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328 U.S. 781




No. 18. Argued November 7, 8, 1945 -- Decided June 10, 1946

Petitioners were convicted of violating 1 and 2 of the Sherman Anti-Trust Act. The Circuit Court of Appeals affirmed. 147 F.2d 93. This Court granted certiorari "limited to the question whether actual exclusion of competitors is necessary to the crime of monopolization under 2 of the Sherman Act." 324 U.S. 836. A petition for rehearing and enlargement of the scope of review in No. 20 was denied. 324 U.S. 891. Affirmed, p. 815.

1. When there is a combination or conspiracy to control and dominate interstate trade and commerce in a commodity, coupled with the power and intent to exclude competitors to a substantial extent, the crime of monopolization under 2 of the Sherman Anti-Trust Act is complete; and the actual exclusion of competitors is not necessary to the crime. Pp. 784-787, 798, 808-815.

2. To support a conviction for conspiring to monopolize certain trade in violation of the Sherman Act, it is not necessary to show power and intent to exclude all competitors, nor to show a conspiracy to exclude all competitors. P. 789.

3. Under 2 of the Sherman Act, it is the crime of monopolizing for parties to combine or conspire to acquire or maintain the power to exclude competitors from any part of the trade or commerce among the several States or with foreign nations, provided

(a) they also have such a power that they are able, as a group, to exclude actual or potential competition from the field and

(b) they have the intent and purpose to exercise that power. P. 809.

4. It is not the form of the combination or the particular means used but the result to be achieved that the statute condemns. P. 809.

5. It is not important whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful. P. 809.

6. No formal agreement is necessary to constitute an unlawful conspiracy. P. 809.

7. The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealing or other circumstances as well as in an exchange of words. Pp. 809, 810.

8. Neither proof of exertion of the power to exclude nor proof of actual exclusion of existing or potential competitors is essential to sustain a charge of monopolization under the Sherman Act. P. 810.

9. A combination may be one in restraint of interstate trade or commerce or to monopolize a part of such trade or commerce in violation of the Sherman Act, although such restraint or monopoly may not have been actually attained to any harmful extent. P. 811.

10. The material consideration in determining whether a monopoly exists is not that prices are raised and that competition actually is excluded but that power exists to raise prices or to exclude competition when it is desired to do so. P. 811.

11. United States v. Aluminum Co. of America, 148 F.2d 416, approved. Pp. 811-814.

12. Separate convictions for a conspiracy to restrain trade and for a conspiracy to monopolize trade do not amount to double jeopardy or to a multiplicity of punishment in a single proceeding contrary to the Fifth Amendment, since they are separate statutory offenses, one being made criminal by 1 and the other by  2 of the Sherman Act. Braverman v. United States, 317 U.S. 49, distinguished. Pp. 787, 788.

13. Separate convictions for monopolization and for conspiring to monopolize in violation of the Sherman Act do not result in multiple punishment contrary to the Fifth Amendment, since they are separate offenses. United States v. Rabinowich, 238 U.S. 78; Pinkerton v. United States, 328 U.S. 640. Pp. 788, 789.

147 F.2d 93, affirmed.

Mr. Justice Burton delivered the opinion of the Court.

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