Full opinion text
OPINION FARNAN, District Judge. INTRODUCTION This is one of three related actions involving the contracts which govern the relationship between The Coca-Cola Company (the “Company”) and certain of its bottlers (the “bottlers”). This action, which for convenience will be referred to as the “Elizabethtown” case, arises out of contractual disputes between the Company and the bottlers involving the supply of syrup for the product bottled Coca-Cola. Two related actions, Coca-Cola Bottling Co. of Shreveport, Inc. v. The Coca-Cola Co., C.A. No. 83-95, and Alexandria Coca-Cola Bottling Co., Ltd. v. The Coca-Cola Co., C.A. No. 83-120 (collectively referred to as the “diet Coke cases”), 769 F.Supp. 671, arise from disputes involving introduction by the Company of its new diet product, diet Coke, in 1983. Litigation of these cases was conducted for eight years before Hon. Murray M. Schwartz, who became unable to see the litigation to its completion when he became ill in the Winter of 1989, after the end of trial on these matters. The cases were reassigned to me in the Spring of 1989. The parties elected to retry the cases rather than to allow decision on the then-existing record, and the Elizabethtown case was retried before me from September 1989-March 1990. This Opinion constitutes the Court’s Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a) in the Elizabethtown case. The Elizabethtown litigation began in 1981 and stems from the Company’s decision to substitute high-fructose corn syrup (“HFCS” or “HFCS-55”) for granulated sugar in the syrup for the Coca-Cola beverage drink sold by the Company to the plaintiff bottlers. The dispute centers primarily around the appropriate price of that syrup and evaluation of the Company's conduct in supplying the syrup and negotiating several issues with the bottlers. The Elizabeth-town litigation also involves alleged historical overcharges by the Company to the bottlers in the sucrose component of the syrup. Plaintiffs are profitable businesses which are presently or were formerly engaged in the bottling of Coca-Cola under contracts which conform to Consent Decrees issued by this Court in 1921. This action involves 30 plaintiffs and 30 bottling contracts. During the course of the litigation, twelve plaintiffs either amended their bottling contracts or sold their rights to bottle Coca-Cola to bottlers who operate under amended bottling contracts. These twelve plaintiffs seek only past damages and make no claims under Count II, which seeks declaratory and injunctive relief. For convenience these twelve will be referred to as the “past damages plaintiffs.” The remaining plaintiffs will be known as full plaintiffs. The full plaintiffs, their principal places of business, and the dates for the beginning of their alleged damage periods are as follows: STATE OF INCORPORATION OR PRINCIPAL PLACE OF PLAINTIFF BUSINESS BEGINNING OF DAMAGE PERIOD Coca-Cola Bottling Co. of Magnolia Magnolia, AK February 2, 1976 Sacramento Coca-Cola Bottling Co. Sacramento, CA February 2, 1977 Coca-Cola Bottling Co. of Elizabethtown Elizabethtown, KY January 1, 1969 Coca-Cola Bottling Co. of Shelbyville Shelbyville, KY January 1, 1969 Trenton Coca-Cola Bottling Co. Trenton, MO February 4, 1976 Kelford Coca-Cola Bottling Co. Kelford, NC February 4, 1971 Plymouth Coca-Cola Bottling Co. Plymouth, NC February 4, 1971 Wilmington Coca-Cola Bottling Works Wilmington, NC February 4, 1971 Coca-Cola Bottling Co. of Dickinson Dickinson, ND February 4, 1975 Coca-Cola Bottling Co. of Jamestown Jamestown, ND February 4, 1975 Coca-Cola Bottling Co. of Williston Williston, ND February 4, 1975 Cleveland Coca-Cola Bottling Co. Cleveland, OH January 1, 1969 Coca-Cola Bottling Co. of LeHigh Valley Bethlehem, PA January 1, 1969 Laredo Coca-Cola Bottling Co. Laredo, TX February 4, 1977 Central Coca-Cola Bottling Co. Richmond, VA February 4, 1971 Love Bottling Co. Muskogee, OK July 24, 1982 Coca-Cola Bottling Co. of LaCrosse LaCrosse, WI July 24, 1981 Arkansas-Georgia Nashville, AK July 24, 1982 Consolidated Pretrial Order 2-3 (Dkt. 848). The past damages plaintiffs, their principal places of businesses, and their alleged damages periods are as follows: PLAINTIFF STATE OF INCORPORATION OR PRINCIPAL PLACE OF BUSINESS DAMAGES PERIOD Coca-Cola Bottling Streator, IL Feb. 2, 1971- Co. of Streator April 30, 1987 Natchez Coca-Cola Natchez, MS Feb. 4, 1975- Bottling Co. Dec. 31, 1986 Coca-Cola Bottling Jefferson City, MO Feb. 4, 1976- Co. of Jefferson City April 30, 1987 Coca-Cola Bottling Macon, MO Feb. 4, 1976- Co. of Macon April 30, 1987 Coca-Cola Bottling Deming, NM Feb. 4, 1975- Co. of Deming April 30, 1987 Coca-Cola Bottling Tulsa, OK Feb. 4, 1976- Co. of Tulsa Dec. 31, 1984 Coca-Cola Bottling Brownsville, TX Feb. 4, 1977- Co. of Brownsville May 31, 1984 Coca-Cola Bottling San Angelo, TX Feb. 4, 1977- Co. of San Angelo Dec. 30, 1985 Las Cruces CocaLas Cruces, NM Feb. 4, 1975- Cola Bottling Co. Dec. 30, 1985 Coca-Cola Bottling Tucson, AZ Feb. 4, 1975- Co. of Tucson Dec. 30, 1985 Coca-Cola Bottling St. Cloud, MN Feb. 4, 1975- Co. (Alexandria) July 31, 1984 Coca-Cola Bottling Marshall, TX Feb. 4, 1975- Co. of Marshall Oct. 1, 1987 Consolidated Pretrial Order at 3-4 (Dkt. 848). The Company is a corporation organized and existing under the laws of the State of Delaware, and having its principal office and place of business in the State of Georgia. Each of the plaintiffs is a corporation that is incorporated in and has its principal place of business in a state other than Delaware or Georgia. Therefore, there is complete diversity of citizenship. The amount in controversy exceeds the sum of $10,000, exclusive of interest and costs, and therefore, the Court has subject matter jurisdiction pursuant to 28 U.S.C.A. § 1332(a)(1). The factual background of this case has been recited repeatedly in Judge Schwartz’ published opinions and should be familiar to all who have participated; however, for the sake of completeness in this Opinion, it will be repeated generally. As indicated, the following narrative is intended to provide background only. Specific occurrences which have bearing on the issues pending before the Court will be discussed in greater detail in the Court’s findings of fact under each Count. This narrative is drawn from numerous sources, including evidence presented in the record and Judge Schwartz’ prior opinions. BACKGROUND In 1886, Dr. John Smyth Pemberton, an Atlanta pharmacist, developed the formula for a syrup that could be mixed with carbonated water to produce a beverage. He named the beverage “Coca-Cola.” The name “Coca-Cola” derives from two of the ingredients, coca leaves and cola (or kola) nuts, extracts of which were used to manufacture Merchandise No. 5, one of seven compounds or “merchandises” used by Dr. Pemberton in the original formula for Coca-Cola. United States v. Coca-Cola Co. of Atlanta, 241 U.S. 265, 271 & 272, 36 S.Ct. 573, 574 & 575, 60 L.Ed. 995 (1916). Dr. Pemberton registered the name “Coca-Cola” written in Spencerian script as a trademark “for soda water and other beverages” on June 6, 1887. The original trademark registration dated June 6, 1887, described Coca-Cola as follows: This “Intellectual Beverage” and Temperance Drink contains the valuable Tonic and Nerve Stimulant property of the Coca plant and Cola (or Kola) nuts and makes not only a delicious, exhilarating, refreshing and invigorating Beverage (dispensed from the soda water fountain or in other carbonated beverages), but a valuable Brain Tonic and cure for all nervous affections — Sick Headaches, Neuralgia, Hysteria, Melancholy, ... The peculiar flavor of COCA-COLA delights every pallet; it is dispensed from the soda fountain in same manner as any other fruit syrups. PX87. In 1888, Asa G. Candler, a pharmacist and owner of a wholesale drug company in Atlanta, acquired a partial interest in the Coca-Cola trademark and formula. He acquired complete ownership in 1891. In 1892, Asa Candler formed the Coca-Cola Company, a Georgia corporation (the “Georgia corporation”), to manufacture and market Coca-Cola syrup for use in the soda fountain business, whereby one ounce of the syrup was to be mixed with eight ounces of carbonated water at the point of sale. The Georgia corporation did not attempt to bottle the syrup for Coca-Cola prior to 1899. In 1899, B.F. Thomas and J.B. Whitehead, two lawyers from Chattanooga, Tennessee, approached Candler about obtaining the right to sell Coca-Cola in “bottles and other receptacles.” On July 21, 1899, Candler executed on behalf of the Georgia corporation a contract granting to Whitehead and Thomas the exclusive right to bottle and sell Coca-Cola throughout the United States, with the exception of six New England states, Mississippi and Texas (the “1899 contract”). The 1899 contract also gave Whitehead and Thomas exclusive right to use the trademark “Coca-Cola” on bottles in the territories covered by the contract. The 1899 contract contemplated that Whitehead and Thomas would form a corporation to be known as the “Coca-Cola Bottling Company” to which their rights under the 1899 contract would be assigned. Whitehead and Thomas formed the Coca-Cola Bottling Company as a Tennessee corporation in December, 1899. It became the first “parent bottler” of Coca-Cola and built plants in Atlanta and Chattanooga. The 1899 contract required Whitehead and Thomas to meet consumer demand for bottled Coca-Cola, to purchase all syrup for the production of bottled Coca-Cola from the Coca-Cola Company, to refrain from using substitutes for the syrup, to refrain from using the syrup in any way other than that specified, and to sell unbottled syrup only with the written consent of the Company. At the same time, the Company was obligated to sell Whitehead and Thomas their requirements of Coca-Cola syrup at a fixed price as shown on the wholesale price list of fountain syrup in effect at the time, which was attached as an exhibit to the 1899 contract. By an undated amendment, the Whitehead-Thomas contract was amended to fix the syrup price at $1.00 per gallon, less a 10if per gallon rebate to pay for “labels and advertising matter” to be provided by the Company at its actual cost. The syrup was to be bottled under pressure of one atmosphere in proportions of not less than one ounce of syrup to eight ounces of water. The 1899 contract also contemplated that Whitehead and Thomas would, at their own expense, construct a bottling plant in Atlanta and as many additional bottling plants as were needed to meet demand in the territories. Demand grew rapidly, and the two bottling plants built in Atlanta and Chattanooga were soon unable to meet demand outside their respective cities. Other than the Atlanta and Chattanooga plants, the Coca-Cola Bottling Company did not actually bottle the beverage itself. Rather, beginning in 1900, the Coca-Cola Bottling Company entered into contracts wherein Thomas and Whitehead assigned certain of their rights under the 1899 Contract to individuals, partnerships, and corporations (referred to hereinafter as “actual” bottlers), who built bottling plants and promoted and sold bottled Coca-Cola in exclusive territories assigned to them by Coca-Cola Bottling Company. A dispute arose between Whitehead and Thomas over the desirable contract period with the actual bottlers. While Thomas favored a two-year term, Whitehead favored perpetual contracts. With the Georgia corporation’s permission, Whitehead and Thomas divided the rights granted to them under the 1899 contract. Thomas retained ownership of Coca-Cola Bottling Company (referred to hereinafter as the “Thomas Company”). The Thomas Company conveyed to Whitehead and his new business associate, J.T. Lupton, its rights under the 1899 contract for all territories except the District of Columbia and the states of New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, North Carolina, Tennessee, Kentucky, Indiana, Ohio, Washington, Oregon, California, and small portions of Georgia and Alabama. Whitehead and Lupton then formed a Tennessee corporation called Dixie Coca-Cola Bottling Company, the name of which was thereafter changed to The Coca-Cola Bottling Company (referred to hereinafter as “Whitehead-Lupton Company”). The Georgia corporation, Thomas Company, and Whitehead-Lupton Company joined in amending the 1899 agreement to reflect the division. The Thomas Company and the Whitehead-Lupton Company were known as “parent bottlers.” The Whitehead-Lupton Company and the Thomas Company further divided their territories among other parent and “subparent” bottlers. Subparent bottlers of the Whitehead-Lupton Company included Western Coca-Cola Bottling Company and The Coca-Cola Bottling Company (1903). Subparent bottlers of the Thomas Company were Coca-Cola Bottling Works, Coca-Cola Bottling Works the 3d, and Pacific Coca-Cola Bottling. The bottling plants built by Whitehead and Thomas in Atlanta and Chattanooga were sold to the actual bottlers to whom the rights for those territories were assigned. Thereafter the parent bottlers did not own any Coca-Cola bottling plants, nor were they engaged in the actual bottling or sale of Coca-Cola beverage, which was left entirely to the actual bottlers. The actual bottlers were also primarily responsible for developing a market for bottled Coca-Cola in their respective territories, although the Georgia corporation apparently contributed funds to help develop a market. In 1919, the property, good will, and business of the Georgia corporation founded by Candler was acquired by a Delaware corporation also called “The Coca-Cola Company,” which assumed the Georgia corporation’s outstanding contracts and liabilities. Thereafter, the Georgia corporation surrendered its charter. Between 1899 and 1920 there were several changes in the formula for Coca-Cola syrup. Most notable of these was the elimination of saccharin as a sweetening ingredient in the syrup produced after 1907. Prior to 1906, the syrup was sweetened with a combination of sugar and saccharin. Following the passage of the Pure Food and Drug Act, the Company began using granulated sugar in place of saccharin. Refined granulated sugar became the most expensive ingredient in the manufacture of the syrup. The parties agreed to an increase in the fixed price of the syrup to reflect the higher sweetener cost. The onset of World War I brought with it sugar rationing and rigid price controls which held the price of sugar at nine cents per pound. At the end of the War, a severe sugar shortage combined with removal of the price controls caused the price of sugar to skyrocket from nine cents per pound in September 1919 to over twenty-seven cents per pound by June 1920. This extreme rise in the price of sugar caused the parent bottlers in late 1919 to agree to a temporary amendment to their contracts allowing the Company to pass sugar price increases in excess of nine cents per pound to the actual bottlers. This was the first time the parties agreed to a fluctuating price based upon the actual cost of an ingredient. The Company in January 1920 sought relief from the fixed price contract and proposed a fluctuating price tied to the cost of manufacture of the syrup. The parent bottlers advised that they would not enter into negotiations to amend their contracts with the Company until the Company provided itemized information concerning the cost of manufacturing the syrup. Except for providing cost statements prepared by its accountants, the Company refused to disclose the cost information, informing the bottlers they should rely on “the integrity and good faith of The Coca-Cola Company.” The parent bottlers’ rejection of the flexible pricing proposal precipitated a confrontation between themselves and the Company concerning the nature of the bottling contracts. The Company took the position that the contracts were terminable at will. The parent bottlers, on the other hand, insisted their contracts were perpetual. The Company informed the parent bottlers that their contracts would be terminated as of May 1, 1920. On April 9, 1920, the Company notified all actual bottlers that its negotiations with the parent bottlers had ceased, that the parent bottlers’ contracts would be terminated on May 1, 1920, and that the Company would contract directly with the actual bottlers as soon as circumstances permitted. On April 13, 1920, the two principal parent bottlers filed suit in Fulton County, Georgia Superior Court to enjoin the Company from terminating their contracts. A temporary restraining order was entered which prohibited the Company from selling Coca-Cola syrup to anyone other than the parent bottlers. The actual bottlers employed J.B. Sizer, a Chattanooga lawyer, to represent their interests in the litigation. Sizer reported to a special committee appointed by the Coca-Cola Bottlers’ Association, the trade organization to which the actual bottlers belonged. Sizer’s fees were paid by the Association and by assessments of the actual bottlers in the WhiteheadLupton and Thomas territories based upon the gallonage of syrup used by each bottler. Six actual bottlers intervened in the litigation in support of the parent bottlers. The Georgia suit was voluntarily dismissed by the parent bottlers on May 20, 1920 and refiled on June 1, 1920 in the United States District Court for the District of Delaware. The parties agreed to the entry of an order on June 10, 1920 (the “June 10 order”) requiring the Company to supply the parent and actual bottlers’ requirements of Coca-Cola syrup during the pendency of the litigation. The order set the price of syrup paid by the actual bottlers at $1.72 per gallon until November 1, 1920, by which time final decision in the litigation was expected. The June 10 order further provided that if the court had not rendered final decision by November 1, 1920, the syrup price would be increased or decreased based upon the Company’s actual costs of manufacturing the syrup. In May 1920 the Company purchased a year’s supply of refined cane sugar at a cost of about twenty cents per pound. During negotiations leading to the entry of the June 10 order, the Company failed to disclose that it had entered into this long-term sugar contract at a price near the top of the market. Beginning in June 1920, the market price of sugar began to decrease steadily. It fell to eleven cents per pound by November 1920 and continued to decline to five and one-half cents per pound by July 1921. From June to November 1920, however, the bottlers’ syrup price remained fixed under the June 10 order. Thus, while the prices of competing soft drinks fell, the retail price of Coca-Cola remained high, causing a sharp decline in sales volume. Although the bottlers expected price relief on November 1, the Company announced a price increase in order to recoup the cost of its inventories of high-priced sugar. The bottlers learned that by agreeing to the June 10 order basing the price of syrup on the Company’s actual costs, they had unwittingly exposed themselves to and insulated the Company from the hazards of the marketplace and the Company's apparent poor judgment in making long-term sugar purchases near the top of the market. On November 8, 1920 the Delaware District Court granted the parent bottlers’ motions for a preliminary injunction preventing the Company from terminating the contracts. The court held that the contracts were perpetual and that the parent bottlers had received from the Company property rights in the business of bottling Coca-Cola beverage. The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. 796 (D.Del.1920) (cited hereinafter as “Coke 1920 at_”). The parties resumed settlement negotiations. After the exchange of numerous proposals between the two litigants, as well as from the actual bottlers, settlement negotiations reached an impasse on March 8, 1921. The Company appealed the District Court’s preliminary injunction ruling to the United States Court of Appeals for the Third Circuit. The Company’s appeal was argued on May 3, 1921, at which time the presiding judge recommended that the parties consider settlement. New negotiators were appointed. While the appeal was pending, the parties entered into two settlement agreements, one between the Company and the Thomas Company, and the other between the Company and the WhiteheadLupton Company. The Delaware District Court formally incorporated those agreements as final judgments on October 4, 1921. The decrees incorporating the settlement agreements (the “Consent Decrees”) are identical with the exception of two paragraphs in the Whitehead-Lupton agreement not relevant here. The Consent Decrees read in pertinent part as follows: It appearing to the Court that the above stated cause is now ripe for final decree; that the parties thereto, including all of the Intervenors actually intervening in said cause, have entered into an agreement settling and compromising said case and all questions of difference thereon arising, an original signed copy of which contract has been exhibited to the Court and a true and correct copy of which is hereto attached as Exhibit 1, and Counsel representing the several parties to said cause moving the Court to make said agreement of compromise and settlement the decree of the Court in said cause, and all parties in open court consenting thereto, IT IS ORDERED, ADJUDGED AND DECREED: That said agreement or settlement and compromise, as the same appears attached hereto as Exhibit 1, be and the same is made the decree of this Court; and that it is so accordingly adjudged and decreed by the Court. The settlement agreement incorporated in the Thomas Company case is reproduced in pertinent part below: THIS AGREEMENT, made and entered into on this the 6th day of July, A.D. 1921, by and between COCA-COLA BOTTLING COMPANY, a corporation under the laws of the State of Tennessee, party of the first part, and THE COCA-COLA COMPANY, a corporation under the laws of the State of Delaware, party of the second part: WITNESSETH: 1: It being recognized that the primary obligation of all parties hereto, as well as all other individuals and Bottling Companies who employ the name Coca-Cola, in their corporate or trade name, is to promote the sale of Coca-Cola, and in consideration of the benefits to be derived by the parties to this instrument from the settlement of all matters of controversy between them in the above stated case, said case is hereby compromised and settled and this agreement is to be presented to the Circuit Court of Appeals and be made the judgment and decree of the proper Court. 2: The present contract between the said parties described in the pleadings in the above entitled cause, as hereby expressly modified and changed, shall remain of full force and effect, and is hereby agreed to be perpetual, and the same shall apply to the parties hereto and their respective successors and assigns; but no assignment shall be made by the party of the first part without the consent of the party of the second part, as provided in the original contract. 3: The said contract, as hereby modified shall operate perpetually, but if abnormal or burdensome conditions or occurrence prevail and the said parties fail to agree on a modification of prices and terms to meet such abnormal or burdensome conditions or occurrence and to continue during the same, then either party shall have the right to demand arbitration as to the price and terms; and if they disagree as to whether or not abnormal or burdensome conditions or occurrence exist, then that question shall also be arbitrated. 4: No forfeiture of any kind shall ever take place under the said contract as hereby amended until after the party of the first part shall have ninety (90) days written notice and opportunity to correct the conditions complained of, and if not corrected within said time and grounds of forfeiture exist, such forfeiture shall then occur; and if any forfeiture should ever arise as to any territory by reason of the act of any actual or sub-bottler, said forfeiture shall only apply to and embrace the territory supplied by the bottling plant of said offending actual or sub-bottler, and shall not extend to, nor cover, territory covered by the territory of any other bottler, even though said territory was obtained from or through the offending bottler. 5: The parties hereto raise the contract price of Coca-Cola Bottlers Syrup as fixed by said existing contract to one dollar and seventeen and one-half cents ($1.17) per gallon delivered as heretofore, including five cents (5<f) per gallon for advertising matter to be delivered at actual cost and freight expenses, and said party of the first part is hereby relieved and discharged from any and all obligations to spend anything for advertising; but it shall be bound to sell and deliver, at such actual cost, the same amount of advertising matter delivered to it by the party of the second part, to the actual Bottlers, as herein provided for. The party of the first part furthermore agrees to pay an additional six cents (60) per gallon for such syrup for each advance of one cent (I0) per pound in sugar above seven cents (70) per pound, and on the same basis for a fractional advance; same to include all possible increases in the cost of producing such syrup by the party of the second part other than may arise under, and as provided for by the arbitration clauses herein. 6: In order to promote the sale of Coca-Cola and enable the actual bottlers to compete with other beverages, the party of the first part hereby agrees to sell such syrup to the bottlers purchasing from it at not exceeding one dollar and thirty cents ($1.30) per gallon, including five cents (50) per gallon for advertising matter to be delivered, and an additional six cents (60) per gallon for such syrup for each advance of one cent (I0) per pound in sugar above seven cents (70) per pound, and on the same basis for a fractional advance; the party of the first part hereby further agrees that any increase in price or change in terms growing out of any agreement or arbitration as provided under paragraph three hereof shall not be exceeded or increased by it in any sales it may make of said syrup to the bottlers purchasing the same from it. 7: It is agreed between the parties that the price of sugar is to be determined quarterly, January, April, July and October in each year, by averaging the market price of standard granulated sugar during the first week in such quarter, as quoted at the refineries by the ten refineries operating in the United States of America at the time, having the largest capacity and output. 10: The party of the second part contracts that the syrup sold and furnished by it to the party of the first part is to be high grade standard Bottlers Coca-Cola Syrup, and shall contain not less than five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup. IN WITNESS WHEREOF, the said parties hereto, through their proper officers, and pursuant to resolutions of their respective Boards of Directors authorizing them so to do, have hereunto signed their names and affixed their corporate seals, on the day and date first herein written. In duplicate. (emphasis added). The Whitehead-Lupton decree contains the following paragraphs not found in the Thomas decree: 15: This settlement is conditioned upon the consent of the actual bottlers to the modification of their contracts with the party of the first part in accordance with the terms of this agreement. 16: The parties hereto will request the Court of Appeals to postpone a decision until it can be determined whether such actual bottlers will consent. If such consent cannot be secured by September 1st, 1921, the parties to this agreement will agree upon the plan of procedure, and if they fail so to agree, shall submit the matter to arbitration as to what shall be done in regard thereto. Except for these paragraphs, the two decrees are identical. The Consent Decrees amended and clarified the contracts between the Company and the parent bottlers. The settlement agreement between the Company and the Whitehead-Lupton Company was contingent upon the agreement of the actual bottlers in the Whitehead-Lupton territory because the bottle contracts between the Whitehead-Lupton Company and its bottlers were perpetual. The contracts between the Thomas Company and its bottlers were two-year contracts, most of which had expired during the pendency of the 1920 litigation. Therefore, the settlement agreement between the Company and the Thomas Company was not required to be contingent upon the consent of the bottlers in the Thomas territories. In 1921, the actual bottlers’ contracts in the Whitehead-Lupton and Thomas territories were amended to conform to the Consent Decrees. At the same time, the Thomas Company entered into perpetual contracts with its bottlers. It is these contracts which are at issue in the Elizabethtown litigation presently before the Court. Between 1921 and 1975 the Company gradually acquired all of the parent and subparent bottlers and assumed their obligations to the actual bottlers. In 1978, the Company proposed amendments to the actual bottlers’ contracts (“1978 Amendment”) to substitute a new syrup pricing formula using a “sugar element,” a “base element,” and the Consumer Price Index. The proposed amendments also provided that the savings resulting from any substitution of another sweetener for sugar in the syrup would be passed through to the actual bottlers. From 1978 until 1987, when the Company withdrew the proposed amendment, a great majority of the actual bottlers, constituting 97% of the volume of the Coca-Cola bottling business, signed the 1978 Amendment. The remaining bottlers, who continue to purchase syrup under the original bottle contracts which comply with the 1921 Consent Decrees, are the plaintiffs in this litigation. In January 1980, the Company started using high-fructose corn syrup in place of granulated sugar made from cane or beets to sweeten Coca-Cola syrup. Originally HFCS constituted fifty percent of the sweetener used in the syrup. Eventually, the Company stopped using sugar altogether and HFCS constituted 100% of the sweetener. From 1980-1987 the Company supplied HFCS-sweetened syrup both to the “amenders” (that is, those bottlers that signed the 1978 Amendment) and the “unamenders” (those bottlers that continued to operate under the original contracts). The amenders received a “pass-through” of the Company’s savings from using the cheaper HFCS sweetener. The Company continued to charge the unamenders the sugar-based price described in the pricing provisions of their unamended contracts. The unamenders brought this suit alleging that the Company’s continued use of a sugar-based price overcharged them and seeking a pass-through of the Company’s HFCS savings. This contention is the substance of Count I of this action. In 1986, Judge Schwartz conducted a bench trial on two issues, one of which was the definition of sugar as it is used in the 1921 Consent Decrees upon which plaintiffs’ bottle contracts are based. The plaintiffs argued in 1986 that the term “sugar” as used in the Consent Decrees meant refined granulated sugar, i.e., sucrose. They asserted that HFCS-55 was not “sugar” for purposes of their contracts and the Consent Decrees. The Company argued that “sugar” was a generic term for a family of complex carbohydrates, including sucrose, fructose, and glucose. The Company’s definition of “sugar” would have included HFCS. Judge Schwartz concluded that “ ‘sugar’ for purposes of paragraph 10 [of the Consent Decrees] means refined granulated sugar from cane or beet, and therefore HFCS-55 is not sugar as that term is used in paragraph 10 of the 1921 Consent Decrees____” Coke III at 1391. After Judge Schwartz declined to reconsider his ruling or to certify it for appeal, the Company informed plaintiffs that it would begin to supply them with syrup sweetened only with refined granulated sugar from cane or beet. The Company intended to continue supplying the amended bottlers with HFCS-sweetened syrup. The Company’s action prompted plaintiffs to file a supplemental complaint in this action seeking an injunction to prevent the Company from supplying to them syrup sweetened only with sugar. In the supplemental complaint, plaintiffs also allege that the Company’s actions in connection with its decision to provide plaintiffs with syrup sweetened only with granulated sugar from cane or beet breached an alleged covenant of good faith and fair dealing implied in their bottle contracts. Judge Schwartz denied plaintiffs’ motion for a preliminary injunction, and the Company has supplied sugar-sweetened syrup to plaintiffs since late in 1987. Plaintiffs’ efforts to obtain syrup sweetened with HFCS form the basis of Count II of their complaint. Count III centers around whether the Company has breached its obligation under the bottle contracts to charge plaintiffs a syrup price based upon the “market price” of sugar. The Consent Decrees set the price of the syrup according to a formula based upon the “market price” of sugar “as quoted at the refineries by the ten refineries operating in the United States ... at the time, having the largest capacity of output.” Consent Decrees, ¶ 7. In a bench trial conducted in 1986, Judge Schwartz decided the meaning of the term “market price.” Plaintiffs contended that “market price” was an average of actual selling prices, while the Company asserted that the list price, i.e., the price published in trade journals and official price lists, was the market price. Judge Schwartz held that the term “market price” meant: an average of the price per pound for refined granulated sugar of the grade and in the packaging unit in which it is principally sold to industrial users f.o.b. the refinery, as made known to such industrial users upon inquiry prior to sale by the ten refineries in the United States with the largest capacity and output during the first seven days of each calendar quarter, less any discounts, allowances, or rebates from that price which are available to industrial users or are made known to them upon inquiry prior to sale, but not including a standard two percent cash discount or any individually negotiated discounts, allowances, or rebates. Coke III at 1391. Count III involves whether the Company’s reliance on the list prices published in trade publications and on refiners’ price lists as the prices upon which it bases its calculation of “market price” violates the definition set out above. Thus concludes a narrative of the events leading to this litigation. Before embarking upon more detailed findings of fact and conclusions of law on each of the three Counts, however, it is necessary to set forth the general legal principles which must govern the Court’s consideration of the issues. GENERAL PRINCIPLES OF LAW A. Law of the Case 1. Various issues in this lengthy litigation have been explored by my predecessor, Hon. Murray M. Schwartz, in six published opinions and numerous orders and unpublished opinions. 2. Except for those portions entered into the 1989-1990 trial record, the record of the trial before Judge Schwartz in 1988-1989 is not part of the record of this case. 3. The Court’s conclusions of law are limited by the law of the case doctrine, which in this context provides generally that “judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.” TCF Film Corp. v. Gourley, 240 F.2d 711, 713 (3d Cir.1957); Rose Hall, Ltd. v. Chase Manhattan Overseas Banking, 576 F.Supp. 107, 125 (D.Del.1983), aff'd without opinion, 740 F.2d 956, 957 & 958 (3d Cir.1984). Therefore, the Court is bound by Judge Schwartz’ definitions of sugar and market price as enunciated in Coke III. The general rule is a rule of judicial comity intended to preserve the orderly functioning of judicial process. Hay-man Cash Register Co. v. Sarokin, 669 F.2d 162, 168 (3d Cir.1982); TCF Film Corp., 240 F.2d at 714; Rose Hall, Ltd., 576 F.Supp. at 125-26. The Court recognizes that the general rule is not absolute, however. There are exceptional circumstances under which a successor judge is empowered to reconsider the rulings of his predecessor. Such an “exceptional circumstance” may arise when the original judge is by death, resignation or disability not available to reconsider his decisions. Hayman Cash Register Co., 669 F.2d at 169; TCF Film Corp., 240 F.2d at 714; Rose Hall, Ltd., 576 F.Supp. at 126. The retrial before me of the case at bar upon Judge Schwartz’ illness could be considered such an “exceptional circumstance” because some of the issues in this case could not be presented for reconsideration to Judge Schwartz before he became ill. See United States v. Wheeler, 256 F.2d 745, 747 (3d Cir.), cert. denied, 358 U.S. 873, 79 S.Ct. 111, 3 L.Ed.2d 103 (1958). Therefore, the Court will reconsider a ruling if appropriate as an “exceptional circumstance,” i.e., a ruling which was not and could not have been reconsidered by Judge Schwartz. 4. Any legal rulings or opinions stated by Judge Schwartz during the course of denying the motions for summary judgment in Coke VI and the various summary judgment motions in the diet Coke litigation are understood not to be binding as the law of the case: The denial of a motion for summary judgment is an interlocutory ruling which establishes no more than that on the summary judgment record there are fact issues which should be submitted to the trier of fact. Since the record at a trial may be different, such a preliminary ruling does not determine what issues should be submitted to the jury. Kutner Buick, Inc. v. American Motors Corp., 868 F.2d 614, 619 (3d Cir.1989). Thus, any opinions offered by Judge Schwartz should be understood as offered for the limited purpose of determining whether summary judgment was appropriate and not for the purpose of finding facts or making legal conclusions on the full record in the context of disposition on the merits. The task of dispositive findings and conclusions is the work of this Opinion. 5. Although not a part of the law of this case, the Court may find Judge Schwartz’ rulings in the related diet Coke litigation persuasive. B. Governing Principles of Law 6. Delaware applies the principle stated in the Restatement (Second) Conflicts of Law § 188 (1971) that the law of the state with the most significant relationship to the transaction governs. Coke V at 918. 7. The state with the most significant relationship to the subject of each transaction is the state in which the principal place of business of each plaintiff is located. See Coke V at 918. 8. Interpretation of each plaintiffs contract will be governed by the law of the state in which that plaintiffs principal place of business is located. 9. The actual bottlers are not the intended beneficiaries of the Consent Decrees, and none of the bottlers remaining in the litigation have standing to enforce them. Coke VI at 90-91. The only rights assigned to the plaintiffs by the parents include (a) use of the trademark, (b) an exclusive license to bottle Coca-Cola, and (c) the right to use the Root bottle. Id. at 90-91; Coke IV at 1441. 10. Although none of the bottlers remaining in the litigation have standing to enforce the Consent Decrees entered by this Court in 1921 to resolve the 1920 litigation, Coke VI at 91, the Consent Decrees bear a close nexus to the plaintiffs’ bottle contracts. Coke V at 915. The Consent Decrees’ delineation of the agreements between the Company and the parent bottlers informs the interpretation of the plaintiffs’ bottling contracts. Id. at 916. For example, the syrup received by the actual bottlers cannot be different from that which the Company was bound by the Consent Decrees to deliver to the parent bottlers. Id. 11. Further, it is clear that the interests of the actual bottlers were considered by the parties to the Consent Decrees. The negotiators for the Company and the parent bottlers considered the ultimate effect of the pricing mechanism on the actual bottlers. See PX569 (“[I]n arriving at a settlement we must never forget that there are other parties concerned, besides the Parent Bottling Companies and this Company____ [Tjhere must be an agreement in advance which determines the price that the Actual Bottlers are to pay for COCA-COLA. This is necessary from the Actual Bottlers’ point of view, and from the point of view of the success of the business”); PX576 (“It is for the protection of the actual bottlers that [the parent bottlers] have been so insistent that in arranging a sliding scale the actual cost of Coca-Cola should be correctly and fairly ascertained.”). 12. In United States v. Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971), the United States Supreme Court set forth the “four corners” test for interpreting a consent decree: Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it____ [T]he instrument must be construed as it is written, and not as it might have been written____ Id. at 681-82, 91 S.Ct. at 1757. Thus, when construing the Consent Decrees, the Court’s first resort is to the “four corners” of the Decrees, or in other words, to the language of the Decrees. See Halderman v. Pennhurst State School and Hosp., 901 F.2d 311, 319 (3d Cir.), cert. denied, — U.S. -, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). 13. The parties argue various circumstances extrinsic to the four corners of the Consent Decrees in support of their respective interpretations. Since reliance upon aids of construction, such as the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree, does not depart from the “four corners” rule of United States v. Armour & Co., see United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37 n. 10, 95 S.Ct. 926, 934-35 n. 10, 43 L.Ed.2d 148 (1975); Allen-Myland, Inc. v. International Business Machines Corp, 746 F.Supp. 520, 542 (E.D.Pa.1990); Coke III at 1397, the Court may consider the parties’ arguments. C. General Principles of Contract Interpretation 14. When interpreting a contract, the primary function of the Court is to ascertain the intention of the parties. 4 Williston on Contracts § 601 at 303-05. 15. The Court should give effect to the mutual intention of the parties at the time the contract is executed. The Court should put itself in the position of the parties, looking forward from the time they entered into the contract. The Court should not view the contract from a position of hindsight. Generally, 4 Williston on Contracts § 607. “Judicial construction of a contract requires a determination of the meaning of the language used, not the ascertainment of some possible but unexpressed intent of the parties.” Id. § 600A at 287 (quoting Hunt v. Triplex Safety Glass Co. of North America, 60 F.2d 92, 94 (6th Cir.1932)). 16. The Court should give the greatest weight to the express language of the contract itself, Restatement (Second) of Contracts § 203(b) at 93 (“[EJxpress terms are given greater weight than course of performance, course of dealing, usage of trade____”) (emphasis added); see also United States v. Armour & Co., 402 U.S. 673, 678, 91 S.Ct. 1752, 1755-56, 29 L.Ed.2d 256 (1971), as the words themselves are the best and most important evidence of the intention of the parties. 4 Williston on Contracts § 610A at 514. The meaning of words is dependent upon their context, and the contract should be interpreted as a whole. 4 Williston on Contracts § 618 at 710-11; 2 E.A. Farnsworth, Farnsworth on Contracts § 7.13 at 292-93 (1990). An interpretation wherein the whole can be read so as to give significance to each part is preferred. Restatement (Second) of Contracts § 202(2) & comment d. Where possible, the meaning of a term should be consistent throughout the contract. 17. When the words of the contract are ambiguous, the Court may look to other indicia of the parties’ intent, including the circumstances surrounding the making of the contract and course of performance. These indicia are secondary, however, to the actual contractual language. Generally, Restatement (Second) of Contracts §§ 202 & 203(b). A contract term is ambiguous if it is subject to reasonable alternative interpretations. Taylor v. The Continental Group Change in Control Severance Pay Plan, 933 F.2d 1227 (3d Cir.1991) (citing Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir.1980)). “In making the ambiguity determination, a court must consider the words of the agreement, alternative meanings suggested by counsel, and extrinsic evidence offered in support of those meanings.” International Union, U.A.W. v. Mack Trucks, Inc., 917 F.2d 107, 111 (3d Cir.1990) (quoting Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96, 101 (3d Cir.1986)). 18. The Court should not rewrite the contract for the parties. It is not the Court’s function to change the obligations of the parties under a contract that they saw fit to make. 4 Williston on Contracts § 610A at 513. In applying the principles of contract interpretation, the Court “must guard against inadvertently reforming a contract ‘under the guise of construction’ by ‘looking too intently for means of bringing about some ultimate good, thwarting an apparent wrong, or preventing hardship ____’” Coke III at 1397; Coke 1920 at 805. 19. Courts do not rewrite contracts to include terms not assented to by the parties. E.g., Levy v. Levy, 130 Wis.2d 523, 388 N.W.2d 170, 174-75 (1986) (“In the guise of construing a contract, courts cannot insert what has been omitted or rewrite a contract made by the parties”); E.E.E., Inc. v. Hanson, 318 N.W.2d 101, 104 (N.D.1982) (“Normally, parties to a contract are allowed to write the terms of the contract themselves. A court may be called upon to interpret a contract written by the parties thereto but the court’s authority to interpret a contract does not give a court the authority to modify it”) (citation omitted); Glantz Contracting Co. v. General Electric Co., 379 So.2d 912, 916 (Miss. 1980) (“Courts do not have the power to make contracts where none exist, nor to modify, add to, or subtract from the terms of one in existence”) (quoting Citizens National Bank of Meridian v. Glascock, Inc., 243 So.2d 67, 70 (Miss.1971)); Stull v. Hicks, 59 Ill.App.3d 665, 16 Ill.Dec. 874, 876, 375 N.E.2d 981, 983 (1978) (“We are mindful of the fundamental principle that a court may not make a new contract for the parties or rewrite their contract under the guise of construction”). 20. Absent illegality, mistake, fraud, duress or unconscionability, it is not within the Court’s power to revise, modify, alter, extend, or remake the parties’ contract to include terms not agreed upon by the parties. Glantz Contracting Co. v. General Elec. Co., 379 So.2d 912 (Miss. 1980); St. Joseph Data Service, Inc. v. Thomas Jefferson Life Ins. Co. of America, 73 Ill.App.3d 935, 30 Ill.Dec. 575, 393 N.E.2d 611 (1979); Stull v. Hicks, 59 Ill. App.3d 665, 16 Ill.Dec. 874, 375 N.E.2d 981 (1978); Low v. Davidson Manufacturing Co., 113 F.2d 364 (7th Cir.1940); Texas Co. v. Todd, 19 Cal.App.2d 174, 64 P.2d 1180 (1937). 21. The Court may reform a contract only when there is a mutual mistake of integration, Restatement (Second) of Contracts § 155 & comment a, unilateral mistake induced by fraudulent misrepresentation, id. § 166, or impossibility of performance, H. Hunter, Modern Law of Contracts: Breach and Remedies ¶ 12.03 & 12.04[2], [3] (1986). “If, however, the parties make a written agreement that they would not otherwise have made because of a mistake other than one as to expression, the court will not reform a writing to reflect the agreement that it thinks they would have made.” Restatement (Second) of Contracts § 155 comment b. 22. Thus it is the task of the parties, not of this Court, to refashion the agreement to reflect new developments. See Coke VI at 49-50. If there is a reasonable way to uphold the contracts despite changes in the business, the Court must give consideration to it. Id. at 59. COUNT I FINDINGS OF FACT A. Plaintiffs’ Contentions 1. In Count I, plaintiffs contend the Company breached the unamended contracts by supplying them with syrup sweetened with HFCS-55 from 1980-1987 and by charging them a syrup price based upon more costly sugar. Plaintiffs seek a declaratory judgment that the Company’s unilateral change in the sweeteners violated their unamended contracts. They also seek monetary damages for the amount of the alleged overcharge, prejudgment interest, and attorneys’ fees. 2. Plaintiffs seek damages equal to 100% of the difference between the sugar-based syrup price they were charged and a syrup price based upon what they contend was the “effective selling price” of HFCS55. 3. Plaintiffs and the Company agree that in the event the Court awards monetary damages, the price of HFCS which should be used by the Court to calculate plaintiffs’ damages should be the “market price” as that term is used in paragraph 7 of the Consent Decrees and paragraph FOURTH(d) of the bottle contracts. In Coke III, Judge Schwartz defined “market price” for sugar as: an average of the price per pound for refined granulated sugar of the grade and in the packaging unit in which it is principally sold to industrial users f.o.b. the refinery, as made known to such industrial users upon inquiry prior to sale by the ten refineries in the United States with the largest capacity and output during the first seven days of each calendar quarter, less any discounts, allowances, or rebates from that price which are available to industrial users or are made known to them upon inquiry prior to sale, but not including a standard two percent cash discount or any individually negotiated discounts, allowances or rebates. Coke III at 1418. 4. Plaintiffs contend that there exists an “effective selling price” of HFCS which meets Judge Schwartz’ definition of market price. They assert that the Court should use monthly averages of actual sales prices of HFCS-55 as a proxy for “effective selling price” or “market price” when it calculates their damages. B. The Company’s Position 5. The Company contends that plaintiffs are not entitled to the difference between a syrup price based upon the price of HFCS-55 and the sugar-based syrup price they were charged because pass-through of sweetener savings was a benefit conferred by the 1978 Amendment not signed by these plaintiffs. 6. In the alternative, the Company asserts that even if it breached plaintiffs’ unamended contracts, plaintiffs are not entitled to damages because they have not been harmed. The Company contends plaintiffs received the benefit of their economic bargain because they received a syrup of like quality at the price for which they contracted. 7. In the event the Court finds a breach and determines that damages should be awarded, the Company asserts the Court should use the list price of HFCS, i.e., the prices published by the corn wet millers in trade publications, pricing letters and announcements, to calculate damages. C. Introduction 8. The allegations in Count I are derived from the Company’s decision, announced January 25, 1980, to begin using high-fructose corn syrup (HFCS-55 or HFCS) in place of granulated sugar as the sweetener for Coca-Cola Bottlers’ Syrup. 9. HFCS-55 is a liquid sweetener composed of 55% fructose, 42% glucose and approximately 3% oligasaccharides. Admitted Facts III.C. ¶ 161 at 81. 10. HFCS-55 was unknown and did not exist in 1921. Admitted Facts III.C. U 162 at 81. HFCS-55 is made by hydrolysis, which converts corn starch into a liquid through the use of chemical enzymes. Admitted Facts III.C. ¶ 161 at 81. This process did not exist until the 1960’s and did not become commercially feasible until the 1970’s. Admitted Facts, III.C. If 163 at 81. 11. The substitution of HFCS for sugar does not adversely affect the quality of the Coca-Cola product. Admitted Facts III. D(i) ¶ 262 at 148 (“There is no organoleptic difference, i.e., no difference in taste, feel, smell, or color, between Coca-Cola produced from syrup which contains 100% sucrose and Coca-Cola which is produced from syrup containing either 100% HFCS-55 or an authorized blend of HFCS and sucrose”); see also Tr. 1169 (W. Schmidt); Tr. 1425-26 (C. Schmidt); Tr. 3766 (Trombley); Tr. 4366 (Hanlon). 12. Since 1980, HFCS-55 has been less expensive than a comparable amount of sucrose with the same sweetening power. Admitted Facts, III.C., ¶ 168 at 83; III.C. If 174 at 84. 13. On January 25, 1980, the Company, unilaterally and over the objection of the plaintiffs, announced that it would begin using a mixture of 50% HFCS-55 and 50% sugar to sweeten the syrup. On February 7, 1984, the Company announced an increase in the proportion of HFCS to sugar from 50%-50% to 75% (HFCS)-25% (sugar). On November 6, 1984, the Company announced an increase in the amount of HFCS-55 in Coca-Cola syrup to 100% of the sweetener. 14. From 1980 until December 1, 1987, the Company supplied all bottlers — amended and unamended — with syrup sweetened wholly or partially with HFCS. On December 1, 1987, in response to Judge Schwartz’ decisions in Coke III, Coke IV, and Coke V, the Company began to supply plaintiffs, that is, the unamended bottlers, with syrup sweetened with 100% granulated sugar from cane or beets. 15. During the time the Company supplied plaintiffs with HFCS-sweetened syrup, it continued to charge them a syrup price based upon the market price of sugar and calculated under the sliding scale pricing mechanism described in paragraphs 6 and 7 of the Consent Decrees and paragraph FOURTH(d) of the unamended bottle contract. D. The Unamended Contracts Require the Use of Sugar to Sweeten the Syrup 16. Paragraph 10 of the Consent Decrees states: “The [Company] contracts that the syrup sold and furnished by it to [the Parent Bottlers] is to be high grade standard Bottlers Coca-Cola Syrup, and shall contain not less than five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup.” Paragraph FIRST of the unamended contracts required the parent bottler “to obtain and furnish to [the unamended actual bottler] ... sufficient syrup for bottling purposes to meet the requirements of [the actual bottler] ... from The Coca-Cola Company under the contract existing between [the parent bottler] and The Coca-Cola Company [the Consent Decrees].” Thus, it may be said that under paragraph FIRST of the unamended contracts, the parent bottler was required to supply the unamended actual bottler with the same syrup it received pursuant to paragraph 10 of the Consent Decrees. In this way, it may be said that paragraph FIRST of the unamended contracts incorporates the description of the syrup in paragraph 10 of the Consent Decrees as the syrup to be supplied to the unamended actual bottlers. In other words, the unamended contracts entitle the actual bottlers to receive the same “Bottlers Coca-Cola Syrup” described in paragraph 10 of the Consent Decrees. As previously indicated, Judge Schwartz ruled in Coke III that “[t]he effective present meaning of the term ‘sugar’ in paragraph 10 [of the Consent Decrees] is refined granulated sucrose from cane or beet, a definition that excludes HFCS-55.” Coke III at 1406. Neither party contested this ruling. 17. The Court finds that use of a sweetener other than sugar was not contemplated by the parties in 1921, who bargained for the requirement that the syrup be sweetened with not less than 5.32 pounds of sugar per gallon. Both the Company and the parent bottlers were familiar with the use of cheaper substitute sweeteners and variations in the sweetener strength. Consequently, they could have provided for the use of sweeteners other than sugar in the Consent Decrees and bottle contracts. The fact that they did not do so indicates that the parties bargained for the use of sugar as the only sweetener in the syrup and that they considered substitute sweeteners undesirable. These findings are evidenced by the numerous changes in the sweetener which occurred prior to 1921. 18. At the time it entered into the 1899 contract with Whitehead and Thomas, the Company manufactured only one version of Coca-Cola syrup and sold the same syrup for use in both the soda fountain and bottling businesses. R. 1244, 1714; Admitted Facts III.A. If 30 at 26. 19. Whitehead and Thomas, as well as some of the actual bottlers, soon discovered that the bottled product was not as sweet as the fountain product. Admitted Facts III. C. If 116 at 67; III.D. 11281 at 152; IV. A. 1112 at 163-64. 20. To eliminate the difference in taste, the bottlers experimented with different syrup to water ratios. Thomas was permitted to add “a simple syrup” to the product sold by the actual bottlers. Admitted Facts IV.A. 1113 at 164. This simple syrup contained the artificial sweetener saccharin, as well as “Coca-Cola coloring” and “Coca-Cola acid.” Admitted Facts III.C. ¶ 117 at 67; III.D. ¶ 282 at 152; IV.A. 1114 at 164. 21. Thus, prior to the passage of the Pure Food and Drug Act, the syrup used in bottling contained some saccharin. PX1 (R.1814). 22. The Pure Food and Drug Act, which was adopted in 1906, was interpreted by the USDA to prohibit the use of saccharin in soft drinks. Admitted Facts III.A. 1134 at 27; III.D. ¶ 284 at 152; IV.A. 11 68 at 172. Passage of the Pure Food and Drug Act forced the Company to change the formula for the syrup supplied to the bottlers, and the Company in conjunction with the parent bottlers developed a new syrup, which did not exist in 1899, for sale exclusively to the bottlers under the 1899 contract. Admitted Facts, III.A. IfIf 35, 37, 38 at 28-29; III.D. ¶ 285 at 152. The new formula altered slightly the taste of bottled Coca-Cola. See PX102. 23. Prior to 1906, the syrup also contained a soft sugar known as “Confectioner’s A.” PX711 at AR2303; Admitted Facts III.A. II31 at 27. This was eventually found unsatisfactory, and the Company switched to granulated sugar. PX711 at AR2303. 24. Between 1907 and 1921, the Company reduced the quantity of sugar in a gallon of Coca-Cola Bottler’s Syrup from 6.36 pounds per gallon before World War I, PX766 at AZ0609, to 5.97 pounds per gallon during 1916-1918, PX220, and to 5.32 pounds per gallon by the time of the 1920 litigation. 25. Prior to the imposition of sugar quotas and price controls in 1917, cane sugar was the primary sweetener used in soft drinks. Admitted Facts III.C. If 122 at 68. Sucrose, especially sucrose from cane, was the preferred sweetener in the soft drink bottling industry. • Admitted Facts 11123 at 68. During 1918, the Company used a number of c