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LEWES DAIRY, INC. v. FREEMAN

No. 16528.

401 F.2d 308 (1968)

LEWES DAIRY, INC., and Clifford S. Ott, and James M. Faulkner, individually and as co-partner doing business as Hollybrook Dairy, a co-partnership v. Orville L. FREEMAN, as Secretary of Agriculture, Appellant.

United States Court of Appeals Third Circuit.

Decided September 25, 1968.

Rehearing Denied November 19, 1968.

Attorney(s) appearing for the Case

Richard S. Salzman, Civil Div., Appellate Section, U. S. Dept. of Justice, Washington, D. C. (Carl Eardley, Acting Asst. Atty. Gen., Alexander Greenfeld, U. S. Atty., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Andrew B. Kirkpatrick, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, Del. (James M. Tunnell, Jr., Wilmington, Del., on the brief), for appellees.

Before STALEY, Chief Judge, and KALODNER and FORMAN, Circuit Judges.

OPINION OF THE COURT

FORMAN, Circuit Judge.

This is the second time the Secretary of Agriculture appeals from an order of the United States District Court for the District of Delaware which held invalid certain minimum pricing provisions of Milk Marketing Order No. 161 on the ground that, as applied to Lewes Dairy, Inc.,2 they created a prohibited "trade barrier". The Order in question, promulgated...

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