The Supreme Court emphasized that the jury found that Sylvania had violated the antitrust laws "with respect to location restrictions alone." In note 9 the Court commented: "Most important was the jury's rejection of the allegation that the location restriction was part of a larger scheme to fix prices."
As quoted above in connection with point 1, note 18 of the T.V. opinion emphasizes that "we are concerned here only with nonprice vertical restrictions." [Italics supplied].
In the case at bar, however, it is manifest that defendant's territorial restrictions were part and parcel of a comprehensive price-fixing policy. In the apt words of Judge Wisdom in Copper Liquor, Inc. v. Adolph Coors Co., 506 F.2d 934, 948 (C.A. 5, 1975), the defendants' restraints "were ancillary to an illegal price fixing scheme." Even on a printed record, without being able to see defendant's vice-president in charge of sales attempt to foist the blame for distribution of price directions to dealers upon the mailing clerk, (Tr. 2620-24) the Court of Appeals squarely found that the evidence supported a finding of price-fixing. 531 F.2d at 98.
The fact that plaintiff failed to prove loss or damage attributable to the price-fixing violation
(ibid., at 99) does not detract from the integration of price-fixing and territorial restrictions characterizing the defendant's sales practices of which both types of restraint formed part and parcel.
4. Finally, even if in the case at bar the Court had not mentioned Schwinn at all
or had tried the case under the T.V. rule of reason, the outcome would have been no different, and from the practical standpoint no harm has been suffered by defendant by reason of the trial court's failure to anticipate the overruling of Schwinn by the T.V. case. Any error (in the light of hindsight) committed is harmless.
This is true because in fact the trial court permitted defendants to offer all the testimony which they desired to present in order to show that the territorial restrictions which they included in their dealer contracts were in fact reasonable, and were justified by the nature of the product, its danger to the public if not properly operated, and the need for expert service.
It would be difficult to imagine any significant new evidence which defendants could adduce under the rule of reason if a new trial were had. Doubtless the resourcefulness and ingenuity of counsel could come up with something, but it is extremely doubtful whether the additional evidence would be of sufficiently substantial character to warrant a new trial in a protracted antitrust case.
At the previous trial the jury specifically negated defendant's rule of reason defense by answering "No" to the interrogatory: "Were legitimate business reasons (such as poor performance) a predominantly contributing factor to termination of Pitchford Scientific Instruments Corporation's dealership on September 10, 1970?"
For the foregoing reasons the T.V. case does not appear to be applicable to the case at bar in such a manner as to conflict with the rulings of the Court of Appeals in the case at bar or to warrant suspension of the mandated trial with respect to the amount of damages under the territoriality count.
Accordingly, defendant's motions are denied, and the trial shall continue.