United States v. General Motors, 384 U.S. 127 (1966)

Topics:  General Motors

From the U.S. Government Printing Office via GPO Access
 
Case:   UNITED STATES V. GENERAL MOTORS 

Case #: 384US127


NO. 46.  ARGUED DECEMBER 9, 1965.  - DECIDED APRIL 28, 1966.  - 234 F.
SUPP. 85, REVERSED AND REMANDED. 


THIS IS A CIVIL ACTION TO ENJOIN GENERAL MOTORS CORPORATION (GM) AND
THREE ASSOCIATIONS OF CHEVROLET DEALERS IN THE LOS ANGELES AREA FROM
PARTICIPATING IN AN ALLEGED CONSPIRACY TO RESTRAIN TRADE IN VIOLATION
OF SEC 1 OF THE SHERMAN ACT BY ELIMINATING SALES OF NEW CHEVROLETS
THROUGH "DISCOUNT HOUSES" AND "REFERRAL SERVICES."  THE DISTRICT COURT
FOUND, AMONG OTHER THINGS, THAT THE LOSOR CHEVROLET DEALERS ASSOCIATION
IN THE SUMMER OF 1960 COMPLAINED TO GM PERSONNEL ABOUT SALES TO
DISCOUNTERS; THAT AT A LOSOR MEETING IN NOVEMBER 1960 MEMBER DEALERS
AGREED TO EMBARK ON A LETTER-WRITING CAMPAIGN TO ENLIST GM'S AID; THAT
IN DECEMBER AND JANUARY GM PERSONNEL TALKED TO EVERY DEALER IN THE AREA
AND OBTAINED PROMISES NOT TO DEAL WITH DISCOUNTERS; THAT
REPRESENTATIVES OF THE THREE DEALER ASSOCIATIONS MET ON DECEMBER 15,
1960, AND CREATED A JOINT INVESTIGATING COMMITTEE; THAT THE
ASSOCIATIONS THEN UNDERTOOK TO POLICE THE AGREEMENTS SO OBTAINED BY GM;
THAT THE ASSOCIATIONS SUPPLIED INFORMATION TO GM FOR USE IN BRINGING
WAYWARD DEALERS INTO LINE, AND THAT THE CHEVROLET ZONE MANAGER ASKED
THEM TO DO SO; THAT AS A RESULT A NUMBER OF DEALERS WERE INDUCED TO
REPURCHASE CARS THEY HAD SOLD TO DISCOUNTERS AND AGREED TO REFRAIN FROM
MAKING SUCH SALES IN THE FUTURE; AND THAT BY SPRING 1961 SALES THROUGH
DISCOUNTERS SEEM TO HAVE ENDED.  HOWEVER, THE DISTRICT COURT FOUND NO
CONSPIRACY IN VIOLATION OF THE SHERMAN ACT, HOLDING THAT EACH ALLEGED
CONSPIRATOR ACTED TO PROMOTE ITS OWN SELF-INTEREST AND THAT IN SEEKING
TO VINDICATE THESE INTERESTS THE ALLEGED CONSPIRATORS ENTERED INTO NO
"AGREEMENTS" AMONG THEMSELVES, ALTHOUGH THEY MAY HAVE ENGAGED IN
"PARALLEL ACTION."  HELD:  THIS IS A CLASSIC CONSPIRACY IN RESTRAINT OF
TRADE:  JOINT, COLLABORATIVE ACTION BY DEALERS, ASSOCIATIONS, AND GM TO
ELIMINATE A CLASS OF COMPETITORS BY TERMINATING DEALINGS BETWEEN THEM
AND A MINORITY OF CHEVROLET DEALERS AND TO DEPRIVE FRANCHISED DEALERS
OF THEIR FREEDOM TO DEAL THROUGH DISCOUNTERS IF THEY SO CHOOSE.  PP.
138-148. 

(A)  THE DISTRICT COURT'S CONCLUSION THAT APPELLEES' CONDUCT DID NOT
AMOUNT TO A CONSPIRACY WITHIN THE MEANING OF THE ACT WAS NOT THE KIND
OF FACT-FINDING SHIELDED FROM REVIEW BY THE "CLEARLY ERRONEOUS" TEST
EMBODIED IN RULE 52(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, SINCE
THE QUESTION INVOLVED THE APPLICATION OF A LEGAL STANDARD TO UNDISPUTED
FACTS AND SINCE THE BULK OF THE CASE WAS PRESENTED TO THE TRIAL JUDGE
IN THE FORM OF DOCUMENTS, DEPOSITIONS, AND WRITTEN STATEMENTS.  P. 141,
N. 16. 

(B)  IN DETERMINING WHETHER THERE HAS BEEN A CONSPIRACY OR
COMBINATION UNDER SEC 1 OF THE SHERMAN ACT IT IS OF NO CONSEQUENCE THAT
EACH PARTY ACTED IN ITS OWN LAWFUL INTEREST OR WHETHER THE FRANCHISE
SYSTEM IS LAWFUL OR ECONOMICALLY DESIRABLE.  P. 142. 

(C)  EVEN IF IT WERE ASSUMED THAT THERE HAD BEEN NO EXPLICIT
AGREEMENT AMONG THE APPELLEES AND THEIR ALLEGED CO-CONSPIRATORS, SUCH
AN AGREEMENT IS NOT A NECESSARY PART OF THE SHERMAN ACT CONSPIRACY -
CERTAINLY NOT WHERE, AS HERE, JOINT AND COLLABORATIVE ACTION WAS
PERVASIVE IN THE INITIATION, EXECUTION AND FULFILLMENT OF THE PLAN. 
UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29, 43.  PP. 142-143. 

(D)  THE JOINT AND INTERRELATED ACTIVITIES OF GM AND THE CO
CONSPIRATORS IN OBTAINING THE AGREEMENTS NOT TO DEAL WITH DISCOUNTERS
AND IN POLICING SUCH AGREEMENTS CANNOT BE DESCRIBED AS "UNILATERAL" OR
MERELY "PARALLEL."  PP. 144-145. 

(E)  THE ELIMINATION, BY JOINT COLLABORATIVE ACTION, OF BUSINESSMEN
FROM ACCESS TO THE MARKET IS A PER SE VIOLATION OF THE ACT.  KLOR'S,
INC. V. BROADWAY-HALE STORES, INC., 359 U.S. 207.  PP. 145-146. 

(F)  THE ECONOMIC MOTIVATION OF THOSE WHO BY CONCERTED ACTION SEEK TO
KEEP OTHERS FROM TRADING IN THE MARKET IS IRRELEVANT.  PP. 146-147. 

(G)  INHERENT IN THE SUCCESS OF THE COMBINATION IN THIS CASE WAS A
SUBSTANTIAL RESTRAINT UPON PRICE COMPETITION, A GOAL UNLAWFUL PER SE
WHEN SOUGHT TO BE EFFECTED BY COMBINATION OR CONSPIRACY.  UNITED STATES
V. PARKE, DAVIS & CO., SUPRA.  P. 147. 

UNITED STATES V. GENERAL MOTORS CORP. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ACTION BROUGHT BY THE UNITED STATES TO ENJOIN THE
APPELLEES FROM PARTICIPATING IN AN ALLEGED CONSPIRACY TO RESTRAIN TRADE
IN VIOLATION OF SEC 1 OF THE SHERMAN ACT.  (FN1)  THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA CONCLUDED THAT
THE PROOF FAILED TO ESTABLISH THE ALLEGED VIOLATION, AND ENTERED
JUDGMENT FOR THE DEFENDANTS.  THE CASE IS HERE ON DIRECT APPEAL UNDER
SEC 2 OF THE EXPEDITING ACT, 32 STAT. 823, 15 U.S.C. SEC 29 (1964
ED.).  WE REVERSE. 

                                        I. 

THE APPELLEES ARE THE GENERAL MOTORS CORPORATION, WHICH MANUFACTURES,
AMONG OTHER THINGS, THE CHEVROLET LINE OF CARS AND TRUCKS, AND THREE
ASSOCIATIONS OF CHEVROLET DEALERS IN AND AROUND LOS ANGELES,
CALIFORNIA.  (FN2)  ALL OF THE CHEVROLET DEALERS IN THE AREA BELONG TO
ONE OR MORE OF THE APPELLEE ASSOCIATIONS. 

CHEVROLETS ARE ORDINARILY DISTRIBUTED BY DEALERS OPERATING UNDER A
FRANCHISE FROM GENERAL MOTORS.  THE DEALERS PURCHASE THE CARS FROM THE
MANUFACTURER, AND THEN RETAIL THEM TO THE PUBLIC.  THE RELATIONSHIP
BETWEEN MANUFACTURER AND DEALER IS INCORPORATED IN A COMPREHENSIVE
UNIFORM DEALER SELLING AGREEMENT.  THIS AGREEMENT DOES NOT RESTRICT OR
DEFINE THOSE TO WHOM THE DEALER MAY SELL.  NOR ARE THERE LIMITATIONS AS
TO THE TERRITORY WITHIN WHICH THE DEALER MAY SELL.  COMPARE WHITE MOTOR
CO. V. UNITED STATES, 372 U.S. 253.  THE FRANCHISE AGREEMENT DOES,
HOWEVER, CONTAIN A CLAUSE (HEREINAFTER REFERRED TO AS THE "LOCATION
CLAUSE") WHICH PROHIBITS A DEALER FROM MOVING TO OR ESTABLISHING "A NEW
OR DIFFERENT LOCATION, BRANCH SALES OFFICE, BRANCH SERVICE STATION, OR
PLACE OF BUSINESS INCLUDING ANY USED CAR LOT OR LOCATION WITHOUT THE
PRIOR WRITTEN APPROVAL OF CHEVROLET." 

BEGINNING IN THE LATE 1950'S, "DISCOUNT HOUSES" ENGAGED IN RETAILING
CONSUMER GOODS IN THE LOS ANGELES AREA AND "REFERRAL SERVICES"  (FN3)
BEGAN OFFERING TO SELL NEW CARS TO THE PUBLIC AT ALLEGEDLY BARGAIN
PRICES.  THEIR SOURCES OF SUPPLY WERE THE FRANCHISED DEALERS.  BY 1960
A NUMBER OF INDIVIDUAL CHEVROLET DEALERS, WITHOUT AUTHORIZATION FROM
GENERAL MOTORS, HAD DEVELOPED WORKING RELATIONSHIPS WITH THESE
ESTABLISHMENTS.  A CUSTOMER WOULD ENTER ONE OF THESE ESTABLISHMENTS AND
EXAMINE THE LITERATURE AND PRICE LISTS FOR AUTOMOBILES PRODUCED BY
SEVERAL MANUFACTURERS.  IN SOME INSTANCES, FLOOR MODELS WERE AVAILABLE
FOR INSPECTION.  SOME OF THE ESTABLISHMENTS NEGOTIATED WITH THE
CUSTOMER FOR A TRADE-IN OF HIS OLD CAR, AND PROVIDED FINANCING FOR HIS
NEW-CAR PURCHASE. 

THE RELATIONSHIP WITH THE FRANCHISED DEALER TOOK VARIOUS FORMS.  ONE
ARRANGEMENT WAS FOR THE DISCOUNTER TO REFER THE CUSTOMER TO THE
DEALER.  THE CAR WOULD THEN BE OFFERED TO HIM BY THE DEALER AT A PRICE
PREVIOUSLY AGREED UPON BETWEEN THE DEALER AND THE DISCOUNTER.  IN 1960,
A TYPICAL REFERRAL AGREEMENT CONCERNING CHEVROLETS PROVIDED THAT THE
PRICE TO THE CUSTOMER WAS NOT TO EXCEED $250 OVER THE DEALER'S INVOICED
COST.  FOR ITS PART IN SUPPLYING THE CUSTOMER, THE DISCOUNTER RECEIVED
$50 PER SALE. 

ANOTHER COMMON ARRANGEMENT WAS FOR THE DISCOUNTER ITSELF TO NEGOTIATE
THE SALE, THE DEALER'S ROLE BEING TO FURNISH THE CAR AND TO TRANSFER
TITLE TO THE CUSTOMER AT THE DIRECTION OF THE DISCOUNTER.  ONE DEALER
FURNISHED CHEVROLETS UNDER SUCH AN ARRANGEMENT, CHARGING THE DISCOUNTER
$85 OVER ITS INVOICED COST, WITH THE DISCOUNTER GETTING THE BEST PRICE
IT COULD FROM ITS CUSTOMER. 

THESE WERE THE PRINCIPAL FORMS OF TRADING INVOLVED IN THIS CASE,
ALTHOUGH WITHIN EACH THERE WERE VARIATIONS, (FN4) AND THERE WERE
SCHEMES WHICH FIT NEITHER PATTERN.  (FN5)  BY 1960 THESE METHODS FOR
RETAILING NEW CARS HAD REACHED CONSIDERABLE DIMENSIONS.  OF THE 100,000
NEW CHEVROLETS SOLD IN THE LOS ANGELES AREA IN THAT YEAR, SOME 2,000
REPRESENTED DISCOUNT HOUSE OR REFERRAL SALES.  ONE CHEVROLET DEALER
ATTRIBUTED AS MUCH AS 25% OF ITS ANNUAL SALES TO PARTICIPATION IN THESE
ARRANGEMENTS, WHILE ANOTHER ACCOUNTED FOR BETWEEN 400 AND 525 REFERRAL
SALES IN A SINGLE YEAR. 

APPROXIMATELY A DOZEN OF THE 85 CHEVROLET DEALERS IN THE LOS ANGELES
AREA WERE FURNISHING CARS TO DISCOUNTERS IN 1960.  AS THE VOLUME OF
THESE SALES GREW, THE NONPARTICIPATING CHEVROLET DEALERS LOCATED NEAR
ONE OR MORE OF THE DISCOUNT OUTLETS  (FN6) BEGAN TO FEEL THE PINCH. 
DEALERS LOST SALES BECAUSE POTENTIAL CUSTOMERS RECEIVED, OR THOUGHT
THEY WOULD RECEIVE,  (FN7) A MORE ATTRACTIVE DEAL FROM A DISCOUNTER WHO
OBTAINED ITS CHEVROLETS FROM A DISTANT DEALER.  THE DISCOUNTERS
VIGOROUSLY ADVERTISED CHEVROLETS FOR SALE, WITH ALLURING STATEMENTS AS
TO PRICE SAVINGS.  THE DISCOUNTERS ALSO ADVERTISED THAT ALL CHEVROLET
DEALERS WERE OBLIGATED TO HONOR THE NEW-CAR WARRANTY AND TO PROVIDE THE
FREE SERVICES CONTEMPLATED THEREIN; AND GENERAL MOTORS DOES INDEED
REQUIRE CHEVROLET DEALERS TO SERVICE CHEVROLET CARS, WHEREVER
PURCHASED, PURSUANT TO THE NEW-CAR WARRANTY AND SERVICE AGREEMENT. 
ACCORDINGLY, NONPARTICIPATING DEALERS WERE INCREASINGLY CALLED UPON TO
SERVICE, WITHOUT COMPENSATION, CHEVROLETS PURCHASED THROUGH
DISCOUNTERS.  PERHAPS WHAT GRATED MOST WAS THE DEMAND THAT THEY
"PRECONDITION" CARS SO PURCHASED - MAKE THE HOPEFULLY MINOR ADJUSTMENTS
AND DO THE BODY AND PAINT WORK NECESSARY TO RENDER A FACTORY-FRESH CAR
BOTH CUSTOMER- AND ROAD-WORTHY. 

ON JUNE 28, 1960, AT A REGULAR MEETING OF THE APPELLEE LOSOR
CHEVROLET DEALERS ASSOCIATION, MEMBERS DEALERS DISCUSSED THE PROBLEM
AND RESOLVED TO BRING IT TO THE ATTENTION OF THE CHEVROLET DIVISION'S
LOS ANGELES ZONE MANAGER, ROBERT O'CONNOR.  SHORTLY THEREAFTER, A
DELEGATION FROM THE ASSOCIATION CALLED UPON O'CONNOR, PRESENTED
EVIDENCE THAT SOME DEALERS WERE DOING BUSINESS WITH THE DISCOUNTERS,
AND ASKED FOR HIS ASSISTANCE.  O'CONNOR PROMISED HE WOULD SPEAK TO THE
OFFENDING DEALERS.  WHEN NO HELP WAS FORTHCOMING, OWEN KEOWN, A
DIRECTOR OF LOSOR, TOOK MATTERS INTO HIS OWN HANDS.  FIRST, HE SPOKE TO
WARREN BIGGS AND WILBUR NEWMAN, CHEVROLET DEALERS WHO WERE THEN DOING A
SUBSTANTIAL BUSINESS WITH DISCOUNTERS.  ACCORDING TO KEOWN'S TESTIMONY,
NEWMAN TOLD HIM THAT HE WOULD CONTINUE THE PRACTICE "UNTIL  ..  TOOLD
NOT TO BY" CHEVROLET, AND THAT "WHEN THE CHEVROLET MOTOR DIVISION TOLD
HIM NOT TO DO IT, HE KNEW THAT THEY WOULDN'T LET SOME OTHER DEALER
CARRY ON WITH IT."  (FN8) 

KEOWN THEN REPORTED THE FOREGOING EVENTS AT THE ASSOCIATION'S ANNUAL
MEETING IN HONOLULU ON NOVEMBER 10, 1960.  THE MEMBER DEALERS PRESENT
AGREED IMMEDIATELY TO FLOOD GENERAL MOTORS AND THE CHEVROLET DIVISION
WITH LETTERS AND TELEGRAMS ASKING FOR HELP.  SALESMEN, TOO, WERE TO
WRITE.  (FN9)

HUNDREDS OF LETTERS AND WIRES DESCENDED UPON DETROIT - WITH TELLING
EFFECT.  WITHIN A WEEK CHEVROLET'S O'CONNOR WAS DIRECTED TO FURNISH HIS
SUPERIORS IN DETROIT WITH "A DETAILED REPORT OF THE DISCOUNT HOUSE
OPERATIONS  ..  ASS WELL AS WHAT ACTION WE IN THE ZONE ARE TAKING TO
CURB SUCH SALES."  (FN10) 

BY MID-DECEMBER GENERAL MOTORS HAD FORMULATED ITS RESPONSE.  ON
DECEMBER 15, JAMES M. ROCHE, THEN AN EXECUTIVE VICE PRESIDENT OF
GENERAL MOTORS, WROTE TO SOME OF THE COMPLAINING DEALERS.  HE NOTED
THAT THE PRACTICES TO WHICH THEY WERE OBJECTING "IN SOME INSTANCES
REPRESENT THE ESTABLISHMENT OF A SECOND AND UNAUTHORIZED SALES OUTLET
OR LOCATION CONTRARY TO THE PROVISIONS OF THE GENERAL MOTORS DEALERS
SELLING AGREEMENTS."  RECIPIENTS OF THE LETTER WERE ADVISED THAT
GENERAL MOTORS PERSONNEL PROPOSED TO DISCUSS THAT MATTER WITH EACH OF
THE DEALERS.  (FN11)  O'CONNOR IN LOS ANGELES WAS APPRISED OF THE
LETTER'S CONTENT AND INSTRUCTED TO CARRY ON THE PERSONAL DISCUSSIONS
REFERRED TO THEREIN.  WITH RESPECT TO THE OFFENDING DEALERS, HE WAS TO
WORK WITH ROY CASH, REGIONAL MANAGER FOR THE CHEVROLET DIVISION.  CASH
HAD BEEN BRIEFED ON THE SUBJECT IN DETROIT ON DECEMBER 14. 

GENERAL MOTORS PERSONNEL PROCEEDED TO TELEPHONE ALL AREA DEALERS,
BOTH TO IDENTIFY THOSE ASSOCIATED WITH THE DISCOUNTERS AND TO ADVISE
NONPARTICIPANTS THAT GENERAL MOTORS HAD ENTERED THE LISTS.  THE
PRINCIPAL OFFENDERS WERE TREATED TO UNPRECEDENTED INDIVIDUAL
CONFRONTATIONS WITH CASH, THE REGIONAL MANAGER.  THESE BRIEF MEETINGS
WERE WHOLLY SUCCESSFUL IN OBTAINING FROM EACH DEALER HIS AGREEMENT TO
ABANDON THE PRACTICES IN QUESTION.  SOME CAPITULATED DURING THE COURSE
OF THE FOUR-OR FIVE-MINUTE MEETING, OR IMMEDIATELY THEREAFTER.  (FN12)
ONE DEALER, WHO MET NOT WITH CASH BUT WITH THE CITY SALES MANAGER FOR
CHEVROLET, PUT OFF DECISION FOR A WEEK "TO MAKE SURE THAT THE OTHER
DEALERS, OR MOST OF THEM, HAD STOPPED THEIR BUSINESS DEALINGS WITH
DISCOUNT HOUSES."  (FN13) 

THERE IS EVIDENCE THAT UNANIMITY WAS NOT OBTAINED WITHOUT REFERENCE
TO THE ULTIMATE POWER OF GENERAL MOTORS.  THE TESTIMONY OF DEALER
WILBUR NEWMAN WAS THAT REGIONAL MANAGER CASH RELATED A STORY, THE
RELEVANCE OF WHICH WAS NOT LOST UPON HIM, THAT IN HANDLING CHILDREN, "I
CAN TELL THEM TO STOP SOMETHING.  IF THEY DON'T DO IT  ..  I  CAN KNOCK
THEIR TEETH DOWN THEIR THROATS." 

BY MID-JANUARY GENERAL MOTORS HAD ELICITED FROM EACH DEALER A PROMISE
NOT TO DO BUSINESS WITH THE DISCOUNTERS.  BUT SUCH AGREEMENTS WOULD
REQUIRE POLICING - A FACT WHICH HAD BEEN ANTICIPATED.  GENERAL MOTORS
EARLIER HAD INITIATED CONTACTS WITH FIRMS CAPABLE OF PERFORMING SUCH A
FUNCTION.  THIS PLAN, UNILATERALLY TO POLICE THE AGREEMENTS, WAS
DISPLACED, HOWEVER, IN FAVOR OF A JOINT EFFORT BETWEEN GENERAL MOTORS,
THE THREE APPELLEE ASSOCIATIONS, AND A NUMBER OF INDIVIDUAL DEALERS. 

ON DECEMBER 15, 1960, REPRESENTATIVES OF THE THREE APPELLEE
ASSOCIATIONS HAD MET AND APPOINTED A JOINT COMMITTEE TO STUDY THE
SITUATION AND TO KEEP IN TOUCH WITH CHEVROLET'S O'CONNOR.  (FN14) EARLY
IN 1961, THE THREE ASSOCIATIONS AGREED JOINTLY TO FINANCE THE
"SHOPPING" OF THE DISCOUNTERS TO ASSURE THAT NO CHEVROLET DEALER
CONTINUED TO SUPPLY THEM WITH CARS.  EACH OF THE ASSOCIATIONS
CONTRIBUTED $5,000, AND A PROFESSIONAL INVESTIGATOR WAS HIRED.  HE WAS
INSTRUCTED TO TRY TO PURCHASE NEW CHEVROLETS FROM THE PROSCRIBED
OUTLETS, TO TAPE-RECORD THE TRANSACTIONS, IF ANY, AND TO GATHER ALL THE
NECESSARY DOCUMENTARY EVIDENCE - WHICH THE ASSOCIATIONS WOULD THEN LAY
"AT THE DOORSTEP OF CHEVROLET."  THESE JOINT ASSOCIATIONAL ACTIVITIES
WERE BOTH PRECEDED AND SUPPLEMENTED BY SIMILAR "SHOPPING" ACTIVITIES BY
INDIVIDUAL DEALERS AND BY APPELLEE LOSOR CHEVROLET DEALERS
ASSOCIATION. 

GENERAL MOTORS COLLABORATED WITH THESE POLICING ACTIVITIES.  THERE IS
EVIDENCE THAT ZONE MANAGER O'CONNOR AND A SUBORDINATE, JERE FAUST,
ACTIVELY SOLICITED THE HELP OF INDIVIDUAL DEALERS IN UNCOVERING
VIOLATIONS.  ARMED WITH INFORMATION OF SUCH VIOLATIONS, O'CONNOR OR
MEMBERS OF HIS STAFF WOULD ASK THE OFFENDING DEALER TO COME IN AND
TALK.  THE DEALER THEN WAS CONFRONTED WITH THE CAR PURCHASED BY THE
"SHOPPER," THE DOCUMENTS OF SALE, AND IN MOST CASES A TAPE RECORDING OF
THE TRANSACTION.  IN EVERY INSTANCE, THE EMBARRASSED DEALER REPURCHASED
THE CAR, SOMETIMES AT A SUBSTANTIAL LOSS, AND PROMISED TO STOP SUCH
SALES.  AT THE DIRECTION OF O'CONNOR OR A SUBORDINATE, THE CHECKS WITH
WHICH THE CARS WERE REPURCHASED WERE MADE PAYABLE TO AN ATTORNEY ACTING
JOINTLY FOR THE THREE DEFENDANT ASSOCIATIONS. 

O'CONNOR TESTIFIED THAT ON NO OCCASION DID HE "FORCE" A DEALER TO
REPURCHASE; HE MERELY MADE THE OPPORTUNITY AVAILABLE.  BUT ONE DEALER
TESTIFIED THAT WHEN AN ASSISTANT ZONE MANAGER FOR THE CHEVROLET
DIVISION ASKED HIM TO COME IN AND TALK ABOUT DISCOUNT SALES, "HE
SPECIFIED A SUM OF MONEY WHICH I WAS TO BRING WITH ME WHEN I CAME DOWN
AND SAW HIM  .. .   I KEPT THE APPOINTMENT AND BROUGHT A CASHIER'S
CHECK.  I KNEW WHEN I CAME DOWN TO LOS ANGELES THAT I WAS GOING TO
REPURCHASE AN AUTOMOBILE  ..  .""  ANOTHER DEALER TESTIFIED THAT UPON
BEING CONFRONTED WITH EVIDENCE THAT ONE OF HIS CARS HAD BEEN PURCHASED
THROUGH A REFERRAL SERVICE, HE NOT ONLY BOUGHT IT BACK (WITHOUT
QUESTIONING THE CORRECTNESS OF THE PRICE EXACTED) BUT ALSO FIRED THE
EMPLOYEE RESPONSIBLE FOR THE TRANSACTION - ALTHOUGH THE EMPLOYEE HAD
BEEN COMMENDED BY THE CHEVROLET DIVISION A FEW WEEKS EARLIER AS THE
"NUMBER ONE FLEET SALESMAN" IN THE 11-STATE PACIFIC REGION. 

BY THE SPRING OF 1961, THE CAMPAIGN TO ELIMINATE THE DISCOUNTERS FROM
COMMERCE IN NEW CHEVROLET CARS WAS A SUCCESS.  SALES THROUGH THE
DISCOUNT OUTLETS SEEM TO HAVE COME TO A HALT.  NOT UNTIL A FEDERAL
GRAND JURY COMMENCED AN INQUIRY INTO THE MATTERS WHICH WE HAVE SKETCHED
DOES IT APPEAR THAN ANY CHEVROLET DEALER RESUMED ITS BUSINESS
ASSOCIATION WITH THE DISCOUNTERS. 

               II. 

ON THESE BASIC FACTS, THE GOVERNMENT FIRST PROCEEDED CRIMINALLY.  A
FEDERAL GRAND JURY IN THE SOUTHERN DISTRICT OF CALIFORNIA RETURNED AN
INDICTMENT.  AFTER TRIAL, THE DEFENDANTS WERE FOUND NOT GUILTY.  THE
PRESENT CIVIL ACTION, FILED SHORTLY AFTER RETURN OF THE INDICTMENT, WAS
THEN BROUGHT TO TRIAL. 

BOTH THE GOVERNMENT AND THE APPELLEES URGE THE IMPORTANCE, FOR
PURPOSES OF DECISION, OF THE "LOCATION CLAUSE" IN THE DEALER SELLING
AGREEMENT WHICH PROHIBITS A FRANCHISED DEALER FROM MOVING TO OR
ESTABLISHING "A NEW OR DIFFERENT LOCATION, BRANCH SALES OFFICE, BRANCH
SERVICE STATION, OR PLACE OF BUSINESS  ..  WIITHOUT THE PRIOR WRITTEN
APPROVAL OF CHEVROLET." THE APPELLEES CONTEND THAT THIS CONTRACTUAL
PROVISION IS LAWFUL, AND THAT IT JUSTIFIES THEIR ACTIONS.  THEY ARGUE
THAT GENERAL MOTORS ACTED LAWFULLY TO PREVENT ITS DEALERS FROM
VIOLATING THE "LOCATION CLAUSE," THAT THE DESCRIBED ARRANGEMENTS WITH
DISCOUNTERS CONSTITUTE THE ESTABLISHMENT OF ADDITIONAL SALES OUTLETS IN
VIOLATION OF THE CLAUSE, AND THAT THE INDIVIDUAL DEALERS - AND THEIR
ASSOCIATIONS - HAVE AN INTEREST IN UNIFORM COMPLIANCE WITH THE
FRANCHISE AGREEMENT, WHICH INTEREST THEY LAWFULLY SOUGHT TO VINDICATE. 
THE GOVERNMENT INVITES US TO JOIN IN THE ASSUMPTION, ONLY FOR
PURPOSES OF THIS CASE, THAT THE "LOCATION CLAUSE" ENCOMPASSES SALES BY
DEALERS THROUGH THE MEDIUM OF DISCOUNTERS.  BUT IT URGES US TO HOLD
THAT, SO CONSTRUED, THE PROVISION IS UNLAWFUL AS AN UNREASONABLE
RESTRAINT OF TRADE IN VIOLATION OF THE SHERMAN ACT.  (FN15) 

WE NEED NOT REACH THESE QUESTIONS CONCERNING THE MEANING, EFFECT, OR
VALIDITY OF THE "LOCATION CLAUSE" OR OF ANY OTHER PROVISION IN THE
DEALER SELLING AGREEMENT, AND WE DO NOT.  WE DO NOT DECIDE WHETHER THE
"LOCATION CLAUSE" MAY BE CONSTRUED TO PROHIBIT A DEALER, PARTY TO IT,
FROM SELLING THROUGH DISCOUNTERS, OR WHETHER GENERAL MOTORS COULD BY
UNILATERAL ACTION ENFORCE THE CLAUSE, SO CONSTRUED.  WE HAVE HERE A
CLASSIC CONSPIRACY IN RESTRAINT OF TRADE:  JOINT, COLLABORATIVE ACTION
BY DEALERS, THE APPELLEE ASSOCIATIONS, AND GENERAL MOTORS TO ELIMINATE
A CLASS OF COMPETITORS BY TERMINATING BUSINESS DEALINGS BETWEEN THEM
AND A MINORITY OF CHEVROLET DEALERS AND TO DEPRIVE FRANCHISED DEALERS
OF THEIR FREEDOM TO DEAL THROUGH DISCOUNTERS IF THEY SO CHOOSE. 
AGAINST THIS FACT OF UNLAWFUL COMBINATION, THE "LOCATION CLAUSE" IS OF
NO AVAIL.  WHATEVER GENERAL MOTORS MIGHT OR MIGHT NOT LAWFULLY HAVE
DONE TO ENFORCE INDIVIDUAL DEALER SELLING AGREEMENTS BY ACTION WITHIN
THE BORDERS OF THOSE AGREEMENTS AND THE RELATIONSHIP WHICH EACH
DEFINES, IS BESIDE THE POINT.  AND, BECAUSE THE ACTION TAKEN
CONSTITUTES A COMBINATION OR CONSPIRACY, IT IS NOT NECESSARY TO
CONSIDER WHAT MIGHT BE THE LEGITIMATE INTEREST OF A DEALER IN SECURING
COMPLIANCE BY OTHERS WITH THE "LOCATION CLAUSE," OR THE LAWFULNESS OF
ACTION A DEALER MIGHT INDIVIDUALLY TAKE TO VINDICATE THIS INTEREST. 

THE DISTRICT COURT DECIDED OTHERWISE.  IT CONCLUDED THAT THE
DESCRIBED EVENTS DID NOT ADD UP TO A COMBINATION OR CONSPIRACY
VIOLATIVE OF THE ANTITRUST LAWS.  BUT ITS CONCLUSION CANNOT BE SQUARED
WITH ITS OWN SPECIFIC FINDINGS OF FACT.  THESE FINDINGS INCLUDE THE
ESSENTIALS OF A CONSPIRACY WITHIN SEC 1 OF THE SHERMAN ACT:  THAT IN
THE SUMMER OF 1960 THE LOSOR CHEVROLET DEALERS ASSOCIATION, "THROUGH
SOME OF ITS DEALER-MEMBERS," COMPLAINED TO GENERAL MOTORS PERSONNEL
ABOUT SALES THROUGH DISCOUNTERS (FINDING 34); THAT AT A LOSOR MEETING
IN NOVEMBER 1960 THE DEALERS THERE PRESENT AGREED TO EMBARK ON A LETTER
WRITING CAMPAIGN DIRECTED AT ENLISTING THE AID OF GENERAL MOTORS
(FINDING 35); THAT IN DECEMBER AND JANUARY GENERAL MOTORS PERSONNEL
DISCUSSED THE MATTER WITH EVERY CHEVROLET DEALER IN THE LOS ANGELES
AREA AND ELICITED FROM EACH A PROMISE NOT TO DO BUSINESS WITH THE
DISCOUNTERS (FINDING 39); THAT REPRESENTATIVES OF THE THREE
ASSOCIATIONS OF CHEVROLET DEALERS MET ON DECEMBER 15, 1960, AND CREATED
A JOINT INVESTIGATING COMMITTEE (FINDING 40); THAT THE THREE
ASSOCIATIONS THEN UNDERTOOK JOINTLY TO POLICE THE AGREEMENTS OBTAINED
FROM EACH OF THE DEALERS BY GENERAL MOTORS:  THAT THE ASSOCIATIONS
SUPPLIED INFORMATION TO GENERAL MOTORS FOR USE BY IT IN BRINGING
WAYWARD DEALERS INTO LINE, AND THAT CHEVROLET'S O'CONNOR ASKED THE
ASSOCIATIONS TO DO SO (FINDINGS 41 AND 42); THAT AS A RESULT OF THIS
COLLABORATIVE EFFORT, A NUMBER OF CHEVROLET DEALERS WERE INDUCED TO
REPURCHASE CARS THEY HAD SOLD THROUGH DISCOUNTERS AND TO PROMISE TO
ABJURE SUCH SALES IN FUTURE (FINDING 42). 

THESE FINDINGS BY THE TRIAL JUDGE COMPEL THE CONCLUSION THAT A
CONSPIRACY TO RESTRAIN TRADE WAS PROVED.  (FN16)  THE ERROR OF THE
TRIAL COURT LIES IN ITS FAILURE TO APPLY THE CORRECT AND ESTABLISHED
STANDARD FOR ASCERTAINING THE EXISTENCE OF A COMBINATION OR CONSPIRACY
UNDER SEC 1 OF THE SHERMAN ACT.  SEE UNITED STATES V. PARKE, DAVIS &
CO., 362 U.S. 29, 44-45.  THE TRIAL COURT ATTEMPTED TO JUSTIFY ITS
CONCLUSION ON THE FOLLOWING REASONING:  THAT EACH DEFENDANT AND ALLEGED
CO-CONSPIRATOR ACTED TO PROMOTE ITS OWN SELF-INTEREST; THAT GENERAL
MOTORS, AS WELL AS THE DEFENDANT ASSOCIATIONS AND THEIR MEMBERS, HAS A
LAWFUL INTEREST IN SECURING COMPLIANCE WITH THE "LOCATION CLAUSE" AND
IN THUS PROTECTING THE FRANCHISE SYSTEM OF DISTRIBUTING AUTOMOBILES -
BUSINESS ARRANGEMENTS WHICH THE COURT DEEMED LAWFUL AND PROPER; AND
THAT IN SEEKING TO VINDICATE THESE INTERESTS THE DEFENDANTS AND THEIR
ALLEGED CO-CONSPIRATORS ENTERED INTO NO "AGREEMENTS" AMONG THEMSELVES,
ALTHOUGH THEY MAY HAVE ENGAGED IN "PARALLEL ACTION." 

THESE FACTORS DO NOT JUSTIFY THE RESULT REACHED.  IT IS OF NO
CONSEQUENCE, FOR PURPOSES OF DETERMINING WHETHER THERE HAS BEEN A
COMBINATION OR CONSPIRACY UNDER SEC 1 OF THE SHERMAN ACT, THAT EACH
PARTY ACTED IN ITS OWN LAWFUL INTEREST.  NOR IS IT OF CONSEQUENCE FOR
THIS PURPOSE WHETHER THE "LOCATION CLAUSE" AND FRANCHISE SYSTEM ARE
LAWFUL OR ECONOMICALLY DESIRABLE.  AND ALTHOUGH WE REGARD AS CLEARLY
ERRONEOUS AND IRRECONCILABLE WITH ITS OTHER FINDINGS THE TRIAL COURT'S
CONCLUSORY "FINDING" THAT THERE HAD BEEN NO "AGREEMENT" AMONG THE
DEFENDANTS AND THEIR ALLEGED CO-CONSPIRATORS, IT HAS LONG BEEN SETTLED
THAT EXPLICIT AGREEMENT IS NOT A NECESSARY PART OF A SHERMAN ACT
CONSPIRACY - CERTAINLY NOT WHERE, AS HERE, JOINT AND COLLABORATIVE
ACTION WAS PERVASIVE IN THE INITIATION, EXECUTION, AND FULFILLMENT OF
THE PLAN.  UNITED STATES V. PARKE, DAVIS & CO., SUPRA, AT 43; UNITED
STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 722-723; FEDERAL
TRADE COMM'N V. BEECH-NUT PACKING CO., 257 U.S. 441, 455. 

NEITHER INDIVIDUAL DEALERS NOR THE ASSOCIATIONS ACTED INDEPENDENTLY
OR SEPARATELY.  THE DEALERS COLLABORATED, THROUGH THE ASSOCIATIONS AND
OTHERWISE, AMONG THEMSELVES AND WITH GENERAL MOTORS, BOTH TO ENLIST THE
AID OF GENERAL MOTORS AND TO ENFORCE DEALERS' PROMISES TO FORSAKE THE
DISCOUNTERS.  THE ASSOCIATIONS EXPLICITLY ENTERED INTO A JOINT VENTURE
TO ASSIST GENERAL MOTORS IN POLICING THE DEALERS' PROMISES, AND THEIR
JOINT PROFFER OF AID WAS ACCEPTED AND UTILIZED BY GENERAL MOTORS. 

NOR DID GENERAL MOTORS CONFINE ITS ACTIVITIES TO THE CONTRACTUAL
BOUNDARIES OF ITS RELATIONSHIPS WITH INDIVIDUAL DEALERS.  AS THE TRIAL
COURT FOUND (FINDING 39), GENERAL MOTORS AT NO TIME ANNOUNCED THAT IT
WOULD TERMINATE THE FRANCHISE OF ANY DEALER WHICH FURNISHED CARS TO THE
DISCOUNTERS.  (FN17) THE EVIDENCE INDICATES THAT IT HAD NO INTENTION OF
ACTING IN THIS UNILATERAL FASHION.  (FN18)  ON THE CONTRARY, OVERRIDING
CORPORATE POLICY WITH RESPECT TO PROPER DEALER RELATIONS  (FN19)
DISSUADED GENERAL MOTORS FROM ENGAGING IN THIS SORT OF WHOLLY
UNILATERAL CONDUCT, THE VALIDITY OF WHICH UNDER THE ANTITRUST LAWS WAS
ASSUMED, WITHOUT BEING DECIDED, IN PARKE DAVIS, SUPRA. 

AS PARKE DAVIS HAD DONE, GENERAL MOTORS SOUGHT TO ELICIT FROM ALL THE
DEALERS AGREEMENTS, SUBSTANTIALLY INTERRELATED AND INTERDEPENDENT, THAT
NONE OF THEM WOULD DO BUSINESS WITH THE DISCOUNTERS.  THESE AGREEMENTS
WERE HAMMERED OUT IN MEETINGS BETWEEN NONCONFORMING DEALERS AND
OFFICIALS OF GENERAL MOTORS' CHEVROLET DIVISION, AND IN TELEPHONE
CONVERSATIONS WITH OTHER DEALERS.  IT WAS ACKNOWLEDGED FROM THE
BEGINNING THAT SUBSTANTIAL UNANIMITY WOULD BE ESSENTIAL IF THE
AGREEMENTS WERE TO BE FORTHCOMING.  AND ONCE THE AGREEMENTS WERE
SECURED, GENERAL MOTORS BOTH SOLICITED AND EMPLOYED THE ASSISTANCE OF
ITS ALLEGED CO-CONSPIRATORS IN HELPING TO POLICE THEM.  WHAT RESULTED
WAS A FABRIC INTERWOVEN BY MANY STRANDS OF JOINT ACTION TO ELIMINATE
THE DISCOUNTERS FROM PARTICIPATION IN THE MARKET, TO INHIBIT THE FREE
CHOICE OF FRANCHISED DEALERS TO SELECT THEIR OWN METHODS OF TRADE AND
TO PROVIDE MULTILATERAL SURVEILLANCE AND ENFORCEMENT.  THIS PROCESS FOR
ACHIEVING AND ENFORCING THE DESIRED OBJECTIVE CAN BY NO STRETCH OF THE
IMAGINATION BE DESCRIBED AS "UNILATERAL" OR MERELY "PARALLEL."  SEE
PARKE DAVIS, SUPRA, AT 46; FEDERAL TRADE COMM'N V. BEECH-NUT PACKING
CO., 257 U.S. 441, 453; UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321
U.S. 707, 722-723; INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306 U.S.
208, 226; UNITED STATES V. MASONITE CORP., 316 U.S. 265, 275; TURNER,
THE DEFINITION OF AGREEMENT UNDER THE SHERMAN ACT:  CONSCIOUS
PARALLELISM AND REFUSALS TO DEAL, 75 HARV. L. REV. 655 (1962).  (FN20) 

THERE CAN BE NO DOUBT THAT THE EFFECT OF THE COMBINATION OR
CONSPIRACY HERE WAS TO RESTRAIN TRADE AND COMMERCE WITHIN THE MEANING
OF THE SHERMAN ACT.  ELIMINATION, BY JOINT COLLABORATIVE ACTION, OF
DISCOUNTERS FROM ACCESS TO THE MARKET IS A PER SE VIOLATION OF THE
ACT. 

IN KLOR'S, INC. V. BROADWAY-HALE STORES, INC., 359 U.S. 207, THE
COURT WAS CONFRONTED WITH THE QUESTION WHETHER "A GROUP OF POWERFUL
BUSINESSMEN MAY ACT IN CONCERT TO DEPRIVE A SINGLE MERCHANT, LIKE KLOR,
OF THE GOODS HE NEEDS TO COMPETE EFFECTIVELY."  359 U.S., AT 210.  THE
ALLEGATION WAS THAT MANUFACTURERS AND DISTRIBUTORS OF ELECTRICAL
APPLIANCES HAD CONSPIRED AMONG THEMSELVES AND WITH A MAJOR RETAILER,
BROADWAY-HALE, "EITHER NOT TO SELL TO KLOR'S (BROADWAY-HALE'S NEXT-DOOR
NEIGHBOR AND COMPETITOR) OR TO SELL TO IT ONLY AT DISCRIMINATORY PRICES
AND HIGHLY UNFAVORABLE TERMS."  359 U.S., AT 209.  THE COURT CONCLUDED
THAT THE ALLEGED GROUP BOYCOTT OF EVEN A SINGLE TRADER VIOLATED THE
STATUTE (FN21) WITHOUT REGARD TO THE REASONABLENESS OF THE CONDUCT IN
THE CIRCUMSTANCES.  GROUP BOYCOTTS OF A TRADER, SAID THE COURT, ARE
AMONG THOSE "CLASSES OF RESTRAINTS WHICH FROM THEIR 'NATURE OR
CHARACTER' WERE UNDULY RESTRICTIVE  ..  .""  359 U.S., AT 211.  THIS
WAS NOT NEW DOCTRINE, FOR IT HAD LONG BEEN RECOGNIZED THAT "THERE ARE
CERTAIN AGREEMENTS OR PRACTICES WHICH BECAUSE OF THEIR PERNICIOUS
EFFECT ON COMPETITION AND LACK OF ANY REDEEMING VIRTUE ARE CONCLUSIVELY
PRESUMED TO BE UNREASONABLE AND THEREFORE ILLEGAL WITHOUT ELABORATE
INQUIRY AS TO THE PRECISE HARM THEY HAVE CAUSED OR THE BUSINESS EXCUSE
FOR THEIR USE," AND THAT GROUP BOYCOTTS ARE OF THIS CHARACTER. 
NORTHERN PAC. R. CO. V. UNITED STATES, 356 U.S. 1, 5.  SEE ALSO FASHION
ORIGINATORS' GUILD OF AMERICA, INC. V. FEDERAL TRADE COMM'N, 312 U.S.
457, AND EASTERN STATES RETAIL LUMBER DEALERS' ASSN. V. UNITED STATES,
234 U.S. 600, 613-614, NEITHER OF WHICH INVOLVED PRICE-FIXING. 

THE PRINCIPLE OF THESE CASES IS THAT WHERE BUSINESSMEN CONCERT THEIR
ACTIONS IN ORDER TO DEPRIVE OTHERS OF ACCESS TO MERCHANDISE WHICH THE
LATTER WISH TO SELL TO THE PUBLIC, WE NEED NOT INQUIRE INTO THE
ECONOMIC MOTIVATION UNDERLYING THEIR CONDUCT.  SEE BARBER, REFUSALS TO
DEAL UNDER THE FEDERAL ANTITRUST LAWS, 103 U. PA. L. REV. 847, 872-885
(1955).  EXCLUSION OF TRADERS FROM THE MARKET BY MEANS OF COMBINATION
OR CONSPIRACY IS SO INCONSISTENT WITH THE FREE-MARKET PRINCIPLES
EMBODIED IN THE SHERMAN ACT THAT IT IS NOT TO BE SAVED BY REFERENCE TO
THE NEED FOR PRESERVING THE COLLABORATORS' PROFIT MARGINS OR THEIR
SYSTEM FOR DISTRIBUTING AUTOMOBILES, ANY MORE THAN BY REFERENCE TO THE
ALLEGEDLY TORTIOUS CONDUCT AGAINST WHICH A COMBINATION OR CONSPIRACY
MAY BE DIRECTED - AS IN FASHION ORIGINATORS' GUILD OF AMERICA, INC. V.
FEDERAL TRADE COMM'N, SUPRA, AT 468. 

WE NOTE, MOREOVER, THAT INHERENT IN THE SUCCESS OF THE COMBINATION IN
THIS CASE WAS A SUBSTANTIAL RESTRAINT UPON PRICE COMPETITION - A GOAL
UNLAWFUL PER SE WHEN SOUGHT TO BE EFFECTED BY COMBINATION OR
CONSPIRACY.  E.G., UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29,
47; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 223.  AND THE
PER SE RULE APPLIES EVEN WHEN THE EFFECT UPON PRICES IS INDIRECT. 
SIMPSON V. UNION OIL CO., 377 U.S. 13, 16-22; SOCONY-VACUUM OIL CO.,
SUPRA. 

THERE IS IN THE RECORD AMPLE EVIDENCE THAT ONE OF THE PURPOSES BEHIND
THE CONCERTED EFFORT TO ELIMINATE SALES OF NEW CHEVROLET CARS BY
DISCOUNTERS WAS TO PROTECT FRANCHISED DEALERS FROM REAL OR APPARENT
PRICE COMPETITION.  THE DISCOUNTERS ADVERTISED PRICE SAVINGS.  SEE N.
7, SUPRA.  SOME PURCHASERS FOUND AND OTHERS BELIEVED THAT DISCOUNT
PRICES WERE LOWER THAN THOSE AVAILABLE THROUGH THE FRANCHISED DEALERS. 
IBID.  CERTAINLY, COMPLAINTS ABOUT PRICE COMPETITION WERE PROMINENT IN
THE LETTERS AND TELEGRAMS WITH WHICH THE INDIVIDUAL DEALERS AND
SALESMEN BOMBARDED GENERAL MOTORS IN NOVEMBER 1960.  (FN22)  (FINDING
38.)  AND ALTHOUGH THE DISTRICT COURT FOUND TO THE CONTRARY, THERE IS
EVIDENCE IN THE RECORD THAT GENERAL MOTORS ITSELF WAS NOT UNCONCERNED
ABOUT THE EFFECT OF DISCOUNT SALES UPON GENERAL PRICE LEVELS.  (FN23) 

THE PROTECTION OF PRICE COMPETITION FROM CONSPIRATORIAL RESTRAINT IS
AN OBJECT OF SPECIAL SOLICITUDE UNDER THE ANTITRUST LAWS.  WE CANNOT
RESPECT THAT SOLICITUDE BY CLOSING OUR EYES TO THE EFFECT UPON PRICE
COMPETITION OF THE REMOVAL FROM THE MARKET, BY COMBINATION OR
CONSPIRACY, OF A CLASS OF TRADERS.  NOR DO WE PROPOSE TO CONSTRUE THE
SHERMAN ACT TO PROHIBIT CONSPIRACIES TO FIX PRICES AT WHICH COMPETITORS
MAY SELL, BUT TO ALLOW CONSPIRACIES OR COMBINATIONS TO PUT COMPETITORS
OUT OF BUSINESS ENTIRELY. 

ACCORDINGLY, WE REVERSE AND REMAND TO THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA IN ORDER THAT IT MAY
FASHION APPROPRIATE EQUITABLE RELIEF.  SEE UNITED STATES V. PARKE,
DAVIS & CO., SUPRA, AT 47-48.  IT IS SO ORDERED. 

FN1  THE STATUTE READS IN RELEVANT PART:  "EVERY CONTRACT,
COMBINATION IN THE FORM OF TRUST OR OTHERWISE, OR CONSPIRACY, IN
RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL STATES, OR WITH
FOREIGN NATIONS, IS DECLARED TO BE ILLEGAL  ..  .""  26 STAT. 209, 15
U.S.C. SEC 1 (1964 ED.).    FN2  NAMED AS CO-CONSPIRATORS BUT NOT AS
DEFENDANTS ARE "THE OFFICERS, DIRECTORS, AND MEMBERS OF THE THREE
ASSOCIATIONS, CERTAIN OFFICERS AND EMPLOYEES OF SUCH MEMBERS, CERTAIN
OFFICERS AND EMPLOYEES OF GENERAL MOTORS, OTHER CHEVROLET DEALERS IN
THE SOUTHERN CALIFORNIA AREA, AND OTHERS TO THE PLAINTIFF UNKNOWN ..
."  

FN3  SINCE THE EVIDENCE DOES NOT CONSISTENTLY DISTINGUISH BETWEEN
"DISCOUNT HOUSES" AND "REFERRAL SERVICES," BASED EITHER ON THE VARIETY
OF GOODS OFFERED TO THE PUBLIC OR ON THE NATURE OF THE ARRANGEMENT
BETWEEN THE ESTABLISHMENT AND THE FRANCHISED DEALER WHICH SUPPLIED IT
WITH CARS, WE SHALL HEREINAFTER USE THE TERM "DISCOUNTER" TO EMBRACE
ALL SUCH ESTABLISHMENTS.    FN4  ONE DEALER, FOR EXAMPLE, PAID ITS
REFERRAL SERVICE ONE-THIRD OF THE GROSS PROFIT ON EACH SALE, UP TO $75,
THERE BEING NO FIXED PRICE AT WHICH THE SALE WAS TO TAKE PLACE.  THE
SAME DEALER EARLIER HAD PAID A FLAT FEE OF $17.50 FOR EVERY REFERRAL,
WHETHER OR NOT THE SALE WAS CONSUMMATED. 

FN5  AT LEAST ONE DISCOUNT HOUSE ACTUALLY PURCHASED ITS CARS FROM
COOPERATIVE DEALERS, THEN RESOLD THEM TO ITS CUSTOMERS.  IN THIS
SITUATION, WHICH IN THE TRADE IS REFERRED TO AS "BOOTLEGGING," THE
CUSTOMER DOES NOT RECEIVE A NEW-CAR WARRANTY.  GENERAL MOTORS, WHILE
DISAPPROVING OF THE PRACTICE, DOES NOT ASSERT THAT IT VIOLATES THE
"LOCATION CLAUSE."  IN THOSE ARRANGEMENTS AGAINST WHICH GENERAL MOTORS
AND THE ASSOCIATIONS DID DIRECT THEIR EFFORTS, TITLE TO THE NEW CAR
PASSED DIRECTLY FROM DEALER TO RETAIL CUSTOMER, WHO THUS OBTAINED A NEW
CAR WARRANTY AND SERVICE AGREEMENT. 

THERE MUST ALSO BE DISTINGUISHED THE UBIQUITOUS PRACTICE OF USING
"BIRD DOGS" - INFORMAL SOURCES WHO STEER OCCASIONAL CUSTOMERS TOWARD A
PARTICULAR DEALER, IN RETURN FOR RELATIVELY SMALL FEES - OFTEN A BOTTLE
OF LIQUOR.  THIS PRACTICE IS NOT ONLY DEEMED BY GENERAL MOTORS NOT TO
VIOLATE THE "LOCATION CLAUSE," BUT HAS THE CORPORATION'S ENDORSEMENT AS
A DESIRABLE SALES DEVICE. 

FN6  AS THE DISTRICT COURT FOUND, 70% OF THE LOCAL CHEVROLET DEALERS
WERE LOCATED WITHIN FIVE MILES OF ONE OR MORE OF THE 23 DISCOUNT HOUSE
OR REFERRAL OUTLETS. 

FN7  THERE IS EVIDENCE IN THE RECORD THAT DISCOUNT SALES UNDERCUT THE
PRICES AT WHICH FRANCHISED DEALERS WERE ABLE TO, OR CHOSE TO, COMPETE. 
TWO PURCHASERS OF CHEVROLETS, ONE ON REFERRAL AND THE OTHER IN A
DISCOUNT HOUSE "SALE," TESTIFIED THAT THEY HAD "SHOPPED" OTHER DEALERS
BUT FOUND THE DISCOUNT AND REFERRAL PRICES LOWER.  DEALERS AND THEIR
SALESMEN COMPLAINED TO GENERAL MOTORS ABOUT SALES LOST THROUGH
INABILITY TO MEET THE DISCOUNTERS' PRICE.  MOREOVER, THE DISCOUNTERS
ADVERTISED AND ACTUALLY PROVIDED AUTO LOANS AT INTEREST RATES
SUBSTANTIALLY LOWER THAN THOSE OFFERED BY G.M.A.C., GENERAL MOTORS
FINANCING SUBSIDIARY. 

THERE IS ALSO EVIDENCE THAT IT WAS NOT JUST PRICE ITSELF WHICH
INDUCED CUSTOMERS TO PURCHASE CHEVROLETS THROUGH THE DISCOUNTERS.  ONE
CUSTOMER TESTIFIED THAT HE PREFERRED THE DISCOUNT HOUSE BECAUSE HE
THEREBY AVOIDED THE HAGGLING OVER PRICE WHICH SEEMS AN INEVITABLE FACET
OF PURCHASING A CAR IN THE ORTHODOX WAY.  OTHERS APPARENTLY ASSUMED,
WITHOUT BOTHERING TO CONFIRM BY COMPARISON SHOPPING, THAT "DISCOUNT"
STORES WOULD OFFER LOWER PRICES.  THIS ASSUMPTION WAS FED BY DISCOUNT
HOUSE ADVERTISING WHICH PROMISED "THE LOWEST PRICE ANYWHERE" AND
"SAVINGS OF HUNDREDS OF DOLLARS." 

FN8  DEALER BIGGS PUT THE SAME SENTIMENTS INTO A LETTER TO BOTH KEOWN
AND CHEVROLET'S ZONE MANAGER O'CONNOR, WRITTEN ON NOVEMBER 5, 1960. 
THE DAY BEFORE, IN O'CONNOR'S PRESENCE, KEOWN HAD CHALLENGED BIGGS TO
JUSTIFY HIS DEALINGS WITH THE DISCOUNTERS.  BIGGS WROTE: "WE WOULD BE
MOST RELUCTANT TO DISCARD AN ACCOUNT AS GOOD AS THIS ONE WITHOUT RATHER
CONCRETE ASSURANCE THAT IT WOULD NOT IMMEDIATELY BE PICKED UP BY
ANOTHER CHEVROLET DEALER."  TWO WEEKS LATER, O'CONNOR FORWARDED BIGGS'
LETTER TO GENERAL MOTORS OFFICIALS IN DETROIT. 

FN9  IN KEOWN'S WORDS, "WE WERE SEEKING THE ASSISTANCE OF THE HIGHER
ECHELON OFFICIALS OF CHEVROLET AND GENERAL MOTORS IN BRINGING ABOUT AN
END TO THE DISCOUNT HOUSE SALE OF CHEVROLETS." 

FN10  O'CONNOR'S REPORT, DATED NOVEMBER 22, RECOUNTED THAT "ZONE
MANAGEMENT" HAD TALKED WITH THE OFFENDING DEALERS "IN AN ATTEMPT TO
HAVE THEM DESIST," AND THAT "OUR DEALER ASSOCIATIONS HAVE FORMED A
COMMITTEE TO CALL ON THE SUPPLYING DEALERS AND HAVE ASKED THEM AND HAVE
ATTEMPTED TO PERSUADE THEM TO DISCONTINUE THIS PRACTICE."  SUPPORTED BY
A COPY OF DEALER BIGGS' LETTER, SEE N. 8, SUPRA, O'CONNOR PREDICTED
THAT "MANY DEALERS WILL CEASE THIS TYPE OF BUSINESS IF THEY HAD ANY
ASSURANCE THAT THE ACCOUNT WOULD NOT BE PICKED UP BY SOME OTHER DEALER,
IMMEDIATELY UPON RELINQUISHMENT." 

FN11  ROCHE WROTE TO THOSE DEALERS WHO HAD COMPLAINED DIRECTLY TO
JOHN GORDON, THEN PRESIDENT OF GENERAL MOTORS.  ON DECEMBER 29, 1960, A
VIRTUALLY IDENTICAL LETTER WENT OUT TO ALL GENERAL MOTORS DEALERS
THROUGHOUT THE NATION, UNDER THE SIGNATURE OF THE GENERAL SALES
MANAGERS FOR THE RESPECTIVE DIVISIONS. 

FN12  ONE DEALER TESTIFIED THAT HE ABRUPTLY TERMINATED ARRANGEMENTS
LONG MAINTAINED WITH TWO DISCOUNT HOUSES, DESPITE THE FACT THAT ONE OF
THESE CONNECTIONS OWED HIM $20,000 AND THE OTHER $28,000.  IN THE
PRECEDING FOUR WEEKS THE LATTER HAD REDUCED ITS INDEBTEDNESS BY $52,000
AND COULD REASONABLY HAVE BEEN EXPECTED TO ERASE IT COMPLETELY WITHIN A
FEW WEEKS.  THE DEALER ANTICIPATED THAT UPON CANCELLATION OF THE
ACCOUNTS THESE DEBTS WOULD BECOME UNCOLLECTIBLE.  HIS FEARS WERE
JUSTIFIED.  THE ACCOUNTS WERE TERMINATED.  THE DEBTS REMAINED UNPAID. 

FN13  ACCORDING TO FRANCIS BRUDER, A DEALER WHO HAD BEEN DOING
BUSINESS WITH THE DISCOUNTERS SINCE 1957, "CASH TOLD ME THAT HE FELT
CERTAIN THAT THE OTHER DEALERS WOULD DISCONTINUE DEALING WITH DISCOUNT
HOUSES AND REFERRAL SERVICES AS WELL.  I LEFT THIS MEETING WITH THE
IMPRESSION THAT EVERY DEALER WHO HAD BEEN DOING BUSINESS WITH A
DISCOUNT HOUSE OR REFERRAL SERVICE WOULD SOON QUIT." 

THIS WAS PRECISELY THE IMPRESSION GENERAL MOTORS HAD INTENDED TO
IMPLANT.  AS WAS EXPLAINED IN AN INTER-OFFICE MEMORANDUM TO THE GENERAL
SALES MANAGER OF GENERAL MOTORS' CHEVROLET DIVISION, "ALL DEALERS WERE
TALKED TO IN ORDER THAT EVERY DEALER WITH WHOM THE SUBJECT WAS
DISCUSSED WOULD KNOW THAT A SIMILAR DISCUSSION WAS BEING HELD WITH ALL
OTHER DEALERS SO THAT, IF CERTAIN DEALERS SHOULD ELECT TO DISCONTINUE
THEIR COOPERATION WITH A DISCOUNT HOUSE, WE MIGHT BE ABLE TO DISCOURAGE
SOME OTHER DEALER WHO MIGHT BE SOLICITED FROM STARTING THE PRACTICE." 

FN14  THE DISTRICT COURT CHARACTERIZED THIS DECEMBER 15 MEETING AS
THE FIRST BETWEEN REPRESENTATIVES OF THE THREE ASSOCIATIONS, PERTAINING
TO THE PROBLEM OF DISCOUNT HOUSE AND REFERRAL SALES.  HOWEVER, AS WE
HAVE PREVIOUSLY NOTED, N. 10, SUPRA, O'CONNOR REPORTED TO GENERAL
MOTORS THREE WEEKS EARLIER, ON NOVEMBER 22, THAT THE THREE ASSOCIATIONS
HAD FORMED A COMMITTEE WHICH ALREADY HAD CALLED UPON NONCONFORMING
DEALERS.  THE RECORD DOES NOT ENABLE US TO RESOLVE THIS FACTUAL
CONFLICT, NOR IS ITS RESOLUTION IMPORTANT.  ON EITHER VERSION, THE
APPELLEE ASSOCIATIONS ENTERED INTO AN EXPLICIT AGREEMENT TO ACT
TOGETHER TO ELIMINATE THE NEW MODE OF INTRABRAND COMPETITION. 

FN15  THE GOVERNMENT'S COMPLAINT CONTAINS NO REFERENCE TO THE
"LOCATION CLAUSE," AND THE GOVERNMENT CONCEDES THAT ITS CASE WAS TRIED
ON A CONSPIRACY THEORY, THE DEFENDANTS INJECTING THE CONTRACTUAL ISSUE
BY WAY OF DEFENSE.  TRIAL COUNSEL FOR THE GOVERNMENT DID ADVERT TO THE
CLAUSE IN THE DISTRICT COURT, BUT IT DOES NOT APPEAR THAT HE CHALLENGED
ITS VALIDITY, AS CONSTRUED, IN THE SAME SENSE THAT THE GOVERNMENT DOES
HERE.  SEE TRIAL TRANSCRIPT, PP.  9, 17-18.  IN LIGHT OF OUR
DISPOSITION OF THE CASE, WE HAVE NO OCCASION TO CONSIDER WHETHER THE
GOVERNMENT'S ARGUMENT DIRECTED TO THE CLAUSE, AS CONSTRUED, IS PROPERLY
BEFORE US. 

FN16  WE NOTE THAT, AS IN UNITED STATES V. PARKE, DAVIS & CO., 362
U.S. 29, 44-45, THE ULTIMATE CONCLUSION BY THE TRIAL JUDGE, THAT THE
DEFENDANTS' CONDUCT DID NOT CONSTITUTE A COMBINATION OR CONSPIRACY IN
VIOLATION OF THE SHERMAN ACT, IS NOT TO BE SHIELDED BY THE "CLEARLY
ERRONEOUS" TEST EMBODIED IN RULE 52(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  THAT RULE IN PART PROVIDES: "FINDINGS OF FACT SHALL NOT BE
SET ASIDE UNLESS CLEARLY ERRONEOUS, AND DUE REGARD SHALL BE GIVEN TO
THE OPPORTUNITY OF THE TRIAL COURT TO JUDGE OF THE CREDIBILITY OF THE
WITNESSES."  AS IN PARKE DAVIS, SUPRA, THE QUESTION HERE IS NOT ONE OF
"FACT," BUT CONSISTS RATHER OF THE LEGAL STANDARD REQUIRED TO BE
APPLIED TO THE UNDISPUTED FACTS OF THE CASE.  SEE UNITED STATES V.
SINGER MFG. CO., 374 U.S. 174, 194, N. 9; UNITED STATES V. MISSISSIPPI
VALLEY CO., 364 U.S. 520, 526, AND CASES THERE CITED. 

MOREOVER, THE TRIAL COURT'S CUSTOMARY OPPORTUNITY TO EVALUATE THE
DEMEANOR AND THUS THE CREDIBILITY OF THE WITNESSES, WHICH IS THE
RATIONALE BEHIND RULE 52(A) (SEE UNITED STATES V. OREGON STATE MED. 
SOC., 343 U.S. 326, 331-332), PLAYS ONLY A RESTRICTED ROLE HERE.  THIS
WAS ESSENTIALLY A "PAPER CASE."  IT DID NOT UNFOLD BY THE TESTIMONY OF
"LIVE" WITNESSES.  OF THE 38 WITNESSES WHO GAVE TESTIMONY, ONLY THREE
APPEARED IN PERSON.  THE TESTIMONY OF THE OTHER 35 WITNESSES WAS
SUBMITTED EITHER BY AFFIDAVIT, BY DEPOSITION, OR IN THE FORM OF AN
AGREED-UPON NARRATIVE OF TESTIMONY GIVEN IN THE EARLIER CRIMINAL
PROCEEDING BEFORE ANOTHER JUDGE.  A VAST NUMBER OF DOCUMENTS WERE ALSO
INTRODUCED, AND BEAR ON THE QUESTION FOR DECISION. 

IN ANY EVENT, WE RESORT TO THE RECORD NOT TO CONTRADICT THE TRIAL
COURT'S FINDINGS OF FACT, AS DISTINGUISHED FROM ITS CONCLUSORY
"FINDINGS," BUT TO SUPPLEMENT THE COURT'S FACTUAL FINDINGS AND TO
ASSIST US IN DETERMINING WHETHER THEY SUPPORT THE COURT'S ULTIMATE
LEGAL CONCLUSION THAT THERE WAS NO CONSPIRACY. 

FN17  THE DECEMBER LETTERS TO ALL DEALERS SAID ONLY THAT "IN EFFECT,
IN SOME INSTANCES" THE ARRANGEMENTS IN QUESTION MIGHT VIOLATE THE
UNAUTHORIZED LOCATION CLAUSE OF THE DEALER SELLING AGREEMENT.  NO
DEALER WAS TOLD, EITHER BY LETTER OR IN PERSON, THAT ITS CONDUCT
VIOLATED THE FRANCHISE AGREEMENT, AND NO DEALER WAS WARNED THAT
CONTINUANCE OF DISCOUNT HOUSE OR REFERRAL SALES WOULD RESULT IN
TERMINATION OF ITS FRANCHISE.  ZONE MANAGER O'CONNOR DID NOT REGARD HIS
INSTRUCTIONS FROM DETROIT AS AUTHORIZING HIM TO GO THAT FAR, AND HE WAS
OF THE VIEW THAT "THE GENERAL LETTER TO ALL DEALERS DIDN'T SUGGEST ANY
SUCH THING." 

FN18  WE REFER TO THIS WITHOUT CONSIDERING WHETHER GENERAL MOTORS
COULD LAWFULLY HAVE TAKEN SUCH ACTION. 

FN19 JAMES ROCHE TESTIFIED, "IT IS NOT GENERAL MOTORS' PRACTICE TO
THREATEN DEALERS WITH TERMINATION OF THEIR FRANCHISE."  GOOD DEALERS
AND DEALER LOCATIONS, HE SAID, ARE HARD TO COME BY. IN MANY
DEALERSHIPS, GENERAL MOTORS ITSELF HAS INVESTED SUBSTANTIAL FUNDS. 
THEREFORE, SAID ROCHE, "WE WOULD NOT WANT OUR PEOPLE TO GO IN AND WAVE
THE FRANCHISE AGREEMENT, SELLING AGREEMENT, AND THREATEN THE DEALER
WITH TERMINATION IN THE EVENT HE DIDN'T AGREE, AFTER FOLLOWING - AFTER
READING A LETTER HE WAS VIOLATING OUR AGREEMENT AND SHOULD CHANGE HIS
PRACTICE.  INSTEAD WE EXPECTED THAT THIS WOULD BE HANDLED ON A SOUND,
CALM, SENSIBLE BUSINESS-LIKE APPROACH." 

THERE ARE ALSO STATUTORY INHIBITIONS ON THE RIGHT OF AN AUTOMOBILE
MANUFACTURER TO TERMINATE DEALER FRANCHISES.  SEE ACT OF AUG. 8, 1956,
C. 1038, SEC 2, 70 STAT. 1125, 15 U.S.C. SEC 1222 (1964 ED.); KESSLER &
STERN, COMPETITION, CONTRACT, AND VERTICAL INTEGRATION, 69 YALE L.J. 1,
103-114 (1959). 

FN20  COMPARE KLEIN V. AMERICAN LUGGAGE WORKS, INC., 323 F.2D 787
(C.A. 3D CIR. 1963), AND GRAHAM V. TRIANGLE PUBLICATIONS, INC., 233 F.
SUPP. 825 (D.C.E.D. PA. 1964), AFF'D PER CURIAM, 344 F.2D 775 (C.A. 3D
CIR. 1965), DISCUSSED IN FULDA, INDIVIDUAL REFUSALS TO DEAL:  WHEN DOES
SINGLE-FIRM CONDUCT BECOME VERTICLE RESTRAINT?  30 LAW & CONTEMP. 
PROB.  590, 592-597 (1965). 

FN21  THE COMPLAINT IN KLOR'S CHARGED A VIOLATION OF SEC 2 OF THE
SHERMAN ACT, AS WELL AS OF SEC 1.  IN THE PRESENT CASE, THE GOVERNMENT
DID NOT CHARGE THE APPELLEES UNDER SEC 2, WHICH PROVIDES THAT "EVERY
PERSON WHO SHALL MONOPOLIZE, OR ATTEMPT TO MONOPOLIZE, OR COMBINE OR
CONSPIRE WITH ANY OTHER PERSON OR PERSONS, TO MONOPOLIZE ANY PART OF
THE TRADE OR COMMERCE AMONG THE SEVERAL STATES, OR WITH FOREIGN
NATIONS, SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ..  .""  15 U.S.C.
SEC 2 (1964 ED.). 

FN22  EVIDENCE ON THIS SUBJECT WAS ADMITTED SOLELY FOR THE PURPOSE OF
SHOWING THE DEALERS' STATE OF MIND, RATHER THAN TO PROVE THE EXISTENCE
OF ACTUAL PRICE-CUTTING BY THE DISCOUNTERS.  BUT THE COLLABORATORS'
STATE OF MIND IS OF SIGNIFICANCE HERE. 

FN23  IN AN INTER-OFFICE MEMORANDUM, CIRCULATED AMONG GENERAL MOTORS
OFFICIALS IMMEDIATELY PRIOR TO FORMULATION OF CORPORATE POLICY VIS-A
VIS THE DISCOUNTERS, IT WAS STATED THAT "IT WOULD APPEAR THAT ONE OF
THE REAL HAZARDS OF CONDONING THIS TYPE OF OPERATION IS THAT DISCOUNTED
PRICES ARE FREELY QUOTED TO A LARGE PORTION OF THE PUBLIC."  MOREOVER,
WE NOTE THAT SOME DISCOUNTERS ADVERTISED THAT THEY WOULD FINANCE NEW
CAR PURCHASES AT AN INTEREST RATE OF 5 1/2%, A RATE SUBSTANTIALLY LOWER
THAN THAT AVAILABLE AT FRANCHISED CHEVROLET DEALERS THROUGH G.M.A.C., A
SUBSIDIARY OF GENERAL MOTORS CORPORATION.  SEE N. 7, SUPRA. FINALLY, IT
IS CONCEDED THAT GENERAL MOTORS IS INTENSELY CONCERNED THAT EACH OF ITS
DEALERS HAS AN ADEQUATE "PROFIT OPPORTUNITY" (SEE FINDING 17), A
CONCERN WHICH NECESSARILY INVOLVES CONSIDERATION OF THE PRICE REALIZED
BY DEALERS. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

ALTHOUGH I CONSIDER THAT UNITED STATES V. PARKE, DAVIS & CO., 362
U.S. 29, DECIDED IN 1960, REPRESENTS BASICALLY UNSOUND ANTITRUST
DOCTRINE, SEE MY DISSENTING OPINION, 362 U.S., AT 49, I SEE NO ESCAPE
FROM THE CONCLUSION THAT IT CONTROLS THIS CASE.  PARKE DAVIS HELD THAT
A MANUFACTURER CANNOT MAINTAIN RESALE PRICES BY REFUSING TO SELL TO
THOSE WHO DO NOT FOLLOW HIS SUGGESTED PRICES IF THE REFUSAL IS ATTENDED
BY CONCERTED ACTION WITH HIS CUSTOMERS, EVEN THOUGH HE MAY UNILATERALLY
SO CONDUCT HIMSELF.  SEE UNITED STATES V. COLGATE & CO., 250 U.S. 300. 
ALTHOUGH PARKE DAVIS RELATED TO ALLEGED PRICE-FIXING, I HAVE BEEN
UNABLE TO DISCERN ANY TENABLE REASON FOR DIFFERENTIATING IT FROM A CASE
INVOLVING, AS HERE, ALLEGED BOYCOTTING.  THE CONCLUSION THAT PARKE
DAVIS GOVERNS THE PRESENT CASE IS THEREFORE UNAVOIDABLE, GIVEN THE
UNDISPUTED EVIDENCE THAT GENERAL MOTORS ACTED IN CONCERT WITH ITS
DEALERS IN ENFORCING THE LOCATION CLAUSE.  IN MY OPINION, HOWEVER,
GENERAL MOTORS IS NOT PRECLUDED FROM ENFORCING THE LOCATION CLAUSE BY
UNILATERAL ACTION, AND I FIND NOTHING IN THE COURT'S OPINION TO THE
CONTRARY.    ON THIS BASIS I CONCUR IN THE JUDGMENT OF THE COURT.