# United States v. United States Gypsum Co. > Supreme Court of the United States · June 29, 1978 · 438 U.S. 422 URL: https://www.frixlaw.com/law-library/cases/9427335 ## Case - **Full name:** UNITED STATES v. UNITED STATES GYPSUM CO. Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 29, 1978 - **Citations:** 438 U.S. 422; 98 S. Ct. 2864; 57 L. Ed. 2d 854; 1978 U.S. LEXIS 131 - **Precedential status:** Published - **Opinion:** Concurring in part by Rehuquist - **Judges:** Rehuquist, Burger, Brennan, Marshall, White, Stewart, Powell, Rehnquist, Stevens, Blackmun - **Cited by:** 1,078 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9427335 ## How later opinions describe it (automated extraction) - recognizing that where the judge’s statements created risk that the jury would believe "the court was insisting on a disposi-tive verdict," the jury’s "swift resolution of the issues in the face of positive prior indications of hopeless deadlock, at the very least, gives rise … - holding that it was reversible error for the trial judge to engage in ex parte communications with the jury foreman, which amounted to supplemental instructions to the jury, without opportunity for counsel for the defense to clear up any confusion those supplemental instructio… - holding that “[t]he exchange of price data and other information among competitors does not invariably have anticompetitive effect ... we have held that such exchanges of information do not constitute a per se violation of the Sherman Act” - finding a court's comment to the foreman that he "wanted a verdict 'one way or the other' " could have pressured the jury since the foreman could have believed the court preferred a unanimous verdict over a mistrial - noting that an individual violation of the Sherman Antitrust Act is a felony punishable by three years in prison or a fine not exceeding $100,000 and stating that "[t]he severity of these sanctions provides further support for our conclusion that the [Act] should not be constr… ## Opinion text Mr. Justice Rehuquist concurring in part and dissenting in part. I concur in Part I and in the first portion of Part Y of the Court’s opinion approving the jury instruction on participation in the conspiracy. I dissent from the remaining portions of the opinion and set forth as briefly as possible my reasons for doing so. Part II of the Court’s opinion uses as its point of departure jury instructions on price fixing which the Court correctly characterizes as “not without ambiguity.” Ante, at 434. However, these jury instructions are but a starting point for the discourse in Part II of the Court’s opinion dealing with the element of intent in a criminal case, a discourse which I believe goes beyond any reasoning necessary to dispose of the contentions with respect to that point in this case. I do not find it necessary to decide the intent which Congress required as a prerequisite for criminal liability under the Sherman Act, because I believe that the instructions given by the District Court, when considered as a whole and in connection with the objections made to them, are sufficiently close to respondents’ tendered instructions so as to afford respondents no basis upon which to challenge the verdict. The jury instructions in this case take up some 40 pages of the record and are both detailed and complex. The judge instructed the jury as to both respondents’ contention that they exchanged price information solely to comply with the Robinson-Patman Act, and the Government’s contention that “the Defendants’ purpose was not merely to establish their good faith under the Robinson-Patman Act, but that *472 they exchanged competitive information for the purpose of raising, fixing, maintaining, and stabilizing prices. “It will be up to you, members of the jury, to resolve these issues. “First, you must determine whether there was an agreement, either implied or express, to engage in the practice of price checking or verification. . . . “Secondly, you must determine whether the purpose for the exchange of competitive information between the Defendants and their alleged co-conspirators was to insure a good faith meeting of competition, as a defense to the Robinson-Patman Act. “If you decide that, if you decide that this was merely done in a good faith effort to comply with the Robinson-Patman Act, then you could not consider verification, standing alone, as establishing an agreement to fix, raise, maintain, and stabilize prices as charged. “However, if you decide that the effect of these exchanges was to raise, fix, maintain, and stabilize the price of gypsum wallboard, then you may consider these changes [sic] as evidence of the mutual agreement or understanding alleged in the indictment to raise, fix, maintain, and stabilize list prices.” App. 1720-1721 (emphasis added). Read in conjunction with the above, the portions of the instructions quoted by the Court, ante, at 430, are not reversible error. The jury was instructed that it must find a purpose “to raise, fix, maintain, and stabilize list prices” and that this purpose could be presumed from the effect of respondents5 agreement. Respondents5 proposed instruction * does not *473 significantly differ from that given by the District Court. I might add that in my view it would take plainly erroneous instructions, the error of which was both quite precisely and reasonably pointed out to the District Court, to warrant reversal of a judgment entered upon a jury’s verdict following five months of trial. The portions of Part II which I find most troubling are not those which expressly address the congressionally prescribed requirement of intent for criminal liability under the Sherman Act, but those which discourse at length upon the role of intent in the imposition of criminal liability in general, particularly those which might be taken to import any special constitutional difficulty if criminal liability is imposed without fault. While the Court emphasizes that its result is not constitutionally required, ante, at 437, the Court’s broad policy statements may be misread by the lower courts. I also feel bound to say that while I am willing to respectfully defer to the views of the distinguished authors of the American Law Institute’s Model Penal Code, and to the authors of law review articles and treatises such as those sprinkled throughout the text of Part II of the Court’s opinion, I have serious reservations about the undiscriminating emphasis and weight which the Court appears to give them in this case. For similar reasons, I do not believe that it is necessary in this case to address the interrelationship of the Robinson-Patman Act’s meeting-competition defense and the Sherman Act, and I cheerfully refrain from that task. The jury was clearly instructed that if price information was exchanged “in a good faith effort to comply with the Robinson-Patman Act,” *474 this exchange by itself would not make out a violation of the Sherman Act. I believe that the communications between the judge and the jury foreman described in Part IV of the Court’s opinion, having been consented to by all parties to the case, would not justify a reversal of the verdict of the jury. I agree with that portion of Part V of the Court’s opinion which approves the charge given the jury concerning participation in the conspiracy, but disagree with that portion of Part V which seems to approve a more expansive instruction with respect to withdrawal from the conspiracy. In my opinion, neither of these instructions of the District Court was sufficient, either separately or together, to warrant reversal of the jury’s verdict of guilty. I therefore conclude that the judgment of the Court of Appeals should be reversed, and the judgment of the District Court based upon the jury’s verdict should be reinstated. “There has been evidence in this case of a defendant’s contacting a competitor to verify the existence or nonexistence of a reported lower price or other competitive condition in the market place. This practice has been referred to as 'verification.’ There is evidence that verification was engaged in by defendants for the purpose of compliance with the *473 Robinson-Patman Act, one of the federal antitrust laws. I charge you as a matter of law that no finding of guilt may be made in this case based on verification engaged in for the purpose of compliance with the Robinson-Patman Act. Further, to consider verification as any evidence whatsoever of an alleged price-fixing conspiracy you must first determine beyond a reasonable doubt that the purpose of verification was not compliance with the Robinson-Patman Act.” App. 1857. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9427335. Public record. Not legal advice.