333 F.

2d 798

The HAVERHILL GAZETTE COMPANY, Appellant,

v.
UNION LEADER CORPORATION, Appellee.
UNION LEADER CORPORATION, Appellant,
v.
The HAVERHILL GAZETTE COMPANY, Appellee.
No. 6175.
No. 6191.

United States Court of Appeals First Circuit.

June 8, 1964.

COPYRIGHT MATERIAL OMITTED Robert H. Goldman, with whom

Frank Goldman, Lowell, Mass., Joseph F. Bacigalupo, Lawrence, Mass.,
and Goldman, Goldman & Curtis, Lowell, Mass., were on brief, for The
Haverhill Gazette Co.
James M. Malloy and Ralph Warren Sullivan, Boston, Mass., with whom
Malloy, Sullivan & Sullivan, Boston, Mass., was on brief, for Union
Leader Corp.
Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX,
District Judge.
ALDRICH, Circuit Judge.

These cross-appeals by the Haverhill Gazette Company (Gazette) and Union

Leader Corporation (ULCo) from a final judgment in Gazette's favor following
the confirmation of a master's report mark the third time this case has been
before us. In Union Leader Corp. v. Newspapers of New England, Inc., 1 Cir.,
1960, 284 F.2d 582, cert. den. 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744, we
affirmed a decree granting an injunction against ULCo forbidding certain
conduct in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. 1, 2,
but vacated the decree insofar as it granted relief in ULCo's favor. In In the
Matter of Union Leader Corp., 1 Cir., 1961, 292 F.2d 381, cert. den. 368 U.S.

927, 82 S.Ct. 361, 7 L.Ed.2d 190, we affirmed the action of the district judge in
charge of the case in refusing to disqualify himself in response to an affidavit of
prejudice. Following this the district court referred the suit to a special master
for a determination of the damages caused Gazette by ULCo's wrongful
conduct. The master found single damages in the amount of $29,442. The court
overruled Gazette's objections to the report and entered a judgment in Gazette's
favor for $88,326 (the trebled amount) together with $60,000 as statutory
attorneys' fees and $8,000 expenses. Gazette's appeal alleges the damage
findings to have been grossly inadequate. ULCo appeals from the award of
counsel fees. It also objects to the failure of the court to consider one of the
grounds on which it claims that Gazette, or more exactly the purchaser of all of
Gazette's common stock, Newspapers of New England, Inc.,1 and others, were
themselves guilty of violating sections 1 and 2 of the Sherman Act, and section
7 of the Clayton Act, 15 U.S.C. 18. This opinion will be concerned only with
Gazette's appeal.2
2

The facts, many of which were recited in detail in our first opinion, will be
referred to in part as we proceed. The basic fact we now start with is that
Gazette entered the damage hearing with comprehensive findings in its favor
indicating serious and continuous illegal activity of many sorts by ULCo over a
period of years, and "stupendous losses," whether or not as a result of ULCo's
wrongdoing, and wound up with a finding of damages in an amount of
comparative insignificance.3 Gazette contends, inter alia, that this resulted from
the master's erroneously "compartmentalizing" the issues, citing Continental
Ore Co. v. Union Carbide & Carbon Corp., 1962, 370 U.S. 690, 82 S.Ct. 1404,
8 L.Ed.2d 777, and placing too severe a burden upon it as to each item and,
further, by disregarding the findings of the district court. ULCo, on the other
hand, takes the position that the findings of the master are to be accepted unless
plainly wrong, and that they were not.

Because it has an important bearing on precisely what was before the master
and the scope of the inquiry open to him, we must consider the prior
proceedings with some particularity. At the time of the referral the posture of
the case was superficially usual, but actually highly unusual. The issues
initially tried to the court were stipulated to be "every issue pertinent to the
granting or refusing of an injunction," and "every issue of liability." The trial,
exclusive of substantial preliminaries, lasted two weeks. It resulted in an
opinion containing a comprehensive summary of findings, pursuant to which
the court entered a "Partial Final Decree." Consistent with the stipulation the
decree recited,
"11. Pursuant to Rule 54 of the Federal Rules of Civil Procedure, 28 U.S.C.,

this Court expressly determines that there is no just reason for delay in entering
final judgments on the following claims:

* * *.

all claims for injunctive and declaratory relief. * * *"

It thereupon entered "final judgments" with respect to all paragraphs of its order
except the reserved damage claims. It added,

"However, if an appellate court should regard these orders not as final but as
interlocutory, and if the parties would not have the benefit of the appeals
available under 28 U.S.C. 1292(a) (1), this Court, in accordance with 28
U.S.C. 1292(b), is of the opinion that the orders in paragraphs 1, 2, 3, 4, 5, 8,
9, 10, and 11 involve a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the litigation."
Our first opinion did not discuss the question whether, or to what extent, the
partial decree was final or interlocutory. In its order of reference, following our
affirmance, the district court stated, "The only issues now being left for
adjudication relate to damages. These are precisely analogous to issues of
damages which would be raised in patent, copyright, and like cases following
an appellate adjudication on issues of liability. Such cases are customarily
referred to a Master for the ascertainment of damages."

It is here that the difficulties, and they are serious, commence. Except for the
sometime question of increasing the damages because of the nature of the
infringement, 35 U.S.C. 284 (a matter the statute reserves exclusively for the
court in all cases), the issues of patent infringement and damages are separate
and clear-cut. Although ascertainment of damages may involve difficult
questions of apportionment, see, e. g., Gotham Silk Hosiery Co. v. Artcraft Silk
Hosiery Mills, Inc., 3 Cir., 1945, 147 F.2d 209, cert. den. 293 U.S. 595, 55
S.Ct. 109, 79 L.Ed. 688, there is no overlapping of the issues determined by the
court, finally, 28 U.S.C. 1292(a) (4), and those referred. In a private antitrust
action liability and damages are not separate. Granting that an injunction may
require a finding of merely threatened loss, 15 U.S.C. 26, a partial decree on
all issues of liability, however considered, implies much more. One cannot
think of private liability for violation of the antitrust laws except in terms of
impact and damage.4 See, e. g., Stearns v. Tinker & Rasor, 9 Cir., 1958, 252
F.2d 589, 605-606, cert. den. 350 U.S. 830, 76 S.Ct. 62, 100 L.Ed. 741;
Freedman v. Philadelphia Terminals Auction Co., 3 Cir., 1962, 301 F.2d 830,

cert. den. 371 U.S. 829, 83 S.Ct. 40, 9 L.Ed.2d 67; Foster & Kleiser Co. v.
Special Site Sign Co., 9 Cir., 1936, 85 F.2d 742, 750, cert. den. 299 U.S. 613,
57 S.Ct. 315, 81 L.Ed. 452; Glenn Coal Co. v. Dickinson Fuel Co., 4 Cir.,
1934, 72 F.2d 885, 887. Indeed, the district court itself, in its opinion
confirming the report, stated that its original judgment had "determined" that
ULCo's "invasion [of Gazette's rights] caused Haverhill Gazette to suffer
damages." The master at one point had recognized this determination, stating
that a certain finding "embodie[d] a conclusion by the District Judge that the
wrongful acts of ULC inflicted some substantial damage upon the Gazette." Yet
although this was what the master said the court had found, and what the court
agreed it had found, we discover that in its original opinion the court said that it
was "not concerned with the assessment of damages, if any." The master, with
similar ambivalence, stated that the reference permitted him full latitude to
determine "the precise nature and scope of the damage," and a careful study of
his report reveals that this meant to him, too, "damage, if any."5
10

Thus we have the situation of the district court's entering not merely a
permanent injunction, but a decree of liability which it labelled final, following
an apparent finding of damage which, legally, would seem a necessary
prerequisite. Yet at the same time the master was thought free to find the
damage, if any, untrammelled by what went before to the point, as the court put
it in its opinion confirming the report, of making an "independent and fresh
appraisal on factual issues of causation and damages." Indeed, so "independent"
was the master that the court held that while "he reached findings which do not
square with statements made by this Court and by the Court of Appeals," his
findings must be accepted unless "clearly erroneous." However, there had
become applicable, if the decree of liability is to be considered final, the
principle of collateral estoppel, Partmar Corp. v. Paramount Pictures Theatres
Corp., 1954, 347 U.S. 89, 74 S.Ct. 414, 98 L.Ed. 532, making, in effect,
conclusive as between the parties the "essential," Yates v. United States, 1957,
354 U.S. 298, 336, 77 S.Ct. 1064, 1 L.Ed. 2d 1356; prior findings. The
Evergreens v. Nunan, 2 Cir., 1944, 141 F.2d 927, 152 A.L.R. 1187; 65
Harv.L.Rev. 818, 842-43.

11

Enough has been said to demonstrate that at least insofar as the court's partial
decree is regarded as final there are serious internal conflicts. While aspects of
the decree must be accorded finality we think it preferable under the
circumstances to consider the decree of liability as merely interlocutory. This is
the usual rule when liability is determined separately; a decree of liability
which excludes damages is normally not a final decision. The Palmyra, 1825,
10 Wheat. 502, 6 L.Ed. 375; Craighead v. Wilson, 1855, 18 How. 199, 15
L.Ed. 332; McGourkey v. Toledo & Ohio C. Ry., 1892, 146 U.S. 536, 13 S.Ct.

170, 36 L.Ed. 1079; 6 Moore, Federal Practice 54.13 at p. 125 (2d ed. 1953);
Restatement, Judgments 41 (comment a) (1942); cf. F.R.Civ.P. 56(c)
expressly recognizing a summary judgment of liability alone as interlocutory.
The Rule 54(b) certification, which was effective to make appealable under 28
U.S.C. 1291 the court's decision on claims finally disposed of, could not
affect the interlocutory character of the partial disposition of the treble-damage
claim. 6 See Sears, Roebuck & Co. v. Mackey, 1956, 351 U.S. 427, 435, 437, 76
S.Ct. 895; 6 Moore, op. cit. supra, 54.30[1], at p. 232, n. 12.
12

On an interlocutory basis the court's findings as to damages, whether express or

implicit, are subject to revision. However, as to one issue there has been a final
judgment, and with respect thereto collateral estoppel must apply. Our decision
on the first appeal ordering ULCo's complaint dismissed was upon the ground
that the district court's finding of substantial advertising discriminations, dealt
with on proper principles, amounted, on the court's subsidiary findings, to legal
justification for defensive retaliation in kind by Gazette. This dismissal
constituted, inescapably, a final judgment, cf. Smith v. Vulcan Iron Works,
1897, 165 U.S. 518, 17 S.Ct. 407, 41 L.Ed. 810, and ULCo stands bound by the
essential underlying factual determination. At the outset of his report, after
discussing this issue, the master correctly concluded that with respect to
discriminations the record stood that "the wrongful acts of ULC inflicted some
substantial damage upon the Gazette." However, seemingly because of an
interpretation which we could not agree with7 he concluded that collateral
estoppel was inapplicable, and that Partmar was "dispose[d] of." We can not
agree. The finding of substantial damage done to Gazette by ULCo's acts of
discrimination was essential to the judgment dismissing ULCo's original action.
This finding must remain for all purposes of the case. The dollar amount, of
course, was not found, or even that this damage was ascertainable in dollars, but
that is something else.8

13

Although we conclude that with respect to ULCo's other illegal activities the
master was free to find facts overriding the court's decree of liability construed
as interlocutory only,9 it does not follow that the present report in this regard is
to be accepted. In the first place, we do not agree that the "clearly erroneous"
rule applies uniquely to the master's findings. Rather, the prior findings of the
court were themselves entitled to consideration, and there was a burden on the
master to be met before finding as to any issue embraced in or underlying the
earlier decree, even though interlocutory, that the court was wrong, a burden
which neither he, nor the court subsequently, recognized.10 Furthermore, we
find it difficult to agree with the court in its opinion confirming the report that
the master had not been unduly hard to convince. By this we mean that we are
not satisfied that he did not charge himself erroneously. Certainly he did not

vocalize our caveat in Momand v. Universal Film Exchanges, Inc., 1 Cir., 1948,
172 F.2d 37, at 43, 42, cert. den. 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118,
that while "a fair degree of certainty is still essential to show the causative
relation of defendants' misconduct and plaintiff's injury," yet "in an antitrust
suit, covering as it must many imponderables, rigid standards of precise proof
would make a plaintiff's task practically hopeless." It is more than arguable that
he did not apply it. At the least it can be said that in discussing the evidence the
master gave more open consideration to ULCo's evidence and the negative
aspects of Gazette's than to the more favorable features of Gazette's case. The
fact, for example, that various advertisers could not, or would not, in 1962,
recall that they were importuned by union members to use the Journal and not
the Gazette, received much attention, and the contrary testimony of the
representatives none. Similarly, the advertisers' testimony regarding lack of
contact by the eight merchants, so-called, whom the court found Loeb illegally
and "immorally" hired to act as apparently disinterested solicitors, was
emphasized to the extent of not even referring to the testimony of some of the
merchants themselves that for a period of nearly twenty months they spent,
individually, up to forty hours a week making such contacts.11 Nor did the
master deal with the likelihood that the eight merchants did exactly what they
said they did, not merely because they were paid, collectively, some $30,000
by Loeb for so doing, but because they were promised $1,000,000 and a quarter
interest in the Journal if the Journal was successful in putting Gazette out of
business. This truly extraordinary contract, and what might seem to be
inevitable consequences, was dismissed in silence as the master concluded that
(beyond effects on advertising of their own enterprises) the merchants'
activities were so inconsequential as not to produce a single dollar.12 While
there is no obligation to discuss all of the evidence, cf. United States v. Yellow
Cab Co., 1949, 338 U.S. 338, 340-342, 70 S.Ct. 177, 94 L.Ed. 150, in total this
was a substantial omission, particularly in the light of what had apparently been
previously credited by the court. It is also relevant in view of our doubts as to
the burden the master placed upon Gazette.
14

These other doubts take form because of the master's frequent use of the
phrases "sole or predominant cause," and "a more substantial cause of harm
than any other known cause." While he did this only in connection with
rejecting, at the outset of his report, Gazette's interpretation of one particular
statement in the court's opinion, and the master's ultimate conclusion was
correct,13 his use of and reliance upon this standard of causation was wrong.
The fact that he never enunciated another strongly suggests that he may have
employed the same standard throughout his report.

15

In using this standard the master purported to rely upon the decision of the

district court in Momand v. Universal Film Exchanges, Inc., D.Mass., 1948, 72

F.Supp. 469, noting that the judgment had been affirmed. He failed to note,
however, that "sole or predominant" was not the rule that we stated on the
appeal.14 Judge Goodrich, speaking for the court, returned to the Restatement
and said, 172 F.2d at 43, "[T]he usual rule in tort is that a plaintiff may recover
for loss to which defendant's wrongful conduct substantially contributed,
notwithstanding other factors contributed also. Restatement, Torts 431
(1934)." The difference between a "substantial" cause and one "more
substantial than any other" is manifest. If the master put a burden on Gazette, as
it may well be he did, to eliminate all proper causes for the shifting of
advertising from Gazette to the Journal to the extent of affirmatively showing
that the illegal causes were the sole or most substantial, we consider this too
favorable treatment of a deliberate wrongdoer. If anything is clear in this case it
is that the Gazette's union difficulties in a strongly union area were what
furnished ULCo the opportunity to initiate and continue the Journal.15 From the
outset it capitalized upon this by illegal means, purposely and effectively
designed to take advertising from the Gazette. After the strike was settled (and
passing the question of whether ULCo's conduct may not have extended the
date) ULCo engaged in massive illegal assaults upon Gazette's advertisers,
discussed supra, which were considered, in ULCo's opinion, at least, of such
extraordinary value. Certainly they, too, were expressly designed to accomplish
exactly the losses which Gazette in fact suffered. For ULCo thereafter to be
able to say, "Prove exactly what you lost and that it would not have been lost,
anyway," would be to admit to a legal ineffectiveness that we should regret to
contemplate. In our opinion it is enough to warrant the master in finding
general damages that Gazette should show merely a substantial cause, rather
than a cause more substantial than any other.16 While the master considered
finding general damages, and declined to do so, we cannot tell under what
circumstances he contemplated it, and the burden he imposed upon Gazette. His
reference to the principle enunciated in Bigelow v. R. K. O. Radio Pictures,
Inc., 1946, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652, that the risk of
uncertainty should fall upon the wrongdoer, had attached to it the condition that
"the difficulties of proof [must be] * * * the result of ULC's unlawful acts,"
(which he found they were not). Particularly in the sense that he used it, this
was a far too narrow reading of Bigelow.
16

We turn, finally, to Gazette's largest claim, that ULCo is responsible for all
losses caused by the Journal's very existence because the Journal was founded
upon, and continued in, unlawful conduct of a most substantial nature. The
master recognized this as a valid issue and defined it at the outset of the report.

17

"[I]t is conceivable that ULC would not have entered the Haverhill market, or

remained there throughout the damage period, had it not enjoyed the benefit of
its own wrongdoing. This possibility must be explored in order to make a
thorough assessment of damages, for the early departure of the Journal from
Haverhill would have materially improved the position of the Gazette." (Ital.
suppl.)
18

It must be clear that whether any particular unlawful conduct was instrumental
in causing the Journal to enter or remain in Haverhill must be determined by the
effect that it had upon Loeb, ULCo's president and policymaker. If, in Loeb's
mind, it was necessary to engage in particular acts in order to warrant remaining
in business, then, in the true sense, those acts caused his being in business. This
must have been so regardless of whether, in point of fact, he was correct in his
appraisal. If, for example, Loeb felt that it was essential to obtain illegal
assistance from the union in order to continue in business, it follows that his
decision to continue, and hence his continuing, resulted from his success in
accomplishing this unlawful act. The question is not whether, viewed from
hindsight, the union cooperation did him any essential, or, indeed, any material
good.17 The master made this analysis at the outset, and properly addressed
himself to what was Loeb's state of mind when deciding whether to enter
Haverhill initially, finding, on this issue, against Gazette. He then, however,
abandoned this approach, and applied a strict benefit-received rule, viewed,
moreover, not as he concluded Loeb viewed it at the time, but as it appeared to
the master in the light of the damage testimony which he credited. The issue, he
stated, was simply whether Loeb would have stayed had he in fact not received
the specific advertising benefits which Gazette had succeeded in establishing to
the master's satisfaction.

19

Passing the extent to which the master erred in finding these benefits too small,
the ultimate question must be not what benefits the master found in 1963, but
what Loeb thought in 1958 and 1959. Moreover, even if Loeb's appraisal of the
affirmative dollar benefits received coincided exactly with the master's, it still
may have been that he believed that his losses would have been greater but for
his illegal activities, or persistently took an optimistic view that matters would
improve, which, absent these activities, he would not have entertained. The
master's substantial misinterpretation and limitation of this issue was clear
error.

20

There must be a new trial. Because of several of the matters discussed herein
we find it impossible to separate what findings were infected by error. We
accordingly vacate the report in its entirety. Furthermore, we believe that the
damage issues should be submitted to a new trier. Where a trier of fact has been
corrected for a number of serious errors there are bound to be strains on a

second trial, conscious or unconscious, irrelevant to the issues, and hence

disruptive. One may think one was not really wrong, and hence resist,
consciously or otherwise, the new rules, or, conversely, lean over backwards.
Alternatively, if one fully accepts the new principles it may be natural to overemphasize them.18 Because of this we have sometimes remanded a case for trial
before another judge, not as a reflection on the first, but to avoid such
complications. This is particularly important where a prior error related to the
quantum or burden of proof. Murray v. United States, 1 Cir., 1962, 300 F.2d
804; Commissioner of Internal Revenue v. Young Motor Co., 1 Cir., 1963, 316
F.2d 267.
21

Judgment will be entered setting aside the judgment of the District Court and
ordering the report of the special master to be vacated. Further proceedings to
be not inconsistent with this opinion.

Notes:
1

Since renamed Haverhill Publishing Co., Inc

In view of our present disposition, the size of the award of counsel fees
becomes moot, as doubtless the court will wish to reconsider that matter at a
later date under the new circumstances. With respect to ULCo's contention as
appellant on the merits, this is something that, so far as this litigation is
concerned, should have been presented on the original appeal from a judgment,
finding no liability and denying relief as to the relevant separate claims, which
was specifically stated by the district court, upon the determinations required
by F.R.Civ.P. 54 (b), to be final. Cf. Sears, Roebuck & Co. v. Mackey, 1956,
351 U.S. 427, 76 S. Ct. 895, 100 L.Ed. 1297; Cold Metal Process Co. v. United
Eng'r & Foundry Co., 1956, 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311;
Bendix Aviation Corp. v. Glass, 3 Cir., 1952, 195 F.2d 267, 38 A. L.R.2d 356.
We do observe, however, that ULCo's brief appears to rest upon a
misconception of the district court's pretrial statement. The court did not say
that "any evidence offered as to an outside market would be excluded," but
merely indicated that it was "probable" that it would regard such evidence as
unnecessary. This was not a ruling on which one could base rights. We will not
now consider whether the matter in question was as fully tried out as it could
have been

ULCo's brief describes it as "relatively microscopic."

"[A]ny person who shall beinjured in his business or property by reason of

anything forbidden in the antitrust laws may sue therefor * * *." Clayton Act
4, 15 U.S.C. 15 (ital. suppl.). Private antitrust actions are not founded upon
showing of unlawful conduct only, but upon injuries, to the protected interests,
which are the legal result of the overt illegal acts.
5

There were three principal matters involved in the court's decree; the improper
use of union representatives in connection with calls by ULCo's advertising
solicitors in which advertisers were urged to boycott the Gazette; secret rate and
other advertising discriminations, and illegal contracts with the eight
merchants, so-called, by which the merchants were to give all of their
advertising to the Journal and were, posing as ostensibly disinterested parties,
to boost the Journal and disparage the Gazette and persuade other businessmen
to advertise exclusively in the former. The master found no damages whatever
as a result of the first two illegal activities, and none with respect to the eight
merchants except as to their own exclusive use of the Journal. Even as to this
last the master carefully examined the evidence and indicated no awareness of
any obligation, as the result of the court's prior findings, to find "substantial
damages," or even any damages. We will deal with these matters later at more
length

That the judgment disposed of all issues on separate trial under F.R.Civ.P.
42(b) would, of course, affect neither finality nor appealability, Atkins, Kroll
(Guam), Ltd. v. Cabrera, 9 Cir., 1960, 277 F.2d 922. We find it unnecessary to
determine whether our jurisdiction on the prior appeal to review the decisions
of liability was based upon 28 U.S.C. 1292(b), or upon the broad principle
recognized in Smith v. Vulcan Iron Works, 1897, 165 U.S. 518, 17 S.Ct. 407,
41 L.Ed. 810

The master felt that although there was a finding that damage was "inflicted"
upon Gazette, this was not a finding "that ULC's wrongful acts were the sole
cause or even the predominant cause of injury." Passing the question of just
what injury this meant, and whether it expressed a proper standard of causation,
a matter considered more broadlyinfra, it cannot be that the court's finding of
substantial harm to Gazette as a result of ULCo's discriminations meant harm
for which ULCo was not legally responsible.

We might say, in passing, that quite apart from the binding effect of the court's
finding that Gazette was injured by ULCo's discriminatory conduct, we have
great difficulty in understanding how the master reached his contrary factual
conclusion. To take, as one example, the J. M. Fields matter, which the court
has described as "most important," and a "serious discrimination," this
involved, in part, a discriminatory guarantee not to raise the rate for two years,
which the master found was "a substantial factor" in taking the business from

Gazette. The master nevertheless found no damage, not merely that he could
not measure it. As an "important" reason the master referred to the fact that the
guarantee was never exercised. We do not follow the reasoning, and without
going into details, we do not understand the findings. We would ask,inter alia,
what was ULCo's point, on the master's analysis, of giving the guarantee at all?
9

There are a number of circumstances, notably the reception of new evidence,

under which our affirmance of the interlocutory decree would not constitute a
bar to redetermination of the question of liability in the court below. See, e. g.,
Toucey v. New York Life Ins. Co., 8 Cir., 1940, 112 F.2d 927, 928, rev'd on
other grounds, 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967;
Western Fire Ins. Co. v. University City, 8 Cir., 1942, 124 F.2d 698; cf.
Alexander v. Nash-Kelvinator Corp., 2 Cir., 1959, 271 F.2d 524, 526

10

One of the fundamental difficulties in this case, which we do not fully reach
because the parties did not question the propriety of reference vel non, is the
extent to which the master, as a different trier sitting on the damage hearings,
not only could take new evidence, but could give different weight to evidence
or make very different findings of credibility. Where the issues are to some
extent interwoven or overlapping in such separate proceedings this may cause
grave difficulties. See, e. g., Gasoline Prods. Co. v. Champlin Ref. Co., 1931,
283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188, and United Air Lines, Inc. v.
Wiener, 9 Cir., 1961, 286 F.2d 302, cert. den. 366 U.S. 924, 81 S.Ct. 1352, 6
L.Ed.2d 384 (involving, additionally, questions of right to jury trial). Under
present circumstances we adopt the rule above stated

11

We do not think it necessary to distinguish to what extent the merchants may

have "talked-up" the Journal as opposed to soliciting specific advertising or
obtaining actual contracts

12

No mention, either, was made of the court's finding that the result of this
contract was "to intensify * * * zeal * * * to support The Journal by securing
advertising for it and to discourage advertising in The Gazette by * * *
enterprises subject to their influence," and Loeb's significant testimony. "XQ.
And they assured you they would get as much advertising business for you as
they possibly could, didn't they? A. Yes. XQ. And thy did that, didn't they? A.
Yes." If in this vital matter Leob was not merely misled, but totally mistaken,
we think it was at least incumbent on the master to explain his mistake

13

The court had stated that Gazette "had been put in peril of insolvency in the
equity sense as a result of ULC's attempt to monopolize." Gazette endlessly
seeks to magnify this. While, conceivably, the court's language was inexact, it
is obvious that ULCo was not the sole cause of Gazette's difficulties, and that

Gazette's construction is not only inconsistent with the facts, but with the entire
balance of the court's opinion
14

It is perhaps not altogether clear what the district court held. It is true that it did
use the second of the two phrases quotedsupra. However, the opinion began
with a reference to section 912 of the Restatement of Torts to the effect that
what was required was "proof that the tortious conduct was a substantial factor
in causing such harm," 72 F.Supp. at 478, a much lesser requirement.
Elsewhere the court stated that if "segregation and admeasurement of the
cause[s] of loss [were] impossible" (seemingly apposite, on the master's
opinion, to the case at bar, see infra) various phrases might be used to define
the burden of showing causality, including "preponderant," "dominant," "main,"
or "a substantial," and that it would not "try to decide which of the quoted
phrases is correct * * *."

15

See fn. 17,infra.

16

"The degree of certainty required of a plaintiff in proving causation of damage

* * * varies with the nature of the case." Momand v. Universal Film Exchange,
supra, 172 F.2d at 42; see Note, The Requirement of Certainty in the Proof of
Lost Profits, 64 Harv.L.Rev. 317, 319 (1950). A degree of uncertainty may
always be permitted, especially when the circumstances make it particularly
likely that the claimant suffered loss at the wrongdoer's hands. Cf. Bigelow v.
R. K. O. Radio Pictures, Inc., 1946, 327 U.S. 251, 66 S.Ct. 574; Clark, The
Treble Damage Bonanza: New Doctrines of Damages in Private Antitrust Suits,
52 Mich.L.Rev. 363, 367-93 (1954), Note, Antitrust Enforcement by Private
Parties: Analysis of Developments in the Treble Damage Suit, 61 Yale L.J.
1010, 1016-19, 1025-26 (1952). In the antitrust case at bar uncertainty of cause
is much less than it would be in the ordinary multi-competitor situation because
until the Journal appeared in this admittedly one-newspaper area Gazette had no
competition, and if the Journal had ceased publication it would have reverted to
that status. In a very arguable sense whatever the Journal took, particularly after
the strike ended, Gazette lost. This is, in other words, a harsh case in which to
conclude, after proof of substantial violations of the antitrust laws directed at
the claimant, that there was an unsatisfied burden of showing any legal
damages because of some rigid rule of causation. The question is not primarily
one of showing damage, but one of the extent of damage where there are
multiple causes, none susceptible to precise measurement, which are in source
independent and yet interact upon each other in producing injury. We note in
the Restatement of Torts (1939), relied upon broadly in Momand, and by the
master as well, that in a case where the damages cannot be precisely calculated
because of the interaction of concurrent causes, there is no burden of excluding
all other causes of loss, and that estimates based upon such evidence as is

"reasonably available" under the circumstances may be accepted. Section 912,

illus. 12. See also comment d to that section. In fact, Bigelow suggests that the
burden of excluding the effect of other causes may sometimes be upon the
wrongdoer. See 327 U.S. at 264, 66 S.Ct. 574. Whether or when such a burden
may be imposed is a difficult question which we find impractical to rule on
without going deeply into evidentiary matters which have not been argued and
which, conceivably, may not recur in the same form or context
17

Launching a newspaper, as Loeb himself testified, is a very difficult

undertaking, particularly at Christmas. Loeb himself was surprised at his
success. The fact that Gazette's printers were on strike, with Haverhill being a
particularly strong union area, was certainly a significant factor. It was not a
factor attributable to Loeb. However, under these circumstances Loeb's
subsequent capitalization on Gazette's union difficulties to the extent of
obtaining specific unlawful union assistance (we agree with the master in not
holding ULCo responsible for the union's independent activity on a theory of
conspiracy) must have been regarded by him as highly important, if not vital, to
his continuance

18

It should be unnecessary to say, but we do out of caution, that nothing stated in

this opinion, or omitted therefrom, is indicative of our views on the merits, or is
to suggest any particular result