Any other interpretation of the acts of the agents and officers of the McKesson & Robbins Company would make the fortuitous intervention of the trusteeship a shield behind which they could find cover for dire machinations and reprehensible skullduggery.
In the case of Eugene Dietzgen Co. v. Federal Trade Commission, 7 Cir., 142 F.2d 321, at page 331, the Court found a joinder in a conspiracy where the defendant, although not a party to the initial conspiracy, subsequently adopted the schedule and made his prices agree. In that case the Court stated:
'Where numerous competitors fixed the prices which they agree to maintain, and another competitor, not a party to the agreement originally, adopts the schedule and makes his prices agree, to the last penny, as the petitioners did, with the prices which the competitors fixed and charged, he cannot avoid responsibility for his action even though he be less active in the first instance, or because his subsequent action was without affirmative, express agreement on his part to maintain the prices fixed by the others.
'We must look to the substance and not to the form of the conspirators' conduct.'
To the same effect is the holding in United States v. Masonite Corp., 316 U.S. 265, 266, 62 S. Ct. 1070, 86 L. Ed. 1461.
It follows that where a party to the original express agreements, after having withdrawn from the scheme, resumes buying and selling under the schedules initially agreed upon, with full knowledge of such agreements and of the methods by which the schedules thereby established are to be maintained, they cannot seek to avoid liability by alleging that they did not expressly agree anew to participate.
The defendant has argued that it was compelled to purchase and sell at the prices fixed under the initial agreements in order to avoid economic and financial ruin, and that therefore the fact that it did purchase under the schedule established is not indicative of any participation, re-entry or continuation therein. The Supreme Court in United States v. Socony-Vacuum Oil Co., Inc., et al., 310 U.S. 150, at pages 220, 221, 60 S. Ct. 811, 843, 84 L. Ed. 1129, has effectively disposed of such an attempted justification of similar practices. In the cited case that court stated: 'But such defense is typical of the protestations usually made in price-fixing cases. Ruinous competition, financial disaster, evils of price cutting and the like appear throughout our history as ostensible justifications for price-fixing.'
And further: 'Congress * * * has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies.'
Pleas in abatement, being dilatory pleas and not favored in law, must be pleaded with strict exactness, certainty and completeness and must set forth facts, and not conclusions of law, nor evidence of facts and every inference must be against the pleader. A plea on information and belief is insufficient. Olmstead v. United States, 9 Cir., 19 F.2d 842, at page 845, 53 A.L.R. 1472; United States v. Lehigh Valley Railroad Company, D.C., 43 F.2d 135.
Where it appears that sufficient evidence was before the jury from which an inference of guilt may be drawn, it is not within the province of this court to inquire further.
This rule was clearly laid down in the Olmstead case, supra (19 F.2d 845), where the Court stated: ' * * * the decisions of the Supreme Court and those of most of the inferior federal courts have been to the effect that an indictment cannot be abated, * * * unless it affirmatively appear in the plea that no competent evidence of the commission of the offense charged therein was presented to the grand jury, or unless all of the evidence was unlawfully procured in violation of substantial rights of the accused, so as to subject it to exclusion if offered against him.'
The pleas here fall short of establishing the requisite lack of evidence of facts from which the Grand Jury could properly have returned the indictment.
For the same reasons the motion to quash must fail.
The defendant has joined with its plea and motion to quash the additional motion for an inspection of the Grand Jury minutes. The language in support of this motion is identical with that of the prior motion and plea.
While it is apparent that the Court has the power to grant a motion for inspection of the Grand Jury minutes, that power will be exercised only in cases of extreme compulsion. Where there is no allegation of an improperly constituted body, nor of fraud, misconduct or corruption and no positive allegation that there was no evidence of any sort before the Grand Jury, such power will not be exercised. Compare United States v. Gouled, D.C., 253 F. 242; United States v. Oley, D.C., 21 F.Supp. 281; and United States v. Morse, D.C., 292 F. 273.
For the reasons above set forth and after a careful examination of the briefs presented, it is my conclusion that the demurrer to the plea in abatement should be sustained. The motions to quash and for an inspection of the Grand Jury minutes are denied and the Government's motions to strike are granted.
Orders may be entered accordingly.
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