Federal Trade Commission v. Weyerhaeuser Company

MIKVA, Circuit Judge,

dissenting:

I agree with Part II of the majority opinion that this case is not moot; therefore we must confront the harder question of how to meet the congressional mandate under Section 13(b) of the Federal Trade Commission Act.1 The majority finds, in the first case to do so, that a court may issue a “hold-separate order” under section 13(b) even though that term is not used in that section. I would hold that when the statutory requirements for relief under 13(b) have been satisfied, a court may grant only the relief provided by the statute. In this case the Federal Trade Commission (FTC) met the requirements of 13(b), and the district court therefore had no reason to invoke its equitable power. I would reverse the district court’s denial of a preliminary injunction.

One need not fall back on secondary canons of construction to decipher section 13(b). The plain words of a statute are the best indications of legislative intent. “No single argument has more weight in statutory interpretation . ...”2 Section 13(b) provides that “a temporary restraining order or a preliminary injunction may be granted without bond.” Nevertheless, the majority concludes that Congress intended to include a third remedy — the less-than-efficacious “hold-separate” order. If Congress had intended that hold-separate orders be an alternative remedy when it enacted 13(b), it could easily have so stated.3 As the majority opinion notes, the first reported government effort to enjoin a merger under the Clayton Act resulted in a hold-separate order in 1956.4 When Congress enacted 13(b) twenty years later it mandated only two forms of relief: temporary restraining orders and preliminary injunctions.5

A hold-separate order is appropriate only when the. Commission fails to make the showing necessary to be granted relief under 13(b). A hold-separate order thus may be warranted when the FTC is unable to make a sufficient showing of a likelihood of *1092success on the merits to be entitled to an injunction,6 or when the equities weigh against granting an injunction. A district court may then, relying upon its inherent equitable powers, decide whether to grant a hold-separate order.

The well-known deficiencies of hold-separate orders supply the obvious reason for their exclusion as an alternative remedy when the FTC has satisfied the requirements for relief under 13(b). The majority opinion acknowledges many of their common deficiencies,7 and I need not repeat them here. However, this case provides a good example of the Siren quality of hold-separate orders that initially appear harmless or even beneficial. Such orders may seem attractive as compromise remedies in difficult cases, but their efficacy is in most cases a sham, and they place courts in a business management role for which the judiciary is ill-suited.

The district court and the majority recognize that supervision and further litigation will be necessary under this hold-separate order, but they ignore the direct cost to the public of litigating the order’s specific provisions and of litigating compliance with it.8

In addition, the majority turns a blind eye to the costs to the public of permitting this merger to be consummated — both interim costs and ultimate costs. The majority, with a great leap of faith, believes that, by court order, Weyerhaeuser West Coast will compete with Weyerhaeuser on the West Coast. With considerable nonchalance the majority states: “The order forbids Weyerhaeuser from taking any ‘direct or indirect’ action that would interfere with [Weyerhaeuser West Coast’s] North Bend corrugated medium mill’s operation as a ‘separate and ongoing enterprise;’ ”9 “[Weyerhaeuser West Coast’s] North Bend corrugated medium mill may not give Weyerhaeuser’s container plants any preference;” 10 “The district court’s order ... is plainly designed to prevent [Weyerhaeuser West Coast’s] North Bend medium mill from participating in any agreement [with Weyerhaeuser], implicit or explicit, to reduce supply and thus raise prices.”11 After accepting the possibility that a court can thus ordain effective competition, it is a small step for the majority to expect that officers and directors chosen by Weyerhaeuser will engage in genuine competition with Weyerhaeuser.12

Most importantly, while the majority concludes with satisfaction that the court order will prevent Weyerhaeuser from harming the public by reducing the production of Weyerhaeuser West Coast, Weyerhaeuser’s *1093directors could be planning to reduce their own production, which would accomplish the same result. Thus, Weyerhaeuser may with the greatest of ease circumvent the restriction that the majority finds of “key importance.”13

In addition to the costs to the public that necessarily flow from a hold-separate order with such obvious deficiencies, the public will bear the costs of eventual divestiture litigation if the merger is found illegal. Alternatively, the public will bear the cost of a merger likely to be anticompetitive in the event that the FTC decides not to expend any more of its limited resources litigating this merger.

As this case demonstrates, to devise an effective hold-separate order and ensure compliance with it a court must risk losing its way in the labyrinth of the business world. “The judiciary is unsuited to affairs of business management; and control through the power of contempt is crude and clumsy and lacking in the flexibility necessary to make continuous and detailed supervision effective.”14 Congress so recognized, and therefore did not include hold-separate orders as an available remedy when it enacted section 13(b). When the FTC satisfies the requirements of 13(b), the statute permits only the issuance of a temporary restraining order or a preliminary injunction barring the merger.

In this case, the FTC did satisfy the requirements for relief under 13(b). The district court found that the proposed merger, which will catapult Weyerhaeuser from seventh largest producer of corrugating medium on the West Coast to the number one position, “will significantly increase concentration in the market; it will result in the elimination of a substantial competitor; and it will increase the likelihood of collusion.” 15 Thus, the district court concluded that the FTC had established a likelihood of success on the merits. A panel of this court characterized this as a “strong” showing that the merger would violate section 7 of the Clayton Act.16

Having found a likelihood of success on the merits, the district court was obliged to balance the equities. “Weighing the equities” traditionally consists of an examination of three of the requirements for obtaining injunctive relief: the harm to the plaintiff if an injunction is not granted, the harm to others from the issuance of an injunction, and the public interest.17 And in any suit for injunctive relief the balance of hardships may be tipped by the strength of the plaintiff’s showing of a likelihood of success on the merits.18

With regard to the first factor, in 13(b) cases Congress mandated a presumption that irreparable harm would occur absent an injunction.19 As for harm to others, Menasha and Weyerhaeuser did not show that consummation of this particular transaction was necessary to prevent any presently existing threat of harm to anyone, and the district court found no such threat. The district court found only that if a preliminary injunction, were granted, Menasha would likely lose the benefit of this particular transaction, to the possible detriment of the company and its stockholders.20

Thus, the only possible harm to others that might result from the issuance of an injunction in this case is purely speculative injury to Menasha’s stockholders and the company.21 But speculative harm is not the *1094basis on which an injunction may be granted, nor can it justify denying a remedy specified by Congress. Just as an injunction “will not be granted against something merely feared as liable to occur at some indefinite time in the future,” 22 an injunction may not be denied merely because someone might possibly be harmed at some time in the indefinite future.23 In almost every merger case stockholders can claim that benefits will be lost if the merger is barred. Indeed, the more illegal the merger, the greater the lost benefits may be. If these losses are the measure of equity, no injunction will ever issue. As the majority acknowledges, this showing of private equities is not sufficient reason to justify denial of an injunction.

The final factor to be weighed is the public interest. Denying an injunction will immediately defeat the public interest in maintaining the status quo pending a final determination on the merits;24 granting an injunction would preserve the status quo. Denying an injunction will immediately eliminate Menasha as a West Coast competitor of Weyerhaeuser, making Weyerhaeu-ser the number one producer of corrugating medium on the West Coast. Granting an injunction would prevent this merger of horizontal competitors, and further the public interest in “arrestpng] anticompetitive tendencies in their ‘incipiency,’ ” the fundamental purpose of the Clayton Act.25

The district court and the majority disregard these immediate effects, and instead make much of the piece of vacant land that Weyerhaeuser will obtain from Menasha as a result of this merger. This land is accorded an almost talismanic significance because Weyerhaeuser is likely to build a new mill on the land some time in the indefinite future. The district court found, and the majority accepts, that if Weyerhaeuser builds the mill, the mill will increase employment in the mill town, as well as increase the supply of linerboard.26 This house of cards would hardly withstand the faintest breeze. What if Weyerhaeuser does not build the mill? What if the mill is unprofitable and fails? What if Weyer-haeuser would have instead invested in another development? What if Weyerhaeuser for some reason cannot build the mill? What if demand for linerboard decreases in the future, and building a new mill makes no economic sense at that indefinite time in the future when a mill would be built?

Even if Weyerhaeuser would build the mill and all the benefits imagined would flow from that mill, granting an injunction instead of denying one might just as likely result in the same benefits. The FTC did not seek an injunction to stop the building of a mill on vacant land, and an injunction would not have that effect. The FTC merely sought an injunction to prevent this particular merger from occurring. The land will not vanish, and Weyerhaeuser made no effort to show a likelihood that only Weyerhaeuser would build a mill or that it would build a better mill or that it would build a mill more quickly than anyone else. In the absence of such a showing, it cannot be said that granting an injunc*1095tion would prevent a mill, or even the best mill possible, from being built. Thus, granting an injunction would not even indirectly prevent the public from receiving any benefits from the vacant land that denying an injunction may permit it to receive.

Nevertheless, the majority concludes that this particular merger is necessary to protect the public interest in Weyerhaeuser’s ownership of this vacant land. The majority then holds that the public interest in benefits — the timing and magnitude of which the district court conceded to be uncertain 27 — from a mill yet to be built outweighs the public interest in enforcement of the antitrust laws. I agree that any mill may be beneficial to the public, but Congress did not delegate to the courts the choice of long-range goals for the general welfare when it enacted 13(b). It is the prerogative of Congress to strike the balance between the public interest in enforcement of the antitrust laws and the general public interest in full employment or a lower inflation rate, or whatever, if those goals are at odds. A merger is not saved “because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial.”28 For the same reason, a court may not refuse to enjoin a merger likely to be illegal in order to further long-range goals it may consider more important than the goals of the antitrust laws. “A value choice of such magnitude is beyond the ordinary limits of judicial competence, and in any event has been made ... by Congress.” 29

I am confounded by the majority’s characterization of what might or might not happen in the indefinite future as “strong equities” favoring denial of a preliminary injunction. I cannot comprehend how a clouded crystal ball view of long-range goals totally unrelated to the policies expressed in the antitrust laws can be used to justify the denial of this injunction. Under the majority’s interpretation of 13(b), it is permissible for a court to find that any public benefit — even one the public might receive in any event and even if of an indefinite magnitude — likely to occur at some indefinite time in the future outweighs the public interest in enforcement of the antitrust laws. Therefore, all a party need do to insulate a merger likely to be illegal is tack a piece of vacant land onto the deal and muster some supporting testimony of possible future benefits. Permitting such creative use of boot can sap the antitrust laws of their vitality and legislative purpose.

The findings of fact by the District Court mandate the issuance of a section 13(b) injunction. The general purpose of a preliminary injunction is to preserve the status quo pending final determination of an action,30 and the Supreme Court “expressly recognized the importance of preliminary injunctive relief to the effective enforcement of the antitrust laws”31 in FTC v. Dean Foods Co.,32 even before Congress did so by enacting 13(b). Acting under 13(b) the FTC specifically demonstrated a strong likelihood of success on the merits. Congress mandated that under 13(b) the court should presume irreparable injury absent an injunction. The district court found no actual harm to others and no harm to the public that would result from the issuance of a preliminary injunction. Denying an injunction immediately destroys the status quo, and granting an injunction would preserve the public interest in preventing anti-*1096competitive mergers. An injunction should have been granted.

I am concerned not just about the consequences of this particular merger. The creative surgery that has been performed on Section 13(b) by the majority will sever preliminary injunctions from the statute. The parties and courts are being told that a hold-separate order is about as good as a preliminary injunction, and that this court will resolve the hard cases arising under 13(b) the easy way. “If parties can count on generous resort to hold separate orders ... they will have a diminished incentive to arrange the acquisition in a manner consistent with the antitrust laws.”33 Acquisition-minded parties will further discover that adorning an acquisition with some vacant land or other appurtenance will permit flouting the prohibitions against mergers that Congress thought it was legislating. Finally, the elevation of the hold-separate order to a worthy remedy under section 13(b) will thrust the courts into an activist supervisory role that ill suits them. Congress never suggested that judges ought to manage the ongoing, day-to-day affairs of business. While the general equitable powers inherent to a court may permit such involvement in rare cases, I see no benefits to anyone in increasing the number of occasions for such involvement. In any event, the plain meaning of section 13(b) does not warrant or allow such a result.

I dissent.

. 15 U.S.C. § 53(b) (1976).

. Browder v. United States, 312 U.S. 335, 338, 61 S.Ct. 599, 601, 85 L.Ed. 862 (1941).

. For example, when Congress enacted the Emergency Price Control Act of 1942, § 205(a), 56 Stat. 23 (1942), it provided for the issuance of permanent or temporary injunctions, restraining orders, “or other orderfs].”

. United States v. Brown Shoe Co., 1956 Trade Cas. ¶ 68,244 (E.D.Mo.1956).

. Both a temporary restraining order and a preliminary injunction are “in form and effect a preliminary restraint.” See Maj. Op. at 1084. I do not understand why Congress would have bothered to specify both of those, but not hold-separate orders, if the majority is correct in its assumption that Congress intended that any form of preliminary restraint could be granted. Instead, it seems logical to assume that the two forms of relief specified in the statute are included because both prevent mergers likely to be illegal, while hold-separate orders were not included because they do not achieve that result. The acknowledged history of hold-separate orders at the time section 13(b) was passed makes the absence of such a remedy from the statute more compelling. I cannot understand how a court can insinuate “several hundred years of history” into a legislative product that neither by its terms nor its history allows such flexibility. See id.

. It is unclear whether the majority would uphold even a hold-separate order under 13(b) when the FTC’s proof of a likelihood of success on the merits is weak, particularly since, in its view, a hold-separate order suffices when the FTC makes a strong showing of a likelihood of success on the merits.

. See Maj. Op. at 1085-87 & nn.30-41.

. For example, Menasha, the corporate entity specified in the hold-separate order, will not exist after today’s decision. Will Menasha’s ghost

report to the court within ten days of entry of this order concerning what, if any, additional management and sales personnel are needed to operate the North Bend Mill as an independent competitor in the West Coast corrugating medium market, and within thirty days of the entry of this order, recruit such personnel, if any, as may be necessary to fill those positions]?]

Joint Appendix (J.A.) 1035B. The district court also ordered Weybuy, which cases to exist with the consummation of the merger, to report plans for expansion within sixty days. J.A. 1035C. These ghosts may haunt the district court, but they are unlikely to file reports, recruit personnel, or plan expansions.

The hold-separate order creates problems for humans as well. What will former Menasha employees do with their Menasha stock, which becomes Weyerhaeuser stock lawfully owned but which, under the hold-separate order, they may not own? See FTC v. Weyerhaeuser Co., 1981-1 Trade Cas. ¶ 63,974, at 76,047 (D.D.C. Mar. 25, 1981) and J.A. 1035B.

. Maj. Op. at 1088.

. Id.

. Id. at 1088-89.

. The directors and officers of Weybuy, the entity created by Weyerhaeuser for the purpose of this merger, will become Weyerhaeuser West Coast’s directors and officers.

. Maj. Op. at 1088.

. United States v. Paramount Pictures, 334 U.S. 131, 163, 68 S.Ct. 915, 932, 92 L.Ed. 1260 (1948).

. 1981-1 Trade Cas. ¶ 63,974, at 76,045.

. FTC v. Weyerhaeuser, 1981-1 Trade Cas. ¶ 63,935, at 75,836 (D.C.Cir. April 7, 1981).

. Washington Metropolitan Area Transit Authority v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C.Cir.1977).

. Id.

. See Maj.Op. at 1082 & n.23 and cases cited; United States v. Siemens Corp., 621 F.2d 499, 506 (2d Cir. 1980).

. 1981-1 Trade Cas. ¶ 63,974, at 76,048.

. See 1981-1 Trade Cas. ¶ 63,935, at 75,837.

. Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 291, 75 L.Ed. 602 (1931).

. See Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 363 U.S. 528, 535, 80 S.Ct. 1326, 1330, 4 L.Ed.2d 1435 (1960); Siemens, 621 F.2d at 506, 510; Dorf-man v. Boozer, 414 F.2d 1168, 1173 (D.C.Cir. 1969). It would fly in the face of reason to find that Congress intended that defendants need not show any threat of actual harm from the granting of an injunction, when the intent of the statute was to ease the burden of the FTC by not requiring it to show irreparable harm in order to obtain an injunction.

. See Holiday Tours, 559 F.2d at 843.

. United States v. Philadelphia National Bank, 374 U.S. 321, 362, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963); see Brown Shoe Co. v. United States, 370 U.S. 294, 317, 322, 82 S.Ct. 1502, 1522, 8 L.Ed.2d 510 (1962).

. 1981-1 Trade Cas. H 63,974, at 76,048. I would note that public equities purportedly weighing against granting an injunction are mentioned in only four sentences of the district court’s opinion.

. 1981-1 Trade Cas. ¶ 63,974, at 76,048; see also id. at 76,047 (“their magnitude remains uncertain”).

. United States v. Philadelphia National Bank, 374 U.S. 321, 371, 83 S.Ct. 1715, 1745, 10 L.Ed.2d 915 (1963).

. Id.

. District 50, United Mine Workers v. International Union, United Mine Workers, 412 F.2d 165, 168 (D.C.Cir.1969).

. Federal Trade Commission v. Exxon Corp., 636 F.2d 1336, 1343 (D.C.Cir.1980).

. 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966).

. Maj.Op. at-n.41.