It has also been held that the purposes of the antitrust laws are best served by insuring that private actions will be an ever present threat to deter those who contemplate business behavior in violation of the antitrust laws. Thus, private actions have usefulness and serve as a bulwark for antitrust enforcement. Perma Life Mufflers, Inc. et al. v. International Parts Corp. et al., 392 U.S. 134, 20 L. Ed. 2d 982, 88 S. Ct. 1981 (1968); Simpson v. Union Oil Co., 377 U.S. 13, 12 L. Ed. 2d 98, 84 S. Ct. 1051 (1964); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 95 L. Ed. 219, 71 S. Ct. 259 (1951).
Section 5(a), it has been held, was also intended to serve the purpose and function of encouraging capitulation by corporate defendants, thereby saving the Government great expense. General Electric Co. v. City of San Antonio, 334 F.2d 480, 486, C.A. 5, 1964. The exclusionary proviso in this section making final judgments or decrees rendered in civil or criminal antitrust actions by the United States admissible as prima facie evidence against such defendants in private civil actions was to encourage consent judgments and decrees and so save the Government time and expense or protracted trials. State of Michigan v. Morton Salt Co., 259 F. Supp. 35 (D.C. Minn. 1966), affirmed 377 F.2d 768, C.A. 8, 1967. The overall purpose of Section 5(a) is to aid enforcement objectives of the antitrust laws. State of Michigan v. Morton Salt Co., supra; General Electric Co. v. City of San Antonio, supra; Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 323 F.2d 412, C.A. 7, 1963, cert. den. 376 U.S. 939, 84 S. Ct. 794, 11 L. Ed. 2d 659, 1964; Deluxe Theatre Corp. v. Balaban & Katz Corp. et al., 95 F. Supp. 983 (N.D. Ill. 1951); Homewood Theatre, Inc. v. Loew's, Inc., 110 F. Supp. 398 (D.C. Minn. 1952).
The Government's arguments are that a plea of guilty or a conviction would not only aid the civil plaintiffs and provide deterrents, but would also provide more justifiable punishment of the defendants, while the pleas of nolo contendere falling within the exclusionary proviso of § 5(a) ( Armco Steel Corporation v. State of North Dakota, 376 F.2d 206, C.A. 8, 1967; Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., supra; General Electric Co. v. City of San Antonio, supra) would provide no aid for the purpose of the antitrust Act and for the benefit of the civil plaintiffs.
In the present civil actions a vast amount of discovery machinery has been put in motion at Philadelphia against corporate defendants in this case, which will probably provide more effective and possibly speedier remedies than could result here because of the expectancy that there will be no final judgment of conviction until completion of all the anticipated appellate processes.
The Government contends that the defendants should be compelled to stand trial or to enter out-and-out pleas of guilty for the reason also that the antitrust violations by the defendants ought to be open to public view for the public's own protection. But this seems to me to be an empty argument because a plea of guilty or a conviction would serve no greater purpose than the plea of nolo contendere. The Government could, in a plea of nolo contendere, come forward and present evidence in open court to establish the factors required in imposing a sentence, including the degree of culpability.
Additionally, as of the date of the indictment here presented by the grand jury, the Government filed a civil action for an injunctive remedy against the defendants. The civil action eventually must be determined upon the evidence presented in open court, if not by stipulation, and so provide the adequate vehicle for informing the public regarding antitrust violations as the Government believes.
Federal Rule of Criminal Procedure 11 vests the right in the court to accept or reject a plea of nolo contendere. Mason v. United States, 250 F.2d 704, C.A. 10, 1957. Rule 11 directs that no plea either of guilty or of nolo contendere be accepted by the court without first addressing the defendant personally and determining that the plea is made voluntarily with the understanding of the nature of the charge and the consequences of the plea. To this extent both pleas are alike. Neither plea may be withdrawn after it is once accepted by the court, without the consent of the court. Nagelberg v. United States, 377 U.S. 266, 84 S. Ct. 1252, 12 L. Ed. 2d 290; Lott v. United States, 367 U.S. 421, 81 S. Ct. 1563, 6 L. Ed. 2d 940 (1961); United States v. Shneer, 194 F.2d 598, C.A. 3, 1952. However, there is a difference between the pleas. A plea of guilty once accepted is tantamount to a conviction. United States v. Ptomey & Young, 366 F.2d 759, C.A. 3, 1966; Hudgins v. United States, 340 F.2d 391, C.A. 3, 1965. But a plea of nolo contendere even though accepted is only an admission of guilt on the facts of the case as set forth in the indictment for the purpose of the case. Lott v. United States, supra; Bell v. Commissioner of Internal Revenue, 320 F.2d 953, C.A. 8, 1963; Tseung Chu v. Cornell, 247 F.2d 929, C.A. 9, 1957, cert. den. 78 S. Ct. 265, 355 U.S. 892, 2 L. Ed. 2d 190; Mickler v. Fahs, 243 F.2d 515, C.A. 5, 1957.
While in Hudson v. United States, 272 U.S. 451, 71 L. Ed. 347, 47 S. Ct. 127 (1926) the Supreme Court has held that a plea of nolo contendere is a declaration by the accused that he will not contest the charge against him, and that he pleads guilty for the purpose of the case, it is, nevertheless, not a final decree and is subject to an attack even after sentence as in the case of a conviction. United States v. Frankfort Distilleries, 324 U.S. 293, 89 L. Ed. 951, 65 S. Ct. 661 (1945); Lott v. United States, supra. In Lott, at page 426, it was said:
"Although it is said that a plea of nolo contendere means literally 'I do not contest it,' Piassick v. United States, 253 F.2d 658, 661 (5 Cir. 1958), and 'is a mere statement of unwillingness to contest and no more,' Mickler v. Fahs, 243 F.2d 515, 517 (5 Cir. 1957), it does admit 'every essential element of the offense [that is] well pleaded in the charge.' United States v. Lair, 195 F. 47, 52 (C.A. 8th Cir.). Cf. United States v. Frankfort Distilleries, 324 U.S. 293, 296, 89 L. Ed. 951, 65 S. Ct. 661. Hence, it is tantamount to 'an admission of guilt for the purposes of the case,' Hudson v. United States, 272 U.S. 451, 455, 71 L. Ed. 347, 47 S. Ct. 127, and 'nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record,' United States v. Norris, 281 U.S. 619, 623, 74 L. Ed. 1076, 50 S. Ct. 424. Yet the plea itself does not constitute a conviction nor hence a 'determination of guilt.' It is only a confession of the well-pleaded facts in the charge. It does not dispose of the case. It is still up to the court 'to render judgment' thereon. United States v. Norris, supra, at 623."
Ordinarily a plea of nolo contendere leaves open for review only the sufficiency of the indictment, Tseung Chu v. Cornell, supra. However, other unusual circumstances may require the allowing of nolo contendere defendants an opportunity to make defense to the indictment. United Brotherhood of Carpenters et al. v. United States, 330 U.S. 395, 412, 91 L. Ed. 973, 67 S. Ct. 775 (1947).
From all that has been presented here, it is obvious that certain factors peculiar to this case must first be considered before there can be an acceptance or rejection of the defendants' motions in this antitrust action. United States v. Standard Ultramarine & Color Co., 137 F. Supp. 167 (S.D.N.Y. 1955). Judge Weinfeld, at page 172, said:
"Some, but by no means all, the factors to be considered, or at least those which this Court deems relevant, are: the nature of the claimed violations; how long persisted in; the size and power of the defendants in the particular industry; [and] the impact of the condemned conduct upon the economy . . ."