agreement would expire on that date if the merger had not been consummated. Accordingly, a shareholders' meeting was scheduled to be held in Traverse City on April 17, 1978.
The Department of Justice learned of the merger plan at the time of its announcement. Through its Philadelphia Anti-Trust Division, the department began an investigation by sending letters to the companies, as well as to many of their competitors, in order to ascertain what anticompetitive effect, if any, the proposed merger might have. The first of these letters was sent on December 7, 1977. Having gathered information by this method and through telephone calls, the Philadelphia office, on March 17, 1978, made its recommendation to the Department of Justice in Washington. Twenty-five days passed before a decision was made authorizing the bringing of suit. The next day, Thursday, April 13, 1978, the complaint that launched this litigation was filed. It charged that Consolidated's acquisition of Chef Pierre would substantially lessen competition and thereby violate section 7 of the Clayton Act. The Government sought a temporary restraining order and a preliminary injunction which would prohibit the defendants from taking any further steps toward consummating the merger. The complaint also requested that the defendants be permanently enjoined from carrying out the provisions of the merger agreement.
At a conference in my chambers the following day, Friday, April 14, 1978, counsel for the defendants informed the court that due to the suit, the shareholders' meeting scheduled for April 17 had been postponed until April 28, 1978. In an effort to conclude this matter before that time, the defendants asked that the court invoke the provisions of Rule 65(a)(2) of the Federal Rules of Civil Procedure whereby a hearing on a preliminary injunction is consolidated with a plenary trial on the merits resulting in a final judgment.
Noting that the Government had allowed four and one-half months to pass before bringing this action, mindful of the pre-complaint discovery powers available to the Government, and conscious of the obvious hardship that delay would visit on the defendants, I granted their request and told the attorneys that trial would begin as soon as the case then before me was concluded. I also suggested that every effort be made to stipulate to as many facts as possible. Counsel assured me they would do so.
The matter then on trial was completed the following Tuesday, April 18, and I met with counsel again to consider a motion filed by the Government to limit the hearing to matters pertaining to a preliminary injunction. I was told that a broad range of stipulations had been agreed upon, the issues had been narrowed tremendously, and that the Government's need to call 18 witnesses had been eliminated. Nevertheless, the Government said it needed more time because it had not as yet talked to all of its potential witnesses, one of whom was on vacation in Florida and another in Jamaica. The Government stated that this was a major anti-trust case involving a significant segment of the economy. It emphasized the interest of the public in these proceedings and submitted that the public had an important stake in the matter.
Still feeling that fairness to the defendants required a prompt decision on the merits, I directed that the case proceed on a consolidated basis starting the next day. I also said to the Government,
. . . if you find out you will have a problem despite your best efforts to bring these people in or get them in since they are in Florida or Jamaica or wherever they may be, we will then consider an appropriate request at that time.
Later I added,
We will get started tomorrow on the basis of its being a consolidated hearing. If during the course of that hearing you bring to my attention the need for additional time and I am convinced that you need it, I will no doubt grant it to you . . . So we will get started tomorrow morning and if and when you find you can't stipulate as to matters and you find that people, wherever they may be, then come and tell me about it, say we have this fellow in Jamaica and we can't get anyone to Jamaica to bring him back, whatever.