# Brief for the Appellant and Appellee — United States v. Bausch & Lomb Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0285%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Appellant and Appellee - **Published:** January 1, 1944 - **Citation:** 321 U.S. 707 ## Text IN THE Suprefne on of the United States Octoser TERM 1943 . No. 62 : ° « ‘UNITED STATES OF AMERICA, against -A ppellant,. BAUSCH & LOMB OF siCAL COMPANY et al., ele ae ‘No. 64 . ‘ * yee LENS COMPANY, INC. % al., at eer ———— saci OF AMERICA, A ppellee Appellants, Appeats f from the District Court of the United States for the Southern District. of New York BRIEF | FOR SOFT- LITE LENS COMPANY, INC, NATHANIEL SINGER, AND R. G. LANDIS a2 o 4 Betrave. M. Wesstek; ° Attorney ‘for Sorr- live Lens Comptxy, Inc. et al. —_ Henry Leuricn, Hyman D. Lennicn, Epwarp L. Rea, Of Counsel Appellees’ A. The ‘manufacturing agreentent with Bausch & Lomb is legal - with Soft-Lite - ce a a a a ee ee ee ee ‘ | Cy There are no agreements between Soft-Lite and wholesalers. The Fair: Trade contracts are | D. Soft-Lite cannot be compelled to sell to all _ os E. The provision for future discovery by the Gov- _the Constitution ae ar niadsedinasoniaies ‘VIF Conclusion _ | ee ee ee ee ey ee ee ee a ae a eee ee B. Bausch & Lomb has played no part in the Soft-- ' Lite distribution system and has not — INDEX \ PAGE | PF ae AA BE EO he e414 | Ba ia ery .. Til. Statement of the case epicenter secede 2 A; . Thee cumpitiet®. ct ak tiie Ss “4B. The findings and judgment . OE TOSS Rete BE 4 c. Statement of facts pai Sia fh sp lahat chi 8 Iv. Specifeation of errors and statement of issues _- 19 V. ‘heniaiasiak ee creas mink pen ieee a ernment is an invasion of rights guaranteed by " ee Serosues: INDEX . | ‘ Cases Crrep eles | PAGE Boyd v, United States, 116 U. S. 616 (1886) - ____47, 48, 49 Calvert Distillers Corporation v.. Nussbaum Liquor Store, Inc., 166 Mise. 342, 2 N. Y. S. (2d) 320 (Sup. . Chey ie Ee COMER, TROD cnn nnn t. GE | Calvert Distillers Corporation v. Stockman, 26 F. Supp. * FE Dh Bn hg FD wn gee icenn er ncnsecgesneeyns 44 Federal Trade Commission v. American Tobacco Com. | «! pany, 264 U. S, 298 (1924) __--- cere: _ 9 Federal Trade Commission v. Beech-Nut Packing Cus. pany, 257 U. S. 441 (1922) _____- PER, HT 36, 37, 39, 40 Federal Trade Commission v. Curtis. on Com-. § pany, 260 U. S. $68 (1983) .... 22-03. 38 Federal Trade ‘Commission v. Raymond Bros. -Clark Company, 363. U. S. 565 (1924) _--~--------_-_--.. 46 Federal Trade Commission vy. Sinclair Refining Com- Ss «© BIS ff) | hee eee 37 Frey & Son, Incorporated v. Cudahy Packing Company, 256. U. BT CED cece pacemnnndeonicntas 36 Great Atlantic & Pacific Tea Co. v. Cream of Wheat _ Co., 227 Fed. 46 (C. C. A, 2d, 1915) _-_--- ee 2 Interstate Commerce Commission v. Brimson, 154 U. ae 447 (1894) ~----------+-------+ ipiesiceasibieatdclihacetiaeneiononesn 49 Lnaiiie et al. v. American Tobacco Co, et al,, 218 Fed. 447 (C. C. A. 2d, RR A: a. Rr 38 Near v. Minnesota, 283 U. S. 697 (1930) . ae # Swift and Company v. United States, 196 U. S. 375 (1905) a cndinanteelnnnenaeminnnlinmenempn qatar een '. United States v. Addyston: Pipe & Steel Co. et al:; 85. * Fed. 271 (C. C. A. 6th, 1898) ___-.-- 22. 2 United States v. Aluminum Co. of America et al. yu F. = 97.(S. D. N. ¥, mm Se eee IO 38 INDEX 6. :s an PAGE United States ve. Banecki & Lomb Optical Co. et al., 45 - F. Supp. 387 (S. D. N. Y., 1942) . ee ee 1 United States v. Bausch & Lomb Optical Company et ‘al, C. C. H. Tr. Reg. Serv. Court Decisions 1941-3 1 52,916 (S: D. N. Y., BD acmatintneriinmmsinecaetic 17 - United States v. . Colgate « Company, 250 U. S. 300 | RRS Ae ES ea ee ee ee United States v. Great Western Sugar Co,, 39 F. (2d) 149 (D. C. Neb. RIED) - 92 -- ~~ ----- 38 United States v, Imperial Wood Stick Company, Inc. et al. 3 C. C. H. Tr. Reg. A 47 United States v. National Container Association et al., - 3C.C. H. Tr. Reg. Serv. 1] 25,434: LE ERE ECT Rea 47 United States v. A. Schrader’ s Son, Ine., 252 U. S (1920) Sel SERA DP ah ier oe Ee PBR idole tela 36, 37 United States v. Univis Lens Co., am et al., 316 U. S: ° al (1941) SAT BA eR Oe AE, SERN NS A 17, 42 STATUTES , BU. S.C. $$ 1, 3; 26 Stat. 2095 50 Stat. 693 ce FF 15 U. 8.0. §: 25; 32 Stat. 823; 36 Stat. 1167 —.-.-____- - * . U.S. C.-§ 345; 36 Stat. 1157; 38 Stat. 804; 43 Stat. ss RE Cd Papen PCR CERO ARS Cane ORES + ioe \N. Y. Cons: Laws. (McKinney’ s, 1941), Book 19, Gen: _ \ eral Business, Law Art. XXIV-A: beanie renal 42 2C.C. H. Tr. Reg. Sery., p. 7501 et. seq. — a caheenanthia 42 a oe Genes Aursdonrries | Restatement, Contracts § 516... ._- a 22 Restatement, Contracts, N. Y. Annot. § 516 an 9 Williston, Contracts’ (Rev. ed., 1937) § 1645... 22 ~os ¥ A Beet Bei 5 ad IN THE . Supreme Court of the United States - Ocross TERM — ‘ UNIrEeD Srares. OF Awuaica, | Appellant, ; against No. 62¢ Bausch & Los ‘Optica Company, M. ‘Herpert Etsennart, Ben A. RaMakEr, Josep F, Tayior, Sort-Lirz Lens Com-— PANY, Inc., NaTHanieL Srncer, R. G.. LanDIs, | Poppies Sere Appellees + Sat ear Sort-Lire Lens Company, Inc., NATHANIEL ay, £5 Srncee, R. G. Lanois, Appellants, | against : . No. 64. : ‘Unirep Srares or AMERICA, Appellee J - - Appeals from the. District Court of the United States . for the Southern District of New York _ ; BRIEF FOR SOFT-LITE LENS COM-. PANY, INC., NATHANIEL SINGER, | = Cee AND R. G. LANDIS > ¢ ‘Opinion Below ' The opinion of the ‘District Court is reported. in 45°F. Supp. 387. (1942). It is printed at R.19-37. , ** (BR. 6) that they agreed =* , 7 2 . z . | : Ir. Jurisdiction The final judgment of the District Court was entered * February 1, 1943 (R. 60). The petitions for. appeal were filed-in-and_granted ‘by the District Court April 1, 1943 :(R, 65, 71, 79). Probable jurisdiction: was noted by this— Court June 1, 1943 (R.. 1016). This Court has jurisdiction by virtue of Section 2 of the Expediting Act of February 11, 1903 as amended (32 Stat. 823, 26 Stat. 1167, 15 U. S. C. § 29) and Section 238 of the - Judicial Code as amended (36 Stat. 1157, 38 Stat. 804, 43 Stat. 938, 28 U. S. C.-§ 345). II. ‘Statement of ‘the Case ; | _ A. The Complaint | ‘It is alleged (R. 3) that Baysch & Lomb Optical Com. . pany, a manufacturer of lenses and ophthalmic glass for - lenses, and its officers Risenhart, Ramaker, and Taylor, and Soft-Lite Lens Company, Inc., a distributor of tinted lenses, and its officers Nathaniel Singer, Landis, and Morris Singér (as to whom the complaint was dismissed for want. of evi- dence), conspired to restrain trade in tinted lenses in viola- tion of Sections 1 and 3 of the Sherman Act.* It is charged fr *“SecTioN 1. Every contract, combination in the form-of trust’ ‘ or otherwise, or conspiracy, in restraint of trade or commerce among _ the several States, or with foreign nations, is: hereby declared to be illegal: Provided, That nothing herein contained shall render illegal, _ contracts or agreements prescribing minimum prices for the resale of _acommodity which bears, or the label or container of which bears, the trade mark, brand, or narhe of the producer or distributor of such .commodity and which is in free and open competition with com- modities of the same general class produced or distributed by others. when contracts or agreements of that description are lawful as applied to intrastate transactions, under any statute, law, or public policy now or hereafter in effect in any State, Territory, or the ‘District of lumbia in which such resale is to be made, or to which the commodity , die, cae ‘“(a) to designate and select, according to certain arbitrary rules and, regulations, wholésalers and _re- .-tailers to handle, deal in, and‘sell certain tinted lenses known as Soft-Lite lenses; _ al selected wholesalers and. retailers ; - ‘‘(b) to sell such tinted lenses only to‘such desig- ‘(e) to restrain such wholesalers and retailers from selling to other wholesalers and retailers not so selected ; ;**(d) to force such wholesalers and retailers to ob- serve certain arbitrary’ and unreasonable prices in reselling such tinted lenses; and . he \ ‘“(e) to limit the sale and distribution in-interstate trade and commerce of tinted lenses similar to Soft-Lite lenses.”’ It is asserted that the two groups of defendants, Bausch & Lomb and Soft-Lite, 6 | “‘conspired to establish and maintain a closely regulated scheme of distribution by means of which the defendants would control eompletely all phases of the marketing of ~ certain unpatented tinted lenses, including the selection — - is to be transported for sucli resale, and the making of such contracts” or agreements shall not be an ‘unfair method of competition. under section 5, as amended and supplemented, of the Act entitled ‘An Act to and for other purposes’, approved September. 26, 1914: Provided further, That the preceding proviso shall not make lawful any coftitract or agreement, providing for the establishment or maintenance of mini- "Mure resale prices on any commodity herein involved, between manu- facturers, or between producers, or between wholesalers, or between * brokers, or between factors, or between retailers, or between persons, firms, or corporations in competition with each other... .” * _ Sec. 3. Every contract, combination in,form of trust or other- wise, or conspiracy, in restraint of trade or commerce in‘any Territory _ of the United States or of tlie District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between . any such Territory or Territories and any State or States or the f.. (1937),.15 U.S. C. §§ 1, 3 (1940). ° : create a Federal Trade. Commission, to define its powers and duties, - District of Columbia, or with forgign nations, or between the District ° * of Columbia and any State or Stafs or foreign nations, is hereby | declared illegal. . . .* 26 Stat. 209.( 1890), as amended 50 Stat. 693 “¢ and that pursuant thereto. . ~ :@ Finding that the Bausch & Lomb defendants have not conspired among themselves or with the Soft-Lite defend- f -mic glass from which such lenses are made exclusively, for Soft-Lite, and has declined to manufacture such ‘lenses and glass for customers other than Soft- uate = called Soft-Lite lenses, to Soft- Lite, but repur- ' Bausch & Lomb wholesale branches (R. 7); ; ‘lenses, and Bausch & Lomb has agreed with Soft-Lite as | ‘lenses (R. 7); The plaintiff prays that the alleged conspiracy and practices be adjudged illegal, that agreements between © Bausch & Lomb and Soft-Lite relative to distribution of - Tenses be declared illegal, and their performance or renewal enjoined, aud that the Soft-Lite distribution system be can- a celled (R. ~10).. 4 " and designatiqa.of wholesalers and yetailors | of one lenses’ and théefixing and maintenance of minimum | -Fesale prices ‘of such lenseg’’ (R. (a) Bausch* Dee ia a patented tinted lenses and unpatented tinted ophthal-* (R..7) 5. ae eat vi (b) ‘Bausch & Lomb sells its entire oitput of such . chases from Soft-Lite approximately two-thirds-of-the—— nses so sold for distribution to retailers. through J ( c) the defendants cooperate in promoting Soft-Lite © to wholesalers’ resale prices and as to the wholesalers and retailers who should be designated to. deal in the (ad) Soft- Lite sells only to wholesalers who ‘adhere | to rules and charge prices. fixed ‘by the defendants - (R. 7, 8); and (e) the defendants have controlled the activities, prices, and practices of retailers (R..9). : + B. The \¢ Findings and Judgment ° qn ‘aie —-987000—t—i; sot (Ex. 207, R. 955) Soft-Lite, a relatively small, one-brand concern having no manufacturing or wholesale facilities of its own, enjoys no monopoly. It holds no patent. Its gradual growth in sales and profits i is attributable solely to the intrinsic merit of its product, to good management, and to smart, aggres- sive salesmanship. Soft-Lite has struggled to overcome the preference-for white glass. It has faced the competition of colored lenses : of all sorts,many of them made and sold by larger, more - powerful companies, such as Bausch & Lomb and American. _: Optical Company. And having achieved a fair, measure of success, it has had.to meet the claims of imitators of its pink-tinted lenses—American Optical, Titmus,. Continental, - Shuron, and others (R. 546-9). From 1938 to 1940 sales of were: - Total pairs of , Gross Year = —-_—s Tenses sold ‘2 sales price - 1938 - 1,150,523 «$1,598,179 | 1939 1,406,713% 1,887,868 ) 1949 = ;—SCs«1, 433,583 1,939,502 | Pe i aiarer ~ (Ex. 207, R. 56) Selling a nationally advertised quality product, Soft: Lite selects its customers with care. It sells to the whole- peer : 15 Fe aa, ™ .. sale affiliates of Bausch & Lemb, whose manufacture of its lenses is featured in Soft-Lite advertising (R. 123). It ‘does not sell to the wholesale branches of its chief rival, ” » American: Optical Company, or to wholesalers whose vol- ume is considered too small for profitable operation, or to wholesalers whose credit is regarded as unsatisfactory, or _ to wholesalers whose practices are hot approved (Ex. 16, 1, 18, R. 6545; 136, 129-31). r 4 Soft-Lite has never had agreements with wholesalers, , written or oral, except that since 1940 a-number of Fair Trade contracts authorized by the Miller-Tydings amend- ment of Section 1 of the Sherman Act (50 Stat. 693) have been entered into (R. —_ 455). | One-half of the 30,000 oculists and optometrists in the United States. are active ~ of ‘lenses. 100 of these sell Soft- Lite lenses (R. 372-3). Soft-Lité’s promotional work and iirerttalie strees the business and interests of retailers, Until 1927, however, there was no attempt-to bind retailers by agreement. In | that year Soft-Lite introduced the practice of having’ each "Stock retailer sign an ‘Application for a Soft- Lite Licensee Privilege’? (Ex. 12, R. 652; 126).. Submitted to a whole-- Saler, the application was subject to the approval of Soft- - Lite. In it the retailer stated’ that he was ~?; recognized high grade ethical, optical concern cognizant of the stand- ards and principles upon ‘which licenses for-Soft-Lites are granted’’, that he subscribed to these principles, and that he had placed an order for a certain number of pairs of : Soft-Lite lenses. The ‘‘prineiples’? referred to were not - Spelled out, but the inference was that the ‘privilege’? ‘might be withdrawn if the applicant’s omar or prices did not suit oethldte. 16 In 1953 Soft- Lite introduced formal Malena 3 in which it was statéd as a condition of the right to deal in Soft- Lite lenses and blanks (glass requiring certain. finishing operations) that, subject to the right of Soft-Lite to revoke ___ the license, the retailer will sell the lenses ‘‘at prices pre- ‘ vailing-in the locality in which Licensee conducts his prac- tice or business,’’ and that Soft-Lites “‘shall be sold .. only to the patient or consumer’? - (Ex. 43, 44, 45, R. 699, 701, 705; 169-71). Modified in respects. not here material - (R. 171), this form of license was in ‘use up to the time of the trial. : : Another feature of retail distribution i is ‘the numbered “Protection Certificate’’, supplied by Soft-Lite to whole- ’ salers, and by them to the retail trade, intended to accom- _ pany each ultimate sale and to give assurance of the gen- uineness of the article purchased, and at the same time to enable Soft-Lite to trace the sale—an ability seldom exer- cised (R. 563). Phen eae ace Because of the infinite variety of eye 2 conditions, pre- scriptions, and foci, the pricing of lenses and glass ‘or . lenses is a complex and difficult matter; and, like all other distributors of lenses, Soft-Lite publishes price lists show: . ing suggested prices of wholesalers. to retailers (R. 5423, | 454-5, 477). . The’ company has never issued suggested re- tailers’ prices or vatablished a uniform retailer- consumer | price, except on.one occasion and to an extent regarded by the District Court as negligible (45 F. Supp. 38, -393; Find- ing 26,-R. 57). Soft-Lite glass i is used i in some of the patented Orthogon: and Panoptik Ienses made and sold by Bausch & Lomb. In consequence the companies entered into a number of arrangements relative to the distribution of the patented _ lenses. Thus Orthogon licensees of. Bausch & Lomb were . permitted to -purchase Orthogon Soft-Lites, Soft-Lite’s 17 stock licensees (those equipped to carry on certain finish- ing operations) might buy uncut: Orthogon Soft-Lites. Orthogon. ‘‘franchise dealers’’ were listed as Soft-Lite : ‘prescription’ Ticensees”’. -Panoptik licensees-might buy -Panoptik Soft-Lites. Soft-Lite licensees might not deal. in Panoptik bifocals unless braid were lidensed 7 Panoptik. (R. 156-8) A partial summary judgment . -was entered July 20, 1942 in another case, United States v. Bausch & Lomb Optical Company” et al., Civil 10- 394, Southern District of New. York, C..C. H. Tr. Reg. Serv. Court. Decisions 1941-3 92, 916, which contained an injunction against the Panop- tik license system. «(The judgment, entered without oppo- sition by the defendants, resulted from the decision in the Univis ease, 316. U. S. 241. ) Accordingly, during August 1942 Bausch & Isomb notified all licensees that ee licenses were-eanceled. > > Bausch & Lomb also notified the: aiding of J ustice ~ ina letter dated June 2, 1942 that all Orthogon licenses had - been canceled pursuant to a letter sent to Orthogon licensees | on May 27, 1942. tg Asa result of the action taken ‘by Bausch & Lomb, Soft- Lite subsequently notified all its wholesalers that there were no longer any restrictions on the sale of Orthogon or ap. tik Soft-Lites. | ° We need not, therefore, Sins further the relations between Bausch & Lomb and Soft-Lite in connection with _— so-called licensing privileges. We have not attempted to “oe or even suminarize all * the evidence: We have examined the proof in enough detail.. to venture the opinion that the Government's claims, ‘ex- . pressed i in the extreme terms characteristic of monopoly - +. _ ¥ e , 18 — cases, are greatly exaggerated What it comes ie to is this :— Possessing a useful and attractive article. and plenty of initiative, energy, and sales ability, the Singers and Landis have established a prosperous one brand business. Subject to the exception hereafter noted, they have not restrained ‘ trade—they have originated and developed it. There is no . absence’ of competition—if anything, there is evidence of an excess: of it. , ’ The ‘Soft- Lite defendants baie created a substantial’ market for their pink- tinted lenses. At the same time they have greatly: stimulated the demand for colored lenses of all. sorts. They are,:in a sense, victims of the highest form of flattery—imitation. The Soft-Lite defendants have-not injured the public. They sell it something it needs and wants; and by promot- — ing the practice of ethical oculists and opticians they have raised the standard of optical treatment and sales. ‘Itis submitted that the manufacturing arrangement with Bausch & Lomb is essential to Soft-Lite; that it is fair, "- reasonable, and well within the rights of the parties under ‘the Sherman. Act; and that its cancellation would be ruinous to Soft-Lite and a id beneficial to its many compétitors. It is submitted that Bausch & Lomb’s Sint in ‘and | activity in respect of Soft-Lite’s practices and prices is ". normal and proper and well within its-legal rights. . ——]t-is subimitted that Soft-Lite’ s-relations-and arrange ments with wholesalers should not be condemned or in, aly respect enjoined. ; : OE Eee oes F ah ¢€ eee Aine gah a ax , a ae _. In‘regard to provisions in its retail licenses’ restrict- ing the retailers’ choice of customers and prices, it is ‘conceded that Soft-Lite has gone too far and that the judgment should be affirmed to the extent that it re- quires cancellation and enjoins renewal of such. provisions. - \ ; | Iv. Specification of Errors and Ene a Statement of Issues _.. There are two appeals. fi: In No. 62 the Government assigns as error the refusal of the District Court to grant all of the relief demanded. In No. 64 the Soft-Lite defendants complain of certain. features of the judgmeut granted. _ The Government assigns twenty-five alleged errors (R. 66-71). In order to submit a single, coordinated brief in opposition to the Government’s appeal and in support of - the Soft-Lite defendants’ appeal three weeks ‘before the case is called for hearing (Rule 27), when the Government’s’ - brief must also be submitted, and to obviate or at least. reduce the length of reply briefs, we have endeavored to ; anticipate the Governments points and have arranged our brief accordingly. Be 3 ANG _. - We think the Government will contend that the. Bausch & - . Lomb defendants, as well‘as the Soft-Lite defendants, are — parties to the alleged Sherman Act conspiracy, and that’ - the manufacturing agreement between Bausch & Lomb and - Soft-Lite is illegal and is part of the alleged illegal Soft. "Lite distribution system (Gov’t Assignment of Errors 1-13, 24, R. 66-70), a h / 20 . In opposition to this we shall argue that the agreement | _ to supply pink-tinted lenses and blanks only to Soft-Litéis directly. ancillary to. the main purpose of the manufactur. ing contract“and thus a: reasonable restraint under the’ Sherman Act. We shall also argue that there is no agree- ment between Bausch & Lomb and Soft-Lite with — to the latter’ s distribution system. a Geveceinie may argue that the court erred in re- fusing (a) to require the: Soft-Lite defendants to sell to/_ anyone wha offers to pay cash therefor (Ass. 21, R. 69:70), (b). permanently to enjoin said “defendants from syste-. matically suggesting resale prices . ( Ass. 22, R. 70), and - (c) permanently to enjoin them from executing Fair Trade 7 contracts — 23, R: 70). . ‘In answer ne siach arguments, and in | support of our con- tention that.the judgment goes too-far in‘ certain respects, we shall demonstrate that the court erred in holding that the Soft-Lite distribution system constitutes illegal agree- ments with wholesalers to charge uniform prices to retailers and to boycott retailers, and requiring the cancellation thereof, and in restraining Soft-Lite from systematically suggesting wholesale or consumer prices for six months; @ and that it erred in holding illegal Fair Trade resale price — ’ maintenance contracts between Soft-Lite and wholesalers, and requiring cancellation thereof, and in restraining Soft- ‘Lite from executing any such contracts for six months (Def’ts’ Assignment of Errors 1, 3, 4, 7, 8, 9,.10, 13, 14, 18, 19, 21, 23, 24, 26, 27, 29, 30, R. 72-8). We shall show that the court correctly refased to enjoin | ‘Soft-Lite from engaging in interstate commerce unless it © agrees to sell its lenses and blanks to anyone who offers and . is willing to pay cash therefor. . 21 e And we shall argue that the provision of the judgment allqwing future. discovery. by the Government must be ',. vacated as in violation of the Soft-Lite defendants’ rights guaranteed by the Fourth and ‘Fifth Amendments (Ass. 15, R. 76). ates Sie ~ ° 4 ae De! Vv. Argument . A ' « ; The District Court. correctly held that the exclusive manufacturing agréement. between Bausch & Lomb and Soft-Lite is legal and valid (Conclusion 7, RB. 59). _As- the basis for this holding the trial court found in part as follows (R. 58): te aa \ | “33. Soft-Lite’s object in developing these arrange-. __ ments [for manufacture: of Soft-Lite lenses and glass by Bausch & Lomb] was to obtain from a highly re- garded domestic source a product of uniformly good quality. Bausch & Lomb’s object. was to secure a prospectively increasing outlet for its manufacture. The purpose of tlt portion of the arrangements where- by Bausch & Lomb agreed not to compete with Soft- Lite either by selling pink-tinted ophthalmic glass to other lens manufacturers or by selling pink-tinted lenses to the trade was to protect Soft-Lite.. Soft-Lite has expended substantial sums for advertising and in the development of good will in. connection with a new article of gommerce. ° Zi - “34. Bausch & Lomb did not enjoy a monopoly in the manufacture of glass for lenses, whether pink or otherwise. Other manufacturers of lenses had access to pink glass from other sources. . The success of Soft- Lite stimulated emulation and competition.” a Contracts, N. Y. fonet. § 516.) * 93 There is no need to recite the details of the evidence; they amply support. the findings ; and the authorities sus- tain the conclusion of. law that -the manufacturing agree ment is sanctioned by the Sherman Act despite the ‘fact that it contains a limited restraint. » First pare classified in United St es v.. Addyston . Pipe € Steel Co. et al., 85 Fed. 271, 281 (C. C. A. 6th, 1898), | restraints of this nature regarded as reasonable (and there- / . fore legal) listed in the Restatement, Contracts § 516, in- ‘clude “(e) A bargain to deal ‘aidkaaivehe with anothers” provided that the bargaii date not effect, or form part of a plan to effect, a monopoly. . (For references ‘to many. illustrative cases, see 5 Williston, Contracts [Rev, ed. 1937] § 1645; and for New York cases, see Restatement, The provisé 1 may be | for there: is no proof or even charge of monopolizing i in the instant case. We can find no clearer statement of the test we ask this Court to apply than that made by J udge Taft i in the — ston case, supra, page 282. He said: - 6 | ,. In Horner v. Graves, 7 Bing. 735, Chief — . Justice Tindal, who seems to be regarded as the highest English judicial authority on this branch of the law” ., used. the following langaage: ‘We do not see how a ‘better test can bé applied’ .to the question whether this is or not a reasonable , restraint of trade than by considering whether the restraint is such only as to afford a fair protection . - ‘to the interests of the party in favor of whom it is © given, and not so large | as to interfere with the in ° ae saves of the publie. Whatever restraint i is larger : - than the necessary protection of: the party requires can be of no benefit to either. It can only be op- pressiye.- It is, in the « eye of the law, unreasonable. Whatever is injurious to. the interests of the public - is void on the ground of public policy.’ -&@ sophis very statement of the rule’ implies. that the’ contract must be:one in which there is.a main purpose, “ to which the covenant in restraint of trade is merely ancillary. -The covenant is inserted only to protect | one of the-parties from the i injury which, in the execu- ‘tion of the contract: or enjoyment of its fruits, he may suffer from the unrestrained competition of the other. .. The main purpose of the contract suggests the measure of protection needed, and furnishes a sufficiently, uni + form standard by. which the validity of such restraints may be. eee d determined. ry aed We awe no difficulty ‘i in rélating this ‘Saree to the case of the Soft-Lite defendants.. The main purpose of ‘the contract, to. which the covexant in restraint is ancil- _ lary, is to provide for the satisfactory -manufacture of © ' Soft-Lite. lenses and glass. -The covenant was inserted only to protect Soft-Lite from the injury which, in the execution of the contract or enjoyment of its fruits, Soft- Lite might—we say would—suffer from the unrestrained competition of Bausch & Lomb. ‘The restraint is not “injurious to the interests of the public’, By enabling Soft- Lite to market successfully a _hew artiele of commerce desired by the public, the restraint promotes the — interest. : _.That Soft- Lite needs’ the protection ‘and demanded it j is borne out by the testimony | of: Nathaniel Singer (R. 466, 469-70) : ee eae ‘See eee - 0 ‘ a ) that the Soft- Lite retail sinned system (the - ‘restrictive features of which we do not defend here) was introduced ° and is operated solely by Soft-Lite, and > (ec) that the exchange of information and views by ° _ Bausch & Lomb .and Soft-Lite concerning the. latter’s prices to its wholesale customers is normal and ‘well within limits established by deci- sions of this Court. There is‘one feature of Soft-Lite’s business with Bausch & Lomb that merits separate comment by us. We refer to _ the fact that 60% of Soft-Lite’s product is sold to wholesale. concerns. affiliated with Bauseh & Lomb. As to this the court below found: - lie, > ; “697, Sixty per cent of the total sales of Soft- Lite lenses is made by six optical wholesalers in whom, over . a period of years subsequent to 1924, Bausch & Lomb acquired majority stock interests. These six optical ' wholesalers (hereinafter termed the ‘Bausch & Lomb affiliates’) or their predecessor companies were all ' substantial customers of Soft-Lite before such affilia- ‘tion, and they have continued as such.- It was. stipu- lated, for purposes of this trial only and for no other - purposes, and subject to the conditions stated in the. stipulation, that ‘Bausch & Lomb, through its owner- ship of a majority of the outstanding voting stock of _ each of said wholesale companies, has power. to ¢0- ordinate andcontrol the sales and pricing policies. of said wholesale companies.’ ‘¢28. All of the optical slides customers of Soft: ' Lite, whether ‘affiliated with Bausch & Lomb or ‘not, have at all times been dealt with by Soft-Lite-on the same terms and all have been cooperative with Soft- Lite in the operation and maintenance of Soft- Lite’s ° prices.and distribation system.” . 99 s ~ “31. . . . Soft-Lite sold its lenses to wholesalers who were in aétive competition with the affiliated whole- Salers, and the. affiliated wholesalers as well-as the nonaffiliated wholesalers sold lenses which were com- ~ petitive with Soft-Lites. (RB. 57-8) We need not review the details of etleaainr which fully support these findings. There is no direct evidence of Sherman Act conspiracy | or agreement among Soft-Lite and the affiliates, and the “course of business”’, to ‘borrow from Mr. Justice Holmes, furnishes no basis for inference ' of collusion. Made by a leading manufacturer of optical goods, and 80 advertised nationally, Soft- Lité lenses are an expensive product for which there is a limited:market. This market must be sought and served in such a manner as to make the most of Soft-Lite’s national advertising and to differ-/ _ entiate . clearly Soft-Lite lenses from other tinted lenses and especially other pink- -tinted lenses. Manufactured and advertised as a quality product, Soft-Lites must be sold as such. | ‘ . Soft-Lite sought Bausch &’Lomb manufacture because it knew that Bausch & Lomb could produce an adequate. supply of uniform quality and because the Bausch & Lomb name would reflect credit on the product. And so it has worked out, to, the advantage of the buyer*of pink-tinted lenses; who has been secure in the value of his purchase, and to the pr ofit of Batisch & Lomb and Soft-Lite: In the circumstances it is not remarkable—indeed, it is natural and proper—that Soft- Lite “has sought’ to do business with the foremost, wholesale houses, in six of which | “between 1925 and 1935 Bausch & Lomb acquired ‘a ma- jority interest. | Soft-Lite did .business with these - con; | cerns before their affiliation; it continued to do. business with them after affiliation. There is no evidence that Soft- Lite discriminated in their favor against other wholesale outlets; there is no evidence that the other outlets com- - plained or have cause for complaint. : _— are other reasons why Soft-Lite’s relations with the affiliates must be regarded as fair ard proper, Soft- _ Lite cannot do bu a aad with the wholesale branches of ‘its “powerful rival, American Optical Company ; ‘for that company is actively and successfully engaged in pushing _ its own pink-tinted lenses and would be expected to neglect -- er disparage Soft- Lites (R. 476-7, 482-3)... Soft-Lite cannot, without prejudice to the standing and acceptance of its - ‘ product, . do business with firms known to specialize in inferior merchandise or who deal with unregistered op tometrists or who falsely advertise that they sell Soft-Lite. lenses (R. 130-1). o \ This onléa poliey i is dictated, ont wy Bausch & Lomb or - by agreement with anyone, but by Soft- Lite’s judgment of its own best interest. One may disagree with the policy; . the Antitrust Division may have different ideas. as to the © economics of lens manufacture and sale ; but one cannot ony that the Sherman Act precludes : It follows from all this that the sensation of its sales to affiliates of Bausch & Lomb is entirely consistent with what Soft-Lite regards as a vital interest (and who shall | gainsay it?) in ‘the promotion. and sale of its lenses. Soft- Lite does a large businéss with these concerns because they are prominent and reputable and because they ‘possesg the means and the will for extensive ciamaae and distribu: © - tion. pe Cc Fey” Ne ‘The trial court erred in holding that the Soft-Lite dis: | tribution system constitutes illegal agreements with whole- salers to charge uniform prices to retailers and to boycott ' retailers not licensed by Soft-Lite (Conclusions 3, 4, R. ( 59), and requiring the cancellation thereof (BR. 62), ‘and in - restraining Soft-Lite from systematically suggesting whole- sale or consumer prices for six months (R. 63). Pn The court also erred in holding illegal Fair Trade resale _ price maintenance contracts between Soft-Lite and whole- salers, and requiring the cancellation thereof (R. 62), and - - in restraining Soft-Lite from executing any such contracts. for six months (R. 63). : The errors asserted are duly assigned (Def’ts’ laaias ‘ment of Errors 1, 3, 4, 7, 8, 9, 10, 13, 14, 18, 19, 21, 23, 24, 7 27, 29, 30, R. 72-8). Soft-Lite operates in a natrow, fiercely competitive market; it has no wholesale or retail outlets of its own; * its earnings depend entirely on the ability of Singer and _ his associates to sell a superior product for ultimate use by a relatively small number of persons. It is not at all remarkable, therefore, that we should find Singer. and Landis working closely with distributors, wholesale and retail, striving to gain advantages for: their lenses over rival lenses of all sorts and makes, employing a variety of advertising-and promotional devices. Indeed, their con- _ Stant effort to differentiate and push their product shows ‘ that the Soft-Lite defendants are moved, not by a desire to appease or share the market with their rivals, but by” a strongly competitive impulse to overcome their rivals’. advantages and ‘to take business away from them. oP That ‘there is active competition ‘in the “a of tinted _lenses cannot be denied. Believing that the court below correctly held that the retail license provisions binding | ‘dealers to sell at locally prevailing prices and only to the public constitute illegal restraints, we suggest that. the court’s cofidemnation ‘of the distribution system as a whole—that ‘its finding that the distribution system con- —._: gtigutes ilegal.agreements with wholesalers as well as re- = tailers—resulted from failure to make due- allowance ‘for the dasic competitive conditions—under which Soft- Lfte operates and from~confusion as to the effect. of the - authoritiés. - rea ie We shall argue that as to wholesalers there is no evi. dence of conspiracy and that, in any event, the cancellation of the Fair Trade contracts with wholesalers is not war- / ranted. — eae There bs no evidence of illegal agreements between Sof Lite and wholesalers. . " It is net claimed that there are any written or: express | agreements with a and we submit that none can be implied... . = to this the ceurt said (45 F. “Supp. at 396, R. 30) : : -- ©T rue, there i is no written agreement hore between © .. distributor and the wholesalers as there was in Dr. ‘Miles Medical Co. v. ohn D. Park & Son’s Co., supra- [220 U. S. 373]. That, however, does not immunize” ‘* the distribution: system devised by Soft-Lite. Neither was there a written agreement in Federal Trade Com- mission v. Beech Nut Packing Co., supra [257 U. S. 441], but that did not avail.- The agreement is implicit in the operation of the system. The living: reality of | uniform prices from wholesalers to retailers, corre- $ spox@ing to the written instructions of the distributor, of wholesalers’ refusal to sell to unlicensed retailers, of surveillance of wholesalers by means of protection certificates and over retailérs by ‘shopping’, compel the conclusion that between the wholesalers and the distributor ‘theré was agreement or at least — as escence in a program of concerted action. ~_—. The ‘living reality” is that, coming into existence and operating in an intensely competitive environment, up against powerful and resourceful rivals, Soft-Lite has adopted and applied measures, caltulated to enable it to engage successfully i in the struggle for survival. From the fact that.a court and lawyers now say that certain ‘written - restraints on -retailers.are illegal, it does not follow that illegality is ‘to be implied from sales and promotional meas- ures used- with wholesalers. - It is no evidence of Sherman Act conspiracy that Soft- : Lite refuses to do business with wholesalers who specialize in inferior merchandise (RB. 130), who sell on mail order to unregistered optometrists (R. 131), who falsely’ adver- tise that they distribute Soft-Lites (Ex. 173, R. 916; 432), _ or whose credit is not approved (R. 132). These reserva- . tions, dictated by consideration of its own interest, are . evidence, not of erences. but of ‘business. acumen ‘and "prudence. we > The evidence; to which the Governnient may _ attach. -- Jmportance i is a form letter sent to new wholesale accounts ‘after they have been — The letter in full is as follows: . “We taki pleasure i in welcoming you as a a Soft: -Lite. Distributor. e In accordance with the arrangements completed between you and our Mr. ___-_------ we have shipped your qualifying Soft-Lite lens order. (Terms of| pay- ment are those-agreed upon with Mr. --_--- Mi CER a namely, that billing is to be made as-of (date) and payments are to be made in four (4) equal monthly payments. Cash discount will be extended on the first payment if remittance is received within the cash \dis- count period.) (The rest.of the payments will be net.) . - As a Distributor, your purchases will be billed at the prices listed in the attached Distributor’s price list: and are subject to a bonus of 10¢ per pair on all pur- chases of single vision uncut lenses. made during the preceding quarter, paid in check form at the end of . each quarter. * | boar - A complete assortment of sales aids and advertis- ing material will be ‘sent you in a few days. For use on tis direct niail promotional material with which you -will be supplied from time to time, we would like to have your. correct imprint for our files, Also, if you will send us the number of names on your statement : mailing list, we'shall be glad to provide regularly, sufficient quantity for inserting with statements. — If. you will give us. the names of the salesmen, we shall be glad to add their names to ourtist and supply — you and -them with pertinent sales material from time - _ to time: ee La a In selling Soft-Lites to the retail trade, ‘please be governed by the information found on page 17 of the Soft-Lite Stock Licensee price list. Sie “As a Soft-Lite Distributor you have the privilege of opening new Soft-Lite Stock Licensee and. Prescrip- tion Licensee accounts. The procedure is outlined-o pages 17-20 of the Soft-Lite Stock Licensee Price List. We are sending to you under separate cover 4 ~ quantity of Stock Licensee applications and Prescrip- tion’ Licensees recommendation cards. A Iie RO aa a Ea Rep oe eR Cee eet rea PRs If there is any additional information you desire, please inquire. We are sure, that you will find the Soft-Lite Dis-e tributorship a very satisfactory and sige in- . vests. : Very truly yours, Sorr-Lirz Lens Company, Inc. AFImmig/d— ; > ” a = | (Bx. 36, R. 668 ; 153) | The price hist x referred to (Ex. 37, R. 669; 672-81, 154) contains suggested prices to-be charged by wholesalers . a a great variety ty of styles, sizes, and optical combinations. The use of such a list, is consistent with the universal prac- - - tice of the ‘industry; the list is distributed to retailers as __ well as wholesalers; and without it they would ‘be virtually _- Helpless because of the infinite variety of — and optical combinations required by users. In the fifth watagtenh of the term letter set forth above © ‘wholesalers are requested to be governed by information. found-on page 17 of the price list. “This refers to the state- . merit (Ex. 37, R. 669; 681, 154) that — Lite lenses are. 7 old only to: Soft-Lite Licensees.””° \ The trial court onl the. Government assign importance’ _ _ to thie protection certificates (Ex. 13, R. 652; 127) printed by Soft-Lite for ultimate distribution to wearers of the ‘\lenses”- While these are nuthbered in -such manner as to nable the source of the lenses. to. be traced, only one in-- tance of such use was shown (Ex. 79, R. 795 ; 209), and inger testified that the certificates are really used, and are advertised, to prevent dealers from palming off inferior itations of Soft-Lites and thus to give some assurance : rat | f Me i to the public of the authenticity and value of its purchases : = 482-3). | | ba aos ‘There is evidence that in general wholesalers charge the suggested prices and deal only with licensed retailers (RB. 223).. There is evidence that Soft-Lite ceased ‘to do ’ business with wholesafers who sold at less than the sng-_ gested prices (R. 455-6). There is no evidence ‘that Soft- _ Lite ceased to do business with wholesalers who sold to , unlicensed retailers. We have stated the evidence offered against the Soft-- \ Lite defendants in its extreme form. We have omitted ex- planations by Soft-Lite of particular aere ued (e. 9. Ex. 27, R. 659-62; 148). The Geren: argues, and the District Court agreed, that ali this adds up to a series of agreements between Soft-Lite AG wholesalers. : We ee submit that it : amounts nee of th the sort. fae ae a8 é Vs . e 3 We conced®, as we must,. that agreement may be im. _ plied from a course of dealing or other circumstances.” United States v. A Schrader’s ‘Son, Inc., 252 U. S. 85, 99 | (1920) ; Frey € Son, Incorporated v.Cudahy Packing Com- - pany, 256 U. S. 208, 210, (1921) ; Federal Trade Commission v. Beech-Nut Packing Colepamy, 257 U.S. 441, 451-3 (1922)..’ We concede, as we tins) that United States v. Colgate -- é Company, 250 U.S. 300 0 ( | 19), on which we rely, was ‘an appeal from a judgment-« ing a demurrer to an it- ~ _dictment which, as interpreted by the District Court, “ This point would not merit seleunes, much less argu- ment, but for ‘the fact that-.it is assigned as error (Gov’t . Assignment of Errors 21, R. 69) and the Government has _. Stated that it may be argued csp es J The defendants Singer and Landis ai perhaps dream of the day when the demand for their unpatented product will be so great that their’ company will be regarded and . treated as a public utility. Until that day arrives, or so. long as any freedom remains. to. small priv ate enterprises, © it-is unlikely that the courts will impose any such obliga- . tion. Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co., 227 Fed. 46 (C. C. A. 2d, 1915), affirming (Judge Hough) © right 46 224 Fed. 566 (8. D. N: Y., 1915) ; accord Federal Trade Commission v v. Raymond Bros.-Clark Company, 263 U. 8. 565 (1924). : The ‘ici of the judgment allowing future discovery _ by the Government must ‘be vacated as in violation of the — Soft-Lite defendants’ rights guaranteed by the Fourth and. Fifth Amendments. Ses : ' Error is assigned ‘ape "ts? ‘edged of Errors 15, R. 16). The judgment contains ‘a provision hacia 9, R: 63-4) under which the Department of Justice is giv en the (a) To examine the defendants’ ‘io ites, ac- counts, correspondence, memoranda,’ and other ; records and documents relating to any of the . - matters contained in the judgment—‘‘such access — to be subject to any legally recognized privilege”. | (b) To interview officers or employees of the defend- ‘ ants without interference, restraint, or limitation. (c) To require the defendants to submit such reports with respect to any of the matfers contained in the judgment as from time to time may be necessary _ for the purpose of enforcement of the judgment. : ~ This, we submit, sanctions invasion by the Government of the Soft-Lite defendants’ persons, houses, papers, and - _ effects, and requires Singer-and Landis to be witnesses against themselves, contrary to their rights guaranteed by the Constitution. The vague reference to a possible privilege may be dis- regarded, for it relates only to the first sentence of the’ — siti: the right to examine books and — ie an The history of the provision has some bearing. In June 1939 the Antitrust Division adopted.the policy of requiring a agreement to future discovery as the price of disposition of Sherman Act cases by consent decree. The first provi- sion of the sort here questioned which we have been able to_ find appears in the decree filed June 6, 1939 in the Southern * District of New York in United States v. Imperial Wood Stick Company, Inc. et al. (the Candy Stick case), 3 C. C. H. Tr. Reg. Serv. 125, 289. The provision was more ; definitely formulated, and the recognition of 4 possible — privilege first introduced, in the decree filed April 23, 1940 in the same court in United States v. National Container © Association et “al., Id. 25, 434. Since June 1939 similar dis- covery provisions have appeared in many, and we think all, antitrust consent decrees obtained by the Division. There ‘is much to be-said for proper ‘short cuts to dis- covery in the trial of cases. An argument can be made for . the use of such short cuts in the policing.of consent decrees, even though the right is exacted as the price of peace. We _ think that nothing can be said for a judgment giving the Government virtually unlimited right of future discovery in a Sherman Act case determined: by litigation. There is no difference’ of substance between the dis- covery authorized by judgment in this case and that granted by legislation, aud condemned by this Court, in _ v. United States, 116 U. S. 616 (1886). .. The Court tens said: -.. . ¢ It is true phat certain aggravating inei- dents of actual search and seizure, such as forcible -entry into a man’s house ayld ‘searching amongst ‘his - papers are wanting, and to/this extent the proceeding under the act of 1874 is / — of that which 48 was authorized by the former acts ; but it accomplishes | the substantial object of those acts in forcing from.a.. party evidence against himself. It is our. opinion, | therefore, that a compulsory production of a man’s | private papers to establish a criminal charge against . him, or to forfeit his property, is’ within the scope of the Fourth Amendment to the Constitution, in all _cases in-which a search and seizure would be; because - it is a material ingredient, and effeets the ‘sole object and purpose of search and seizure.’’ (page 622) ‘*. . . any forcible and compulsory extortion of a man’s owp testimony or of his private papers to be used ‘as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judg- ment [Lord Camden’s in Entick v. Carrington, 19 | How. St. Tr. 1029 (1765)].. In this regard the Fourth - and Fifth Amendments run almost into each other.” _ (page 630) It must be assumed that the Soft-Lite defendants will bey the Sherman Act and any judgment that this Court may approve. If they. fail in this regard, however, they will be subject, not only to exeréise of the District Court’s reserved power to make such further orders-as may be necessary Or. appropriate for carrying out the judgment (RR. 64), but to. criminal prosecution for violation of the Sherman Act itself and to criminal contempt proceedings. These- possibilities. emphasize the accuracy of Mr. Jus- tice MILLER’s gresingy priarks in the Boyd case. He said (116 U.S. at 639): “And I am quite ssieenlea thi pin ions of the act of Congress is to compel the party on whom the order of the court is served to be a witness against ‘himself. The order of ‘the court under the statute is in effect a * subpoena duces tecum, and, though the penalty for the - witness’ s failure to, appear in court with the crim 49 nating papers is not fine and imprisonment, it is one which may be madg more severe, namely, to’ have charges against him of a‘criminal nature, taken for — _ confessed, and made the foundation of the judgment of the court. That this is within the protection which the Constitution intended against compelling a person to bea witness against, himself, is, I think, quite clear.’’ - 2 In the Boyd case the papers had to be: produced i in court on motion of the United States Attorney. The power here ~ granted is more far reaching (the right to ‘interview the. defendants and to require mpente. is unlimited) and = ject to greater abuse. . ~ Accord, Federal Trade Commission v. American Tobacco Company, 264 U. S. 298 (1924). This is not a case of requiring a corporation to pro- _duce its books before a court in contempt proceedings or . before a grand jury inv estigating an alleged violation of the. Sherman Act. It is a ease of giving the persons who happen to hold office in the Antitrust Division unlimited — < subpoena power—the power to inquire without a. showing of probable cause and without a warrant into the affairs _’ of Soft-Lite, Singer, and Landis. io ee . In Interstate Commerce p NEORET RW Nes v. Brimson, 154 U. 8. 447 (1894), the Court.said (at page 478): ‘*. . . ‘Neither branch: of the legislative de- "partment, ‘still less any merely ‘ad inistrative body, “ established by Congress, moped can be invested with,.a general power of ne inquiry into the private © affairs of the citizen. i | ae Nor can the Antitrust ‘eid such power by judgment of a Dist rict Court. be itouch with any a ; 74 /30e- aie If liberty of the press is to be preserved against abridge- | ment by injunction (Near v. Minnesota, 283. U. 8. 697), we submit that the freedoms guaranteed by the Fourth and Fifth’ Amendments should be preserved against such abridgement. | hip pale VI. Conclusion . The judgment should be affirmed and modified as MMM. pine L- Fae i The judgment should be affirmed as regards the | Bausch & Lomb*defendants and the Bausch & Lomb - Soft-Lite relationship. 9“ The judgment should be affirmed in; respect of agreements between Soft-Lite and retailers restricting the retailers’ choice of customers and resale. prices. _ The judgment should be reyersed in so far as it relates to Soft-Lite’s relations ‘with wholesalers. . - The provisions cancelling the Fair Trade contracts, _ enjoining their-enforcement, and enjoining the execu- tion of new Fair Trade contracts, should be vacated. The provision enjoining | the systematic suggestion * of resale prices should be vacated. ; The provision for discovery should be vacated. Resfectfully submitted, | - Beraven M. Wessrer, ee oh ee Attorney for Sort-LitE Lexs Company, Inc. et al. Henry Lennict, ; Hyman D. LEnsicH, ‘Epwakp L. Reza, ' Of Counsel ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0285%3A5. Public record. Not legal advice.