District Court may not enter a "consent" judgment in a civil
antitrust case where the Government, seeking relief to which it may
be entitled after trial, does not agree to the terms of such
judgment. Pp. 376 U. S.
Vacated and remanded.
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This appeal raises the question of whether and under what
circumstances a District Court may properly enter a "consent"
judgment in a civil antitrust suit without the consent of the
Government and without trial of certain disputed issues.
On July 21, 1961, the Government filed a civil complaint
] in the United
States District Court for the Middle
Page 376 U. S. 328
District of Florida. The complaint charged the five appellee
bakery companies with violating § 1 of the Sherman Act, 26 Stat.
209, as amended, 15 U.S.C. § 1, [Footnote 2
] by conspiring:
"(a) To allocate among themselves the business of supplying
bakery products (defined as bread and rolls) to the United States
Naval installations in the Jacksonville area; and"
"(b) To submit noncompetitive, collusive, and rigged bids and
price quotations for supplying bakery products to United States
Naval installations in the Jacksonville area."
The Government sought relief, including an adjudication that the
companies had violated the Act, an injunction against allocating
business or fixing prices in the supplying of bakery products to
United States naval installations in the Jacksonville area, and
"such further, general, and different relief as the nature of the
case may require and the Court may deem appropriate in the
On May 8, 1962, after an extensive period of settlement
negotiations, the bakery companies filed with the court a proposed
form of judgment which would have enjoined the companies from
"(a) Submit noncompetitive, collusive or rigged bids, or
quotations for supplying bakery products to United States Naval
installations in the Jacksonville area,
Page 376 U. S. 329
"(b) Allocate, divide or rotate the business of supplying bakery
products to United States Naval installations in the
(Emphasis added.) The proposed judgment would also have required
the companies to include sworn statements of noncollusion in each
bid for bakery products submitted to any naval installations in the
Jacksonville area for the following three
The District Court ordered the Government to show cause "why the
said proposed judgment . . . should not be entered." The Government
replied, objecting "to confining the scope of the injunction to
bids for supplying bread and rolls to United States Naval
Installations in the Jacksonville area" and "to limiting the
requirement . . . that bids be accompanied by sworn statements of
non-collusion, to a three year period."
The bakery companies then filed an amended motion for entry of
consent judgment, containing two significant changes in their
original proposal. Its scope was broadened to include all bakery
products, not only bread and rolls, and to include all sales to the
United States, not only to its naval installations in the
Jacksonville area. Subsequently at the hearing on the order to show
cause, the companies agreed to increase, from three to five years,
the period during which they were to submit sworn statements of
The Government opposed entry of the amended proposed consent
judgment on the ground that it still omitted two necessary items of
"(1) a general injunction against conspiring to fix the price of
bakery products to any third party other than the Government, and
(2) an injunction against urging or suggesting to any seller of
bakery products the quotation or charging of any price or other
terms or conditions of sale of bakery products. "
Page 376 U. S. 330
Despite these objections, the District Court entered the amended
"consent" judgment proposed by the companies. The judgment recited
that it was entered "without trial or adjudication of any of the
issues of fact or law herein and before the taking of any
testimony. . . ." In his opinion accompanying the entry of
judgment, the district judge said:
"The demand of the plaintiff as to the inclusion of the two
controversial provisions in its tendered judgment does not have a
reasonable basis under the circumstances here present. . . . Based
upon this court's knowledge of the facts involved in Case No.
11677-Crim-J and this record, the proposed judgment which the court
is entering provides all the relief to which the plaintiff would be
entitled after the entry of a decree pro confesso
each defendant and after a trial on the allegations of this
complaint. . . . The mere fact that a court has found a defendant
has committed an act in violation of a statute does not justify an
injunction broadly to obey the statute, and thus subject the
defendant to contempt proceedings if he shall at any time in the
future commit some new violation unlike and unrelated to that with
which he was originally charged."
The Government, pursuant to § 2 of the Expediting Act, 32 Stat.
823, as amended, 15 U.S.C. § 29, appealed directly to this Court
from the entry of judgment. Probable jurisdiction was noted. 374
U.S. 803. We conclude that the additional relief sought by the
Government had a reasonable basis under the circumstances, and
that, consequently, the District Court erred in entering the
"consent" judgment without the Government's actual consent.
This Court has recognized that a "full exploration of facts is
usually necessary in order [for the District Court]
Page 376 U. S. 331
properly to draw [an antitrust] decree" so as "to prevent future
violations and eradicate existing evils." Associated Press v.
United States, 326 U. S. 1
326 U. S. 22
After a District Court has concluded that a conspiracy in restraint
of trade exists, it:
"has the duty to compel action by the conspirators that will, so
far as practicable, cure the ill effects of the illegal conduct,
and assure the public freedom from its continuance. Such action is
not limited to prohibition of the proven means by which the evil
was accomplished, but may range broadly through practices connected
with acts actually found to be illegal. Acts entirely proper when
viewed alone may be prohibited. The conspirators should, so far as
practicable, be denied future benefits from their forbidden
conduct. . . . [R]elief, to be effective, must go beyond the narrow
limits of the proven violation."
United States v. United States Gypsum Co., 340 U. S.
, 340 U. S. 88
340 U. S. 90
would be a rare case where all the facts necessary for a trial
court to decide whether a disputed item of relief was warranted
could be determined without an "opportunity to know the record."
at 340 U. S. 89
This is not such a case.
The dispute here concerned whether the injunction should include
prohibitions against (1) price-fixing in sales to parties other
than the United States Government, and (2) "urging or suggesting to
any seller of bakery products the quotation or charging of any
price or other terms or conditions of sale of bakery products."
The conspiracy alleged in the complaint was a particularly
flagrant one. The complaint charged specifically that:
"Representatives of the defendants held meetings and conferred
by telephone for the purpose of allocating
Page 376 U. S. 332
among the defendants the business of supplying bakery products
to United States Naval installations in the Jacksonville area. The
business was allocated in such a manner as to provide each
defendant with the business for a designated quarterly period of
the year. When invitations to bid were received from the Naval
installations in the Jacksonville area, said representatives would
again meet and confer and the representatives of the defendant
designated for the particular period would declare the prices which
that defendant intended to bid. The others would agree to bid
higher prices, and thus protect the bid of the designated low
As this Court has said:
"Acts in disregard of law call for repression by sterner
measures than where the steps could reasonably have been thought
340 U.S. at 340 U. S. 89
The acts here alleged could not, under any theory, have been
"It is a salutary principle that, when one has been found to
have committed acts in violation of a law, he may be restrained
from committing other related unlawful acts."
Labor Board v. Express Pub. Co., 312 U.
, 312 U. S.
The allegedly illegal acts were surrounded by "circumstances,"
United States v. United States Gypsum Co., supra,
340 U. S. 89
which did not preclude the possibility that the relief sought by
the Government would be warranted. In fact, the circumstances
tended to support the view that the practices which the Government
sought to enjoin were "connected" with and "related" to practices
which the companies may in the past have followed. The Government
informed the District Court that,
"on June 27, 1962, a federal grand jury in Philadelphia indicted
the defendant Ward Baking Company on a charge of conspiring with
five other baking companies to fix the prices of 'economy' bread
sold in the Philadelphia-Trenton
Page 376 U. S. 333
The record before the District Court showed, moreover, that four
of the defendants had previously pleaded nolo contendere
to charges of conspiring to fix prices on sales to
accounts, such as "grocery stores,
supermarkets, restaurants, hotels and similar large purchasers."
Thus, the surrounding circumstances suggest the possibility of a
conspiracy reaching beyond the Jacksonville area, beyond bread and
rolls, and, most significantly, beyond sales to the Government.
Against this background, it cannot reasonably be assumed that
the Government could not, at the trial, have introduced evidence
justifying, in whole or in part, the relief sought. [Footnote 3
] This is not to say, of course,
that the District Court could not correctly have concluded, after
trial and an "opportunity to know the record and to appraise the
need for prohibitions or affirmative actions," United States v.
United States Gypsum Co., supra,
at 340 U. S. 89
that the requested relief was not warranted. Under the
circumstances of this case, however, it could not so conclude
without a trial. [Footnote
Page 376 U. S. 334
Since we conclude that there was a bona fide
disagreement concerning substantive items of relief which could be
resolved only by trial, we need not, and do not, reach appellees'
contention that, where there is agreement on every substantive item
of relief, insistence by the Government upon an adjudication of
guilt as a condition to giving its consent to a judgment would
conflict with the congressional policy embodied in § 5 of the
Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 16. [Footnote 5
] Compare United States
v. Brunswick-Balke-Collender Co., 203 F.
. We decide only that, where the Government seeks an
item of relief to which evidence adduced at trial may show that it
is entitled, the District Court may not enter a "consent" judgment
without the actual consent of the Government. There is nothing in
the language or legislative history of § 5 of the Clayton Act
indicating that Congress intended to give a defendant the privilege
of rejecting the bona fide
demands of the Government, and,
at the same time, avoiding an adjudication on the merits of the
complaint. The companies argued before the District Court that they
should not be "foreclosed from a
Page 376 U. S. 335
right to go to trial if [the District Court decides] to enter
the Government's Decree." Nor should the Government be foreclosed
from that same right where, as here, the District Court decides,
over the Government's objection, to enter the companies' proposed
Accordingly, the judgment is vacated and the case is remanded
It is so ordered.
In March, 1961 an indictment had been returned against the five
bakery companies charging them with violating the Sherman Act by
committing substantially the same acts as were charged in the
subsequent civil complaint. Four of appellee companies, and two
other companies, had also been charged with conspiring to fix the
price of bread and rolls on sales to nongovernment wholesale
accounts, defined as "grocery stores, supermarkets, restaurants,
hotels and similar large purchasers. . . ." All the defendants
submitted, over the objection of the Government, pleas of nolo
and fines were imposed. The same judge presided in
both the criminal and civil cases.
The companies were also charged with violating the False Claims
Act, Revised Statutes §§ 3490, 3491, 3492, 5438, as amended, 31
U.S.C. §§ 231-233, derived from Act of March 2, 1863, 12 Stat. 696.
This was settled by a payment of $44,000.
The disputed provisions certainly may be regarded as within the
general scope of the relief sought in the complaint, which included
a request for
"such further, general, and different relief as the nature of
the case may require and the Court may deem appropriate in the
It should be noted in this regard that the companies did accede
to a number of government demands which went beyond the violations
charged or the specific relief requested.
It is not contended that this would have been a proper case for
the entry of summary judgment. The critical question was whether
the Government could produce evidence at trial warranting the
relief sought. The companies claim, however, that, if the
Government had such evidence, it should have produced that evidence
in response to the District Court's order to show cause why the
companies' proposed consent judgment should not be entered. The
show cause order cannot properly be read as a demand that the
Government detail or tender the evidence it proposed to offer at
trial. The Government's response, which specified its legal and
factual objections to the entry of the proposed decree and informed
the court of the Philadelphia-Trenton indictment, ante
376 U. S.
-333, was a full and satisfactory response to the
show cause order.
The Clayton Act, § 5(a), 38 Stat. 731, as amended, 15 U.S.C. §
16, provides as follows:
"A final judgment or decree heretofore or hereafter rendered in
any civil or criminal proceeding brought by or on behalf of the
United States under the antitrust laws to the effect that a
defendant has violated said laws shall be prima facie
evidence against such defendant in any action or proceeding brought
by any other party against such defendant under said laws or by the
United States under section 15a of this title, as to all matters
respecting which said judgment or decree would be an estoppel as
between the parties thereto: Provided,
That this section
shall not apply to consent judgments or decrees entered before any
testimony has been taken or to judgments or decrees entered in
actions under section 15a of this title."