United States v. Chas. Pfizer & Co.

PETITIONER: United States
RESPONDENT: Chas. Pfizer & Co.
LOCATION: Former Ada County Courthouse

DOCKET NO.: 70-72
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 404 US 548 (1972)
ARGUED: Jan 12, 1972
DECIDED: Jan 24, 1972

Friedman -
John E. F. Wood - for respondents

Facts of the case


Media for United States v. Chas. Pfizer & Co.

Audio Transcription for Oral Argument - January 12, 1972 in United States v. Chas. Pfizer & Co.

Warren E. Burger:

We’ll hear arguments next in Number 70-72, United States against Charles Pfizer and Company and others.

Mr. Friedman, you may proceed.


Mr. Chief Justice and may it please the Court.

After a seven-week trial, a jury sitting in the Southern District of New York convicted the three respondents, Charles Pfizer & Son, the American Cyanamid Company, and the Bristol-Myers Company under an indictment in three counts with violating Sections 1 and 2 of the Sherman Act, by fixing prices and excluding competitors in a market known as broad-spectrum antibiotic drugs.

Each of the respondents was fined the maximum of $50,000.00 on each count, a total of $150,000.00 fine on each respondent.

Broad-spectrum antibiotic drugs are a group of drugs that are unusually, it came in fairly recently, because they are effective against a wide variety of microbial or micro biotic bacterial infection.

Each of the four –- the three respondents in this case plus another firm, Parke-Davis, that was not indicted had a broad-spectrum antibiotic drug during the period involved in this case.

Each of these drugs was patented.

Most of them are fairly well-known.

One that, Your Honors are probably familiar with.

It is something called Aureomycin which in fact was the drug of Cyanamid.

The drug that is principally involved in this case, the focus of this case, however, is the last of these broad-spectrum antibiotics to come on the market, a drug called tetracycline and the basic theory of the government’s case in this case was that the respondents together with the Upjohn Company and the Squibb Company engaged in a conspiracy to limit access to the broad-spectrum antibiotic market and to fix prices on broad-spectrum antibiotic.

A divided Court of Appeals for the Second Circuit reversed this conviction.

The Court held that certain errors made by the District Court in its instructions to the jury required a new trial and the government has brought this case here on certiorari because of its concern over the way the Court of Appeals reviewed and evaluated the instructions in this case.

Now, we think as I shall develop that the basic error committed by the Court of Appeals in this case was in its failure to view the instructions in their entirety in the context of the entire case.

William H. Rehnquist:

Mr. Friedman, are you asking this Court to simply substitute its judgment for the Court of Appeals as a reviewing Court at the first instance?


No, Mr. Justice.

We think -- but we’re suggesting -- we’re asking this Court to hold that the Court of Appeals applied the wrong standard in considering the validity of this charge, that’s all.

We’re not asking this Court of course to substitute its judgment for that of the Court of Appeals.

And the flaw we think the Court of Appeals committed in this case was that -- it didn’t look at the thing in the context, it found particular phrases which it thought were improper.

It said that the Judge had not stressed certain factors sufficiently and stressed others too much, that this is the basic flaw we think that was committed which outcome to develop.

Now, there’s no question in this case as the Court of Appeals recognized as to what happened.

The problem in this case is as to what inferences should be drawn from the circumstantial evidence.

Warren E. Burger:

Mr. Friedman, it will help me, if you would -- id you touched on it, but perhaps there is more to it.

If you’d state, what is the standard this Court is to apply and when it reviews the action of the Court of Appeals of this kind?

You’ve said that they must looked at the instruction as a whole and not by bits and pieces, but that isn't -- for me at least really a standard, how do I --


Well, I think it’s a fair way to put the standard is to see whether -- looked at as a whole.

The charge properly put to the jury, the job it was to do, explain to it, the basis on which it was to decide the case.

That is obviously in hindsight, various judges, appellate judges may decide that it would’ve been better to state one thing, one way rather than the other way.

If they had been charging the jury, they would’ve emphasized one thing rather than the other, but I think the basic question, the basic question is looked at as a whole and it has to be looked at also in the light of all the evidence before the jury because the jury obviously considered the instructions in the light of the evidence that was presented, looked at as the -- in the -- as a whole in the entire case that this charge told the jury what it were suppose to do.