concurring in part and dissenting in part:
While agreeing with part of the majority opinion, I must respectfully dissent from the denial of contribution to plaintiff-appellant. In my opinion the complaint should not have been dismissed as to the claim for contribution on the allegations made.1 I agree, however, that in these circumstances the dismissal as to the claim for indemnity was proper.
To me, the sounder and more equitable conclusion was reached by the majority opinion in Professional Beauty Supply, Inc. *1380v. National Beauty Supply, Inc. v. La Maur, Inc., 594 F.2d 1179 (8th Cir.), which held, as a matter of federal law,2 that contribution may be awarded in antitrust actions. The reasons discussed by the majority in Professional Beauty Supply include the following factors: the antitrust laws are not meant to be exclusive; there has not been such a great amount of litigation on this issue that Congress would have felt compelled to act; federal courts have formulated contribution rules in other areas without express Congressional direction; courts can take adequate steps to insure the plaintiff’s ability to maintain control of his lawsuit; courts can fashion rules to adequately protect the rights of settling defendants; other areas of the law, such as securities, involve equally complex issues, yet contribution is still allowed; and the question of whether the statute would be more or less of a deterrent with contribution can be argued either way. Finally, Professional Beauty Supply notes that contribution is an equitable doctrine more nearly achieving fairness between the parties. The reasoning of the Professional Beauty Supply majority opinion is more persuasive to me for several reasons than that of the majority opinion here or that of the Fifth Circuit in Wilson P. Abraham Construction Co. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir.).
I agree that at this juncture Olson Farms must be considered an intentional wrongdoer in this case.3 However, as the Eighth Circuit concluded, I do not feel that the general rule denying contribution to intentional joint tortfeasors, see Prosser, Law of Torts, § 50 at 308 (4th ed. 1971); Restatement (Second) of Torts, § 886a, should stand as an absolute bar to contribution in antitrust actions. There are important reasons rooted in the antitrust laws for making exceptions to allow recovery by intentional tortfeasors. See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138-39, 88 S.Ct. 1981, 20 L.Ed.2d 182.4 We do not have a record or evidence in the instant case indicating the reasons why Olson Farms was sued and the defendants-appellees were ignored. Nevertheless, the amended complaint alleges sales by the defendants-appellees in larger amounts than the sales by Olson Farms on which prices were determined to have been unlawfully depressed. While our record of course does not deal with the motives and circumstances of the bringing of this antitrust suit, the case does present the potential of a plaintiff deliberately choosing to sue a less formidable, but financially responsible defendant, and avoiding litigation with other equally culpable parties. If contribution should be *1381denied in such circumstances, the deterrent policy of the antitrust statutes will be significantly frustrated. The Eighth Circuit’s reasoning is telling in Professional Beauty Supply, supra, 594 F.2d at 1185:
. We believe that the question of deterrence actually cuts both ways and on balance a rule allowing contribution is actually a greater deterrent. The fact that one tortfeasor may be held liable for all the damages arising from the antitrust violation necessarily means that other joint tortfeasors may go “scot free.” This possibility of escaping all liability might cause many to be more willing, rather than less willing, to engage in wrongful activity.
. We are convinced that the result of automatically prohibiting contribution among antitrust defendants in all circumstances would be to allow a significant number of antitrust violators to escape liability for their wrongdoing and thereby undermine the policy of the antitrust laws.
See Corbett, Apportionment of Damages and Contribution Among Coconspirators in Antitrust Treble Damage Actions, 31 Ford-ham L.Rev. Ill, 136-37.
In view of the deterrent function of trebled damages, Pfizer, Inc. v. India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563, it is only logical that others engaged in the violations ought to bear some of the punishment and face deterrence. Dobbs, Remedies, § 10.7 at 704 (1973). As Dobbs notes, “[sjince damages are trebled, there is quite a sufficient quantum of liability to punish . [all wrongdoers] by forcing them to share the liability.” Id. at 704.
However, I agree again with the Eighth Circuit that the deciding factor should be fairness between the parties. It does not seem to me that an antitrust defendant found guilty of a violation should be rejected as a lost soul with no claim on the conscience of the courts. The result of imposing the entire treble damages liability on one defendant while denying him any right to seek contribution from others jointly involved with him in the wrong, is too extreme for me. In this instance the damages claimed against Olson Farms, as the majority opinion states, were $99,656 and, trebled, the alleged liability would have amounted to $298,968. Yet the averment is that Olson satisfied a judgment, plus costs, interests and attorneys’ fees, by paying the plaintiffs in the 1971 suit the sum of $2,405,580 (1113, amended complaint).
On the basis of the allegations of the complaint, the defendants-appellees have been unjustly enriched by the amount of the judgment against Olson Farms which was based on purchases by the defendantsappellees. (H 14, amended complaint). The allegations make a compelling claim for recovery to avoid unjust enrichment on the theory that the damages paid by Olson Farms for the other defendants were directly related to the benefit those defendants received by purchasing eggs at the unlawfully depressed prices. In these circumstances the logic of the Eighth Circuit is unanswerable as stated in Professional Beauty Supply, supra, 594 F.2d at 1185-86:
The deciding factor in our decision is fairness between the parties. We conclude that fairness requires that the right of contribution exist among joint tortfeasors at least under certain circumstances. There is an obvious lack of sense and justice in a rule which permits the entire burden of restitution of a loss for which two parties are responsible to be placed upon one alone because of the plaintiff’s whim or spite, or his collusion with the other wrongdoer. See, e. g., Gomes v. Brodhurst, supra, 394 F.2d [465] at 467-68 & n. 1.
The majority opinion lays particular stress on the desirability of awaiting Congressional action on the subject of contribution. While this suggestion has obvious appeal, I cannot agree that this factor stands as a bar to judicial handling of such proper *1382ancillary remedies until Congressional action occurs. The basic policies of the antitrust laws have been staked out in general terms. As the Supreme Court stated in National Society of Professional Engineers v. U.S., 435 U.S. 679, 688, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637:
Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition. [Footnote omitted]
The Eighth Circuit observed in Professional Beauty Supply, supra, 594 F.2d at 1183-84, that the courts have not been prone to await Congressional action to resolve many questions left unanswered by the statutes, nor have they hesitated to imply a right of contribution in other areas without express Congressional direction.5
Therefore, I conclude that awarding contribution as a judicial remedy, if an adequate showing is made, is a proper function in implementing the antitrust statutes. We are faced now with the dismissal of a complaint. Under the allegations made, a strong equitable claim for contribution may be made out. For these reasons I cannot agree that it was proper to dismiss the claim for contribution and would reverse and remand that claim for trial by the district court.
With respect to Olson Farms’ claim for indemnity, I am in agreement with the majority opinion. While contribution distributes the loss among all tortfeasors, indemnity would transfer the entire loss imposed on a tortfeasor to another who, in justice and equity, should bear it. Symons v. Mueller Co., 526 F.2d 13, 16 (10th Cir.). In this case I agree that Olson Farms cannot justify indemnification, because of what has already been said above.
It is true that Olson Farms argues that it will show that its allegedly wrongful conduct was “unintentional, passive and secondary in sharp contrast to the primary .and active behavior of the appellees.” (Brief of Plaintiff-Appellant, 33). However, on the basis of the facts alleged by Olson Farms’ complaint herein and shown by our opinion in Cackling Acres, Inc. v. Olson Farms, Inc., 541 F.2d 242 (10th Cir.), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572, I feel that we must treat Olson Farms as an intentional tortfeasor. For reasons stated in Professional Beauty Supply, supra, 594 F.2d at 1186,1 agree with the majority that indemnity should not be awarded to intentional wrongdoers and concur in the majority opinion in the instant case as to the dismissal of Olson Farms’ indemnity claim.
Before SETH, Chief Judge, and HOLLOWAY, McWilliams, barrett, doyle, McKAY, LOGAN and SEYMOUR, Circuit Judges.. It should be noted at the outset that this matter is before the court on appeal from an order dismissing the appellant Olson Farms’ complaint. In such a case the allegations of the complaint are accepted as true and the complaint may be dismissed only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Wilshire Oil Company of Texas v. Riffe, 409 F.2d 1277 (10th Cir.).
. The majority opinion takes the view that federal law governs as to the availability of contribution or indemnity here, and I agree. Several factors, particularly the desirability of uniformity, lead to this conclusion. See Sola Electric Co. v. Jefferson Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165; see Note, The Role of State Law in Federal Antitrust Treble Damage Actions, 75 Harv.L.Rev. 1395, 1401 (1962); Note, Toward a Workable Rule of Contribution in the Federal Courts, 65 Columbia L.Rev. 123, 129 (1965); Hart and Weschsler, The Federal Courts and The Federal System, 2d Edit., 800-805 (1973).
. The amended complaint of Olson Farms alleges that “[t]he liability of Olson Farms to the plaintiff producers in the 1971 suit is based upon what the producers allegedly would have been paid by defendants herein and Olson Farms but for the alleged conspiracies.” In the underlying action the jury found in favor of all fourteen plaintiffs on a Section 1 violation of conspiracy to restrain trade and a Section 2 violation of conspiracy to monopolize. The jury further found in favor of four plaintiffs who claimed a Section 2 violation of attempt to monopolize.
From the allegations of the amended complaint and the circumstances apparent in the original action where the judgment against Olson Farms was affirmed, Cackling Acres, Inc. v. Olson Farms, Inc., 541 F.2d 242 (10th Cir.), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572, we must regard Olson Farms as an intentional wrongdoer since conspiracy and attempt both require a finding of specific intent. See E. J. Delaney Corp. v. Bonne Bell, Inc., 525 F.2d 296 (10th Cir.), cert. denied, 425 U.S. 907, 96 S.Ct. 1501, 47 L.Ed.2d 758.
. This Court has followed Perma Life in Semke v. Enid Automobile Dealers Ass’n, 456 F.2d 1361, 1369 (10th Cir.), and Sahm v. V-I Oil Co., 402 F.2d 69, 72 (10th Cir.).
. These areas include federal sex discrimination cases, e. g., Stevenson v. International Paper Co., 432 F.Supp. 390 (W.D.La.); Grogg v. General Motors Corp., 72 F.R.D. 523 (S.D.N.Y.); and aviation collisions, e. g., Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470.