William O. Douglas

“ Finding that the trade secret was 'property' subject to the court's control and that the secrecy which was the heart of the applicant's interest in that property might be totally destroyed, the court allowed intervention under 24 (a) (3) .
But the claims of California and the Southern California Edison Co. in these cases lie far beyond the reach of even the most imaginable construction of 24 (a) (3) . To be sure, the assets of El Paso are 'property which is in the custody or subject to the control or disposition of the court' for purposes of the Rule. ”

“ The gas reserves granted the New Company must be no less in relation to present existing reserves than Pacific Northwest had when it was independent; and the new gas reserves developed since the merger must be equitably divided between El Paso and the New Company. We are told by the intervenors that El Paso gets the new reserves in the San Juan Basin-which due to their geographical propinquity to California are critical to competition in that market. But the merged company, which discovered them, represented the interests both of El Paso and of Pacific Northwest. ”

“ If El Paso does not dispose of the New Company stock under the first alternative, it is to dispose of the New Company stock 'by one or more sales to the public.' At such public offering no El Paso officer or director and no owner of El Paso's capital stock, in excess of one-half of one percent of the total shares outstanding, shall be permitted to purchase New Company stock. ”

“ Thus, there is a danger that major El Paso stockholders may, subsequent to the exchange or public offering, purchase large blocks of New Company stock and obtain effective control. Thus, there has been no studied attempt to ensure the swift severance of the illegal combination or to make sure that the New Company's stock does not end up controlled by El Paso interests. Disposition of all of the stock with all convenient speed is necessary and conditions must be imposed to make sure that El Paso interests do not acquire a controlling interest. ”

“ The Court's standard of 'adequate representation' comes down to this: If, after the existing parties have settled a case or pursued litigation to the end, some volunteer comes along who disagrees with the parties' assessment of the issues or the way they have pursued their respective interests, intervention must be granted to that volunteer as of right. ”

“ But the 'interest' in these assets relied upon by the appellants to justify intervention is merely their preference that certain of the assets, particularly the San Juan Basin reserves, end up in the hands of New Company rather than El Paso, on the theory that such an allocation may be conducive to greater gas competition in California. These general and indefinite interests do not even remotely resemble the direct and concrete stake in litigation required for intervention of right. ”

“ To permit volunteers to intervene and second-guess the Justice Department is especially inappropriate when the issues involved, like those in the antitrust field, require technical experience and an assessment and balancing of interests essentially administrative and political. Formulation of effective and consistent government antitrust policy is unlikely to result from 'piecemeal intervention of a multitude of individual complainants' [31] in litigation brought by the Government. ”

“ And it is not a proper basis for deciding how stock in the New Company should be marketed, or how gas reserves in New Mexico should be divided. In its zeal to censure the District Judge and reprimand the Justice Department, the Court has reshed headlong into a jurisprudential quagmire far more dangerous than the 'evil' it purports to discern in the decree entered by the trial court. ”

“ The other traditional basis for intervention under 24 (a) (3) derives from interpleader practice; when a number of persons possess claims to a fund which are or may be mutually exclusive, intervention is allowed a claimant. Thus, in Oliver v. United States, 156 F.2d 281 (C.A.8th Cir.) , the United States had acquired certain land and deposited the purchase price in court to be divided among the various owners. A title insurance company which asserted a claim to the proceeds, based on services rendered to the sellers, was allowed to intervene. ”

“ Moreover, the stock of West Coast Transmission Co., Ltd., was ordered sold for the benefit of El Paso. Pacific Northwest had owned about a fourth of West Coast Transmission's stock and that ownership gave Pacific Northwest, it is said, special insight into and access to the Canadian gas supply. These factors, implicating the ability of Pacific Northwest to perform in the future, give Cascade, it is argued, standing to intervene.
Under old Rule 24 (a) (3) those 'adversely affected' by a disposition of property would usually be those who have an interest in the property. ”

“ El Paso carried the day, obtained a decree that promises to perpetuate rather than terminate this unlawful merger, and that threatens to turn loose on the public a New Company unable to maintain the competitive role that Pacific Northwest filled before this illegal transaction took place.
The convenience of El Paso would be the easier choice. The enforcement of our mandate and § 7 of the Clayton Act is the harder one; but that is the criterion we follow. ”

“ But in the absence of outright fraud, it has never been thought that the fact that parties have initially resorted to the courts gives judges power to set aside later settlement agreements and impose others on the parties. ”

“ This and other amendments to the Federal Rules of Civil Procedure were promulgated by this Court to 'take effect on July 1, 1966, and * * * govern all proceedings in actions brought thereafter and also in all further proceedings in actions then pending * * *.' 383 U.S. 1031. Since the District Court denied Cascade's motion to intervene in 1965, before the effective date of the amended Rule, the new Rule was inapplicable to Cascade's motion. [24] But even if the new Rule were applicable, neither Cascade nor the other appellants could claim intervention of right under it. ”