concurring in part and dissenting in part:
I concur in the majority opinion insofar as it denies a right of contribution to defendants who have intentionally violated the antitrust laws. I dissent, however, from the determination that an unintentional violator1 should be absolutely barred from seeking contribution from his fellow wrongdoers.
Historically, no right of contribution has been available among intentional tort-feasors. The courts have reasoned that limited judicial resources should not be wasted on a party whose cause of action is founded upon his own deliberate wrong. Restatement (Second) of Torts § 836A, Comment a (1979); Restatement of Restitution, Introductory Note to Ch. 3, Title C at 386 (1937). As noted in the majority opinion, Texas Industries has offered no convincing reason for departing from the common law no-contribution rule in the context of an intentional violation of the antitrust laws. What the majority fails to note is the modern trend toward recognizing a right of contribution among unintentional tortfeasors. Three fourths of the American jurisdictions2 now agree with Dean Prosser’s observation that
[tjhere is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone.
Prosser, Law of Torts § 50 at 307. Absent proof that the purposes of the antitrust laws would be frustrated under a limited contribution rule, I would, in the interest of fairness, award contribution to a defendant *907whose liability is based solely on an unintentional violation of the antitrust laws.
The majority suggests that awarding contribution to unintentional violators could undermine the antitrust law’s effectiveness in discouraging anticompetitive behavior. According to the court’s analysis, two problems arise even under a limited contribution rule: (1) the deterrent effect of the private damage action may be diminished if defendants are allowed to distribute the financial burden of a treble damages judgment and (2) the lawsuit will be made more complex and difficult to manage, thereby dissuading plaintiffs from bringing such actions. Neither argument is persuasive.
The deterrence argument has been relied on by courts as a reason both for denying and for awarding contribution in an antitrust case. Compare El Camino Glass v. Sunglo Glass Co. with Professional Beauty Supply, Inc., 594 F.2d 1179 (8th Cir. 1979). The majority opinion favors the position adopted by the district court in El Camino Glass that denying contribution enhances the deterrent effect of the antitrust laws by preventing defendants from distributing the financial burden of a treble damages judgment. However, as the Professional Beauty Supply court noted, the argument can also be made that denying contribution diminishes the law’s deterrent effect by allowing some participants to avoid all responsibility for their wrongdoing. I agree with Judge Hanson’s assessment that the arguments on either side of the deterrence question are at best inconclusive. Professional Beauty Supply, Inc., supra, 594 F.2d at 1189 (Hanson, J., dissenting in part). The deterrence argument, therefore, is an inadequate reason for rejecting a rule designed to achieve fairness among parties guilty of no conscious wrongdoing.
Furthermore, even if one accepts the premise that a no-contribution rule has an increased deterrent effect on those contemplating anticompetitive activity, this is no reason for denying contribution to unintentional violators. As Assistant Attorney General Shenefield recently observed in testimony before a Senate subcommittee considering a proposed bill allowing contribution in price-fixing cases,3 “[cjontribution is most compelling where the tortious conduct is unintentional; in such situations a lack of contribution would have no deterrent effect.”4 This position makes more sense than the court’s conclusion that businesses will somehow “steer wide” of illegal activity which they never realized was illegal in the first place. Clearly, deterrence is a valid reason for denying contribution only among those who intentionally violate the antitrust laws.
The court is also concerned that some businesses “may be encouraged to risk anti-competitive conduct secure in the knowledge that proof of illegal purpose is often impossible and that liability for illegal effects will be dissipated.” Majority opinion at 905. The assumption that intentional violators will be able to pass themselves off as unwitting transgressors is inconsistent with the realities of the proposed contribution action. Any party seeking contribution will invariably be opposed by contribution defendants who have a vested interest in establishing that the contribution plaintiff was an intentional violator of the antitrust laws. Moreover, these contribution defendants, unlike many antitrust plaintiffs, will be in an excellent position to know whether the party was, in fact, an intentional wrongdoer. Under these circumstances few, if any, intentional tortfeasors will succeed in presenting themselves as unwitting transgressors.
In its second argument the court expresses concern that allowing contribution will *908make the lawsuit more complex and difficult to manage, thereby dissuading some plaintiffs from pursuing a legitimate'cause of action. Although the authorities considering the question unanimously agree that permitting contribution does threaten the plaintiff’s ability to control the size and scope of his lawsuit,5 they disagree as to the trial court’s ability to recognize and eliminate that threat. It is clear the Fed.R. Civ.P. 42(b) authorizes trial judges to order separate trials whenever a plaintiff is inconvenienced or prejudiced by a defendant’s expansion of his suit. Relying on language from Judge Hanson’s dissent in Professional Beauty Supply, the majority warns that the discretionary nature of the separation remedy may nevertheless dampen some plaintiff’s enthusiasm about initiating an antitrust action.
I simply cannot believe that the discretionary nature of the Rule 42(b) separate trials provision would discourage an antitrust plaintiff from seeking treble damages should the court recognize a right of contribution among unintentional violators. The district courts are certainly aware of the antitrust plaintiff’s status as a private attorney general and of the important role played by the private damage action in enforcing the objectives of the antitrust laws. The special solicitude accorded these plaintiffs necessarily requires a liberal exercise of the separate trials provision. Realizing his favored position, the antitrust plaintiff is not likely to assume that the trial judge would deny separation and allow defendant to complicate the lawsuit or otherwise add to the private litigant’s burden. Hence, the incentive to sue provided by the treble damages action is not jeopardized if contribution is allowed.
Although some unfairness to unintentional violators must be tolerated if antitrust law policy is thwarted by allowing contribution, I do not believe that the dangers envisioned by the majority withstand close scrutiny. Absent more convincing proof that a limited contribution rule would compromise the effectiveness of the antitrust laws, I would not force a defendant guilty of no conscious wrongdoing to bear total responsibility for the sins of many.
. Although intent is a necessary element of a criminal antitrust offense, a defendant may incur civil liability for an unintentional violation of the antitrust laws. United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854, 869 n.13 (1978). There is nothing new in this principle, for the courts have long recognized that “the per se rule against price fixing applies to any arrangement among competitors which, in purpose or effect, directly or indirectly inhibits price competition.” L. Sullivan, Antitrust § 74 at 198 (1977) (emphasis added).
. Note, Contribution in Private Antitrust Suits, 63 Cornell L.Rev. 682, 698 (1978). A number of courts have allowed contribution among unintentional wrongdoers under federal common law. See, e. g., Kohr v. Allegheny Airlines, 504 F.2d 400 (7th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975); Gomes v. Broadhurst, 394 F.2d 465 (3rd Cir. 1967); Knell v. Feltman, 85 U.S.App.D.C. 174, 174 F.2d 662 (1949). The Restatement (Second) of Torts § 886A (1979) recognizes a right of contribution among unintentional tortfeasors.
. S. 1468, 96th Cong., 1st Sess. (July 9, 1979).
. Testimony of Assistant Attorney General John Shenefield before Senate Subcommittee on Antitrust, Monopoly and Business Rights, June 8, 1979. Other writers agree that “denying contribution can consistently deter only willful lawbreakers; it will not inhibit many violations committed unintentionally or in response to economic coercion. Thus, the deterrence rationale provides at best a weak justification for blanket denial of contribution.” Note, supra, 63 Cornell L.Rev. at 702-03; Restatement of Restitution, supra, at 386.
. Professional Beauty Supply, supra, 594 F.2d 1184; id at 1190 (Hanson, J., dissenting in part); El Camino Glass, supra at 72, 112; Sabre Shipping Corp. v. American President Lines, Ltd., 298 F.Supp. 1339, 1346 (S.D.N.Y.1969); Note, Contribution in Private Antitrust Suits, 63 Cornell L.Rev. 682, 700-01 (1978).