Petition — CPC International Inc. v. Dimmitt Agri Industries, Inc.

Supreme Court, U.S,

rite ea

82-1169 |

| f "JAN10 1983

———— L. STEVAS

No. sore

In THE

Supreme Court of the United States

Ocroser Term, 1982

CPC Inrternationat Ino.,

Petitioner

v.

Druitt Acai Invustnies, Ino.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Rosert J. Marrnak

Counsel of Record

C. Bren Drm.on

Txeopore IF’. Wess, Je.

Baxer & Borts

3000 One Shell Plaza

Houston, Texas 77002

(713) 229-1234

Attorneys for Petitioner

Of Counsel:

CHartes Aan Wricur

727 East 26th Street

Austin, Texas 78705

QUESTIONS PRESENTED

1. Does a court of appeals have the power under 28

U.S.C. § 2106 to order a new trial of a jury finding that no

party has appealed and that the court need not examine in

order to dispose of a separate jury finding before it on

appeal?

2. Should this Court resolve the clear conflict between

the decision of the court below and decisions of this Court

holding that the Seventh Amendment right to a jury trial

precludes an order of a new trial based on a supposed con-

flict in jury findings that can readily be reconciled?

PARTIES IN THE COURT OF APPEALS

The parties to the proceeding in the court below are those

named in the caption of the case in this Court.

TABLE OF CONTENTS

Page

EE EE 1

ES Ue 1

Statutory and Constitutional Provisions Involved .. 2

CORI ss ccc sc sccccssecccccssecs 2

Reasons for Granting the Writ ................... 6

I. In Ordering a New Trial of a Jury’s Unchal-

lenged Finding That Was Independent and

Separate from the Only Finding on Appeal,

the Fifth Circuit Has Exceeded the Authority

of a Court of Appeals Under 28 U.S.C. § 2106. 6

A. Differences Between the Intent Require-

ments for the Monopolization and Attempt

to Monopolize Offenses .... ........... 12

B. Differences Between the Power Require-

ments for the Monopolization and Attempt

to Monopolize Offenses ............ ... 13

Il. The Fifth Cireuit’s Remand of the Jury’s

Finding on the Attempt to Monopolize Offense

Directly Conflicts with Prior Decisions of

This Court Concerning the Seventh Amend-

ment Right toa Jury Trial.................. 16

EL ON Gi, bens po de dabeicsccescesece 23

I Ns say decals tscadeccvscecees 24

pe ee Opinion of the Court Below

a a Judgment Below

ane Opinion Denying Suggestion

for Rehearing En Banc

ii

TABLE OF AUTHORITIES

Cases

Page

Alverez v. J. Ray McDermott & Co., 674 F.2d 1037

I SUED So eh Gales Cope oie res rs seas oh 18

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

Léd., 360 U.S. 366 (1962) ............... 17-18, 19-21

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429

Se LET i: eevee eis waa chee 22

Cone v. West Virginia Pulp & Paper Co., 330 US.

SEEN rhs taeda aude ts ukoneks 15

Franklin Music Co. v. American Broadcasting Cos.,

Se Me ee CUE RE MUD ids evckccecccsicwss 21

Gallick v. Baltimore & Ohio Railroad, 372 U.S. 108

SRE el Revert <dekae ed ane enay bs wes 18, 20

Harville v. Anchor-Wate Co., 663 F.2d 598 (5th Cir.

SOL) cathe clk SP brah ert Onyatwreinoad 18

Henry v. A/S Ocean, 512 F.2d 401 (2d Cir. 1975) . 21-22

Tacurci v. Lwmmus Co., 387 U.S. 86 (1967) ......... 20

Jones & Laughlin Steel Corp. v. Johns-Manville

Sales Corp., 626 F.2d 280 (3d Cir. 1980) ........ 21

Eirkendoll v. Neustrom, 379 F.2d 694 (10th Cir.

AR rr POR ba ony ag aE) Ne AA) oA RE MSD 22

Langnes v. Green, 282 U.S. 531 (1931) ............ 15

Larson v. Domestic & Foreign Commerce Corp., 337

SEED Sy ices ss Ree S CR OEG Ks» be uae ees 22

Mercer v. Long Manufacturing N.C., Inc., 665 F.2d

Oe en ID fs oi yav es cc noble oie oes 18, 20-21

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). 8

Morley Construction Co. v. Maryland Casualty Co.,

kas Gis BS, Ric Come ra

Neely v. Martin K. Eby Construction Co., 386 U.S.

DO ED eles pice keds cute ee scr: 10-11, 15

F

Ressler v. States Marine Lines, Inc., 517 F.2d 579

(2d Cir.), cert. denied, 423 U.S. 894 (1975) ....... 21

Smali v. Olympic Prefabricators, Inc., 588 F.2d 287

SBR ee Co Saves Geeta 15

Swift & Co. v. United States, 196 U.S. 375 (1905) ... 12

Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047

(4th Cir.), cert. denied, 429 U.S. 980 (1976) ...... 22

United States v. Aluminum Co. of America, 148 F.2d

if go) NESTE og era Sarr 12

United States v. American Railway Express Co., 265

SE RM a5 05 hws ip 4A Fpietetene wha 7-8, 15

United States v. General Motors Corp., 323 U.S. 373

ED ithe rh CoE ate mata EMS 79 'ek § io 22

United States v. Griffith, 334 U.S. 100 (1948) ...... 12

Wagner v. International Harvester Co., 611 F.2d 224

I BOE ne lai UdeGiaxtudaen vecvar save 21

Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S.

es SANS aati) anal emer 10, 20

Constitutional Provisions

Seventh Amendment .................. 2, 16-18, 21-22

Statutes

EEE Suave fuk aN by aaa Wh Sa RoR R 3

EE et ty Va og caaee alin ss ea evs’ 3, 12

EE a Lh 2 RECN Nt eed ac ggia'na'e was 3

NS RI IES RC 2

8 hore wi acces a bode Bw csv pias oeibs 1

I 6 wikia fl cay vee sede e dened eo 17

ACERT RSI a Te OD 2, 6, 10

iv

Treatises

Page

Il P. Arnzepa & D. Turner, Antrrrust Law

SO, ats cone taalnstalew ses a 13, 15, 18-19

5A J. Moore & J. Lucas, Moore’s Feperat Practice

CS RENN tar foe cers ah idekiees 03:5 46 Rae 10

9 J. Moors, B. Warp & J. Lucas, Moorr’s Fepera

Praoriog (2d ed. 1982) ................008- 6-7

15 C. Wrient, A. Mnizr & E. Cooper, Feperan

Practice anp Procepure (1976) ............

16 C. Wriacut, A. Mruer, E. Coorer & E. Gressman,

Feperat Practice anp Procepure (1977) .... 7

In THE

Supreme Court of the United States

Ocroser Term, 1982

No.

CPC Inrernationay Inc.,

Petitioner

v.

Diumitt Acari Inpustries, Inc.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals below is reported at

679 F.2d 516 and is reprinted as Appendix A. The opinion

of the court of appeals denying rehearing en banc is

reprinted as Appendix C.

JURISDICTION

The decision of the court of appeals was entered on

July 2, 1982. A timely suggestion for rehearing en banc

was denied by order of October 12, 1982. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

2

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

1. 28 U.S.C. § 2106 provides:

The Supreme Court or any other court of appellate

jurisdiction may affirm, modify, vacate, set aside

or reverse any judgment, decree, or order of a

court lawfully brought before it for review, and may

remand the cause and direct the entry of such appro-

priate judgment, decree, or order, or require such

further proceedings to be had as may be just under

the circumstances.

(emphasis added)

2. The Seventh Amendment of the United States Consti-

tution provides:

In Suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by jury,

shall be otherwise re-examined in any Court of the

United States, than according to the rules of the

common law.

STATEMENT OF THE CASE

Petitioner (defendant below), CPC International Inc.

(“CPC”), is engaged in the business of corn wet milling,

which consists of producing and selling cornstarch, corn

syrup, and other products derived from corn as a raw

material. In 1974, Respondent (plaintiff below), Dimmitt

Agri Industries, Inc. (“Dimmitt”), sued CPC and eight

other corn wet millers,’ alleging that in 1971 and 1972,

defendants had lowered their prices in order to drive Dim-

mitt, a new entrant, out of business. Dimmitt sought juris-

diction under 15 U.S.C. § 15 and alleged five different anti-

trust offenses: (1) a price fixing conspiracy under Section

1 All of the defendants except CPC settled before trial.

3

1 of the Sherman Act;? (2) conspiracy to monopolize, (3)

attempt to monopolize, and (4) monopolization, all under

Section 2 of the Sherman Act;? and (5) price discrimina-

tion under the Robinson-Patman Act.‘

During the seven-week trial of this lawsuit, Dimmitt and

CPC offered the jury two dramatically different views of

events in the corn wet milling industry during 1971 and

1972. See 679 F.2d at 522-25. With respect to its charges of

monopolization and attempt to monopolize, Dimmitt pre-

sented evidence, primarily through CPC’s internal memo-

randa, which allegedly showed that CPC had lowered its list

prices for cornstarch and corn syrup in order to stabilize

price levels, to discourage other competitors from entering

or expanding, and specifically to eliminate Dimmitt from

the market. Id. at 522-24. CPC, on the other hand, provided

evidence that increased production in the industry had

caused a substantial excess of supply over demand for

cornstarch and corn syrup, that the excessive supply along

with other market factors beyond the control of CPC had

led to a severe price war during 1971 and 1972, and that

CPC had adopted a defensive strategy of reducing prices

to meet competitive offers in order to prevent further

erosion of its market shares and indeed to assure its

survival in the industry. Id at 524-25.5 Thus, in order to

answer interrogatories concerning Dimmitt’s antitrust

charges, particularly the monopolization and attempt to

monopolize counts, the jury had to resolve the basic dispute

between the parties concerning CPC’s posture and motives

in lowering its prices for cornstarch and corn syrup.

After both parties had rested, the trial court, over CPC’s

objection, submitted the case to the jury on all of the above

215 U.S.C. §1.

315 U.S.C. § 2.

415 U.S.C. § 13.

5 See Brief of Appellant at 3-10.

4

five theories. The jury returned a verdict consisting of

special interrogatory answers in CPC’s favor on all claims

except monopolization, and on that issue the jury found

that CPC had monopolized the national markets for corn-

starch and corn syrup. The jury further found that

Dimmitt had been injured by CPC’s antitrust violation in

the amount of $1,500,000.

CPC filed a timely motion for judgment nothwithstand-

ing the verdict with respect to the monopolization finding

on the ground that CPC, as a matter of law, did not possess

monopoly power during the relevant time period of 1971

and 1972. Dimmitt did not challenge the jury’s findings in

any respect and moved for judgment on the verdict. The

trial court denied CPC’s motion for judgment n. o. v. and

entered judgment for Dimmitt in the amount of

$5,300,000.00, representing treble damages of $4,500,000.00

plus attorneys’ fees of $800,000. CPC appealed from the

denial of its motion for judgment n. o. v.; Dimmitt did not

cross appeal.

The undisputed evidence was that during 1971 and 1972,

CPC’s “maximum possible market shares were 25 percent

and 17 percent for the national cornstarch and national

corn syrup markets respectively.” 679 F.2d at 528. Because

of these low market shares and the absence of sufficient

countervailing conduct evidence of control over prices, the

Fifth Cireuit Court of Appeals held that the trial court’s

judgment based on the jury’s finding of monopolization

must be reversed as a matter of law. 679 F.2d at 530-31.

At that point, however, rather than rendering judgment for

® The special inte tories, along with the jury's answers, are

FA the Fifth * ra opinion. See 4 ‘a 519-20 n.2.

monopolization ory, No. Il, not specif-

ically vege relevant markets, assumes for purposes of

at the jury found monopolization of both relevant

by Dimmitt.

5

CPC, the court of appeals went on to consider the jury’s

finding on ‘he attempt to monopolize offense, even though

Dimmitt had never challenged or appealed from this

finding.

With respect to the first element of the attempt offense,

the requirement of a specific intent to monopolize, the court

found that the only possible view of the evidence was that

CPC had acted with such specific intent in lowering its

prices for cornstarch and corn syrup. Jd. at 534. With

respect to the requirement of a dangerous probability of

success, the second element of the attempt to monopolize

offense, the court felt that after finding that CPC possessed

monopoly power for purposes of its answer to the monopo-

lization interrogatory, the jury could not have also found

that there was no dangerous probability of monopolization

by CPC. Jd. In sum, according to the court of appeals,

“(t]he only conceivable explanation for the jury’s verdict”

was that its affirmative finding on the monopolization

interrogatory made an affirmative finding of an attempt to

monopolize “redundant and unnecessary.” Jd. Based on

this supposedly unambiguous and indisputable conclusion,

the court, swa sponte, reversed the attempt verdict and

remanded it for a second trial, citing Fed. R. Civ. P. 50(d)

as authority for this ruling. /d.

CPC submitted a suggestion for rehearing en bance to the

Fifth Cireuit, urging that Fed. R. Civ. P. 50(d) does not

authorize a court of appeals to order a new trial of an

unchallenged jury finding. In addition, CPC contended that

because there was no irreconcilable conflict between the

jury’s findings on the monopolization and attempt to

monopolize interrogatories, the court of appeals could not

order a new trial of the attempt to monopolize finding

without violating CPC’s Seventh Amendment right to a

jury trial. The Vifth Circuit denied the suggestion for

rehearing en bane, and the present petition followed.

6

REASONS FOR GRANTING THE WRIT

I. In Ordering a New Trial of a Jury’s Unchallenged

Finding That Was Independent and Separate from

the Only Finding on Appeal, the Fifth Circuit Has

Exceeded the Authority of a Court of Appeals Under

28 U.S.C. § 2106.

United States courts of appeals derive their existence .

from Article II of the Constitution and possess only such

jurisdiction as is conferred by statute.’ 28 U.S.C. § 2106

provides that a court of appeals can rule only with respect

to a judgment, decree, or order “lawfully brought before

it for review.” From a jurisdictional standpoint, this Court

has never declared the limits imposed on courts of appeals

in ordering new trials of jury findings that have not been

appealed. This case presents an opportunity for the estab-

lishment of a basic rule that will prevent courts of appeals

from abusing their power in reviewing non-appealed jury

findings.

The fundamental statutory issue posed by this petition

is one of appellate court power. The judgment that was

“lawfully brought before [the court of appeals] for review”

in this case was entered pursuant to a jury verdict that

CPC was liable for the offense of monopolization; the other

counts, including attempt to monopolize, were rejected by

the jury and duly dismissed. The court of appeals reversed

the monopolization verdict as a matter of law on the basis

of CPC’s lack of monopoly power. The question now pre-

sented is whether the court of appeals, having dismissed

the monopolization count, had authority, on its own motion,

to review, reverse, and remand the attempt count although

(1) Dimmitt had not challenged the jury’s negative finding

7 "1 See 9] te! Moone, B. Warp & J. Lucas, Moone’s Feperan Practice

Roce li Re oB ); 15 C. Waricut, A. Minter, & E.

Fepenat Practice AND Procepune § 3901, at 395 (1976).

7

on this count, (2) the district court had not seen fit to order

a new trial of the attempt count on its own motion pur-

suant to Fed. R. Civ. P. 59(d), and (3) consideration of the

attempt issue was not necessary to the Fifth Circuit's

determination of the matter before it for review.

While this petition focuses on the power of an appellate

court to reverse non-appealed jury findings on its own

motion, the scope of matters properly before a court of

appeals is ordinarily cireumscribed by the obligation of

litigants to preserve and appeal errors allegedly committed

in the district court. One of the most basic and hallowed

principles of appellate procedure is that a court of appeals

will not consider alleged error with respect to a jury find-

ing that has not been appealed. For #xample, when a

defendant appeals concerning alleged error in connection

with a jury finding based on one of a plaintiff’s multiple

legal theories, the plaintiff as appellee must cross appeal)

in order to assert error with respect to a finding on a

separate and independent theory.* In United States v.

American Railway Express Co., 265 U.S. 425 (1924),

Justice Brandeis provided the classic statement of the rules

concerning the scope of an appellee’s rights as follows:

It is true that a party who does not appeal from

a final decree of the trie! court cannot be heard in

opposition thereto when the case is brought here by

the appeal of the adverse party. In other words, the

appellee may not attack the decree with a view either

to enlarging his own rights thereunder or of lessening

the rights of his adversary, whether what he seeks is

to correct an error or to supplement the decree with

respect to a matter not dealt with below. But it is like-

wise settled that the appellee may, without taking a

eae) home, oor, B. Wano & J. Lucas, Moone’s Fepenat Practice

gs 1 [2] - (3), at 4-42 to 4-44 44 (2d ed. 1982); 16 C. Wricurt,

Cooper & E. GressMAN, FEDERAL PRACTICE AND

Procunene § $060, at 367-68 (1977).

cross-appeal, urge in support of a decree any matter

appearing in the record, although his argument may

involve an attack upon the reasoning of the lower

court or an insistence upon matter overlooked or

ignored by it.

Id. at 435. Thus, an appellee must preserve error and file

an appeal in order to have standing to seek modification

or reversal, as opposed to an affirmance, of the district

court’s judgment.

In Morley Construction Co. v. Maryland Casualty Co.,

300 U.S. 185 (1937), a surety sued a contractor for which

it had issued a bond in connection with a construction con-

tract. The surety alleged two separate theories of liability

—exoneration and specific performance. The trial court

held that the surety was entitled to exoneration, but not

to specific performance, and entered judgment accordingly.

Id. at 189. Only the contractor appealed. After rejecting

the judgment based on exoneration, the court of appeals

held in favor of the surety on a theory of specific perform-

ance, This Court granted certiorari “to fix the measure of

relief available to a non-appealing suitor.” Jd. at 190.

After quoting the relevant language from American Rail-

way Express Co., Justice Cardozo declared that the rule of

that case “is inveterate and certain.” Jd. at 191.° While

recognizing that exoneration and specific performance are

“not very different,” this Court nevertheless held that

specific performance could not be awarded because the

appellee had not raised this issue on appeal. 7d. at 193.

The decree of the court of appeals was therefore reversed.”

*A long line of decisions was cited in support of this proposi-

In the context of a petition for certiorari, this Court reaffirmed

the rule of M Construction a Poy Meer |

my (tt Co. in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 38

n. .

9

The decision of the Fifth Circuit in this case is contrary

to these well-settled rules governing the rights of an ap-

pellee. In asserting a power to act on its own which courts

have denied to the non-appealing litigants themselves, the

Fifth Circuit has aggrandized appellate powers with con-

siderable potential for extending and even redirecting the

course of a litigation. After holding as a matter of law

that there was insufficient evidence to support the jury’s

affirmative finding of monopolization, the court refused to

enter judgment for CPC and instead ordered a new trial of

the totally independent negative finding on the attempt to

monopolize count, which Dimmitt had not appealed, If

appellate courts may intervene in this fashion, particularly

with respect to multiple count verdicts, the final resolution

of a lawsuit may become an ever-receding horizon.

The Fifth Cireuit made no effort to justify this assertion

of appellate prerogative other than to cite Fed, R. Civ. P.

50(d) as the source of its supposed authority to order a

new trial on the attempt to monopolize count, 679 F.2d at

534. Rule 50(d) specifies the rights of an appellee when the

trial court has denied a motion for judgment n. o. v. filed

by the appellant. In this case, the Fifth Cireuit’s order of

a new trial on the attempt finding was completely beyond

the scope of the monopolization finding that formed the

basis of CPC’s motion for judgment n. 0. v. While the last

sentence of Rule 50(d) indicates that a court of appeals

may order a new trial on its own motion, nothing in this

language or the Advisory Committee’s notes to Rule

50(d)" suggests that this power to require a new trial

11 See Appendix C (quoting a portion of these notes), In fact, the

Advisory Committee's notes state that “Subdivision

(d) does not a a on of ll capente of the cantatas

where the motion for ju n.o.v, and any

motion for a new trial are denied, since the problems have

10

extends to a jury finding independent and separate from

the finding as to which the motion for judgment n. o. v. was

filed." Moreover, Rule 50(d) cannot add to the scope of

statutory authority granted by Congress to courts of

appeals under 28 U.S.C. § 2106.

Tn short, CPC submits that an appellate court’s power to

adjudicate derives from the issues lawfully brought before

it by the litigants. Accordingly, a court of appeals may not

sua sponte reverse a jury findire that has not been

appealed unless such action is unavoidably necessary to the

court’s determination of the matter on appeal. If, for

example, a non-appealed jury finding was in conflict with

an appealed finding that was being remanded for a

new trial, the court of appeals might conclude that both

been fully canvassed in the decisions and the procedure is in

some respects still in a formative stage.”

In Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S, 801

(1040), cited in the Advisory Committee's notes, this Court held

that the defendant could not be liable as a common carrier for

failure to exercise the highest degree of care, but then remanded

for consideration of whether a new trial should be ordered con-

cerning the defendant's alleged negiigence as a general agent.

In ordering consideration of a new trial, the Court may well have

been influenced by the fact that it had first declared on the very

same day that a general agent like the defendant could not be

liable as a common carrier. Id. at 805. In any event, Weade

turned on the standard of care applicable to the defendant under

one given set of facts rather t two separate offenses with

different elements and different supporting facts. See infra

pp. 11-15,

12 Nor does Professor Moore's treatise, which is cited by the Fifth

Circuit (679 F.2d at 534), provide support for the proposition

that when an appellate court has reversed and rend judgment

on a properly appealed jury finding, Rule 50(d) authorizes the

court to reverse and remand for retrial an independent finding

as to which no a was filed. See 5A J. Moone & J. Lucas,

Moore's Fepenat { 50.15 (2d ed. 1982),

In Neely v. Martin K. Eby Construction Co., 386 U.S, 317, 329

(1967), this Court said in dictum that under Rule 50(d), “[iJf

appellee presents no new trial issues in his brief or in a petition

11

claims must be remanded in order to provide a meaningful

and comprehensive second trial. In this case, however, the

monopolization finding was not remanded for a new trial

and the Fifth Cireuit did not need to rule on the attempt to

monopolize finding in order to dispose of the issue raised

on appeal by CPC concerning the mornopolization finding.

Indeed, the sole basis of the Fifth Circuit’s decision to

order a new trial on the attempt to monopolize count is its

conclusion that after finding CPC guilty of monopolization,

the jury presumably felt that it would be “redundant and

unnecessary” to find CPC also guilty of an attempt to

monopolize, 679 F.2d at 534. In effect, the court is saying

that if the jury had known that its monopolization finding

would be rejected as a matter of law, it would surely have

found CPC guilty of an attempt to monopolize. Thus, in

order to justify its decision to reverse and remand the

negative finding on the attempt to monopolize count, the

court has necessarily determined that this finding is in

irreconcilable conflict with the affirmative finding on the

monopolization count. Even if the court were authorized

to engage in this strained and speculative effort to link the

monopolization and attempt to monopolize findings, its

inference of an inherent conflict is fallacious because the

elements of these two offenses are different and substantial

evidence in the record independently supports the jury’s

negative finding on the attempt to monopolize charge.

12

A. Differences Between the Intent Requirements for the

Monopolization and Attempt to Monopolize Offenses

As the jury in this case was clearly instructed, there are

two fundamental differences between the intent elements of

the monopolization and attempt to monopolize offenses

under Section 2 of the Sherman Act, 15 U.S.C. § 2. See 679

F.2d at 531-32 n.17. First, the intent requirement for an

attempt to monopolize is more stringent because the

defendant must have acted with a specific intent to acquire

monopoly power — the power to control prices or exclude

competition in the relevant market.’ For monopolization,

on the other hand, all that is required is proof of a general

intent to engage in conduct later determined to be anticom-

petitive because, in the words of Judge Learned Hand, “no

monopolist monopolizes unconscious of what he is doing.”

United States v. Alumnium Co. of America, 148 F.2d 416,

432 (2d Cir. 1945). Second, the intent requirement for an

attempt to monopolize can be met only by evidence that the

defendant was seeking to acquire monopoly power. 679

F.2d at 531-32 n.17. The intent element of monopolization,

by contrast, can be satisfied by proof that the defendant

willfully either “obtained, or maintained,” monopoly power.

Id. (emphasis added).

While a detailed review of the evidence seems inappro-

priate in this application for certiorari, even the brief

references to CPC’s proof in the Fifth Circuit’s opinion

demonstrate that the jury could readily have concluded

that CPC’s intent was sufficient for monopolization, but

not for an attempt to monopolize. See, e.g., 679 F.2d at

524-25. Logically, if the jury concluded that CPC already

had monopoly power for purposes of its monopolization

finding, it would be reasonable also to decide that CPC was

13 See 679 F.2d at 531-33 & n.17; United States v. Griffith, 334 U.S.

100, 105-06 (1948); & Co. v. United States, 196 U.S. 375,

396 (1905) earns .); United States v. Aluminum Co. of

America, 148 F.2d 416, 431-32 (2d Cir. 1945).

13

not simultaneously attempting to acquire monopoly power.

Furthermore, since the undisputed evidence was that CPC’s

market share goals were no higher than its actual market

shares during 1971 and 1972, the jury could reasonably

have found that CPC was attempting to maintain its exist-

ing market power — and not to acquire additional power.

Dimmitt contended that CPC’s predatory pricing prac-

tices demonstrated its specific intent to monopolize. More

specifically, Dimmitt alleged that CPC had engaged in pre-

datory pricing designed to increase its market shares and

thoreby to achieve monopoly power over sales of cornstarch

and corn syrup. In response, CPC maintained that its

pricing practices were competitive, directed toward defend-

ing its market shares—and not predatory. If the jury

accepted CPC’s contention that it had not engaged in

predatory pricing, they could readily have concluded that

CPC’s conduct was sufficient to constitute monopolization,

but not an attempt to monopolize. See 679 F.2d at 531-32

n.17,35

B. Differences Between the Power Requirements for the

Monopolization and Attempt to Monopolize Offenses

The power elements of the monopolization and attempt

to monopolize offenses are different: monopolization

requires proof that the defendant actually possessed

monopoly power, while an attempt to monopolize can

occur even if there is only evidence of a dangerous prob-

ability that the defendant will succeed in acquiring monop-

oly power. It is conceivable that a party could be found

liable for monopolization and attempt to monopolize in the

same lawsuit. Because of the differences between the pow-

14 See 679 F.2d at 521, 527 n.9.

15 See III P. Aneepva & D. Turner, ANTITRUST 4 {7 711, 829

1978 ae tly recognizes the weakness of

Dimi’ evidence the predancey cristo tase." See 70 FSd

a

14

er elements of these two offenses, however, the violations

could not occur simultaneously; the attempt to monopolize

would necessarily precede the monopolization. As the

defendant’s market share increased, it would move from

posing a dangerous threat of acquiring monopoly power

(an attempt to monopolize) to the actual possession of

monopoly power (monopolization). In this case, however,

it is undisputed that CPC’s market shares for cornstarch

and corn syrup did not increase during the relevant time

period of 1971 and 1972. Thus, the same course of conduct

alleged to have brought about Dimmitt’s business failure

in 1972 could not have been thought to result both from

the exercise of monopoly power and an effort to acquire

such power. The jury, clearly, chose the former view of

these events.

An even more basic question concerns why the Fifth Cir-

cuit should rely on the inherently subjective process of

psychoanalyzing the jury as a substitute for an objective

review of the evidence in the record concerning the danger-

ous probability issue. Since the court determined that there

was insufficient evidence to support the finding that CPC

possessed monopoly power, it would certainly be reasonable

to conclude that Dimmitt had also failed to meet its burden

of proving a dangerous probability of CPC’s success in

acquiring monopoly power. Specifically, given the court’s

recognition that market shares of 25% or less were not

consistent with the existence of monopoly power, and given

the undisputed evidence that CPC’s maximum market share

goals were 25% for cornstarch and 17-18% for corn syrup

(679 F.2d at 527 n.9), the record could support only one

conclusion — there was no dangerous probability that CPC

would succeed in achieving a monopoly.'®

16 The Fifth Circuit did not even mention the undisputed evidence

of significant new entry and expansion in the relevant markets for

cornstarch and corn syrup, as well as the undisputed evidence

15

Thus, the jury’s findings on monopolization and attempt

to monopolize can readily be reconciled, and the no attempt

to monopolize finding stands on its own, fully supported

by substantial evidence in the record. Under these cireum-

stances, the court of appeals did not need to remand the

no attempt to monopolize finding for a new trial in order to

dispose of the monopolization finding.

This Court has never specifically addressed the question

of the limits on the authority of courts of appeals to order

new trials of jury findings that have not been appealed.'”

Because this area of the law is not settled, however, the

Fifth Circuit’s claim of unlimited jurisdiction to order new

trials under Rule 50(d) creates a serious problem for fed-

eral district courts. Several members of this Court have

spoken in recent years concerning the increasingly burden-

some caseloads of district courts which threaten to under-

conce the extreme competitiveness of these markets, which

totally undermine the contention that CPC was likely to succeed

in monopolizing these markets, See Brief of A a at 31-38;

III P. Aneepa & D, Turner, Antitrust Law { 831, at 336 (1978).

17Qn more than one occasion, however, this Court has indicated

that trial courts are far better qualified than courts of appeals to

determine whether new trials should be ordered. See Neely v.

Martin K. Eby Constr. Co., 386 U.S. 317, 325 (1967); Cone v.

West Virginia Pulp & Paper Co., 330 U.S. 212, 216 (1947). a

Small v. Olympic Prefabricators, Inc., 588 F.2d 287, 290 (

Cir. 1978) (Under Oregon law, an appellate court does not have

power to reverse a judgment based on an error that has not been

preserved and appealed. ).

In Langnes v. Green, 282 U.S. 531 (1931), this Court stated in

dictum that it had jurisdiction to review objections even —_

they had not been raised in a petition for certiorari. Id at 538.

The Court held, however, that in any event, the respondent's

failure to raise an objection in a cross-petition for certiorari was

immaterial because in beige Se x objection, he was seeking to

Po a pthery © Bw Bn aen ‘ decree of mag ste . appeals.

. r4 tates v. American Railway Express Co., supra

pp. 73). In addition, the Court did not discuss, even in dictum,

special circumstances that would justify its exercise of this

admittedly limited jurisdiction.

16

mine our entire system of justice. The record of the

district court’s performance in this case, including her

submission of all five claims asserted by Dimmitt, dem-

onstrates that she conscientiously and carefully gave

Dimmitt a full and fair trial.!* The district courts in this

country have more than enough cases to ty without having

unnecessary retrials imposed because appellate courts dis-

agree with the jury’s assessment of conflicting evidence.!®

CPC urges this Court to declare that a court of appeals

has no authority to order a new trial of a jury finding that

has not been appealed and that need not be considered in

order to dispose of a separate finding properly raised on

appeal.

II. The Fifth Circuit’s Remand of the Jury’s Finding on

the Attempt to Monopolize Offense Directly Con-

flicts with Prior Decisions of This Court Concerning

the Seventh Amendment Right to a Jury Trial.

The Seventh Amendment of the Constitution provides

that in federal civil lawsuits, “the right of trial by jury

shall be preserved, and no fact tried by jury, shall be

otherwise re-examined in any Court of the United States,

than according to the rules of the common law.” (emphasis

added) By positing a supposed inconsistency in jury find-

ings that can readily be explained and reconciled, the Fifth

Circuit has violated established principles declared in pre-

19 A court of a remote from the realities of the trial, readily

——- to accept the documentary record before it as the

in

the merits, the court recast the jury's Section 2 findings to con-

its views, thereby subverting the no attempt verdict in

to

to justify relitigating the case.

17

vious decisions interpreting the Seventh Amendment.”

To insure the continued vitality of our jury trial system,

this Court should announce clearly that under the Seventh

Amendment, a conflict in jury findings must be unambig-

uous and irreconcilable in order for a court of appeals to

order a new trial.

In Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

Ltd., 369 U.S. 355 (1962), the court of appeals had held that

the facts found by the jury as the basis for the primary

defendant’s liability also necessarily established a third-

party defendant’s liability under a related, but distinct,

claim; accordingly, after affirming the judgiient against

the primary defendant, it had reversed the judgment for

the third-party defendant. This Court reversed the court

of appeals and reinstated the entire jury verdict:

We might agree with the Court of Appeals had the

questions of fact been left to us. But neither we nor

the Court of Appeals can redetermine facts found

by the jury any more than the District Court can

predetermine them. For the Seventh Amendment

says that “no fact tried by a jury, shall be otherwise

reexamined in any Court of the United States, than

according to the rules of the common law.”

Id. at 358-59 (emphasis added).

The Court in Atlantic d Gulf Stevedores determined

that the apparent conflict within the jury’s verdict could

rationally be attributed to the slight differences between

the theories under which the defendant and the third-party

defendant were alleged to be liable. That being the case,

2 The Fifth Circuit relies on Fed. R. Civ. P. 50(d) as su

authority for its new trial order in this case. 28 U.S.C. § 2072,

however, explicitly states that the rules of civil procedure promul-

sep Papi ape May cot 2 gr ond a ol ede

Se ak ce cebune tae’ tnd ax ucla Ue Gao Orel Aa -

ment to the Constitution.”

18

the court of appeals was barred by the Seventh Amend-

ment from upsetting the jury’s verdict based on its own

view of the evidence:

Where there is a view of the case that makes the jury’s

answers to special interrogatories consistent, they

must be resolved that way. For a search for one pos-

sible view of the case which will make the jury’s find-

ing inconsistent results in a collision with the Seventh

Amendment.

Id. at 364 (emphasis added). In Gallick v. Baltimore &

Ohio Railroad, 372 U.S. 108, 119 (1963), this Court reiter-

ated that courts “must attempt to reconcile the jury’s find-

ings, by exegesis if necessary, ... before [they] are free to

disregard the jury’s special verdict and remand the case

for a new trial.”

In explaining its rationale for ordering a new trial, the

Fifth Cireuit does not expressly rely on a supposed conflict

between the jury’s findings on the monopolization and

attempt to monopolize offenses. See 679 F.2d at 533-34.

Rather, according to the court, a new trial is required

because “[t]he only conceivable explanation for the jury’s

verdict” is that the jury felt an affirmative finding of an

attempt to monopolize was “redundant and unnecessary”

after it had found CPC guilty of monopolization. Jd.®*

22 As support for this conclusion, the Fifth Circuit quotes the

Areeda and Turner treatise as follows: “To say that one who

has monopolize is redundant

and adds nothing to the scope of available remedies. The

19

This conclusion, however, necessarily implies that under

the court’s view of the evidence, the jury could not possi-

bly have found CPC liable for monopolization and not

liable for an attempt to monopolize. Thus, in the Fifth

Cireuit’s view, a new trial will allow a second jury to

return the verdict on the attempt to monopolize count that

the first jury presumably would have reached if it had

known that its monopolization finding would be set aside.

As previously explained, there is no irreconcilable con-

flict between the jury’s affirmative finding on monopoliza-

tion and its negative finding on attempt to monopolize.

See supra pp. 11-15. It is mere speculation for the Fifth

Cireuit to assert unequivocally that the jury felt a finding

of an attempt to monopolize was “redundant and unneces-

sary” in light of its finding of monopolization. For any of

several reasons relating to the differences between the

elements of the two offenses and the evidence required to

prove those elements, the jury could logically have found

that CPC had monopolized the relevant markets for corn-

starch and corn syrup, but had not also attempted to

monopolize those markets. Contrary to this Court’s diree-

tive in Atlantic & Gulf Stevedores, the court of appeals in

this case has engaged in “a search for one possible view of

attempt is into the completed offense.” 679 F.2d at 531,

ease OTs) P. Ancepa & D, Turner, Antrraust Law { 83060,

t :

This quotation, however, should not be construed to support

the proposition that there is no difference between the m

olization and attempt to monopolize offenses. The sentence in

treatise immediately following the two quoted sentences makes

this point clear: “Of course, the plaintiff may plead both offenses

and allow the court to base its tion on either or neither

offense as the evidence emerges.” (emphasis added) Even the

Fifth Circuit acknowledges that the two offenses do not inevitably

occur together: “Note that we are not saying that all monopoliza-

Soo involve an attempt offense.” 679

at 534 n.20,

20

the case which will make the jury’s finding inconsistent”

when there are several other views that make “the jury’s

answers to special interrogatories consistent.” See 369

U.S. at 364.

This is not a case such as Weade v. Dichmann, Wright ¢

‘Pugh, Inc., 387 U.S. 801, 808-09 (1949), where there was

evidence supporting a second basis of liability, but that

issue had not been submitted to the jury. Nor is this case

like Jacurci v. Lummus Co., 387 U.S. 86 (1967), where the

jury found the defendant negligent in one respect and

simply did not answer four additional interrogatories

inquiring about other possible grounds of negligence. In

these two cases, there were no jury findings to be protected

by the Seventh Amendment. Furthermore, the failure of

the Jacurci jury to answer the four interrogatories strongly

indicated that it considered such answers “redundant and

unnecessary” in the light of the answer it had already

given.™ In this case, it is only surmise by the Fifth Cireuit

that the jury reached a similar conclusion in answering

affirmatively on the monopolization interrogatory and

negatively on the attempt to monopolize interrogatory.

The test of when answers to interrogatories are so in

conflict that they cannot be reconciled is properly a

stringent one. See, e.g., Gallick v. Baltimore & Ohio Rail-

road, 372 U.S. 108, 119-21 (1963). In Mercer v. Long

Manufacturing N.C., Inc., 665 F.2d 61 (5th Cir. 1982), the

21

jury found that the defendant had committed a breach of

warranty, but had not violated the Texas Deceptive Trade

Practices Act, even though the jury had been instructed

tiat a breach of warranty is a violation of the Act. The

Fifth Cireuit held that this conflict in jury findings satis-

fied the Seventh Amendment test and remanded both

findings for a new trial. Jd. at 65-66. In this ease, by

contrast, the monopolization and attempt to monopolize

counts required different elements of proof, the jury was

separately instructed concerning those different elements,

and the jury was expressly instructed that three separate

offenses are included within Section 2 of the Sherman Act

and that “[y]ou are to consider separately the facts with

regard to each alleged offense.” 679 F.2d at 531-32 & n.17.

Thus, in concluding that “[t)he only conceivable explana-

tion” for the negative answer on the attempt to monopolize

count was that “the jury saw the attempt offense as

redundant and unnecessary given its finding of the more

serious violation” (679 F.2d at 534), the Fifth Circuit has

assumed that the jury disregarded the explicit instruction

to consider separately the facts with regard to each alleged

offense, has violated CPC’s Seventh Amendment right to a

jury trial, and has rendered a decision in direct conflict with

prior decisions of this Court.“

% The Fifth Circuit's new trial order also conflicts with decisions of

other courts of appeals which have followed Atlantic & Gulf

Stevedores pga hae oT de v. Johns-Manville

agg 3 thal Sarl a lag ); Franklin Music

22

Under the evidence in this case, as noted above, CPC

could not possibly have been both monopolizing and

attempting to monopolize to Dimmitt’s detriment during

the relevant time period. See swpra pp. 13-14. These two

separate antitrust charges presented the jury with alter-

native, indeed inconsistent, versions of the events in 1971

and 1972 which led to Dimmitt’s business failure. The

jury’s findings indicate that it accepted a factual view based

on a theory of defensive monopolization, albeit on a legally

erroneous premise concerning the requirements for proof

of monopoly power, Yet the remand ordered by the court of

appeals would permit a second jury to take a different

and perhaps contradictory view of the same basic facts.

The Seventh Amendment was obviously designed to pre-

vent such an anomalous result,”®

401, 405-06 (2d Cir, 1975); Kirkendoll v. Neustrom, 379 F.2d

604, 699 (10th Cir, 1967), Cf. Te, Inc, v, Acme-McCrary

Corp., 5Al F.2d 1047, 1055 (4th Cir.) (Because “our power of

review continues to be limited by the Seventh Amendment, . . .

[w]e may not... weigh the evidence, pass on the credibility of

witnesses, or substitute our judgment of the facts for that of the

jury.”), cert. denied, 429 U.S. (1976).

*5 The fact that the Fifth Circuit has ordered a new trial should

not deter this Court from poe application for certiorari.

This Court has reviewed new orders issued by courts of

appeals when the ruling below was “fundamental to the further

conduct of the case.” United States v, General Motors ag 323

U.S, 373, 377 (1945). See, of. Brunswick Corp. v. Pueblo

Bowl-O-Mat, Inc., 420 U.S. 477 (1977); Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. So th In this case, a

in this petition for

certiorari would finally conclude this protracted antitrust suit,

Furthermore, CPC’s Seventh Amendment rights are meaningless

Se can only be invoked after a lengthy and expensive second

23

CONCLUSION

The antitrust issues in this case have now been fully

resolved: the court of appeals reversed as a matter of law

the judgment based on monopolization, the jury’s only

finding in Dimmitt’s favor. The Fifth Circuit’s order of a

new trial on the attempt to monopolize count, however,

raises procedural and constitutional issues of far broader

significance which concern the critical division of respon-

sibilities between judges and juries in our system of juris-

prudence, CPC respectfully urges this Court to consider

these important issues, to preserve the integrity of the

American jury system, and to reverse the unprecedented

order of the Fifth Circuit.

Respectfully submitted,

Rosert J. Mauiwak

Counsel of Record

C. Bren Dron

Trropore F’, Weiss, Jr.

Baxer & Borts

3000 One Shell Plaza

Houston, Texas 77002

(718) 229-1234

Attorneys for Petitioner

Of Counsel:

CHarntes ALAN Wnricnt

727 East 26th Street

Austin, Texas 78705

24

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Petition for

a Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit were sent by United States mail, first-

class postage prepaid, to the following counsel of record

for Respondent, Dimmitt Agri Industries, Inc., this 10th

day of January, 1983:

Josern M,. Axioro

Auroro & Axioro

111 Sutter Street

San Francisco, CA 94104

James W. WirHersroon

Wrruersroon, Aiken &

LANGLEY

P. O. Box 1818

Hereford, TX 79405

CORP. 80.08 88 6 0 8 £868 016 8a eo 8 os