The opinion of the court was delivered by: VAN DUSEN
This case is before the court on the motion of Certain-teed Products Corporation (hereinafter called "Certain-teed") for summary judgment under F.R. Civ. P. 56 (Document 34).
Part of the background of this case has been reported in a previous decision of this court, United States v. Johns-Manville Corporation, 237 F. Supp. 885 (E.D. Pa. 1964), in which a motion for summary judgment by Keasbey and Mattison Company (hereinafter "K & M"), a previous defendant in the instant case, was granted. Essentially, the facts as reported in the prior case, and as they apply to the instant case, are that the United States Government filed a Complaint under § 4 of the Sherman Antitrust Act (15 U.S.C. § 4) against three companies, seeking injunctive relief against alleged violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. The Complaint was filed on July 25, 1962. More specifically, the Complaint alleges that the defendants, Johns-Manville Corporation (hereinafter called "J-M"), K & M and Certain-teed, combined and conspired in unreasonable restraint of, and to monopolize, interstate and foreign trade and commerce, and that defendants have attempted to monopolize the aforesaid interstate and foreign trade and commerce, in asbestos cement pipe and couplings.
Certain-teed did not enter the asbestoscement pipe and coupling business until June 1, 1962, on which day they acquired the assets of K & M pertaining to the manufacture, sale and distribution of such pipe and couplings. This acquisition was pursuant to a written agreement between Certain-teed and K & M which was dated April 16, 1962. Thus, Certain-teed only owned and operated the business which allegedly violated the antitrust laws for slightly less than two months before the Government filed its Complaint seeking injunctive relief against the activities of Certain-teed in its operation of the acquired business. The Government's case against Certain-teed is founded on the contention that K & M was operating its asbestos cement pipe and coupling business in a manner violative of §§ 1 and 2 of the Sherman Act prior to June 1, 1962, and that when Certain-teed acquired it, they continued to conduct the business in the same illegal manner. K & M's Motion for Summary Judgment was granted principally because of its abandonment of its business activity in this area and a complete lack of evidence that there was any probability that it would ever re-enter the asbestos cement pipe business again (see opinion at 237 F. Supp. 885). Further, it was held that Certain-teed was not a corporate successor to K & M such that each company was liable for the acts of the other. Thus, the question before the court on this motion is whether there is any evidence that K & M was violating § 1 and/or § 2 of the Sherman Act and, if there is, is there any evidence that Certain-teed joined in and furthered this unlawful conduct when it acquired the assets of K & M pertaining to the asbestos-cement pipe and coupling field.
Aside from the above motions to strike, the Government has changed the record in the instant case from that before the court on K & M's motion for summary judgment by the filing of 12 affidavits (Documents 52-63). Since Certain-teed has not moved to strike these affidavits but objects only to their relevancy, they will be considered a part of the instant record to the extent that they are relevant to the period and issues in question upon the instant motion.
The Government and defendant Certain-teed also entered into a stipulation (Document 65) that the court might, in disposing of the instant motion for summary judgment, consider testimony given at the companion criminal trial
( United States v. Johns-Manville Corporation et al., 231 F. Supp. 690 (1963)), exhibits identified under oath at that trial, and GX-3004, which was marked for identification in said trial, and, further, that the court might consider as genuine and authentic for the purposes of this motion all other documents marked for identification in connection with said criminal trial. The above testimony, exhibits and documents may be considered only to the extent that they are relevant to the instant motion.
To summarize, the record before the court on Certain-teed's motion for summary judgment consists of the following:
A. The documents listed in footnote 1 of the December 22, 1964, opinion in this case
as 1, 10, 33, 36 and 38.
B. Certain-teed's Interrogatories Directed to the Plaintiff (Document 11) and the Government's answers to certain of these interrogatories propounded by Certain-teed (Document 27), as well as Affidavit of Government in Support of its Motion For Stay of Discovery Proceedings (Document 19).
C. Affidavits attached to Document 34, except the portions excluded by the rulings in this Memorandum Opinion, including Appendix A, and of Arthur Graves dated February 25, 1965 (Document 68).
D. Twelve affidavits filed by the Government as Documents 52 to 63.
E. Material referred to in Stipulation filed March 9, 1965 (Document 65), which is summarized at page 4 above.