Full opinion text
WYATT, District Judge. This is an application by defendants and by plaintiffs in these class actions for approval of a proposed compromise under which the actions and all claims of the classes therein will be settled and dismissed with prejudice. Fed.R.Civ.P. 23 (e) The application is granted and the proposed compromise is approved. These are 66 civil actions, 26 of which were commenced in this District and 40 of which were transferred to this District by the Judicial Panel on Multidistrict Litigation (the Panel) “for coordinated or consolidated pretrial proceedings” (28 U.S.C. § 1407; see 295 F.Supp. 1402, 297 F.Supp. 1126, 299 F.Supp. 1403, 301 F.Supp. 1158, 303 F.Supp. 1056, 309 F.Supp. 155). The 66 civil actions which are the subject of the present application are sometimes referred to in this opinion as simply “these actions”. The same five companies are defendants in each of these actions (Squibb Beech-Nut, Inc. is also a defendant in some actions); they may be referred to as Pfizer, Cyanamid, Bristol, Squibb (a division of defendant Olin Mathieson Chemical Corporation until about January 1, 1966 and ultimately a part of Squibb Beech-Nut, Inc.), and Upjohn. They have been for some years sellers of broad spectrum antibiotic drugs, the most important of which is tetracycline and on which a patent, owned by Pfizer and often called “the Conover patent”, issued on January 11, 1955. Pfizer, Cyanamid and Bristol made tetracycline and sold it in dosage form. Bristol sold tetracycline in bulk to Squibb and Upjohn which sold it in dosage form. Antibiotic drugs are prescription drugs used for infectious diseases. Broad spectrum antibiotic drugs, such as tetracycline, are effective against a wider range of germs than are the narrow spectrum antibiotic drugs, such as penicillin. The word “antibiotics” when used in this opinion refers to broad spectrum antibiotic drugs. There are in total before this Court some 150 similar civil actions against the same defendants, either commenced in this District or transferred here by the Panel. These some 150 actions are divided into the following groups: (a) the 66 actions which are the subject of the present application; (b) some actions in which plaintiffs were offered but rejected the same proposed settlement on which the present application is based; (c) some actions in which plaintiffs have not been offered any settlement by defendants; and (d) about 26 actions in which plaintiffs are private hospitals to which a separate offer of settlement has been made by defendants. The claim in each of the actions is that defendants violated the antitrust laws in the sale of antibiotics, specifically Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2); treble damages are sought, as authorized in 15 U.S.C. § 15. A. DEVELOPMENT OF BROAD SPECTRUM ANTIBIOTICS Data as to the four principal broad spectrum antibiotics are as follows: Generic Name Trade Name First Introduced By Whom chlortetracycline Aureomycin December 1948 Cyanamid chloramphenicol Chloromycetin January 1949 Parke, Davis oxytetracycline Terramycin March 1950 Pfizer tetracycline Achromycin November 1953 Cyanamid Tetracyn January 1954 Pfizer Polycycline April 1954 Bristol Steclin September 1954 Squibb Panmycin October 1954 Upjohn Cyanamid owns the patent for chlortetracycline (the Duggar patent) issued September 1949, and an improvement patent (Niedercorn) issued September 1952. Pfizer owns the patent for oxytetracycline (the Sobin patent) issued July 1950. When the Duggar and Sobin patents issued, the chemical structure of the antibiotics produced — trade names, Aureomycin and Terramycin — were not known. In 1952, a Pfizer research team made the first discovery of the chemical structure of Aureomycin and Terramycin. On June 17, 1952, Conover, a member of the Pfizer team, discovered tetracycline by removing the chlorine atom from Aureomycin. Tetracycline proved to be highly superior to the earlier antibiotics. The discovery of tetracycline was announced to the world in an article on August 8, 1952 in the Journal of the American Chemical Society. On October 23, 1952, application for the Conover patent was filed. Thereafter, applications for tetracycline patents were filed by Cyanamid and by Bristol, among others. It eventually developed that to produce tetracycline, it was necessary to use the Duggar and Niedercorn patents for the fermentation process. If a patent on the Conover invention were issued to Pfizer, then neither Cyanamid nor Pfizer could make tetracycline except by agreement between them. Each would be blocked by a patent of the other. After meetings on November 7 and 15, 1953 between McKeen (Pfizer) and Malcolm (Cyanamid) an agreement was made by which Cyanamid would license Pfizer under the Duggar and Niedercorn patents; in addition, it was agreed that proofs of priority on tetracycline would be exchanged; that the party found (on such exchange of proofs) not to have priority would then concede priority to the other; and that the party receiving the patent on tetracycline would then license the other. Bristol began making and selling tetracycline in May 1954. It sold the drug in bulk to Squibb and to Upjohn, who in turn sold in dosage form under their respective trade names. Bristol also sold in dosage form under its trade name. Cyanamid brought an. action against Bristol in September 1954, asserting that in making tetracycline Bristol infringed the Duggar and Niedercorn patents. This action was settled in December 1954 and Bristol received a license (with royalty to Cyanamid) for use of the Dug-gar and Niedercorn processes in making tetracycline. After an exchange of evidence as to priority, Cyanamid conceded in February 1954 that Conover was prior in discovery of tetracycline. The Conover patent issued on January 11, 1955 and has since been owned by Pfizer. On the same day the patent issued, Pfizer commenced an action against Bristol, Squibb and Upjohn in the Northern District of Georgia. The charge was infringement of the Conover patent for tetracycline. Bristol, Squibb and Upjohn then sued Pfizer in this Court for a declaratory judgment on the Conover patent and, over strong opposition from Pfizer, obtained transfer of Pfizer’s action from the Northern District of Georgia to this Court (131 F.Supp. 21, 225 F.2d 718, 225 F.2d 720). The litigation between Pfizer on the one hand and Bristol, Squibb and Upjohn on the other was settled on December 15, 1955. To a considerable extent this was due to the efforts made by Schwartz, president of Bristol. Licenses under the Conover patent for tetracycline were granted by Pfizer to Bristol, Squibb and Upjohn (with royalty to Pfizer). B. THE CLAIMS IN THESE ACTIONS ARE BASED ON CHARGES BY THE FEDERAL TRADE COMMISSION AND IN AN INDICTMENT It is without dispute that the claims in the complaints are substantially the same as charges made against the defendants by the Federal Trade Commission (the Commission) and in an indictment against three of the defendants handed up by a grand jury in this District on August 17, 1961. A review of these proceedings, and of an investigation by a Senate Subcommittee, will be useful as background. C. PROCEEDINGS BY THE COMMISSION AND BY A SENATE SUBCOMMITTEE 1. Investigations by the Commission In 1951, the Commission began an investigation of the pricing policies of Pfizer in selling “Terramycin”, its trade name for an early broad spectrum antibiotic. Pfizer furnished extensive data. This lasted until 1955. By resolution on July 22, 1953 (amended on July 13, 1956), the Commission initiated an investigation (15 U.S.C. §§ 46, 49) of “the * * * business, conduct, practices and management of corporations engaged in the production, sale or distribution of antibiotic drugs * * * This investigation went on until 1958. The defendants and others responded to extensive data requests of the Commission. On the basis of these responses and other material and records, the Commission in June 1958 issued an “Economic Report on Antibiotics Manufacture”; this Report was of some 360 pages. 2. Investigation by a Senate Subcommittee In 1959 and 1960, the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary investigated the ethical drug industry, which included the defendants here. Senator Kefauver was Chairman of the Subcommittee and Paul Rand Dixon was its Counsel and Staff Director. At the request of the Subcommittee, defendants furnished documentary material and other information. For six days in September 1960 there were public hearings before the Subcommittee, principally about antibiotics and about many of the matters involved in these actions. A report of the Subcommittee entitled “A Study of Administered Prices in the Drug Industry” (S.Rep. No. 448, 87th Cong., 1st Sess. 1961) was transmitted to the full Committee on May 8, 1961. 3. The Complaint of the Commission; Taking of Evidence On July 28, 1958, the Commission issued a complaint charging the defendants with unfair methods of competition and unfair acts and practices in the sale of antibiotics, all in violation of Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45). The charges made by the Commission in summary were these: a. that Pfizer secured issuance of the Conover patent by fraud on the Patent Office and, aside from such fraud, secured issuance of the patent despite the fact that the invention was obvious and in public use before the Conover application was filed; b. that by conspiracy all five defendants secured issuance to Pfizer of the Conover patent; that Pfizer made false representations to the Patent Office; that Pfizer, Bristol and Cyanamid withheld material information from the Patent Office; and that the other four defendants obtained licenses from Pfizer with knowledge of the fraud on the Patent Office and with knowledge that the invention was not patentable; and c. that by conspiracy all five defendants fixed prices and, by keeping out competitors, monopolized antibiotics. The defendants by October 15, 1958 had served their answers, denying the charges in the Commission’s complaint. Evidence was taken before Robert L. Piper, a Hearing Examiner, between January 1959 and February 1960. There was testimony by witnesses, apparently all in New York, on 86 days. The Commission called 13 witnesses; the defendants called 45 witnesses; and 3 witnesses (accountants) were considered as called by the Hearing Examiner. The testimony appears to have run to some 9,000 pages in the stenographic transcript. The documentary exhibits were massive in number and extent; they occupy at least 12 printed volumes and consist of some 8,000 pages. The witnesses before the Hearing Examiner included the chief executives of each of the defendants: Malcolm of Cyanamid, McKeen of Pfizer, Schwartz of Bristol, Toohy of Squibb, and Gilmore of Upjohn. They each denied categorically that they were parties to any conspiracy or any other sort of price fixing agreement. 4. Initial Decision of Hearing Examiner The Hearing Examiner filed an Initial Decision on October 3, 1961. This is a detailed document of about 270 printed pages. The Decision was completely in favor of defendants, exonerating them from any violation of the Federal Trade Commission Act and ordering that the complaint be dismissed. 5. Decision of Commission The matter was then taken to the full Commission. Meanwhile, in March 1961, Paul Rand Dixon had been named Chairman of the Commission; as already mentioned, he had been Counsel and Staff Director to the Senate Subcommittee which investigated the drug industry, including these five defendants, and made a report thereon. The defendants moved that Chairman Dixon be disqualified. The Commission on December 20, 1961 denied the motion on the ground that disqualification was “for determination by the individual member concerned”. Chairman Dixon declined to withdraw from participation in the proceeding. The Commission (Dixon, Anderson, Elman, MacIntyre, Higginbotham) on August 8, 1963 filed its opinion, findings of fact and conclusions of law written by The Honorable A. Leon Higginbotham, Jr., then a Commissioner and now a United States District Judge for the Eastern District of Pennsylvania. The Commission issued orders on August 8 and December 17, 1963. The opinion of the Commission disagrees in large part with that of the Hearing Examiner. The Commission decision may be summarized as follows: a. Pfizer by misrepresentations to and withholding information from the Patent Office prevented an accurate decision on the issuance of a patent on tetracycline on the Conover application ; b. the conduct of Cyanamid before the Patent Office was the same as that of Pfizer; c. that it was not proven that a conspiracy existed between Pfizer and Cyanamid before the Patent Office, or any conspiracy among the five defendants to exclude others; d. there was no misconduct before the Patent Office by Bristol, Squibb or Upjohn; and e. the five defendants conspired to fix prices for tetracycline. The final order of the Commission was that the five defendants cease and desist from any and all forms of price fixing agreements, that they each take specific steps in respect of independent pricing activities, that Pfizer grant to any applicant a license under the Con-over patent for a royalty of not more than 2%% of net sales, and that Cyanamid grant to any applicant a license under the Duggar and Niedercorn patents for a royalty of not more than 2 y2% of net sales. See Note: Improperly Procured Patents: FTC Jurisdiction and Remedial Power, 77 Harv.L.Rev. 1505 (1964). 6. Decision of the Court of Appeals (363 F.2d 757) The defendants obtained a review of the Commission’s order by the Court of Appeals for the Sixth Circuit (15 U.S.C. § 45(c)). The decision of the Court was handed down on June 16, 1966. The Court first decided, that the active part played by Chairman Dixon while counsel to the Senate Subcommittee caused him to form opinions as to facts which later became “inseparably a part of the ultimate findings of fact of the Commission” (363 F.2d at 765). The Court concluded that the participation of Chairman Dixon in the decision of the Commission was a denial of due process to the defendants, requiring that the decision be set aside and the matter remanded for a fresh consideration by the Commission without any participation by Chairman Dixon. The Court expressed no opinion whether there was substantial evidence to support the findings of the Commission that there was price fixing by defendants. As to the issue of misconduct before the Patent Office, the Court expressed its opinion at some length. The Court found that the fundamental question was whether coproduction (or inherent production) of tetracycline in the fermentation broths from which chlortetracycline (Aureomycin) had been recovered was material to the issuance of the Conover patent. There is a distinction between coproduction of tetracycline in the broths and the presence of tetracycline in the resultant product (Aureomycin). In this connection, the Court believed that there were many questions as to the actions and purposes of Patent Examiner Lidoff, who allowed the Conover patent, and was surprised that Lidoff, because of Patent Office policy and practice, had not been called as a witness. The Court saw no reason why Lidoff should not be required to testify and the Court framed about 12 specific questions for him. The Court found that, absent any testimony from Lidoff, the order of the Commission on the Patent Office misconduct issue was not supported by substantial evidence. 7. Initial Decision on Remand On remand, it appeared that Mr. Piper was no longer employed by the Commission. The matter was referred to Abner J. Lipscomb, as Hearing Examiner, for taking the testimony of Lidoff and of any witnesses who had already testified on the issue of misconduct before the Patent Office. There were hearings before Mr. Lipscomb in Washington on September 12 and 13, 1966. Lidoff was called for the Commission and testified; Hutz, a patent attorney for Pfizer, and Murphy, who did patent work for Pfizer, were called for Pfizer and testified. The testimony of Lidoff in summary was that on November 24, 1954 he rejected the Conover product claims because he believed it probable that tetracycline had been produced along with ehlortetracyeline (Aureomycin) in the broths of the Duggar and Niedercorn processes; that thereafter he accepted the statements of tests by Pfizer that no identifiable tetracycline was produced in the Duggar-Niedercorn process; that had he known there was in fact such coproduction, the Conover patent would not have issued; that he was interested in whether there was coproduction in the broths, not whether tetracycline was present in the product Aureomycin; that he did not know tetracycline was present in the product Aureomycin; that had he known this, he would have rejected the Conover application on this ground, a different ground and one which related to prior public use rather than to disclosure in published patents (the basis on which he was interested in the Duggar-Niedercorn broth production). The assignment to Hearing Examiner Lipscomb was solely for decision whether Pfizer and Cyanamid made misrepresentations, etc. to the Patent Office and thus caused Lidoff to allow a patent which otherwise would not have been allowed. Hearing Examiner Lipscomb accepted the testimony of Lidoff and adding this to the evidence already in the record found' substantial evidence that there was misconduct by Pfizer and Cyanamid before the Patent Office as a result of which the Conover patent issued. The initial decision of the Hearing Examiner on remand was made on November 9, 1966. 8. Decision of the Commission on Remand The matter then went to the Commission. Chairman Dixon did not participate. Since the time of the first decision, Commissioners Anderson and Higginbotham had been replaced by Commissioners Reilly and Jones. The four Commissioners who decided the matter on remand were thus Elman, MacIntyre, Reilly and Jones. The Commission on September 29, 1967 filed its opinion and on the same day issued its order. As to the patent issue, the Commission found that the testimony of Lidoff supported the earlier findings and opinion of the Commission rather than those of the first Hearing Examiner, Mr. Piper. It was concluded that Pfizer and Cyanamid in substance were guilty of fraud on the Patent Office, as a result of which the Conover patent issued. As to the price fixing issue, the four Commissioners were evenly divided. On the basis of new firms entering the field and of a decline in prices, Commissioners Elman and Reilly believed it was not necessary to decide the price fixing issue, which (in simple terms) was whether the earlier uniform prices were the result of conspiracy among the five defendants. Commissioners MacIntyre and Jones believed that the earlier findings and order as to price fixing should be adhered to and issued. There being no majority of the Commission in support of findings and an order as to price fixing, the complaint so far as it charged price fixing was dismissed. The final order of the Commission dealt only with misconduct of Pfizer and Cyanamid before the Patent Office and as to this the final order was the same as the earlier order. No part of the order was directed against Bristol, Squibb or Upjohn; as to them the complaint was dismissed completely. 9. Second Decision of the Court of Appeals (401 F.2d 574) Pfizer and Cyanamid obtained a review of the Commission’s order by the Court of Appeals for the Sixth Circuit (15 U.S.C. § 45(c)). The decision of the Court was handed down on September 30, 1968. It was found that Lidoff had answered the material questions framed in the Court’s first opinion and that this testimony supported the original findings of the Commission and contradicted the findings of Hearing Examiner Piper. The misconduct of Pfizer and Cyanamid was shown by substantial evidence and justified the compulsory licensing order of the Commission. The Court declined to pass on the credibility of Lidoff, saying that it would not “second-guess the Hearing Examiner and the Commission” (401 F.2d at 584). The order of the Commission was affirmed. It may be noted that the Court did not decide whether the views of Lidoff as to patent law were correct or not. Lidoff testified that had he known what Pfizer and Cyanamid knew as to co-production of tetracycline and as to its presence in Aureomycin, he would not have allowed the patent. As will be mentioned later, there may be some question whether this would be good patent law. Decisions such as Parke-Davis & Co. v. H. K. Mulford Co., 189 F. 95 (C.C. S.D.N.Y.1911), affirmed 196 F. 496 (2d Cir. 1912) raise difficult issues in this connection. The Court of Appeals for the Sixth Circuit stated that it “did not undertake to pass upon the validity of the [Conover] patent” (401 F.2d at 586). 10. Denial of Certiorari The Supreme Court denied certiorari on March 24, 1969 (394 U.S. 920) and the Commission proceedings came to an end. D. THE CRIMINAL PROCEEDINGS TO DATE 1. The Indictment; its Dismissal as to Individual Defendants A grand jury in this District returned an indictment (61 Cr. 772) on August 17, 1961 naming as defendants Pfizer, Cyanamid, Bristol, McKeen (of Pfizer), Malcolm (of Cyanamid) and Schwartz (of Bristol). Squibb and Upjohn were named as co-conspirators. The indictment charged in three counts a conspiracy in restraint of trade, a conspiracy to monopolize trade, and a monopoly of trade, in broad spectrum antibiotics. It was charged that Sections 1 and 2 of the Sherman Act had been violated. The indictment covered the same ground as that covered by the complaint of the Commission. It was charged that defendants, pursuant to a conspiracy, misled the Patent Office, used patents to exclude competitors, and fixed prices. All defendants pleaded not guilty. After the return of the indictment, a grand jury in January 1962 was empanelled in the District of Columbia and investigated the conduct of a government official in transactions with drug firms, including these defendants. Under subpoena, McKeen, Malcolm and Schwartz testified before this Grand Jury (which returned no indictment). On motion of these individual defendants and over the Government’s opposition, Judge Ryan, by order with opinion filed September 9, 1965, dismissed the indictment as to them (245 F.Supp. 801). The reason was that by testifying before the grand jury in the District of Columbia the individual defendants became immune from prosecution on the indictment in this District (15 U.S.C. §§ 32, 33). 2. The Criminal Trial Trial of the indictment took place between November 23 and December 29, 1967 before Judge Frankel and a jury. Nearly all the testimony offered by the government came from employees or former employees of the three defendants and the two alleged co-conspirators. The government called six witnesses from Pfizer, four from Cyanamid, three from Bristol, four from Upjohn, and one from Squibb; in addition, the government read the testimony in the Commission proceedings of Malcolm of Cyanamid (ill at time of trial) and Niedercorn of Cyanamid (who had died). The government called six witnesses who had not been connected with any defendant or alleged co-conspirator; these included Patent Examiner Lidoff. Most of the documentary evidence offered by the government came from the defendants or from alleged co-conspirators. The defendants put in their case through the cross-examination of the government witnesses, most of whom were their employees or former employees. In its bill of particulars, the government had stated that McKeen, Malcolm and Schwartz were responsible for the “pricing policy” of their respective companies. McKeen and Schwartz were called by the government and testified at trial and (as already noted) testimony of Malcolm was read by the government to the jury. They each categorically denied doing any of the acts charged in the indictment. It was developed at trial that Parke Davis & Co. was a maker of broad spectrum antibiotics, was second in volume of sales of such antibiotics, followed the same prices and practices as the defendants on trial, and was concededly not a member of any conspiracy. After the government rested on December 8, 1967, one witness was recalled by Pfizer for relatively short testimony concerning exhibits dealing with financial matters. This was the comptroller of Pfizer and after his testimony all defendants rested. The ease was submitted to the jury at 3:45 p. m. on December 28, 1967. The jury suspended its deliberation at 10:15 p. m. that night and resumed at 9:30 a. m. the following morning. During its deliberation, the jury asked for and was given a copy of the Court’s charge, the charts used by the government in summation, the charts showing the share of Parke Davis in the broad spectrum antibiotics market, and the evidence referred to in the Court’s charge as to the dosages, prices and market techniques of Parke Davis. The jury returned a verdict of guilty on all three counts as to each defendant on December 29, 1967 at 9:45 p. m. 3. Reversal of the Convictions The judgment of conviction was appealed. The appeal was argued on May 7, 1969. The record on appeal fills 21 printed volumes, covering some 12,500 pages. On April 16, 1970 — after the hearing before this Court on the issue of approval of the proposed compromise — the Court of Appeals handed down its decision, reversing the judgments of conviction and directing a new trial. 426 F.2d 32. Judge Moore wrote the opinion; Judge Friendly concurred; Judge Hays dissented. The reversal was for errors in the charge of the Court; whether the evidence was sufficient to support the conviction was not decided nor were any questions of patent law decided. The Court noted that “the government’s case, insofar as actual proof is concerned, rests almost entirely upon oral and written statements from defendants themselves. * * * the facts may be said to be virtually undisputed”. The Court placed great stress on the denials of the officers of the three defendants that any agreements as charged in the indictment were made at their meetings; the Court also stressed that the documents agreed to at the meetings showed nothing illegal. The Court stated that because conviction thus depended on the drawing of inferences by the jury contrary to this evidence, “the importance of instructions cannot be overemphasized”. The errors in the Court’s charge were in summary as follows: a. proper attention was not given to the “key issue”, namely, the specific conspiracy charged, but the jury was permitted to infer conspiracy from the course of conduct shown by all the evidence; b. the testimony of McKeen, Malcolm and Schwartz as to their meetings was “vital to any jury decision as to the existence of a conspiracy” but the testimony was “slighted and rather deprecated” in the charge; c. by failing to explain that the Patent Office proceedings were only relevant to a consideration whether Pfizer and Cyanamid had agreed to exclude others at their November 1953 meetings, the charge “virtually diverted” the indictment “from an antitrust conspiracy case to a patent fraud case”; d. the jury’s attention was “diverted” to an “inflammatory” issue, namely, whether there were “unreasonably high prices” (it is not clear whether this issue was considered irrelevant or whether it was felt to have been overemphasized in the charge); e. the jury was improperly limited in considering the “all-important” evidence as to Parke Davis; there was no explanation of the significance of the Parke Davis evidence; and defendants were improperly restricted in argument from such evidence; f. an “incorrect” interpretation was made of the November 1955 Bristol-Squibb-Upjohn agreements; these had no such “limitation on Squibb and Upjohn which barred them from manufacturing” as the Court charged; and g. there should have been, but were not, “the clearest instructions that the jury should not consider Bristol’s part in any of the events prior to December 14-15, 1955 as proof of Bristol’s being in any conspiracy”. While Judge Hays voted to affirm and found the evidence for the government “sufficient” in the “perspective” of a “limited scope of review” he did note that such evidence was “not overwhelming”. E. COMMENCEMENT OF THE CIVIL ACTIONS The first assertions of treble damage claims were by defendants filing counterclaims in patent infringement actions brought by Pfizer and Cyanamid. The first infringement actions by Pfizer were against Bristol, Squibb, and Upjohn; these (to which reference has been made above) were brought on the day the Conover patent issued and, as noted, were settled in December 1955. Pfizer brought no other such actions until October 1960 but after that date and over the next five years Pfizer brought some 80 infringement actions on the Conover patent. A list of these actions is Appendix F to the first opinion of the Sixth Circuit (363 F.2d at 817). One of these infringement actions was commenced by Pfizer on June 4, 1964 in this Court against the City of New York. On July 1, 1964, the City filed an answer containing a counterclaim against Pfizer and against Cyanamid, Bristol, Squibb and Upjohn as additional defendants. This counterclaim asserted a claim for treble damages for violation of the antitrust laws, based on the charges in the indictment. The' counterclaim in substantial part is word for word copied from the indictment. There may have been such a counterclaim earlier in infringement actions brought by Pfizer and by Cyanamid. The counterclaim by the City of New York on July 1, 1964 is the first of the similar claims in the actions now proposed to be settled. In three patent infringement actions brought by Pfizer, treble damage antitrust counterclaims were filed by defendants respectively on September 30, 1965, on August 23, 1966 and on June 26, 1967. These referred to the Federal Trade Commission proceedings and to the indictment. The first action commenced by a plaintiff asserting treble damage antitrust claims against defendants was that of the State of Texas commenced on August 4, 1967 in the Northern District of Texas. Counsel for Texas included some attorneys who were acting for the City of New York in the Pfizer infringement action; it was in this latter action that treble damage claims had been asserted on July 1, 1964 as a counterclaim. The complaint in the action by Texas asserted claims on behalf of a class consisting of the State and all cities and counties in the state which had purchased broad spectrum antibiotics. In the same month, on August 27, 1967, a defendant "in another Conover patent infringement action by Pfizer filed a counterclaim asserting treble damage antitrust claims. On September 18, 1967, two actions asserting antibiotics antitrust claims were commenced in the Central District of California at Los Angeles. One was a class action on behalf of all retail drug stores and the other was a class action on behalf of all private hospitals. At the time of the jury verdict on December 29,1967, there were three actions by plaintiffs and five counterclaims by defendants in which treble damage antitrust claims were alleged on account of purchases of broad spectrum antibiotics. After the verdict of the jury, something over 140 other and similar actions were commenced. The claims made in these civil actions are the same as those made by the Commission and in the indictment. A large number of the actions are brought as class actions under Rule 23 (b) (3) of the Federal Rules of Civil Procedure. The plaintiffs in the actions may be divided into some separate categories, as follows: a. government entities; b. wholesale druggists and retail drug stores; c. private hospitals, Blue Cross associations and the like; d. purchasers of antibiotics for uses other than as medicine for human beings, for example, animal feed, animal medication and the like; and e. all others (a miscellaneous group). It may be useful to describe more fully the actions by government entities. Each state, Puerto Rico and the District of Columbia has commenced a separate action, except for Delaware and Nevada. Delaware is an intervenor plaintiff in an action commenced by City of Philadelphia and City of Detroit in the Eastern District of Pennsylvania (68 Civ. 144 there) and transferred here (68 Civ. 4298 here). Nevada has not commenced an action nor has it intervened in any action. In addition to actions commenced by states, a number of cities and counties have commenced their own actions against defendants. These are as follows (file numbers are those in this Court): Baltimore (68 Civ. 4325) Boston (68 Civ. 4354) Chicago (69 Civ. 901) Denver (68 Civ. 4930) Kansas City, Missouri (69 Civ. 2861) Los Angeles County (68 Civ. 4341) Memphis (68 Civ. 1807) Nashville and Davidson County (69 Civ. 899) New York City (64 Civ. 1742; counterclaim) Philadelphia and Detroit (68 Civ. 4298) San Francisco County and City (68 Civ. 4274) There are a number of government entities which are intervenor plaintiffs in the action of City of Philadelphia and City of Detroit. Delaware has already been mentioned. The following cities are intervenor plaintiffs in that action: Akron Lansing Buffalo Madison Heights Cleveland Pittsburgh Dearborn Santa Clara Honolulu Tampa The following counties are intervenor plaintiffs in that action: Allegheny (Pa.) Erie (New York) Honolulu (Hawaii) Summit (Ohio) The following other government entities are intervenor plaintiffs in that action: Township of Redford (Mich.) Board of Education of the Black Horse Pike Regional School District (N.J.) (The City of Flint, Michigan, was an intervenor plaintiff in that action but has indicated that it prefers to participate in the settlement as a member of a class represented by the State of Michigan in its action (69 Civ. 898 here).) F. THE OFFER OF SETTLEMENT MADE BY DEFENDANTS. Under date of February 6, 1969 (later modified under date of May 9, 1969) the defendants made a written offer of $100,-000,000 in settlement of all of the following claims: “A. Claims of states, counties, cities and their political subdivisions and agencies and any other governmental entities (excluding the Federal Government), arising out of their purchases or out of payments to or for the benefit of recipients of welfare or other aid; “B. Claims of wholesalers, retailerers and individual consumers arising out of their purchases, including claims of states as parens patriae on behalf of their citizens or on behalf of classes including the state as a consumer and all other consumers in the state.” It will be seen that this offer is addressed to claims asserted by government entities (A. above) and by wholesale druggists, retail drug stores and “individual consumers” (B. above). (At the same time, as already noted, defendants offered a sum in settlement of all claims of private hospitals and like claims; that offer is separate, not involved in the present application, and will not be referred to again.) The offer of settlement of February 6, 1969 (modified May 9, 1969) was contained in a printed document which set out the general procedural steps contemplated; this document will be sometimes referred to as the “settlement plan”. (A paper dated December 4, 1969 and signed by counsel to defendants was handed at some point to the Court. This paper changes the date “February 6, 1972” in line 17 of page 3 of the settlement plan to “December 31, 1972”.) The procedure set out in the settlement plan was, in brief, that appropriate actions would be determined to be maintained as class actions; that the required (Fed.R.Civ.P. 23(c) (2)) notices with option to be excluded from the class would be directed to all class members; that if exclusions were “substantial and material” defendants could withdraw; that if defendants should go forward with the settlement, the $100,000,000 settlement figure would be reduced appropriately to reflect the exclusions from class membership; that any plaintiff accepting the settlement could present to the Court a Proposed Plan for the allocation of the global settlement amount; that if all plaintiffs did not agree on a common Plan, then defendants might elect to proceed with any Proposed Plan or modification thereof; that the proposed compromise embodied in the agreed common Plan or the Plan elected by defendants would be submitted to the Court for approval under Rule 23(e) of the Federal Rules of Civil Procedure; that administrative and other costs incurred in the settlement procedure should be paid from the settlement amount; and that if the settlement were approved, all claims covered thereby would be “satisfied or otherwise terminated”. G. COURT PROCEEDINGS ON THE PROPOSED COMPROMISE 1. The May 26, 1969 Order The offer of settlement having been accepted in principle by nearly all the plaintiffs to which it was addressed, an order was filed on May 26, 1969 which began the administration contemplated by the offered settlement. This order was made after notice to counsel for all parties affected and after a hearing. The order treated the settling plaintiffs in two groups: (1) the states, Puerto Rico and the District of Columbia (often referred to collectively as “the states”); and (2) wholesalers and retailers. As to the group (1) plaintiffs, the May 26, 1969 order provided a “temporary national class action” (West Virginia v. Pfizer, 68 Civ. 240 in this Court) from which any of the plaintiff states not accepting the offer of settlement could by notice exclude themselves. Alternatively, any state (as defined in the order) which on or before June 10, 1969 filed with the Clerk of this Court a statement in writing that it accepted the offer of settlement but did not wish to become a member of the “temporary national class” could maintain its action as a class action and become an accepting state without having been included in the “temporary national class”. A number of states accepted the offer of settlement under this alternative procedure. It was provided that as to the states accepting the offer of settlement, each action commenced by them was to be maintained as a class action (Fed.R. Civ.P. 23(c) (1)) for two classes, described in detail in the order but in summary as follows: (a) state, county, and city hospitals and other institutions; and (b) individual members of the consuming public who bought antibiotics in the state. The May 26, 1969 order provided that city and county government entities which as plaintiff or intervenor plaintiff had pleaded by June 10, 1969 a class claim on behalf of consumers resident within their territorial limits could maintain a class action as proper representatives of the class. As to the group (2) plaintiffs, the May 26, 1969 order provided that those actions commenced by wholesale druggists and retail drug stores which had accepted the offer of settlement were consolidated as the “consolidated wholesaler-retailer class action”. The actions so consolidated were listed in the order; as to them the caption usually employed is that of Alpine Pharmacy, Inc. (69 Civ. 559 here), the first in alphabetical order. It was determined that the consolidated action was to be maintained as a class action. The members of the class were specified to be all purchasers of broad spectrum antibiotics in any of the states who bought “for resale at wholesale or retail”. The order provided that the plaintiffs and class members in the consolidated action were to be represented by a committee of counsel comprised of all counsel then of record in the actions consolidated. The May 26,1969 order stated that the class action determinations and the classes established were for the purpose of administering the proposed settlement. 2. Acceptances of Settlement Offer by Government Entities The May 26, 1969 order was directed to the states as notice to members of the “temporary national class” (Fed. R.Civ.P. 23(c) (2)) and copies of the order were sent to each member of the class. All the states accepted the offer of settlement except Calirornia, Hawaii, Kansas, North'" Carolina, Oregon, Utah and Washington. It will be remembered that Nevada did not commence an action nor intervene in an action. Nevada accepted the settlement offer, however, because it did not elect to be excluded from the “temporary national class” after service on it of the May 26, 1969 order. For purposes of administration of the settlement offer, Nevada, its institutions and consumers, are members of classes represented in the class action, West Virginia v. Pfizer (68 Civ. 240 here). All the other government entities accepted the settlement offer except Kansas City (Missouri) which excluded itself from the settlement by notice filed June 10, 1969. 3. Notices Under Rule 23(c) (2) Having determined that certain actions were to be maintained as class actions, it was then necessary to direct to members of the classes the notice required by Rule 23(c) (2). The May 26, 1969 order had instructed the class representatives to submit drafts of notices. The Court then prepared the notices and, by orders filed June 16, 1969 (and in a few actions modified by later orders), these were directed to be sent out. As to the class actions by government entities, two orders were filed in each such action in which two classes, institutions and consumers, were represented and one order was filed in each such action in which one class, consumers, was represented. The order as to institutional class members directed notice by first class mail on or before June 26, 1969 to all government entities and institutions within the state. The mailing list of class members was to be supplied by the parties, usually the class representative. The notice described the situation generally and included a copy of the settlement plan. The class members were given until August 1, 1969 to exclude themselves from the class. The order as to consumer class members directed that notice be given by publication of the prescribed form of notice on or about July 1, 1969 in every daily English and Spanish language newspaper of general circulation in the state. The consumer class members were given until August 1, 1969 to exclude themselves from the class. They were also notified that if they wished to make a claim in the settlement they were required to file by August 16, 1969 a verified statement or a statement certified by the supplier. The notice to consumers also contained this statement: “If you do not make an individual claim by August 16, 1969, that will constitute an authorization to the Attorney General [in the District of Columbia and in some other government entities the chief law officer was referred to by a different title] to utilize whatever money he may recover as your representative for the benefit of the citizens of your State in such manner as the Court may direct.” As to the consolidated wholesaler-retailer class action, one order as to notice was filed on June 16, 1969 and modified in one respect by order filed June 18, 1969. Notice in the prescribed form was directed to be given by first class mail on or before June 19, 1969. The names and addresses of the class members were to be obtained by using the mailing list of Clark-O’Neill, Inc., 1 Broad Avenue, Fairview, New Jersey 07022, a business engaged in maintaining a mailing list of wholesale drug houses and retail drug stores in the United States. The wholesaler-retailer class members were given until August 1, 1969 to exclude themselves from the class. They were also given until August 16, 1969 to file a claim in the settlement; a claim form to be verified was annexed to the notice. The notices were duly given as provided in the orders. The notices were in all instances signed by the Clerk and those sent by mail were sent in penalty envelopes with the Clerk’s return address. All notices of exclusion and all claims were required to be addressed to the Clerk. Counsel for the parties, Clark-O’Neill, Inc. and an advertising agency assisted the Clerk. Defendants were directed in the orders to advance the necessary funds (the newspaper notices cost about $130,000), to be reimbursed as an expense of the settlement if the settlement proposed were finally approved by the Court. 4. Problems in California As noted above, the State of California chose to reject the offer of settlement. At the time of the Rule 23(c) (2) notices, Los Angeles County and San Francisco County had chosen to accept the offer of settlement; so also had the City of Santa Clara, California, an intervenor plaintiff in the City of Philadelphia and City of Detroit action. Out of this situation arose the issue whether within a state rejecting the settlement offer, a smaller political subdivision (county or city) having its own action against defendants could maintain such action as a class action and accept the offer of settlement. The State of California protested that it could not be done. Los Angeles County, wishing to accept the settlement, sought to amend its complaint so as to allege claims on behalf of consumers within its geographical limits. California opposed. This Court ruled that within a rejecting state a county, but not a city, could maintain a class action independent of the state. By order filed June 18, 1969, the amendment sought by Los Angeles was allowed and a determination made that Los Angeles could maintain its action as a class action. By separate order filed the same date, Rule 23(c) (2) notice was directed to be given to the consumer class represented by Los Angeles County by publication in newspapers there. A stay sought by California was denied, as well as a statement under 28 U.S.C. § 1292(b). San Francisco (a county as well as a city), wishing to accept the settlement, had, by order on a stipulation filed April 29, 1969, amended its complaint to assert claims on behalf of consumers within its geographical limits. By order filed June 19, 1969, it was determined that the action of San Francisco could be maintained as a class action. By separate order filed the same date, Rule 23(c) (2) notice was directed to be given to the consumer class represented by San Francisco by publication in newspapers there. California applied to the Court of Appeals for a stay pending an application for an extraordinary writ. The Court of Appeals denied a stay on June 25, 1969 (California v. Wyatt, MR-3097 ; (Hays, Feinberg, CJJ., Jameson, D.J.). Mr. Justice Harlan thereafter denied a stay. The principle of the ruling (as stated above) dictated that Santa Clara, a city and not a county, should not maintain a class action on behalf of consumers within its geographical limits. By order filed June 19, 1969, it was so provided and no Rule 23(c) (2) notice was given to any consumers within the geographic limits of Santa Clara. 5. Responses to the Rule 23(c) (2) Notices Notices of exclusion were filed by 61 members of the classes consisting of government entities and institutions. Notices of exclusion were filed by 42 members of the classes consisting of individual purchasers of antibiotics. Notices of exclusion were filed by about 1500 members of the class consisting of wholesalers and retailers. In connection with the number of exclusions from this class, it may be noted that under date of June 27, 1969 the Executive Director of the American Pharmaceutical Association wrote about the settlement offer to executives of state pharmaceutical associations. Among other things, this letter stated that American Pharmaceutical Association “has urged pharmacists not to submit claims against the settlement funds unless actual damage can be demonstrated * * *” and further that “adverse public reaction could well result if pharmacists obtain a share of the settlement funds and do not pass amounts received on to patients”. Claims were filed by about 38,000 members of the classes consisting of individual purchasers of antibiotics. The face amount of the purchases made by these claimants is something in excess of $16,500,000. Claims were filed by somewhat more than 4100 members of the class consisting of wholesalers and retailers. The face amount of the purchases made by these claimants is in excess of $345,-000,000. 6. Proposed Plans of Allocation The defendants did not elect to withdraw from the settlement by reason of the exclusions from the various classes. They were given such withdrawal right by paragraph III.B of the settlement plan. They elected to go forward with the settlement. The settlement plan provided that any plaintiff accepting the settlement could file by a date determined by a formula (September 2, 1969, it appears) a “Proposed Plan for the Allocation of the Fund”. The allocation is of importance, of course, because the offer of defendants was of an unallocated total sum for all plaintiffs and all classes. Proposed Plans of Allocation were filed as follows: a. by counsel for the State of Alabama and for 29 other states, Puerto Rico, the District of Columbia, Chicago, New York City, Memphis and Nashville (the “Alabama Plan”); b. by counsel for the State of Connecticut and for 5 other states, Baltimore, and Denver; c. by counsel for Los Angeles County; d. by counsel for the City of Philadelphia and City of Detroit and for intervenor plaintiffs in that action, including the State of Delaware; e. by counsel for the County and City of San Francisco; f. by the committee of counsel in the consolidated wholesaler-retailer class action; and g. by counsel for the State of Vermont. 7. The Alabama Plan This plan will be described in some detail because, with modifications, it was later adopted by defendants and moreover was the most comprehensive of the plans filed. The Alabama Plan divided the $100,-000,000 sum offered between all the claims asserted in all the relevant actions, even though some plaintiffs had rejected the settlement offer. The division having thus been made, the Plan affords a basis for reducing the $100,-000,000 amount to reflect the claims represented by plaintiffs rejecting the settlement offer. Provision for such reduction was made in paragraph III.D of the settlement plan. The theory of the Alabama Plan is that claims of government entities on account of institutional purchases and welfare reimbursements are entitled to first priority on the settlement fund. The reasoning is that the dollar amount of these purchases and payments can be calculated with reasonable accuracy and the damages, on the assumption of liability, are direct and provable. The dollar amount of purchases by individual consumers unreimbursed (that is, not welfare patients) are not so easily calculated and as to claims of wholesalers and retailers these may be affected, among other things, by the “pass-on” defense. The allocation for institutional purchases starts with the dollar amount of sales of antibiotics to government entity institutions, wholesalers and retailers for the period believed by the proponents to be relevant. Sales information was supplied by defendants. Some part of the sales to wholesalers and retailers were actually sales through them to government entity institutions as “drop-shipments” by defendants with a handling allowance to the wholesalers or retailers concerned. After adjustment for these sales, it was determined that the dollar amount of sales to government entity institutions was $121,620,000. It was then assumed that, absent the claimed antitrust law violations, competitive prices would have been much lower; it was calculated that the prices actually charged contained an overcharge of 66%%. Allowing for uncertainties in law and in fact, it was concluded that for settlement purposes an overcharge figure of 40%-41% could properly be used. This figure is said to have been used in negotiations which preceded the $100,-000,000 offer by defendants. Applying a 41% overcharge figure to the sales figure of $121,620,000 yielded a figure of $49,864,200 or, rounded off, $50,000,-000. During what was felt to be the relevant period, many states, counties and cities had public assistance (welfare) programs under which eligible persons having prescriptions for antibiotics could obtain these from drug stores which in turn would be reimbursed by the public authorities. It was calculated that $48,600,000 was spent by states, counties and cities as reimbursement to vendors for antibiotics delivered to welfare patients. This calculation was based on information from the Department of Health, Education and Welfare that $900,000,000 had been paid (in the period believed to be relevant) as public assistance for drugs of all kinds. As a result of special studies and of earlier surveys in several localities, it was concluded that about 5.4% or $48,-600,000, of the $900,000,000 represented vendor reimbursement for antibiotics. The federal government paid about 50% of the public assistance programs. The proponents believed that claims on account of the 50% public assistance paid by the federal government were not covered by the settlement offer (whether this be true or not need not be, and is not, determined). For allocation purposes, the share paid by states, counties, and cities was used, that is, 50% of $48,600,000, or $24,300,000. It was then assumed that, absent the claimed antitrust law violations, competitive prices by defendants to vendors (retail drug stores, mainly) would have been lower and reimbursement payment would have been much lower; it was then calculated, but by a different method from that employed for institutional purchases, that the vendor reimbursement sum of $24,800,000 contained an overcharge of 66%%; applying the same overcharge figure for settlement purposes of 41% to the vendor reimbursement sum of $24,300,000 resulted in a settlement figure of $9,963,000 or, rounded off, $10,000,000. The allocation therefore was $60,000,-000 to government entities — of which $50,000,000 was for institutional purchases and $10,000,000 for vendor reimbursement. The allocation of $60,000,000 to government entity claims left $40,000,000 to be divided between (a) claims of wholesalers and retailers and (b) claims of individual unreimbursed purchasers (consumers). The amount to be allocated to claims of wholesalers-retailers was first determined. The proponents felt that in principle nothing should be allocated to these claims because the members of this class sold nearly all their antibiotics to consumers and passed on any and all overcharge. (This problem was considered in a different context in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968).) It was also taken into consideration by the proponents that the offer of defendants contemplated and the Alabama Plan provided for, payments in settlement to individual purchasers (consumers). The proponents felt that members of the wholesaler-retailer class actually made more profits as a result of the assumed violations of law. However, in order to secure the agreement of the wholesaler-retailer class to the settlement, a “nuisance value” allocation of $3,000,000 (a somewhat arbitrary figure) was made to this class. This left $37,000,000 for the claims of individual purchasers (consumers). It will be remembered that some 38,000 consumers filed claims having a face amount of something in excess of $16,-500,000. In this connection, the Alabama Plan (pp. 24, 25) makes these statements : “As of midnight August 16, 1969, some 38,000 individual consumers filed claims in accordance with this Court’s July 1, notice. This is the first time that individual consumers — those who actually paid the overcharge caused by a defendant’s antitrust violations — will .participate in an antitrust setlement. VThe $37,000,000 fund will provide a basis for payment of all individual consumer claims and will also provide a surplus from which the indirect benefit contemplated by this Court’s July 1 notice may be conferred upon consumers as a whole) ****** “After payments to individual consumers who have filed claims in accordance with the Court’s notice are deducted from each entity’s consumer fund, the balance, if any, should be held for distribution in accordance with each entity’s internal, or second-stage allocation plan. Most entities joining in this allocation plan will seek court approval in their second-stage allocation plans for an additional period of time within which individual consumers may be permitted to file claims. Others may seek court approval to use the balance of their consumer fund for a public health purpose. This Court has the power, and, of course, should exercise its equitable control over these funds for the benefit of all consumers.” The Alabama Plan, to recapitulate to this point, divided the $100,000,000 as follows: Government entity claims institutional purchases 50.000. 000 vendor reimbursement programs 10.000. 000 Individual purchaser claims 37,000,000 Wholesaler-retailer claims 3,000,000 $100,000,000 The next problem in the allocation was to divide the $50,000,000 fund for institutional purchases between the various government entity plaintiffs acting as class representatives. This was done by use of the number of hospital beds in institutions of, or represented by, each such plaintiff, applied as a percentage of the total number of hospital beds in the United States and Puerto Rico. Figures on hospital beds were taken from the American Hospital Association Guide for the years 1955, 1961 and 1967 (as to certain hospital beds in Puerto Rico, figures were taken from the Puerto Rico Hospital Registry, as being more complete). The percentage figure was then obtained for each of the years 1955, 1961 and 1967; the average of these three percentages was used in making the division of the $50,000,000 amount. A similar problem was the division between government entity plaintiffs in respect of the $10,000,000 vendor reimbursement fund. Some states had no such public assistance programs and thus were excluded from any share of this fund. In dividing the $10,000,000 amount between the states having public assistance vendor reimbursement programs, the basic information was obtained from a yearly publication “Source of Funds Expended for Public Assistance Programs” published by the Department of Health, Education and Welfare, Social Security Administration, Bureau of Public Assistance, Division of Program Statistics and Analysis. This information showed for each state the dollar amount of vendor reimbursement for drugs supplied for each year under public assistance programs, broken down (after 1959) by type of program (that is, Old Age Assistance, Aid to Families with Dependent Children and the like). The special studies and earlier surveys, to which reference has been made, indicated for each type of program the percentage of all drugs attributable to antibiotics. By use of these percentages it could be calculated how much each state spent for antibiotics under vendor reimbursement programs (where no breakdown by program was available, as in 1959, a slightly different method had to be used). It was then determined what percentages these amounts were of the total amount spent by all states for antibiotics under vendor reimbursement programs. These percentages were then applied to the $10,000,000 amount to determine the share of each state in that amount. The $37,000,000 which had been allocated to claims of individual purchasers (consumers) had to be divided into the amount applicable to each class of consumers represented by each government entity plaintiff. This division was made on the basis of the percentage of the total population (including Puerto Rico) represented by the populati