Alexander v. National Farmers Organization (637 F. Supp. 1487, 1986)

MEMORANDUM AND ORDERS DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Senior District Judge.

I.

On August 9, 1985 this Court entered an agreed order which established the time schedule under which the following matters would be submitted for this Court’s consideration: (1) NFO’s attorneys’ fee petition, (2) NFO’s Rule 37 motion, (3) AMPI’s Rule 37 motion, and (4) NFO’s bill of costs. By agreement of the parties, the deadline for the last filing to be made under that order was extended to February 10, 1986. On August 27, 1985 NFO filed a motion for clarification of this Court's ruling denying an award of damages. That motion has been fully briefed on a separate schedule and will be ruled.

NFO's motion for clarification will be denied. Both NFO’s Rule 37 motion and AMPI’s motion for sanctions will be granted. Both NFO’s attorneys’ fee petition and its separate bill of costs motion will be denied without prejudice.

II.

Consistent with the Supreme Court’s admonition to avoid a second major litigation stated in Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), the August 9, 1985 order provided that the parties would conduct appropriate conferences during the month of September, 1985, for the purpose of reaching an agreement in regard to the amounts to be awarded in regard to four matters covered by that order. On September 27, 1985, counsel reported that they had conferred on September 18,19, and 20, 1985 in Washington, D.C. as directed in the August 9, 1985 order and that they had been able to agree that if current Kansas City rates are to be applied, the reasonable current Kansas City rates would be $110/hr. for partner level work, $70/hr. for associate level work, and $30/hr. for paralegal and law clerk level work. Counsel were, of course, in disagreement as to whether Kansas City or Washington, D.C. rates should apply and whether any award should be based on current or historic rates.

The September 27, 1985 report stated that counsel were unable to agree on any of the major issues posed by NFO’s cost petition and the NFO and AMPI Rule 37 motions. Counsel stated, however, that “some progress” had been made on the issues presented in regard to NFO’s fee claim. It is clear, however, that the only agreement reached during three days of conference was an agreement as to the current Kansas City hourly rates.

Counsel did not seek any assistance from the Court after the breakdown of those conferences. The Court, of course, did not volunteer assistance, absent such a request. If we had then been familiar with the admonition the Court added in Blum v. Stenson, 465 U.S. 886, 902 n. 19, 104 S.Ct. 1541, 1550 n. 19, 79 L.Ed.2d 891 (1984), to the earlier admonition of Hensley v. Eckerhart, supra, 461 U.S. at 437, 103 S.Ct. at 1941, to avoid a second major litigation, we might have directed counsel to engage in further negotiations. For the Court stated in Blum that a district “court, with its intimate knowledge of the litigation, has a responsibility to encourage agreement.”

We frankly doubt whether further negotiations would have been any more successful than those already conducted pursuant to the August 9, 1985 order. For the September 27, 1985 report of those negotiations and the briefs and documents filed since the failure of the settlement conference make it clear that the parties have mutually decided, contrary to Hensley’s admonition, to embark on a second major litigation.

Our memorandum opinion on remand, reported in 614 F.Supp. 745 (W.D.Mo.1985), shows that NFO’s Rule 37 motion for monetary sanctions was presented on remand as Issue No. 2; AMPI’s motion against NFO for sanctions was presented on remand as Issue No. 3; and that NFO’s motion for costs was presented on remand as Issue No. 8.

The orders entered in regard to all three of those issues were consistent with this Court’s acceptance of counsels’ representations that they were in full agreement with the Hensley second major litigation admonition and that the parties, if given some guidelines, would be able to reach an agreement in regard to all three of those issues.

It is now painfully obvious that the Court was overly optimistic in assuming that the parties would be able to negotiate a settlement of even the relatively uncomplicated questions presented in regard to Issues 2, 3, and 8. For despite continued and frequent assertions that each side wants to avoid a second major litigation, it is crystal clear that the parties have tacitly agreed to follow exactly that course.

The history of how Alexander has been bitterly litigated and the history of how the thirty other antitrust cases in In re Midwest Milk Monopolization Litigation, Multidistrict Docket No. 83, were long ago terminated establishes the sharp contrast between the inability of counsel in Alexander to reach agreement on even minor questions and the ability of counsel in the thirty other antitrust cases to reach complete agreement in regard to how all those cases were to be terminated.

The six opinions of the Judicial Panel on Multidistrict Litigation in In re Midwest Milk Monopolization Litigation show that the Panel transferred 28 separate private antitrust actions to this Court for coordinated pretrial proceedings pursuant to 28 U.S.C. § 1407. In addition to the 28 private antitrust actions transferred pursuant to Section 1407, this Court accepted transfer pursuant to 28 U.S.C. § 1404, of the government’s civil antitrust action originally filed against AMPI in the Northern District of Texas. That government case, and the government’s civil action against Mid-Am, filed in this district was also processed in this Court under coordinated pretrial procedures. Both cases were long ago terminated by this Court’s approval of consent decrees.

The files and records of this Court and the docket sheets of the Panel establish that all of the 30 antitrust cases in which coordinated, as distinguished from consolidated, pretrial discovery was conducted, excepting only two cases transferred from the Northern District of Illinois, were disposed of by the agreement of the parties and without the conduct of any major litigation.

The contrast between the manner in which the 28 cases on Multidistrict Docket No. 83 and the two government antitrust actions were terminated and the failure of counsels’ efforts in this case to reach any agreement in regard to any significant issue requires that this Court recognize that the parties in this case would rather litigate every issue that can be litigated than settle any issue that may be subject to an additional major litigation.

It is therefore appropriate that the final judgments that will be entered in regard to the orders entered July 5, 1985 and the orders entered today will be in an agreed form that will enable the parties to present all the issues that either side may wish to seek appellate review.

We turn now to NFO’s motion for clarification.

III.

Four days before NFO filed its motion for attorneys’ fees, it filed a motion captioned as a “Motion for Clarification of the Court's Ruling Denying an Award of Damages.” That motion requested that this Court “clarify” its July 5,1985 order “so as to award NFO nominal damages of One Dollar ($1.00) trebled to Three Dollars ($3.00).”

Defendants’ suggestions in opposition to that motion commenced with the statement, never denied by NFO, that “NFO’s reason for bringing a motion for $3.00 in damages, although unstated, is quite apparent: the prerequisite to any award of attorney’s fees under 15 U.S.C. § 15 is the recovery of money damages.” Id. at 2. We believe it obvious that at some time during the course of preparing its motion for attorneys’ fees, NFO came to the realization that if this Court’s July 5, 1985 decision on the damage issue was affirmed on appeal and its decision that NFO was entitled only to the minimal equitable relief awarded by this Court was reversed, NFO would find itself in the unhappy position of having no statutory basis for the award of any attorneys’ fees in this case.

The arguments in support of and in opposition to NFO’s motion for clarification center primarily on three Eighth Circuit cases: Rosebrough Monument Co. v. Memorial Park Cemetery Association, 666 F.2d 1130 (8th Cir.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1321 (1982); Morning Pioneer, Inc. v. Bismarck Tribune Co., 493 F.2d 383 (8th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974); Siegfried v. Kansas City Star Co., 298 F.2d 1 (8th Cir.1962), cert. denied, 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed.2d 785 (1962).

NFO argues that those three cases support its argument that “the Eighth Circuit has repeatedly mandated that in precisely NFO’s situation ... nominal damages of one dollar trebled to three dollars should be awarded.” (Emphasis added). Defendants, on the other hand, argue that while “the Eighth Circuit has approved the award of nominal damages upon proof of injury but failure of proof as to the quantum of damages [citing the three Eighth Circuit cases]”, it “has never required the award of nominal damages in private antitrust actions.” (Emphasis added).

We are satisfied that the three Eighth Circuit cases to which counsel have devoted so much attention do not support NFO’s argument that the Eighth Circuit has mandated that a district court should award a plaintiff nominal damages in a case in which that plaintiff has failed to carry the burden of proving any actual damages. We turn first to Rosebrougk Monument.

A. Rosebrougk, Monument

On the first appeal in Rosebrougk Monument, the Court of appeals, consistent with the construction it gave Rule 52(a) of the Federal Rules of Civil Procedure prior to the Supreme Court's recent decision in Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), made a finding that the appellant’s “evidence was sufficient to support the inference that appellant had in fact been injured by appellees’ exclusive foundation preparation policy.” 666 F.2d at 1146-47. Rosebrougk Monument, on that first appeal also stated, without the citation of any legal authority or any explanation, that “[u]nder the circumstances, we think an award of nominal damages is justified and remand to the district court with directions to award appellant nominal damages in the amount of $3.” Id. at 1147.

The first appeal in Rosebrougk Monument established that the real battle in that case, in sharp contrast to the real battle in this case, was centered on plaintiffs right to injunctive relief rather than on any effort of the plaintiff to recover any substantial monetary damages. Rosebrougk Monument concluded in regard to that issue that “the district court’s denial of injunctive relief is reversed, and the portion of that cause is remanded to the district court for formulation of an appropriate order.” Id. at 1148. The statement of the Court of Appeals that the plaintiff was entitled to nominal damages in the amount of $3.00 did not suggest that the Court of Appeals entertained any view that the plaintiff needed to be awarded $3.00 in order to have a basis for an award of attorneys’ fees. For Rosebrougk Monument was decided after 15 U.S.C. § 26 was amended in 1976 under which a substantially prevailing plaintiff was entitled to base its request for attorneys’ fees solely on Section 26 as amended in 1976.

The post-remand proceedings in the district court after the first appeal in Rosebrougk Monument, establish that the district court on the remand, based its attorneys’ fee award on the equitable relief granted. The Court of Appeals, on a second appeal, affirmed.

The district court’s decision on remand is reported in 572 F.Supp. 92 (E.D.Mo.1983). That opinion shows that the district court had deferred its ruling pending the Supreme Court’s decision in Hensley. Id. at 94. After concluding that Hensley’s standards were “applicable to the present case,” the district court stated that in a case in which the prevailing party “has achieved only partial success,” Hensley required that it “focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” (Quoting Hensley, 461 U.S. at 435, 103 S.Ct. at 1940).

The district court stated that, on the facts, there “is no question that the injunctive relief sought was a substantial objective and that the relief obtained was virtually complete.” Id. at 95. It then stated that by “contrast, plaintiff recovered insignificant damages, through trial and appeal, after expending enormous efforts to prove its claim of well over three million dollars.” Id. at 95.

The plaintiff in Rosebrougk Monument, as does NFO in this case, argued that a “full assessment of attorney’s fees is appropriate because it prevailed on all counts, notwithstanding that only One Dollar ($1.00) was awarded and then trebled for a total recovery of Three Dollars ($3.00).” (Emphasis added). The plaintiff, as does NFO, argued that “the injunctive relief awarded, combined with the nominal damages, constituted substantial success and justifies a full award of fees.” (Emphasis added.) Id. at 95.

The district court expressly rejected plaintiffs argument. It concluded that the “mere fact that plaintiff obtained judgment on one or more counts does not necessarily establish the ‘degree of success’ but rather goes to determining whether plaintiff was a prevailing party, and hence entitled to fees at all.” Id. at 95. The district court concluded that Hensley required that “in evaluating the appropriate amount of fees, the Court looks more broadly to the ‘significance of the overall relief’ ” (emphasis, the court) and that “must necessarily include a consideration of the amount of damages recovered compared to the amount sought, as well as all other relief (including injunctive relief) that collectively measures the fruits of plaintiffs efforts.” Id. at 95. The district court accordingly determined that it would award as attorneys’ fees “that amount which is reasonable in relation to plaintiff’s success on the issue of injunctive relief, and its failure on the issue of damages.” (Emphasis added). Id. at 95. As stated by the Court of Appeals on the second appeal in Rosebrough Monument, the district court reduced “its attorney’s fees award to one-half of the amount requested because appellant failed to obtain monetary relief except for $3.00 in nominal damages.” 736 F.2d at 446.

The second appeal in Rosebrough Monument is reported in 736 F.2d 441 (8th Cir. 1984). The Court of Appeals concluded on second appeal that in “the present case the district court, which presided over the litigation, was in the best position to evaluate the time and resources expended on appellant’s unsuccessful attempt to prove its measure of damages” and that “[w]e find no error or abuse of discretion in the district court’s reduction of the attorney’s fee award by one-half to account for appellant’s failure to obtain any significant money damages. ” Id. at 446. (Emphasis added). Accordingly, the Court of Appeals affirmed the district court’s reduced award of attorneys’ fees.

Rosebrough Monument is distinguishable on its facts from this case. In Rosebrough Monument, the district court found as a fact, that the equitable relief obtained by the plaintiff in that case was “virtually complete.” 572 F.Supp. at 95. The record in this case does not even come close to supporting such a finding. The district court in Rosebrough Monument did not find that the plaintiff was entitled to any attorneys’ fees on the ground the Court of Appeals had concluded that the plaintiff was entitled to nominal $3.00 damages.

Nor did it need to do so. For after the Congress amended 15 U.S.C. § 26 in 1976, the question of whether nominal damages would support an attorneys’ fee award under 15 U.S.C. § 15 became largely academic in all cases in which a plaintiff established a right to substantial equitable relief. We cannot believe that the Court of Appeals would have affirmed the district court’s decision to base the plaintiff's attorneys’ fee award solely on the equitable relief obtained by plaintiff if the Court of Appeals entertained any notion that an award of $1.00 damages, trebled to $3.00, could be said to mandate an award of at least some attorneys’ fees on a plaintiff’s damage claim. In short, we do not believe Rosebrough Monument may properly be said to support NFO’s clarification motion.

B. Morning Pioneer

Both Morning Pioneer and Siegfried were decided before Section 26 was amended in 1976; hence a plaintiff could establish a right to attorneys’ fees only if it could establish that it was the prevailing party in the antitrust case within the meaning of Section 15. Morning Pioneer affirmed the decision of the district court reported in 342 F.Supp. 1135 (N.D.1972). The district court, in a case tried without a jury, concluded that plaintiffs proof in regard to the extent of its damage was “almost nonexistent.” Id. at 1143. Without the citation of any authority, the district court concluded that “I hold that there has been no proof of loss with sufficient particularity to allow the calculation of damages, and I award the Plaintiff the sum of one dollar, his costs and reasonable attorney fees.” Id. at 1143. Plaintiffs prayer for an injunction was also denied.

The Court of Appeals noted at the outset of its opinion affirming the district court that it had “denied injunctive relief but awarded the Pioneer nominal single damages of one dollar (three dollars trebled) and attorney’s fees of $7,350, plus costs for the Sherman Act violation.” 493 F.2d at 385. In regard to the attorneys’ fee issue argued on appeal, the Court of Appeals concluded only that it could not find that the district court had abused its discretion in awarding an attorneys’ fee of $7,350. It stated that when “the damages recovered are relatively small, as is the case here, it is not necessarily an abuse of discretion to grant attorneys’ fees in excess of the damage award.” Id. at 390.

Morning Pioneer, in our judgment, does not support NFO’s argument in support of its motion for clarification.

C. Siegfried

Neither the opinion of the district court nor that of the Court of Appeals in Siegfried state the procedural history under which the district court entered its judgment for nominal damages set forth in Siegfried v. Kansas City Star Company, 193 F.Supp. 427, 439-440 (W.D.Mo.1961). That history, however, shows that plaintiffs in Siegfried actually opposed the entry of a judgment for nominal damages in their favor and that such a judgment was entered at the suggestion of the defendants in that case. The question of whether the judgment for nominal damages was properly entered was never litigated on appeal. Plaintiffs argued on appeal, as they did in the district court, that no judgment, including the judgment for nominal damages, should have been entered. Plaintiffs consistently argued in both the district court and in the Court of Appeals that they were entitled to a new trial.

The district court files and records in Siegfried show that on December 16,1960, eight days after the jury returned its special verdicts, the late Judge Ridge entered an order which directed counsel for the parties to file suggestions in regard “to what form of judgment, if any, ... should be entered by the Court.” Defendants’ response to that order included a motion to enter judgment in the form attached to its motion.

Defendants’ December 21, 1960 suggestions in support of that motion stated that it “is the contention of the defendants that plaintiffs are entitled to an award of nominal damages only in the amount of one dollar or less per count which, of course, would be trebled by the Court pursuant to Section 4 of the Clayton Act. Id. at 1.

There can be no question that counsel for the plaintiffs in Siegfried opposed the entry of a judgment for nominal damages in plaintiffs’ favor. One response filed on behalf of all plaintiffs argued that the district court could not enter any judgment on the special verdict rendered by the jury. A second response filed on behalf of three plaintiffs represented by Harry P. Thomson, who has served as lead counsel for Mid-Am throughout the pretrial proceedings and the trial of this case, agreed with counsel for the other plaintiffs that the district court could not enter any judgment. Mr. Thomson conceded, however, that Finley v. Music Corporation of America, 66 F.Supp. 569 (S.D.Cal.1946), might be said to support the entry of a judgment for nominal damages. But he was quick to point out that “the Finley case has never been subsequently cited and the writer questions its authority on the issue of damages.”

On March 1, 1961 Judge Ridge entered an order directing that the Clerk enter judgment in the form as submitted in Exhibit A attached to defendants’ motion for judgment. Plaintiffs filed a notice of appeal on March 29, 1961. The Court of Appeals affirmed in 298 F.2d 1 (8th Cir. 1962). Certiorari was denied on March 19, 1962. 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed.2d 785 (1962). It is clear that the question of whether nominal damages should be awarded in a case in which the plaintiff failed to prove any actual damage was not presented on appeal in Siegfried. The defendants were defending the judgment entered at their request. The plaintiffs were arguing that plaintiffs were entitled to a new trial and that the district court had erred in entering a judgment in any amount.

In support of its argument that this Court is under some sort of a mandate to award NFO $3.00 in treble damages, NFO stated on page 6 of its suggestions in support of its motion for clarification that the Court of Appeals in Siegfried “applauded the lower court’s instructions to the jury because [those instructions] explained that if the fact of antitrust damage is shown, but the amount is in question, then the plaintiff should recover nominal damages.” We conclude that NFO’s argument is based on a totally inaccurate reading of the Court of Appeals’ opinion.

Judge Ridge’s view that a jury could return a verdict for nominal damages in an antitrust case was first stated in Judge Ridge’s original charge to the jury, which plaintiffs never attacked. That view was repeated in his supplemental charge to the jury. Plaintiffs never challenged the inclusion of the nominal damage instruction in Judge Ridge’s supplemental charge. Plaintiffs, both in the district court and in the Court of Appeals, argued that the district court erred when it gave its supplemental charge and when it entered entry of any judgment on the special verdicts rendered after that supplemental charge was given the jury.

It is thus clear that the Court of Appeals did not, as NFO argues, “applaud” Judge Ridge’s charge on nominal damages. The Court of Appeals had no occasion to and did not, in fact, even comment on that charge. It simply stated that it “considered the trial courts’ summary of the evidence to be fair and complete” and that it adopted “the trial court’s summary of the evidence as our own.” 298 F.2d at 5.

It is thus apparent that NFO’s attempt to rely on the Court of Appeals’ opinion in Siegfried as a mandate that this Court should “clarify” its opinion by an award of $1.00 nominal damages is untenable.

D. McCleneghan v. Union Stock Yards of Omaha

We believe that it should be added that the Court of Appeals has implicitly indicated that it would not be inclined to adopt a rule that a plaintiff who fails to prove actual damages in an antitrust case may nevertheless be entitled to an award of nominal damages, should such a question be directly presented on some future appeal. For the Court of Appeals has cited Judge Friendly's opinion in Herman Schwabe, Inc. v. United Shoe Machinery Corp., 297 F.2d 906 (2d Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1031, 8 L.Ed.2d 85 (1962), with approval.

Schwabe’s footnote 4 cited the district court opinion in Siegfried as an example of a small number of certain cases that “have awarded or indicated the possibility of awarding nominal damages under § 4 of the Clayton Act.” 297 F.2d 906, 909. Judge Friendly added, however, that “this seems dubious in the light of the language of the statute and the Supreme Court opinions.” Id. at 909.

The Eighth Circuit had occasion to consider Schwabe and Judge Friendly’s conclusion that the district court’s opinion in Siegfried was “dubious” in McCleneghan v. Union Stock Yards of Omaha, 349 F.2d 53 (8th Cir.1965).

In affirming the district court’s grant of a directed verdict, the McCleneghan court quoted from Schwabe and from the cases from other circuits cited in Schwabe’s footnote 4 upon which Judge Friendly relied to support his conclusion that the district court opinion in Siegfried was “dubious” to support its conclusion that “the trial court correctly determined that plaintiff has failed to establish the fact that he suffered any damage which was caused by defendants’ alleged wrongful acts.” 349 F.2d at 59.

We are thus satisfied that the Eighth Circuit’s decision in McCleneghan, the Eighth Circuit decisions cited in that case, and the Eighth Circuit decisions that have followed McCleneghan are consistent with our view that NFO’s argument is untenable. Accordingly, an order will be entered denying NFO’s motion for clarification.

We turn now to NFO’s motion for attorneys’ fees and its separate motion for costs.

IV.

A.

Although NFO has not been awarded any damages, its motion for attorneys’ fees was based on both 15 U.S.C. §§ 15 and 26. That motion will be denied without prejudice for reasons we shall state in detail. For any award of attorneys’ fees that this Court might make at the present time would necessarily be based on this Court’s view of extent of NFO’s success in this litigation, a view which may or may not be sustained on appellate review of the merits of this case. The same analysis is applicable to NFO’s motion for costs and reasonable litigation expenses for the reason that it may or may not eventually be determined on final appeal that NFO will be the prevailing party in this litigation. NFO’s motion for costs will accordingly also be denied without prejudice.

The parties’ arguments are poles apart. NFO argues on page 3 of its Main Fee Brief that Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and other cited cases establish that there is “no basis for a fee reduction attributable to ‘unsuccessful claims’ or ‘lack of success.’ ” Defendants, on the other hand, argue on page 5 of their Main Opposition Brief that NFO’s failure to prove any actual damage and its failure to obtain any significant equitable relief mandates the complete denial of NFO’s attorneys’ fee petition.

It is thus clear that focus must be directed on the sharp dispute that exists in regard to whether the extent of NFO’s success is a factor that this Court would be required to consider in determining the proper amount of any attorneys’ fee that might be awarded. For NFO basicly contends that its success is not a relevant factor that need be considered and that defendants, with equal vigor, contend that NFO’s present lack of success is the crucial factor that mandates a total denial of any attorneys’ fee award to NFO.

We are satisfied that the extent of a plaintiff’s ultimate success on the merits is a crucial factor that must be considered in determining the amount of attorneys’ fees to be awarded and that NFO’s arguments to the contrary are untenable. NFO’s purported reliance on and selective quotation of portions of Hensley requires that we detail the manner in which we believe that case must be read.

B.

The point of beginning is that appropriate recognition must be given to the fact that Hensley presented the precise issue of “whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.” 461 U.S. at 426, 103 S.Ct. at 1935-36. The defendants “opposed the request on numerous grounds, including inclusion of hours spent in pursuit of unsuccessful claims.” Id. at 428, 103 S.Ct. at 1937. The Court noted that the district court “refused to eliminate from the award hours spent on unsuccessful claims” when it awarded plaintiff an attorneys’ “fee of $133,332.25.” Id. at 428, 103 S.Ct. at 1937. The Court vacated the district court’s award and remanded the case for further proceedings to be conducted in accordance with the standards stated in the Hensley opinion.

In stating the standards to be applied to the facts of a particular case, the Court noted that Congress had cited the Fifth Circuit opinion in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), with approval. The Court noted that “[o]ne of the factors in Johnson, ‘the amount involved and the results obtained,’ indicates that the level of a plaintiff’s success is relevant to the amount of fees to be awarded.” Id. at 430, 103 S.Ct. at 1938. The Court stated that the “results obtained” factor “is particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.” Id. at 434, 103 S.Ct. at 1940.

The Court concluded that it was necessary to remand the case to the district court “because the District Court’s opinion did not properly consider the relationship between the extent of success and the amount of the fee award.” Id. at 438, 103 S.Ct. at 1942. The district court was directed to determine the proper amount of attorneys’ fees in accordance with the standards stated in Hensley.

The attorney’s fee cases decided by the Supreme Court after Hensley have not in any way modified that case. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Webb v. Dyer County Board of Education, — U.S. —, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985); and Evans v. Jeff D., — U.S. —, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986).

We recognize, of course, that the Supreme Court granted certiorari for the second time in City of Riverside v. Rivera, — U.S. —, 106 S.Ct. 244, 88 L.Ed.2d 253; that it heard argument in that case on March 31, 1986 (54 L.W. 3678); and that the decision in that case may be handed down before the Court’s summer recess (54 U.S.L.W. 3741).

One Justice, however, has already indicated that the probability that the Ninth Circuit will again be reversed is substantial, see Justice Rehnquist’s grant of stay jn — u.S. -, 106 S.Ct. 5, 87 L.Ed.2d 683. In light of the grounds stated in support of that grant of stay, with which we agree, we see no reason to defer our decision until City of Riverside is decided. We do not anticipate the Court is about to overrule Hensley and the progeny of that case cited above.

C.

Williams v. Mensey, 785 F.2d 631 (8th Cir.1986), decided on March 7, 1986, reflects the Eighth Circuit’s most recent application of the standards articulated in Hensley. That case involved a Section 1983 action against St. Louis County and nine individuals who were either officials or correctional officers of the St. Louis County Jail. Judgments were entered by the district court on jury verdicts for all defendants except Armstrong, one of the correctional officers. The jury, however, awarded only $1.00 damages in favor of the plaintiff against Armstrong. The district court originally denied plaintiff’s request for any attorneys’ fees on the ground that the plaintiff had obtained only “limited success” in the litigation. Id. at 634.

The Court of Appeals summarily reversed the district court’s total denial of any attorneys’ fees awards and remanded the case to the district court by a February 23,1984 order of the Court of Appeals. On remand, the district court granted an attorney fees award in the amount of $1,000.

After hearing oral argument on April 11, 1985, the Court of Appeals entered still another order on May 10, 1985 that again remanded the case to the district court. In that order the district court was requested, in accordance with Hensley, “to provide a concise but clear explanation of its reasons for the fee award.” Id. at 639 n. 2. On the second remand, the district court stated the reasons for its original award and “reaffirmed its position that Williams was entitled to attorney fees in the amount of only $1,000 rather than the $10,493.63 requested.” Id. at 639-40.

The Court of Appeals affirmed the district court’s award of attorneys’ fees of only ten percent of the attorneys’ fees requested. It concluded that “the district court did not abuse its discretion in determining that a $1,000 fee award was reasonable.” In affirming, the Williams v. Mensey court relied on that portion of Hensley (461 U.S. at 440 [103 S.Ct. at 1943]) which stated, that “where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.” Id. at 640.

We thus conclude that under the standards of Hensley and Williams v. Mensey, a district court is under duty to award attorneys’ fees in an amount that is reasonable in relation to the results obtained. The difficulty presented in this case that will not go away is the fact that neither this Court nor anyone else can presently predict what result NFO may eventually obtain in this case. The judgments that will be entered in this Court are subject to, and undoubtedly will be subjected to further appellate review.

An appellate court, either the Court of Appeals or the Supreme Court, may affirm or reverse either or both of the judgments that will be entered that will reflect our decisions that (1) NFO failed to carry the burden of proof on its claim for damages and that (2) NFO is entitled only to the limited equitable relief awarded by this Court pursuant to its understanding of the directions given it by the Court of Appeals. The result that matters simply will not be finally determined until the parties will have exhausted all their available rights to appellate review.

If this Court is eventually reversed on both issues, the result that matters cannot be determined until further procedures on the merits will have been conducted in this Court on remand. Further appellate proceedings on the merits, of course, would thereafter be required before the result that matters would be finally determined. Should this Court be reversed on the damage issue but affirmed on the equitable relief issue, the same procedures on remand would be required before the result that matters would be finally determined. And if this Court is affirmed on the damage issue, but reversed on the equitable relief issue by a final appellate decision, NFO’s entitlement to any attorneys’ fee award, might well be placed in jeopardy.

In short, any attorneys’ fee award that this Court may make at this time, would necessarily have to be based on the results that NFO has up to this point obtained in the district court. Any award of attorneys’ fees that would be based on judgments that are subject to immediate appellate review would be nothing more than an exercise in futility unless it is assumed that this Court will eventually be affirmed on the judgments that will be entered on both the damage issue and equitable relief issue. Based on its experience with the parties, the Court is confident that the parties will not be in agreement that such an assumption should be made. We are accordingly satisfied that the extent of NFO’s success or lack of success should be finally determined on appeal before this Court embarks on what promises to be a second major litigation in connection with NFO’s request for an attorneys’ fee award.

The ultimate appellate disposition of two cases, one in the Eighth Circuit and one in the Supreme Court, illustrate the fact that district court awards of attorneys’ fees and awards of costs that are made before final appellate determination of the merits of an antitrust action simply may be here today and gone tomorrow. Those cases underline the futility of engaging in a second major litigation before the merits of the first major litigation are finally determined on appeal. We turn now to those two cases.

D.

The panel opinion in Paschall v. Kansas City Star Co., 695 F.2d 322 (8th Cir.1982), affirmed the district court’s judgment that the plaintiff was entitled to injunctive relief for defendant’s violation of Section 2 of the Sherman Act. That panel opinion shows that the district court awarded the plaintiff approximately $2.5 million in attorneys’ fees. The Court of Appeals reduced that attorneys’ fee award to $1,231,485.61. The district court also awarded the plaintiff $342,339.42 in costs: $34,407.14 in stipulated items and $307,932.28 for expert witness fees. The cost award was affirmed in its entirety. The panel opinion in Pasc hall was overruled by the Court en banc in Paschall v. Kansas City Star Co., 727 F.2d 692 (8th Cir. en banc 1984), cert. denied, — U.S. —, 105 S.Ct. 222, 83 L.Ed.2d 152 (1984). The majority Court en banc opinion stated that “we reverse the judgment of the district court, dissolve the permanent injunction and vacate the award of attorney fees.” 727 F.2d at 704.

Judge Sachs’ concurring opinion in Hiegel v. Hill, 771 F.2d 358 (8th Cir.1985), the Eighth Circuit’s latest opinion dealing with costs, shows that the mandate in Paschall II reached the district court between the time Hiegel v. Hill was argued on March 11, 1985 and the time that case was decided on August 9, 1985. Judge Sachs’ concurring opinion further shows that plaintiff’s $312,932.28 cost award was vacated along with plaintiff’s $1,231,485.61 attorneys’ fee award. On remand, the defendant, rather than plaintiff was awarded costs in the amount $41,194.89.

It is thus apparent that the Court en banc’s reversal of the district court judgment in Paschall II and the Supreme Court’s ultimate denial of certiorari, not only resulted in plaintiff’s loss of his attorney’s fee award of $1,231,485.61 and his over $300,000 costs award; it also resulted in plaintiff’s obligation to pay the defendant over $42,000 in costs.

A reversal by the Supreme Court of a district court antitrust judgment in favor of a plaintiff has the same impact on a district court’s award of attorneys’ fees and costs as a Court of Appeals reversal of plaintiff’s judgment. In Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706 (N.D.Ill.1982), the plaintiff recovered a $7,497,-027.00 antitrust judgment. Plaintiff also recovered a judgment against one of the two defendants on a state tort law claim. The district court awarded plaintiff attorneys’ fees of $1,722,175.53 and costs of $92,497.17 on plaintiff’s Sherman Act recovery. The Seventh Circuit affirmed all the judgments entered by the district court “in their entirety.” 691 F.2d 310, 331 (7th Cir.1982).

The Supreme Court, however, granted certiorari and in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), reversed the Sherman Act judgment of the Court of Appeals outright. Thereafter the Seventh Circuit, on remand from the Supreme Court, in an unpublished order entered December 12,1984, copy of which we obtained from the Northern District of Illinois, remanded the case to the district court with instructions to enter judgment for the defendants on Independence’s Sherman Act claim and to enter judgment for the defendants for $15,758.55 for its costs incurred by them in prevailing in the Supreme Court.

It is thus clear that the Supreme Court’s reversal of the district court’s judgment on the merits of the plaintiff’s antitrust claim in Independence Tube Corp. v. Copperweld Corp. had the same impact on the plaintiff’s awards for attorneys’ fees and costs that the Court of Appeals’ reversal of the district court had in Paschall II. In both instances, the plaintiff lost their attorneys’ fee awards and their awards for costs incurred in prosecuting their respective antitrust claims.

For the reasons stated, orders will be entered denying without prejudice (1) NFO’s motion for attorneys’ fees pursuant to 15 U.S.C. §§ 15 and 26 and (2) NFO's motion for costs and reasonable litigation expenses.

V.

A.

It is appropriate that NFO’s Rule 37 motion and AMPI’s motion for sanctions be discussed together. For both motions require this Court to determine the amount of sanctions that should be imposed against those two parties. While it may be difficult to understand why the concealment and destruction of documents by one party should be viewed in any different light than the destruction by another party, we believe that what the Court of Appeals said in regard to AMPI’s destruction must be considered as an implicit direction that this Court should impose a greater sanction on AMPI than the sanction it should impose on NFO. It is thus clear, assuming that we have correctly read the Court of Appeals’ decision, that any sanction imposed against NFO will do no more than reduce the amount of any sanction that may be imposed against AMPI.

Our discussion of both motions must necessarily include a discussion of other proceedings that were being conducted in regard to other matters that pended before this Court during the same period of time that proceedings were being conducted in regard to the motions for sanctions. Those separate proceedings related to (1) NFO’s efforts to block this Court’s approval of the consent decree in the government’s action against AMPI; (2) AMPI’s efforts to obtain an order in the Western District of Texas for the return of the material adduced in evidence before the San Antonio Grand Jury proceeding; (3) NFO’s resistance of AMPI’s efforts in that district, in the Fifth Circuit, and in the Supreme Court; (4) NFO’s Rule 6(e) motions filed in this Court to obtain disclosure of the San Antonio Grand Jury material eventually transferred to this district; and (5) AMPI’s more than vigorous resistance of NFO’s second Rule 6(e) motion for disclosure of the grand jury material. For the battles NFO and AMPI waged in regard to those separate matters had a direct impact on this Court’s ability to rule NFO’s Rule 37 motion and to its ability to get NFO to rest its case-in-chief during the trial of Phase II of this case.

Those matters must be discussed and placed in appropriate perspective for the reason NFO attempts to maintain that the time it expended in fighting AMPI in the Western District of Texas and elsewhere should be considered in the determination of the amount of the sanctions that should be imposed against AMPI. We find and conclude that NFO’s position in that regard is untenable and that NFO’s view of the amount of sanctions that should be imposed against AMPI on its Rule 37 motion is grossly excessive under the circumstances.

B.

It is appropriate that we state, however, that after careful review of Order (3) entered July 5, 1985 on Issue No. 2 — NFO’s Rule 37 motion, that it will not be necessary that we utilize the provision of that order which endorsed the principle that “NFO is entitled to be compensated for at least some of its costs and fees incurred in defending AMPI’s Phase III claim.” (Emphasis added). 614 F.Supp. at 755.

That order was phrased in that flexible language to provide an appropriate basis for increasing the amount of sanctions that might ultimately be imposed against AMPI in the event the Court should determine that the time expended by NFO on the matters covered by Order (1) and Order (2) entered July 5, 1985 was not sufficient to support the amount of sanctions that we might ultimately determine should be imposed against AMPI under all the circumstances. After careful review of the record, we now find and conclude that it is not necessary that we use the flexible provision of Order (3) for the reason there is no need to consider any of the time NFO expended on the defense of Phase III to sustain the amount of sanctions that we have determined should be imposed against AMPI.

Order (2) entered July 5, 1985 endorsed “the principle that NFO was entitled to compensation in regard to the San Antonio grand jury proceeding.” Id. at 755. Viewed with 20/20 hindsight, it is apparent that Order (2) should have been more carefully phrased. For it is clear that NFO has assumed that under that order it was entitled to claim as time spent on its Rule 37 motion in this Court all the time it spent trying to get the San Antonio Grand Jury to return indictments and all the time it spent resisting AMPI’s unsuccessful effort in the Western District of Texas, the Fifth Circuit, and the Supreme Court, to obtain an order from the Western District of Texas that would return the San Antonio Grand Jury material to AMPI.

We regret that Order (2) was not more precisely stated for we never intended by that order to suggest that NFO was entitled to the time spent in its Western District of Texas battle with AMPI to be considered as a factor in determining the amount of sanctions to be imposed as against AMPI. That battle, litigated in courts other than this Court, was as unrelated to the litigation that pended in this Court as still another battle NFO and AMPI elected to fight in the litigation filed by AMPI against NFO in the state courts of Wisconsin.

We therefore state that Order (2) was intended only to endorse the principle that NFO was entitled to have the time spent in this Court in regard to the San Antonio Grand Jury proceeding as a factor in determining the amount of sanctions to be imposed against AMPI. That time was basicly expended on NFO’s Rule 6(e) motions filed in this Court to obtain disclosure of the grand jury material.

Our careful and detailed review of the time NFO was required to spend in this Court in that regard supports our finding that it is not necessary that we consider any of the time expended by NFO in defending Phase III. For our review of the record establishes that AMPI’s adamant resistance of NFO’s second Rule 6(e) motion required NFO to spend an inordinate amount of time on a motion that should not have taken any appreciable amount of time under the circumstances.

The record establishes that AMPI’s opposition to the disclosure of the San Antonio Grand Jury materials delayed the time NFO rested its case-in-chief in the trial of Phase II. Of equal, if not greater importance, AMPI’s adamant resistance to NFO’s Rule 6(e) motion delayed the time this Court was able to establish a factual basis for ruling NFO’s Rule 37 motion and for determining the extent, if any, NFO may have been prejudiced by any failure that AMPI may have made in the production of any of the documents that were adduced in evidence before the San Antonio Grand Jury. Until those grand jury documents were actually examined, no one, including this Court, could determine whether the grand jury may have obtained possession of a substantial number of documents that NFO had never seen.

C.

NFO’s Rule 37 motion was filed January 25, 1974. On August 13, 1974 the government presented the consent decree agreed to by the parties in the separate litigation of United States v. Associated Milk Producers, Inc., 394 F.Supp. 29 (W.D.Mo.1975), aff’d, 534 F.2d 113 (8th Cir.1976), cert. denied sub nom National Farmers Organization, Inc., 429 U.S. 940, 97 S.Ct. 355, 50 L.Ed.2d 309 (1976). The separate San Antonio Grand Jury proceeding was not commenced in the Western District of Texas until February 10, 1975, over a year after NFO’s Rule 37 motion was filed in this Court and appropriately six months after the consent decree was presented for approval in the government’s separate action against AMPI.

Both NFO’s Rule 37 motion and the government’s later decision to request that a grand jury be convened in the Western District of Texas were based on information initially developed during the taking of the depositions of Joseph A. Rose in November 1972 and that of Roger Hooper in November 1973. Those depositions were taken as a part of the coordinated discovery in JMPL Docket No. 83. On February 6, 1974 this Court entered an order which established the procedures under which a hearing would be held to establish the factual circumstances upon which NFO’s Rule 37 motion was based.

Pursuant to that order the parties took a number of additional depositions, including but not limited to the deposition of the late Stuart Russell. The hearing was held as scheduled on March 13, 1974 and in addition to the testimony of one live witness, the parties filed a full stipulation of facts with respect to the issues raised in NFO’s Rule 37 motion. At the end of that hearing, the record in NFO’s Rule 37 motion was closed, subject to being reopened only upon a showing of good cause and if the Court determined a need for further testimony.

The government, of course, did not elect to file a Rule 37 motion in the separate government action. For the record shows that the government and AMPI were at that time in the process of negotiating the consent decree which was eventually presented to the Court for its approval on August 13, 1974. Our opinion in United States v. Associated Milk Producers, Inc., supra, 394 F.Supp. 29, approved that consent decree in a modified form. That opinion establishes that NFO did everything in its power to block this Court’s approval of that consent.

Only three of the private antitrust plaintiffs in the twenty-eight cases included in JMPL Docket No. 83 opposed this Court’s approval of the consent decree in the government’s case against AMPI. We noted in footnote 13 on page 43 of our opinion, 394 F.Supp. 29 at 43-44 that “the Court was advised in a letter dated April 18, 1975 from counsel for the private plaintiffs in the cases filed in the Southern District of Texas that a settlement of that litigation has been agreed upon, conditioned only upon the entry of the proposed consent decree” in the government, case and that “[c]ounsel for the Texas private plaintiffs accordingly urge that the public interest requires that the proposed consent decree be approved forthwith.” That statement reflects the fact that the Texas private plaintiffs recognized that the proposed consent decree provided all equitable relief deemed necessary and that what those plaintiffs were primarily interested in was the recovery of treble damages.

Because of NFO’s efforts to intervene as a party in the government case against AMPI, and because NFO’s opposition to the approval of the consent decree was time consuming, we were not able to deny NFO’s motion to intervene and approve the consent decree until August 30, 1975. NFO’s efforts in the Court of Appeals for the Eighth Circuit and in the Supreme Court to reverse that approval were unsuccessful.

After the consent decree was approved, the conflict between NFO and AMPI shifted to the Western District of Texas. For grand jury proceedings had been commenced in that district on February 10, 1975, long after NFO’s Rule 37 motion was filed in this Court and after the consent decree in the government case against AMPI had been presented to this Court for approval. The lengthy proceedings in the Western District of Texas, all of which this Court was eventually required to review, establish that counsel for NFO and counsel for the Texas private plaintiffs (before the Texas cases were settled) testified as government witnesses before the San Antonio Grand Jury. By virtue of that testimony, the grand jury’s attention was focused on the stipulation of facts that was admitted in evidence in this Court at the March 13, 1974 hearing on the NFO Rule 37 motion.

The separate battle NFO and AMPI waged in connection with the San Antonio Grand Jury proceeding, which the Fifth Circuit was later to describe in In re 1975-2 Grand Jury Investigation, Etc., 566 F.2d 1293 (5th Cir.), cert. denied, 437 U.S. 905, 98 S.Ct. 3092, 57 L.Ed.2d 1135 (1978), as a “lengthy and bitterly contested dispute,” presented, among other questions, the validity of an order originally entered by Chief Judge Spears on August 25, 1976 which provided that grand jury subpoenas, transcripts and documents in the Western District of Texas grand jury proceeding “shall be disclosed to the United States District Court for the Western District of Missouri for such use in pending proceedings as that Court deems appropriate.”

The August 25, 1976 order, after lengthy proceedings participated in by NFO, AMPI, and the government, was modified by Chief Judge Spears’ order of October 1, 1976. The October 1, 1976 order is set out in full in In re 1975-2 Grand Jury Investigation, Etc., supra, 556 F.2d at 1294, n. 3, and was one of the four orders noticed for appeal by AMPI to the Fifth Circuit.

NFO apparently contends, although it is difficult to say in light of the manner in which NFO has presented its claim, that all of the time and expenses incurred by it in attempting to get the San Antonio Grand Jury to return indictments and all the time and expenses expended by it in the Western District of Texas, the Fifth Circuit, and the Supreme Court in connection with In re 1975-2 Grand Jury Investigation, Etc. should be considered in determining the amount of sanctions that should be imposed against AMPI in NFO’s Rule 37 motion. We find and conclude that NFO’s apparent claim is untenable. For NFO’s expenditure of time and money in the Western District of Texas may not properly be considered as reasonable time expended on the litigation in this Court. Cf. Webb v. Dyer County Board of Education, — U.S. —, -, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233, 242 (1985). NFO was serving its own purposes in separate litigation that pended in that court.

We further find and conclude, however, that the time NFO was required to spend in this Court in obtaining disclosure of the San Antonio Grand Jury material may properly be considered in the determination of the amount of sanctions that should be imposed against AMPI. It is therefore appropriate that we outline in some detail the proceedings conducted in regard to NFO’s first and second Rule 6(e) motions which NFO was required to file in that regard. Review of those extensive and lengthy proceedings also establishes why there is no need to resort to any of the time NFO expended in its defense of AMPI’s Phase III action in order to support the amount of sanctions that we believe should be imposed against AMPI. We turn now to NFO’s first Rule 6(e) motion.

D.

For reasons that are not apparent, NFO assumed that AMPI would not attempt to appeal Chief Judge Spears’ original August 25, 1976 order. For on September 24, 1976 NFO filed its first Rule 6(e) motion in this Court for disclosure of the San Antonio Grand Jury material. That motion was based on the theory that “NFO counsel should be afforded the opportunity to determine whether the Grand Jury investigation developed evidence previously concealed or withheld from NFO material to the pending Rule 37 motion and/or material to the issues in this litigation.”

On October 18, 1976 AMPI filed a lengthy response in opposition to NFO’s Rule 6(e) motion. That response pointed out that Judge Spears’ August 25, 1976 order had been modified by his October 1, 1976 order. The Court was advised that AMPI had filed a notice of appeal and an application for a stay pending appeal. On October 22, 1976 NFO filed a reply to which it attached another one-half inch of the San Antonio Grand Jury proceedings.

On November 2, 1976, AMPI filed what it called a “second response.” On November 16, 1976, NFO filed a reply to AMPI’s “second response.” And on December 8, 1976, the Court received a long letter from counsel for NFO dated December 3, 1976, in which we were advised that on November 29, 1976 AMPI had filed a number of other motions in the Western District of Texas concerning the grand jury proceedings.

On January 11, 1977, this Court filed its memorandum opinion and order denying NFO’s motion without prejudice. We stated in that memorandum that “the orders entered by the Honorable Adrian A. Spears, Chief Judge of the Western District of Texas, have been subject of an appeal to the Fifth Circuit Court of Appeals and that an order has been entered by that court staying Chief Judge Spears’ orders pending appeal.” We concluded that the questions presented in NFO’s first Rule 6(e) motion could not be decided until the pending appeal to the Fifth Circuit was decided and accordingly denied NFO’s first Rule 6(e) motion without prejudice.

We turn now to the circumstances under which NFO was required to file and this Court to rule NFO’s second Rule 6(e) motion.

E.

Although AMPFs notices of appeal to the Fifth Circuit in In re 1975-2 Grand Jury Investigation, Etc. were filed in October, 1976, that court did not decide that the various orders entered by Chief Judge Spears in the proceeding, including his October 1, 1976 order, were not appealable orders until March 3, 1978. In the meantime, the trial of Phase I of this case had commenced on June 13, 1977. The stay order issued in connection with Chief Judge Spears’ October 1, 1976 order was continued by the Fifth Circuit and by the Supreme Court and thus a stay of that order remained in effect until June 19, 1978, when the Supreme Court denied AMPFs petition for certiorari to the Fifth Circuit.

By that time, the trial of Phase I of this case had been completed and the trial of Phase II had been commenced on November 28, 1977. On June 13 and 14, 1978, procedures for concluding NFO’s Phase II case-in-chief were the subject of detailed discussion between the Court and counsel. On June 20, 1978, approximately a week after those conferences were conducted, the Court was required to advise all counsel in this case and counsel for the Antitrust Division that it had learned that the Supreme Court had denied certiorari the day before and that the stay order was no longer in effect. We requested the views of counsel in regard to what further proceedings should be conducted.

NFO responded on June 26, 1978 by stating that its first Rule 6(e) motion which had been denied without prejudice on January 11, 1977, and all the lengthy briefs filed in support and in opposition to NFO’s first Rule 6(e) motion should be “reinstituted.” AMPI, having lost its Western District of Texas battle to obtain the return of the grand jury materials to AMPI, commenced a new battle in this Court to prevent disclosure of the grand jury material. AMPFs response, however, conceded that NFO’s first Rule 6(e) motion be considered as a second “reinstituted” Rule 6(e) motion and that such motion was in a posture to be ruled.

In light of the unfortunate timing as to when the Fifth Circuit and Supreme Court stays were lifted, it was easy to anticipate the likelihood that NFO would refuse to close its Phase II case-in-chief until its Rule 6(e) motion was ruled. It was also easy to anticipate that AMPI would likely do everything in its power to delay the ruling of NFO’s second Rule 6(e) motion, even though the granting of the motion would have permitted the disclosure of the grand jury material which, in turn, conceivably could have established, without further controversy, that NFO may have already seen substantially all of the grand jury material.

Because we viewed the necessity of closing NFO’s Phase II case-in-chief as a matter of paramount importance, we spent the 4th of July weekend in 1978 working on NFO’s Rule 6(e) motion. On July 7, 1978 we filed a memorandum and order granting NFO’s second Rule 6(e) motion.

On July 17,1978 AMPI filed a motion for reconsideration of our July 7, 1978 order and for an evidentiary hearing. AMPI alleged that it would demonstrate that: “(1) The grand jury investigation of AMPI in the Western District of Texas was conducted without proper authorization; (2) Prosecutorial conflict of interest, in that John G. Danielson, the chief grand jury prosecutor, was one of the prosecutors in United States v. AMPI and has demonstrated an animus toward AMPI; and (3) Prosecutorial misuse of the grand jury process.” On July 2