United States v. Morgan

11 F.R.D. 445, 1951 U.S. Dist. LEXIS 3662

• Court: District Court, S.D. New York
• Decided: April 9, 1951
• Docket: Civ. No. 43-757
• Status: Published

Opinion

MEDINA, District Judge.

This civil action in equity is brought by the United States against seventeen investment banking firms and the Investment Bankers Association of America under Sections 1, 2 and 4 of the Sherman Antitrust Act (15 U.S.C. Secs. 1, 2, 4). The charge is not made against the industry as a whole.

On February 13, 1948, I was designated by Honorable John C. Knox, now the Chief Judge but then-Senior District Judge of this Court, to preside at the trial, to hear and determine all motions and to supervise all pre-trial procedures in this case.

Prior to the filing of my Memorandum of May 25, 1950, twenty-seven (27) pretrial hearings had been held; procedures of the most elaborate character were adopted .for the purpose of facilitating the authentication and printing of many thousands of documents. The basic data relative to all but a small proportion of the security issues brought out in the United States in the period from 1935 to 1949 were stipulated; and many months were consumed in the preparation, under the supervision of the Court, of a large number of admissions and answers to interrogatories. Every effort was made completely to remove from the case every element of surprise which might serve to confuse and delay the trial. A fairly complete statement of these early pre-trial procedures is set forth in the said Memorandum of May 25, 1950; and the coopération of each and every one of the lawyers representing the respective parties, which is commented upon in said Memorandum, has been a conspicuous feature of what has since been accomplished to clear the decks for the trial.

Despite the thousands of pages of discussion and argument and the very substantial amount of study and reading during the period when the twenty-seven (27) pretrial hearings above referred to were being conducted, it was evident to me, as I approached the opening of the trial that, despite the fact that it seemed to me that the complaint clearly stated a cause of action or claim for relief, setting forth the nature of the conspiracy, restraint and monopolization therein charged and asserting an integration of the very large number of separate but allegedly inter-related phases of the charge, I was wholly without a sufficient understanding of the issues and the law applicable thereto, to be qualified to take the further steps necessary for the conduct of an orderly trial and the building up of a record of manageable proportions.

Pre-Trial Order No. 2, 10 F.R.D. 240, contained the following direction:

. (8) That sixty (60) days in advance of October 9, 1950, plaintiff shall furnish defendants with a list describing by number all documents which plaintiff intends to offer in support -of its affirmative case on the merits and arranging such document numbers in an organized manner in accordance with plaintiff’s theory of its case.

Such a list was furnished on September 15, 1950 and supplemented on November 3, 1950. The delay in furnishing the first list was authorized by the Court, with the consent of all parties. These two lists, entitled respectively “Notice and Memorandum Listing Documents to be Offered in Support of Plaintiff's Affirmative Case” and “Notice and Supplemental Memorandum Listing Documents to be Offered in Support of Plaintiff’s Affirmative Case”, listed over four thousand (4,000) documents arranged “in an organized manner” as I directed. Evidently through inadvertence the supplemental list was served after the time provided in the Pre-Trial Order No. 2 without any application to the Court for permission to do so. I have overlooked this as is shown by the provisions of the annexed Pre-Trial Order No. 3 relating to this matter, but it is worthy of note that pre-trial procedures so indispensable in complicated cases of this nature will be of little value if the provisions of such orders are to be treated as' merely preliminary and advisory and to be disregarded with impunity.

In any event the number of documents to be offered as part of plaintiffs case was thus reduced from an estimated ten thousand, six hundred forty (10,640) or more to approximately four thousand (4,000).

By way of further preliminaries to the commencement of the- trial, there was served by the government a trial brief, Part I of which, containing some 458 pages, was devoted to a Summary and Analysis of Facts, and Part II, containing 81 pages, devoted to the Applicable Law. These were supplemented by a further brief of 609 pages entitled “Appendix B, Part I, Traditional Banker Charts” and another of 143 pages of tabulated data entitled “Appendix- B, Part II, Historical Position Charts.” Defendants filed a joint “Preliminary Memorandum” for the Court of 117 pages.

Had I permitted the usual brief and formal opening statements, I do not see how I could have exercised any intelligent control over the trial. In any event, I encouraged counsel for both sides to indulge in a very wide latitude in presenting their respective versions of the facts and the law. The first opening statement began on November 28, 1950. The openings in all consumed sixty-six (66) days of the time of the Court; fourteen (14) counsel were heard, three (3) on behalf of the plaintiff and eleven (11) on behalf of various defendants; in all the openings and various colloquies between the Court and counsel and between the various counsel made a record of some five thousand, four hundred fifty-three (5,453) pages.

Despite the magnitude of the record thus made, it is my judgment that not a moment of this time was wasted. It soon became apparent to me that a further pre-trial order was absolutely indispensable; and I accordingly announced that the openings would be treated by me as combined openings and pre-trial hearings; and counsel for all parties proceeded without objection to the adoption of this procedure.

It soon became evident that many of the charges of price fixing had to do generally with the syndicate method of underwriting and placing securities in the hands of investors, institutional and otherwise. De-

spite the .insistence of counsel for the plaintiff that it was not attacking the syndicate method as such, there could be little doubt that if the plaintiff’s contentions on the law were sound, every underwritten security issue brought out -by the syndicate method for some thirty-five (35) years or more in the United States constituted an illegal conspiracy, combination or agreement in violation of the Sherman Act. While the openings indicated that there was a great difference in the makeup of the many different types of syndicate agreements in use by investment bankers, hardly any of them could be free from one or another of the infirmities alleged, should the plaintiff’s view of the law be sustained. Accordingly, I directed that there' be filed and there were filed briefs discussing at great length the law points thus raised. I shall endeavor to complete my research on this phase of the case and to form a tentative judgment on the applicable law prior to the taking of testimony which, as provided in the annexed Pre-Trial Order No. 3, is set for April 30, 1951.

It is worthy of note that no adjudication is sought by plaintiff relative to the legality of the so-called price fixing features of the syndicate method generally. Should it be found as a fact that there was no over-all combination, agreement or conspiracy such as is alleged, it is evidently contemplated by plaintiff that these intricate legal points be permitted to remain in nubibus. In other words, the relevancy of the so-called price fixing features of the syndicate method to the case is-solely for their bearing on the nature and extent of the combination, agreement or conspiracy charged, if any such combination, agreement or conspiracy be found, and perhaps for their bearing on the question of purpose and intent. In any event, it seemed to me to be imperative that I give this matter careful study prior to the taking of any evidence in the case.

Many areas of factual and legal controversy were clearly delineated as the openings of counsel progressed.

Numerous obscurities were clarified and as a result several motions for leave to amend the complaint were made and these were granted, without opposition. Except in the case of the withdrawal of one of the minor charges and the abandonment or curtailment of certain other subject matters treated in the briefs submitted on behalf of plaintiff, the text of the amended paragraphs of the complaint are contained in the annexed Pre-Trial Order No. 3.

The unifying elements of the conspiracy, about which there was seemingly endless discussion in the course of the openings of counsel, still remain obscure to me. The conspiracy as alleged in the complaint is a single over-all conspiracy, charged generally against “the defendants” and covering the period from 1915 to the date of the filing of the complaint on October 30, 1947.

What has puzzled me from the outset has been the manner in which the plaintiff proposes to prove that the several firms constituting “the defendants” acted jointly in this matter. Despite the references to testimony and documents to be produced and the prolonged discussion pro and con, I am still in the dark as to what will constitute the unifying element or other nexus which is to place these defendants, perhaps with a few investment banking firms more or less, in a conspiracy or combination to restrain or exclude the competition of the rest of the investment bankers and to monopolize the business or any part thereof to the detriment of such other investment bankers.

I am assured, however, that when the proofs are in and I see the picture as a whole, the mosaic as it is.called, with all the separate pieces put together, the conspiracy by these defendants will be clear.

However, except insofar as they produced evidence of some sort which is independently admissible before me now, the numerous investigations by Committees of the Congress or others, including that before a Grand Jury of this Court which filed no indictment, are and can be of no probative significance, and can form no part of the so-called mosaic.

It is obviously my duty to keep the defendants. in mind as separate entities until the plaintiff sustains the burden of proving the alleged combination and conspiracy. One of the most difficult things in a trial covering so long a period Of time and such a multiplicity of separate transactions is to keep clearly in mind the independent proof which is said to establish the conspiracy and the multitude of other bits of evidence, documentary and otherwise, which are admissible only in the event that the conspiracy or combination is proved and the necessary connection thus made.

Had I 'been able to discern the unifying principle or connection, I should have been content to receive the proofs in the usual way and then, in connection with the motions to dismiss and argument thereon at the close of the plaintiff’s case, to do my •best to make the necessary determinations with reference to each of the defendants.

Because of the situation which I have just described I have hit upon an expedient, described in the annexed Pre-Trial Order No. 3 which will in no way hamper the plaintiff in the introduction of its evidence, but will serve to clarify the state of the proof before I hear and determine the motions to dismiss.

Declarations of alleged co-conspirators made in furtherance of the objects of the alleged conspiracy will be received subject to connection and subject to a motion to strike. At the conclusion of the government’s case-in-chief, argument on the motion to strike will be heard and at that time the burden will be upon the government to show a prima, facie case of combination as alleged against each defendant from evidence “aliwide.”

I have adopted this procedure because of the unusually complicated and involved factual issues presented, because of the scope of the charges, because of the number of defendants and because of the absence of any readily apparent or explicable “unifying element” or elements whereby the alleged co-conspirators may be brought together into a unit. This apparent absence of what I have called a “unifying element” makes the factual issue of conspiracy or agreement one of the most crucial and complex in the case, and distinguishes this case, insofar as problems of proof are concerned, from every other anti-trust case which has been brought to my attention.

For example, in Interstate Circuit v. United States, 1939, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610, there was, as the basis of the conspiracy charge, a letter from the principal defendant to eight distributors of motion pictures, all of whom were named as addressees, and each of whom received identical copies. The letter made certain proposals, and the eight distributors took identical action in response thereto.

In Fashion Originators Guild v. Federal Trade Commission, 1941, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949, there was a trade organization which concededly represented its members and administered an agreement among them.

In United States v. Masonite Corp., 1942, 316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461, there were a series of identical agreements between a patentee and various of its competitors granting those competitors licenses under a patent. Each competitor was aware of the existence of the other identical licenses.

In American Tobacco Co. v. United States, 1946, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575, the three leading cigarette manufacturers were the defendants; each of the “Big Three” refused to purchase tobacco at a tobacco market unless the others were represented at that market; new markets accordingly could not be established without unanimous consent of the “Big Three”, after consultation among them; grades of tobacco were established, representing insignificant differences in quality, and maximum prices for such grades agreed upon; each of the “Big Three” were, in effect, allocated grades of tobacco which the others did not seriously intend to purchase; nevertheless the prices for such grades were bid up to the maximum so that each paid the same price for whichever grade of tobacco he purchased. On the selling end, each of the “Big Three” pursued uniform price policies over a period of years,'with simultaneous and identical price increases and decreases. These policies were designed, in part at least, to eliminate the competition of certain manufacturers of lower-priced cig--arettes.

United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746, involved the same type of “unifying ele-' ment” as did the Masonite and Interstate Circuit cases.

In United States v. Paramount Pictures, 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, there was industry-wide uniformity of action among the eight distributors of motion pictures in the establishment and maintenance of minimum exhibition prices, and in other ways and for other purposes.

The government has been unable to point to any similar unifying element in this case. It does not claim the existence of any document or series of documents which will tie the 17 defendant firms together, as in the Interstate Circuit, Masonite and Gypsum cases. No trade association conducts the allegedly illegal practices, as in the Fashion Originators Guild case. The defendants, on the face of the openings alone, do not seem to be the equivalent of the “Big Three” in the American Tobacco case, since there appear to be many non-defendants who are larger, have more capital, and do more business than some of the defendants. The defendants’ agreement is allegedly intended to exclude from the business those who are “non-defendants”, but the latter category seemingly is composed only of those investment bankers who have not been named as defendants in this action, and does not indicate any factual unifying element, as did the attempted exclusion of ten-cent cigarette manufacturers in the American Tobacco case. Moreover, it is not clear which non-defendants are claimed to be co-conspirators, and which were the victims of the conspiracy.

This is not an industry-wide conspiracy, as in the Paramount case, and, finally, the uniformity of action which forms the basis of the Paramount and American Tobacco decisions is not, in this case, a uniformity among all seventeen of the defendants as to each alleged practice: the term “the defendants”, when used during the openings, has apparently been intended and understood to mean “some of the defendants.” I have attempted to eliminate from the trial, by one of the provisions of the annexed Pre-Trial Order No. 3, this fruitful source of confusion and endless argument and discussion.

I do not wish to be understood as suggesting that absent a “unifying element” such as I have described, and such as ha!s been found in prior anti-trust cases, there can be no agreement or conspiracy. But I do feel that absent such a unifying element a Court should proceed cautiously in allowing the statements of alleged co-conspirators to be used against a defendant. Cf. Krulewitch v. United States, 1949, 336 U.S. 440, 445, 69. S.Ct. 716, 93 L.Ed. 790 (concurring opinion). At the same time, I do not wish to prejudice the government or prevent it from fairly presenting its evidence, or unduly to complicate the mechanics of the trial. The procedure which I have described above seems to me appropriate in this case to keep the burden of proof where it belongs, and at the same time, facilitate orderly procedure and consideration of all the admissible evidence which the government desires to submit.