The reservation in
Simpson v. Union Oil Co.,
377 U. S. 13, of
the question whether there might be any equities that would warrant
only prospective application in damage suits of the rule governing
price-fixing of nonpatented articles by the "consignment" device,
announced therein, was not intended to deny the fruits of
successful litigation to petitioner. The question was reserved for
possible application in other cases where product distribution was
structured on different considerations.
Certiorari granted; 411 F.2d 897, reversed.
PER CURIAM.
This case represents the aftermath of our decision in
Simpson v. Union Oil Co., 377 U. S.
13, where we held that a "consignment" agreement for the
sale of gasoline, required by Union Oil of lessee of it retail
outlet, violated the Sherman Act, 2 Stat. 209, 15 U.S.C. ยง 1
et
seq. The case was remanded for a hearing on other issues and
for a determination of damages. The last sentence of the Court's
opinion stated:
"We reserve the question whether, when all the facts are known,
there may be any equities that would warrant only prospective
application in damage suits of the rule governing price-fixing by
the 'consignment' device which we announce today."
Id. at
377 U. S.
24-25.
On remand, the District Court interpreted this sentence as an
invitation to determine if any "equities" were
Page 396 U. S. 14
present which would warrant precluding the imposition of damages
on Union Oil. Its finding was that an application of the rule
announced by this Court to the damages action would be unfair, on
the ground that the decision in
United States v. General
Electric Co., 272 U. S. 476,
gave Union Oil a reasonable basis for believing that its actions
were entirely lawful. The Court of Appeals affirmed.
The petition for certiorari presents the question whether, in
this case, the principles we announced in
Simpson v. Union Oil
Co. should be made prospective in the present litigation. We
grant the petition on that question and deny it on the other
questions tendered, and we reverse the judgment below.
We held when the case was here before that, on the facts of
record, the use of the "consignment" device was within the
prohibited ban of price-fixing for nonpatented articles,
377 U.S. at
124, and that,
"on the issue of resale price maintenance under the Sherman Act
there is nothing left to try, for there was an agreement for resale
price maintenance, coercively employed."
Id. at 24.
The question we reserved was not an invitation to deny the
fruits of successful litigation to this petitioner. Congress has
determined the causes of action that arise from antitrust
violations, and there has been an adjudication that a cause of
action against respondent has been established. Formulation of a
rule of law in an Article III case or controversy which is
prospective as to the parties involved in the immediate litigation
would be most unusual, especially where the rule announced was not
innovative. Since parties in other cases might be shown to have
structured product distribution on quite different considerations,
we reserved the question whether, in some of those other situations
equity might warrant the conclusion that prospective application
was the only fair course.
Reversed.
Page 396 U. S. 15
MR. JUSTICE BLACK, concurring in part and dissenting in
part.
I wholeheartedly concur with the decision of the Court that both
courts below were in error in holding that petitioner was not
entitled to any damages in this case. I dissent, however, from the
Court's denial of certiorari on another question that petitioner
raises, the effect of which is to leave standing that part of the
District Court's judgment setting aside petitioner's jury verdict
as excessive and granting respondent a new trial on the issue of
damages.
The District Court's grant of a new trial did not rest upon a
finding that any of the evidence on the issue of damages was
improperly admitted or that the instructions to the jury were
erroneous. The judge granted the new trial on the ground that the
$160,000 verdict
"is against the weight of the evidence, shocks the conscience,
is grossly and monstrously excessive, is the result either of
passion and prejudice or of consideration by the jury of factors
irrelevant to the litigation, is speculative, conjectural and a
miscarriage of justice."
Civil No. 37,344 (D.C.N.D. Cal., filed May 23, 1967).
I do not agree that, under the facts of this case, the verdict
should have shocked the court's conscience. Certainly the $160,000
award does not shock my conscience, nor does it seem to me
monstrous or the result of passion and prejudice on the part of the
jury. Petitioner's growing filling station business was destroyed
by respondent through conduct that this Court held to be in
violation of the antitrust laws.
See Simpson v. Union Oil
Co., 377 U. S. 13
(1964). At the time the cause of action arose, petitioner's life
expectancy was about 25 years. The jury had a right to believe that
his business would have grown through those 25 years, and no one
can say with any absolute assurance that the jury verdict was in
excess of the immediate and long-term returns
Page 396 U. S. 16
he might have realized from his business during that period.
Antitrust damages such as those involved here are bound to be
"speculative" and "conjectural" to some extent. When a person
wrongfully takes government bonds worth $10,000 on the market, the
damages can be precisely measured. But when, as here, a young man's
business is wiped out root and branch by a wrongdoer, the
measurement of the victim's damages is not so simple a matter. This
is true because no one can infallibly predict how long that
business would have continued to grow and flourish or precisely how
much the business would have been worth to him in 25 years. But
certainly a fair and just legal system is not required by
difficulties of proof to throw up its hands in despair and leave
the sufferer's damage to be borne by him while the person who did
the wrong goes scot free. This Court has refused under such
circumstances to hold that our system of justice is so helpless to
do justice. In this very antitrust field, our Court has
specifically and pointedly refused to permit antitrust violators to
escape liability for their wrongs on the argument that damages must
not be awarded because they are uncertain and speculative. The
Court, in a ringing opinion by Mr. Chief Justice Stone in
Bigelow v. RKO Radio Pictures, 327 U.
S. 251 (1946), emphatically declined to acknowledge such
judicial helplessness. There, we held that the award of damages for
the victim of an antitrust violation must not be denied on the
spurious argument that they cannot be proved with the certainty of
the value of stolen bonds. In that case, this Court said:
"[I]n the absence of more precise proof, the jury could conclude
as a matter of just and reasonable inference from the proof of
defendants' wrongful acts and their tendency to injure plaintiffs'
business, and from the evidence of the decline in prices,
profits
Page 396 U. S. 17
and values, not shown to be attributable to other causes, that
defendants' wrongful acts had caused damage to the plaintiffs."
Id. at
327 U. S.
264.
"The most elementary conceptions of justice and public policy
require that the wrongdoer shall bear the risk of the uncertainty
which his own wrong has created."
Id. at
327 U. S. 265.
Bigelow and other cases
* clearly establish
the rule that the existence of damages in antitrust actions is a
question for the jury, and that the inherent uncertainty in the
amount of damages is to be resolved against the wrongdoer. In my
opinion, the jury below did exactly what we said it was entitled to
do in
Bigelow. I would therefore require that the jury
verdict be reinstated without further ado.
MR. JUSTICE STEWART would deny the petition for certiorari.
MR. JUSTICE. HARLAN took no part in the consideration or
decision of this case.
*
Perkins v. Standard Oil Co. of California,
395 U. S. 642
(1969);
Continental Ore Co. v. Union Carbide & Carbon
Corp., 370 U. S. 690
(1962).