. Douglas, be- 9th Certiorari denied. Mr. Justice Cir. any pro- federal ban on is ing obscenity of the view that (see States v. hibited the First Amendment Film, 123, 130 (1973) (Doug- Reels 413 U. S. 200-ft. certiorari and reverse las, J., dissenting)), grant judgment. Mr. Justice whom Mr. Brennan, Justice Stewart and Mr. join, dissenting. Justice Marshall

Petitioners were convicted in the United States Dis- trict for the Central District of California of mail- ing allegedly matter in obscene violation of 18 U. S. C. 1461, provides pertinent § which part as follows:

“Every lewd, lascivious, indecent, obscene, filthy or vile article, thing, device, or matter, substance...

“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office any letter carrier. knowingly

“Whoever uses the mails for the mail- ing anything ... of declared by this section ... to be