# Matsushita Electric Industrial Co. v. Zenith Radio Corp. > Court of Appeals for the Third Circuit · July 7, 1980 · 631 F.2d 1069 URL: https://www.frixlaw.com/law-library/cases/8912199 ## Case - **Full name:** In re JAPANESE ELECTRONIC PRODUCTS ANTITRUST LITIGATION. MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD. Matsushita Electronics Corp. Toshiba Corp. Sharp Corp. Sony Corp. Matsushita Electric Trading Co., Ltd. Mitsubishi Corp. Matsushita Electric Corp. of America Quasar Electronics Corp. Toshiba America, Inc. Sharp Electronics Corp. Mitsubishi International Corp. Sony Corp. of America and Motorola, Inc. v. ZENITH RADIO CORP. and National Union Electric Corp. - **Court:** Court of Appeals for the Third Circuit - **Decided:** July 7, 1980 - **Citations:** 631 F.2d 1069 - **Precedential status:** Published - **Opinion:** Dissent by Gibbons - **Judges:** Gibbons, Maris, Seitz - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8912199 ## Opinion text GIBBONS, Circuit Judge, dissenting. I dissent in this ease with a good deal less confidence in my position than in most cases in which the majority has failed to persuade me. Chief Judge Seitz’s excellent exposition of the difficult issue of jury comprehension of complex litigation is highly persuasive. Still, in the end I conclude that the majority has substituted for an express guarantee in the Bill of Rights a rule of district court discretion that in practice will be virtually unreviewable, and therefore largely unfettered. Between Judge Becker’s opinion in the district court and that of Chief Judge Seitz here, enough has been written that an extended separate statement is hardly appropriate. I will therefore only summarize the areas of agreement and disagreement between us. I. First, I agree that this case is complex. Three objective manifestations of complexity are present: the predicted length of trial; the multiplicity of factual issues which may have to be resolved; and the conceptual difficulty of the governing law. However, all three manifestations of complexity are for the most part products of the liberal joinder rules of the Federal Rules of Civil Procedure and of the district court’s ruling consolidating two multi-count cases for trial. Neither the liberal joinder rules nor the rule permitting consolidation for trial are required by any provision of the Constitution. The seventh amendment guarantees a jury trial of any separate claim for relief which would have been tried to a jury at common law. It does not guarantee that a single jury will decide multiple separate claims. If by virtue of joinder and consolidation a case becomes too complex for a single jury to handle, the remedy mandated by the seventh amendment is separate juries, as at common law. Thus we should not even consider the constitutional issue which the majority undertakes to decide in the form in which it has been presented here, because we are considering not the actual constitutional issue, but a hypothetical construction of a series of procedural rulings. As I see it, the only seventh amendment issue is whether on any separate claim for relief by one plaintiff against one defendant the case would be too complex for decision by a jury. A plaintiff insisting on a jury trial obviously must fore-go the economic and procedural advantages of liberal joinder of claims and of parties if such joinder makes the case too complex for a single jury. A defendant insisting on a jury trial must, I think, be in a position to insist that the plaintiff break down his case to the separate components that it would have presented at common law. Breaking the case down to its separate components obviously would produce inefficiencies in the judicial process. But the provisions of the Bill of Rights which limit the way in which the federal courts conduct their business are designed to promote values other than efficiency. The inefficiencies which those provisions impose on the system are a small price to pay for the vindication of the values which the Bill of Rights advances. 1 It is axiomatic that constitutional law pronouncements should be avoided unless the order appealed from clearly requires that they be made. 2 I see the constitutional *1092 issue involved in this case in a much narrower context than does the majority. That issue would only be properly presented to this court if a single claim for relief against a separate defendant would be too complex for jury consideration. It is not presented by the order appealed from, which contemplates the trial of multiple claims by separate plaintiffs against multiple defendants. Indeed, by considering the constitutional implications of the district court’s order, we decide a false issue, namely, whether by virtue of the joinder and consolidation permitted by the Federal Rules Enabling Act, 28 U.S.C. § 2072 (1976), a ease can be made so complex that the constitutional right to jury trial, protected by the seventh amendment, must yield. The majority purports to resolve the narrower issue of whether any single case properly tried to a single jury can be so complex that the seventh amendment right may be overridden. But that question is not presented on this record. It is not ripe for decision because it is presented hypothetically. Our acceptance of an interlocutory appeal under 28 U.S.C. § 1292 (b) does not, moreover, decide what issues the panel must consider. 3 The trial court never determined whether after the case is broken down into the separate components in which it would be presented at common law it would or would not be too complex. Therefore, I would vacate the order granting leave to take an interlocutory appeal and wait for a case which actually presents the seventh amendment complexity issue in what I believe to be its actual rather than its hypothetical dimensions. II. While my position with respect to ripeness might well dictate silence as to the merits, it seems likely that further review will be sought. An expression of my views on the merits, in the quite conceivable event that the Supreme Court disagrees with my ripeness analysis, may facilitate such review. If I were to reach the merits, then, my position on the issues discussed by Chief Judge Seitz would be as follows: A. I would join in Part III, holding that there is no applicable statutory guarantee of jury trial. B. I would join in Part IV, holding that the famous and enigmatic footnote in Ross v. Bernhard, 396 U.S. 531 , 538 n.10, 90 S.Ct. 733, 738 , 24 L.Ed. 729 (1970), is not disposi-tive. C. I would join in Subparts A, B and C of Part V, which reject the contention that we can find guidance for the solution of the seventh amendment-complexity problem in eighteenth century precedents. D. I do join in Parts VIII and IX of the majority opinion. E. I do not join in Parts VI and VII. If the issue were properly ripe for decision I would be prepared to hold that I cannot conceive of a case in which what would be a separate claim for relief at common law, sufficiently comprehensible to a trial judge to satisfy due process, would be too complex for trial to a jury. There may be such a case, but it is inconceivable to me that it could be recognized as such in the absence of a trial record. I have, however, a more serious disagreement with the majority. The court has now authorized pretrial denials of demands for jury trial in suits at common law “on due process grounds ... in exceptional cases when the court, after careful inquiry into the factors contributing to complexity, determines that a jury would be unable to understand the case and decide it rational *1093 ly.” Majority opinion at 1089. The majority opinion attempts to objectify the factors that bear upon complexity, but in the end the factors which are identified will permit the exercise of trial court discretion. I fear that the exercise of that discretion will sometimes be influenced by unarticulated sympathies for or hostilities toward the underlying policies sought to be advanced in the lawsuit. Trial court discretion, moreover, in any practical sense will be completely unreviewable. The majority suggests that an erroneous denial of jury trial can be remedied before trial by a writ of mandamus. Majority opinion at 43. That remedy is hardly adequate, since formalistic application of the factors mentioned by the majority will result in a holding that the trial court acted within the bounds of its permissible discretion. In the event of a post-trial appeal on the ground that a demand for jury trial was erroneously denied, the pressure on an appellate tribunal not to order retrial of an otherwise error-free trial in a complex case will, I suspect, inevitably be irresistible. I would be less uncomfortable with the majority’s rule if interlocutory review were available as a matter of right. 4 Part of my difficulty with the majority’s position probably results from a perception of the nature of the judicial process and the role of juries in that process. It is often said that the judicial process involves the search for objective truth. We have no real assurance, however, of objective truth whether the trial is to the court or to a jury. The judicial process can do no more than legitimize the imposition of sanctions by requiring that some minimum standards of fair play, which we call due process, are adhered to. In this legitimizing process, the seventh amendment is not a useless appendage to the Bill of Rights, but an important resource in maintaining the authority of the rule of law. In the process of gaining public acceptance for the imposition of sanctions, the role of the jury is highly significant. The jury is a sort of ad hoc parliament convened from the citizenry at large to lend respectability and authority to the process. Judges are often prone to believe that they, alone, can bear the full weight of this legitimizing function. I doubt that •they can. Any erosion of citizen participation in the sanctioning system is in the long run likely, in my view, to result in a reduction in the moral authority that supports the process. In light, therefore, of the important functions served by the seventh amendment’s protection of the right to a trial by jury, I would hold that there is no case in which properly separated claims for relief cognizable at common law would be so complex that trial by jury would amount to a violation of due process. . The particular value of the seventh amendment is discussed in Part II E, infra. . Hagans v. Lavine, 415 U.S. 528, 546-47 , 94 S.Ct. 1372, 1383-84 , 39 L.Ed.2d 577 (1974); *1092 Ashwander v. Tennessee Valley Auth.; 297 U.S. 288, 346-48 , 56 S.Ct. 416, 482-81 , 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 193 , 29 S.Ct. 451, 455 , 53 L.Ed. 753 (1909). . Chapter X, Part F of the Internal Operating Procedures of the Third Circuit provides: A certification under 28 U.S.C. § 1292 (b) by a motions panel does not, in any manner, bind or restrict the merits panel in its subsequent disposition of the appeal. . Compare Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 190-92 , 63 S.Ct. 163, 164 , 87 L.Ed. 176 (1942) (reaffirming applicability of Enelow after adoption of Federal Rules of Civil Procedure) and Enelow v. New York Life Ins. Co., 293 U.S. 379, 381-83 , 55 S.Ct. 310, 310-11 , 79 L.Ed. .440 (1935) (permitting interlocutory appeal of order staying action at law pending decision in equity on ground that stay was an injunction) with Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 184 , 75 S.Ct. 249, 254 , 99 L.Ed. 233 (1955) (refusing to permit interlocutory appeal on ground that order refusing to stay action pending arbitration is not order denying an injunction) and Morgantown v. Royal Ins. Co., 337 U.S. 254, 256-58 , 69 S.Ct. 1067, 1068-69 , 93 L.Ed. 1347 (1949) (refusing to apply Enelow rule to appeal from grant of motion to strike demand for jury trial on ground that it does not amount to equitable stay of legal proceedings). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8912199. Public record. Not legal advice.