Justia Federal District Court Opinions

These consolidated appeals are from separate judgments in private Section 4 antitrust suits against defendant-appellants. 38 Stat. 731, 15 U.S.C.A. 15. Each of the suits is based upon the same alleged 20-year combination and conspiracy under Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C.A. 1, 2, to monopolize, attempt to monopolize and restrain interstate trade in the source, production and processing of vanadium-bearing ore on the Colorado Plateau, and the interstate marketing of its metallurgical products. Each of the plaintiffs claims damages for injury to his business and property by reason of the predatory effects of the alleged master conspiracy. The suits largely involve common issues of facts and law, and were consolidated for trial.

The complaint in the so-called Balsley case (No. 6321) states the basic combination, conspiracy and operative facts common to all of the cases. It is cast in two counts. Count one is by thirty-six named independent ore miners on the Colorado Plateau who mined and sold vanadium-bearing ore to defendants during all or a part of the alleged combination and conspiracy, and who complain of injury by reason of alleged monopolistic and conspiratorial price-fixing practices of the defendants. The second count of this complaint is a class action under 23(a)(3) F.R.Civ.P., 28 U.S.C., in which the plaintiff-miners in count one seek to enforce the several rights of the same class of unnamed independent miners on the Colorado Plateau.

On the latter count, the factual question of the existence of the conspiracy and its total impact on the class was submitted to the jury, leaving to the court the function of assessing the amount of damages to any member of the class after notice and hearing. The defendants have perfected an interlocutory appeal under Section 1292, 28 U.S.C., 72 Stat. 348, from an order on a jury verdict in favor of the class, in which they challenge the propriety of the class action, and that matter will be hereinafter fully considered.

In Number 6319, Nisley and Wilson are independent millmen on the Plateau, who claim to have been injured in their business and property by reason of the impact of the combination and conspiracy. Wade and his co-plaintiffs in Number 6320 were millmen, who also operated mining claims on the Plateau. They claim to have been injuriously excluded from competition with the defendants by force of the alleged monopoly and conspiracy.

To each of the separate claims, appeallants have pleaded the 4-year statute of limitations as a bar to recovery. 4B Act of July 7, 1955, 69 Stat. 283; 15 U.S.C.A. 15b. The applicability of the statute of limitations involves a complexity of statutory suspension, tolling and tacking, relied upon by plaintiffs to avoid the statutory bar and to sustain recovery for all matters complained of from 1938 to the filing of the suits in 1958. Since the incidence of the statute of limitation goes to the heart of the right of recovery, we shall first consider the measure of its applicability.

The combination and conspiracy is alleged to have been formed in 1933, and recovery thereon was allowed from 1938 to the date of the filing of the suits. When the suits were filed, Section 4 of the Clayton Act had been amended in 1955 (69 Stat. 283, 4B, 15 U.S.C.A. 15b), to provide a uniform 4-year statute of limitations to actions arising thereunder, and providing also that no cause of action barred under existing law on the effective date of the Act (January 7, 1956) shall be revived. And, Section 5 of the Clayton Act, as amended in 1955, provided in presently material part that:

'(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter; Provided, however, that whenever the running of the statute of limitations in respect of a cause of action arising under Section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accured.'

From this it follows that the right to recover damages accruing by reason of the alleged conspiracy prior to June 1954 is barred, unless the running of the statute is suspended by the pendency of a criminal information against these defendants filed in September 1948, and terminated on June 2, 1957. These suits were filed within one year after termination of the information, and the appellees rely upon its pendency and a prior indictment against the same defendants filed in June 1946, and dismissed on the date of the filing of the criminal information in September 1948. To further toll the statute beyond the pendency of the indictment and subsequent information, appelleees invoke the so-called 1942 war-time tolling statutes, 56 Stat. 781, as amended, 59 Stat. 306, 15 U.S.C.A. 16 note under which all statutes of limitation applicable to antitrust violations were suspended until June 30, 1946.

If, as the trial court held, these asserted private rights of action can be said to be 'based in whole or in part on any matter complained of' in the criminal information together with the indictment, and the war-time tolling statutes are applicable, they cumulatively operate to toll or suspend the running of the 4-year statute to October 10, 1942, and thus allow recovery for the actionable period laid in the suits, i.e., 1938 to 1958. But, appellants earnestly contend that their plea in bar should have been sustained because these suits are not based in whole or in part upon the information or the indictment, and in any event, the indictment cannot be tacked to the information so as to suspend the bar beyond the pendency of the information.

In the first place, they say that under prevailing law, in order for the private suits to be based in whole or in part on the information, the matter complained of therein must be 'virtually identical' to the matter complained of in the information, i.e., the private litigants must rely not only upon the same general conspiracy, but upon the same means to achieve the same objectives of the same conspiracy. In sum, the appellants take the position that the words 'private right of action' in Section 5(b) mean an overt act committed in furtherance of a general conspiracy; and the words 'based in whole or in part on any matter complained of' mean in whole or in part of any such overt act complained of in a government proceedings; and that the criminal information is therefore ineffectual to suspend the running of the statute of limitations against any overt act or right of action asserted in the private suits which are not identifiable in the information. Making application of this admittedly strict construction of the statute, and considering each overt act as a 'private right of action,' they point out that the asserted rights of action and the information do not coincide either with respect to time or subject matter.

It is apparently true, as appellants suggest, that alleged overt acts in furtherance of the conspiracy prior to December 13, 1941, were not chargeable in the indictment or invormation. And, it is true of course that overt acts occurring after June 1, 1946, were not within the indictment filed on that date, or within the information, which did not charge any subsequent overt acts. Nor did not information complain of the cativities of the defendants while acting as agent of the government under a contract with a government agency known as the Minerals Reserve Company; nor of a conspiracy to monopolize or restrain trade in the uranium content of the ore, as did the private suits. Neither did it complain of the monopolization or conspiracy to monopolize vanadium ore claims nor of individual monopolization or individual attempts to monopolize.

Antitrust actions of this kind are, to be sure, concerned with overt acts done in furtherance of the injury complained of, and there is good authority for construing the statutory words 'based in whole or in part on any matter complained of' to mean overt acts complained of by the United States in a government suit. See Steiner v. 20th Century-Fox Film Corp., 9 Cir., 232 F.2d 190. This interpretation of the critical words is said to be supported by Congressional history of the legislation, and by the preceding and related Subsection (a) of Section 5, which provides in substance that a final judgment or decree rendered in a criminal prosecution under the anti-trust laws to the effect that a defendant had violated such laws, shall be prima facie evidence against such defendant in any suit or proceedings brought by any party against such defendant under such laws as to all matters respecting which the judgment or decree would be an estoppel as between the parties thereto. Construing the two paragraphs together (5(a) and 5(b)), and making application of the general rules of estoppel, it is suggested that since a final judgment in a government suit would be admissible as evidence in a private suit only as to matters complained of and decided in the government suit, the running of the statute of limitations with respect to matters not complained of would not be suspended. See Steiner v. 20th Century-Fox Film Corp., supra.

The two paragraphs are indeed complementary and should be construed together. See Sun Theatre Corp. v. RKO Radio Pictures, 7 Cir., 213 F.2d 284; Fifth & Walnut, Inc. v. Loew's, Inc., 2 Cir., 176 F.2d 587, 593. But, we do not think they are necessarily co-extensive in their frame of reference. The purpose of the first paragraph of Section 5 was 'to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in antitrust actions'; and to that end 'to confer, subject only to a defendant's enjoyment of its day in court against a new party, as large an advantage as the estoppel doctrine would afford had the Government brought suit.' Emich Motors Corp. v. General Motors, 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534.

The corollary purpose of the tolling provisions of the second paragraph of Section 5 is to vouchsafe the intended benefits of related government proceedings by suspending the running of the statute of limitations until the termination of the government proceedings, and allowing the private suitor one year thereafter in which to prepare and file his suit.1 The competency of a government judgment in a private suit is necessarily restricted to the requirements of due process. But the tolling of the statute during the pendency of the government litigation is not so limited.

Making application of the estoppel doctrine in a private antitrust suit, which alleged that the monopolistic acts and practices of fefendants in a local area were steps in the perpetration of a broad nation-wide conspiracy between and among the defendants, we sustained the trial court's admission of the final judgment in the nation-wide conspiracy case as prima facie evidence of the existence of such conspiracy and its localized impact upon the business of the private plaintiff. Loew's, Inc. v. Cinema Amusements, 10 Cir., 210 F.2d 86. See also Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846. Sun Theatre Corp. v. RKO Radio Pictues, supra, seems contra, i.e., see 213 F.2d at page 290. But even so, we do not think the tolling provisions of the second paragraph of Section 5 are confined to or governed by the evidentiary rules of estoppel, necessarily prevalent in the first paragraph.

If we accept the appellants' interpretation of Section 5(b), a Section 4 plaintiff would be put to the necessity of bringing suit on the same conspiracy alleged in the government suit, or suffer the bar of the statute as to every overt act not complained of in the government suit. This interpretation would lead to a multiplicity of suits with duplication of proof. It would add to the burdens of the private suitor to the harassment of the defendants. We do not think Congress intended any such result. Rather, we think Section 5(b), as amended, was intended to suspend the running of the statute on a Section 4 claim during the pendency of a government-instituted suit which complained of all, or a part of the means relied upon by the private plaintiff to effectuate the same general combination and conspiracy.

These private suits alleged substantially the same conspiracy against the same defendants as in the government suit. They relied upon the same documentary and oral proof to establish the conspiracy, and they also relied 'in part' on the same means for the effectuation of the same conspiracy. There was substantial identity of subject matter, and this was sufficient to suspend the running of the statute.

The criminal information was filed on the date the indictment was voluntarily dismissed. The information alleged substantially the same conbination and conspiracy against the same parties and substantiarlly the same means for its effectuation. From the time of the filing of the indictment on June 1, 1946, until the termination of the suit on the information, there was pending a government-instituted antitrust suit on which these private suits were based in part, and they operated to suspend the running of the statute of limitations as to such suits.

The appellants claim that the war-time tolling statutes, supra, were superseded by the enactment of the 4-year federal statute of limitations, and were therefore inoperative to toll the running of the statute beyond the filing of the criminal indictment in June 1946 They point to the expressed Congressional concern over the prolongation of antitrust litigation by virtue of the war-time tolling statute, and the disparity brought about by the application of state statutes of limitation. And, they assert the Congressional purpose of the 1955 Amendment was to supersede both the war-time statute and the state statutes. In order to curtail undue prolongation of litigation, the 4-year statute expressly provided that no action barred under existing law on the effective date of the 1955 Amendment would be revived thereby. But we can discern no Congressional purpose to bar any right of action which subsisted by virtue of existing law on the effective date of the Amendment. Indeed, one of the declared purposes of 5(b) (see Footnote 1) was to 'extend the tolling period not only for the duration of the Government's antitrust suit, but for 1 year thereafter.' Under the proviso in 5(b), supra, a suit to enforce a cause of action under Section 4 is not barred if commenced 'either within the period of suspension (i.e., during the pendency of the government suit and one year thereafter) or within 4 years after the cause of action accrued.'2 These suits having been commenced within the period of susepnsion, i.e., one year from the date of the termination of the information, the 4-year statute was inoperative during that period. See Goodfriend v. Kansas City Star Co., D.c., 158 F.Supp. 531; April v. National Cranberry Ass'n, D.C., 168 F.Supp. 919. In that respect, our cases are factually different from Herman Schwabe, Inc. v. United Shoe Machinery, 2 Cir., 274 F.2d 608; United Shoe Machinery v. International Shoe Machinery Corp., 1 Cir., 275 F.2d 459, where the private suits were commenced more than one year after the termination of the government suits, and the 4-year statute became applicable to the asserted causes of action.

The United States Vanadium Corporation and Electro Metallurgical Company, wholly owned subsidiaries of Union Carbide, were dismissed from the pending criminal information on May 21, 1956. The appellants contend that the information thereupon ceased pending against these two defendants, and inasmuch as no private suit was filed against them within one year from the date of termination, the 4-year statute is applicable to all matters complained of against them; that such statutes of limitation are available to the parent corporation; and that having raised the statute as a defense, the trial court erroneously refused to apply it. In other words, Carbide contends that it may be held liable without regard to the statute of limitations running against its subsidiary 'only if it actively participated in the conspiracy.'

In United States v. United States Vanadium Corporation, 10 Cir., 230 F.2d 646, we held tha tthe criminal proceedings against these particular defendants abated upon their dissolution and merger with the parent corporation. Melrose Distillers v. United States, 359 U.S. 271, 79 S.Ct. 763, 3 L.Ed.2d 800, seems to be to the contrary. But, we have no need to decide whether under the case the running of the statute was suspended during the pendency of the information against the parent defendant, for the actions surely terminated when they were dismissed on May 21, 1956. From that date there was no pending government suit against these defendants to suspend the running of the statute as against them. And, since these suits were not commenced within one year after the termination of the government suits, the 4-year statute applies, unless, as the appellees concede, Union Carbide actively participated in the conspiracy.

Without detailing the pertinent evidence at this stage of the appeal, suffice it to say that there was evidence tending to show that these two wholly owned subsidiaries, together with other subsidiaries, were actually incorporated departments or divisions of the parent corporation, by which it carried on an integrated business of mining, processing, converting and marketing vanadium-bearing ore and its refined products. It was not the purpose of the statute of limitations to require the plaintiffs to institute suit against these dissolved corporations in order to avoid the running of the statute as to acts committed in their name while under the direction and control of the parent corporation.

Appellants take the further position that in any event, the asserted claims were barred by applicale state statutes of limitation. The theory seems to be that the state statutes of limitation which were applicable and suspended on the effective date of the Amendment in January 1956, thereupon commenced to run on that date, and operated to bar the actions when these suits were commenced in June 1958. The simple and conclusive answer is that even before the 1955 Amendment and the advent of the uniform 4-year statute, the second paragraph of Section 5 of the Clayton Act (38 Stat. 731) operated to suspend the running of all statutes of limitation in respect to each and every right of action which was based in whole or in part on any matter complained of in a government suit. And since, as we hold, the pending information and indictment operated to suspend the running of the statute on these asserted causes of action until one year after termination of the information, they were not barred when the 1955 Amendment became effective. And, since these suits were commenced within the 1-year period, they are not barred by any statute of limitation, state or federal.

We agree with the trial court that the 4-year federal statute of limitation is applicable; that it was suspended from June 4, 1958 back to June 1, 1946 by the pendency of the government suits; tolled from June 30, 1946 back to Cotober 10, 1942 by the war-time tolling statute; and therefore all causes of action accruing before October 10, 1938 are barred.

This brings us to the merits of the cases. Since the Balsley action presents the central issues on appeal, we will first consider the points raised in that case.

SOME BASIC AND COMMON FACTS.

Carnotite and rosceolite ore, found in paying quantities on the Colorado Plateau, contain both vanadium and uranium. When vanadium is processed and reduced into ferrovanadium, it is useful in the manufacture of alloy steel, and is sold primarily to steel companies in competition with other ferroalloys. Vanadium-bearing ore is first milled and processed into vanadium oxide (V(2) O(5))-- usually at mills or plants located in the mining vicinity-- and in this form has no commercial utility. It is then shipped to reduction plants in the Eastern part of the United States where it is converted into ferrovanadium and sold in that form to the steel industry. In the forepart of this alleged conspiracy, and prior to the advent of atomic energy, uranium was used primarily in the ceramic industry, and only high grade uranium ore was marketable for the purpose. The prime element of carnotite and rosceolite ore was vanadium, and in the milling process to produce vanadium oxide, the uranium was discharged as tailings or refuse.

The Vanadium Corporation of America (VCA) was the pioneer and principal producer of ferrovanadium until the Union Carbide and Carbon Corporation (UCCC) entered the industry in 1926. From about 1911 until about 1932, VCA obtained most of its raw material from a high grade vanadium mine in the Republic of Peru. In the beginning, the ore bodies yielded about 50 percent V(2)O(5) and the ore was shipped directly to VCA reduction plants in the State of Pennsylvania, where it was smelted and refined directly into ferrovanadium. As mining progressed down through the ore bodies, however, the vanadium content diminished until by 1930, the ore yielded less than 10 percent V(2)O(5), and it became necessary to fuse the ore before reducing it to ferrovanadium. This intermediate process took place originally in Peru at the mine site on an experimental basis and at the reduction plant in Pennsylvania. Because of the diminishment of vanadium content in the ore, and depressive market conditions, VCA ceased to operate its Peru mine in 1931, and for a year or two thereafter supplied its market demand from inventory of fused oxide and ferrovanadium. About this time, VCA acquired vanadium ore deposits and an oxide mill on the Colorado Plateau at Naturita, Colorado, but apparently did not mine the ore or operate the mill until 1940.

Meanwhile, and in 1926, UCCC, after a survey of the available supply of vanadium-bearing ore on the Colorado Plateau and the potential market for ferrovanadium in the steel industry, purchased extensive ore deposits and a vanadium oxide mill at Rifle, Colorado. The Rifle mines and mill were acquired in the name of the wholly owned United States Vanadium Corporation (USV). It also acquired a ferrovanadium plant in Ohio, which it later transferred to its wholly owned Electro Metallurgical Company (Electromet). And still later, it acquired other similar plants in the Eastern part of the United States. It marketed the ferrovanadium to the steel industry through the Electro Metallurgical Sales Corporation (Electromet Sales), another wholly owned corporation.

In 1932, the USV Colorado mines and mill were closed due to an oversupply (between 3,000,000 and 4,000,000 pounds) of vanadium oxide which was stored at the Colorado plant. In 1933, Electromet sold to VCA 1,000,000 pounds of vanadium oxide (V(2)O(5)) for 80cents a pound, to be delivered in monthly quantities before December 1934. From 1932 through 1939, VCA purchased from Electromet a total of 2,825,583 pounds of vanadium oxide, which was approximately 20 percent of its then current requirements. In 1936, USV constructed a vanadium oxide mill at Uravan, Colorado, 13 miles from VCA's dormant plant at Naturita. And, in 1938, the capacity of the Uravan plant was doubled, with structural steel furnished by VCA.

With an upsurge in market demand due to national defense and export requirements in 1937, VCA increased its imports from Peru, and in mid-1940, activated its mine and oxide plant at Naturita. In 1942, VCA constructed a vanadium oxide plant for the United States government at Monticello, Utah, and operated it under an agreement with the Metals Reserve Corporation, a United States government agency, until February 1944; and again from February 1945 until April 1946. Also in 1942, USV rebuilt and reactivated its Rifle plant and constructed another plant for the United States government at Durango, Colorado, which it operated until June 1948, at which time the plant was leased by VCA. From 1939 to 1942, USV mined and processed ore from deposits belonging to and controlled by VCA and delivered the vanadium oxide to VCA under a toll agreement for 65cents and 75cents per pound.

Approximately 90 percent of the ore milled by USV at its plants came from its own mines. About 70 percent of the ore milled by VCA at its plants came from its own mines. The remainder of the ore was purchased from independent miners on the Colorado Plateau, such as the plaintiffs in the Balsely group. From the very outset, and until 1942, the operating mills on the Colorado Plateau paid identical prices, i.e., 21cents a pound, for 2 percent vanadium ore. In 1942, the price was simultaneously increased by both companies to 31cents, and this basic uniform price prevailed on the Colorado Plateau until the filing of this suit in 1958. From 1933 to at least 1948, most of the vanadium-bearing ore mined on the Colorado Plateau was milled in plants which were either owned or operated by one of the two companies. The product of these plants, this is V(2)O(5), was sold on identical price schedules, except sales or interchanges between the two companies. During all of the period complained of (1938 to 1958), VCA and UCCC, through its subsidiaries, controlled almost 100 percent of the ferrovanadium market, with approximately 66 percent to VCA and the remainder to Electromet. These sales were made to the steel industry on identical price schedules under yearly 'requirement contracts.'

In sum, it may be taken as an established salient fact that from 1938 until 1948, most all of the domestic vanadium-bearing ore was produced on the Colorado Plateau; that approximately 80 percent of such ore was mined from properties owned by the two companies; and that most of the ore was milled in vanadium plants owned or operated by one of the two companies. Almost all of the vanadium oxide was converted to ferrovanadium in plants owned by the two companies. The two companies controlled the market for ferrovanadium which was sold to the steel companies on requirement contracts at identical prices. From this it is fair to say that the appellants possessed monopolistic and price-fixing powers to bring about the combination and conspiracy complained of in the complaint. Our first question is whether they used those powers for the predatory and unlawful purposes complained of.

EVIDENCE OF COMBINATION AND CONSPIRACY.

There was competent evidence in support of the alleged combination and conspiracy to the effect that UCCC entered the vanadium field in 1927 for the avowed purpose of exploiting ferrovanadium as a steel alloy. Its integrated corporate structure was designed to mine, mill, produce and sell vanadium to the steel industry at prices which would enlarge the market in competition with other alloys; and, that by pursuing this aggressive policy in a depressed market, it built up a large inventory of vanadium oxide at its Rifle plant. And, it being no longer profitable for VCA to import Peru ore for its depleted markets, there could be nothing sinister about its purchase of 1,000,000 pounds of USV's surplus oxide to supply its market for ferrovanadium. At 80cents a pound, over a cost of about 40cents or 50cents, the transaction was profitable and advantageous to USV-- indeed, mutually advantageous.

From the evidence in the record, it is fairly inferable, however, that contemporaneously with the USV-VCA sale in 1933, USV was faced with the alternative whether it would lower the price of oxide and ferrovanadium and attempt to garner a greater share of the alloy market, and perhaps eliminate VCA as a competitor, or negotiate and cooperate with VCA as a friendly competitor. And, it is fairly inferable that it finally resolved to pursue the latter course. There was evidence of friendly negotiations between the two companies concerning centralized mining and milling of the oxide on the Colorado Plateau. The negotiations went so far as to contemplate the reconstruction of VCA's Naturita dormant mill, to be operated by USV; and that it was finally decided to construct the mill at Uravan, 13 miles away. The construction of the mill in 1936, and its enlargement in 1938, followed by the agreement between the two companies, whereby USV would mine and mill VCA's ore, to be converted into ferrovanadium in VCA's plants to supply VCA markets, is evidence of collusive cooperation between the two companies.

There was direct evidence to the effect that beginning in 1936, USV kept a very close surveillance on the activities of competitors and potential competitors on the Plateau. And, when in 1938, independent miners and millers began to spring up with the increase in market demand for ferrovanadium, USV immediately took steps to forestall competition.3 USV commenced purchasing ore from the independent miners in 1938, and in 1939 published its first ore price schedules, in which it quoted a base price of 21cents per pound for 2 percent ore, which was its estimated cost of producing its own ore. The evidence showed that USV inaugurated an aggressive policy of acquiring the mining claims of the independent miners who were unable to operate their properties at ore prices offered by USV, the only purchaser; that it acquired claims tributory to independent millers in order to dry up their source of supply; and that they purchased the output of independent millers while they had a surplus of oxide, in order to take it off of the market.4

With the continued increase in the demand for ferrovanadium, VCA decided to activate its plant at Naturita in 1939. When the plant opened in 1940, they commenced purchasing ore from independent miners, and there was evidence to the effect that VCA agreed with USV that it would pay the same price of 21cents per pound for 2 percent ore. With the accelerated demand, there was some deviation from the base price in the way of bonuses and hauling differentials but in the main, the parties pursued and policed the same price schedule.

In recognition of the necessity for increased domestic production of vanadium for the war effort, the United States government entered into a contract with USV on May 9, 1942, whereby USV was designated as its agent to construct and operate the Durango plant and to purchase vanadium-bearing ore suitable for treatment in the plant 'at reasonable prices not to exceed 50cents per pound of vanadium pentoxide (V(2)O(5)) delivered at suitable loading points.' There was evidence that at about the same time, USV and VCA mutually agreed to raise the price of 2 percent vanadium ore purchased from independent miners to 31cents per pound, and that they maintained this price schedue for ore purchased at both VCA's Naturita plant and USV's plant throughout the period complained of.

From this it is fair to infer, as did the jury, that some time prior to 1938, the appellants combined and conspired to monopolize or attempt to monopolize, and to restrain interstate trade in the vanadium industry; that they took affirmative and effective steps to fix the prices for the raw ore, fused oxide and ferrovanadium, and to forestall and eliminate competition and to divide the market between them.

THE MEASURE AND AMOUNT OF DAMAGES.

The Balsley miners claimed and were permitted to recover damages based upon the difference between the price they were paid for the vanadium content of the ore sold to the appellants, and the prices they would have received but for the antitrust violations. They claimed damages based upon the value of the uranium content in the ore delivered to the appellants, and for which they were not paid. They presented their case by dividing their claims into four damage categories:

'(1) Vanadium content of carnotite ore: This category included:

'a. All purchases of vanadium by appellants as private buyers from October, 1938 to June, 1958.

'b. All purchases of vanadium by U.S.V. during a period in which they were commissioned by M.R.C. to acquire carnotite ore. This period ran from May, 1942 to February, 1944.

'(2) Uranium content of carnotite ore: This category included:

'a. All purchases of uranium by appellants as private buyers until the Atomic Energy Commission's ore buying program. The period ran from October, 1938 to April, 1948.

'b. All purchases of uranium by U.S.V. during period commissioned by M.R.C. to acquire carnotite ore. This period ran from May, 1942 to February, 1944.'

In their answer to interrogatories submitted in the form of the verdict for the unnamed plaintiffs in the class action, the jury specifically found that as to the vanadium purchases by the defendants from the unnamed-miner plaintiffs for the period October 1938 through March 1948, the price per pound for 2 percent vanadium ore should have been 40cents, and 35cents for the period from April 1948 through May 1958. As to purchases of 2 percent vanadium ore by USV as agent for MRC from June 1942 to February 1944, the jury found that the price should have been 50cents per pound. With respect to uranium sales, the jury denied any recovery for the period January 1939 through December 1942. For the period January 1, 1943 to August 31, 1945, the jury found that the per pound price of uranium ore should have been $1.25, and $2.50 per pound for the period September 1, 1945 to March 318 1948. The form of the verdict for the named plaintiffs did not specify the per pound price which the plaintiffs should have received for the periods set out and as specified in the vereict for the unnamed plaintiffs. However, the recovery as to each class, i.e., the named and unnamed, was based upon the same proof and necessarily computed according to the same formula. The amount of damages awarded each named plaintiff was computed on the basis of their individual ore settlement sheets, which, in each transaction, reflected the amount of ore delivered to the purchaser (USV or VCA), its vanadium content, and the price paid therefor, as against the price the jury found they would have received but for the violations. For the purpose of calculating the amount of uranium content of the ore sold during these periods, the jury justifiably found that the approximate average ratio of vanadium to uranium for the vanadiumuranium properties on the Colorado Plateau was six to one.

For the purpose of reviewing the factum and amount of damages awarded in the judgment, we shall conveniently observe the same periods and categories as did the jury in arriving at its verdict. But, we shall first consider the recoverability of damages for vanadium ore purchases while USV was acting as the agent for MRC (May 1942 to February 1944) in the prosecution of the government's ore-buying policies. The earnest contention is that the appellants could not have conspired to fix prices with respect to ore purchased by USV acting as agent for the government. As we have seen, the agency agreement between USV and MRC dated May 9, 1942, did make and constitute USV the agent of the government to construct a vanadium plant at Durango, Colorado, and commissioned USV to exert its best efforts to purchase for the account of the government vanadium ores for treatment at the government plants, at reasonable prices not to exceed 50cents per pound V(2)O(5).

The trial court was requested to instruct the jury in substance that the government itself could not violate the antitrust laws; that an agent for the government, acting within the scope of his authority, was likewise immune, and that if the authorized activities of the agent were validly conferred, the fact that the agent may have had illegal private motives in the performance of his authorized duty was irrelevant. It is true, as appellants suggest, that the antitrust laws are inapplicable to government activities. And, it may also be taken as equally true that since the government acts only through its agents, such agents are likewise immune from liability under the statute while acting within the scope of his authority in the furtherance of a declared governmental policy or legislative scheme. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315; Asheville Tobacco Board of Trade v. F.T.C., 4 Cir., 263 F.2d 502. Cf. Atchison, Topeka & S.F. Ry. Co. v. Aircoach Transportation Ass'n, 102 U.S.App.D.C. 355, 253 F.2d 877. But there is nothing in this agency contract to justify the inference that the government intended to transgress the antitrust laws. The contract does not purport to authorize USV to fix prices, restrain trade or achieve a monopoly in the vanadium industry, and we will not lightly infer an intention to do so. Cf. Maryland and Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880; United States v. Radio Corp. of America,358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354; United States v. Borden Co.,308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181.

The court, correctly we think, instructed the jury that if the defendants used the agency powers 'for the purpose of carrying out or assisting any combination or conspiracy to restrain trade or to monopolize trade in the vanadium industry or any actual monopolization thereof, the fact that they might have been government agents at the time does nto immunize their conduct;' and that 'a violation of the antitrust laws may be carried out by acts which, standing alone, may be legal, but if they form a part of anm illegal combination or conspiracy to restrain or monopolize, then you may consider them with all of the other evidence in the case to arrive at your verdict.' The court then proceeded to particularize to the effect that if, in the execution of the government ore-buying program, USV arrived at prices paid the miners as a result of agreement with VCA to pursue a plan to monopolize the vanadium industry, the fact that it was acting as agent for MRC would not immunize otherwise unlawful conduct. 'And this is so' said the court, 'though government officials knew and tacitly approved the ore-purchasing programs which violated the antitrust laws.'

Both the Durango plant and the Monticello plant were constructed with government funds to be operated by USV and VCA respectively for the account of the government in recognition of the urgent need for additional vanadium ore concentrates. the USV-MRC agency contract was designed to subsidize the mining of marginal ores for production in the government-owned and privately operated plants. USV was authorized to and did negotiate various prices for mined ore, depending upon its percentage content which bore upon the cost of mining and transportation. The evidence shows that many contracts were negotiated with miners on the Plateau, including those in the Balsley group, for the payment of varying prices, some below the 31cents scheduled price, and some above. Of course, a negotiated price based upon grade, haulage and a 10 percent profit, is inconsistent with a conspiracy-fixed price, unless it can be said that the negotiated prices were in themselves designed to further the objectives of the combination and conspiracy. The appellees contend in effect that the negotiated prices were discriminatorily directed toward the effectuation of the monopoly.

It is difficult to determine from this record to what extent the negotiated prices were tainted by the subsisting conspiracy price of 31cents. Some basic facts are important guides in determining to what extent the found conspiracy permeated and influenced the MRC prices. First, there was positive evidence to the effect that contemporaneously with the advent of the government ore-buying program and the USV-MRC contract of May 9, 1942, USV and VCA officials agreed to raise the base price of ore from 21cents to 31cents for 2 percent ore, and that throughout the period of the ore-purchasing agency, this basic price prevailed for private purchases of ore for USV and VCA privately owned plants at Naturita and Uravan, despite the accelerated demand for vanadium ore. USV's ore-purchasing officer became its principal orepurchasing officer under the agency contract. And, it seems fair to say that he was at least in doubt concerning whether and to what extent the 31cents privately established base price was to govern the government purchases. Indeed, it is difficult to discern whether he truly served the interest of the MRC ore-buying program, or whether he utilized his powers as a government agent to further the interest of the price-fixing and monopolistic design of an employer, USV. There was evidence to the effect that at least some of the plaintiff miners were unaware of USV's discretion to pay a reasonable price for the ore not to exceed 50cents per pound.

One of the negotiated purchase contracts was between USV as agent for MRC and VCA, dated March 11, 1943, providing for the payment of 48cents per pound, plus hauling allowance for 1.5 percent ore.⁵ While all of this ore was milled in the government-owned-VCA-operated Monticello plant, at a loss to VCA, it was the highest price paid for ore on the Plateau under the MRC ore-purchasing program. Many of the contemporaneous contracts provided for much lower prices for the same percentage ore. The socalled negotiated prices paid under the USV-MRC agency contract for ore to be processed in government-owned plants, were not intended to yield a profit to the millers. Indeed, the record shows that the Monticello and Durango mills were operated at a loss to the government. The prices were not open-market competitive prices, and ordinarily would not be a permissible element of damages based upon what was received and what would have been received but for the conspiracy. But even so, if, as the jury apparently believed, the prices paid to the independent miners in relation to the prices paid to VCA were discriminatory and intended to effectuate the monopolistic designs, the miners are entitled to recover the difference between the negotiated discriminatory prices and the price which the jury found the miners should have received but for the conspiracy, having in mind the relevant economic factors, including the negotiated price contemporaneously paid to VCA.

In the last analysis, it was for the jury to determine whether the negotiated price was actually a part and parcel of the appellants' design to achieve a monopoly, and whether the negotiated prices to the plaintiff-miners were discriminatorily different from those paid to VCA under the same circumstances. On the whole record, we cannot say that the jury's finding to the effect that the plaintiff miners should have been paid 50cents per pound for 2 percent vanadium ore purchased by USV under its agency contract with MRC is without rational basis in fact and reason.

FACTUM AND AMOUNT OF DAMAGES FOR VCA-USV PRIVATE VANADIUM ORE PURCHASES FROM OCTOBER 1938 TO MARCH 1948

Appellants complain of the allowance of damages for ore sales during 1938 and 1939, on the grounds that since VCA did not commence purchasing ore on the Plateau prior to mid-1940, there could have been no prive-fixing conspiracy, hence no evidence of controlled or predatory prices. But there was evidence from which the jury could reasonably infer that the 1938 and 1939 purchases of ore were made in pursuance of a monopolistic design; and that the prices paid to the independent miners were intended to effectuate and perpetuate the monopoly. The appellants were therefore liable for the difference between a competitive price and the monopolistic one.

The appellees concede the burden of proving (1) that the appellants violated the antitrust laws; (2) that the violations had an injurious impact on the plaintiffs; and (3) that there was sufficient economic data from which the jury could estimate or proximate the amount of damages.

The court clearly instructed the jury to the effect that plaintiffs had the burden of establishing by the greater weight of the evidence the alleged conspiracy to fix prices of uranium-vanadium bearing ore, and to monopolize or attempt to monopolize the vanadium industry; that such unlawful acts proximately caused injury to the property and business of the plaintiffs; that if they found by a greater weight of the evidence that the defendants did so conspire to fix prices and monopolize or attempt to monopolize, and that the plaintiffs were damaged thereby, they might resolve any uncertainty as to amount against the wrongdoer and assess damages upon inferential, as well as direct and positive proof. In that respect, the jury was told that in making their estimates of damages to the plaintiffs, and particularly the price which they would have received but for the violations of the antitrust laws (determined by the jury to be 40cents per pound for this period), they should consider all of the economic information produced at the trial, including the prices paid under the metal reserve program, and the price range authorized under the MRC-USV agency contract, the cost of production viewed in the light of the profits made, the prices received by VCA for ore it sold to USV as agent for MRC, and any reasonable allocation which the evidence permits of the defendants' profits as between ore, oxide and ferrovanadium.

The appellants complain of a myriad of errors in these instructions. First, they say that even conceding arguendo the existence of a conspiracy, there is no competent evidence to prove with the requisite degree of certainty that the plaintiffs suffered legal injury as a result thereof. Specifically, they deny that the uniform prices paid for the ore-- 21cents to May 1942 and 31cents thereafter-- was not the fair market price of the ore. And, in that regard, they point to the fact that no other purchaser and miller of ore on the Colorado Plateau paid more than the so-called fixed prices. They call attention to the periods of soft markets and surpluses for ferrovanadium.

There is no direct evidence tending to show what vanadium ore would have sold for in a free market, absent the conspiracy. As we have seen, the MRC prices were not free market prices, and standing alone were not evidence thereof. But, it is significant, we think, that during the period of war-time scarcity, when the government, through the MRC was subsidizing the production of vanadium ore through negotiated prices not to exceed 50cents per pound V(2)O(5), and was paying VCA 48cents per pound for 1.5% ore, the fixed price of private purchases remained uniform and consistent at 31cents per pound. In these circumstances, we think it not improper to allow the jury to consider the MRC prices in determining whether, absent the conspiracy, the plaintiff-miners would have received more. During all the period between 1938 and 1948, the defendants were the dominant purchasers and millers of vanadium ore on the Colorado Plateau. They were practically the only processors and sellers of ferrovanadium, the finished product. The jury found from competent evidence that the defendants fixed the price of the raw material which they purchased, and the price for which the finished product would sell, and that they controlled and divided the market between them.

The mere existence of an unlawful conspiracy to fix the price of vanadium ore on the Colorado Plateau, purchased by the defendants from the plaintiffs, does not in and of itself prove legal injury to the sellers of the ore, i.e., that they would have received more for the ore, absent the conspiracy. At the same time, the prolonged existence of a pricefixing conspiracy in an integrated industry such as ours is proof of damages to those whose prices are directly affected thereby. In that respect, our case is noticeably akin to Mandeville Island Farms v. American Crystal Sugar Co.,334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328. And see also Fox West Coast Theatres Corp. v. Paradise Theatre Building Corp., 264 F.2d 602, where Judge Fee said for the Ninth Circuit, 'The mere unlawful combination over a period of time to eliminate competition is proof of damage'; and, in Richfield Oil Corp. v. Karseal Corp., 271 F.2d 709, the Ninth Circuit again said that applied restraint would patently result in some loss of business.

The appellants also attack that part of the instructions of the court which told the jury that in estimating damages, they could take into consideration the cost of production viewed in the light of the profits made as allocated between the raw ore, the oxide and the ferrovanadium. The court admitted evidence over the objection of the appellants, of their net profits from the sale of vanadium oxide and ferrovanadium. And, the jury was permitted to determine damages on the basis of the profit spread between the cost of the vanadium ore and the price of oxide and ferrovanadium.

Loss of profits has been accepted as constituting an element of recoverable damages where they are capable of being measured or estimated on a reasonable basis. See Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846; Atlas Building Products Co. v. Diamond Block & Gravel Co., 10 Cir., 269 F.2d 950; Bigelow v. R.K.O. Radio Pictures, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652. It would seem reasonable to say that profits from sales of a finished product in a monopolistic market are distinctly relevant to the free market value of the raw materials, the cost of which was a constitutent element of such profits. This is especially so when considered in the context of an integrated industry. It seems relevant to consider that from 1934 to 1947, ferrovanadium was sold in a controlled and restricted market for $2.70,.$2.80 and $2.90 per pound, depending on grade. And, there was some evidence to the effect that based upon the price paid for vanadium ore, and the cost of conversion into the finished product, the appellants could have profitably paid as much as 80cents per pound for the V(2)O(5) contained in the ore purchased from the plaintiff-miners. This data was based upon calculations which, while attacked, cannot be said to be wholly without factual basis. In these circumstances, we cannot say that the jury's finding to the effect that the free market price of 2 percent vanadium ore for the period October 1938 through March 1948 was 40cents per pound instead of 31cents was clearly erroneous.

DAMAGES FOR THE URANIUM CONTENT OF THE ORE.

As we know, appellees claimed damages for uranium sales made to the appellants from 1938 to the advent of the Atomic Energy Commission in April 1948. The jury awarded no damages for sales made prior to January 1, 1943. The appellants first deny the existence of any conspiracy or nonopolistic designs with respect to the purchases of uranium ore. The appellees take the position that the conspiracy alleged, and which the jury found, related to and affected the purchase of carnotite ore on the Colorado Plateau which, as we know, contained both uranium and vanadium on a ratio of about six parts vanadium to one part uranium; and that from the very beginning, appellants conspired not to pay the miners anything for the uranium content in the ore, while recognizing its value and while selling it to the government.

A bit of background is important to a consideration of our question. As we have seen, at the beginning of the mining operations on the Colorado Plateau, the uranium content of the carnotite ore was considered a valueless impurity, relegated to refuse in the form of tailings. The splitting of the atom in 1939, and the publication in 1940 of literature on the potential value of uranium as a fissionable material, fired the imagination of some scientists and industrialists, including some of the officer and employees of Union Carbide. As early as 1939, USV costructed a small recovery plant in connection with its Uravan operations. High grade uranium sludge was recovered from the tailings. About the same time, Union Carbide, through one of its subsidiaries, began experimenting with uranium as a source of energy, and in 1940, USV sold and delivered 1,000 pounds of uranium sludge to another subsidiary for experimental purposes. But, these experiments did not result in the production of uranium oxide for commercial purposes, and as far as we can determine from the record, no commercial use was made of it.

The so-called Manhattan District was formed in 1942 by the government for the specific purpose of secretly developing and producing the atomic bomb. In the latter part of 1942 or the first part of 1943, Manhattan entered into classified 'cost-plus-a-fixed-fee' contracts with USV for the construction and operation of two 'sludge plants,' one at Uravan, Colorado, and another at Durango; and a refining plant at Grand Junction. The sludge plants were designed to manufacture uranium sludge or slime (designated by a secret code) from sand tailings which had accumulated from the operation of the vanadium mills at the same sites. The Grand Junction plant was designed to refine the sludge into uranium oxide, also designated by a secret code. Contemporaneously with these construction and operation contracts, the government contract with USV to purchase the refined oxide from USV and the sludge from VCA. About the same time, the government-owned plant at Monticello was activated for the processing of uranium sludge under a contract between Manhattan and MRC.⁶ About the same time, the government commissioned a subsidiary of Union Carbide called Union Mines, to develop processes for the benefication of uranium and to survey the resources of uranium on the Colorado Plateau, and make recommendations 'for the acquisition of the strongest possible control of the products and disposal of such resources.' Also in the early part of 1943, Manhattan enlarge VCA's Tandawanda ceramic plant, which had been used to process high grade uranium for the ceramics industry. Throughout the period of the so-called Manhattan project, this plant continued to be known as a ceramic plant for security reasons. All of these contracts contained the legally required provision against disclosure of any information relating to the contracted work under penalty of law. These contracts remained secret and classified until unclassified in 1957. None of these contracts contemplated a profit to the appellants for any of the work done or performed, or for the products processed and delivered.⁷ Most, if not all, of the high grade uranium sludge came from the workings of tailings which had accumulated from the vanadium operations, during which the uranium content in the ore was valueless. Notwithstanding all these activities, only 12 1/2 percent of the uranium utilized in the Manhattan project came from the Colorado Plateau. Throughout the period of development of the atomic bomb, and until the dropping of the first bomb in 1945, Manhattan looked primarily to high grade uranium ores from the Belgian Congo for its source of fissionable material. The production of uranium on the Colorado Plateau was considered only as a by-product of the vanadium ore operations. There was no concentrated effort toward the exploitation of the uranium content in the carnotite ore until the advent of the Atomic Energy Commission in 1947.⁸ Indeed, appellees accuse the appellants of concertedly subordinating the production and marketing of the uranium content in the ore to the conspiratorial agreement to fix the price and control the market of vanadium products.

With the dropping of the bomb and the ending of the war in 1945, the demand for uranium as fissionable material began to phase out. Having developed the bomb which ended the war, the mission of the Manhattan District was accomplished. While the government apparently continued to honor its existing uranium contracts with appellants after 1945, there was no urgent need or market for uranium. Matters drifted along until Manhattan went out of existence at the end of 1946 and the Atomic Energy Commission took over in January 1947. There has never been a free market for U(3)O(8) as fissionable material. The government is and always has been the sole and only purchaser at prices fixed or negotiated with the suppliers.

Viewed in this perspective, it seems doubtful whether the pre-existing vanadium monopoly was broad enough to embrace an agreement not to pay the plaintiff-miners for the uranium content of the carnotite ore purchased by the appellants during the period in which the government was purchasing uranium sludge processed from accumulated tailings at the vanadium mill sites. We will, however, resolve all doubts in favor of the findings which are implicit in the jury verdict, and assume the existence of a conspiracy to monopolize or attempt to monopolize the market for the uranium content of the carnotite ore, which is the subject matter of this suit. But even so, we are unable to discern how the appellees can be said to have suffered any compensable harm as a result of the activities of the appellants in connection with either the MRC vanadium ore-purchasing program, or the Manhattan-uranium project. The USV-MRC contract of May 9, 1942, authorizing USV to purchase ore suitable for treatment in government-owned plants at reasonable prices not to exceed 50cents per pound for vanadium oxide, did not authorize USV to pay anything for the uranium content of the ore. Indeed, there is nothing in the record to indicate that the government's vanadium ore-buying program contemplated the payment for or the recovery of the uranium content of the ore purchased under the USV-MRC contracts.⁹ With the advent of the purchasing program in 1943, the appellants, and for that matter everyone else, was forbidden under penalty of law to acknowledge that the uranium content in the ore was being saved or utilized. It is agreed that the Manhattan project for the acquisition of uranium ore on the Colorado Plateau was a security secret. It may well be that a portion of the vanadium content of the miners' ore found its why into the sludge which the appellants sold to Manhattan under the contracts, but even so, the contracts did not contemplate a profit to the appellants, and the record shows that operating profit, if any, was negligible.

In these circumstances, we can find no factual basis for the award of damages based upon ore purchases prior to the dropping of the atomic bomb in July 1945. But appellees assert that there was no reason for secrecy after July 1945, and therefore no valid grounds for not compensating the appellees for the uranium content of ore purchases after that date. Subsequent to the dropping of the bomb, and in 1946 and 1947, the government entered into contracts with the appellants for the purchase of U(3)O(8) in the form of sludge and sodium uranate, highly refined uranium products. While these contracts were coded and classified, they explicitly provided for the payment of the U(3)O(8) contained in the ore, 'whether such ore is produced or mined by the contractor or purchased from an outside source.' These contracts, as revised and amended, are irrefutable evidence of the amount of uranium contracted to be sold to the government during the years 1945, 1946 and 1947, and the unit price to be paid therefor.¹⁰ In January 1946, USV issued a price schedule providing for the payment for unanium at 30cents for .75 percent uranium ore. VCA issued its first price schedule in the spring of 1947 for 50cents per pound for similar ore.

Giving full effect to the combination and conspiracy as it embraced the uranium content of the ore purchases, we are brought to the point of confining the compensable damages to purchases of the U(3)O(8) content of the carnotite ore which are traceable to the U(3)O(8) contracted sales to the government in 1946 and 1947 based upon the per unit price of such sales.¹¹

This brings us to the matter of attributable damages for private vanadium ore purchases by the appellants from the appellees subsequent to April 1, 1948. Again we can find no rational basis for finding that the plaintiffs suffered any damages resulting from the existence of a conspiracy during that period. In that connection, we may assume that the conscious parallelism in the pricing and marketing structure of the vanadium industry, as shown by the record, was sufficient to sustain the burden of proving the continued existence of the combination and conspiracy beyond the advent of the Atomic Energy Commission. See Morton Salt Co. v. United States, 10 Cir., 235 F.2d 573.

It is important to remember that there was a surplus of vanadium in 1944 when the government discontinued its MRC ore-buying program, and that when in 1947, uranium became the prize element in the carnotite ore and the government entered into contracts with the appellants for the purchase of sludge and other high grade uranium products, it became necessary to make arrangements for the disposition of the vanadium content. This resulted in the purchase and stockpiling of vanadium on an established ratio. The mounting surplus of vanadium from the urgent quest for uranium and the apparent necessity for keeping it off the market, led the Atomic Energy Commission in April 1948 to promulgate minimum established prices for uraniumbearing carnotite or rosceolite ore. Atomic Energy Commission Circular 3, which fixed the price of uranium, also fixed the minimum price of vanadium at 31cents per pound, not exceeding 10 pounds of V(2)O(5) for each pound of U(3)O(8). Twenty-three different companies on the Colorado Plateau became engaged in the operation of uranium processing plants, most of which were larger than the appellants' two plants. None of these companies paid more than the established minimum price for vanadium, and in turn sold the same to the A.E.C., which stockpiled it and unsuccessfully offered to sell it below the prevailing price. Although appellants continued to control the ferrovanadium market and to fix the prices, it was utterly impossible for them to have controlled or fixed the price of vanadium ore. The government price was a support price. Several processors refused to pay for the vanadium at all. We are thus brought to the conclusion that the judgment of the trial court based upon ore purchases subsequent to April 11, 1948 is factually unsupportable.

CLAIMED ERRORS IN THE INSTRUCTIONS

The appellants complain of the refusal of the court to instruct the jury on the 'relevant market,' 'thrust upon monopoly,' 'refusals to deal,' and instructions on price uniformity and attempts to monopolize. They particularly complain of the court's refusal to give nineteen requested instructions after indicating its intention to do so. Appellees claim that the appellants failed to properly save their objections to the court's instructions in accordance with Rule 51 F.R.C.P. But the appellants submitted more than fifty requested instructions, many of them revised requested instructions, and all intended to present to the court appellants' theory on the various crucial points in the lawsuit. They objected to the refusal of the court to instruct the jury as requested in a manner to bring to the attention of the court the various objections and the grounds therefor. The court was fully informed of the appellants' theory of the case and the requirements of the Rule were fulfilled. See Downie v. Powers, 10 Cir., 193 F.2d 760; cf. Western Machinery Co. v. Consolidated Uranium Mines, 10 Cir., 247 F.2d 685; Hayes v. United States, 10 Cir., 238 F.2d 318; Pridgin et al. v. Wilkinson et al., (10 CA-- Sept.1961) 296 F.2d 74.

Particularly, the appellants requested the court to instruct the jury that in determining whether the appellants attempted to exercise or did in fact exercise unlawful monopoly powers, they must take into consideration the relevant market for the products involved; that relevant market was composed of products with reasonable interchangeability for the purpose for which they were produced-- 'price, use and quantities considered;' and that if the jury found that vanadium oxide and ferrovanadium had no independent market, but were interchangeably used in connection with or in competition with other ferro alloys, they could not find that the appellants agreed to monopolize, or either of them monopolized or attempted to monopolize in violation of the antitrust laws. In support of this requested instruction, reference is made to United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264. See also International Boxing Club of N.Y. v. United States, 358 U.S. 242, 243, 79 S.Ct. 245, 3 L.Ed.2d 270; United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010; Cole v. Hughes Tool Co., 10 Cir., 215 F.2d 924.

There was some evidence that ferrovanadium was sold in the ferro alloy market in competition with other alloys. And, commodities which are 'reasonably interchangeable by consumers for the same purposes make up that 'part of trade or commerce', monopolization of which may be illegal.' See Du Pont, 351 U.S. p. 395, 76 S.Ct. p. 1007, quoted in International Boxing Club. But, Section 1 of the Sherman Act condemns unreasonable restraints irrespective of the amount of trade or commerce involved; and Section 2 condemns a monopoly or attemts to monopolize-- either in concert or individually-- 'any part of the trade or commerce.' See United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, also quoted in International Boxing Club. We do not understand the Du Pont case to hold that every commodity which is reasonably interchangeable with another commodity cannot be the subject of a Section 2 illegal monopolization, for, 'industrial activities cannot be confined to trim categories. Illegal monopolies under 2 may well exist over limited products in narrow fields where competition is limited.' Du Pont, 351 U.S. p. 395, 76 S.Ct. p. 1007. In our case, the mining, processing and marketing of the finished products from vanadium ore were undoubtedly an integrated industry forming a definitive part of trade and commerce, and it was undoubtedly the subject of monopolization without relationship to other competitive products. Moreover, the gist of the claim here is not the monopolization of the finished product, ferrovanadium, but rather of the raw materials from which it was made. The mining and marketing of the raw materials were undoubtedly an 'appreciable part of interstate commerce' and as such subject to a Section 2 monopolization. United States v. Yellow Cab Co., supra.

Nor do we agree that the trial court erroneously refused to instruct on the theory of 'thrust upon' monopoly. There is nothing here to indicate or from which it can be fairly inferred that the found monopoly in vanadium was 'thrust upon' the appellants or either of them by the 'forces of nature' or industrialized attrition. See Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518, quoted in United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 92 L.Ed. 1236. And see also United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416.

On the issue of monopoly and attempts to monopolize, the trial court instructed the jury in substance that it was unreasonable per se to foreclose competitors from any substantial market; that the use of a monopoly power, however lawfully acquired, to foreclose competition, obtain a competitive advantage, or to destroy a competitor, is unlawful under Section 2. And see United States v. Griffith, supra, 334 U.S. p. 107, 68 S.Ct. 941. The court was careful to draw a distinction between a conspiracy to monopolize under Section 1 and a monopolization or attempts to monopolize under Section 2. It defined a Section 2 monopoly as 'the attainment of such position of (market) power in an industry so as to be able to exclude others from competition or fix prices.' And, it went on to tell the jury that the attainment of such market power by a single corporation, coupled with showing of employment of methods, means and practices, which are in themselves in restraint of trade, constitutes a violation of Section 2. And see American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 90 L.Ed. 1575; Kansas City Star v. United States, 8 Cir., 240 F.2d 643. And, the court went on to say that Section 2 condemns attempts to monopolize if accompanied by a specific intent to exclude others from competition or to fix prices.

The appellants complain of the refusal of the court to tell the jury that the specific intent must be accompanied by conduct sufficient to create 'a dangerous probability of monopolization.' The trial court instructed the jury to the effect that before they could find for the plaintiffs, they must be satisfied by the greater weight of the evidence that the defendants agreed to restrain trade in vanadium products, or that they monopolized or attempted to monopolize, either in concert or individually; and that such unlawful conduct had an injurious impact on the plaintiffs' businesses. We think the instructions in that regard correctly stated the law of the case, and we do not think it was reversibly erroneous to refuse to define 'attempt to monopolize' beyond the point of telling the jury that the attempt must be accompanied by a specific intent to acquire market power and exclude others from competition. Having thus correctly instructed the jury, appellants cannot complain of the refusal of the court to give their requested instructions, even though they may have been literally correct statements. See Loew's, Inc. v. Cinema Amusements, 10 Cir., 210 F.2d 86; Tyler v. Dowell, Inc., 10 Cir.,274 F.2d 890; Telluride Power Co. v. Williams, 10 Cir., 164 F.2d 685.

The appellants complain generally of the instructions as being weighted in favor of the appellees and against the appellants. They earnestly contend that rulings in the course of the trial, together with his instructions, so influenced the jury so as to deprive them of a fair trial. There are, to be sure, instances in the record in which the trial court indicated with some emphasis his view of the evidence, and even a critical attitude toward counsel for appellants. And, it may be fairly said from the tenor of the whole record that the jury was impressed with the views of the court concerning the merit of the plaintiffs' case, and the demerits of the defendants' case. But, as we have recently said, 'a judge presiding over a * * * federal court is not a mere umpire. He has both the responsibility of assuring the proper conduct of the trial and the power to bring out the facts of the case.' Jordan v. United States (10 CA-- Sept.1961), 295 F.2d 355. To that end, an expression of the court's views with respect to the evidence and conduct of counsel within proper limits is permissible, provided the jury is given to understand that they are free to form their own opinion of the facts and apply them to the law. See Tyler v. Dowell, Inc., supra. At the beginning and ending of the court's instructions, the jury was told that they were the sole judges of the facts and of the credibility of witnesses having testified to facts, and that it was for them to determine who they would believe and where the ultimate truth lies; and that if, in the course of the trial or during the instructions, the court had said anything indicating its view of the testimony, and the jury entertained a different view, they should follow their own opinion rather than the court's. The jury was emphatically told that it was for them to resolve all conflicts in the evidence, and that they should consider the evidence as a whole 'carefully, impartially, without any bias or prejudice of any kind, way, shape, manner or form, one way or the other.' In these circumstances, we do not think the trial court exceeded the limits of his prerogatives as the governor of the trial.

The appellants also complain of the admission and exclusion of evidence. But we do not think the court's rulings in that regard prejudicially affected the outcome of the litigation. See Rule 61 F.R.Civ.P.; Blum v. Cottrell, 4 Cir., 276 F.2d 689.

The appellants complain of the inclusion, as a part of the costs awarded to the plaintiffs, the sum of $9,915.63 for accounting fees for services performed by an accounting frim for the plaintiffs in connection with the prosecution of the case. These fees are not properly allowable. See Euler v. Waller, etc. (10 CA-- Sept.1961) 295 F.2d 765, construing Rule 54(d) F.R.Civ.P.

The appellants also complain of the allowance of $500,000.00 attorney fees as erroneously excessive. Inasmuch as in our view the trial court's judgments must be vacated and modified, we have given consideration to the allowance of attorneys fees in the light of the outocme of the litigation here, commensurate with the judgments to be entered. We are of the considered opinion that an allowance of 15 percent of the amount recovered, together with the allowable costs, would be reasonable.

The several judgments are vacated and the cases remanded for the entry of judgments in favor of the respective appellees: (1) for the difference between the amounts paid and 40cents per pound V(2)O(5) for the vanadium content of the private ore purchases by the appellants from the appellees from 1938 to 1948; (2) for separate judgments in favor of the appellees for the difference between the prices paid to the appellees and 50cents per pound V(2)O(5) for ore purchases by USV as agent for MRC; and (3) separate judgments in favor of the appellees for the value of the uranium content of ore purchases from them, which is identifiable in the uranium sales in any form by the appellants to the government subsequent to September 1, 1945, based upon unit prices reveived by the appellants from the government, in accordance with the several contracts of record.

COUNT TWO OF THE BALSLEY CASE.

As we have seen, the jury returned separate verdicts in this case-- one in favor of the thirty-six plaintiffs named in the first count, and another for the class of approximately three hundred fifty unnamed plaintiffs. The latter verdict was in response to special interrogatories, which submitted to the jury (1) the question whether defendants violated the antitrust laws; (2) whether such violations resulted in damage to the members of the class; and (3) the amount of per-pound damages which the respective members of the class would have received for their ore, during the specified period, but for the violations.¹²

Pursuant to the verdict, the court entered an order giving the unnamed miners six months to appear and file claims before a special master who will determine the extent, if any, of each miner's damages, in accordance with the perpound formulae provided in the verdict. The court also ordered the defendants to produce their ore settlement sheets identifying the members of the class and the amount of ore purchased from each. The final judgments, as to each member of the class, are to be based upon the prescribed per-pound formulae and in accordance with the respective ore settlement sheets.

It is appellants' contention that the procedure adopted by the trial court erroneously authorizes intervention by the unnamed plaintiffs after rendition of a favorable verdict. And we are thus squarely brought to an unresolved question of procedural law, i.e., whether in a class action under Rule 23(a) (3), F.R.Civ.P., non-participating plaintiffs may intervene after determination of defendants' liability, to share in the fruits of a judgment obtained by their participating representatives.

One line of authority is to the effect that a 23(a)(3) class action is merely another joinder device, placed in the Federal Rules in order to obviate the jurisdictional requirements of complete diversity 'where there are numerous persons who have claims or defenses that involve a common question of law or fact.' 3 Moore 23.10(3), p. 3448. See e.g. Kainz v. Anheuser-Busch, Inc., 7 Cir., 194 F.2d 737, 743; Central Mexico Light & Power Co. v. Munch, 2 Cir., 116 F.2d 85; Independence Shares Corp. v. Deckert, 3 Cir., 108 F.2d 51, 55; California Apparel Creators v. Wieder, 2 Cir., 162 F.2d 893, 174 A.L.R. 481; 3 Moore 23.10; 2 Barron & Holtzoff, Federal Practice and Procedure, 562, 569. From this it has been reasoned that 23(a)(3) serves only this one purpose and, consequently, only those persons who are actually parties to the litigation are bound by or can share in a money judgment.¹³ See e.g., Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84, 91; Oppenheimer v. F. J. Young & Co., 2 Cir., 144 F.2d 387; 3 Moore 23.11(3); 2 Barron & Holtzoff, Federal Practice and Procedure, 572; and that any other use of the rule would violate the precepts of mutuality of estoppel which may have constitutional overtones. I.e. see Hansberry v. Lee., 311 U.S. 32, 43, 61 S.Ct. 115, 85 L.Ed. 22; 3 Moore 23.11(5).

Other courts, in cases where there has been an identifiable class, have allowed unnamed plaintiffs to intervene and share in the judgment obtained by their representatives, insofar as each is able to prove both membership in the class and damages. See York v. Guaranty Trust Co., 2 Cir., 143 F.2d 503, 529, reversed on other grounds, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Pentland v. Dravo Corp., 3 Cir., 152 F.2d 851, 856; Bascom Launder Corp. v. Telecoin Corp., 2 Cir., 204 F.2d 331, 336; Nagler v. Admiral Corp., 2 Cir., 248 F.2d 319, 327; All American Airways v. Elderd, 2 Cir., 209 F.2d 247; Speed v. Transamerica Corp., D.C., 100 F.Supp. 461, 463; Tolliver v. Cudahy Packing Co., D.C., 39 F.Supp. 337, 339; Alabama Independent Service Station Ass'n v. Shell Petroleum Corp., D.C., 28 F.Supp. 386; Hormel v. United States, D.C., 17 F.R.D. 303; State Wholesale Grocers v. Great A. & P. Tea Co., D.C., 24 F.R.D. 510, 512-513. See also Kalven & Rosenfield, the Contemporary Function of the Class Suit, 8 U.Chi.L.Rev. 634; Comment, The Spurious Class Suit; Procedural and Practical Problems Confronting Court and Counsel, 53 NW. U.L.Rev., 627, 630-633; 633; Keeffe, Levy & Donovan, Lee Defeats Ben Hur, 33 Corn.L.Q. 327; Comment, 46 Col.L.Rev. 818.

Undoubtedly this latter solution results in the more expeditious and efficient disposition of litigation and ought therefore to be favored. If, on the other hand, this type of class action was intended to have as its only function an adjunctive method of permissive joinder, there would be no logical reason for its being made a part of Rule 23 instead of another means of joinder under Rule 20. It is of no avail to say that 23(a)(3) is merely meant to obviate the requirements of complete diversity and thereby allow joinder by non-diverse parties in cases where there are numerous members of the class. See 3 Moore 23.10(3), p. 3448. It is, of course, true that the Rule does serve this function; however, we envisage it as having a broader purpose-- to allow a final determination of common questions of law and fact. Otherwise 23(a)(3) is relegated to an out-of-context incongruity amongst the utilitrarian procedural modes which, when brought together, elucidate the modern-day concepts of class actions. We would thus be brought to the point of saying, '* * * that where it is impracticable to bring all the parties before the court they must nevertheless be brought before the court.' Kalven & Rosenfield, supra, p. 700. This result would be manifestly inconsistent with the broad purposes of the Rules.

It is likewise sophistic to argue that mutuality of estoppel operates to prevent the unnamed miners from intervening after rendition of the verdict. For one is not precluded from claiming the benefits of a favorable judgment to which he was not a named party, simply because he would not have been bound by an unfavorable judgment rendered against named parties who did not adequately represent his interests. Hansberry v. Lee, supra, 311 U.S. p. 43, 61 S.Ct. 115. But, even so, whether these plaintiffs would have been bound by an unfavorable judgment is not decisive. The critical fact is that the court has yet to enter the final judgments, and mutuality of estoppel is therefore inapposite. Before any final judgment is rendered, all unnamed claimants will be present and required to prove their identity with the class who were damaged by force of defendants' unlawful acts. Defendants' liability and the extent thereof has been competently proven by the named plaintiffs and it would be grossly redundant to say that it must be proven again by the unnamed members of the represented class. See 71 Harv.Law Rev. 934-939.

Nor does submission to a special master violate defendants' right to a single, indivisible jury trial. All operative facts have been determined in the original action. The master serves only to assess the amount of individual damages, based upon the formulae stated in the verdict and appellants' own records. And see Rule 49(a) F.R.Civ.P. If, in the process of identifying the members of the class and assessing the amount of their respective damages, unresolved questions of fact are disclosed, it is time enough to submit those questions to a jury, duly empaneled for that purpose. The interlocutory order of the court does not contemplate the denial of the right to a jury trial on any unlitigated question of liability.

The defendants make the further argument that the statute of limitations has run as to those miners who were not parties actually before the court. In order to reach this conclusion, they contend taht the filing of the original action serves to toll the statute only in favor of those present; and that each class member must 'appear and assert his claim' before expiration of the statutory period. See also Athas v. Day, D.C., 161 F.Supp. 916; 3 Moore 23.10, p. 3443. If, however, the unnamed plaintiffs are to be accorded the benefits of the judgment, it must be said that the running of the statute of limitations is tolled by the commencement of the suit. See also Joint Council, etc. v. Delaware, L. & W.R. Co., 2 Cir., 157 F.2d 417, 421; Lynch v. American Motorists, D.C., 101 F.Supp. 946; 3 Moore 23.12, p. 3476. If a class action is maintainable as such, it is incongruous to say that the absent members, who are represented by those present, may not rely upon the commencement of the action by their bretheren to toll the running of the statute. This would only serve to 'convert the rule into a trap' for those who have expeditiously allowed their rights to be maintained by a class action. York v. Guaranty Trust Co., supra. See also Richmond v. Irons, 121 U.S. 27, 52-53, 7 S.Ct. 788, 30 L.Ed. 864; Deckert v. Independence Shares Corp., D.C., 39 F.Supp. 592.

The appellants' final contentions in this action attack the questions propounded by the from of verdict and the properiety of the court's order. Suffice it to say that the action was ripe for submission on special interrogatories, and the questions posed by the court cannot be deemed 'clearly erroneous' or a breach of discretion. The attacked order merely contemplates the submission of a plan for consideration by the court. Until this plan has become a part of a judgment or other final order, any question concerning it is academic. Of course any orders of submission and judgments rendered must be in conformity with the judgments to be entered for the named plaintiffs, in accordance with the views herein expressed.

No. 6319

UNION CARBIDE AND CARBON CORPORATON and VANADIUM CORPORATION OF AMERICA. vs. FRANK NISLEY, JR., ET AL.

As indicated in the forepart of the Balsley opinion, supra, this appeal is from a judgment against the same appellants in favor of ore mill men on the Colorado Plateau, who claimed to have suffered the loss of their ore milling business as the result of the monopolistic activities described in the Balsley case. We start with a factually established combination and conspiracy to monopolize the source, fix the price, and control the market for vanadium ore and its products, as in Balsley. Our inquiry then is confined to the sufficiency of the evidence to support a jury finding that the appellees, Nisley and Wilson, were damaged in their business by the appellants' predatory practices, and if so, whether to the extent of the jury's verdict, i.e., $40,000.00 tripled to the sum of $120,000.00 We must bear in mind that it was incumbent upon the appellees to prove that they suffered damages as a proximate result of the conspiracy or monopoly with reasonable certainty. But, having thus established the factum of damages, the amount thereof may be fairly approximated by the jury. See Atlas Building Products Co. v. Diamond Block & Gravel Co., 10 Cir., 269 F.2d 950; Telluride Power Co. v. Williams, 10 Cir., 164 F.2d 685, 686. And, we must also remember that the jury, not the court, is the trier of the facts in these cases, and if the evidence, viewed in its most favorable light, justifies the crucial inferences the jury has drawn from those facts, we are not to disturb them even though as a fact finder we would have drawn a different inference or conclusion. See Atlas Building Products Co. v. Diamond Block & Gravel Co., supra, and cases cited. Some contextual facts are necessary to an understanding of our precise problem.

With th