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Ford Motor Co. v. United States, 335 U.S. 303 (1948)

American Government Special Collections Reference Desk

American Government Topics:  Ford Motor Company

Ford Motor Co. v. United States, 335 U.S. 303 (1948)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   FORD MOTOR CO. V. UNITED STATES

Case #: 335US303


ARGUED OCTOBER 11, 1948.  - DECIDED NOVEMBER 15, 1948.  - 68 F.SUPP. 
825, REVERSED. 


1.  IN A CIVIL ANTITRUST SUIT BY THE UNITED STATES AGAINST FORD AND A
FINANCE COMPANY, A 1938 CONSENT DECREE PROHIBITED AFFILIATION BY FORD
WITH ANY FINANCE COMPANY, BUT PROVIDED THAT THE PROHIBITION WOULD CEASE
IF, BY JANUARY 1, 1941, GENERAL MOTORS WAS NOT SIMILARLY PROHIBITED BY
COURT ORDER.  IN 1940, THE GOVERNMENT BROUGHT AN EQUITY SUIT AGAINST
GENERAL MOTORS SEEKING DIVESTITURE OF ITS AFFILIATED FINANCE COMPANY. 
AFTER SUCCESSIVE EXTENSIONS OF THE PROHIBITION AGAINST FORD, THE
GOVERNMENT MOVED, ON DECEMBER 31, 1945, TO EXTEND THE PROHIBITION TO
JANUARY 1, 1947.  THE SUIT AGAINST GENERAL MOTORS HAS NOT YET BEEN SET
FOR TRIAL.  FORD AND THE FINANCE COMPANY MOVED THAT THE PROHIBITION BE
LIFTED.  THE DISTRICT COURT GRANTED THE GOVERNMENT'S MOTION AND DENIED
DEFENDANTS' MOTION.  HELD: 

(A)  ALTHOUGH THE EXTENSION TO JANUARY 1, 1947, HAS EXPIRED, THE
QUESTION WHETHER THE DISTRICT COURT PROPERLY GRANTED IT IS NOT MOOT,
SINCE THE GOVERNMENT'S MOTION FOR A FURTHER EXTENSION HAS BEEN HELD IN
ABEYANCE PENDING THE OUTCOME OF THESE APPEALS.  P. 313. 

(B)  FORD WAS ENTITLED TO THE LIFTING OF THE PROHIBITION AGAINST
AFFILIATION WITH ANY FINANCE COMPANY, AND THE DISTRICT COURT'S
EXTENSION OF THE PROHIBITION TO JANUARY 1, 1947, WAS IMPROPER. 
CHRYSLER CORP. V. UNITED STATES, 316 U.S. 556, DISTINGUISHED.  PP. 320
322. 

2.  THE CONSENT DECREE ALSO RESTRAINED VARIOUS PRACTICES WHEREBY
DEALERS WERE INFLUENCED TO PATRONIZE THE FINANCE COMPANY, BUT PROVIDED
THAT FORD COULD MOVE FOR MODIFICATION OR SUSPENSION IF SIMILAR
RESTRICTIONS WERE NOT IMPOSED ON GENERAL MOTORS BY COURT ACTION.  IT
ALSO PROVIDED THAT A GENERAL VERDICT OF GUILTY IN A PENDING ANTITRUST
CRIMINAL PROCEEDING AGAINST GENERAL MOTORS WOULD BE DEEMED A
DETERMINATION OF THE ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE
"WHICH IS HELD BY THE TRIAL COURT, IN ITS INSTRUCTIONS TO THE JURY, TO
CONSTITUTE A PROPER BASIS FOR THE RETURN OF A GENERAL VERDICT OF
GUILTY."  IN 1939, THE JURY RETURNED A GENERAL VERDICT OF GUILTY
AGAINST GENERAL MOTORS UPON INSTRUCTIONS THAT COERCION OF DEALERS TO
UTILIZE AN AFFILIATED FINANCE COMPANY WAS ILLEGAL BUT THAT MERE
PERSUASION WAS NOT.  FORD AND THE FINANCE COMPANY MOVED TO SUSPEND OR
MODIFY PROVISIONS OF THE DECREE FORBIDDING FORD TO RECOMMEND, ENDORSE,
OR ADVERTISE THE FINANCE COMPANY, TO HAVE AGENTS OF FORD AND OF THE
FINANCE COMPANY PRESENT TOGETHER WITH A DEALER FOR THE PURPOSE OF
INFLUENCING THE DEALER TO PATRONIZE THE FINANCE COMPANY, AND TO
DISCRIMINATE AGAINST OTHER FINANCE COMPANIES.  HELD:  UPON THE BASIS OF
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY IN THE CRIMINAL PROCEEDING
AGAINST GENERAL MOTORS, THE MOTION SHOULD HAVE BEEN GRANTED.  PP. 313
320. 

3.  IN THE PRESENT POSTURE OF THE CASE, THE GOVERNMENT'S CLAIM THAT
THE PRACTICES RESTRAINED BY THE PROVISIONS OF THE DECREE ARE ILLEGAL
UNDER THE SHERMAN LAW, WHICH HAS NEITHER BEEN ADMITTED NOR PROVEN, DOES
NOT JUSTIFY THE REFUSAL OF A COURT OF EQUITY TO SUSPEND OR MODIFY
THEM.  P. 320. 

(A)  APPELLANTS ARE ENTITLED TO INSIST THAT, SO LONG AS INTERDICTION
OF THESE PRACTICES HAS NOT BEEN DECREED AGAINST GENERAL MOTORS, THE
GOVERNMENT BE PUT TO ITS PROOF.  P. 320. 

(B)  LIFTING OF THE RESTRAINTS IMPOSED BY THE CONSENT DECREE WOULD
NOT AFFECT THE LIABILITY OF FORD FOR ANY VIOLATIONS OF THE SHERMAN LAW
THAT THE GOVERNMENT MAY ESTABLISH IN COURT.  P. 320. 

(C)  TO THE EXTENT THAT SUCH RESTRAINTS MAY IN FUTURE BE IMPOSED ON
GENERAL MOTORS, THEY WOULD, BY THE TERMS OF THE CONSENT DECREE, ALSO
BIND FORD.  P. 320. 

FORD MOTOR CO. V. UNITED STATES. 

NO. 1.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF INDIANA* . 

*TOGETHER WITH NO. 2, COMMERCIAL INVESTMENT TRUST CORP. ET AL. V.
UNITED STATES, ALSO ON APPEAL FROM THE SAME COURT. 

IN AN ANTITRUST SUIT BY THE UNITED STATES AGAINST THE FORD MOTOR
COMPANY AND A FINANCE COMPANY, THE GOVERNMENT MOVED IN THE DISTRICT
COURT FOR A FURTHER EXTENSION OF A PROVISION OF A CONSENT DECREE
PROHIBITING FORD FROM AFFILIATING WITH ANY FINANCE COMPANY.  FORD AND
THE FINANCE COMPANY MOVED FOR A LIFTING OF THE PROHIBITION AND FOR
SUSPENSION OR MODIFICATION OF OTHER PROVISIONS OF THE DECREE.  THE
DISTRICT COURT GRANTED THE GOVERNMENT'S MOTION AND DENIED THE OTHERS. 
68 F.SUPP.  825.  UPON APPEALS TO THIS COURT, REVERSED, P. 322. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE CASES WERE BROUGHT HERE ON APPEAL, PRIOR TO THE REVISION OF
TITLE 28, U.S.C. UNDER WHAT WAS SEC. 345 AND SINCE SEPTEMBER 1 HAS
BECOME SEC. 2101 OF THAT TITLE, TO REVIEW FINAL DECREES OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA IN A SUIT IN
EQUITY BROUGHT BY THE UNITED STATES UNDER SEC. 4 OF THE SHERMAN LAW, 26
STAT. 209, AS AMENDED, 36 STAT. 1167, 15 U.S.C. SEC. 4.  THE CASES
PRESENT ANOTHER PHASE OF A MULTIFARIOUS LITIGATION WHICH HAS BEEN
OCCUPYING THE ATTENTION OF THE FEDERAL JUDICIAL SYSTEM FOR MORE THAN A
DECADE.  UNITED STATES V. GENERAL MOTORS CORP., 26 F.SUPP.  353(N.D.
IND.); UNITED STATES V. GENERAL MOTORS CORP., 121 F.2D 376(C.A.7TH
CIR.), CERT. DENIED, 314 U.S. 618, REHEARING DENIED, 314 U.S. 710;
UNITED STATES V. GENERAL MOTORS CORP., 2 F.R.D. 346(N.D. ILL.); UNITED
STATES V. GENERAL MOTORS CORP., 2 F.R.D. 528(N.D. ILL.); CHRYSLER CORP.
V. UNITED STATES, 314 U.S. 583, REHEARING DENIED, 314 U.S. 716;
CHRYSLER CORP. V. UNITED STATES, 316 U.S. 556.  AN ANALYTICAL SUMMARY
OF THIS LITIGATION WILL MAKE CLEAR THE IMMEDIATE ISSUES BEFORE US AND,
INDEED, LARGELY DISPOSE OF THEM. 

ON MAY 27, 1938, INDICTMENTS WERE RETURNED IN THE DISTRICT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF INDIANA, SOUTH BEND
DIVISION, AGAINST THE THREE LEADING AUTOMOBILE MANUFACTURERS AND THE
COMPANIES WHICH FINANCED THE SALE OF THEIR AUTOMOBILES.  ONE INDICTMENT
WAS AGAINST THE PRESENT APPELLANTS, FORD MOTOR COMPANY, AND COMMERCIAL
INVESTMENT TRUST CORPORATION, COMMERCIAL INVESTMENT TRUST, INC., AND
UNIVERSAL CREDIT CORPORATION, THESE THREE REFERRED TO COLLECTIVELY AS
CIT; ANOTHER AGAINST CHRYSLER CORPORATION AND COMMERCIAL CREDIT
COMPANY; A THIRD AGAINST GENERAL MOTORS CORPORATION AND ITS SUBSIDIARY,
GENERAL MOTORS ACCEPTANCE CORPORATION, TO BE ABBREVIATED AS GMAC.  THE
INDICTMENTS CHARGED THE AUTOMOBILE MANUFACTURERS AND THE JOINTLY NAMED
FINANCE COMPANIES WITH VIOLATIONS OF THE SHERMAN LAW BY INFLUENCING
DEALERS WHO SOLD THE AUTOMOBILES OF THE RESPECTIVE MANUFACTURERS TO
GIVE THE FINANCE COMPANIES THE BUSINESS OF FINANCING THE DEALERS'
WHOLESALE PURCHASES AND RETAIL SALES OF AUTOMOBILES. 

FOLLOWING THESE CHARGES, NEGOTIATIONS WERE SET AFOOT TO SECURE THE
ELIMINATION THROUGH CONSENT DECREES OF THE PRACTICES DESCRIBED IN THE
INDICTMENTS.  AS TO THE FORD AND CHRYSLER GROUPS, THE GOVERNMENT, ON
NOVEMBER 7, 1938, FILED SUITS IN EQUITY AND ARRANGED FOR THE DISMISSAL
OF THEIR INDICTMENTS.  (FOR PRESENT PURPOSES WE ARE NOT FURTHER
CONCERNED WITH CHRYSLER.)  ALTHOUGH FORD AND CIT FORMALLY RESISTED THE
COMPLAINT, DENYING ITS ALLEGATIONS AND PLEADING AFFIRMATIVE DEFENSES,
NEGOTIATIONS FOR A CONSENT DECREE PROCEEDED.  EFFORTS TOWARD AN
AMICABLE SETTLEMENT WITH GENERAL MOTORS AND GMAC FAILED.  THE
GOVERNMENT THEREFORE PRESSED THE CRIMINAL CHARGES AGAINST THEM.  IN
VIEW OF THE COMPETITIVE CONDITIONS IN THE AUTOMOBILE INDUSTRY IT
OBVIOUSLY BECAME OF CRUCIAL IMPORTANCE TO FORD NOT TO CONSENT TO ANY
RESTRAINTS BEYOND THOSE WHICH WOULD FALL UPON GENERAL MOTORS THROUGH
THE CONTINGENCIES OF LITIGATION AGAINST IT.  BUT IT WOULD NOT HAVE BEEN
ENOUGH MERELY TO PROVIDE THAT RESTRAINTS WHICH FORD ACCEPTED SHOULD
EVENTUALLY BE LIFTED TO THE EXTENT NOT IMPOSED UPON GENERAL MOTORS AT
SOME REMOTE TIME DEFINED MERELY BY THE VICISSITUDES OF LITIGATION. 
PROTECTION AGAINST COMPETITIVE DISADVANTAGE, THE APPROPRIATENESS OF
WHICH THE GOVERNMENT RECOGNIZED, REQUIRED A TIME CERTAIN AT THE END OF
WHICH THE RESTRAINTS AGAINST FORD WOULD EXPIRE IF GENERAL MOTORS WERE
STILL FREE OF THEM. 

ACCORDINGLY, THE CONSENT DECREE, ENTERED ON NOVEMBER 15, 1938,
ASSURED FORD ESSENTIAL EQUALITY OF POSITION WITH THE UNCONSENTING
GENERAL MOTORS BY TWO EXPLICIT CONDITIONS.  THEIR TERMS ARE FULLY SET
OUT IN THE MARGIN; FN1  THEIR ESSENCE CAN BE BRIEFLY SUMMARIZED. 
PARAGRAPH 12 FORBIDS FORD FROM ACQUIRING CONTROL OF ANY FINANCE
COMPANY.  AFTER ENUMERATING VARIOUS FORBIDDEN FORMS OF FINANCIAL
INTEREST, THE PARAGRAPH PROVIDES THAT, IF THE GOVERNMENT SHOULD NOT
HAVE OBTAINED A FINAL DECREE AGAINST GENERAL MOTORS BY JANUARY 1, 1941,
REQUIRING IT TO DIVEST ITSELF OF ALL INTEREST IN GMAC, ITS AFFILIATED
FINANCE COMPANY, THE PROHIBITION AGAINST FORD WOULD CEASE.  THE SECOND
EXPRESS CONDITION, DESIGNED TO RELIEVE FROM RESTRAINTS IMPOSED BY
EARLIER PARAGRAPHS IN THE DECREE AGAINST VARIOUS MEANS OF INFLUENCING
DEALERS TO PATRONIZE CIT, IS FOUND IN PARAGRAPH 12A.  THAT PARAGRAPH
ADDRESSED ITSELF TO THE POSSIBLE EVENTUALITIES OF THE CRIMINAL
PROCEEDING AGAINST GENERAL MOTORS AND GMAC:  (1) ITS TERMINATION WITH A
RESULT OTHER THAN A JUDGMENT OF CONVICTION; (2) A GENERAL VERDICT OF
GUILTY; (3) A SPECIAL VERDICT OF GUILTY; (4) A PLEA OF GUILTY OR NOLO
CONTENDERE.  UPON THE FIRST CONTINGENCY ALL RESTRICTIVE TERMS OF THE
DECREE AGAINST FORD WOULD BE SUSPENDED UNTIL SIMILAR RESTRAINTS WERE
IMPOSED UPON GENERAL MOTORS AND GMAC.  THE SECOND WAS TO BE "DEEMED TO
BE A DETERMINATION OF THE ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE
OF GENERAL MOTORS CORPORATION WHICH IS HELD BY THE TRIAL COURT, IN ITS
INSTRUCTIONS TO THE JURY, TO CONSTITUTE A PROPER BASIS FOR THE RETURN
OF A GENERAL VERDICT OF GUILTY."  THE THIRD AND FOURTH WERE,
RESPECTIVELY, TO BE DEEMED DETERMINATIONS OF THE ILLEGALITY OF "ANY
AGREEMENT, ACT OR PRACTICE" WHICH WAS THEIR SUBJECT MATTER. 

THESE PROVISIONS FURNISH A LITMUS-PAPER TEST FOR DETERMINING WHAT
RESTRAINTS SURVIVE THE RESULT OF THE PROCEEDING AGAINST GENERAL MOTORS
AND GMAC.  WHAT WAS NOT ILLEGAL FOR GENERAL MOTORS WAS NOT LONGER TO BE
PROHIBITED TO FORD.  THE SWORD OF JUSTICE WAS TO STRIKE BOTH ALIKE. 
PARAGRAPH 12A FURTHER DEFINES HOW AND WHEN THE RESTRAINTS WERE TO BE
RELAXED.  SUB-PARAGRAPH (3) PROVIDES THAT AFTER THE ENTRY OF A DECREE
AGAINST GENERAL MOTORS, OR AFTER THE ENTRY OF A JUDGMENT OF CONVICTION
IN THE PENDING CRIMINAL PROCEEDINGS "OR AFTER JANUARY 1, 1940(WHICHEVER
DATE IS EARLIEST), THE COURT UPON APPLICATION OF ANY RESPONDENT FROM
TIME TO TIME WILL ENTER ORDERS" SUSPENDING ANY RESTRAINT AGAINST IT
(WITH EXCEPTIONS NOT NOW RELEVANT) "TO THE EXTENT THAT IT IS NOT THEN
IMPOSED, AND UNTIL IT SHALL BE IMPOSED, IN SUBSTANTIALLY IDENTICAL
TERMS" UPON GENERAL MOTORS OR GMAC. 

ON NOVEMBER 17, 1939, THE JURY RETURNED A GENERAL VERDICT OF GUILTY
AGAINST GENERAL MOTORS, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
AFFIRMED THE JUDGMENT UPON THAT VERDICT, 121 F.2D 376, AND THIS COURT
DENIED FURTHER REVIEW.  314 U.S. 618; ID. AT 710. 

ON OCTOBER 4, 1940, THE GOVERNMENT FINALLY BROUGHT A SUIT IN EQUITY
AGAINST GENERAL MOTORS SEEKING DIVESTITURE OF ITS CONTROL OF GMAC.  BUT
IT WAS THEN TOO LATE FOR A DECREE TO BE ENTERED BEFORE THE LAPSE OF
FORD'S AGREEMENT NOT TO BECOME AFFILIATED WITH A FINANCE COMPANY.  ON
DECEMBER 21, 1940, THEREFORE, THE GOVERNMENT MADE A MOTION ASKING TO
HAVE PARAGRAPH 12 MODIFIED BY MOVING FORWARD THE DATE WHEN THE
PROHIBITION AGAINST AFFILIATION WOULD EXPIRE IF A DECREE AGAINST
GENERAL MOTORS HAD NOT THEN BEEN ENTERED.  EACH YEAR AFTER THAT, AS THE
NEW DEADLINE CAME NEAR, THE GOVERNMENT MADE A NEW MOTION TO HAVE IT
EXTENDED, AND YEAR AFTER YEAR FORD CONSENTED TO THE EXTENSION.  ON
DECEMBER 31, 1945, THE GOVERNMENT AGAIN MOVED TO HAVE THE PROHIBITION
AGAINST AFFILIATION EXTENDED, THIS TIME TO JANUARY 1, 1947.  FORD NOW
RESISTED THE MOTION, AND ON MAY 4, 1946, BOTH FORD AND CIT FILED
MOTIONS OF THEIR OWN.  THEY ASKED THE DISTRICT COURT TO SUSPEND SUB
PARAGRAPHS (I) AND (K) OF PARAGRAPH 6 AND SUB-PARAGRAPH (D) OF
PARAGRAPH 7 AND TO MODIFY SUB-PARAGRAPH (E) OF PARAGRAPH 6 ON THE
GROUND THAT THE PRACTICES ENJOINED BY THESE PROVISIONS OF THE DECREE
WERE NOT "HELD BY THE TRIAL COURT, IN ITS INSTRUCTIONS TO THE JURY, TO
CONSTITUTE A PROPER BASIS FOR THE RETURN OF A GENERAL VERDICT OF
GUILTY."  FORD ALSO MOVED THAT "AN ORDER BE ENTERED PURSUANT TO
PARAGRAPH 12  ..  THHAT NOTHING THEREIN SHALL PRECLUDE THE MANUFACTURER
FROM ACQUIRING AND RETAINING OWNERSHIP OF AND/OR CONTROL OVER OR
INTEREST IN ANY FINANCE COMPANY  .. "   THE DISTRICT COURT DENIED THE
MOTIONS BY FORD AND CIT AND GRANTED THE GOVERNMENT'S MOTION FOR
EXTENSION OF THE PROHIBITION AGAINST AFFILIATION TO JANUARY 1, 1947. 
THE PRESENT APPEALS FOLLOWED.  ALTHOUGH THE PARTICULAR EXTENSION OF
PARAGRAPH 12 APPEALED FROM HAS EXPIRED, THE EQUITY SUIT AGAINST GENERAL
MOTORS HAS NOT YET BEEN SET DOWN FOR TRIAL AND THE GOVERNMENT'S MOTION
FOR A FURTHER EXTENSION HAS BEEN HELD IN ABEYANCE PENDING THE OUTCOME
OF THESE APPEALS.  IT IS NOT A MOOT QUESTION THEREFORE WHETHER THE
DISTRICT COURT PROPERLY GRANTED THE EXTENSION TO JANUARY 1, 1947.  SEE
SOUTHERN PACIFIC CO. V. INTERSTATE COMMERCE COMMISSION, 219 U.S. 433,
452; SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE COMMISSION,
219 U.S. 498, 514-16. 

THE RESTRAINTS IMPOSED AGAINST FORD BY SUB-PARAGRAPHS 6(E), 6(I),
6(K) AND 7(D) MUST SURVIVE THE OUTCOME OF THE CONVICTION AGAINST
GENERAL MOTORS IF THE LANGUAGE OF THE TRIAL JUDGE'S CHARGE TO THE JURY
IN THE CRIMINAL PROSECUTION OF GENERAL MOTORS CAN FAIRLY BE EQUATED
WITH THE LANGUAGE OF THOSE SUB-PARAGRAPHS.  IF, ON THE OTHER HAND, THE
JUDGE'S CHARGE FALLS SHORT OF HOLDING ILLEGAL WHAT THOSE SUB-PARAGRAPHS
PROSCRIBED, APPELLANTS ARE ENTITLED TO A SUSPENSION OF SUB-PARAGRAPHS
6(I), 6(K) AND 6(D) AND A MODIFICATION OF SUB-PARAGRAPH 6(E). 

FIRST, THEN, TO SUMMARIZE THE CONTENTS OF THESE PROVISIONS OF THE
DECREE.  FN2  SUB-PARAGRAPH 6(I) PRECLUDES FORD FROM ARRANGING WITH CIT
OR ANY OTHER FINANCE COMPANY "THAT AN AGENT OF THE MANUFACTURER AND AN
AGENT OF THE FINANCE COMPANY SHALL TOGETHER BE PRESENT WITH ANY DEALER
OR PROSPECTIVE DEALER FOR THE PURPOSE OF INFLUENCING THE DEALER TO
PATRONIZE" THE FINANCE COMPANY.  SUB-PARAGRAPH 6(K) PROVIDES THAT "THE
MANUFACTURER SHALL NOT RECOMMEND, ENDORSE OR ADVERTISE THE RESPONDENT
FINANCE COMPANY OR ANY OTHER FINANCE COMPANY OR COMPANIES TO ANY DEALER
OR TO THE PUBLIC  ..  "   SUB-PARAGRAPH 7(D), THE COUNTERPART OF 6(I),
IS DIRECTED AGAINST CIT. SUB-PARAGRAPH 6(E) RESTRAINS FORD FROM
ESTABLISHING "ANY PRACTICE, PROCEDURE OR PLAN FOR THE RETAIL OR
WHOLESALE FINANCING OF AUTOMOBILES FOR THE PURPOSE OF ENABLING
RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY OR COMPANIES TO
ENJOY A COMPETITIVE ADVANTAGE IN OBTAINING THE PATRONAGE OF DEALERS"
NOT EQUALLY AVAILABLE TO ANY OTHER FINANCE COMPANY.  MODIFICATION OF
THIS SUB-PARAGRAPH IS ASKED ONLY TO THE EXTENT NECESSARY TO PERMIT THEM
FREEDOM TO ACT IN A MANNER OTHERWISE PERMISSIBLE, IF SUSPENSION OF SUB
PARAGRAPHS 6(I), 6(K) AND 7(D) IS GRANTED. 

THIS BRINGS US TO THE TRIAL JUDGE'S INSTRUCTIONS, WHICH, INSOFAR AS
RELEVANT, ARE FULLY SET FORTH BELOW.  FN3  THEIR PLAIN EFFECT IS TO
DRAW A LINE BETWEEN SUCH PRACTICES AS CANCELLATION OF A DEALER'S
CONTRACT, OR REFUSAL TO RENEW IT, OR DISCRIMINATION IN THE SHIPMENT OF
AUTOMOBILES, AS A MEANS OF INFLUENCING DEALERS TO USE GMAC, ALL OF
WHICH FALL WITHIN THE COMMON UNDERSTANDING OF "COERCION," AND OTHER
PRACTICES FOR WHICH "PERSUASION," "EXPOSITION" OR "ARGUMENT" ARE FAIR
CHARACTERIZATIONS.  AS A MERE MATTER OF INTERPRETING LANGUAGE, THE
GOVERNMENT HARDLY CHALLENGES THE FITNESS OF THE TERMS "PERSUASION,"
"EXPOSITION" OR "ARGUMENT," WHICH THE JURY WAS CHARGED WERE OPEN TO
GENERAL MOTORS, TO COVER ACTS SUCH AS ARRANGING FOR THE PRESENCE OF
AGENTS OF BOTH FORD AND CIT WITH A VIEW TO PUTTING THE CLAIMS OF CIT TO
A DEALER OR RECOMMENDING, ENDORSING, AND ADVERTISING CIT TO A DEALER. 
BUT ALL THESE ACTS WERE SPECIFICALLY FORBIDDEN FORD BY THE CONSENT
DECREE.  THE GOVERNMENT'S INSISTENCE IS THAT SINCE THE INDICTMENT
CHARGED THAT ADVERTISING, ENDORSEMENT AND RECOMMENDATION VIOLATED THE
SHERMAN LAW AND SINCE EVIDENCE WAS INTRODUCED TO SUPPORT THE CHARGE,
THE JURY MIGHT HAVE FOUND GENERAL MOTORS AND GMAC GUILTY OF "COERCION"
AT LEAST PARTLY ON THE BASIS OF THAT EVIDENCE.  BUT SUB-PARAGRAPH
12(A)(2) WAS NOT DESIGNED TO AUTHORIZE SPECULATIVE RECONSTRUCTION OF
THE JURY'S PROCESS IN REACHING ITS VERDICT.  IT PROVIDED A DEFINITE
STANDARD FOR ASCERTAINING WHAT RULES OF LAW WERE AT A FUTURE DATE TO BE
MADE BINDING ON A COMPETITOR OF FORD.  THE RULES WHICH THE TRIAL JUDGE
FORMULATED AGAINST GENERAL MOTORS WERE THEREAFTER TO BE THE RULES OF
LAW AGAINST FORD.  THE TRIAL JUDGE USED THE WORD "COERCION" TO
SUMMARIZE PRACTICES WHICH, IF THE JURY FOUND THEM TO EXIST, WOULD CALL
FOR A VERDICT AGAINST GENERAL MOTORS.  HE USED THE WORDS "PERSUASION,"
"EXPOSITION" AND "ARGUMENT" TO DESCRIBE CONDUCT WHICH, IN COMMON USAGE,
IS NOT "COERCION" AND THEREFORE WOULD NOT SUPPORT SUCH A VERDICT. 
NOTHING IN OTHER PORTIONS OF THE JUDGE'S CHARGE ERASES OR BLURS THIS
LINE OF DISTINCTION.  THE RESTRAINTS IMPOSED BY THE PARAGRAPHS
APPELLANTS SEEK TO HAVE SUSPENDED ARE PROPERLY DESCRIBED BY THE TERMS
"EXPOSITION," "PERSUASION" AND "ARGUMENT."  SO LONG AS THESE PARAGRAPHS
REMAIN IN EFFECT AND SO LONG AS THERE IS NO COMPARABLE DECREE ENJOINING
THEIR SUBSTANCE AGAINST GENERAL MOTORS AND GMAC, FORD AND CIT CANNOT DO
WITHOUT RISK OF VIOLATING THE CONSENT DECREE THAT WHICH GENERAL MOTORS
AND GMAC ARE FREE TO DO.  ONLY A LAWYER WHO IS OBTUSE OR RECKLESS WOULD
ADVISE FORD AND CIT THAT THEY COULD SUBJECT A DEALER TO "PERSUASION,"
"EXPOSITION" OR "ARGUMENT" WITHOUT THE HAZARD OF CONTEMPT OF THE
PARAGRAPHS UNDER DISCUSSION.  THUS THE CONDITIONS HAVE BEEN FULFILLED
WHICH ENTITLED FORD AND CIT TO SUSPENSION OF THE RESTRAINTS IMPOSED BY
THOSE TERMS OF THE DECREE. 

QUITE APART FROM FORD'S AND CIT'S CONSENT TO FOREGO THE OPPORTUNITIES
OUTLAWED BY SUB-PARAGRAPHS 6(E), (I), (K) AND 7(D), THE GOVERNMENT
URGES THAT A COURT OF EQUITY SHOULD REFUSE TO SUSPEND OR MODIFY THEM BY
CLAIMING THAT THE PRACTICES RESTRAINED BY THOSE PARAGRAPHS ARE IN ANY
EVENT ILLEGAL UNDER THE SHERMAN LAW.  BUT SINCE THIS HAS NEITHER BEEN
ADMITTED NOR PROVEN, AND SINCE ASCERTAINMENT OF ILLEGALITY UNDER THE
SHERMAN LAW NORMALLY DEPENDS ON THE CIRCUMSTANCES OF A PARTICULAR
SITUATION AND THE INFERENCES THEY YIELD, THE APPELLANTS HAVE A RIGHT TO
INSIST THAT, SO LONG AS INTERDICTION OF THESE PRACTICES HAS NOT BEEN
DECREED AGAINST GENERAL MOTORS, THE GOVERNMENT BE PUT TO ITS PROOF. 
THE LIFTING OF THE RESTRAINTS IMPOSED BY THE CONSENT DECREE DOES NOT,
OF COURSE, AFFECT THE LIABILITY OF FORD FOR ANY VIOLATIONS OF THE
SHERMAN LAW THAT THE GOVERNMENT MAY ESTABLISH IN COURT.  MOREOVER, TO
THE EXTENT THAT SUCH RESTRAINTS MAY AT SOME FUTURE DATE BE IMPOSED ON
GENERAL MOTORS, THEY WILL, BY SUB-PARAGRAPH 12A (3), EQUALLY FETTER
FORD. 

THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER THE DISTRICT
COURT PROPERLY EXTENDED THE PROHIBITION AGAINST AFFILIATION BETWEEN
FORD AND A FINANCE COMPANY.  THIS WAS THE SIXTH TIME THAT THE
GOVERNMENT HAD APPLIED FOR EXTENSION.  THE EQUITY SUIT BEGUN MORE THAN
SIX YEARS EARLIER HAD NOT YET BEEN BROUGHT TO TRIAL.  THE COURT WAS
FACED AT THE SAME TIME WITH A MOTION FOR SUSPENSION OF THE PROHIBITION
AGAINST AFFILIATION WHICH WAS MADE BY APPELLANTS UNDER THE EXPRESS
PROVISION OF PARAGRAPH 12 RESERVING THE RIGHT TO SUCH A MOTION.  THE
COURT DENIED THE APPELLANT'S MOTION AND GRANTED THE GOVERNMENT'S ON THE
GROUND, (1) THAT THE "TIME CLAUSE" OF PARAGRAPH 12 WAS SUBSIDIARY TO
THE "MAIN PURPOSE" OF PARAGRAPH 12 WHICH WAS "TO PROVIDE THAT THE TEST
OF THE PERMANENCY OF THE BAR AGAINST AFFILIATION WAS TO ABIDE THE
OUTCOME OF THE CIVIL ANTITRUST SUIT AGAINST GENERAL MOTORS
CORPORATION," AND (2) "THAT THE PURPOSE AND INTENT OF THE DECREE WILL
BE CARRIED OUT IF FORD MOTOR COMPANY IS GIVEN THE OPPORTUNITY AT ANY
FUTURE TIME TO PROPOSE A PLAN FOR THE ACQUISITION OF A FINANCE COMPANY,
AND TO MAKE A SHOWING THAT SUCH PLAN IS NECESSARY TO PREVENT FORD MOTOR
COMPANY FROM BEING PLACED AT A COMPETITIVE DISADVANTAGE  ..  "  

THE GOVERNMENT SEEKS TO SUPPORT THESE CONCLUSIONS BY INSISTING ON A
MECHANICAL APPLICATION OF THE DECISION IN CHRYSLER CORP. V. UNITED
STATES, 316 U.S. 556, INVOLVING A PARALLED PROHIBITION AGAINST
CHRYSLER.  THE CHRYSLER CASE WAS DECIDED ON JUNE 1, 1942.  IN THE
INTERVENING YEARS THE FACTORS OF THE PROBLEM HAVE DRASTICALLY CHANGED. 
MORE THAN NINE YEARS HAVE ELAPSED SINCE THE CRIMINAL PROSECUTION
AGAINST GENERAL MOTORS WAS CONCLUDED; WHAT WAS AT THE TIME OF THE
CHRYSLER DECISION A TWO-YEAR DELAY IN OBTAINING A CIVIL DECREE AGAINST
GENERAL MOTORS HAS NOW STRETCHED INTO A TEN-YEAR DELAY.  EVEN THEN, SIX
AND A HALF YEARS AGO, THIS COURT CHARACTERIZED THE DISTRICT COURT'S
FINDING THAT THE GOVERNMENT HAD PROCEEDED "DILIGENTLY AND
EXPEDITIOUSLY" AS "MARKEDLY GENEROUS."  316 U.S. AT 563.  AT THAT TIME
THE COURT ALSO FOUND SUPPORT FOR THE DISTRICT COURT IN THE FACT THAT
"THE COMPLETE CESSATION OF THE MANUFACTURE OF NEW AUTOMOBILES AND LIGHT
TRUCKS HAS DRASTICALLY MINIMIZED THE SIGNIFICANCE OF THE COMPETITIVE
FACTOR."  ID. AT 564.  BUT CIRCUMSTANCES THAT WERE FOUND EXTENUATING ON
BEHALF OF THE GOVERNMENT TWO YEARS AFTER THE ENTRY OF THE DECREE ARE
HARDLY COMPELLING TEN YEARS AFTERWARD.  WHILE A SHOWING THAT
CONTINUANCE OF THE BAR AGAINST AFFILIATION WOULD CAUSE COMPETITIVE
DISADVANTAGE MAY NOT, AS A PRACTICAL MATTER, UNREASONABLY HAVE BEEN
CALLED FOR AT A TIME WHEN COMPETITION IN THE INDUSTRY WAS COMPLETELY
SUSPENDED DURING THE INDETERMINATE PERIOD OF WAR, THE RESUMPTION OF
FULL-SCALE COMPETITION MAKES SUCH A SHOWING UNNECESSARY.  AND THIS IS
UNAFFECTED BY THE FACT THAT AUTOMOBILES ARE STILL IN SHORT SUPPLY.  THE
APPELLANTS AGREED FOR A LIMITED TERM TO REFRAIN FROM PURSUING CONDUCT
WHICH, IN THE ABSENCE OF AN ADJUDICATION THAT IT WAS ILLEGAL, THEY WERE
OTHERWISE FREE TO PURSUE AND WHICH GENERAL MOTORS HAS ALWAYS BEEN FREE
TO PURSUE.  THERE HAS BEEN NO SUCH ADJUDICATION AND SUCCESSIVE
EXTENSIONS OF THE TERM HAVE EXPIRED.  THE CRUCIAL FACT NOW IS NOT THE
DEGREE OF ACTUAL DISADVANTAGE BUT THE PERSISTENCE OF AN INEQUALITY
AGAINST WHICH THE APPELLANTS HAD SECURED THE GOVERNMENT'S PROTECTION. 
YET THE GOVERNMENT SEEKS A CHANGE IN THE EXPRESS TERMS OF THE DECREE
WHICH WOULD PERPETUATE THAT INEQUALITY.  THE GOVERNMENT HAS NOT
SUSTAINED THE BURDEN OF SHOWING GOOD CAUSE WHY A COURT OF EQUITY SHOULD
GRANT RELIEF FROM AN UNDERTAKING WELL UNDERSTOOD AND CAREFULLY
FORMULATED.  IF THE GOVERNMENT SEEKS TO OUTLAW POSSIBLE ARRANGEMENTS BY
FORD WITH A FINANCE CORPORATION, IT MUST ESTABLISH ITS CASE IN COURT
AGAINST FORD AS AGAINST GENERAL MOTORS AND NOT DRAW ON A CONSENT WHICH
BY ITS VERY TERMS IS NOT AVAILABLE. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  "12.  THE RESPONDENT FINANCE COMPANY SHALL NOT PAY TO ANY
AUTOMOBILE MANUFACTURING COMPANY AND THE MANUFACTURER SHALL NOT OBTAIN
FROM ANY FINANCE COMPANY ANY MONEY OR OTHER THING OF VALUE AS A BONUS
OR COMMISSION ON ACCOUNT OF RETAIL TIME SALES PAPER ACQUIRED BY THE
FINANCE COMPANY FROM DEALERS OF THE MANUFACTURER.  THE MANUFACTURER
SHALL NOT MAKE ANY LOAN TO OR PURCHASE THE SECURITIES OF RESPONDENT
FINANCE COMPANY OR ANY OTHER FINANCE COMPANY, AND IF IT SHALL PAY ANY
MONEY TO RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY WITH
THE PURPOSE OR EFFECT OF INDUCING OR ENABLING SUCH FINANCE COMPANY TO
OFFER TO THE DEALERS OF THE MANUFACTURER A LOWER FINANCE CHARGE THAN IT
WOULD OFFER IN THE ABSENCE OF SUCH PAYMENT, IT SHALL OFFER IN WRITING
TO MAKE, AND IF SUCH OFFER IS ACCEPTED IT SHALL MAKE, PAYMENT UPON
SUBSTANTIALLY SIMILAR BASES, TERMS AND CONDITIONS TO EVERY OTHER
FINANCE COMPANY OFFERING SUCH LOWER FINANCE CHARGE; PROVIDED, HOWEVER,
THAT NOTHING IN THIS PARAGRAPH CONTAINED SHALL BE CONSTRUED TO PROHIBIT
THE MANUFACTURER FROM ACQUIRING NOTES, BONDS, COMMERCIAL PAPER, OR
OTHER EVIDENCE OF INDEBTEDNESS OF RESPONDENT FINANCE COMPANY OR ANY
OTHER FINANCE COMPANY IN THE OPEN MARKET. 

"IT IS AN EXPRESS CONDITION OF THIS DECREE THAT NOTWITHSTANDING THE
PROVISIONS OF THE PRECEDING PARAGRAPH OF THIS PARAGRAPH 12 AND OF ANY
OTHER PROVISIONS OF THIS DECREE, IF AN EFFECTIVE FINAL ORDER OR DECREE
NOT SUBJECT TO FURTHER REVIEW SHALL NOT HAVE BEEN ENTERED ON OR BEFORE
JANUARY 1, 1941, REQUIRING GENERAL MOTORS CORPORATION PERMANENTLY TO
DIVEST ITSELF OF ALL OWNERSHIP AND CONTROL OF GENERAL MOTORS ACCEPTANCE
CORPORATION AND OF ALL INTEREST THEREIN, THEN AND IN THAT EVENT,
NOTHING IN THIS DECREE SHALL PRECLUDE THE MANUFACTURER FROM ACQUIRING
AND RETAINING OWNERSHIP OF AND/OR CONTROL OVER OR INTEREST IN ANY
FINANCE COMPANY, OR FROM DEALING WITH SUCH FINANCE COMPANY AND WITH THE
DEALERS IN THE MANNER PROVIDED IN THIS DECREE OR IN ANY ORDER OF
MODIFICATION OR SUSPENSION THEREOF ENTERED PURSUANT TO PARAGRAPH 12A. 
THE COURT, UPON APPLICATION OF THE RESPONDENTS OR ANY OF THEM, WILL
ENTER AN ORDER OR DECREE TO THAT EFFECT AT THE FOOT OF THIS DECREE, AND
THE RIGHT OF ANY RESPONDENT HEREIN TO MAKE THE APPLICATION AND TO
OBTAIN SUCH ORDER OR DECREE IS EXPRESSLY CONCEDED AND GRANTED. 

"12A.  IT IS A FURTHER EXPRESS CONDITION OF THIS DECREE THAT: 

"(1)  IF THE PROCEEDING NOW PENDING IN THIS COURT AGAINST GENERAL
MOTORS CORPORATION INSTITUTED BY THE FILING OF AN INDICTMENT BY THE
GRAND JURY ON MAY 27, 1938, NO. 1039, OR ANY FURTHER PROCEEDING
INITIATED BY REINDICTMENT OF GENERAL MOTORS CORPORATION FOR THE SAME
ALLEGED ACTS, IS FINALLY TERMINATED IN ANY MANNER OR WITH ANY RESULT
EXCEPT BY A JUDGMENT OF CONVICTION AGAINST GENERAL MOTORS CORPORATION
AND GENERAL MOTORS ACCEPTANCE CORPORATION THEREIN, THEN AND IN THAT
EVENT EVERY PROVISION OF THIS DECREE EXCEPT THOSE CONTAINED IN THIS SUB
PARAGRAPH (1) OF THIS PARAGRAPH 12A OF THIS DECREE, SHALL FORTHWITH
BECOME INOPERATIVE AND BE SUSPENDED, UNTIL SUCH TIME AS RESTRAINTS AND
REQUIREMENTS IN TERMS SUBSTANTIALLY IDENTICAL WITH THOSE IMPOSED HEREIN
SHALL BE IMPOSED UPON GENERAL MOTORS CORPORATION AND GENERAL MOTORS
ACCEPTANCE CORPORATION AND THEIR SUBSIDIARIES EITHER (A) BY CONSENT
DECREE, OR (B) BY FINAL DECREE OF A COURT OF COMPETENT JURISDICTION NOT
SUBJECT TO FURTHER REVIEW, OR (C) BY DECREE OF SUCH COURT WHICH
ALTHOUGH SUBJECT TO FURTHER REVIEW CONTINUES EFFECTIVE.  THE COURT
RESERVES JURISDICTION UPON APPLICATION OF ANY PARTY TO ENTER ORDERS AT
THE FOOT OF THIS DECREE IN ACCORDANCE WITH THE PROVISIONS OF THIS
PARAGRAPH. 

"(2)  A GENERAL VERDICT OF GUILTY RETURNED AGAINST GENERAL MOTORS
CORPORATION IN SAID PROCEEDING, FOLLOWED BY THE ENTRY OF JUDGMENT
THEREON, SHALL BE DEEMED TO BE A DETERMINATION OF THE ILLEGALITY OF ANY
AGREEMENT, ACT OR PRACTICE OF GENERAL MOTORS CORPORATION WHICH IS HELD
BY THE TRIAL COURT, IN ITS INSTRUCTIONS TO THE JURY, TO CONSTITUTE A
PROPER BASIS FOR THE RETURN OF A GENERAL VERDICT OF GUILTY.  A SPECIAL
VERDICT OF GUILTY RETURNED AGAINST GENERAL MOTORS CORPORATION IN SAID
PROCEEDING, FOLLOWED BY THE ENTRY OF JUDGMENT THEREON, SHALL BE DEEMED
TO CONSTITUTE A DETERMINATION OF THE ILLEGALITY OF ANY AGREEMENT, ACT
OR PRACTICE OF GENERAL MOTORS CORPORATION WHICH IS THE SUBJECT OF SUCH
SPECIAL VERDICT OF GUILTY.  A PLEA OF GUILTY OR NOLO CONTENDERE BY
GENERAL MOTORS CORPORATION, FOLLOWED BY THE ENTRY OF JUDGMENT OF
CONVICTION THEREON, SHALL BE DEEMED TO BE A DETERMINATION OF THE
ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE WHICH IS THE SUBJECT
MATTER OF SUCH PLEA.  THE DETERMINATION, IN THE MANNER PROVIDED IN THIS
CLAUSE, OF THE ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE OF GENERAL
MOTORS CORPORATION SHALL (FOR THE PURPOSES OF CLAUSE (3) OF THIS
PARAGRAPH) BE CONSIDERED AS THE EQUIVALENT OF A DECREE RESTRAINING THE
PERFORMANCE BY GENERAL MOTORS CORPORATION OF SUCH AGREEMENT, ACT OR
PRACTICE, UNLESS OR UNTIL SUCH JUDGMENT IS REVERSED, OR UNLESS SUCH
DETERMINATION IS BASED, IN WHOLE OR IN PART, (A) UPON THE OWNERSHIP BY
GENERAL MOTORS CORPORATION OF GENERAL MOTORS ACCEPTANCE CORPORATION, OR
(B) UPON THE PERFORMANCE BY GENERAL MOTORS CORPORATION OF SUCH
AGREEMENT, ACT OR PRACTICE IN COMBINATION WITH SOME OTHER AGREEMENT,
ACT OR PRACTICE WITH WHICH THE RESPONDENTS ARE NOT CHARGED IN THE
INDICTMENT HERETOFORE FILED AGAINST THEM BY THE GRAND JURY ON MAY 27,
1938, NO. 1041; 

"(3)  AFTER THE ENTRY OF A CONSENT DECREE AGAINST GENERAL MOTORS
CORPORATION, OR AFTER THE ENTRY OF A LITIGATED DECREE, NOT SUBJECT TO
FURTHER REVIEW, AGAINST GENERAL MOTORS CORPORATION BY A COURT OF THE
UNITED STATES OF COMPETENT JURISDICTION, OR AFTER THE ENTRY OF A
JUDGMENT OF CONVICTION AGAINST GENERAL MOTORS CORPORATION IN THE
PROCEEDING HEREINBEFORE REFERRED TO, OR AFTER JANUARY 1, 1940(WHICHEVER
DATE IS EARLIEST), THE COURT UPON APPLICATION OF ANY RESPONDENT FROM
TIME TO TIME WILL ENTER ORDERS: 

"(I)  SUSPENDING EACH OF THE RESTRAINTS AND REQUIREMENTS CONTAINED IN
SUB-PARAGRAPHS (D) TO (F) AND (H) TO (1), INCLUSIVE, OF PARAGRAPH 6 OF
THIS DECREE TO THE EXTENT THAT IT IS NOT THEN IMPOSED, AND UNTIL IT
SHALL BE IMPOSED, IN SUBSTANTIALLY IDENTICAL TERMS, UPON GENERAL MOTORS
CORPORATION AND ITS SUBSIDIARIES, AND SUSPENDING EACH OF THE RESTRAINTS
AND REQUIREMENTS CONTAINED IN SUB-PARAGRAPHS (A), (C) AND (D) OF
PARAGRAPH 7 OF THIS DECREE TO THE EXTENT THAT IT IS NOT IMPOSED AND
UNTIL IT SHALL BE IMPOSED IN SUBSTANTIALLY IDENTICAL TERMS, UPON
GENERAL MOTORS ACCEPTANCE CORPORATION AND ITS SUBSIDIARIES, EITHER (W)
BY CONSENT DECREE, OR (X) BY FINAL DECREE OF A COURT OF COMPETENT
JURISDICTION NOT SUBJECT TO FURTHER REVIEW, OR (Y) BY DECREE OF SUCH
COURT WHICH, ALTHOUGH SUBJECT TO FURTHER REVIEW, CONTINUES EFFECTIVE,
OR (Z) BY THE EQUIVALENT OF SUCH A DECREE AS DEFINED IN CLAUSE (2) OF
THIS PARAGRAPH; PROVIDED, HOWEVER, THAT IF THE PROVISIONS OF A CONSENT
OR LITIGATED DECREE AGAINST GENERAL MOTORS CORPORATION AND ITS
SUBSIDIARIES CORRESPONDING TO SUB-PARAGRAPHS (J) AND (K) OF PARAGRAPH 6
OF THIS DECREE ARE DIFFERENT FROM SAID SUB-PARAGRAPHS OF THIS DECREE,
THEN UPON APPLICATION OF THE RESPONDENTS ANY PROVISION OR PROVISIONS OF
SAID SUB-PARAGRAPHS WILL BE MODIFIED SO AS TO CONFORM TO THE
CORRESPONDING PROVISIONS OF SUCH GENERAL MOTORS CORPORATION DECREE; 

"(II)  SUSPENDING EACH OF THE RESTRAINTS AND REQUIREMENTS CONTAINED
IN THE REMAINING SUB-PARAGRAPHS (A), (B), (C) AND (G) OF PARAGRAPH 6 TO
THE EXTENT THAT IT IS NOT THEN IMPOSED, AND UNTIL IT SHALL BE IMPOSED,
UPON GENERAL MOTORS CORPORATION AND ITS SUBSIDIARIES IN ANY MANNER
SPECIFIED IN THE FOREGOING SUB-CLAUSE (I) OF CLAUSE (3), IF ANY
RESPONDENT SHALL SHOW TO THE SATISFACTION OF THE COURT THAT GENERAL
MOTORS CORPORATION OR ITS SUBSIDIARIES IS PERFORMING ANY AGREEMENT, ACT
OR PRACTICE PROHIBITED TO THE MANUFACTURER BY SAID REMAINING SUB
PARAGRAPHS, AND SUSPENDING EACH OF THE RESTRAINTS AND REQUIREMENTS
CONTAINED IN SUB-PARAGRAPH (B) OF PARAGRAPH 7 OF THIS DECREE TO THE
EXTENT THAT IT IS NOT IMPOSED, AND UNTIL IT SHALL BE IMPOSED, UPON
GENERAL MOTORS ACCEPTANCE CORPORATION AND ITS SUBSIDIARIES IN ANY SAID
MANNER, IF ANY RESPONDENT SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT GENERAL MOTORS ACCEPTANCE CORPORATION IS PERFORMING ANY AGREEMENT,
ACT OR PRACTICE PROHIBITED TO RESPONDENT FINANCE COMPANY BY SAID SUB
PARAGRAPH (B) OF PARAGRAPH    "(III)  SUSPENDING THE RESTRAINTS OF SUB
PARAGRAPH (D) OF PARAGRAPH 7 OF THIS DECREE AS TO RESPONDENT FINANCE
COMPANY, IN THE EVENT THAT THE RESTRAINTS OF SUB-PARAGRAPH (I) OF
PARAGRAPH 6 OF THIS DECREE ARE SUSPENDED AS TO THE MANUFACTURER. 

"(4)  THE RIGHT OF THE RESPONDENTS OR ANY OF THEM TO MAKE ANY
APPLICATION FOR SUSPENSION OF ANY PROVISION OF THIS DECREE IN
ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AND TO OBTAIN SUCH
RELIEF IS HEREBY EXPRESSLY GRANTED. 

"IN THE EVENT THAT AT ANY TIME PRIOR TO THE DATE WHEN GENERAL MOTORS
CORPORATION HAS PERMANENTLY DIVESTED ITSELF OF ALL OWNERSHIP AND
CONTROL OF AND INTEREST IN GENERAL MOTORS ACCEPTANCE CORPORATION,
GENERAL MOTORS ACCEPTANCE CORPORATION SHALL MAKE AVAILABLE TO DEALERS
OF GENERAL MOTORS CORPORATION IN ANY AREA A FINANCE CHARGE, ON ALL OR
ANY CLASS OF AUTOMOBILES SOLD BY DEALERS OF GENERAL MOTORS CORPORATION,
LESS THAN THE FINANCE CHARGE THEN GENERALLY AVAILABLE TO DEALERS OF THE
MANUFACTURER WITHIN SUCH AREA, NOTHING IN THIS DECREE SHALL PREVENT THE
MANUFACTURER FROM MAKING, AND THE MANUFACTURER MAY MAKE, ADJUSTMENTS,
ALLOWANCES OR PAYMENTS TO OR WITH ALL OF ITS DEALERS IN SUCH AREA WHO
AGREE TO REDUCE TO AN AMOUNT APPROVED BY THE MANUFACTURER (BUT NOT LESS
THAN THAT THEN MADE AVAILABLE BY GENERAL MOTORS ACCEPTANCE CORPORATION)
THE FINANCE CHARGES WHICH SUCH DEALERS OF THE MANUFACTURER IN SUCH AREA
RECEIVE FROM ANY CLASS OF RETAIL PURCHASERS OF AUTOMOBILES, PROVIDED
THAT SUCH ADJUSTMENTS, ALLOWANCES OR PAYMENTS SHALL NOT DISCRIMINATE
AMONG SUCH DEALERS IN SUCH AREA." 

FN2  THEIR FULL TEXT IS AS FOLLOWS: 

"(6.)(E)  EXCEPT AS PROVIDED BY SUB-PARAGRAPHS (J) AND (K) OF THIS
PARAGRAPH 6, 

"(I)  THE MANUFACTURER SHALL NOT ESTABLISH ANY PRACTICE, PROCEDURE OR
PLAN FOR THE RETAIL OR WHOLESALE FINANCING OF AUTOMOBILES FOR THE
PURPOSE OF ENABLING RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE
COMPANY OR COMPANIES TO ENJOY A COMPETITIVE ADVANTAGE IN OBTAINING THE
PATRONAGE OF DEALERS THROUGH ANY SERVICE, FACILITY OR PRIVILEGE
EXTENDED BY THE MANUFACTURER PURSUANT TO SUCH PRACTICE, PROCEDURE OR
PLAN IF SUCH SERVICE, FACILITY OR PRIVILEGE OR A SERVICE, FACILITY OR
PRIVILEGE CORRESPONDING THERETO, IS NOT MADE AVAILABLE UPON ITS WRITTEN
REQUEST TO ANY OTHER FINANCE COMPANY UPON SUBSTANTIALLY SIMILAR TERMS
AND CONDITIONS; AND 

"(II)  SO LONG AS THE MANUFACTURER SHALL CONTINUE TO AFFORD ANY
SERVICE, FACILITY OR PRIVILEGE NOT OTHERWISE SPECIFICALLY REFERRED TO
IN THIS DECREE TO RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE
COMPANY OR COMPANIES, IT SHALL NOT REFUSE TO AFFORD SIMILAR OR
CORRESPONDING SERVICES, FACILITIES OR PRIVILEGES UPON SUBSTANTIALLY
SIMILAR TERMS AND CONDITIONS AND UPON WRITTEN REQUEST TO ANY OTHER
FINANCE COMPANY FOR THE PURPOSE OF GIVING RESPONDENT FINANCE COMPANY OR
ANY OTHER FINANCE COMPANY OR COMPANIES A COMPETITIVE ADVANTAGE IN
OBTAINING THE PATRONAGE OF DEALERS; PROVIDED THAT IT SHALL NOT BE A
VIOLATION OF THIS DECREE FOR THE MANUFACTURER TO AFFORD SUCH SERVICE,
FACILITY OR PRIVILEGE ONLY TO REGISTERED FINANCE COMPANIES AS DEFINED
IN SUB-PARAGRAPH (J) OF THIS PARAGRAPH 6 OR ONLY TO A FINANCE COMPANY
DESIGNATED IN WRITING TO THE MANUFACTURER BY THE DEALER OR PROSPECTIVE
DEALER; 

"THE WRITTEN REQUEST SHALL SPECIFY IN EACH INSTANCE THE PARTICULAR
SERVICE, FACILITY OR PRIVILEGE DESIRED; 

     .         .         .         .         . 

"(6.)(I)  THE MANUFACTURER SHALL NOT, EXCEPT IN EACH INSTANCE UPON
WRITTEN REQUEST OF THE DEALER OR PROSPECTIVE DEALER, ARRANGE OR AGREE
WITH RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY THAT AN
AGENT OF THE MANUFACTURER AND AN AGENT OF THE FINANCE COMPANY SHALL
TOGETHER BE PRESENT WITH ANY DEALER OR PROSPECTIVE DEALER FOR THE
PURPOSE OF INFLUENCING THE DEALER TO PATRONIZE RESPONDENT FINANCE
COMPANY OR SUCH OTHER FINANCE COMPANY; PROVIDED, HOWEVER, THAT IT SHALL
NOT BE A VIOLATION OF THIS DECREE FOR THE MANUFACTURER TO ASSIST ANY
DEALER OR PROSPECTIVE DEALER, BECAUSE OF SAID DEALER'S OR PROSPECTIVE
DEALER'S FINANCIAL SITUATION OR REQUIREMENTS, BY JOINT CONFERENCE WITH
HIM AND A REPRESENTATIVE OF A PARTICULAR FINANCE COMPANY, TO OBTAIN
SPECIAL FACILITIES OR SERVICES (SUCH TERM NOT INCLUDING ONLY THE
FINANCING OF THE SHIPMENT OR DELIVERY OF AUTOMOBILES TO SUCH DEALER OR
PROSPECTIVE DEALER AND/OR ONLY THE PURCHASE OR ACQUISITION OF RETAIL
TIME SALES PAPER FROM HIM IN THE REGULAR COURSE OF BUSINESS) FROM THE
PARTICULAR FINANCE COMPANY AND, IN PART CONSIDERATION OF SUCH SPECIAL
FACILITIES OR SERVICES, FOR SUCH DEALER OR PROSPECTIVE DEALER TO
ARRANGE TO DO BUSINESS WITH SUCH FINANCE COMPANY ON AN EXCLUSIVE BASIS
FOR A REASONABLE PERIOD OF TIME AS MAY BE AGREED BETWEEN THEM; 

     .         .   .         .         . 

"(6.)(K)  THE MANUFACTURER SHALL NOT RECOMMEND, ENDORSE OR ADVERTISE
THE RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY OR
COMPANIES TO ANY DEALER OR TO THE PUBLIC; PROVIDED, HOWEVER, THAT
NOTHING IN THIS DECREE CONTAINED SHALL PREVENT THE MANUFACTURER IN GOOD
FAITH: 

"(1) FROM ADOPTING FROM TIME TO TIME A PLAN OR PLANS OF FINANCING
RETAIL SALES OF NEW AUTOMOBILES MADE BY THE MANUFACTURER OR FROM TIME
TO TIME WITHDRAWING OR MODIFYING THE SAME; 

"(2)  FROM RECOMMENDING TO ITS DEALERS THE USE OF SUCH PLANS; 

"(3)  FROM ADVERTISING TO THE PUBLIC AND RECOMMENDING THE USE OF SUCH
PLANS. 

     .         .         .         .         . 

"7.  THE RESPONDENT FINANCE COMPANY: 

     .         .      .         .         . 

"(D)  SHALL NOT, EXCEPT UPON WRITTEN REQUEST OF THE DEALER OR
PROSPECTIVE DEALER, ARRANGE OR AGREE WITH THE MANUFACTURER THAT AN
AGENT OF THE MANUFACTURER AND AN AGENT OF RESPONDENT FINANCE COMPANY
SHALL TOGETHER BE PRESENT WITH ANY DEALER OR PROSPECTIVE DEALER FOR THE
PURPOSE OF INFLUENCING THE DEALER OR PROSPECTIVE DEALER TO PATRONIZE
RESPONDENT FINANCE COMPANY; PROVIDED, HOWEVER, THAT IT SHALL NOT BE A
VIOLATION OF THIS DECREE FOR RESPONDENT FINANCE COMPANY BY JOINT
CONFERENCE WITH A DEALER OR PROSPECTIVE DEALER AND A REPRESENTATIVE OF
THE MANUFACTURER TO AGREE TO FURNISH TO SUCH DEALER OR PROSPECTIVE
DEALER, BECAUSE OF HIS FINANCIAL SITUATION OR REQUIREMENTS, SPECIAL
FACILITIES OR SERVICES (SUCH TERM NOT INCLUDING ONLY THE FINANCING OF
THE SHIPMENT OR DELIVERY OF AUTOMOBILES TO SUCH DEALER OR PROSPECTIVE
DEALER AND/OR ONLY THE PURCHASE OR ACQUISITION OF RETAIL TIME SALES
PAPER FROM HIM IN THE REGULAR COURSE OF BUSINESS) AND IN PART
CONSIDERATION OF SUCH SPECIAL FACILITIES OR SERVICES TO ARRANGE FOR THE
DEALER OR PROSPECTIVE DEALER TO DO BUSINESS WITH RESPONDENT FINANCE
COMPANY ON AN EXCLUSIVE BASIS FOR SUCH REASONABLE PERIOD OF TIME AS MAY
BE AGREED BETWEEN THEM." 

FN3  "IT IS NOT UNREASONABLE FOR THE GENERAL MOTORS COMPANY TO HAVE A
FINANCE COMPANY.  IT IS NOT UNREASONABLE FOR THE GENERAL MOTORS COMPANY
TO HAVE CONTRACTS WITH ITS DEALERS FOR A YEAR OR TO HAVE A CANCELLATION
CLAUSE IN THEM.  THEY HAVE A PERFECT RIGHT TO HAVE A FINANCE COMPANY
AND TO RECOMMEND ITS USE.  THEY HAVE A PERFECT RIGHT TO CANCEL A
CONTRACT FROM THEIR DEALER AS LONG AS THEY ARE NOT PERFORMING ANY
UNREASONABLE ACT. 

"THEY HAVE A RIGHT TO DETERMINE WHOM THEY WILL SELL THEIR CARS TO,
AND THEY HAVE A RIGHT TO DETERMINE WHOM THEY WILL NOT SELL THEIR CARS
TO BECAUSE CARS ARE THEIR PRODUCT AND THEY ARE THEIR PROPERTY AND NO
LAW COMPELS THEM TO SELL THEM TO ANY MAN THEY DON'T WANT TO SELL THEM
TO; BUT THAT IS NOT THE CHARGE IN THIS CASE.  THE CHARGE IS NOT THAT BY
HAVING DIFFICULTY IN CONTRACTS IN ITSELF, THESE DEFENDANTS DID ANYTHING
WRONG; IT IS NOT CHARGED HERE THAT TO RECOMMEND THE USE OF GMAC THERE
IS ANYTHING WRONG; IT IS NOT CHARGED HERE THAT CANCELLATION FOR CAUSE
IS ANYTHING WRONGFUL; BUT THE GOVERNMENT'S THEORY IN THIS CASE IS
IRRESPECTIVE OF THESE CONTRACTS AND INDEPENDENT OF THEM AND OUTSIDE OF
THEM THE CONDITIONS HAVE BEEN ASSERTED THAT THEY, UNDER THE DESIGNATION
OF THOSE TO THE GRAND JURORS UNKNOWN, THE ACTIONS HAVE BEEN SUCH THAT
THE POSSIBILITY, THE ABILITY TO CANCEL, THE ABILITY TO REFUSE TO RENEW
A CONTRACT, HAVE BEEN USED AS CLUBS UPON THE DEALERS TO FORCE THEM TO
USE GMAC AND THAT THESE ACTS THAT ARE COMPLAINED OF WERE ACTS THAT WERE
USED TO FORCE THE DEALERS TO USE GMAC, THE GOVERNMENT INSISTS THAT
THESE ACTS INSPIRED BY THAT MOTIVE HAVE BEEN SUCH AS TO RESULT IN
CANCELLATIONS THAT OTHERWISE WOULD NOT HAVE OCCURRED; IN
DISCRIMINATIONS THAT WOULD NOT OTHERWISE HAVE OCCURRED IN THE SHIPMENT
OF CARS IN INTERSTATE COMMERCE AND IN REFUSALS TO RENEW THAT WOULD NOT
OTHERWISE HAVE OCCURRED, AND IN THE USE OF GMAC WHEN IT OTHERWISE WOULD
NOT HAVE BEEN USED. 

"IN OTHER WORDS, THE GOVERNMENT HAS NO RIGHT TO COMPLAIN, AND IT MAY
NOT COMPLAIN OF THE DEFENDANTS' RIGHT TO LIMIT ITS SALES OF CARS TO
PERSONS WHOM IT MAY SELECT, ITS RIGHT TO DETERMINE WHO IT SHALL SELL
TO, ITS RIGHTS TO DETERMINE UPON WHAT TERMS IT WILL SELL, ITS RIGHT TO
PICK ITS OWN DEALERS. 

"IT CAN ONLY COMPLAIN IF THE DEFENDANTS DO SUFFICIENT OF THESE ACTS
CHARGED IN THE INDICTMENT AS CONSTITUTE DURESS UPON THE DEALER TO
ACCOMPLISH A RESULT THAT WOULD HAVE OTHERWISE NOT HAVE BEEN
ACCOMPLISHED, AND TO MAKE A DEALER DO SOMETHING THAT HE WOULD NOT HAVE
DONE OF HIS OWN FREE WILL. 

"THAT, ALMOST, IS THE QUESTION IN THIS CASE - WHETHER THE DEALER
COULD ACT AS A FREE MAN; WHETHER HE COULD ACT OF HIS OWN FREE WILL. 

"THE DEFENDANTS SAY: 

"'WE NEVER IMPOSED ANY RESTRICTIONS UPON THAT FREEDOM OF ACTION.' 

"THE GOVERNMENT SAYS IT DID AND THERE IS THAT QUESTION.  IF IT DID -
IF THE DEFENDANTS DID THAT SORT OF THING - AND IF IT RESULTED IN AN
UNREASONABLE RESTRICTION AND UNREASONABLE RESTRAINT OF INTERSTATE
COMMERCE, THEN YOU WOULD HAVE A RIGHT TO FIND THEM GUILTY. 

"IF THEY DID NOT DO IT, THIS LAWSUIT IS AT AN END, AND THAT IS A
QUESTION WHICH YOU HAVE GOT TO DECIDE. 

"YOU KNOW, YOU HAVE HEARD OF THE TERMS: 

"EXPOSITION; 

"PERSUASION; 

"ARGUMENT; 

"COERCION. 

"THEY ARE DIFFERENT STEPS.  THEY ARE GRADUATED STEPS THAT I SUPPOSE
EVERY SALESMAN GOES THROUGH, EXCEPT PERHAPS THE LAST. 

"IN EXPOSITION ONE MAY EXPOUND THE MERITS OF THAT WHICH HE HAS TO
SELL; HE MAY EXPLAIN ITS NATURE AND BY HIS EXPOSITION MAKE A CLEAR
PICTURE OF WHAT HE HAS. 

"BY PERSUASION HE MAY ENDEAVOR TO PERSUADE THE PERSON TO WHOM HE IS
TALKING TO ACCEPT THAT WHICH HE HAS TO OFFER. 

"THERE IS LITTLE ADVANCEMENT IN HIS FURTHER PROGRESS, TO ARGUE. 

"PERSUASION MEANS SOMETHING SOFTER THAN ARGUMENT, PERHAPS, BUT HE MAY
ARGUE WITH HIM, AND ARGUE WITH HIM THE RESPECTIVE MERITS OF HIS PRODUCT
AND OTHER PRODUCTS BEING OFFERED TO THE PERSON TO WHOM HE MAKES HIS
OFFER. 

"ALL OF THESE ARE PROPER. 

"HE MAY NOT GO BEYOND THAT AND USE SOMETHING THAT IS WITHIN HIS POWER
TO USE AS A CLUB TO COERCE THE PERSON TO ACCEPT THAT WHICH HE HAS TO
OFFER. 

     .         .         .        .         . 

"YOU MUST REMEMBER THAT, AFTER ALL, THIS COERCION, IF YOU FIND THAT
COERCION EXISTS, THEN THE ULTIMATE QUESTION IS; HAS THAT RESULTED IN
UNREASONABLE RESTRAINT OF INTERSTATE COMMERCE?  AND THAT IS A QUESTION
FOR YOU TO DETERMINE FROM ALL OF THE EVIDENCE." 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT APPEARS TO ACCEPT THE ARGUMENT OF APPELLANTS THAT THIS
CONSENT DECREE MUST BE TREATED AS THOUGH IT WERE A CONTRACT BETWEEN
PRIVATE PERSONS FOR PURCHASE OF AN AUTOMOBILE.  BUT A CONSENT DECREE IS
NOT A CONTRACT.  A CONSENT DECREE IN AN ANTITRUST PROCEEDING LIKE A
DECREE ENTERED AFTER A CONTEST MUST BE TREATED AS A JUDICIAL
DETERMINATION AND ORDER MADE IN THE PUBLIC INTEREST.  UNITED STATES V.
SWIFT & CO., 286 U.S. 106, 114-115.  THAT MEANS, I WOULD SUPPOSE, THAT
BEFORE THE RESTRAINTS IN THIS DECREE ARE LIFTED, A SHOWING SHOULD BE
MADE THAT SUCH ACTION WOULD NOT TEND TO GENERATE FUTURE VIOLATIONS OF
THE ANTITRUST LAWS.  NO SUCH SHOWING HAS BEEN MADE HERE.  AS I SEE THE
CASE, MODIFICATION OF THE DECREE UNDER THE CIRCUMSTANCES SHOWN WILL AID
AND ENCOURAGE DESTRUCTION OF COMPETITION CONTRARY TO LAW.  FOR SO FAR
AS EXISTING EFFECTIVE COURT RESTRAINTS ARE CONCERNED, MODIFICATION WILL
GIVE FORD FREEDOM TO HELP THE APPELLANT FINANCE COMPANIES CRUSH THEIR
COMPETITORS. 

EVEN THOUGH FORD AND COMMERCIAL INVESTMENT TRUST CORPORATION
(C.I.T.)  MADE NO ADMISSION OF THE FACTS CHARGED IN THE ORIGINAL
COMPLAINT, THE UNDENIED ALLEGATIONS OF THE BILL WERE SUFFICIENT TO
SUPPORT THE DECREE'S PROHIBITION AGAINST FUTURE COMPETITION-DESTROYING
PRACTICES.  SWIFT & CO. V. UNITED STATES, 276 U.S. 311, 327.  IN VERY
BRIEF SUMMARY, THOSE FACTS, SO FAR AS RELEVANT TO THE VIEW I TAKE, ARE
THESE; 

AT THE TIME THE DECREES WERE ENTERED, FORD MADE AND SOLD ABOUT 25% OF
ALL CARS IN THE UNITED STATES, CHRYSLER 25% AND GENERAL MOTORS 44%.
FORD AND THE OTHERS SELL TO DEALERS ABOUT FOUR BILLION DOLLARS' WORTH
OF CARS YEARLY, REQUIRING CASH ON DELIVERY.  THE DEALERS THEN SELL TO
RETAIL CUSTOMERS.  ABOUT 60% OF THE RETAIL SALES ARE ON CREDIT. 
DEALERS NOT PERMITTED TO SELL OTHER MAKES OF CARS ARE WHOLLY DEPENDENT
UPON FORD'S, G.M.'S OR CHRYSLER'S FAVORABLE TREATMENT FOR THEIR
BUSINESS LIVES.  THE DEALER AGENCIES ARE FOR ONE YEAR, BUT THE AGENCY
CONTRACTS CAN BE CANCELED ON SHORT NOTICE AND WITHOUT CAUSE.  THE
DEALERS ARE THUS ECONOMIC DEPENDENTS OF THE COMPANY WHOSE CARS THEY
SELL.  WHILE THERE ARE ABOUT 375 INDEPENDENT FINANCE COMPANIES, C.I.T.
AND ITS SUBSIDIARIES, APPELLANTS HERE, PRIOR TO ENTRY OF THIS COURT
DECREE, FURNISHED ABOUT 82% OF THE MONEY FOR FORD DEALER PURCHASES, AND
70% OF THAT FURNISHED FOR FORD RETAIL PURCHASES.  THE FAVORED COMPANIES
GOT THIS MAJOR PERCENTAGE OF FORD CAR LOANS BECAUSE FORD SUPPLIED THEM
WITH OFFICES AT ITS FACTORIES, KEPT THEM INFORMED OF SALES, GAVE MORE
LIBERAL PAYMENT TERMS TO ITS DEALERS WHO DEALT WITH C.I.T., REQUIRED
DEALERS TO KEEP THEIR BOOKS AND RECORDS OPEN SO THAT FORD COULD PREVENT
TRANSACTIONS WITH OTHER FINANCE COMPANIES, SENT FORD FACTORY
REPRESENTATIVES WITH C.I.T. AGENTS TO HELP "PERSUADE" DEALERS TO DO
BUSINESS WITH C.I.T., AND REQUIRED DEALERS WHO HANDLED LOANS THROUGH
OTHERS TO MAKE SATISFACTORY EXPLANATIONS TO FORD. 

THIS FORD FAVORED FINANCE COMPANY, C.I.T., ASKS MODIFICATION.  ONE
REASON SUGGESTED FOR MODIFICATION IS THAT THE C.I.T. GROUP HAS LOST A
PORTION OF FORD FINANCING SINCE THE DECREE SUBJECTED THEM TO
COMPETITION WITH OTHER FINANCE COMPANIES.  THEY COMPLAIN OF THE DECREE
NOT BECAUSE IT STIFLES COMPETITIVE PRACTICE; QUITE THE CONTRARY, THEY
COMPLAIN BECAUSE THE DECREE INFRINGES ON C.I.T.'S MONOPOLISTIC
SANCTUARY. 

IN SUBSTANCE, THE MODIFICATIONS REQUESTED ARE, (1) THAT FORD BE
PERMITTED TO ACQUIRE OWNERSHIP, CONTROL, OR AN INTEREST IN A FINANCE
COMPANY; (2) THAT FORD BE PERMITTED TO ENDORSE, RECOMMEND, OR ADVERTISE
PARTICULAR FINANCE COMPANIES TO ITS DEALERS; (3) THAT FORD BE PERMITTED
TO ARRANGE WITH FINANCE COMPANIES THAT ITS REPRESENTATIVES GO WITH
AGENTS OF THE FAVORED COMPANY TO DEALERS TO "INFLUENCE" THOSE DEALERS
TO NEGOTIATE LOANS FOR THEMSELVES AND RETAIL PURCHASERS ONLY WITH THE
FAVORED COMPANIES.  FREEDOM TO INFLUENCE DEALERS WOULD APPEAR TO OFFER
A PERFECT OPPORTUNITY FOR FORD AND THE FAVORED FINANCE COMPANIES TO
DEPRIVE FORD DEALERS AND RETAIL PURCHASERS OF ALL BENEFITS IN THE WAY
OF LOW INTEREST RATES AND LIBERAL LOAN TERMS THE DEALERS AND RETAILERS
MIGHT OTHERWISE OBTAIN FROM COMPETITION AMONG THE HUNDREDS OF FINANCE
COMPANIES IN THE COUNTRY.  FOR IT IS SURE, IF THE UNDENIED ALLEGATIONS
OF THE COMPLAINT BE ACCEPTED, AS THEY SHOULD BE AT THIS STAGE, THAT THE
ECONOMIC POWER OF FORD OVER ITS DEALERS IS SO GREAT THAT DEALERS WHO
DESPERATELY NEED FORD CARS WILL BE HELPLESS TO RESIST FORD'S
"INFLUENCE" AND "PERSUASION," WHETHER LEGALISTICALLY CALLED "COERCION"
OR NOT.  DUE TO FORD'S POWER, WHAT DEALER COULD AFFORD TO DRAW NICE
DISTINCTIONS BETWEEN "PERSUASION" AND "COERCION"?  I CAN HARDLY BELIEVE
THAT THE SHOWING OF AN AGREEMENT BETWEEN FORD AND C.I.T. TO RETURN TO
THEIR OLD METHODS OF "PERSUASION" WOULD FAIL TO SUPPORT A FINDING OF
UNREASONABLE RESTRAINT OF TRADE. 

IT MUST BE REMEMBERED THAT FORD NEITHER PROMISED, NOR IS IT REQUIRED
BY THIS COURT'S ACTION, TO REFRAIN FROM USING ITS OVERPOWERING
INFLUENCE TO "PERSUADE" ITS DEALERS IN THE SAME OLD WAY.  FORD AND
C.I.T. RELY HERE ON NO SHOWING OF AN INTENT TO ABIDE BY THE ANTITRUST
LAW; THEY RELY ON THE LITERAL LANGUAGE OF WHAT THEY TREAT AS A CONTRACT
WITH GOVERNMENT PROSECUTORS.  BUT GOVERNMENT OFFICERS HAVE NO POWER, BY
CONTRACT OR OTHERWISE, TO PERMIT VIOLATIONS OF THE LAW, EVEN SHOULD
THEY ATTEMPT TO DO SO, WHICH IN THIS CASE I DO NOT THINK THEY DID.  HAD
GENERAL MOTORS BEEN ACQUITTED ON THE CRIMINAL CHARGE OF VIOLATING THE
ANTITRUST LAWS, THERE WOULD BE MERIT IN THE CONTENTION OF FORD THAT
GOVERNMENT OFFICERS SHOULD NOT INSIST ON CONTINUANCE OF THIS INJUNCTION
AGAINST FORD.  GENERAL MOTORS WAS NOT ACQUITTED, BUT WAS CONVICTED
UNDER AN INDICTMENT ALLEGING THE SAME TYPE OF ECONOMIC PRESSURE
PRACTICES ENJOINED BY THIS CONSENT DECREE.  AND THE TRIAL JUDGE CHARGED
THE JURY THAT THEY HAD "A RIGHT TO FIND THESE DEFENDANTS GUILTY" IF
THEY FOUND THAT THE GOVERNMENT HAD "PROVED THE ACTS BEYOND ALL
REASONABLE DOUBT THAT ARE AVERRED IN THIS INDICTMENT."  TRUE THE COURT
CHARGED THE JURY THAT ACTS OF MERE "PERSUASION" WERE NOT ENOUGH, AND
THAT GENERAL MOTORS MUST HAVE USED ITS POWER "AS A CLUB TO COERCE." 
AND THE COURT EXPLAINED DICTIONARY DIFFERENCES IN THE ABSTRACT BETWEEN
"PERSUASION" AND "COERCION."  BUT THE JURY WAS CONSIDERING A CONCRETE
SET OF FACTS IN WHICH THE LANGUAGE USED BY GENERAL MOTORS, IN THE
ABSTRACT, MIGHT ONLY AMOUNT TO "PERSUASION," WHILE THE LANGUAGE PLUS
GENERAL MOTORS' ECONOMIC POWER MIGHT AMOUNT TO "COERCION."  AND THE
JURY'S VERDICT OF GUILTY, VIEWED IN THE LIGHT OF THE COURT'S CHARGE,
MEANS TO ME THAT THE PERSUASION PLUS ECONOMIC POWER CHARGED AND PROVED
IN THE GENERAL MOTORS CASE, WHICH WERE IN SUBSTANCE THE IDENTICAL ACTS
AND PRACTICES CHARGED AND ENJOINED IN THIS CASE, SHOWED USE OF "A CLUB
TO COERCE" IN VIOLATION OF THE ANTITRUST LAWS.  I THEREFORE AGREE WITH
THE FINDING OF THE DISTRICT COURT HERE IN DENYING FORD'S MOTION TO
MODIFY, NAMELY THAT THE AGREEMENTS, ACTS, AND PRACTICES SUCH AS HERE
ENJOINED CONSTITUTED A PROPER BASIS FOR THE GENERAL VERDICT OF GUILTY
IN THE GENERAL MOTORS CASE.  CONSEQUENTLY, I THINK THAT THE GOVERNMENT
HAS FAIRLY MET THE CONSENT DECREE'S CONDITION WITH REFERENCE TO THE
CONVICTION OF GENERAL MOTORS. 

NOR DO I BELIEVE THAT IN THE PRESENT STATE OF THE RECORD THIS COURT
SHOULD LIFT THE BAN AGAINST FORD'S ACQUISITION OF OR AFFILIATION WITH A
FINANCE COMPANY.  THE LAW PROHIBITS ACQUISITION BY ONE CORPORATION OF
THE WHOLE OR ANY PART OF THE STOCK OF "ANOTHER CORPORATION  ..  WHHERE
THE EFFECT OF SUCH ACQUISITION MAY BE  ..  TOO RESTRAIN  ..  COOMMERCE
IN ANY SECTION OR COMMUNITY, OR TEND TO CREATE A MONOPOLY OF ANY LINE
OF COMMERCE."  38 STAT. 731-732, 15 U.S.C. SEC. 18.  THERE CAN BE NO
DOUBT THAT AFFILIATION BETWEEN FORD AND A CERTAIN GROUP OF FINANCE
COMPANIES WILL LESSEN THE OPPORTUNITY OF OTHER FINANCE COMPANIES TO
COMPETE FOR THE AUTOMOBILE LOAN CONTRACTS BOTH OF DEALERS AND RETAIL
PURCHASERS.  AND WHERE THE VOLUME OF BUSINESS AS HERE INVOLVES 25% OF
ALL AUTOMOBILE SALES (AND EVENTUALLY PROBABLY IN EXCESS OF 90%) THE
TENDENCY TO MONOPOLY IS AGGRAVATED. 

FORD RELIES UPON ALLEGATIONS MADE IN ITS MOTION TO MODIFY TO THE
EFFECT THAT IT WILL BE COMPETITIVELY INJURED IF DENIED AN OPPORTUNITY
TO AFFILIATE WITH A FINANCE COMPANY AND TO "PERSUADE" ITS DEALERS TO
BORROW FROM THAT COMPANY ALONE, SO LONG AS GENERAL MOTORS IS ALLOWED TO
"PERSUADE" ITS DEALERS TO BORROW FROM A GENERAL MOTORS AFFILIATE OR
SUBSIDIARY.  BUT FORD HAS NOT PROPOSED TO THE COURT ANY LEGALLY
ALLOWABLE PLAN FOR AFFILIATION, NOR HAS IT SHOWN THE COURT THAT
CONTINUANCE OF THE DECREE WILL CAUSE IT TO SUFFER A COMPETITIVE
DISADVANTAGE IN THE SALE OF CARS.  FAILURE OF PROOF IN THESE TWO
RESPECTS WAS HELD AN ADEQUATE GROUND FOR DENYING A MOTION OF CHRYSLER
CORPORATION TO AMEND A DECREE PRECISELY LIKE THIS ONE.  CHRYSLER CORP.
V. UNITED STATES, 316 U.S. 556, 564.  WE SHOULD TAKE THE SAME ACTION IN
THIS CASE WHERE THE DISTRICT COURT SPECIFICALLY HAS FOUND THAT FORD HAD
FAILED TO PROVE THAT CONTINUANCE OF THE DECREE WOULD SUBJECT FORD TO A
COMPETITIVE DISADVANTAGE.  MOREOVER, IT IS DIFFICULT TO IMAGINE HOW
FORD COULD BE SUFFERING A COMPETITIVE DISADVANTAGE IN THE SALE OF CARS
IN TODAY'S FAMISHED CAR MARKET.  SO FAR AS THIS RECORD SHOWS, FORD
WOULD NOT LOSE THE SALE OF A SINGLE CAR BY LEAVING THIS DECREE AS IT
IS.  AND FORD DOES NOT RELY ON A DESIRE TO MAKE A PROFIT, SECRET OR
OPEN, OUT OF LOANS ITS DEALERS MUST OBTAIN TO PAY FORD OR LOANS RETAIL
PURCHASERS MUST GET TO PAY DEALERS.  IF FORD PROFESSED A DESIRE TO MAKE
LOANS AS A FINANCE COMPANY IN OPEN COMPETITION WITH OTHER FINANCE
COMPANIES, THAT WOULD BE ONE THING.  IT IS QUITE ANOTHER TO ASK A COURT
OF EQUITY TO LIFT ITS BAN IN ORDER THAT FORD MAY DICTATE LOAN TERMS FOR
DEALERS AND RETAIL PURCHASERS AFTER FORD HAS SOLD THE CARS IN THE
MARKET.  THE ONLY COMPETITIVE DISADVANTAGE THAT THIS RECORD REVEALS IS
THAT FROM WHICH FORD DEALERS, FORD RETAIL PURCHASERS, AND INDEPENDENT
LOAN AGENCIES WILL SUFFER WHEN THE MODIFICATION OF THIS DECREE GIVES
FORD AND C.I.T. THE GREEN LIGHT. 

FURTHERMORE, THE COURT'S ACTION HERE MEANS THAT THE CHRYSLER DECREE
MUST BE MODIFIED WITHOUT THE SHOWING THIS COURT REQUIRED IN THE
CHRYSLER CASE.  AND IT MEANS THAT FUTURE DESTRUCTION OF COMPETITION IN
AUTOMOBILE FINANCING BY FORD, CHRYSLER, AND GENERAL MOTORS HAS THE
TACIT APPROVAL OF THIS COURT.  FOR IF FORD SHOULD AFTER TODAY
"AFFILIATE" WITH C.I.T., OR RENEW ITS "PERSUASION" OF DEALERS, COULD IT
BE EXPECTED THAT THIS COURT WOULD THEREAFTER HOLD THESE OTHER COMPANIES
LEGALLY RESPONSIBLE, EVEN IF IT SHOULD BE THOUGHT THAT TODAY'S
PERMITTED CONDUCT RAN AFOUL OF THE ANTITRUST LAW?  IS IT CONCEIVABLE
THAT IF FORD NOW "AFFILIATES" WITH C.I.T., FORD'S "VESTED INTEREST,"
ACQUIRED WITH THIS COURT'S TACIT APPROVAL, WOULD BE TAKEN FROM FORD BY
A FEDERAL COURT? 

MUCH TALK ABOUT REFINED DISTINCTIONS IN THE COURT'S CHARGE IN THE
GENERAL MOTORS CASE CANNOT CREATE DOUBTS AS TO THE EFFECT OF THE
DECISION TODAY.  THE RESULT WILL BE DESTRUCTION OF COMPETITION IN
AUTOMOBILE FINANCING.  HEREAFTER DEALERS AND RETAIL PURCHASERS CANNOT
DEPEND ON COMPETITION TO KEEP INTEREST RATES AT A FAIR LEVEL.  THEIR
SOLE HOPE FOR LOW INTEREST RATES AND LOANS ON LIBERAL TERMS WILL BE THE
SPONTANEOUS GENEROSITY OF FORD, GENERAL MOTORS, AND CHRYSLER.  IT MAY
BE THAT MONOPOLY IN AUTOMOBILE LOANS IS A GOOD THING, BUT THE ANTITRUST
LAWS ASSUME THAT COMPETITION IS BETTER. 

I WOULD AFFIRM THIS JUDGMENT. 

MR. JUSTICE RUTLEDGE CONCURS IN THIS DISSENT. 

MR. JUSTICE DOUGLAS JOINS IN THIS OPINION INSOFAR AS IT PROTESTS
AGAINST LIFTING THE BAN ON FORD'S ACQUISITION OF OR AFFILIATION WITH A
FINANCE COMPANY. 



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