P brought suit against Alcoa (D) and Aluminum Limited (D) for conspiring with foreign companies to form a monopoly in the manufacture and sale of aluminum ingots. After April 2, 1906, the technical barriers to entry into the aluminum business fell by the wayside as anyone could manufacture aluminum by the Hall process. P alleged that Alcoa entered into four successive 'cartels' with foreign manufacturers of aluminum by which, in exchange for certain limitations upon its import into foreign countries, it secured covenants from the foreign producers, either not to import into the United States at all, or to do so under restrictions, which in some cases involved the fixing of prices. P filed suit against 'Alcoa' on May 16, 1912, in which a decree was entered by consent on June 7, 1912, declaring several of these covenants unlawful and enjoining their performance; and also, declaring invalid other restrictive covenants obtained before 1903 relating to the sale of alumina. It is undisputed that from 1912 until 1938, 'Alcoa' continued to be the single largest producer of 'virgin' ingot in the United States. In 1937, P again filed suit claiming monopolistic behavior. There are various ways of computing 'Alcoa's' control of the aluminum market- as distinct from its production- depending upon what one regards as competing in that market. The judge figured its share- during the years 1929-1938, inclusive- as only about thirty-three percent. If, on the other hand, 'Alcoa's' total production, fabricated and sold, be included, and balanced against the sum of imported 'virgin' and 'secondary,' its share of the market was in the neighborhood of sixty-four percent for that period. A percentage of over ninety- results only if we both include all 'Alcoa's' production and exclude 'secondary.' That percentage is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly, thirty-three percent is not. The trial court ruled for Ds in finding that it controlled only 33% of the marketplace and dismissed the case. P appealed. The Supreme Court referred the case to his appeals court as it was unable to obtain a quorum of six justices.