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ZENITH RADIO CORP. v. MATSUSHITA ELEC. INDUS. CO.

June 6, 1979

ZENITH RADIO CORPORATION
v.
MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., et al.; NATIONAL UNION ELECTRIC CORPORATION v. MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., et al.; IN RE: JAPANESE ELECTRONIC PRODUCTS ANTITRUST LITIGATION



The opinion of the court was delivered by: BECKER

TABLE

 Certain defendants in these consolidated antitrust cases, alleging that they are so "extraordinarily complex," "so massive as to make them unique in the annals of United States antitrust and trade regulation litigation," and "beyond the practical abilities and limitations of a jury," have moved for an order striking the jury demands of the plaintiffs, Zenith Radio Corporation ("Zenith") and National Union Electric Corporation ("NUE"). *fn1" This opinion will address and deny defendants' motion.

 NUE is the corporate successor to Emerson Radio Co., one of the pioneers in the radio and TV industry. NUE ceased all production of television receivers in February, 1970; *fn2" that December, it filed the first of these suits, *fn3" alleging that the Japanese defendants and others had conspired to take over the American consumer electronic products industry and to drive NUE out of business. In 1974, after experiencing large operating losses, Zenith filed an action making similar allegations. *fn4" The NUE action was then transferred to this district for coordinated or consolidated pretrial proceedings with the Zenith action. See In re Japanese Electronic Products Antitrust Litigation, 388 F. Supp. 565 (J.P.M.D.L.1975). *fn5" In Pretrial Order # 182, filed this date, we made the transfer of the NUE action to this district unconditional, and consolidated it for trial with the Zenith action.

 The ten principal defendants are Mitsubishi Corporation, a Japanese trading company; Matsushita Electric Industrial Co., Ltd., Toshiba Corporation, Hitachi, Ltd., Sharp Corporation, Mitsubishi Electric Corporation (Melco), Sanyo Electric Co., Ltd., and Sony Corporation, all Japanese manufacturers of consumer electronic products; and two American companies, Motorola, Inc. and Sears, Roebuck & Co. Fourteen other defendants are subsidiaries of the principal Japanese defendants. Of the twenty-four defendants, fifteen are defendants in both suits, seven in the Zenith action only, and two in the NUE action only. *fn6" In addition to the twenty-four named defendants, the plaintiffs have identified close to 100 alleged co-conspirators whose business operations span the globe, ranging from dozens of Japanese companies, large and small, to such world industrial giants as N.V. Phillips Gloeilampenfabrieken and General Electric Co.

 In capsule form, plaintiffs' complaints allege that the Japanese defendants and their co-conspirators are and have been participants in a conspiracy which, by artificially lowering export prices, has for more than twenty years sought the methodical destruction of the United States' domestic consumer electronic products industry. *fn7" The defendants are accused of carrying out the aims of this conspiracy by flooding the United States' market with imported goods at prices so attractive to consumers that domestic producers suffered serious losses, and were either unable to compete or able to do so only by moving some or all of their own production facilities to Mexico and the Far East. *fn8"

 The particular offenses charged in the complaints span the laws of antitrust. The overall conspiracy is alleged to violate §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and § 73 of the Wilson Tariff Act, 15 U.S.C. § 8. *fn9" However, the cornerstone of the plaintiffs' case is the allegation that the Japanese defendants have violated the 1916 Revenue Act, better known as the 1916 Antidumping Act, 15 U.S.C. § 72, *fn10" by "commonly and systematically" selling their products in this country for substantially less than their actual market value or wholesale price in Japan, and with predatory intent. The defendants are also charged with violating the Robinson-Patman Act, 15 U.S.C. § 13(a), by discriminating in price among American purchasers. *fn11" Finally, Zenith charges that Sears, Motorola, and the Matsushita and Sanyo defendants violated § 7 of the Clayton Act, 15 U.S.C. § 18, in connection with the Japanese companies' acquisitions of interests in domestic consumer electronic products manufacturers. *fn12"

 Plaintiffs' claims, adumbrated above, have been spelled out in greater detail in two preliminary pretrial memoranda totalling 410 pages, as well as in answers to numerous contention interrogatories. The plaintiffs' papers seek to portray a worldwide conspiracy said to have lasted over a period of some 30 years and to have involved close to 100 manufacturers, exporters, and importers of consumer electronic products of various national origins.

 The defendants maintain that, notwithstanding their voluminous submissions, plaintiffs have failed to elucidate their claims with any degree of precision. They also deny both the legal and factual validity of the plaintiffs' claims. Additionally, certain of the defendants have asserted counterclaims against Zenith.

 The counterclaims attack Zenith on two fronts. First, they allege that Zenith, acting alone and in combination and conspiracy with others, used territorial allocations, price discrimination, horizontal and vertical price fixing arrangements and certain "key dealer preferences" in violation of the Robinson-Patman Act and §§ 1 and 2 of the Sherman Act. Second, they accuse Zenith and its co-conspirators of seeking to interfere with its competitors, including the counterclaimants, "by every means available, including the submission of complaints, petitions, testimony and other information to various federal governmental agencies and officials, federal courts, and the United States Congress which were based upon sham, false and misleading allegations and information, without regard to the truth or merits of the claims made." The counterclaiming defendants thus invoke the "sham litigation" theory of antitrust liability recognized in Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S. Ct. 1022, 35 L. Ed. 2d 359 (1973). Defendants have likewise filed extensive preliminary pretrial memoranda detailing their counterclaims. *fn13"

 We are now approaching the end of pretrial discovery. To say that the discovery has been massive would be a considerable understatement. To date over 20 million documents have been produced for inspection. A considerable number of these have had to be translated from Japanese into English. The deposition transcripts completed to date total well over 100,000 pages, and many depositions remain to be taken. The interrogatory practice has been voluminous, coming in wave after wave. We have been inundated with a plethora of discovery motions; in the past few months we have dealt with over 50 Rule 37 motions of various descriptions, and pretrial conferences with counsel for the parties are consuming at least 3 full days per month, mostly to resolve discovery problems. We have entered a comprehensive pretrial order which fixed discovery deadlines and times for filing annotated final pretrial statements and other pretrial material, and set the case for trial in February, 1980. *fn14" It is anticipated that the trial will consume approximately one year.

 Following the filing of the motion to strike the jury demand, we heard extensive argument thereon. Since it appeared to us that a helpful way of framing the complexity issue was to request the parties to prepare proposed forms of special interrogatories which might be submitted to a jury, we did so and defendants made extensive submissions. Numerous legal memoranda have been filed in connection with the motions, many of them dwelling upon the rash of recent cases where complexity has led to the striking of timely jury demands. We address defendants' motion at this time because we are satisfied that we have an adequate record on which to decide it and because we believe it to be fair to decide the issue sufficiently in advance of trial that the losing party may attempt to obtain appellate review.

 We write at length for a number of reasons. First is the current importance of the problem, which appears on the agenda of almost every seminar on class actions, antitrust law and federal practice concerning which we have recently received brochures. Second, we suspect that given the enormous scope of contemporary class action and antitrust litigation, this will not be the last occasion on which the enormous tension between the demands of these massive cases and the mandate of the Seventh Amendment will generate a motion to strike a jury demand on grounds of complexity. Hence, our discussion of the case law may be of help to the bench and bar. *fn15"

 The defendants' motion is based, as we have noted, on the contention that this litigation is so extraordinarily massive and complex as to be beyond the practical abilities and limitations of a jury. In support of this contention, the defendants emphasize the nature of the conspiracy charged, the statutory claims asserted, the procedural posture of the case, and the anticipated length of trial. The defendants provided the following summary of their contentions in their first memorandum in support of their motion to strike the jury demand:

 
1. The alleged conspiracy is claimed to have been worldwide, to have lasted over a period of 30 years and to have involved more than 97 manufacturers, exporters and importers of consumer electronic products ("CEP's") of various national origins.
 
2. Over seventy of the alleged co-conspirators are not defendants in this proceeding. Necessarily plaintiffs will attempt to produce evidence to support their allegations that the non-defendant co-conspirators participated in the alleged conspiracy with the various defendants who are charged in the complaints. This will create complicated and confusing issues for the jury as to whether the defendants and alleged non-defendant co-conspirators knew of, joined and participated in the alleged conspiracy. More confusing will be the question of whether evidence presented as to specific defendant(s) and specific non-defendant co-conspirator(s) has been connected to and is admissible against the various defendants in the litigation.
 
3. The plaintiffs assert violations based upon various sophisticated and esoteric antitrust and trade regulation laws which few American lawyers let alone untrained laymen or jurors can understand and interpret. The allegations are further complicated by the fact that one of the laws, the Wilson Tariff Act (15 U.S.C. § 18), is rarely used and interpreted in litigation, and the 1916 Antidumping Act (15 U.S.C. § 72) has never been construed or interpreted in a trial situation in its over 60 year history. Even if appropriate and legally sufficient instructions are given to the jury as to the meaning of these laws and the standards of proof which must be met, application of complicated and detailed accounting, marketing, economic and legal evidence to such legal standards and guidelines would be mindboggling for a jury.
 
4. The trial of these litigations is anticipated to last at least one year.
 
5. The majority of the defendants are Japanese, their native language has no common basis with the English language and their business records and therefore much of the evidence in these litigations will be Japanese language documents.
 
6. At the time the trial commences almost nine years of discovery will have been completed, including the production of untold millions of documents and literally hundreds of depositions which will constitute the evidence to be presented. As noted above, a major portion of these documents are in Japanese and will require translation and interpretation. Further, much of the documentation whether in English, Japanese or other languages is of a highly technical engineering and accounting nature.
 
7. The evidence at trial will consist in part of the testimony of expert witnesses as to the nature of competition and marketing practices in both the United States and Japan CEP industries, accounting practices in both the United States and Japan CEP industries, the engineering and scientific developments of CEPs in both the Japanese and United States markets which will have to be applied to the vast quantity of factual information which will be introduced in both English and Japanese.
 
9. The cases involve overlapping and different parties. The Zenith action involves six parties who are not parties in the NUE action. The Sony defendants are a party to the NUE action but not the Zenith action.
 
10. The defendants have asserted extensive counterclaims against plaintiff Zenith charging it with engaging in marketing practices in violation of the United States antitrust laws and in a conspiracy with certain other American CEP manufacturers, distributors, labor unions and others to prevent and impede the ability of the defendants in these litigations, particularly the Japanese defendants, from competing in the United States CEP industries through a series of sham and harassing charges, allegations, investigations and legal proceedings. The counterclaims involve highly sophisticated and technical legal and factual evidence which will require the presentation of vast quantities of materials.
 
11. While these cases are individually extraordinarily complex and involve diverse claims as to products, parties, statutes involved and damage periods, plaintiffs claim they involve a single conspiracy against the defendants and the alleged non-defendant co-conspirators. In such a situation consolidation for trial might seem a logical and efficient utilization of counsels' and the Court's time. However, to consolidate cases which individually are incapable of comprehension by a jury for a trial before a jury would exacerbate and expand the complexity of the trial by a geometric progression which defies quantification.

 This summary has been expanded and supplemented in a lengthy affidavit and numerous other submissions.

 In their affidavit, the defendants assert that they have produced more than ten million pages of documents; that the plaintiffs have copied one million pages and "expect to introduce several thousand documents into evidence." For their own part, the defendants plan to offer an undefined "major portion" of the 2 million pages they have copied from the more than twenty million pages produced by the plaintiffs.

 The defendants' views are also illustrated by the sample special interrogatories submitted so that we might identify the issues to be decided by the jury and assess their complexity.

 With respect to the conspiracy claims, the defendants' proposed sample interrogatory contains 23 subparts, to be asked of the jury "for each of the 24 defendants with respect to each of the 108 other defendants and alleged co-conspirators." Together with other subparts which may be required, the defendants suggest that the jury might therefore be asked "over 15,000 separate interrogatories for each relevant product market" as to the conspiracy claims alone. In addition, the defendants argue that because of the thousands of models of consumer electronics products imported and sold by each of the defendants, thousands upon thousands of special interrogatories will have to be propounded to the jury on the dumping claims as well as the other statutory causes of action asserted by the plaintiffs.

 According to the plaintiffs, the jury's task will be simplified by other factors. First, although there are 24 defendants, they are grouped into no more than ten separate enterprises. Second, the difficulties attending class actions are not present here. Third, plaintiffs note that there are only two cases involved, compared with the 18 separate cases involved in one litigation in which a jury demand has been struck. *fn17" In sum, the plaintiffs conclude,

 
the fact remains that the present litigation involves classic conspiracy claims and proof of exactly the same nature as that which has been presented in dozens and dozens of private antitrust actions and criminal prosecutions across the nation. . . . The issues of motive, intent and conspiracy . . . are of the type routinely submitted to juries in the federal courts on a daily basis. As in most cases involving a number of discrete transactions, the jury will be assisted by presentation of the evidence in a summarized format easily grasped by individual jurors.

 We expect that the actual size and complexity of this litigation falls somewhere in between the two extremes portrayed by the parties. We are skeptical of the plaintiffs' efforts to portray this litigation as an essentially simple, "single conspiracy" case, although of course we express no opinion as to what they may be able to prove at trial. We are equally skeptical of the defendants' contentions regarding the number of documents they will introduce and the number of special interrogatories which would have to be submitted to a jury. *fn18" By any yardstick, this case is at least as large and complex as the others in which jury demands have been struck. See pp. 923-925 Infra. However, resolution of these disputes as to the Degree of complexity of this case is unnecessary in light of our discussion of the legal issues, to which we now turn.

 III. Discussion

 A. Introduction

 The issue before us is whether trial by jury, usually available as of right in private, treble-damage antitrust cases, is guaranteed even in a case so massive and complex as to be beyond "the practical abilities and limitations of juries."

 The plaintiffs, relying heavily on the decision of the Supreme Court in Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S. Ct. 233, 60 L. Ed. 505 (1916), argue vigorously that the Seventh Amendment guarantees their right to a jury trial, regardless of considerations of size and complexity. In Fleitmann, the Court held that a shareholders' derivative action could not be brought in equity when the underlying corporate claim was one for treble damages for violation of the antitrust laws, because to permit equity jurisdiction over such actions would deprive the defendants of their right to trial by jury:

 
(T)he inquiry . . . arises why the defendants' right to a jury trial should be taken away . . . .
 
(W)e agree with the courts below that when a penalty of triple damages is sought to be inflicted, the statute should not be read as attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law.
 
On the contrary, it plainly provides the latter remedy, and it provides no other.

 Id., 240 U.S. at 28-29, 36 S. Ct. at 234. *fn19" Since the Fleitmann decision, it has been regarded as "well settled" that antitrust claims for treble damages are "triable by jury on timely demand of a party." Ring v. Spina, 166 F.2d 546, 550 (2d Cir.) Cert. denied, 335 U.S. 813, 69 S. Ct. 30, 93 L. Ed. 368 (1948). See, e.g., Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959); Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d 674, 690 (9th Cir.) Cert. denied, 429 U.S. 940, 97 S. Ct. 355, 50 L. Ed. 2d 309 (1976); Siegfried v. Kansas City Star Co., 298 F.2d 1 (8th Cir.) Cert. denied, 369 U.S. 819, 82 S. Ct. 831, 7 L. Ed. 2d 785 (1962); Hartford-Empire Co. v. Glenshaw Glass Co., 3 F.R.D. 50 (W.D.Pa.1943).

 The defendants concede "the applicability of the Seventh Amendment to all but the most lengthy and complex damage actions." They frame the issue as "whether or not there is a certain small class of cases which are too lengthy and complex to be handled by a jury, and, therefore, must be tried before the Bench." In support of their argument that this litigation can be placed in such a class of cases without offending the constitution, the defendants first argue that complex cases were historically tried in equity. Moreover, they urge us to follow the example of several courts which have recently struck jury demands in large and complex actions, including two antitrust cases. See pp. 923-925, Infra. These courts have found the Seventh Amendment inapplicable to such matters, largely on the authority of dicta in a recent Supreme Court decision implying that the constitutional right to a jury trial in civil actions may sometimes depend on "the practical abilities and limitations of juries." Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S. Ct. 733, 738, 24 L. Ed. 2d 729 (1970).

 B. Construction of the Antitrust Statutes: Need We Reach the Seventh Amendment Issue ?

 Although the parties have treated the issue before us as depending solely on the scope of the Seventh Amendment right to jury trial, we must first determine whether it is necessary to reach the constitutional issue. " "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.' Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 154, 89 L. Ed. 101 (1944). Before deciding the constitutional question, it (is) incumbent on . . . courts to consider whether . . . statutory grounds might be dispositive." New York City Transit Authority v. Beazer, 440 U.S. 568, 582, 99 S. Ct. 1355, 1364, 59 L. Ed. 2d 587 (1979). See Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring).

 The right to jury trial may, of course, be expressly provided by the terms of a federal statute. See, e.g., Great Lakes Act, 28 U.S.C. § 1873 (tort and contract actions in admiralty jurisdiction involving shipping on the Great Lakes); 28 U.S.C. § 1874 (jury to assess sum due on forfeiture of bond); 11 U.S.C. § 42(a) (right of involuntary bankrupt to jury trial). Because there is no constitutional right to a Nonjury trial, the Seventh Amendment does not prevent either judicial or legislative extension of the right to jury trial, and such statutes raise no constitutional difficulties. See e.g., The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 459-50, 13 L. Ed. 1058 (1852) (Great Lakes Act); 9 Wright and Miller, Federal Practice and Procedure § 2302, at 15 (1971).

 On the other hand, when a statute creating new rights or remedies is silent as to the mode of trial, the availability of a jury as of right generally becomes a Seventh Amendment question. Courts fit the statutory claim "into the nearest historical analogy to determine whether there is a (constitutional) right to jury trial." James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 656 (1963); Ross v. Bernhard, 396 U.S. 531, 543 n. 1, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970) (Stewart, J., dissenting); Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978); Nedd v. Thomas, 316 F. Supp. 74, 77 (M.D.Pa.1970); 5 Moore's Federal Practice P 38.11(7), at 128-128.4 (2d ed. 1978); 9 Wright and Miller, Federal Practice and Procedure §§ 2302, 2316 at 16, 79-80 (1971). See, e.g., Pernell v. Southall Realty, 416 U.S. 363, 375-76, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 193-97, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974); Porter v. Warner Holding Co., 328 U.S. 395, 66 S. Ct. 1086, 90 L. Ed. 1332 (1946); Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101 (1913); United States v. Jepson, 90 F. Supp. 983 (D.N.J.1950); Olearchick v. American Steel Foundries, 73 F. Supp. 273 (W.D.Pa.1947). As the Court said in Curtis :

 
(W)e have often found the Seventh Amendment applicable to causes of action based on statutes. See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477, 82 S. Ct. 894, 899, 8 L. Ed. 2d 44 (1962) (trademark laws); Hepner v. United States, 213 U.S. 103, 115, 29 S. Ct. 474, 479, 53 L. Ed. 720 (1909) (immigration laws); Cf. Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S. Ct. 233, 60 L. Ed. 505 (1916) (antitrust laws), and the discussion of Fleitmann in Ross v. Bernhard, 396 U.S. 531, 535-536, 90 S. Ct. 733, 736-737, 24 L. Ed. 2d 729 (1970). Whatever doubt may have existed should now be dispelled. The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.

 415 U.S. at 193-94, 94 S. Ct. at 1008 (footnotes omitted).

 Thus, if in enacting the antitrust laws Congress has granted the right to trial by jury in antitrust damage suits regardless of their size and complexity, any such limitation to the scope of the Seventh Amendment would be irrelevant. But if the antitrust laws do not themselves guarantee trial by jury on demand, we would have to decide the constitutional issue. *fn20"

  Private damage suits for relief under the antitrust laws are authorized by § 4 of the Clayton Act, 15 U.S.C. § 15, which replaced § 7 of the Sherman Act, ch. 647, § 7, 26 Stat. 210 (1890). Neither section makes any express mention of trial by jury, but the matter does not end there. In Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978), the Court interpreted the Age Discrimination in Employment Act of 1967 as requiring a jury trial on demand, even though that statute is also silent on the issue. In drafting the ADEA, Congress incorporated by reference the remedial provisions of the Fair Labor Standards Act, which courts had held to carry a constitutional right to trial by jury. Because of this, the Court held, the statutory scheme showed that congress "intended that in a private action under the ADEA a trial by jury would be available where sought by one of the parties." 434 U.S., at 585, 98 S. Ct. at 872. The Court's analysis thus applied the "principle of reenactment," a settled canon of statutory construction which presumes that when language with an accepted meaning derived from judicial or administrative interpretation is thereafter used in a statute, Congress intended the language to carry its accepted meaning into the statute. See United States v. Board of Commissioners, 435 U.S. 110, 132-35, 98 S. Ct. 965, 55 L. Ed. 2d 148 (1978); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 278-79, 97 S. Ct. 1740, 52 L. Ed. 2d 304 (1977).

 Although the legislative history of the Sherman and Clayton Acts may be susceptible to a similar interpretation, the effort would be somewhat strained. Scattered remarks of several Senators during the debates prior to passage of the Sherman Act show that they assumed that jury trials would be available in antitrust damage actions. See 21 Cong.Rec. 1767 (1890) (remarks of Sen. George); id., at 2643 (remarks of Sen. Gray); id., at 3149 (remarks of Sens. Morgan and George). A belief that parties in treble damage antitrust litigation were entitled to jury trial as a matter of constitutional right is also evident in the remarks of several members of Congress during the debates prior to passage of the Clayton Act. See 51 Cong.Rec. 1466, 88 (1914) (remarks of Reps. Scott and Volstead); id., at 9489 (remarks of Reps. Floyd and Volstead); id., at 9491 (remarks of Reps. Green and Scott). *fn21" Moreover, because damages and especially penal damages were a traditional remedy of the courts of law, See pp. 921-922, Infra, Congress was almost certainly aware that litigants in antitrust damage suits would be entitled to trial by jury as a matter of constitutional right. However, mindful of "the difficulty of discerning congressional intent where the statute provides no express answer," Lorillard v. Pons, 434 U.S. at 585, 98 S. Ct. at 872, we find this evidence insufficient to allow an extension of the reasoning of Lorillard to the antitrust statutes.

  We note first that since Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 7 L. Ed. 732 (1830), it has been clear and Congress has presumably been aware that the constitutional jury trial right attaches to statutory causes of action involving "legal" rights and remedies. *fn22" See Pernell v. Southall Realty, 416 U.S. 363, 374-75, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 193-94, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974). In spite of this, and with the sole exception of Lorillard v. Pons, the Supreme Court has consistently used constitutional analysis to determine the availability of trial by jury when the statute creating a cause of action is silent on the subject. This resort to Seventh Amendment analysis for most causes of action based on statutes implies strongly that mere congressional Awareness of the applicability of the Seventh Amendment, like that evident in the legislative history of the antitrust laws, is not enough to make jury trial available as a matter of statutory construction.

 By way of contrast, the legislative history of the ADEA provides much stronger evidence that Congress was not only aware of, but intended that jury trials be available.

 In Lorillard, the Court stressed Congress' deliberate choice of certain of the FLSA's remedial provisions, and its rejection both of other portions of the FLSA and of the remedial provisions of Title VII, which, though they accord similar relief, do so in terms not held to carry a right to jury trial. Clearly, Congress could have chosen to incorporate instead the remedial provisions of Title VII, thereby entitling plaintiffs to virtually identical relief, but without a jury.

 The Congresses that enacted the antitrust laws were in a very different position. Unlike the backpay available under Title VII, the damages available for antitrust violations cannot be fairly described as "restitution" or other equitable relief. See Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59, 66-67 (S.D.N.Y.1978). And in suits for penal damages, the right to a jury was then as much a part of the constitutional landscape as it is now in trials for criminal offenses punishable by lengthy imprisonment and large fines. When Congress defines certain conduct as a serious offense, it certainly "intends" that the conduct be severely punished, and necessarily Assumes that defendants would have the right to trial by jury. However, it need not "intend" this to be the case; indeed, it might devoutly wish just the opposite, but feel constrained by the constitution.

 Such constraint was evidently felt by the Congress that passed the Clayton Act; the discussion there of trial by jury showed less concern for the right to a jury trial than for the constitutionality of the proposed changes in the antitrust laws then being debated. See, e.g., 51 Cong.Rec. 9491 (1914) (remarks of Reps. Green and Scott). *fn23" Whereas Congress in the ADEA deliberately chose statutory language known to carry a right to a jury trial when it could instead have provided equivalent "equitable" relief, Congress in enacting the antitrust laws had no such choice, because equity had no remedy equivalent to treble damages. Clearly, it makes much more sense to discern an "intention" in the first situation than in the second.

 Thus, because the legislative history of the antitrust laws does not yield the positive evidence of congressional intent required to hold that the plaintiff's right to a jury trial is guaranteed by the statute, we must address the constitutional issue. *fn24"

 C. The Seventh Amendment and the Historical Test

 The Seventh Amendment provides:

 
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

 Although the continuing vitality of the Bill of Rights after nearly two centuries may be partly due to our courts' recognition of the need to read twentieth-century meanings into eighteenth-century terms, *fn25" the scope of the Seventh Amendment has traditionally been determined by applying a comparatively static, "historical test," which looks to the English common law as it existed in 1791, when the Seventh Amendment became part of the constitution. *fn26" See, e.g., Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); Curtis v. Loether, 415 U.S. 189, 193, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974); Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S. Ct. 890, 891, 79 L. Ed. 1636 (1935) ("The right of trial by jury thus preserved is the right which existed under the English common law when the amendment was adopted."); Dimick v. Schiedt, 293 U.S. 474, 476, 55 S. Ct. 296, 79 L. Ed. 603 (1935). See generally F. James & G. Hazard, Civil Procedure § 8.1 at 347 (1977); 5 Moore's Federal Practice P 38.08(5), at 79-80 (2d ed. 1978). *fn27"

 In looking to the English common law of 1791, the critical distinction is that between "law" and "equity:"

 Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446, 7 L. Ed. 732 (1830). Accord, e.g., Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 449, 97 S. Ct. 1261, 51 L. Ed. 2d 464 (1977); Pernell v. Southall Realty, 416 U.S. 363, 374-75, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 193, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974); Ross v. Bernhard, 396 U.S. 531, 533, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970). Because the Court has applied this rule in such a way as to "preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure," Baltimore & Carolina Line, supra, 295 U.S. at 657, 55 S. Ct. at 891, it has been able to accommodate procedural change without being unfaithful to the historical test. See, e.g., Colgrove v. Battin, 413 U.S. 149, 156-57, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973) (twelve-member jury not required by Seventh Amendment); Galloway v. United States, 319 U.S. 372, 390, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943) (directed verdict permitted by Seventh Amendment); Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498, 51 S. Ct. 513, 75 L. Ed. 1188 (1931) (New trial on less than all issues in case may be ordered, even though at common law there was no practice of setting aside a verdict in part); Ex parte Peterson, 253 U.S. 300, 309, 40 S. Ct. 543, 64 L. Ed. 919 (1920) (court appointment of auditor to examine complex accounts between the parties in order to simplify and define issues does not violate Seventh Amendment, as long as ultimate determination of disputed issues is left to the jury); Walker v. New Mexico & S.P.R.R., 165 U.S. 593, 596, 17 S. Ct. 421, 41 L. Ed. 837 (1897) (where jury's general verdict is inconsistent with jury's answers to special interrogatories, Seventh Amendment is not violated by entry of judgment on the basis of the special verdict, setting the general verdict aside). Although in each of these cases the Court approved procedural incidents of jury trials different from those that had been in practice in 1791, in none was the right to a jury trial lost where that right had been enjoyed at the time of the adoption of the Seventh Amendment. *fn28"

 We have noted earlier the defendants' concession that the Seventh Amendment applies "to all but the most lengthy and complex damage actions." *fn29" The issue, therefore, as framed by the historical test, is whether jury trials were unavailable in complex matters in 1791.

 1. The Accounting Cases

 In support of their contention that "at the time that the Seventh Amendment was ratified, . . . litigations involving complex facts or sophisticated business transactions were tried before the Court and not a jury," the defendants cite a number of cases in which plaintiffs proceeded in equity to obtain "an accounting." In some of these cases, the jurisdiction of a court of equity was sustained, even though the matter was cognizable at law, because the complexity of the accounts between the parties rendered the remedy at law inadequate. For example, in Kirby v. Lake Shore & M. S. R. R., 120 U.S. 130, 7 S. Ct. 430, 30 L. Ed. 569 (1887), the Court said:

 
The case made by the plaintiff is clearly one of which a court of equity may take cognizance. The complicated nature of the accounts between the parties constitutes ...

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