Viking Theatre Corp. v. Paramount Film Distributing Corp.

PETITIONER: Viking Theatre Corp.
RESPONDENT: Paramount Film Distributing Corp.
LOCATION: New York Times Office

DOCKET NO.: 481
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 378 US 123 (1964)
ARGUED: Apr 27, 1964
DECIDED: Jun 15, 1964

Facts of the case

Question

Media for Viking Theatre Corp. v. Paramount Film Distributing Corp.

Audio Transcription for Oral Argument - April 27, 1964 (Part 1) in Viking Theatre Corp. v. Paramount Film Distributing Corp.

Audio Transcription for Oral Argument - April 27, 1964 (Part 2) in Viking Theatre Corp. v. Paramount Film Distributing Corp.

Earl Warren:

Mr. Nizer, you may continue your argument.

Louis Nizer:

Thank you.

When this suit was instituted, there were 13 alleged discriminations set forth in the complaint ranging from the rejection of allegedly superior offers by Viking in favor of inferior offers by competitors to the failure to screen on days requested or advertising clauses that were different from other advertising clauses but the word "split" never appeared in the complaint as a discrimination or as a charge.

There were seven pretrial conferences resulting in five pretrial orders.

Not only was there no allegation that splits were per se illegal but an affirmative order was made by the Court on consent at Record 30.

The question was whether Stanley-Warner-Goldman splits were illegal per se and it was held that they were not, it's abandoned, no longer an issue in this case haec verba.

At the trial, the plaintiff's executive realm was on the stand for 20 days.

In all of his specifications of discriminations and grievances, the word "splits" never passed his lips.

Any of the theories that we now have about -- that are now presented about this, of course, could not be cross-examined because they were never even presented.

Instead, for 42 days, 7700 pages of the record, we were involved in the trial in which on a blackboard, we compare the chief charge that superior offers by Viking were rejected in favor of inferior offers and that became a shambles, the plaintiff out of his own mouth, repeatedly said, "I take it back.

Now that I see that I'm wrong, cross it off", and we crossed off picture after picture.

And all of his other alleged discriminations had the same fate and there was nothing left since there was not even a proper of -- fact of damage.

There was nothing left but for a directed verdict at the end of 42 days of trial.

We went to the Court of Appeals.

There, for the first time, although the chief time was taken up on all these alleged discriminations, reviewing them, splits escape their anonymity and were mentioned at least as one of the ways of discrimination from which circumstantial evidence of conspiracy could be spelled out.

Judge Biggs allowed a full day of oral argument, requested cross indexes so that the Court could check every exhibit and every bit of testimony and then the Court unanimously wrote a 31 page opinion, which after dissecting the plaintiff's testimony with microscopic care, analyzing each of the distributors' conduct first separately.

Then referring to the Continental Ore doctrine by name and saying we now look upon the entire matter as an integrated whole and giving every favorable inference to the plaintiff, we find there is no evidence from which a jury could find conspiracy.

But the Court of Appeals went further.

It analyzed the new argument that splits were illegal, all the arguments made in this Court.

And they found that it was not unlawful, that splits were not unlawful and that the evidence showed no injury to the plaintiff therefrom.

Then came the petition of certiorari to this Court and for the first time that was contented that the splits are the conspiracy.

That all the other discriminations flow from it, the phrase used is syllogistically.And splits emerged as the doctrine of law upon which, indeed, if they had believed in it, they could have moved for summary judgment as a question of law instead of trying the case for 42 days without mentioning it.

And the company in this concoction in this Court are contrived theories in the brief of submarkets which do not exist in the realistic economic life of this industry, alleged monopolization of submarkets, these non-existent submarkets, monopoly becomes measured by computing theatre seats and incidentally, manipulated so that they multiply the defendants' exhibitor seats by three and divide the plaintiff's seats by three on the theory that the Viking had to enter three submarkets therefore one-third of the seats were competing in each market.

The theory that by storing up financial resources during the split, the defendant exhibitors were able to give premium offers against the Viking and other semantic and mathematical legit domain about syllogistic inevitability.

And all these, Your Honor, in this Court, without any record to support it, dismembered from all the evidence, floating in midair, detached from anything in the record.

Now, when one concocts such a verba, there are 1000 facts which rise to be dealt with.

The new theory that there's -- this is a monopoly case of the submarket runs into the fact that there was an expressed concession cited in page 5 of our brief, that this case does not involve monopoly and no charge of monopoly is made.

That position wasn't even changed in the Court of Appeals.

Section 2, the monopoly statute wasn't even cited among the statutes involved in the Court of Appeals.

And therefore, the Court of Appeals in its opinion necessarily treated with this simply as a conspiracy case.