The opinion of the court was delivered by: FULLAM
In this civil anti-trust case, the Government challenges, as violative of Section 7 of the Clayton Act (15 U.S.C. § 18), certain corporate acquisitions which occurred in 1961 and 1965. The defendants' answer sets forth, as "Second Defense", the defense of laches, and the Government has moved under Fed. R. Civ. Proc. 12(f), to strike this defense as legally insufficient.
Such a motion can be granted only if the defense asserted could not possibly prevent recovery under any pleaded or inferable set of facts. M. L. Lee & Co. v. American Cardboard & Packaging Corp., 36 F.R.D. 27 (E.D. Pa. 1964). The defense under consideration falls within that description. The motion to strike must be granted.
Laches is no defense in a suit by the government to vindicate a public right. United States v. New Orleans Chapter, Associated General Contractors of America, Inc., 382 U.S. 17, 15 L. Ed. 2d 5, 86 S. Ct. 33 (1965), reversing per curiam 238 F. Supp. 273 (E.D. La. 1964). The defendant here concedes that laches is not a defense to the action, but argues that it is a defense to some forms of relief sought, e.g., divestiture. But the authorities are to the contrary. United States v. American Tobacco Co., 221 U.S. 106, 185, 55 L. Ed. 663, 31 S. Ct. 632 (1911); United States v. E. I. DuPont DeNemours & Co., 366 U.S. 316, 327, 81 S. Ct. 1243, 6 L. Ed. 2d 318 (1961); United States v. Grinnell Corp., 384 U.S. 563, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966).
Of course, facts which would amount to laches can properly be considered in choosing among various alternative forms of relief, if framing a decree becomes appropriate. And it should perhaps be mentioned, in view of the probable motivation of counsel in contesting the present motion, that striking the defense of laches from the pleadings does not determine the limits of permissible discovery.
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