United States v. E. I. Du Pont De Nemours & Co.

366 U.S. 316, 81 S. Ct. 1243, 6 L. Ed. 2d 318, 1961 U.S. LEXIS 2146

Opinions

Mr. Justice Brennan

delivered the opinion of the Court.

The United States filed this action in 1949 in the District Court for the Northern District of Illinois. The complaint alleged that the ownership and use by appellee E. I. du Pont de Nemours & Co. of approximately 23 percent of the voting common stock of appellee General Motors Corporation was a violation of sections 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1, 2, and of section 7 of the Clayton Act, 15 U. S. C. § 18. After trial, the District Court dismissed the complaint. 126 F. Supp. 235 (D. C. N. D. Ill. 1954). On the Government’s appeal, we reversed. We held that du Pont’s acquisition of the 23 percent of General Motors stock had led to the insulation from free competition of most of the General Motors market in automobile finishes and fabrics, with the resultant likelihood, at the time of suit, of the creation of a monopoly of a line of commerce, and, accordingly, that du Pont had violated § 7 of the Clayton Act. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586 (1957).¹ We did not, however, determine what equitable relief was necessary in the public interest. Instead, we observed that “[t]he District Courts . . . are clothed 'with large discretion to model their judgments to fit the exigencies of the particular case.’ International Salt Co. v. United States, 332 U. S. 392, 400-401,” and remanded the cause to the District Court “for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute.” 353 U. S., at 607-608.

On remand, the District Court invited the Government to submit a plan of relief which in its opinion would be effective to remedy the violation. The court also appointed two amici curiae to represent the interests of General Motors and du Pont shareholders, respectively, most of whom, of course, had not been made parties to this litigation. The Government submitted a proposed plan of relief. That plan included diverse forms of injunctive relief, but its principal feature was a requirement that within 10 years the du Pont company completely divest itself of its approximately 63 million General Motors shares. The Government proposed that about two-thirds of these shares be distributed pro rata to the generality of du Pont shareholders in the form of dividends over the 10-year period. The other one-third of du Pont’s General Motors holdings — stock which would have gone to appellées Christiana Securities Company and Delaware Realty and Investment Company, holding companies long identified with the du Pont family itself — were to go to a court-appointed trustee, to be sold gradually over the same 10-year period. Du Pont objected that the Government’s plan of complete divestiture entailed harsh income-tax consequences for du Pont stockholders and, if adopted, would also threaten seriously to depress the market value of du Pont and General Motors stock. Du Pont therefore proposed its own plan designed to avoid these results. The salient feature of its plan was substitution for the Government’s proposed complete divestiture of a plan for partial divestiture in the form of a so-called “pass through” of voting rights, whereby du Pont would retain all attributes of ownership of the General Motors stock, including the right to receive dividends and a share of assets on liquidation, except the right to vote. The vote was to be “passed through” to du. Pont’s shareholders proportionally to their holdings of du Pont’s own shares, except that Christiana and Delaware would “pass through” the votes allocable to them to their own shareholders. The amici curiae also proposed plans of compliance, substantially equivalent to the du Pont plan. The amicus representing the generality of du Pont shareholders proposed in addition a program of so-called “take-downs,” by which du Pont shareholders would be allowed to exchange their du Pont common stock for a new class of du Pont “Special Common,” plus their pro rata share of du Pont-held General Motors common stock.

The District Court held several weeks of hearings. The evidence taken at the hearings, largely of expert witnesses, fills some 3,000 pages in the record before us, and, together with the numerous financial charts and tables received as exhibits, bears mainly not on the competition-restoring effect of the several proposals, but rather on which proposal would have the more, and which the less, serious tax and market consequences for the owners of the du Pont and General Motors stock. The District Court concluded that although “. . . there is no need for the Court to resolve the conflict in the evidence as to how severe those consequences would be[, t]he Court is persuaded beyond any doubt that a judgment of the kind proposed by the Government would have very serious adverse consequences.” 177 F. Supp. 1, 42 (D. C. N. D. Ill. 1959). The court for this reason rejected the Government’s plan and adopted the du Pont proposal, with some significant modifications. The “pass through” of voting rights, for example, was so limited that neither Christiana, Delaware, nor their officers and directors (plus resident members of the latter’s families), should be able to vote any of the du Pont-held General Motors stock; General Motors shares allocable to the two companies or to their officers and directors, or to the officers and directors of du Pont, or to resident members of the families of the officers and directors of the several companies, were to be sterilized, voted by no one. Du Pont, Christiana, and Delaware were forbidden to acquire any additional General Motors stock. Du Pont and General Motors might not have any preferential or discriminatory trade relations or contracts with each other. No officer or director of du Pont, Christiana, or Delaware might also serve as an officer or director of General Motors. Nor might du Pont, Christiana, or Delaware nominate or propose any person to be a General Motors officer or director, or seek in any way to influence the choice of persons to fill those posts. The Government objected that without a provision ordering complete divestiture the decree, although otherwise satisfactory, was inadequate to redress the antitrust violation, and filed its appeal here under § 2 of the Expediting Act, 15 U. S. C. § 29. We noted probable jurisdiction. 362 U. S. 986 (1960).

A threshold question — and one which, although subsidiary, is most important — concerns the scope of our review of the District Court’s discharge of the duty delegated by our judgment to formulate a decree. In our former opinion we alluded to the “large discretion” of the District Courts in matters of remedy in antitrust cases. Many opinions of the Court in such cases observe that “[t]he formulation of decrees is largely left to the discretion of the trial court . . . ,” Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 473 (1960); “[i]n framing relief in antitrust cases, a range of discretion rests with the trial judge,” Besser Mfg. Co. v. United States, 343 U. S. 444, 449 (1952); “[t]he determination of the scope of the decree to accomplish its purpose is peculiarly the responsibility of the trial court,” United States v. United States Gypsum Co., 340 U. S. 76, 89 (1950); “[t]he framing of decrees should take place in the District rather than in Appellate Courts,” International Salt Co. v. United States, 332 U. S. 392, 400 (1947). The Court has on occasion said that decrees will be upheld in the absence of a showing of an abuse of discretion. See, e. g., Maryland & Virginia Milk Producers Assn. v. United States, supra, p. 473; United States v. W. T. Grant Co., 345 U. S. 629, 634 (1953); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951);² United States v. National Lead Co., 332 U. S. 319, 334-335 (1947); United States v. Crescent Amusement Co., 323 U. S. 173, 185 (1944).³ These expressions are not, however, to be understood to imply a narrow review here of the remedies fashioned by the District Courts in antitrust cases. On the contrary, our practice, particularly in cases of a direct appeal from the decree of a single judge, is to examine the District Court’s action closely to satisfy ourselves that the relief is effective to redress the antitrust violation proved. “The relief granted by a trial court in an antitrust case and brought here on direct appeal, thus by-passing the usual appellate review, has always had the most careful scrutiny of this Court. Though the records are usually most voluminous and their review exceedingly burdensome, we have painstakingly undertaken it to make certain that justice has been done.” International Boxing Club v. United States, 358 U. S. 242, 253 (1959); see also id., at 263 (dissenting opinion). We have made it clear that a decree formulated by a District Court is not “subject only to reversal for gross abuse. Rather we have felt an obligation to intervene in this most significant phase of the case when we concluded there were inappropriate provisions in the decree.” United States v. United States Gypsum Co., supra, p. 89.

In sum, we assign to the District Courts the responsibility initially to fashion the remedy, but recognize that while we accord due regard and respect to the conclusion of the District Court, we have a duty ourselves to be sure that a decree is fashioned which will effectively redress proved violations of the antitrust laws. The proper disposition of antitrust cases is obviously of great public importance, and their remedial phase, more often than not, is crucial. For the suit has been a futile exercise if the Government proves a violation but fails to secure a remedy adequate to redress it. “A public interest served by such civil suits is that they effectively pry open to competition a market that has been closed by defendants’ illegal restraints. If this decree accomplishes less than that, the Government has won a lawsuit and lost a cause.” International Salt Co. v. United States, supra, p. 401.

Our practice reflects the situation created by the congressional authorization, under § 2 of the Expediting Act,⁴ of a direct appeal to this Court from the judgment of relief fashioned by a single judge. Congress has deliberately taken away the shield of intermediate appellate review by a Court of Appeals, and left with us alone the responsibility of affording the parties a review of his determination.⁵ This circumstance imposes a special burden upon us, for, as Mr. Justice Roberts said for the Court, . . it is unthinkable that Congress has entrusted the enforcement of a statute of such far-reach ing importance to the judgment of a single judge, without review of the relief granted or denied by him,” Hartford-Empire Co. v. United States, 324 U. S. 570, 571 (1945), clarifying 323 U. S. 386 (1945).

These principles alone would require our close examination of the District Court’s action. But the necessity for that examination in this case further appears in the light of additional considerations. First of all, the decree was fashioned in obedience to the judgment which we sent down to the District Court after our reversal of that court’s dismissal of the Government’s complaint. We have plenary power to determine whether our judgment was scrupulously and fully carried out. Chief Justice Taft, speaking for the Court, said in Continental Ins. Co. v. United States, 259 U. S. 156, 166 (1922), “We delegated to the District Court the duty of formulating a decree in compliance with the principles announced in our judgment of reversal, and that gives us plenary power where the compliance has been attempted and the decree in any proper way is brought to our attention to see that it follows our opinion.”⁶ Secondly, the record is concerned mainly with the alleged adverse tax and market effects of the Government’s proposal for complete divestiture. But the primary focus of inquiry, as we shall show, is upon the question of the relief required effectively to eliminate the tendency of the acquisition condemned by § 7. For it will be remembered that the violation was not actual monopoly but only a tendency towards monopoly. The required relief therefore is a remedy which reasonably assures the elimination of that tendency. Does partial divestiture in the form of the “pass through” of voting power, together with the ancillary relief, give an effective remedy, or is complete divestiture necessary to assure effective relief? Little in the record or in the District Court’s opinion is concerned with that crucial question. The findings of possible harsh consequences relied upon to justify rejection of complete divestiture are thus hardly of material assistance in reaching judgment on the central issue. If our examination persuades us that the remedy decreed leaves the public interest in the elimination of the tendency inadequately protected, we should be derelict in our duty if we did not correct the error.

Before we examine the adequacy of the relief allowed by the District Court, it is appropriate to review some general considerations concerning that most drastic, but most effective, of antitrust remedies — divestiture. The key to the whole question of an antitrust remedy is of course the discovery of measures effective to restore competition. Courts' are not authorized in civil proceedings to punish antitrust violators, and relief must not be punitive. But courts are authorized, indeed required, to decree relief effective to redress the violations, whatever the adverse effect of such a decree on private interests. Divestiture is itself an equitable remedy designed to protect the public interest. In United States v. Crescent Amusement Co., supra, where we sustained divestiture provisions against an attack similar to that successfully made below, we said, at p. 189: “It is said that these provisions are inequitable and harsh income tax wise, that they exceed any reasonable requirement for the prevention of future violations, and that they are therefore punitive. . . . Those who violate the Act may not reap the benefits of their violations and avoid an undoing of their unlawful project on the plea of hardship or inconvenience.”⁷

If the Court concludes that other measures will not be effective to redress a violation, and that complete divestiture is a necessary element of effective relief, the Government • cannot be denied the latter remedy because economic hardship, however severe, may result. Economic hardship can influence choice only as among two or more effective remedies. If the remedy chosen is not effective, it will not be saved because an effective remedy would entail harsh consequences. This proposition is not novel; it is deeply rooted in antitrust law and has never been successfully challenged.⁸ The criteria were announced in one of the earliest cases. In United States v. American Tobacco Co., 221 U. S. 106, 185 (1911), we said:

“In considering the subject . . . three dominant influences must guide our action: 1. The duty of giving complete and efficacious effect to the prohibitions of the statute; 2, the accomplishing of this result with as little injury as possible to the interest of the general public; and, 3, a proper regard for the vast interests of private property which may have become vested in many persons as a result of the acquisition either by way of stock ownership or otherwise of interests in the stock or securities of the combination without any guilty knowledge or intent in any way to become actors or participants in the wrongs which we find to have inspired and dominated the combination from the beginning.”

The Court concluded in that case that, despite the alleged hardship which would be involved, only dissolution of the combination would be effective, and therefore ordered dissolution. Plainly, if the relief is not effective, there is no occasion to consider the third criterion.

Thus, in this case, the adverse tax and market consequences which the District Court found would be concomitants of complete divestiture cannot save the remedy of partial divestiture through the “pass through” of voting rights if, though less harsh, partial divestiture is not an effective remedy. We do not think that the “pass through” is an effective remedy and believe that the Government is entitled to a decree directing complete divestiture.

It cannot be gainsaid that complete divestiture is peculiarly appropriate in cases of stock acquisitions which violate § 7.⁹ That statute is specific and “narrowly directed,”¹⁰ Standard Oil Co. v. United States, 337 U. S. 293, 312 (1949), and it outlaws a particular form of economic control—stock acquisitions which tend to create a monopoly of any line of commerce. The very words of § 7 suggest that an undoing of the acquisition is a natural remedy. Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is intercorporate combination and control,¹¹ and it is rea sonable to think immediately of the same remedy when § 7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is involved. Of the very few litigated¹² § 7 cases which have been reported, most decreed divestiture as a matter of course.¹³ Divestiture has been called the most important of antitrust remedies.¹⁴ It is simple, relatively easy to administer, and sure. It should always be in the forefront of a court’s mind when a violation of § 7 has been found.

The divestiture only of voting rights does not seem to us to be a remedy adequate to promise elimination of the tendency of du Pont’s acquisition offensive to § 7. Under the decree, two-thirds of du Pont’s holdings of General Motors stock will be voted by du Pont shareholders— upwards of 40 million shares. Common sense tells us that under this arrangement there can be little assurance of the dissolution of the intercorporate community of interest which we found to violate the law. The du Pont shareholders will ipso facto also be General Motors voters. It will be in their interest to vote in such a way as to induce General Motors to favor du Pont, the very result which we found illegal on the first appeal. It may be true, as appellees insist, that these shareholders will not exercise as much influence on General Motors as did du Pont when it held and voted the shares as a block. And it is true that there is no showing in this record that the du Pont shareholders will combine to vote together, or that their information about General Motors’ activities will be detailed enough to enable them to vote their shares as strategically as'du Pont itself has done. But these arguments misconceive the nature of this proceeding. The burden is not on the Government to show de novo that a “pass through” of the General Motors vote, like du Pont’s ownership of General Motors stock, would violate § 7. United States v. Aluminum Co. of America, 91 F. Supp. 333, 346 (D. C. S. D. N. Y. 1950). It need only appear that the decree entered leaves a substantial likelihood that the tendency towards monopoly of the acquisition condemned by § 7 has not been satisfactorily eliminated. We are not required to assume, contrary to all human experience, that du Pont’s shareholders will not vote in their own self-interest. Moreover, the General Motors management, which over the years has become accustomed to du Pont’s special relationship,¹⁵ would know that the relationship continues to a substantial degree, and might well act accordingly. The same is true of du Pont’s competitors. They might not try so vigorously to break du Pont’s hold on General Motors’ business, as if complete divestiture were ordered. And finally, the influence of the du Pont company itself would not be completely dissipated. For under the decree du Pont would have the power to sell its General Motors shares; the District Court expressly held that “[t]here would be nothing in the decree to prevent such dispositions.” 177 F. Supp., at 41. Such a sale would presumably restore the vote separated from the sold stock while du Pont owned it. This power to transfer the vote could conceivably be used to induce General Motors to favor du Pont products. In sum, the “pass through” of the vote does not promise elimination of the violation offensive to § 7. What was said of the Sherman Act in United States v. Union Pacific R. Co., 226 U. S. 470, 477 (1913), applies here: “So far as is consistent with this purpose a court of equity dealing with such combinations should conserve the property interests involved, but never in such wise as to sacrifice the object and purpose of the statute. The decree of the courts must be faithfully executed and no form of dissolution be permitted that in substance or effect amounts to restoring the combination which it was the purpose of the decree to terminate.”

Du Pont replies, inter alia, that it would be willing for all of its General Motors stock to be disenfranchised, if that would satisfy the requirement for effective relief. This suggestion, not presented to the District Court, is distinctly an afterthought. If the suggestion is disenfranchisement only while du Pont retains the stock, it would not avoid the hazards inherent in du Pont’s power to transfer the vote. If the suggestion is permanent loss of the vote, it would create a large and permanent separation of corporate ownership from control, which would not only run directly counter to accepted principles of corporate democracy, but also reduce substantially the number of voting General Motors shares, thereby making it easier for the owner of a block of shares far below an absolute majority to obtain working control, perhaps creating new antitrust problems for both General Motors and the Department of Justice in the future. And finally, we should be reluctant to effect such a drastic change in General Motors’ capital structure, established under state corporation law.

Appellees argue further that the injunctive provisions of the decree supplementary to the “pass through” of voting rights adequately remove any objections to the effectiveness of the “pass through.” Du Pont is enjoined, for example, from in any way influencing the choice of General Motors’ officers and directors, and from entering into any preferential trade relations with General Motors. And, under ¶ IX of the decree, the Government may reapply in the future should this injunctive relief prove inadequate. Presumably this provision could be used to prevent the exercise of the power to transfer the vote. But the public interest should not in this case be required to depend upon the often cumbersome and time-consuming injunctive remedy. Should a violation of one of the prohibitions be thought to occur, the Government would have the burden of initiating contempt proceedings and of proving by a preponderance of the evidence that a violation had indeed been committed.¹⁶ Such a remedy would, judging from the history of this litigation, take years to obtain. Moreover, an injunction can hardly be detailed enough to cover in advance all the many fashions in which improper influence might manifest itself. And the policing of an injunction would probably involve the courts and the Government in regulation of private affairs more deeply than the administration of a simple order of divestiture.¹⁷ We think the public is entitled to the surer, cleaner remedy of divestiture. The same result would follow even if we were in doubt. For it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor.¹⁸

We therefore direct complete divestiture. Since the District Court’s decree was framed around the provision directing only partial divestiture, and since General Motors, Christiana, and Delaware acquiesced in its provisions only on that basis, we shall not pass upon the provisions for ancillary relief but shall vacate the decree in its entirety except as to the provisions of fl"VT enjoining du Pont itself from exercising voting rights in respect of its General Motors stock. In this way the District Court will be free to fashion a new decree consistent with this opinion at a new hearing at which all parties may be heard. General Motors, Christiana, and Delaware will thus be able to renew, for the District Court’s decision in the first instance, any objections they may have to the power of the Court to grant relief against them.

We believe, however, that this already protracted litigation should be concluded as soon as possible. To that end we direct the District Court on receipt of our judgment to enter an order requiring du Pont to file within 60 days a proposed judgment providing for complete divestiture of its General Motors stock, to commence within 90 days, and to be completed within not to exceed 10 years, of the effective date of the District Court’s judgment, and requiring the Government to file, within 30 days after service upon it of du Pont’s proposed judgment, either proposed specific amendments to such du Pont judgment or a proposed alternate judgment of divestiture. The District Court shall give precedence to this cause on its calendar.

The judgment of the District Court, except to the extent ¶ VI is affirmed, is vacated and remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Clark and Mr. Justice Harlan took no part in the consideration or decision of this case.

Footnotes

1

Since a holding that the Clayton Act had been violated sufficed to dispose of the case, we did not decide whether du Pont had also violated the Sherman Act. See 353 U. S., at 588, note 5.

2

In this case, however, a majority of the Court substantially modified the District Court’s decree, in spite of expressions of deference written into the principal opinion.

3

In Crescent Amusement the Court relied in part on the fact that the district judge had initially found the violation of law. This circumstance was said to enhance the deference owed to the district judge’s determination of the measures appropriate to eliminate the violation, 323 U. S., at 185. This factor is not present in the case before us.

4

32 Stat. 823, as amended, 15 U. S. C. § 29. The purpose of this statute was to expedite determination of antitrust cases by allowing the Attorney General to obtain a special Circuit (now District) Court of several judges by filing a certificate of public importance under § 1 of the Act, 32 Stat. 823, as amended, 15 U. S. C. § 28 (no such certificate was filed in this case), and by providing for direct appeal to the Supreme Court from the decree of the trial court, whether composed of one or several judges, such appeal to be within this Court’s obligatory jurisdiction. Congress was moved by the “far-reaching importance of the cases arising under [the] antitrust laws . . . .” 36 Cong. Rec. 1679 (remarks of Senator Fairbanks, Feb. 4, 1903). See also H. R. Rep. No. 3020, 57th Cong., 2d Sess. 2 (1903).

5

In one case this elimination of the normal review by the Court of Appeals almost prevented there being any review of the District Court at all. See United States v. Aluminum Co. of America, 320 U. S. 708 (1943) (noting the absence of a quorum in this Court to hear an Expediting Act appeal from a District Court). But Congress acted to keep such an important matter from going unreviewed, see H. R. Rep. No. 1317, 78th Cong., 2d Sess. (1944), and enacted a special statute, 58 Stat. 272, 15 U. S. C. § 29, pursuant to which this Court immediately certified the case to a Circuit Court of Appeals, 322 U. S. 716 (1944), which proceeded to decide the appeal. 148 F. 2d 416 (C. A. 2d Cir. 1945). See also United States v. United States District Court, 334 U. S. 258 (1948).

6

Government counsel at the trial advised the District Court that he had no authority to suggest modes of divestiture different from the plan presented by the Government to the District Court. Appellees suggest that the Government is thus estopped from urging other modes of divestiture on this appeal. But plainly, under the rule of Continental Insurance, no stipulation by the Government could circumscribe this Court’s power to see that its mandate is carried out.

7

Bills were introduced in the Eighty-sixth Congress to ameliorate the income-tax consequences of gain on disposition of stock pursuant to orders enforcing the antitrust laws. See Hearings on S. 200 before the Senate Committee on Finance, 86th Cong., 1st Sess. (1959); Hearings on H. R. 8126 before the House Committee on Ways and Means, 86th Cong., 1st Sess. (1959); H. R. Rep. No. 1128, 86th Cong., 1st Sess. (1959).

8

See, e. g., United States v. Crescent Amusement Co., 323 U. S. 173, 189 (1944); United States v. Corn Products Refining Co., 234 F. 964, 1018 (D. C. S. D. N. Y. 1916), appeal dismissed on motion of appellant, 249 U. S. 621 (1919); United States v. E. I. du Pont de Nemours & Co., 188 F. 127, 153 (C. C. D. Del. 1911), modified, 273 F. 869 (D. C. D. Del. 1921); In re Crown Zellerbach Corp., CCH Trade Reg. Rep. 1957-1958 ¶ 26,923, at p. 36,462 (F. T. C. 1958).

9

We reject the Government’s argument that the Federal Trade Commission and other administrative agencies charged with the duty of enforcing the statute are required by § 11 of the Clayton Act to order divestiture whenever they find a violation of § 7, and that therefore courts acting under § 15 must give the same relief. Even if the administrative agencies were so limited, a question which we do not decide, Congress would not be deemed to have restricted the broad remedial powers of courts of equity without explicit language doing so in terms, or some other strong indication of intent. Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944).

10

The words were actually used of § 3 of the Clayton Act, but they are equally applicable to § 7.

11

See Northern Securities Co. v. United States, 193 U. S. 197 (1904); Standard Oil Co. v. United States, 221 U. S. 1 (1911); United States v. American Tobacco Co., 221 U. S. 106 (1911); United States v. Union Pacific R. Co., 226 U. S. 61 (1912), modified, 226 U. S. 470 (1913); United States v. Reading Co., 226 U. S. 324 (1912), modified, 228 U. S. 158 (1913); United States v. Reading Co., 253 U. S. 26 (1920), modified after remand, Continental Ins. Co. v. United States, 259 U. S. 156 (1922); United States v. Lehigh Valley R. Co., 254 U. S. 255 (1920); United States v. Southern Pacific Co., 259 U. S. 214 (1922); United States v. Crescent Amusement Co., 323 U. S. 173 (1944); Hartford-Empire Co. v. United States, 323 U. S. 386 (1945), clarified, 324 U. S. 570 (1945); United States v. National Lead Co., 332 U. S. 319 (1947); Schine Chain Theatres, Inc., v. United States, 334 U. S. 110 (1948); United States v. Paramount Pictures, Inc., 334 U. S. 131 (1948); Besser Mfg. Co. v. United States, 343 U. S. 444 (1952); International Boxing Club v. United States, 358 U. S. 242 (1959); United States v. E. I. du Pont de Nemours & Co., 188 F. 127 (C. C. D. Del. 1911), modified, 273 F. 869 (D. C. D. Del. 1921); United States v. Lake Shore & M. S. R. Co., 203 F. 295 (D. C. S. D. Ohio 1912), modified, 281 F. 1007 (D. C. S. D. Ohio 1916); United States v. International Harvester Co., 214 F. 987 (D. C. D. Minn. 1914), modification denied, 10 F. 2d 827 (D. C. D. Minn. 1926), aff’d, 274 U. S. 693 (1927); United States v. Eastman Kodak Co., 226 F. 62 (D. C. W. D. N. Y. 1915), decree entered, 230 F. 522 (D. C. W. D. N. Y. 1916), appeal dismissed on motion of appellant, 255 U. S. 578 (1921); United States v. Corn Products Refining Co., 234 F. 964 (D. C. S. D. N. Y. 1916), appeal dismissed on motion of appellant, 249 U. S. 621 (1919); United States v. Minnesota Mining & Mfg. Co., 92 F. Supp. 947 (D. C. D. Mass. 1950), modified, 96 F. Supp. 356 (D. C. D. Mass. 1951); United States v. Imperial Chemical Indus., Ltd., 100 F. Supp. 504 (D. C. S. D. N. Y. 1951), decree entered, 105 F. Supp. 215 (D. C. S. D. N. Y. 1952).

In many of these cases the courts referred to “dissolution” or “divorcement” instead of “divestiture.” These terms have traditionally been treated as to a large degree interchangeable, and we so regard them. See Hale and Hale, Market Power: Size and Shape Under the Sherman Act 370 (1958); Adams, Dissolution, Divorcement, Divestiture: the Pyrrhic Victories of Antitrust, 27 Ind. L. J. 1, note 1 (1951).

12

Appellees rely on several Clayton Act consent decrees granting relief short of divestiture, but the circumstances surrounding such negotiated agreements are so different that they cannot be persuasively cited in a litigation context.

13

See, e. g., Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458 (1960); Aluminum Co. of America v. Federal Trade Comm’n, 284 F. 401 (C. A. 3d Cir. 1922), cert. denied, 261 U. S. 616 (1923), modification denied, 299 F. 361 (C. A. 3d Cir. 1924). United States v. New England Fish Exchange, 258 F. 732 (D. C. D. Mass. 1919), modification denied, 292 F. 511 (D. C. D. Mass. 1923), on which appellees place great reliance, is not a clear exception. It is true that defendants there were allowed to retain the assets (not the stock) of one of the eight corporations whose stock they had acquired in violation of § 7. But probably acquisition of only one of those corporations’ stock would not have been illegal. The only clear exception in the courts is American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F. Supp. 387 (D. C. S. D. N. Y. 1957), aff’d on the defendant’s appeal, 259 F. 2d 524 (C. A. 2d Cir. 1958). But the authority of that case is somewhat diminished by the fact that it was brought not by the Government but by a private plaintiff, and by the absence of any discussion in the opinion of the issue of divestiture vel non. See 152 F. Supp., at 400-401 and note 16.

14

See Hale and Hale, op cit., supra, note 11, at 370.

15

For the significance of such long habit, see North American Co. v. Securities & Exchange Comm’n, 327 U. S. 686, 693 (1946); United States v. Imperial Chemical Indus., Ltd., 106 F. Supp. 215, 236-237 (D. C. S. D. N. Y. 1952); Douglas, Democracy and Finance 33 (1940).

16

United States v. Corn Products Refining Co., 234 F. 964, 1018 (D. C. S. D. N. Y. 1916), appeal dismissed on motion of appellant, 249 U. S. 621 (1919); 12 Ala. L. Rev. 214, 220-221 (1959); Note, 56 Col. L. Rev. 420, 430 (1956) (“contempt citations are a poor method of restoring competition . . .”); Berge, Some Problems in the Enforcement of the Antitrust Laws, 38 Mich. L. Rev. 462, 469 (1940).

17

See Hale and Hale, op. cit., supra, note 11, at 379.

18

United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 726 (1944); Local 167, International Brotherhood of Teamsters v. United States, 291 U. S. 293, 299 (1934). Cf. William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526, 532 (1924) (same principle applied to private litigation).