(dissenting).
I am of the view that the decision in Leman v. Krentler-Arnold Hinge Last Co., 1932, 284 U.S. 448, 52 S.Ct. 238, permits the plaintiff in a civil contempt proceedings to be compensated without showing actual loss where, as here, an injunction prohibiting a course of action has been violated. In the Leman decision Mr. Chief Justice Hughes stated: “There is no question here that the respondent had made profits through the infringing sales in violation of the injunction, and the amount of the profits was ascertained, but the appellate court held that the petitioners were limited to the damages caused by such sales and that no damages had been shown. We think that the court erred in imposing this limitation. The fact that a proceeding for civil contempt is for the purpose of compensating the injured party, and not, as in criminal contempt, to redress the public wrong, does not require so narrow a view of what should be embraced in an adequate remedial award.
“While the distinction is clear between damages, in the sense of actual pecuniary loss, and profits, the latter may none the less be included in the concept of compensatory relief. In a suit in equity against an infringer, profits are recoverable not by way of punishment but to insure full compensation to the party injured * * * ”, 284 U.S. at pages 455-456, 52 S.Ct. at page 241.
The Leman case overruled sub silentio Christensen Engineering Co. v. Westinghouse Air Brake Co., 2 Cir., 1905, 135 F. 774, 782, on which the majority relies. But the Leman decision was not overruled by United States v. United Mine Workers, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. That the Supreme Court was not focusing its attention on the issue of proof of profits as distinguished from the issue of proof of damages in the United Mine Workers case is demonstrated by the fact that the opinion in that case cites with approval in note 80, 330 U.S. cited to the text at page 304, 67 S.Ct. at page 701, both the Leman case and Norstrom v. Wahl, 7 Cir., 1930, 41 F.2d 910, 914. Leman and Norstrom are directly contrary in their respective rulings in relation to the issue of proof of profits in contradistinction to the issue of proof of damages.
The majority also rely on the statement in the United Mine Workers opinion that where a fine is imposed as one kind of *196judicial sanction in a civil contempt proceedings, “Such fine must * * * be based upon evidence of complainant’s actual loss * * *330 U.S. at page 304, 67 S.Ct. at page 701. But the quoted statement was not dispositive of the civil contempt issue raised in United Mine Workers case for the fine imposed had as its objective coercion of compliance with the order of the court and not compensation to an injured private party. Id. 330 U.S. at pages 304-305, 67 S.Ct. at pages 701-702.
By the decision in the case at bar the salutary rule that an infringer may be held accountable in an action for civil contempt for profits resulting from his violation of an injunction is brought to an end in this Circuit. At most the injured party can recover attorney’s fees and costs in a useless action in which he can receive no compensation whatsoever for the injury he has suffered.
The issue involved is one of major importance. For these reasons I am of the view that rehearing' should be had before the court en banc.
I am authorized to state that Judge MARIS joins in the views expressed in this opinion.