Full opinion text
MEMORANDUM IN SUPPORT OF ORDER OF DIRECTED VERDICT HANSON, Chief Judge. This is an action by motion picture theatre corporations against motion picture distributors and exhibitors to recover damages for, and obtain injunctive relief from, alleged violations of Sections 1 and 2 of the • Sherman Act. Plaintiffs’ complaint alleges that between March 15, 1970 and March 15, 1974 there existed in the Omaha, Nebraska-Council Bluffs, Iowa market area an overall conspiratorial arrangement, between and among all distributor and exhibitor defendants, which unlawfully interfered with plaintiffs’ ability to obtain first-run motion pictures for their Omaha theatres. Jurisdiction is predicated upon Sections 4 and 16 of the Clayton Act and are not in dispute. At this stage of the proceedings, with plaintiffs having rested their case, there remain pending before this Court several motions. More specifically, these motions include (1) defendants’ motions to disqualify plaintiffs’ expert and preclude said expert’s testimony, filed July 18, 1977; (2) defendants’ motions for mistrial, filed July 18,1977; (3) defendants’ motions for directed verdict, filed July 21, 1977; and (4) plaintiffs’ motion to admit evidence as to all defendants, filed August 3, 1977. Of primary concern to this Court are defendants’ motions for directed verdict filed pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, and it is to these motions that this memorandum directs its focus. The Court, after thoroughly reviewing plaintiffs’ evidence and the parties’ written arguments, has concluded that the motions for directed verdict are of merit and must be sustained in their entirety. With these^ motions sustained, all other pending motions, only briefly mentioned herein, are rendered moot. I. PRETRIAL PROCEEDINGS The Court, prior to addressing the motions for directed verdict, digresses to note the historical development of this case. Such background places the present ruling in its proper context and further suggests an underlying reason for the inability of plaintiffs’ case to survive directed verdict motions. Plaintiffs filed their complaint in the United States District Court for the District of Nebraska on March 15, 1974. Nearly three years later, on January 17, 1977, this Court, pursuant to 28 U.S.C. § 292(b), was designated by the Chief Judge of the United States Circuit Court of Appeals for the Eighth Circuit to complete the processing and trying of plaintiffs’ cause of action. This Court, on January 28, 1977, accordingly ordered that all parties were to appear for a final pretrial conference on February 22, 1977. At that pretrial conference, it became apparent that the lawsuit and attendant discovery proceedings, for whatever reason, had been essentially stalled for almost a year. Without assessing blame for the inaction, the Court, attempting to ensure justice for all party litigants, adjusted its schedule and permitted the plaintiffs additional time to conduct further discovery. While the scope of plaintiffs’ discovery requests were necessarily limited, both in fairness to the defendants and so as to complete the trial within the Court’s out-of-district time designation, they were given considerable latitude in their exploration of defendants’ alleged conspiratorial activities. Defendants’ motions to limit proof at trial to those first-run films upon which plaintiffs had made demand were overruled, and plaintiffs were confined only to first-run films released in the Omaha-Council Bluffs market area between March 15, 1970 and March 15, 1974. After these rulings, which were filed in March of 1977, the proceedings were marked by plaintiffs’ failure to meet Court imposed deadlines and to take full advantage of those further discovery opportunities that had been permitted. The Court does not herein raise plaintiffs’ dilatoriness and inadequate trial preparation, which the record fully documents and which in itself would have been sufficient grounds to dismiss the case, for the purpose of coloring or lending support to its present ruling; rather, it is to suggest that a contributing reason, if not indeed a major reason, for plaintiffs’ inability to survive directed verdict motions is that the foundation upon which they attempted to build their case was incomplete and unsound. For that, and the case’s subsequent collapse, plaintiffs have only themselves to blame. II. PLAINTIFF’S EVIDENCE In considering defendants’ motions for directed verdict, the Court, before appraising the legal contentions, reviewed plaintiffs’ evidence and has determined that the following enumerated facts are not in dispute or are facts upon which reasonable persons would not disagree. See Fed.R.Civ.P. 50(a); 5A Moore’s Federal Practice ¶ 50.02[1]. A few of these fact enumerations are of a descriptive nature, seeking merely to identify controverted evidence that plaintiffs undeniably offered in support of their case. 1. The plaintiffs are three Nebraska corporations which owned theatres and exhibited first-run motion pictures in the Omaha, Nebraska-Council Bluffs, Iowa, market during the time period in question, March 15, 1970 to March 15, 1974. Specifically, plaintiffs, whose exhibition of motion pictures was confined to Omaha, are known as the Admiral Theatre Corporation, the Chief Theatre Corporation, and the Benson Drive-In Corporation, and said plaintiffs owned and operated the Admiral Theatre, the Chief Theatre, and the Skyview Drive-In, respectively. 2. Plaintiffs are incorporated in the State of Nebraska, with all stock throughout the period being owned by Ralph Blank or members of his immediate family. Ralph Blank, his wife, Geraldine, and his son, Robert, all participated in the operation of plaintiff theatres during the period between March 15, 1970 and March 15, 1974. While Ralph Blank was the principal operating officer for all three theatres, Robert Blank’s responsibilities increased after his father’s heart attack in the spring of 1971. Since the death of Ralph Blank in November, 1976, Robert Blank has become the principal operating officer for the Admiral and Skyview theatres. 3. The Admiral Theatre, a single screen, indoor motion picture theatre which is located at Fortieth and Farnam Streets in Omaha, was built and opened by Ralph Blank in approximately 1940. It is situated in a residential and light commercial area, approximately one and one-half miles from the central business district of downtown Omaha. During the relevant time period, the Admiral was a first-run motion picture theatre and had a seating capacity ranging from 866 to approximately 966. 4. The Chief Theatre was built and opened by Ralph Blank during 1945. Located on South 24th Street, between K and L Streets, a commercial area approximately three miles from the center of downtown Omaha, it too was a single screen, first-run indoor motion picture theatre. The Chief had a seating capacity in excess of 1200 during the relevant period. Between December 20,1971 and July 15,1972, the Chief was closed for repairs following a disturbance during a movie in which the theatre was damaged. The Chief was closed permanently on December 10, 1972 due to substantial operating losses. In commenting upon the closing of the Chief Theatre, Robert Blank, in a published letter to a trade journal, noted the demise of the packinghouses in South Omaha and observed that “ ‘business just isn’t there.’ ” 5. Opened by Ralph Blank in 1954, the Skyview is a single screen outdoor drive-in theatre, which is located at 72nd and Hartman Streets in Omaha. The drive-in, which is situated in a light commercial and residential neighborhood with some industrial development to the north and a public golf course immediately adjacent to the south, has a capacity of approximately 1200 automobiles. 6. Exhibitor-defendants, competitors of the plaintiff exhibitors, owned, operated, or managed first-run movie theatres in the Omaha-Council Bluffs market area during the period between March 15, 1970 and March 15, 1974. These defendants include: The Douglas Theatre Company, a Nebraska corporation, and Russell Brehm, a Nebraska resident and an officer of The Douglas Theatre Company; the Cooper Theatres, Inc., a Nebraska corporation, and Elwood Thompson and Herman Hallberg, Nebraska residents and officers of Cooper Theatres; the American Multi-Cinema, Inc. (AMC), a Missouri corporation, and Stanley Durwood, a Missouri resident and an officer of AMC; J.S.B. Amusement Corporation of Nebraska, a Nebraska corporation, and Sarge Dubinsky and Irwin Dubinsky, Nebraska residents and officers of J.S.B.; the Mann Theatres Corporation of California, a California corporation, and Theodore Mann, a California resident and an officer of Mann Theatres; and Northwest Cinema Theatre, a Delaware corporation, and Melvin Lebewitz, a Minnesota resident and an officer of Northwest Cinema. 7. The evidence indicates that the theatres operated during the relevant time period in the Omaha-Council Bluffs market area by defendants Cooper Theatres, AMC, J.S.B., Mann Theatres, and Northwest Cinema were part of a chain or circuit of movie theatres operating outside of the market area. 8. As shown in the following table, exhibitor-defendants, at some time during the relevant period, operated 15 theatres in the Omaha-Council Bluffs area. Of these 15 theatres, five are multiscreen theatres, bringing the total number of screens operated by the exhibitor-defendants to 28. However, because of the opening, closing, and selling of several of these theatres, the 28 screens were never being operated by the defendants at one time during the relevant time period. 9. The exhibitor-defendants operated these following theatres in the market area during the relevant time period: OWNER & THEATRE TYPE DATES OF OPERATING TOTAL SEATING BY DEFENDANTS DUR-NO. OF OR CAR (O ING RELEVANT TIME SCREENS CAPACITY PERIOD Douglas: Capri Carter Lake, Iowa Drive-In 750C 3/15/70 - 9/20/72 Cinema II 2828 So. 82nd Av. Omaha, Nebraska Indoor 550 3/15/70 - 3/15/74 Cinema Center 2828 So. 82nd Av. Indoor 812 3/15/70 - 3/15/74 84th & Center Omaha, Nebraska Drive-In 820C 3/15/70 - 3/15/74 Q-Twin 3433 No. 90th St. Omaha, Nebraska Drive-In 700C 3/15/70 - 3/15/74 Maplewood Twin 3433 No. 90th St. Omaha, Nebraska Indoor 2 No.1: 350 No.2: 350 10/31/73 - 3/15/74 Q-Cinema 4 5909 South 120th Omaha, Nebraska Indoor 4 No.1: 400 No.2: 300 No.3: 300 No.4: 400 6/28/72 - 3/15/74 OWNER & THEATRE TYPE DATES OF OPERATING TOTAL SEATING BY DEFENDANTS DUR-NO. OF OR CAR (C) ING RELEVANT TIME SCREENS CAPACITY PERIOD__ Cooper: Cooper 70 Indoor 1410 Douglas Omaha, Nebraska 687 3/15/70 - 3/15/74 Dundee Indoor 4952 Dodge Omaha, Nebraska 475 3/15/70 - 3/12/74 Indian Hills Indoor 8601 W.Dodge Rd. Omaha, Nebraska 804 3/15/70 - 3/15/74 AMC: Six-West Indoor 245 Boston Mall Westroads Shopping Ctr. Omaha, Nebraska No.1: 290 No.2: 319 NO.3: 280 No.4: 259 No.5: 259 No.6: 210 3/15/70 - 3/15/74 J.S.B.: Astro Theatre 2001 Farnam Omaha, Nebraska Indoor 1454 12/13/72 - 3/15/74 Mann: Fox Westroads Indoor 264 Boston Mall Westroads Shopping Ctr. Omaha, Nebraska 756 6/30/73 - 3/15/74 Strand Indoor 6th & Broadway Council Bluffs,Iowa (?) 6/30-73 - 1/1/74 Northwest: Park 4 8558 Park Drive Ralston, Nebraska Indoor No.1: 291 No.2: 238 No.3: 238 No.4: 296 7/7/72 - 3/15/74 10. In addition to those theatres owned by the exhibitor-defendants at some time during the period between March 15, 1970 and March 15, 1974, other theatres were operating in the Omaha-Council Bluffs market area. These additional theatres included the Council Bluffs, Golden Spike, and the 76th and West Dodge drive-in theatres, and the Beacon, Bellevue, Center, Crest, Military, Muse, Omaha, Orpheum, Papio, Pussycat and Cinema 16 indoor movie theatres. Together with the predominantly sub-run Strand Theatre in Council Bluffs, these theatres, with the exception of the Orpheum Theatre, were not significant factors in the distribution of quality first-run film in the Omaha-Council Bluffs market during the relevant time period. 11. The distributor-defendants conduct national operations and, at all times relevant to this lawsuit, were in the business of distributing copyrighted first-run motion picture films to exhibitors in the Omaha-Council Bluffs market area. The distribu- tor-defendants include seven different corporations: Allied Artists Pictures Corporation, a Delaware corporation with its principal place of business in New York, New York; Avco Embassy Pictures Corporation, a New York corporation with its principal place of business in New York, New York; Columbia Pictures Industries, Inc., a Delaware corporation with its principal place of business in New York, New York; Paramount Pictures, a Delaware corporation with its principal place of business in New York, New York; Twentieth Century-Fox Film Corporation, a Delaware corporation with its principal place of business in Beverly Hills, California; Universal Film Exchanges, Inc., a Delaware corporation with its principal place of business in New York, New York; and Warner Bros. Distributing Co., a New York corporation with its principal place of business in Burbank, California. 12. Not all film distributors distributing first-run motion pictures in the Omaha-Council Bluffs market area during the relevant period are defendants in this lawsuit. Non-defendant distributors include United Artists, American International Pictures, Buena Vista (Walt Disney productions), MGM, and other smaller independent motion picture distributors. 13. In distributing motion pictures to exhibitors, distributors do not sell them. Rather, the rights to exhibit motion pictures are acquired by exhibitors under license agreements from the distributors covering specified and limited terms of exhibition in return for which the exhibitors pay license fees or “film rental.” The objective of the distributor is to obtain the greatest percentage of film rental it can from the first exhibition of a picture, as first-run gross receipts are the highest. 14. While the method for licensing pictures is the independent and individual choice of the distributor, distributor-defendants licensed first-run pictures in Omaha on a system of competitive bidding and negotiation. Under this system bid invitations were sent at the same time to Omaha exhibitors from the branch office of the distributors — Avco Embassy (Minneapolis), Allied Artists (Kansas City), Columbia (Des Moines), Paramount (Des Moines), Twentieth Century-Fox (Des Moines), Universal (Des Moines), and Warner Bros. (Des Moines). These bid invitations set forth the availability date of the picture, and oftentimes also contained minimum terms as to film rental (as a percentage of the gross receipts), opening dates, minimum play time, holdover terms, sharing of advertising expenses, and film rental guarantees or advances. Sometimes the invitations also indicated whether the picture was being offered for exclusive or multiple (day and date) exhibitions, or whether the exhibitor could submit offers for either exclusive or multiple runs, or both. Bid invitations further specified date and time within which bids had to be received by the distributor’s branch office in order to receive consideration. - 15. Exhibitors responded to bid invitations by submitting written offers of terms or by written or oral notification that they were not submitting a bid but would be willing to negotiate if no bids were accepted. All such bids received were opened on the date due and forwarded by the branch manager to the regional or home office for evaluation. Frequently, the branch managers would also forward a recommendation. 16. A final decision on the bids was made at the regional or home office and the branch manager received instructions either to notify the exhibitors that the picture had been awarded on bid or that all bids had been rejected. Bid invitation letters or forms reserved to the distributor the right to reject all bids and license the picture by direct negotiation. 17. If all bids were rejected, the branch managers were instructed either to rebid the picture or to enter into negotiations to secure the best licensing agreement possible. When the picture was to be negotiated, the branch managers notified exhibitors of their intent to negotiate the license of a picture. Some distributors notified only exhibitors who responded in writing to the bid invitation; others notified all exhibitors to whom bid invitations were sent. In the former situation, where only one bid was submitted, the negotiation might be “noncompetitive”; whereas in the latter sitúation, the negotiation would be “competitive.” 18. Negotiations were generally conducted orally over the telephone, but frequently the terms were confirmed in writing by the exhibitor by letter or telegram. Offers received on negotiations were also subject to approval by the regional or home office. 19. Final acceptance of an offer by either bid or negotiation was followed by a written license agreement. Although advertising terms were included in these agreements, separate advertising agreements, for determining the distributors’ contribution to the expense for advertising the picture, were often entered into. The licensing agreement between the distributor and exhibitor did clearly specify the theatre and screen at which the picture would be shown, the opening date, the length of the engagement, the terms, if any, on which the exhibitor would hold over the picture after the initial term, whether the exhibitor had a right to an exclusive exhibition or whether it would play the picture simultaneously (day and date) with other theatres, the time, if any, which had to elapse after the end of the run before the picture would be available for a subsequent run (“clearance”), and most importantly, the method by which film rental would be computed and paid. 20. In most cases, film rental was determined by a percentage of the gross box office receipts. The method of dividing these receipts varied. One common formula, however, was to total gross receipts each week, deduct from that an agreed upon “house allowance” and divide the balance 90% to the distributor and 10% to the exhibitor. These contracts, which are generally called “90/10” contracts, also included percentage “floors” that usually decreased over the term of the contract. The floors set minimum percentages on weekly box office receipts which would be allocated to the distributor as film rental. Thus, a computation would be made by both the 90/10 method (after deducting the house allowance) and by the percentage “floor” (without regard to any house allowance deduction), and the distributor would receive the greater amount produced by either of these methods. Another method of paying film rental was by contracts specifying a straight percentage division of gross receipts, which generally decreased each week over the run of a film. Still other contracts specified for the particular theatre a percentage division based on a “sliding scale,” a table setting forth percentage divisions of gross receipts as film rental for corresponding ranges of grosses. A few contracts simply specified a flat dollar amount for film rental. 21. In some instances, the distributors requested in their bid invitations that exhibitors include a guarantee of film rental in a specified sum. A guarantee would be paid by the exhibitor regardless of whether or not the picture generated that amount in film rental under the contract terms. Guarantees were generally required to be paid in advance to exhibition, but are to be distinguished from “advances,” which were specified amounts that some bid invitations also requested of exhibitors prior to exhibition of a film. Unlike the guarantee, the advance was merely applied against the film rental actually earned under the contract terms, and any portion of the advance not so applied was refundable to the exhibitor. 22. In the licensing of films to exhibitors, the distributors could control the terms of the final agreement and settlement. Not stating any dates by which award decision would be made, bid invitation letters or forms specifically reserved to the distributor the right to reject all bids, even bids that met the minimum suggested terms. The licensing agreement forms utilized by the distributors during the relevant time period to contract the exhibition of films in the Omaha-Council Bluffs market also contained certain penalty clauses or liquidated damage provisions that could be exercised by a distributor should an exhibitor fail to show the film for the period specified by the licensing agreement. On occasion, after the film had been licensed by competitive bidding or negotiation, distributors would request adjustment of contract terms from exhibitors or would grant such adjustments to exhibitors. The practice and frequency of granting adjustments varied among distributors, but were sometimes granted where gross receipts for a particular picture were unexpectedly low or where other circumstances involving the showing of a film by an individual exhibitor warranted such treatment. 23. The term “moveover” refers to the practice of taking a picture off the screen indicated in the licensing agreement and moving it to another screen or theatre for exhibition. During the relevant time period, some distributors permitted exhibitors to move over films in market area theatres as a continuation of the first run, a practice which permitted exhibitors to compensate for bidding errors of over- or underestimating patronage of a film by placing it in a correspondingly smaller or larger auditorium or theatre. Distributor-defendants Paramount, Universal, and Warner Bros, had company policies prohibiting moveovers by exhibitors. 24. In evaluating exhibitor offers, the distributor had to make a judgment as to which theatre offered the greatest revenue producing possibility. The distributors had to weigh not only the contract terms offered by an exhibitor, but also the “grossing potential” of the theatre offered; that is, the demonstrated ability of the theatre to attract patrons, which is largely a matter of physical quality and location. 25. Though playing some subrun motion pictures, plaintiffs and exhibitor-defendants were primarily interested in licensing first-run film. Quality first-run films were in short supply in the Omaha-Council Bluffs market area during the period from March 15, 1970 to March 15, 1974. Furthermore, the construction in the late 1960’s and early 1970’s of several theatres (including several with multiple screens) in the western sections of Omaha, to where there was a gradual population movement, substantially increased the number of screens competing for available first-run pictures. While all theatres experienced difficulty in obtaining product, this was particularly true of theatres in downtown Omaha. By the summer of 1974, the Astro, which was owned and operated by exhibitor-defendant J.S.B., and the plaintiff Admiral Theatre were the only viable first-run downtown theatres. Exhibitor-defendant Cooper Theatres had sold the Dundee in March of 1974 and closed the Cooper 70 in June of that year. Exhibitor ABC Midwest had also closed the Orpheum. 26. In response to the shortage of quality first-run film, which had created a sellers’ market highly favorable to the distributors, a group of exhibitors entered into a split of product arrangement. The exhibitors under this arrangement split available first-run motion pictures from all the distributors, and they agreed not to bid or negotiate for a film split to another exhibitor, without that exhibitor’s consent, in the hope of lowering the film rentals paid to distributors. Usually a film was split to only one exhibitor under this arrangement, though it was sometimes agreed that two split members could play the same film on a day and date basis. In a few instances, though a film had been split to only one exhibitor and despite their apparent arrangement not to bid against one another, more than one member of the split would submit a bid. 27. During the relevant time period there were two separate splitting arrangements: the first split operated during the period between March 15, 1970 and February 29, 1972, and the second split operated during the period between November 29, 1972 and March 15, 1974. There was no split of first-run films in the Omaha-Council Bluffs market area between February 29, 1972 and November 29, 1972. Hence, the two splitting arrangements, each of which was subject to changing membership, operated for a total of approximately thirty-nine months out of the forty-eight month period in question. 28. The members of the first exhibitor split included nondefendants ABC Midwest and National General and defendants AMC, Cooper Theatres, and J.S.B. Exhibitor-defendants J.S.B., however, did not enter the split until April 15,1971. During the period from March 15, 1970 to February 29, 1972, these exhibitors would hold split meetings in which split members on a predetermined rotating basis would select films from a list of forthcoming motion pictures. After each participant had made his selection, he was free to attempt to license the selected films from the distributors through bidding or negotiation. A split member was under no obligation to bid or negotiate on those films he selected, nor did the fact that a film had been split to him mean that he would be able to license it from the distributor. 29. This first splitting arrangement came to an end when distributor-defendant AMC indicated that it would no longer participate. The other exhibitor members then determined that there were too many nonmember exhibitors in Omaha to make the arrangement effective. In explaining its withdrawal from the split, AMC’s representative noted that exhibitor-defendant Douglas Theatres, which had withdrawn from the split prior to the relevant time period, had been securing too many films over split members. 30. After a nine-month period in which there was no exhibitor split in Omaha, a second splitting arrangement was organized. Initially, members of the new split included nondefendant National General and defendants AMC, Cooper Theatres, J.S.B., Douglas Theatres, and Northwest Cinema. On June 30, 1973, exhibitor-defendant Mann Theatres bought out National General in Omaha and apparently thereafter replaced National in the split. Although the membership and the rotation for selecting films changed, the basic purpose and workings of the second split were identical to those of the earlier split. 31. Prior to split meetings during the relevant period of time, a split member would attempt to secure from the distributors and other sources information regarding the release date, stars and MPAA rating of upcoming first-run motion pictures, and would prepare a list of available films from such information. On a few occasions, split members during their meeting would place phone calls to distributors’ home offices to gain additional information. The distributors who provided such information were generally aware of the Omaha split. Results of the split meeting were sometimes communicated to a distributor by the exhibitor to whom that particular distributor’s picture had been split. 32. With the exception of defendant Allied Artists, distributor-defendants knew of the Omaha split, though the extent and the time when such knowledge was acquired remains unclear. Defendants Paramount, Universal, and Warner Bros, do not deny knowledge of the split, but there is direct testimony and evidence that these distributor-defendants refused to either recognize or always abide by the results of the split. 33. Some distributor-defendants, knowing the results of the split, did on occasion contact the exhibitor to whom the film had been split and solicited his bid. On at least two occasions reflected in the record, a distributor-defendant likewise personally contacted plaintiffs to secure offers for first-run films. 34. For the purpose of suggesting that distributor-defendants had given exhibitor split members irregular and preferential treatment, Robert Blank, on the basis of documents produced by the defendants and subject to varying interpretations, offered his conclusions regarding a number of the licensing transactions involving first-run motion pictures during the period in the Omaha-Council Bluffs market area. Specifically, this testimony with respect to these transactions of particular films, transactions in which plaintiffs were not often involved, allegedly showed that split members were permitted by the distributor-defendants to engage in moveovers, shorten runs without penalties, have late bids accepted or considered, receive adjustments on terms competitively bid or negotiated after the due date, license films prior to the due date, and cancel films once licensed. This testimony, the introduction of which took several trial days, is not set forth here as to each of the transactions on a specific film in which preferential treatment purportedly occurred (e. g., run shortened on Promise At Dawn). The following table, however, attempts to summarize the testimony and exhibits introduced and total the number of instances in which such treatment allegedly occurred with respect to the bidding on specific films during the relevant time period. (Because testimony of more than one type of treatment as to a particular film was sometimes introduced, the horizontal tallies with respect to instances of irregular and preferential treatment may be greater than the number of film transactions introduced as to any one distributor-defendant.) (See table, page 1281.) Blank’s expertise in interpreting defendants’ documents was seriously challenged. Strong contrary evidence was also introduced: in some instances the mere occurrence of preferential treatment was challenged; and in most instances, reasons said to justify such treatment were offered. 35. Plaintiffs,' though having knowledge of and not resisting their operation, did not participate in the splitting arrangements at any time during the period. There is conflicting evidence as to whether plaintiffs were asked to join the split. An AMC representative indicated that he had unsuccessfully asked Ralph Blank to join. But exhibitor-defendant Sarge Dubinsky testified plaintiffs were not asked to join, both because they were traditional “loners” and because, having sufficient first-run film, they did not ask to join. NUMBER OF FILM DISTRIBUTOR- TRANSACTIONS DEFENDANT IN EVIDENCE FILM RUNS FILM BIDS FILM FILM SHORTENED ACCEPTED OR AVAILABILITY LICENSED FILM FILM W/OUT ALTERED AFTER DATE MOVED PRIOR TO CONTRACT MOVEOVERS PENALTIES DUE DATE_UP_BID DUE DATE CANCELLED Allied 0 Artists 0 0 0 0 0 0 Avco Embassy 5 3 2 1 0 0 0 Columbia 7 0 3 5 10 0 «Paramount 15 0 3 9 0 12 Twentieth Century-Fox Universal Warner Bros. TOTAL 46 5 9 24 2 3 3 36. During the 1960’s and until the latter part of 1970, Ralph Blank had an agreement with United Artists, a major distributor of motion pictures, to play United Artists pictures first-run in plaintiffs’ three theatres (day and date among the three). United Artists did not license pictures in Omaha on a competitive bidding system and Ralph Blank was United Artists’ outlet for first-run pictures in Omaha until the summer of 1970. (Sometime thereafter, defendant J.S.B. and the Astro Theatre became the United Artists outlet.) Prior to January of 1971, Avco Embassy also did not license by competitive bidding, and plaintiffs during the preceding year had been their exclusive first-run customers in Omaha. Furthermore, during 1970 and 1971, plaintiffs had an arrangement with AIP (American International Pictures) to play their product. This arrangement terminated when plaintiffs refused to pay increased rental rates. 37. Plaintiffs, through the uncorroborated testimony of Robert Blank, assert that the Admiral, Chief and Skyview Drive-In theatres were only successful in licensing the lower quality first-run films during the period between March 15, 1970 and March 15, 1974. The Admiral Theatre did license and play “Fiddler on the Roof” (March 15, 1972 through February 27, 1973), “Man From LaMancha” (March 28, 1973 through May 1, 1973), and “Last Tango in Paris” (June 20,1973 through September 11,1973). While further testimony showed the Sky-view Drive-In to be capable of large grosses, the drive-in theatre business is generally seasonal in nature and is particularly keyed to exploitation films. 38. Whenever first-run film was being released in the Omaha-Council Bluffs market area, distributor-defendants sent bid notices to plaintiffs. Plaintiffs also received screening notices, though the Blanks, as other exhibitors in the area, had to travel to Lincoln, Nebraska or Des Moines, Iowa to attend such screenings. Exhibitor-defendants Douglas Theatres, Cooper Theatres, and J.S.B., which controlled a majority of the first-run screens in Omaha, had their offices in Lincoln. 39. There is no evidence that plaintiffs attempted to and were not permitted to engage in moveovers, shorten runs without penalties, submit late bids, receive adjustments on pictures licensed by competitive bid or negotiation, or have availability dates moved up. 40. Based upon exhibits introduced into evidence, conflicting and inconclusive testimony was offered regarding plaintiffs’ claim that on many occasions throughout the period distributor-defendants rejected their bids or offers in favor of lesser bids or offers from exhibitor-defendants. Plaintiffs, with respect to four films in particular (“The Conversation,” “The Exorcist,” “Cromwell,” and “Camelot”), offered extensive evidence in an attempt to show that their bids or offers were clearly superior and yet still rejected. Furthermore, though unsubstantiated, Robert Blank testified that while plaintiffs responded with over a hundred “no bid, will negotiate” communications during the relevant period, they were seldom contacted by the distributor-defendants to negotiate. 41. During the relevant time period, plaintiffs and officials of Twentieth Century-Fox at one time quarreled over the amount of film rental that was owing on pictures that had played at plaintiffs’ theatres. A lawsuit resolved the dispute in favor of the plaintiffs. 42. Plaintiffs, throughout the period in question, submitted formal written bids on 12 pictures, submitting their first such bid during the relevant period for the “New Centurions” in July of 1972. Distributor-Defendant Picture Accepted Allied Artists None Avco Embassy None Columbia New Centurions No Paramount Bang The Drum Slowly Yes Fox Butch Cassidy No Universal None Warner Bros. Camelot No Jeremiah Johnson No Deliverance No Cancel My Reservation No Exorcist No Magnum Force No Deadly Trackers Yes Mame No McQ Yes 43. The evidence and plaintiffs pretrial contentions show that plaintiffs, during the period between March 15, 1970 and March 15,1974, made some type of offer of specific terms for the following first-run pictures and with the results indicated. Distributor-Defendant Picture Accepted Yes Avco Ski Bum Yes People Next Door Yes CC & Company Yes Nice Girl Yes Swimming Pool Yes Rider on the Rain Yes Soldier Blue Distributor-Defendant Picture Accepted Avco Sporting Club No Macho Callahan Yes Jory Yes Hercules Combination Yes All the Way Boys Yes Thumb Tripping Yes Promise At Dawn No Zulu No House Is Not A Home No Day of the Dolphin No 17 offers, 12 accepted, success rate 71% Columbia New Centurions No Cromwell No 10 Rillington Place No Last Rebel No Owl & Pussycat Yes Never Sang For My Father Yes Lady in The Car Yes Pursuit of Happiness Yes Man Called Sledge Yes Brother John Yes Brotherhood of Satan/ Fragment of Fear Yes Horsemen Yes Creatures The World Forgot Yes 13 offers, 9 accepted, success rate 69% Paramount Bang The Drum Slowly Yes Conversation No Unman Wittering Zigo No Red Tent No 4 offers, 1 accepted, sucess rate 25% Twentieth Century-Fox Vanishing Point Yes Celebration At Big Sur Yes Escape From Planet of the Apes Yes 3 offers, 3 accepted, success rate 100% Universal Company of Killers Yes Guns of A Stranger Yes Sugarland Express No 3 offers, 2 accepted, success rate 67% Warner Bros. Jeremiah Johnson No Deliverance No Cancel My Reservation No Exorcist No Magnum Force No Deadly Trackers Yes McQ Yes Marne No Camelot No Distributor-Defendant Picture Accepted Warner Bros. Enter the Dragon Yes Sacred Knives of Vengeance Yes Badlands No 12 offers, 4 accepted, success rate 33% In sum, plaintiffs’ testimony indicated that their theatres made specific offers on 52 pictures released during the period by all distributor-defendants and were licensed 31, or approximately 60% of these. There may be some slight discrepancies in the tabulations, but plaintiffs did not deny that their success rate was near 60%. 44. Of those first-run films upon which they assertedly submitted offers of specific terms that were rejected, plaintiffs, through the testimony of Robert Blank, have presented evidence of irregular conduct which may have affected consideration of their offer on five of those films — “The Red Tent,” “The Last Rebel,” “The Exorcist,” “Camelot,” and “Butch Cassidy.” 45. With respect to those first-run films upon which plaintiffs introduced evidence of specific offers of terms, the evidence further showed that nineteen of those films had been split by exhibitor-defendants. The results of these confrontations are summarized in the following table. Thus, of the nineteen pictures allocated by the split, nine were licensed to plaintiffs (including one day and date with the split member), nine were licensed to the split members to whom they were allocated (including one which played day and date with plaintiffs), and two were licensed to a split member other than the one to whom it was allocated. 46. Plaintiffs’ expert, Dr. Felton, testified that the defendants’ activities during the period from March 15,1970 to March 15, 1974 caused damages of $151,085 to the Admiral Theatre. This figure was derived by a “comparable theatre” theory of damages, with the theatre comparable to the Admiral being a hypothetical theatre constructed by averaging the Astro and Dundee theatres. 47. No damage evidence was admitted with respect to the Chief Theatre and the Skyview Drive-In Theatre. III. DIRECTED VERDICT STANDARDS Plaintiffs find in the foregoing facts evidence that exhibitor-defendants, by the split of product agreements, engaged in a conspiracy, the object of which was to deprive plaintiff theatres of quality first-run films and the result of which was substantial damages to the Admiral, Chief, and Skyview theatres. Distributor-defendants, plaintiffs further infer and find from these facts, knew of and joined in the implementation of that conspiracy by engaging in such practices as providing the split with advance release information not available to plaintiffs, rejecting plaintiffs’ bids for inferior split member bids, and affording split members irregular and preferential treatment in the bidding and licensing of first-run films in the Omaha-Council Bluffs market area. Defendants, however, dispute plaintiffs’ reading of the facts. In moving for directed verdicts, defendants submit to the Court that this evidence regarding the split and the alleged “irregularities” in the bidding and licensing of films is even legally insufficient pursuant to Section 1 of the Sherman Act to warrant submission of the case to the jury. To establish their claims pursuant to Section 1 of the Sherman Act, plaintiffs, by a preponderance of the evidence, must prove three essential elements: (1) That there was an agreement, conspiracy, or combination among the defendants in restraint of trade; (2) That as a direct and proximate result thereof plaintiffs have been injured in their business and property; and (3) That the damages which the plaintiffs sustained are capable of reasonable ascertainment and are not speculative or conjectural. See Zenith Radio Corp. v. Hazeltime Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946). Both distributor-defendants and exhibitor-defendants contend that plaintiffs’ evidence is incompetent and insufficient as a matter of law to establish any of the preceding three elements. Such a contention, however, has to be measured not only against the antitrust laws, but must also be considered in the context of case law pertaining to directed verdicts. In the Eighth Circuit, the standard to be applied in considering a motion for directed verdict is essentially the same as the standard for entering judgment notwithstanding the verdict; the question is whether there is sufficient evidence to support a jury verdict against the non-moving party. Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554 (8th Cir. 1968). In passing upon the defendants’ motion for a directed verdict the district court [is] required to view the evidence in the light most favorable to the plaintiff, to give the plaintiff the benefit of all inferences in his favor reasonably to be drawn from the evidence, and to deny the motion unless the evidence was so one-sided as to leave no room for any reasonable difference of opinion as to how the case should be decided factually. Kennedy v. United States Construction Co., 545 F.2d 81, 82 (8th Cir. 1976). While the burden upon the defendant distributors and exhibitors is considerable, this Court must nevertheless sustain the pending motions as a matter of law if, without weighing the credibility of the witnesses, it concludes that plaintiffs have offered no substantial evidence which would sustain a favorable jury verdict. Banks v. Keohring Co., 538 F.2d 176 (8th Cir. 1970); United States v. Strebler, 313 F.2d 402 (8th Cir. 1963); Paramount Film Distributing Corp. v. Applebaum, 217 F.2d 101 (5th Cir. 1954). IV. PROOF OF ANTITRUST VIOLATIONS As is often true in a case of this type, plaintiffs, particularly with respect to distributor-defendants, have indirectly attempted to prove their conspiracy allegations by inferences drawn from defendants’ conduct, rather than by direct proof of conspiratorial activities, joint agreements, or group decisions. Because it is difficult to prove the existence of an illegal scheme, which is the gravamen of an action under Section 1 of the Sherman Act, the law clearly does permit plaintiffs to rely upon all inferences that may be reasonably drawn from the defendants’ course of conduct in light of the surrounding circumstance. American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). Plaintiffs, in presenting their evidence against the distributors, have relied heavily upon two related forms of inferential proof. First, they attempted to prove that distributors’ actions were taken against their own self-interest, which absent a valid explanation is inconsistent with decisions independently made and indicative of joint action. Bergjans Farm Dairy Co. v. Sanitary Milk Producers, 241 F.Supp. 476 (E.D.Mo.1965), aff’d, 368 F.2d 679 (8th Cir. 1966). Secondly, plaintiffs tried to create a jury issue as to the existence of a conspiracy between and among all defendants by evidence showing that distributor-defendants followed similar exclusionary business practices — “conscious parallelism.” Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc., 394 U.S 700, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1969), rev’g per curiam 404 F.2d 1008 (4th Cir. 1968). There are, nevertheless, limitations upon proving conspiracy indirectly by means of inferences drawn from the circumstances surrounding defendants’ conduct. The facts of those circumstances cannot themselves be based upon inference. Before considering the nature of the circumstances relied upon it is well to have in mind the rule of law relative to the probative force of such evidence. Even in a conspiracy case, which is ordinarily not susceptible of proof by direct evidence, facts and circumstances to sustain a verdict must be such as legitimately tend to sustain an inference. Inferences must be based upon proven facts or fact of which judicial notice must be taken and one inference cannot be based upon another inference. To sustain a finding of fact the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion. Wesson v. United States, 172 F.2d 931, 933 (8th Cir. 1949). See also Brown v. Maryland Casualty Co., 55 F.2d 159 (8th Cir. 1932). Furthermore, the bare fact that defendant-distributors may have taken action against their apparent self-interest does not necessarily point to conspiratorial motivation. The Sherman Act’s prohibition of ‘every contract, combination, or conspiracy’ in restraint of trade does not forbid a supplier from independently deciding to refuse to do business with another, no matter how harmful that decision may be to the latter. Section 1 ‘does not prohibit independent business actions and decisions. A person still has the right to refuse to do business with another, provided he acts independently, and not pursuant to an unlawful understanding, tacit or expressed.’ Michelman v. ClarkSchwebel Fiberglass Corp., 534 F.2d 1036, 1042 (2d Cir. 1976). See also Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17 (9th Cir. 1971). Even parallelism among the practices of distributor-defendants would not necessarily raise the inference of conspiracy where such practices were also expedient responses to business considerations. To reach the jury, plaintiffs must present sufficient evidence in addition to’mere parallel conduct to warrant an inference that defendants have consciously and mutually reached an accord and are not merely individually reacting in a like fashion to business forces. Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285, 299 (3rd Cir. 1963). The crucial question is whether [defendants’] conduct toward [plaintiffs] stemmed from independent decision or from an agreement, tacit or express. To be sure, business behavior is admissible circumstantial evidence from which the fact finder may infer agreement. . But this Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offense. Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional attitude toward conspiracy; but “conscious parallelism” has not yet read conspiracy out of the Sherman Act entirely. Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540-541, 74 S.Ct. 257, 259, 98 L.Ed. 273 (1954). Therefore, while plaintiffs may rely upon inferences drawn from circumstantial evidence in proving their charges of conspiracy, the facts and circumstances underlying those inferences “must attain the dignity of substantial evidence and not be such as merely to create a suspicion.” Johnson v. J. H. Yost Lumber Co., 117 F.2d 53, 61 (8th Cir. 1941). In the situation of a directed verdict motion, the situation presently confronting this Court, the Eighth Circuit has stated the following rule with regard to the utilization of circumstantial evidence and inferences in proving up a case. The old notion that a jury should not be allowed to draw any inference from circumstantial evidence, if the one is probable as the other, has fallen into discard and has been replaced by the more sensible rule that it is the province of the jury to resolve conflicting inferences from circumstantial evidence. Permissible inferences must still be within the range of reasonable probability, however, and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture. Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195, 1202-03, n. 8 (8th Cir. 1969). V. CONSPIRACY IN RESTRAINT OF TRADE Plaintiffs, presuming their ability to prove the presence of a “combination” or “conspiracy” under Section 1 of the Sherman Act, must further offer at least circumstantial evidence that defendant distributors and exhibitors knowingly participated in the split of product and alleged attendant sham bidding practices with the intent to deprive plaintiffs of their “fair share” of quality first-run film. Flintkote Co. v. Lysfjord, 9 Cir., 246 F.2d 368, cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957). As to this membership in the alleged conspiracy, the evidence with respect to each individual defendant must be separately considered. The actions or statements of other defendants are of no consequence until the existence of a conspiracy is independently established and membership proven. American Tobacco, supra; United States v. Scholle, 553 F.2d 1109, 1117 (8th Cir. 1977); United States v. Wixom, 529 F.2d 217, 220 (8th Cir. 1976). A. DISTRIBUTOR-DEFENDANTS Assuming that the exhibitor split of product, the existence of which is not in dispute, does constitute an illegal combination or conspiracy pursuant to Section 1 of the Sherman Act, the question as to distributor-defendants then becomes one of knowledge, intent, and participation. Plaintiffs’ evidence of distributor-defendants’ knowledge of the Omaha exhibitor split is not strong. The extent of and time when such knowledge was gained is uncertain, and, as plaintiffs’ evidence reflected, direct proof of Allied Artists’ knowledge is totally absent. Nevertheless, viewing the record in a light most favorable to plaintiffs, the evidence pertaining to knowledge, with the exception of Allied Artists, is sufficient to overcome directed verdict motions. Evidence as to the knowledge of Allied Artists and the intent of all distributor-defendants could conceivably be inferred from those activities allegedly evidencing participation. The law is clear that one is held to have intended the probable consequences of his acts. William Goldman Theatres v. Loew’s, Inc., 150 F.2d 738, 743 (3rd Cir. 1945), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948). Critical, therefore, to plaintiffs’ case against the distributor-defendants is evidence of their participation in implementing or promoting the split of first-run film in the Omaha-Council Bluffs market area. Plaintiffs have offered four general types of evidence to prove the participation of distributor-defendants: (1) the provision of advance information to exhibitor split members; (2) the rejection of plaintiffs’ bids and offers, even when superior to those of split members; (3) the irregular and preferential treatment accorded to split members in the form of moveovers, shortened runs, acceptance of late bids, adjustments of bids and film rental, advance licensing, and cancellation of licensed films; and (4) the acquiescence of distributor-defendants to the splitting of their product. Having previously reviewed this evidence, the Court proceeds to determine the legal sufficiency of that evidence with regards to proof of distributor participation. 1. Advance Information Plaintiffs have insisted throughout the trial of this lawsuit that distributor-defendants, during the period between March 15, 1970 and March 15, 1974, provided exhibitor-defendants with advance film information that was not unavailable to the Blanks. In surveying plaintiffs’ evidence, the Court did note testimony indicating that defendants Avco Embassy, Columbia, and Universal did supply such information to the split members upon request. It is further apparent, though the source remains unknown, that the exhibitor-defendants had release information regarding the other distributor-defendants’ films. Defendant Sarge Dubinsky further testified that phone calls were placed to “distributors” during split meetings so that additional information might be gained. Advance screening too was made available to split members in Lincoln, where defendants Douglas Theatres, Cooper Theatres, and J.S.B. had their corporate offices. Even assuming that this advance information was unavailable to plaintiffs through the various trade journals, it is clear that plaintiffs neither requested nor were designedly refused the information that their competitors had acquired. Further conceding to plaintiffs that the provision of this information by three distributor-defendants raises an inference that all distributor-defendants so provided information, a thin inference at best, this similarity in behavior does not distinguish them from nondefendant distributors. Nondefendant AIP also provided information, and the information as to nondefendant films was sufficient to permit splitting of their product. That any distributor would provide information is not particularly surprising. Communication between exhibitors and distributors, by telephone or otherwise, is a part of the movie industry, and it is not at all inconsistent with their self-interest that distributors would want to provide information to drum up business and rentals for forthcoming films. Nor were the Lincoln screenings inconsistent with self-interest: distributors incurred costs to screen their films where those exhibitors owning the majority of Omaha screens could be found. The Court is uncertain what plaintiffs view to be the upshot of this supposed favoritism. Arguably advance release information gave split members an advantage in more intelligibly entering into the bidding process. However more knowledgeable they may have been, the evidence does not indicate that their success in licensing first-run films was any better than that of the plaintiffs. 2. Plaintiffs’ Bids An examination of those first-run films upon which plaintiff theatres made a specific offer of terms belies their claim that distributor-defendants participated in the implementation or promotion of the Omaha split. As indicated in a preceding table, plaintiffs licensed approximately 60 percent of those films upon which they submitted offers of specific terms to distributor-defendants. Their least success was with Paramount and Warner Bros., where their success rate during the period was 25 percent and 33 percent, respectively. When it is recalled that there were nearly thirty screens in the Omaha-Council Bluffs market bidding for first-run film, even these percentages could not be considered excessively low. Plaintiffs have countered, through the assertions of Robert Blank, that their theatres were notably unsuccessful in their bids for high grossing first-run motion pictures. With respect to those pictures, plaintiffs claim, their bids were ignored by defendant-distributors, even when equal or superi- or to those of the exhibitor-defendants. But, again as indicated in a preceding table, the evidence shows plaintiffs to have had no moderate success when bidding against the split. Of nineteen films upon which plaintiffs made specific offers of terms and which were allocated to the split, nine were licensed to the plaintiffs. There can be no reasonable inference from such figures that plaintiffs’ specific term bids were ignored. The record is long and involved as to plaintiffs’ argument that their bids or offers on better quality film were unjustifiably rejected in favor of those from split members. The Court does not herein undertake the prodigious task of considering each of plaintiffs’ claims. It does, however, briefly review in an exemplary fashion those four films upon which plaintiffs believe their suggested terms to have been unquestionably superior. Those films include “The Conversation,” “The Exorcist,” “Cromwell,” and “Camelot.” The Court, notwithstanding its dutiful construction of the evidence in favor of the plaintiffs, has difficulty in determining the relevance of their claim of unjustified rejection with respect to “The Conversation.” Blank’s initial offer was rejected. But distributor-defendant Paramount then offered the film on a rebid, a transaction entirely separate from the first. During this rebid of the film, plaintiffs submitted neither a bid nor an offer. Plaintiffs have argued at length that their bid on “The Exorcist,” one of the three top grossing films of all time, was superior to that of defendant Mann Theatres, to whom the film was ultimately licensed. The decision to accept the bid of Mann Theatres for their Fox Westroads screen was made by Leo Greenfield, president of Warner Bros., with the concurrence of his district and regional managers. Greenfield testified that this decision was made upon his judgment that the Mann bid was “clearly superior to any other submitted.” Mann’s bid was seen as being superior to plaintiff Admiral’s bid in that Mann bid the same $75,000 guarantee but with a fifteen as opposed to a twenty week minimum playing time. This was viewed as more desirable since in effect defendant Mann was guaranteeing that it could earn $75,000 for Warner Bros, in a month’s less time than the plaintiff. Plaintiff, unlike Mann, did provide a “no pass” provision in its original offer, though the final contract executed by Mann Theatres also contained such a provision. Evidence also showed that the producers of the film forced Warner Bros, to move up the availability date to a time when if the Admiral’s bid had been accepted, plaintiff Admiral would have had to cancel another Warner Bros, picture (“McQ”) which was booked for that time period. Furthermore, Greenfield believed the Fox Westroads’ location was better than that of the Admiral. The record reveals that plaintiffs submitted a negotiated offer for “Cromwell.” It was, however, awarded on negotiation to the National General for the Fox West-roads Theatre. Again the evidence shows that plaintiffs could not have played “Cromwell” on the release date without having cancelled another picture belonging to that particular distributor. Plaintiff Admiral Theatre had been previously awarded on competitive negotiation “Owl and The Pussycat,” a major first-run motion picture. Defendant-distributor Warner Bros, rejected plaintiffs’ bid in favor of Cooper Theatres’ on “Camelot,” a film which the evidence shows was not even split to Cooper. The picture was licensed for the Indian Hills, which Robert Blank concedes was perhaps the finest theatre in the Omaha-Council Bluffs area. With regard to this bid, as all the preceding bids, Blank’s opinion that plaintiffs’ bid was superior is premised largely on the fact that the Admiral’s seating capacity was slightly larger than the theatre to which the picture was licensed. Besides ignoring such other important factors in grossing potential as location, an opinion based upon seating capacity assumes that the Admiral would have attracted more patrons than the smaller theatres where the pictures played. The record is void of any such evidence. In fact, the facts in evidence run counter to Blank’s opinion. As previously indicated, six Omaha theatres with 700 or more seats were closed during the relevant time period. Among these theatres were two split members, including the Orpheum — the largest theatre in Omaha. Those theatres built since 1970 have generally been multi-screen theatres with the smaller individual auditoriums. Plaintiffs’ evidence as to first-run films upon which they offered specific terms, even their strongest evidence, fails to suggest distributor-defendants’ participation in the implementation or promotion of the Omaha split. No proof of action contrary to self-interest has been offered. Even if, when construing the evidence in a light most favorable to plaintiffs, there should remain individual instances of discrimination, such proof would be legally unavailing in establishing a pattern of conspiratorial activity. This evidence would merely suggest that