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August 8, 1978

BERKEY PHOTO, INC., Plaintiff,

The opinion of the court was delivered by: FRANKEL


Defendant moves variously for a new trial, to amend the judgment, and for reargument of its motion for judgment notwithstanding the verdict. Some of the contentions made in this fashion are merely stated, not argued in any substantial sense, and may be left for full airing elsewhere. The questions that seem to merit treatment here, and their resolution, are as follows.


 Perhaps the headiest of the subjects now presented, for the first time in this long litigation, is a cluster of constitutional issues as to Section 2 of the Sherman Act and Section 4 of the Clayton Act, on their face to some degree but more particularly as applied in this case.

 In its broadest form, defendant's attack on § 2 of the Sherman Act as void for vagueness on its face would rewrite nearly a century of history, solid precedent, and scholarship. The refutation of this most sweeping position is amply outlined in plaintiff's opposing papers. The court sees no benefit in tarrying over the principles and authorities that seem so decisively opposed to defendant's views.

 Approaching the narrower, more pointed effort to show that § 2 must be held void for vagueness in its application to this private action, defendant says that it "does not here challenge the application of the antitrust laws in cases like Alcoa *fn1" or United Shoe, *fn2" nor * * * contend that the results reached there were necessarily unconstitutional." *fn3" Those were decisions by judges, defendant argues, and involved merely equitable relief, not huge damage claims. It is one thing the argument runs, to have Judges manipulate concepts like "honestly industrial," "exclusionary," and "anticompetitive," for purposes of decreeing future changes in the lives of large corporations. It is something quite different to unleash a Jury under such concepts to consider large money claims "that Retrospectively punish conduct newly found to violate the law." *fn4"

 In light of defendant's steady insistence upon the limited capacities and understanding of lay jurors, it is fair to recall again at this final stage that the preference for a jury was defendant's, not plaintiff's. As for the notion of "retrospectivity," however close defendant now comes to accepting Alcoa and United Shoe as not "necessarily unconstitutional," both were clearly more striking glosses on existing law than anything decided in this case. Yet even as to Alcoa, and its In haec verba endorsement by the Supreme Court in American Tobacco Co. v. United States, 328 U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946), the claim that a fundamental alteration in the law of monopolization was effected has been squarely rejected. See, Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 495-502, 88 S. Ct. 2224, 20 L. Ed. 2d 1231 (1968). In the latter decision, rejecting the contention that damages could be awarded only from the date of American Tobacco, the Court stressed the basic historical continuity in the interpretation of the Sherman Act, stretching back to 1912, and found ancient precedent for the rule that the conduct element of the monopolization offense does not require proof of conduct not honestly industrial. Id. at 496, 88 S. Ct. 2224. The Court concluded that there had been no "sharp break" with the line of earlier authority, and that there were no prior decisions justifying potential antitrust defendants'

"thinking that then current antitrust doctrines permitted them to do all acts conducive to the creation or maintenance of a monopoly, so long as they avoided direct exclusion of competitors or other predatory acts." (Footnote omitted.)

 Id. at 499, 88 S. Ct. at 2234. *fn5"

 The Court therefore found it unnecessary to consider whether criminal due process doctrines, such as those relied upon by the present defendant, barred an award of damages for years prior to 1946, there being no

"clearly declared judicial doctrine upon which * * * (the defendant) relied and under which its conduct was lawful, a doctrine which was overruled in favor of a new rule according to which conduct performed in reliance upon the old rule would have been unlawful."

 Id. at 496, 88 S. Ct. at 2233. Similarly we need not consider whether the present case denied defendant due process, for no radical or even significant transmutation of the law was worked herein.

 The court's instructions to the jury in the instant case reflect a direct application of the principles of Alcoa and United Shoe. The novelty of this application, which the defendant protests so vigorously, lies only in the set of facts to which these principles are applied. As defendant itself argues, antitrust offenses are at root an outgrowth of the law of torts. It is a fundamental tenet of tort law that the application of settled general rules to novel or unique fact situations by a trier of fact does not create any constitutional infirmity. Triers of fact, including most commonly juries, routinely determine civil liabilities by deciding whether a general standard such as reasonable care was observed or breached by a particular course of conduct. No one would seriously tender the argument that a tort judgment was infirm because no precedent gave warning that the particular factual pattern would be deemed grounds for liability.

 Defendant's constitutional thesis about what "lay jurors or business people" must be deemed incapable of understanding would draw into desperate question a large portion of the grave business to which jurors attend daily in our system. The complaints as defendant makes them, about the lack of "objective or explicit standards," *fn6" about the jury's being commissioned "to consider and weigh in an undefined manner" an array of evidentiary factors, *fn7" about the "subjective" form in which terms like "exclusionary" and "anticompetitive" were used *fn8" such complaints, if accepted, would have meant a jury trial of a case like this one was doomed from its inception for fatal vagueness. It would also mean that much else that juries do is unacceptable ...

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