Request No. 26 is affirmed.
Request No. 31 is affirmed.
Requests Nos. 32, 33, 34, 35, and 37 are all denied. These call for findings that the defendants are illegally monopolizing the business of exhibiting first run feature pictures in Philadelphia.
What is meant by monopolize in the second section of the Sherman Act has been fully discussed. I have indicated that it is, in my judgment, immaterial that Warner's position in Philadelphia may or may not be correctly described as a monopoly in the popular sense of the word. The opinion of the Supreme Court in the Standard Oil case makes it perfectly plain that the court considered that the popular conception of a monopoly was not the criterion to be applied. As I have found, there was no undue restraint of interstate commerce involved and consequently no monopolizing within Sec. 2 of the statute.
Request No. 26. By this request the plaintiff attempts to bring the present case in line with Interstate Circuit v. United States, 306 U.S. 208, 59 S. Ct. 467, 83 L. Ed. 610, and present the picture of a buyer with monopoly powers compelling his sellers to restrict the opportunities of other buyers. I shall affirm the request but qualify it by adding that there is no evidence to show that such "potentially coercive power" was ever strong enough to compel any distributor to make any contract or adopt any policy which it would not otherwise have made or adopted, and further, that there is no satisfactory evidence that Warner exercised or attempted to exercise any coercive power upon any distributor. In this the case differs widely from the Interstate case in which the proof of actual coercion was clear. I have no doubt that the size and importance of the Warner interests were factors which entered into the decision of each of the Distributors to license its product to Warner in Philadelphia. The mere fact, however, that it may have appeared advantageous for any distributor to deal with Warner does not amount to coercion. Coercion means compulsion to do something against one's will or wish, and there is no satisfactory evidence that Warner either exercised or had such power.
i affirm requests Nos. 11, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36. Requests Nos. 29 to 36, inclusive, all begin with the words "There is no evidence from which a factual inference may be drawn that", etc. In affirming them, I do not mean to say that none of the inferences stated are possible. I prefer to begin each of these findings with the words "There is no evidence from which I draw the inference that", etc. They may be taken as so modified.
No. 30 is affirmed with the further modification that "advantage" means the long run advantage, involving considerations of continued satisfactory business relations, general policy and ultimate pecuniary benefit. I do not mean to say that none of the defendant distributors could not have obtained a higher percentage return on a first licensing to the plaintiff at the Erlanger.
Requests Nos. 24, 25, 26, 27, 28, 29, 30, 31, 32, 41, 44, 49, 56, 59, 64, 72, 84 are affirmed.
The remaining requests presented by Warner and the distributors are not answered as findings upon these points are deemed unnecessary.
Conclusions of Law
The conclusions Nos. 1 and 8 are affirmed.
Requests Nos. 1, 7, and 8 are affirmed. All others are denied.
Requests Nos. 3, 4, 5, and 6 have to do with the burden of proof and inferences to be drawn from the failure to call witnesses. Obviously they are based upon the opinion of the Supreme Court in the Interstate Circuit, Inc., v. United States, 306 U.S. 208, 59 S. Ct. 467, 83 L. Ed. 610. In that case the plaintiff presented a case which logically required answer and the inferences to be drawn from the failure of the defendants to call witnesses was justified by the state of the record. That is not the situation in the present case. In Schad v. Twentieth Century-Fox Film Corp., 136 F.2d 991, the Circuit Court of Appeals for the Third Circuit sustained a dismissal in a case in which the defendant produced no evidence whatever.
All requests are affirmed.
All requests are affirmed.
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