Opinion
Action by the United States of America against United States Alkali Export Association, Inc., and others to enjoin agreements and combination alleged to be in restraint of trade. On motions for bill of particulars.
Order in accordance with opinion.
See also 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554; 7 F.R.D. 256.
John F. X. McGohey, U.S. Atty., of New York City (Grant W. Kelleher, Sp. Asst. to the Atty. Gen., Roy N. Freed, of Boston, Mass., and Burton R. Thorman, of Washington, D. C., of counsel), for plaintiff.
Cravath, Swaine & Moore, of New York City (Bruce Bromley, George S. Collins and George S. Leonard, all of New York City, of counsel), for defendant U.S. Alkali Export Ass'n, Inc.
Donald S. Carmichael, for defendant Diamond Alkali Co., Inc.
Dwight, Harris, Koegel & Caskey, of New York City (Frederick W. P. Lorenzen and John D. Liggett, Jr., both of New York City, of counsel), for defendant Church & Dwight Co., Inc.
Sage, Gray, Todd & Sims, of New York City (William E. Sims, of New York City, of counsel), for defendant Hooker Electro-Chemical Co., Inc.
Chadbourne, Wallace, Parke & Whiteside, of New York City (Horace Hitchwik and Abel I. Smith, Jr., both of New York City, of counsel), for defendant The Mathieson Alkali Works, Inc.
Root, Clark, Buckner & Ballantine, of New York City (John E. Wood, of New York City, of counsel), for defendant Niagara Alkali Co.
Wise, Corlett & Canfield, of New York City (Byrd D. Wise, of New York City, of counsel), for defendant Westvaco Chlorine Products Corporation.
Lewis & Watkins, of Detroit, Mich. (Edwin C. Lewis, of Detroit, Mich., of counsel), for defendant Wyandotte Chemicals Corporation.
Coudert Brothers, of New York City (Mahlon B. Doing, of New York City, of counsel), for defendants Imperial Chemical Industries, Ltd., London, and Imperial Chemical Industries Ltd., New York.
Oliver & Donnally, of New York City (Michael F. McCarthy and Martin A. Meyer, both of New York City, of counsel), for California Alkali Export Ass'n and West End Chemical Co.
CAFFEY, District Judge.
In passing on the motions for bills of particulars, generally I shall confine myself to rulings designed to enable the parties properly to prepare their responsive pleadings. For information meeded to prepare for trial I shall leave them to discovery. One reason for this course is the limitation on my time. Another is that the advisory committee on the Rules of Civil Procedure has reported in favor of completely eliminating bills of particulars.
Preliminaries
There are several groups of defendants. All will be treated as if they were one. Nevertheless, there are three sets. Each has employed numbers in designating the items with respect to which motions have been made. In consequence, there are duplicates of figures. As a means of avoiding confusion, the abbreviated names employed by counsel (viz.: Alkasso, I C I (N Y) and Calkex) will be used for purposes of identifying items in the notices of motion.
My plan for subdividing the items into groups may lead to some repetition. I am sorry for this, but it is unavoidable unless I extend my working on this case considerably beyond the date I had arranged for going on vacation.
At the oral argument the Government offered a stipulation of three paragraphs (hereinafter called the stipulation) which it was willing to sign and was framed so as to be signed by all the parties. I think it is fair and would be helpful. Accordingly, I approve it and will make it a part of the order hereon.
After striking out a few words at the beginning which are not needed, the stipulation is as follows:
‘ 1. * * * the written memoranda of agreement, copies of which are attached to the complaint, and membership agreements between United States Alkali Export Association, Inc. and its members and the membership agreements between California Alkali Export Association and its members, are the only written memoranda of agreement and contracts of which the plaintiff now has knowledge and possesses copies and upon which the plaintiff proposes to rely at the trial of this action. ‘ 2. The plaintiff stipulates and agrees that if in the future it acquires knowledge and possession of copies of further written contracts or written memoranda of agreement upon which it proposes to rely at the trial of this action, it will at least thirty days prior to the date fixed for trial deliver to the attorneys for the respective defendants copies of such written contracts or written memoranda of agreement. ‘ 3. This stipulation shall not be deemed to relate to any letter or memorandum which is not in itself a contract or memorandum of agreement.’
It is probable that changes (like those described in the stipulation) will occur in other instances. Provision, therefore, should be made in the order, applying under those circumstances to such other instances, for service at least 30 days prior to the date fixed for trial of supplements stating such changes or the substance of such changes known to and in possession of the Government as far back as the beginning of such 30 days.
Alkasso
Item 1 is granted to the extent that the Government shall state whether it now knows of any such acts or agreements as those inquired about which are not already mentioned in the stipulation, or are not already included or intended to be included in paragraphs of the complaint other than 41 or 42 and, if so, that it state the substance thereof with the approximate periods or approximate respective dates thereof.
Item 2 is granted to the extent that, so far as now known to the Government aud not shown by the stipulation, it shall state as nearly as practicable the approximate date or dates of the agreement or of the marketing arrangements inquired about and, other than I C. I. and Alkasso, the names of the parties thereto.
Item 3 is granted to the extent that, if now known by the Government, it shall state the approximate date of the cartel arrangements referred to or entered into and, other than as set out in paragraph 48 of the complaint, the names of European manufacturers who had entered into such arrangements.
Subdivision (c) of Item 9 is granted.
I C I (N Y)
Subdivision A of Item I is granted.
If the answer to such subdivision A be in the affirmative and the Government now knowns, it shall state in substance of what such additional activity consisted, with the approximate date or dates or the approximate period or periods when the same occurred.
Subdivision A of Item II is granted.
If the answer be in the affirmative and the acts, agreements or understandings inquired about be not already included in the stipulation and the Government now knows, it shall state the substance thereof and the approximate date or dates or the approximate period or periods thereof, with the names of the parties thereof.
Subdivision A of Item III is granted.
If the answer be in the affirmative and the additional cooperation be not already included in the stipulation and be now known to the Government, it shall describe in substance of what the additional cooperation consisted, with the approximate time or times or the approximate period of periods thereof.
Subdivision A of Item IV is granted. If the answer be in the affirmative and the additional concerted action be not already included in the stipulation and be now known to the Government, it shall state in substance of what that action consisted.
Subdivision A of Item VI is granted.
If the answer be in the affirmative and the additional cooperation referred to be not already included in the stipulation or in a portion of paragraph 62 of the complaint subsequent to the first sentence of that paragraph and be now known to the Government, it shall state the substance of such additional cooperation.
Calkex
To the extent not already stated or not already included in the stipulation or in the contracts, agreement or understandings refered to in subdivisions (a), (b) and (c) of Item 2, if known to the Government it shall state whether any such additional contract, agreement or understanding of the kind inquired about in that item is claimed to have been made and, if the answer be in the affirmative, state so far as now known the substance thereof, the approximate date or dates or the approximate period or periods thereof and the names of the parties thereto.
To the extent not already set forth in paragraph 43 through paragraph 63 of the complaint and not already included in the stipulation, if now known to the Government it shall state whether other means or methods were employed whereby the alleged combination or conspiracy was formed or effectuated or furthered, and if the answer be in the affirmative, so far as now known to it, the Government shall describe what in substance were such other means or methods, with the approximate date or dates or the approximate period or periods thereof and the names of the parties thereto.
Conclusion
Again, I express regret that I have not had opportunity for discussion of the numerous matters involved. To the extent that items have not been approved or allowed herein above, they will be disallowed.
Settle order on three days' notice.