in any State.' 15 U.S.C. § 45(a)(2). (Emphasis added.)
And section 1 of the Pennsylvania Act similarly exempts agreements from the antitrust laws which provide 'that the buyer will not resell such commodity, except at the price stipulated by the vendor.' (Emphasis added.) Act of June 5, 1935, P.L. 266, 1, as amended, 73 P.S. § 7. The textual argument is thus made that these two acts do not merely exempt minimum price agreements but also exempt 'stipulated' price agreements, including the instant agreements which stipulate that the carriers would charge no more than forty-eight cents per week.
Since this is a rather novel contention, there are no cases precisely in point. However, in Mead Johnson & Co v. West Chester Discount Health & Vitamin Center, Inc., 212 F.Supp. 310 (E.D.Pa.1962), then District Court Judge Freedman alluded to the present situation when he said: 'Indeed, it may well be said that the fixing of a minimum retail price is an exercise of some, but not all, of the authority conferred by the statutory right to set a stipulated price.' (212 F.Supp. at 313). (Emphasis added.) It should also be mentioned that the Miller-Tydings Amendment
only used the phrase 'minimum prices.' It would therefore seem that the later addition of the words 'stipulated price' was intended by Congress in the McGuire Act to mean something more than a minimum price.
Section 1 of the Pennsylvania Act, here relied on, is still in force since the Supreme Court of Pennsylvania only declared the non-signer clause of Section 2
unconstitutional in Olin-Mathieson Chemical Corp. v. White Cross Stores, Inc., 414 Pa. 95, 100, 199 A.2d 266 (1964). In the White Cross case the Pennsylvania Supreme Court was concerned with the improper delegation of power to private persons, a problem which does not exist under Section 1, which declares lawful vertical agreements between producer and vendor. Until the state courts also declare Section 1 of the Pennsylvania Act unconstitutional it still remains on the books and must be applied as written. Again it should be remembered that a final interpretation of the Federal and Pennsylvania Acts is not required at this stage. I only mention the above considerations to indicate the uncertainty in the law and the reasons for the 'doubt' that I have.
Next, there is the contention that the agreement of plaintiffs with the other carriers attending the meetings of the Delaware Valley News Dealers Association to continue to impose service charges constitutes an illegal price-fixing conspiracy and, as such, plaintiffs' unclean hands bar them from obtaining a preliminary injunction under § 16 of the Clayton Act. (15 U.S.C. § 26.) However, plaintiffs maintain that the unclean hands defense no longer exists in antitrust suits, citing as authority Kiefer-Stewart v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S. Ct. 259, 95 L. Ed. 219 (1951) and Moore v. Mead Service Co., 340 U.S. 944, 71 S. Ct. 528, 95 L. Ed. 681 (1951).
In the Kiefer-Stewart and Moore cases, the Supreme Court did not permit the unclean hands defense to be interposed in actions at law for treble damages under 15 U.S.C. § 15. There is no question that the scope of the pari delicto or unclean hands defense has been limited by the above-cited cases
and that the District Courts are divided on whether the Kiefer-Stewart and Moore cases should be extended to deny the defense in suits for injunction under 15 U.S.C § 26.
Although the Third Circuit has in the past honored the defense in a private suit for injunction instituted under the antitrust laws ( Singer v. A. Hollander, 202 F.2d 55, 59 (3rd Cir. 1953)), it did not rely on the defense as the sole reason for dismissing the suit. If the unclean hands defense was the most persuasive argument for denying an injunction which should otherwise issue I would be inclined to hold under the facts and circumstances of this case that it would not be enough to thwart relief.
However, the scale tips against granting the extraordinary remedy which plaintiffs seek when the absence of a clear appellate precedent precluding the unclean hands defense in private antitrust injunction proceedings is combined with the other previously mentioned uncertainties in the law.
NO IRREPARABLE INJURY
Plaintiffs' case fails in still another respect. Since plaintiffs have the burden of proving that they will suffer irreparable injury,
it is necessary for them to establish that they do not have an adequate remedy at law for damages and that their losses are incapable of definite measurement. See Henis v. Campania Agricola De Guatemala, 116 F.Supp. 223 (D.C.Del.1953), aff'd. per curiam, 210 F.2d 950 (3rd Cir. 1954); Hershel California Fruit Products Co., Inc. v. Hunt Foods, Inc., 111 F.Supp. 732 (S.D.Cal.1953); Fein v. Security Banknote Co., 157 F.Supp. 146 (S.D.N.Y.1957). This they have failed to do.
Although the value of a major news route in this specific locality cannot be measured from day to day with the same precision with which one could estimate the value of a blue chip stock at 4:05 p.m., nevertheless, I cannot assume in the absence of proof on this issue that it is impossible to give a reliable approximation of the value of such route. Newspaper routes are frequently bought and sold. Since plaintiffs have failed to establish the negative, i.e., the inability to prove losses in a definite liquidated amount, I cannot invoke a doctrine of judicial notice to cover plaintiffs' evidentiary gap.
In summary then, the failure of plaintiffs to prove irreparable harm combined with the novel and intricate legal questions upon which the law is not clear lead me to refrain from granting plaintiffs' motion for preliminary injunction.
Triangle's motion to dismiss will also be denied since the allegations of plaintiffs' complaint, especially those dealing with policing and vertical agreements, state a cause of action under the Beech-Nut and Dr. Miles cases, supra.
To the extent that what I have said constitutes Findings of Fact and Conclusions of Law, this Opinion shall be considered as containing them. In addition, I affirm, albeit in different form, plaintiffs' Request for Findings of Facts Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 21, 22, 23, 24. No. 18 is affirmed except for the Davidson agreement. I also affirm defendant's Request for Findings of Facts Nos. 1, 2, 3, 4, 6, 8, 11, 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 26 and 35. All other Requests for Findings of Fact and Conclusions of Law not in harmony with those stated in this Opinion are severally denied.
The accompanying Order also includes rulings on related discovery phases of this case which are pending.
And now, this 21st day of August, 1964, plaintiffs' motion for preliminary injunction is hereby denied and defendant's motion to dismiss is also denied.
On the discovery phases of this litigation, since defendant has priority in discovery it shall proceed within a reasonable time to complete its discovery. Upon completion of defendant's discovery, plaintiffs and counterdefendants may commence their discovery.
Defendant's general objection to plaintiffs' interrogatories on the ground of priority is sustained. Similarly, defendant's motion for a protective order as to plaintiffs' notice of deposition is granted until defendants complete their discovery, at which time plaintiffs may proceed with their discovery. Plaintiffs' request for admissions under F.R.Civ.P. 36 is granted and plaintiffs' motion for sanctions for refusal to make discovery under F.R.Civ.P. 37 is denied.