Gulf Oil Corp. v. Copp Paving Co., Inc.
419 U.S. 186 (1974)

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U.S. Supreme Court

Gulf Oil Corp. v. Copp Paving Co., Inc., 419 U.S. 186 (1974)

Gulf Oil Corp. v. Copp Paving Co., Inc.

No. 73-1012

Argued October 21-22, 1974

Decided December 17, 1974

419 U.S. 186

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Respondent operators of a California "hot plant," at which asphaltic concrete for surfacing highways is manufactured and sold entirely intrastate, alleging violations of, inter alia, § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act (hereafter § 2(a)), and §§ 3 and 7 of the Clayton Act, brought suit against petitioner liquid asphalt producers and two of their subsidiaries, to which such asphalt is sold and which use it to manufacture and sell asphaltic concrete in competition with respondents. Section 2(a) forbids "any person engaged in commerce, in the course of such commerce" to discriminate in price "where either or any of the purchases involved in such discrimination are in commerce" and the discrimination has substantial anticompetitive effects "in any line of commerce." Section 3 makes it unlawful "for any person engaged in commerce, in the course of such commerce" to make tie-in sales or enter exclusive dealing arrangements where the effect "may be to substantially lessen competition or tend to create a monopoly in any line of commerce." And § 7 forbids certain acquisitions by a corporation "engaged in commerce" of the assets or stock "of another corporation engaged also in commerce" where the effect may be substantially to lessen competition "in any line of commerce in any section of the country." The District Court held that it had no jurisdiction of the claims because the market for asphaltic concrete is exclusively and necessarily local, but the Court of Appeals reversed, holding that the jurisdictional requirements of §§ 2(a), 3, and 7 were satisfied by the fact that sales of asphaltic concrete are made for use in interstate highways.

Held:

1. The fact that interstate highways are instrumentalities of commerce does not render petitioners' conduct with respect to a material sold for use in constructing these highways "in commerce" as a matter of law for purposes of §§ 2(a), 3, and 7 of the Clayton Act. Overstreet v. North Shore Corp.,318 U. S. 125, and Alstate Construction Co. v. Durkin,345 U. S. 13, distinguished. Pp. 419 U. S. 193-199.

Page 419 U. S. 187

2. The "in commerce" language of the Robinson-Patman and Clayton Act provisions in question does not extend on an "effects on commerce" theory to petitioners' sales and acquisitions. Pp. 419 U. S. 199-203.

(a) In face of the longstanding judicial interpretation of the language of § 2(a) requiring that "either or any of the purchases involved in such discrimination [be] in commerce," as meaning that § 2(a) applies only where "at least one of the two transactions which, when compared, generate a discrimination . . . cross[es] a state line,'" Hiram Walker, Inc. v. A & S Tropical, Inc., 407 F.2d 4, 9; Belliston v. Texaco, Inc., 455 F.2d 175, 178, and the continued congressional silence on the subject, this Court is not warranted in extending § 2(a) beyond its clear language to reach a multitude of local activities hitherto left to state and local regulation. Pp. 419 U. S. 199-201.

(b) The "effects on commerce" theory, whereby §§ 3 and 7 of the Clayton Act would be held to extend to acquisitions and sales having substantial effects on commerce, even if legally correct, fails here for want of proof, since respondents presented no evidence of effect on interstate commerce from the use of asphaltic concrete in interstate highways. Pp. 419 U. S. 201-203.

487 F.2d 202, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a concurring opinion, post, p. 419 U. S. 203. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 419 U. S. 204.

Page 419 U. S. 188

MR. JUSTICE POWELL delivered the opinion of the Court.

This case concerns the jurisdictional requirements of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 49 Stat. 1526, [Footnote 1] 15 U.S.C. § 13(a), and of §§ 3 and 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. §§ 14 and 18. It presents the questions whether a firm engaged in entirely intrastate sales of asphaltic concrete, a product that can be marketed only locally, is a corporation "in commerce" within the meaning of each of these sections, and whether such sales are "in commerce" and "in the course of such commerce" within the meaning of §§ 2(a) and 3 respectively. The Court of Appeals for the Ninth Circuit held these jurisdictional requirements satisfied, without more, by the fact that sales of asphaltic concrete are made for use in construction of interstate highways. 487 F.2d 202 (1973). We reverse.

I

Asphaltic concrete is a product used to surface roads and highways. It is manufactured at "hot plants" by combining, at temperatures of approximately 375

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