Acting in one of the largest anti trust cases in recent times, the Supreme Court upheld yesterday the reversal of the conviction of the four largest manufacturers of gypsum board for price-fixing over a 13-year period.
But the Justice Department remains free to seek a new trial of the firms, which accounted for national sales of about $3.8 billion - 75 percent of the total - in the period 1960 to 1973.
The department may decide in coming weeks whether to re-try United States Gypsum Co., National Gypsum Co., Georgia-Pacific Corp., and the Celotax Corp.
Along with two other producers of gypsum board, which since World War 11 has replaced gypsum plaster as the primary material for internal walls of all types of buildings, the companies were indicted along with several of their officers in 1973. The other producers, Kaiser Gypsum Co. and Flintkote Co. pleaded no contest and were fined $50,000 each.
A jury convicted the four companies in 1975 after a 19-week trial which generated issues that figured in a reversal by a divided 3d U.S. Circuit Court of Appeals and in yesterday's affirmance by the High Court.
One issue involved the exchange of price information called "verification." The goverment charged that the exchange furthered a conspiracy to fix or stabilize prices in violation of the Sherman Act of 1890.
But the defendents said that in freely volunteering information among themselves about prices, terms and conditions of sale, methods of delivery, and other matters affecting market stability, they were "meeting competition" - which is permitted under another law, the Robinson-Patman Act, that has the general aim of preventing price discrimination.
The jury agreed with the goverment that the "meeting competition" provision of Robinson-Patman could not be a defense to an exchange of price information that is illegal under Sherman.
The appeals court disagreed by a 2 to 1 vote. On this issue, a divided Supreme Court, with an opinion by Chief Justice Warren E. Burger, reversed.
A second issue was whether the trial judge adequately instructed the jury concerning the rules for establishing the involvement of each defendant in the conspiracy.
Two of the appeals judges agreed that the trial judge erred in telling the jury that an effect on prices resulting from an agreement to exchange price information amounted to a Sherman Act violation even if the sole purpose of engaging in such exchanges was to establish a defense to price discrimination charges.
The Supreme Court stopped short of that. While saying that intent is a neccessary element of criminal anti-trust violation, Burger also said, "we conclude that action undertaken with knowledge of it probable consequences and having the requisite anti-competitive effects can be a sufficient predicate for a finding of criminal liability . . ."
Putting it another way, he said, "Where carefully planned and calculated conduct is being scrutinzed in the context of a criminal prosecution, the perpetrator's knowledge of the anticipated consequences" is sufficient to find criminal intent.