common knowledge of the short term nature of the wartime demand destroys competition in the market
How later courts described this case
- common knowledge of the short term nature of the wartime demand destroys competition in the market
- comparison of contractor’s profits to those of his competitors
- risks must be ittore than speculative to be considered
- Source Book statistics on profitability of firms in same manufacturing category rejected in renegotiation case; no showing of relative character, efficiencies or risks of other companies
Written by the judges who cited it.
The opinion
on dependant’s motion for rehearing en banc pursuant TO RULES 7(D) AND 161
February 4,1977
ORDER
Before Davis, Judge, Presiding, Laramore, Senior Judge, and Bennett, Judge,
This case comes before the court on defendant’s motion, filed December 3, 1976, for rehearing en banc pursuant to Rules 7(d) and 151 [see ante at 1, 543 F. 2d 97 .] Upon consideration thereof, together with the response in opposi *50 tion thereto, without oral argument, by the seven active judges of the court as to the suggestion for rehearing en bane under Eule 7(d), the suggestion is denied. The case has further been so considered by the panel listed above as to the motion for rehearing under Eule 151.
Plaintiff, in its response opposing defendant’s suggestion, has requested a clarification “as to whether [the court] deducted the added costs for tooling expenses and building construction * * * before it made its assessment of one-half of the earnings actually realized.” The court affirms that it did allow as a renegotiable expense and did deduct the $78,500 amount, relating to plaintiff’s special tools and new building. What is apparently confusing plaintiff is its perception that the court intended to let it retain about 50 percent of its renegotiable profits (a figure calculated, of course, by first subtracting all renegotiable expenses, including the $78,500 sum). The court, however, did not allow plaintiff to keep one-half of its earnings, but rather concluded to leave it “with fully one-half of the rate of earnings it actually realized * * ante at 48, 543 F. 2d at 124 . (Emphasis added.) Plaintiff, then should have been, and was, allowed to retain slightly more than one-half of its renegotiable profit rate, 16 percent out of 30.2 percent excluding GFP, and 11 percent out of 21.9 percent including GFP.
it is therefore ordered that defendant’s said motion for rehearing be and the same is denied.