Full opinion text
OPINION EDWARD R. BECKER, District Judge. CONTENTS I. Preliminary Statement 892 II. The Parties’ Contentions Regarding the Size & Complexity of the Litigation 897 III. Discussion 899 A. Introduction 899 B. Construction of the Antitrust Statutes: Need We Reach the Seventh Amendment Issue? 900 C. The Seventh Amendment and the Historical Test 904 1. The Accounting Cases 907 a. Complex Accounting Cases and the Concurrent Jurisdiction of Law and Equity 907 b. The Concurrent Jurisdiction of Law and Equity After Merger 911 2. Other Complex Litigation 914 3. The Rationale of the Complex Accounting Cases 918 4. Treble Damages and Juries 921 D. The Historical Test and Complexity After Ross v. Bernhard 922 1. Ross and Recent Decisions Striking Jury Demands 2. Construing Ross 922 926 a. Jury Trial Decisions in the Supreme Court Since Ross 926 b. Explanations of the Ross Footnote 929 3. Problems Inherent in the Ross “Test” 931 a. The Case-by-Case Approach 931 b. The Whole-case Approach 4. Public Policy and the Seventh Amendment: The Role of the American Jury 933 934 a. The Competence of the Jury as Finder of Fact 934 b. Other Functions of the Jury 938 IV. Conclusion 942 I. Preliminary Statement Certain defendants in these consolidated antitrust cases, alleging that they are so “extraordinarily complex,” “so massive as to make them unique in the annals of United States antitrust and trade regulation litigation,” and “beyond the practical abilities and limitations of a jury,” have moved for an order striking the jury demands of the plaintiffs, Zenith Radio Corporation (“Zenith”) and National Union Electric Corporation (“NUE”). This opinion will address — and deny — defendants’ motion. NUE is the corporate successor to Emerson Radio Co., one of the pioneers in the radio and TV industry. NUE ceased all production of television receivers in February, 1970; that December, it filed the first of these suits, alleging that the Japanese defendants and others had conspired to take over the American consumer electronic products industry and to drive NUE out of business. In 1974, after experiencing large operating losses, Zenith filed an action making similar allegations. The NUE action was then transferred to this district for coordinated or consolidated pretrial proceedings with the Zenith action. See In re Japanese Electronic Products Antitrust Litigation, 388 F.Supp. 565 (J.P.M.D.L.1975). In Pretrial Order # 182, filed this date, we made the transfer of the NUE action to this district unconditional, and consolidated it for trial with the Zenith action. The ten principal defendants are Mitsubishi Corporation, a Japanese trading company; Matsushita Electric Industrial Co., Ltd., Toshiba Corporation, Hitachi, Ltd., Sharp Corporation, Mitsubishi Electric Corporation (Melco), Sanyo Electric Co., Ltd., and Sony Corporation, all Japanese manufacturers of consumer electronic products; and two American companies, Motorola, Inc. and Sears, Roebuck & Co. Fourteen other defendants are subsidiaries of the principal Japanese defendants. Of the twenty-four defendants, fifteen are defendants in both suits, seven in the Zenith action only, and two in the NUE action only. In addition to the twenty-four named defendants, the plaintiffs have identified close to 100 alleged co-conspirators whose business operations span the globe, ranging from dozens of Japanese companies, large and small, to such world industrial giants as N.V. Phillips Gloeilampenfabrieken and General Electric Co. In capsule form, plaintiffs’ complaints allege that the Japanese defendants and their co-conspirators are and have been participants in a conspiracy which, by artificially lowering export prices, has for more than twenty years sought the methodical destruction of the United States’ domestic consumer electronic products industry. The defendants are accused of carrying out the aims of this conspiracy by flooding the United States’ market with imported goods at prices so attractive to consumers that domestic producers suffered serious losses, and were either unable to compete or able to do so only by moving some or all of their own production facilities to Mexico and the Far East. The particular offenses charged in the complaints span the laws of antitrust. The overall conspiracy is alleged to violate §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and § 73 of the Wilson Tariff Act, 15 U.S.C. § 8. However, the cornerstone of the plaintiffs’ case is the allegation that the Japanese defendants have violated the 1916 Revenue Act, better known as the 1916 Antidumping Act, 15 U.S.C. § 72, by “commonly and systematically” selling their products in this country for substantially less than their actual market value or wholesale price in Japan, and with predatory intent. The defendants are also charged with violating the Robinson-Patman Act, 15 U.S.C. § 13(a), by discriminating in price among American purchasers. Finally, Zenith charges that Sears, Motorola, and the Matsushita and Sanyo defendants violated § 7 of the Clayton Act, 15 U.S.C. § 18, in connection with the Japanese companies’ acquisitions of interests in domestic consumer electronic products manufacturers. Plaintiffs’ claims, adumbrated above, have been spelled out in greater detail in two preliminary pretrial memoranda total-ling 410 pages, as well as in answers to numerous contention interrogatories. The plaintiffs’ papers seek to portray a worldwide conspiracy said to have lasted over a period of some 30 years and to have involved close to 100 manufacturers, exporters, and importers of consumer electronic products of various national origins. The defendants maintain that, notwithstanding their voluminous submissions, plaintiffs have failed to elucidate their claims with any degree of precision. They also deny both the legal and factual validity of the plaintiffs’ claims. Additionally, certain of the defendants have asserted counterclaims against Zenith. The counterclaims attack Zenith on two fronts. First, they allege that Zenith, acting alone and in combination and conspiracy with others, used territorial allocations, price discrimination, horizontal and vertical price fixing arrangements and certain “key dealer preferences” in violation of the Robinson-Patman Act and §§ 1 and 2 of the Sherman Act. Second, they accuse Zenith and its co-conspirators of seeking to interfere with its competitors, including the counterclaimants, “by every means available, including the submission of complaints, petitions, testimony and other information to various federal governmental agencies and officials, federal courts, and the United States Congress which were based upon sham, false and misleading allegations and information, without regard to the truth or merits of the claims made.” The counterclaiming defendants thus invoke the “sham litigation” theory of antitrust liability recognized in Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Defendants have likewise filed extensive preliminary pretrial memoranda detailing their counterclaims. We are now approaching the end of pretrial discovery. To say that the discovery has been massive would be a considerable understatement. To date over 20 million documents have been produced for inspection. A considerable number of these have had to be translated from Japanese into English. The deposition transcripts completed to date total well over 100,000 pages, and many depositions remain to be taken. The interrogatory practice has been voluminous, coming in wave after wave. We have been inundated with a plethora of discovery motions; in the past few months we have dealt with over 50 Rule 37 motions of various descriptions, and pretrial conferences with counsel for the parties are consuming at least 3 full days per month, mostly to resolve discovery problems. We have entered a comprehensive pretrial order which fixed discovery deadlines and times for filing annotated final pretrial statements and other pretrial material, and set the case for trial in February, 1980. It is anticipated that the trial will consume approximately one year. Following the filing of the motion to strike the jury demand, we heard extensive argument thereon. Since it appeared to us that a helpful way of framing the complexity issue was to request the parties to prepare proposed forms of special interrogatories which might be submitted to a jury, we did so and defendants made extensive submissions. Numerous legal memoranda have been filed in connection with the motions, many of them dwelling upon the rash of recent cases where complexity has led to the striking of timely jury demands. We address defendants’ motion at this time because we are satisfied that we have an adequate record on which to decide it and because we believe it to be fair to decide the issue sufficiently in advance of trial that the losing party may attempt to obtain appellate review. We write at length for a number of reasons. First is the current importance of the problem, which appears on the agenda of almost every seminar on class actions, antitrust law and federal practice concerning which we have recently received brochures. Second, we suspect that given the enormous scope of contemporary class action and antitrust litigation, this will not be the last occasion on which the enormous tension between the demands of these massive cases and the mandate of the Seventh Amendment will generate a motion to strike a jury demand on grounds of complexity. Hence, our discussion of the case law may be of help to the bench and bar. We consider herein only the defendants’ arguments that the jury trial demand should be struck on grounds of complexity. We find the other two asserted grounds for their motion plainly without merit, and reject them out of hand. II. The Parties’ Contentions Regarding the Size & Complexity of the Litigation The defendants’ motion is based, as we have noted, on the contention that this litigation is so extraordinarily massive and complex as to be beyond the practical abilities and limitations of a jury. In support of this contention, the defendants emphasize the nature of the conspiracy charged, the statutory claims asserted, the procedural posture of the case, and the anticipated length of trial. The defendants provided the following summary of their contentions in their first memorandum in support of their motion to strike the jury demand: 1. The alleged conspiracy is claimed to have been worldwide, to have lasted over a period of 30 years and to have involved more than 97 manufacturers, exporters and importers of consumer electronic products (“CEP’s”) of various national origins. 2. Over seventy of the alleged co-conspirators are not defendants in this proceeding. Necessarily plaintiffs will attempt to produce evidence to support their allegations that the non-defendant co-conspirators participated in the alleged conspiracy with the various defendants who are charged in the complaints. This will create complicated and confusing issues for the jury as to whether the defendants and alleged non-defendant co-conspirators knew of, joined and participated in the alleged conspiracy. More confusing will be the question of whether evidence presented as to specific defendants) and specific non-defendant co-conspirators) has been connected to and is admissible against the various defendants in the litigation. 3. The plaintiffs assert violations based upon various sophisticated and esoteric antitrust and trade regulation laws which few American lawyers let alone untrained laymen or jurors can understand and interpret. The allegations are further complicated by the fact that one of the laws, the Wilson Tariff Act (15 U.S.C. § 18), is rarely used and interpreted in litigation, and the 1916 Antidumping Act (15 U.S.C. § 72) has never been construed or interpreted in a trial situation in its over 60 year history. Even if appropriate and legally sufficient instructions are given to the jury as to the meaning of these laws and the standards of proof which must be met, application of complicated and detailed accounting, marketing, economic and legal evidence to such legal standards and guidelines would be mindboggling for a jury. 4. The trial of these litigations is anticipated to last at least one year. 5. The majority of the defendants are Japanese, their native language has no common basis with the English language and their business records and therefore much of the evidence in these litigations will be Japanese language documents. 6. At the time the trial commences almost nine years of discovery will have been completed, including the production of untold millions of documents and literally hundreds of depositions which will constitute the evidence to be presented. As noted above, a major portion of these documents are in Japanese and will require translation and interpretation. Further, much of the documentation whether in English, Japanese or other languages is of a highly technical engineering and accounting nature. 7. The evidence at trial will consist in part of the testimony of expert witnesses as to the nature of competition and marketing practices in both the United States and Japan CEP industries, accounting practices in both the United States and Japan CEP industries, the engineering and scientific developments of CEPs in both the Japanese and United States markets which will have to be applied to the vast quantity of factual information which will be introduced in both English and Japanese. 8. The cases involve overlapping and different products (the NUE case deals only with television receivers; while the Zenith case deals not only with television receivers but also with radios, stereos, audio equipment, tape recorders and components of such products); the injury claims involve overlapping and different time periods of the alleged conspiracy (NUE 1966 to 1970 and Zenith, 1968 to 1977). Further, the Zenith case challenges the acquisition by two Japanese manufacturers of failing American CEP manufacturers (Matsushita’s acquisition of Motorola’s color television receiver business and Sanyo’s acquisition of Warwick). The Zenith case also includes charges of violations of the Robinson-Pat-man Act (15 U.S.C. 13(a)) which the NUE case does not. 9. The cases involve overlapping and different parties. The Zenith action involves six parties who are not parties in the NUE action. The Sony defendants are a party to the NUE action but not the Zenith action. 10. The defendants have asserted extensive counterclaims against plaintiff Zenith charging it with engaging in marketing practices in violation of the United States antitrust laws and in a conspiracy with certain other American CEP manufacturers, distributers, labor unions and others to prevent and impede the ability of the defendants in these litigations, particularly the Japanese defendants, from competing in the United States CEP industries through a series of sham and harassing charges, allegations, investigations and legal proceedings. The counterclaims involve highly sophisticated and technical legal and factual evidence which will require the presentation of vast quantities of materials. 11. While these cases are individually extraordinarily complex and involve diverse claims as to products, parties, statutes involved and damage periods, plaintiffs claim they involve a single conspiracy against the defendants and the alleged non-defendant co-conspirators. In such a situation consolidation for trial might seem a logical and efficient utilization of counsels’ and the Court’s time. However, to consolidate cases which individually are incapable of comprehension by a jury for a trial before a jury would exacerbate and expand the complexity of the trial by a geometric progression which defies quantification. This summary has been expanded and supplemented in a lengthy affidavit and numerous other submissions. In their affidavit, the defendants assert that they have produced more than ten million pages of documents; that the plaintiffs have copied one million pages and “expect to introduce several thousand documents into evidence.” For their own part, the defendants plan to offer an undefined “major portion” of the 2 million pages they have copied from the more than twenty million pages produced by the plaintiffs. The defendants’ views are also illustrated by the sample special interrogatories submitted so that we might identify the issues to be decided by the jury and assess their complexity. With respect to the conspiracy claims, the defendants’ proposed sample interrogatory contains 23 subparts, to be asked of the jury “for each of the 24 defendants with respect to each of the 108 other defendants and alleged co-conspirators.” Together with other subparts which may be required, the defendants suggest that the jury might therefore be asked “over 15,000 separate interrogatories for each relevant product market” as to the conspiracy claims alone. In addition, the defendants argue that because of the thousands of models of consumer electronics products imported and sold by each of the defendants, thousands upon thousands of special interrogatories will have to be propounded to the jury on the dumping claims as well as the other statutory causes of action asserted by the plaintiffs. The plaintiffs’ response to these contentions is simply that the case is large, but not complex. First, they emphasize that they charge only one conspiracy, not many. Therefore, it would serve no purpose to ask the jury to answer a complete set of conspiracy interrogatories for each of the 2,316 possible pairings of each defendant with every other co-conspirator. Instead, they suggest posing “simply the question whether the plaintiffs have proved that the individual defendants have been engaged in an unlawful combination or conspiracy in restraint of trade.” As regards the thousands of special interrogatories which defendants say would have to be propounded on the dumping claims, plaintiffs submit that the jury need not decide separately whether there has been dumping as to each of the thousands of models of consumer electronic products involved, and need not perform a separate computation of dumping margins for each of these models. According to the plaintiffs, the jury’s task will be simplified by other factors. First, although there are 24 defendants, they are grouped into no more than ten separate enterprises. Second, the difficulties attending class actions are not present here. Third, plaintiffs note that there are only two cases involved, compared with the 18 separate cases involved in one litigation in which a jury demand has been struck. In sum, the plaintiffs conclude, the fact remains that the present litigation involves classic conspiracy claims and proof of exactly the same nature as that which has been presented in dozens and dozens of private antitrust actions and criminal prosecutions across the nation. . The issues of motive, intent and conspiracy . . . are of the type routinely submitted to juries in the federal courts on a daily basis. As in most cases involving a number of discrete transactions, the jury will be assisted by presentation of the evidence in a summarized format easily grasped by individual jurors. We expect that the actual size and complexity of this litigation falls somewhere in between the two extremes portrayed by the parties. We are skeptical of the plaintiffs’ efforts to portray this litigation as an essentially simple, “single conspiracy” case, although of course we express no opinion as to what they may be able to prove at trial. We are equally skeptical of the defendants’ contentions regarding the number of documents they will introduce and the number of special interrogatories which would have to be submitted to a jury. By any yardstick, this case is at least as large and complex as the others in which jury demands have been struck. See pp. 923-925 infra. However, resolution of these disputes as to the degree of complexity of this case is unnecessary in light of our discussion of the legal issues, to which we now turn. III. Discussion A. Introduction The issue before us is whether trial by jury, usually available as of right in private, treble-damage antitrust cases, is guaranteed even in a case so massive and complex as to be beyond “the practical abilities and limitations of juries.” The plaintiffs, relying heavily on the decision of the Supreme Court in Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505 (1916), argue vigorously that the Seventh Amendment guarantees their right to a jury trial, regardless of considerations of size and complexity. In Fleitmann, the Court held that a shareholders’ derivative action could not be brought in equity when the underlying corporate claim was one for treble damages for violation of the antitrust laws, because to permit equity jurisdiction over such actions would deprive the defendants of their right to trial by jury: [T]he inquiry . . . arises why the defendants’ right to a jury trial should be taken away . [W]e agree with the courts below that when a penalty of triple damages is sought to be inflicted, the statute should not be read as attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law. On the contrary, it plainly provides the latter remedy, and it provides no other. Id., 240 U.S. at 28-29, 36 S.Ct. at 234. Since the Fleitmann decision, it has been regarded as “well settled” that antitrust claims for treble damages are “triable by jury on timely demand of a party.” Ring v. Spina, 166 F.2d 546, 550 (2d Cir.) cert. denied, 335 U.S. 813, 69 S.Ct. 30, 93 L.Ed. 368 (1948). See, e. g., Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d 674, 690 (9th Cir.) cert. denied, 429 U.S. 940, 97 S.Ct. 355, 50 L.Ed.2d 309 (1976); Siegfried v. Kansas City Star Co., 298 F.2d 1 (8th Cir.) cert. denied, 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed.2d 785 (1962); Hartford-Empire Co. v. Glenshaw Glass Co., 3 F.R.D. 50 (W.D.Pa. 1943). The defendants concede “the applicability of the Seventh Amendment to all but the most lengthy and complex damage actions.” They frame the issue as “whether or not there is a certain small class of cases which are too lengthy and complex to be handled by a jury, and, therefore, must be tried before the Bench.” In support of their argument that this litigation can be placed in such a class of cases without offending the constitution, the defendants first argue that complex cases were historically tried in equity. Moreover, they urge us to follow the example of several courts which have recently struck jury demands in large and complex actions, including two antitrust cases. See pp. 923-925, infra. These courts have found the Seventh Amendment inapplicable to such matters, largely on the authority of dicta in a recent Supreme Court decision implying that the constitutional right to a jury trial in civil actions may sometimes depend on “the practical abilities and limitations of juries.” Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970). B. Construction of the Antitrust Statutes: Need We Reach the Seventh Amendment Issue ? Although the parties have treated the issue before us as depending solely on the scope of the Seventh Amendment right to jury trial, we must first determine whether it is necessary to reach the constitutional issue. “ ‘If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.’ Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). Before deciding the constitutional question, it [is] incumbent on courts to consider whether . statutory grounds might be dis-positive.” New York City Transit Authority v. Beazer, 440 U.S. 568, 582, 99 S.Ct. 1355, 1364, 59 L.Ed.2d 587 (1979). See Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The right to jury trial may, of course, be expressly provided by the terms of a federal statute. See, e. g., Great Lakes Act, 28 U.S.C. § 1873 (tort and contract actions in admiralty jurisdiction involving shipping on the Great Lakes); 28 U.S.C. § 1874 (jury to assess sum due on forfeiture of bond); 11 U.S.C. § 42(a) (right of involuntary bankrupt to jury trial). Because there is no constitutional right to a nonjury trial, the Seventh Amendment does not prevent either judicial or legislative extension of the right to jury trial, and such statutes raise no constitutional difficulties. See e. g., The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 459-50, 13 L.Ed. 1058 (1852) (Great Lakes Act); 9 Wright and Miller, Federal Practice and Procedure § 2302, at 15 (1971). On the other hand, when a statute creating new rights or remedies is silent as to the mode of trial, the availability of a jury as of right generally becomes a Seventh Amendment question. Courts fit the statutory claim “into the nearest historical analogy to determine whether there is a [constitutional] right to jury trial.” James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 656 (1963); Ross v. Bernhard, 396 U.S. 531, 543 n. 1, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) (Stewart, J., dissenting); Patzig v. O’Neil, 577 F.2d 841, 848 (3d Cir. 1978); Nedd v. Thomas, 316 F.Supp. 74, 77 (M.D.Pa.1970); 5 Moore’s Federal Practice ¶ 38.11[7], at 128-128.4 (2d ed. 1978); 9 Wright and Miller, Federal Practice and Procedure §§ 2302, 2316 at 16, 79-80 (1971). See, e. g., Pernell v. Southall Realty, 416 U.S. 363, 375-76, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 193-97, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101 (1913); United States v. Jepson, 90 F.Supp. 983 (D.N.J.1950); Olearchick v. American Steel Foundries, 73 F.Supp. 273 (W.D.Pa.1947). As the Court said in Curtis : [W]e have often found the Seventh Amendment applicable to causes of action based on statutes. See, e. g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477, 82 S.Ct. 894, 899, 8 L.Ed.2d 44 (1962) (trademark laws); Hepner v. United States, 213 U.S. 103, 115, 29 S.Ct. 474, 479, 53 L.Ed. 720 (1909) (immigration laws); cf. Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505 (1916) (antitrust laws), and the discussion of Fleitmann in Ross v. Bernhard, 396 U.S. 531, 535-536, 90 S.Ct. 733, 736-737, 24 L.Ed.2d 729 (1970). Whatever doubt may have existed should now be dispelled. The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law. 415 U.S. at 193-94, 94 S.Ct. at 1008 (footnotes omitted). Thus, if in enacting the antitrust laws Congress has granted the right to trial by jury in antitrust damage suits regardless of their size and complexity, any such limitation to the scope of the Seventh Amendment would be irrelevant. But if the antitrust laws do not themselves guarantee trial by jury on demand, we would have to decide the constitutional issue. Private damage suits for relief under the antitrust laws are authorized by § 4 of the Clayton Act, 15 U.S.C. § 15, which replaced § 7 of the Sherman Act, ch. 647, § 7, 26 Stat. 210 (1890). Neither section makes any express mention of trial by jury, but the matter does not end there. In Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), the Court interpreted the Age Discrimination in Employment Act of 1967 as requiring a jury trial on demand, even though that statute is also silent on the issue. In drafting the ADEA, Congress incorporated by reference the remedial provisions of the Fair Labor Standards Act, which courts had held to carry a constitutional right to trial by jury. Because of this, the Court held, the statutory scheme showed that congress “intended that in a private action under the ADEA a trial by jury would be available where sought by one of the parties.” 434 U.S., at 585, 98 S.Ct. at 872. The Court’s analysis thus applied the “principle of reenactment,” a settled canon of statutory construction which presumes that when language with an accepted meaning derived from judicial or administrative interpretation is thereafter used in a statute, Congress intended the language to carry its accepted meaning into the statute. See United States v. Board of Commissioners, 435 U.S. 110, 132-35, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 278-79, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977). Although the legislative history of the Sherman and Clayton Acts may be susceptible to a similar interpretation, the effort would be somewhat strained. Scattered remarks of several Senators during the debates prior to passage of the Sherman Act show that they assumed that jury trials would be available in antitrust damage actions. See 21 Cong.Rec. 1767 (1890) (remarks of Sen. George); id., at 2643 (remarks of Sen. Gray); id., at 3149 (remarks of Sens. Morgan and George). A belief that parties in treble damage antitrust litigation were entitled to jury trial as a matter of constitutional right is also evident in the remarks of several members of Congress during the debates prior to passage of the Clayton Act. See 51 Cong.Rec. 1466, 88 (1914) (remarks of Reps. Scott and Volstead); id., at 9489 (remarks of Reps. Floyd and Volstead); id., at 9491 (remarks of Reps. Green and Scott). Moreover, because damages and especially penal damages were a traditional remedy of the courts of law, see pp. 921-922, infra, Congress was almost certainly aware that litigants in antitrust damage suits would be entitled to trial by jury as a matter of constitutional right. However, mindful of “the difficulty of discerning congressional intent where the statute provides no express answer,” Lorillard v. Pons, 434 U.S. at 585, 98 S.Ct. at 872, we find this evidence insufficient to allow an extension of the reasoning of Lorillard to the antitrust statutes. We note first that since Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 7 L.Ed. 732 (1830), it has been clear — and Congress has presumably been aware — that the constitutional jury trial right attaches to statutory causes of action involving “legal” rights and remedies. See Pernell v. Southall Realty, 416 U.S. 363, 374-75, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 193-94, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). In spite of this, and with the sole exception of Lorillard v. Pons, the Supreme Court has consistently used constitutional analysis to determine the availability of trial by jury when the statute creating a cause of action is silent on the subject. This resort to Seventh Amendment analysis for most causes of action based on statutes implies strongly that mere congressional awareness of the applicability of the Seventh Amendment, like that evident in the legislative history of the antitrust laws, is not enough to make jury trial available as a matter of statutory construction. By way of contrast, the legislative history of the ADEA provides much stronger evidence that Congress was not only aware of, but intended that jury trials be available. In Lorillard, the Court stressed Congress’ deliberate choice of certain of the FLSA’s remedial provisions, and its rejection both of other portions of the FLSA and of the remedial provisions of Title VII, which, though they accord similar relief, do so in terms not held to carry a right to jury trial. Clearly, Congress could have chosen to incorporate instead the remedial provisions of Title VII, thereby entitling plaintiffs to virtually identical relief, but without a jury. The Congresses that enacted the antitrust laws were in a very different position. Unlike the backpay available under Title VII, the damages available for antitrust violations cannot be fairly described as “restitution” or other equitable relief. See Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59, 66-67 (S.D.N.Y.1978). And in suits for penal damages, the right to a jury was then as much a part of the constitutional landscape as it is now in trials for criminal offenses punishable by lengthy imprisonment and large fines. When Congress defines certain conduct as a serious offense, it certainly “intends” that the conduct be severely punished, and necessarily assumes that defendants would have the right to trial by jury. However, it need not “intend” this to be the case; indeed, it might devoutly wish just the opposite, but feel constrained by the constitution. Such constraint was evidently felt by the Congress that passed the Clayton Act; the discussion there of trial by jury showed less concern for the right to a jury trial than for the constitutionality of the proposed changes in the antitrust laws then being debated. See, e. g., 51 Cong.Rec. 9491 (1914) (remarks of Reps. Green and Scott). Whereas Congress in the ADEA deliberately chose statutory language known to carry a right to a jury trial when it could instead have provided equivalent “equitable” relief, Congress in enacting the antitrust laws had no such choice, because equity had no remedy equivalent to treble damages. Clearly, it makes much more sense to discern an “intention” in the first situation than in the second. Thus, because the legislative history of the antitrust laws does not yield the positive evidence of congressional intent required to hold that the plaintiff’s right to a jury trial is guaranteed by the statute, we must address the constitutional issue. C. The Seventh Amendment and the Historical Test The Seventh Amendment provides: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Although the continuing vitality of the Bill of Rights after nearly two centuries may be partly due to our courts’ recognition of the need to read twentieth-century meanings into eighteenth-century terms, the scope of the Seventh Amendment has traditionally been determined by applying a comparatively static, “historical test,” which looks to the English common law as it existed in 1791, when the Seventh Amendment became part of the constitution See, e. g., Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935) (“The right of trial by jury thus preserved is the right which existed under the English common law when the amendment was adopted.”); Dimick v. Scheidt, 293 U.S. 474, 476, 55 S.Ct. 296, 79 L.Ed. 603 (1935). See generally F. James & G. Hazard, Civil Procedure § 8.1 at 347 (1977); 5 Moore’s Federal Practice ¶ 38.08[5], at 79-80 (2d ed. 1978). In looking to the English common law of 1791, the critical distinction is that between “law” and “equity:” By common law, [the framers of the amendment] meant what the constitution denominated in the third article “law;” not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contra-distinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably, there were few, if any, states in the Union, in which some new legal remedies, differing from the old common-law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations in order respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified. In a just sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446, 7 L.Ed. 732 (1830). Accord, e. g., Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 449, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977); Pernell v. Southall Realty, 416 U.S. 363, 374-75, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Ross v. Bernard, 396 U.S. 531, 533, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Because the Court has applied this rule in such a way as to “preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure,” Baltimore & Carolina Line, supra, 295 U.S. at 657, 55 S.Ct. at 891, it has been able to accommodate procedural change without being unfaithful to the historical test. See, e. g., Colgrove v. Battin, 413 U.S. 149, 156-57, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (twelve-member jury not required by Seventh Amendment); Galloway v. United States, 319 U.S. 372, 390, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943) (directed verdict permitted by Seventh Amendment); Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498, 51 S.Ct. 513, 75 L.Ed. 1188 (1931) (New trial on less than all issues in case may be ordered, even though at common law there was no practice of setting aside a verdict in part); Ex parte Peterson, 253 U.S. 300, 309, 40 S.Ct. 543, 64 L.Ed. 919 (1920) (court appointment of auditor to examine complex accounts between the parties in order to simplify and define issues does not violate Seventh Amendment, as long as ultimate determination of disputed issues is left to the jury); Walker v. New Mexico & S.P.R.R., 165 U.S. 593, 596, 17 S.Ct. 421, 41 L.Ed. 837 (1897) (where jury’s general verdict is inconsistent with jury’s answers to special interrogatories, Seventh Amendment is not violated by entry of judgment on the basis of the special verdict, setting the general verdict aside). Although in each of these cases the Court approved procedural incidents of jury trials different from those that had been in practice in 1791, in none was the right to a jury trial lost where that right had been enjoyed at the time of the adoption of the Seventh Amendment. We have noted earlier the defendants’ concession that the Seventh Amendment applies “to all but the most lengthy and complex damage actions.” The issue, therefore, as framed by the historical test, is whether jury trials were unavailable in complex matters in 1791. 1. The Accounting Cases In support of their contention that “[a]t the time that the Seventh Amendment was ratified, . . . litigations involving complex facts or sophisticated business transactions were tried before the Court and not a jury,” the defendants cite a number of cases in which plaintiffs proceeded in equity to obtain “an accounting.” In some of these cases, the jurisdiction of a court of equity was sustained, even though the matter was cognizable at law, because the complexity of the accounts between the parties rendered the remedy at law inadequate. For example, in Kirby v. Lake Shore & M. S. R. R., 120 U.S. 130, 7 S.Ct. 430, 30 L.Ed. 569 (1887), the Court said: The ease made by the plaintiff is clearly one of which a court of equity may take cognizance. The complicated nature of the accounts between the parties constitutes itself a sufficient ground for going into equity. Id., at 134, 7 S.Ct. at 432. And in Fowle v. Lawrason, 30 U.S. (5 Pet.) 495, 8 L.Ed. 204 (1831), while holding that the case at bar was not sufficiently complex to justify equity jurisdiction, the Court stated the rule as being that “in transactions [not involving certain fiduciary relationships], great complexity ought to exist in the accounts, or some difficulty at law should interpose, some discovery should be required, in order to induce a court of chancery to exercise jurisdiction.” Id., at 503. Accord, H. B. Zachry Co. v. Terry, 195 F.2d 185 (5th Cir. 1952); Quality Realty Co. v. Wabash Ry. Co., 50 F.2d 1051 (8th Cir. 1931); Goffe & Clarkener, Inc. v. Lyons Milling Co., 26 F.2d 801 (D.Kan.1928) (discussing cases), aff’d on other grounds, 46 F.2d 241 (10th Cir. 1931); Harrington v. Churchward, 29 L.J.Ch. 521 (1860); O’Connor v. Spaight, 1 Sch. & Lef. 305, 309 (Irish Ch.1804). See Kilbourn v. Sunderland, 130 U.S. 505, 9 S.Ct. 594, 32 L.Ed. 1005 (1889); Standard Oil Co. v. Atlantic Coast Line R. Co., 13 F.2d 633 (W.D.Ky.1926) aff’d on other grounds, 275 U.S. 257,48 S.Ct. 107, 72 L.Ed. 270 (1927). Thus, complexity was sometimes a factor in determining the mode of trial. However, because in these cases the plaintiffs could choose whether to seek relief in law or equity, jury trials were available — even if only at the plaintiff’s opinion. Moreover, the merger of law and equity in the federal courts casts considerable doubt on the survival of the plaintiff’s historical ability to choose a non-jury trial in such matters. These “accounting” cases, therefore, do not help the defendants here. a. Complex Accounting Cases and the Concurrent Jurisdiction of Law and Equity Actions seeking an accounting are the descendants of the old action of “Account” or “Account-render,” one of the earliest forms of action at common law. The common-law action of account was never very popular — perhaps because it was procedurally cumbersome and of limited scope —and by the eighteenth century it was largely replaced by other remedies, both legal and equitable. In some cases there were no incidents of equitable jurisdiction, and the plaintiff had to proceed at law. See, e. g., Fowle v. Lawrason, 30 U.S. (5 Pet.) 495, 8 L.Ed. 204 (1831) (lessor’s action for an accounting of rent allegedly due). When the claims underlying the demand for an accounting were equitable claims, equity jurisdiction was exclusive. 5 Moore’s Federal Practice ¶ 38.25, at 199 (2d ed. 1978). See, e. g., Newberry v. Wilkinson, 199 F. 673, 678 (9th Cir. 1912) (suit for accounting against administratrix of a decedent’s estate); Miller v. Weiant, 42 F.Supp. 760 (S.D.Ohio 1942) (action to compel directors to account for corporate assets); Williams v. Collier, 38 F.Supp. 321 (E.D.Pa.1940) (suit by trustee in bankruptcy to void fraudulent transfer and impose constructive trust); 4 Pomeroy’s Equity Jurisprudence §§ 1420, 1421 (5th ed. 1941). Those cases in which resort to equity was based on the complication of the accounts between the parties fell into a third category — the concurrent jurisdiction of law and equity. 5 Moore’s Federal Practice ¶ 38.25, at 199 (2d ed. 1978). See e. g., Kirby v. Lake Shore & M. S. R. R., 120 U.S. 130, 7 S.Ct. 430, 30 L.Ed. 569 (1887); Fowle v. Lawrason, 30 U.S. (5 Pet.) 495, 8 L.Ed. 204 (1831); H. B. Zachry Co. v. Terry, 195 F.2d 185 (5th Cir. 1952); McNair v. Burt, 68 F.2d 814, 815 (5th Cir. 1934); Goffe & Clarkener, Inc. v. Lyons Milling Co., 26 F.2d 891 (D.Kan.1928); aff’d on other grounds, 46 F.2d 241 (10th Cir. 1931). This overlap in the jurisdictions of law and equity gave plaintiffs in such cases the practical ability to choose the forum — and thereby the mode of trial. When the plaintiff chose to bring his action at law, the defendant’s ability to obtain a non-jury trial was severely limited: [T]he doctrine is well settled that when the jurisdictions of law and equity are concurrent the one which first takes actual cognizance of any particular controversy ordinarily thereby becomes exclusive. If, therefore, the subject-matter of primary right or interest, although legal, is one of a class which may come within the concurrent jurisdiction of equity, and an action at law has already been commenced, a court of equity will not, unless some definite and sufficient ground of equitable interference exists, entertain a suit over the same subject-matter. . The grounds which permit the exercise of the equitable jurisdiction in such cases are the existence of some distinctively equitable feature of the controversy which cannot be determined by a court of law, or some fraudulent or otherwise irregular incidents of the legal proceedings sufficient to warrant their being enjoined, or the necessity of a discovery, either of which grounds would render the legal remedy inadequate. This rule results in part, in the United States, from the provisions of the national and state constitutions securing the right to a jury trial. 1 Pomeroy’s Equity Jurisprudence § 179, at 251-252 (5th ed. 1941). Because Story’s view was that “[t]he whole machinery of Courts of Equity is better adapted to the purpose of an account. . . . ” 2 Story’s Equity Jurisprudence § 591, at 9 (14th ed., 1918), he was distressed by the ability of plaintiffs to bring such actions in the courts of law where they would be tried by juries: [N]ow the [equity] jurisdiction extends not only to cases of an equitable nature, but to many cases where the form of the account is purely legal, and the items constituting the account are founded on obligations purely legal. Upon such legal obligations however suits, although not in the form of actions of account, yet in the form of assumpsit, covenant, and debt, are still daily prosecuted in the Courts of Common Law, and legal defenses are there brought forward. But even in these cases, as the courts possess no authority to stop the ordinary progress of such suits for the purpose of subjecting the matters in dispute to the investigation of a more convenient tribunal than a jury, unless the parties agree to a voluntary arrangement for this purpose the cause often proceeds to trial in a manner wholly unsuitable to its real merits. Id., § 581, at 2 (footnotes omitted). Thus, defendants were not able to have such matters transferred to equity after the plaintiff had brought an action at law. For example, in Williams v. Herring, 183 Iowa 127, 165 N.W. 342 (1917), the defendant sought to have an action transferred to equity on the ground that “the number of items involved” in the business between the parties was “so great that same can be properly tried and determined only by a court of chancery.” Although agreeing that "the number of items . . . will be cumbersome and difficult to present to a jury,” the court was of the view that they could be presented “in such a way as to reasonably be within the understanding and comprehension of a jury,” and held: The fact that the controversy involves a large number of items of debit and credit arising out of many business transactions, and that same could be more conveniently tried to the court, is not a ground of equitable jurisdiction. The test is not whether the cause can be more conveniently or satisfactorily tried and determined by the court than a jury, but the accounts must be mutual requiring an accounting, or there must be some other ground of equitable cognizance not shown to exist in this case. $ * * # jf! * In our opinion, plaintiff’s cause of action upon both counts was properly brought at law, and he is entitled to a trial thereof by jury. Id, 165 N.W. at 344-15. See also Crane v. Ely, 37 NJ.Eq. 564 (1883). These “complex” cases for an accounting therefore reflect only the availability of a jury or nonjury trial at the plaintiff’s option. There is nothing in any of these cases to indicate that the plaintiff could not have chosen to proceed at law, with a jury. In this respect, they are no different from many other kinds of actions presenting issues which, before the merger of law and equity, would be tried to a jury or to the court depending on the manner in which the plaintiff chose to proceed. b. The Concurrent Jurisdiction of Law and Equity After Merger In the federal courts, the merger of law and equity was not intended to affect the scope of the jury trial right; Rule 38(a) requires only that the right “as declared by the Seventh Amendment to the Constitution or as given by a statute shall be preserved to the parties inviolate.” However, a problem was presented by those matters in which the plaintiff had previously had an option as to the mode of trial that excluded any option by defendant or any discretion by the court. . . [T]he [post-merger] question, properly put, is between giving effect to the plaintiff’s former option and giving defendant a counter-option — and this involves a decision as to whether jury trial is to be preferred when either party (and not just the plaintiff) wants a jury trial. F. James & G. Hazard, Civil Procedure § 8.7, at 374-75 (1977). The problem as it was encountered in the federal system has been ably summarized by Judge Wisdom: In 1938 merger of the federal courts of law and equity caused considerable uncertainty in the determination of jury trial rights; the liberal joinder provisions and the broad, sometimes mandatory, counterclaim provisions of the Federal Rules mixed legal and equitable causes in a single litigation with unprecedented frequency. . . . The difficulty comes in deciding whether the legal or the equitable cause should be tried first — an issue of practical importance to litigants, since the determination of either cause acts as collateral estoppel on common questions of fact in the other. The broad grant of discretion under Rule 42 for a trial judge to order separate trials would seem to imply authority to decide the order of the separate trials, but courts struggled with this problem without clear guidelines. Some decisions rested on the “basic nature” of the case taken as a whole. In many other decisions this test was not recognized and the choice was left to the discretion of the trial judge. On occasion, attempts to apply the “basic nature” test have led to inconsistent results. Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 294 F.2d 486, 488-89 (5th Cir. 1961) (footnotes omitted). The problem reached the Supreme Court in Beacon Thea tres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). Beacon Theatres involved a legal counterclaim to an equitable claim; in Dairy Queen the plaintiff sought a court trial of an action presenting both legal and equitable claims. In both cases there were factual issues common to both the legal and equitable claims. Writing for the Court in Dairy Queen, Justice Black left no room for doubt about the solution to the problem that was to be followed in the federal courts: [A]fter the adoption of the Federal Rules, attempts were made indirectly to undercut [the constitutional jury trial] right by having federal courts in which cases involving both legal and equitable claims were filed decide the equitable claim first. The result of this procedure in those cases in which it was followed was that any issue common to both the legal and equitable claims was finally determined by the court and the party seeking trial by jury on the legal claim was deprived of that right as to these common issues. This procedure finally came before us in Beacon Theatres, Inc. v. Westover . . . . Our decision [in Beacon Theatres defines] the protection to which that right is entitled in cases involving both legal and equitable claims. The holding in Beacon Theatres was that where both legal and equitable issues are presented in a single case, “only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Id., at 472-73, 82 S.Ct. at 897. Therefore, the Court reasoned, the sole question which we must decide is whether the action now pending before the District Court contains legal issues. Id., at 473, 82 S.Ct. at 897. The Court then examined the relief sought in the complaint, which had been brought by the owners of the “Dairy Queen” trademark against one of their licensees. The plaintiffs asked for injunctive relief to restrain the licensee from using the trademark or collecting any money from its sublicensees, “an accounting to determine the exact amount of money owing . and a judgment for that amount.” Determining that the claim for a money judgment was “wholly legal in its nature however the complaint is construed,” the Court held that the defendant had a right to a jury trial of the legal claim, including the common factual issues of breach of contract and trademark infringement. Id., at 475-80, 82 S.Ct. at 898-99. Thus, the federal courts, preferring a jury trial at the demand of either party, have determined to give defendants a “counter-option.” James & Hazard, supra, at 377. There are dicta in Dairy Queen implying that a defendant would not have the same “counter-option” in a complex accounting case. In response to the plaintiff’s contention that its money claim was “purely equitable,” because it was “cast in terms of an ‘accounting’ rather than . . ‘debt’ or ‘damages’,” the Court said: But the constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings. The necessary prerequisite to the right to maintain a suit for an equitable accounting, like all other equitable remedies, is, as we pointed out in Beacon Theatres, the absence of an adequate remedy at law. Consequently, in order to maintain such a suit on a cause of action cognizable at law, as this one is, the plaintiff must be able to show that the “accounts between the parties” are of such a “complicated nature” that only a court of equity can satisfactorily unravel them. In view of the powers given to District Courts by Federal Rule of Civil Procedure 53(b) to appoint masters to assist the jury in those exceptional cases where the legal issues are too complicated for the jury adequately to handle alone, the burden of such a showing is considerably ■ increased and it will indeed be a rare case in which it can be met. But be that as it may, this is certainly not such a case. Id., at 477-78, 82 S.Ct. at 900. The matter, therefore, is in some doubt: In its holding in Dairy Queen, the Court extended the defendant’s jury trial right to an issue on which, before merger, the plaintiff could have obtained the court trial it wanted; yet in dicta it suggested that the plaintiff’s choice of mode of trial may yet be preserved in complex accounting cases. This question does not appear to have been resolved by any court, although federal courts in other types of cases have generally held that the federal policy favoring trial by jury, expressed in Beacon Theatres and Dairy Queen, requires that either party be able to demand a jury when the action presents issues so triable. James & Hazard, supra, at 377. See, e. g., Johns Hopkins University v. Hutton, 488 F.2d 912, 916 (4th Cir. 1973) (defendant entitled to jury trial on factual issues in plaintiff’s action for recission of contract so long as plaintiff holds claim for damages in reserve should court find that it is not entitled to recission) cert. denied, 416 U.S. 916, 94 S.Ct. 1622, 40 L.Ed.2d 118 (1974); Minnesota Mutual Life Ins. Co. v. Brodish, 200 F.Supp. 777 (E.D.Pa.1962) (defendant entitled to jury trial on issues common to plaintiff’s equitable claim and defendant’s legal counterclaim). Cf. Leimer v. Woods, 196 F.2d 828 (8th Cir. 1952) (jury available upon demand of either party when consolidated or joined legal and equitable claims have common question of fact). For two reasons, we need not now determine whether the plaintiff’s limited right to a court trial of complex accounting cases has survived the merger of law and equity. First, if this were an action for an accounting, the plaintiff’s clearly expressed demand for a jury trial would be controlling, just as it would have been in 1791. Second, this is simply not an accounting case. “There are no accounts between the parties. The cause of action is one arising in tort, and cannot be converted into one for an account.” United States v. Bitter Root Development Co., 200 U.S. 451, 478, 26 S.Ct. 318, 327, 50 L.Ed. 550 (1906). See e. g., Broderick v. American General Corp., 71 F.2d 864, 868 (4th Cir. 1934). None of the fiduciary or trust relationships giving rise to an obligation to account are present. See American Air Filter Co., Inc. v. McNichol, 527 F.2d 1297, 1300 (3d Cir. 1975); Sulzer v. Watson, 39 F. 414, 415 (C.C.D.Vt.1889). Nor do the plaintiffs seek an accounting in the sense of disgorgement of “profits made from the unfair use of a plaintiff’s trademark or tradename.” Robert Bruce, Inc. v. Sears, Roebuck & Co., 343 F.Supp. 1333, 1348 (E.D.Pa.1972). 2. Other Complex Litigation Because this suit is not an action for an accounting, it is important to determine whether complexity permitted a resort to equity only in accounting cases, or in other kinds of litigation as well. The availability of equity jurisdiction in cases involving complicated facts was addressed in United States v. Bitter Root Development Co., 200 U.S. 451, 26 S.Ct. 318, 50 L.Ed. 550 (1906) and Curriden v. Middleton, 232 U.S. 633, 34 S.Ct. 458, 58 L.Ed. 765 (1914). In Bitter Root, the United States sought relief in equity after millions of feet of timber were allegedly removed and sold by means of an involved conspiracy. Equity jurisdiction was invoked because, “by reason of the frauds and conspiracies . and the complications which have resulted therefrom, no plain, adequate, and complete remedy can be given ... at law . . . .” 200 U.S., at 462, 26 S.Ct. at 323. But the Court ruled that there was no equity jurisdiction: The principal ground upon which it is claimed that the remedy at law is inadequate is really nothing more than a difficulty in proving the case against the defendants. The bill shows that whatever was done in the way of cutting the timber and carrying it away was done by the defendants as tort feasors, and the various devices alleged to have been resorted to by the deceased, Daly, by way of organizing different corporations, in order to, as alleged, cover up his tracks, and to render it more difficult for the complainant to make proof of his action, does not in the least tend to give a court of equity jurisdiction on that account. It is simply a question of evidence to show who did the wrong and upon that point the fact could be ascertained as readily at law as in equity. Id., at 472-73, 26 S.Ct. at 324-25. And in Curriden v. Middleton, the Court reaffirmed this holding, saying, “[Mjere complication of facts alone and difficulty of proof are not a basis of equity jurisdiction.” 232 U.S. at 636, 34 S.Ct. at 458. Moreover, there is evidence that the English recognized the difficulty of large and complex matters for ordinary juries, and found a solution not in equity, but in the “special jury.” The early procedures for trial by special jury were unregulated. See Thayer, The Jury and Its Development, 5 Harv.L.Rev. 295, 301 (1892). But in 1730, it was provided by statute that “on the motion of any plaintiff or plaintiffs, defendant or defendants in any action, cause, or suit whatsoever, depending or to be brought and carried on in the . . . courts of king’s bench, common pleas and exchequer, or in any of them, . . . said courts are hereby respectively authorized and required, upon motion as aforesaid, in any of the cases before-mentioned, to order and appoint a jury to be struck ... in such manner as special jur