UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: June 10, 1974.
MISSOURI PORTLAND CEMENT COMPANY, PLAINTIFF-APPELLANT-APPELLEE,
CARGILL, INCORPORATED, DEFENDANT-APPELLEE-APPELLANT, AND THE FIRST BOSTON CORPORATION, DEFENDANT
Appeal from an order of the District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, granting a preliminary injunction enjoining defendant Cargill from further soliciting the tender of shares of plaintiff pending final determination of the action and providing for other relief.
Waterman, Friendly and Mulligan, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal illustrates the growing practice of companies that have become the target of tender offers to seek shelter under § 7 of the Clayton Act, 15 U.S.C. § 18. Drawing Excalibur from a scabbard where it would doubtless have remained sheathed in the face of a friendly offer, the target company typically hopes to obtain a temporary injunction which may frustrate the acquisition since the offering company may well decline the expensive gambit of a trial or, if it persists, the long lapse of time could so change conditions that the offer will fail even if, after a full trial and appeal, it should be determined that no antitrust violation has been shown. Such cases require a balancing of public and private interests of various sorts. Where, as here, the acquisition would be neither horizontal nor vertical, there are "strong reasons for not making the prohibitions of section 7 so extensive as to damage seriously the market for capital assets, or so broad as to interfere materially with mergers that are procompetitive in their facilitation of entry and expansion that would otherwise be subject to serious handicaps."*fn1 These reasons are especially compelling when the target company fails to show that the alleged antitrust violation would expose it to any readily identifiable harm.
On December 19, 1973, Cargill, Incorporated (Cargill) announced an offer to purchase all the outstanding shares of common stock of plaintiff Missouri Portland Cement Company (MP).*fn2 In its offer, Cargill stated that it intended to acquire control of MP and either operate it as a subsidiary or merge it into the parent company. The purchase price was $30 per share in cash; this compared with a closing market price of $24.25 on December 18, 1973.
Two days later, MP began this action in the District Court for the Southern District of New York, seeking to enjoin Cargill from continuing with the tender offer. MP charged that Cargill had violated the securities laws in the course of publicizing its offer and that an acquisition of control by Cargill of MP or a merger of MP into Cargill would violate the antitrust laws. Again running true to the usual form, Cargill responded with accusations that MP had violated the securities laws in its public pronouncements opposing the tender offer and sought injunction relief on its counterclaim. Judge Stewart held hearings on December 27, 1973, and on five days in early January 1974. These led to an order dated January 7, 1974, which, without any accompanying findings of fact or conclusions of law, enjoined Cargill from proceeding with the tender offer during the pendency of the action and placed both companies under certain other restraints. By this time Cargill had acquired 271,000 shares of MP, or approximately 19% of the total, at a cost of roughly $8,130,000.00. A panel of this court ordered an expedited appeal, with briefs to be filed one week after entry of the district court's findings of fact and conclusions of law and with argument to be heard in the following week.
On April 15, 1974, the district court entered its opinion and amended order. The court held that MP had raised "substantial and difficult antitrust questions" which merited further investigation. Finding that the balance of equities was in MP's favor, the court held that MP was entitled to preliminary relief on the antitrust claim. However, it rejected MP's claims that Cargill had violated the securities laws. On the counterclaim, it upheld one of Cargill's securities law claims but denied the rest. The court temporarily enjoined Cargill from proceeding with the tender offer or voting its stock and dealt with MP's violation of the securities laws in a manner recounted in the final section of this opinion. As both sides recognize, the critical determination was the court's finding of a probable antitrust violation, to which we now turn.
There is not much controversy over the basic facts. We shall limit ourselves to the highlights, referring to Judge Stewart's as yet unreported opinion for amplification.
MP, a publicly held corporation whose stock is listed on the New York Stock Exchange, manufactures portland cement at three riverfront plants. One is located at St. Louis, Missouri, on the Mississippi River; another is at Independence, Missouri, on the Missouri River; and the third is at Joppa, Illinois, on the Ohio River near its confluence with the Mississippi. MP sells the cement produced at these plants through an eleven-state area. Several dozen competitors, including five with plants in Missouri on the Mississippi River, sell in various parts of this area, shipping much of their cement through distribution terminals located along the three great river systems. MP's production capacity is 10,000,000 barrels a year*fn3 -- this being some 2% of the national capacity and 8% of the capacity within the eleven states MP serves. It is the country's twentieth largest cement producer; eight of the ten largest producers compete in part of MP's sales territory.
The district court focused its attention not on the eleven-state area but on four particular metropolitan markets within that area -- St. Louis and Kansas City, Missouri; Memphis, Tennessee; and Omaha, Nebraska. Figures supplied by MP*fn4 showed the characteristics of these markets to be as follows:
St. Louis, Missouri Metropolitan
Missouri Portland Cement 28%
River Cement 24
Alpha Cement 20
Universal Atlas Cement 18
Dundee Cement 10
Kansas City, Missouri Metropolitan
Missouri Portland Cement 30%
Lone Star Cement 25
Ash Grove Cement 22
Universal Atlas Cement 12
Monarch Cement 5
General Portland Cement 4
Dewey Cement 2
Memphis, Tennessee Metropolitan
Missouri Portland Cement 30%
Marquette Cement 27
River Cement 21
Arkansas Cement 10
Omaha, Nebraska Metropolitan
Ash Grove Cement 62%
Missouri Portland Cement 21
Lone Star Cement 10
Ideal Cement 5
The record contains no figures to indicate the proportion of MP's sales represented by these four marketing areas; however, MP's figures show that in the company's other major metropolitan markets, Chicago, Louisville and Nashville, it has 9%, 10% and 15% of the market, respectively. Those shares make MP the third leading cement supplier in Louisville and Nashville, and the seventh in Chicago.*fn5
Cargill is a huge privately held company with its headquarters in Minneapolis, Minnesota. It has been engaged in grain trading for over a century. Since 1932 it has operated river barges which carry bulk commodities and tow boats which push the barges. It has expanded into a variety of other bulk commodity businesses -- vegetable oil processing, animal feeds, sugar trading, ores and metals, fertilizers, ocean shipping, flour milling, corn wet milling, the manufacture of industrial chemicals, poultry products and salt mining. Cargill's policy is to derive profits by selling a large volume at low margin.*fn6
In August 1972, Cargill's Salt Department established the Salt Expansion and Diversification Group (Salt Group) to investigate expansion opportunities for the company. The Salt Group reported to the previously established Long Range Planning Committee of Cargill's board of directors, which was responsible for aiding the chief executive in framing recommendations for the board. After investigating a number of other industries, the Salt Group in the fall of 1972 determined that cement was a particularly promising prospect for Cargill and commissioned an extensive study of the industry. Stuart Leisz, a member of the Salt Group, was assigned to supervise the study. He retained a former cement company president as a consultant and undertook to explore the possible avenues of entry for Cargill into the cement business. After assembling financial and other data on every cement company in the country, Leisz on March 26, 1973, submitted a comprehensive report to the Salt Group recommending that Cargill acquire a cement plant producing between 1 1/2 and 3 million barrels per year. He specifically advised against entering the industry as a new producer for four reasons: (1) the cost of plant construction was prohibitively high -- estimated at $10-12 per barrel of annual capacity; (2) Cargill's "limited knowledge of cement production and the basic major differences between our Salt Department and the cement industry" would render a "trial and error start-up" too risky; (3) the delay that would be required for construction and for forming a new organization would be too long -- three to four years by Leisz' estimate; and (4) the company might encounter a shortage of qualified production personnel to operate a new plant.
During the summer of 1973, Leisz continued his study of the industry, contacting various cement companies in order to determine what plants might be available for purchase. In late September, the Salt Group rendered a comprehensive report to the Long Range Planning Committee based on Leisz' findings. The report advised that the most promising method of entry would be to acquire an established production unit by purchase or tender offer; it estimated that production facilities could thus be acquired at a cost of approximately $3-4 per annual barrel capacity. The report suggested that if the company chose the purchase route, either Valley Cement in Mississippi or Coplay Cement in Pennsylvania would provide Cargill "a good entrance into the cement business." Among five possible tender offer candidates, MP was the clear first choice.*fn7 The report termed entry by construction a "low priority option" and recited several of the same considerations that had led Leisz to recommend against that course.
The Long Range Planning Committee concluded that acquiring MP was "the number one priority," and it approved proceeding with acquisition plans if 51% of MP's stock could be acquired at a reasonable price.*fn8 The committee discarded "out of hand" the possibility of entering the industry by construction, and the proposal to buy Valley, Coplay or another small cement company "wasn't taken seriously," as Cargill's chief executive testified.*fn9
In October 1973 Cargill contacted MP and was informed that the management had no interest in selling. Cargill then approached the United States Steel Corporation whose subsidiary, Universal Atlas, is one of the largest cement companies in the business, and Dundee Cement Company, owned by Holderbank Financiere Glaris, a Swiss holding company, neither of which was interested in selling. Amcord Cement Company was rejected because the price was too high and because the owners would sell the cement operations only as part of a package with several money-losing non-cement companies. The Mississippi River Corporation, owner of River Cement, demanded a price of $65,000,000, which Cargill considered prohibitive for that company's 6,000,000 barrel capacity. Cargill's board of directors thereupon directed that the tender offer be made for all the outstanding shares of MP stock.
Preliminarily, we note that the issue of relevant geographical markets is not seriously contested at this juncture.*fn10 We therefore accept, for the purposes of this appeal, the district court's ruling that the relevant "section[s] of the country" in which competition is allegedly being foreclosed, 15 U.S.C. § 18, are the four metropolitan markets described above.
Before proceeding further it is well to emphasize that we are not dealing here with the types of merger that have been the historic concerns of the antitrust laws. The case differs totally from the horizontal merger, illustrated by United States v. Philadelphia National Bank, 374 U.S. 321, 10 L. Ed. 2d 915, 83 S. Ct. 1715 (1963), where two direct competitors, the second and third largest banks in Philadelphia, proposed to merge. It differs likewise from the vertical merger which, as was said in Brown Shoe Co. v. United States, supra, 370 U.S. at 324, "by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement." Despite MP's suggestions to the contrary, the merger between Cargill and MP is not even a true "product-extension merger," as the Federal Trade Commission characterized the proposed marriage of Procter & Gamble and Clorox, FTC v. Procter & Gamble Co., 386 U.S. 568, 577-78, 18 L. Ed. 2d 303, 87 S. Ct. 1224 (1967). In that case, Procter's detergents and Clorox' bleach were so closely related that Procter could expect substantial competitive advantages of various sorts from adding Clorox to its product line. As the Commission pointed out, 63 F.T.C. 1465, 1544 (1963), quoted in FTC v. Procter & Gamble Co., supra, 386 U.S. at 573-74:
Packaged detergents -- Procter's most important product category -- and household liquid bleach are used complementarily, not only in the washing of clothes and fabrics, but also in general household cleaning, since liquid bleach is a germicide and disinfectant as well as a whitener. From the consumer's viewpoint, then, packaged detergents and liquid bleach are closely related products. But the area of relatedness between products of Procter and Clorox is wider. Household cleansing agents in general, like household liquid bleach, are low-cost, high-turnover household consumer goods marketed chiefly through grocery stores and presold to the consumer by the manufacturer through mass advertising and sales promotions. Since products of both parties to the merger are sold to the same customers, at the same stores, and by the same merchandising methods, the possibility arises of significant integration at both the marketing and distribution levels.
The relationship between Cargill's bulk commodities business and the cement industry bears only the most superficial resemblance to the product affinity between Procter and Clorox. The broad strokes with which MP attempts to characterize the similarities between cement manufacturing and salt mining, for example, fall far short of the mark. Salt and cement reach different purchasers; advertising is not a major factor in the bulk sales of either product; there is no complementary use of the two goods; and the possibility of integrated production or distribution is remote. MP presses most energetically its claim that Cargill's long experience with river barge transportation of bulk commodities will give it a substantial advantage in the cement trade. Apart from the fact that Cargill's present barges may not be appropriate for cement at all, this congruity between Cargill's experience and cement distribution methods is not nearly enough to convert cement and other bulk commodities into "related products" in the sense that the Procter & Gamble Court used the term.*fn11 Cargill's interest was simply in further diversification and in profitable use of its capital in a business where it considered that its general skills in handling bulk commodities might enable it to be more successful than an acquirer whose only asset was a deep pocket.
On these facts, it would be rather hard for the mind not initiated into the intricacies of antitrust law to see how the effect of Cargill's acquisition of control of MP "may be substantially to lessen competition, or to tend to create a monopoly," as forbidden by § 7 of the Clayton Act, even though some other form of entry by Cargill would be more beneficial to competition. The vices of an oligopolistic market lie in price and other agreements among the oligopolists, often impossible to prove, -- or what amounts to nearly the same thing -- their slothful acquiescence in a state of affairs beneficial to all. Acquisition of one of the oligopolists by a more efficient company intent on acquiring a larger market share will break the explicit or implicit agreement or the condition engendered by the sloth.*fn12 The danger is that the acquirer may be so powerful and so wicked as to create a threat that oligopoly will progress toward monopoly. But the very fact that oligopoly assumes a small number of relatively well-entrenched companies gives some assurance against this; under such conditions the threat of monopolization would not seem of real consequence in the absence of a showing of overwhelming competitive advantage not present here or evidence equally absent that the acquirer intends to engage in predatory tactics. While counsel for MP makes much of a reported comment by a Senior Vice President of Dundee Cement who feared that Cargill's size and aggressiveness would make it a bull in a china shop, this would seem to cut rather in Cargill's favor. Introducing a bull into a china shop is a good way to break through the comfortable vices of oligopoly.*fn13 The very fact that the markets were oligopolistic would make acquisition of one of the oligopolists by a strong company with Cargill's business philosophy more likely to bring down prices and promote service than in a market where free competition had already done this. To be sure, it is possible that after acquiring MP, Cargill might become simply another slothful oligopolist but, if so, matters would not be significantly worse than now.
We are told, however, that what seem to be such homely truths are inconsistent with the doctrines of "potential competition" and "entrenchment." In pressing its potential competition argument, MP principally relies on five Supreme Court decisions; United States v. El Paso Natural Gas Co., 376 U.S. 651, 12 L. Ed. 2d 12, 84 S. Ct. 1044 (1964); United States v. Penn-Olin Chemical Co., 378 U.S. 158, 12 L. Ed. 2d 775, 84 S. Ct. 1710 (1964), complaint dismissed on remand, 246 F. Supp. 917 (D. Del., 1965), aff'd by an equally divided Court, 389 U.S. 308, 88 S. Ct. 502, 19 L. Ed. 2d 545 (1967); FTC v. Procter & Gamble Co., supra, 386 U.S. 568, 87 S. Ct. 1224, 18 L. Ed. 2d 303 (1967); Ford Motor Co. v. United States, 405 U.S. 562, 92 S. Ct. 1142, 31 L. Ed. 2d 492 (1972); and United States v. Falstaff Brewing Corp., 410 U.S. 526, 35 L. Ed. 2d 475, 93 S. Ct. 1096 (1973).*fn14 While MP insists that each of these decisions is favorable to its position, it relies most heavily on Penn-Olin, Procter & Gamble and Falstaff.
Although the Supreme Court in effect applied a concept of potential competition in the El Paso Natural Gas case, it was in Penn-Olin that the Court began to sketch the role that the doctrine would play in § 7 analysis.*fn15 The district court in Penn-Olin had found that both Pennsalt and Olin Mathieson were engaged in producing sodium chlorate or similar chemicals, and that expansion into sodium chlorate production in the Southeast United States would be a natural step for either company. However, the lower court found that the two companies would not both have entered the market independently. On the basis of that finding, it dismissed the complaint charging that the two companies had violated § 7 by forming a joint venture to market sodium chlorate in the Southeast. The Supreme Court reversed. Even if only one of the companies would have entered on its own, the Court held, there was a theory on which the Government could have prevailed, 378 U.S. at 173:
There still remained for consideration the fact that Penn-Olin eliminated the potential competition of the corporation that might have remained at the edge of the market, continually threatening to enter. Just as a merger eliminates actual competition, this joint venture may well foreclose any prospect of competition between Olin and Pennsalt in the relevant sodium chlorate market.
While the Court did not distinguish clearly between the present effect on competition of a company threatening to enter the market and the prospective effect on competition of a company that may enter the market in the future, see United States v. Falstaff Brewing Corp., 410 U.S. 526, 559-62, 35 L. Ed. 2d 475, 93 S. Ct. 1096 (1973) (Marshall, J., concurring), it plainly sanctioned the general applicability of the potential competition doctrine to § 7 cases.*fn16 However, beyond suggesting the broad parameters of the doctrine, Penn-Olin provides little comfort to MP. As we shall see, Cargill has no permanent commitment to the cement industry of the sort that both Pennsalt and Olin had to chemicals such as sodium chlorate. The "incentive to competition" that the Penn-Olin Court instructed the district court to look for was not shown in this case and could hardly be expected to flow from Cargill's relatively brief investigation of the cement industry. And while the Penn-Olin joint venture had strong overtones of both horizontal and vertical combination,*fn17 those elements are missing here.
The next case, Procter & Gamble,*fn18 is distinguishable on a number of grounds. We have already adverted to one -- the close relationship of packaged detergents, Procter & Gamble's most important product line, and household liquid bleach, in use and consequently in customers and methods of sale. This was significant in many ways. One was to discredit the assertion that Procter & Gamble would never have entered the bleach business on its own account.*fn19 A closely related one was that even if Procter would not so have entered, the nature of its business would make it appear a likely prospective entrant to the various liquid bleach producers.*fn20 The feasibility of combined advertising and sales effort*fn21 not only would assist Clorox in increasing its 48.8% share of the liquid bleach market (much higher than that in certain areas) but would discourage other entrants. Here there is no close similarity in products, customers, or marketing techniques, and nothing to show that acquisition of MP by Cargill would significantly raise the barriers to entry in the cement industry. Beyond this, there was evidence in Procter & Gamble that after the acquisition Clorox had already demonstrated what would happen to a competitor seeking to increase its market share by stepping up promotions, 386 U.S. at 579 n. 3. Review of Mr. Justice Harlan's typically thoughtful concurring opinion, 386 U.S. at 581-604, further demonstrates the many differences between Procter & Gamble and this case.
In United States v. Falstaff Brewing Corp., supra, 410 U.S. 526, 93 S. Ct. 1096, 35 L. Ed. 2d 475 (1973), the most recent "potential competition" case,*fn22 the Court, as in Penn-Olin, reversed and remanded for the district court to consider an alternate theory of liability. Falstaff, the fourth largest beer producer in the United States, was the only major producer that did not sell in New England. After some years of publicly expressing its desire to enter the Northeast market, it acquired Narrangansett, the largest seller of beer in the New England states. The district court had dismissed the Government's complaint on the basis of a finding, with which a majority of the Court did not quarrel,*fn23 that Falstaff's management was unwilling to enter the New England market except by acquiring a substantial existing brewery. The Court reversed and remanded on the ground that it was an error of law to assume "that because Falstaff, as a matter of fact, would never have entered the market de novo, it could in no sense be considered a potential competitor"; it still might be a potential competitor "in the sense that it was so positioned on the edge of the market that it exerted beneficial influence on competitive conditions in that market," 410 U.S. at 532-33. The district court was therefore directed "to make the proper assessment of Falstaff as a potential competitor," taking this point into account, 410 U.S. at 537. The Court left "for another day the question of the applicability of § 7 to a merger that will leave competition in the marketplace exactly as it was, neither hurt nor helped, and that is challengeable under § 7 only on grounds that the company could, but did not, enter de novo or through 'toe-hold' acquisition and that there is less competition than there would have been had entry been in such a manner." 410 U.S. at 537.*fn24
Although Falstaff is a hard decision to parse because of the number of opinions and abstentions,*fn25 the only addition it makes to Procter & Gamble is that in Falstaff the "edge of the market" factor stood more nearly alone. But the case was like Procter & Gamble, or perhaps even easier for the Government, in that the very nature of Falstaff's business would inevitably keep it on the edge of the market. Falstaff was the only one of the nation's largest beer producers which did not sell throughout the country. No matter how much it protested that it would not make a de novo or toe-hold entry into the Northeast, companies in the market might well not believe this; Falstaff would therefore remain a procompetitive force even if not allowed to enter the market in the way it wished.
We see no sufficient analogy between the positions of Procter & Gamble and Falstaff on the one hand, and Cargill on the other. Obviously Procter & Gamble had no intention of getting out of the detergent business or Falstaff out of the beer business and, so long as that continued, firms in the bleach or beer markets would fear their entry. But, as already indicated, there is no evidence that anyone in the cement business had dreamed of Cargill as a potential entrant until it sent out letters seeking information about the industry in March 1973. And there is no reason to believe that, if its current effort to enter the industry is frustrated, anyone in the cement business will regard it as a potential entrant in the future. The district court's error lay in identifying, for purposes of potential competition, a company making the same commodity (Falstaff) or a closely related one sold to the same purchasers by the same means (Procter & Gamble) with a diversifying company that had never before been regarded as a potential entrant and was not likely to remain one if its rational choice of a method of entry was barred.
The evidence against the feasibility of de novo entry by Cargill is overwhelming, and the district judge made no finding that this was an attractive possibility or that anyone inside or outside Cargill ever thought it was.*fn26 Whatever the ultimate resolution of the differing views of Mr. Justice White and Mr. Justice Marshall on the weight to be given statements by management of the acquiring company, contrast 410 U.S. at 534-36 with id. at 563-70, here the objective evidence was wholly in accord with the views expressed by Cargill's management. An attempt to construct facilities similar to MP's, which Cargill hoped to acquire for $45,000,000, would cost up to $200,000,000. The difference in cost per annual barrel of capacity was that between $3-4 and $10-20. As against this and other objective facts cited by the Salt Group, to which we have referred above, the point that Cargill had made de novo entries into other businesses, where there was no showing of a similar cost disparity, is quite irrelevant.*fn27
The judge did find, however, "that there is no evidence that Cargill would not enter the cement industry through some other company if it did not acquire Missouri Portland." This, of course, is not the same as saying there was evidence that it would. Apart from that, the statement affords no support to the decision if it includes producers with market shares substantially as large as MP's since an acquisition bad as regards MP would be equally bad as to them. Presumably therefore the judge was referring to "toe-hold" acquisitions, and to that we now turn.
The "toe-hold" notion is rather difficult to understand as applied to a capital intensive industry where objective facts rule out de novo entry and the proposed entrant has no interest in entering unless it can obtain a significant market share. The cost of converting a small plant into a big one would probably be as great as, or perhaps greater than, that of building a new one. Toe-hold acquisition may therefore be meaningful in an industry like cement only if the new entrant could make a number of such acquisitions having capacity substantially equivalent to that of the larger company sought to be acquired.
Beyond this, we think MP completely failed to demonstrate that attractive toe-hold prospects were available in the relevant geographical markets. The plants cited as available means of entry into the defined markets are either already dominant in some other market, or owned by enormous national or international cement companies, or poor prospects for the future.
Judge Stewart found that Cargill had discussed the possibility of acquiring several other cement companies, including Valley, Alpha, American, Coplay and River. In addition, he noted that after initially being turned down by MP, Cargill recontacted Universal Atlas, Amcord, Dundee and River. None of these would qualify as toe-hold candidates. Alpha, River and Universal Atlas all have substantial shares of the St. Louis market; Dundee has a substantial share in both St. Louis and Chicago; Valley has seemingly insuperable technological problems;*fn28 and Coplay and Amcord plants are too far from the four markets in question to have a realistic prospect of competing there.
In its reply brief in this court, MP pointed to Monarch, Arkansas Cement Corp., Texas Industries, and Gifford-Hill as possible toe-hold acquisition firms. Apart from the propriety of considering possibilities which were not specifically brought to the district court's attention, none of these seems to qualify. Monarch, it was pointed out in oral argument, is a land-locked plant in southeastern Kansas with only about 30 years of limestone reserves. The other three are located at some distance from the four markets in question and are almost certainly major participants in other markets.*fn29 MP's potential competition arguments thus are inadequate to support a finding of probable illegality.*fn30
In addition to its potential competition claims, MP has advanced the "deep pocket" or "entrenchment" theory to support its claim that Cargill's acquisition would violate § 7. According to this theory, an acquisition by a firm with extraordinary resources might raise entry barriers in a particular industry by discouraging other potential entrants, or it might discourage competitive challenges from smaller rivals fearful of provoking the giant. Again, MP relies on the Procter & Gamble case for support. The Court there pointed out that Procter's acquisition of the dominant liquid bleach producer might render the smaller competitors "more cautious in competing due to their fear of retaliation by Procter," 386 U.S. at 578, and that Procter's advantages in advertising would give it a peculiarly powerful weapon with which "to meet the short-term threat of a new entrant," 378 U.S. at 579. In the cement industry, however, the "deep pocket" claim seems more metaphorical than real. Many of the companies in the business are controlled by economic giants already. Cement companies owned by U.S. Steel, the Swiss Holderbank group, Martin-Marietta and National Gypsum Corp. do not seem likely to cower before Cargill.*fn31 MP and smaller competitors have survived among these giant conglomerates in the past; it seems unlikely that MP will pose an insuperable new obstacle simply because of its acquisition by a wealthy stranger. Beyond this, the "entrenchment" theory seems to require more than simply a showing that the acquiring firm has a deep pocket.*fn32 The potential for entrenchment that troubled the Court in Procter & Gamble was not primarily a function of Procter's relative size, although the disparity between Procter and all of Clorox's competitors was enormous. The real danger of entrenchment came from the kinds of competitive advantages that affiliation with Procter could provide for Clorox, already the dominant firm in the liquid bleach market. As we have noted, Cargill would bring nothing to the cement industry comparable to Procter's huge advertising and merchandising programs, which could readily include bleaches as well as detergents.
In view of the weakness of the "entrenchment" claim, the lack of proof that Cargill exerted any "edge effect" on present competitive conditions, and the slim likelihood that Cargill would enter the markets here in question de novo or by toe-hold acquisition, we conclude that the plaintiff here was a long way from demonstrating the probability of success ordinarily required to warrant preliminary injunctive relief.*fn33
MP suggests that even if the foregoing analysis is sound, the district judge nevertheless acted properly in issuing the injunction under the second branch of the rule of this court recently recited in Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2 Cir. 1973):
The settled rule is that a preliminary injunction should issue only upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.
It is worth noting at the outset that, despite the references to plaintiffs in private antitrust suits as "private Attorney Generals"*fn34 that have now become commonplace, MP is entitled to injunctive relief only "against threatened loss or damage by violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity under the rules governing such proceedings," 15 U.S.C. § 26.
Here again the uninitiated would find it somewhat difficult to discern what "loss or damage" Cargill's tender offer could inflict on MP as a corporation, as distinguished from its management. A cornerstone of MP's antitrust argument is that acquisition of control by Cargill would make MP not too weak but too strong. It insists that the right way for Cargill to compete in the cement business in MP's territory is by direct entry or toe-hold acquisition, either of which presumably would take business away from MP rather than bring more to it. Examination of the decisions of this court in private antitrust suits developing and applying the second branch of the rule stated in Sonesta reveals how much weaker MP's case is than any in which that rule has previously been applied.
The fons et origo of the second branch of the rule, at least in this circuit, is Judge Frank's opinion in Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2 Cir. 1953). The findings of Judge Hincks in the district court, 114 F. Supp. 307 (D. Conn. 1953), in the decision there affirmed, contrast sharply with those of the district judge here. Both Hamilton and Benrus were engaged in the business of selling jeweled watches, but the watches of Hamilton -- essentially the "target" company -- were superior in quality. Against this background, the court found, 114 F. Supp. at 314:
The association of Benrus' name with Hamilton as a consequence of the publicity given to Benrus' purchases of Hamilton stock has already impaired Hamilton's competitive position in the market which it serves; it has impaired the effectiveness of Hamilton's vigorous new merchandising policy because of antagonism on the part of retail jewelers to Benrus' practices and reputation with respect to the fair trade principles of the industry and its merchandising policies; at least the record contains a prima facie showing to that effect.
The court further found:
A director on Hamilton's board elected by Benrus would be in a position to obtain confidential information of value to Benrus as a competitor, the disclosure of which would be harmful to Hamilton and would materially impair its competitive position. In participating in the management, such a director would be subject to frequent conflicts of loyalties involving decisions dependent upon the exercise of his judgment faculties many of which would be of such a nature that it would be impossible to demonstrate the presence or extent of the Benrus influence if that had been a factor . . . The presence of such a director on the Hamilton board would create a situation in which Benrus would have power to discourage the vigor of competition by Hamilton and so to embarrass and impede Hamilton's management that it might well be driven to unwanted collaboration or to a merger as the least of two evils. Such a situation would constitute irreparable harm to Hamilton.
The Hamilton-Benrus principle was applied in American Crystal Sugar Co. v. Cuban-American Sugar Co., 259 F.2d 524 (2 Cir. 1958). Here again the two companies were direct competitors; American Crystal, the "target" company, was a United States beet sugar producer, while Cuban-American produced Cuban cane sugar. Judge Dawson's findings of irreparable injury, 152 F. Supp. 387, 393 (S.D.N.Y. 1957), included the following:
Plaintiff is taking steps to increase the amount of business which it does in certain states in the River Territory. Disclosure of any such plans and any similar future plans to any representative of a competitor would be harmful to plaintiff; and it may be assumed that such disclosure would become inevitable if defendant succeeded in getting control of plaintiff or in obtaining representation on the board of directors of the plaintiff.
For over twenty years federal legislation has established a limit on the United States marketings of the domestic beet sugar industry and all other sugar suppliers in the United States. To overcome this restriction each supplier has attempted over the years to increase its quota. Similarly, a conflict has arisen between the domestic beet sugar industry and those having an interest in the Cuban sugar industry since any increase in the quota of the former must come in large part from the quota of the latter. The defendant is a member of the United States-Cuban Sugar Council which, acting in close cooperation with the Cuban government and Cuban sugar mill owners, represents the Cuban sugar viewpoint. Until recent years this Council was in sharp and active conflict with the interests of the domestic beet sugar companies with respect to amendments to the Sugar Act of 1948. If plaintiff came under control of the defendant it would tend to limit the effectiveness of the plaintiff in representing the views of the American beet sugar interests.
Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687 (2 Cir. 1973), is closer to the instant case since it involved a tender offer by a conglomerate which was not a direct competitor. However, Gulf & Western's president controlled a company that was a direct competitor of A & P, 476 F.2d at 690-91, and the atmosphere of horizontal integration hung heavily over the case despite Gulf & Western's attempt to dispel it. Moreover, apart from the fact that the court found "a probability of A & P's success on the merits on its claims of securities law violations," 476 F.2d at 697, whereas the district judge here correctly found the contrary with respect to MP's securities claims, the court stressed A & P's allegations of vertical market foreclosure, with the potential exclusion of suppliers of upwards of $100 million of goods per year, 476 F.2d at 691; to the extent that Gulf & Western would supplant these with affiliates selling at higher prices, the possibility of damage was real.*fn35
The judge here did not find in so many words that the balance of hardships tipped "decidedly" toward MP -- perhaps because he considered it had shown a probability of success. However, he did find "that harmful practical effects on Missouri Portland and its shareholders would result if the tender offer were allowed to proceed, whereas the termination has inconsequential effects as to Cargill."
The harmful effects found with respect to MP were as follows:
(1) "Serious disruption to Missouri Portland's personnel would result from having Cargill as a substantial owner pending the trial."
(2) "Long-range planning and hiring would be significantly impaired."
(3) "The returning of shares to the market and the unscrambling of the assets would present substantial difficulties and might well result in serious harm to Missouri Portland and its shareholders."
To these we should add a fourth, mentioned in the Gulf & Western case, the possibility that MP might sustain expense in defending or suffer damages from claims in actions under the antitrust laws, 476 F.2d at 698.
Most of these items are rather unimpressive as applied to this case. Apart from the fact that the two points in item (3) are internally inconsistent, difficulty in "unscrambling" the assets could readily be met by a temporary injunction against their being scrambled, cf. FTC v. PepsiCo., Inc., 477 F.2d 24 (2 Cir. 1973). It is highly unlikely that Cargill, if ultimately ordered to divest itself of its MP shares, would find no way to dispose of them other than to dump them on the market at great loss to itself; moreover, the risk of an uncoordinated divestiture effort might well be greater in Cargill's current minority position than it would be if Cargill acquired control. Finally, MP has already made plans for a 40% expansion, in which Cargill apparently concurs; the record contains nothing specific about what interference in planning would occur. Here again it must be emphasized that, in contrast to a case where the acquirer is a competitor of the target company, Cargill would have no interest other than the promotion of MP's welfare.
The argument about disruption of the morale of personnel, which has become standard in take-over cases, has a peculiarly hollow ring in this one. A principal motive for Cargill's desire to enter the cement industry by acquiring an established company was its own lack of know-how and the difficulty of obtaining qualified people; there has been no hurling of pejorative epithets about MP's management and expression of the desire to move in another "team" such as were present with respect to A & P; see 476 F.2d at 696-97.*fn36 Furthermore MP's executives had taken extraordinary precautions to protect themselves. Within a few hours after learning of Cargill's impending offer, the chairman of MP had his board approve a seven-year employment contract at $118,000 a year;*fn37 earlier in December the chairman had signed contracts, similar except for amount, with all the other officers. Possible liability for the expense of or damages in antitrust litigation could be guarded against by an injunction requiring Cargill to indemnify MP for any such exposure pending a determination of legality or compliance with an order of divestiture.
Just as we believe the district court exaggerated the hardship to MP in allowing the tender offer to proceed, we think it minimized the hardship to Cargill in enjoining it. The court characterized this as merely "inconvenience and financial loss of what would amount to processing a new tender offer." Such a characterization might be apt if the claim were simply that Cargill had violated § 14(d) and (e) of the Securities Exchange Act, where needed correction could speedily be made. As was clear from the context, that was what we meant in saying "the application for a preliminary injunction is the time when relief can best be given," Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947 (2 Cir. 1969). But the characterization is quite unrealistic when the temporary injunction will continue in force until the trial and decision of a complicated antitrust case before a busy district judge, with MP having the strongest motivation for foot-dragging. Cargill tells us that MP "has proposed a very extensive discovery procedure involving demands for literally tens of thousands of documents" and examination of a large number of Cargill witnesses, whereas MP "has not in almost four months turned over to Cargill a single sheet of paper to support the figures" concerning the four markets which were the cornerstone of the court's decision "despite numerous formal and informal requests to produce documents relating to market shares in any market" served by MP. Experience seems to demonstrate that just as the grant of a temporary injunction in a Government antitrust suit is likely to spell the doom of an agreed merger, the grant of a temporary injunction on antitrust grounds at the behest of a target company spells the almost certain doom of a tender offer. See Target Company Defensive Tactics Under Section 7 of the Clayton Act, 4 Connecticut L. Rev. 352, 387-88 & n. 169 (1971).*fn38
So far as the private interests are concerned, we therefore do not find the balance tipping "decidedly" or, indeed, at all, in MP's favor. Judge Hincks wrote in the opinion we approved in the Hamilton-Benrus case that "right thinking suggests a distinction between the private harm constituting the irreparable damage which is the primary concern of Section 16, and the lessening of competition in the relevant 'line of commerce' which constitutes the public harm with which Section 7 is primarily concerned," 114 F. Supp. at 317. With respect to public harm a target company must demonstrate a probability of success which, as previously held, MP did not do here.
Endeavoring to probe the intention of the framers of the Celler-Kefauver amendment to § 7 of the Clayton Act as best we can, we do not think they meant to endow incumbent management of a target company with the power to block free trade in its securities unless the anti-trust violation was fairly clear or the potential damage to the corporation decisively outweighed that to the would-be acquirer.*fn39 Under that test the injunction was wrongly issued.
Both MP and Cargill complain that the other committed violations of the Williams Act, 15 U.S.C. § 14(d), (e) and other securities laws in the course of publicizing and opposing the tender offer. Shortly after the announcement of its offer on December 19, 1973, Cargill placed advertisements in various newspapers describing the terms of the offer. Cargill promised to pay the $30 per share offer price as soon as practicable after tender but not prior to December 28, 1973. The letter of transmittal provided that Cargill was not to be required to purchase shares before the time of payment if there had occurred any of the three conditions listed in the margin.*fn40 Cargill announced that it intended to acquire control of MP and operate it as a subsidiary or, under certain conditions, to merge MP into Cargill.
MP responded with a letter of December 21 cautioning stockholders against hasty acceptance of Cargill's offer pending further word from management. In a subsequent letter dated December 26, MP advised its shareholders of a 25% stock dividend payable on January 15, 1974, to stockholders of record on January 7. The letter also announced the usual 40 cent dividend, payable on March 15, 1974, to stockholders of record on February 20, 1974.*fn41
In its complaint, MP alleged that Cargill had committed seven independent securities law violations for misrepresentations and failures to disclose material information in its Offer to Purchase and the accompanying Form 13(d), which was submitted to the SEC.*fn42 The district court held that Cargill committed none of the alleged violations. On this appeal, MP presses only two of its securities law claims. These are that Cargill did not adequately disclose its future plans with respect to MP, and that Cargill did not disclose the possibility that its acquisition of MP would constitute an antitrust violation. We sustain the district judge.
After describing Cargill's plan to acquire control of, or possibly to merge MP, the offer stated:
Except as described above, the Purchaser does not have any plan or proposal to liquidate Missouri, to sell its assets or to merge it with any other person, nor does the Purchaser at this time plan or propose any changes in the business of Missouri since the Purchaser wishes to review the situation in the light of circumstances prevailing if and when it acquires control of Missouri and at this time it reserves the right to make such changes as it deems in the best interest of Missouri's business.
The regulations under § 14(d) require a tender offer to state or summarize the information required by Schedule 13D. Item 4 of Schedule 13D requires the prospective purchaser to:
State the purpose or purposes of the purchase or proposed purchase of securities of the issuer. If the purpose or one of the purposes of the purchase or proposed purchase is to acquire control of the business of the issuer, describe any plans or proposals which the purchasers may have to liquidate the issuer, to sell its assets or to merge it with any other persons, or to make any other major change in its business or corporate structure, including, if the issuer is a registered closed-end investment company, any plans or proposals to make any changes in its investment policy for which a vote would be required by section 13 of the Investment Company Act of 1940.
"Change" is hardly an apt word to require disclosure of an intention to expand the acquired company or even to expand it substantially if conditions warrant. MP makes much of a letter from the head of the Salt Group to the cement consultant retained in February 1973 requesting the consultant to include in his study the development of a 20-year plan "which would ultimately lead Cargill to become the tenth largest cement company in ten years, the fifth largest in fifteen years, and largest in twenty years." But there is no evidence that any such plan was developed, much less adopted, or that the statement in the offer was anything but the truth. Until Cargill had decided how much it should seek to expand MP's business and by what method of financing,*fn43 it would be impracticable to give the stockholders any meaningful information. As said in Susquehanna Corp. v. Pan American Sulphur Co., 423 F.2d 1075, 1085-86 (5 Cir. 1970):
Though the offeror has an obligation fairly to disclose its plan in the event of a takeover, it is not required to make predictions of future behavior, however tentatively phrased, which may cause the offeree or the public investor to rely on them unjustifiably. . . . Target companies must not be provided the opportunity to use the future plans provisions as a tool for dilatory litigation.
See also Electronic Specialty Co. v. International Controls Corp., supra, 409 F.2d at 948; Note, The Courts and the Williams Act: Try a Little Tenderness, 48 N.Y.U.L. Rev. 991, 1001-02 (1973).
Relying on Gulf & Western Industries, supra, 476 F.2d at 697, and Elco Corp. v. Microdot Inc., 360 F. Supp. 741, 747-53 (D. Del. 1973), MP next claims the tender was false and misleading in not disclosing the possibility or, as MP would have it, the probability that Cargill's tender offer would embroil MP in an antitrust law violation. Judge Stewart distinguished the cases in a passage we quote in the margin.*fn44 We agree with his analysis; indeed, we go further since we think that under the circumstances it would have been reasonable for Cargill's management to conclude that no antitrust obstacles actually existed. Courts should tread lightly in imposing a duty of self-flagellation on offerors with respect to matters that are known as well, or almost as well, to the target company;*fn45 some issues concerning a contested tender offer can safely be left for the latter's riposte. Of course, if the FTC should issue a complaint with respect to Cargill's acquisition of MP, as we are told its staff has recommended, a renewed tender offer should disclose that fact, with whatever reasonable comments Cargill may choose to make about it.
In its answer, dated January 2, 1974, Cargill counter-claimed for injunctive relief on the basis of eight alleged securities law violations committed by MP.*fn46 The district court rejected all but one of Cargill's claims, which is discussed in part VII, infra. Cargill here contends that the court erred in dismissing four of its claims of misrepresentations and omissions in MP's communications to stockholders.
One of the omissions that Cargill protests is MP's failure to advise its stockholders about the employment contract with its chairman discussed above. While such a disclosure might have led some MP stockholders to question the selfless devotion to the stockholders' interest professed by management,*fn47 we cannot believe it was sufficiently material to affect the tender decision. The other omission concerned MP's actions in purchasing its own securities. Although MP repeatedly told stockholders that its stock was worth more than the $30 per share which Cargill had offered, it had made this an upper limit in authorizing Smith Barney & Co. to purchase stock on the market to satisfy MP's obligations under management stock option plans. The judge properly rejected this claim. MP's price ceiling was in no way inconsistent with its insistence that the company's stock was worth substantially more than $30 per share. To the contrary, corporations purchase stock in the market (rather than issue new stock) for use in meeting stock option plans only when they regard the price as depressed.
Cargill complained also that MP was guilty of misrepresentation when it cautioned shareholders that if they sold their shares or tendered them to Cargill during the term of the offer, they would lose the 25% stock distribution to shareholders of record on February 7, 1974. It argues that the value of the distribution lay in the declaration of the usual 40 cents dividend on the increased number of shares which, as a practical matter, was no different than a 25% increase in the dividend, and that the effect of this action would be reflected in appreciation of the market price, which indeed occurred after the announcement. However, MP's statement was literally true and here again we are not disposed to require parties to a tender fight to conform to standards of sterilization that might be appropriate in other contexts. See Electronic Specialty Co. v. International Controls Corp., supra, 409 F.2d at 948.
A further complaint concerns a warning by MP that tendering stockholders might be "locked in" until February 17. MP's statement was based on three provisions of the offer. One was that
Shares tendered may be withdrawn until 5:00 P.M. New York Time, on December 27, 1973, and unless theretofore purchased by the Purchaser, may also be withdrawn after February 17, 1974. Except as stated in this Section, tenders are irrevocable.
A second is paragraph 7 quoted in footnote 40 above. Cargill claims that these two provisions, which literally support MP's warning, were overridden by two sentences in paragraph 3 of the Offer to Purchase. One reads:
Payment for all Shares duly tendered and purchased pursuant to this Offer for which certificates have been deposited with the Depository will be made by the Depository as promptly as practicable but not prior to December 28, 1973.
The other reads:
If any tendered shares are not purchased (see Sections 7 and 11 below), certificates for such Shares will be returned without expense to the tendering stockholder as promptly as practicable.
Cargill adds that in fact it paid for all tendered stock despite the occurrence of two of the conditions listed in Section 7. While Cargill may well be right in its reading that Section 7 simply gave it an option not to purchase but did not relieve it of the duty of prompt return, the wording was sufficiently confusing that we cannot fault the district court for refusing to find MP guilty of a violation; here again, some weight should be given to the ease with which the opposing party could have set the matter straight. On a new offer, of course, Cargill can make all this entirely plain.
The most serious battle over the alleged Williams Act violations concerns the one charge the district court did sustain. In a January 2 letter to stockholders and a January 3 advertisement in the Wall Street Journal, MP said:
This is Cargill's first bid. Cargill has indicated that it would like to acquire all of Missouri Portland's outstanding Common Stock. If Cargill does not get all of the Missouri Portland stock it seeks, you should ask yourself whether Cargill is likely to buy additional shares at a price higher than $30 per share -- either in the open market or by raising its tender price. Cargill has reserved the right to do just this in its tender offer.
The court found this misleading since the offer provided and § 14(d) (7) required that the benefit of any improvement during the course of the offer should extend to tenderers whose stock had already been purchased. Because of this the district judge ordered that, in the event this court permitted renewal of Cargill's offer, MP should submit all defense material to him for advance approval. MP says that its reference was to a higher price in a new offer and that in any event the remedy is too severe.
The warning is certainly capable of the construction that an increase in price during the offer, or more likely, an extension since the offer was about to expire, would not inure to the benefit of those who had already tendered. As such, it would be seriously misleading. How far the structures of § 14(d) (7) can be avoided by allowing an offer to expire and then making a better one is an issue as yet undecided. See Aranow & Einhorn, Tender Offers for Corporate Control 135-37 (1973).*fn48 The court was thus fully warranted in finding a violation here. But we agree with MP that the remedy was too severe. An injunction against such a warning without apprising stockholders of the terms of the offer and the requirements of the statute concerning an improvement in price during the offer should suffice.
We therefore reverse the grant of a temporary injunction on the basis of the antitrust claims and remand for the framing of a temporary injunction which will allow a resumption of the offer pending final determination of the antitrust issues under terms and conditions consistent with Part III of this opinion. We reverse the injunction against MP on the basis of the warning as to an increase in price for reformulation of the conditions in accordance with Part VII of this opinion. We affirm the court's other dispositions of claims under the Securities Exchange Act. Cargill may recover three-quarters of its costs.
Reversed, with instructions to issue a modified injunction.