Boston College Law Review Volume 4|Issue 1 Article 17 10-1-1962 More Ado About Mergers: Brown Shoe Co. v. United States Henry S. Healy Follow this and additional works at:http://lawdigitalcommons.bc.edu/bclr Part of theBusiness Organizations Law Commons Recommended Citation Henry S. Healy,More Ado About Mergers: Brown Shoe Co. v. United States, 4B.C.L. Rev.159 (1962),http://lawdigitalcommons.bc.edu/ bclr/vol4/iss1/17 This Student Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please [email protected]. MORE ADO ABOUT MERGERS: BROWN SHOE CO. V. UNITED STATES BACKGROUND Mergers have played a most important part in the growth of many of today's giant corporations. The high point of the merger movement in the United States occurred around the turn of the century, and was marked by the foundation of such huge concentrations of economic power as United States Steel and American Tobacco.' The extent to which mergers facilitated acquisition of market control by one or a few firms led to legislative attempts to stem the tide. In 1914 Congress enacted the original Section 7 of the Clayton Act which prohibited the acquisition by one corporation of the stock of another corporation where such acquisition would result in a sub- stantial lessening of competition between the acquiring and the acquired companies or tend to create a monopoly in any line of commerce. 2 In 1926 the Supreme Court held that the act did not prohibit the acquisition by one corporation of the assets of another, but only applied to stock purchases.3 Perhaps as a result of this decision, the number of corporate mergers increased tremendously between 1926 and 1930,4 During the depres- sion this trend declined, but the beginning of the Second World War marked a new burst of merger activity which still continues.5 In the opinion of the Federal Trade Commission, and of many members of Congress, the prohibitions of Section 7 of the Clayton Act as originally enacted were not sufficient to cope with the problems presented by the merger movement. As a result, Congress was repeatedly asked to revise section 7, and a large number of bills to this effect were introduced. In 1950 Congress amended section 7 and in so doing broadened its applicability. The amended act reads as follows: 6 No corporation engaged in commerce shall acquire, directly or in- directly, the whole or any part of the stock or other share capital . of another corporation engaged also in commerce, where in any line of. commerce in any section of the country, the effect of such ac- quisition may be substantially to lessen competition, or tend to' create a monopoly. It should be clear from the wording of the statute that for a violation to exist, it is not necessary that competition already be substantially lessened, or that a monopoly already be created. It is only necessary that the court find that the merger may lead to the prohibited result, and that a substantial lessening of competition is a probable consequence of the merger. In section 7 the standards of the Sherman Act were rejected in favor 1 Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226, 229 (1960). 2 38 Stat. 730 (1914). 3 FTC v. Western Meat Co., 272 U.S. 554 (1926). 4 .Supra note 1, at 230. 5 Ibid. 6 38 Stat. 730 (1914), as amended by 64 Stat. 1125 (1950), 15 U.S.C. 1 18 (1958). 159 BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW of one which was intended to reach monopolistic tendencies "in their in- cipiency and well before they have attained such effects as would justify a Sherman Act proceeding."7 However, thorny problems arise when the courts attempt to determine just where the line should be drawn. "Unfortunately, as any economist would concede, there is no ascertainable magic size or number of firms which divides competition from oligopoly or any other less desirable form of market behavior."8 In 1962 the United States Supreme Court first came fully to grips with the amended section 7 in the case of Brown Shoe Co. v. United States .° The purpose of this comment is to examine the present state of the law under section 7 in the light of the Brown Shoe opinion. BROWN SHOE In 1955 the Justice Department brought suit to prevent the Brown Shoe Company, Inc. from merging with the G. R. Kinney Company, Inc. A motion by the Government for a preliminary injunction was denied, and the companies were allowed to merge on the condition that their operations be kept separate.1° As of 1955 Brown was the fourth leading manufacturer of shoes, turning out about four per cent of the nation's total shoe produc- tion." Kinney was the twelfth largest shoe manufacturer, and was the oper- ator of the largest family style shoe store chain in the United States. These stores made about 1.2 per cent of all national retail shoe sales by dollar volume.'2 Brown also owned or controlled a large number of retail outlets. Over 1,230 stores were either owned outright by Brown or independently operated under agreements which precluded the sale of lines which competed with those manufactured by Brown.'3 Kinney's manufacturing plants supplied about twenty per cent of the shoes sold in Kinney stores. Before the merger Kinney bought no shoes from Brown. However, after the merger Brown became the largest outside supplier of shoes to Kinney, supplying 7.9 per cent of its needs.'4 The Supreme Court found that the shoe industry was dominated by a small number of large companies. The top four companies produced ap- proximately twenty-three per cent of the nation's shoes. Further, a definite trend toward acquiring retail outlets was found to exist among the larger shoe manufacturers. Brown, for example, had owned no retail outlets before 1951, and had acquired 845 stores by 1956. Between 1950 and 1956 nine independent shoe store chains, operating 1,114 retail stores, were found to have been acquired by the largest manufacturing firms in the industry. After acquiring retail outlets, shoe manufacturers showed a definite tendency to sup- ply an ever increasing proportion of the retail outlets' needs, "thereby fore- closing other manufacturers from effectively competing for the retail accounts. 7 Brown Shoe Co. v. United States, 370 U.S. 294 n.32 (1962), quoting S. Rep. No. 1775, 81st Cong., 2d Sess, 7-8 (1950). 8 Bok, supra note I, at 243. 0 Brown Shoe Co. v. United States, 370 U.S. 294 (1962). 10 Id. at 296. 11 Id. at 302-03. 12 Ibid. 13 Id. at 297. 14 Id. at 304. 160 STUDENT COMMENTS Manufacturer-dominated stores were found to be 'drying up' the available outlets for independent producers."'s The Court found that Brown was not only a participant but also a "moving factor" in these industry trends. 18 In the District Court the merger was held to be unlawful, and Brown was ordered to dispose of its interest in Kinney." In affirming the decision of the District Court the United States Supreme Court held that the merger violated Section 7 of the Clayton Act both in its vertical's and in its hori- zontaP° aspects. The merger was vertical in that the manufacturing facilities of Brown were combined with Kinney's retail stores, and horizontal in that the retail outlets of the two companies were combined. The combination of the manufacturing facilities of the two companies was not discussed in the Supreme Court opinion since the District Court had found that it did not come within the prohibitions of section 7, and the Government had not ap- pealed.2° In passing on the validity of the merger the Court first made a careful examination of the legislative history of the 1950 amendment. It found that "the dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of eco- nomic concentration in the American economy."21 A number of factors which Congress had considered relevant in judging the validity of a given merger were then discussed.22 In applying these factors to the Brown-Kinney merger the Court examined its vertical and horizontal aspects separately. 15 Id. at 301. 10 Id. at 302. 37 United States v. Brown Shoe Co., 179 F. Supp. 721 (E.D. Mo. 1959). 18 370 U.S. at 334. "Economic arrangements between companies standing in a supplier-customer relationship arc characterized as 'vertical.' The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a 'clog on competition' ... which `deprivers] . rivals of a fair opportunity to compete'. . . . Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement." Id. at 323-24. 12 Id. at 346. "An economic arrangement between companies performing similar functions in the production or sale of comparable goods or services is characterized as `horizontal'. . . . Where the arrangement effects a horizontal merger between companies occupying the same product and geographic market, whatever competition previously may have existed in that market between the parties to the merger is eliminated." Id. at 334-35. 20 Id. at 335. 21 Id. at 315. 22 First, that Congress intended to "plug the loophole" and extend the act to cover asset acquisitions. Second, that since the phrase "between the acquiring and the acquired companies" had been removed by the amendment, section 7 was to apply not only to mergers between actual competitors, but also to vertical and conglomerate mergers. Third, that Congress was primarily interested in retarding the process of concentration in American industry, and that section 7 was intended to give the courts the power to halt this trend at the outset before it gathered momentum. Fourth, that Congress had rejected the standards of the Sherman Act in section 7 cases. Fifth, that the beneficial effect of some mergers had been recognized, as where two small firms merge in order to be better able to compete with the larger firms in the industry, or where a failing company merges with one which is a healthy competitor. The Court found that the legislative history showed congressional concern with competition, not competitors, and 161 BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW In each case a careful delineation of the relevant market was first made, as to both product and geographic location. This is a necessary predicate to any analysis of the competitive effect of a merger, since its effects must be tested • in the market within which the companies operate. Section 7 pro- scribes mergers where they "may substantially lessen competition in any line of commerce in any section of the country." Therefore, both the product line in question (line of commerce) and the geographic market (section of the country) must be defined by the court in order to bring the competitive effect of the merger into proper focus." For the purpose of examining the vertical aspect of the merger the relevant geographic market was held to be the entire Nation. 24 The position of the Government was that the relevant product market (line of commerce) was "footwear," or alternatively ."men's," "women's" and "children's" shoes considered separately. Brown argued that in order to properly define the relevant lines of commerce further distinctions were necessary. The age and sex of intended customers were important, but differences in grade of ma- terial, quality of workmanship, and customer use of shoes were felt to be equally important." Brown sought to have the line of commerce divided into ten separate age/sex categories.2° These age/sex categories were to be further broken down into a multitude of subdivisions based on price, quality and use differences. Brown maintained that its classification by age, sex and use was supported by the fact that shoes are generally so classified by manu- facturers." Its further subdivision by price and quality was based on the contention that since Brown shoes were primarily medium priced, and Kinney shoes were low priced, they were not being sold in competition with each other, and should therefore be separate "lines of commerce" for the purpose of measuring the competitive effect of the merger.28 The Supreme Court affirmed the District Court's finding that the rele- vant product market was men's, women's and children's shoes. Its decision was based on the following considerations: (1) these product lines are recognized by the public as being separate; (2) the lines are manufactured in separate plants; (3) "each has characteristics peculiar to itself rendering it generally noncompetitive with the others; and each is, of course, directed its desire to restrain mergers only to the extent that such combinations may tend to lessen competition. Sixth, that no particular test was adopted for measuring the relevant market, nor was any definition of the word "substantially" adopted. Seventh, that while "substantially to lessen competition" was not defined, Congress did indicate that an analysis of the industry must be made in order to determine whether or not a tendency toward concentration existed. Eighth, that the words "may tend to substantially lessen competition" were used to show that Congress was concerned with "probabilities, not certainties," and that mergers were to be proscribed if probable anticompetitive effect could be shown. Id. at 317-23. 23 United States v. E.I. duPont de Nemours & Co., 353 U.S. 586, 593 (1947). 24 370 U.S. at 328. 25 Brief for the Appellant, pp. 127-36, Brown Shoe Co. v. United States, supra note 9. 26 Id. at 129. 27 "The district court's point with regard to shoe classification is not well taken and is unrealistic since the undisputed evidence in the record shows that shoes are classified by manufacturers in categories which correspond to the intended use for which they are to be put as well as on age/sex and price/quality basis." Id. at 127. 28 Id. at 129-36. 162 STUDENT COMMENTS toward a distinct class of customers."2° The Court minimized the significance of Brown's contention that medium-priced shoes do not compete with low- priced shoes. Further age/sex distinctions were rejected, since Brown manu- factured and Kinney sold about the same percentage of the suggested sub- divisions as they did of men's, women's and children's shoes, and any further subdivision would not aid the Court in analyzing the effect's of the merger." In a concurring opinion Mr. Justice Clark maintained that the proper product market was "shoes of all types."3' Mr. Justice Harlan, in an opinion which dissented as to the Court's jurisdiction but concurred as to the merits of the case, agreed with Mr. Justice Clark as to the proper product market. 32 After defining the relevant market in which the effects of the vertical merger were to be measured, the Court went on to determine what these effects in fact were. The first factor to be examined was the size of the share of the market which was foreclosed by the merger. However, this in itself was not felt to be decisive." The Court held that an examination of "various economic and historical factors" was also necessary in order ,to determine whether the merger was illegal. One of the most important of these factors was "the very nature and purpose of the arrangement." 34 Congress was found to have contemplated that "the tests of illegality [under section 7] are intended to be similar to those which the courts have applied in inter- preting the same language as used in other sections of the Clayton Act." 38 Section 3 of the Clayton Act has virtually the same wording as section 7. 30 Section 3 has been found to require an examination of the "interdependence of the market share foreclosed by, and the economic purpose of, the vertical arrangement."37 As is the case under section 3, the Court found that the size of the market share involved, the purpose of the arrangement, and the presence or absence of a trend toward concentration in the industry were relevant to determining the legality of a merger under section 7.38 Turning 29 370 U.S. at 326. 30 Id. at 327. 31 Id. at 356. "It would appear that the relevant line of commerce would be shoes of all types. This is emphasized by the nature of Brown's manufacturing activity and its plan to integrate the Kinney stores into its operations. The competition affected thereby would be in the line handled by these stores which is the full line of shoes manufactured by Brown. This conclusion is more in keeping with the record as I read it and at the same time avoids the charge of splintering the product line." 32 Id. at 366. 33 Id. at 328. 34 Id. at 329. 35 Ibid. 36 It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods for use, consumption, or resale within the United States . . . on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods ... of a com- petitor or competitors of the • . • seller where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce. 38 Stat. 731 (1914), 15 U.S.C. § 14 (1958). Cf. text accompanying note 6, supra. 37 370 U.S. at 329. 36 "We reach this conclusion because the trend toward vertical integration in the shoe industry, when combined with Brown's avowed policy of forcing its own shoes upon its retail subsidiaries, may foreclose competition from a substantial share of the 163 BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW to the facts of the Brown-Kinney merger the Court stated that "in this industry, no merger between a- manufacturer and an independent retailer could involve a larger potential market forecIosure." 39 Further, the evidence disclosed that Brown intended to use its ownership of Kinney to force Brown shoes into Kinney stores.4° The recent tendency among large shoe manufacturers to acquire retail outlets was found to show the existence of a trend toward vertical integration in the industry." On the basis of these findings the merger was found to foreclose competition from a substantial share of the national market for men's, women's and children's shoes, and was therefore held to violate section 7. Mr. Justice Clark appeared to agree with the majority as to the standard of illegality for measuring the effects of the merger.4" Mr. Justice Harlan felt that the size of the market share which was foreclosed by the merger, combined with its purpose, was enough to render it illega1.43 He reached this result without considering the existence of a trend toward con- centration in the industry, which he felt had not been proved. 44 The Brown-Kinney merger was horizontal in that it combined the retail outlets of the two companies, thus ending such competition as had previously existed between them. In examining the horizontal aspects of the merger the Court used the same product market as had been used for its consideration of the vertical aspects, i.e., men's, women's and children's shoes.41 However, in defining the geographic market it took a new and different approach. The Supreme Court agreed with the District Court's finding that the horizontal aspects of the merger must be analyzed "in every city with a population exceeding 10,000 and its immediate contiguous sur- rounding territory in which both Brown and Kinney sold shoes at retail through stores they either owned or controlled." 4° This definition meant that less than one half of the cities where either Brown or Kinney sold shoes were included in the scope of the geographic market.47 Mr. Justice Clark48 felt that the relevant geographic market for measuring the effect of the merger should be the nation as a whole. In determining the competitive effect of the merger the Court first discussed the size of the combined market share of Brown and Kinney in the relevant markets. In thirty-two cities their combined market share of women's shoes exceeded twenty per cent. Their share of the market for markets for men's, women's and children's shoes, without producing any countervailing competitive, economic, or social advantages." Id. at 334. " Id. at 331-32. 4° Ibid. 41 Ibid. 42 Id. at 356. 43 Id. at 372-73. 44 reach this result without considering the findings of the District Court re- specting the trend in the shoe industry towards 'oligopoly' and vertical integration. The statistics in the record fall short of convincing me that any such trend exists." Id. at 373-74. 45 Id. at 336. 4° Id. at 337. Id. at 338. 47 48 Id. at 356. 164 STUDENT COMMENTS children's shoes exceeded twenty per cent in thirty-one cities. In 118 cities the combined shares of Brown and Kinney exceeded five per cent in the sale of one of the relevant product lines.'") The decision stressed the importance of the size of the market share which the companies may control by merging." In an industry as fragmented as shoe retailing, the control of substantial shares of the trade in a city may have important effects on competition. If a merger achieving 5 percent control were now approved, we might be required to approve future merger efforts by Brown's competitors seeking similar market shares. The oligopoly Congress sought to avoid would then be furthered and it would be difficult to dissolve the combinations previously approved. Other factors which could be considered in evaluating the merger were also discussed. The Court again mentioned the history of the tendency toward concentration in the industry, and also spoke of the absence of mitigating factors, such as the business failure of one of the parties to the merger." However, on the whole, the horizontal aspect of the merger seems to have been condemned wholly on the basis of the size of the market share which the merged companies controlled. THE RELEVANT MARKET The problem of defining the relevant market in which the competitive effect of a merger is to be measured is basic to every section 7 case. How- ever, the great variety of products which are produced by American com- panies, combined with a great variation in the size and character of the geographic markets within which they do business, makes it impossible to set up a universal standard for determining market limits. The boundaries of a given market can only be set after a careful examination of the industry in question. But, as is always the case when courts must make broad in- vestigations of economic data, serious problems arise as to the relevancy of certain factors. Perhaps the most important problem relating to market definition is the relevance of the existence of products which are "reasonably inter- changeable" substitutes for the items produced by the merging firms.52 This is best illustrated by an examination of the Cellophane53 case, which is the leading decision in point. This was an action against duPont Company under the Sherman Act alleging that duPont had monopolized trade in the manufacture of cellophane. The Court did not accept the position of the Government and took the view that the product market included not only 49 Id. at 343. 50 Id. at 343-44. 51 At the same time appellant has presented no mitigating factors, such as the business failure or the inadequate resources of one of the parties that may have pre- vented it from maintaining its competitive position, nor a demonstrated need for com- bination to enable small companies to enter into a more meaningful competition with those dominating the relevant markets." Id. at 346. 52 For an excellent discussion of this problem see Mann & Lewyn, The Relevant Market Under Section 7 of the Clayton Act: Two New Cases—Two Different Views, 47 Va. L. Rev. 1015 (1961). United States v. E. I. duPont de Nemours & Co., 351 U.S. 377 (1956). 53 165 BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW cellophane, but all "flexible packaging materials." Had the product market been limited to cellophane the decision would probably have been adverse to duPont, since it controlled 68 percent of the market. With "flexible packaging materials" as the line of commerce duPont did not have a monopoly since it controlled less than _20 percent of the relevant market. One of the most important elements in determining the "reasonable interchangeability" of products, or the "cross-elasticity of demand" between them is the responsive- ness of the sales of one product to price changes in the other. As the Court said in Cellophane, "If a slight decrease in the price of cellophane causes a considerable number of customers of other flexible wrappings to switch to cellophane, it would be an indication that a high cross-elasticity of demand exists between them; that the products compete in the same market."54 The "reasonable interchangeability" concept seems to have been generally ac- cepted in subsequent cases. But in the duPont-General Motors" case, which was decided under the original section 7, the Supreme Court did not discuss the concept of "reasonable interchangeability." It answered the contention of the defense that the product market should be all industrial sales of finishes and fabrics with the statement that "automotive finishes and fabrics have sufficient peculiar characteristics and uses to constitute them as products sufficiently distinct from all other finishes and fabrics to make them a 'line of commerce' within the meaning of the Clayton Act." 56 The fact that the Court refused (or neglected) to use the language of the Cellophane case has led the Government to maintain that the "reasonable interchangeability" doctrine was impliedly rejected. This approach seems to have recently met with judicial approval." However, Brown Shoe appears to settle the question. Citing Cellophane, the Court states that "the outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it."58 This seems to be a reasonable conclusion, since however difficult a full examination of market alternatives may be, it is a necessary predicate to an honest evaluation of the competitive situation in a given line of commerce. The facts of the Cellophane case bear witness to the relevancy of such an inquiry and also show how exceedingly important it can be to the defense. When the Brown Shoe opinion is examined it appears that although the Court defined the relevant product market as men's, women's and chil- dren's shoes, it could as easily have defined it as "footwear," as was suggested by the concurring opinions." In explaining its reasons for making these product distinctions the Court first affirms that the broad product market is to be determined through "reasonable interchangeability" and possibly "production flexibility."60 It then declares that "within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for anti-trust purposes . . . . Because Section 7 of the Clayton Act 54 Id. at 400. '5 United States v. E. I. duPont de Nemours & Co., 353 U.S. 586 (1957). 58 Id. at 592. 57 Crown Zellerbach Corp. v. FTC, 296 F.2d 800, 813 (9th Cir. 1961). 58 370 U.S, at 325. See text accompanying notes 31 and 32 supra. 55 51) See text accompanying notes 69 and 70 infra. 166 STUDENT COMMENTS prohibits any merger which may substantially lessen competition 'in any line of commerce' [emphasis supplied], it is necessary to examine the effects of a merger in each such economically significant submarket to deter- mine if there' is a reasonable probability that the merger will substantially lessen competition."64 While "footwear" may have been the broadest scope of the market in the present case, the Court seems to have felt that the product markets chosen by the District Court were sufficiently well defined submarkets to constitute "lines of commerce" in and of themselves. There- fore, since the merger was found to tend to substantially lessen competition in each of these "lines of commerce," it was held to be illegal. This holding by the Supreme Court seems to mean that if any merger tends to substantially lessen competition in any relevant submarket it will be illegal even if com- petition is not lessened in other submarkets or in the broad market as a whole." The boundaries of submarkets may be defined "by examining such practical indicia as industry or public recognition of the submarket as a separate 'economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes and specialized vendors."" These statements imply that a broad definition of the total market will avail the defense nothing if the Government can point out a relevant submarket to the court within which competition is substantially foreclosed. They also imply that the Court may be willing to allow such submarkets to be rather narrowly defined. Such an approach will make it much easier for the Government to pinpoint its markets in order to show maximum competitive injury. However, the manipulation of market data by the Government should not be substituted for a careful analysis of the economic realities of the situation. 84 As we have seen, market definition is crucial in this area. To allow the Government to define its markets at will is not only to perhaps ignore economic realities, it is to deprive the defendant of what is often his only hope of success. Beyond the concept of "reasonable interchangeability" lies that of "production flexibility." In a number of cases it has been contended that where the manufacturers of the product which the Government has chosen as the "line of commerce" have the facilities to easily shift production to other items, these other items should be included in the relevant product market. This approach was taken by the Court in United States v. Columbia Steel Co.," which was a suit under the Sherman Act to enjoin United States 01 370 U.S. at 325. 02 See summary of address by Lee Loevinger to the Anti-Trust Section of the A.B.A. reported in CCH Trade Reg. Rep. 50,154 (Current Comment). 03 370 U.S. at 325. 64 "Government trial counsel of late have been increasingly frank about their manipulations of market data. In one ,case, when it suits their purpose to narrow the market, they will argue that the doctrine of ,reasonable interchangeability is immaterial. In another, when they desire to broaden the market to transmute what appears to be a conglomerate diversification into a horizontal acquisition between competitors, they do not hesistate to rely on the very same doctrine." Handler & Robinson, A Decade of the Administration of the Celler-Kefauver Antimerger Act, 61 Colum. L. Rev. 629, 649 (1961). 65 334 U.S. 495 (1948). 167