Brown Shoe Co. v. United States Court Opinion

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510 u. S. SUPREME COURT REPORTS 3 Led 2d

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*[370 US 294]
♦BROWN SHOE CO., Appellant, 

v
UNITED STATES

370 US 294, 8 L ed 2d 510, 82 S Ct 1502 
[No. 4]

Argued December 6, 1961. Decided June 25, 1962.

SUMMARY

The United States brought suit in the United States District Court 
for the Eastern District of Missouri to enjoin the consummation of a 
merger of two corporations engaged in manufacturing and retailing men s, 
women’s, and children’s shoes on the ground that the merger violated § 7 
of the Clayton Act (15 USC §18), which proscribes corporate mergers 
“where in any line of commerce in any section of the country, the effect 
of such acquisition may be substantially to lessen competition, or to tend 
to create a monopoly.” Finding that the lines of commerce involved 
were men’s, women’s, and children’s shoes, that the section of Lie 
country” for manufacturing was the entire nation, that the “section of 
the country” for retailing was every city of 10,000 or more population and 

I. its environs in which both corporations had stores, and that the effect 
of the merger wTould be substantially to lessen competition and tend to 
create a monopoly in such areas, the District Court held that the merger 
violated §7 of the Clayton Act (15 USC §18), and it ordered the 
acquiring corporation to divest itself completely of all stock, share capital, 
assets, or other interests it held in the acquired corporation, to operate 
the acquired corporation to the greatest degree possible as an independent 
concern pending complete divestiture, to refrain thereafter from acquiring 
or having any interest in the acquired corporation’s business or assets, 
and to file with the court within 90 days a plan for carrying into effect 
the decreed divestiture. (179 F Supp 721.)

On appeal, the Supreme Court affirmed. In an opinion by WARREN, 
Ch. J., expressing the views of five members of the Court, it was held 
that (1) the decree was a final judgment and therefore appealable directly 
to the Supreme Court under § 2 of the Expediting Act (15 USC § 29) 
even though it reserved ruling pending the filing of a plan for the divesti­
ture, because the appellants contested the propriety of any divestitui e , 
and (2) the District Court’s findings as to the relevant lines of commerce 
and sections of the country involved, and the effect pf the merger on 
competition therein, were correct.

C l a r k , J., concurring, stated that the decree was appealable, and that

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.11BROWN SHOE CO. v UNITED STATES
370 US 294, S L ed 2d 510, 82 S Ct 1502

« *  «expressed the view tl a ( . f th country” for both manufac-
tvnes and that the relevant section ot tne country iu
taring and retailing was the entire nation.

tj * pr a xt T dissenting in part and concurring in part, stated that 
thf a ^ ’sho'uld be dismissed for lack of jurisdiction because the District 
rourt’s decree was not final, but that if the merits of the case were to be 
fonsidered the merger should be held to violate § 7 of the Clayton Act 

t  S i m  although the relevant “line of commerce” was the weMiiw-
relevant "section of the country” was the

nation as a whole.
Frankfurter and White, JJ., did not participate.

HEADNOTES
Classified to U. S. Supreme Court Digest, Annotated

Appeal and Error §§ 31, 32.3 — from 
District Court — finality — anti­
trust suit.

1. U n d e r  15 USC § 29, p ro v id in g  fo r  
d ire c t  a p p e a ls  to  th e  U n ite d  S ta te s  
S u p rem e C o u rt fro m  fina l ju d g m e n ts  
of F e d e ra l D is tr ic t  C o u rts  in  c iv il 
a n t i t r u s t  s u its  in  w h ich  th e  U n ite d  
S ta te s  is  th e  c o m p la in an t, th e  r ig h t  
o f  rev iew  in  su c h  ca se s  is  lim ite d  to  
ap p e a ls  f ro m  d ec rees  d isp o s in g  o f a ll 
m a tte rs ,  a n d  th e re  is  no  p o ss ib ility  
of a n  a p p e a l in  su ch  ca se s  e i th e r  to  
th e  S u p rem e C o u rt o r to  a  F e d e ra l 
C o u rt o f A p p ea ls  f ro m  a n  in te r lo c u ­
to ry  decree .

d ic tio n  is  a  th re sh o ld  in q u iry  ap p ro ­
p r ia te  to  th e  d isp o s itio n  o f every  case
t h a t  com es b e fo re  th e  C ourt.

’
Appeal and Error § 24 

federal rule.
4. T he' re q u ire m e n t th a t  a  final 

ju d g m e n t sh a ll h av e  been  e n te re d  in  
a  ca se  by a  lo w er c o u r t b e fo re  a  r ig h t  
o f ap p e a l a t ta c h e s  h a s  rem a in ed , w ith  
o ccas io n a l m od ifications, a  c o rn e i-  
s to n e  of th e  s t r u c tu re  of ap p e a ls  m  
th e  fe d e ra l  c o u rts .

finality —

Appeal and Error § 4; Supreme Court 
of the United States § 10 — juris­
diction by consent.

2. T h e  m e re  c o n se n t o f  th e  p a r t ie s  
to th e  U n ite d  S ta te s  S u p rem e C o u rt’s 
c o n s id e ra tio n  a n d  d ec is ion  of a  ca se  
c a n n o t, by  its e lf ,  co n fe r  ju r is d ic t io n  
on th e  c o u rt.

Court of the 
— inquiry into

Courts §14; Supreme 
United States § 1 • 
jurisdiction.

3. A rev iew  of th e  so u rce s  o f th e  
U n ite d  S ta te s  S u p rem e C o u rt’s ju r is -

A ppea l an d  E r r o r  § 23 —  f in a lity  —  
c r ite r io n .

5. T h e  U n ite d  S ta te s  S u p rem e C o u rt 
h a s  a d o p ted  e s se n tia lly  p ra c tic a l  te s ts  
fo r  id e n tify in g  th o se  ju d g m e n ts  w h ich  
a re , a n d  th o se  w h ich  a re  n o t, to  be 
c o n s id e red  “ final,” a p ra g m a tic  a p ­
p ro a c h  to  th e  q u es tio n  of w h a t is  a 
final ju d g m e n t b e in g  e s se n tia l to  th e  
ac h ie v em e n t o f th e  ju s t ,  speedy , an d  
in ex p en siv e  d e te rm in a tio n  o f every  a c ­
tio n , w h ich  is th e  to u c h s to n e  of fe d ­
e ra l  p ro ce d u re .

Courts §§ 16, 774 — jurisdiction — 
previous exercise.

6. W hile  th e  U n ite d  S ta te s  S up rem e 
C o u rt is  n o t bou n d  by p re v io u s 'e x e r -

ANNOTATION REFERENCES

1. Validity, under § 3 of the Clayton Act 
(15 USC §14), of contract by purchaser 
of goods to take his entire requirem ents 
from  the seller. 5 U ed 2d 1105.

2. Contract by one party  to sell his en­
tire  output to, or to take his entire re ­
quirem ents of a commodity from , the other 
p arty  as contrary to public policy or an ti­
monopoly sta tu te . 83 ALR 11<3»

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BROWN SHOE CO. v UNITED STATES
370 US 294, 8 L ed 2d 510, 82 S Ct 1502 

OPINION OF THE COURT
*[370 US 296]

*Mr. Chief Justice Warren deliv­
ered the opinion of the Court.

assets be kept separately identifia­
ble. The merger was then effected 
on May 1, 1956.

I.
This suit was initiated in Novem­

ber 1955 when the Government filed 
. a civil action in the United States 

District Court for the Eastern Dis­
trict of Missouri alleging that a con­
templated merger between the G. R. 
Kinney Company, Inc. (Kinney), 
and the Brown Shoe Company, Inc. 
(Brown), through an exchange of 
Kinney for Brown stock, would vio­
late § 7 of the Clayton Act, 15 USC 
§18. The Act, as amended, pro­
vides in pertinent part:

“No corporation engaged in com­
merce shall acquire, directly or in­
directly, the whole or an]'’ part of 
the stock or other share capital . . . 
of another corporation engaged also 
in commerce, where in ary line of 
commerce in any section of the coun­
try, the effect of such acquisition 
may be substantially to lessen com­
petition, or to tend to create a 
monopoly.”

The complaint sought injunctive 
relief under § 15 of the Clayton Act, 
15 USC § 25, to restrain consumma­
tion of the merger.

A motion by the Government for 
a preliminary injunction pendente 
lite was denied, and the companies 
were permitted to merge provided, 
however, that their businesses be 
operated separately and tnat their

1. Of these over 1,230 outlets under 
Brown’s control a t the tim e of the filing 
of the complaint, Brown owned and oper­
ated over 470, while over 570 were inde­
pendently owned stores operating under 
the Brown “Franchise Program  ’ and over 
190 were independently owned outlets 
operating under the “Wohl P lan.” A store 
operating under the Franchise Program  
agrees not to carry  competing lines of

*[370 US 297]
*In the District Court, the Govern­

ment contended that the effect of 
the merger of Brown—the third 
largest seller of shoes by dollar vol­
ume in the United States, a leading 
manufacturer of men’s, women’s, 
and children’s shoes, and a retailer 
with over 1,230 owned, operated or 
controlled retail outlets1—and Kin­
ney—the eighth largest company, 
by dollar yolume, among those pri­
marily engaged in selling shoes, it­
self a larke manufacturer of shoes, 

;and a retailer with over 350 retail 
outlets—“may be substantially to 
lessen competition or to tend to 
create a monopoly” by eliminating 
actual or potential competition in the 
production of shoes for the national 
wholesale shoe market and in the 
sale of shoes at retail in the Nation, 
by foreclosing competition from “a 
market represented by Kinney’s re­
tail outlets whose annual sales ex­
ceed $42,000,000,” and by enhancing 
Brown’s competitive advantage over 
other producers, distributors and 
sellers of shoes. The Government 
argued that the “line of commerce” 
affected by this merger is “foot­
wear,” or alternatively, that the 
“line[s]” are “men’s,” “women’s,” 
and “children’s” shoes, separately 
considered, and that the “section of 
the country,” within which the anti­
competitive effect of the merger is 
to be judged, is the Nation as a
shoes of other m anufacturers in re tu rn  for 
certain aid from  Brown; a store under the 
Wohl P lan sim ilarly agrees to concentrate 
its purchases on lines which Brown sells 
through Wohl in return  for credit and 
merchandising aid. See note 66, infra . In 
addition, Brown shoes were sold through 
numerous reta ilers operating entirely in­
dependently of Brown.

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520 U. S. SUPREME COURT REPORTS 8 L ed ‘V

whole, or alternatively, each sepa- 
* [370 US 298]

rate city or city and its immediate 
surrounding area in which the par­
ties sell shoes at retail.

In the District Court, Brown con­
tended that the merger would be 
shown not to endanger competition 
if the “line[s] of commerce” and 
the “section [s] of the country” tvere 
properly determined. Brown urged 
that not only were the age and sex 
of the intended customers to be con­
sidered in determining the relevant 
line of commerce, but that differ­
ences in grade of material, quality 
of workmanship, price, and customer s 
use of shoes resulted in establishing; 
different lines of commerce. While 
agreeing with the Government that, 
with regard to manufacturing, the 
relevant geographic market for as­
sessing the effect of the merger updn 
competition is the country as / a 
whole, Brown contended that with 
regard to retailing, the market must 
vary with economic reality from the 
central business district of a large 
city to a “standard metropolitan 
area”2 for a smaller community. 
Brown further contended that, both 

‘ at the manufacturing level and at 
the retail level, the shoe industry 
enjoyed healthy competition and 
that the vigor of this competition 
would not, in any event, be dimin­
ished by the proposed merger be­
cause Kinney manufactured less 
than 0.5% and retailed less than 
2% of the Nation’s shoes.

The District Court rejected the 
broadest contentions of both parties. 
The District Court found that “there 
is one group of classifications which

2. “The general concept adopted in de­
fining a standard  m etropolitan area [is] 
th a t of an in tegrated  economic area with 
a large volume of daily travel and commu­
nication between a central city of 50,000 
inhabitants or more and the outlying parts  
of the area. .  , , Each area  (except in

*[370 US 299]
is understood and recognized *by the 
entire industry and the public—the 
classification into ‘men’s,’ ‘women’s’ 
and ‘children’s’ shoes separately and 
independently.” On the other hand, 
“ [t] o classify shoes as a whole could 
be unfair and unjust; to classify 
them further would be impractical, 
unwarranted and unrealistic.”

Realizing that “the areas of effec­
tive competition for retailing pur­
poses cannot be fixed with mathe­
matical precision,” the District 
Court found that “when determined 
by economic reality, for retailing, a 
‘section of the country’ is a city of 
10,000 or more population and its 
immediate and contiguous surround­
ing area, regardless of name desig­
nation, and in which a Kinney store 
and a Brown (operated, franchise, 
or plan) [3] store are located.”

The District Court rejected the 
Government’s contention that the 
combining of the manufacturing fa­
cilities of Brown and Kinney would 
substantially lessen competition in 
the production of men’s, women’s, or 
children’s shoes for the national 
wholesale market. However, the 
District Court did find that the like­
ly foreclosure of other manufactur­
ers from the market represented by 
Kinney’s retail outlets may substan­
tially lessen competition in the man­
ufacturers’ distribution of “men’s,” 
“women’s,” and “children’s” shoes, 
considered separately, throughout 
the Nation. The District Court also 
found that the merger may substan­
tially lessen competition in retail­
ing alone in “men’s,” “women’s,” and 
“children’s” shoes, considered sepa-

New England) consists of one or more 
entire counties. In  New England, m etro­
politan areas have been defined on a town 
basis ra th e r than  a county basis.” II  US 
Bureau of the Census, United S tates Cen­
sus of Business: 1954, p. 3.

3. See note 1, supra.

?!*?**! T



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f

BROWN SHOE CO.
370 US 294, 8 L ed 

rately, in every city of 10,000 or 
more population and its immediate 
surrounding area in which both a 
Kinney and a Brown store are lo­
cated.

Brown’s contentions here differ 
only slightly from those made be­
fore the District Court. In order 
fully to understand and appraise 
these assertions, it is necessary to

*[370 US 300]
set *out in some detail the District 
Court’s findings concerning the na­
ture of the shoe industry and the 
place of Brown and Kinney within 
that industry.

The Industry. y
The District Court found that al­

though domestic shoe production 
was scattered among a large num­
ber of manufacturers, a small num­
ber of large companies occupied a 
commanding position. Thus, while 
24 largest manufacturers produced 
about 35% of the Nation’s shoes, 
the top 4—International, Endicott- 
Johnson, Brown (including Kinney) 
and General Shoe—alone produced 
approximately 23% of the Nation’s 
shoes or 65% of the production of 
the top 24.

In 1955, domestic production of 
nonrubber shoes was 509.2 million 
pairs, of which about 103.6 million 
pairs were men’s shoes, about 271 
million pairs were women’s shoes, 
and about 134.6 million pairs were 
children’s shoes.4 5 The District 
Court found that men’s, women’s,

4. US Bureau of Census, F acts fo r In ­
dustry, Production, by Kind of Footwear: 
1956 and 1955, Table 1, Production Series 
M31A-06, introduced as D efendant’s Ex­
h ib it MM. The term  “nonrubber shoes” 
includes leather shoes, sandals and play 
shoes, but excludes canvas-upper, rubber- 
soled shoes, athletic shoes and slippers. 
Ibid.

5. These figures are based on the 1954
Census of Business. For th a t enum era­
tion, the Census Bureau classification

v UNITED STATES 521
2d 510, 82 S Ct 1502 

and children’s shoes are normally 
produced in separate factories.

The public buys these shoes 
through about 70,000 retail outlets, 
only 22,000 of which, however, de­
rive 50% or more of their gross re­
ceipts from the sale of shoes and are 
classified as “shoe stores” by the 

*[370 US 301]
Census Bureau.6 These *22,000 shoe 
stores were found generally to sell 
(1) men’s shoes only, (2) women’s 
shoes only, (3) women’s and chil­
dren’s shoes, or (4) men’s, women’s, 
and children’s shoes.

. The District Court found a “defi­
nite trend” among shoe manufac­
turers to acquire retail outlets. For 
example, International Shoe Com­
pany had no retail outlets in 1945, 
but by 1956 had acquired 130; Gen­
eral Shoe Company had only 80 re­
tail outlets in 1945 but had 526 by 
1956; Shoe Corporation of America, 
in the same period, increased its re­
tail holdings from 301 to 842; Mel­
ville Shoe Company from 536 to 947; 
and Endicott-Johnson from 488 to 
540. Brown, itself, with no retail 
outlets of its own prior to 1951, had 
acquired 845 such outlets by 1956. 
Moreover, between 1950 and 1956 
nine independent shoe store chains, 
operating 1,114 retail shoe stores, 
were found to have become subsidi­
aries of these large firms and to have 
ceased their independent operations.

And once the manufacturers ac­
quired retail outlets, the District 
Court found there was a “definite

“shoe stores” included separately  onerated 
leased shoe departm ents of general stores, 
as distinguished from  the shoe depart­
m ents of general stores operated only as 
sections of the la tte r’s general business. 
US Bureau of Census, Retail Trade, Single 
U nits and M ultiunits, BC58-RS3, p. I. 
As described, infra, Brown operated nu­
merous leased shoe departm ents in gen­
eral stores which would be included in the 
Census B ureau’s to ta l of “shoe stores.”

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v* . - ■

BROWN SHOE CO.
, 370 US 294, 8 L ed
about 1% of the national pairage 
sales of men’s shoes; approximately 
4.2 million pairs were of women’s 
shoes or about 1.5% of the national 
pairage sales of women’s shoes; and 
approximately 2.7 million pairs 
were of children’s shoes or about 
2% of the national pairage sales of 
children’s shoes.7

In addition to this extensive re­
tail activity, Kinney owned and 
operated four plants which manu­
factured men’s, women’s, and chil­
dren’s shoes and whose combined 
output was 0.5 % of the national 
shoe production in 1955, making 
Kinney the twelfth largest shoe 
manufacturer in the United States.

Kinney stores were found to ob­
tain about 20% of their shoes from 
Kinney’s own manufacturing plants. 
At the time of the merger, Kinney 

*[370 US 304]
bought no shoes from Brown; *how- 
ever, in line with Brown’s conceded 
reasons8 for acquiring Kinney, 
Brown had, by 1957, become the 
largest outside supplier of Kinney’s 
shoes, supplying 7.9% of all Kin­
ney’s needs.

It is in this setting that the merger 
was considered and held to violate 
§ 7 of the Clayton Act. The District 
Court ordered Brown to divest itself 
completely of all stock, share capital,

7.  Kinney’s pairage sales of m en’s, 
women’s, and children’s shoes were ex­
tracted  from  exhibits submitted to the 
Government in response to its in terroga­
tories. See GX 6, R 4853. These s ta tis ­
tics are virtually  identical to those cited in 
appellant’s brief, w ith but one exception. 
In  its in ternal operations, appellant classi­
fies certain  shoes as “ growing g irls’ ” 
shoes while the cited figures follow the 
Census B ureau’s trea tm en t of such shoes 
as “women’s” shoes.

8. As sta ted  in the testim ony of Clark 
R. Gamble, P resident of Brown Shoe Com­
pany:

“It was our feeling, in addition to

v UNITED STATES 523
2d 510, 82 S Ct 1502 
assets or other interests it held in 
Kinney, to operate Kinney to the 
greatest degree possible as an in­
dependent concern pending complete 
divestiture, to refrain thereafter 
from acquiring or having any in­
terest in Kinney’s business or assets, 
and to file with the court within 90 
days a plan for carrying into effect 
the divestiture decreed. The Dis­
trict Court also stated it would re­
tain jurisdiction over the cause to 
enable the parties to apply for such 
further relief as might be necessary 
to enforce and apply the judgment. 
Prior to its submission of a divesti­
ture plan, Brown filed a notice of 
appeal in the District Court. It 
then filed a jurisdictional statement 
in this Court, seeking review of the 
judgment below as entered.

II.

Jurisdiction.

Appellant’s jurisdictional state­
ment cites as the basis of our juris­
diction over this appeal § 2 of the

*[370 US 305]
Expediting *Act of February 11, 
1903, 32 Stat 823, as amended, 15 
USC § 29. In a civil antitrust action 
in which the United States is the 
complainant that Act provides for 
a direct appeal to this Court from 
“the final judgment of the district

getting  a distribution into the field of 
prices which we were not covering, it was 
also the feeling th a t as Kinney moved into 
the shopping centers in these free standing 
stores, they were going into a higher in­
come neighborhood and they would prob­
ably find the necessity of up-grading and 
adding additional lines to their very suc­
cessful operation th a t they had been doing 
and it would give us an opportunity we 
hoped to be able to sell them  in th a t cate­
gory. Besides tha t, it was a very success­
ful operation and would give us a good 
diversified investm ent to stabilize our 
earnings.” T 1323.

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524 U. S. SUPREME COURT REPORTS 8 L ed 2d

court.”9 (Emphasis supplied.) The 
Government does not contest ap­
pellant’s claim of jurisdiction; on 
the contrary, it moved to have the 
judgment below summarily affirmed, 
conceding our present jurisdiction 
to review the merits of that judg­
ment. We deferred ruling on the 
Government’s motion for summary 
affirmance and noted probable juris­
diction over the appeal. 368 US 
825, 4 L ed 2d 1521, 80 S Ct 1595.10

It was suggested from the bench 
during the oral argument that, since 
the judgment of the District Court 
does not include a specific plan for 
the dissolution of the Brown-Kinney 
merger, but reserves such a ruling 
pending the filing of suggested plans 
for implementing divestiture, the 
judgment below is not “final” as 
contemplated by the Expediting Act. 
In response to that suggestion, both 
parties have filed briefs contending 
that we do have jurisdiction to dis­
pose of the case on the merits in its 
present , posture. However, the 

mere consent of the 
H eadno te  2 parties to the Court’s 

consideration and deci­
sion of the case cannot, by itself, 
confer jurisdiction on the Court. 
See American Fire & Casualty Co. 
v Finn, 341 US 6, 17, 18, 95 L ed 
‘702, 710, 71 3 Ct 534, 19 ALR2d 
738; People’s Bank v Calhoun 
(People’s Bank v Winslow), 102 
US 256, 260, 261, 26 L ed 101, 102; 
Capron v Van Noorden (US) 2

Crunch 126, 127, 2 L ed 229. There­
fore, a review of the 
sources of the Court’s 

Iiead n o te  3 j m-isdietion is a thresh- 
*[370 US 306]

old * inquiry appropriate to the dis­
position of every case that comes 
before us. Revised Rules of the 
Supreme Court, 15(1) (b), 23(1) 
(b) • Kesler v Department of Public 
Safety, 369 US 153, 7 L ed 2d 641, 
82 S Ct 807; Collins v Miller, 252 
US 364, 64 L ed 616, 40 S Ct 347; 
United States v More (US) 3 
Crunch 159, 2 L ed 397.

The requirement that a final 
judgment shall have been entered in 
/a case by a lower court before a 
/right of appeal attaches has an 
/ ancient history in federal practice, 

first appearing in the 
H eadno te  4 Judiciary Act of 1789.11 
H eadno te  5 With occasional modi­

fications, the require­
ment has remained a cornerstone of 
the structure of appeals in the 
federal courts.12 The Court has 
adopted essentially practical tests 
for identifying those judgments 
which are, and those which are not, 
to be considered “final.” See, e. g., 
Cobbledick v United States, 309 US 
323, 326, 84 L ed 783, 785, 60 S Ct 
540; Market Street R. Co. v Rail­
road Com. 324 US 548, 552, 89 L ed 
1171, 1177, 65 S Ct 770; Republic 
Natural Gas Co. v Oklahoma, 334 
US 62, 69, 92 L ed 1212, 1220, 68 
S Ct 972; Cohen v Beneficial In­
dustrial Loan Corp., 337 US 541, 
546, 93 L ed 1528, 1536, 69 S Ct

9. Congress thus lim ited the rig h t of 
review in such cases to an appeal from  a

decree which disposed of all 
H eadno te  1 m atters, and it precluded the 

possibility of an appeal either 
to  th is Court or to a Court of Appeals 
from  an interlocutory decree. United 
S tates v California Co-op. Canneries, 279 
US 553, 558, 73 L ed 838, 842, 49 S Ct 423.

10. A fter prooable jurisdiction had been 
noted, a joint motion of the parties to 
postpone oral argum ent or. the appeal to

the present Term of the Court was g ran t­
ed. 365 US 825, 81 S Ct 711.

11. Section 22, 1 S ta t 84, in its  present
:orm, 28 USC § 1291.

12. Cf. 28 USC § 1292; Fed Rules Civ 
?roc 54(b); 28 USC §1651; Ex parte  
United S tates, 220 US 420, 57 L  ed 281, 
33 S Ct 170; United S tates v United States 
Dist. Court, 334 US 258, 92 L ed 1351, 68 
3 Ct 1035; Beacon Theatres, Inc. v W est­
e r  359 US 500, 3 L ed 2d 988, 79 S Ut
943,

i

1221; D i 
US 121. 1 
620, 82 S
Com. v
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245, 25o

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US 2211 ,
S Ct 6 f
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*M BROWN SHOE CO.
370 US 294, 8 L < d 

>•’•'1 ; Di Bella v United States, 369 
US 121, 124, 129, 7 L ed 2d 614, 617,

f*
h-

620, 82 S Ct 654; cf. Federal Trade
Com. v Minneapolis-Honeywell Reg­
ulator Co. 344 US 206, 212, 97 L ed

is- 245, 252, 73 S Ct 227; United States
«‘S v F. M. Schaefer Brewing Co. 356
iif US 227, 232, 2 L ed 2d 721, 725, 78
n S Ct 674, 73 ALR2d 235. A prag­: * ■ llC matic approach to the question of
!, finality has been considered essential

jit . to the achievement of the “just,
speedy, and inexpensive determina­
tion of every action” :13 the touch­
stones of federal procedure.

Tn most cases in which the Ex- 
neHiting_ Ac.t,Jias been cited "Sinne"

________

the issue of “finality” has not been

■ UNITED STATES 525
d 510, 82 S Ct 1502
334 US 110, 92 L ed 1245, 68 S Ct 
947. The question has generally 
been passed over without comment 

in adjudications on the 
H ead n ote  6 merits. While we are 

not bound by previous 
exercises of jurisdiction in cases in 
which our power to act was not 
questioned but was passed sub silen- 
tio, United States v L. A. Tucker 
Truck Lines, Inc. 344 US 33, 38, 97 
L ed 54, 73 S Ct 67; United States 
ex rel. Arant v Lane, 245 US 166, 
170, 62 L ed 223, 224, 38 S Ct 94, 
neither should we disregard the im­
plications of an exercise of judicial 
authority assumed to be proper for 
over 40 years.14 Cf. Stainback v 

*[370 US 3081
Mo *Hock Ke Lok Po, 336 US 368,

raised or discussed by the parties 379, 380, 93 L ed 741, 749, 750, 69
o**the Court. On but few occasions

*[370 US 307]
have particular ^orders in suits to 
which that Act is applicable been 
considered in the light of claims that 
they were insufficiently “final” so as 
to preclude appeal to this Court. 
Compare Schine Chain Theatres, 
Inc. v United States, 329 US 686, 91 
L ed 602, 67 S Ct 367, with Schine 
Chain Theatres, Inc. v United States,

S Ct 606; Radio Station WOW v 
Johnson, 326 US 120, 125, 126, 89 
L ed 2092, 2097-2099, 65 S Ct 1475.

We think the decree of the Dis­
trict Court in this case had sufficient 

indicia of finality for us 
H ead n ote  8 to hold that the judg­

ment is properly appeal­
able at this time. We note, first, 
that the District Court disposed of

13. Fed Rules Civ Proc 1.
14. See, e. g., United S tates v Reading 

Co. 226 F  229, 286 (DC ED P a), 1 Decrees 
& Judgm ents in Civil Federal A n titru st 
Cases (hereinafter cited “D & J ” ) 575, 
576-577, affd in pertinent part, 253 US 26, 
64 L ed 760, 40 S Ct 425; United S tates 
v N ational Lead Co. 63 F  Supp 513, 534, 
535 (DC SD NY), 4 D & J  2846, 2851, affd 
332 US 319, 91 L ed 2077, 67 S Ct 634; 
United S tates v Timken Roller Bearing 
Co. 83 F  Supp 284, 318 (DC ND Ohio) 
[relevant portions of the decree reprinted 
a t  341 US 593, 602 note 1, 95 L ed 1199, 
1208, 71 S Ct 971], mod 341 US 593, 95 
L ed 1199, 71 S Ct 971; United S tates v 
United Shoe Machinery Corp. 110 F  Supp 
295, 352-354 (DC D M ass), affd 347 US 
521, 98 L ed 910, 74 S Ct 699; United 
States v M aryland & V irginia Milk P ro ­

ducers Asso. 167 F  Supp 799,
Headnote 7 809 (DC DC), affd 362 US

458, 4 L ed 2d 880, 80 S Ct 
847. The Court has also approved the

practice of D istrict Courts of reta in ing  ju ­
risdiction in such cases for fu tu re  modifi­
cations of the ir decrees, a practice which 
has also not been considered inconsistent 
w ith the finality of the original decrees. 
See Associated P ress v United S tates, 326 
US 1, 22, 23, 89 L ed 2013, 2031, 2032, 65 
S Ct 1416; Lorain Journal Co. v United 
S tates, 342 US 143, 157, 96 L ed 162, 173, 
72 S Ct 181. But cf. United S tates v 
Schine Chain Theatres, Inc. 63 F  Supp 
229, 241, 242 (DC WD NY), 2 D & J  1815, 
mod 334 US 110, 92 L ed 1245, 68 S Ct 
947; United S tates v Param ount Pictures, 
Inc. 70 F  Supp 53, 72, 75 (DC SD NY), 2 
D & J  1682, mod 334 US 131, 92 L ed 1260, 
68 S Ct 915, revised in accordance with 
th is Court’s .mandate, 85 F Supp 881, 898­
901, 2 D & j  1690, affd sub nom. Loew s, 
Inc. v United S tates, 339 US 974, 94 L ed 
1380, 70 S Ct 1032, in which review did 
aw ait the entry  of specific and detailed 
provisions for disposition of the defend­
an ts’ assets.

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526 U. S. SUPREME COURT REPORTS 8 L ed 2d

the entire complaint filed by the 
Government. fim X  P f K L  j , f  
relief was passed upon. .Full divest- 
itJSPPW ^W fW PiPW m ey’s stockl t t r i  e u jy
and assets was expressly required. 
Appellant was permanently enjoined 
from acquiring or having any fur­
ther interest in the business, stock 
or assets of the other defendant in 
the suit. The single provision of the 
judgment by which its finality may 
be questioned is the one requiring 
appellant to propose in the immedi­
ate future a plan for carrying into 
effect the court’s order of divestiture. 
However, when we reach the merits 
of, and affirm, the judgment below, 
the sole remaining task for the Dis­
trict Court will be its acceptance of, 
a plan for full divestiture, and the 
supervision of the plan so accepted. 
Further rulings of the District 
Court in administering its decree, 
facilitated by the fact that the de­
fendants below have been required 
to maintain separate books pendente 
lite, are sufficiently independent of, 
and subordinate to, the issues pre­
sented by this appeal to make the 
case in its present posture a proper 
one for review now.15 Appellant 
here does not attack the full divesti­
ture ordered by the District Court 
as such; it is appellant’s contention 

*[370 US 309]
that *under the facts of the case, as 
alleged and proved by the Govern­
ment, no order of divestiture could 
have been proper. The propriety 

of divestiture was con- 
Headnote 9 sidered below and is dis­

puted here on an “all or 
nothing” basis. It is ripe for review

now, and will, thereafter, be fore­
closed. Repetitive judicial consider­
ation of the same question in a single 
suit will not occur here. Cf. Radio 
Station WOW v Johnson, supra (326 
US at 127) ; Catlin v United States, 
324 US 229, 233, 234, 89 L ed 911, 
915, 916, 65 S Ct 631; Cobbledick v 
United States, supra (309 US at 325, 
330).

A second consideration support­
ing our view is the character of the 
decree still to be entered in this suit. 
It will be an order of full divesti­
ture. Such an order requires care­
ful, and often extended, negotiation 
and formulation. This process does 
not take place in a vacuum, but, 
rather, in a changing market place, 
in which buyers and bankers must 
be found to accomplish the order of 
forced sale. The unsettling influ­
ence of uncertainty as to the affirm­
ance of the initial, underlying deci­
sion compelling divestiture would 
only make still more difficult the 
task of assuring expeditious en­
forcement of the antitrust laws.

;stit'ure had been

T h rtt^ J ic  interest, as well as that 
of the parties, would lose by such 
procedure.

15. Cf. F orgay v Conrad (US) 6 How 
201, 12 L ed 401; Carondelet Canal & Nav. 
Co. v Louisiana, 233 US 362, 58 L ed 1001, 
34 S Ct 627; Radio Station WOW v John­
son, 326 US 120, 89 L ed 2092, 65 S Ct 1475; 
Cohen v Beneficial Industrial Loan Corp. 
337 US 541, 98 L ed 1528, 69 S Ct 1221. 
The details of the divestiture which the 
D istrict Court will approve cannot affect 
the outcome of the basic litigation in this

case, as the details of an eminent domain 
settlem ent m ight moot the claims of the 
condemnee in th a t type of suit. See Re­
public N atural Gas Co. v Oklahoma, 334 
US 62, 92 L ed 1212, 68 S Ct 972; Grays 
H arbor Logging Co. v Coats-Fordney Co. 
(W ashington ex rel. Grays Harbor Log­
ging Co. v Superior Ct.) 243 US 251, 61 L 
ed 702, 37 S Ct 295.

n-’T'-"™

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ally i
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■■



BROWN SHOE CO.
370 US 284, 8 L ed 

Lastly, holding the decree of the 
District Court in the instant case 
less than “final” and, thus, not ap­
pealable, would require a departure 
faggrj^sgttled course of tlT6' CUlUUr 
pracHceT™
iWWST- antitrust decrees contem­
plating either future divestiture or 
other comparable remedial action 

*[370 US 310]
prior to the formulation and *entry 
of the precise details of the relief 
ordered. No instance has been 
found in which the Court has re­
viewed a case following a divestiture 
decree such as the one we are asked 
to consider here, in which the party 
subject to that decree has later 
brought the case back to this Court 
with claims of error in the details 
of the divestiture finally approved.16 
And only two years ago, we were 
unanimous in accepting jurisdiction, 
and in affirming the judgment of a 
District Court similar to the one 
entered here, in the only case under 
amended § 7 of the. Clayton Act 
brought before us at a juncture com-

16. The Court has, of course, occasion­
ally reviewed varying facets of single
an titru st cases on separate appeals. How­
ever, such cases are distinguishable from 
the situation a t bar. Thus, one group in­
cludes cases in which the Government first 
sought appellate review from  dismissals 
of its complaints, w hereafter the Court 
considered the orders entered on remand. 
E. g., United S tates v Terminal R. Asso. 
224 US 383, 56 L ed 810, 32 S Ct 507; 
236 US 194, 59 L ed 535, 35 S Ct 408; 
United S tates v E. I. Du Pont de Nemours 
& Co. 353 US 586, 1 L ed 2d 1057, 77 S Ct 
872; 366 US 316, 6 L ed 2d 318, 81 S Ct 
1243. A nother group includes cases in 
which the Government appealed from  w hat 
it considered to be inadequate decrees, in 
which the Court la te r considered the fu r­
the r relief ordered on remand. E. g., 
United S tates v Reading Co. 253 US 26, 
64 L ed 760, 40 S Ct 425, la ter considered 
sub nom. Continental Ins. Co. v United 
States, 259 US 156, 66 L ed 871, 42 S Ct 
540; United States v Param ount Pictures, 
Inc. 334 US 131, 92 L ed 1260, 68 S Ct 915, 
la ter considered sub nom. Loew’s, Inc. v 
United States, 339 US' 974, 94 L ed 1380, 70 
S Ct 1032. And appeals in which the de-

v UNITED STATES 527
2d 510, 82 S Ct 1502 

parable to the instant litigation. 
See Maryland & Virginia Milk 
Producers Asso. v United States, 362 
US 458, 472, 473, 4 L ed 2d 880, 
890, 891, 80 S Ct 847.17 A fear of 
piecemeal appeals because of our 
adherence to existing procedure can 
find no support in history. Thus, 

*[370 US 311]
the substantial body *of precedent 
for accepting jurisdiction over this 
case in its present posture supports 
the practical considerations pre­
viously discussed. We believe a 
contrary result would be inconsist­
ent with the very purposes for which 
the Expediting Act was passed and 
that gave it its name.

III.
Legislative History.

This case is one of the first to 
come before us in which the Govern­
ment’s complaint is based upon al­
legations • that the appellant has 
violated § 7 of the Clayton Act, as 
that section was amended in 1950.18

tails of a divestiture were made a prim ary 
issue have followed the en try  of such or­
ders upon the filing of consent decrees, 
in which the underlying requirem ents of 
divestiture were never previously present­
ed. E. g., Swift & Co. v United States, 
276 US 311, 72 L ed 587, 48 S Ct 311; 
United S tates v Swift & Co. 286 US 106, 
76 L ed 999, 52 S Ct 460; Chrysler Corp. v 
United States, 316 US 556, 86 L ed 1668, 
62 S Ct 1146; Ford Motor Co. v United 
States, 335 US 303, 93 L ed 24, 69 S Ct 93. 
Cf. International H arvester Co. v United 
S tates. 248 US 587, 63 L ed 434, 39 S Ct 5; 
274 US 693, 71 L ed 1302, 47 S Ct 748.

17. Cf. Jerrold Electronics Corp. v U nit­
ed States, 365 US 567, 5 L ed 2d 806, 81 
S Ct 755, affg 187 F  Supp 545, 563-567 
(DC ED P a).

18. M aterial in italics was added by the 
amendments; m aterial in brackets was de­
leted. “No corporation engaged in com­
merce shall acquire, directly or indirectly, 
the whole or any p art of the stock or other 
share capital and no corporation subject 
to the jurisdiction o f the Federal Trade 
Commission shall acquire the whole or any 
part of the assets of another corporatio: 
engaged also in commerce, where in  any



. . .  ... .. . . '■ '■ ■ ■ ■  •■ •■ ■ ■ .■  ' ■

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BROWN SHOE CO. v UNITED STATES
370 US 294, 8 L ed 2d 510, 82 S Ct 1502

SEPARATE OPINIONS

557

*[370 US 355]
*Mr. Justice Clark, concurring.
I agree that so long as the Ex­

pediting Act, 15 USC § 29, is on the 
books we have no alternative but 
to accept jurisdiction in this case. 
The Act declares that appeals in 
civil antitrust cases in which the 
United States is complainant lie 
only to this Court. It thus deprives 

ittfeiffiSilfiSiiii,1" ,p| (Us)nni*foA
.eal and thi 

consideratio , .....
Under our system a party should be 
entitled to at least one appellate re­
view, and since the sole opportunity 
in cases under the Expediting Act 
i® in this Court we usually note 
jurisdiction. A fair consideration of 
the issues requires us to carry out 
the function of a Court of Appeals 
by examining the whole record and 
resolving all questions, whether or 
not they are substantial. This is a 
great burden on the Court and sel­
dom results in much expedition, as 
in this case where 21 years have 
passed since the District Court’s de­
cision. .

On the merits the case presents 
the question of whether, under § 7 
of the Clayton Act, the acquisition 
by Brown of the Kinney retail stores 
may substantially lessen competi­
tion in shoes on a national basis or in 
any section of the country.1 To me 
§ 7 is definite and clear. It prohibits 
acquisitions, either of stock or as­
sets, where competition in any line 
of commerce in any section of the 
country may be substantially les­
sened. The test as stated in the 
Senate Report on the bill is whether 
there is “a reasonable probability” 
that competition may be lessened.

An analysis of the record indi­
cates (1) that Brown, which makes

all types of shoes, is the fourth 
largest manufacturer in the coun­
try ; (2) that Kinney likewise manu­
factures some shoes but deals pri­
marily in retailing, having almost 
400 stores that handle a substantial 

*[370 US 356]
volume *of sales; (3) that its acquisi­
tion would give Brown a total of 
some 1,600 retail outlets, making it 
the second largest retailer in the 
Nation; (4) that Kinney’s stores are 
on both a national and local basis 
strategically placed from a retail 
market standpoint in suburban areas 
or towns of over 10,000 population; 
(5) that Kinney’s suppliers are 
small shoe manufacturers; (6) that 
Brown’s earlier acquisitions, seven 
in number in five years, indicate a 
pattern to increase the sale of Brown 
shoes through the acquisition of in­
dependent outlets, resulting in the 
loss of sales by small competing 
manufacturers; (7) that statistics 
on these outlets indicate that Brown, 
after acquisition, has materially in­
creased its shipments of Brown 
shoes to them, some as much as 
50% ; and (8) that the acquisition 
would have a direct effect on the 
small manufacturers who previously 
enjoyed the Kinney requirements 
market.

It would appear that the relevant 
line of commerce would be shoes of 
all types. This is emphasized by 
the nature of Brown’s manufactur­
ing activity and its plan to integrate 
the Kinney stores into its opera­
tions. The competition affected 
thereby would be in the line handled 
by these stores which is the full 
line of shoes manufactured by 
Brown. This conclusion is more in 
keeping with the record as I read 
it and at the same time avoids the

Ported'on6 th is t ^ o ^ ^ th e r e 0 is n e e ^ to  m onopoly!^  tendency to create ,



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charge of splintering the product 
line. Likewise, the location of the 
Kinney stores points more to a na­
tional market in shoes than a num­
ber of regional markets staked 
by artificial municipal boundaries. 
Brown’s business is on a national 
scale and its policy of integration of 
manufacturing and retailing is on 
that basis. I would conclude, there­
fore, that it would be more reason­
able to define the line of commerce 
as shoes—those sold in the ordinary 
retail store—and the market as the 
entire country.

*[370 US 357]
*On this record but one conclusion 

can follow, i. e., that the acquisition 
by Brown of the 400 Kinney stores 
for the purposes of integrating 
their operation into its manufactur­
ing activity created a “reasonable 
probability” that competition in the 
manufacture and sale of shoes on a 
national basis might be substantial­
ly lessened. I would therefore af­
firm.

Mr. Justice Harlan, dissenting in 
part and concurring in part.

I would dismiss this appeal for 
lack of jurisdiction, believing that 
the case in its present posture is pre­
maturely here because the judgment 
sought to be reviewed is not yet final. 
Since the Court, however, holds that 
the case is properly before us, I 
consider it appropriate, after noting 
my dissent to this holding, to ex­
press my views on the merits be­
cause the issues are of great impor­
tance. On that aspect, I concur in 
the judgment of the Court but do 
not join its opinion, which I consider 
to go far beyond what is necessary 
to decide the case.

Jurisdiction.

ensure speedy disposition of suits in 
equity brought by the United States 

*[370 US 358]
under the Anti-*Trust Act.” United 
States v California Co-op. Canneries, 
279 US 553, 558, 73 L ed 838, 842, 
49 S Ct 423. This major policy con­
sideration emerges clearly from the 
otherwise meager legislative history 
of the Act. See HR Rep No. 3020, 
57th Cong, 2d Sess (1903) ; 36 Cong 
Rec 1679, 1744, 1747. It was in 
keeping with this purpose that “Con­
gress limited the right of review to 
an appeal from the decree which dis­
posed of all matters . . . and
. . . precluded the possibility of
an appeal to either [the Supreme 
Court or the Court of Appeals]
. . . from an interlocutory de­
cree.” United States v California 
Co-op. Canneries (US) supra. For 
it was entirely consistent with its 
desire to expedite these cases for 
Congress to have eliminated the 
time-consuming delays occasioned by 
interlocutory appeals either to inter­
mediate courts or to this Court.

The Court’s authority to entertain 
this appeal depends on § 2 of the 
Expediting Act of 1903. That stat-

By taking jurisdiction over this 
appeal at the present time, despite 
the fact that, even if affirmed, this 
case would doubtless reappear on 
the Court’s docket if the terms of 
the District Court’s divestiture de­
cree are unsatisfactory to the appel­
lant or to the Government, the Court 
is paving the way for dual appeals 
in all government antitrust cases

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OClIT REPORTS S L ed 2d

ute, in its present form, provides
(15 USC § 29): men is 

such i
“In every civil action brought in the *

any district court of the United trail n
States under any of said [antitrust] cratu
Acts, wherein the United States is by no
complainant, an appeal from the lieve '
final judgment of the district court v isit:
will lie only to the Supreme Court.” ing A
(Emphasis added.) now j. 

the acThe Act was passed by a Congress 
which thereby “sought . . .  to

•ment’

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BROWN SHOE CO.
370 US 294, 8 L ed 

/ where intricate divestiture judg­
ments are involved. Whether or not 
such a procedure is advisable from 
the standpoint of judicial adminis­
tration or practical business consid­
erations—and I think such questions 
by no means free from doubt—I be­
lieve that it is contrary to the pro­
visions and purposes of the Expedit­
ing Act, and that the construction 
now given the Act does violence to 
the accepted meaning of “final judg­
ment” in the federal judicial system.

The judgment from which this ap­
peal is taken directs the appellant 
to “relinquish and dispose of the 
stock, share capital and assets” of 
the G. R. Kinney Company and en­
jo in s  further interlocking interests 
between the two corporations. It 
does hot specify how the divestiture 
is to'be carried out, but directs ap- 

*[370 US 359]
pellant to file “a proposed *plan to 
carry into effect the divestiture or­
der” and grants the Government 30 
days following such filing in which 
to submit “opposition or sugges­
tions thereto.” When considered in 
light of the District Court’s opinion, 
this reservation emerges as much 
more than a mere retention of juris­
diction for the purpose of ministeri­
ally executing a definite and precise 
final judgment. See e. g., Ray v Law 
(US) 3 Cranch 179, 2 L ed 404; 
French v Shoemaker (US) 12 Wall 
86, 98, 20 L ed 270, 271. In light of 
this Court’s remarks in United 
States v E. I. Du Pont de Nemours 
& Co., 353 US 586, 607, 608, 1 L ed 
2d 1057, 1074, 1075, 77 S Ct 872, 
the District Court concluded that 
the particular form which the di­
vestiture order was to take was a 
matter which “could have far-reach­
ing effects and consequences,” 179 F 
Supp, at 741, and that it would be 
appropriate for the court to conduct 
hearings on the manner in which the 
Kinney stock ought to be disposed

v UNITED STATES 559
2d 510, 82 S C t 1502 

of by,the appellant. Hence it is not 
farfetched to assume that particu­
lar terms of the remedy ordered by 
the District Court will be contested, 
and that this Court may well be 
asked to examine the details relat­
ing to the anticipated divestiture. 
E. g., United States v E. I. Du Pont 
de Nemours & Co., 366 US 316, 6 
L ed 2d 318, 81 S Ct 1243.

The exacting obligation with re­
spect to the terms of antitrust de­
crees cast upon this Court by the 
Expediting Act was commented up­
on only last Term. In United States 
v E. I. Du Pont de Nemours & Co., 
(US) supra, it was noted that it was 
the Court’s practice, “particularly in 
cases of a direct appeal from the 
decree of a single judge, . . . to 
examine the District Court’s action 
closely to satisfy ourselves that the 
relief is effective to redress the anti­
trust violation proved.” 366 US, at 
323; see International Boxing Club, 
Inc., v United States, 358 US 242, 
253, 3 L ed 2d 270, 278, 79 S Ct 245. 
In the present case the Court and 
the parties know nothing more of 
“this most significant phase of the 
case,” United States v United States 
Gypsum Co., 340 US 76, 89, 95 L ed 
89,101, 71 S Ct 160, than that Brown

*[370 US 360]
will generally be *required to divest 
itself of any interest in Kinney. 
Exactly how this separation is to 
be accomplished has not yet been 
determined, and there is no way of 
knowing now whether both parties 
to the suit will find the decree sat­
isfactory or whether one or both 
will seek further review in this 
Court.

Despite the opportunity thus cre­
ated for separate reviews of these 
kind of cases at their “merits” and 
“relief” stages, the Court holds that 
the judgment now in effect hasi“suf- 
ficient indicia of finality” (pp. 525, 
526, ante) to render it appealable

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now, notwithstanding that the terms 
of the ordered divestiture have not 
yet been fixed. This conclusion is 
based upon three discrete considera­
tions, none of which, in my opinion, 
serves to overcome the “final judg­
ment” requirement of the Expedit­
ing Act, as that term has hitherto 
been understood in federal law.1

8 L ed 2d

First. The Court suggests that, 
any further proceedings to be con­
ducted in the District Court are 
“sufficiently independent of, and sub­
ordinate to, the issues presented by 
this appeal” to permit them to be 
considered and reviewed separately.

m e m * .
___ _ _ _
the"possibility, as did Cohen v Bene­
ficial Industrial Loan Corp., 337 US 
541, 93 L ed 1528, 69 S Ct 1221, and 
Forgay v Conrad (US) 6 How 201, 
12 L ed 404, that a delay in appellate 
review would result in irreparable 

*[370 US 361] _
*harm, equivalent in effect to a denial 
of any review on the point at issue. 
See 337 US, at 546; 6 How, at 204. 
Nor is this a case in which the com­
plaint’s prayers for relief are so di­
versified that the resolution of one 
branch of the case “is independent 
of, and unaffected by, another litiga­
tion with which it happens to be 
entangled.” Radio Station WOW, 
Inc. v Johnson, 326 US 120, 126, 89 
L ed 2092, 2099, 65 S Ct 1475; see 
Carondelet Canal & Nav. Co. v

Louisiana, 233 US 362, 372, 373, 58 
L ed 1001,1005, 34 S Ct 627 ; Forgay 
v Conrad (US) supra.

If the appellant were compelled to 
await the entry of a particularized 
divestiture order before being 
granted appellate review, it would 
suffer no irremediable loss; indeed, 
in this case the merger was allowed 
to proceed pendente lite, so any de­
lay, to the extent that it could affect 
the parties, would benefit the appel­
lant. Nor can it well be suggested 
that the particular conditions under 
which the divestiture is to be exe­
cuted are matters that are only for­
tuitously “entangled” with the mer­
its of the complaint. Despite the 
seemingly mandatory tone of the 

sTon*** “divestiture” judgment now before 
***tfs, the plain fact remains that it is 
m by its otvn terms inoperative to a 

substantial extent until further pro­
ceedings are held in the District 
Court. Unlike the cases relied upon 
by the Court, therefore, this case 
comes up on appeal before the appel­
lant knows exactly what it has been 
ordered to do or not to do. This is 
surely not the type of judgment 
“which ends the litigation on the 
merits and leaves nothing for the 
court to do but execute the judg­
ment.” Catlin v United States, 324 
US 229, 233, 89 L ed 911, 916, 65 
S Ct 631; see Covington v Covington 
F irst Nat. Bank, 185 US 270, 277, 
46 L ed 906, 908, 22 S Ct 645.

Second. The Court finds signifi­
cant the “character of the decree 
still to be entered in this suit.” 
supra, p. 526. Since the order of full 
divestiture requires “careful, and

1. “A final judgm ent is one which dis­
poses of the whole subject, gives all the 
relief th a t was contemplated, provides 
with reasonable completeness, fo r giving
effect to the judgm ent and leaves nothing 
to  be done in the cause save to superin-

tend, m inisterially, the execution of the de­
cree.” Louisa v Levi (CA6 Ky) 140 F2d 
512, 514. See, e. g., G rant v Phoenix Mut. 
L. Ins. Co. 106 US 429, 27 I, ed 237, 1 S Ct 
414; Taylor v Board of Education (CA2 
NY) 288 F2d 600. .



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BROWN SHOE CO.
370 US 294, 8 L ed

often extended, negotiation and for­
mulation-,” ante, p. 526, it is sug­
gested that a delay in carrying out 
its terms might render them im­
practical or unenforceable. Apart

*[370 US 362]
from the fact that this policy con­

sideration is more appropriately ad­
dressed to the Congress than to this 
Court, it appears to me to call for a 
result directly contrary to that 
reached by the Court. For if the 
terms of the divestiture are indeed 
so difficult to formulate and so in­
terrelated with market conditions, 
it is most unlikely that the decree 
to be issued by the District Court f 
will turn out to be satisfactory to, 
both parties. Consequently, on the 
Court’s own reasoning, a second ap­
pearance of this case on our docket 
is not an imaginative possibility but 
a reasonable likelihood. In stating 
that the divestiture portion of this 
judgment “is disputed here on an 
all or nothing’ basis,” and that “it 

is ripe for review now, and will 
thereafter, be foreclosed,” ante, p.’ 
526, the Court can hardly mean that 
either the appellant or the Govern­
ment will be precluded from seeking 
review ,of the divestiture terms if 
it deems them unsatisfactory. In­
deed, neither side on this appeal has 
addressed itself to the propriety of 
the divestiture remedy, as such, that 
!s independents of the question 
whether the merger itself runs afoul 
of the Clayton Act.

v UNITED STATES 5Gt
2d 510, 82 S Ct 1502 
affirmed then an appeal on the ques­
tion of relief is improbable. For 
insofar as complex “negotiation and 
formuJation’’ is a factor, the prob­
ability of an appeal is equally likely 
m either instance.

Moreover, if it is delay between 
formulation of the decree and its 
execution that is thought to be dam­
aging, what reason is there to believe 
that this delay or its hazards will 
be any greater if the entire case is 
brought up here once than if review 
is separately sought from the di­
vestiture decree once its terms have 
been settled? Nor can it be main­
tained that if the merits are now

[8 L ed 2d]—36

, T\ TheCour t ’s final reason 
for holding this judgment appeal­
able is that similar judgments have 
often been reviewed here in the past 
with no issue ever having been 
raised regarding jurisdiction. But
, ,  *[370 US 363]

n Cf ! f  are Region ^ i c h  have 
echoed the answer given by Chief 
Justice Marshall to a contention that 
the Court was bound on a jurisdic­
tional point by its consideration on 
the merits of a case in which the 
jurisdictional question had gone un­
noticed: “No question was made, in 
that case, as to the jurisdiction It 
passed sub silentio, and the court 
does not consider itself as bound by 
7TTs\ Case‘ ’ United States v More 
“W  am 159’ 172’ 2 L ed
m  r i  V United States,
G ^ r A n n o ’ n54’ 30 L ed 207’ 209> 
L S £ f  I A t ; ? ’°'SS v Burke> 146 US 8^, 87, 36 L ed 896, 898, 13 S Ct 22-
Louisville Trust Co. v Knott, 191 Us' 
225, 236, 48 L ed 159, 163, 24 S Ct 
119; New v Oklahoma, 195 US 252, 
256> 49 0L ed 182, 183, 25 S Ct 68; 
United States ex rel. Arant v Lane 
245 US 166, 170, 62 L ed 223 S’
38 S Ct 94; Stainback v Mo Hock Ke 
Lok p 0, 336 US 368, 379, 93 L ed 
741, 749, 69 S Ct 606; United States 

A- Tucker T™ck Lines, Inc. 
344 US 33, 38, 97 L ed 54, 58 73 
S Ct 67. The fact that the Court 
may, in the past, have overlooked 
the lack of finality in some of the 
judgments that came here for re­
view in similar posture to this one 
does not now free it from the re- 
quii ements of the Expediting Act 
Nor does the fact that none of the 
cases reviewed in what now appears

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to have been an interlocutory stage 
was ever appealed again justify dis-- 
regard of the statute. This history 
might point to the desirability of an 
amendment to the Expediting Act, 
but it does not make into a “final 
judgment” a decree which reserves 
for future determination the terms 
of the precise relief to be afforded.

The Court suggests that a “prag­
matic approach” to finality is called 
for in light of the policies of the 
Federal Rules of Civil Procedure, 
which direct the “just, speedy, and 
inexpensive determination of every 
action.” Ante, p. 524. But this mis­
conceives the nature of the issue 
that is presented. Whether this 
judgment is final and appealable is 
not a question turning on the Fed­
eral Rules of Civil Procedure or on 
any balance of policies by this Court. 
Congress has seen fit to make this 
Court, for reasons which are less 
than obvious, the sole appellate tri­
bunal for civil antitrust suits in-' 

*[370 US 364]
"stituted by the United ^States. In so 
doing, it has chosen to limit this 
Court’s reviewing power to “final 
judgments.” Whether the first of 
thesb legislative determinations, 
made in 1903, when appeal as of 
right to this Court was the rule 
rather than the exception, should 
survive the expansion in the Court’s 
docket and the development, pursu­
ant to the Judiciary Act of 1925, of 
this Court’s discretionary certiorari 
jurisdiction, may never have been 
given adequate consideration by the 
Congress.2

2. F or example, the report which ac­
companied the 1925 Act to the floor of the 
Senate said of the cases in which direct 
appeal from  a D istrict Court to the Su­
preme Court was retained: “As is well
known, there are certain  cases which, 
under the presen t law, may be taken di­
rectly from  the d istric t court to the Su­
preme Court. W ithout entering into a 
description of these four classes of cases,

At this period of mounting dock­
ets there is certainly much to be said 
in favor of relieving this Court of 
the often arduous task of searching 
through voluminous trial testimony 
and exhibits to determine whether 
a single district judge’s findings of 
fact are supportable. The legal is­
sues in most civil antitrust cases are 
no longer so novel or unsettled as to 
make them especially appropriate 
for initial appellate consideration by 
this Court, as compared with those 
in a variety of other areas of federal 
law. And under modern conditions 
it may well be doubted whether di­
rect review of such cases by this 
Court truly serves the purpose of 
expedition which underlay the origi­
nal passage of the Expediting Act. 
I venture to predict that a critical 
reappraisal of the problem would 
lead to the conclusion that “expedi­
tion” and also, over-all, more satis­
factory appellate review would be 

*[370 US 3C5]
achieved in *these cases were pri­
mary appellate jurisdiction returned 
to the Court of Appeals, leaving this 
Court free to exercise its certiorari 
power with respect to particular 
cases deemed deserving of further 
review. As things now stand this 
Court must deal with all government 
civil antitrust cases, often either at 
the unnecessary expenditure of its 
own time or at the risk of inadequate 
appellate review if a summary dis­
position of the appeal is made. Fur­
ther, such a jurisdictional change 
would bid fair to satisfy the very 
“policy” arguments suggested by the
it is sufficient to say th a t under the exist­
ing law these . arc cases which m ust be 
heard by three judges, one of whom is a 
circuit judge.” S Rep No. 362, 68th Cong. 
1st Sess 3 (1924). (Em phasis added.) 
This generalization was obviously erro­
neous since the Expediting Act provided 
for direct review in this Court of govern­
ment an titru s t cases decidej by a single 
d istrict judge.

[8 L ed 2d]

Court 
of Ap
eraiiy 
this C 
to hea 
the o 
this < 
again- 
t ween 
come ’ 
were t 
review 
Court.

So 1 
Exped 
mend 
is bom 
for th 
decree 
ion, b« 
judgm 
this ji: 
missed

Sine 
that t!
its pre 
derlyii 
I cot s 
view o 
of the 
which 
Distric 
pared 
or ini] 
Court.

The 
case c 
conci-t 
Court*, 
of the

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Clayto
CUiili)'.- i
monop 
in any 
tainab; 
indefi r, 
§ 7 in.

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. 370 US 294, 8 L ed 

Court in this case. For the Courts 
of Appeals, whose dockets are gen­
erally less crowded than those of 
this Court, would then be authorized 
to hear appeals from orders such as 
the one here in question. Since 
this order grants an injunction 
against interlocking interests be­
tween Brown and Kinney, it would 
come within 28 USC § 1292(a) (1) 
were this not a case “where a direct 
review may be had in the Supreme 
Court.”

563

So long, however, as the present 
Expediting Act continues to com­
mend itself to Congress this Court 
is bound by its limitations, and since 
for the reasons already given the 
decree appealed cannot, in my opin­
ion, be properly considered a “final 
judgment,” I think the appeal, at 
this juncture, should have been dis­
missed.

v UNITED STATES
2d 510, 82 S Ct 1502 

pose to proscribe a combination of 
this sort? Brown contends that in 
finding the merger illegal the Dis­
trict Court lumped together what 
are in fact discrete “lines of com­
merce,” that it failed to define an 
appropriate “section of the coun­
try,” and that when the case is prop­
erly viewed any lessening of com­
petition that may be caused by the 
merger is not “substantial.” For 
reasons stated below, I think that 
each of these contentions is unten­
able.

The Merits.
Since the Court nonetheless holds 

that the judgment is appealable in 
its present form, and since the un­
derlying questions are far-reaching, 
I consider it a duty to express my 
view on the merits. On this aspect 
of the case I join the disposition 
which affirms the judgment of the 
District Court, though I am not pre­
pared to subscribe to all that is said 
or implied in the opinion of this 
Court.

The dispositive considerations 
are, l[ think, found in the “vertical” 
effects of the merger, that is, the 
effects reasonably to be foreseen 
from combining Brown’s manufac­
turing facilities with Kinney’s retail 
outlets. In my opinion the District 
Court’s conclusions as to such effects 
are supported by the record, and 
suffice to condemn the merger under 
§ 7, without regard to what might 
be deemed to be the “horizontal” 
effects of the transaction.

The question presented by this 
case can be stated in narrow and 
concise term s: Are the District
Court’s conclusions that the effect 
of the Brown-Kinney merger may 

*[370 US 366]
*be, in the language of § 7 of the 
Clayton Act, “substantially to lessen 
competition, or to tend to create a 
monopoly” in “any line of commerce 
in any section of the country” sus­
tainable? In other words, does the 
indefinite and general language in 
§ 7 manifest a congressional pur-

1. “Line of Commerce.”—In con­
sidering both the horizontal and ver­
tical aspects of this merger, the Dis­
trict Court analyzed the probable 
impact on competition in terms of 
three relevant “lines of commerce” 
—men’s shoes, women’s shoes, and 
children’s shoes. It rejected 
Brown’s claim that shoes of differ­
ent construction or of different price 
range constituted distinct lines of 
commerce. Whatever merit there 
might be to Brown’s contention that 
the product market should be more 
narrowly defined when it is viewed 
from the vantage point of the ulti­
mate consumer (whose pocketbook, 
for example, may limit his purchase 
to a definite price range), the same 
is surely not true of the shoe manu­
facturer. Although the record con­
tains evidence tending to prove that 

*[370 US 367]
a shoe manufacturing *plant may be

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