SUNKIST v. WINCKLER & SMITH CO.
Legal provision: Clayton
Argument of Herman F. Selvin
Chief Justice Earl Warren: Number 241, Sunkist Growers, Incorporated, et al., Petitioners, versus Winckler and Smith Citrus Products.
Mr. Herman F. Selvin: Mr. Chief Justice, may it please the Court.
This case is here on certiorari to the United States Court of Appeals for the Ninth Circuit to review a judgement of that court affirming on the issue of liability, a judgement in the District Court in favor of the respondents in a treble damage antitrust suit.
Certiorari was limited to one of the four questions that were presented in the petition.
The fact that will perhaps become significant if the respondents make the argument here today that I expect they will make.
That question stated very generally is whether the exemption from the antitrust laws given to agricultural cooperatives by the Capper-Volstead Act is applicable to a cooperative organized as is the Sunkist system that is to say, organized into three cooperative entities among whom are divided the functions of processing and marketing rather than is usually the case simply one cooperative entity.
To put that question in its appropriate setting and to show that the question in respect to which certiorari was granted does in fact arise on this record, something that the respondents deny a brief statement of the relevant facts, I think becomes necessary.
Some 12,000 growers of citrus fruits in the States of California and Arizona are organized into an agricultural cooperative association referred to in the trial court as the Sunkist system.
Those grower members, I might say, have on the average a productive holding of only 16 acres.
They organ -- they are organized in the first instance into local associations.
Those local associations in turn are organized into 22 district exchanges and those 22 district exchanges are the members of a nonprofit California corporation -- cooperative corporation, which is Sunkist Growers, Inc.
Sunkist Growers is the marketing agency for the fruit and the fruit products of the Sunkist Grower members.
Exchange Orange is a California corporation wholly owned by Sunkist Growers.
Its function in the Sunkist system is to process the oranges produced by the grower members of the Sunkist Cooperative; processed them into various by-products such as juice, pharmaceuticals, cattle feed.
Exchange Lemon, another California corporation, the stock in which is owned by the local associations to which I have referred and by the Grower members, performs for the lemons produced by the Sunkist Grower members, the same processing function as Exchange Orange performs in respect of the oranges.
All three of those cooperative corporations are owned, managed, controlled by Sunkist Grower members, their boards and officers consist of Sunkist Grower members only, they handle only the fruit and the products processed from the fruit produced by Sunkist Grower members.
By virtue of the corporate bylaws and by certain agreements that have been entered into between or among these three cooperatives.
The marketing and processing functions have been allocated within the organization.
As I have said, Sunkist Growers is the marketing agency.
Exchange Orange, the orange processing agency.
Exchange Lemon, the lemon processing agency.
In 1951 which is the critical year here because it is only in respect of that year that any antitrust violation was claimed in this case.
In 1951, the Sunkist Cooperatives performed what came to be called throughout the trial the six acts; the significance of which I think will become apparent at the moment when I state what the charge was against the defendants.
Those six acts consisted of these.
That during that year, Exchange Lemon processed with its facilities some oranges into some by-product presumably juice for Exchange Orange.
And similarly during that year at one time, Exchange Orange did the same thing with respect to some lemons for Exchange Lemon.
Those are two of the six acts.
In that year, Sunkist or one of the Sunkist Cooperatives entered into two processing contracts.
One with the concern called TreeSweet and later charged to be a co-conspirator by which Sunkist or Exchange Orange agreed to supply TreeSweet with a certain amount of oranges, not TreeSweet's requirements but certain amount of oranges, which TreeSweet agreed to process into single strength juice.
For which processing, TreeSweet would be paid by Sunkist its actual processing cost.
And in the same contract, TreeSweet agreed during that season in any event not later than July 20th of that -- of that seasonal year, to buy the juice that resulted from that processing contract at Sunkist list prices in effect at the time of the purchase, less certain trade discounts and allowances.
One of the allowances was a so-called advertising allowance, the juice was to be sold under the TreeSweet label so undoubtedly that designation for the allowance as a misnomer, it amounted to nothing more than an additional discount.
A similar contract was entered into with the concern called Silzle, also charged to have been a co-conspirator.
Now that makes another two of the six acts.
The fifth and another one of the six acts was that Sunkist, when requested so to do, refused to enter into such a processing contract with the respondent, Winckler and Smith Citrus Products Company.
And the sixth and final so-called act was that in 1951, the Sunkist organization set the price it would charge for its own oranges to be sold to processors for processing in the juice at $40 per ton and the allegation, and there was testimony to that effect, that at $40 per ton, a processor of single-strength juice, that is the pure juice of the orange with nothing added to it or nothing taken from it either, could not afford to pay $40 per ton and produce single-strength juice which should be sold at competitive prices during that season.
Chief Justice Earl Warren: We'll recess now.
Argument of Herman F. Selvin
Chief Justice Earl Warren: Number 241, Sunkist Growers, Incorporated, et al., Petitioners, versus Winckler & Smith Citrus Products Company et al.
Mr. Selvin you may --
Mr. Herman F. Selvin: Mr. Chief Justice --
Chief Justice Earl Warren: -- continue your argument --
Mr. Herman F. Selvin: And may it please the Court.
At the recess yesterday, I had completed a brief description of the Sunkist system and the so called six acts around which this case centers.
To that, I did only add that in the trial court, all counsel and the trial judge agreed that each of the Sunkist cooperatives met all of the requirements of the Capper-Volstead Act for whatever immunity for the antitrust laws that Act gave agricultural cooperatives.
The charge with which the defendants in this case were confronted below was of they had done the six acts in pursuance of a conspiracy to restrain and monopolize trade with the three alleged co-conspirators.
TreeSweet and Silzle, the two firms didn't were referred it yesterday and the third of the Sunkist cooperatives Exchange Lemon which although originally a defendant had been dismissed and was retained only as a co-conspirator.
The jury was told that that was the charge.
They were told further that they could find that all of the five had conspired, that none of them had conspired or that sum number less than the total had conspired.
They were told further that Sunkist -- Sunkist Growers and Exchange Orange could combine or conspire with themselves that there verdict should be for the defendants Exchange Orange and Sunkist Growers unless -- unless they found that those two defendants had conspired with TreeSweet or Silzle or the third Sunkist cooperative Exchange Lemon.
In that way the jury was given two theories of conspiracy from which to ground liability.
Chief Justice Earl Warren: Or it with each other -- or with each other Mr. Selvin?
Mr. Herman F. Selvin: That -- that was not added.
Chief Justice Earl Warren: (Voice Overlap)
Mr. Herman F. Selvin: -- it was in the (Inaudible) that they conspired with --
Chief Justice Earl Warren: With others?
Mr. Herman F. Selvin: -- with the others or anyone of the other three --
Chief Justice Earl Warren: Yes.
Justice Felix Frankfurter: [Inaudible] as I can summarize as [Inaudible] stated, the jury would tell that all the cooperatives could conspire with each other, is that right?
Chief Justice Earl Warren: They were told that the two defendant cooperatives just could conspire with each other --
Justice Felix Frankfurter: But I'm -- all -- all the --
Mr. Herman F. Selvin: Yes.
Justice Felix Frankfurter: -- all the cooperatives that were charged with --
Mr. Herman F. Selvin: That's right.
Justice Felix Frankfurter: -- this thing.
Mr. Herman F. Selvin: Yes --
Justice Felix Frankfurter: But the point is that they couldn't conspire with the cooperative, whatever immunity they may have, do not have immunity to conspire with non-cooperative?
Mr. Herman F. Selvin: Well, that's right.
They do not have that immunity.
Justice Felix Frankfurter: Well, that's the point of what was before the jury?
Mr. Herman F. Selvin: No.
The jury -- the jury -- that distinction was not made for the jury.
In fact, that distinction was ignored for the jury because the jury was told that the defendant cooperatives would be liable if they conspired with the third cooperative, the third member of the Sunkist system, Exchange Lemon.
It couldn't have to be a conspiracy with any outsiders under these instructions.
Justice Felix Frankfurter: But the two -- the two cooperatives could conspire so called, they could combine with each other so long as they didn't combine with the third cooperative, is that all?
Mr. Herman F. Selvin: No, the jury wasn't told that.
They were --
Justice Felix Frankfurter: Would you mind stating instead of having me --
Mr. Herman F. Selvin: Yes, sir.
Justice Felix Frankfurter: -- waste your time with my confusion, could you clarify it for me?
Mr. Herman F. Selvin: What the jury was told was that they should return a verdict against the defendants in this one instruction or in favor of the defendants, they should return to verdict unless they found that the defendants in the conjunctive --
Justice Felix Frankfurter: All of them?
Mr. Herman F. Selvin: The two defendants, unless they found that the defendants conspired with either TreeSweet or Silzle or the third cooperative Exchange Lemon, that is the third Sunkist cooperative.
So that under that instruction, the jury could hand in conjunction with the other instruction that they could find that some number less than the total of five had conspired.
They could find that the sole conspirators were the three Sunkist cooperative or for that matter two, the Sunkist cooperative, because the Court put no limit on the number less than all that had to be in the conspiracy except that of course there have to be two to make a conspiracy.
Justice Tom C. Clark: [Inaudible] the defendant for Exchange Lemon, Exchange Orange and what's the third cooperative?
Mr. Herman F. Selvin: Sunkist Growers.
Sunkist Growers and Exchange --
Justice Tom C. Clark: (Voice Overlap) -- that's your --
Mr. Herman F. Selvin: Yes, well --
Justice Tom C. Clark: -- Sunkist --
Mr. Herman F. Selvin: Sunkist yes, Sunkist Growers owns all the stock of Exchange Orange, Exchange Lemon and it's owned by the local associations that belong to the district exchanges that belong to Sunkist Growers.
There're all part of the Sunkist system so called, the Sunkist system --
Justice Tom C. Clark: That -- that means your profit sharing --
Mr. Herman F. Selvin: They're profit only in this -- they're profit only in the sense that all earnings above operating expenses are distributed to the grower members.
Justice Tom C. Clark: I mean the plaintiff.
Mr. Herman F. Selvin: Is not in profit.
Justice Tom C. Clark: -- is volunteered, I mean they're --
Mr. Herman F. Selvin: Oh, the plaintiff is a profit company, yes.
Yes, seldom succeed in making a profit as the record shows, but it is a profit company.
Justice John M. Harlan: Does that mean jury has found [Inaudible] on the basis of conspiracy solely and agreed under these profits [Inaudible], the sub-cooperatives?
Mr. Herman F. Selvin: We so construed the charge and I think that the charge necessarily bares that instruction because --
Justice Felix Frankfurter: Were -- were there any common request on this subject?
Were there any counter requests?
Were there any requests by the defendant --
Mr. Herman F. Selvin: Yes.
Justice Felix Frankfurter: -- bearing on this question?
Mr. Herman F. Selvin: Yes, we requested an instruction that would have told the jury that the three Sunkist cooperatives formed one organization, one cooperative organization and could not conspire with itself or with themselves, that request was refused by the trail judge.
Justice Felix Frankfurter: Was than on the basis, was that instruction on the basis that you could rip the corporate veil of the other two?
Mr. Herman F. Selvin: No, it was on the basis that this type of cooperative organization was within -- within the range of Capper-Volstead.
Justice Felix Frankfurter: In other words it -- it wasn't a question of lifting the corporate veil but Capper-Volstead?
Is that right?
Mr. Herman F. Selvin: It's Capper-Volstead.
Yes, yes Your Honor.
Justice Felix Frankfurter: Right.
And that is rejected?
Mr. Herman F. Selvin: That was rejected, yes.
Justice Felix Frankfurter: And you do the (Voice Overlap)
Mr. Herman F. Selvin: In addition to that -- In addition to that, we did present an instruction that would have told that jury that should return a verdict in our favor unless they found that we, the two defendants and Exchange Lemon, had conspired with the third parties TreeSweet or Silzle.
The Court modified that instruction to put Exchange Lemon over on the other side of the equation with the result that the jury could pick Exchange Lemon as the so -- so called outside conspirator.
Justice Felix Frankfurter: Is your position then is the legal question in this case, your claim that in fact -- the petitioners -- petitioners here took the position that cooperatives protected by Capper-Volstead could not be found guilty of a conspiracy to violate the antitrust act.
And that in fact, the charges that was -- the charge that was -- the charge or charges that were given or the request that would deny allowed the jury so defined.
Is that right?
Mr. Herman F. Selvin: Yes, except that our position was not quite that fraud Your Honor, which of that cooperatives that are part of -- that are the agencies of the same underlining group of farmers cannot conspire and we --
Justice Felix Frankfurter: That means the related cooperative family could not conspire --
Mr. Herman F. Selvin: Yes, that's right, yes --
Justice Felix Frankfurter: -- within each other in this need.
Mr. Herman F. Selvin: We didn't contend.
For instance, so we could go out in conspire with the walnut growers or the raisin growers in California and that was precisely our point and our reasoning in that is this an actually are reasoning --
Justice Felix Frankfurter: Before you come to your reasoning, you said as you construe the charge, a minute you said that, is there conflict on that?
Mr. Herman F. Selvin: I was -- I was being over conscious because I know Mr. Dixon will tell you that the charge should not be so read, but we take the position that there it is in plain English, the jury heard it.
It was given to the jury.
They were told to consider the instructions as a whole, and you put these five instructions which are exerted in our brief at page 18 I believe.
Together, they tell the jury very plainly that all these five people charged of being in the conspiracy, they can pick any number less than all as being the conspirators that enough, they can pick for two defendant cooperatives or they could pick the three Sunkist cooperatives.
Justice Felix Frankfurter: Alright, alright.
Mr. Herman F. Selvin: -- as we see it.
Now, there is no question there can't be any doubt it seems to me at least since the decision to this Court in the Maryland & Virginia Cooperative case, that a cooperative entitled to the benefits of the Capper-Volstead Act cannot withstanding the element of collective action inherent in the very fact of organization in existence of a cooperative, may do anything that a single traitor could lawfully do without subjecting themselves to the sanctions of the antitrust law.
Now, if a single entity cooperative could have performed these six acts without combining with anyone else and it is our submission that they could have done it because the six acts are nothing but ordinary steps in the marketing and processing of the product, if a single entity cooperative could have done it, why should not a molded entity cooperative like Sunkist be able to have -- to do it?
After all, it's the same group of farmers or growers who own, control and operate the organization whether it'd be one entity or three entity, it's the same product that is handled, and the activity of processing and marketing is exactly the same whether it's carried on by one entity with the processing and marketing division or whether it's carried on by a processing corporation at a -- a marketing corporation.
When the Capper-Volstead was reported to the floor, the committee report on the bill said this, its' short and rather than to try to paraphrased it, I'll read it.
“The aim has been to make the provisions of the bill sufficiently liberal, so that all cooperative farm associations operated in good faith for the benefit of its members might avail themselves of the provisions of this bill.”
The bill does not, however, compel any association to change its present organization.”
Sunkist and [Inaudible] entity form existed at the time that report was written, the [Inaudible] enter the form.
The Congress was aware of it.
Sunkist was referred to at least twice in the debates on the floor as an example of one or another kind of a cooperative organization.
The aim is -- as the Committee said was not to compel any association to change its present organization, but to make the provisions of the bill available to all cooperatives.
It is our submission, if the Court please, that that aim can only be achieved if the Capper-Volstead Act is held applicable to a cooperative organized as in Sunkist to the same extent that it is applicable to a single entity cooperative.
Justice Felix Frankfurter: That means -- that means that the protection of the immunity that Capper-Volstead gives the cooperative covers such a cooperative operating through subsidiary legal unit, that's your position?
Mr. Herman F. Selvin: That's exactly one of means, yes, Your Honor.
Now, most of respondents brief --
Justice Felix Frankfurter: Of course that doesn't apply in various branches of the law, for instance, it doesn't applied to tax law, does it?
For -- for merely for purposes of enterally organization, the Chile Copper Company had a -- had a subsidiary and it is argued that's all just one.
It's just like having departmental divisions.
And this Court said, “That wasn't apply if you -- if a -- if a -- another corporation for business readers, if -- if the Chile Copper for its own business reasons interposes in the comment of its business is not a Department or Bureau or whatnot but independent corporation, you've got a different -- legally speaking, a different thing.
What application is that to your problem?
Mr. Herman F. Selvin: Well, I think the difference between that in our problem, if Your Honor please, is that here we have a statute importing a policy, intended to free farmers lack collectively from the deterrence of the antitrust laws may exercise on their collective activity.
That's the principle aim of the statute, that's the policy.
Now, what difference does it make in the light of that policy, whether the farmers act collectively through three companies or one company and two affiliates or just one company?
The policy of the law is different and therefore, the analogy I submit has to breakdown.
I do want to save a little time and I think has come to save it in order to reply to what I believe Mr. Dixon's argument will be.
Chief Justice Earl Warren: Mr. Dixon.
Argument of William C. Dixon
Mr. William C. Dixon: Mr. Chief Justice and may it please the Court.
I perhaps should say, at the outset, that I -- as all argue is too regarded a privileged to present any matter to this Court.
I do not feel that it is a privilege in the broader sense of the term to have to appear before in this particular situation and as much as, it involves 10 years of litigation of a bankrupt company whose sole and only asset is this treble damage action and judgment.
Now, therefore, I am appearing before you to feel such help and aid as I may in helping this Court to reach the right conclusion in this case, with the thought that this litigation maybe brought to an end sometime, some place.
After reading the opinion of the Court of Appeals in which the bankrupt acquired a victory insofar as liability is concerned, a further reading of the opinion discloses the fact that we can only look forward to many more years of litigation before this case may be finally disposed off.
We are now hereon a question that I frankly do not believe is presented by the record in this case and I will enter my -- direct my discussion to that point.
Before I get in to a discussion of that, however, I think it might be well to just briefly refer to the question that we are considering.
It is generally stated as to whether or not cooperatives can be found in violation of the antitrust laws whether the only proof, and my emphasis as I used the word only here if the Court please, that they were engaging in processing and marketing operations under the Capper-Volstead Act.
Well at first blush, I would have to say that certainly the Capper-Volstead Act gives all cooperatives the right to engage in any farmer collective action which relates to the marketing and processing of the products of their grower members, but that doesn't dispose of the matter.
We still have to determine what marketing and processing is because Section 6 of the Clayton Act which was the forerunner to Capper-Volstead merely gave the growers the right to combine together as this Court stated in the Borden case and again, in Maryland Milk for the purpose of being able to do collectively what they otherwise wouldn't be able to do as single organizations either it's corporate, or a single floor members.
Now, with that background, it seems clear that under an interpretation of Capper-Volstead Act that there is always in the proper case a question of fact and a mixed question of fact in law perhaps as to whether the activities in which the cooperative or cooperatives, and it makes no difference in that respect, engaged because certainly they are subject to the limitations provided in Section 6 of the Clayton Act that those activities must be directed toward the carrying out of their lawfully authorized activity, which are of course marketing and processing of the products to their grower members.
So that to merely state that they are engaging as the question does here only in marketing and processing, it seems to me does not get us very far in solving the problem that this Court is confronted with in this case.
Now, how did this question arise that is presented?
It might shed some further light on it by referring to counsel's brief.
On page 17 and 18 where they deal with this question, they first summarized the charge of the court and this charge was a long charge as Your Honors know, containing some 54 pages, the discussion on the instructions which preceded it cover 424 pages and --
Justice Felix Frankfurter: Discussion did it regard to charge?
Mr. William C. Dixon: I'm sorry Your Honor.
Justice Felix Frankfurter: Did you say the discussions?
Mr. William C. Dixon: Yes, Your Honor.
Justice Felix Frankfurter: Before the charge is delivered, there was a discussion as to what should be charged?
Mr. William C. Dixon: A very extended discussion Your Honor covering in this record some 424 pages, yes.
Justice Felix Frankfurter: Take it outside the hearing of the jury?
Mr. William C. Dixon: Oh yes, very definitely, yes.
Now, that was the --
Justice Felix Frankfurter: Were there submissions -- were there requests by both sides?
Mr. William C. Dixon: Both sides yes, submitted --
Justice Felix Frankfurter: And the discussion was in reference to those submissions.
Mr. William C. Dixon: To all of these submissions Your Honor, yes.
Now, how did the question arose -- arise?
Before we get to that point, I think I should say something concerning the theory of liability in this case.
At the time this case was filed which is 1952, the Borden case was of course the only one dealing with cooperative exceptions by this Court.
That was a third-party conspiracy type of plaintiff.
When I entered this case in 1934, as pointed by the Court to prosecute this claim or dismiss it --
Justice Felix Frankfurter: You mean this very claim?
Mr. William C. Dixon: This very claim Your Honor, yes.
I have been associated with this case now since 1954 appointed by the Court to prosecute this trouble damage claim.
I have the problem of determining whether or not to advice the Court to dismiss it or to prosecute it.
Justice Felix Frankfurter: Would you mind stating in a word what that means that you're appointed by the Court to prosecute?
Mr. William C. Dixon: The bankruptcy -- the court Justice -- as Attorney for the trustee.
Justice Felix Frankfurter: I forgot it.
Mr. William C. Dixon: Yes.
Justice Felix Frankfurter: This is the -- this is your asset.
Mr. William C. Dixon: This is the only asset of this estate Your Honor of this bankrupt estate, yes.
Justice Felix Frankfurter: It used to be [Inaudible]
Mr. William C. Dixon: That's why I say I don't particularly regard as a privilege to act -- to argue this matter at this time not because it isn't in fact a privilege, but for obvious reasons.
Justice Felix Frankfurter: Is that the only reason that --
Mr. William C. Dixon: I'm sorry.
Justice Felix Frankfurter: Is that the only reason that the bankrupt has?
Mr. William C. Dixon: This is the only asset, yes.
Now, I wanted to avoid the presentation of any novel questions in the record in this case and the event I was successful in prosecuting the case.
We, therefore, have these very extended discussions and the instructions, but the theory of the violation here is clearly set forth in the amended complaint.
It was succinctly and clearly one of a third-party conspiracy.
That is a conspiracy to restrain and to monopolize trade and commerce in citrus juices' process in California and sold in interstate commerce and the achievement or the actual monopolization of that trading commerce by the combination.
That was the theory, that was the violation charged in the amended complaint, and we went to trail on that theory.
Now, that was the theory in which that broadly evidence was in, the case was argued to the jury. Counsel for the petitioners here insisted that the court instruct them after he completed his instruction that this was a five party conspiracy.
In other words, that's what we charged and they wanted to be sure that that was clear to the jury.
At no time in the argument was there any defense or any argument made either by counsel for the petitioners, or for the respondents here that this was anything, but a five-party conspiracy but it was a conspiracy case.
It was not an attempt to monopolize case.
It was a Section 1 under Section 2 Sherman Act conspiracy combination charge.
That was the violation charge.
Now, some reference is made here about these six acts and I want to briefly discuss that because while, I don't regard it as important, there were important only in this case as far as liability is concerned as being the acts which the respondents claim were performed pursuant to the violation or a conspiracy and which caused the damage claim.
In other words, in a Government case that this Court well knows, the only thing the Government has to prove in Sherman Act case is the violation.
However, in a treble damage action, the plaintiff must proceed further and not only prove the violation but the commission of some act or acts, committed pursuant thereto which caused the damage claim.
That's the other element of a -- of a -- of the case which is present in the private suit which is not present in a Government case.
Now, these six acts were both evidence of the violation, but not the only evidence of the violation charged.
There are also claimed to be acts committed pursuant to this conspiracy which caused the damage.
We do not have presented in this question, the matter of causation and other matters which deal with -- of the petition which respondents have pending in this Court in an effort to get this case possibly disposed off them, finale.
So we are not commenting or discussing that at this time obviously, but I am stating to the Court the background so that we can see what the violation was that was actually charged here, what its theory was and what the evidence was to support that charge.
We're not going to go into that of course, but that was the theory of the violation.
Now, we get down to a discussion of the instructions, proceeding now back to the petitioner's brief, page 18, may say that this question was created by five instructions which were given by the court out of the very many contain in the instruction.
(A) Is, first only one combination or conspiracy was charged.
We conceive that.
There was never any claim made that there were several conspiracies here at all.
That was not the theory of violation.
(B) was the one were the -- I had requested the instruction that a corporation and its subsidiary and that is the legal status of the defendant Sunkist and of its subsidiary Exchange Orange which was its processing company, that they could under the decisions of this Court, namely the [Inaudible] and Yellow Cab could conspire together as corporations and separate entities only, that's the charge Your Honor, to violate the Sherman Act.
They -- they say that that should have been given, that that was error.
Then (C) is but not withstanding the charge, then they go on to say that the trial court inspected them, and this was after the charge and when they had and I had also requested certain clarification that they have received at this time a clarification from a court that this was a five-party conspiracy.
And then during the course of that comment, the judge -- the trial judge said that this being a conspiracy case.
You may find that all conspired and none conspired or the less than the five conspire.
They complain about that.
They do not say in this brief, quote and this is in the record after that was then given and the judge said, “Do you have any other objections?”
The counsel for the petitioners here said, “I think we are content.”
Now, going to point D, we found may I --
Justice Felix Frankfurter: Can I interrupt you?
Mr. William C. Dixon: Certainly Your Honor --
Justice Felix Frankfurter: You might to infer, they said they were content by a charge, the jury may find that the charge of conspiracy would be satisfied if any to including two -- two cooperatives conspired.
Mr. William C. Dixon: The judge -- the trial court didn't put it that way Your Honor.
It merely said in -- in accordance with well-established conspiracy law, that where you have five persons or cooperations charged to have been in the combination, while in violation of the law that the jury might find that all of them conspired, that none of them conspired or that less than the number charged conspired.
Justice Felix Frankfurter: That means that the jury was allowed to find that the main cooperative and anyone of its subsidiaries justify themselves if they acted in collu -- cooperation that would satisfy the charge?
Mr. William C. Dixon: All the jury could have found that possibly --
Justice Felix Frankfurter: And is it your position that under the Capper-Volstead Act, a cooperative and its wholly controlled subsidiary operating within the scope of what cooperatives were allowed to do can violate the Sherman Law?
Mr. William C. Dixon: Very definitely Your Honor, yes.
In other words, that's I point too --
Justice Felix Frankfurter: So what's the real issue then between you and -- and Mr. (Voice Overlap) --
Mr. William C. Dixon: In a sense it is, yes.
Justice Felix Frankfurter: Pardon me?
Mr. William C. Dixon: In a sense it is, yes Mr. Justice, yes.
Justice Felix Frankfurter: Why the order is in long preliminary?
Mr. William C. Dixon: Well because of the manner in which the question is presented here Your Honor, I will be very glad to cease discussing the first part --
Justice Felix Frankfurter: You're -- you're arguing the case in that.
I -- I just want to know why if that's the issue it can't be discussed instead?
Mr. William C. Dixon: I -- I just want to make it clear, in view of the argument in the law which the counsel for the petitioners have cited on page 19 of their brief here that there was only one theory of liability which was submitted to the jury insofar as counsel for the respondents here is concern.
And it was on that theory that the counsel for the petitioners tried this case and defended it.
At no time did they make any defense except that they have not conspired at all with anybody.
Justice Felix Frankfurter: But as l understand the claim now made at the bar of this Court is that the charge of the Court allowed the jury to bring in a verdict for the plaintiff if Sunkist and its immediate subsidiary were sole conspirators.
As I understand it, you challenge that and that's where the clash comes, is that right?
Mr. William C. Dixon: Well, I challenged it insofar as I say that was the theory under which this case went to the jury, yes Your Honor.
Justice Felix Frankfurter: So therefore, if that was the theory then the jury was allowed so defined -- it did so define and -- and the validity of that criterion for determining a violation of the Act is here at -- in challenge.
Mr. William C. Dixon: Well, yes it might come Your Honor under the series -- some number less than the total of five conspired, but that might --
Justice Felix Frankfurter: But if the jury --
Mr. William C. Dixon: Yes.
Justice Felix Frankfurter: -- if the jury was allowed to find that Sunkist and its immediate subsidiary were sole conspirators and if that was a wrong charge then the verdict can't stand, can it?
Mr. William C. Dixon: Well, I would say it could Your Honor, yes on the theory that it went to the jury on the theory that this was a five-party conspiracy.
Justice Felix Frankfurter: Yes, but the jury -- did the jury bring in a special verdict and say --
Mr. William C. Dixon: No, oh they didn't.
Justice Felix Frankfurter: -- all the five are guilty?
Mr. William C. Dixon: No.
Justice Felix Frankfurter: They brought in the general verdict.
Mr. William C. Dixon: General verdict, yes Your Honor.
Justice Felix Frankfurter: Therefore, for all we know, they may merely found those two --
Mr. William C. Dixon: Yes.
Justice Felix Frankfurter: And therefore the verdict must be tested by the validity of that charge.
Mr. William C. Dixon: That is theoretically possible Your Honor, but in practice, I think the jury is reasonable men and women sitting through this case for period of over two months, never have the idea presented to them by counsel for other side that this was anything other than a third-party conspiracy case.
Justice Felix Frankfurter: But the judge didn't restrict their duty to that extend, did he?
Mr. William C. Dixon: That's right.
Correct, on the trial --
Justice Felix Frankfurter: And therefore, he didn't restrict their duty to that extent, they may well have been within their duty to find that only two joined.
Mr. William C. Dixon: Yes --
Justice Felix Frankfurter: We have no means of penetrating that document, have we?
Mr. William C. Dixon: That -- that is a theoretical possibility Your Honor if -- if you -- if you reach that point.
It was, however, based upon the premise but I see it that -- that they were -- there was more than one theory of violation presented to the jury in this charge.
And I'm merely saying in the 54 pages of the charge as you examine it.
For instance, let -- let me just briefly refer to the -- not only the charge in the record of the amended complain, but as part --
Justice William J. Brennan: May I ask you --
Mr. William C. Dixon: Yes, sir.
Justice William J. Brennan: -- this is the general verdict against whom, against to all of the defendants?
Mr. William C. Dixon: Just the two defendants, the only defendants in the case, yes.
Justice William J. Brennan: (Voice Overlap) are not mean as defendant --
Mr. William C. Dixon: They were conspiracy.
Justice William J. Brennan: Oh, I see.
Mr. William C. Dixon: I'll be very glad to go into the reason why they are but I want to take the time to --
Justice William J. Brennan: What I'm trying to understand your position which I -- if I gather correctly is that this was really submitted, was there a five party conspiracy and that although the general verdict since only two alleged conspirators were actually defendants, was there general verdict against them?
Your insistence is that in fact their answer to the question was there a five party conspiracy, yes, is that it?
Mr. William C. Dixon: That is by position yes, sir Mr. Justice --
Justice Felix Frankfurter: Does that question put this in specifically as Justice Brennan just put it?
Mr. William C. Dixon: There is no special interrogatory submitted to the jury here Mr. Justice Frankfurter, but if you're interested in the thought of the trial court as to what he had in mind, having tried this case, it is referred to in our brief.
The trial judge in discussing this matter with counsel said that he had no doubt whatever in his mind that if any verdict were returned here by the plaintiff and special interrogatories were issued that Exchange -- I mean that it would be a conspiracy between the third parties as charged in the complaint and it's argued to the jury and it's defended by counsel for the petitioners here.
Justice Felix Frankfurter: That's what he told the counsel --
Mr. William C. Dixon: Oh yeah.
Justice Felix Frankfurter: -- upon the hearing of whole jury.
Mr. William C. Dixon: Yes, yes Mr --
Justice Felix Frankfurter: But the jury didn't hear this.
Mr. William C. Dixon: Although the jury did not hear that, no.
Justice Felix Frankfurter: Well, how could they be guided by that then?
Mr. William C. Dixon: This is -- this only the opinion that I have the trial judge --
Justice Felix Frankfurter: But how could the jury be guided of they didn't know what you told the counsel in -- their -- in their absence?
Mr. William C. Dixon: They were not guided on that but the -- the jury were told in the 54 pages of the -- of the charge Your Honor what the theory of all the parties were their contention, their defense, and the law.
They were fully advised concerning the exemptions of the Capper-Volstead Act and particularly, if may briefly refer to the charge on -- that that part that on 3703 which is not referred to anywhere in -- in the petitioner's brief.
That was the only charge or the part if you want to isolate it from the rest of the charge which pointed out the basis on which the jury could return a verdict for the plaintiff in the trial court.
And it states specifically if you find and I'm quoting, 3703, “That either or both of the defendants that's 3 -- that's the Sunkist and Exchange Orange, these cooperatives, combined with TreeSweet or Silzle.”
That's the charge, the third party charge.
Now, Exchange Lemon comes into the case.
I don't think it makes any difference because as part of the evidence in support of the violation may had given this third-party TreeSweet a competitor of Sunkist in the -- in the interstate market for citrus juices a special deal which was of the same kind that Exchange Orange had given them on lemons and oranges.
Now I'd like to -- my time is going, no, but I just want to briefly if I may speak of the kind of contract because it gets us back to the --
Chief Justice Earl Warren: Mr. Dixon, before we get to that --
Mr. William C. Dixon: Yes.
Chief Justice Earl Warren: -- may I ask, at any place in the instructions, the court told the jury that in order to find the defendants guilty -- the two defendants guilty that they must have conspired with some person other than themselves.
Mr. William C. Dixon: No, the juries have – the judge did not give that we have an instruction.
Chief Justice Earl Warren: Alright.
Now, let me ask you this.
Under the Capper -- Capper-Volstead Act, can -- can these people be convicted just -- as a conspiracy between themselves or must there -- must there be an outsider into -- to make it an actionable conspiracy.
Mr. William C. Dixon: Your Honor, I believe the Court has answered that question in the Maryland Milk case where Mr. Justice Black specifically said that the Maryland Milk Cooperative and its conduct is charged in the Government's case or compliant violated Section 2, the monopolization section of the Sherman Act.
Now, that was a specific case where a cooperative under that decision as I read it was held to be subject to the Sherman Act without reference to whether it engaged in any combination or conspiracy with its competitors, whether they were third-party, non-cooperatives, or anyone else.
Now, as I read that opinion Your Honor, I think this Court has already ruled, but big cooperative may violate without any arrangement whatever with sec -- with a third party, non-cooperative, corporation, or organization to Sherman Act.
Now, the position of the petitioners here is perhaps more clearly stated and on this, I wouldn't beat the issue at all.
By their request for instructions number 4 and 5 which are contained in page 182 of the record.
Justice Hugo L. Black: Are they contained in either briefs?
Mr. William C. Dixon: They are not Your Honor, no.
Let me just briefly read this because it states their position I think very clearly.
This is one of the instructions they requested.
This is number 4, “You are further instructed that defendant Sunkist is in legal effect,” I emphasis that, a single cooperative marketing organization consisting of a number of components including defendant Exchange Orange and alleged co-conspirator Exchange Lemon, and this is the point and that this cooperative marketing organization being in effect a single entity is as a matter of law incapable of conspiring with or within itself.
That's number four.
In other words Your Honor will see that I think certain obvious things immediately that this instruction in number five of the -- in substance the same that there can be no conspiracy and so on and then it went on to say you may not find that there was any conspiracy in this case, either a conspiracy to restrain trade or a conspiracy to monopolize trade unless you find from the preponderance of the evidence that either TreeSweet or Silzle was a party to such a conspiracy.
Now, number five quite obviously would make it impossible if that is the law for a cooperative organization either as a single unit or as a number of units operating in some closely knit manner to ever violate Sections 1 -- I mean 2 of the Sherman Act and the Court said that, during the discussion of these instructions, why counsel admitted it.
Counsel for the petitioners here admitted during this discussion.
Yes, this charge and this request requires the court to ignore the corporate entities and the corporate entity theories and the court said, “Well, I don't see anything in the Capper-Volstead Act which provides for such an exception.”
In other words, on that basis the court -- the trial court in the discussion of this instructions of which this have perhaps the key instructions on this point, refused to give it.
Now, they did give the instruction that I requested, the trial court did which was our number two or number six, on page 148 which was modified by the Court, but this instruction merely stated the law -- I'm sorry, it's number two --'
Justice William J. Brennan: The same page?
Mr. William C. Dixon: No it's on 146.
Justice William J. Brennan: 146?
Mr. William C. Dixon: Which was based upon the --
Justice William J. Brennan: That's not set out in your brief, is it?
Mr. William C. Dixon: No, it's not Your Honor.
Justice William J. Brennan: Right.
Mr. William C. Dixon: The Keffer, Stuart decision which made it clear that a corporation and its subsidiary could conspire.
Now, so you see the issue is sharply drawn insofar as this particular question is concern in the trial court.
Now, I was frankly faced with the problem of whether or not to even waive that, but I felt I have to stop somewhere and I felt that I was on solid ground in relying upon the decision of this Court in Keffer, Stuart.
So the Court gave at my request that instruction, but the point still is if I may go back to it that the theory of violation charged in the complaint here and I view to the jury by all the parties and contained I submit also in the charge, apart from the ramifications that had been referred to of two or more or none or all might be found of the jury to be called conspirators or conspirator that the theory was one of a five party conspiracy.
Justice John M. Harlan: It still remains true from what you said and it is highlighted it seems to me from what you said that under the judge's view, right or wrong, if the jury could have brought in a verdict, despite the way the case was argued, is involved only to the components of the cooperative.
Mr. William C. Dixon: Yes.
Justice John M. Harlan: That's true, isn't it?
Mr. William C. Dixon: And that is the process --
Justice John M. Harlan: And that is the whole issue.
Mr. William C. Dixon: That is the sense --
Justice John M. Harlan: What you say is in fact that there is no difference between a conspiracy between a parent corporation and so its subsidiaries under Sherman Act, there's no difference when it comes to a cooperative that is organized in that way because of the Capper-Volstead Act.
Mr. William C. Dixon: Yes, Your Honor, I -- I say that there's nothing in the history of that Act --
Justice John M. Harlan: But that's the narrow issue in this case --
Mr. William C. Dixon: That is the case.
Justice John M. Harlan: -- that's all we have to decide.
Mr. William C. Dixon: That is correct Your Honor in that sense an attorney.
If our first decision is wrong that as we think the question is not presented, we go to the second, we meet that head on and we say that there is nothing in the Capper-Volstead Act which says that the intra-corporate theory of conspiracy is exempted and doesn't apply to cooperatives.
If I have time, I could go in to the facts here to show that under the theory of this so called overall organization, this subsidiary, Exchange Orange, was not suppose to sell oranges to anyone but the fact is the contract show that they did.
They made these separate deals whereby the oranges on the price once having been fixed at which they could be obtained by purchase, from Sunkist --
Chief Justice Earl Warren: Mr. Dixon your time is up (Voice Overlap).
But I'm going to give you -- I'm going to give you five minutes more to conclude your argument and Mr. Selvin may have five minutes additional for your argument.
Mr. William C. Dixon: That under the structure which we are dealing with here, the subsidiary Exchange Orange did in fact, although it was not suppose to sell oranges, did in fact sell them to their competitors under the special contracts and deals which I referred to in this case.
Now, I would like to briefly discuss the principle contract here, not the only one but it's a principle one because it deals with the product which was not made available to this respondent and as a result of which it was forced out of business.
The TreeSweet contract so called, it's referred to here in the brief, it's contained in the -- in the exhibit, but briefly, oranges were first made available to TreeSweet, a competitor and all of these contracts if the Court please, that we are complaining about were made with competitors of this cooperative in the juice market, so that you start with that premise or that fact which cannot be disputed.
So that the oranges then were made available to one competitor, under a system and an arrangement, they call it a purchasing contract or they call it a processing contract, I don't care what you call on, it's what they do under that contract I'm concerned with, whereby they didn't have to buy the oranges.
In other words, they were furnished them.
They were paid.
TreeSweet was paid by Sun -- by Exchange Orange for processing them into juice.
Then they were permitted to hold the juice that they processed for their own sale, wanted to sell it in the open market under their own labels in interstate commerce, in competition with the Sunkist product and to carry an inventory over the whole year.
In other words, it didn't have to have at nine invested in oranges.
They have the product there and as they sold it, they have been bought it not from Exchange Orange, although there's a question about who they paid for it but they bought it anyhow from either the subsidiary or Sunkist.
Then what did they pay for the juice when they brought it?
They didn't pay the same price after respondent had to pay when it had to go out and buy the same juice from Sunkist, in an effort to keep its costumers and the record shows this, paid the Sunkist price to all sellers, but the TreeSweet price from Sunkist was the Sunkist price less a 15% discount.
In other words, they were paid for processing the oranges, didn't have to put up any money to get them.
They processed it into juice.
They sold the juice under their own label and when they sold it, they bought it from Sunkist and they bought it at a price 15% below the Sunkist selling price.
Justice John M. Harlan: What you're saying in effect is that if Mr. Selvin's charge, requested charge had been given so as to take out from the case of conspiracy that was less in five party conspiracy, did you have enough evidence to sustain the verdict?
Mr. William C. Dixon: Oh very much so Your Honor this --
Justice John M. Harlan: But that question isn't before us, is it --
Mr. William C. Dixon: I must say -- that's why I raised the question Your Honor.
In other words, what we really have here is an abuse of legalized monopoly power.
In the first instance, it comes from the fixing and they stop there.
They don't go on to tell you that the charge is the maintaining of that price throughout the season in which there was the great -- greatest orange price in the history of California and Arizona.
They maintained that price at an immediate level at which no competitor, including this respondent, could purchase oranges in the open market from Sunkist or anybody else and process them into juice and compete with them, but the competitors of the respondent and the competitors of Sunkist, particularly TreeSweet here was able to do it.
If you read that contract, I think you would say that that contract was a substantial value to this co-conspirator so that that was the evidence here and what we have in substance under sec -- under the second point is that this decision in this judgment, I am clear in my mind can be justified on the theory of the charges made here as constituting an abuse of monopoly power it legally acquired in the manner and method by which the manner and obvious abuse is set forth in the amended complaint.
In other words, the fixing and maintaining of this price in the higher arbitrary level that making of oranges available to the competitors here of the petitioner as well as respondents on a basis at which they were denied of the availability to the respondent here.
Chief Justice Earl Warren: Mr. Selvin.
Rebuttal of Herman F. Selvin
Mr. Herman F. Selvin: Mr. Chief Justice may it please the Court --
Justice Hugo L. Black: Mr. Selvin, (Voice Overlap) case did you tell me, what judge tried this case?
Mr. Herman F. Selvin: Judge Carter, James Carter.
I wasn't at the trial.
All I know I'm in the same position as the Court Your Honor.
All I know about the case is what I read in the record, but I do agree with Mr. Dixon that the narrow issue to be decided in this case is simply whether the doctrine of intra-corporate or intra-enterprise conspiracy is applicable to Capper-Volstead cooperative.
He cites the Keffer, Stuart case [Inaudible] decided a number of others along with it of course, Timken Roller Bearing I think is was another one, Yellow Cab is one.
But it seems to me that all that was done in those cases in respect to intra-corporate conspiracy was to point out that where there was otherwise an unprivileged, in other words a proscribed combination or conspiracy, it was no defense that some of the conspirators were corporately affiliated.
Now, here the affiliation, the affiliation is the very thing if I am right about the construction to be given to Capper-Volstead, the affiliation is the very thing that is privileged.
It's the very thing that's taken out of the antitrust law because Congress has told farmers that without fear from the other -- of the antitrust law.
They may cooperate or act collectively in the processing and marketing of their commodities and they may do it through cooperative instrumentalities or agencies.
Now, while pressed several times, Mr. Dixon couldn't quite bring himself to give a categorical answer to the question of whether the jury in this case under the charge as given could have returned a verdict based on conspiracy among the only the components of the Sunkist organization.
I think his last answer was in effect an admission if that was so he said, “Well, probably they could have, but they wouldn't have.
The trial judge didn't think they never returned that kind of a verdict.”
We requested the special interrogatories in that case which would have compelled the jury to tell us who the conspirators were.
The judge didn't give the special verdict, why?
Mr. Dixon objected.
He wanted the general verdict.
He wanted the benefit of the blanket box that you get from the general verdict.
He wanted the benefit of the cover up of error inside the jury room that you find from a general verdict.
The special interrogatories would have settled this question.
We didn't know who the conspirators were.
We didn't know whether the jury returned a verdict based on this so called abuse of monopoly power and we then could have argued that one theory right or wrong, as it is.
We had at least three theories of liability go to the jury like to verdict is general.
We don't know which -- which theory influenced the jury it and as a consequence the rule as well-establish, the cases are at page 19 of our first brief that in that situation if anyone of the theories is wrong, the judgment can't be upheld because perhaps that was the one that brought about the verdict.
Now, so far as abusive monopoly power is concerned, you can't abuse something you don't have.
There was no monopoly power in this case.
Sunkist didn't have it.
The monopoly is claimed to exist in product oranges, not the oranges we sell as fresh fruit but the oranges that we sell to processors to be processed in the juice or to some other byproduct.
The record shows that we have on the average and in 1951, we have about 70% of the available product oranges in California and Arizona, but the other 30% was in other hands.
It was not under our control and one supplier, the supplier with whom the respondents have dealt since 1947 and who was characterized in the record as their principle supplier, one supplier had 12% to 15% of the entire supply that was more than enough to fulfill as it had been in the past, all the respondents' product -- orange requirements.
What happen in ‘51?
He clamped down on them.
He gave them 6000 tons of oranges, but under a processing contract that required them to process them in to frozen concentrate.
He wouldn't give them oranges for single-strength.
That's what happened to the respondents in 1951, their regular supplier.
They haven't dealt with us except to the minor way since 1947, but their regular supplier with plenty of oranges, he himself said, “I have lots of oranges,” this is his testimony, with no home for them except Winckler & Smith, Case-Swayne, Paramount and a few other small firms, that was the exact testimony, 6000 tons of oranges, they got 6000 tons in single-strength.
It was practically normal here for this respondent, but their regular supplier shut them down on them.
For what reason, curiously enough because he had sold oranges to Case-Swayne to be processed in the single-strength juice and he said quite candidly from the witness stand is somewhat ingeniously that he wouldn't give Winckler Oranges for single-strength because he didn't want his own oranges out in the market competing against each other in the form of juice.
That's the whole secret of the lost to this respondent.
Sunkist had nothing to do with that [Inaudible].
Morgan Ward, that's the supplier to whom I am referring, has no connection whatever with Sunkist.
Sunkist didn't even know Morgan Ward had not supplied Winckler in 1951 as he had in prior years.
Now, that 30 % outstanding completely negates any suggestion that Sunkist have monopoly power.
Monopoly power by definition is the power on the part of the monopolist to eliminate competition at anytime he desires.
Winckler's elimination couldn't have occurred except, except for the refusal of Morgan Ward to sell oranges for single-strength juice to Winckler, completely negates any suggestions that Sunkist had monopoly power.
Now, may I suggest also --
Justice Felix Frankfurter: Before you move on, if you're moving on something else, does the general verdict cover all whatever charge may have been made with the reference to monopolization?
Mr. Herman F. Selvin: Yes sir, it covered everything, Your Honor.
Everything that was submitted to the jury --
Justice Felix Frankfurter: And the monopoly wasn't segregated whereby they could find separately, if there was monopoly even by the corporative.
Mr. Herman F. Selvin: The verdict that they returned was simply in used form we find in favor of the plaintiffs and it gives the defendants in -- in the some over and fixed the damages at $500 -- $500,000 I think there was in there.
That was trebled and that's the amount of the judgment, plus attorney's fees. Special interrogatories were requested but the trial court wouldn't give -- and the trial court said, “This is the reason for not giving them,” he just candid too.
Justice John M. Harlan: Could I ask that question?
Mr. Herman F. Selvin: But the interro -- yes, Your Honor.
Justice John M. Harlan: If supposing you prevail in this case, what's the consequence, just a new trail, isn't it?
Mr. Herman F. Selvin: New trial -- now, the case or issued damages has always -- already been (Voice Overlap)
Justice John M. Harlan: That was sent back for a new trial and otherwise the new trial would be broaden out to include --
Mr. Herman F. Selvin: The new trial maybe on the whole issue there and not just on the issue then.
Justice Felix Frankfurter: Would you mind stating what the reason -- the reason given by the trial judge for not putting the interrogatories?
Mr. Herman F. Selvin: What -- he said you might find a -- you might find out that the jury -- that it's telling this with Mr. Dixon that you might find out that the jury found a conspiracy only with Exchange Lemon or words to that effect, now I lead it.
As a matter of fact Mr. Dixon quotes part of the statement in his brief.
The judge said --
Chief Justice Earl Warren: What record [Inaudible] --
Mr. Herman F. Selvin: I'm sorry sir.
Chief Justice Earl Warren: What (Voice Overlap)
Mr. Herman F. Selvin: We're now page 3461 of the record, that's Volume 8 of the record.
Like all antitrust cases we have a massive record Your Honor.
Mr. Fowl representing -- representing the cooperatives said, “Well if Your Honor knows, we have taken the position of Sunkist and Exchange Orange may not conspire between themselves.”
You had disagreed with us on that.
You may be right, we may be right.
If a verdict was brought in for the plaintiff and it is necessary for us to appeal, we will be unable to raise that point or preserve it unless we know whether or not some outsider was in this conspiracy.
We won't know who the conspirators were at all.
That is the reason for these interrogatories and then there's some discussion in colloquy back and forth about the form of the interrogatories, Mr. Dixon makes his objection.
Now, I'm at page 3463 and he says -- Mr. Fowl says, “First, if the plaintiff will agree, all we want to know is if they find the conspiracy, who were the conspirators?
Mr. Dixon, why are you entitled to know that?
Counsel, “You get your answer through the verdict” and it goes on with another comment which is not material to my point, and then the Court says, “It cuts both ways.
I am not saying whether I will do it or not, I may look it over.
It cuts both ways.
If you get a verdict” and he's talking now ti Mr. Dixon, “If you get a verdict, you are generally able to sustain it with the sole exception here if they found only Lemon was the other conspirator” and I don't know how they could find that.
If there was a verdict for the plaintiff, you can rest assure TreeSweet and Silzle will be listed as the co-conspirators and not Lemon.
Now, I draw from that, the clear inference that the judge -- the judge was saying that if I get a special interrogatories, we may find a plaintiff for the -- a verdict for the plaintiff here rest of them a finding that Lemon was the sole of the conspirator and he himself realized that that might be a shaky, if not in fact an impossible basis for the verdict.
Justice John M. Harlan: What page is that 3461?
Mr. Herman F. Selvin: 3463, the last part -- the colloquy begins at 3461 --
Unknown Speaker: [Inaudible]
Mr. Herman F. Selvin: Yes on part of the statement that I last read is quoted at page 42 of the brief for respondents.
Now, I like to point out that on page 8 of our brief and reply to the brief for respondents, we have listed 12 separate instances occurring in the course of the discussion with the Court about to these constructions, where we took the position that the Sunkist cooperatives could not conspire with themselves and just as consistently as we took as the trial judge disagree with us.
There is no question in this case that the trial judge submitted this case to the jury, fully aware of the fact that under his charge, the jury could return a verdict based upon a finding of conspiracy limited only to the component parts of the Sunkist organization.
And of that is so, and I submit that it is so, a reading of the instructions can't lead to any other answer then the question that we have here is whether Capper-Volstead cooperatives can conspire with themselves or whether for the purposes of the antitrust act, they must be considered as a single traitor and of course there are plenty of violations of the antitrust law so the single traitor can commit.
It is only those violations that are conditioned upon concern of action with others that Capper-Volstead takes out of the Sherman Act, or out of the antitrust laws under our interpretation of Capper-Volstead.
Justice Hugo L. Black: You consider that to be the only question here?
Mr. Herman F. Selvin: I do Your Honor, yes sir.
Justice Hugo L. Black: [Inaudible] --
Mr. Herman F. Selvin: -- I hope --
Justice Hugo L. Black: -- policy.
Mr. Herman F. Selvin: Like Mr. Dixon Your Honors that I have been some help to the Court.
I don't want anybody to be under this apprehension.
I'm here as an applicant.
As an applicant, I am partial at one side.
Thank you very much.
Justice John M. Harlan: Could I ask one question before you sit down?
Was any of the stock of these subsidiaries held by outsiders?
Mr. Herman F. Selvin: No.
Justice John M. Harlan: 100%?
Mr. Herman F. Selvin: No.
All of the stock of orange of Exchange Orange is held by Sunkist Growers.
It is incorporation with Sunkist Growers.
The stock of Exchange Lemon -- all of the stock of Exchange Lemon is held by the local associations to which the grower members belong.
Justice William O. Douglas: Does each member had one, [Inaudible]?
Mr. Herman F. Selvin: Yes, sir.
Now, which we made it -- we made all the Capper-Volstead qualifications.
Incidentally for better, we don't have any other products in our own group.
The Capper-Volstead permits us to handle other products up to the certain limited and we haven't done.
Justice Hugo L. Black: Yeah, 100% farmer grower --
Mr. Herman F. Selvin: 100% grower, a hundred and handled nothing but our growers' fruit and the products processed from that Your Honor.
Thank you, Your Honor.