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UNITED STATES v. BORDEN COMPANY ET AL.

decided: May 17, 1954.

UNITED STATES
v.
BORDEN COMPANY ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.

Warren, Reed, Frankfurter, Douglas, Burton, Clark, Minton; Black and Jackson took no part in the consideration or decision of this case.

Author: Clark

[ 347 U.S. Page 515]

 MR. JUSTICE CLARK delivered the opinion of the Court.

The United States instituted this civil proceeding against ten Chicago dairies,*fn1 charging conspiracy to restrain and monopolize the sale of fluid milk to wholesale customers and others in the Chicago area, in violation of the Sherman Act, and price discrimination in violation of the Clayton Act. Prior to trial a consent decree was entered against five of the smaller defendant companies, enjoining continuation of the conduct charged in the complaint. At the close of the Government's case against the remaining five defendants,*fn2 the District Court dismissed the complaint in its entirety. It held that, as to the alleged violations of §§ 1 and 2 of the Sherman Act, the evidence failed to establish the existence of a conspiracy or combination; and that, though there was proof of price discrimination violative of § 2 (a) of the Clayton Act by four of the defendants,*fn3 a prior decree in a private antitrust action brought by a competitor dairy company enjoined the conduct in question and made it "useless" to award the Government an injunction. 111 F.Supp. 562. The Government then appealed directly to this

[ 347 U.S. Page 516]

     Court under 15 U. S. C. § 29, and we noted probable jurisdiction, 346 U.S. 914.

Three of the four questions presented on this appeal deal with rulings by the district judge that certain evidence was inadmissible.*fn4 The Government does not challenge the court's conclusion that on the record conspiracy was not shown, but it insists that error in these rulings precluded establishment of the conspiracy. After hearing argument and considering as much of the record as is before us, including the Government's offers of proof, we are of the opinion that, even assuming error in each of the challenged rulings, it does not appear that admission of the evidence in question would have been sufficient to change the conclusion that the Government had not established a case under the Sherman Act; hence the rulings cannot be said to have affected substantial rights of the parties within the meaning of 28 U. S. C. § 2111.*fn5 Since on this basis we affirm the judgment of dismissal

[ 347 U.S. Page 517]

     as to the Sherman Act allegations, it is unnecessary to discuss the propriety or impropriety of the several rulings.

The fourth question challenges the basis of the District Court's refusal to grant the Government injunctive relief against price discrimination by four of the defendants.*fn6 The district judge found that government evidence tended to prove that these defendant companies have sold at prices which discriminate between purchasers of milk of like grade and quality. This, he said, would give defendants the burden of establishing that the discriminations fall within statutory exceptions, were it not that under a consent decree entered against defendants in a private suit in 1952 by another judge of the same court,*fn7 they already are enjoined from performing all acts specified by the Government in its prayer for relief. In the opinion of the district judge,

"A decree of this court entered at the instance of a private litigant is as binding upon a defendant as a decree entered at the instance of the government; and a consent decree, entered by any judge of this court without hearing evidence, is as binding as a decree entered by another judge after a protracted trial. I conclude, therefore, that each of the remaining defendants is now effectively enjoined by this court from performing any of the acts set forth in the government's prayer for injunctive relief, insofar as the Clayton Act is concerned.

"As a court of equity, I will not perform a useless task. The violations of the Clayton Act described in the complaint and ...


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