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COMMONWEALTH EDISON CO. v. ALLIS-CHALMERS MFG. CO.

July 19, 1965

COMMONWEALTH EDISON COMPANY ET AL., PLAINTIFFS,
v.
ALLIS-CHALMERS MANUFACTURING COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robson, District Judge.

  The above captioned actions are part of the more than nineteen hundred related treble damage antitrust actions involving the electrical equipment industry which were filed throughout the country during the early 1960's.*fn1 Plaintiffs in the instant cases are seeking damages for alleged overcharges on their purchases of power switchgear assemblies.

Seventeen of the twenty-one power switchgear assembly actions originally brought in this District have been dismissed. Twenty-seven additional power switchgear assembly cases have been transferred here from six other districts, one of which has been dismissed, leaving thirty suits pending. All of these actions have been consolidated for pre-trial purposes, and this Court has set one or more of them for trial on October 4, 1965.

Plaintiffs have moved pursuant to Rules 11 and 12(f), F.R.Civ.P., to strike defendant I-T-E Circuit Breaker Company's defense of economic coercion.*fn2 Extensive pre-trial discovery has been completed and the cases are now entering the final pre-trial stages. Efficient handling of this complex litigation requires that the real issues in dispute be sharply delineated, and the immaterial issues eliminated. Though motions to strike are not favored by the federal courts,*fn3 they provide a useful and appropriate tool where the parties disagree only on the legal implications to be drawn from uncontroverted facts, or where questions of law are involved. To this end the Court on March 2, 1965 entered Local Pre-Trial Order No. 4 which required I-T-E to file "a detailed written statement stating in separately numbered paragraphs all facts and contentions which relate to or bear on your defenses of `coercion, duress and compulsion * * *' and your inability to refrain from participating in the alleged conspiracy in this product line, or any attempts made by you to withdraw from the conspiracy in this product line."*fn4

The Court has concluded that plaintiffs' motions so strike should be granted for three reasons. First, economic coercion is not a legal defense to treble damage actions. Second, I-T-E has failed to assert facts sufficient to meet the legal criteria of economic coercion as developed through judicial decision. Third, this sanction should be imposed on I-T-E for failure to comply with Local Pre-Trial Order No. 4 and subsequent directions of the Court.

I. Legal Sufficiency of the Economic Coercion Defense in Treble Damage Actions.

I-T-E's coercion defense attacks the heart of plaintiffs' causes of action. For plaintiffs to recover from I-T-E in these cases they must first prove that I-T-E has violated the antitrust laws. The theory of the coercion defense is that a party who is forced to participate in an illegal conspiracy has not violated the antitrust laws. I-T-E alleges that its participation in the conspiracy resulted from economic coercion by the larger electrical equipment manufacturers, "(General Electric, Westinghouse and, from time to time, Allis-Chalmers)",*fn5 and accordingly, that it has not committed the tort necessary to create liability to plaintiffs.

This result would overlook the significance of the following discussion in United States v. Paramount Pictures, Inc., et al., 334 U.S. 131, 161, 68 S.Ct. 915, 931, 92 L.Ed. 1260 (1948) (an equitable proceeding):

    "There is some suggestion on this as well as on
  other phases of the cases that large exhibitors with
  whom defendants dealt fathered the illegal practices
  and forced them onto the defendants. But as the
  District Court observed, that circumstance if true
  does not help the defendants. For acquiescence in an
  illegal scheme is as much a violation of the Sherman
  Act as the creation and promotion of one." (Emphasis
  supplied.)

Although it may be arguable that the economic coercion defense is less applicable in an equitable suit for remedial relief than in a punitive criminal or treble damage action, this Court has concluded that Paramount is binding precedent and, accordingly, that plaintiffs' motions to strike should be granted.*fn6 I-T-E attempts to distinguish the word "acquiescence", used in Paramount, from the "coercion, duress, and compulsion" inflicted upon it. The defense asserted in Paramount was that "illegal practices" were "forced" upon certain of the defendants. Similarly, here it is asserted that I-T-E has been coerced into various actions. The attempt to distinguish between "forced acquiescence" and "coercion" is pure semantics.

    "* * * There was no direct evidence that Flintkote,
  as a seller of tile and not an installer,
  participated directly in that original conspiracy
  between the dealers, but there was evidence from
  which an inference might have been drawn by the trier
  of fact warranting the belief that the defendant
  Flintkote, through acting as supplier to the
  conspirators on some of the jobs, could have acquired
  knowledge of the conspiracy; and there was evidence
  which warranted the conclusion that Flintkote, with
  such inferred knowledge, participated in the
  conspiracy, and aided it, by its refusal to sell to
  plaintiffs. If that refusal was not the result of the
  exercise of ordinary business judgment, but the
  result of threats made and pressure applied by
  members of the known conspiracy to and against
  Flintkote, the act of refusing to sell would
  constitute knowing participation. Because one is
  coerced by economic threats to participate in or aid
  and abet an illegal scheme does not excuse the
  actor."

The Ninth Circuit made no reference to Paramount in Fox West Coast Theatres Corp. et al. v. Paradise Theatre Building Corporation, 264 F.2d 602, 605 (C.A.9 1958) (treble damage suit against six motion picture producers-distributors-exhibitors) which expressed the opposite view:

    "* * * Once it is found that there was substantial
  evidence that these three organizations combined
  unlawfully to discriminate against Paradise, then
  evidence of action by others tending to produce the
  unlawful result may be corroborative of the charge,
  even though these others may not be found eventually
  to have been conspirators. The jury may clear some
  participants in parallel action for lack of knowledge
  of the scheme or unlawful design or because they were
  coerced. Thus, although each may have been a
  participant in acts which tended to effectuate the
  result complained of, the jury may have found them
  innocent tools of the conspirators whom the jury
  found unlawfully formulated, carried on and did overt
  acts charged to bring about the isolation of
  Paradise. The jury had a right and the duty to
  consider the record as a whole and determine who, if
  any, were participants in an unlawful combination."

The court's discussion in both cases is dictum. In Flintkote, supra, coercion was not advanced as a defense but was introduced by plaintiff to prove defendant's knowledge of and knowing participation in the conspiracy. In Fox West Coast Theatres, supra, the Ninth Circuit considered the sufficiency of the evidence (i.e., inferences to be drawn from parallel behavior) to sustain the verdict finding only three of six defendants liable. The court's language in the latter case means only that where proof of conspiracy is circumstantial, it is for the jury to decide whether a particular act resulted from participation in the conspiracy, or from coercion which made the defendants the "innocent tools of the conspirators. * * *"*fn7

II. I-T-E Has Failed to Assert Facts Sufficient to Meet the Legal Criteria of Economic Coercion.

Because of the absence of authority directly on point this Court chose not to rule on the sufficiency of the economic coercion defense in a factual vacuum. The factual background was to be provided by the responses ordered to Local Pre-Trial Order No. 4. I-T-E's response was intended to serve as an offer of proof for all the facts and contentions in support of this defense.*fn8 Its response does not assert facts sufficient to meet the basic criteria of coercion as established by judicial decisions. These criteria include: (1) the coerced party was deprived of its free will; (2) it had no available alternative course of action; (3) the threatened consequences were such that the remedy at law was insufficient; (4) the threatened acts were illegal; and (5) the coercion was exercised by the party against whom the defense is asserted. (6) In addition, the party asserting the defense must have promptly disavowed the involuntary acts or acquiescence will be implied as a matter of law.

  (1) I-T-E has failed to show any instances where it was
      deprived of free will.

Coercion principles which have long been applied in the criminal law have been extended to other branches of the law by modern decisions. Business compulsion is now recognized as a species of duress.*fn9 There is no litmus paper test indicating when such coercion occurs. Rather, the coercive acts must be examined to determine their effect on the complaining party. Duress is present only when the individual is deprived of his free will and judgment. As stated in Winget v. Rockwood et al., 69 F.2d 326, 330 (C.A.8 1934) (suit to rescind a contract for the sale of stock):

    "* * * There is no legal standard of resistance
  with which the victim must comply at the peril of
  being remediless for a wrong done, and no general
  rule as to the sufficiency of facts to produce
  duress. * * * In other words, duress is not to be
  tested by the character of the threats, but rather by
  the effect produced thereby on the mind of the
  victim. The means used, the age, sex, state of health
  and mental characteristics of the victims are all
  evidentiary, but the ultimate fact in issue is
  whether such person was

  bereft of the free exercise of his will
  power. * * *"*fn10

I-T-E has not demonstrated the absence of free choice necessary to constitute coercion. On the contrary, the statement in response to Local Pre-Trial Order No. 4 repeatedly relates instances of I-T-E's independent action. For example:

    "8. In subsequent meetings of competitors at about
  this time [1931] and during the year or two which
  followed, General Electric and Westinghouse
  continually urged Scott [I-T-E's President] to make
  I-T-E's prices and terms and conditions of sale
  similar to those of General Electric and
  Westinghouse. Uniformity was insisted upon even for
  the items where I-T-E's price was higher than its
  competitors'. When Scott refused to lower I-T-E's
  price on such items, General Electric said that it
  would raise its prices to achieve the desired
  uniformity notwithstanding the possible substantial
  loss of business it was getting in that product line,
  a position from which Westinghouse did not
  dissent. * * **fn11 (Emphasis supplied.)
    "33. In November 1952 I-T-E submitted a quotation
  for the 440 volt auxiliary switchboards for CVA 60,
  the aircraft carrier Saratoga. General Electric had
  been awarded similar equipment on the first vessel of
  this class and I-T-E planned to get the second, if
  possible. When Scott instructed I-T-E's Sales
  Manager, Fred Getz, to make every effort to obtain
  the job, Getz told him that, based upon his
  conversations with General Electric and Westinghouse
  and his past experience, there was absolutely no
  doubt that General Electric and Westinghouse would
  not permit I-T-E to take it and, if I-T-E was
  competitive, there would be severe commercial
  repercussions affecting other business. In spite of
  the warning, Getz was instructed to proceed and I-T-E
  got the job at $1,400,000 as compared with General
  Electric's bid of $1,800,000 for the first vessel of
  this class.*fn12 (Emphasis supplied.)
    "67. Notwithstanding discussions among competitors
  at the Traymore meeting referred to in paragraph 57
  and at other meetings, I-T-E personnel were
  instructed to run I-T-E's business their own way. For
  example, when Buck reported to Scott the proposed 4%
  allocation of sealed-bid business, Scott told him to
  forget it and Buck gave similar instructions to his
  subordinates."*fn13 (Emphasis supplied.)

In the above instances, I-T-E acted in direct defiance of the larger manufacturers' commands. Defendant cannot claim in one breath that it lost its will by "the threats and acts of coercion [which] are largely to be found in a mosiac of incidents stretching in time throughout virtually the entire history of the electrical manufacturing industry * * *,"*fn14 and in the next assert that it was an aggressive competitor exercising its own business judgment. The examples cited by I-T-E lead inevitably to the conclusion that it acted freely at all times to pursue those goals which it believed were in its best interests.

  (2) I-T-E has failed to show that acquiescence was the only
      available alternative.

Although coercion need not result from a single act,*fn15 the threatened party to successfully urge the defense must prove that it was deprived of any opportunity for alternative action*fn16 and that the threat was imminent and certain. In A/S Glittre v. Dill, 152 F. Supp. 934, 938 (S.D.N.Y. 1957) (suit to recover a fine), the coerced payment was made to secure clearance papers needed for docking in U.S. ports. The court granted defendant's motion for summary judgment, finding that duress did not exist as a matter of law where the payment was made five weeks prior to the vessel's docking.

    "* * * Hence, plaintiff's payment was anticipatory.
  It was not induced by a present, immediate and urgent
  necessity, but by a desire to avert a prospective and
  contingent event which presumably might take place in
  five weeks."

I-T-E has failed to cite a single instance in the 1940's or 1950's where its independent actions resulted in prompt retaliation against it by the major producers. This failure of proof is critical in view of the numerous examples of such actions described in its responses. Many years of participation in a conspiracy cannot be justified on grounds of coercion without a showing that harm resulted from attempts to throw off the illegal yoke.

  (3) I-T-E at all times had the alternative of a meaningful
      legal remedy.

An adequate remedy at law will defeat the defense.*fn17 In Hartsville Oil Mill v. United States, 271 U.S. 43, 49, 46 S.Ct. 389, 70 L.Ed. 822 (1926) (contract suit against the Government), the Government moved to modify the contract (pursuant to its provisions) and threatened default unless the new contract was accepted within one hour. The Supreme Court held that "[b]efore the coercive effect of the threatened action can be inferred, there must be evidence of some probable consequences of it to person or property for which the remedy afforded by the courts is inadequate."

I-T-E cannot show its remedy at law was insufficient. Two legal remedies existed which it failed to pursue to fruition. The first was to bring suit for injunctive and/or treble damage relief under the Clayton Act.*fn18 The second was to report the illegal activities to the Justice Department. In 1940 I-T-E, through Mr. Scott, its President, took the initial step in this direction, and reported to the Justice Department that antitrust violations were occurring in the circuit breaker industry. Thurman Arnold, then Assistant Attorney General, responded requesting that Mr. Scott "* * * communicate with me [Arnold] concerning this matter."*fn19 Mr. Scott did not communicate further. His present explanation is that he "* * * rather expected they [the Justice Department] would approach me further, which they never did."*fn20 He decided "with the changed circumstances accompanying the war * * * not to risk the competitor retaliation which he expected might follow from pursuing such a complaint."*fn21

I-T-E has failed to establish that its two legal remedies were worthless, Although the possibility existed that retaliation might occur, the clear evidence of I-T-E's corporate vigor since discovery of the conspiracies argues the contrary. World War II afforded I-T-E an ideal opportunity to free itself of the alleged coercion. The favorable market for electrical equipment at the time*fn22 and its expansion into defense activities made I-T-E particularly invulnerable to retaliation.

(4) I-T-E has failed to show any illegal threats.

Unless the threatened act is illegal, it does not constitute coercion.*fn23 This principle was succinctly stated in Automatic Radio Mfg. Co. Inc. v. Hazeltine Research, Inc., 176 F.2d 799, 804 (C.A.1 1949) (suit for royalties under a patent license allegedly entered into under threat of an infringement suit):

    "* * * Not all economic pressure constitutes
  `duress' rendering a contract voidable. * * * [T]he
  pressure exerted must be wrongful; * * * a threat to
  resort to civil litigation is not such duress as to
  justify rescission of a transaction induced thereby
  even though there is no legal right to enforce the
  claim, * * *." (Emphasis supplied.)

There is no showing that the coercion allegedly exerted was illegal. I-T-E argues that General Electric's sales policy of meeting the lowest price quoted by a competitor "went beyond the requirements of fair competition for any single sale since that policy has as a substantial purpose the establishment of a uniform price and the elimination of price competition on succeeding transactions."*fn24 The meeting of competitors' prices may be completely legal. A major aim of the antitrust laws is an open economy in which the meeting of competitors' prices is the rule rather than the exception. I-T-E has not established that General Electric would have violated any law by carrying out its threats.

(5) The alleged coercion did not stem from plaintiffs' acts.

A further ground for striking I-T-E's coercion defense is that the duress did not emanate from the plaintiffs in these actions. The party asserting the defense must demonstrate that duress resulted from the opposing party's wrongful and oppressive conduct. I-T-E has neither alleged nor proved such facts.

In W.R. Grimshaw Co. et al. v. Nevil C. Withrow Co., Inc., 248 F.2d 896, 904-905 (C.A.8 1957) (action by a subcontractor for extras allegedly not covered by the contract), one element of the alleged coercion consisted of defendant's threat to cancel the subcontract for plaintiff's non-performance, which in turn would have resulted in a cancellation charge to plaintiff by a sub-subcontractor. The court stated:

    "An examination of the cases in the field of duress
  and economic coercion makes it clear that three
  elements are common to all situations where
  actionable duress has been determined to exist: (1)
  that one side involuntarily accepted the terms of
  another; (2) that circumstances permitted no other
  alternative; and (3) that said circumstances were the
  result of coercive acts of the opposite party. * * *
    "Withrow [the subcontractor] contended that the
  Ware Laboratories [the sub-subcontractor] might
  impose a cancellation charge if Grimshaw [the prime
  contractor] cancelled the contract, and that because
  of his financial condition, this might bankrupt him.
  But the contention seems to be without merit, in that
  the alleged danger of a cancellation charge by a
  third party cannot be made the basis of a claim of
  duress between contracting parties. * * *"*fn25
  (Emphasis supplied.)

Threats of third parties cannot be used by I-T-E as a defense against plaintiffs' actions.

  (6) I-T-E's failure to disavow the coercion promptly
      constitutes acquiescence.

Failure to disclaim an involuntary act upon cessation of the coercion constitutes acquiescence which bars the defense. In Barnette v. Wells Fargo Nevada National Bank et al., 270 U.S. 438, 444, 46 S.Ct. 326, 328, 70 L.Ed. 669 (1926) (suit to cancel a deed three years after the conveyance), the Supreme Court held the contract valid based on plaintiff's delay in asserting coercion and disavowing the contract:

    "* * * Nor need we consider any of the numerous
  defenses interposed, except the acquiescence of
  appellant in her deed, and her delay in asserting her
  rights, which, in the circumstances, are decisive of
  the case.
    "* * * If there was duress here, appellant, as soon
  as she was relieved from its operation, was in a
  position either to disaffirm her conveyance or to
  allow it to stand undisturbed as the free and formal
  disposition of her rights. * * * In that situation
  she was subject to the requirement of equity that an
  election to disaffirm * * * must be exercised
  promptly."*fn26

I-T-E was obligated to disclaim its participation in the electrical equipment conspiracies at the earliest opportunity or be foreclosed from pleading the defense. I-T-E could have repudiated the conspiracy in those instances where it defied the larger manufacturers.*fn27 After the electrical equipment indictments in Philadelphia, it had ample opportunity to disavow by asserting the defense in the Government's suits, or by cross-claiming against other defendants in the private damage actions.

III. I-T-E Has Failed to Comply with Local Pre-Trial Order No. 4.

Additional grounds for striking I-T-E's coercion defense is its failure to comply with Local Pre-Trial Order No. 4. Rule 16, F.R.Civ.P., authorizes pre-trial proceedings to aid in the disposition of lawsuits by simplifying and reducing the issues in dispute. Not only are the courts authorized to limit the issues, but it is their duty to do so. As stated in Brinn v. Bull Insular Lines, Inc., 28 F.R.D. 578, 579 (E.D.Pa. 1961) (a maritime case in which a pre-trial order was entered limiting the issues to whether defendant or third party defendant was liable):

    "If the pre-trial procedure is to have any
  meaningful purpose whatever, it is incumbent on the
  Court to narrow the issues reasonably and with
  discretion. * * *"*fn28

Pre-trial is particularly needed in protracted antitrust litigation.*fn29 In United States v. E.I. Du Pont De Nemours & Co., 11 F.R.D. 308, 310 (D.C.D.Del. 1951), the court observed:

    "The issues pertaining to any action should be
  crystallized by the pleadings and by pretrial
  procedures. This seems specially apt to the trial of
  an antitrust suit involving complex facets of an
  industry under scrutiny. * * *"

Local Pre-Trial Order No. 4 was designed to crystallize the areas of dispute respecting I-T-E's coercion defense. It required a detailed statement of I-T-E's coercion evidence under nineteen separate topic headings. Defendant's response is completely insufficient and does not meet even minimum standards of compliance.

Paragraphs (3)(c) (iv) and (v) required I-T-E to describe "all understandings and agreement * * * reached at or as a result of any such [coerced] communication, conversation or meeting" and "each course of conduct undertaken by you as a result of any such communication, conversation or meeting * * *." As the following examples show, the response to these paragraphs is particularly deficient:

    A. Paragraph 15 of I-T-E's Statement alleges that
  Tom Watts of Westinghouse told Max Scott in 1934 that
  I-T-E "had better conform to a uniform price policy"
  for circuit breakers. The statement does not indicate
  whether I-T-E agreed to a uniform price policy, or
  what practice it in fact followed.
    B. Paragraph 17 alleges that in 1936 R.W. Davis of
  Allis-Chalmers instructed Mr. Scott what price I-T-E
  should quote on a high tension bus job for Carnegie
  Steel Company. The statement does not relate I-T-E's
  response to this order, or the bid I-T-E submitted.
    C. Paragraphs 18 and 19 allege that I-T-E received
  warnings in the mid-1930's about charging lower
  prices and upsetting the price levels on sales to
  steel mills and certain utilities. The statement does
  not reveal I-T-E's reaction to these warnings, or the
  policy followed.
    D. Paragraph 29 alleges that shortly after World
  War II Mr. Tinnerholm of General Electric instructed
  I-T-E to protect General Electric's bid on a Ward's
  Island New York sewerage plant job. There is no
  indication whether I-T-E agreed to and did bid higher
  than General Electric.
    E. Paragraph 31 alleges that in 1947 Mr. Tinnerholm
  told Mr. Scott that General Electric was content to
  leave the pricing of power switching equipment to the
  smaller manufacturers, but that if they failed to

  maintain price stability, General Electric would take
  over policing the product line. The statement gives
  no information on whether I-T-E charged stable prices
  and policed the prices of other manufacturers.
    F. Paragraphs 45 and 46 allege that in early 1958
  I-T-E attended a series of competitors' meetings
  concerning quoting book prices on electrical
  equipment (particularly switchgears). Initially, H.L.
  Buck of I-T-E refused to agree with competitors'
  proposals, but further meetings were held. The
  statement fails to reveal if I-T-E maintained its
  original position, if it capitulated and agreed to
  quote book prices, and if in fact subsequent sales
  were made at book.
    G. Paragraph 49 alleges that in late 1957 or early
  1958 I-T-E was told to raise its power switchgear
  assembly prices or face a general lowering of the
  price level. No information is provided on I-T-E's
  reaction when the price level did in fact drop.

I-T-E predicated its coercion evidence with the qualification that it did not "provide every matter and every detail referred to in Local Pre-Trial Order No. 4 * * * [but that it set] forth the substance of the facts and contentions which are at least illustrative of I-T-E's position. * * *"*fn30 Local Pre-Trial Order No. 4 was explicit in requiring "all facts and contentions" relating to I-T-E's defense. Illustrative examples are not sufficient to determine submissibility when a complete offer of proof has been required.*fn31

I-T-E's non-compliance in its original statement resulted in the Court's directing the filing of an amended coercion statement*fn32 within two weeks. The amendment, when filed, consisted of only three pages and was confined to specific examples of non-compliance which the plaintiffs' statement had pointed out. Subsequently, I-T-E was allowed two weeks in which to file a reply to plaintiffs' second statement in response to Local Pre-Trial Order No. 4. It did not avail itself of this opportunity. Thus, not only has I-T-E failed to comply with Local Pre-Trial Order No. 4, but it has made no meaningful effort to provide the Court with the information available and necessary for this decision.

I-T-E has been given every opportunity to submit a complete and sufficient statement. When a party does not comply with the court's order, there is no alternative but to apply sanctions. It is clear that courts have, as indeed they must have, authority to regulate their practice and compel compliance with their reasonable mandates. This principle is codified in Rules 37 and 41, F.R.Civ.P., which specify sanctions for failure to comply with orders. The courts also have inherent power to enforce their orders. As stated in Link v. Wabash R.R. Co., 291 F.2d 542, 546 (C.A.7 1961), aff'd. 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (where the district court dismissed an action on its own motion for failure to prosecute):

    "Courts may exercise their inherent powers and
  invoke dismissal as a sanction in situations
  involving disregard by parties of orders, rules or
  settings. * * *"

For this Court to do otherwise would be unjust to plaintiffs in these cases and to litigants in other actions pending before it. It is apparent that this defense was without foundation and was dilatory. In view of the time and effort that has been required to reach this conclusion, the Court would consider a motion to assess attorneys' fees and costs reasonably expended by plaintiffs.

IV. Order

For the foregoing reasons, it is ordered that:

1. Plaintiffs' motions to strike all portions of I-T-E's defenses of economic coercion in the actions listed in the caption to this memorandum are granted.

2. The pleadings in these actions are deemed modified to conform with the rulings on these motions without need for further formal amendment.

Appendix A

LOCAL PRE-TRIAL ORDER NO. 4

A pre-trial conference having been held, counsel having been heard, and due deliberation having been had, it is ordered severally in the above actions that:

(1) "Identify" when used as to an individual person means to state his full name and present address, if known, and his present or last known business position or affiliation. "Identify" when used with reference to a document means to state the date and author, type of document (e.g., letter, memorandum, telegram, chart, etc.) or some other means of identifying it and its present location or custodian. If any such document was, but is no longer, in the answering party's possession or control, state what disposition was made with respect to it.

(2) As used herein, the term "document" shall mean any book, pamphlet, periodical, letter, report, memorandum, record, study, working paper, paper, chart, graph, index, data sheet, data processing card or table, or any other writing, except those documents prepared solely for the purpose of this litigation.

(3)(A) In this paragraph, "you" or "your" shall mean I-T-E Circuit Breaker Company, its domestically domiciled subsidiaries and its merged or acquired predecessors, its present and former officers, agents and all other persons acting on behalf of I-T-E Circuit Breaker Company, or such subsidiaries or such predecessors, including all past or present employees exercising discretion, making policy and making decisions or participating in any of the foregoing functions with respect to the sale, pricing, marketing or manufacturing of power switchgear assemblies or components thereof;

(B) On or before March 9, 1965, you shall file with this Court a detailed written statement stating in separately numbered paragraphs all facts and contentions which relate to or bear on your defenses of "coercion, duress and compulsion" (First and Fourth Defenses) and your inability to refrain from participating in the alleged conspiracy in this product line, or any attempts made by you to withdraw from the conspiracy in this product line;

(C) Such written statement shall state the facts in sufficient detail for the Court to determine the submissible issues, to distinguish between those facts which you contend on the basis of the complaint or otherwise are admitted, and those which are contested, to determine the admissibility of the evidence offered to prove each of such facts;

(D) Such written statement shall:

      (i) state the location and date of all
          communications, conversations and meetings
          which relate to or bear on such defenses;

     (ii) identify the parties to or the participants
          in each such communication, conversation, or
          meeting;
    (iii) describe fully the circumstances and
          substance of each such communication,
          conversation or meeting;
     (iv) describe fully all understandings and
          agreement (whether explicit or tacit) reached
          at or as a result of any such communication,
          conversation or meeting;
      (v) describe fully each course of conduct
          undertaken by you as a result of any such
          communication, conversation or meeting;
     (vi) identify and describe fully the contents of
          all documents which relate to, bear on or
          reflect the details of any such
          communication, conversation or meeting;
    (vii) set forth all facts respecting your
          inability to refrain from participating in
          the alleged conspiracy in this product line;
   (viii) set forth your contentions respecting your
          inability to refrain from participating in
          the alleged conspiracy in this product line;
     (ix) set forth all facts respecting any attempts
          made by you to withdraw from participating in
          the alleged conspiracy in this product line;
      (x) set forth your contentions respecting any
          attempts made by you to withdraw from
          participating in the alleged conspiracy in
          this product line;
     (xi) identify and describe fully the contents of
          all documents which relate to, bear on or
          reflect the facts respecting your inability
          to refrain from participating in the alleged
          conspiracy in this product line;
    (xii) identify and describe fully the contents of
          all documents which relate to, bear on or
          reflect your contentions respecting your
          inability to refrain from participating in
          the alleged conspiracy in this product line;
   (xiii) identify and describe fully the contents
          of all documents which relate to, bear on or
          reflect the facts respecting any attempts
          made by you to withdraw from participating in
          the alleged conspiracy in this product line;
    (xiv) identify and describe fully the contents of
          all documents which relate to, bear on or
          reflect your contentions respecting any
          attempts made by you to withdraw from
          participating in the alleged conspiracy in
          this product line;
     (xv) identify the portions of all national
          depositions which relate to or bear on your
          defenses of "coercion, duress, and
          compulsion," and your inability to refrain
          from participating in the alleged conspiracy
          in this product line, or any attempt made by
          you to withdraw from participating

          in such alleged conspiracy;
    (xvi) identify and describe fully the contents of
          all documents produced in a national document
          depository which relate to, bear on or
          reflect your defenses of "coercion, duress,
          and compulsion," and your inability to
          refrain from participating in the alleged
          conspiracy in this product line, or any
          attempt made by you to withdraw from
          participating in such alleged conspiracy;
   (xvii) identify all potential trial witnesses in
          these actions whose testimony would relate to
          or bear on your defenses of "coercion,
          duress, and compulsion," and your inability
          to refrain from participating in the alleged
          conspiracy in this product line, or any
          attempt made by you to withdraw from
          participating in such alleged conspiracy, and
          describe separately the testimony of each
          such potential witness;
  (xviii) identify and describe fully the contents
          of all other documents and set forth in
          detail all other facts which relate to, bear
          on or reflect your defenses of "coercion,
          duress, and compulsion," and your inability
          to refrain from participating in the alleged
          conspiracy in this product line, or any
          attempts made by you to withdraw from
          participating in such alleged conspiracy;
    (xix) identify and describe fully the contents of
          all other documents and set forth in detail
          all other of your contentions which relate
          to, bear on or reflect your defenses of
          "coercion, duress, and compulsion," and your
          inability to refrain from participating in
          the alleged conspiracy in this product line,
          or any attempts made by you to withdraw from
          participating in such alleged conspiracy;

(4)(A) On or before March 23, 1965, plaintiffs in these actions shall file with this Court a detailed written statement in reply to the statement herein ordered to be filed by I-T-E Circuit Breaker Company.

(B) Such written statement shall state in separately numbered paragraphs the contentions of such plaintiffs with respect to each fact and contention set forth in I-T-E Circuit Breaker Company's written statement, and such additional facts and contentions which such plaintiffs believe relate to or bear on I-T-E Circuit Breaker Company's defenses of "coercion, duress, or compulsion," its inability to refrain from participating in the alleged conspiracy in this product line, or any attempts made by it to withdraw from participating in such alleged conspiracy.

(C) Such written statement shall state the facts in sufficient detail for the Court to determine the submissible issues, to distinguish between those facts which plaintiffs contend on the basis of the answers or otherwise are admitted, and those which are contested, to determine the admissibility of the evidence offered to prove each of such facts.

(D) In preparation for such written statement, plaintiffs shall have such discovery by depositions, written interrogatories or otherwise, as they shall deem necessary on any issues raised or made by the written statement of I-T-E Circuit Breaker Company.

(5) Any factual issue, legal issue, contention, claim, affirmative matter, or defense not set forth in detail as provided herein in paragraphs (3) and (4) shall be deemed abandoned, uncontroverted, or withdrawn in further proceedings, the pleadings and other papers on file herein to the contrary notwithstanding, except for facts, issues, contentions, claims, affirmative matters, or defenses of which a party may not be aware at the time of filing a written statement in the exercise of reasonable diligence. Any such matters of which a party is not aware in the exercise of diligence at the time of filing a written statement may be presented by supplemental written statement upon a showing of good cause.

Appendix B

WRITTEN STATEMENT OF DEFENDANT I-T-E CIRCUIT BREAKER COMPANY
    REQUIRED BY LOCAL PRETRIAL ORDER NO. 4

Defendant I-T-E Circuit Breaker Company makes the following written statement as required to be filed on or before March 9, 1965 by Local Pretrial Order No. 4 which was entered by the Court on March 2, 1965, over I-T-E's objection.

I.

Among other things, some of which are set forth at the foot of this written statement, the nature of I-T-E's Fourth Defense and related portions of its First Defense as set forth in its answers to the plaintiffs' complaints, the nature and extent of the information in support of it which is presently available, and the time available for the preparation of this written statement are such that it is impossible for I-T-E to provide every matter and every detail referred to in Local Pretrial Order No. 4. However, I-T-E believes that the following statement sets forth the substance of the ...


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