Sam Fox Publishing Company, Inc. v. United States

PETITIONER: Sam Fox Publishing Company, Inc.
RESPONDENT: United States
LOCATION: John H. Kerr Dam and Reservoir

DECIDED BY: Warren Court (1958-1962)

CITATION: 366 US 683 (1961)
ARGUED: Mar 29, 1961 / Mar 30, 1961
DECIDED: May 29, 1961

Facts of the case


Media for Sam Fox Publishing Company, Inc. v. United States

Audio Transcription for Oral Argument - March 29, 1961 in Sam Fox Publishing Company, Inc. v. United States

Audio Transcription for Oral Argument - March 30, 1961 in Sam Fox Publishing Company, Inc. v. United States

Earl Warren:

Publishing Company, Incorporated, et al., Appellants, versus United States, et al.

Mr. Dooling, you may conclude your argument.

John F. Dooling, Jr.:

Mr. Chief Justice, may it please the Court.

Appellants, we submit, have not met the second requirement of Rule 24 (a) (2) by showing that they are or may be bound by the judgment in question.

We join the Solicitor General's argument to this effect made at pages 56 to 61 of his brief.

Now, appellants' hint, at page 12 of their reply brief, that both appellant Pleasant Music and the Society have acknowledged in the pleadings in the state court case between them that both are bound by the 1950 decree.

They mistake the pleading.

It is only that since 1950, the Society has incorporated in each agreement with each member a stamp legend stating that the grant of the owner's performing rights to the Society in the agreement is modified and set by and subject to the provisions of the 1941 and 1950 decrees and this corresponding provisions of the Society's articles and Board resolutions.

Now, that allegation in the Society admitted for the stamp simply conform the new contract forms to limit the Society's acquisitions of copyright right -- rights in conformity with the decree.

Now, appellants, we submit, are not bound by the decree for several, clear and familiar reasons, first, whether or not the 1941 complaint was a representative complaint against the membership as a class.

The 1941 judgment ran only against the Society and extended as, of course, to directors, officers, employees, members and all persons acting on the Society's behalf.

The 1950 decree applies only to the Society and officers, directors and employees and all other persons, including members, acting under, through or for the Society.

The 1960 decree leaves that provision unchanged.

Thus, appellants are neither parties to the decrees nor members of a class represented by parties against whom the decree runs representatively.

Second, all three decrees were made without taking any testimony and all are expressly without any findings of fact or admission of or adjudication of violation of law.

The decrees, thus, have no adjudicative content that could bind the right or interest of a non-party.

Third, there are no issues in the case as between appellants and the other members of the Society or the Society as a whole, but only the consent decree disposition --

Earl Warren:

Finish your thought, Mr. --

John F. Dooling, Jr.:

May I, Your Honor?

Earl Warren:


John F. Dooling, Jr.:

But only the consent decree disposition of the public antitrust claims of the United States against the Society, thus, making inapplicable such cases as Ben-Hur and the Modern Woodmen case which depend on the adjudication of the Society member issue not present here.

I respectfully submit the appeal should be dismissed.

Felix Frankfurter:

Well, that means -- does that mean that these appellants, in your view, would raise the -- the -- would challenge specific provisions as to voting rights, as to money distribution?

John F. Dooling, Jr.:

Yes, Your Honor.

Felix Frankfurter:

If you complete this suit out of the decree?

John F. Dooling, Jr.:

It -- no, Your Honor -- of course, in complete disregard of the decree, as in -- the Court said in the Borden case in this Court, because the decree deals with the public right of the United States against the Society as a society.

It does not adjudicate what, in equity or in private antitrust right, might be the maximum, the minimum or the different antitrust or equity result that any one member, suing in his own right, could secure an adjudication of --

Felix Frankfurter:

I'm not talking about his own right as -- as a matter of dominant sense.

I'm talking about the right which is the consent decree adjudicated as to the proper way of conserving the public interest under the Sherman Law, and he's speaking be -- that he may say that by this -- by the terms of the decree, in behalf of the public, I am shut off -- I am -- I am subjected to a subordinating position from what would be right if the public interest had properly been concerned.

I don't understand how you can split open the -- as chap, isn't -- it's a metaphysical entity, isn't it?