*1 et al. ARMOUR CO. STATES UNITED 1, June Argued March 1970 Decided 103. No. for the United Springer the cause argued van R. James Griswold, Solicitor were the brief States. On Comegys, Law- Attorney General Deputy Assistant H. Wallace, Shapiro, Seymour E. Howard rence G. Dussman. Bergson appellee A. the cause argued
Herbert him Howard Corp. With on the brief were General Host Freeman, Adler, Jr., Kelley, H. James Carol Garfiel E. McAmis. Edwin
Per Curiam. is remanded is vacated and judgment Dis- for the Northern District Court the case of Illinois with dismiss trict instructions moot. no in the consideration part
Mr. Black took Justice or decision of this case. no part Marshall took in the decision
Mr. Justice of this case. Douglas, dissenting.
Mr. Justice
from
the case as moot.
I dissent
dismissal of
meatpackers
giant
decree the
In an historic consent
way
continuing
from
separated
complete
in a
were
the District
business,
retaining
food
the general
customary way
grant
additional
relief, at the foot of the
years
decree. Some
later motions
*2
to vacate the decree were made,
judgment
and a
over-
Co.
them
&
ruling
was affirmed
Court.
v.
Swift
States,
United
Armour is now the second largest meatpacker Nation. General Host in engaged products is the food business; operates it some 380 grocery stores, some lodges, restaurants, shops. coffee It is, other words, engaged lines of business from which Armour, party as a to the decree, would barred, whether it directly did so or through stock ownership.
Against the resistance of Armour, General Host, which held about of Armour’s outstanding stock, under- 16%% took acquire to at least of it. The United States 51% asked the District Court having jurisdiction over the meatpackers consent decree to make General Host a § under 5 of the Sherman Act, Stat. amended, 15 § U. S. C. 5. The refusal of the District Iwas, do so think, error. After the District ruling, Court’s General acquired Host of Armour’s 57% stock. result, species As a of the monopoly at which the consent decree was aimed was achieved. Host,
General it appears, has pur- now transferred, authority suant the Interstate Commerce Commis- Armour sion, stock to Greyhound Corporation. alleged is that Greyhound, like General Host, prohibited in food engaged business to Armour under the Greyhound's contends The United States decree. the decree as with Armour is as inconsistent control the United States Greyhound, control. Host’s not Armour could food interests states, owns of the decree. own virtue course, could, nor Greyhound Host Neither General written, the decree as contempt under be held knew they presumably But parties. for were procedure seemingly fashioned of the decree and ample had The District Court circumvent it. Host to restrain General Act, under 5 of Sherman § provides: § frustrating from before appear to the court “Whenever it shall *3 4 of this title proceeding which under section any justice require of pending, be the ends may be before the parties brought should summoned, cause them to be court, may the court in in the whether reside the district which not; subpoenas or to that end may court is held by in district the marshal thereof.” any served Greyhound course, would of have, General Host the the opportunity litigate question their acts do interfere with the decree before citation for any contempt. (c) Rule of
Moreover, the Federal of Civil Rules provides: Procedure
“In any case of transfer of interest, the action may be continued or by original party, the unless court motion the person directs whom the interest is transferred to be substituted in joined the action or with the original party. Serv- ice of the motion shall provided be made in (a) subdivision of this rule.” proceeds Unless the District Court against General Greyhound supplement Host and there decree, urge, they I may remedy. hearing be no Without contempt. though a punished Armour, cannot be violation, of not a to the was the victim its participant.
Under not either acquire the decree Armour could Gen- Greyhound. eral Host or Yet combination meat- packers products arguably with food is realized whether them, misconcep- Armour acquired they, Armour. tion of the thrust the decree the District Court is evident in its statement that “General large Host is meat packer monopolistic extending grasp toward the rest of industry the food through the use of its already established distributing facilities, superior finan- cial resources and other making posi- means a dominant tion in felt, resulting restraint trade squeezing present potential out competitors. Rather, Host, separate a wholly corporate entity, acquired has some shares of Armour stock and evinced an interest acquiring additional shares.” The evil in an inter- ference with the decree through combination of Armour’s meatpacking power with the food lines of Gen- precise eral Host —the type of evil at which decree was aimed. And that apparently evil is present Grey- acquisition. hound’s
Mr. Justice Cardozo speaking for the *4 second said: Swift
“Whether the defendants would resume [their practices] if predatory they were to groceries deal in do not again, They we know. would certainly have the temptation to resume it. Their low overhead and their gigantic size, when they even are viewed separate units, put would still a position them in to out starve weaker rivals. Mere size, according to the holding this court, an offense against the Sherman Act magnified unless to the point at which amounts to . . monopoly ,. but for abuse that opportunity
size carries with it an proved opportunity is not to be when the ignored past. original to have been utilized upon theory. that decree at all events was framed even after the upon theory It was framed that up packers had been broken among combination units monopoly dissolved, and the the individual huge capacity engage would be so that to adjuncts other forms of business as to the sale meats should taken from them It altogether. say did not that to deal in privilege groceries should be limited or until the time, withdrawn respect combination in effec- meats had been tually up. broken the privilege said should be renounced forever, and the units within the combination were acting collectively singly. The combination be disintegrated, was to but relief was not stop with that. To curb the aggressions huge of the units remain, that would there was to be a check power, their even though acting independently, of ex- wage a war termination dealers weaker than them- selves. . . . Groceries and other enumerated arti- cles they were not to sell at all, by either wholesale by retail. Even the things they were free sell, products, meats and meat they were not to sell retail.” Swift U. S. 116-117.
Mr. Justice Cardozo added that with the addition of groceries to meats, opportunity will be theirs to “[t]he renew the war of extermination that waged years Id., at 118. by.” gone
The same previously sentiment had been stated in the (now Senate Senator in oppos- Mr. Justice) Black ing move meatpacking industry to relax the *5 doors to control opening the decree. His fear was meatpackers: the and other food groceries and set be canceled “If court decree should food trust consent, giant by governmental aside to rear only encouraged but permitted would not South, North, form over stupendous and ominous action governmental and West alike. Such East, of such tacitly monopoly invite a size will financial pen large one of a some that with stroke price the of the Nation this trust could lift center meat from to California.” of bread and Maine prospectus based spoke Later he of a financial expected the decree: an modification-of “ expected modification of the consent With packers will enter the retail big meat anew, grocery field with nation-wide chains of all shops, food which will overshadow enterprises of in the United existing type States.’
“ ‘As nucleus of such chains of meat grocery contemplate packers stores as now may huge take over most of the retail food store already existing, big grocery chains such as chains, operate departments which now meat 20,000 30,000 shops parts such of the various country. “ pay every closely ‘It will investor to scrutinize profit potentialities increasing packing ” organizations.’ spectre meatpacking products and food merg- today ominous as it ing is as was then. should not Cong. 1 72 Rec. 1239. 2 Cong. Rec. 9336. *6 effectuated, whether predatory how scheme
matter here or On the facts vice versa. acquires one out for making a has been made tendered, hearing Greyhound parties having a Host and they or either of them has interfered whether determine de whether, The is not as a question with decree. of either with Armour con- novo the combination matter, issue Gen- a whether stitutes violation Act. Greyhound Host or interfered with decree eral has If had designed a narrower and Armour one. scheme to interference would be rather avoid Why it that General Host or obvious. does matter Armour, Greyhound, acting without connivance A achieves court unilaterally? the same result federal prevent has inherent obstruction of its au- thority by “force, guile, otherwise,” acts charged or not the or was de- person was not a Mississippi Valley Barge v. fendant. Line Co. See States, United sub Supp. 1, F. aff’d nom. Osbourne Valley Barge Mississippi v. Line 579. For U. S. it equity principle is an historic that even nonparty interfere is bound “not to with, obstruct, course of justice,” “unworthy treat a court order of notice.” See Seaward Paterson, [1897] Ch. Cf., 554. Rule 65 (d), Federal Rules Procedure. Civil I would not dismiss the case as moot. I Rather, would remand to the District Court for full on the hearing issue of interference.