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October 21, 1992


The opinion of the court was delivered by: WHITMAN KNAPP


 On October 1, 1991, I granted summary judgment in favor of defendant Goodyear Aerospace Corporation (hereinafter "Goodyear") Irvin Industries v. Goodyear Aerospace Corp. 774 F. Supp 849. On August 3, 1992 the Court of Appeals reversed that decision and remanded for further proceedings "consistent with this opinion." Irvin Indus. v. Goodyear Aerospace Corp., 974 F.2d 241. Familiarity with these opinions is assumed. Presently before me is a renewed motion for summary judgment on the ground that plaintiff was in no way harmed by the unlawful aspect of Goodyear's bid, the ground upon which the motion was originally granted but which - it is contended - the Court of Appeals did not consider. Before this renewed motion may be entertained, it must clearly appear that the Court of Appeals did not pass upon the now reasserted ground. For reasons that follow, I determine that it does clearly so appear and - having reconsidered the merits of my original decision - grant the instant motion.


 The crux of my original decision may briefly be restated as follows: Goodyear's bid of $ 332 can accurately be described as having two separate aspects: (1) because it was less than $ 376 (three hundred and seventy-six), it was lower than plaintiff's; and (2) because it was less than $ 367.16 (three hundred and sixty-seven), it is presumed to be unlawful. The second aspect had nothing whatever to do with plaintiff's loss of the contract. Plaintiff was therefore in no way injured by any unlawful aspect of Goodyear's bid.

 My reading of the Court of Appeal's Opinion convinces me that the Court did not pass upon that proposition. Instead it focused on - and rejected - an argument by Goodyear that, assuming that harm could have resulted from its presumably unlawful bid, such harm had been neutralized by the high probability (amounting to substantial certainty) that, had Goodyear been alerted to the facts that made its bid unlawful, it would have responded with a lawful one and still won the contract. In a conference held an September 3, I advised the parties of my above stated belief. There ensued discussion as to what, if any, corrective proceedings might be appropriate (see Conference Minutes, pp 1-45).

 Two questions are now before me: First, do I correctly read the Court's Opinion as having neither considered nor rejected my above stated ruling? And, if so, was that ruling correct? Plaintiff in its "Memorandum in Opposition to Renewed Summary Judgment" addresses only the first of these questions. I shall address both.


 It will be recollected that the plaintiff's expert accountant, Leslie A. Leiper, testified that in his opinion any Goodyear bid of less than $ 367.16 would have been predatory. I ruled that, in a summary judgment context, such testimony must be accepted as "gospel." However - as above indicated - I also ruled that since plaintiff's bid had been $ 376, plaintiff could in no way have been injured by the circumstance that Goodyear's bid fell below Leiper's estimate. In the course of that ruling, I observed (774 F. Supp at 855):

 Plaintiff's own expert's testimony - which we have accepted as true - is that any bid for the 1986 contract at or above $ 367.16 would have been lawful.

 My intention in citing plaintiff's "own expert's testimony" was to highlight the harmless nature of the presumed unlawful aspect of Goodyear's bid. I now realize that it could be - as indeed it was - interpreted to suggest that Goodyear could by subsequent conduct rectify any harm that might have resulted from the presumed unlawfulness of that bid. Counsel so interpreted my ruling, and tried to sustain it by persuading the Court that Goodyear's subsequent conduct would most certainly have consisted of a bid that met Leiper's standard, but was nonetheless lower than plaintiff's. Counsel never mentioned my actual ruling that the unlawful aspect of Goodyear's bid had never in the first place been harmful to the plaintiff.

 It seems to me beyond cavil that a reading of the Court's opinion demonstrates that it in no way considered my actual ruling. On the contrary, it accepted counsel's interpretation and concentrated on the question of whether or not, as so interpreted, it could be sustained by the argument that whatever harm may have resulted from the presumably unlawful bid had been neutralized by the high probability (amounting to practical certainty) of Goodyear's hypothetical filing of a subsequent bid that would meet Leiper's standard. In describing the reasoning of my decision, the Court observed (slip, at 6097-8):

 The district court reached its finding on causation as follows. First, although Irvin's evidence regarding Goodyear's average variable cost for the BSU-49 rendered Goodyear's bid of $ 332 presumptively unlawful, pursuant to that same evidence any Goodyear bid above $ 367.16 would have exceeded average variable cost and would therefore be lawful. But a lawful Goodyear bid above $ 367 (yet below $ 376) would still have resulted in Irvin's loss of the contract, because Irvin bid $ 376. In other words, the unlawful nature of Goodyear's bid was not the but for cause of Irvin's loss of the contract.

 Two paragraphs later, the Court continued (id., at 6098-9):

 But Goodyear did not submit such a bid. The possibility that it might have submitted a lawful bid, and if so, the same damage might have resulted, cannot in and of ...

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