United States v. Borden Co.
United States v. Borden Co.
Opinion of the Court
delivered the opinion of the Court.
This is a direct appeal
By way of background, we first point out that the present appeal is merely a glimpse of protracted litigation between the parties which began in 1951 and which has not yet seen its end. The original complaint charged violations of §§ 1 and 2 of the Sherman Act and § 2 (a) of the Clayton Act. The District Court dismissed the suit, holding that there was no proof of the alleged Sherman Act violations and that no equitable relief was necessary under the Clayton Act charge because appellees were already restrained by a consent decree entered in a private antitrust case. 111 F. Supp. 562. On direct appeal we affirmed the dismissal of the Sherman Act charges but held erroneous the refusal to grant an injunction on the Clayton Act claim solely because of the existence of the private decree. 347 U. S. 514. On remand the case was reopened and on its prima facie case the Government introduced recent general price schedules and illustrated their effect on sample stores to show that each appellee was still engaged in illegal price discrimina-
In view of our disposition, we need not relate the facts in detail. Both appellees are major distributors of fluid milk products in metropolitan Chicago. The sales of both dairies to retail stores during the period in question were handled under plans which gave most of their customers — the independently owned stores — percentage discounts off list price which increased with the volume of their purchases to a specified maximum while granting a few customers — the grocery store chains — a flat discount without reference to volume and substantially greater than the maximum discount available under the volume plan offered independent stores. These discounts were made effective through schedules which appeared to cover all stores; however, the schedules were modified by private letters to the grocery chains confirming their higher discounts.
To support their defense that the disparities in price between independents and chains were attributable to differences in the cost of dealing with the two types of
The Borden pricing system produced two classes of customers. The two chains, A & P and Jewel, with their combined total of 254 stores constituted one class. The 1,322 independent stores, grouped in four brackets based on the volume of their purchases, made up the other. Borden’s cost justification was built on comparisons of its average cost per $100 of sales to the chains in relation to the average cost of similar sales to each of the four groups of independents. The costs considered were personnel (including routemen, clerical and sales employees), truck expenses, and losses on bad debts and returned milk. Various methods of cost allocation were utilized: Drivers’ time spent at each store was charged directly to that store; certain clerical expenses were allocated between the two general classes; costs not susceptible of either of the foregoing were charged to the various stores on a per stop, per store, or volume basis.
Bowman’s cost justification was based on differences in volume and methods of delivery. It relied heavily upon a study of the cost per minute of its routemen’s time. It determined that substantial portions of this time were devoted to three operations, none of which were ever performed for the 163 stores operated by its two major chain customers.
On these facts, stated here in rather summary fashion, the trial court held that appellees had met the requirements of the proviso of § 2 (a) on the theory that the general cost differences between chain stores as a class and independents as a class justified the disparities in price reflected in appellees’ schedules. In so doing the trial court itself found “the studies . . . imperfect in
The burden, of course, was upon the appellees to prove that the illegal price discrimination, which the Government claimed and the trial court found present, was immunized by the cost justification proviso of § 2 (a). Such is the mandate of § 2 (b) as interpreted by this Court in Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 44-45 (1948).
Although the language of the proviso, with some support in the legislative history,
But this is not to say that price differentials can be justified on the basis of arbitrary classifications or even
In this regard we do not find the classifications submitted by the appellees to have been shown to be of sufficient homogeneity. Certainly, the cost factors considered were not necessarily encompassed within the manner in which a customer is owned. Turning first to Borden’s justification, we note that it not only failed to show that the economies relied upon were isolated within the favored class but affirmatively revealed that members of the classes utilized were substantially unlike in the cost saving aspects considered. For instance, the favorable cost comparisons between the chains and the larger independents were for the greater part controlled by the higher average volume of the chain stores in comparison to the average volume of the 80-member class to which these independents were relegated. The District Court allowed this manner of justification because “most chain stores do purchase larger volumes of milk than do most independent stores.” However, such a grouping for cost justification purposes, composed as it is of some independents
Likewise the details of Bowman’s cost study show a failure in classification. Only one additional point need be made. Its justification emphasized its costs for “optional customer service” and daily cash collection with the resulting “delay to collect.” As shown by its study these elements were crucial to Bowman’s cost justification. In the study the experts charged all independents and no chain store with these costs. Yet, it was not shown that all independents received these services daily or even on some lesser basis. Bowman’s studies indicated only that a large majority of independents took these services on a daily basis. Under such circumstances
The appellees argue in the alternative that their cost justifications can be sufficiently unscrambled to remove any taint the Court may find in them and still show a cost gap sufficient to justify the price disparity between the chains and any independent. This mass of underlying statistical data not considered by the trial court and now tied together by untried theories can best be evaluated on remand, and we therefore do not consider its sufficiency here.
In sum, the record here shows that price discriminations have been permitted on the basis of cost differences between broad customer groupings, apparently based on the nature of ownership but in any event not shown to be so homogeneous as to permit the joining together of these purchasers for cost allocations purposes. If this is the only justification for appellees’ pricing schemes, they are illegal. We do not believe that an appropriate decree would require the trial court continuously to “pass judgment on the pricing practices of these defendants.” As to the issuance of an injunction, however, the case is now
Reversed and remanded.
Jurisdiction is conferred under § 2 of the Expediting Act of February 11, 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29.
“Sec. 2. (a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, ... to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, . . . and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered . . . .” 38 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. §13 (a).
Bowman's contention that the Government by stipulation limited itself to specific objections which do not include the present one is without foundation in the record. At the time the stipulation was proposed, the trial court made it quite clear that the Government by so stipulating was not waiving its right to argue the legal sufficiency of the proffered cost studies.
Borden in June of 1954 issued the following discount schedule to “be applied to all purchases of Borden’s fresh milk”:
Percent of Average converted units per day: discounts
0-24. 0
25- 74 . 2
75-149 . 3
150 and over. 4
At this same time, letters were sent to The Great Atlantic and Pacific Tea Compaq'’ and The Jewel Food Stores granting them flat 8%% discounts. A few of the larger independents by special arrangement were given an additional 1%% discount, thereby raising their total discount to 5%%•
Bowman in June of 1954 operated under the following “Resale Store Discount Schedule”: _ .
, Percent of Average converted points per day: discounts
0 to 10. 3.0 to 3.4
10 to 20. 3.4 to 3.8
20 to 30. 3.8 to 4.2
30 to 40. 4.2 to 4.6
40 to 50. 4.6 to 5.0
50 to 60. 5.0 to 5.2
60 to 70. 5.2 to 5.4
70 to 80. 5.4 to 5.6
80 to 90. 5.6 to 5.8
90 to 100. 5.8 to 6.0
100 to 110. 6.0 to 6.2
110 to 120. 6.2 to 6.4
120 to 130. 6.4 to 6.6
130 to 140. 6.6 to 6.8
140 to 150. 6.8 to 7.0
This schedule was modified in August by the addition of the following discounts: _ , ,
, Percent of Average converted points per day: discounts
150 to 200. 7.0 to 8.0
Over 200. 8.0
During this same period Bowman by letter granted The Great Atlantic and Pacific Tea Company and The Kroger Company flat 11% discounts. Goldblatt Bros., also a multi-store operation, was granted a flat 8%%-
In 1955 and again in 1956 Bowman modified the brackets and percentages of its discount schedules, but not in a manner which reduced the disparity between independents and chains.
The third chain, Goldblatt Bros., also did not take these services.
The contention is made that the Government limited its prima facie case to a few stores on some routes and that therefore cost justification was only necessary as to them. This overlooks the fact that sampling has long been a recognized technique in price discrimination cases and that this offering was in support of the Government’s position, found valid by the trial court, that the entire Chicago pricing scheme of each appellee, as evidenced by its published price lists, was in violation of §2 (a). In addition, appellee's cost justifications were not limited to the Government’s sample stores.
Even the trial court was unwilling to give its “stamp of approval to all pricing policies and practices revealed by the evidence.” But it concluded that to enjoin such practices would lead to regulation and would require the court continually “to pass judgment on the pricing practices of these defendants,” a matter which might better be handled by proceedings before the Federal Trade Commission.
Sec. 2 (b). “Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section 49 Stat. 1526, 15 U. S. C. §13 (b).
For a collection and discussion of the pertinent legislative history as well as the cases and treatises on the § 2 (a) proviso, see Rowe, Price Discrimination Under the Robinson-Patman Act, c. 10 (1962).-
For instance, the Chairman of the Conference on the Bill reported to the House: “The differential granted a particular customer must be traceable to some difference between him and other particular customers, either in the quantities purchased by them or in the methods by which they are purchased or their delivery taken.” 80 Cong. Rec. 9417 (1936).
For a discussion of the Commission’s position in this regard, see Rowe, op. cit., supra, note 9, § 10.6.
Advisory Committee on Cost Justification, Report to the United States Federal Trade Commission (1956), p. 8.
Another suspect feature is that classifications based on services received by independents were apparently frozen — making it impossible for them to obtain larger discounts by electing not to receive the cost-determinative services — with no justifiable business reason offered in support of the practice.
Concurring Opinion
concurring.
This is not a case that involves problems of centralized purchasing by a large enterprise for all its constituent members, where the volume involved reduces the unit cost. We have here purchases by constituent members of chain stores of milk and milk products that will be sold at the particular store. The competitor is not a member of a competing chain or, if it is, the chain of which it is a part is a smaller one. The costs studies here involved have little, if any, relation to centralized management. They in the main pertain to two factors of cost. First, is the volume of sales of milk and milk products to the individual store and the method of payment. Second, the degree to which the store relieves the seller of milk and milk products from the costs of handling the product as it enters the store, of stacking or storing the products, and of returning the empty bottles or cartons.
The changes in the Clayton Act made by the Robinson-Patman Act now before us were made to limit discounts as “instruments of favor and privilege and weapons of competitive oppression.” S. Rep. No. 1502, 74th Cong., 2d Sess., p. 5; H. R. Rep. No. 2287, 74th Cong., 2d Sess.,
“This limits the differences in cost which may justify price differentials strictly to those actual differences traceable to the particular buyer for and against whom the discrimination is granted, to the different methods of serving them, and to the different quantities in which they buy.
“But such differentials whether they arise in operating or overhead cost must, as is plainly stated in the phrase quoted above, be those resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered.
“This, in its plain meaning, permits differences in overhead where they can actually be shown as between the customers or classes of customers concerned, but it precludes differentials based on the imputation of overhead to particular customers, or the exemption of others from it, where such overhead represents facilities or activities inseparable from the seller’s business as a whole and not attributable to the business of particular customers or of the particular customers concerned in the discrimination. It leaves open as a question of fact in each case whether the differences in cost urged in justification of a price differential — whether of operating or of overhead costs — is of one kind or the other. That is, whether or not it answers the above requirements as to differences resulting from differing methods or quantities in which such commodities are to such purchasers sold or delivered.” H. R. Rep. No. 2287, supra, p. 10. (Italics added.)
In the case of Bowman Dairy Co., as the Court points out, the company charged all independents for customer service rendered by Bowman’s deliverymen whether the independents availed themselves of the service or not. Bowman also charged independents for the time and expense of daily cash collections and for the costs of delays in collecting. These items were charged to independents even though it was not shown that their system of payment was always in cash, rather than by central billings, the system used by the chains.
In the Borden case an independent who purchased substantially larger quantities than the average chain store could not qualify for the discount the chain store obtained. This resulted because the independents were treated as one class, the chain stores as another class. As in Bowman the independents who did not make cash payments were treated as if they did; and they were not given the advantage which the chain stores enjoyed by reason of centralized billing even though they were on a credit basis.
What was said in Champion Spark Plug Co., 50 F. T. C. 30, 43, is relevant here:
“Respondent’s cost of doing business undoubtedly varied as among its different customers. All of its selling expenses were not applicable on a proportionately equal basis to sales to all of its customers. However, in the absence of a sound basis for determining the actual cost of selling to particular cus*475 tomers, the sales to each customer must bear their proportionate share of the entire selling expense. A cost justification based on the difference between an estimated average cost of selling to one or two large customers and an average cost of selling to all other customers cannot be accepted as a defense to a charge of price discrimination.”
Where centralized purchasing for many stores takes place, the costs of dealing with the group as a class become relevant to the problem under §2 (a). But where, as here, no centralized purchasing is involved, the store-by-store costs are the only criteria relevant to the § 2 (a) problem. Otherwise those with the most prestige get the largest discounts and the independent merchants are more and more forced to the wall.
The case was argued as if the grant of discounts was a natural right and that the Act should be construed so as to make the granting of them easy. The Act reflects, however, a purpose to control practices that lead to monopoly and an impoverishment of our middle class. I would therefore read it in a way that preserves as much of our traditional free enterprise as possible. Free enterprise is not free when monopoly power is used to breed more monopoly. That is the case here unless store-by-store costs are used as the criteria for discounts. This case is thus kin to that in Moore v. Mead’s Fine Bread Co., 348 U. S. 115, where the lush treasury of a chain was used to bring a local bakery to its knees. Here, as there, the chains obtain a “competitive advantage” not as a result “of their skills or efficiency” but as a consequence of other influences.
See Curtiss Candy Co., 44 F. T. C. 237, 267-268, 274; International Salt Co., 49 F. T. C. 138, 153-155, 157; Champion Spark Plug Co., 50 F. T. C. 30, 43.
Dissenting Opinion
dissenting.
The Court treats this case as if the District Court had introduced novel and disruptive principles into the law of “cost justification” under § 2 (a) of the Clayton Act.
Although I consider the respective cost studies much more adequate than the Court credits them with being, it is sufficient to say that, as I read the opinion below, the District Court judged their over-all adequacy in accordance with accepted principles of law in this field. The lower court indeed carefully refrained from giving unqualified approval to either set of cost studies, in substance merely holding (1) that the studies had been conscientiously prepared and prima facie appeared to justify generally the price discriminations arising from the appel-lees' discount practices (and more particularly to justify those specifically relied on by the Government as “trial” samples); and (2) that, in light of the long-drawn-out history of this litigation, the appropriate disposition was to deny injunctive relief, allowing the Government to bring to the attention of the Federal Trade Commission any other specific price differentials which it believed not justifiable under these or other cost studies.
This seems to me an eminently sensible and fair disposition of this stale litigation which has now been in the courts for nearly 12 years. I can see no point whatever in this Court sending the case back to the District Court for what will presumably amount to a third trial, especially when it is apparent that drastic changes in the
Had what the record now reveals been fully appreciated at the time the Jurisdictional Statement was considered, a summary disposition of the case would have been called for.
I would affirm.
The delays occasioned by the overcrowded docket of this Court as well as the nature of the issues in this litigation again point up the inadvisability of vesting sole appellate jurisdiction over this type of case in this Court. See Brown Shoe Co. v. United States, 370 U. S. 294, 357 (dissenting and concurring opinion).
Reference
- Full Case Name
- UNITED STATES v. BORDEN COMPANY Et Al.
- Cited By
- 31 cases
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- Published