William O. Douglas

“ United States, supra, is its inexorable potentiality for and even certainty in destroying competition in retail sales of gasoline by these nominal 'consignees' who are in reality small struggling competitors seeking retail gas customers. ”

“ We are enlightened on present-day marketing methods by recent congressional investigations. In the automobile field the price is 'the manufacturer's suggested retail price,' [3] not a price coercively exacted; nor do automobiles go on consignment; they are sold. [4] Resale price maintenance of gasoline through the 'consignment' device is increasing. [5] The 'consignment' device in the gasoline field is used for resale price maintenance. The theory and practice of gasoline price fixing in vogue under the 'consignment' agreement has been well exposed by Congress. ”

“ The company, pursuant to the 'consignment' agreement, sets the prices at which the retailer sells the gasoline. While 'title' to the consigned gasoline 'shall remain in Consignor until sold by Consignee,' and while the company pays all property taxes on all gasoline in possession of Simpson, he must carry personal liability and property damage insurance by reason of the 'consigned' gasoline and is responsible for all losses of the 'consigned' gasoline in his possession, save for specified acts of God. ”

“ To allow Union Oil to achieve price fixing in this vast distribution system through this 'consignment' device would be to make legality for antirust purposes turn on clever draftsmanship. We refuse to let a matter so vital to a competitve system rest on such easy maipulation. Cf. United States v. Masonite Corp., 316 U.S. 265, 280, 62 S.Ct. 1070, 86 L.Ed. 1461.
Hence on the issue of resale price maintenance under the Sherman Act there is nothing left to try, for there was an agreement for resale price maintenance, coercively employed. ”

“ These laws protect the victims of the forbidden practices as well as the public.' The fact that, on failure to renew a lease, another dealer takes Simpson's place and renders the same service to the public is no more an answer here than it was in Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458. For Congress, not the oil distributor, is the arbiter of the public interest; and Congress has closely patrolled price fixing whether effected through resale price maintenance agreements or otherwise. ”

“ Notes
↑ As of December 31, 1957, Union Oil supplied gasoline to 4,133 retail stations in the eight western States of California, Washington, Oregon, Nevada, Arizona, Montana, Utah and Idaho. Of that figure, 2,003 stations were owned or leased by Union Oil and, in turn, leased or subleased to an independent retailer; 14 were company-operated training stations ”

“ One who sends a rug or a painting or other work of art to a merchant or a gallery for sale at a minimum price can, of course, hold the consignee to the bargain. A retail merchant may, indeed, have inventory on consignment, the terms of which bind the parties inter se. ”

“ Yet the consignor does not always prevail over creditors in case of bankruptcy, where a recording statute or a 'traders act' or a 'sign statute' is in effect. 4 Collier, Bankruptcy (14th ed.) , pp. 1090-1097, 1484-1486. The interests of the Government also frequently override agreements that private parties make. ”

“ If that were a defense, a supplier could regiment thousands of otherwise competitive dealers in resale price maintenance programs merely by fear of nonrenewal of short-term leases.
We made clear in United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505, that a supplier may not use coercion on its retail outlets to achieve resale price maintenance. We reiterate that view, adding that it matters not what the coercive device is. United States v. ”