# Appendix — Berkey Photo, Inc. v. Eastman Kodak Company. Eastman Kodak Company v. Berkey Photo, Inc > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0915%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1093 ## Text Supreme Coit > FILED SEP 14 1979 9-427 In THE Supreme Court of the United States OCTOBER TERM, 1979 . Berkey Pxoto, Inc., Petitioner, against Eastman Konak Company, Respondent. APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Axvin M. Stern 530 Fifth Avenue New York, New York 10036 Attorney for Petitioner Of Counsel: Barry J. Bretr Mark I. ScHLESINGER Avrora CASSIRER Mark D. Orren Parker Cuaprn Fuattav & Kumeu Neuman, WituiaMs, Anperson & OLsoNn ee anamadenunnineiiinimeetiaeiaaaaaa TABLE OF CONTENTS PAGE Appendix A—Judgment of the United States Court of Appeals for the Second Circuit en- tered June 25, 1979 ................ la Appendix B—Opinion of the United States Court of Appeals for the Second Cireuit filed ge Sere ere 3a Appendix C—Memorandum on Post-Trial Motions of the United States District Court for the Southern District of New York dated June 16, 1978 .......... 102a Appendix D—Opinion of the United States District Court for the Southern District of New York dated August 8, 1978 .... 162a Appendix E—Jury verdict on EE ie cde uv meats 180a Appendix F—Jury verdict on damages ........... 188a Appendix G—Statutes involved .................. 190a la APPENDIX A Judgment of the Court of Appeals UNITED STATES COURT OF APPEALS For tHe Seconp Circurr At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Court- house in the City of New York, on the twenty-fifth day of June, one thousand nine hundred and seventy-nine. Present: Hon. Irvine R. KaurmMan Chief Judge Hon. J. Joserx SMITH Hon. Wituram H. Murucan Circuit Judges 78-7445 78-7448 Berkey Puoro, Inc., Plaintiff-A ppellee- Cross-Appellant, Vv. Eastman Kopax Company, Defendant-A ppellant- Cross-Appellee. ,* if Appeal from the United States District Court for the Southern District of New York. 2a Appendix A—Judgment of the Court of Appeals This cause came on td be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel. On ConsmERATION WHEREOF, it is now hereby ordered, adjudged and decreed that the judgment of said District Court be and it hereby is affirmed in part and reversed in part and the action be and it hereby is remanded to said District Court without costs in accordance with the opinion of this court. A. Dante, Fvsaro, Clerk ARTHUR HELLER By: Arthur Heller, Deputy Clerk 3a APPENDIX B Opinion of the Court of Appeals (filed June 25, 1979) UNITED STATES COURT OF APPEALS For tHe Seconp Circurr Nos. 1019, 1070—August Term, 1978. (Argued April 18, 1979 finally submitted April 30, 1979 Decided June 25, 1979.) Docket Nos. 78-7445, 78-7448 Berkey Puoro, Ino., Plaintiff-A ppellee-Cross Appellant, “V.0 Eastman Kopak Company, Defendant-Appellant-Cross Appellee. + 9 Before: Kavurman, Chief Judge, SmirH and Muuuean, Circuit Judges. 7% 7 Appeal and cross-appeal from a judgment of the United States District Court for the Southern District of New York, Marvin E. Frankel, District Judge. The district court upheld certain jury verdicts in this private antitrust action; set aside others; entered judgment for plaintiff in 4a Appendix B—Opinion of the Court of Appeals the amount of $87,091,309.47, comprising attorneys’ fees, costs, and treble damages; and decreed certain equitable relief. Affirmed in part, reversed in part, and remanded for further proceedings. ’% . Auvin M. Sremn, New York City (Barry J. Brett, Mark I. Schlesinger, Aurora Cassirer, Mark D. Offen, Parker Chapin Flattan & Klimpl, New York City; Neuman, Williams, Anderson & Olson, Chicago, of counsel), for Plaintiff-Ap- pellee-Cross Appellant. WruaM Prez, Jr., New York City (Robert MacCrate, John L. Warden, Richard E. Carlton, Jerrold J. Ganzfried, Philip K. Howard, Shelley D. LaVine, William L. Farris, Sullivan & Cromwell, New York City, of counsel), for Defendant-Ap- pellant-Cross Appellee. Kavurman, Chief Judge: INTRODUCTION To millions of Americans, the name Kodak is virtually Synonymous with photography. Founded over a century ago by George Eastman, the Eastman Kodak Company has long been the preeminent firm in the amateur photo- graphic industry. It provides products and services cov- ering every step in the creation of an enduring photo- ame ee — —— _~— oa Appendiz B—Opinion of the Court of Appeals graphic record from an evanescent image. Snapshots may be taken with a Kodak camera on Kodak film, developed by Kodak’s Color Print and Processing Laboratories, and printed on Kodak photographic paper. The firm has rivals at each stage of this process, but in many of them it stands, and has long stood, dominant. It is one of the giants of American enterprise, with international sales of nearly $6 billion in 1977 and pre-tax profits in excess of $1.2 billion. This action, one of the largest and most significant pri- vate antitrust suits in history, was brought by Berkey Photo, Inc., a far smaller but still prominent participant in the industry. Berkey competes with Kodak in providing photofinishing services—the conversion of exposed film into finished prints, slides, or movies. Until 1978, Berkey sold cameras as well. It does not manufacture film, but it does purchase Kodak film for resale to its customers, and it also buys photofinishing equipment and supplies, in- cluding color print paper, from Kodak. The two firms thus stand in a complex, multifaceted relationship, for Kodak has been Berkey’s competitor in some markets and its supplier in others. In this action, Berkey claims that every aspect of the association has been infected by Kodak’s monopoly power in the film, color print paper, and camera markets, willfully acquired, maintained, and exercised in violation of 42 of the Sher- man Act, 15 U.S.C. §2. It also charges that Kodak con- spired with flashlamp manufacturers in violation of $1 of the Act, 15 U.S.C. §1. Berkey alleges that these viola- tions caused it to lose sales in the camera and photo- finishing markets and to pay excessive prices to Kodak for film, color print paper, and photofinishing equipment.? * Berkey had charged several other violations that are not be- fore us on this appeal. During the liability trial, Berkey with- (footnote continued on following page) 6a Appendix B—Opinion of the Court of Appeals A number of the charges arise from Kodak’s 1972 intro- duction of the 110 photographic system, featuring a “Pocket Instamatic” camera and a new color print film, Kodacolor II, but the case is not limited to that episode. It embraces many of Kodak’s activities for the last decade and, indeed, from preceding years as well. After more than four years of pretrial maneuvering, the trial got under way in July 1977 before Judge Marvin E. Frankel of the Southern District of New York. Despite the daunting complexity of the case—the exhibits numbered in the thousands—Kodak demanded a jury. Ac- cordingly, the trial was conducted in two parts, one to determine liability and the other to measure damages. It ran continuously, except for a one-month hiatus between the two segments, until the final verdict was rendered on March 22, 1978. The liability phase of the trial by itself consumed more than six months, and the damages aspect required approximately another month. Except for a few specific questions relating primarily to market definitions, the jury was asked to render what was essentially a gen- eral verdict on each count. After deliberating for eight days on liability and five on damages, the jury found for Berkey on virtually every point, awarding damages totalling $37,620,130. Judge (footnote continued from preceding page) drew or the court dismissed claims under the Clayton Act §§ 3 & 7, 15 U.S.C. §§ 14 & 18, as well as allegations arising from some of Kodak’s early acquisitions, its use of patents, its relations with Polaroid Corp., and its other activities in the instant photography field. Despite jury findings of § 2 liability, Berkey did not attempt to prove damages with respect to color negative printers and chemi- cals, and the jury found no damages with respect to amateur movie cameras. Kodak’s purchases of flashcubes, magicubes, and flipflash arrays led to a $245,100 jury verdict under the Robinson-Patman Act, §2(f), 15 U.S.C. §13(f), which was set aside by Judge Frankel because there was no evidence of injury to Berkey. i ate aeamee 7a Appendiz B—Opinion of the Court of Appeals Frankel upheld verdicts aggregating $27,154,700 for lost camera and photofinishing sales and for excessive prices on film and photofinishing equipment, but he entered judg- ment n.o.v. for Kodak on the remainder. Trebled and supplemented by attorneys’ fees and costs pursuant to 44 of the Clayton Act, 15 U.S.C. $15, Berkey’s judgment reached a grand total of $87,091,309.47, with interest, of course, continuing to accrue. Kodak now appeals this judgment, as well as the two forms of equitable relief that we shall discuss below. It challenges virtually every aspect of the district court pro- ceedings, from the theories of liability and damages pre- sented to the jury to the sufficiency of the evidence to sustain them. It argues, furthermore, that J udge Franke] committed prejudicial error in the conduct of the trial. For its part, Berkey contends that the trial judge erred in not entering judgment on the full amount of the jury’s verdict and in computing improperly the costs and fees that Berkey should recover. Resolution of these competing claims requires us to settle a number of important and novel issues concerning § 2 of the Sherman Act. We believe that the district court committed several significant errors as it charted its course through the complexities of this case, and we are there- fore compelled to reverse the judgment below in certain major respects. But we cannot accept Kodak’s contention that a properly charged jury could not find monopolization of any of the relevant markets and resulting damage to Berkey. Accordingly, we remand for a new trial on several of the claims. I. Tae Amateur PHOTOGRAPHIC InpDustry Before plunging into the welter of issues raised in this appeal, we must understand the industry out of which the 8a Appendix B—Opinion of the Court of Appeals litigation arose. It is, of course, a basic principle in the law of monopolization that the first step in a court’s anal- ysis must be a definition of the relevant markets. See, e.g., United States v. E. I. du Pont de Nemours & Co., 301 U.S. 377, 391-93 (1956). Although Kodak does not now challenge the jury’s delineation of the markets a sur- vey of this terrain remains essential. The jury found monopolization or other anticompetitive conduct in no fewer than five distinct markets within the amateur photo- graphic industry, and in several instances Kodak was held to have misused its control over one market to disadvan- tage rivals in another. Accordingly, to evaluate the ver- dicts, it is necessary to describe not only the individual markets but also the interrelationships among them. The principal markets relevant here, each nationwide in scope, are amateur conventional still cameras, conventional photographic film, photofinishing services, photofinishing equipment, and color print paper. The numerous tech- nological interactions among the products and services constituting these markets are manifest. To take an obvious example, not only are both camera and film required to produce a snapshot, but the two must be in compatible “formats.” This means that the film must be cut to the right size and spooled in a roll or cartridge that will fit the camera mechanism. Berkey charges that Kodak refused to supply on economical terms film usable with camera formats designed by other manufacturers, thereby exploiting its film monopoly to obstruct its rivals in the camera market. Similarly, Berkey contends, since the emulsions and other constituents of a film determine the chemicals and processes required to develop it, Kodak was able to project its power over film into the photo- finishing market as well. These and other market interactions will be discussed in depth as we analyze the verdicts and rulings below. A A A, a 9a Appendix B—Opinion of the Court of Appeals First, however, we must describe in detail the individual markets themselves. A. The Camera Market The “amateur conventional stil] camera” market now consists almost entirely of the so-called 110 and 126 in- stant-loading cameras. These are the direct descendants of the popular “box” cameras, the best-known of which was Kodak’s so-called “Brownie.” Small, simple, and relatively inexpensive, cameras of this type are designed for the mass market rather than for the serious photographer.? Kodak has long been the dominant firm in the market thus defined. Between 1954 and 1973 it never enjoyed less than 61% of the annual unit sales, nor less than 64% of the dollar volume, and in the peak year of 1964, Kodak cameras accounted for 90% of market revenues. Much of this success is no doubt due to the firm’s history of innovation. In 1963 Kodak first marketed the 126 “Tn- stamatic” instant-loading camera,’ and in 1972 it came out with the much smaller 110 “Pocket Instamatic.” Not only are these cameras small and light, but they employ film packaged in cartridges that can simply be dropped in the back of the camera, thus obviating the need to load and position a roll manually. Their introduction triggered successive revolutions in the industry. Annual amateur still camera sales in the United States averaged 3.9 mil- * More complicated cameras, such as those in the 135 format (‘‘35-millimeter’’) commonly used by professionals and photo- graphic hobbyists, were found not to be part of this market. The jury also rejected Kodak’s request to include in the definition “‘instant’’ cameras, pioneered by the Polaroid Corporation, which produce a finished print within minutes, or even seconds, after the shutter is snapped. * Instant-loading cameras are not to be confused with the ‘‘in- stant’’ cameras referred to in the previous footnote. 10a Appendix B—Opinion of the Court of Appeals lion units between 1954 and 1963, with little annual vari- ation. In the first full year after Kodak’s introduction of the 126, industry sales leaped 22%, and they took an even larger quantum jump when the 110 came to market. Other camera manufacturers, including Berkey, copied both these inventions, but for several months after each introduction anyone desiring to purchase a camera in the new format was perforce remitted to Kodak. Berkey has been a camera manufacturer since its 1966 acquisition of the Keystone Camera Company, a producer of movie cameras and equipment.‘ In 1968 Berkey began to sell amateur still cameras made by other firms, and the following year the Keystone Division commenced manufacturing such cameras itself. From 1970 to 1977, Berkey accounted for 8.2% of the sales in the camera market in the United States,® reaching a peak of 10.2% in 1976. In 1978, Berkey sold its camera division and thus abandoned this market. B. The Film Market The relevant market for photographic film comprises color print, color slide, color movie, and black-and-white film. Kodak’s grip on this market is even stronger than its hold on cameras. Since 1952, its annual sales have *In 1967 Berkey acquired a manufacturer of amateur photo- graphic accessories, the Atlas-Warner Corp., along with three dis- tributors of Atlas-Warner products. * Berkey entered into the manufacture of instant cameras in 1972, but discontinued this line in settlement of patent litigation instituted by Polaroid Corp. *The jury included movie film and 35-millimeter film in this market, presumably because they are substantially identical to the film used in amateur still cameras. Instant film, however, a product chemically distinct from laboratory-processed film, was excluded. lla Appendix B—Opinion of the Court of Appeals always exceeded 82% of the nationwide volume on a unit basis, and 88% in revenues. Foreign competition has re- cently made some inroads into Kodak’s monopoly, but the Rochester firm concedes that it dominated film sales throughout the period relevant to this case. Indeed, in his summation, Kodak’s trial counsel told the jury that ‘‘the film market ... has been a market where there has not been price competition and where Kodak has been able to price its products pretty much without regard to the pro- ducts of competitors.’ Kodak’s monopoly in the film market is particularly im- portant to this case, because the jury accepted Berkey’s contention, noted above, that it had been used to disad- vantage rivals in cameras, photofinishing, photofinishing equipment, and other markets. Of special relevance to this finding is the color print film segment of the indus- try, which Kodak has dominated since it introduced “Kodacolor,” the first amateur color print film, in 1942," In 1963, when Kodak announced the 126 Instamatic cam- era, it also brought out a new, faster color print film— Kodacolor X—which was initially available to amateur photographers only in the 126 format.® Nine years later, Kodak repeated this pattern with the Simultaneous in- troduction of the 110 Pocket Instamatie and Kodacolor IT film. For more than a year, Kodacolor IT was made only "Kodak marketed improved versions of Kodacolor in 1945, 1949, and 1955. * The new film was also initially sold for use in 85-millimeter cameras, which are not part of the amateur market, It did not replace Kodacolor in the amateur 127 and 620 sizes until one year later. ‘‘Film speed’’ refers to an emulsion’s sensitivity to light. Thus Kodacolor X—as compared to its predecessor—could produce acceptable images under markedly inferior lighting conditions, 12a Appendix B—Opinion of the Court of Appeals for 110 cameras, and Kodak has never made any other color print film in the 110 size. C. Photofinishing Services and Photofinishing Equipment Before 1954, Kodak’s Color Print and Processing Lab- oratories (CP&P) had a nearly absolute monopoly of color photofinishing maintained by a variety of practices. Ac- counting for over 95% of color film sales, Kodak sold every roll with an advance charge for processing included. Consumers had little choice but to purchase Kodak film, and in so doing they acquired the right to have that film developed and printed by CP&P at no further charge. Since few customers would duplicate their costs to pro- cure the services of a non-Kodak photofinisher, Kodak was able to parlay its film monopoly to achieve equiv- alent market power in photofinishing.® This film/processing ‘‘tie-in’’ attracted the attention of the Justice Department, and in 1954 a consent decree changed the structure of the color photofinishing market drastically. Kodak was forbidden to link photofinishing to film sales, and it agreed to make its processing technol- ogy, chemicals, and paper available to rivals at reasonable rates. As a result, CP&P’s share of the market plummeted from 96% in 1954 to 69% two years later, and it has declined sharply ever since. In 1970, CP&P accounted for but 17% of the market, and by 1976 its share reached a low of 10%. There are now approximately 600 independ- ent photofinishers in the United States. *To be sure, Kodak could not in this fashion control the market for color reprints—production of additional prints from slides or negatives. Here it resorted to other tactics. By refusing to sell the special paper or chemicals necessary to produce such reprints to rival photofinishers, it ensured—since there was no other ade- quate source for these supplies—that even this segment of the market did not escape its grip. | 13a Appendix B—Opinion of the Court of Appeals Berkey is one of the largest of these processors. It has been a photofinisher since 1933, but until 1954 its prin- cipal business was developing and printing black-and-white film.” In addition, Berkey purchased Kodak black-and- white film, which was sold without a processing tie-in, for resale to its photofinishing customers. After the 1954 de- cree, Berkey applied to Kodak for the appropriate licenses and in 1956 began to process significant amounts of color film. It now finishes more 126 and 110 color print film than does Kodak. A variety of equipment is used to process film, and the Kodak Apparatus Division (KAD) designs and produces most of the machinery used by CP&P. Kodak also sells some equipment to other photofinishers, but this is an in- significant portion of its business ; indeed, until the intro- duction of the 110 system, Kodak made still film proc- essing equipment for its own use only. Several other firms supply photofinishing equipment to the rival proces- sors, and Berkey does not contend that Kodak monopo- lized or attempted to monopolize this market. D. The Color Paper Market ' f The market for color paper—that is, paper specially treated so that images from color film may be printed on it—effectively came into being after entry of the 1954 consent decree. Before then, Kodak was for all practical | purposes the only color photofinisher, and its require- ments for color paper were met entirely by the paper division of Kodak Park Works in Rochester. The remain- icals supplied by Ansco, Berkey was also able to produce color prints from Kodachrome slides. 14a Appendix B—Opinion of the Court of Appeals ing processors, who dealt with non-Kodak color film and used non-Kodak paper, occupied only four percent of the color photofinishing market. Consequently, the vertical foreclosure created by CP&P’s lock on photofinishing and its exclusive use of Kodak color paper was virtually com- plete. Although the 1954 decree steadily loosened Kodak’s grip in photofinishing, it did not immediately affect the firm’s control of color paper. For more than a decade, the independent photofinishers that sprang up after the decree was entered looked only to Kodak for their paper supplies. Indeed, although entry by both foreign and domestic paper manufacturers has reduced Kodak’s share sub- stantially, to a low of 60% in 1976, the firm’s color paper operations have remained remarkably profitable. Be- tween 1968 and 1975, while its market share was falling from 94% to 67%, Kodak’s earnings from operations as a percentage of sales remained virtually constant, averaging 60% for the period. Moreover, the most recent telling event in the market has not been entry but exit: GAF Corporation announced in 1977 that it was abandoning its effort to sell color paper, leaving Kodak with only one domestic and two foreign competitors. Kodak, then, is indeed a titan in its field, and ac- cordingly has almost inevitably invited attack under $2 of the Sherman Act. Few, if any, cases have presented so many diverse and difficult problems of § 2 analysis. It is appropriate, therefore, to elucidate some fundamental principles of law relating to that statutory provision. II. § 2 or rae SHerman Act The Sherman Antitrust Act of 1890 has been char- acterized as “a charter of freedom,” Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359 (1933). For nearly ne | 15a Appendix B—Opinion of the Court of Appeals ES A See ninety years it has engraved in law a firm national policy that the norm for commercial activity must be robust competition. The most frequently invoked section of the Act is the first, which forbids contracts, combina- tions, or conspiracies in restraint of trade. But the pro- | hibition of §1 is incomplete, Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 60-61 (1911), for it | only applies to conduct by two or more actors. If suffi- ciently powerful, however, a single economic entity may also stifle competition. 1 R. Callmann, The Law of Unfair Competition, Trademarks, and Monopolies 341-42 (3d ed. 1967). Accordingly, in § 2 of the Sherman Act, Congress made it unlawful to “monopolize, or attempt to monopolize, or combine or conspire .. . to. monopolize” any part of interstate or foreign commerce. It is § 2 to which we give our principal attention in analyzing this case. In passing the Sherman Act, Congress recognized that it could not enumerate all the activities that would con- stitute monopolization. Section 2, therefore, in effect con- | ferred upon the federal courts “a new jurisdiction to | apply a ‘common law’ against monopolizing.” 3 P. Areeda & D. Turner, Antitrust Law 40 (1978). In performing that task, the courts have enunciated certain principles that by now seem almost elementary to any student of antitrust law. But, because §2 must reconcile divergent and some- times conflicting policies, it has been difficult to synthesize the parts into a coherent and consistent whole. To provide a framework for deciding the issues presented by this case, therefore, we begin by stating what we conceive to be the fundamental doctrines of § 2. A. Monopoly Power as the Essence of the § 2 Violation The gravamen of a charge under §1 of the Sherman Act is conduct in restraint of trade; no fundamental alter- l6a Appendix B—Opinion of the Court of Appeals ation of market structure is necessary. Thus, certain restrictive practices among competitors, such as price fixing, are illegal per se. That the conspirators lack the market power to affect prices is immaterial. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59 (1940). Section 2, by contrast, is aimed primarily not at improper conduct but at a pernicious market structure in which the concentration of power saps the salubrious influence of competition. Indeed, there is little argument over the principle that existence of monopoly power—‘‘the power to control prices or exclude competition,” E. I. du Pont de Nemours & Co., supra, 351 U.S. at 391—is “the primary requisite to a finding of monopolization.” 1 M. Handler, Twenty-five Years of Antitrust 691 (1973). The Supreme Court has informed us that “monopoly power, whether lawfully or unlawfully acquired, may itself constitute an evil and stand condemned under § 2 even though it remains unex- ercised.” United States v. Griffith, 334 U.S. 100, 107 (1948). This tenet is well grounded in economic analysis. There is little disagreement that a profit-maximizing monopolist will maintain his prices higher and his output lower than the socially optimal levels that would prevail in a purely competitive market. E.g., F. Scherer, Industrial Market Structure and Economic Performance 13-19 (1970). The price excess represents not a reasonable return on invest- ment but the spoils of the monopolist’s power. £.g., L. Sullivan, Handbook of the Law of Antitrust 25-26 (1977); 2 P. Areeda & D. Turner, supra, at 323-34. It is not a defense to liability under § 2 that monopoly power has not been used to charge more than a competi- tive price or extract greater than a reasonable profit. Learned Hand stated the rationale in the Alcoa case, — — 17a Appendix B—Opinion of the Court of Appeals United States v. Aluminum Co. of America, 148 F.2d 416, 427 (2d Cir. 1945). He said in his incisive manner that the Sherman Act is based on the belief : that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to coun- teract an inevitable disposition to let well enough alone. Judge Hand explained, in addition, that Congress was not “actuated by economic motives alone”? in enacting §2. Id. Considerations of political and social policy form a major part of our aversion to monopolies, for concentration of power in the hands of a few obstructs opportunities for the rest. Because, like all power, it is laden with the possibility of abuse; because it encourages sloth rather than the active quest for excellence; and because it tends to damage the very fabric of our economy and our society, monopoly power is “inherently evil.” United States vy. T *ntted Shoe Machinery Corp., 110 F. Supp. 295, 345 (D. Mass. 1953), aff'd per curiam, 347 U.S. 521 (1954) ; see United States v. Grinnell Corp., 236 F. Supp. 244, 258 (D.R.I. 1964), aff'd in part, 384 U.S. 563 (1966). If a finding of monopoly power were all that were necessary to complete a violation of § 2, our task in this case would be considerably lightened. Kodak’s control of the film and color paper markets clearly reached the level of a monopoly. And, while the issue is a much closer one, it appears that the evidence was suf- ficient for the jury to find that Kodak possessed such 18a Appendix B—Opinion of the Court of Appeals power in the camera market as well." But our inquiry into Kodak’s liability cannot end there. B. The Requirement of Anticompetitive Conduct Despite the generally recognized evils of monopoly power, it is ‘well settled,” see J. von Kalinowski, Anti- trust Laws & Trade Regulation { 802(3), at 8-41 (1979), that $2 does not prohibit monopoly simpliciter—or, as the Supreme Court phrased it in the early landmark case of Standard Oil Co. of New Jersey, supra, 221 U.S. at 62, “monopoly in the concrete.” Thus, while proclaiming vigorously that monopoly power is the evil at which §2 is aimed, courts have declined to take what would have appeared to be the next logical step—declaring monopolies unlawful per se unless specifi- cally authorized by law. To understand the reason for this, one must comprehend the fundamental tension—one might almost say the paradox—that is near the heart of §2. This tension creates much of the confusion sur- rounding $2. It makes the cryptic Alcoa opinion a liti- gant’s wishing well, into which, it sometimes seems, one may peer and find nearly anything he wishes. The conundrum was indicated in characteristically strik- ing prose by Judge Hand, who was not able to resolve it. ** See our discussion of the relevant markets, Part I supra. Kodak sold approximately two-thirds of all amateur conventional still cameras throughout most of the relevant period. The fre- quency with which flashlamp manufacturers approached Kodak with suggestions for joint development of products and their will- ingness to acquiesce in arguably one-sided agreements is further evidence of Kodak’s power in the camera market. See our dis- cussion of Berkey’s § 1 allegations, Part V, infra. The precipitous decline, beginning in 1976, of Kodak’s share of the camera market was evidence that the jury could consider, although it was not dispositive. Pe a ee et 19a Appendix B—Opinion of the Court of Appeals Having stated that Congress “did not condone ‘good trusts’ and condemn ‘bad’ ones; it forbad all,” Alcoa, supra, 148 F.2d at 427, he declared with equal force, “The successful competitor, having been urged to compete, must not be turned upon when he wins,” id. at 430. Hand, therefore, told us that it would be inherently un- fair to condemn success when the Sherman Act itself mandates competition. Such a wooden rule, it was feared, might also deprive the leading firm in an industry of the incentive to exert its best efforts. Further success would yield not rewards but legal castigation. The antitrust laws would thus compel the very sloth they were intended to prevent. We must always be mindful lest the Sherman Act be invoked perversely in favor of those who seek pro- tection against the rigors of competition. E.g., Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., No. 77-7617, slip op. at 2196 (2d Cir. Apr. 16, 1979). In Alcoa the crosscurrents and pulls and tugs of §2 law were reconciled by noting that, although the firm con- trolled the aluminum ingot market, “it may not have achieved monopoly; monopoly may have been thrust upon it.” 148 F.2d at 429. In examining this language, which would condemn a monopolist unless it is “the passive beneficiary of a monopoly,” id. at 430, we perceive Hand the philosopher. As an operative rule of law, however, the “thrust upon” phrase does not suffice. It has been criti- cized by scholars, 3 P. Areeda & D. Turner, supra, at 20; L. Sullivan, supra, at 96-97; Handler, Some Unresolved Problems of Antitrust, 62 Colum. L. Rev. 930, 934 (1962), and the Supreme Court appears to have abandoned it. See United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966); 1 M. Handler, swpra, at 692. Grinnell instructs — | that after possession of monopoly power is found, the sec- ond element of the §2 offense is “the willful acquisition 20a Appendix B—Opinion of the Court of Appeals or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” 384 U.S. at 570-71. This formulation appears to square with the under- standing of the draftsmen of the Sherman Act that § 2 does not condemn one “who merely by superior skill and intelligence . . . got the whole business because nobody could do it as well.” United Shoe Machinery Corp., supra, 110 F. Supp. at 341 (quoting legislative history). Thus the statement in Alcoa that even well-behaved monopolies are forbidden by $2 must be read carefully in context. Its rightful meaning is that, if monopoly power has been ac- quired or maintained through improper means, the fact that the power has not been used to extract improper benefits provides no succor to the monopolist. But the law’s hostility to monopoly power extends beyond the means of its acquisition. Even if that power has been legitimately acquired, the monopolist may not wield it to prevent or impede competition. Once a firm gains a measure of monopoly power, whether by its own superior competitive skill or because of such actions as re- strictive combinations with others, it may discover that the power is capable of being maintained and augmented merely by using it. E.g., Lorain Journal Co. v. United States, 342 U.S. 143 (1951). That is, a firm that has achieved dominance of a market must find its control suf- ficient to preserve and even extend its market share by excluding or preventing competition. A variety of tech- niques may be employed to achieve this end—predatory pricing, lease-only policies, and exclusive buying arrange- ments, to list a few. Even if the origin of the monopoly power was innocent, therefore, the Grinnell rule recognizes that maintaining or extending market control by the exercise of that power is 21a Appendix B—Opinion of the Court of Appeals sufficient to complete a violation of §2. As we have ex- plained only considerations of fairness and the need to preserve proper economic incentives prevent the condem- nation of §2 from extending even to one who has gained his power by purely competitive means. The district court judge correctly indicated that such a monopolist is tolerated but not cherished. Thus, the rule of Grinnell must be read together wit!. the teaching of Griffith, that the mere existence of monopoly power “whether lawfully or unlawfully acquired,” is in itself violative of § 2, “pro- vided it is coupled with the purpose or intent to exercise that power.” 334 U.S. at 107. The key to analysis, it must be stressed, is the concept of market power. Although power may be derived from size, e.g., United States v. Swift & Co., 286 U.S. 106, 116 (1932), the two are not identical. F. Scherer, supra, at 352. With- out seizing upon a phrase, it may fairly be said that the law countenances determining prices ‘‘unilaterally” only for the small class of monopolists entitled to that exceptional free- dom from the pressures of competition. Concluding that a monopolist exacting prices above a competitive level is liable for the excess when the monopoly has been illegally acquired or maintained, the court put to the jury the question “whether Berkey has proved by a preponderance of the evidence that the prices it paid for film purchased from Kodak were higher than those Kodak would have charged in the absence of its monopolization of the amateur film market.”’ (Tr. 18834). Similarly, the jury was told to decide whether defendant had used its mo- *4**Q. In connection with Kodak product pricing during this period of time [Dec. 1958-Jan. 1963, when the witness was a Vice President of the company, sharing responsibility for direction of U.S. sales and advertising, Tr. 2022] was consideration given to the pricing of competitive products? ‘A. No. 1 don ’t really know what you’re getting at. We didn’t price, you know, with consideration of other products that were on the market. We priced from what we thought we could do the best and give us the greatest customer acceptance. ‘*Q. As far as you know, has that continued to be the general pricing policy of Kodak? ‘‘A. Yes, I believe so.’ (Tr. 5025). 7° Reply Memorandum 20. 133a Appendix C—Memorandum on Post-Trial Motions of the District Court nopoly power “to insulate its products from price competi- tion it would otherwise have had to meet, thus enabling itself to charge its customers unlawfully inflated prices for Kodak film.” (Tr. 18835). The affirmative answers to these questions, and the award based thereon, are sustained in the court’s view, by the record and the law. Coton Print Paper OvERCHARGES The jury awarded $8,803,000 for color print paper over- charges. The court is compelled to conclude that this award must be set aside in its entirety because the evidence upon further study is found to be insufficient to sustain either the finding of liability or the award of damages. The finding that Kodak monopolized the market in color paper would seem to be amply supported so far as the ele- ment of market power is concerned. Defendant’s share of this market ranged during the years in question from a high of 91% in 1969 down to a low of 60% in 1976. It also appeared that the disappearance of a substantial competi- tor, GAF, in 1977 foretold a reversal of the downward trend. While the rather steep decline in the period 1969- 1976 may be some reflection of a market no longer monopo- lized, the 60% figure would remain sufficient to uphold the jury’s vedict in this respect. The fatal void in the evidentiary foundation is the required proof of exclusionary or anticompetitive conduct. Plaintiff has struggled with characteristic vigor and imag- ination to show that the necessary demonstration was made. But the court’s restudy of the arguments and the evidence invoked to support them leads to the adverse conclusion stated at the outset. A single item of anticompetitive behavior seems sustainable, namely, the insistence by de- fendant that its backprint appear on paper sold to photo- finishers. But this is insufficient, the court concludes, to 134a Appendix C—Memorandum on Post-Trial Motions of the District Court sustain the verdicts on liability and damages, or either of them. The several contentions, and the rulings upon them, are as follows: (1) The claim of “systems selling” improperly employed, which has been held substantia] in other connections, is asserted to apply here again. There are some documents in the record indicating a desire and interest entertained by defendant’s sales and other personnel to merchandise “Kodak equipment, chemicals, and paper on a systems basis. . . .* The difficulty for plaintiff is the absence of evidence that the objective was implemented in any fashion that could fairly be condemned as anticompetitive with respect to the color paper market. There is no authority— and this case is surely not meant to suggest—that “systems selling” is inevitably impermissible for a company with monopoly power. The problem, as indicated elsewhere in this memorandum, is to appraise the specific circumstances, including such matters as timing, purpose, and effects. The evidence concerning color paper shows nothing approach- ing an arguably wrongful implemention of the systems selling objective. (2) Plaintiff assails as exclusionary defendant’s practice of evolving color print papers effectively usable by photo- finishers with defendant’s own film but not attempting to test for or seek similar compatability with the film produced by other manufacturers. Accepting that this was defend- ant’s practice, the court is upon reflection unable to discern in it anything wrongful or arguably exclusionary with re- spect to the color paper market. On plaintiffs thesis, Kodak was somehow obliged to fashion papers suitable for every- ** The quotation is from a 1968 Advertising Program of the Consumer Markets Division. Similar language is found in a couple of documents extending into and after 1969. 135a Appendix C—Memorandum on Post-Trial Motions of the District Court body’s film. But had defendant done that, it might well have found itself attacked for developing techniques and capac- ity, in the style condemned in Alcoa, for seizing every new opportunity and building necessary capacity to the detri- ment of its paper competitors. The analysis plaintiff pro- poses in this respect might conceivably have suggested ad- verse impacts on film rather than paper makers. Without pursuing that speculation, the court finds no rationally per- suasive utility in this contention for the claim of a color paper monopoly. (3) Berkey complains in this connection, as it does else- where, of defendant’s insistence upon using the Kodak back- print on its color paper. The court has noted the plausible claim that this was improper vis a vis Berkey in its role as a photofinisher unhappy about advertising a competing photofinisher. But it has no perceptible force in the present context. Berkey says the backprint “conditioned” consumers to want Kodak paper, thus forcing Berkey and others to buy it (at excessive prices). The evidence of such conditioning turns out finally to be thin to the point of nonexistence. Passing that, it tangles Berkey in contradictions. Until the submission of its prayer for equitable relief, see infra, plaintiff’s claim has never been that it desired or demanded erasure of the backprint on all Kodak paper, only the elimi- nation from paper purchased by Berkey. But if the condi- tioning argument were valid, that would have left Berkey clearly disadvantaged as against photofinishers accepting and using paper with the Kodak imprint. Furthermore, the argument is severely undercut by the evidence that during the years in question, Berkey’s purchases of non-Kodak paper rose sharply; the percentage of its paper purchased from Kodak went from about 95% in 1972 to about 7% in 136a Appendix C—Memorandum on Post-Trial Motions of the District Court 1977. The figures are drastically inconsistent with the as- sertion of a need for the Kodak mark. The upshot is that the backprint practice remains con- demned as unlawful leveraging of color paper market power into the photofinishing market. But this single item, rela- tively minuscule in the total picture, is held insufficient to sustain the finding of a section 2 violation in the color paper market. (4) Plaintiff argues that Kodak pursued a policy of keep- ing competitors small, and that at least one purpose of this was to block competing paper manufacturers. The connec- tive premise is that this “scheme had the purpose and effect of preventing a manufacturer of paper from establishing a relationship with a photofinisher which was large enough to provide an outlet for the sale of a sufficient volume of paper to enhance the manufacturer’s ability to challenge Kodak’s paper monopoly. . . .”** The trouble is that the evidence does not support the alleged “purpose” or “effect.” There is no evidence that Kodak in fact entertained such a purpose. And there is no evidence that paper manufac- turers had some special need of large photofinishers in order to challenge Kodak’s supremacy. (5) Plaintiff argues that it is unacceptably anticompeti- tive for Kodak, given its market share, to have its CP&P organization “purchase” only Kodak paper. This court finds, however, that there is no authority, and no sufficient basis in the principles of cases condemning exclusive deal- ing between separate entities, for holding that this single defendant was required to have its own division or depart- ment purchase from outside competitors. There is here a species of ‘‘foreclosure,”’ to be sure. But it is a kind of in- ** Memorandum in Opposition to Kodak’s Motion 49. 137a Appendix C—Memorandum on Post-Trial Motions of the District Court ternal arrangement that seems thus far to be entirely allowable. The decision in Jnt’l Tel. & Tel. Corp. v. Gen. Tel. & Elec. Corp., 1978 CCH Trade Cases 7 61,913 (D. Hawaii 2-28-78), cited by plaintiff on this point, involved a course of conspiratorial conduct among separate entities and a massive history of acquisitions, rendering it deci- sively distinguishable, if not wholly uninteresting, for present purposes. (6) Finally, plaintiff complains that Kodak introduced a new three-step finishing process and a new paper to go with it in 1971, to the detriment of the companies whose five- step papers were not compatible with the new process. Again, however, the requisite qualities to show anticompeti- tiveness are absent. There is ample evidence that the new process was a desirable innovation, for ecological and per- haps other reasons. The paper and process went together as a matter of sound technology, not on perverse or decep- tive explanations. Kodak had and has no monopoly either of chemicals or of processing techniques. The new paper was not linked to a new form of Kodak film; both the old and the new were equally serviceable for relevant existing film types. In short, there are no indicia here of signifi- cantly exclusionary aims or consequences.”* Without emphasing the point unduly, the marked de- cline in Kodak’s color paper market share is surely not inconsistent with the conclusion that there was no anticom- petitive conduct during the pertinent years and that com- petitors were indeed free to invade the market with sub- stantial success. It is at least of passing interest to con- ** Plaintiff stresses that CP&P stayed with a five-step process of its own for some period of time not shown distinctly in the record. This fact has been explained, however, on grounds that do not help plaintiff. The sinister implications Berkey would desery are not made visible by the evidence. 138a Appendiz C—Memorandum on Post-Trial Motions of the District Court trast this development with Kodak’s remarkably steady maintenance of a share hovering between 85 and 90% of the amateur film market. Kodak presumably had no burden in this private action of proving the absence of exclusionary conduct. But ef. United States v. Grinnell Corp., 236 F. Supp. 244, 247-48 (D.R.I. 1966), and the spe- cific reservation of the relevant question in the affirming opinion, 384 U.S. 563, 576n.7 (1966).*° In any event, the record is found, after all, not to sustain this essential ele- ment of the color paper monopolization claim. Furthermore, even if the conclusion were different as to liability, the verdict awarding damages for color paper overcharges could not stand. The only wrongful conduct shown by the relevant evidence had its impact upon the photofinishing market, not the market for color print paper. Thus, the requirement of causation is wholly unsatisfied. This may be contrasted with the verdict on film over- charges. There, too, a large part of the misuse of the film monopoly was in leveraging that impacted upon other mar- kets. In addition, however, there was sufficient evidence of anticompetitive effect upon the film market itself to justify the award for resulting overcharges. PHOTOFINISHIN G EQuiIpMEN T OVERCHARGES Almost de minimis in the context of this case, but con- tested on grounds not frivolous, is the jury’s award of $19,000 on Berkey’s claim that it was required to pay ex- cessive prices for six of Kodak’s Dual Strand Film Proc- essors purchased when these machines were alone in the field after the March 1972 introduction of the system com- *° Plaintiff has preserved throughout the position, not accepted by this court, that a defendant shown to have menopoly power must shoulder the burden of justifying it as a condition ‘‘thrust upon’’ it in Judge Learned Hand’s Alcoa phrase. 139a Appendix C—Memorandum on Post-Trial Motions of the District Court prised of the 110 camera, Kodacolor II film, new photo- finishing chemistry, and this and related new machinery. Kodak challenges both the liability finding and the damage award. As for liability, defendant argues there could be none because it was neither found nor claimed that Kodak monop- olized [or attempted to monopolize] the photofinishing equipment market. It argues that a finding of unlawful leveraging in this setting could not stand. These con- tentions are the same, and are rejected for the same reasons, as those considered earlier on the photofinishing award. Resisting the granting of damages in any event, Kodak points out that its Processor remained at the allegedly “ex- cessive” price level even after other, less expensive machines emerged to compete with it, so that the failure to predis- close the new film and film format to other equipment manu- facturers could not reasonably have been found to cause the claimed excess. Further, defendant cites the evidence that plaintiff bought an additional four Kodak Processors after other makers’ machines, asserted to have been better and cheaper, were on the market, and argues that this over- whelms the charge that the Kodak product was sold at a price that can plausibly be denounced now as “excessive.” Weighty though they may be, these arguments are not suf- ficient to defeat the jury’s vedict. : There is no question that the Kodak Processor was alone in the market for several crucial months after March 1972. And the record shows what the jury was permitted to find was a striking relationship between this period of exclu- sivity and Kodak’s earnings from operations on photofinish- ing equipment. Those earnings were at the rate of 4.6% in 1970 and 6.1% in 1971. In 1972, the year of the Pro- cessor’s sole possession of the field, the rate leapt to 21.3%. 140a Appendix C—Memorandum on Post-Trial Motions of the District Court Then it fell to 3.2% in 1973, followed by losses at the respec- tive rate of 3.6% and 23% in 1974 and 1975. As for Berkey’s purchase of four more Processors after competitive machines became available, this point was made to the jury and evidently rejected as grounds for denying damages. The jury was within its authority in so ruling. The evidence showed that these additional Kodak machines were bought only for Berkey plants already committed by prior purchases to use of the Dual Strand Processor and other Kodak 110 processing machinery. Whatever reasons of convenience, technology, or employee training might have warranted this continued commitment, the evidence in this respect does not destroy or eliminate the adequate record on which the jury made its $19,000 award. That award will stand. Rosinson-Patman CLAIMs The Robinson-Patman claims, though they involved for this case relatively modest amounts of money, presented some of the more perplexing questions both of law and of fact. Defendant’s motion is on this aspect expectably imposing. It will be granted on the court’s conclusion that the evidence was insufficient to establish damages. This is not to say that the verdict on liability is so clearly sustainable as not to have given pause. The court has been troubled especially with questions as to the sufficiency of proof of (1) Kodak’s knowledge that the lower prices were not cost-justified and (2) the substantial lessening of com- petition. In the end, if just barely, the finding of liability is found to be adequately supported. On damages, however, defendant is entitled to prevail. This subject was given to the jury, if somewhat dubitante, on the following theory: “First, that Kodak’s prices were based directly on its l4la Appendix C—Memorandum on Post-Trial Motions of the District Court costs, so that the lower flash costs lowered Kodak’s selling prices. Second, that Berkey set its prices by pricing down from Kodak’s prices on comparable products.” (Tr. 18865).*° The theory was thought to be allowable under the authority of Enterprise Industries, Inc. v. The Texas Co., 240 F.2d 457 (2d Cir.), cert. denied, 353 U.S. 965 (1957). Adhering to that position, the court finds the evidence insufficient to justify the jury’s award, or, indeed, any award on this claim. As to the first branch, the assertedly direct relationship between Kodak’s costs and prices, a further review of the record reveals this evidence to have been exceedingly vague, general, and amorphous. Weighing heavily on the other side is the evidence that Kodak, far from pricing mechani- cally upward from its costs, actually charged the highest price it thought consumers would accept in quantities that would maximize profits; the relatively minor portion of kit prices represented by the flash unit; and defendant’s evi- dence showing that the pattern of changes in its kit prices was unrelated to the pattern of changes in flash unit prices. The second essential premise of the damage theory given to the jury is, if anything, still weaker on the evidence. Berkey presented no specific evidence tending to show that it actually did adjust its prices in the manner suggested in response to the supposed effects of the flash discounts on Kodak’s prices. Indeed, the only evidence cited to support the claim that Berkey “priced down” from Kodak is Defend- ant’s Exhibit 5360, an internal Berkey memorandum of March 6, 1975, which in the course of stressing Berkey’s 8° Berkey duly excepted, and preserves its exception, to the court’s refusal to instruct that the amount of the price difference should without more be taken as the measure of damages. 142a Appendix C—Memorandum on Post-Trial Motions of the District Court need to keep its prices low in order to compete successfully stated: “We cannot lose sight of this fact: we must be 20% below Kedak and/or Polaroid’s dealer net price with comparable product, and we must be out with product as soon as possible after this introduction. This is not to say in certain cases we cannot be less than 20% but only that we should not build around that hope.” The vague, aspirational character of this statement of policy, which itself shows clearly the roughness of the rela- tionship involved, embodied in a document issued several years after the alleged damages began to accrue, renders it far too slender a basis for the award of damages in suit. There being no credible proof of a profit squeeze suffered by Berkey, and thus no adequate proof of actual “loss to the plaintiff’s business” attributable to Kodak’s receipt of these discounts, Enterprise Industries, supra, 240 F.2d at 459-60; Sun Cosmetic Shoppe v. Elizabeth Arden Sales Corp., 178 F.2d 150, 153 (2d Cir. 1949), the award of damages must be set aside. II. Apprication ror EqurraBLe RELIEF Plaintiff has applied for a broad array of equitable rem- edies, from divestiture through the publication of notice of the judgment. The subject has been thoroughly argued. The issues have been studied with care. For reasons here- inafter outlined, the court has concluded that all but two of the items of proposed equitable relief should be denied. DIVESTITURE The most drastic form of equitable relief sought by plain- tiff is an order of divestiture. Specifically, plaintiff asks 143a Appendix C—Memorandum on Ff 3t-Trial Motions of the District Cc rt that Kodak be stripped of (1) its facilities for a. ing cameras, projectors, photofinishing equipment, and “re- lated items of equipment,” (2) its facilities for the commer- cial processing and printing of film, and (3) such trade- marks as “Kodak,” “Kodacolor,” and other, scarcely less powerful names.” Whether divestiture may be ordered as a species of the “injunctive relief” authorized by section 16 of the Clayton Act, 15 U.S.C. § 26, is a vexed question. Even in a case of unlawful acquisitions, the Ninth Circuit has said no, Jnt’l Tel. & Tel. Corp. v. Gen. Tel. & Elec. Corp., 518 F.2d 913, 920 et seg. (1975), and the Third Circuit, more favorably disposed, has indicated that it would require a strong case to make that remedy seem appropriate, NBO Industries Treadway Cos. v. Brunswick Corp., 523 F.2d 262, 278-279 (1975), rev’d on other grounds sub nom. Brumswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977). A thought- ful opinion by Judge Ward of this Court has also indicated that divestiture might be available to undo acquisitions in violation of Clayton Act $7. Fuchs Sugars & Syrups, Inc. v. Amstar Corporation, 402 F. Supp. 636 (1975). There isa spread of other opinions on the subject. See NBO Indus- tries, supra, 523 F.2d at 278 n.17. In the instant case, however, the case against divestiture seems too clear to require a firm choice among the divergent precedents. Accepting, as the court does, all the pertinent 31 Defendant characterizes other prayers for injunctive relief— e.g., relating to patents and claims for technological disclosures— as seeking ‘‘divestiture.’’ Doubting that the label fits, but finding it makes no difference in the end, the court treats these aspects elsewhere. Plaintiff does not treat under this rubric the proposal to require the dedication of the trademarks Kodak, Kodacolor, Ektacolor, Kodachrome, Ektachrome, Instamatic, and Pocket Insta- — but the court finds it convenient to deal with this proposal ere. 144a Appendix C—Memorandum on Post-Trial Motions of the District Court findings upon which the jury proceeded, this is not a case of unlawful acquisitions. The facilities plaintiff seeks to have stripped from Kodak are long established and integral parts of the organization unquestionably devoted in large measure for many years to constructive and lawful ends. The trademarks are likewise valuable, long-standing, and lawfully usable in diverse ways far transcending the boun- daries of this particular lawsuit. The pertinent injuries to plaintiff, assuming they were not amply remedied by the award of substantial damages, and their recurrence not deterred by the effect of the award, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485 (1977), could not justify the devastating remedy of divestiture, which would, in all the circumstances, be punitive rather than appropri- ately curative. See Hartford-Empire Co. v. Untted States, 323 U.S. 386, 409 (1945). ConcerninG CP&P As an alternative to divestiture of CP&P, Berkey seeks requirements that Kodak disclose to photofinishers infor- mation that has heretofore been given first, or only, to CP&P, thus giving the latter temporary or permanent advantages over other photofinishers. The prayer rests upon a verdict embodying findings, inter alia, that defendant has used its film monopoly unlaw- fully “to foreclose competition, to gain a competitive advan- tage, or to destroy a competitor” in the market for photo- finishing services. Berkey’s compensatory damages on this score were fixed at a relatively modest $55,700. Also part of the pertinent background is a 1954 consent decree in Umited States v. Eastman Kodak Co., (W.D.N.Y., December 21, 1954), which, inter alia, barred Kodak from selling its color films on a basis that included processing charges in a single purchase price; barred resale price maintenance on 145a Appendix C—Memorandum on Post-Trial Motions of the District Court color films; required Kodak to license processors of color film to use its machinery and processes on reasonable terms; required the furnishing of technical literature and assistance to competing color film processors for a stated period of time; required Kodak to sell processing chemicals needed for color film processing not otherwise available; and required Kodak to make Ektachrome type film avail- able in all formats in which it was then marketing Koda- chrome film. The evidence on this score showed, as the jury undoubt- edly found (and the court concurrently finds), that CP&P was given advance notice of the introduction of Kodacolor II and other 110 films that permitted it to prepare itself with the necessary processes, machinery, and facilities so that it alone among photofinishers could commence process- ing 110 film from the date of its introduction; that CP&P received useful information concerning defects in, and vari- ations among, the early emulsions of Kodacolor II which was withheld from independent photofinishers ; that the 110 photofinishing equipment sold to independent photofinishers was injuriously inferior to that manufactured by Kodak for its own use; and that all of these acts and omissions were inspired by an intention to handicap independent photofinishers in their competition with Kodak. Other instances of use of Kodak monopoly power in color print paper and film which the jury might have found and deemed wrongful included the provision of inferior proc- ess control materials to independent photofinishers as compared with those developed for CP&P’s use, refusal to supply formulae necessary for the employment of more economical bulk chemistry, rather than Kodak’s kits, and the incomplete information provided by Kodak’s technical sales representatives who simultaneously reported back to 146a Appendix C—Memorandum on Post-Trial Motions of the District Court Kodak on the effectiveness of independent photofinishers. All of these are items which reflect the use of Kodak’s monopoly power in film or color print paper to handicap competitors and discourage competition in photofinishing. It is plain that Berkey has a very rea] stake in the future conduct of Kodak’s film and paper operations which have been used in the past to give unfair and improper advan- tages over competitors to CP&P. The record supports the conclusion that Kodak will, unless enjoined, continue to engage in conduct of this sort. The problem is rooted in the structure of Kodak, where the film, paper, and processing operations are ultimately part of a single corporation. Believing divestiture to be uncalled for here, but convinced that a remedial scheme with lasting impact is needed, the court has given serious consideration to Berkey’s proposals for elaborate disclosure requirements. The details of Berkey’s proposals reflect the complexities of relationships in an area of complex technology. They also lead to instant awareness of how troublesome it would be for Kodak to share its. developmental secrets in this fashion with 600 or more photofinishers spread across the length and breadth of the land. A problem of balancing seems to emerge. Having employed its spectrum of monopoly powers to keep photofinishers subservient, frequently uninformed of vital things known to CP&P, and subject to the disruptive shocks of sudden change followed by belated clues for adaptation, Kodak is properly called upon to remedy this course of conduct affecting Berkey and other photofinishers in the future. The demand is specially compelling in light of the 1954 decree, which appears to have been frustrated, at least in spirit, by Kodak’s practice of favoring CP&P. If the remedy can be achieved, however, without undue injury to Kodak, that course should be pursued. 147a Appendix C—Memorandum on Post-Trial Motions of the District Court The court concludes that the simplest and most readily manageable technique will be for Kodak to treat all photo- finishers, including CP&P, alike in relevant respects. This will leave to Kodak power to disclose or not, but deprive it of the power to confer unfair and anticompetitive advan- tages upon CP&P. While it might seem superficially unrealistic, the record of this case coutains persuasive evi- dence that Kodak is able, when this is desired, to maintain walls of secrecy between its various components. Accord- ingly, the decree will contain a requirement that defendant make no disclosures to CP&P concerning new or modified films, color print paper, processing chemistry, cameras, pro- jectors, or photofinishing equipment without making iden- tical disclosures to all other photofinishers with which it does business. Though this is simply stated here, the pre- cise details of the decretal language, and any appropriate qualifiers, will, of course, be the subject of further consul- tations with counsel. Korak Apparatus Drvision DiscLosunes As in the case of photofinishing, plaintiff’s alternative to divestiture is a far-ranging program of compulsory dis- closure of technological changes in other Kodak products af- fecting the product lines of the Kodak Apparatus Division, which produces, inter alia, cameras, projectors, and photo- finishing equipment. Of particular importance among the varied and numerous other Kodak products whose introduc- tion or alteration might affect such KAD products are Kodak’s film and color print paper products. In addition to predisclosure requirements sought to be imposed affect- ing introduction of film and paper products, plaintiff seeks to bar introduction by KAD of new cameras and other product items which can be used with new or modified Kodak products from other divisions until eighteen months 148a Appendiz C—Memorandum on Post-Trial Motions of the District Court have elapsed from the time of the film or color paper intro- duction, or until at least two of KAD’s competitors have offered comparable equipment designed to take advantage of the new film or paper, whichever comes sooner. Finally, plaintiff seeks to impose on defendant the obligation to be- come a supplier of last resort of components needed to com- pete with KAD in manufacturing comparable products which are not otherwise available and which Kodak manu- factures for KAD’s use. Here, in contrast with the circumstances pertaining to photofinishing, the enormous sweep of what Berkey pro- poses, measured against Berkey’s minute and apparently disappearing stake in this matter, counsels a different kind of conclusion, The main concern in this area is with cam- era manufacturing, a function which it is represented, with- out, dispute, Berkey is abandoning. It is also undisputed that Kodak’s share of the relevant camera market has declined precipitously in recent years, although the exact amount of the decline in the last full year, 1977, is subject to some dispute. Our record also shows that most if not all of the camera manufacturers in the market defined by the jury, who would be the most direct beneficiaries of the proposed relief, are not within the United States. It is this foreign competition that has eroded Kodak’s share of the camera market. It may be that Berkey’s proposals would benefit the American consumer. It may be that they would not. The effects on American employment, and the econ- omy generally, are still more problematical. The court need not adopt defendant’s sometimes excessive appeals to patriotism in order to accept that interests far wider than our record and the court’s competence are implicated at this point. See United Shoe, supra, 110 F. Supp. at 347-48. The case would stand differently if the public’s Attorney General, chartered to speak for all the people, were here. 1499 Appendia C—Memorandum on Post-Trial Motions of the District Court See United States v. Borden Co., 847 U.S, 514, 518 (1954). And it is perhaps relevant that the court has been made aware of, and tangentially involved in, the Federal Gov- ernment’s separate pursuit of its interests in this situation. See GAF Corporation v. Eastman Kodak Company, 415 F. Supp. 129 (1976). Upon all the facts and circumstances the court concludes that the balance of the equities is against plaintiff with respect to the proposed requirements applic- able to the Kodak Apparatus Division. These will not be ordered. Deauines ArrectinGc CoMPLIMENTARY Propvucts Among the seemingly clearest courses of exclusionary conduct on Kodak’s part were its programs with Sylvania (in developing the magicube, from 1967 to 1970) and Gen- eral Electric (in developing the flipflash, from 1969 to 1975). The most obvious vice in these arrangements was Kodak’s successful pressure for secrecy, preventing other manufac- turers from developing cameras suitable for the flash device until after joint disclosures by the respective flash manu- facturers end Kodak. Attendant aspects of a dubious nature included Kodak’s acquisition of patents and patent licenses from the flash manufacturers with the strongly arguable purpose and intended effect of exacting tribute from other camera manufacturers as the latter sought to make up for Kodak’s head start with the magicube and the flipflash. The jury found, on ample evidence, that these arrangements unreasonably restrained trade, violating sec- tion 1 of the Sherman Act, and under the applicable instruc- tions undoubtedly included this conduct in its findings of section 2 violations. As part of the equitable relief, plaintiff seeks a broad set of prohibitions against dealings with any firm or person not a Kodak employee “relating to the design, development, 150a Appendix C—Memorandum on Post-Trial Motions of the District Court modification, advertising or marketing of any existing or proposed amateur camera, amateur film, color paper, pro- cessing equipment, any complementary product, component of any of the foregoing or materials, products or services for use in or cooperation with any of the foregoing,” except when accompanied by arrangements of early and full disclosure to all actual and potential competitors, shar- ing of information with these others, an opportunity for participation by the others, royalty free licenses, and other conditions designed to assure that Kodak receives no spe- cial advantage from any joint enterprise. Again, the proposed relief ranges light years beyond the occasion. It includes many things besides cameras, the cen- ter of plaintiff’s relevant (but disappearing), concern in this case.” *2 This is but one of several reasons for overruling the proposed provisions effectively to nullify a list of patents held by Kodak embraced in a separate headii g in the plaintiff’s petition. One aspect of these provisions covers the patents arising out of the magicube and flipflash programs. Berkey’s past ability to circum- vent these patents undercuts any claim of future harm stemming from the no longer novel technology. The threat of an infringe- ment action by Kodak against Berkey adverted to in Berkey’s papers gives slight pause, but does not require relief now; in any future action Berkey is entitled to attempt to prove patent misuse by Kodak barring it from enforcement. The remaining portion of plaintiff’s ambiguously framed proposal on patents would appar- ently bar Kodak from enforcing any patents it now owns or acquires in the next ten years on its major lines of products related to amateur photography. Patents were at most a minor part of the evidence that led the jury to find, and the court to affirm, that the flash programs were unreasonable restraints of trade and ex- clusionary conduct. There is no finding, and no warrant in our record for finding, a persistent course of patent abuse that would augur future harm to anyone, much less Berkey in its new situa- tion. The proposed relief affecting assertion of patent rights will not be embodied in the final decree. l5la Appendix C—Memorandum on Post-Trial Motions of the District Court There are infirmities in this prayer apart from its exces- sive breadth. While the violations in question seem at least as clear to the court as they did to the jury, there is no persuasive evidence that the verdict for damages, assuming it stands, will not serve as an adequate deterrent against repetition. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485 (1977). Berkey’s own interest in the sub- ject, minimal at best and apparently dwindling, is an exceedingly thin fulcrum on which to balance the world of “all” Kodak’s competitors which Berkey would have us reach. There is here, as elsewhere in this aspect of the case, a public interest, perhaps fairly to be phrased as a “na- tional interest,” a concern never to be lost from view in considering questions of injunctive relief at the instance of a “private attorney general.” See Zenith Corp. v. Hazel- tine, supra, 395 U.S. at 131, 133; ef. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Balancing the several interests, public and private, the court discerns no sufficient basis for this species of injunc- tive relief in this case. DisciosurE To Firm Anp Paper MANUFACTURERS The plaintiff proposes that Kodak be required to disclose information regarding new or modified Kodak film to color paper manufacturers, including the effects of the change on color paper and its processing, and modifications in the paper necessary to adjust to the film modifications. Such disclosure would have to be made in time to permit the paper manufacturers to respond to the changes prior to sale of the new film, would include all information given to Kodak’s color paper division, and would be given by the time of disclosure to that division. Similar disclosure of information regarding new or modified color paper types would be required for competing film manufacturers. 152a Appendix C—Memorandum on Post-Trial Motions of the District Court This prayer for relief is severely undermined by today’s ruling, supra, that the finding of liability respecting color paper cannot stand. In addition, it is subject to several objections similar to those noted in earlier connections. Any injury threatened to Berkey is at best remote, for it does not compete with Kodak in the manufacture of either film or color print paper. Nor does Berkey purchase film, except for purposes of resale, so that collateral effects of color paper modifications on film makers have at most a remote impact on it. The recent sharp decline in Kodek’s share of the color print paper market also serves to reduce the impact of any Kodak product modifications in this area. To be sure, as a user of color print paper in its photofinish- ing operation, Berkey has some interest in film modifica- tions affecting color print paper. Even so the effect on Berkey is at most secondary. More critically perhaps, the verdict does not reflect any finding of injury to Berkey as a result of privileged infor- mation exchanges between Kodak’s film and paper manu- facturing divisions. The record could not support a finding of such injury to Berkey or to anyone else. There is no evidence to support Berkey’s claim that paper and film were part of a wrongful system introduction, or any system introduction whatsoever. Thus, there is no showing of wrongful conduct in this regard in the past, and no showing of threatened injury to Berkey in this respect in the future. The limited circumstances in which introduction of phys- ically interdependent products may be deemed wrongful, stressed in connection with the motion for judgment not- withstanding the verdict, must be recalled here. Absent monopoly power and circumstances demonstrating that the physical interdependence was a tool for exclusion rather than a consequence of design for meritorious performance, there is nothing wrongful about introducing interdependent 153a Appendia C—Memorandum on Post.Trial Motions of the District Court paper and film should this occur in the future. While the decree need not be limited to violations shown to have occur- red in the past, it must not enjoin all possible breaches of law. Hartford-Empire Co. v. United States, 323 U.S. 386, 409-10 (1945). It follows a fortiori that there is no need and no grounds to enjoin so broadly conduct which in many or most circumstances would be wholly innocent. Insofar as wrongful injury may be threatened to Berkey as a photofinisher by reason of film innovations affecting it as a consumer of color paper, it will be adequately protected by the provisions assuring it.of treatment comparable to that received by CP&P. Accordingly, the relief sought under the present heading will not be granted. Prouisitions Acarnst Rerusaus To DEAL AND RELATED PRACTICES Berkey seeks an assortment of injunctive provisions af- fecting the terms on which Kodak sells its film, color paper, and processing services, and on which it supplies color print paper for use by CP&P. These provisions would require Kodak to: (1) make each variety of film available for sale in any length, width, format and form of trade dress or identifying labeling and packing requested by any customer, at a reasonable price as defined by its prices and profits on other film sales; (2) discontinue selling and using color print paper bearing any insignia identifying Kodak as its manu- facturer ; (3) accept for processing non-Kodak film, and slides and negatives made from non-Kodak film, at a 154a Appendix C—Memorandum on Post-Trial Motions of the District Court reasonable price as defined by its prices on the proc- essing of Kodak film; and (4) abolish its policy restricting CP&P to use of Kodak manufactured color paper, equipment, chemi- cals, and other supplies, and require CP&P to pur- chase at least 40% of its requirements of such products from non-Kodak vendors whenever prod- ucts “substantially comparable” in quality to Kodak’s are available at prices lower than Kodak’s. The relief sought extends well beyond the wrongs affect- ing Berkey proved to the satisfaction of the jury or the court and therefore is to be denied in major part. The proposed provisions relating to the availability of film respond to wrongs which, if established, affected Berkey only indirectly. As for the necessary showing of future injury by threatened repetition of these wrongs, the case is even weaker. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130 (1969). The restrictions on film availability, if wrongful, were only found to be so on the basis of particular facts and circumstances which added up to an overall pattern of willful maintenance of monopoly power. This is most clear as ‘to the restriction of availability of Kodacolor II to the 110 format immediately upon its introduction. While injunctive relief need not be limited to the precise acts found illegal, Zenith Radio Corp. v. Hazeltine Research, Inc., supra, 395 U.S. at 132; Hart- ford-Empire Co. v. United States, 323 U.S. 386, 409 (1945), the scope of past wrongs informs the court in its exercise of discretion as to injunctive relief for the future. It is pertinent, therefore, that the conduct Berkey wishes to have broadly enjoined occurred only in a specific setting unlikely to recur after the judgment herein. The court also notes that the relief sought would mainly benefit others than 155a Appendix C—Memorandum on Post-Trial Motions of the District Court Berkey, a consideration of recurrent importance in this private action. Similar thoughts apply in large part to the proposed ban on the placement of a Kodak backprint on its color print paper. The primary beneficiary of such relief would be Kodak’s paper competitors. On the other hand, the evi- dence sustains a finding that Kodak, in its unique role as both paper manufacturer and photofinishing competitor, gained an unfair advantage over the photofinishers by virtue of its monopoly power, in that Kodak paper was only available with the backprint to independent photofinishers. In the setting of Kodak’s monopoly power in color paper this was, or could be found to be, a device to force Kodak’s photofinishing rivals to advertise their competition.** The undisputed fact that Kodak provides neutral paper to Polaroid, presumably responding to similar concerns when expressed by a more powerful bargaining partner, shows that no undue hardship would be imposed on Kodak by requiring it to sell its color paper with or without the back- print at the option of the purchaser. Although Berkey no longer purchases the bulk of its paper from Kodak, the absolute volume of its purchases is large, and the photo- finishing operation continues to be the backbone of Berkey’s business. The harm threatened to Berkey for the future is clear. The evidence reflects no hardship for Kodak in omit- ting the backprint. Therefore, the decree to be entered will require Kodak to sell color print paper without the backprint at the option of the purchaser. 88 The court’s conclusion, supra, that the use of the backprint to injure photofinishers is insufficient to support the verdict of liability for monopolization of color print paper does not bar the award of equitable relief. The record amply supports a finding that future harm to Berkey by this wrongful use of Kodak’s monopoly power in color print paper is threatened. 156a Appendix C—Memorandum on Post-Trial Motions of the District Court se — The proposed requirement that Kodak process the film of all manufacturers is on even weaker ground than the film availability proposal. Not only is the posited effect of Kodak’s exclusive policy on Berkey remote, and possibly incredible, resting on the hypothesis that (1) this policy cripples film competitors despite Kodak’s low market share and relatively high processing charges, and that (2) this in turn burts Berkey, which might process some share of an enhanced market of non-Kodak film. The theory is also somewhat paradoxical. The evidence shows that Berkey has been a leading processor of non-Kodak films and thus might be hurt by such a provision. It might be sufficient in the end ‘to say that Kodak’s exclusive processing policy was a modest aspect of the wrongful conduct which the jury might have found and that its prevention by injunction is not justified. More basic problems infect the proposal that CP&P be freed to purchase non-Kodak supplies and mandated to do so where appropriate supplies are available below Kodak’s price. In the one area where the jury might have found Kodak at fault in this respect, the purchase of color paper, the verdict is being set aside. In any event, Berkey is not a manufacturer of any of these supplies and cannot claim injury in that capacity. Prourpitions AFFECTING Systems SELLING The subject of photographic systems broadly defined was the one most extensively addressed by the evidence. It was plaintiff’s contention, clearly and appropriately accepted by the jury, that certain uses of photographic systems by Kodak represented anticompetitive methods by which the defendant enlarged, maintained, and expanded into allied fields its several monopoly positions. The most important 157a Appendix C—Memorandum on Post-Trial Motions of the District Court and extensive matter under this heading was the coordi- nated development in secret, and public presentation in March 1972, of Kodak’s initial line of 110 cameras, Koda- color II film in the 110 format, new photofinishing equip- ment, and a new photofinishing process. The jury evidently found the effects of this included giving Kodak temporary absolute monopolies in several markets, rendering competi- tors’ inventories obsolete, and otherwise handicapping com- petition in the affected markets. Another, less sweeping and devastating development of the same nature was the simultaneous introduction of the XL movie cameras, Ektachrome 40 and 160 movie film types, and Ektachrome Autoprocessor in August 1971. The jury could have found this to have been exclusionary conduct in the film market, although for any one of several possible reasons it found Kodak not liable for attempted monopolization of the movie camera market. As noted above, the jury’s verdict reflects a determina- tion that the 110 system was a deliberate, anticompetitive mode of economic warfare rather than unobjectionable com- petition on the merits. The same finding could have been made as to the XL system. The court has concluded that this aspect of Kodak’s conduct lends powerful support to key aspects of the verdict. Claiming that the remedy must be more than money damages, plaintiff now asks for a variety of forms of injunc- tive relief intended to prevent Kodak from reaping anti- competitive benefits from photographic systems. Major aspects of these prayers, including divestiture and predis- closure, have been treated earlier. Under the present head- ing the plaintiff asks for provisions governing the merchan- dising (as distinguished from introduction) of photographic systems. Plaintiff now asks that Kodak be required to assign sep- arate personnel and separate advertising agencies to each 158a Appendix C—Memorandum on Post-Trial Motions of the District Court of the following products or lines of products: 1. Conventional still cameras Instant cameras Movie cameras Slide and movie projectors Amateur conventional film Instant film Color print and processing services Photographic paper Far SF SP ey Any other product or group of products sold by defendant. Further, plaintiff would have Kodak enjoined from pack- aging, advertising, or promoting more than one product at a time in any fashion, and would require Kodak to an- nounce, in advertisements and elsewhere, that it is in no respect necessary or advantageous to use complementary Kodak products rather than a competitor’s in conjunction with a particular Kodak product (as: film with cameras, film with processing services, film with color paper, cameras with film). Finally, Kodak would be required to use its best efforts to prevent any person other than a retailer from using or recognizably depicting Kodak’s name, trademarks, other trade names, identifying insignias, or products in any way in advertising, promotional material, or any other manner. Again, the prayer for relief outruns the proof and the needs of the plaintiff. As reflected in the charge to the jury at the conclusion of the liability trial, the advertising and promotion of products in the form of systems was a minor element in the case. It could at most be corroborative of 159a Appendiz C—Memorandum on Post-Trial Motions of the District Court the exclusionary nature of the introduction of new product systems, and could not represent a discretely cognizable form of wrongful conduct in and of itself. There was no occasion to find, the jury did not find, and the court would not be prepared to find that the merchandising of photo- graphic systems must be deemed wrongful, always or every- where. Nor is there in the present record sufficient basis to conclude that wrongful instances of “systems selling” are “likely to continue or recur.” Zenith Radio Corp. v. Hazel- time Research, Inc., 395 U.S. 100, 130 (1969). What the verdict may be fairly held to establish is that the sudden explosion of new “systems,” where Kodak has monopoly power in several interrelated markets, where the evident purpose is not a boon to consumers but a blow to competitors, and where other indicia of monopolistic intent are present, might well be found another time to be evidence of a violation of section 2 of the Sherman Act. If such things come to pass, merchandising appeals for such wrong- fully introduced systems may conceivably play an exclu- sionary role. But the prospective relief plaintiff seeks would forbid all kinds of conduct outside the dimensions, or even broadest penumbra, of what was proved or fore- told of this case. No justification is shown either for the sweeping proposal plaintiff makes on this subject or for any lesser version. Rosrnson-PatmMan Act Provisions Having found the verdicts on liability to be barely suffi- cient to withstand Kodak’s motion to set them aside, and having set aside the awards of damages under this heading, the court denies the injunctive relief for which plaintiff moves. The prayer is for a sweeping prohibition against future violations of section 2(f) in all spheres of Kodak’s operations and against Kodak’s purchasing on terms not 160a Appendix C—Memorandum on Post-Trial Motions of the District Court stated in generally available price lists maintained by its suppliers. Nothing in the record shows any threat of harm to Berkey through repetition of the practices demonstrated at trial. Even on a stronger record, it would be highly questionable to order wholesale compliance with “the law” embedded in the uncertainties of Robinson-Patman. See Hartford-Empire Co. v. United States, 323 U.S. 386, 410 (1945). The requested relief on this score will be denied. ResmpuaL CATEGORIES The proposed decree embodies a variety of other items, such as a requirement that Kodak afford functional dis- counts to wholesalers and original equipment manufacturers as well as quanity discounts; a prohibition against market allocation, including allocation among different Kodak com- panies; and a long list of orders enjoining such things as full-line forcing and minimum quantity requirements for Kodak dealers, cross-subsidization among different Kodak operations and sales below costs, restrictive covenants in employee contracts, and all manner of acquisitions of tech- nology, patents, trademarks, assets, or other business inter- ests. Plaintiff’s arguments supporting these various forms of relief have been considered in detail. Most of the items sought are related to conduct about which there is no evi- dence in the record. Others, if adverted to in passing, were never considered by the jury as bases for finding wrongful maintenance of monopoly or any other illegality. Without pursuing them in further detail, these sundry items are denied. To summarize on the two motions before the court: I. Defendant’s motion for judgment notwithstanding the 16la Appendix C—Memorandum on Post-Trial Motions of the District Court verdict is granted to the extent that (A) the award of $1,417,330 on the claim respecting magicube cameras for the year 1971 is set aside; (‘B) the award of $8,803,000 on the claim for overcharges on color print paper is set aside; and (C) the awards of $200,000 and $45,100 for violations of section 2(f) of the Robinson-Patman Act are set aside; and is otherwise denied. II. Plaintiff’s prayer for equitable relief is granted in the two enumerated particulars, and is otherwise denied. These rulings will be embodied in a final judgment to be prepared in consultations between counsel and the court. Dated, New York, New York June 16, 1978 Marvin EB. FranKEL U.S.D.J. 162a APPENDIX D Opinion of the District Court (dated August 8, 1978) UNITED STATES DISTRICT COURT SournHern District or New York Berkey Puorto, INc., Plaintiff, ie al 73 Civ. 424 (MEF) Eastman Kopak Company, Defendant. APPEARANCES: Parker Chapin Flattau & Klimpl 530 Fifth Avenue New York, N.Y. 10036 Attorneys for Plaintiff Alvin M. Stein, Esq. Barry J. Brett, Esq. Of Counsel Sullivan & Cromwell 125 Broad Street New York, N.Y. 10004 Attorneys for Defendant William Piel, Jr., Esq. John L. Warden, Esq. Richard E. Carlton, Esq. Of Counsel FRANKEL, D. J. Defendant moves variously for a new trial, to amend the judgment, and for reargument of its motion for judgment 163a Appendix D—Opinion of the District Court notwithstanding the verdict. Some of the contentions made in this fashion are merely stated, not argued in any sub- stantial sense, and may be left for full airing elsewhere. The questions that seem to merit treatment here, and their resolution, are as follows. I. Perhaps the headiest of the subjects now presented, for the first time in this long litigation, is a cluster of consti- tutional issues as to Section 2 of the Sherman Act and Sec- tion 4 of the Clayton Act, on their face to some degree but more particularly as applied in this case. In its broadest form, defendant’s attack on 4$ 2 of the Sherman Act as void for vagueness on its face would re- write 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 authori- ties 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’ or United Shoe,? nor * * * contend that the results reached there were necessarily unconstitutional.”* 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 con- 1 United States v, Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945). 2United States v. United Shoe Machinery Co., 110 F. Supp. 295 (D. Mass. 1953), aff’d per curiam, 347 U.S. 521 (1954). ® Memorandum Concerning Constitutional Issues 5. 164a Appendix D—Opinion of the District Court cepts like “honestly industrial,” “exclusionary,” and “anti- competitive,” for purposes of decreeing future changes in the lives of large corporations. It is something quite differ- ent to unleash a jury under such concepts to consider large money claims “that retrospectively punish conduct newly found to violate the law.” 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 “retro- spectivity,” however close defendant now comes to accept- ing Alcoa and United Shoe as not “necessarily unconstitu- tional,” 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 (1946), the claim that a fundamental alteration in the law of monopolization was effected has been squarely re- jected. See Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 495-502 (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 mo- nopolization offense does not require proof of conduct not honestly industrial. Jd. at 496. 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 per- mitted them to do all acts conducive to the creation *Id. at 6 (emphasis in original). 165a Appendix D—Opinion of the District Court or maintenance of a monopoly so long as they avoided direct exclusion of competitors or other predatory acts.” (Footnote omitted.) Id. at 499.° 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 on 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. 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 jaries, routinely determine civil liabilities by * The dominant thread of continuity described by the Court is but one of severai sufficient reasons for rejecting Kodak’s argu- ment that prior decisions affirming the constitutionality of the Sherman Act are not controlling here. The court rejects this argument as totally unfounded. 166a Appendix D—Opinion of the District Court 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 under- standing would draw into desperate question a large por- tion 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,” about the jury’s being commissioned “to consider and weigh in an undefined manner” an array o. evidentiary factors,’ about the “subjective” form in which terms like “exclu- sionary” and “anticompetitive” were used—* such com- plaints, 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—like compendious findings on a host of. evidentiary factors, often with the gravest consequences, as to whether there has been proof of states like “malice,” “willfulness,” or “negligence,” “recklessness,” “wanton- ness,” and “good faith.” The modest extrapolation of the settled principles of Alcoa and United Shoe to new facts could not have aston- ished defendant’s legal advisors. Our record reveals that Kodak’s counsel warned of potential liability for practices involving gratuitous use of photographic systems. Such practices in fact constitute the central core of the conduct ® Memorandum Concerning Constitutional Issues 11. 7 Id. ® Td. at 12. 167a Appendix D—Opinion of the District Court supporting the monopolization verdicts in this case. More generally, Kodak had plenty of experience and advice from which to imagine, more than vaguely, that its powers as a monopolist, previously questioned in court by both the Gov- ernment and private parties, should be used with care and consideration. Kodak invokes Mr. Justice Frankfurter’s observation, in dissent, that “[t]he vagueness of the Sherman Law was saved by imparting to it the gloss of history.” F.T.C. v. Motion Picture Advertising Service Co., 344 U.S. 392, 405 (1953). History did not stop in 1912. The years since then are marked by a familiar process of gradually shifting interpretation of the Sherman Act, without any radical breaks, as the Court observed in Hanover Shoe, supra. As frequently happens, defendant cheerfully accepts old cases that made new law, but urges strenuously that the course of organic growth had to stop before this case.° The general suggestion of differences between cases in equity—where divestiture, deep changes like bans on leas- ing machinery, and other drastic measures may be taken— and damage suits is scarcely compelling on the question of what may be void for vagueness. Not only is the point unpersuasive as an original abstraction; it is actually premised upon an inaccurate supposition that there is a * Kodak pursues its course of misconception. in observing that Otter Tail Power Co. v. United States, 410 U.S. 366 (1973), Sar- gent-Welch Scientific Co. v. Ventron Corp., 567 F.2d 791 (7th Cir. 1978), petition for cert. filed, 46 U.S.L.W., 3695 (May 1, 1978), and Greyhound Computer Corp. v. International Business Ma- chinery Corp., 559 F.2d 488 (9th Cir. 1977), cert. denied, 46 U.S.L.W., 3453 (Jan. 16, 1978), relied upon by this court to cor- roborate its interpretation of the seminal Alcoa and United Shoe precedents, were decided after the introduction of the 110 camera. None of these cases purported to depart from settled precedent; had they done so the defendants therein could presumably have raised the argument made here by Kodak. 168a Appendix D—Opinion of the District Court sharp dichotomy between suits in equity and damage claims. As plaintiff reminds us, United Shoe, pressed by defendant as a major example of the gentler equity sanc- tions, served in fact as predicate for private damage awards. Hanover Shoe v. United Shoe Machinery Corp., 245 F. Supp. 258 (M.D.Pa. 1965), vacated in part on other grounds, 392 U.S. 481 (1968). And that is, of course, a standard course of events, explicitly charted by statute, 15 U.S.C. § 16 (1976). Further elaborating the claim that it met an unforesee- able fate under a vague statute unpredictably applied in this case, Kodak urges that the standards under which the jury decided were insufficiently “objective.” In fact, Kodak says, the jury proceeded without “any ascertainable stand- ard***.’*° The court, it is claimed, acted “legislatively and defined a new violation of Section 2”" leading to a verdict which must be condemned as “subjective determination” and a “legislative act.”** The settled terms of familiar antitrust precedents cannot be constitutionally adminis- tered in a jury trial, defendant argues, because they are unintelligible to those they govern. “Whatever meaning words and phrases like ‘anticompetitive,’ ‘exclusionary,’ ‘honestly industrial’ and ‘thrust upon’ might have to judges and specialists in arcane antitrust law, they could have no comprehensible meaning to lay jurors or business people.’”* As is recurrently true in the motion papers now before the court, these contentions include some remarkable post- verdict novelties. Repeatedly in its own requests to charge Kodak employed words—“anticompetitive,” “exclusionary,” 1° Memorandum Concerning Constitutional Issues 10. "7d. at 13. 127d. at 14, 16. 137d. at 19. (169a Appendix D—Opinion of the District Court “substantial,” “isolated,” “significant,” “trivial”—that it now assures us are too imprecise to achieve a constitutional minimum of guidance for jurors. The revealing signifi- cance of such an altered stance, even apart from the tech- nical waiver of the new arguments, is clear without ex- tended comment. In any event, if it were permissible at this late juncture, the claim of vagueness of the offense as appliel in this case would have to be evaluated in the setting of the charge as a whole, not by conjuring with a handful of words, stripped of the context intended to give them meaning. Some 24 legal-size pages were devoted to the explication and defini- tion of exclusionary conduct in the court’s charge to the jury. The merits or errors to be found in the full charge, along with the contributions or non-contributions to the final product by the parties in the long hours of consulta- tion and study by court and counsel, will ultimately have to be decided by a higher tribunal. It is pertinent, how- ever, to protest that the court defined the applicable legal standards as precisely, objectively, and intelligibly as it could. When asked for suggestions to tighten any remain- ing ambiguities, defense counsel was only able to suggest language wholly withdrawing the central factual questions from the jury, by instructing that introduction of new prod- ucts and the failure to predisclose them could under no circumstances be found to be wrongful conduct. The court’s reasons for rejecting these proffered rules of per se non- liability are set out in the Memorandum on Post-Trial Motions and need not be repeated here. Viewed in this light, however, it becomes clear that the true gravamen of defendant’s argument is not the assertedly vague definition of the offense, but the court’s interpretation of § 2 of the Sherman Act in light of the major precedents. In any event, defendant’s submission that it has been 170a Appendix D—Opinion of the District Court entrapped by a vague statute into an astonishing judgment nobody could have predicted presents a remarkably trun- cated and inaccurate view of the proceedings. Defendant argues its constitutional position much of the time as if the verdict rested on the simple and fantastic proposition that a manufacturer must disclose in advance new products or product systems. If that were the case, one would be hard put to know how or why defendant spent more months than plaintiff putting on its evidence to avoid liability. Actually, of course, there never was or could have been any such finding. At other times, ricocheting to another unreal extreme, defendant complains that it was condemned for its mere “status” as a monopolist, finding it possible in that context to cite as relevant authority the protection from such a fate given for a narcotics addict in Robinson v. Cali- fornia, 370 U.S. 660 (1962). But, of course, this case, and settled law, involves neither “status” nor conduct alone. What the jury was permitted to consider was a claim that the proof showed (1) an awesome degree of monopoly power, (2) an array of arguably anticompetitive actions in the exertion or maintenance of that power, and (3) result- ing injury to plaintiff. The question of predisclosure, albeit a prominent subject, was only one of a number of matters to be considered in deciding the second element. It is thus neither accurate nor useful to insist starkly that the case stands for some vague, general requirement of predis- closure. It is as if United Shoe were read to outlaw long- terms [sic] leases of machinery, Alcoa to forbid systematic expansion of productive capacity, or United States v. Grif- fith, 334 U.S. 100 (1948), to condemn bargaining for first- run movie exhibition rights. Another barrage of new constitutional ideas following the verdict is aimed at the award of treble damages. As will appear below, many of these contentions, if they had 17la Appendix D—Opinion of the District Court merit, would be foreclosed because all of them, including those that do not flatly reverse prior positions, should have been offered as requests to charge the jury. Defendant’s broad submission is that the statutory authorization of treble damages in § 4 of the Clayton Act offends against at least three protections of the Bill of Rights (in the Fifth, Sixth, and EHighth Amendments). The argument begins with the proposition, quoting a phrase from an 1890 debate, that the provision is “purely penal and punitive.’* Even on the level of labels, if they were decisive, defendant would not get very far with this point. The cases, including several quoted by defendant, are agreed that § 4 is not “penal” in any sense useful to defendant. Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477 (1977) ; ef. City of Atlanta v. Chattanooga Foun- dry € Pipeworks, 127 F. 23, 28-29 (6th Cir. 1903), aff'd, 203 U.S. 390 (1906) ; Leonia Amusement Corp. v. Loew’s Inc., 117 F. Supp. 747, 756 (S.D.N.Y. 1953) ; Winkler-Koch Engineering Corp. v. Universal Oil Products Co., 100 F. Supp. 15, 29 (S.D.N.Y. 1951). The fact that some authori- ties also indicate that the trebling of damages serves a puni- tive funtion in addition to its compensatory, deterrence, and remedial functions, does not vindicate defendant’s con- stitutional thesis. The idea of punitive damages, and, specifically, treble damages, in civil cases, to be assessed by the court, not the jury, is no novelty. See Seymour v. McCormick, 57 U.S. (16 How.) 479, 487-88 (1853). Nor is the principle affected by the large size of the verdict in this case against a self-described “giant.” It is worth not- ** From a speech of Senator Hoar, 21 Cong. Rec. 3147 (1890), reprinted in 1 E, Kintner, The Legislative History of the Federal Antitrust Laws and Related Statutes 283 (1978). The remarks of Senator Regan, following those of Senator Hoar, stressed the com- pensatory and non-criminal nature of treble damages. Id. 172a Appendix D—Opinion of the District Court ing in this connection that our record reflects the difficulty confronting a plaintiff seeking to prove actual damages in a monopolization case. The task, as plaintiff’s counsel aptly described it, is to attempt the reconstruction of “a world that never was.” In some instances the court was required to disapprove all plaintiff’s proposals for measur- ing particular categories of damages, despite the fact that no alternative was presented by the defendant and despite the probability that some injury, however uncertain in amount, had been inflicted upon the plaintiff. Thus the trebling of damages is compensatory in the special sense that it tends to ensure, albeit in a rough fashion, that wrongs do not go unredressed because of the inherent diffi- culty or impossibility of proving all items of damages. We turn to a series of arguments based upon constitu- tional theories which the court will dismiss on the grounds, inter alia, that they contradict positions taken before the charge and verdict or inject novel views of the law that the court was never given timely opportunity to consider for inclusion in the jury’s instructions. Taking these in order, the first is not the least astonishing: the court was required to charge, Kodak says, that the jury must find specific intent to monopolize, like the mens rea required in most criminal offenses. Not only was this never suggested earlier; even as late as its motion for judgment notwith- standing the verdict, Kodak was complaining that the court had erred in allowing the jury to consider intent in any way at all on the charge of monopolization. See the court’s Memorandum on Post-Trial Motions of June 16, 1978, pp. 16-19. Changes of position so late and breathtaking are an imposition upon the court and opposing counsel. Defendant’s contention is in any event devoid of merit. The opinion in United States v. United States Gypsum Co., 46 U.S.L.W. 4937, 4941, 4941 [sic] n. 13 (June 29, 1978), which held that mens rea was an element of the criminal offense under §1 of the Sherman Act, as a matter of com- mon law doctrine concerning criminal offenses but not as a 173a Appendix D—Opinion of the District Court matter of constitutional law, expressly noted that no such requirement applies to civil antitrust offenses. Similar to the new thought about mens rea are defend- ant’s complaint that plaintiff was not required to prove its case beyond a reasonable doubt, that Kodak was entitled to a presumption of innocence, and that Kodak was entitled to indictment by grand jury as a prerequisite to trial on the claims in this action. Defendant never raised any of these exotic thoughts before. They are not tendered, how- ever, as complaints about the instructions actually given, but to implement the thesis that the judgment in this case imposes what amount to criminal sanctions. They are not significant additions to the basic point, which has been con- sidered earlier. Finally, defendant now opines that the Seventh Amend- ment required the jury, not the court, to assess treble dam- ages if they were allowable at all. Kodak took the pre- verdict position everyone else had taken until now—that the question was for the court, not the jury. This is undis- putedly the law, and reflects a clear congressional intent that trebling of damages be automatic. Noble v. McClatchy Newspapers, 533 F.2d 1081, 1091 (9th Cir. 1975), vacated on other grounds, 433 U.S. 904 (1977) ; ef. Lehrman v. Gulf Oil Corp., 500 F.2d 659, 667 (5th Cir. 1974), cert. denied, 420 U.S. 929 (1975); Herald Co. v. Harper, 293 F. Supp. 1101 (E.D. Mo. 1968), aff’d, 410 F.2d 125 (8th Cir. 1969). II. Defendant’s arguments on liability and the amounts of the several damage awards retrace for the most part ter- rain that has been traversed repeatedly at several stages of this lengthy case, both before and after the verdicts. Many of the arguments were recognized throughout to be substantial, and their force has not diminished in the proc- 174a Appendix D—Opinion of the District Court ess of further refinement and rethinking. Some of the arguments now made are novel, were not presented (or certainly not presented in their present shape) at earlier stages, and may come too late for this reason. In any event, having studied each contention, the court finds no sufficient reason either for granting a new trial or for modifying the judgment. Nor does it seem useful to add to the nist prius literature with repetitions or elabora- tions of views heretofore recorded. It should be acknowledged, however, that at least two of the contentions now made with special cogency have given the court special pause: (1) the argument against film damages prior to the 110 camera introduction, and (2) the argument for reduction of film damages on grounds of non- comparability of other manufacturers’ film. It is a close question indeed whether the relevant evidence of anticom- petitive conduct within the limitations period preceding March 1972 supports the award for that period. And the evidence of comparability in two or three categories is scarcely imposing. Nevertheless, having tarried at some length over these problems, the court arrives in the end at a reaffirmation of the judgment as it was entered. Without responding here in any detail to the character- istically full memoranda of the parties, the court recalls one or two basic thoughts. First, there was enough evi- dence of conduct the jury could have found anticompetitive carrying over from before 1969 into and through the period in suit. While conduct preceding 1969 could not be, and was not, allowed as grounds for liability in itself, its con- tinuation was available and presented to the jury with re- spect to the succeeding times open for judgment. A second, related point is the court’s premise, contrary to defendant’s, that the heart of the offense denounced in Sherman § 2 is the monopoly power enabling its possessor to block com- 175a Appendix D—Opinion of the District Court petition and exact an excessive, monopolist’s price. On this premise, while proof of anticompetitive conduct in ac- quiring or maintaining the power has been held by the court (contrary to plaintiff’s view) to be essential to com- plete proof of the offense, plaintiff is not required to show either that this conduct in itself accounts for the excessive price or was in itself the sine qua non to continuation of the monopoly power during a particular period under scrutiny. If this premise is wrong, the verdict may well be infirm. Having reconsidered it once again, however, the court adheres to it. The court has similarly revisited doubts concerning the extent of the jury’s award on film, particularly on the issue briefed effectively by defendant concerning comparability vel non of other makers’ films as the basis for computing the excessiveness of defendant’s price. Again, however, the court finds the evidence sufficient in the last analysis to sus- tain the jury’s award. Where a monopolist, like Kodak in this case, comes close to having the whole national market, the proof of comparability is a large challenge. If the whole subject were narrowed to this focus, plaintiff might be deemed to have failed with respect to some categories of film products. It is to be remembered, however, that the measure of damages starts from a thorough demonstration that de- fendant was exercising unlawful monopoly power and charging prices yielding clearly monopolistic returis. Where the competition was so thin as to approach non- existence, we might plausibly have started with Kodak’s remarkably huge rate of return on investment on film (ranging from 61% to 70% over the years in question), considered the evidence as to sharply lower rates of return on non-monopolized products (demonstrated with respect to some of Kodak’s lines), and employed the difference as 176a Appendix D—Opinion of the District Court a basis for computing the unlawful excess. Ixdeed, plain- tiff proposed several such means of computing film over- charge damages. Two were withdrawn after the court in- timated an adverse ruling, and the third and final one, PX 6257 for identification, based on application of Kodak’s roughly 30% return on investment on x-ray film sales, was not allowed by the court to be placed before the jury. The damages computed on PX 6257, $25,181,000, far exceed the more generous of the two price comparison measures the jury was permitted to consider, and would be more than double the actual award. Kodak urged, and the court agreed, that comparisons ‘with other manufacturers’ prices would yield a more ap- propriate approximation—on a matter for which approxi- mations are, after all, the best we can achieve. Starting from this base, the jury was admonished that plaintiff could recover nothing on account of higher Kodak prices resulting from “circumstances and conduct on Kodak’s part that were lawful and permissible—such factors as higher quality, better marketing methods, superior service, cus- tomer preference and elements urged by defendant.” The jury was also instructed that it could accept or re- ject Berkey’s contentions regarding comparability in whole or in part. In awarding a sum $3,203,000 less than the maximum claim Berkey was allowed to place before it, the jury may well have exercised judgment as to the imperfect comparability of competing film with Kodak film. A find- ing of differences in film quality would not require a con- clusion that they account for the entire price difference. Nor does the scarcity of comparable film in some market sectors demonstrate the absence of injury. Recalling the vastly more generous award that would result from com- parison to the non-monopolized x-ray film market, while standing behind the ruling eschewing unnecessary specula- 177a Appendix D—Opinion of the District Court tion, and granting that the basis for finding comparability (even though all the evidence points to identical species of consumer uses) is hardly conclusive, the court does not find that the actual sum awarded must be condemned as unreasonable. Taking the pertinent evidence as a whole, and stressing again the familiar principle that an injured antitrust plain- tiff is often unable, and is not required to prove damages with close precision, the court concludes once again that the film damage award, if undoubtedly generous, was within the range of permissible jury judgment. ITT. The trial began with a jury of six and six alternates. As a result of a procedural modification initiated by the court on its own motion, defendant’s liability was eventually determined by a unanimous jury of ten rather than six.*® Much later, after six days of deliberations on liability, one juror was excused by the court in a telephone call in the *® After the trial had been under way for three months or 80, the court realized that because the proceedings were bifurcated, an avoidable complexity might arise at the end of the first phase if customary practice was followed. That is, if the alternates were excused when liability deliberations began, and if, as came to be the case, defendant was found liable, we would proceed to the damages trial (of substantially greater length than most trials) with no alternates at all. To avoid this the parties were invited to stipulate, and did stipulate, that all jurors, regulars and alter- nates, who remained with us when it came time to decide would participate in [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0915%3A2. Public record. Not legal advice.