The opinion of the court was delivered by: CONNER
On June 30, 1981, following a five-month jury trial involving complicated issues of antitrust liability, this Court entered judgment in favor of plaintiffs ("Litton") against defendants ("AT&T") in the amount of $276,774,729. That judgment, as amended on July 20, 1981, was unanimously affirmed by the Court of Appeals for the Second Circuit on February 3, 1983. Litton Systems, Inc. v. American Tel. & Tel. Co., 700 F.2d 785 (2d Cir. 1983), reh. denied, March 30, 1983. AT&T then filed in the Supreme Court a petition for writ of certiorari, which is currently pending.
The case is presently before the Court on AT&T's motion to enforce this Court's Order, dated November 20, 1981, staying execution of the judgment pending further judicial review. Litton has cross-moved to have the Court amend the judgment to reflect the new post-judgment interest rate provided for in the Federal Courts Improvement Act of 1982, 28 U.S.C. § 1961(a). For the reasons stated below, AT&T's motion is granted and Litton's motion is denied.
In anticipation of an inevitable period of appellate review of the $276 million dollar award, the parties on November 19, 1981 entered into a stipulation to stay execution of the judgment and to waive the filing of a supersedeas bond. The Court embodied the parties' stipulation in its November 20, 1981 Order, which provided, inter alia, that:
Any execution of the amended judgment entered by this Court on July 20, 1981 . . . [is] hereby stayed during the period within which a Notice of Appeal may be filed from that judgment and, upon the filing of a Notice of Appeal, for a period of niney-one (91) days after entry of an order by the Second Circuit affirming or modifying the judgment, or dismissing the appeal, or if a petition for review to the Supreme Court is filed by defendants, until ten (10) days after entry of any dispositive order in plaintiff's favor by the Supreme Court.
Concerned that Litton was about to take steps to execute the judgment as soon as 91 days had elapsed from the date of the Second Circuit's original decision affirming the judgment, AT&T on May 3, 1983 filed its motion to enforce this Court's prior stay order.On May 4, 1983, the parties appeared before the Court to state their contentions as to whether Litton was free under the November 20, 1981 stay order to execute the judgment after the 91-day period had run, but before AT&T's time to file a petition for a writ of cerrtiorari had expired. This difference in the two time periods resulted because the 91-day period incorporated in the stay commenced as of February 3, the date of the Second Circuit's decision to affirm the judgment, while the 90-day period provided in 28 U.S.C. § 2101(c) for filing a petition for a writ of certiorari ran from March 30, the date on which the Court denied AT&T's motion for a rehearing. On the basis of the parties' presentations at the conference, the Court entered an Interim Order continuing the prior stay but granted Litton leave to file formal papers in opposition to AT&T's motion. Between the time of that conference and the date of this Opinion, AT&T has filed its petition in the Supreme Court.
After considering the parties' additional submissions, the Court is persuaded that its Interim Order was providently entered and that Litton should be stayed from execution of the judgment until ten days after entry of a dispositive order by the Supreme Court. As an initial matter, I reject Litton's argument that the Second Circuit's refusal to stay its mandate for 90 days, as requested by AT&T in a motion under Rule 41(b), F.R.App.P., conclusively determines the issue before this Court. Rather, as I noted during the May 4 conference, the Second Circuit's decision to deny AT&T's motion without opinion should be construed only as a procedural ruling on the need for an extension of the time provided under Rule 41(b) and not as an adjudication as to the effect of this Court's order of November 20, 1981. Thus, the construction of the stay order is left for this Court to determine.
Litton argues that under the plain language of the November 20 stay, it was free to execute the judgment 91 days after the Court of Appeals' February 3 decision, unless AT&T filed a petition for a writ of certiorari before the 91-day period had elapsed. Plaintiffs contend further that under any other reading of the language of the Order, the 91-day limitation would be rendered ineffective.
The stay's terms, however, are not as crystalline as Litton assumes. While the Court recognizes that by use of the 91-day figure the parties, as well as the Court, must have contemplated that the 90-day periods for petitioning the Supreme Court pursuant to 28 U.S.C. § 2101(c) and for abstention from execution of the judgment following the Second Circuit's ruling would expire simultaneously, that desired symmetry was upset by the filing of a petition for a rehearing.This created an ambiguity in the conditions of the stay which failed to provide expressly for this contingency. It is far from clear that the terms of that Order should be interpreted, as Litton insists, effectively to require AT&T to file its petition in the Supreme Court within 90 days, even though it is statutorily entitled to additional time.
Litton's sharply focused interpretation ignores the alternative provision contained in the Order, which allows for a continuance of the stay until 10 days after a disposition by the Supreme Court and is not subject to the 90-day limitation. Thus, to further the stay's obvious goal of permitting full judicial review of this case prior to execution of the massive judgment, it seems sensible to give effect to that alternative provision, rather than the 90-day limitation. The stay should thus remain effective until the expiration of AT&T's time for filing a petition for a writ of certiorari. Since AT&T did, in fact, timely file a petition on June 29, 1983, Litton will be stayed from execution of the amended judgment until 10 days after entry of any dispositive order in plaintiff's favor by the Supreme Court.
B. Amendment of the Judgment
Regardless of the stay, Litton has moved the Court to amend the judgment to allow for interest at a rate calculated pursuat to the new procedure provided by the Federal Courts Improvement Act of 1982. Prior to 1982, 28 U.S.C. § 1961 provided that post-judgment interest on a civil judgment of a federal district court would be computed at the rate established by State law. In April 1982, § 1961 was rewritten to provide that, effective October 1, 1982, interest on federal court judgments would be computed at the "coupon issue yield equivalent . . . of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment." 28 U.S.C. § 1961(a).
According to Litton, as of June 19, 1981, the date of the last ...