444 U.S. 1093 (1980)

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U.S. Supreme Court

BERKEY PHOTO, INC. v. EASTMAN KODAK CO , 444 U.S. 1093 (1980)

444 U.S. 1093


No. 79-427

Supreme Court of the United States

February 19, 1980

On petitions for writs of certiorari to the United States Court of Appeals for the Second Circuit.

The petitions for writs of certiorari are denied.

Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins, dissenting.

An obviously carefully considered opinion of the Court of Appeals comprising 99 pages in a separate appendix to the petition for certiorari in this case, dealing as it does with the complexities, refinements, and contradictions embodied in the decisional law construing 1 and 2 of the Sherman Act is obviously not an attractive candidate for review under our discretionary certiorari jurisdiction. Nonetheless, I do not

Page 444 U.S. 1093 , 1094

think we may "let this cup pass from us" unless we are prepared to forgo the opportunity to review some propositions enunciated by the Court of Appeals in this case which strike me as little less than bizarre.

Mr. Justice BLACKMUN would grant certiorari and set the cases for oral argument.

One of the principal issues decided by the Court of Appeals was the obligation of respondent and cross-petitioner Kodak to "predisclose" information about its camera and film system to competing camera manufacturers prior to offering such camera and film for sale to the public. As to the camera market issues, the Court of Appeals held that Kodak had no such obligation, but as to the photofinishing and photofinishing equipment markets, the Court of Appeals held that Kodak violated 2 of the Sherman Act by using its market power over films and cameras to obtain a competitive advantage with respect to photofinishing and photofinishing equipment. 603 F.2d 263, 279-285, 304. And as to the joint development project, the court held that Kodak violated 1 of the Sherman Act by including in the agreement a nondisclosure provision, even though Kodak made an investment of millions of dollars in the project that presumably was essential to its success.

To one not schooled in the niceties of antitrust litigation, the notion that a statute designed to foster competition requires one competitor to disclose to another, in advance of marketing a product to the general public, its plan to introduce the new product, is difficult to fathom. And this Court has held as recently as United States v. Grinnell Corp., 384 U.S. 563 (1966), that it is not a violation of 2 of the Sherman Act for a business with monopoly power to achieve "growth or development as a consequence of a superior product, business acumen, or historic accident." 384 U.S., at 570-571-1704. I should think this reasoning is equally applicable to the alleged violation of 1 of the Sherman Act which the Court of Appeals also dealt with in its opinion. [444 U.S. 1093 , 1095]

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