On petitions for writs of certiorari to the United States Court
of Appeals for the Second Circuit.
The petitions for writs of certiorari are denied.
Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins,
dissenting.
An obviously carefully considered opinion of the Court of
Appeals comprising 99 pages in a separate appendix to the petition
for certiorari in this case, dealing as it does with the
complexities, refinements, and contradictions embodied in the
decisional law construing 1 and 2 of the Sherman Act is obviously
not an attractive candidate for review under our discretionary
certiorari jurisdiction. Nonetheless, I do not
Page 444 U.S.
1093 , 1094
think we may "let this cup pass from us" unless we are prepared
to forgo the opportunity to review some propositions enunciated by
the Court of Appeals in this case which strike me as little less
than bizarre.
Mr. Justice BLACKMUN would grant certiorari and set the cases
for oral argument.
One of the principal issues decided by the Court of Appeals was
the obligation of respondent and cross-petitioner Kodak to
"predisclose" information about its camera and film system to
competing camera manufacturers prior to offering such camera and
film for sale to the public. As to the camera market issues, the
Court of Appeals held that Kodak had no such obligation, but as to
the photofinishing and photofinishing equipment markets, the Court
of Appeals held that Kodak violated 2 of the Sherman Act by using
its market power over films and cameras to obtain a competitive
advantage with respect to photofinishing and photofinishing
equipment.
603 F.2d
263, 279-285, 304. And as to the joint development project, the
court held that Kodak violated 1 of the Sherman Act by including in
the agreement a nondisclosure provision, even though Kodak made an
investment of millions of dollars in the project that presumably
was essential to its success.
To one not schooled in the niceties of antitrust litigation, the
notion that a statute designed to foster competition requires one
competitor to disclose to another, in advance of marketing a
product to the general public, its plan to introduce the new
product, is difficult to fathom. And this Court has held as
recently as United States v. Grinnell Corp.,
384 U.S. 563 (1966), that
it is not a violation of 2 of the Sherman Act for a business with
monopoly power to achieve "growth or development as a consequence
of a superior product, business acumen, or historic accident." 384
U.S., at 570-571-1704. I should think this reasoning is equally
applicable to the alleged violation of 1 of the Sherman Act which
the Court of Appeals also dealt with in its opinion.
Page 444 U.S.
1093 , 1095
But the Court of Appeals in this case held that "the rule of
Grinnell must be read together with the teaching of Griffith
[United States v. Griffith,
334 U.S.
100, 107, 945 (1948)], that the mere existence of monopoly
power 'whether lawfully or unlawfully acquired,' is in itself
violative of 2, 'provided it is coupled with the purpose or intent
to exercise that power,' " 603 F.2d, at 274, even though this Court
in Grinnell did not express a similar limitation on its
holding.
One can understand the exasperation revealed by the statement in
the opinion of the Court of Appeals that "[d]espite the daunting
complexity of the case-the exhibits numbered in the thousands-Kodak
demanded a jury." Id., at 268. The trial lasted from July 1977
until March 1978, and since Kodak is entitled as a matter of
constitutional right under the Seventh Amendment to demand a jury
trial in a case such as this, perhaps the " daunting complexity" of
the case-and presumably many other similar cases being litigated in
other federal courts-suggests that either the forest is being lost
sight of because of the trees, or that an Act of Congress has been
battered, tortured, and encrusted with layer after layer of
refinement not required by any necessary construction of the Act,
but by the results wrought by a century of case-by-case
adjudication of it in this Court and other federal courts.
If the Sherman Act requires "predisclosure" by one competitor to
another before a new product can be marketed, I think that the
raised eyebrows resulting from such a holding should come from this
Court, and not from extrapolations by other federal courts of the
decisions of this Court interpreting the Sherman Act. I likewise
think that the conclusion of the Court of Appeals that significant
parts of a defendant's conduct which take place before the statute
of limitations period may nonetheless be introduced in evidence is
open to serious question under our prior cases.
So long as there are institutes for federal judges concerning
the management of complex cases, and judicial panels for
Page 444 U.S.
1093 , 1096
handling multidistrict litigation, this Court cannot remain
wholly above the battle. In this case, it is conceded that the
claimed antitrust violations all arise directly from Kodak's
competitive superiority and technological innovation leading to the
development of new products that consumers consider to be
desirable. Because I believe that all three of these violations are
interrelated, I would grant the petitions for certiorari and limit
the questions as follows: (1) Was Kodak's introduction of the 110
camera and Kodacolor II film system either an attempt to monopolize
or actual monopolization of the camera market in violation of 2 of
the Sherman Act? (2) Did Kodak violate 2 of the Sherman Act by
impermissibly using its film monopoly as "leverage" to enhance its
position in the photofinishing and photofinishing equipment
markets? And (3) did Kodak's joint development agreements with
General Electric and Sylvania violate 1 of the Sherman Act? I would
also grant certiorari on this question raised in the conditional
cross-petition: " Did the court of appeals err in not entering
judgment for Kodak on the film and color print paper claims, and
instead remanding both claims for a determination of whether
'conduct occurring many years before the commencement of suit
contributed to an overcharge . . . within the limitations
period'?"
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