ZENITH RADIO CORP. v. HAZELTINE RESEARCH

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Argument of Thomas C. Mcconnell

Chief Justice Warren E. Burger: 80, Zenith Radio Corporation against Hazeltine Research.

Mr. McConnell, you may proceed whenever you’re ready.

Mr. Thomas C. Mcconnell: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. McConnell.

Mr. Thomas C. Mcconnell: -- and may it please the Court.

I appear here on behalf of the Zenith Radio Corporation, the petitioner in this case.

It comes here by way -- the case comes here by way of certiorari to review an order of the court below, the Seventh Circuit Court of Appeals, which vacated an award of damages in favor of the Zenith Radio against Hazeltine Research Inc., the respondent.

The single damages were $6,297,391.00, which tripled, in a damage award and judgment of $19,077,173.00.

This is a second time this case has been before this Court on certiorari and to understand the present issue, I believe that it’s necessary for me to briefly review the prior proceedings.

In November of 1959, the respondent sued the petitioner in the United States District Court in Chicago for the infringement of an electronic patent.

The petitioner filed an answer setting up that the patent was invalid and that it was misused because its counterpart was placed in a patent pool in Canada known as Canadian Radio Patents Limited.

In May of -- May 22nd of 1963, the petitioner filed a counterclaim under the antitrust laws setting up that it had been interfered with in its business in attempting to export radio and television sets from the United States into the Canadian market.

Its business had been seriously damaged and asked for treble damages.

On a trial, the Trial Court found that Zenith had been damaged and in the Canadian market had been damaged to the extent of over $6 million, and on April 5, 1965 entered a judgment in favor of the petitioner and against the respondent in that amount of money.

After findings had been made and after the Court -- I mean a year after the case had been tried and the court had entered its findings and conclusions against the contentions of the respondent, the respondent appearing with new counsel attempted to bring into the case two new defenses, affirmative defenses so called, namely an attempt to plead the statute of limitations and an attempt to bring in a release, which had been executed in a prior proceeding against RCA, General Electric and Western Electric, a proceeding to which the respondent was not a part.

Justice John M. Harlan: Are those issues not been raised in any way in the trial itself?

Mr. Thomas C. Mcconnell: Those issues had not been raised in the trial itself because no pleading of the affirmative defenses was ever made at the time of the trial, and the first time they appeared was a year after the case had been tried and the proofs have been closed.

The Trial Court refused to reopen its findings and conclusions so far as the Canadian damage case was concerned and affirmed its judgment.

On appeal, the court below reversed the Canadian damage award on the ground that it said there was no fact of damage shown by the proofs in the case.

The case then came here by certiorari and this Court reversed the court below on the Canadian damage issue, and held that there was abundant proof of the fact of damage and held that the case should be sent back and remanded for further proceedings in accord with the opinion of this Court.

Now, I want to quote one paragraph from this Court’s prior opinion because it seems to me it really summarizes the whole case as it existed at that time.

This Court said in its prior opinion, “We conclude that the record evidence is sufficient to support a finding of damage resulting from events occurring after the beginning of that damage.

HRI frankly conceded the continuation of the pool before the District Court and it appears sufficiently clear that throughout the time Zenith was deprived, was always had been refused a license on pool patents preventing it to sell American-made merchandise in Canada.

And here, Zenith was denied a valuable license and submitted testimony that without the license, it had encountered distribution difficulties, which prevented it securing a share of the market, comparable to that which it had enjoyed in the United States and which its business proficiency demonstrated in the United States dictated it should have obtained in Canada.

CRPO was an established organization with a long history of successfully excluding imported merchandise and in view of its continued existence, during the damage period, the injury alleged by Zenith was precisely the type of loss that the claimed violations of the antitrust laws would be likely to cause.

The Trial Court was entitled to infer from this circumstantial evidence that the necessary cause or relation between the pool’s conduct and the claimed damage existed.

Now the claim damage was or may hear of damages, which has been approved by every Court that’s dealt with it here in this case, even the court below, with a comparison between what Zenith made in the way of profit in the American market against comparable competition to which it had in Canada.

And during the same period of time, and the theory of that was that we were comparing what Zenith could do in an open market as compared with what it couldn’t do -- could do in an absolutely closed and restricted market.

That computation showed that the best Zenith could do in Zenith during the damage period which is a definite four-year period from May 22, 1959 to June 1, 1963, the best that Zenith could do was 3%m well, there was one year that it went up I think 5%, but it started at 3% and it ended at 3% faced with the opposition of the pool.

In the United States on the other hand, it had 16% of the radio and television market.

So transposing the profits on that volume of business, we reach the computation of the amount of the damage.

Now the only thing before this Court today is the amount of petitioner's damages.

This Court has already held that the fact of damages -- damage, has been proved and has concluded the issue as between these parties by a decision which is res judicata and cannot be in any way attacked.

So we have a very narrow issue here and that is, was the proof sufficient here to establish the amount of the petitioner’s damage.

On the remand, the court below construed this Court’s mandate as permitting it to re-examine, as if the statute of limitation’s defense and the release defense was already in the case, to re-examine what effect those two defenses might have on the amount of petitioner’s damage.

And it paraphrased a part of this Court’s opinion.

I think the Court -- I can’t quote it exactly but the substance of it was -- this Court said, “that since the damage amounts were computed by assuming that at the beginning of the four-year damage period, Zenith had a mature market” which the evidence showed it would’ve had in the absence of the conspiracy, or as testimony to that effect, not denied.

Since it assumed that, then some part of the damage which was allowed -- must have arisen from acts, overt acts or causative acts which occurred prior to the damage period.

And taking that as a basis, the court below then said that any damages caused by overt acts prior to the damage period, which could be traced back to show that they have caused the actual damage that that could be considered on a damage award in the face of a play of the statute of limitations and also in the face of a play of release.

Now, there’s a question of waiver here but I’m not going to argue that here this morning because our case is so clear on the merits that it seems to me that it’s diverting and it gives substance to the defenses, which it is our position are absolutely irrelevant and have no merit whatsoever on this consideration.

It’s our position and it’s our submission that only four years of damages were ever claimed, that only four years of damages were ever awarded, and that the only damages which were awarded were profits, which had been lost by Zenith in that four-year damage period.

Now, my opponents can define the issue in this way and I think I’d better take their word for it because it’s a pretty good definition of what this issue is.

At page 62 of their brief, they say, “The decision of the Court of Appeals was not, that as a matter of discretion, the Trial Court should have granted a new trial.

On the contrary, the Court of Appeals held that the Trial Court had committed errors of law, namely the failure to give proper effect to the statute of limitations and the release defenses, and that to correct those errors of law, the taking of additional evidence on the issue of the amount of recoverable damages is necessary.”

Well now, it’s apparent that if there was no error of law in that District Court’s refusal to entertain those offenses, there’s no possible basis for the grant of a new trial by the court below.

Now it’s our contention that since none of the petitioner’s damages accrued are came into be until the damage period, it’s absolutely irrelevant whether they’ve caused any of act or originated in some previous time, or whether they trace back by some sort of proof how much of the award was due to this or that, that happened prior to the damage award.

There is nothing in the statute of limitations which is applicable to this case, which bars recovery on damages which accrue in the four-year period.

Section 4 (b) of the Act provides and is very specific, there isn’t any ambiguity about it at all.

“Any action to enforce any cause of action under Sections 15 or 15 (a) or this Title shall be forever barred unless commenced within four years after the cause of action accrued.”

The court below interpolated into that statute the following words.

It said, “The law with respect to the statute of limitations in Section 15 (b) of the Clayton Act is that the period commences to run from the last overt act of the conspiracy.”

So there’s nothing like that in this statute.

It’s a complete reading into the Act of something which isn’t there, and this Court said in Radovich against the National Football League that it was the province of the Court to construe the statute as it was and not read into it.

It should not add requirements to burden to private litigant beyond what is specifically set forth by the Congress in those laws, and there’s no congressional authority whatever for reading into this very clear statute of limitations the words which the court below did.

Now, that brings us to when does this cause of action accrue.

In a civil suit under the antitrust laws, there is no cause of action until damage has ensued which is actionable.

That’s when your cause of action accrues and that is admitted at pages 41 to 42 of the respondent’s brief.

Here, the cause of action could not accrue until Zenith lost profits.

It hadn’t lost the profits until the four-year damage period and there was no way on which it could sue for a lost of profits before the profits had been lost.

It had to await the time when it had lost its profits and all of its proof was based on a computation, which by the way was never denied.

No testimony against it of how much profit was lost during a particular four-year damage period.

The court below and my opponent said that the statute of limitations must run from the overt acts which caused the loss of profits and let’s see where that leads us.

That means that if any of the acts which caused this loss of profits occurred prior to this damage period, Zenith couldn’t have sued for them then.

It hadn’t lost any profits and when it got down to the time when it had lost the profits, it couldn’t sue for the overt acts because they’re barred by statute of limitations, and the whole argument obviously just proves too much and is contrary to the statute.

Now, bear in mind, we are dealing here with a continuing conspiracy.

This Court found that this conspiracy existed all during the damage period, found that specifically in it’s opinion and that we’re dealing with constant invasions of our rights all during the time we’re trying to compete in Canada during this four-year period.

Now, could we have sued for those profits prior to the damage period?

Well, all we have to do is look at the proof that it was a adduced here to see that that’s impossible.

First, Zenith had to show and this Court on another branch of this case held that in order to show fact of damage, you’ve got to show that you are equipped to compete, that you’re ready and willing to compete in the foreign markets from which you’ve claim to be excluded, and that absent to conspiracy, you would’ve been there competing on that, the (Inaudible) said that we hadn’t made that proof in England and Australia.

So how could you make proof of that kind prior to the damage period?

You had to show that you were in business, that you wanted to compete, that you were equipped to compete, and that you were prevented from competing.

Secondly, we had to show that this pool was in operation during this whole four-year damage period, and we couldn’t show that prior to the damage period.

They could’ve disbanded their pool.

It would be entirely speculative as to whether or not they would’ve continued it.

And thirdly, we had to show a comparable measure of damage in the United States, which meant that we had to be in business in the United States as well as in Canada during the damage period.

So it was utterly impossible for Zenith to have proved up the loss of profits, which it did prior to this damage period.

And the fact that overt acts enter into it, I don’t care where they originated.

If they originated way back in 1926 when this pool originated, they had a causative effect that didn’t result in damages until a damage period.

There was no cause of action until they did originate in damages, but when they did originate from damage, it was only during a four-year period and the statute does not bar them, and the act so says, because the act says that it starts when the cause of action accrued, not when overt acts were performed but when the cause of action accrued.

So much for the statute of limitations, we say it’s absolutely, utterly irrelevant even if it had properly gotten into the case, which we do not agree.

So I want to turn now to the release point.

There was a release given in this record but it hadn’t anything to do with the respondent in this case.

That release was in a prior proceeding between Zenith RCA, Western Electric, and General Electric.

We had been excluded continuously by this pool since 1926.

We sued them in our counterclaim in the Untied States District Court, and we settled the case.

And we’ve settled it with a release given September of 1957, a year-and-a-half before this damage period started.

Now the court below had a little difficulty with this and understandably so so.

Following chronically occurred between the Court and counsel.

The Court: “When was the RCA release signed?”

Mr. Kayser: “It was signed as I understand it on September 27, 1957.”

The Court: “As I understand it, they are only claiming, according to your chart, from May 22nd of 1959 to May 22nd of 1963.”

Mr. Kayser: “Yes, Your Honor, that is very true.”

The Court: “I am not sufficiently astute today to understand your theory so that I can understand how this release in ’57 had anything to do with what occurred in ’59 to ’63.”

Now, it’s our position that if the court below can construe a release executed in 1957 to bar our cause of action which did not arise and did not exist until 1959, then this release is construed in a manner to release a future cause of action under the antitrust laws which would be illegal, invalid, and against public policy because the public has an interest in the enforcement of the treble damage provisions of the antitrust laws.

There are other reasons why this release is not that and they’re discussed in the briefs.

So it’s our submission that there’s no relevance in either of these defenses, if they’d been in the case, there was nothing to them and they never got on in the case, and this Court referred to them as belatedly raised in its prior opinion.

Now, I have one further point.

Bear in mind this Court has already found the fact of damage.

The only question is the amount and going back to the Eastman Kodak Case, this Court has held that once the fact of damage is established, mere on certainty as to amount will not vitiate an award of damages because the uncertainty, which we’re talking about, and we’re talking about it here, the claim is that we didn’t have a mature market to begin with and it's speculative whether we would’ve had and therefore, there’s uncertainty and therefore, our whole damage computation is uncertain and the damages awarded are uncertain, but throughout their briefs and throughout the argument, the respondent has taken the position that they have been in this pool since well, 20 years, and they have contributed along with their co-conspirators to our inability to commit -- compete in any way in Canada.

Of course, we had no mature market.

We couldn’t get a mature market, and the reason we didn’t have a mature market was because they had prevented it.

In other words, to apply that argument to this case, means that the uncertainty, if there is an uncertainty, and we do not believe there is in view of the evidence in the case, first, that we would’ve had it absent the conspiracy not denied, computation of damages not denied, not objected to, no objection on the ground that it was uncertain, went in without objection, no contrary proof, no opinion proof that’s contrary within that situation.

This Court said in the Bigelow and it said in other cases.

The jury may make a just and reasonable estimate of the damage based on relevant data and render the verdict accordingly.

In such circumstances, juries are allowed to act upon probable and inferential, as well as direct and positive proof.

Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim, and they said it in another way.

This Court said it in another way by saying in the absence of more precise proof, the best evidence that can be produced is all right because, quote, “The most elementary conceptions of justice and public policy required that the wrongdoer shall bear the risk of the uncertainty, which his own wrong has created.”

And here throughout their briefs, these gentlemen say they have created the uncertainty because they’ve kept us out of this market during all the prior period of the damage period.

Now, as I say, this Court has held the fact of damage.

What did the court below say?

Court below says there was a testimony for Zenith relied on by the District Court that in the four-year damage period, had Zenith been free from the unlawful activity of the Canadian pool which virtually excluded it from the Canadian market, it would have enjoyed the same proportion of that market as it did in the United States.

In Canada, its principal competitors were the same as those in the United States.

Its promotion and advertising float back and forth between the two countries.

Distributors in Canada were available, but were frightened off by the pool’s activities and threats.

It is our view that this was competent evidence prima facie upon which the amount of damages could be reasonable approximated by virtue of the Supreme Court’s decision in Bigelow and there is not one iota of countervailing evidence, and I submit that the judgment entered April 5, 1965 should be reinstated.

Chief Justice Warren E. Burger: Very well.

Mr. McConnell, thank you.

Mr. Kayser?

Argument of Victor P. Kayser

Mr. Victor P. Kayser: Mr. Chief Justice, and may it please the Court.

I propose to spend my half hour primarily answering the assertions made by Zenith’s counsel but I would like first to give a brief background against which this discussion may be conducted.

Zenith counsel stated correctly the issue here involves the amount of damages recoverable by Zenith, and Zenith’s right to recover some damages is not in dispute.

This Court ruled on the prior appeal and the Court of Appeals has recognized on remand that Zenith is entitled to recover those damages flowing from the wrongful conduct of the Canadian patent pool taking place during the four-year period, May 22, 1959 to May 22, 1963.

But the question which remains is whether Zenith is entitled to recover those damages suffered during the four-year period but as a result of acts of the Canadian pool taking place prior to the four-year period.

The period -- the prior period during which the Canadian pool is supposed to have interfered with Zenith’s operations began in 1926.

Chief Justice Warren E. Burger: Now, Mr. McConnell told us that this was not raised in the Trial Court, in the first go around.

Would you clarify that at some point for us?

Mr. Victor P. Kayser: Yes, I will come -- I might as well go to that right directly now.

Chief Justice Warren E. Burger: Whenever you wish.

Mr. Victor P. Kayser: Mr. Chief Justice.

The fact is that the defenses of statute of limitations and the defenses of the September 27, 1957 releases were raised after trial and after findings, but before entry of judgment.

At that time, we entered the litigation and moved for a reopening.

We moved for leave to plead these defenses.

That leave was granted and we have outlined the circumstances, the events and the statements of the Trial Court at pages 51 to 55 of our opening brief.

The leave was granted to plead those defenses.

They were pleaded.

We filed a motion to dismiss, reciting that those defenses had been pleaded.

The motion was overruled, obviously for the reason that the Trial Court felt that the defenses had no merit.

As this Court said, the Trial Court apparently felt it was immaterial as to whether the damage causing acts had taken place during the period or prior to the period.

And as we have pointed out in our brief, Zenith itself has admitted both in its reply brief on the original, the first appeal and in this appeal that we were granted leave to file the defenses, that the defenses were overruled on the merits or were held to have no merit.

And for that reason, the final judgment was entered as to Canada, and I --

Justice John M. Harlan: Do you think the record also lends itself to the view that the Trial Court said you go ahead and file your defenses, but I’m not going to entertain them because you’re too late?

Mr. Victor P. Kayser: Mr. Justice, I think not.

As a matter of fact, I would point for example to the Granger case cited in our brief where a similar suggestion was made, and I believe it was the Second Circuit that said the record speaks and it says that leave was granted.

That is on the record, leave was granted to file these defenses, and I suggest that the record speaks the fact and that that is the record before this Court.

In that connection, it should be pointed out that the Court also, based on the same motion, did grant us partial relief in the case of England and Australia and permitted to limit its reopening and the result of that of course was that the claims there were completely disposed of.

But the motion, we had a single motion directed to all of these matters which we submitted to the Trial Court should be permitted by reason of the fact among others that the proposed judgment of almost 14 -- 49 million, which is so devastating and would’ve have been so fatal that in the interest of justice that the Trial Court in its discretion should permit these things to be done.

Now, this Court in its first opinion pointed out specifically that the damage award as to Canada had been based on the assumption not only that there had been wrongful conduct during the period, but on the assumption that there had been wrongful conduct during the prior years, 1926 to 1959, and that Zenith had been damaged by those prior acts.

In fact, the opinion here specifically pointed out that Zenith asserted it should have had 16% share of the Canadian Television market at the beginning of that period, of the four-year period, that Zenith’s claim it should have had 13% share of the radio market but for pool activities, instead of which it had 3% of television and 4% of radio.

And accordingly, as this Court pointed out, a portion of the damage award and I submit, a very large portion was necessarily based on the pre-damage period conduct of the pool during the period 1926 to 1959.

And on remand, pursuant to remand of this Court, the Court of Appeals did hold that the defenses of release and limitations were in the case, and did hold that they barred recovery of damages suffered during the damage period by reason of these pre-damage period and pre-release period acts.

And that accordingly that the case should go back to the Trial Court so that they might be excluded, that portion of the original award which was based on pre-damage period conduct and so that the award might be limited to damages resulting from conduct occurring during the damage period.

Justice Byron R. White: Mr. Kayser, there are some indications in the opinion below that this is not the only problem in dealing with damages in this case.

Some indications that there might be some further limitation was on based on what caused the damages during the damage period.

Let’s assume that Zenith proved that without the conspiracy, that it had been a free market, it could have had and if it were starting in a price at the beginning of the damage period, it could’ve had 5% the first year, 10 the second, 15 the third, and 16 by the end of the fourth year.

Would it be entitled under the opinion below to recover the difference between those percentages and what it actually had during those years?

Mr. Victor P. Kayser: Assuming that it started with its actual market share at the beginning?

Justice Byron R. White: Yes.

Mr. Victor P. Kayser: I think the answer is yes.

Justice Byron R. White: So you mean that it would be enough to -- for example, if he could recover the difference between 15% that it would’ve had in the third year, and the 3% that it had in the third year, on the facts of this case?

Mr. Victor P. Kayser: If that is -- if that fact is established on remand, yes.

The --

Justice Byron R. White: Yes but that’s just -- all that is, is a matter of show of evidence to show what it could’ve done in the market, in the free market --

Mr. Victor P. Kayser: Yes.

Justice Byron R. White: -- practically, established already.

I mean you don’t have enough time to get to 16%?

Mr. Victor P. Kayser: Well, it’s -- it is not established, I submit Mr. Justice, because the figures that we have now start with 16% of the television --

Justice Byron R. White: Well, I understand but isn’t it established in the case that they could’ve reached 16%, given the free market?

Mr. Victor P. Kayser: It can be automated at some day in the future.

Justice Byron R. White: Yes, yes.

Mr. Victor P. Kayser: Well, it is -- the record shows --

Justice Byron R. White: You’re not challenging that really here, are you?

Mr. Victor P. Kayser: Well we -- we have taken the position below that the two markets are not truly comparable.

Justice Byron R. White: Yes, but isn’t this -- isn’t the -- isn’t that question really disposed of by the right to litigation up to now?

Mr. Victor P. Kayser: Well as I see the litigation up to now, the thing that is established is that Zenith did have a 3% market at the beginning of the period and 4% as to television, and prima facie, the record -- the court below has said in effect that assuming that Zenith began back in 1926 on radio and in 1948 on television, which is when they began in the US market that the evidence indicates a prima facie, that in that span of years under those conditions, they could’ve done the same in Canada as in the United States.

The record does indicate that.

Justice Byron R. White: So there really is quite a bit left over -- pertinent point in this case.

You’re challenging not only this pre-damage period matter, but also Zenith’s ability to achieve 15% within this damage period.

Mr. Victor P. Kayser: You mean within -- starting at 3%, we most firmly say Mr. Justice that that would be seriously in contention because Zenith’s own proof -- for example, let’s take television.

Zenith’s own proof is that starting in the United States when they started as a new competitor that by 1959, after ten years, they had gotten 16% in the Canadian market.

Their own proof is that starting in the United States in the ‘20’s in radio and over a span of over 30 years, they had gotten up and they’re taking that long to get up to 13% of the radio market.

And in Canada, they are not in new entrant, the conditions are different, and I most firmly submit that to think that Zenith could’ve have started in 1959 with its 3% share of the television market and 4% of the radio --

Justice Byron R. White: Well that’s -- I’ll just ask one more important question.

Let’s assume that it approved to the satisfaction of the Court that at the end of four years it could’ve had 10%.

Let’s just assume --

Mr. Victor P. Kayser: Starting with 3% in a free market?

Justice Byron R. White: If they could figure, and it only had 3% in the fourth year.

Now do you think that on the facts are already established in this record if it is -- it could be cover as damages illustrating a 10% and the 7% in the fourth year?

Mr. Victor P. Kayser: Mr. Justice, your -- your question I think begs one of the additional questions that must be asked.

You say, “Do you think that on the facts in this record,” there are no facts on this record on which you could assume that based on 3% at the beginning of the --

Justice Byron R. White: You’re just avoiding that, just avoiding the question.

I said, let’s assume that you have to prove that they would’ve had 10% in the fourth year and they only had three?

Mr. Victor P. Kayser: Then what they --

Justice Byron R. White: Do you have any -- do you have any legal basis per se that they could not recover the 7%?

Mr. Victor P. Kayser: Assuming it started with 3%?

Justice Byron R. White: Yes.

Mr. Victor P. Kayser: No, I have no legal basis just to say that they could not recover the 7%.

Justice Byron R. White: You wouldn't say that the content, what would have caused that damage, that 7%, Mr. Kayser?

Mr. Victor P. Kayser: Well, this Court has already ruled in its first opinion that the continuation of the pool during the four-year period with a continued policy against licensing of imports had an impact on --

Justice Byron R. White: And you wouldn’t say that they were not used to the area?

The court below indicated that perhaps it could only recover damages traceable to some specific overt acts?

Mr. Victor P. Kayser: Mr. Justice, I don’t read the Court of Appeal’s opinion that way at all.

Justice Byron R. White: And if you did, you wouldn’t agree with it?

Mr. Victor P. Kayser: I -- no sir because we are bound by the opinion of this Court, and this Court has ruled, as I understand, as I just started.

Justice Byron R. White: (Inaudible)

Mr. Victor P. Kayser: Well now, I’d like to go briefly to the point of the release, which Zenith’s counsel suggests number one, can have no application and number two, if so would involve a violation of law.

The counsel asks, how can this release executed in 1957, have any conceivable bearing on the damages which were suffered after 1957.

The answer is of course, as we have pointed out in our briefs, that this release by its terms released all past, present, and future claims, causes of action, etcetera, which might have resulted or might thereafter result from acts, conduct prior to the release namely up to the day or the day to these presents, the usual language.

Now Zenith argues that if this release has such an effect, it is against public policy.

And in its brief as urged for example, the Fox Midwest Theatre's Case, which came out of the Eight Circuit, now that case held that it would be against public policy and a violation of the Sherman Act to permit a release which covered future damages based on future violations of the Sherman Act because that obviously would be an encouragement to and in fact to some extent a license for future violations of the Sherman Act.

But in this case, all we have here, and what we do have here is a release which covers damages suffered in the future as -- by reason of past acts.

It covers that and it covers nothing more it purports to cover nothing more.

And it must be quite obvious that when Zenith asserts that it was the conduct of the pool over the period from 1926 to May 22, 1959 that prevented Zenith from building up to this 16% and 14% share of the market, which it would’ve enjoyed during this period.

It must be quite obvious I submit that the major portion of that conduct between 1926 and 1959 which interfered with the pool build up had occurred prior to September 27, 1957.

In fact, Zenith’s evidence in this case was largely testimony and documents as concerns early affairs.

I would say finally on the subject of the releases that Zenith itself has admitted to the Trial Court that, HRI Hazeltine Research has the benefit of the releases because when we brought up the question at the reopening hearing, the Court asked, “What is your reply to his contention that the 1957 release also released Hazeltine from anything prior to the day of the releases?”

Answer: “Well, any money damages which had accrued prior to 1957, if they were joint tortfeasor, which we allege they were, would be released.

But we are not asking for damages prior to 19” -- then the Court, “you’ve answered my question.”

And then Zen -- Zenith’s counsel went on to argue this contention about future damages that it would be contrary to public policy and so forth.

But the application of the release to HRI as an alleged joint tortfeasor is clear.

Justice Byron R. White: Did the release apply to a less than a 49% home subsidiary?

Mr. Victor P. Kayser: The release, if that less than 49% subsidiary was an alleged co-conspirator, it would apply.

Justice Byron R. White: Even though the --

Mr. Victor P. Kayser: It would --

Justice Byron R. White: Even though the release applied to subsidiaries, then the time subsidiaries as being only subsidiaries with around 49% or more?

Mr. Victor P. Kayser: Well Mr. Justice, as we pointed out in our brief, this release not only released the subject matter of the suit but was also a general release, and it was for that reason to apply it to the general -- to apply the general releases to the parents and subsidiaries.

Justice Byron R. White: And for what purpose could they possibly wanted to define subsidiaries if they meant to include all subsidiaries?

Mr. Victor P. Kayser: Well, to -- in order to define them -- to include them under the general release, but absent any mention, if they were in fact co-conspirators, they would have the benefit.

Now as to the subject of the statutes of limitations and the contention that it does not apply on the ground, Zenith asserts that no cause of action accrued until after the actual damages were suffered.

I submit that Zenith’s argument here flies directly in the face of long established legal principles, not only in the application in antitrust cases, but generally in the law.

Those principles are that a cause of action accrues when it can first be brought.

And in the case of Sherman Act violations as well as on other fields of law, the action can be brought -- and in the case of Sherman Act violations, when the wrongful conduct has an impact on the business of the plaintiff or on his property.

That is when there has been an invasion of his rights.

At that time, he has a cause of action not only for the damages he has already suffered, but for the damages he is likely to suffer, is reasonably certain to suffer in the future as the result of that impact.

Now Zenith’s counsel has referred to the fact of constant invasions, namely that there was admittedly impact, wrongful conduct during the period, but all that amounts to, is that Zenith would therefore have additional causes of action for the damages caused by the damage period conduct.

And in fact, that is what the Court of Appeals ruled and this Court recognized that Zenith does have a cause of action for the damages caused during the period.

But as to the damages resulting from the previous acts, it had its cause of action for past and future damages more than four years ago.

It did not sue and therefore, its claim based on the prior conduct is barred.

Now I have said that this is a well settled principle.

We have cited a number of antitrust cases in our briefs on this at pages 40 to 41 of our opening brief, 13 to -- on pages 10 to 13 of our reply.

I would like to add a case that Zenith cited in its reply brief, the Dairy Foods case which also enunciated the principle that you can recover future damages without waiting for the time to pass during which those damages would be suffered.

This is like saying to a personal injury plaintiff who has lost a leg and can no longer pursue his livelihood, “Oh no, you may not sue for future loss of income.

You must wait year after year as you lose the income and you must file suit year after year.”

That I submit to this Court is not the law, and what Zenith is really doing here is attempting to subvert the effect of Section 4 of the Clayton Act, which says the cause of action must be brought within four years from the time it accrues, or it is barred.

By attempting a redefinition of the cause of action, which in fact would fly right in the face of the statute itself because the law has long been settled and was so at the time of the passage of Section 4 (b) that when there is an impact, you can sue both for damages already suffered and for those which are reasonably anticipated to be suffered in the future.

Now I think that possibly, the best way to summarize this point is to read two sentences from the Momand case, which is an antitrust case.

This is a quotation from a District Court but the case was affirmed by the First Circuit and certiorari denied in 1949, and I read, “Each time a plaintiff’s interest is invaded by an act of the defendant’s, he has a new cause of action.

For that particular invasion, he is at once entitled to recover as damages not only for the injuries he suffers at once, but also for those he will suffer in the future from that particular invasion, including what he has suffered during and will suffer after the trial,” quoting the order below, an opinion by Mr. Justice Holmes in 235 U.S.

Now finally, I would like to go to this contention that has been made concerning uncertainty as to damages and somehow it is suggestive that our position is contrary to the Bigelow case.

Now the Bigelow case has said that if it is established that the damage is -- some damages have been suffered by reason of unlawful acts and if there is an uncertainty as to whether those damages result from that unlawful conduct or may result from other conduct that that uncertainty will be resolved against the defendant who may have created the uncertainty.

But we submit that in this case, there is no uncertainty.

That the amount of damages resulting from damage period conduct are ascertainable.

This Court itself has said that a portion of the award necessarily results from pre-damage period conduct.

It is pointed out that the award was based on the assumption of a 16% share as to television, when in fact the share at the beginning of the period was 3%.

Thus, it is obvious that 13% out of that initial 16% claim resulted from pre-damage period conduct.

The same is true on radio where the assumed share was 13% and the actual share was 4%.

It is obvious that 9/13th of the original assumed share traced to pre-damage period conduct.

It could trace to nothing else.

And the way that this thing would be resolved is to start on a remand with a 3% share of television and the 4% share of radio, put in your relevant estimates, make your determination through experts -- marketing experts, company officials, whoever is qualified to determine what Zenith could have achieved during the four years in a free market, starting with its actual 3% and 4% share, apply those percentages to volume, apply to profit, and subtract the share and the profits that Zenith actually achieved.

And the difference would be clearly and ascertainably, with reasonable certainty, the difference would be Zenith’s damages.

And we submit that under this state of facts when so great a portion of this $19 million, this devastating $19 million is obviously based on pre-damage period conduct, we submit that the clear road to be followed here is to send the case back to the court below so that there may be a determination, so that there may be a fixing of the amount which Zenith actually suffered based on conduct during the four-year period, and then bring the litigation to an end.

Chief Justice Warren E. Burger: Thank you, Mr. Kayser.

I think your time is up Mr. McConnell.

The case is submitted.