(dissenting):
I dissent.
In my opinion, this case presents the rather extraordinary situation of the majority resuscitating an alleged antitrust suit, brought by a plaintiff which concededly has “been out of business since mid-1972 and was in the process of liquidation”.1 The trial judge having given the plaintiff every opportunity by depositions, discovery and affidavits to produce such proof as it might have had to support a claim, came to the conclusion that “[tjhere is no evidence sufficient to permit a finding that any of the agency defendants [Young & Rubicam, BBDO, and J. Walter Thompson] was a party to a combination or conspiracy injuring the business or property of Ambook during the period 1968-72”. 464 F.Supp. at 1145. The same finding was made with respect to The New York Times and Time. Based on the trial court’s finding that “[T]here is no evidence that the 4A’s did anything during the damage period, or for many years prior to the damage period, to promote or maintain any phase of the alleged conspiracy. . . . ” 464 F.Supp. at 1136, it granted summary judgment for the defendants.
Since I believe that cases should be decided upon the facts presented to the trial court, I take issue with the decision of the majority which by its own declarations has, in my opinion, created hypothetical and speculative situations and then, based upon inferences from these hypotheses, prophesied a possible jury conclusion.
An illustration will suffice. “A jury could rationally conclude from the evidence here adduced that during the damage period substantially all advertising agencies and the publishing media pursued a plan whereby if a national advertiser approached a newspaper or magazine, he would typically be told that if he were willing to deal through a recognized agency, the agent would receive a 15% deduction but that otherwise he would be charged the full card rate.” (emphasis added). This despite the previous statement that “At least eight types of compensation between advertisers and agencies are now in- effect, although the record does not show their relative frequency or much else about them.” To me, although eight types of financial arrangements are conceded to exist [post-1956], the majority’s assumption as to a jury’s rational conclusion is pregnant with the belief that a contrary conclusion would be irrational. In contrast to the majority’s assumptions, the trial court found — not on the basis of assumptions — but on the proof actually before it that:
“Neither the documents nor any other evidence proposed by Ambook suggest that, following the consent decrees of 1956, there was any step taken by the 4A’s or anyone else to prevent advertising agencies from making whatever compensation arrangements they wished with their clients. The use of fees and cost-plus arrangements was growing, and there is no evidence that the 4A’s or anyone else was engaging in any kind of conspiratorial activity to put a stop to the growth of these different compensation methods.
* * * There is no evidence that the 4A’s did anything during the damage period, or for many years prior to the damage period, to promote or maintain any phase of the alleged conspiracy. This finding is crucial to the present case, since it means that the alleged promoter and leader of the conspiracy was not performing these functions during the period relevant to this lawsuit.” 464 F.Supp. at 1136.
As to burden of proof, the burden was on the plaintiff to prove a conspiracy. There was no duty on the part of any defendant to justify its business policy or practices in choosing as a matter of business judgment to pay a 15% commission instead of resorting to any of the other methods of compensation previously mentioned. Yet the majority, in effect, places the burden on the defendants of justifying their business deci*622sion by saying: “here the media offered no evidence to show what legitimate business advantage, save continuity and fear of reprisal, inhered in the dual rate system”.
To its reliance upon “conscious parallelism” the majority adds its theory of coercion despite the fact that the trial judge found to the contrary.
The formation in 1970 of a committee to examine into the possible elimination of the agency commission instead of proving a conspiracy, in my opinion, proves the opposite. Using the majority’s statement thereof: “A symposium in a media publication, attended by many elements of the trade, reported a host of different views about the 15% commission”. Clients of Time thought abolition right in concept; wrong until details of a new system were worked out. The reaction of the airlines and the automobile industry were mixed. Again, despite the fact that there was a wide divergence of views — the antithesis of a conspiratorial agreement — the majority not having attended the committee meetings nor having heard the discussions, chose to substitute their conclusion that a rational jury could have found that the committee acted “only because of sloth or fear of reprisal”. After hearing Ambook and analyzing all the material Ambook was able to offer, the trial court found that: “The undisputed facts are that Time was making an independent re-examination of the 15% commission”; that Time “consulted with representative advertising agencies with whom Time did business in normal course and advertisers who advertised in Time, to determine what their views would be on the possible discontinuance of the 15% commission”. 464 F.Supp. at 1144.
In the field of injury to property, a hypothetical and highly speculative situation is all that Ambook has presented. It says “Ambook would have been able to hire more employees and more highly qualified employees if advertising services were performed within the company” or that he might also have hired an advertising consultant for a year. Again, no proof, merely speculative hypotheses.
A brief word concerning the majority’s apologia. Some explanation was, of course, necessary to explain why a court of appeals should “pass on issues of possible great consequence to the advertising industry, in an action by a single advertiser, now out of business . . . .”
Any “regret” at “having been obliged” to pass on the issues is mollified by an apparent desire to have the federal courts and/or a jury of laymen dictate to the advertising and media businesses how in the courts’ or juries’ opinion they should conduct their business operations, despite the previous decree.
In my opinion, summary judgment was the correct procedure for the defendants to follow. Rule 56(c) of the Federal Rules of Civil Procedure is applicable to antitrust cases. The facts material to a decision are undisputed and have been set forth at length by the trial court. On appeal they should be sustained unless clearly erroneous. Rule 52(a) F.R.Civ.P.
Recent cases have been informative as to the role of summary judgment in antitrust cases. In Lupia v. Stella D’Oro Biscuit Co., Inc., 586 F.2d 1163 (7th Cir. 1978) the motions for summary judgment were, as here, based on a substantial record assembled by discovery and affidavits, establishing beyond the mere allegations of the pleadings, what the plaintiff was and was not able to prove. Noting that “there is no requirement that judges exercise greater caution in granting summary judgment in these [antitrust] cases than in any other”, the court affirmed the judgment in favor of the defendants with the following comment equally applicable here:
“Indeed, the very nature of antitrust litigation would encourage summary disposition of such cases when permissible. Not only do antitrust trials often encompass a great deal of expensive and time consuming discovery and trial work, but also, (without intending any slur on plaintiff here), the statutory private antitrust remedy of treble damages affords a special temptation for the institution of vexatious litigation, see Poller, supra, 368 *623U.S. at 474, 82 S.Ct. 486 (Harlan, J. dissenting). [Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1961).] The ultimate determination, after trial, that an antitrust claim is unfounded, may come too late to guard against the evils that occur along the way. Judge (now Chief Judge) Skelly Wright, in a libel case, Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966), noted that:
‘ * * * Summary judgment serves important functions which would be left undone if courts too restrictively viewed their power. Chief among these are avoidance of long and expensive litigation productive of nothing, and curbing the danger that the threat of such litigation will be used to harass or to coerce a settlement. * * * [Id. 125 U.S.App.D.C. at 35, 365 F.2d at 968.]’ ”
Lupia v. Stella D’Oro Biscuit Co., Inc., 586 F.2d at 1167.
In First Nat. Bank v. Cities Service, 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), the Supreme Court, mindful of the four cases cited by the majority here and upon which they and petitioners in Cities Service relied, affirmed in an antitrust case summary judgment in favor of the defendant.
The cardinal fallacy which I find permeates the opinion of the majority and leads to its conclusion is that it treats this case as if it were an appeal from the government’s 1955 civil antitrust ease which involved virtually the same issues as here presented. The 1956 consent decree dealt with the same problems now before us. The pre-1956 practices complained of were enjoined and the slate for all practical purposes was wiped clean.
The trial court found that “Ambook has specifically conceded that it has no evidence of conspiratorial activity by the 4A’s during the period 1968-72, or at any time after 1960. There is no evidence that the 4A’s did anything during the damage period, or for many years prior to the damage period, to promote or maintain any phase of the alleged conspiracy.” 464 F.Supp. at 1136. It was incumbent upon Ambook to come forward with proof of post-1956 violations. Many witnesses were deposed; scores of exhibits were introduced. A full-scale trial could not have been more exhaustive.
Having given Ambook every opportunity to submit any proof it desired in aid of its claim, the trial court concluded: “There is no evidence sufficient to permit a finding that any of the agency defendants was a party to a combination or conspiracy injuring the business or property of Ambook during the period 1968-72.” 464 F.Supp. at 1145. The same finding was made as to The New York Times and Time.
In this case I would subscribe to the words of the late Mr. Justice Harlan, joined by Mr. Justice Frankfurter, Mr. Justice Whittaker and Mr. Justice Stewart in his dissent in the five to four decision in Poller v. Columbia Broadcasting, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962):
“As I see it, this is one of those cases, not unfamiliar in treble-damage litigation, where injury resulting from normal business hazards is sought to be made re-dressable by casting the affair in antitrust terms. I think that the antitrust laws do not fit this case, and that the courts below were quite correct in holding that the respondents were entitled to judgment as a matter of law.” 368 U.S. at 474, 82 S.Ct. at 491.
As in this case, the trial court had before it affidavits and depositions. The trial court in Poller had granted summary judgment in an antitrust case in favor of the defendants. I would also adopt Mr. Justice Harlan’s apologia when he said
“I have gone into this matter at some length because in my opinion the Court’s encouragement of this sort of antitrust ‘enforcement’ does disservice to the healthy observance of these laws. I would affirm.” 368 U.S. at 486, 82 S.Ct. at 498.
I would find it difficult, if not impossible, to formulate a charge to a jury which would not be based upon groundless speculation — hence I would affirm.
. The period of alleged damages was 1968-1972. The Delaware statute provides for a continuance with respect to unfinished litigation.