(a) by conspiring not to recognize Linden, New Jersey, as an equalization point for chlorine and caustic soda;
(b) by exchanging truck and barge rates which were not public information;
(c) by agreeing on minimum quantities which would entitle customers to lower barge rates; and
(d) endeavoring to eliminate any disparities in practice which might detract from the quotation of identical freight rates.
The complaint as originally filed on December 24, 1964, named as defendants FMC and eight other chlor-alkali producers. But, prior to trial the eight defendants other than FMC entered into consent decrees with the plaintiff, thereby settling the proceedings against them, without however admitting the substantive allegations of the complaint. FMC, as it had the right, elected to go to trial, denying in all material respects the allegations of the complaint.
The case was tried by the Court without a jury in a trial which lasted nineteen days. Diligent effort by counsel for both sides resulted in several stipulations which greatly facilitated the presentation of documentary evidence, thereby expediting trial of the issues.
At trial an issue arose concerning the admissibility as substantive evidence in this case of testimony given by one of the plaintiff's key witnesses before a federal grand jury which investigated the chlor-alkali industry in 1961 and 1962, but failed to bring indictments. The court denied the plaintiff's motion to introduce the testimony as substantive evidence of the matters asserted therein under the past recollection recorded exception to the hearsay rule; but so that, if the case is appealed, the reviewing court may have the benefit of knowing what the court's findings would have been had the testimony been admitted into evidence, the court, pursuant to Rule 43(c), F.R.Civ.P.,
and by agreement of counsel, made additional alternative findings based upon the excluded testimony.
The court, after giving careful consideration to the pleadings and evidence, including exhibits and stipulations, the memoranda and briefs submitted by the parties, and the oral arguments of counsel, concludes that, with respect to certain elements charged in the complaint, the Government has sustained its burden of proving that there existed a combination and conspiracy which had as its purpose and effect the elimination of price competition in the sale of chlor-alkali products; but as to other elements of the complaint the Government failed to sustain its burden. In support of that holding, the Court now makes the following Findings of Fact and Conclusions of Law, separately stated.
FINDINGS OF FACT
A. General Findings.
(1) Defendant FMC Corporation is organized and exists under the laws of the State of Delaware and has its principal place of business and main office in San Jose, California.
(2) Jurisdiction of the subject matter duly appears and proper venue of the defendants is not contested.
(3) Except as otherwise stated or required by context, the facts herein found occurred or existed within the period from January 1, 1955 to December 24, 1964 (hereinafter referred to as the "period covered by the Complaint"), and occurred or existed within, and are limited to, the area of the Continental United States generally east of the Rocky Mountains.
(4) The three "chlor-alkali" commodities - chlorine, caustic soda and soda ash - to which the allegations of the complaint refer, are sold and shipped in interstate commerce by the defendant FMC Corporation and by the other producers thereof with whom FMC competes in such commerce.
(5) Although dismissed as parties to this action the eight other former co-defendants listed below were alleged by the government to be co-conspirators with FMC, and, for purposes of brevity, will be referred to hereinafter by the following abbreviated terms:
Allied Chemicals Corporation Allied
Diamond Alkali Company Diamond
Dow Chemical Company Dow
Hooker Chemical Corporation Hooker
Olin Mathieson Chemical Company Olin
Pennsalt Chemicals Corporation Pennsalt
Pittsburgh Plate Glass Company Columbia Southern n2
Wyandotte Chemicals Corporation Wyandotte
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