RESPONDENT: Continental Can Company
LOCATION: Alabama State Capitol
DOCKET NO.: 367
DECIDED BY: Warren Court (1962-1965)
CITATION: 378 US 441 (1964)
ARGUED: Apr 28, 1964
DECIDED: Jun 22, 1964
Facts of the case
Media for United States v. Continental Can CompanyAudio Transcription for Oral Argument - April 28, 1964 (Part 1) in United States v. Continental Can Company
Audio Transcription for Oral Argument - April 28, 1964 (Part 2) in United States v. Continental Can Company
Mr. Johnson, you may continue your argument.
Helmer R. Johnson:
Thank you, if the Court please.
Before the recess, Mr. Justice Harlan asked me about El Paso and Lexington Bank except that these cases reemphasized a necessity of market determination and measuring the effects of the merger in those markets.
I don't think they have any clear relation to the case before the Court here.
El Paso dealt with a market which where the market was clear, Natural Gas.
Now, there was a direct elimination of a competitor or of a potential competitor in a well-defined market.
Lexington Bank, also the -- at least one of the lines of commerce there, the commercial banking was obvious.
The market was defined quite closely and there was an elimination of direct competition and of course the percentages there were high.
I have no reason to believe that the District Court would have decided this case any differently than he did in the light of those cases.
Byron R. White:
Even on the -- even assuming that the Commerce Clause (Inaudible).
Helmer R. Johnson:
The record here, as I was saying is, there's -- there is nothing in this record to indicate any anticompetitive effect whatsoever, notwithstanding as the District Court considered everything he could think off and all the arguments that were raised that indicated any likelihood, reasonable likelihood of anticompetitive effects.
He went down the line, prior acquisitions, the intention of the parties, likelihood of suppression of products lines, elimination of competition, weakening of the companies in their respective lines, advantages resulting from the acquisition, concentration, change in market position, effects on competitors, ease of entry, tendency of the word monopoly.
He found nothing.
He indicated any reasonably probable anticompetitive effect, and the Government here points to nothing that would indicate a reasonable probability of anticompetitive effects.
They argue that this should be assumed.
But why should they be assumed?
Reasonable probability is subject to proof perhaps not as precisely as past events but enough to guide our lives.
We know quite a bit about the cause and effect and in trying to evaluate the probability of anticompetitive effects without any facts to go off, I guess it's completely useless.
The Government in its brief and its arguments has mentioned concentration and dominance.
They don't say what they mean by this or how they should be used in the application of Section 7.
Surely, in the light of the legislative history of Section 7, from the rulings of this Court, they cannot be serious about an automatic application of the statute simply to something that is big.
When I say just their word about statistics, the Government here admittedly has had difficulty with its statistics but they keep on using.
They apologize for them -- in their brief.
They still keep on using them.
They'd tried here to add statistics that couldn't be added.
Metal Working Industry, the can industry, reports to the Bureau of Census in terms of based boxes of steel used, they don't report in terms of the number of containers made.
The glass container industry reports to the Bureau of Census in units.
No one has ever seen fit to combine the statistics, so far apart of the industries.
The Government here tried to do it.