Full opinion text
MEMORANDUM DECISION (§5 [b], Clayton Act) LARSON, District Judge. In these consolidated treble damage antitrust actions this Court’s Pretrial Order of November 23, 1965, directed the parties to brief and argue several questions concerning the application of § 5(b) of the Clayton Act. Plaintiffs herein include the States of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri and Wisconsin and various governmental units within these States, and in the Milwaukee class action governmental units from other States. Defendants are companies engaged in some aspect of the salt industry. They are American, Barton, Carey, Cargill, Cargo Carriers, Cutler-Magner, Diamond Crystal, Hardy, International and Morton. These actions stem from criminal and civil antitrust proceedings by the United States against Carey, Diamond, International, and Morton Salt Companies. The Government action was based on an alleged conspiracy among the four named defendants, with other alleged coconspira-tors, to fix prices of rock salt sold to various State and local governmental entities for de-icing purposes. Under § 5(b) of the Clayton Act, a government antitrust proceeding serves to toll the statute of limitations on private treble damage suits. As originally enacted in 1914, § 5(b) was part of a broader § 5 which included the present § 5(a). The latter allows a final judgment or decree against a defendant in a Government proceeding to be used as prima facie evidence in a private treble damage suit. Before the 1955 amend-merits which segregated the prima facie provision from the tolling provision into subheadings (a) and (b), there was no Federal statute of limitations applicable to private antitrust actions. Congress, in 1955, amended the Clayton Act to provide, in § 4B, a four year limitations period. In addition, the tolling section was amended to extend the period of suspension for one year following the conclusion of the Government lawsuit. A further change in the tolling provision was the substitution of “civil or criminal proceeding” for the phrase “suit or proceeding in equity or criminal prosecution.” Apart from these changes, the basic structure of § 5(b), and § 5(a), remained unaltered from the 1914 enactment. As the Supreme Court indicated in Minnesota Mining & Manufacturing Company v. New Jersey Wood Finishing Company, 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965) [hereinafter cited as 3M], “* * * the record of the 1914 legislative proceedings reveals an almost complete absence of any discussion on the tolling problem.” 381 U.S. at 321, 85 S.Ct. at 1478. However, the Court noted that one basic intent underlying the tolling provision is outstanding— “the clearly expressed desire that private parties be permitted the benefits of prior government actions.” 381 U.S. at 320, 85 S.Ct. at 1478. Many of the issues raised in the present proceeding are not readily resolved by the plain language of § 5(b), so this basic policy objective must be kept in mind in considering the following questions: (A) When did the Government proceeding commence; and (B) when did it terminate? (C) What defendants in the present actions are subject to the tolling of § 5(b); and (D) what plaintiffs are benefited by that provision? Finally, there is the question of (E) whether the present actions are based in whole or in part on any matter complained of in the Government action. (A) Commencement of Government Action— Suspension of the period of limitations^ under § 5(b) is inaugurated “Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws * * In early 1959 the Justice Department initiated an investigation of the salt industry and a grand jury empaneled in Springfield, Illinois, in May of that year did consider antitrust violations, as well as other matters. Apparently no formal action was taken by this jury before it was discharged. Subsequently, in February, 1960, another grand jury was convened in Springfield to investigate the salt industry, but no indictments were returned. Thereafter, in September, 1960, a third grand jury was convened in St. Paul, Minnesota. As a result of its investigation, indictments were filed on June 28, 1961, charging Morton, Diamond, International, and Carey Salt Companies with violations of the antitrust laws. In the 3M case the Supreme Court was faced with the question of whether a proceeding by the Federal Trade Commission against a treble damage defendant served to toll the statute under § 5(b) to the same extent as judicial proceedings. Holding that the F. T. C. action did suspend the limitations period, the Court rejected defendant’s argument that since the Commission’s Order could have no prima facie effect under § 5(a), the tolling of § 5(b) was equally inapplicable. Assuming, without deciding, that § 5(a) also governs final Orders of the Commission, the Court made it clear that the two sections are not so intertwined that the scope of § 5(b) is limited by § 5(a). Seeking the earliest possible date for tolling purposes, plaintiffs herein argue that if a Federal Trade Commission administrative proceeding can activate the tolling provision, a fortiori a grand jury deliberation tolls the statute, since it is a judicial proceeding. Despite the fact that the grand jury is part of the judicial process, and that a grand jury inquiry is “instituted” by the United States through its attorneys, differences between a grand jury hearing and the Commission action involved in 3M lead to the conclusion that the statute was not here tolled by the grand jury deliberations in Illinois or Minnesota. The statutory language is important. Section 5(b) operates to suspend the statute of limitations when the United States institutes an action “to prevent, restrain, or punish violations of any of the antitrust laws * * The Commission proceeding against the 3M defendant was instituted to prevent the creation of a monopoly and to restrain a threatened decrease in competition, due to an asset acquisition by Minnesota Mining, and resulted in a consent order pursuant to which defendant was required to divest itself of these assets. A grand jury proceeding, on the contrary, has no immediate or direct goal of punishment, prevention, or restraint. The Government’s first step toward punishing violations of the antitrust laws may well be the institution of a grand jury hearing, as plaintiffs argue. However, this is an investigative phase, which could result in a determination that no punishment is needed. At oral argument, the Court suggested that the grand jury is more analogous to a Commission investigation which may precede the formal action of filing a complaint. Plaintiffs responded by analogizing the F. T. C. pre-complaint activity to an F. B. I. investigation preparatory to convening the grand jury. The grand jury must, nonetheless, be regarded as an investigative activity. Unlike the F. T. C. action with which 3M was concerned, a grand jury hearing is not an adversary proceeding. In fact, it is conceivable that the potential defendant, as well as the prospective treble damage plaintiff, would have no knowledge that a grand jury had been convened. Cases and statutes cited by plaintiffs to demonstrate that grand jury deliberations are “proceedings” are not relevant in the present context. The question presented here must be resolved in light of the particular legislative language and purpose. That a grand jury was held to be a “proceeding” within the scope of a statute granting immunity from prosecution based on testimony in any suit or proceeding, as in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), does not answer the question of whether it is a proceeding to prevent, restrain, or punish within the meaning of § 5(b). Apart from the fact that the grand jury does not prevent, restrain, or punish within the meaning of the statutory language, the matters complained of in the grand jury proceeding cannot be readily determined. As indicated by the Court in SM, the applicability of § 5(b) in a particular treble damage action depends upon an analysis of the matters complained of in the Government proceeding and the private action. This was accomplished in 3M by comparing the allegations of the Commission’s complaint with those of the treble damage plaintiff. Since no formal complaint is filed to institute a grand jury hearing, it would be difficult to determine what matters were complained of therein. This difficulty is recognized by plaintiffs to the extent that they relate the matters complained of in the Minnesota grand jury hearing to the indictment subsequently returned. Another reason for holding that a grand jury proceeding is not within § 5(b) is that it fails to serve the purposes of that section. In 3M the Supreme Court indicated that “ * * * the potential advantages available to * * * [private] litigants because of § 5(b) reach far beyond the specific and limited benefits accruing to them under § 5(a).” 381 U.S. at 320, 85 S.Ct. at 1478. “The Government’s initial action may aid the private litigant in a number of other ways [apart from the prima facie effect of the judgment or decree]. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. In fact, the rules of the Commission so provide. * * * Moreover, difficult questions of law may be tested and definitively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may derive from a judgment or decree.” (Citations omitted.) 381 U.S. at 319, 85 S.Ct. at 1477. These benefits do not flow from a grand jury deliberation. Although there are occasions when a private litigant may secure information about a grand jury hearing, in general the proceedings remain veiled in secrecy. Moreover, the possibility does not exist that difficult questions of law will be resolved by the grand jury. These considerations, together with the factors discussed above, lead to the conclusion that the statute of limitations was not tolled for the present cases by virtue of the grand jury proceedings either in Illinois or Minnesota. Alternatively, plaintiffs suggest that the statute was tolled as of June 28, 1961, the date the indictment was filed. No defendant has objected to this suggestion. Accordingly, the date which will govern the commencement of the tolling under § 5(b) is June 28, 1961. This date is relevant for determining the first year for which plaintiffs may claim damages, if they can show an illegal conspiracy. Apart from § 5(b), the damage period may be further extended if plaintiffs can show fraudulent concealment of the alleged conspiracy. Therefore, the date of June 28, 1961 may subsequently be affected by resolution of the issue of fraudulent concealment. B. Termination of Government Action — • Under § 5(b), the statute of limitations is tolled on every private right of action during the “pendency” of a Government proceeding, and for one year thereafter. To determine the timeliness of plaintiffs’ respective actions, the termination date of the Government proceedings against some of the defendants herein must now be ascertáined. As indicated, the indictment charging Morton, Diamond, International, and Carey Salt Companies with conspiring to fix the price of rock salt was filed on June 28, 1961. Before the criminal trial commenced, Carey entered a plea of nolo contendere on March 26,1962. Thereafter, the remaining three defendants proceeded to trial, which resulted in a verdict of not guilty rendered on June 7, 1962. Concurrent with the criminal action, a Government civil suit was also pending against these defendants. Although this action was commenced by a complaint filed on July 11, 1961, its progress was stayed during the trial of the criminal case. After the verdict in that action, the civil suit was reactivated, resulting in a judgment against defendants Morton and Diamond, entered on November 24, 1964. Prior thereto, both International and Carey had entered into consent decrees, the latter on March 26, 1962; the former on November 4, 1963. On February 19, 1965, the judgment against Morton and Diamond was amended, and was affirmed on appeal to the Supreme Court on October 26, 1965. Morton Salt Company v. United States, 382 U.S. 44, 86 S.Ct. 181, 15 L.Ed.2d 36 (1965). Plaintiffs herein disagree with defendants as to when the foregoing actions ceased to pend for purposes of § 5(b). Defendants Carey and International both argue that § 5(b) requires a defendant-by-defendant analysis of the time when a Government suit ceases to pend. Under this approach, these defendants contend, the Government actions against them terminated with their respective consent decrees. Plaintiffs, on the other hand, urge that the proceedings must be considered as a unit, so that a Government action does not cease to pend against any one defendant until it is terminated with respect to all. Morton and Diamond share the view that the Government action terminated as to them with the verdict in the criminal case. They are opposed to plaintiffs’ contention that the criminal and civil proceedings can be tacked together to toll the statute until the civil judgment was affirmed on appeal. (1) International and Carey — In support of their position that the Government proceedings terminated with their consent decrees, International and Carey rely upon a line of cases decided after United States v. Paramount Pictures, Inc., 66 F.Supp. 323, 70 F.Supp. 53 (S.D.N.Y. 1946), aff’d in part, rev’d and remanded in part, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), 85 F.Supp. 881 (S.D.N.Y.1949), aff’d per curiam, 339 U.S. 974, 70 S.Ct. 1032, 94 L.Ed. 1380 (1950), a Government antitrust action against several companies in the motion picture industry. That action began in 1938 and was finally resolved in 1950, but in the interim consent decrees were entered against some of the defendants at various times. As treble damage suits flourished following the Government action, the question of when the Government proceeding ceased to pend was a recurring problem. Several courts resolved the question on a defendant-by-defendant basis. See Union Carbide & Carbon Corporation v. Nisley, 300 F.2d 561 (10th Cir. 1961), appeal dismissed sub nom Wade v. Union Carbide & Carbon Corp., 371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46 (1963); Sun Theatre Corporation v. RKO Radio Pictures, 213 F.2d 284 (7th Cir. 1954); Grengs v. Twentieth Century Fox Film Corporation, 232 F.2d 325 (7th Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 77 (1956); Skouras Theatres Corporation v. Radio-Keith Orpheum Corporation, 193 F.Supp. 401 (S.D.N.Y. 1961); Manny v. Warner Brothers Pictures, 116 F.Supp. 807 (S.D.Calif.1953); Electric Theatre Company v. Twentieth Century Fox Film Corporation, 113 F.Supp. 937 (W.D.Mo.1953); Tague v. Balaban, 146 F.Supp. 356 (N.D.Ill.1956). While all of these cases looked to the termination date for an individual defendant, the most explicit holding and reasoning is contained in the Sun Theatre decision. Starting from the premise that the tolling provision was designed to protect the prima facie provision, the Seventh Circuit held that a Government suit ceases to pend as to a particular defendant when the litigation is terminated as to him. The Court indicated that no purpose is served by continuing to toll the statute under § 5(b) once a final judgment or decree is entered with respect to any one defendant, which plaintiff may thereafter use as prima facie evidence pursuant to § 5(a). The current validity of Sun Theatre, its predecessors and its progeny, is challenged by plaintiffs primarily on the basis of 3M and Leh v. General Petroleum Corporation, 382 U.S. 54, 86 S.Ct. 203, 15 L.Ed.2d 134 (1965), [hereinafter cited as Leh]. Their contention is that these cases destroy the rationale of Sun Theatre and similar holdings, based as they are on the view that §§ 5(a) and 5(b) are coextensive. In holding that an F.T.C. proceeding tolls the statute under § 5(b), the Court in SM noted distinctions between the express language of §§ 5(a) and 5(b), as well as differences in the congressional policies underlying the two sections. These differences were reiterated in Leh, in which the issue was whether the plaintiff’s treble damage suit was “based in whole or in part on any matter complained of” in a prior Government action, within the meaning of § 5(b). Refusing to accept the view that § 5(b) is circumscribed by collateral estoppel principles applicable to § 5(a), the Court in Leh adopted a broad construction of the tolling section and held that “[t]he private plaintiff is not required to allege that the same means were used to achieve the same objectives of the same conspiracies by the same defendants” as in the Government action in order to obtain the benefit of § 5(b). 382 U.S. at 59, 86 S.Ct. at 207. While neither Leh nor SM was directly concerned with the “pend-ency” language of § 5(b), this Court is of the opinion that they so weaken the foundation of the Sun Theatre line of cases that these decisions must be rejected as obsolete. In SM the Supreme Court contradicted the opinion of the Seventh Circuit, expressed in Sun Theatre, that the tolling provision had no further purpose to serve once a judgment or decree is available which the private plaintiff may use as prima facie evidence. Thus, SM points out that the private litigant may receive invaluable aid from the pleadings, transcript, exhibits and documents in the Government suit, apart from the prima facie effect, if any, of these materials. Even though one defendant in the Government lawsuit may capitulate before his companions, it is quite reasonable to assume that as the proceedings continue, that defendant will be referred to in subsequent testimony, documents and exhibits. This will be particularly true where, as here, the Government’s suit is based on an alleged conspiracy. Moreover, under the Stm Theatre view, § 5(b) would have no useful function whatsoever where the private plaintiff is prohibited from using a consent decree as prima facie evidence under § 5(a) because it was entered before any testimony was taken. In addition, the important questions of law which the Supreme Court suggested might be resolved in the Government suit may not be raised or determined until after the action becomes inactive with respect to a particular defendant. If the private plaintiff must bring his lawsuit before the entire Government litigation has terminated, he may be without the guidance of a decision on a relevant matter. Differences in the language of §§ 5(a) and 5(b) also lend some support to the conclusion that the Government proceedings continue to pend as to each defendant until the entire action is terminated. The former section states that a final judgment or decree in the Government action “to the effect that a defendant has violated” the antitrust laws “shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant * * In addition to the absence of a reference to final judgment or decree in § 5(b), as the Court observed in SM, that section does not provide for tolling the statute against “a defendant” or against “such defendant.” Quoting from Union Carbide & Carbon Corporation v. Nisley, the Court in 3M indicated: “ * * * The competency of a government judgment in a private suit is necessarily restricted to the requirements of due process. But the tolling of the statute during the pendency of the government litigation is not so limited.” 381 U.S. at 318, 85 S.Ct. at 1477. Under § 5(a), a due process question may be raised if the actions of one defendant are allowed to bind another. Therefore, that provision speaks in terms of estop-pel. Estoppel is not an issue under § 5 (b), since Congress “was not then dealing with the delicate area in which a judgment secured in an action between two parties may be used by a third.” 381 U.S. at 317, 85 S.Ct. at 1476. While it may be a hardship for one defendant to have the threat of treble damage suits lurking in the wings until the Government action plays itself out against all defendants, no due process issue is raised thereby. Granted that antitrust actions are notoriously protracted, and that the construction of § 5(b) adopted herein may result in a defendant being sued several years after the Government action has been completed for him, yet would this defendant have standing to complain if Congress had adopted, say, a ten year statute of limitations with no tolling provision? I think not. The phraseology of § 5(a) is distinct from 5(b) in still another respect. In the former provision Congress extended an incentive to defendants to enter into consent decrees by exempting such decrees, when entered before any testimony is taken, from the prima facie effect of § 5(a). By contrast, § 5(b) is silent with respect to the effect of a consent decree on the statute of limitations. In amending the Clayton Act in 1955, Congress had before it the Report of the Attorney General’s National Committee to Study the Antitrust Laws. Although several proposals of that Committee were adopted, Congress did not accept the Committee’s recommendation that suspension of the period of limitations under § 5(b) terminate with respect to a consenting defendant at the time the decree is entered. Plaintiffs argue that to accept the approach urged by International and Carey would have the effect of inserting into § 5(b) the very recommendation which Congress bypassed. Defendants retaliate by arguing that since Sun Thea-tre and similar holdings were handed down prior to the 1955 amendments, and were not changed thereby, Congress impliedly approved the construction given to § 5(b) by these cases. Neither argument is persuasive. The result reached herein finds its support not so much in canons of construction, or even explicit legislative history, but rather has its roots in the overall policy underlying § 5(b) and in the expansive interpretation placed on that section by the Supreme Court in Leh and 3M. As the Court indicated in Burnett v. New York Central R. Co., 380 U.S. 424, 427, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), and reiterated in 3M, whether a statute of limitations should be tolled in a given instance depends upon whether a Congressional purpose is served thereby. The overriding purpose of the Clayton Act’s tolling provision, as enunciated in 3M, is “to assist private litigants in utilizing any benefits they might cull from government antitrust actions.” 381 U.S. at 317, 85 S.Ct. at 1477. According to the dictates of Leh, “effect must be given to the broad terms of the statute itself,” giving consideration to Congressional opinion “that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws.” 382 U.S. at 59, 86 S.Ct. at 207. A holding that the Government salt litigation continued to pend with respect to each defendant, until it was concluded for all of them, gives effect to the purpose of § 5(b) and promotes private antitrust litigation. In framing the tolling provision, Congress undoubtedly was cognizant that private treble damage suits usually follow a successful Government action. To allow the private plaintiff sufficient time “to study the Government’s ease, estimate his own damages, assess the strength and validity of his suit, and prepare and file his complaint,” Congress suspended the period of limitations not only during the pendency of the Government action, but also for one year thereafter. An intelligent evaluation of the Government’s case can only be made at the conclusion of the entire lawsuit. Before the Government litigation is entirely concluded, the private plaintiff may not be in a position to assess the strength of his case against a particular defendant, or even to formulate a complaint. In addition, during the pendency of the Government litigation, transcripts, documents and exhibits may not be readily available to him. Or it may result that after studying the Government’s case a private plaintiff will decide that he has no claim against a defendant for whom the Government litigation had an early termination. Another concern of Congress in passing § 5(b) was to share the greater resources of the Federal government with the private plaintiff of small means. If the Government lawsuit terminates on varying dates for each defendant, the individual plaintiff may be forced to start several different lawsuits, which could drain his resources. Although the rules would permit that plaintiff to move for a continuance and a consolidated trial once he has a lawsuit instituted against each defendant, since such motions are addressed to the Court’s discretion, the private plaintiff may still be required to prosecute several different lawsuits, which may be financially impossible. To avoid these difficulties, and to give the private plaintiff the maximum assistance which can be culled from the Government action, it must be concluded that the Government litigation continues to pend against each defendant until concluded as to all (2) Morton and Diamond — Much of the above discussion also supports the conclusion, contrary to the position of Morton and Diamond, that the Government actions which germinated these cases continued to pend until affirmed by the Supreme Court on October 26, 1965. Based on the Congressional desire to prevent stale actions — an expressed purpose of the four year Federal limitation period — these defendants argue that plaintiffs may not tack together two Government proceedings to prolong the suspension until the last action has been completed. The Government litigation with which we are here concerned consists of a criminal prosecution commenced on June 28, 1961, and a civil action commenced on July 11, 1961. Heretofore, no reported case has dealt with this precise factual situation with reference to § 5(b). Analogous situations were presented in Union Carbide & Carbon Corporation v. Nisley, 300 F.2d 561 (10th Cir. 1961) and Dickinson, Inc. v. Kansas City Star Company, 173 F.Supp. 423 (W.D.Mo.1959). In the Nisley case the Government’s antitrust prosecution began with an indictment filed in June, 1946. In September, 1948, that indictment was dismissed, but on the same date an information was filed charging the same defendants with the identical conspiracy. Thereafter, the action proceeded under the information and was finally concluded on June 2, 1957. Within one year thereafter, in 1958, treble damage actions were commenced against the Government defendants. Raising the statute of limitations defense, they argued that the Government suit ceased to pend when the indictment was dismissed in September, 1948. With little discussion of the issue, the Court held the Government action continued to pend from the time the indictment was filed in 1946 until the action on the information terminated in 1957. Distinguishing the Nisley case, defendants herein point out that dismissal of the indictment and filing of the information was simultaneous so that, in essence, there was merely a technical amendment. It is defendants’ position that Nisley involved only one proceeding and not two. More approximate to the present situation is the Dickinson case which involved both a civil and criminal proceeding. But unlike the present situation, the indictment and complaint were filed simultaneously on January 7, 1950. Guilty verdicts were entered in the criminal action, which ceased to pend on June 17, 1957. Less than six months later, on November 15, 1957, the civil action terminated by consent decrees. At issue in the private treble damage action was whether plaintiffs could use the guilty verdicts as prima facie evidence under § 5(a). Defendants argued that since the private action was not commenced within one year after termination of the criminal proceeding, the guilty verdicts could have no prima facie effect under § 5(a). However, defendants conceded that plaintiffs’ cause of action was not barred, thereby recognizing that § 5(b)’s suspension continued throughout both proceedings. This view of the tolling provision was also adopted by the Court, which reasoned that if the period of limitations is suspended for the duration of both Government proceedings, the prima facie effect of a judgment or decree in the first action must be viable throughout both. The Court’s conclusion rested in part on a presumed congressional intent, which was expressed as follows: “When Congress enacted the evidenti-ary and tolling provisions of Section 5, supra, it is manifest that they (sic) made the provisions thereof applicable to both criminal and civil actions brought by the Government. The only assumption to be made therefrom is that the Congress knew that in some instances both such types of action would be commenced simultaneously by the Government — one to punish for past violations of the Anti-Trust Laws and the other to prevent future violations in respect to an identical plan or scheme of violation. There is no legislative history of Section 4 or 5 of the Clayton Act from which it may be inferred that the Congress intended the evidentiary or tolling provisions in question to be made applicable only to the first action terminated, where they were concurrently so brought.” 173 F.Supp. at 425. Since Congress must have been well aware of the Justice Department’s authority to bring both civil and criminal actions, the Dickinson analysis seems reasonable and logical. Therefore, this Court is of the opinion that the statute remains tolled on the causes of action asserted herein through October 25,1966, one year after the Government civil action ceased to pend on October 26, 1965. Defendants have argued that Congress did not intend to toll the statute throughout successive actions. For this position there is support in the Dickinson opinion, in which the Court intimated that the limitation period of successive Government actions may not be joined together to prolong the suspension under § 5(b). It may be that in some instances tolling the statute during successive actions would result in treble damage claims of such vintage that it would be patently unreasonable to assume that Congress meant to allow “tacking” under § 5(b). But here, the civil complaint was filed within two weeks of the indictment. Although not simultaneously commenced, the two actions were pending concurrently. I think this situation falls within permissible limits so that the suspension could continue until the conclusion of the civil suit. This construction, in defendants’ view, tends to frustrate congressional policy against procrastination of private actions. In a Senate Report relating to the 1955 Amendments, the Congress expressed concern over prolongation of stale claims, undue impairment of efficient business operations, and overburdening of Court calendars. Tacking together the Government actions involved here has these vices, so defendants argue. In the Senate Report just mentioned, the legislators referred to protracted Government proceedings plus a lengthy statute of limitations. To prevent the adverse effects of such a scheme, Congress gave private litigants only one year following termination of the Government proceedings to institute their actions. Nothing in the statute attempts to shorten Government proceedings. On the contrary, the Congressional Committee felt it “highly desirable” to suspend the limitation during the Government proceedings. It would seem, then, that the short period of one year serves to prevent stale claims and the other disadvantages noted by the committee report. Because the Government civil action here produced no new testimony, being submitted on the record made in the criminal case, defendants maintain that the fruits of the Government action were available to plaintiffs following completion of the criminal case. It is suggested that they could well have initiated their review and assessment of the Government case and their respective claims during the year following termination of the criminal action. This argument suffers from hindsight to the extent that private plaintiffs may not have been aware that the civil action would produce little else in the way of discovery, documents, testimony or exhibits. Additionally, questions may have been raised in the civil suit which had not been previously determined by the criminal action. If this were so, then the private actions could conceivably progress at a faster pace. Defendants also claim prejudice, emphasizing that private plaintiffs are under no obligation to preserve records during the pendency of Government proceedings. Thus, it is asserted that discovery will be impaired. The purpose of a period of limitations was summarized in Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965), as follows: “Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes ‘promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.’ Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349 [64 S.Ct. 582, 586, 88 L.Ed. 788]. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.” “This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff’s rights.” These purposes are not undermined by suspending the statute during the two proceedings here. When Government suits are initiated, defendants thereby receive notice that private treble damage actions may, and most likely will, follow thereafter. During this time potential plaintiffs will realize that it is to their advantage to retain records, since they will have the burden of proving their case. As defendants herein seem to acknowledge, their own records will be preserved and utilized during the defense of the Government action. Finally, because Congress has taken the position that private treble damage suits constitute a formidable means of enforcing the antitrust laws, the protection for defendants embodied in statutes of limitations is outweighed in this setting by the interest in assisting treble damage plaintiffs to vindicate their own, as well as the public, interest. Taking these factors into consideration, as well as those heretofore mentioned, the Government action continued to pend until October 26, 1965, and the statute remains tolled for one year thereafter. Since the last day for filing suit will be October 25, 1966, all of the instant cases were timely brought. (3) Non-Government Defendants— The question of when the Government proceedings terminated as to defendants in these cases who were not parties to the Government action must be deferred until it is ascertained whether § 5(b) has any application to such defendants, which is the next problem to be resolved. C. Defendants Covered by § 5(b)— Among the many defendants in these cases are several who were not parties to the Government proceedings, although most of this group were specifically named as conconspirators. These defendants maintain that § 5(b) does not operate to toll the statute against them, citing a block of movie theatre cases holding that this section cannot be applied to non-Government defendants. Again relying on 3M and Leh, plaintiffs assert that the cases cited by defendants are no longer controlling. In neither case was the Supreme Court squarely presented with this issue. The only non-Commission defendant involved in 3M was not a party to the Supreme Court appeal, having successfully contended in the District Court that § 5(b), even if tolled by Commission proceedings, did not cover non-defendants. In Leh, the sole non-Government defendant was dismissed from the suit before the District Court passed upon the tolling issue and therefore was not a party to the Supreme Court review. Even though neither decision explicitly passed upon the question raised here, the broad interpretation given § 5(b) in Leh and 3M suggests that the Supreme Court would hold that it tolls the statute on a cause of action asserted against a non-Government defendant; therefore, that interpretation is hereby adopted. The treble damage action in Leh was brought against six of eight Government defendants, as well as a party not named in the Government litigation. As noted, the non-Government defendant was no longer in the case when it reached the Supreme Court. Defendants raised the statute of limitations as a bar to the action, to which plaintiffs replied that the Clayton Act operated to suspend the statute. Application of § 5(b) was resisted by defendants on the ground that the private claims were not based in whole or in part on the matters complained of in the Government suit since different overt acts were alleged, involving different parties, time periods, and geographic areas. “The lower courts found that plaintiffs’ complaint was not based in whole or in part on any matter complained of in the government proceeding principally because of the differences in the defendants named in the two suits and in the period of the conspiracies alleged.” 382 U.S. at 62, 86 S.Ct. at 209. Taking the view that these differences do not alter the effectiveness of § 5(b), the Supreme Court reversed, and held that § 5(b) may be invoked where there is “substantial identity” between the private complaint and the Government’s allegations. In so holding, the Court rejected the restricted view of § 5(b) adopted in Steiner v. 20th Century Fox Film Corporation, 232 F.2d 190 (9th Cir. 1956), which approached § 5(b) in terms of the collateral estoppel principles applicable to § 5(a). The Court stated, “[T]he private plaintiff is not required to allege that the same means were used to achieve the same objectives of the same conspiracies by the same defendants. * * * ” 382 U.S. at 59, 86 S.Ct. at 207. As indicated, the private defendants in Leh included some, but not all, of the Government defendants. At the very least then, Leh stands for this proposition: Section 5(b) may be applied to one Government defendant in a private action without regard to the absence of other Government defendants. Another analysis of Leh is suggested by this reference to 3M: “The action upon which plaintiff relied as suspending the running of limitations was a Federal Trade Commission proceeding under § 7 against Minnesota Mining but not against Essex. Essex was not a party to the interlocutory appeal in the private action and no contention was made here that the difference in parties prevented tolling of limitations as to Minnesota Mining.” 382 U.S. at 63, 86 S.Ct. at 209. Reading Leh in light of this passage, it can be interpreted thus: Section 5(b) may be applied to a Government defendant in a private action despite the presence of a non-Government defendant. In sum, Leh teaches that a private cause of action may stem from prior Government litigation even though there is lacking complete identity between the defendants named by the Government and those named by the private litigant. The Court stated: “[W]e cannot conclude that a private claimant may invoke § 5(b) only if the conspiracy of which he complains has the same breadth and scope in time and participants as the conspiracy described in the government action on which he relies.” 382 U.S. at 63, 86 S.Ct. at 209. If, then, a treble damage plaintiff can meet the “substantial identity” test even though his cause of action does not include the same participants as those described in the Government complaint, a third proposition can be distilled from Leh: Section 5(b) may be applied to suspend the period of limitations against a private defendant, notwithstanding the fact that he was neither a party to, nor a named coconspirator in the Government action. While recognizing that Leh did not result in the application of § 5(b) to any non-Government defendant, this interpretation is nonetheless consonant with the Court’s admonition that “effect must be given to the broad terms of the statute itself * * Section 5(b) tolls the statute on every private right of action, and requires only that the claim be based in whole or in part on the matters complained of in the Government litigation. On its face, that section is not concerned with the defendants against whom the limitations period may be tolled. Rather, the focus is upon the potential plaintiff — the statute on every private right of action is tolled. The movie theatre cases cited by defendants interpolated into § 5(b) the language of § 5(a) which refers to defendants, and to estoppel between parties. The rationale and interpretative approach of these decisions is inconsistent with the Supreme Court’s approach in Leh, which holds that the matters complained of in the two actions need only have a substantial similarity, and not such an identity as would result in an estoppel between the parties to the Government action. Further, Leh implies that any difference in the defendants named in the two actions may often be unrelated to the question of whether the private claim is based in part on the Government suit. The Court stated: “In suits of this kind, the absence of complete identity [between defendants] may be explained on several grounds unrelated to the question of whether the private claimant’s suit is based on matters of which the Government complained. In the interim between the filing of the two actions it may have become apparent that a party named as a defendant by the Government was in fact not a party to the antitrust violation alleged. Or the private plaintiff may prefer to limit his suit to the defendants named by the Government whose activities contributed most directly to the injury of which he complains. On the other hand, some of the conspirators whose activities injured the private claimant may have been too low in the conspiracy to be selected as named defendants or co-conspirators in the Government’s necessarily broader net.” 382 U.S. at 63-64, 86 S.Ct. 209. (Emphasis added.) Thus the Court acknowledged that a private plaintiff may well name as defendants persons who were “too low in the conspiracy” to be included as named defendants, or even named coconspira-tors, in the Government suit. Further, it implies that the mere fortuity that a defendant who allegedly injured the private claimant did not gain a place in the Government litigation is not a controlling factor in determining whether the private claimant has met the substantial identity test. Based on this analysis of Leh; the Court’s apparent desire to give private litigants every benefit they might cull from the Government litigation; as well as those factors previously mentioned, I conclude that § 5(b) may be applied to non-Government defendants. In addition, it should be noted that the passage just quoted lends some support to the view that no distinction need be made between private defendants named as coconspirators by the Government and those who were not so named. As the Court suggested, this, too, depends upon the strategy adopted by the Government which has no bearing on the private plaintiff’s compliance with the substantial identity test. Among the objections voiced by the non-Government defendants here is that this construction of § 5(b) penalizes them for the actions of named Government defendants over whom they have no control. In the context of the present cases, it is argued that these defendants could not prevent prolongation of the Government actions by Morton and Diamond, who contested the actions throughout, including a Supreme Court appeal. Allusions have been made to the due process clause, as well as to the “right” of non-Government defendants to rely upon the four year statute of limitations. As noted above, one gains no vested right to a particular limitations period, perhaps with the exception of the situation where an attempt is made to revive a barred claim by retroactive extension of the statute. But this is not the case here, and this Court finds unpersuasive the notion that these defendants have a right to a four year statute. Neither is the due process argument compelling. While it is true that non-Government defendants have little control over the course of that litigation, no protected rights are prejudiced thereby. Regardless of the length of the Government proceedings, these defendants are not deprived of their day in court. It is claimed, however, that when that day finally arrives, non-Government defendants may be hampered by lack of evidence, since they would have no reason to preserve records during the pendency of the Government action. This assumes that a non-Government defendant would have no inkling that he might become a treble damage defendant, an assumption which seems unwarranted. Certainly a defendant would have enough familiarity with its own affairs to ascertain whether the potential exists that a treble damage claim will be asserted. Another contention is that if the statute is tolled for every member of any industry which is the subject of a Government suit, normal business activities will be hampered, particularly the sale of a business clouded with potential treble damage claims. This situation is not unique in the antitrust area and certainly it is not uncommon to arrange for assumptions and disclaimers of pre-existing liabilities in the sale of a business. None of these arguments suggest that tolling the statute for non-Government defendants will result in hardships of such magnitude that it is unreasonable to think that Congress intended this result. Rather, tolling the statute here promotes the Congressional desire to give private litigants every benefit to be culled from the Government litigation. D. Plaintiffs Benefited by § 5(b)— Some of these actions are brought by representative plaintiffs on behalf of members of a class of governmental entities. Defendant International has taken the position, particularly with reference to the Milwaukee case, that tfye timeliness of actions by members of the class who subsequently intervene in a class action, is to be determined by reference to the date of the motion to intervene, or the Order granting such motion. In other words, it is International’s position that the institution of a representative action does not mark the commencement of the suit for members of the class who thereafter seek to intervene in the action in their own name. The significance of this problem is diminished by the conclusion that the Government action continued to pend for all defendants until October 26, 1965. Since the limitations period will not expire until October 25, 1966, all plaintiffs who have intervened heretofore are within the statute, even without relation back to the date on which the class action was commenced. Thus, it is unnecessary to consider this question. It might be noted, however, that Union Carbide & Carbon Corporation v. Nisley, 300 F.2d 561 (10th Cir. 1962), a treble damage action, did consider the issue and held that institution of a class action served to toll the statute of limitations for all members of the class. Additionally, this Court entered an Order closing the various classes involved in these actions as of a day certain. Class action representatives were also required to file lists of members for whom damages are claimed. Defendants are thereby protected from last minute additions to the class against whom they might not have formulated a defense. E. Matters Complained of— The foregoing discussion has assumed that the matters complained of in these private actions are based in whole or in part on the Government litigation within the meaning of § 5(b). In Leh, the Court adopted a test of “substantial identity” and found that the private action was based on the Government suit even though there were differences in (a) defendants, (b) the time period of the conspiracies alleged, and (c) the geographic area involved, and (d) certain overt acts in furtherance of the alleged conspiracy. It is not necessary to detail the allegations of these private complaints and the Government complaint, since defendants do not seriously question that the actions herein share a substantial identity with the Government proceedings. Combined, these plaintiffs focus on a geographic area wider than that involved in the Government action; they assert claims against defendants who were not parties to the Government suit, and some seek damages for a period beyond the scope of that to which the Government directed its attention. Despite these variances, the core of these complaints is an alleged conspiracy to fix the prices of rock salt sold to governmental entities. As such, the essence of these private actions is substantially similar to the matters complained of by the Government and thus within the scope of § 5(b). In summary, the Court has determined : 1. That the date which governs the commencement of the tolling of the statute of limitations under § 5(b) of the Clayton Act is June 28, 1961. 2. That the date which governs the termination of the tolling of the statute of limitations under § 5(b) of the Clayton Act is October 25, 1966. 3. That § 5(b) of the Clayton Act applies to all defendants named in these treble damage actions. 4. That all plaintiffs, including inter-venors and members of a class, are entitled to the benefits of § 5(b). 5. That the matters complained of in these treble damage actions are based in whole or in part on the Government litigation within the meaning of § 5(b). It is so ordered. SUPPLEMENTAL DECISION (§ 5(a), Clayton Act) This Court’s Pretrial Order of November 23, 1965, directed the parties to brief and argue several questions concerning the interpretation and application of § 5(a) of the Clayton Act, which allows a final judgment or decree against a defendant in a Government antitrust proceeding to be used as prima facie evidence by any other party against such defendant. These consolidated treble damage actions grow out of civil and criminal actions by the United States charging some of defendants herein with concerted action in violation of the antitrust laws. Plaintiffs are the States of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Wisconsin, and certain governmental units within these States. In addition, the Milwaukee class action includes municipalities in the States of Kansas, Virginia, and Tennessee. Defendant companies, producers or distributors of rock salt, are American, Barton, Carey, Cargill, Cargo Carriers, Cutler-Magner, Diamond Crystal, Hardy, International and Morton. The Government proceedings began with indictments filed against Carey, Morton, Diamond, and International on June 28, 1961. Shortly thereafter, on July 11, 1961, a civil complaint was filed against these same four defendants, alleging — as did the indictment — a conspiracy to fix the prices of rock salt. Although not named defendants, American, Barton, Cargill, Cutler-Magner, and Hardy were all listed as conconspirators in both the indictment and civil complaint. Before the criminal trial commenced, Carey entered a plea of nolo contendere to the indictment on March 26, 1962. Also on that date Carey consented to a judgment against it on the civil complaint. Thereafter, the remaining three defendants proceeded to trial before a jury, which returned a verdict of not guilty on June 7, 1962. The civil action, which had been suspended during the criminal trial, was then reactivated. On November 4,1963, a consent judgment was filed against International on the civil complaint. Also on November 4, 1963, a stipulation was filed between Morton and Diamond and the United States in which the parties agreed that the civil case could be tried on the record made in the criminal action, with the addition of answers by Morton and Diamond to certain interrogatories of the United States. On this record, the trial court’s Memorandum Decision of August 6, 1964, concluded that there was an illegal conspiracy to fix the prices of rock salt. Findings of Fact and Conclusions of Law, along with a final judgment, were entered on November 24, 1964, Subsequently, on February 19, 1965, the judgment was amended, and then affirmed on appeal to the Supreme Court on October 26, 1965. 382 U.S. 44, 86 S.Ct. 181, 15 L.Ed.2d 36. Plaintiffs in these actions seek to derive prima facie benefit from the final judgment in that civil case pursuant to § 5(a) of the Clayton Act. Among the issues to be determined are these: (A) Against which defendants in the instant cases does the Government judgment have prima facie effect; (B) What is the scope of the estoppel effect of the judgment, with respect to (1) the existence of a conspiracy, (2) the product involved, (3) the time period covered, and (4) the geographic area; and (C) What is the extent of the benefit under § 5(a) for plaintiffs (1) specifically named in the prior Government action, (2) within the geographic area of the Government suit, and (3) outside that geographic area? The answers to these questions turn upon the language of § 5(a) and the congressional policies it is designed to serve. Originally enacted in 1914, the present § 5(a) reads as follows: “A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title.” This provision had its roots in the Congressional belief that “private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws.” Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, 85 S.Ct. 1473, 1477, 14 L.Ed.2d 405 (1965). Concerned with the lack of resources — financial and otherwise — of private persons injured by antitrust violations, Congress intended, through § 5(a), to share with them the greater resources of the Federal government. As the Court stated in Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 95 L.Ed. 534 (1952) : “Congressional reports and debates on the proposal which ultimately became § 5 reflect a purpose to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in antitrust actions. * * * ” Thus it is that the prima facie effect of § 5(a) eases the private litigant’s burden of going forward with the evidence. Section 5(a) has still another purpose, which is served by the proviso clause. Thoroughly reviewing the congressional debates, and other legislative history, the Court in Twin Ports Oil Co. v. Pure Oil Co., 26 F.Supp. 366, 371 (D.Minn. 1939) enunciated the policy behind the proviso: “Congress apparently intended to encourage consent judgments and decrees. It sought to induce a prompt surrender to the Government’s demands by excluding consent judgments and decrees from the prima facie rule.” The consent decree proviso, then, inures to the benefit of the Government by saving the time and expense of a protracted trial. General Electric Co. v. City of San Antonio, 334 F.2d 480 (5th Cir. 1964). The issues presented in these proceedings must be resolved in the context of this statutory scheme. A. Defendants Covered by § 5(a)— The defendants in these cases had varying relationships with the prior Government action. Several were not named as defendants at all; two were named defendants but entered into consent decrees ; and two others contested the Government’s claims throughout. (1) Non-Government Defendants — Although some plaintiffs maintain that the decree can have prima facie effect against the non-Government defendants here, the plain wording of the statute requires rejection of this argument. Section 5(a) talks of a final judgment or decree to the effect that a defendant has violated the antitrust laws may have prima facie effect against such defendant in a private action against such defendant. Clearly, the purpose of this language was to restrict the application of § 5(a) to persons who have had their day in court against the Government’s allegations. Any other result would raise serious constitutional questions, which was suggested in Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561, 569 (10th Cir. 1961), when the Court said, “The competency of a government judgment in a private suit is necessarily restricted to the requirements of due process.” Even though § 5(a) does not create an absolute estoppel, the due process consideration undoubtedly influenced those Courts which have indicated that this section does not authorize prima facie use of a Government decree against non-Government defendants. Cf. Buckhead Theatre v. Atlanta Enterprises, Inc., 327 F.2d 365 (5th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 158, 13 L.Ed.2d 92 (1964); Sun Theatre Corp. v. RKO Radio Pictures, Inc., 213 F.2d 284 (7th Cir. 1954); DeLuxe Theatre Corp. v. Balaban & Katz Corp., 88 F.Supp. 311 (N.D.Ill.1950). The one decision heavily relied upon by plaintiffs, Homewood Theatre, Inc. v. Loew’s Inc., 110 F.Supp. 398 (D.Minn.1952), appeal dismissed, 207 F.2d 263 (8th Cir. 1953), is not to the contrary. Plaintiffs in that treble damage action sought the benefit of the Government decree in the Paramount case, an antitrust action involving the movie theatre industry. M.A.C., a non-Government defendant, argued that the Paramount decree was not admissible as prima facie evidence against it. While the Court declined to decide this question directly, it held that M.A.C. could not object to the admissibility of the decree against the Government defendants, and said: “Suffice it to state that the decrees being admissible as to all of the distributor defendants, they constitute prima facie evidence as to them, and the Minnesota Amusement Company being a beneficiary and a part of the local conspiracy, which is a part of the national conspiracy, it cannot object to the admission of such evidence in that it having knowingly joined the conspiracy here, all acts of the conspirators in furtherance of the conspiracy necessarily are admissible as to it. Moreover, the evidence as to the local conspiracy is ample to sustain such finding as to the distributor defendants as well as M.A.C. without the evidentiary support of the decrees in the Paramount eases.” 110 F.Supp. at 411. (Emphasis added.) Some plaintiffs contend that Homewood establishes that a Government decree is admissible for prima facie effect against a non-Government defendant. The underscored language cannot be so read. By it the Court undoubtedly meant to indicate that M.A.C., the non-Government defendant, could not preclude admission of the Government decree agai