Full opinion text
FEINBERG, District Judge. Criminal antitrust proceedings were brought in 1960 by the United States Government against electrical equipment manufacturers in the Eastern District of Pennsylvania. Thereafter, various purchasers of electrical equipment filed an unprecedented number of private antitrust actions against the manufacturers. This case is the first of those suits to come to trial in this court. It grows out of the purchase of eleven steam turbine generators in 1952 by plaintiffs Ohio Valley Electric Corporation (OVEC) and Indiana-Kentucky Electric Corporation (IKEC) from defendants General Electric Company (GE) and Westinghouse Electric Corporation (Westinghouse). Plaintiffs sue for treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15, alleging a price fixing conspiracy among GE, Westinghouse and other manufacturers in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. After extensive national and local pre-trial discovery and conferences, the non-jury trial commenced on February 16, 1965, and .ended approximately two months later. There were thirty-six witnesses, many by deposition, over 5,200 pages of transcript, and over 690 exhibits. I The Parties OVEC is an Ohio corporation owned by various investor-owned electric utility companies in the Ohio River Valley. IKEC is an Indiana corporation and a wholly-owned subsidiary of OVEC. Both plaintiffs were incorporated in 1952 to construct and operate facilities required to provide an unusually large supply of electric power to a new plant of the United States Atomic Energy Commission (AEC) near Portsmouth, Ohio. OVEC owns steam electric generating facilities in Ohio at its Kyger Creek plant, which contains five steam turbine generators known as Kyger Creek 1-5. OVEC is and has been engaged in the generation and transmission of electric energy in Ohio and the transmission of electric energy in Kentucky. IKEC owns steam electric generating facilities in Indiana at its Clifty Creek plant, which contains six steam turbine generators known as Clifty Creek 1-6. It is and has been engaged in the generation and transmission of electric energy in Indiana. The purchase of the Kyger Creek 1-5 and Clifty Creek 1-6 units gave rise to this suit. OVEC and IKEC provide power to the AEC and also to other utilities, including their sponsoring or participating companies. These companies agreed to purchase any surplus power available from the new facilities and not required by the AEC, including power made available through cancellation of the arrangements with the AEC. The utilities so agreeing, as well as those owning OVEC’s capital stock, are as follows: % Participation Name of Company Equity Power American Gas and Electric Company 37.8 Appalachian Electric Power Company 15.2 Indiana & Michigan Electric Company 7.6 Ohio Power Company 15.0 The Cincinnati Gas & Electric Company 9.0 9.0 Columbus and Southern Ohio Electric Company 4.3 4.3 The Dayton Power and Light Company 4.9 4.9 Kentucky Utilities Company 2.5 2.5 Louisville Gas and Electric Company 7.0 7.0 Ohio Edison Company 16.5 14.5 Pennsylvania Power Company 2.0 Southern Indiana Gas and Electric Company 1.5 1.5 The Toledo Edison Company 4.0 4.0 The West Penn Electric Company 12.5 Monongahela Power Company 3.5 The Potomac Edison Company 2.0 West Penn Power Company 7.0 Defendant GE is a New York corporation with its principal place of business in Schenectady, New York. At all relevant times, it manufactured and sold steam turbine generators of varying sizes. It has maintained plants for the manufacture of such units at Schenectady, New York; West Lynn, Massachusetts; and Fitchburg, Massachusetts. IKEC’s six units (Clifty Creek 1-6) and one of OVEC’s units (Kyger Creek 1) were purchased from GE. Defendant Westinghouse is a Pennsylvania corporation with its principal place of business in Pittsburgh, Pennsylvania. At all relevant times, it manufactured and sold steam turbine generators of varying sizes. It has maintained plants for the manufacture of steam turbines at Lester, Pennsylvania and Sunnyvale, California, and a plant for the manufacture of generators at East Pittsburgh, Pennsylvania. OVEC purchased four of its units (Kyger Creek 2-5) from Westinghouse. Each defendant is an inhabitant of, or is found or transacts business in, the Southern District of New York. Allis-Chalmers Manufacturing Company (Allis) was also originally named as a party defendant. However, by stipulation just prior to trial, plaintiffs dismissed the action against Allis without prejudice, but amended the complaint to allege that Allis was a co-conspirator. Allis is a Delaware corporation which, at all relevant times prior to 1963, was engaged in the manufacture and sale of steam turbine generators and maintained a plant for the manufacture of such units at West Allis, Wisconsin. At the time of the purchases sued upon, GE, Westinghouse and Allis were the three largest manufacturers and sellers of steam turbine generators in the United States. On January 1, 1963, Allis went out of the steam turbine generator business. Another co-conspirator named in the complaint was Elliott Company (Elliott), now a subsidiary of Carrier Corporation, a Delaware corporation. At all relevant times, Elliott was engaged in the manufacture of steam turbine generators. Theory of the Case Plaintiffs claim that, because of the alleged price-fixing conspiracy, they paid substantially more for the eleven steam turbine generator units purchased from defendants than they would have paid in a competitive (non-conspiratorial) market. To understand the contentions of the parties, some description of a steam turbine generator and the manner in which it is sold is necessary. A steam turbine generator unit is an assembly of a turbine and a generator used in the production or generation of electric energy on land by the use of steam. Steam turbine generators are complicated and frequently massive machines. They are made in a great variety of sizes, types and capabilities, with varying accessories and features, to perform under a number of operating conditions. For example, turbines differ according to the amount of kilowatts of electricity that can be generated, the type of fuel required, and the number of large shafts driving the generator. Specifications are detailed and extensive. The time required for manufacture of a unit is generally two to three years after date of order and sometimes even longer. Steam turbine generators manufactured by both defendants have been sold and shipped in interstate commerce throughout the United States to investor-owned electric utilities and to federal, state and local governmental agencies for use in the generation of electricity. The pricing of these machines is complicated and requires the use of price books issued by the manufacturers. These books serve both as a technical manual and as a measure for comparing prices of machines made by different companies and of different types of machines made by the same company. From such a book, a price for a basic unit can be determined, after certain specifications have been assumed; e. g., electric output required. The prices contained in the price books are known to the trade as the “book” or “list” or “published” price. Similarly, the actual sale price or price agreed to be paid at the time of order for a steam turbine unit is known as the “order price.” Plaintiffs assert that during the existence of the alleged conspiracy, sales were generally made at book prices or at prices close to the book price level, that order prices below the book level were frequently expressed as a percentage discount from the appropriate book price, or “discount off book,” and that book prices over the years were essentially the same for all three manufacturers. Plaintiffs claim that defendants conspired to establish uniform book prices and to keep order prices as close as possible to book, and that the order prices in 1952 for the eleven OVEC and IKEC units were, therefore, unlawfully fixed. Plaintiffs claim damages of $8,167,773, trebled, based upon a discount off book theory, which will be set forth in greater detail below. Plaintiffs also suggest another theory of damages. In the manufacture of steam turbines, there is substantial delay between date of order and date of delivery and installation. Accordingly, in the 1950’s, it was not uncommon for a manufacturer and a buyer to agree, as was done here, that the buyer would pay on the basis of the Price in Effect at the Time of Shipment of the unit (PETS escalation clause). This might result in substantial “escalation” of the total amount to be paid. Plaintiffs argue that the final billed price in 1954-1955 on the eleven units ordered in 1952 included an illegal overcharge attributable to escalation; that, had a truly competitive price been in effect at the time of shipment, the final billed price would have been substantially lower. This claimed overcharge because of “escalation” is $5,089,035, computed in a manner set forth in greater detail below. Defendants vigorously dispute the essentials of plaintiffs’ case; they claim that there was no conspiracy in effect at the time of plaintiffs’ purchases and that, in any event, any conspiracy had absolutely no effect on the prices plaintiffs paid. Defendants contend that with or without conspiracy these prices were the result of the economic forces at work in the market; e. g., demand, supply, cost, individual bargaining. Defendants also assert that plaintiffs cannot recover, even if they were illegally overcharged, because (1) the claims are barred by the applicable four-year statute of limitations, section 4B of the Clayton Act, 15 U.S.C. § 15b, and (2) plaintiffs suffered no legal damage because they were, or will be, able to “pass-on” the assumed overcharges to others, principally the AEC. Before considering these and other key issues in detail, a description of the actual transactions in suit will be helpful. Transactions in Suit In the second half of 1951, Philip Sporn, then chief executive officer of the American Gas and Electric utility system, became interested in the plans of the AEC to locate a new power station in the Ohio Valley. In early 1952, Sporn and other Ohio Valley utility company executives met with representatives of the AEC to obtain information and to discuss problems the utilities would face in supplying power to the new plant. The utilities were informed that 1,800,000 kilowatts of electrical demand with an annual consumption of 15 billion kilowatt hours would be required. This was then twenty-five per cent more than the annual consumption of electric power by the eight million residents of New York City. The entire operation had to be fully effective by mid-1956. Soon after this meeting with the AEC, the participating utilities agreed to organize separate corporate entities to erect two plants to supply the energy required. Sporn was designated to negotiate the necessary contracts with the AEC and the manufacturers of steam turbines. OVEC and IKEC were incorporated on October 1, 1952; the United States, on October 15, 1952, entered into a contract with OVEC for the supply of electricity to the AEC. Early in 1952, before the formal creation of OVEC and IKEC, Sporn began negotiations with GE for the purchase of steam turbine generators. In March 1952, it was decided that the machines were to be cross-compound units (instead of tandem-compound) of 2,000 pounds pressure, 1050° initial steam and reheat temperature, with a maximum output rating of 217,260 kilowatts. At that time, the contemplated machines represented the best of the industry’s technology and were among the largest and most efficient units ever ordered. Moreover, the order for eleven units totalling over 2,350,000 kilowatts was a huge one, comprising over twenty-two per cent of total kilowatt generating capacity ordered in 1952 by customers of the manufacturers. GE representatives quoted a handbook price for these units, which they characterized as two per cent too high due to an error in calculation. As a result of bargaining, GE also offered an additional 2.5 per cent discount for a total of 4.5 per cent off the published handbook price. Further discussions between the parties resulted in GE’s offering an additional 3.1 per cent more off handbook price if it were given an order for eight units. This was later agreed to apply to seven units. Despite strenuous efforts by Sporn, GE refused to reduce its price any further, even if it received the entire order of eleven units. GE was principally represented at the various bargaining sessions by G. B. Warren, General Manager, Turbine Division, and Robert S. Neblett, Manager of Marketing, Turbine Division. Sporn and S. N. Fíala, AEP Chief Engineer, were the chief representatives of OVEC and IKEC. Sporn intended, if he could, to split the units to be purchased between GE and Westinghouse, both for reasons of national defense and because members of the OVEC and IKEC boards of directors desired it. In October 1952, GE was given clearance on six units to be supplied to the Clifty Creek plant of IKEC. By this time, Sporn and GE had agreed upon a unit price of $4,643,255. An additional amount for special accessories was later agreed upon. Meanwhile, Sporn had been sounding out Westinghouse and, in November 1952, received a Westinghouse proposed price for a similar unit about $200,000 higher than the GE unit price. Thereafter, a series of discussions ensued between Sporn and various Westinghouse officials during which Sporn attempted to play off GE against Westinghouse to get the lowest price he could. Sporn; on November 29, 1952, finally persuaded Westinghouse to cut its price to $4,675,000 per unit for four machines which were to be supplied to the Kyger Creek plant of OVEC. The price for special accessories was later agreed upon. The eleventh unit (the fifth for the Kyger Creek plant) was purchased from GE. The principal negotiators for Westinghouse were Gwilym A. Price, Chief Executive Officer, and John K. Hodnette, Executive Vice President; Sporn and Fiala again represented plaintiffs. The parties have stipulated that what they call the final order price for the six GE machines supplied to IKEC and the one to OYEC was $4,718,255 per unit and that the applicable GE book price was $5,308,000. These stipulated figures produce a discount off book at which the GE units were purchased of 11.1 per cent. Final order price is defined as the final price, excluding escalation for the base unit, but including standard accessories, supervision of erection and special accessories. The same stipulation provides that the final order price of the four Westinghouse machines supplied to OVEC was $4,750,000 per unit and that the applicable Westinghouse book price was $5,395,615. Similarly, the discount off book at which these units were purchased was 11.97 per cent. These final order price figures for GE and Westinghouse include $75,000 per unit as the agreed-to price for special accessories. In each case, the price for this item was a reduction from the original figure quoted by the manufacturers. The contracts with GE and Westinghouse both contained the PETS escalation clause,- subjecting the order price of the steam turbine generators to adjustment up to a maximum of twenty per cent, determined by application of the seller’s published price in effect at the time of actual shipment. At a meeting in late 1954, when the first two GE units were about ready for shipment, GE and Sporn agreed on a final billed price on the first five GE units of $5,200,000. This represented about a ten per cent escalation upward from the final order price and was based upon the 1953 GE book price. In January 1955, the parties similarly agreed upon a final billed price of $5,200,000 for the remaining two GE machines. The amount of escalation applicable to the base unit, standard accessories, supervision of erection and special accessories, determined by subtracting the final order price from the final billed price paid to GE was as follows: $481,745 on each of Clifty Creek units 1, 4-6 (sold to IKEC) and Kyger Creek 1 (sold to OVEC), and $371,658 and $388,651, respectively, on Clifty Creek units 2 and 3 (sold to IK EC). The total final order price for the units purchased from GE was $33,-027,785, and the total final price after escalation was $36,196,819. These units were actually shipped to plaintiffs over a period from November 1954 to January 1956. In January 1955, Westinghouse and Sporn agreed that the final billed price for each of the four Westinghouse units would be $5,230,000. This agreement was based upon an increase in the Westinghouse book price in April 1953. The amount of escalation on each unit was $480,000, similarly about ten per cent of the final order price. The total order price of the Westinghouse units was $19,-000,000 and the final billed price after escalation was $20,920,000. These units were actually shipped by Westinghouse to OVEC from April to October 1955. Defendants contend that Sporn was an excellent negotiator who achieved remarkable results in the price negotiations. Thus, in addition to the concessions already referred to made in the course of bargaining, defendants point to the fact that the price for spare parts was negotiated downward by over $630,000 with GE and over $800,000 with Westinghouse, that the escalation imposed was less than it could have been under the formula in effect, and that various charges were absorbed by the manufacturers which, arguably, they could have refused to pay. There is no doubt that defendants are correct in characterizing Sporn as an unusually able negotiator. The real question is whether the negotiations occurred within a framework of conspiratorial activity which so pervaded the basic price structure that no negotiator, even one with the herculean abilities attributed by defendants to Sporn, could press beyond certain limits. This, of course, raises the key issues of (1) was there a conspiracy to fix prices and (2) did this conspiracy affect the prices of the OVEC and IKEC units and, if so, to what extent ? II Conspiracy On the first issue, plaintiffs have clearly proved the existence of a price-fixing conspiracy in 1952, the time of the purchases in suit. There is testimony that specific meetings among defendants and other competitors began as early as 1939. The record shows that Neblett of GE met with representatives of Westinghouse in that year to discuss a steam turbine job lost by GE as a result of a large Westinghouse price cut. At that time, Erben, GE’s Manager of Apparatus Division, who “wasn’t very happy” over the price cut, indicated to his competitors his preference for established prices in the industry. Presumably toward this end, Neblett met with Westinghouse employees in 1940, “to again explain” GE’s price sheets, a practice which, thereafter, was habitually followed by some GE employees whenever a competitor made such a request. Competitors’ meetings were held frequently during the ensuing decade. Specifically, Ganschird, Westinghouse Large Turbine Section Sales Manager, was placed at competitors’ meetings in the 1940’s; Whitescarver of GE testified to meetings from 1941 through 1957 and could not be sure whether there was any one year during this period in which he did not meet with competitors; Mauntel, Westinghouse Sales Manager, Steam Division, recalled meetings in 1948; Sellers, then Elliott’s Turbine Generator Department Sales Manager, testified to meetings commencing in 1945, perhaps a dozen a year in some years thereafter. It is fair to say, as a general proposition, that the topics discussed at these meetings were not properly the subjects of communication among competitors. Significantly, in the years since 1946, the number of large steam turbine generator units sold annually was never so high that those in the business could not easily keep track of individual transactions; the total fluctuated from about a low of twelve in 1949 to 159 in 1950. For present purposes, an early significant meeting took place in 1950 in New York City. In the fall of that year, Neblett of GE met with Mauntel and Eikner of Westinghouse and Miers of Allis after GE had just issued a new price book which made elaborate changes in the old book and included for the first time units similar in many respects to the units plaintiffs ultimately purchásed. Neblett explained these changes to the other competitors, at their reqüest, at a time when it is not clear whether Westinghouse and Allis had issued revised price books of their own, although it is clear that by the end of 1950 the price books of the three companies were highly similar and incorporated a general ten per cent increase. For all practical purposes, these pric ebooks substantially reflected the price levels in effect during the OVEC negotiations for an OVECtype unit and were consulted when pricing these machines. There is also some specific evidence of a meeting or meetings of competitors in 1952 It is instructive to pause at this point to consider the stipulated evidence of uniform book price movements during the period from 1948 to 1952. Effective December 27, 1948, GE increased handbook prices approximately ten per cent for turbines rated 20,000 kilowatts and above. Westinghouse, shortly thereafter, adopted a similar book price increase effective December 30, 1948; Allis followed suit with a book price increase effective January 3, 1949. In the fall of 1950, GE, Westinghouse and Allis all announced another ten per cent increase on units rated 20,000 kilowatts and above; the GE increase was effective on October 16, 1950; the Westinghouse and Allis increases were effective October 21, 1950 and October 30, 1950, respectively. Despite different authorizations from the Office of Price Stabilization (“OPS”), the next series of book price changes resulted in almost identical increases after a short period when the prices of the three major producers varied. The GE price increases effective December 21, 1951, averaged 3.37 per cent for turbines rated at 20,000 kilowatts and above and a 4.9 per cent increase for smaller units. The Westinghouse increases effective December 20, 1951 were similar. The increases for the larger units were less than the amount authorized by OPS. Allis initially increased all its prices by 10.52 per cent — the full amount of its OPS authorization — effective January 10, 1952. However, on March 21, 1952, Allis withdrew the 10.52 per cent price increase and announced a new price- increase to conform with those previously announced by GE and Westinghouse— 3.37 per cent for units larger than 20,000 kilowatts and 4.9 per cent on smaller units. Plaintiffs have not merely offered stipulated proof of identical book price movements during 1948-1952. They have also demonstrated, by reliable statistical evidence, that during this period sales of large steam turbine generators by all the competitors were made within the same low range of discounts off highly similar book prices. If the foregoing were the sole evidence of conspiracy in this record, I would conclude, from these indications of price discussions among competitors followed by uniform price movements, that prior to and during 1952 defendants violated the Sherman Act. E. g., (all involving criminal convictions and, therefore, a greater burden of proof than applicable here) Pittsburgh Plate Glass Co. v. United States, 260 F.2d 397, 400-401 (4th Cir. 1958), aff’d on other grounds, 360 U.S. 395,79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); Morton Salt Co. v. United States, 235 F.2d 573 (10th Cir. 1956); C-O-Two Fire Equip. Co. v. United States, 197 F.2d. 489 (9th Cir.), cert. denied, 344 U.S. 892, 73 S.Ct. 211, 97 L.Ed. 690 (1952); see Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) (“While * * * [there] * * * was only [one] witness who characterized the outcome of the meetings as an ‘agreement’ on prices, no witness negatived this conclusion and the identical price lists that followed the meeting * * * were little less than proof positive.”). Additionally, there is an overwhelming amount of detailed evidence of meetings and discussions on a regular basis from this period until 1959, and there are strong indications that these later meetings typified the earlier ones. The following subjects discussed at post-1952 meetings were identified as being the same as those discussed in the earlier period: prices; “position” (agreement as to who would present the lowest bid); terms and conditions of sale; present and future book prices; past and future bids; escalation and progress payments ; discounts off book prices and maintenance and stabilization of order prices and market levels. Moreover, the participants in these later meetings were either the original conspirators or their corporate successors. For example, Neblett of GE, who was present at the early 1939 and 1940 meetings, and out of the turbine business for a while, continued to participate again until at least late 1955. It should be noted that Neblett was one of the chief negotiators for GE on the very units in suit and the GE representative who, although severely pressed, refused to lower GE’s price to Sporn even if GE received all eleven units instead of just seven. Neblett, who was Peters’s superior, introduced Peters into the conspiracy in the early 1950’s. When McLane replaced Neblett as GE’s Acting Manager of Marketing Large Steam Turbine Generator Department, Peters brought him to competitors’ meetings. Similarly, in July 1957, McLane introduced his replacement, Lilly, to the conspirators. Mauntel’s participation on behalf of Westinghouse, which began at least in 1948, lasted until 1959; Whites-carver of GE continually attended meetings with competitors from 1941 through 1957; Miers of Allis was placed at competitors’ meetings from 1950 through 1958. Notwithstanding this evidence, defendants seek to fragment the conspiracy into pre-1954 and post-1954 portions contending that even if the evidence establishes collusion in the latter period, plaintiffs have not proved conspiracy at the time of their purchases. Although this argument raises certain evidentiary problems (discussed below) it otherwise lacks significance. One cannot read the deposition testimony by the conspirators about their activities until 1959 without inferring that this was a single conspiracy in effect for many years before and after 1954 (the evidentiary cutoff period urged by defendants) or 1952 (the date of plaintiffs’ purchases). To a large extent, defendants’ argument rests on plaintiffs’ failure to present as microcosmic an analysis of the earlier years as they did for the ensuing years. However, the details of the conspiracy, as it existed after 1952, so dovetail with what we know of the pre-1952 activities that it is most logical to infer that only the unavailability of many of the early conspirators and the faulty recollections of those who testified prevented plaintiffs from painting a similarly detailed picture about the previous years. Equally unimpressive is defendants’ contention that evidence of meetings involving employees connected with pricing of medium or small, rather than large, turbines is insignificant. The record demonstrates, for example, that representatives of these different sizes of turbines frequently participated in the same meeting; more importantly, the high ranking conspirators — e. g., Warren, Ginn, Eikner, Miers —were, in their own companies, responsible for varying sizes of turbines. The conspiracy cannot, therefore, be fragmented by kilowatts, and this evidence is probative of a conspiracy affecting large turbines. The following is an outline of the workings of the conspiracy after 1952 until its end in 1959. In early 1953, GE published a new price book which raised prices by ten per cent and introduced complex adjustments in pricing methods. Thereafter, Neblett and Peters of GE met with Mauntel and Eikner of Westinghouse and Miers of Allis to explain the new book. Although defendants minimize the significance of this meeting by characterizing it merely as an explanation of certain handbook terminology, Eikner testified that the information was necessary to enable Westinghouse to “determine the same book prices that GE would determine from that price book.” The next significant meeting took place in New York City in early 1955. In the latter part of 1954, turbine generator sales had been made at increasingly large discounts off book — during what has been referred to in this case as the “white sale.” Neblett explained how this meeting among competitors brought about increased prices: It was very simple. The meeting was arranged and Mr. Warren [GE General Manager, Turbine Division] made the statement to Mr. Mauntel and everybody present that we were going, or rather we had gone and were going to maintain prices very close to the handbook. When asked how representatives of the other companies reacted to this announcement of GE, Neblett replied: “To the best of my knowledge, * * * they said ‘Thank God’.” There were other competitors’ meetings in this year at which time the competitors discussed bids on upcoming TVA jobs. The anti-competitive effect of such prebid discussion is indicated by Eikner’s testimony, even though couched in competitive terms, about why Westinghouse wanted these meetings: We were very much interested in trying to get the order for those machines. There were, as I recall, some questions in the interpretation of the specifications. We felt we could improve our chances of being competitive on the job if we could review book prices with the General Electric Company. On one occasion Neblett told his competitors that GE intended to bid about two per cent off book on the TVA-Johnson-ville job. It was agreed that GE would get “position” on this job and, in fact, GE eventually got the order. There were several meetings during 1956 on the subject of price increases. In March 1956, Peters and Neblett of GE met with Mauntel and Eikner of Westinghouse and representatives of Allis to debate the amount of a proposed price increase — Neblett of GE favoring a ten per cent increase, Westinghouse favoring a rise of only five per cent. Thereafter, GE did institute a ten per cent increase in April 1956, and Westinghouse and Allis did likewise immediately thereafter. There were many meetings during 1957, and the record discloses a great deal of discussion that year of individual jobs; there was also some discussion about standardizing price books in terms of equalizing cost to the customer of large and small turbines. Meetings in 1958 and early 1959 followed a similar pattern with general price levels and individual transactions the subjects of discussion. As in earlier years, these meetings and price discussions were accompanied by uniform price book movements. Effective March 30, 1953, GE increased handbook prices approximately ten per cent. Westinghouse put a similar increase into effect on April 10, 1953. Allis, in April 1953, instituted what it thought was the same increase, but later realized that its flat ten per cent price raise was not the same as its competitors’ selective increases. So, on June 30, 1953, Allis made effective new price sheets sent out August 25, 1953, to adjust its prices in the same manner and amounts specified in the GE price sheets. Effective January 3, 1955, GE adjusted handbook prices on large steam turbine generators in varying amounts averaging approximately two per cent. Following this GE book price change, Westinghouse made adjustments in book prices for various units effective February 10, 1955, consisting of increases and decreases of approximately two per cent or less; Allis did the same effective May 15, 1955. This pattern continued until the conspiracy ended. It is sufficient to indicate that on at least seven later occasions, GE book price changes were closely followed by identical or highly similar changes in the price books of Westinghouse and Allis. The record is replete with admissions by the conspirators that their purpose in going to competitors’ meetings was to stabilize prices as close as feasible to the published book prices. For example, Jenkins of Westinghouse testified: “That was what I went to every meeting for * * * to try to bring order prices closer to book prices. I tried to sell turbines the best I could.” The testimony of Peters of GE, covering meetings from 1956 on, is equally illustrative: Q: [I]n substance, in principle, your objective was to keep order prices as close to book prices as you could? A: That’s true. Q: That was Westinghouse’s position also? A: What do you mean that was Westinghouse’s position? Q: That you should quote your order prices as close to book prices as possible. A: Yes, we all believed that we should quote as close to book. The Court: That idea was discussed and expressed at your meeting? The witness: That’s correct. Finally, the Allis viewpoint as expressed by J. W. McMullen, Vice President and General Manager, Power Equipment Division : Q: Wasn’t your purpose in participating in these competitors’ meetings to stabilize prices and to try to get market prices up to book? A: I would say that practically all of the meetings that I ever attended, so-called competitors’ meetings, were along those lines. The “going level” of general market prices was established at three to five per cent off the book price, and one conspirator characterized larger discounts as “unhealthy” or a deterioration of prices in the market place. Although there were general understandings that prices would be kept within the three to five per cent range according to the “rules being played,” there are indications that GE, the company with the greater share of the market, occasionally had to resort to veiled threats of large discounts in order to keep the other conspirators in line. For example, McMullen, at his deposition, stated that he had “no reason to doubt the accuracy” of his grand jury testimony: [Historically General Electric people used to make statements to the effect that, well, if you are not interested in quoting book prices or establish [ing] book prices, the whole market would be lowered to some level that was being established by someone else. * * * I think Mr. Ginn mentioned that their company would either have to bring the level down to within 15 or 20 per cent if people did not adhere to the established market prices. On other occasions, the conspirators discussed specific jobs, frequently in terms of certain percentages off book. At these discussions, the competitors decided which of them was to get “position.” In almost every instance, the person with position — the one offering the lowest price — agreed to bid at a price very close to book. In one case, designation of position was made by a drawing out of a hat, and the award was made to a manufacturer not even present. The relationship between book and order prices during and after the conspiracy supports the view that minimization of discounts was an important objective of the conspiracy. The relationship between book and order prices will be discussed in further detail below (Part III of this opinion). For present purposes, it is sufficient to record that from 1948 until the end of 1954, on a quarterly basis, the average order prices of steam turbine generators in excess of 100,000 kilowatts were rarely at discounts off book in excess of five per cent. At the end of 1954 and in early 1955, the so-called “white sale” occurred and the average discount doubled. A meeting was held to reestablish adherence to book prices. Thereafter, the drop in order prices quickly halted; within a year the discount off book was again just about five per cent. Defendants make the argument that adherence of book to order prices could not have been the object of the conspiracy because those who attended competitors’ meetings lacked pricing authority. The record, however, is to the contrary, and shows, for example,' that during all relevant periods, Peters, Neblett, Whitescarver, Mauntel, Sellers and other major conspirators had pricing responsibilities. Moreover, the lesser conspiratorial lights represented those who had final pricing authority. After exposure of the conspiracy, those responsible for establishing book price considered these post-conspiratorial prices to be “realistic,” and GE salesmen were instructed to bid at book or very close to book. Nevertheless, with competition reinstated, the order prices for large steam turbine generators after the end of the conspiracy reflected average discounts up to five times as great as those prevailing in the earlier period. Significantly, from 1950 to 1953, Allis’s share of the market declined from seven per cent to zero, but it did not reduce book prices or generally offer large discounts off book; yet when collusion ceased and Allis’s share of the market was again about seven per cent, it increased discounts off book drastically to take business away from its competitors. Thus, the testimony as to meetings and the behavior of prices since 1948 inescapably lead to the conclusion that a conspiracy to set and maintain steam turbine generator prices at a high level existed throughout the period up to 1959, and specifically in 1952. It is interesting that the testimony of defendants’ own economic expert, Dr. Morris A. Adelman, supports this conclusion. In response to questions by the court, Dr. Adelman stated very definitely that the competitive price of an OVEC-type unit from 1952-1954 should have decreased by over $600,000. When it was called to his attention that industry prices during that period actually went up, Dr. Adel-man answered that for this period “I would have to presume that I couldn’t explain it or I would have to conclude that I couldn’t explain that movement by competitive supply and demand.” Moreover, during the course of explaining other calculations, Dr. Adelman testified that he eliminated certain data about prices from 1957-1959. He thus explained his reason for doing so: I think the rest of the prices are explained approximately by competitive supply and demand. I think this study of prices is not to be so explained. On cross-examination, Dr. Adelman agreed this data would be “compatible” with conspiratorial activity. Although not necessary to the conclusion of collusion, it should be noted that, in addition to the previously outlined evidence, the record contains various admissions by the defendants that their employees had participated in price fixing activities. For example, in answers to interrogatories filed in this court, GE admitted that Whitescarver, Peters, Lilly, Lawson and McLane met with competitors at various times from 1957-1959. In a similar document, Westinghouse admitted similar participation by Eikner, Morgan and Jenkins. Defendants contend that the negotiations leading up to the transactions in suit effectively refute the existence of conspiracy. They argue that if, as plaintiffs contend, the conspiracy was effective, Sporn, notwithstanding his skill as a negotiator, would not have been able to obtain price concessions by playing one company off against the other. However, Spom’s ability to obtain concessions off a list price is in no way inconsistent with a conclusion that the list prices were conspiratorially established. As the court in Plymouth Dealers’ Ass’n v. United States, 279 F.2d 128, 132 (9th Cir. 1960) recognized, this activity alone is prohibited. The competition between the Plymouth dealers and the fact that the dealers used the fixed uniform list price in most instances only as a starting point, is of no consequence. It was an agreed starting point; it had been agreed upon between competitors; it was in some instances in the record respected and followed * * *; it had to do with, and had its effect upon, price. The fact that there existed competition of other kinds between the various Plymouth dealers, or that they cut prices in bidding against each other, is irrelevant. The spirit of United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222, 60 S. Ct. 811, 844, 84 L.Ed. 1129 (1940) is in accord, for, as the Supreme Court stated, “prices are fixed * * * if the range within which * * * sales will be made is agreed upon * * *.” Finally, certain portions of the negotiations in fact lead to inferences that GE and Westinghouse did engage in collusion. It will be recalled, for example, that GE, after having given a price per unit based on an order of six units, refused to consider a lower price per unit even on the basis of an order for eleven units, even though GE was “in a position to produce all eleven machines.” This intransigent position, articulated for GE by Neblett, an early and then active conspirator, might' signal the presence of anti-competitive influences in the negotiations. To recapitulate, plaintiffs have proved that employees of GE, Westinghouse, Allis and others who had pricing responsibility met from 1939 until 1959 to discuss the large steam turbine generator business in a manner completely antithetic to effective competition. There is no direct evidence that the OVEC and IKEC transactions were discussed among competitors. Nevertheless, among other things, the nature and times of the competitors’ meetings, the parties involved, the subjects discussed, the uniform pricing policies evident throughout the period up to 1959, and the sharp increase in discounts off book thereafter all lead to the conclusion that defendants conspired in the early 1950’s to affect the level of prices for all large steam turbine generators. Specifically, the purpose of the conspiracy was to establish uniform book prices and to maintain order prices as close as possible to book. Thus, the evidence clearly establishes the existence, among defendants and others, of a conspiracy “in restraint of trade” within the meaning of section 1 of the Sherman Act prior to, during and after the period of the purchases in suit. Fraudulent Concealment Defendants assert that under section 4B of the Clayton Act, 15 U.S.C. § 15b, plaintiffs’ claims of overcharge in 1952 on the transactions in suit were barred by the end of 1956 unless prior to that time defendants had fraudulently concealed from plaintiffs the existence of the conspiracy. That such concealment would toll the statute was established in this circuit by Atlantic City Elec. Co. v. General Elec. Co., 312 F.2d 236 (2d Cir. 1962), cert, denied, 373 U.S. 909, 83 S.Ct. 1298, 10 L.Ed.2d 411 (1963). Every other circuit court that has considered the problem has reached the same conclusion. Defendants argue, however, that plaintiffs have failed to establish fraudulent concealment. Examination of the record discloses abundant proof that defendants affirmatively and deliberately concealed the existence of the conspiracy. The conspirators concealed their activities from their customers, the government, and officers and employees of defendants who did not participate. To achieve and preserve secrecy, the conspirators falsified their expense accounts to hide the true nature and purpose of their meetings and trips, made telephone calls at night from pay telephones rather than from their offices, destroyed notes taken at conspiratorial meetings, and instructed newcomers to the conspiracy not to divulge its existence. The effectiveness of this concealment was admitted by GE’s Chief Executive Officer in a speech at the University of Chicago in 1961, as follows: The members of this conspiracy went to great lengths to conceal their activities from those charged with assuring compliance with the Company’s Directive Policy. The concealment was highly effective, much more so than would be supposed from the comic-opera description in some publications. It took eighteen months of government investigation, including access to competitive information, and more than 500 witnesses appearing before four separate Grand Juries to uncover the facts. Certainly, there is no excuse for such deception. Defendants do not claim that'plaintiffs knew or should have known of the conspiracy ; nor, apparently, do they dispute that the affirmative acts of concealment referred to above occurred. Defendants do claim that “the acts relied on do not constitute a fraud as to plaintiffs. * * * [N]o such acts were related to plaintiffs.” Therefore, according to defendants, there was present here no more than “mere silence” on the part of defendants, see Gaetzi v. Carling Brewing Co., 205 F.Supp. 615, 619-621 (E.D.Mich.1962), which is not sufficient to toll the statute. Assuming that plaintiffs must prove more than “mere silence” by defendants — an assumption which in an antitrust conspiracy case may not be correct — the acts proved satisfy this requirement. Defendants insist on proof of acts “related to plaintiffs,” arguing that: Plaintiffs’ knowledge or understanding of any conspiracy would not have been aided if all names had been noted on expense accounts, if telephone calls had been made during the day rather than at night or from office telephones rather than from home or pay telephones, or if notes utilized at competitors’ meetings had been retained and even memorialized in corporate files. However, it is quite possible that if the conspirators had not engaged in these acts and had not instructed newcomers to keep the conspiracy secret plaintiffs’ knowledge of the conspiracy might have been aided. In some of the cases cited by defendants, there is language that something akin to direct misrepresentation to a plaintiff is necessary to toll the statute, and it may be that defendants are urging that position as well. However, such restrictive interpretations of the doctrine of fraudulent concealment are hardly required by the cases, and negate the policy behind the doctrine. I conclude that, at the very least, acts concealing the conspiracy by participants therein toll the statute, a position in accord with Gaetzi, one of the cases principally relied upon by defendants. Accordingly, I find that defendants fraudulently concealed from plaintiffs the existence of the conspiracy so that section 4B of the Clayton Act was tolled. Ill Suit may be brought under section 4 of the Clayton Act, 15 U.S.C. § 15 by “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws * * The parties agree that, in order to recover here, plaintiffs must do more than prove violation of the antitrust laws by defendants. They must also prove that they have been “injured in * * * [their] business or property” and the extent of such injury, if any. Defendants argue that (1) plaintiffs have not proved that there were overcharges on the OVEC and IKEC units and, (2) even if there were, plaintiffs sustained no damages because the overcharges were, or will be, “passed-on” to others, principally the AEC. Defendants stress the distinction between “impact” and “damages” in an antitrust case, characterizing the former as the fact of damage and the latter as the amount. Defendants argue that the burden of proof as to impact is “more stringent” than as to damages, see Flintkote Co. v. Lysfjord, 246 F.2d 368, 392 (9th Cir.), cert, denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957), and has not been satisfied in this case. Whatever consequences may flow from this distinction between impact and damages in other antitrust situations, the issues are essentially the same in a price fixing case; the question is to what extent, if any, has a purchaser paid more for a product than he would have paid had there been no conspiracy. In Chattanooga Foundry and Pipe Works v. City of Atlanta, 203 U.S. 390, 396, 27 S.Ct. 65, 66, 51 L.Ed. 241 (1906), the Supreme Court (per Holmes, J.) stated: [Plaintiff] was injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property. In other words, in a price fixing case, impact and damages are coextensive; the overcharge constitutes the plaintiff’s» injury (impact) as well as the measure of his damage (damages) and is the difference between the price actually paid and the price he would have paid absent the conspiracy. While plaintiffs do not explicitly address themselves to defendants’ argument that there is a greater burden in proving “impact,” they say that the distinction in this case is meaningless. Plaintiffs assert that their burden is not to prove the extent of pecuniary loss to a certainty but only to introduce evidence permitting the trier of fact to estimate the damages as a matter of just and reasonable inference. They cite Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563-565, 51 S. Ct. 248, 250-251, 75 L.Ed. 544 (1931), where the Supreme Court stated that the basis for this rule as to burden of proof is the principle that no one may profit from his own wrong: Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approxi.mate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise. * * * ****** “To deny the injured party the right to recover any actual damages in such cases, because they are of a nature which cannot be thus certainly measured, would be to enable parties to profit by, and speculate upon, their own wrongs, encourage violence and invite depredation. Such is not, and cannot be the law, though cases may be found where courts have laid down artificial and arbitrary rules which have produced such a result.” * * * * * * “ * * * There is no sound reason in such a case, as there may be, to some extent, in actions upon contract, for throwing any part of the loss upon the injured party, which the jury believe from the evidence he has sustained; though the precise amount cannot be ascertained by a fixed rule, but must be matter of opinion and probable estimate. And the adoption of any arbitrary rule in such a ease, which will relieve the wrongdoer from any part of the damages, and throw the loss upon the injured party, would be little less than legalized robbery. “Whatever of uncertainty there may be in this mode of estimating damages, is an uncertainty caused by the defendant’s own wrongful act; and justice and sound public policy alike require that he should bear the risk of the uncertainty thus produced. * * * ” (Emphasis by the Court.) Similarly, in Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-265, 66 S.Ct. 574, 579-580, 90 L.Ed. 652 (1946), the Court stated: In such a case, even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based' on speculation or guesswork. But the jury may make a just and reasonable estimate of the ■ damage based on relevant data, and render its verdict accordingly. In such circumstances “juries are allowed to act upon probable and inferential, as well as direct and positive proof,” * * * Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery. The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. * * * See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684 (1927). Characterizing this as a “loose standard of proof,” defendants argue that it can be applied only after the fact of damages has been independently established, which they claim was done in each of the cited cases. Whether on the facts of this case this battle really amounts to anything need not be decided. Under the “more stringent” test of impact urged by defendants, plaintiffs “must establish with ‘reasonable probability’ the existence of some causal connection between defendants’ alleged wrongful act and plaintiffs’ injury.” Under this test, plaintiffs have clearly met their burden so that further discussion of the burden of proof standard is unprofitable. Plaintiffs’ Discount Off Booh Theory The core of plaintiffs’ case is a comparison of discounts off book for steam turbine generators in the period prior to mid-1959, when the conspiracy terminated, with the April 1961 to December 1963 period, when prices had fairly well stabilized after the shock of exposure of the conspiracy. Plaintiffs’ theory breaks down into four propositions: (1) the book prices in the periods being compared served the same function and are therefore properly comparable; (2) while the conspiracy was in effect, discounts from book price were small; (3) after its end, discounts were large as order prices sagged precipitously away from book; and (4) the measure of the conspiracy’s effect, therefore, is the large gap between order and book prices after the conspiracy was uncovered as contrasted with the small gap which previously existed. Plaintiffs’ proof as to activity of both book and order prices was introduced principally through Dr. John M. Firestone, a statistician who studied price data in the relevant periods. As to proposition (1), it is plaintiffs’ contention that book prices both during the conspiracy and during the 1961-1963 reference period were intended to be prices actually realizable in the market place. Defendants contest this and argue that whatever meaning book prices had in a period of rising prices, such as 1952-1954, they had a completely different significance when prices were falling post-1959. They claim that in the earlier period a book price was meant to be an offer to sell and generally a realistic appraisal of the market level at which a transaction might ultimately be consummated. On the other hand, according to defendants, in the 1961-1963 reference period used by plaintiffs, both manufacturer and buyer knew that book prices were not designed to reflect a realistic appraisal of what a unit was worth. The record, however, does not support defendants. When defendants dropped book prices in the post-1959 period and issued new book prices in October 1959 and in March 1961, they regarded the new quotations as realistic anticipated sales prices, as they had regarded the earlier price books. Thus, in February 1961, shortly before the March increase, GE’s pricing personnel for large steam turbine generators decided that “new quotations would be made at book price and prices would not be negotiated below this level.” This conception of book price did not differ from that evidenced at a GE marketing managers’ meeting in July 1953, about which Peters testified: Q: In paragraph 4 of PX 316 you refer to the following conclusion at the meeting, “Realistic handbook prices should be established for all products sold to the utilities market and the market prices should be reasonably close to the published handbook price levels.” Am I correct that by “realistic handbook prices” you meant handbook prices that could actually be obtained on products sold? A: That is correct. The handbook prices should be close to the market prices at that time. Sales under the July 1959 book reveal both that GE thought that book “realistic” and that competitors for the first time in years were providing surprises. For example, in two bids placed under that book GE bid book price and two per cent off book, and Westinghouse bid thirteen per cent and fifteen per cent off book, respectively; Westinghouse was awarded both jobs. It is true that the price book changes announced by defendants in 1963 represented a change in policy in the use of these books, since they were accompanied by an expressed intention to quote discounts of twenty-four per cent off book. This clearly negates any characterization of this later book price as “realistic.” It is for this reason, among others, that plaintiffs chose for comparison purposes the price book in effect commencing in the spring of 1961. Plaintiffs are comparing this book with the 1952 book to establish damages. Since these books served the same function, defendants’ objections to this comparison is unsound. The record supports plaintiffs’ second proposition. In the period from 1948 to mid-1959, the book prices of GE, Westinghouse and Allis for units of ten megawatts and over sold to utilities and governmental agencies (“all units”) rose steadily and, except for minor variations, in approximately the same amounts. In the same period, the average discount off book given to buyers for all units was generally small. The average discount for all units from the first quarter of 1949 to the second quarter of 1959 was less than five per cent, and the greatest average discount for any quarter from 1948 to the first quarter of 1959 for all units was 10.3 per cent during the “white sale” in the first quarter of 1955. In the years 1952 and 1953 particularly, discount off book averaged less than five per cent. Therefore, in the period when the conspiracy was in operation, average order prices on units sold hovered close to book, and this was also true of cross-compound units (the type here involved), although the sales of these, much fewer in number, were not as close to book as the others. The record is overwhelming that this result was not achieved by chance, since a primary aim of the conspiracy was to keep order prices as close as possible to book. Therefore, plaintiffs’ second proposition —that order prices stayed remarkably close to book price during the conspiracy —is borne out by the evidence. As to proposition (3), in the period after July 1959, book and order prices both began a steady decline. In July 1959, each manufacturer reduced its book price, and these book prices remained in effect until October of that year. At that point, the manufacturers lowered their book prices an average of five per cent. These book prices continued until 1961. In March 1961, GE reduced its book price by 12.5 per cent and Westinghouse did the same in April. In May 1963, GE substantially revised its handbook prices and announced a new price policy under which GE would quote twenty-four per cent off the new handbook prices to all customers. Westinghouse did the same in December 1963. Although book prices declined steadily in the post-1959 period, order prices declined even more, and the level of the market in terms of discount off book dropped sharply. Thus, from a range of up to 10.3 per cent in the pre1959 period, average discounts by quarter for all units in the post-1959 years went as high as 36.5 per cent in the first quarter of 1961. The average discount off book for the period from July 1959 to December 1963 was 26.9 per cent. During the period between 1959 to 1963, inclusive, the average discount, respectively, was 15.2 per cent in the third and fourth quarters of 1959, 25.1 per cent in 1960, and 30.3 per cent, 29.4 per cent, and 28.9 per cent in succeeding years. There is no doubt t