(dissenting).
The trial judge in my view gave the Paramount judgment not only “a niggardly construction,” but one quite opposite to its intended meaning as to the issues here involved. By so doing he deprived the plaintiffs of its effect as “prima facie evidence” against these defendants as provided in the statute, 15 U.S.C. § 16. For the judgment found specifically that in New York City these defendants divided the neighborhood pri- or run product of the distributor defendants under a continuing arrangement, “so that there was no competition between them in obtaining pictures.” Paramount Finding No. 154(d). It also held that they conspired to and did monopolize the first neighborhood run in New York City and divided that market between them. Paramount Conclusion No. 16. The judge here construed all this as not including the independent distributors and as saying only that Loew’s and RKO merely divided the market for their coconspirators’ films. He read the major holding of “no competition between them in obtaining pictures” as though it had added at the end, “of the major distributors.” This curiously narrow and unrealistic reading is belied by the words precisely used, by the findings and conclusions in other parts of the judgment, and by the background against which the words must be read.
With deference I submit that the quoted provisions are clearly intended to express the broader deduction that there was no real competition between these defendants in obtaining any pictures, whether distributed by independents or by the major distributors. Unless this were so, they would not be actually dividing the New York City market between them. This reading moreover accords with other Paramount findings and conclusions which expressly include independent exhibitors and distributors. *450Thus Paramount Finding No. 84 states that both independent exhibitors and independent distributors had to conform to the fixed scale of clearance, runs, and admission prices set by defendants if they wished to get satisfactory runs for their pictures or to compete in exhibition with defendants’ theatres or those to which they had licensed their pictures. And Finding No. 147(c) is an express determination of “lessened competition among defendants and between them and independents.” Similar holdings appear elsewhere in the judgment, as in Finding 156(b) and Conclusions 7 and 12.
Moreover, this reading alone is consistent with the general broad findings of the Paramount decision that these defendants and the major film companies effectuated a conspiracy on a national scale to restrain trade by monopolizing the distribution of motion pictures through various unfair practices, such as block booking, imposition of fixed runs and fixed admission prices on independent distributors, exclusion of independents as desired, use of vertical integration to further their business of exhibiting pictures, and so on. To hold that this gigantic and complete monopoly does not reach the independent distributors, but leaves them free to compete with the big companies, does not make sense. And, as we have seen, it is disproved by the findings and conclusions actually stated and the relief finally granted.
Here the defendants have adroitly supplied a backdrop for the narrowing construction they support by urging that “the Paramount case was for exhibitors, not distributors.” And this case has been somewhat heralded as a novel treble-damage claim, since it is brought not by independent movie theatres damaged by discrimination in procuring pictures to exhibit, but by the film producers and distributors themselves. It is of course true that the private cases previously before us have been brought by exhibitors, and this may indeed be the first case of other independents. But this atmosphere of novelty is not enough to justify denial of relief to plaintiffs. No such limitation is stated in the Paramount judgment itself; and various deductions which the parties draw from attempts at expansion or contraction of its form, as rejected by the then sitting judges, seem to me but the more to support the .adequacy of what they did and thought they were doing. The statute, 15 U.S.C. § 16, supra, gives the benefit of the prima facie evidence rule in any action “by any other party” under the antitrust laws. And that would seem to be conclusive to reach and benefit these plaintiffs. Obviously the findings concerning independent exhibitors and distributors were quite within the direct issues in the case, and the extensive discussion here of the “doctrine of estoppel” appears to be only another way of saying that the findings did not mean what plaintiffs claim and I believe to be their fair and commonsense interpretation.
The Paramount findings pertain to the year 1945. But the plaintiffs showed by quite adequate evidence that the same conditions continued in the period 1946 through 1950. And as the plaintiffs point out, the judges in the Paramount case at a later stage heard evidence as to conditions in 1948 without finding the need of making changes. The findings quoted were actually dated February 8, 1950. Moreover, plaintiffs point out that Eagle Lion Studios succeeded in 1946 to the business of PRC Pictures, Inc., one of the three nationwide independent film distributors found in the Paramount case to be adversely affected by the defendants’ conspiracy.
I conclude that the plaintiffs thus presented a prima facie case which it became the duty of the defendants to rebut. The error of the court in denying this position to the plaintiffs was actually somewhat compounded by its ruling denigrating the Paramount judgment to the force only of some “evidence” in the case — an inconsistent approach not at all justified under the statute, and one which could only confuse. For if that judgment was no more inclusive in its terms than the judge, ruled, then it was not evidence here at all.
*451Thus dismissal below was unwarranted. Possibly we could proceed to final judgment on the basis that the prima facie case had not been rebutted. The preferable course, however, would appear to be a remand for re-examination by the trial court of the evidence in the light of the statutory command. This seems to me particularly desirable because the trial judge found this evidence of damage inadequate to justify a plaintiffs’ judgment. Actually considerable evidence involving statistical comparisons was introduced; although some of the deductions doubtless contained fallacies of the kind the judge criticized, yet a more sympathetic approach might have contributed some constructive suggestions and deductions for the assaying of this evidence. Thus a comparison of the reactions of New York City and national audiences or of Eagle Lion’s successful films with other selected films of the major distributors seems perfectly possible to yield something more nearly factual than general conclusions based on what is supposed to be the degree of cultural sophistication of New Yorkers over others. In the present posture of the case I deem it hardly worth while to document these suggestions in detail, but I must call attention — for fear that it has been overlooked — to the well established principle casting upon the wrongdoers the risk of uncertainty as to the damages that flow from a wrong. William H. Rankin Co. v. Associated Bill Posters of United States and Canada, 2 Cir., 42 F.2d 152, certiorari denied Associated Bill Posters of United States and Canada v. Wm. H. Rankin Co., 282 U.S. 864, 51 S.Ct. 37, 75 L.Ed. 765; Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 561-564, 51 S.Ct. 248, 75 L.Ed. 544; Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652; Package Closure Corp. v. Sealright Co., 2 Cir., 141 F.2d 972, 979. Of course plaintiffs’ films do not all stand on the same level. Some were successful and some were not. Some quite probably deserved the low artistic and box-office-appeal rating given them by defendants. But there appeared to have been some fairly conspicuous exceptions. It does not seem an impossible task for the trier to discriminate fairly between these elements of damage and to achieve a just over-all result.
There seems to be a developing trend in some of our trial courts of hostility toward the “big” antitrust case and of discovering obstacles — going even back to matters of pleading and pre-trial — in the way of a free showing of the need of remedial relief. Humanly speaking we can well sympathize, for these trials are a burden, if not a bore, to a busy, overworked court. But we are dealing with settled and cherished Congressional policy which is not for us to change or hamper. I suggest that these judicially formed limitations are a definite infringement of legislative policy. However serious the load, I do not believe our able trial judges desire to take any permanent course thus opposed to legislative purposes. But here, while doubtless not contemplated, the course of trial has had that consequence. I think, therefore, it requires and deserves a new start at the trial level.
I feel the greater confidence in the views I have expressed because Judge FRANK, who originally heard the appeal, voted to reverse, and set forth similar conclusions in a tentative memorandum he had prepared before he died.