Liquid Carbonic Corp. v. United States

PETITIONER: Liquid Carbonic Corp.
RESPONDENT: United States

DECIDED BY: Warren Court (1955-1956)

ARGUED: Oct 19, 1955 / Oct 20, 1955
DECIDED: Oct 24, 1955

Facts of the case


Media for Liquid Carbonic Corp. v. United States

Audio Transcription for Oral Argument - October 19, 1955 in Liquid Carbonic Corp. v. United States

Audio Transcription for Oral Argument - October 20, 1955 in Liquid Carbonic Corp. v. United States

Earl Warren:

Number 25, on a docket, The Liquid Carbonic Corporation versus United States of America.

Mr. Dwyer, you may proceed.

James F. Dwyer:

May it please the Court.

Yesterday, Mr. Justice Harlan asked me where in the record the Assistant Attorney General had indicated that he believe that if the judge granted an injunction of what constitute a modification of the decree, that colloquy will be found at page 6 of the record and I think that in conjunction with that, in fairness, you should read what Mr. Karsted later said at page 36.

That was the second hearing, and while on the -- at the first hearing, he felt that the -- an injunction would constitute on unwarranted modification.

After he returned home to Washington, he changed his mind and then informed the Court that he thought that an injunction would not constitute a modification, and it's at page 36 that he so informed the Court.

Now, before proceeding with my argument, I would also like to refer to a -- a portion of the record which I think bears upon the question that Mr. Justice Frankfurter asked yesterday as to what implications could be drawn with respect to Liquid's consent to the decree, and I said that such implications could be drawn as only we're consistent with a limited language used in Section 9 (e).

And I said further that I thought that the district judge had no power to resort to the philosophy of the Sherman Act or the allegations of the complaint.

And down at -- at -- fully on 53, in the middle of the page, page 29, the judge asked me, “Was the purpose of that,” that is of Section 9 (e), “to furnish new competition in an area whereby agreement between the parties,” it was determined not decided, “but determined that Liquid exercised a degree of monopoly,” and I rejected that contention and said that no such inference could be drawn.

But nevertheless, that is the inference that the judge drew that we had been found guilty of a violation of the Sherman Act and I express again that there is no basis whatever for any such deduction.

Now --


James F. Dwyer:

No findings of fact --


James F. Dwyer:

Yes, with an expressed statement that they -- the defendant had denied the allegations of the complaint.

I think in large part, that followed the usual kind of decree that the Government asked the defendant to sign, except at various places where modifications occurred and Section 9 (e) is one of them, those places.

Now, as I was saying yesterday, the -- the Court rationalized its order in this way.

It said that the purpose of the consent decree was two-fold.

First, to divest Liquid of its plants and secondly to bring competition into the area and opposition of course was that the purpose of this Section of the decree was to bring a competitor into the area and that we can send it to sell our plants on the assumption that the Government would find a purchaser.

Although, we had pointed out, and this appears in the record, to the district judge that we have reminded the United States and reminded the judge in the course of the -- the negotiations on the consent decree, that in our opinion, these plants would not be bought by anybody who would operate them as to CO2 manufacturing plants.

So, really, what was involved here when the decree was submitted was a contention on our side that these plants would not be sold but let -- we were willing to take the risk on our judgment on that point against the Government's insistence that they should have an opportunity to bring a competitor into the field.

Now, --

Felix Frankfurter:

Does -- does the record -- I do not know whether it should whether it should be entitled to consider it, but does the record disclose that there were --as we see these negotiations as to discern the included in the consent decree other than the form.

Were there any preliminary office in store, all that kind of things?

James F. Dwyer:

There was all of that, Mr. Justice Frankfurter, but I can't say --

Felix Frankfurter:

Within the record?

James F. Dwyer:

No, it isn't.

It isn't.

Felix Frankfurter:

Possibly that --

James F. Dwyer:

No, actually --