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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1082

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0271%3A1. Public record. Not legal advice.