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January 13, 1958

UNITED STATES of America, Plaintiff,
BETHLEHEM STEEL CORPORATION and The Youngstown Sheet and Tube Company, Defendant

The opinion of the court was delivered by: WEINFELD

This action is brought by the Government to enjoin a proposed merger between the defendants, Bethlehem Steel Corporation and The Youngstown Sheet and Tube Company on the ground that it would be in violation of Section 7 of the Clayton Act, as amended. *fn1" Specifically, the Government seeks to enjoin the consummation of a Reorganization Plan and Agreement dated December 11, 1956 under which the defendant Bethlehem is to acquire the assets and properties of the defendant Youngstown.

The case presents the problem of the interpretation and application of the 1950 amendment to Section 7 of the Clayton Act which has not yet been passed upon by the Supreme Court. *fn2" The companies involved, are two of the largest in an industry which is basic to our national economy.

 The matter is now before the Court on the Government's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The defendants in resisting the motion, urge that there are genuine issues as to material facts which require a trial.

 Prior to the commencement of this suit, the defendants sought approval of the proposed merger from the Department of Justice. *fn3" In support of their application the defendants submitted detailed information and data pertaining to themselves, to other steel producers, and to the steel industry in general. The Government now relies in large part upon the data submitted to it, as supplemented by other data derived from recognized steel industry publications and reports. The facts have been collated and presented in voluminous affidavits, extensive exhibits and charts.

 In the main, the defendants do not dispute the accuracy of the statistical material relied upon by the Government. However, they contend that this material, in and of itself, does not portray the full picture necessary for a determination of the competitive consequences of the proposed merger. They contend that the evidence submitted to the Department of Justice was in response to its request for specific information and that they did not thereby concede that this was the sole information relevant and material to the question of the legality of the proposed merger.

 Prior to the oral argument of the motion which extended over two days, the Court studied and analyzed the affidavits, with their supporting exhibits and charts, and the briefs submitted by the parties. The Court concluded that many evidential facts, relevant to a decision of the ultimate issues, whether the case were ripe for summary disposition or whether a trial were required, are not open to challenge. These facts are principally of a statistical nature pertaining to capacity, production, and sales of the defendants, other steel producers and the industry at large. Accordingly, the Court in a conference prior to hearing argument on the motion directed each side to submit proposed findings of fact and conclusions of law based upon the affidavits, exhibits and charts offered for or against the motion, with comments upon the other's proposals indicating whether each such proposed finding was disputed or undisputed. *fn4" As anticipated, much of the evidence relied upon by the parties is not in dispute.

 The Government claims that upon the unchallenged facts, the conclusion is compelled that the proposed merger comes within the proscription of Section 7 and accordingly no trial is necessary. However, the defendants urge that the inferences and conclusions which the Government contends flow from the undisputed facts and statistics, are not warranted and that other evidence needs to be considered before arriving at an over-all picture of the competitive consequences of the proposed acquisition.

 Section 7 of the Clayton Act, provides in pertinent part as follows:

 '(That) no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly'.

 In broad outline, the essential ultimate issues which the Court is called upon to determine and as to which the Government has the burden of proof in order to sustain its charge that the proposed merger comes within the prohibition of Section 7 are: the line or lines of commerce and the section or sections of the country in which the effects of the merger may be felt, or as phrased by the Supreme Court, the relevant market -- 'the area of effective competition' *fn5" -- and whether the merger may substantially lessen competition or tend to create a monopoly.

 The determination of these and other issues inherent in the case involves analysis of aspects of the iron and steel industry on a nationwide, regional and local level. The facts are complex and involved and require consideration of myriad details. While, as already noted, in many instances there is no dispute as to the underlying facts, the defendants urge inferences and findings contrary to those advocated by the Government and contend that only a trial will elucidate these matters.

 The Court does not reach the classical summary judgment question of whether there is a genuine issue as to any material fact. Upon further close study of the record, briefs and argument of counsel and considering the size of the industry, the vast amount of factual material to be analyzed and reviewed in reaching a decision, the multitude of problems in the case, the likely impact of a decision upon the iron and steel industry in particular, and upon the economy of the country in general, and the admitted significance of a ruling under the amended Section 7 in view of differing contentions as to its construction, I am persuaded that a decision after trial will be the more desirable procedure in the matter. It will serve to bring into sharper focus certain issues of importance which have been obscured by the voluminous affidavits with their statements, counterstatements and alternative positions, and the conflicting conclusions which the parties contend are to be drawn from the multitude of facts and statistics presented.

 Under all the circumstances the application of the summary judgment rule is questionable and the Court deems it sound judicial administration to permit a trial for such additional evidence and clarification as may be relevant. In doing so, it is guided by the judgment of the Supreme Court in a somewhat parallel matter, Kennedy v. Silas Mason Co., 334 U.S. 249, 256-257, 68 S. Ct. 1031, 1034, 92 L. Ed. 1347, where it said:

 'We do not hold that in the form the controversy took in the District Court that tribunal lacked power or justification for applying the summary judgment procedure. But summary procedures, however salutary where issues are clear-cut and simple, present a treacherous record for deciding issues of far-flung import, on which this Court should draw ...

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