In this antitrust case which has been tried twice in this court and appealed to the United States Court of Appeals for the Third Circuit and in which thereafter certiorari was sought and denied from the United States Supreme Court, the court is now called upon to fix the amount of attorney's fees to be awarded the attorney for the plaintiff. See Baughman v. Cooper-Jarrett, Inc., et al., 391 F.Supp. 671 (W.D.Pa.1975) modified 530 F.2d 529 (3d Cir. 1976). In accordance with the requirements of the Third Circuit, in Lindy I, 487 F.2d 161 (3d Cir. 1973) as refined and explained in Lindy II, 540 F.2d 102 (3d Cir. 1976) the court has held an evidentiary hearing and will now articulate the reason for the action taken with respect to this petition.
The factual background of this case is set forth fully in the prior opinions of both our court and the district court that considered questions of liability and damages. Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671 (W.D.Pa. 1975), vacated in part and remanded, 530 F.2d 529 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976). We therefore shall set out only those facts relevant to this appeal before proceeding to consider that petition for attorneys' fees.
We remand for a modification of the judgment. The district court's opinion is reported at 391 F. Supp. 671 (W.D.Pa. 1975). I. PROCEEDINGS BELOW
"As in all damages awards for tortious injury, `[i]nsistence on mathematical precision would be illusory and the judge or juror must be allowed a fair latitude to make reasonable approximations guided by judgment and practical experience.'" Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 590 (1974) (quoting Whitaker v. Blidberg Rothchild Co., 296 F.2d 554, 555 (4th Cir. 1961)); Cf. Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671, 680 (W.D. Pa. 1975), aff'd in part, vacated in part on other grounds, 530 F.2d 529 (3d Cir. 1976) ("Damages in a case such as this are seldom capable of precise determination. . . ."). "[I]f a plaintiff can demonstrate that the defendant's acts caused him economic loss and so establish liability, the plaintiff will also be able to establish `facts and circumstances tending to show the probable amount of . . . damages' sufficient to allow the trier of fact to form a `reasonable and probable estimate' of recoverable damages."
By contrast, where two or more defendants are responsible for separate injuries, an amount received in settlement from one defendant for one of the injuries may not be used to reduce the liability of the other defendant for the other injury. See, e.g., Hendrix, 776 F.2d at 1509 (amount received by spouse who settled claim for loss of consortium should not be set off against damages received at trial because "the damages sustained by a spouse are exclusive of those suffered by her husband"); Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671 (W.D.Pa. 1975), aff'd in part, vacated in part on other grounds, 530 F.2d 529 (3d Cir. 1976) (where amount of settlement with one defendant included items of damage that were not part of judgment, non-settling defendant was entitled to credit only for the amount of settlement duplicated in the verdict); Carr v. Cove, 33 Cal.App.3d 851, 109 Cal.Rptr. 449 (1973) (where plaintiff sued two defendants for injuries sustained in separate automobile accidents occurring more than two months apart, non-settling defendant was not entitled to credit for the amount received by plaintiff in settlement with other defendant). The critical issue is whether the jury awarded damages to USI for a single indivisible injury, or whether the jury found that USI suffered separate and distinct injuries, some or all of which may have been uncompensated by the settlements.
Although we have carefully considered the arguments set forth in the majority's opinion, we are unable to agree that a right of contribution should be allowed among violators of the antitrust laws. See also Goldlawr, Inc. v. Schubert, 276 F.2d 614, 616 (3d Cir. 1960) (dictum); Baughman v. Cooper Jarrett, Inc., 391 F. Supp. 671, 678 n. 3 (W.D.Pa. 1975), aff'd and modified on other grounds, 530 F.2d 529 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976) (dictum); Gould v. American-Hawaiian S.S. Co., 387 F. Supp. 163 (D.Del. 1974) (dictum); Wainwright v. Kraftco Corp., 58 F.R.D. 9, 11-12 (N.D.Ga. 1973) (arguably by implication); Washington v. American Pipe Constr. Co., 280 F. Supp. 802, 804-05 (S.D.Cal. 1968) (arguably by implication). But see Chevalier v. Baird Sav. Ass'n, 72 F.R.D. 140, 145 n. 6 (E.D. Pa. 1978) (dictum).
Olson Farms, Inc. v. Safeway Stores, Inc., [1977-2] Trade Reg.Rep. (CCH) ¶ 61,698 (D. Utah 1977); Wilson P. Abraham Constr. Co. v. Texas Indus., Inc., No. 75-2820 (E.D.La. Oct. 5, 1977); El Camino Glass v. Sunglo Glass Co., supra; Sabre Shipping Corp. v. American President Lines, Ltd., supra. See also Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671, 678 n. 3 (W.D.Pa. 1975), aff'd in part, rev'd in part, 530 F.2d 529 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976) (dictum); Wainwright v. Kraftco Corp., 58 F.R.D. 9, 11-12 (N.D.Ga. 1973) (arguably by implication); Washington v. American Pipe Constr. Co., 280 F. Supp. 802, 804-05 (S.D.Cal. 1968) (arguably by implication). Nevertheless, we are not persuaded that a rule barring contribution is correct. Of the above cited cases, only El Camino Glass, supra, and Sabre Shipping Corp., supra, provide any insight into the reasoning of the court.
The Supreme Court applied the intention of the parties rule in Zenith, 401 U.S. at 345, 91 S.Ct. at 809, 28 L.Ed.2d at 96 to civil antitrust cases. See also the opinion of this court in Baughman v. Cooper Jarrett, 391 F. Supp. 671 (W.D.Pa. 1975).
However, since it is unlikely that the government suffered any loss from the unlawful agreement itself, in order to recover anything more than double nominal damages the government will most likely need to prove that false or fraudulent claims were actually submitted and paid. Under familiar principles, each conspirator would be jointly and severally liable for all loss suffered by reason of false or fraudulent claims submitted by any conspirator during the course of the conspiracy unless and until he had effectively withdrawn from it. 15A C.J.S. Conspiracy §§ 18-19; see, e.g., Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1343 (9th Cir. 1970); Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671, 678-79 (W.D.Pa. 1975). Thus, proof of the extent and duration of each defendant's participation in the conspiracy, though clearly relevant to the question of the amount of damages he must pay, has no bearing on the issue of liability.