The Burger Court Opinion Writing Databasesupremecourtopinions.wustl.edu/files/opinion_pdfs/1970/70-821.pdf2nd DRAFT CircuLlt eci: SUPREME COURT OF THE UNITED STALFESziated NO. 821.—OCTOBER

The Burger Court OpinionWriting Database

United States v. Greater Buffalo Press, Inc402 U.S. 549 (1971)

Paul J. Wahlbeck, George Washington UniversityJames F. Spriggs, II, Washington UniversityForrest Maltzman, George Washington University

Axprente qourt f tire Anita Abateasitinotrat, (c. 2U kg

May 21, 1971

No. 821 - United States v. Greater Buffalo Press

MEMORANDUM TO THE CONFERENCE:

I concur generally in Justice Douglas' opinion for

the Court and join in Justice White's concurring opinion.

CHAMBERS OF

THE CHIEF JUSTICE

.CHAMBERS OFTHE CHIEF JUSTICE

.Airortna (flourt of tize 'Anita AbateWaoltizt9tou, urgul

May 25, 1971

No. 821 - United States v. Greater Buffalo Press, Inc. , et al.

MEMORANDUM TO THE CONFERENCE:

My memo of May 21, 1971 may have been confusing. WhatI intended was to join Justice White's opinion. Actually it seemsto me that the two opinions are converging. Perhaps by Thursdaythey will have come together I

Regards,

Au rant (Court a titellinitett Atatto21traoltington, p. wig

CHAMBERS OF

THE CHIEF JUSTICE May 27, 1971

Re: No. 821 - U. S. v. Greater Buffalo Press

Dear Bill:

I am pleased to join your circulation of

today's date in the above.

I REPRODUVED FROM THE COLLECTIONS OF THE MANUSCRIPT DMSION, LIBRARY-OF "CONGRESS4

55itirrtutt (4aurt IIf flit trite OtattoAtialrington, Al. CC. 2.0A

CHAMBERS OF

JUSTICE H UGO L. BLACK May 13, 1971

Dear Bill,

Re: No. 821 - United States v. GreaterBuffalo Press, Inc., et al.

I agree -- strongly.

Since rely,

Mr. Justice Douglas

cc: Members of the Conference

REPRODWED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION`, RAR RES

Auvrentt (Conti Df tItt lanitett $5tates

alxitin4tan, 7a. (4. 2x1g4g

CHAMBERS OF

JUSTICE HUGO L. BLACK May 27, 1971

Dear Bill,

re: No. 821- U. S. v. Greater Buffalo Press„

I am still with you.

Sincerely,

Hur

Mr. Justice Douglas

To: T.1-1 ^ 1-' —'s JusticeMr. JuL,t.ice BlackMr. Justice HarlanMr. 3- Istice BrennanMr. j.._1:;tiee !F:tF,wart

Mr. 171-ite eoe„../Mr. Ja3irc 1.1r2:7311

Mr. Blaclueun

1st DRAFT From: D: -2„-la.3, Avi_

SUPREME COURT OF THE UNITED, STATES:_

Recirculated: No. 821.—OCTOBER TERM, 1970

United States, Appellant, On Appeal From the Unitedv. States District Court for

Greater Buffalo Press, the Western District ofInc., et al. New York.

[May —, 1971]

MR. JUSTICE DOUGLAS delivered the opinion of theCourt.

This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,115 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-

1 Section 7 provides:"That no corporation engaged in commerce shall acquire, directly

or indirectly, the whole or any part of the stock or other sharecapital and no corporation subject to the jurisdiction of the FederalTrade Commission shall acquire the whole or any part of the assetsof another corporation engaged also in commerce, where in any lineof commerce in any section of the country, the effect of such acquisi-tion may be substantially to lessen competition, or to tend to createa monopoly."

REPRODU FROM 'THE COLLECTIONS OF WE MANUSCRIPT DMSIONT IMBRARVOrCON9/ESOT rhea _01-.4 Jlzst ice

Mr. Jut., Lice BlackMr. Justi ceMr. J11..3 ..ce 1, actMr. Ji./ t estMr. JflStj‘-r, 1,1Mr.Mr.

From: .11.1oul.a.'1;,

2nd DRAFT CircuLlt eci:

SUPREME COURT OF THE UNITED STALFESziated

NO. 821.—OCTOBER TERM 1970



[May —, 1971]


This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,/15 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-

1 Section 7 provides in-part:"That no corporation engaged in commerce shall acquire, directly


leWDUt4EneD FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; CONGRESSi

3rd DRAFT

SUPREME COURT OF THE UNITED STATES

No. 821.-OCTOBER TERM, 1970



[May —, 1971]


This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,'15 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-

1 Section 7 provides in part:"That no corporation engaged in commerce shall acquire, directly


REPRODUI'ED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY OF"CONGRES

itprtnit (Cintri of theXixtitett ,%t aft

WEItington, p. Ts.. 2 Cr,54

CHAMBERS OF

JUSTICE WILLIAM 0. DOUGLAS May 22, 1971

Dear Bill:

In No. 821 - United States v. Greater Buffalo Press, I receivedreturns only from you, Hugo, and Thurgood.Today the Chief Justice circulated sayingwhile he concurred generally in my opinion,he joined Byron's separate opinion. Thatmeans, I gather, that there are five whofavor taking no position on the issue ofdivestiture.

Accordingly, I have made somechanges on page 7 of this opinion. If youagree, I thought I would send it down fora new print and recirculate.

Mr. Justice Brennan

T.13.44 Thw caltiatt. ZtattLica93Jiu-Atime 11311aTrikaluVtIthe Hinman

;n%. gusWircte IBrennanZust.IDe :Stewart

AIce 'WhiteMarshall

tics Black:raw,4th DRAFT





[June —, 1971]





itl=pRowe FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION,' LIBRARY' OF CONGRES

5th DRAFT



United States, Appellant,l On Appeal From the Unitedv. States District Court for

Greater Buffalo Press. the Western District ofInc., et al. New York.

[June —, 1971]





REPRODUCED FROM THE COLE,XTIONS • TiTIF, MANUSCRIPT DIVIS,

REPRODUCED FROM HE COLUI,CTIONS TITE MANUSCRIPT DIVIS 6SadziNtiJ au ixa v

-=-

ikuvrtint trttrt at tire Vniteb Atatts

Attsfrington, 20;34

CHAMBERS orJUSTICE WM J. BRENNAN, JR. May 18, 1971

RE: No. 821 - United States v. GreaterBuffalo Press

Dear Bill:

I agree.

Mr. Justice Douglas

cc: The Conference

Sincerely,

W(Jr(W.A. . . a

PT

.§1trizzur Cfourt of rititauoirittorat,33. zapig

CHAMBERS OF

JUSTICE POTTER STEWART

May 20, 1971

No. 821 - U. S. v. Greater Buffalo Press

Dear Byron,

I am glad to join your concurring opinionin this case.

Sincerely yours,

(21k4

Copies to the Conference ct

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a

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CHAMBERS OF

JUSTICE POTTER STEWART

May 27, 1971

No. 821 - U. S. v. Greater Buffalo Press

Dear Bill,

I am glad to join your opinion forthe Court in this case, as recirculated today.

Mr. Justice Douglas

Copies to the Conference

To: TheMr.Mr.Mr.Mr.

r.

Mr.

Chief JusticeJustice BlackJustice DouglasJustice HarlanJustice BrennanJustice StewartJustice MarshallJustice Blackmun

1st DRAFT

SUPREME COURT OF THE UNITED STATES"' J.

Circulated:__ 6---)- 0 - 7 /No. 821.—OCTOBER TERM, 1970

United States, Appellant,v.

Greater Buffalo Press,Inc., et al.

On Appeal From the UnitedStates District Court forthe Western District of.New York.

[May —, 1971]

MR.. JUSTICE WHITE, concurring.I concur in the judgment remanding the cause for

further proceedings and in so much of the Court's opin-ion as holds that the District Judge erred in his assess-ment of the relevant market and in concluding that themerger was permissible under the failing company doc-trine. However, I would not here reach the questionof the appropriate remedy, for, as stated in United Statesv. DuPont & Co., 366 U. S. 316, 323 (1961), "we assignto the District Courts the responsibility initially tofashion the remedy, but recognize that while we accorddue regard and respect to the conclusion of the DistrictCourt, we have a duty ourselves to be sure that a decreeis fashioned which will effectively redress proved viola-tions of the antitrust laws." While I recognize that theDistrict Judge has here indicated that he feels divestitureinappropriate 15 years after the illegal acquisition, thepassage of time alone is not sufficient to render divesti-ture inappropriate. United States v. DuPont, 353 U. S.586, 590 (1957). The Court repeats this rule today.Beyond that we would perform our duty best by remand-ing the case and leaving the question of remedy to theDistrict Court in the first instance.

To: The Chief Justi3cMr. Justice BlackMr. Justice DouglasMr. Justice HarlanMr. Justice BrennanMr Justice Stewart

. Justice MarshallMr. Justice Blackmun

2nd DRAFT

SUPREME COURT OF THE UNITED STAIR'S' white ' J.Circulated :_

No. 821.—OCTOBER TERM, 1970Reciroul.9t,,,d • 7/

C

United States, Appellant,v.

Greater Buffalo Press,Inc., et al.

On Appeal From the UnitedStates District Court forthe Western District ofNew York.

[June —, 1971]

MR. JUSTICE WHITE, concurring.

I concur in the judgment remanding the cause forfurther proceedings and in so much of the Court's opin-ion as holds that the District Judge erred in his assess-ment of the relevant market and in concluding that themerger was permissible under the failing company doc-trine. However, I would not here reach the questionof the appropriate remedy, for, as stated in United Statesv. DuPont & Co., 366 U. S. 316, 323 (1961), "we assignto the District Courts the responsibility initially tofashion the remedy, but recognize that while we accorddue regard and respect to the conclusion of the DistrictCourt, we have a duty ourselves to be sure that a decreeis fashioned which will effectively redress proved viola-tions of the antitrust laws." While I recognize that theDistrict Judge has here indicated that he feels divestitureinappropriate 15 years after the illegal acquisition, thepassage of time alone is not sufficient to render divesti-ture inappropriate. United States v. DuPont & Co., 353U. S. 586, 590 (1957) ; United States v. DuPont & Co.,366 U. S. 316 (1961). The Court repeats this rule today.Beyond that I would simply remand this case and leavethe question of remedy to the District Court in the firstinstance, without implying that failure to order divesti-ture would be error.

REPRODUI'ED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION'i-LIBRARY-DF"CONGRES

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CHAMBERS OF

JUSTICE BYRON R. WHITE

May 26, 1971

Re: No. 821 - U.S. v. GreaterBuffalo Press, Inc.

Dear Bill:

You have cured my problemswith the first paragraph on p. 7.I suggest also striking the word"divestiture" in the third para-graph and making the indicatedsubstitution for the next to thelast paragraph.

Thanks very much.

Sincerely,

Mr. Justice Douglas

0

REPRODUCED FROM THE COLLkl,CTIONS MANUSCRIPT DIVIS6S.1111Z/NUO 1V fru v dux

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CHAMBERS OF

JUSTICE THURGOOD MARSHALL May 17, 1971

Re: No. 821 - United States v. Greater Buffalo Press

Dear Bill:

Please join me.

Sincerely,

Mr. Justice Douglas

cc: The Conference

T. M.

vay 21. 1971

Retz C 0 C c.

-"ear Byron!

W yen gloss* Join im• in your concurring

opinion tar this case.

Sincerely,

H.A.B.'

Mr. Juitice hit*

cc The Conference

C

Er_z.,: 821 s. v. Graterr Buffalo *set inc.

0

Dear Byres;

would now like to co-

Lott

Mr. .1 • White

ee: The ConS•rmace

M ay U. 1971

May 27, 1971

n0rRc No. iin ... v. G offal*ofitifis2t ► h!t=n

:Noor Silly

I sm =West Jolo yews recireelattes of today. Iwoad*: mildly *beet that iaelesies el the first tea wordsties socood Use oe part 7. That is a detail, howlever. whiebI shall lows to you sad Bryon widto to work o. Tao Fro..ones at tiles* words, of estarse. implies that some orsdo sot *hare the .laud view. The "matte* is whothos Iwoivaat tiiks divisteo to be eppesmat.

H.A. B.

us. Jesties Doses*

ce4 Tho Gealera►ee

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The Burger Court Opinion Writing Databasesupremecourtopinions.wustl.edu/files/opinion_pdfs/1970/70-821.pdf2nd DRAFT CircuLlt eci: SUPREME COURT OF THE UNITED STALFESziated NO. 821.—OCTOBER