the allegations of the complaints are similar if not identical; the plaintiff is the same in both cases; and the parties defendant are almost the same. N.T. May 20, 1965, pp. 18, 19. The only significant difference is in the time periods during which the alleged wrongs occurred. That is, Viking No. 2 alleges a damage period which starts where that of No. 1 ended. Finding No. 12 infra.
The three pre-trial conferences in this case took place before the present Court and Judge and have been reported in full. To avoid repetition of the dates of those conferences, the respective notes of testimony will be indicated by Roman numeral designations to indicate which conference the notes refer to. That is, the hearing of August 21, 1963 (Doc. 18) will be designated "I"; that of May 20, 1965, is to be "II"; and the latest hearing, July 20, 1965, will be shown as "III". Thus, for example, the reference in the preceding paragraph would appear, under the designations as explained, as "II N.T. 18, 19".
At the third of those hearings, July 20, 1965, the history of those inevitably interrelated cases was recounted by a spokesman for defendants. Plaintiff disagreed with defendants' contentions as to the legal effect of the events recounted in that chronology. But even those vigorous denials did not challenge the accuracy of defendants' presentation of the factual sequences. For convenience, the Court will commence by adapting its findings from statements already in the record. III N.T. 5-32. Chronological order will be observed, insofar as possible.
Findings of Fact
1. Viking No. 1 was begun on November 13, 1956. It was an action under the Sherman Act to recover treble damages for the period beginning when the theatre opened, July 2, 1954 down to November 13, 1956.
2. Viking No. 1 was tried from May 15, 1961 until July 19, 1961, and resulted in a directed verdict in favor of the defendants.
3. On June 21, 1963, approximately two years later, that judgment was affirmed. Viking Theatre Corp. v. Paramount Film Distributing Corp., et al., 320 F.2d 285 (3rd Cir. 1963).
4. Shortly thereafter, meeting No. 1 took place on August 21, 1963. The notice given by the Court, the responses of plaintiff to that notice, and the occurrences during that hearing - when plaintiff made what defendants call a "commitment" - are the gist of the present controversy. For that reason, all those matters will be covered in detail in later findings rather than in the present introductory listing of the order of events. I N.T. 5; III N.T. 5.
5. On September 19, 1963, a petition for certiorari in Viking No. 1 was filed in the Supreme Court of the United States. III N.T. 5.
6. On December 9, 1963, an order granting certiorari was handed down by the United States Supreme Court, captioned as above. 375 U.S. 939, 11 L. Ed. 2d 270, 84 S. Ct. 347 (No. 481).
7. On June 15, 1964, the following order was filed by the United States Supreme Court:
PER CURIAM: The judgment is affirmed by an equally divided Court. Mr. Justice Douglas took no part in the decision of this case. 378 U.S. 123, 12 L. Ed 2d 743, 84 S. Ct. 1657.