Bigelow v. RKO Radio Pictures/Dissent Frankfurter

Mr. Justice FRANKFURTER dissenting.

The dominant purpose of the Anti-Trust Acts is protection of the public interest by prohibiting unjustifiable restrictions upon competitive enterprise. From the very nature of the public interest thus to be safeguarded and by reason of the complex and costly character of the litigation to which it normally gives rise, Congress made available to the Attorney General of the United States appropriate reventive and punitive remedies: the injunction, to put a prompt stop to illegal restraints, and the stern sanctions of the criminal law, to deter such restraints. A right of action is also given to any individual who has been 'injured in his business' by such illegality. But while action by the Government to enforce the Anti-Trust Acts merely requires proof of illegality, an individual's right of recovery is dependent on proof of legal injury to him, and legal injury is not automatically established by proof of a restraint of trade in violation of the Sherman Law. Seek Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 162, 163, 43 S.Ct. 47, 49, 50, 67 L.Ed. 183.

Therefore our real question is whether the respondents' violation of the Sherman Law illegally injured the petitioners. This necessarily involves substantial proof that the petitioners' business would have been more profitable if the distribution of movie films in Chicago had been a free-for-all and if no factor of the scheme that constituted an illegal conspiracy had been in operation, than it was under the conditions that actually prevailed. Specifically, one feature of the conspiracy was stipulated rentals by distributors in furnishing films to exhibitors. The record appears devoid of proof that, if competitive conditions had prevailed, distributors would not have made rental contracts with their respective exhibiting affiliates to the serious disadvantage of independents like the petitioners. They might individually have done so and not have offended the Sherman Law.

I agree that Eastman Kodak Co. v. Southern Photo Material Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684, and Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544, should guide the disposition of this case. But I do not find that the decisive distinction made in those cases has been observed in deciding this case. The distinction is between proving that some damages were 'the certain result of the wrong' and uncertainty as to the dollars and cents value of such injuring wrong. Such difficulty in ascertaining the exact amount of damage is a risk properly cast upon the wrong-doing defendant. But proof of the legal injury, which is the basis of his suit, is plaintiff's burden. He does not establish it merely by proving that there was a wrong to the public nor by showing that if he had been injured ascertainment of the exact amount of damages would have had an inevitable speculative element to be left for a jury's conscientious guess. This basic distinction was thus formulated in Story Parchment Co. v. Paterson Parchment Paper Co.:

'The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.' 282 U.S. at page 562, 51 S.Ct. at page 250, 75 L.Ed. 544.

In the Eastman and Story cases the plaintiffs established what their profit was when competitive conditions prevailed and that the subsequent loss properly became exclusively attributable to restraint of such conditions. Such a comparison is not revealed by this record. It was wholly speculative, as the Circuit Court of Appeals properly held in applying the rule in the Story Parchment Co. case, whether the intake of petitioners would have been more profitable if the distribution of films in Chicago had been left wholly to the haggling of a free market. 150 F.2d 877. As to the subtleties involved in such speculation, compare International Harvester Co. v. Kentucky, 234 U.S. 216, 223, 224, 34 S.Ct. 853, 855, 856, 58 L.Ed. 1284.

Where there is conceded legal injury, as for instance where one man's chattel is taken by another, as in the old case of Armory v. Delamirie, 1 Strange 505, we start with the legal injury and the problem is merely one of ascertaining damages 'uncertain in respect to their amount.' Such cases are not helpful where the crucial issue, as here, is whether there is solid proof of the existence of a legal injury.